Spyros Panagopoulos EBRD 2010 Regional Assessment of Public Procurement Legal Frameworks Efficiency of Public Procurement National Remedies Systems

2 Remedy procedures in public procurement regulation Remedy procedures in public procurement - These are legal measures, which can be used to rectify defects or law infringements in the public procurement process Remedies vs. Compensation approach Remedies rectify irregularities in a procurement process in progress, while damages might be usually paid to an aggrieved tenderer once the tender process has finished Main advantage of the remedy procedures Enable a procurement process to continue, whilst simultaneously addressing the disputed points

3 Basic features of the modern public procurement remedies function right of the tenderer to seek a review right of the tenderer to seek remedial action as opposed to monetary compensation a dedicated remedies system an independent body, authorised to sanction remedial action access to judicial review where remedies procedures are not feasible, the right of the tenderer to seek compensation

4 Research methodology TWO PERSPECTIVES: ‘Law on the books’ ‘Law in practice’ FIVE KEY PARAMETERS: Simplicity Speed (swiftness) Cost Certainty Fit to context (appropriateness) TWENTY NINE countries Up to HUNDRED assessment points

5 Assessment Results: Availability of data on remedies Review of local procurement practice: data from contracting entities in the EBRD region Assessment Online Database Survey of remedies procedures: case studies answered by local law firms Data Source: Data collected in 29 countries Unavailable for 4 countries in the EBRD region* Survey of the national public procurement legislation in 29 countries in the EBRD region *Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

6 Main Findings

7 EBRD Public Procurement Assessment Results: Total scores for Efficiency of Remedies* *Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

8 Efficiency of Remedies Compliance rating in the EBRD sub-regions

9 Assessment Results: Efficiency of Remedies: Scores for Simplicity* *Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

10 Assessment Results: Efficiency of Remedies: Scores for Speed * *Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

11 Assessment Results: Efficiency of Remedies: Scores for Cost * *Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

12 Assessment Results: Efficiency of Remedies: Scores for Certainty * *Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

13 Assessment Results: Efficiency of Remedies: Scores for Fit-to-Context * *Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

14 Summary of Results (1) GENERAL OVERALL COMPLIANCE RATINGS –No countries rated ‘very high –Five countries rated ‘high’ –Nine countries rated ‘medium, –Seven countries rated ‘low’ –Six countries rated ‘very low’  AVERAGE COMPLIANCE RATE: medium to low

15 Summary of Results (2) REGIONAL LEADERS Turkey Croatia Albania VERY LOW COMPLIANCE Moldova Uzbekistan Belarus MAJOR DIFFICULTIES Bosnia & Herzegovina Poland CHALLENGING Tajikistan Russia

16 Assessment Results: EU Countries in the EBRD region

17 Assessment Results: Efficiency of Remedies: the case of Poland EU Member States in the EBRD region

18 EU Countries in the EBRD region: Summary of Results EU Countries are leaders in the EBRD region, however did not achieve very high compliance yet Higher compliance in the northern & central countries much lower compliance in the southern countries Remedies are slow – increase in speed is required everywhere in the EBRD region Remedies fees policy has to be reviewed in order to facilitate wider access to the system Insufficient market awareness of the remedies bodies

19 Assessment Results: Balkan Countries and Turkey

20 Assessment Results: the case of Bosnia & Herzegovina Balkan Cuntries and Turkey

21 Balkan Countries and Turkey: Summary of Results Turkey is a sub-regional leader Remedies systems are adequate and not too complex, but generally with limited market awareness Dedicated remedies bodies established in most countries Insufficient independency of the remedies body in the region Implementation problems have been identified in Montenegro and Albania Still low marks for resistance to corruption in some countries

22 Assessment Results: Eastern European Countries, including Georgia and Russia

23 Assessment results: the case of Russia Eastern European Countries, including Georgia and Russia

24 Eastern European Countries, including Georgia and Russia: Summary of Results No evident regional leader Lowest average compliance score as compared to the other country groupings in the EBRD region Insufficient independency of the remedies body in this region Evident problems with speed and integrity of remedies bodies High cost restricts access to the remedies system

25 Assessment Results: Central Asian Republics, the Caucasus and Mongolia

26 Assessment Results: the case of Uzbekistan Central Asian Republics, the Caucasus and Mongolia

27 Central Asian Republics, the Caucasus and Mongolia Summary of Results No distinct regional leader Absence of a dedicated public procurement remedies system Review is provided by general administration or courts Insufficient independency of the remedies body in this region, if in place Cost and complexity undermine the efficiency of the remedies system in Uzbekistan

28 General trends in the EBRD Region Introduction of dedicated public procurement remedies procedures across the region First independent remedies bodies in place Progressive adoption of administrative review means Time and cost undermine efficiency of the remedies systems Complexity still present in various links of the remedies chain Further efforts required in order to raise efficiency, consistency and predictability

29 The way forward Institutional framework Dedicated review bodies Specialized PP tribunals Integrity and independence safeguards Transparent operation Integration Regulatory framework Administrative review Standstill Ineffectiveness Time, complexity & cost proportional procedures Consolidated, coherent & streamlined process Administrative capacity Training Guidance Evaluation Market consultation Networking

30 Thank you for your attention. Spyros Panagopoulos LLM, Attorney at law Public Procurement Monitoring Unit (EL), Greece