© OECD A joint initiative of the OECD and the European Union, principally financed by the EU 2 nd SIGMA NETWORKING SEMINAR OECD Conference Centre Paris November 2008

Strengthening Integrity of Public Procurement Commission perspective Unit C1 Economic and International Dimension of Public Procurement; e-Procurement

EU procurement legislation: past and present Importance for the Candidate Countries to the EU the potential Candidates the Neighbour Countries Creating a compliant procurement system How do SIGMA help, how do we collaborate?

EU procurement legislation: past Global objective: opening up of the Internal Market through coordination of national procurement rules and practices Beginnings: 1969 (practices outlawed by the Treaty) First legislative coordination: 1970’s (works, supplies) –Limited number of obligations on competition, transparency –Limited scope Completion of the legislative framework: –Priority of the internal market policy (1985 White Paper) –Amendements, new directives (services, utilities, remedies) –Consolidation: 1993 (works, services, supplies) –Detailed rules (scope, specifications, advertising, procedures, selection and award criteria, review)

EU procurement legislation: present 2004 directives (procedures for awarding contracts) –Reflect structural and technological progress of procurement practices –Provide a framework for modernisation –Improve overall comprehensiveness of the system 2007 revision of the Remedies directives: –Improving the effectiveness of pre-contractual Remedies in formal award procedures through the provision of a standstill obligation –Providing for effective Remedies against the practice of illegal direct award of public contracts 2008 Defense procurement: –Adoption of Directive in progress

Importance for the CCs and Neighbours Accession Process: “the EU’s policy framework for the Western Balkan countries, all the way to their eventual accession” –Prospect of future membership: importance of harmonisation Stabilisation and Association Agreements: –Gradual legislative alignment, focus on “fundamental elements of the Internal Market acquis” –Access to procurement markets (may be conditional on alignment in certain fields) In the interest of the countries: –Guaranteeing best value for money –Paving the way for the modernisation of the procurement system –Meeting international standards by adopting a GPA compliant PP system

Creating a compliant procurement system Key elements: –Alignment/enactment of primary legislation (Public Procurement Act, Concessions Act, sectorial acts) –Systematic publication of tender notices –Adoption/adjustment of secondary acts –Provision of operational tools (guidelines, sample contracts) –Development of administrative capacities (“headquarters”, review bodies, main purchasers) Our experiences in the context of Enlargement: –Main risks: lack of continuity, coherence and comprehensiveness, application and enforcement problems, last-minute reforms –Importance of a global strategy covering all aspects of public expenditure management at an early stage

THE PRINCIPLES OF THE EC TREATY (e.g. transparency, non-discrimination, equal treatment) The EC thresholds National legislation Secondary EC legislation - Utilities Directive 2004/17/EC - Classical Directive 2004/18/EC - Review Directive I. 89/665/EC (amended by 2007/66/EC) - Review Directive II. 92/13/EC (amended by 2007/66/EC) -Standard forms Regulation 1564/2005 -CPV Regulation 213/2008 transposition Under the EC thresholds Out of the scope of the Directives direct application

Secondary EC legislation on public procurement -coordinates national legislations above the EU thresholds - regulates those parts and rules of the procedure which are essential for the application of the principles So it does not regulate issues such as: Terms and conclusion of the procurement contract Detailed rules on the institutional background Detailed rules on the conduct of review procedures Detailed rules on the award of concessions Detailed rules on the conduct of the award procedure The planning and preparation of procurement Bid security

Our working methods General aspects of assessment What is at stake? -A well functioning, complete and sound procurement system Our contribution? - Providing explanations, recommendations and legal assistance to the national administration

Our working methods General aspects of assessment (II) Incorporation of the relevant procurement rules: -the basic principles of the EC Treaty -the relevant EC Directives -the relevant case-law of the ECJ -the “soft law” of the EC on the acquis Consistency with the EU-partner country agreement PP provisions (when applicable)

Our working methods General aspects of assessment (III) All kind of procedure: to comply with the Treaty Above the thresholds: according to the rules describes in the PP Directives Below the thresholds: proper solutions compliant to the relevant principles Level of requirement according to the status of the partner country Progress assessed within the whole spectrum of legal texts For institutional building, according to experience, in the absence of precise requirements in the acquis.

Our working methods Sequencing of the informal assessment of draft legislation Meeting the consultant to discuss the planned legislation with special regard to its relevance to legal approximation Prepare a draft text to be discussed with the consultant Redraft it according to the consultant's eventual comments Re-discuss it with the consultant Submit the "final" draft to the Commission for comments Discuss the text with the consultant in the light of the Commission's comments and redraft it (if necessary).

Our working methods Building implementing capacity on the ground Last year meeting, the motto was: Back to basics Yesterday we heard: Institutions matters, stupid! What about Public Procurement?

Systemic approach of the opening benchmarks Based on experience, it aims at real sustainability of the system: A complete Legislative framework Phasing out of domestic preferences Effective review procedures Central organisation for consistency Comprehensive national strategy and timetable

How do we co-operate, on a daily basis? Assistance by DG Internal Market and Services (mainly from Brussels) –Assistance in the interpretation and implementation of the EU procurement legislation, –Organisation of bilateral expert meetings, –Contribution to seminars and conferences, –Support for the elaboration of national strategies, –Help in the targeting of external assistance. Assistance by SIGMA (on the ground) –Advice on reforms, design and implementation of strategic development plans; –Peer reviews/assistance; –Analysis and assessment of legal frameworks, methodologies, systems and institutions; –Training; –Methodological, technical and strategic input to optimise Commission assistance; –Support to networks, upon the request of the Commission; –Drafting of handbooks and other reference materials.