Spyros Panagopoulos

EBRD 2010 Regional Assessment of Public Procurement Legal Frameworks

Efficiency of Public Procurement National Remedies Systems

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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 approachRemedies 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

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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

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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

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Assessment Results: Availability of data on remedies

Review of local

procurementpractice:

data from

contracting entities

in the EBRD region

Assessment Online Database

Survey of remedies

procedures:

case studies answered

by locallaw

firms

Data Source: Data collected in 29 countries

Unavailable for 4 countries in the EBRD region*

Survey of the national

public procurement

legislationin 29 countries

in the EBRD region

*Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

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Main Findings

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EBRD Public Procurement Assessment Results: Total scores for Efficiency of Remedies*

*Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

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Efficiency of Remedies Compliance rating in the EBRD sub-regions

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Assessment Results:

Efficiency of Remedies: Scores for Simplicity*

*Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

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Assessment Results: Efficiency of Remedies: Scores for Speed *

*Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

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Assessment Results: Efficiency of Remedies: Scores for Cost *

*Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

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Assessment Results: Efficiency of Remedies: Scores for Certainty *

*Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

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Assessment Results: Efficiency of Remedies: Scores for Fit-to-Context *

*Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan

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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

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Summary of Results (2)

REGIONAL LEADERSTurkey

Croatia

Albania

VERY LOW COMPLIANCEMoldova

Uzbekistan

Belarus

MAJOR DIFFICULTIESBosnia & Herzegovina

Poland

CHALLENGINGTajikistan

Russia

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Assessment Results: EU Countries in the EBRD region

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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

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Assessment Results: Balkan Countries and Turkey

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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

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Assessment Results: Eastern European Countries, includingGeorgia and Russia

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Eastern European Countries, includingGeorgia 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

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Assessment Results: Central Asian Republics, the Caucasus and Mongolia

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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

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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

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The way forward

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Thank you for your attention.

Spyros PanagopoulosLLM, Attorney at lawPublic Procurement Monitoring Unit (EL), Greece+30 6974 891989procurementlawyer@gmail.com