Capacity Building of Public Procurement Review Body Seminar in Kyiv 29-30 March 2012 10/14/2015 1.

Capacity Building of Public Procurement Review Body

 Seminar in Kyiv

29-30 March 2012

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Agenda – Thursday morning

•Procedural Fairness in the EU Public Procurement Remedies Directive•How the Ukrainian Public Procurement Review System ensures Procedural Fairness•Is the Ukrainian public procurement review compliant with the EU requirements•Summary of the session

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Agenda – Thursday afternoon

•Procedural Fairness in Public Procurement Remedies – the EU directive requirements

•Practical implementation of the EU Remedies Directive - country examples

•Summary of the session

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Main requirements

•Access to justice•Stand still•Interim measures•Ineffectiveness and setting aside•Damages•Costs•Preliminary reference

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Access to Justice

•Sweden– Access to administrative courts

• Chapters 17-19 of the Law on Public Procurement (2007-1091, revised 2011)

– Administrative board existed 1993-2007• Supervisory board, not complaint board

• Functions now undertaken by Competition Authority

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Access to Justice

•Norway– Access to municipal courts (first instance)

• Articles 7-10 of the Law on Public Procurement (1999-07-16-69, revised 2009)

– Access to advisory complaint board with sanctions competence

• Article 7a and 7 b of the law• Executive order on the complaint board (2002-11-15-1288,

revised 2009)• May impose fine for illegal direct procurement

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Access to Justice•Denmark

– Access to municipal and high courts• Article 224-227 of the Procedural Code (2011-2063)

– Access to administrative complaint board with quasi-judicial powers

• Law on enforcement of public procurement (2010-492, revised 2011)

• Executive order on the complaint board (2011-887)

• Mandatory jurisdiction during stand still (law article 5)

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Access to Justice

– Right of appeal to courts (law article 8)• Option of administrative appeal to an independent

body is not applied in Denmark (directive article 2.9.2)– Originally specified in the law (old article 6.1, law 1991-344)– Special requirements for the independent body are not as

such applied to the Complaint Board– However, the requirement for the president of hearing to have

qualifications as a judge are fulfilled (law article 9-10)• Option of separating finding of illegality and award of

damages is not applied in Denmark (article 2.2)– Complaint Board established in 1991– Competence for damages introduced later (law 2000-415)

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Access to Justice

– Optional time limit in article 2c of remedies directive (as revised by directive 2007/66)

• Minimum 10 days in case of eCommunication• Minimum 15 days in case of mail communication

– Law on enforcement• 30 days for claims based on

– Pre-selection (article 7.1)– Announcement of non-publication (article 7.3)– Call-off in framework and dynamic purchasing (article 7.2.2)

• 12 months for framework agreement (article 7.2.3)• 6 months in other cases (article 7.2.1)

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Access to Justice

– Time limit calculation from day of• OJ contract notice or non-publication announcement• Direct announcement in other cases

– Time limits apply to• Complaint board (article 7.1)• Courts (article 7.4)

– In case of appeal of Complaint board decisions, time limit is 8 weeks (article 8)

• Special time limit for Competition Authority– 2 years from OJ contract notice or non-publication announcement

(article 7.5)

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Access to Justice

– Optional requirement of prior complaint to contracting entity in article 1.4 of remedies directive

• Not applied in Denmark– No extension of time limits in case of voluntary complaint to

contracting authority

• Automatic suspension required only where prior complaint to contracting entity is mandatory

– Article 1.5 of the directive

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Access to Justice

•Danish Complaint Board– Entitled to bring cases

• Any party with legal interest• Competition Authority (enforcement authority)• Authorities and civil society organisation granted special standing

by Minister for Economy– Currently 75 entities– Also covers similar entities in other EU states

– Secretariat provided by the Business Authority• To avoid conflict of interest with Competition Authority

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Organisation of Complaint Board

•Norway– 10 members

• Lawyers, judges and academics• Hearings with 3 members• Secretariat provided by Competition Authority

– Case load• 2010: 394 (record year)• 2011: 331

– 99 cases refused as being submitted too late, lacking legal interest, or concerning issues already decided by courts

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Organisation of Complaint Board

•Denmark– Unspecified number of members (law article 9)

• Currently 9 judges and 23 specialist members (academics, administrators and business persons)

• Appointed by the Minister for Economy for 4 year periods– Specialist members proposed by public authorities and civil society

organisations• Hearing by 1 judge and 1 specialist (law article 10)

– May be expanded– Judge will have deciding vote

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Organisation of Complaint Board

– Case Load• 2010: 82 decisions• 2011: 109 decisions

– Very few appeals and direct cases at courts• 1992-1999: none• 2000-2008: 29

– Advisory complaint decisions and interpretative statements from the Competition Authority

• 2010: 7 decisions, 3 statements• 2011: 5 decisions, 5 statements

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Stand Still

•Denmark applies the minimum period required by article 2a of remedies directive

– Article 3.1 in the law on enforcement• 10 days in case of eCommunication• 15 days in case of mail

– Article 3.2 applies the optional exemptions in article 2b of the directive

• Procurement without notice• Framework and dynamic purchasing• Only one bidder concerned

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Interim measures

•Danish compliant board may apply interim measures only in exceptional cases

– Article 12.1 of the law on enforcement• Automatic suspension is option in directive (article

2.4)

– Request submitted within stand still period entail automatic suspension until decision

• Article 12.2 of the law, implementing article 2.3 of the directive

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Ineffectiveness and Setting Aside

•Ineffectiveness– Implementation of directive (law article 17)

• Illegal non-publication, unless announcement• Signing during stand still period• Special rules for frameworks and dynamic purchasing

– Application (law article 18.1)• Automatic ineffectiveness for future deliveries• In special cases also for past deliveries

– Only if return of deliveries is possible

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Ineffectiveness and Setting Aside

•Setting aside (law article 13.1-2)– Applies only to administrative decisions– No implication for contractual obligations

• Apart from ineffectiveness

•Corrective measures (article 13.3)– May order legalising (unclear reach)

•Sanctions (article 13.4)– May issue administrative fine (article 19 and 24)

• Penal fine only through prosecutor (article 20-22)

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Ineffectiveness and Setting Aside

•Courts– Must apply ineffectiveness

• Implicit in law article 17-18– Not bound by limitations on setting aside

• Law article 13 addressed only to Complaint Board– Unclear how far general competence to set aside contract

reaches

– Not entitled to impose administrative fine• Law article 19 and 24 addressed only to Complaint

Board

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Damages

•Damages only in case of violation of procurement rules (law article 14.1)

– Option in remedies directive to require setting aside as pre-condition is not applied (article 1.6)

•If claiming cost of participation (article 14.2)– Must show violation and actual chance of obtaining

contract•If claiming profits (implicit requirement)

– Must show would have won contract

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Costs

•Fees– Complaint Board: 1,500 Euro (order article 5.3)– Courts: 100 Euro plus 1.2% of value above 7,000

Euro, up to maximum of 10,000 Euro• Law on court fees (2006-936, revised 2012)

•Lawyers– Price per hour in Copenhagen about 400 Euro

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Costs

•Award of costs– Imposed on losing party

• May be shared in mixed finding• Lawyer costs awarded may be lower than actual costs

– Compliant Board• If complainant wholly or partially successful

– Fee repaid (order article 9.3)– Lawyer costs to be paid wholly or partially by contracting entity

(article 9.4)• If contracting entity successful

– Each party bears own costs

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Preliminary Reference

•Complaint Board– Accepted under article 267 by ECJ

• Administrative entity with quasi-judicial powers• Case C-275/98 Unitron

– Private entity with special rights, outside utilities, not subject to procurement directive, but may not discriminate

•Courts– Single reference made

• Case C-59/00 Vestergaard– Illegal trademark reference in procurement below EU threshold

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