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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 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
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
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
7
EBRD Public Procurement Assessment Results: Total scores for Efficiency of Remedies*
*Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan
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 LEADERSTurkey
Croatia
Albania
VERY LOW COMPLIANCEMoldova
Uzbekistan
Belarus
MAJOR DIFFICULTIESBosnia & Herzegovina
Poland
CHALLENGINGTajikistan
Russia
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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
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
24
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
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
30
Thank you for your attention.
Spyros PanagopoulosLLM, Attorney at lawPublic Procurement Monitoring Unit (EL), Greece+30 6974 [email protected]