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

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 LEADERSTurkey

Croatia

Albania

VERY LOW COMPLIANCEMoldova

Uzbekistan

Belarus

MAJOR DIFFICULTIESBosnia & Herzegovina

Poland

CHALLENGINGTajikistan

Russia

16

Assessment Results: EU Countries 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

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, includingGeorgia and Russia

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

25

Assessment Results: 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

30

Thank you for your attention.

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