Public Procurement in Transition Countries

download report

Transcript Public Procurement in Transition Countries

Public Procurement in Transition Countries: Major Trends in Provision of Access to Justice

16 July 2014

UNCITRAL Standards for Transparency, Accountability and Good Governance

European Bank for Reconstruction and Development

• • •

What is the EBRD?

International financial institution owned by 64 countries and two inter-governmental institutions Operating in 34 countries from central Europe to central Asia Capital base of €30 billion • • • •

Objectives

Promote transition to market economies by investing mainly in the private sector Mobilize significant foreign direct investment Support privatization, restructuring and better municipal services to improve people’s lives Encourage environmentally sound and sustainable development •

Legal Transition Programme

Aims to improve investment climate in the countries of operations by helping create an investor-friendly, transparent, and predictable legal environment

Cumulative business volume of €86 billion

100 90 80 70 60 50 40 30 20 10 0 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11 '12 13 Note: Unaudited as at 31 December 2013 2

EBRD Assessments Countries Surveyed

2010 Public Procurement Sector Assessment 2012 Public Procurement Sector Assessment Update

Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Georgia, Hungary, Jordan, Kazakhstan, Kyrgyz Republic, Latvia, Lithuania, Moldova, Montenegro, Morocco, Poland, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, Ukraine, and Uzbekistan Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Georgia, Hungary, Jordan, Kazakhstan, Kyrgyz Republic, Latvia, Lithuania, Moldova, Mongolia, Montenegro, Morocco, Poland, Republic of Kosovo , Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, and Ukraine

2011 UNCITRAL Model Law Diagnostic

Armenia, Azerbaijan, Kyrgyz Republic, Moldova, Mongolia, Russian Federation, and Tajikistan 3

1. Can challenges be brought before an administrative review body?

Is administrative review system available?

Yes

Yes with reservations Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Georgia, Hungary, Kazakhstan, Moldova, Mongolia, Montenegro, Morocco, Poland, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Ukraine, Republic of Kosovo Jordan, Kyrgyz Republic, Latvia, Lithuania, Tunisia No with reservations

No N/A 16% 84% Yes Yes with reservations All over the EBRD region, administrative review systems are available as an independent body of the executive branch. However, they seldom employ tribunal due process procedures.

4

2. Is the review body independent?

Is the reviewing body of procurement decisions independent?

Yes

Yes with reservations Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Hungary, Kyrgyz Republic, Latvia, Lithuania, Moldova, Montenegro, Poland, Republic of Kosovo, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Turkey, Ukraine Belarus, Georgia, Jordan, Morocco, Tunisia No with reservations

No

Kazakhstan

N/A 16% 3% 81% Yes Yes with reservations No with reservations In most jurisdictions, public procurement law stipulates that the review system must be independent, especially from the contracting entity.

5

Focus on CIS countries

Does the public procurement law ensure that the review procedure be impartial? Yes

Yes with reservations No with reservations Armenia Mongolia Tajikistan Azerbaijan Kyrgyz Republic Moldova

No N/A

Russian Federation

UNCITRAL on Impartiality Assessment on Independence 14% 14% 16% 3% 43% 29% 81% Even structurally independent review bodies may not be impartial in practice.

Yes Yes with reservations No with reservations N/A 6

3. Can challenges be brought before a court?

Is judicial review system available?

Yes

Armenia, Azerbaijan, Belarus, Bulgaria, Croatia, Egypt, Georgia, Hungary, Jordan, Kazakhstan, Lithuania, Mongolia, Montenegro, Morocco, Poland, Romania, Russia, Tajikistan, Turkey Yes with reservations No with reservations

No N/A

Albania, Bosnia and Herzegovina, Kyrgyz Republic, Moldova, Slovak Republic, Slovenia, Tunisia, Ukraine Estonia, FYR Macedonia, Latvia, Serbia Republic of Kosovo

25% 13% 3% Yes Yes with reservations No with reservations No 59% Judicial review is not as widely available as administrative review. In some countries, judicial review is available only after administrative review procedures have been exhausted.

7

4. Is monetary compensation available as a remedy?

Do the aggrieved complainants have a right to seek monetary compensation?

Yes

Yes with reservations No with reservations

No N/A

Armenia, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, Estonia, FYR Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyz Republic, Latvia, Lithuania, Mongolia, Montenegro, Morocco, Poland, Republic of Kosovo, Romania, Serbia, Slovenia, Tunisia, Turkey Moldova, Russia, Slovak Republic Azerbaijan, Jordan, Ukraine Albania, Belarus, Tajikistan

9% 10% 9% 72% Yes Yes with reservations No with reservations In many jurisdictions, monetary compensation is available if a complainant can prove that the contracting entity violated a specific provision and as a result lost the substantial chance it had at winning the challenged contract.

8

5. Is remedial action available as a remedy?

Do the aggrieved complainants have the right to seek remedial action in lieu of monetary compensation?

Yes

Yes with reservations No with reservations

No N/A

Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Estonia, FYR Macedonia, Hungary, Kazakhstan, Kyrgyz Republic, Latvia, Lithuania, Moldova, Mongolia, Montenegro, Morocco, Poland, Republic of Kosovo, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, Ukraine Croatia Georgia, Jordan Egypt

3% 6%3% 88% Yes Yes with reservations No with reservations No Remedial action is more widely available than monetary compensation as an available remedy.

9

Focus on CIS region: Suspension measures

Is the award procedure suspended?

Yes

Yes with reservations Armenia Azerbaijan Mongolia Russian Federation Kyrgyz Republic Moldova No with reservations

No N/A

Tajikistan

29% 14% 57% Is the contract award suspended? Yes

Armenia Azerbaijan Mongolia Yes with reservations Kyrgyz Republic Moldova No with reservations

No N/A

Yes Yes with reservations No

29%

Russian Federation Tajikistan

43% 28%

10

6. Are procurement proceeding records accessible?

Does the law require written records of the procurement proceedings to be maintained?

Yes

Yes with reservations No with reservations

No N/A

Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Egypt, FYR Macedonia, Georgia, Hungary, Jordan, Kazakhstan, Latvia, Lithuania, Montenegro, Poland, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, Ukraine Belarus, Estonia, Moldova Kyrgyz Republic, Mongolia Morocco, Republic of Kosovo

10% 6% 6% 78% Yes Yes with reservations No with reservations No In most countries, records are maintained and accessible through online publication. Advancement in IT has made it cheaper to gather and publish procurement records to a broader audience.

11

7. Does the public procurement law have specific confidentiality provisions?

Does the public procurement law contain specific requirements on confidentiality of information?

Yes

Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, FYR Macedonia, Hungary, Jordan, Kyrgyz Republic, Latvia, Lithuania, Moldova, Mongolia, Montenegro, Morocco, Poland, Republic of Kosovo, Romania, Russia, Serbia, Slovak Republic, Slovenia, Tajikistan, Tunisia, Turkey, Ukraine Yes with reservations No with reservations

No N/A

Georgia Egypt, Kazakhstan

3%6% 91% Yes Yes with reservations No with reservations In almost all jurisdictions, public procurement laws stipulate specific requirements on confidentiality of information in tender processes.

12

8. Is the reviews process accessible to SMEs?

Does the public procurement law stipulate that the remedies system be inexpensive?

Yes

Yes with reservations No with reservations

No N/A

Armenia, Egypt, Georgia, Kyrgyz Republic, Latvia, Moldova, Mongolia, Montenegro, Romania, Russia, Tunisia, Turkey Albania, Belarus, Bosnia and Herzegovina, Estonia, FYR Macedonia, Lithuania, Serbia, Slovenia, Tajikistan Georgia, Jordan, Kazakhstan, Poland, Slovak Republic, Ukraine Azerbaijan, Bulgaria, Hungary, Jordan, Morocco, Republic of Kosovo Croatia

19% 13% 3% 28% 37% Yes Yes with reservations No with reservations No N/A Procurement reviews and remedies system remains costly in many jurisdictions, restricting SME suppliers’ access to justice.

13

Conclusion

Review and remedies system should be affordable, timely, and effective

1. Administrative review is widely available but lacks due process procedures 2. Judicial review is not widely available and where available, often lacks suspension measures to effectively implement remedies 3. Public procurement decisions and actions are still largely insulated from public scrutiny because review and remedies system remains expensive for wide use 14

Contacts

For all further enquiries, please contact: Michel Nussbaumer

Chief Counsel Legal Transition Team Tel: +44 20 7338 7631 [email protected]

EBRD

One Exchange Square London, EC2A @JN United Kingdom www.ebrd.com

15