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NEW EU PUBLIC PROCUREMENT DIRECTIVES –
IMPLEMENTATION IN POLAND – STATE OF PLAY
Better legal protection for EU financial interests in
Romanian public procurement
Dariusz Piasta,
Public procurement expert,
17 June 2015 Intercontinental Hotel, Bucharest Poland
Polish Public procurement Legal
Framework
 The Public Procurement Law (2004) based on EU
directives, both above and below EU thresholds,
procedures of awarding contracts, institutions,
review and remedies, public sector, utilities, defence
and security procurement
 The Concessions Law (2009) – works and services
concessions
 The Act on Public Private Partnership (2008)
 The Law on Public Finances
 Civil Code
Public procurement in Poland – general
„traits”
 Equal treatment of all economic operators but hardly
anyone satisfied about the access to public procurement
 Transparency – national publication as of 30,000 Euros
but plentiful exemptions both based on EU directives
plus some local specials (below the thresholds) – rules
are good but to be on safe side - let’s try to excuse
ourselves
 Public access to any information about public
procurement procedures („extreme” transparency)
 Principle of competition but lack of competiveness of
procedures
Public procurement in Poland– general
traits
 „a Scottish shower” - public procurement – a
root of all evil, a whipping boy or a panacea
for all malaise of this world? It is either
scathingly hot or freezingly cold….
 If you succeed – it is your obligation nothing
to be proud of – if you fail – you rightly take
a rap
 Lazy and inept procurement officers and
unscrupulous economic operators
New directives – common traits
 A seminal change – lack of words „coordination of”
– no more pretence that EU legislators do not aim
to harmonize public procurement rules but merely
try to coordinate rules at EU level
 Mostly mandatory rules – discretion of Member
States greatly reduced (lack of trust?)
 The new directives provide for „tool box” approach
(let’s hope it is not Pandora’s box) - a lot of
flexibility for purchasers but headache for national
monitoring and regulating authorities
New directives – common traits
Characteristic scheme of some new provisions:
a) Contracting authority may do a)
b) But the economic operator may do b)
c) Then the contracting authority must do c) unless it
transpires that:
d) occurs – then the economic operator may not rely
on action b)
New directives – common traits
Inclusion of CJEU case law, more legal certainty,
clear(?) rules but also new concepts which in turn
would require interpretation
More flexibility for contracting authorities but more
complicated procedures
Strengthening of the position of economic operators
to the detriment of contracting
authorities/entities – new tasks and obligations of
the latter
New directives – common traits
 Short time period for transposition of THREE directives:
18 April 2016 – the problem of „legislative fatigue” third big
procurement reform in the EU since 2007 (in Poland, no
single year since 2004 without transposing EU rules
(implementing new or correcting already implemented
provisions)
 Adoption of legal rules do not suffice – organisational,
administrative changes needed + change of approach and of
old habits
 Costs of implementation:
- Electronic solutions,
- New obligations of contracting authorities
New directives – traps for Polish authorities
electronic procurement
„new” criteria of award of contracts
new grounds for exclusion of economic
operators
self cleaning in practice
new obligations of contracting authorities
and concessions towards economic
operators
new exemptions (exclusions), with notable
example of „in house“
New directives – challenges of
transposition
- new concepts and terms
- general principles and clauses – could you be more
specific? Examples appreciated….
- this dreadful F – word* - you’d rather say what we can
or have to do – the law must be simple but precise (the
list of items to tick off in the process of awarding)
- risk of litigation – new EU/Polish rules a boon to
lawyers and experts – anything can be challenged and
probably will be…
* „F” is for „flexibility”
Approach toward transposition
New public procurement law for 2014/24 and 2014/25
directives + defence and security procurement, review
and remedies (as of national threshold 30,000 Euros,
New concessions law – 2014/23 directive but only above 5
mln Euros
Mostly copy out approach with certain „localisation ”
element (i.e. domestic legal traditions and habits)
+ unavoidable „gold plating”
Adoption of the draft by the government late spring or
early summer 2015; adoption - by the (new) Parliament
- 2015/2016 but speeding of the process cannot be
excluded
Institutional set up in Poland
Decentralized system of public procurement
Relevant institutions in the field of public procurement:
 Public Procurement Office – central government
regulatory and monitoring body
 Review: National Appeal Chamber – 1st instance
review body, common (district) courts – 2nd instance
review bodies
 Administrative courts – review bodies for
concessions
Monitoring of public procurement rules
The President of PPO conducts checks of:
- legality of contract award processes, i.e. a
conformity of contract award procedures with
provisions of PPL
- contract
award
procedures
from
their
commencement to the conclusion of a contract
(modifications of contracts as well),
- within 4 years after the conclusion of the contract
Checks are carried out on the premises of the Office.
Monitoring of public procurement rules
1. Obligatory ex ante checks (in case of contracts co financed with EU funds):
 = / > 10 mln euro for supplies and services,
 = / > 20 mln EUR for works,
2. Ad hoc checks (ex-ante and ex-post):
 at request,
 ex officio.