public procurement in transition countries: major trends in provision of access to justice 16 july...
TRANSCRIPT
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
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€ B
illion
Cumulative business volume of €86 billion
Note: Unaudited as at 31 December 2013
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
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EBRD Assessments
2010 Public Procurement Sector Assessment
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
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, 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
Countries Surveyed
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1. Can challenges be brought before an administrative review body?
Is administrative review system available?Yes 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
Yes with reservations Jordan, Kyrgyz Republic, Latvia, Lithuania, Tunisia
No with reservations
No
N/A
84%
16%
Yes
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.
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2. Is the review body independent?
Is the reviewing body of procurement decisions independent?Yes 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
Yes with reservations Belarus, Georgia, Jordan, Morocco, Tunisia
No with reservations Kazakhstan
No
N/A
In most jurisdictions, public procurement law stipulates that the review system must be independent, especially from the contracting entity.
81%
16%3%
Yes
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Focus on CIS countries
Does the public procurement law ensure that the review procedure be impartial?
Yes Armenia
Yes with reservations
MongoliaTajikistan
No with reservations
AzerbaijanKyrgyz RepublicMoldova
No
N/A Russian Federation
Even structurally independent review bodies may not be impartial in practice.
81%
16%3%14%
29%43%
14%
Yes
Yes with reservations
No with reservations
N/A
UNCITRAL on Impartiality Assessment on Independence
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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 Albania, Bosnia and Herzegovina, Kyrgyz Republic, Moldova, Slovak Republic, Slovenia, Tunisia, Ukraine
No with reservations Estonia, FYR Macedonia, Latvia, Serbia
No Republic of Kosovo
N/A
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.
59%25%
13%3%
YesYes with reserva-tions
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4. Is monetary compensation available as a remedy?
Do the aggrieved complainants have a right to seek monetary compensation?
Yes 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
Yes with reservations Moldova, Russia, Slovak Republic
No with reservations Azerbaijan, Jordan, Ukraine
No Albania, Belarus, Tajikistan
N/A
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.
72%
9%
9%9%
YesYes with reservationsNo with reservationsNo
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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 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
Yes with reservations Croatia
No with reservations Georgia, Jordan
No Egypt
N/A
Remedial action is more widely available than monetary compensation as an available remedy.
88%
3%6%3%
YesYes with reservationsNo with reservationsNo
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Focus on CIS region: Suspension measures
Is the award procedure suspended?Yes Armenia
AzerbaijanMongoliaRussian Federation
Yes with reservations Kyrgyz RepublicMoldova
No with reservations
No Tajikistan
N/A
Is the contract award suspended? Yes Armenia
AzerbaijanMongolia
Yes with reservations Kyrgyz RepublicMoldova
No with reservations
No Russian FederationTajikistan
N/A
57%29%
14%
Yes
Yes with reservations
No
43%
29%
29%
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6. Are procurement proceeding records accessible?
Does the law require written records of the procurement proceedings to be maintained?
Yes 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
Yes with reservations Belarus, Estonia, Moldova
No with reservations Kyrgyz Republic, Mongolia
No Morocco, Republic of Kosovo
N/A
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.
78%
9%
6%6%
YesYes with reserva-tions
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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 Georgia
No with reservations Egypt, Kazakhstan
No
N/A
In almost all jurisdictions, public procurement laws stipulate specific requirements on confidentiality of information in tender processes.
91%
3%6%
Yes
Yes with reservations
No with reservations
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8. Is the reviews process accessible to SMEs?
Does the public procurement law stipulate that the remedies system be inexpensive?Yes Armenia, Egypt, Georgia, Kyrgyz Republic,
Latvia, Moldova, Mongolia, Montenegro, Romania, Russia, Tunisia, Turkey
Yes with reservations Albania, Belarus, Bosnia and Herzegovina, Estonia, FYR Macedonia, Lithuania, Serbia, Slovenia, Tajikistan
No with reservations Georgia, Jordan, Kazakhstan, Poland, Slovak Republic, Ukraine
No Azerbaijan, Bulgaria, Hungary, Jordan, Morocco, Republic of Kosovo
N/A Croatia
Procurement reviews and remedies system remains costly in many jurisdictions, restricting SME suppliers’ access to justice.
38%
28%
13%
19%3%
YesYes with reservationsNo with reservationsNoN/A
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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
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Contacts
For all further enquiries, please contact:
Michel NussbaumerChief CounselLegal Transition TeamTel: +44 20 7338 [email protected]
EBRDOne Exchange SquareLondon, EC2A @JNUnited Kingdomwww.ebrd.com