Review and remedies procedure in practice – Experiences of Croatia

1. © OECD
A joint initiative of the OECD and the European Union, principally financed by the EU
Seventh IPA Regional
Public Procurement Conference
Review and remedies procedure in practice – Experiences of Croatia
Zoran Blažević, SIGMA expert, Croatia
Vlora, Albania
9 – 10 September 2014

2. A joint initiative of the OECD and the European Union, principally financed by the EU
Content
Main focus on:
•Public procurement cycle and legal protection.
•Impact of the PRB decisions on public procurement
- Croatian example.
•Distrust between parties in public procurement procedures.
•ECJ decisions and lessons learned.
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3. A joint initiative of the OECD and the European Union, principally financed by the EU
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Assessment of needs
Tender preparation
Selection of the bidder
Concluding of contract
Contract performance
Public procurement activity

4. A joint initiative of the OECD and the European Union, principally financed by the EU
Importance of the PRB decisions
•Transparent and efficient review system is precondition for development of public procurement system.
•Difference between public procurement contracts and classical civil contracts?
•Private sector is the second party in the public procurement with equal rights as public side.
•Role of the Courts is to ensure protection of the legal rights of all parties in the public procurement system. Judicial control over the PRB’s case law.
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5. A joint initiative of the OECD and the European Union, principally financed by the EU
State Commission for Supervision of Public Procurement (SC), Croatia – Legal practice
Main focus on:
•Question of professional and grave professional misconduct.
•Question of the evidence of suitability – administrative part.
•Clarification of the tenders after the opening date.
•Mixture of administrative procedure and civil legislation in review and remedies system.
•Confusion of private sector – which way to go?
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6. State Commission Case 1.
Minutes of examination and evaluation of tenders - additional note in which the contracting authority stated that after the public opening of tenders, he received anonymous letter in which there is a statement that the bidder XY committed professional misconduct in terms of termination of the contract by another contracting authority (CA).
Contracting authority requested a statement from CA, in terms of whether there was a such public contract and if the same contract was terminated, the reasons for doing so.
CA answers that the contract was terminated due to poor execution of contractual obligations (the bidder XY during the execution of the contract could not deliver certain items, knowing at the time of the bidding that the same products are no longer produced).
CA also notes that the tenderer has filed a lawsuit against the CA to Commercial Court and that the court dispute is in progress.
KLASA: UP/II-034-02/12-01/1531
URBROJ: 354-01/13-15
17 January 2013
•Decision is available at www.dkom.hr for free
download.
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7. A joint initiative of the OECD and the European Union, principally financed by the EU
ECJ C-465/11: Question of professional misconduct
•Concept of grave professional misconduct can be specified and explained in national legislation, provided that it has regard for EU law.
•‘Professional misconduct’ covers all wrongful conduct which has an impact on the professional credibility of the operator at issue and not only the violations of ethical standards in the strict sense of the profession to which that operator belongs, which are established by the disciplinary body of that profession or by a judgment which has the force of res judicata.
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8. A joint initiative of the OECD and the European Union, principally financed by the EU
ECJ C-465/11: Question of grave professional misconduct
•The failure of an economic operator to abide by its contractual obligations can, in principle, be considered as professional misconduct.
•The concept of ‘grave misconduct’ must be understood as normally referring to conduct by the economic operator at issue which denotes a wrongful intent or negligence of a certain gravity on its part. Accordingly, any incorrect, imprecise or defective performance of a contract or a part thereof could potentially demonstrate the limited professional competence of the economic operator at issue, but does not automatically amount to grave misconduct.
•In addition, in order to find whether ‘grave misconduct’ exists, a specific and individual assessment of the conduct of the economic operator concerned must, in principle, be carried out.
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9. State Commission Case 2.
The appellant states that the CA declared his bid as invalid contrary to the provisions of the PPL and ECJ verdicts.
From the Evaluation minutes it is evident, that the CA had asked awarded company for clarification and completion of the bid.
CA had requested form awarded company additional documents and certificates relating to specialist no. 8, while the bid of the appellant was declared as invalid precisely because of the same reason - lack of certificates for specialist under no. 8.
According to the appellant it was obvious that the CA had different criteria for the appellant and for the awarded company, thus this actions of the CA where not in line with the provisions of the Public Procurement Act.
KLASA: UP/II-034-02/14-01/567
URBROJ: 354-01/13-9
17 June 2014
•Decision is available at www.dkom.hr for free download.
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10. A joint initiative of the OECD and the European Union, principally financed by the EU
ECJ case: C-336/12
Ministeriet for Forskning, Innovation og Videregående Uddannelser vs Manova A/S, from 10 October 2013
•CA authority from the tenderer must request in writing clarification of the offer. Request for clarification regarding the offer, and which can be activated only after the CA is aware of all the deals, must in principle be equally entitled to all other tenderers who are in the same position, to prevent discrimination.
•requirement shall apply to all points of offers that should be clarified.
•CA is entitled to a discretionary decision on the need to seek clarification regarding the bids, however, is obliged to treat all tenderers equally.
•The CA, in fact, obliged to act strictly in accordance with the conditions, which are specified in the tender documents.
According to the Court, the CA may request in this way the data from the records, documents or amendments, but to a limited extent. For example if such request relates to the elements or data, such as, for instance: published balance sheet, whose existence is fixed, prior to the expiration of the period for submission of tenders, and can be objectively verified.
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11. A joint initiative of the OECD and the European Union, principally financed by the EU
Impact of PRB decisions
•On contracting authorities – tender preparation.
•On representatives of private sector – bid preparation.
•On Executive government – strategic planning and legislative amendments.
•On end users - lack of understandable information.
•Number of SC cases in 2012: 1676
•Value of SC cases in 2012: 1.520.467.000,00 EUR
•Number of cases in 2013: 2098
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12. State Commission Case 3.
The appellant states that in the process of evaluating the technical and professional ability, CA rated the reference of the awarded company as valid and fulfilling the conditions specified in tender documentation, although the individual references are not listed in the „List of references” which List was demanded by the tender documentation and PPL.
After examining the minutes of evaluation of tenders, it was found that the needed references of the proper fulfillment of contract A, B, and C where in accordance with the conditions from tender documentation. However, the awarded company did not submit a List of references.
Given that the public procurement is strictly formal, the references submitted in the bid without proper List of refrences, according to the SC represents the breach of the PPL. This decision is in line with the judgment of the Administrative Court, No. Us-11911 / 2008-5 of 21.04. 2011, thus appellant's allegation was well founded??
KLASA: UP/II-034-02/13-01/1014
URBROJ: 354-01/13-8
22 August 2013
•Decision is available at www.dkom.hr for free download.
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13. State Commission Case 4.
The appellant claims that the awarded company has failed to prove its financial capacity. Tender documents specified that in the purpose of proving financial capacity, official documents called: BON-2 or SOL-2, should be submitted and a tenderer with this evidence of suitability, must prove that in the last 6 months, from the date of the start of the procurement procedure, were not blocked and that there are no recorded liabilities for which there is no coverage on the business account…
The awarded tenderer submitted in the tender, BON-2 with date 18 March 2014
Public procurement procedure was published on 7 March 2014.
KLASA: UP/II-034-02/14-01/416
URBROJ: 354-01/14-9
16 May 2014
•Decision is available at www.dkom.hr for free download.
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14. A joint initiative of the OECD and the European Union, principally financed by the EU
Perception of public procurement
•Negative in most of the regional countries.
•Distrust between public and private sector is evident.
•Lack of integrity and missus of the remedies system.
•Delays in procurement procedure and execution of the contracts.
•How to change this behavior?
•How to create trust from the side of private sector and avoid distrust?
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15. How to avoid distrust – Major risks Independent PRB
Lack of experience, both in public as in private sector
Lack of financial independence
Lack of visibility of PRB’s work and clear channels of communication
Influence of the political structure
Increased administration in procedure Delays in procurement procedure

16. A joint initiative of the OECD and the European Union, principally financed by the EU
Internal organisation
•Necessary step for establishment of successful PRB institution.
•Update of the internal rules.
•Distribution of the cases – key question?
•Roles and responsibilities of people involved in the review process has to be clearly written.
•Rights and obligation of all parties in the procedure have to be clear and understandable.
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17. A joint initiative of the OECD and the European Union, principally financed by the EU
Final conclusion
•The review and remedies system has to provide speedy, effective and competent handling and resolution of complaints and sanctions, including comprehensive publication of judgments and their rationale.
•The review organisation should have capacity and capabilities to handle complaints and sanctions in accordance with the law and to ensure their effective and competent implementation.
•Data on the functioning of the remedies system should be published without delay.
•Transparency and independence of the institution has to respected.
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18. A joint initiative of the OECD and the European Union, principally financed by the EU
Time for….
Questions and comments ???

19. A joint initiative of the OECD and the European Union, principally financed by the EU
Thank you for your attention !
Zoran Blažević, LLB
Temporis Consulting Ltd, Croatia
E-mail: zoran@temporis.hr
Phone: + 385 98 406 393
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