Presentation by Gheorghe Cazan for SIGMA public procurement workshop in Moldova 9 June 2014

1. © OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Public procurement system –
Institutional set-up and practice
Roles and responsibilities of key institutions in
public procurement
Gheorghe Cazan, Roumania
Chisinau, 9 June 2014
Leogrand Hotel

2. General Approach
The following features characterise a sound and efficient public procurement
system:
• National legislation in compliance with international requirements and appropriate
procurement policies and rules on the effective, efficient and proper use of public
resources.
• Information-gathering systems that enable the public procurement system to provide
information on the state of public procurement.
• Clear strategies and policies for the allocation of responsibilities and structures for
public procurement decision making, for accountability of public expenditure, for
increasing efficiency, and for combating fraud and corruption.

3. General Approach
• Well-developed central structures and sufficient administrative capacity for the
effective implementation of laws and other national policies, including the
preparation and dissemination of information, and for the provision of guidance and
training for stakeholders in the system.
• Review systems capable of providing rapid and effective remedies.
• Appropriate means for monitoring the effectiveness of the policy and legal framework
of the system
• Professionalisation of the procurement function at all levels throughout the public
sector.

4. Key Central
Public Procurement Functions
To make the public procurement system work at all levels, a set of functions needs to be
performed at the central (or regional) level.
The Member States of the European Union generally establish central organisational
structures to carry out functions related to the public procurement system as a whole.
The practical experience of recent EU Member States and EU candidate countries proves
that a key challenge in the procurement reform process, along with the reform of the
legal component, is the issue of how to best organise the central organisational
structure for the co-ordination, implementation and monitoring of public procurement.

5. Key Central
Public Procurement Functions
Core functions
- regulated by national law, often in direct response to obligations connected to
membership in the European Union
• Primary policy and legislative functions
Designated bodies at the government level have the task of developing fundamental
procurement policies aimed at setting the overall legal framework for public procurement
operations.
The most important function is to prepare and draft primary public procurement
legislation.
Other tasks commonly assigned:
• to lead the working group in the drafting process;
• to organise the consultation process with the main stakeholders in the procurement
system
• to take part in other legislative activity of relevance to public procurement.

6. Key Central
Public Procurement Functions
• Secondary policy and regulatory functions
• International co-ordination functions (EU, WTO, PPN)
• Monitoring and compliance assessment functions
• preparation of an annual report to the Government or the Parliament on the functioning of the
national public procurement system;
• collection of statistical and other information;
• auditing, control, inspections, checking of legal compliance;
• initiation of proceedings for judicial review in courts of law for violations of public procurement
law;
• where applicable, management of an official list of certified economic operators and/or
certified procurement officers.

7. Key Central
Public Procurement Functions
Supplementary functions
They are not attributed as an obligation under law for EU Member States
• Advisory and operations support functions
• organisation of a help desk function to provide legal and professional support to purchasers and
economic operators on a daily basis;
• development of guidance systems and operational tools for managing all phases of the
procurement process, e.g. methodologies for tender evaluation;
• issuance of publications, commentaries and interpretative communications on various aspects of
public procurement.
• Publication and information functions

8. Key Central
Public Procurement Functions
• Professionalization and capacity strengthening functions
• Development and procurement co-ordination functions
• co-ordination and support of concessions and PPP projects
• introduction of systems for performance measurement of public procurement,
• development of procurement techniques, such as performance-based technical
specifications.
• establishment of electronic procurement system(s), by providing the electronic
platform to be used by contracting authorities.
• inclusion of social, environmental and innovative aspects in the public procurement
process

9. Review and Remedies System
• Review function must not be combined with other key central public
procurement functions
• Main objectives of the review and remedies system:
- To enforce the practical application of public procurement legislation
- To ensure that violations of the legislation and intentional or unintentional
mistakes of contracting authorities can be corrected

10. Review and Remedies System
• The review and remedies systems of EU Member States have to be
established and developed on the basis of the specific requirements of the:
• EU Public Procurement Remedies Directives 89/665/EEC and 92/13/EEC, amended by
the Remedies Directive 2007/66/EC,
• Treaty on the functioning of the European Union, and
• Case law of the Court of Justice of the European Union (CJEU).
Such a system has to provide aggrieved tenderers and candidates with remedies, which
must be:
• Rapid;
• Effective;
• Transparent;
• Non-discriminatory.

11. Review and Remedies System
Options:
• Regular courts
• Specialised administrative bodies
• A combination of the two (e.g. complaints involving damages can be
reviewed in the regular courts, while a specialised procurement review
body may review complaints that do not involve damages)

12. Judicial Character of a Review Body
Conditions:
1. The body is established by law
The legal provisions should regulate various aspects ensuring the functionality of
the body, including for example provisions concerning the:
- review body’s competences,
- appointment and dismissal of its members
- qualifications required of the review body’s members
- conflict-of-interest
- predetermined system for the distribution of cases
- procedural requirements

13. Judicial Character of a Review Body
2. The body is permanent
The body is not established on an ad hoc basis. Its members remain in their position for a
determined number of years.
This requirement does not exclude the possibility of having several panels within the review
body dealing with cases according to a predetermined distribution system.
3. The body’s jurisdiction is compulsory
Any decision made by the review body has to be enforceable.
- Impose interim measures, with the aim of correcting the infringement or preventing further
damage, including measures to suspend or ensure the suspension of the tender procedure or the
implementation of any decision taken by the contracting authority;
- Set aside or ensure the setting aside of any decision taken unlawfully, including the removal of
discriminatory technical, economic or financial specifications in the tender notice or in tender
documentation.

14. Judicial Character of a Review Body
4. The procedure before the review body is between the parties (inter partes)
- All interested parties are given an adequate opportunity to present the facts and evidence, and
each party should have the right to respond or to challenge all evidence and arguments
presented by the other party
- Oral hearings (an acceptable alternative is to allow the parties to submit written statements
during the review procedure)
- Both parties must have access to the review proceedings file, with the exception of confidential
information
5. The body applies the rules of law
6. The body is independent
The main principle is that the review body carries out its task independently and under its own
responsibility, and that its members are subject only to observance of the law

15. Practical Issues
 The capacities of the review body have to be adequate
Staff size
• Range of tasks assigned to the review body
• Number of contracting authorities in the country
• Review culture, including local mentality and propensity of economic operators to file
complaints against the decisions of contracting authorities
• Time limits provided in the law for deciding on the dispute
• Number of members of the review body that, according to the law, have to deal with
each case
• Support that can be offered to the members of the review body by the technical and
administrative staff of the institution

16. Practical Issues
Educational background of the staff
Members must not only have a good knowledge of public procurement matters but
must also be capable of assessing evidence and drafting substantiated decisions
Training is a must !
 The independence of the review body have to be ensured

17. Practical Issues
 Clear and detailed norms should be established in the legislation
- Procedural requirements and rules for the review process
- The way of allocating cases among the members of the review body (random distribution is
probably the best choice)
- The means of avoiding conflicts of interest
- The qualifications required to become a member (studies, experience, knowledge and other
specific skills)
- Maximum deadlines for the decisions of the review body
- Panels or not?
- The review body shall exclusively investigate the pleas presented by the economic operators or it
should be better to investigate the entire file?

18. Practical Issues
 Access to remedies should be open to all economic operators without
discrimination
- On grounds of nationality
- Fees to be paid
- Time limits for submission of complaints
- Evidence to be presented
All the above mentioned aspects must not render the exercise of rights conferred by law
impossible or excessively difficult!

19. Practical Issues
 Transparency of the decisions
- clear and transparent procedures in order to ensure the coherent application of
the law
- each party should have the right to be informed of the development of the
proceedings, so as to enable them to adequately prepare their arguments
- the parties should be informed of the reasons for the review body’s decision,
including the arguments that determined the evaluation of the evidence and the
considerations of legal issues that were relevant to the decision
Also:
- Publication of the review body’s decisions on its website
- Database of decisions, including search facilities

20. Thank you
for your attention