Public Procurement in Transition Countries

Report
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?
•
•
•
Cumulative business volume of €86 billion
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
100
90
80
70
•
60
•
•
•
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
€ Billion
Objectives
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
2011 UNCITRAL Model Law
Diagnostic
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
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
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
16%
84%
No with reservations
No
Yes
N/A
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
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
3%
16%
81%
No
N/A
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
Armenia
Yes with
reservations
Mongolia
Tajikistan
No with
reservations
Azerbaijan
Kyrgyz Republic
Moldova
14%
Assessment on Independence
3%
14%
16%
29%
43%
No
N/A
UNCITRAL on Impartiality
81%
Russian Federation
Yes
Yes with reservations
Even structurally independent review bodies
may not be impartial in practice.
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
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
13%
25%
3%
59%
Yes
Yes with reservations
No with reservations
No
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
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
9%
9%
10%
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
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
6% 3%
3%
88%
Yes
Yes with reservations
No with reservations
No
Remedial action is more widely available than monetary compensation as an
available remedy.
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Focus on CIS region: Suspension measures
Is the award procedure suspended?
Is the contract award suspended?
Yes
Armenia
Azerbaijan
Mongolia
Russian Federation
Yes
Armenia
Azerbaijan
Mongolia
Yes with reservations
Kyrgyz Republic
Moldova
Yes with reservations
Kyrgyz Republic
Moldova
No with reservations
No with reservations
No
No
Russian Federation
Tajikistan
Tajikistan
N/A
N/A
14%
Yes
29%
57%
29%
43%
Yes with reservations
No
28%
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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
6%
6%
10%
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.
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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
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.
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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
3%
19%
37%
13%
28%
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.
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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 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
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