2nd SIGMA NETWORKING SEMINAR

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2nd SIGMA NETWORKING SEMINAR

• OECD Conference CentreParis 27-28 November 2008

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Strengthening Integrity ofPublic
ProcurementCommission perspective

• olivier.moreau_at_ec.europa.eu
• Unit C1
• Economic and International Dimension of Public
  Procurement
• e-Procurement

http//europa.eu.int/comm/internal_market/publicpr
ocurement
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• EU procurement legislation past and present
• Importance for the Candidate Countries to the EU
• the potential Candidates
• the Neighbour
  Countries
• Creating a compliant procurement system
• How do SIGMA help, how do we collaborate?

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EU procurement legislation past

• Global objective opening up of the Internal
  Market through coordination of national
  procurement rules and practices
• Beginnings 1969 (practices outlawed by the
  Treaty)
• First legislative coordination 1970s (works,
  supplies)
• Limited number of obligations on competition,
  transparency
• Limited scope
• Completion of the legislative framework
  1989-1993
• Priority of the internal market policy (1985
  White Paper)
• Amendements, new directives (services, utilities,
  remedies)
• Consolidation 1993 (works, services, supplies)
• Detailed rules (scope, specifications,
  advertising, procedures, selection and award
  criteria, review)

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EU procurement legislation present

• 2004 directives (procedures for awarding
  contracts)
• Reflect structural and technological progress of
  procurement practices
• Provide a framework for modernisation
• Improve overall comprehensiveness of the system
• 2007 revision of the Remedies directives
• Improving the effectiveness of pre-contractual
  Remedies in formal award procedures through the
  provision of a standstill obligation
• Providing for effective Remedies against the
  practice of illegal direct award of public
  contracts
• 2008 Defense procurement
• Adoption of Directive in progress

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Importance for the CCs and Neighbours

• Accession Process the EUs policy framework for
  the Western Balkan countries, all the way to
  their eventual accession
• Prospect of future membership importance of
  harmonisation
• Stabilisation and Association Agreements
• Gradual legislative alignment, focus on
  fundamental elements of the Internal Market
  acquis
• Access to procurement markets (may be conditional
  on alignment in certain fields)
• In the interest of the countries
• Guaranteeing best value for money
• Paving the way for the modernisation of the
  procurement system
• Meeting international standards by adopting a GPA
  compliant PP system

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Creating a compliant procurement system

• Key elements
• Alignment/enactment of primary legislation
  (Public Procurement Act, Concessions Act,
  sectorial acts)
• Systematic publication of tender notices
• Adoption/adjustment of secondary acts
• Provision of operational tools (guidelines,
  sample contracts)
• Development of administrative capacities
  (headquarters, review bodies, main purchasers)
• Our experiences in the context of Enlargement
• Main risks lack of continuity, coherence and
  comprehensiveness, application and enforcement
  problems, last-minute reforms
• Importance of a global strategy covering all
  aspects of public expenditure management at an
  early stage

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National legislation
THE PRINCIPLES OF THE EC TREATY (e.g.
transparency, non-discrimination, equal treatment)

• Secondary EC legislation
• Utilities Directive 2004/17/EC
• Classical Directive 2004/18/EC
• Review Directive I. 89/665/EC
• (amended by 2007/66/EC)
• Review Directive II. 92/13/EC
• (amended by 2007/66/EC)
• Standard forms Regulation 1564/2005
• CPV Regulation 213/2008

transposition
Out of the scope of the Directives
direct application
The EC thresholds
Under the EC thresholds
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Detailed rules on the institutional background
Detailed rules on the conduct of review
procedures
Detailed rules on the conduct of the
award procedure

• Secondary EC legislation on
• public procurement
• coordinates national legislations
• above the EU thresholds
• regulates those parts and rules of
• the procedure which are essential
• for the application of the principles
• So it does not regulate issues such as

Detailed rules on the award of concessions
The planning and preparation of procurement
Terms and conclusion of the procurement contract
Bid security
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Our working methods General aspects of
assessment

• What is at stake?
• A well functioning, complete and sound
  procurement system
• Our contribution?
• - Providing explanations, recommendations and
  legal assistance to the national administration

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Our working methods General aspects of
assessment (II)

• Incorporation of the relevant procurement rules
• the basic principles of the EC Treaty
• the relevant EC Directives
• the relevant case-law of the ECJ
• the soft law of the EC on the acquis
• Consistency with the EU-partner country agreement
  PP provisions (when applicable)

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Our working methods General aspects of
assessment (III)

• All kind of procedure to comply with the Treaty
• Above the thresholds according to the rules
  describes in the PP Directives
• Below the thresholds proper solutions compliant
  to the relevant principles
• Level of requirement according to the status of
  the partner country
• Progress assessed within the whole spectrum of
  legal texts
• For institutional building, according to
  experience, in the absence of precise
  requirements in the acquis.

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Our working methods Sequencing of the informal
assessment of draft legislation

• Meeting the consultant to discuss the planned
  legislation with special regard to its relevance
  to legal approximation
• Prepare a draft text to be discussed with the
  consultant
• Redraft it according to the consultant's eventual
  comments
• Re-discuss it with the consultant
• Submit the "final" draft to the Commission for
  comments
• Discuss the text with the consultant in the light
  of the Commission's comments and redraft it (if
  necessary).

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Our working methods Building implementing
capacity on the ground

• Last year meeting, the motto was Back to basics
• Yesterday we heard Institutions matters, stupid!
• What about Public Procurement?

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Systemic approach of the opening benchmarks

• Based on experience, it aims at real
  sustainability of the system
• A complete Legislative framework
• Phasing out of domestic preferences
• Effective review procedures
• Central organisation for consistency
• Comprehensive national strategy and timetable

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How do we co-operate, on a daily basis?

• Assistance by DG Internal Market and Services
  (mainly from Brussels)
• Assistance in the interpretation and
  implementation of the EU procurement legislation,
  
• Organisation of bilateral expert meetings,
• Contribution to seminars and conferences,
• Support for the elaboration of national
  strategies,
• Help in the targeting of external assistance.
• Assistance by SIGMA (on the ground)
• Advice on reforms, design and implementation of
  strategic development plans
• Peer reviews/assistance
• Analysis and assessment of legal frameworks,
  methodologies, systems and institutions
• Training
• Methodological, technical and strategic input to
  optimise Commission assistance
• Support to networks, upon the request of the
  Commission
• Drafting of handbooks and other reference
  materials.