Presentation by Silviu-Cristian Popa, Romania (ENG) Second SIGMA Regional ENP East Conference on Public Procurement, Kyiv 29-30 May 2018

1. © OECD
Second SIGMA Regional ENP
EAST Conference on public
procurement
Requirements for an efficient and
independent review system
Silviu – Cristian POPA,
National Council for Solving Complaints - Romania
office@cnsc.ro
www.cnsc.ro
http://portal.cnsc.ro
Kyiv, Ukraine, 29 – 30 May 2018

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ROMANIA’s contribution to
the EU Digital Single Market
The remedies directives perspective
THE NATIONAL COUNCIL FOR SOLVING
COMPLAINTS (N.C.S.C.)
2006 – 2018
12 years of public procurement solving complaints

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EU directives on public procurement scope
To stimulate the economy and unlock
investment by four main strands:
Definition of priority areas for
improvement;
Voluntary ex-ante assessment of large
infrastructure projects;
Recommendation on
professionalization of public buyers;
Consultation on stimulating
innovation through public
procurement.

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Review procedures –
general EU requirements
• available at least to any person having
or having had an interest in obtaining
a particular contract;
• who has been or risks being harmed;
• ensure that effective and rapid
remedies are available;
• contracts which fall within the
personal and material scope of the
Directives.

5. AT: Austria
BE: Belgium
BG: Bulgaria
CY: Cyprus
CZ: Czech Republic
DE: Germany
DK: Denmark
EE: Estonia
EL: Greece
ES: Spain
FI: Finland
FR: France
HR: Croatia
HU: Hungary
IE: Ireland
IT: Italy
LT: Lithuania
LU: Luxembourg
LV: Latvia
MT: Malta
NL: Netherlands
PL: Poland
PT: Portugal
RO: Romania
SE: Sweden
SI: Slovenia
SK: Slovakia
UK: United Kingdom

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Current Romanian legal
framework
• National Public Procurement Strategy;
• Law 98/2016 on public procurement –
general guidelines on award;
• Law 99/2016 on procurement in water,
energy, transport and postal services;
• Law 100/2016 on concessions;
• Law 101/2016 on remedies, National
Council for Solving Complaints;
• details in secondary legislation level.

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RO institutional framework I
National Agency for Public Procurement:
• regulating (legislative) function;
• advisory and operational support;
• ex-ante (tender documentation,
evaluation process);
• ex-post verifications;
• monitoring;
• international representation.

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RO institutional framework II
National Council for Solving Complaints:
• non-judiciary institutional body;
• administrative body;
• first instance;
• fast track service of solving complaints;
• complaints against public procurement
procedures;

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N.C.S.C. FLOW CHART

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RO institutional framework III
Romanian Agency for Digital Agenda:
• under Ministry for Communication;
• operator of the Electronic System for
Public Procurement (ESPP);
Administrative branch of justice:
• county level courts;
• contentious-administrative sections;
• ex-ante/post phase;
Romanian Court of Accounts;
Competition Council.

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First instance review
National Council for Solving Complaints
(N.C.S.C.)
• purpose: guarantee compliance with
procurement legislation;
• roles: remediation; cancel illegal
procedures;
• independence: not subordinated;
• competence: annul documents, annul
awards, require measures.

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Second instance review
• Claims against NCSC decisions to be
submitted to the Court of Appeals
(contentious-administrative
sections);
• Designated court of appeal -
correlated with contracting
authority location;
• Court of appeal decisions: final,
conclusive, binding for all.

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N.C.S.C. solving complaints approach
• functioning, organization regulated;
• coherent application of legislation;
• expressly regulated principles:
legality, expediency, contradictory
procedure, right to defense;
• 11 specialized, three member panels;
• members: special status civil
servants, assigned by P.M. after
winning public contest.

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N.C.S.C. solving complaints approach
N.C.S.C. members’ professional profile:
• > nine years’ professional experience
• legal, technical, economic field
• > two years’ procurement experience
N.C.S.C. president:
• law degree
• chosen among members by secret,
absolute majority vote
• three years’ mandate.

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Some N.C.S.C. statistics
Aggregate complaints data:
(over 11 years)
- total no. of complaints: > 61,000
- total no. of decisions: > 58,000
Courts of Appeals reversal rate: 1.85%
NCSC’s “success rate” over 98%

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Compliance with the remedies law
Complaints submitted to the NCSC
are free of charge;
 Prior notification - Admissibility
conditions for complaints;
Suspensive effect – decision to
suspend the awarding procedure;
 N.C.S.C. procedure – written based.

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Elements of a complaint
•Relevant information (name of
complainant, name of the
contracting authority, contact
information);
• The object of a complaint;
•Burden of proof - the plaintiff
presents all the facts necessary for
the judgment.

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Timelines submitting a
complaint
JOUE threshold related:
10 days – above the threshold;
5 days – below the threshold;
Not submitted within the time
limits complaint is overdue.

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Timelines solving a complaint
General rule – within 20 working days
after tender file submission;
Common law legal exemption – 10
working days;
Claims against the N.C.S.C.’ s decisions
to be solved by Court of Appeals – 45
days.

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Subject matter jurisdiction
 Over the subject matter
described in the complaint only;
 No ex - officio legal competencies;
 Direct awards - decline
jurisdiction to the tribunal county.

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Redress current specific
topics
European Single Procurement
Document (ESPD);
 Prior notification;
 The unjustified refusal to
award the public procurement
contract in separate batches.

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Redress current specific
topics
Abnormally Low Tender Prices;
 Relying on third - party;
 Conflict of interests in public
procurement.

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The measures on the unification of
administrative and jurisdictional practice
•Inside N.C.S.C. – monthly plenum
review regarding different rulings on
similar cases (by law);
• Building case law - semestrial
common meetings with judges and
other key institutions
representatives (by law).

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N.C.S.C. portal
To ensure a user-friendly access to
N.C.S.C. case-law a portal been
developed;
 Best practices guide is available
on electronic format.

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Food for thought
More stringent rules against illegal direct
awards of public contracts – national courts
are able to render these contracts ineffective
if they have been illegally awarded without
transparency and prior competitive tendering
unless that is specifically permitted under the
directives.
Source: OECD (2016), “Corruption in Public
Procurement”.

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EU pilot supports for large
infrastructure projects
1. Helpdesk;
2. A voluntary notification
mechanism;
3. An information exchange
mechanism.

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EU review system
General assessment
1.Improve compliance with the
rules;
2.More effective competition for
public contracts;
3.Costs outweighing the benefits
of more competition.

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Lessons to be learned
Think outside the box;
 Design solutions within the
EU’s public procurement and
remedies directives legal
framework.
Cпасибі