First instance review in Slovenia Budapest 14 November

First instance review in Slovenia Budapest, 14 November 2017

PUBLIC PROCUREMENT IN SLOVENIA IN NUMBERS • Slovene GDP in 2016: 39, 4 billion EUR • PP Contracts Value in 2016: 3, 91 billion EUR = 9, 8 % of GDP • Number of contracting authorities: app. 3000

PUBLIC PROCUREMENT IN SLOVENIA IN NUMBERS PP above the (national) thresholds PP below the (national) thresholds Total including VAT 2016 Number of contracts Contracts value 5. 851 2. 361. 293. 513 1. 076. 939 969. 567. 949 1. 082. 790 3. 330. 861. 462 3. 912. 762. 959

PUBLIC PROCUREMENT IN SLOVENIA IN NUMBERS National PP thresholds amounts Classical Sector Utilities Sector Public supply and service contracts Public works contracts 20. 000 EUR 50. 000 EUR 40. 000 EUR 100. 000 EUR Public service contracts for social and other specific services 750. 000 EUR 1. 000 EUR

PUBLIC PROCUREMENT IN SLOVENIA IN NUMBERS Selected PP procedure Small value procurement Open procedure Negotiated procedure without publication Negotiated procedure 187, 4% 19, 0% 4, 0% 1078, 21% Restricted proceudre Competitive dialogue Tender collection procedure Design contests 1183, 23% 2650; [SZÁZALÉK] 1, 0%

NATIONAL LEGISLATION 1. Public Procurement Act (ZJN-3) 2. Public Procurement for Defence and Security Act (ZJNPOV) 3. Public-Private Partnership Act (ZJZP) 4. Legal Protection in Public Procurement Procedures Act (ZPVPJN) 5. Civil Procedure Act (ZPP – subsidiary use) 6. Minor Offences Act (ZP-1)

PUBLIC PROCUREMENT PORTAL (http: //www. enarocanje. si/)

STATUS OF THE NRC Ø a specialized, independent, professional, expert state institution Ø legal protection at all procedural levels of the award of public contracts Ø not acting as a formal court, but it fulfils all the requirements for a tribunal according to the Court of Justice of European Union 53 , 233 bz hz 1 h+šhš hhšhšš štšš - established by Law permanent, independent applies rules of Law its jurisdiction is compulsory inter-partes procedures (ECJ case C-296/15 - Medisanus)

ESTABLISHMENT Commission competent for reviewing public procurement award procedures National Review Commission LEGAL BASIS Public Procurement Act 1997 – 1999 Auditing of Public Procedures Act, 1999 Procurement Legal Protection in Public Procurement Procedures Act, 2011 + 3 amendments Rules of Procedures Public Procurement Act

ORGANIZATION OF THE NRC Adviser to the President PRESIDENT OF THE NRC MAIN ACTIVITES 4 MEMBERS OF THE NRC SUPPORT ACTIVITES (one is a Deputy-President of the NRC) Advisers and Senior advisers Head of cabinet of the President Head of the register Secretary of the NRC Legal Secretary Administrator

MEMBERS OF THE NRC - - appointed by the National Assembly on the proposal of its committee, responsible for terms of office and elections, eight year period of office, status of state officials, general conditions for judges apply (age, personal competence…); president and two members shall be educated in the field of law, while two other members shall be educated in other fields; the president must fulfil the additional requirement of passing the state judicial exam (bar exam); president and members shall have at least six years of experience in the field of public procurement.

ADVISERS TO THE NRC - The NRC currently employs 13 advisers, all lawyers, - 10 advisers work on review procedures, 3 on minor offence procedures, - Status of civil servants.

REVIEW OF PUBLIC PROCUREMENT AWARD PROCEDURE Two - stage procedure: 1. Before the Contracting Authority (pre-review procedure) 2. Before the National Review Commission (review procedure) + lawsuit for annulment of contract (regular civil court)

REVIEW OF PUBLIC PROCUREMENT AWARD PROCEDURE 1. Before the Contracting Authority a) capacity to initiate proceedings: • each person having interest in being awarded a public contract, • who suffer or could suffer damages due to the alleged infringement + representatives of public interest: Ø Ministry of public administration (PPA), Ø Court of Audit, Ø Commission for protection of competition, Ø Commission for prevention of corruption. b) admissibility of legal protection: • a review claim may be lodged during all stages of the procedure and against each action of the contracting authority

REVIEW OF PUBLIC PROCUREMENT AWARD PROCEDURE c) contents of a review claim (among other): • alleged infringements, • facts and evidence proving the infringements, • proof of paying the procedural fee: Ø 1. 500 EUR – 7. 000 EUR - if the review claim is lodged against the contents of a call, an invitation to submit a tender or tender documentation, Ø 2% of the value of the selected tender (not less than 500 EUR, not more than 25. 000 EUR) - if the review claim refers to a decision on awarding of a contract.

REVIEW OF PUBLIC PROCUREMENT AWARD PROCEDURE d) time limits for submitting a review claim: • Review claims against a call for tenders/tender documentation: Ø 8 working days from publishing a call for tenders/availability of complete documentation, Ø not possible after the time limit to receive tenders has expired (with exceptions). • Review claims against decision on awarding of a contract: Ø 8 working days from publishing the decission on the Public Procurement Portal • Review claims in small value procurement procedures: Ø 5 working days

REVIEW OF PUBLIC PROCUREMENT AWARD PROCEDURE e) Consequences of the submitted review claim • ex lege suspension effect only as regards to concluding of the contract, • Possibility of issuing interim measures by the NRC: Ø allowing conclusion of the contract; Ø stoping further activities of the contracting authority f) Contracting authority‘s decision: • Decision on rejection of the review claim as unfounded, • Decision on adoption of the review claim and partially/completely annulling the procedure Deadline for adopting a decision: 8 working days

REVIEW OF PUBLIC PROCUREMENT AWARD PROCEDURE 2. Before the National Review Commission Ø no direct approach, the NRC cannot commence a review procedure on its own, Ø when the contracting authority rejects the review claim it has to deliver the entire documentation to the NRC (3 WD); the review procedure starts automatically upon receiving of the documentation,

SENATE AND ADVISERS Senate of three Members / Individual member in case of appeal natural judge principle, varies Advisers appointed for each specific case, rotation system

NATIONAL REVIEW COMMISSIONS‘ DECISION Request is rejected as unsubstantitated/inadmissible Request is sustained, procedure invalidated Ø Within the limits of the review claims Ø subsidiary use of the civil procedures act, Ø competence of an appelate body / but can advise Ø 15 working days (+ 15 working days) = instructive time limits Ø transparency of work – all decisions published on the webpages of the NRC Ø no legal remedies (claim for damages)

EFFICIENCY OF THE SYSTEM

STATISTICAL DATA • 300 - 400 review procedures per year (5 % of all PPP), • 1/4 of review claims filed against call for tender (tender documentation), 3/4 filed against decision on awarding of the contract; • 30 -40 % of review claims are sustained.

MOST COMMON INFRINGEMENTS Discriminatory technical specifications, Suitability criteria (past performance…) Selection criteria, Abnormally low tenders, Tender guarantee…

Thank you for your attention! borut. smrdel@dkom. si