ROMANIA’s contribution to the EU Digital Single Market The remedies directives perspective THE NATIONAL COUNCIL FOR SOLVING COMPLAINTS (N.C.S.C.) Clear, accessible and competitive procurement Revision of the remedies directives – Remedies ensuring fair play in procurement Since 2006 An independent first instance public procurement review administrative jurisdictional body office@cnsc.ro www.cnsc.ro http://portal.cnsc.ro

Public procurement review body - facilitating access to a clear, accessible and competitive procurement ’’ According to the case law of the Court of Justice, the Member States should ensure that effective and rapid remedies are available against decisions taken by contracting authorities and contracting entities as to whether a particular contract falls within the personal and material scope of Directives 2004/18/EC and 2004/17/EC .’’  (DIRECTIVE 2007/66/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts) 2

Review procedures A leverage against collusive agreement in public procurement ’’ (122) Directive 89/665/EEC provides for certain review procedures to be available at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement of Union law in the field of public procurement or national rules transposing that law.’’ Directive 2014/24/EU - on public procurement and repealing Directive 2004/18/EC;

Review procedures A leverage against collusive agreement in public procurement ’’ 3. Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.’’ (DIRECTIVE 2007/66/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts)

The Romanian institutional system Background information Public procurement directives transposition: 4 laws - Each Directive having its own correspondent law; Transposition mechanism: The National Strategy on Public Procurement approved by G.D. no. 901 on October 27, 2015. 5

The Romanian institutional system Background information The National Agency for Public Procurement – regulating (legislative function) body, providing advisory and operational support, ex-ante (tender documentation and tenders’ evaluation process) and ex-post verifications, monitoring and international representation; The National Council for Solving Complaints – non-judiciary, administrative first instance solving complaints lodged against public procurement procedures; The Romanian Agency for Digital Agenda (Ministry for Communication) – operator of the Electronic System for Public Procurement (ESPP). 6

The Romanian institutional system Background information Administrative branch of justice: the courts at the level of each county/the contentious-administrative sections (Tribunal County) – ex-ante/post phase; The Romanian Court of Accounts/The Audit Authority; The Competition Council. 7

The Romanian review legal system N.C.S.C.’s jurisdiction: - to annul the action/administrative documents adversely affecting the complaint, to annul the awarding procedure, to require by law a contracting authority to take corrective measures; Claims against the N.C.S.C.’ s decisions are submitted to the Court of Appeals (the contentious-administrative sections); Designated court of appeal - correlated with the contracting authority location; Court of appeal decision is final, conclusive and binding for all parties involved. 8

N.C.S.C. Since 2006 - an independent first instance review administrative jurisdictional body ,,On the remedies side, the National Council for Solving Complaints (CNSC) receives complaints on public procurement. It acts as an efficient filter in preventing a substantial number of irregularities in public procurement procedures, both in the case of national and of European funded projects,,.  (COMMISSION STAFF WORKING DOCUMENT ROMANIA: Technical Report accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on Progress in Romania under the Co-operation and Verification mechanism SWD/2015/0008 final)

Aggregate complaints data – 10 years N.C.S.C. Since 2006 - an independent first instance review administrative jurisdictional body Aggregate complaints data – 10 years - no. of panels: 11 - total no. of complaints: > 56,000 - total no. of decisions: > 53,000 - Courts of Appeals reversal rate % - approx. 1.85 = N.C.S.C.’s over 98% successfully rate 10

Evolution of complaints during 2006 - 2016

The National Council for Solving Complaints (N. C. S. C The National Council for Solving Complaints (N.C.S.C.) – First instance review body N.C.S.C. is an administrative – jurisdictional body created with the purpose of guaranteeing the compliance with the public procurement legislation by the contracting authorities, due to its primary role of remediation and, subsidiary, of canceling the illegal designation procedures. N.C.S.C. has the independence required to the performance of the administrative – jurisdictional act, not being subordinated to any authority or public institution. Current law - Law no. 101/2016 - on remedies and review procedures concerning the award of public procurement contracts, utilities contracts and works and services concession contracts, and the organization and functioning of the National Council for Solving Complaints; The  law as harmonized with DIRECTIVE 2007/66/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts;

N.C.S.C. Structure (I) N.C.S.C. functions on the basis of its own Organization and Functioning Regulation approved by the G.D. no. 1037/2011 Exercising its attributions, N.C.S.C. adopts decisions, based on the coherent application of the legislation in force, according to the expressly regulated principles of: legality, expediency, contradictory and the right to a defense.

N.C.S.C. Structure (II) N.C.S.C. solves complaints through specialized 3-member panels (11 panels); N.C.S.C.’ s members are civil servants (special status) assigned by the Prime Minister decision, based on winning a public contest; Members’ professional profile: at least 9 years experience in legal, technical, economical field and two years public procurement experience; The president is chosen among the members of the N.C.S.C., on a three years period, by secret vote, with an absolute majority and must hold a law license degree.

Elements of a complaint (I) Name of complainant – relevant information; Name of the party complained of – contracting authority (contact information); The object of public procurement contract, public procurement procedure involved, tender notification; A brief description of the document giving rise to the complaint.

Elements of a complaint (II) The object of a complaint; Provide a written submission setting out, in detail, the complainant’s cause for the complaint, how it arose, the parties involved, relevant dates/legal grounds and any other relevant information, signature; Burden of proof - the plaintiff presents all the facts necessary for the judgement.

Lodging a complaint – Procedural aspects Complaints submitted to the NCSC are free of charge; Complaints submitted to the tribunal county – fee - % out of estimated value/contract value; Interim measures – bond deposit/Court only.

Lodging a complaint – Procedural aspects (I) Prior notification - Admissibility conditions for complaints; Suspensive effect – decision to suspend the awarding procedure; Review of the suspension request – within 3 days upon request.

Lodging a complaint – Procedural aspects (II) Data file protection – Access to information held in complaint files - confidential information not disclosed; Joining to the ongoing case – The intervenor - Basic rationale for intervention is that a judgment may affect the rights; N.C.S.C. procedure – written based; Oral hearings – the exception.

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

Time frame for solving complaints N.C.S.C. & Need for speed General rule – solving complaints within 20 days after tender file submission; Exception – 10 days extension; Claims against the N.C.S.C.’ s decisions to be solved by Court of Appeals – 45 days.

Subject matter jurisdiction – N.C.S.C. Over the subject matter described in the complaint only; No ex officio legal competencies; Direct awards - decline jurisdiction to the tribunal county In case more action needed - The National Agency for Public Procurement/Court of accounts to be informed.

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

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

Building public procurement capacity SIGMA Paper No Building public procurement capacity SIGMA Paper No. 30 - Public Procurement Review Procedures (SIGMA - A JOINT INITIATIVE OF THE OECD AND THE EUROPEAN UNION, PRINCIPALLY FINANCED BY THE EUROPEAN UNION’S PHARE PROGRAMME) ,,How well a review system works in practice depends greatly on how much training in public procurement, of the required quality, is given to relevant officials and contractors as well as to the others involved (e.g. – supervisors, councilors, judges)’’.

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); For binding plenum decision – subject matter report to be debated and voted off (by law); Building case law - semestrial common meetings with judges and other key institutions representatives (by law); Conclusions of the seminars are publicly displayed on N.C.S.C.’s portal (Romanian language only).

N.C.S.C. portal To ensure a user-friendly access to N.C.S.C. case law a portal been developed; In order to outline a specific case law filters are used to search on the portal; Search by (e.g): decision number, complaint number, plaintiff, contracting authority, date; Best practices guide is available on electronic format.

Public procurement – Knowledge sharing Technical report accompanying the document Report from the Commission to the European Parliament ant the Council on Progress in Romania under the Co-operation and Verification Mechanism ,,N.C.S.C. is an administrative judicial body dealing with complaints in public procurement. The N.C.S.C. portal was continuously developed in the last three years and is now recognized as a useful tool for public procurement practitioners’’ – http://portal.cnsc.ro. ,,At the end of November, a seminar on public procurement case law was organized by the National Council for Solving Complaints (N.C.S.C.) and the Bucharest Court of Appeal bringing together judges, representatives from public key institutions, Ministries and the Public Ministry’’.

N.C.S.C. Perfect competition – No complaints ?

Final remarks Think outside the box but design solutions within the EU’s public procurement and remedies directives legal framework.