Towards improvement: Institution of appeal in public procurement – topical procedural and evidentiary issues Kyiv, April , 2012 Oleksandr Voznyuk EU-funded Project “Harmonisation of Competition and Public Procurement Systems in Ukraine with EU Standards”

Principles of appeal procedure Directive 89/665 (as amended by Directive 2007/66) Accessibility Efficiency Promptness Independency Adversarial principle Binding decisions Judicial control

Accessibility Directive 89/665, Article 1, §3 - the review procedures are available, under detailed rules, - to any person having or having had an interest in obtaining a contract and who has been or risks being harmed by an alleged infringement

Determination of lawful interest and subject of complaint Amendment proposed to Article 1: “29) A complainant – an individual or a legal entity which has applied to the complaint review authority for the protection of his/her/its rights with regard to his/her/its participation in the procurement procedure and conclusion of a procurement contract due to a procuring entity’s unlawful decision, action or omission violating such rights” or Subparagraph 29) should be deleted since the Law contains similar provisions

Amendment proposed to the first and second paragraphs of Article 8, Part 3: “For the purposes of unbiased and efficient protection of rights of persons involved in the procurement procedure and conclusion of a procurement contract, the Antimonopoly Committee of Ukraine, acting as the complaint review authority, shall establish a standing administrative board which will review public procurement complaints. Decisions of the standing administrative board shall be made on behalf of the Antimonopoly Committee of Ukraine The standing administrative board of the Antimonopoly Committee of Ukraine which will review public procurement complaints shall comprise three state commissioners of the Antimonopoly Committee of Ukraine. The Chairman of the standing administrative board of the Antimonopoly Committee of Ukraine shall have higher education in law” Determination of lawful interest and subject of complaint Directive 89/665, Article 1, §3

Amendment proposed to the fifth and seventh subparagraphs of Article 18, Part One: “reasons for which a complaint is lodged: a reference to procuring entity’s actions or omission; explanations how such procuring entity’s decisions, actions or omission violate compainant’s rights with regard to its participation in the procurement procedure and conclusion of a procurement contract; factual circumstances that may confirm the above; date when such decisions, actions or omission came to the complainant’s knowledge” “The complaint shall be accompanied by documents (if any) confirming the unlawfulness of procuring entity’s decisions, actions or omission” Determination of lawful interest and subject of complaint Directive 89/665, Article 1, §3

Amendment proposed to Article 18, Part Two: “2. A person shall be entitled to lodge a complaint only against a procuring entity’s decision, actions or omission which violate such person’s rights with regard to participation in the procurement procedure and conclusion of a procurement contract” Amendment proposed to the twentieth subparagraph, Article 18, Part Four: “to make decisions whether the procurement procedure violation exists or not and whether to satisfy or reject a complaint, on measures to be taken to cure such violations, specifically, to cause a procuring entity to cancel its decisions either in full or in part, to submit the required documents, to eliminate any discriminatory conditions (including those described in the technical specification incorporated to the competitive bidding documents) or, when it is impossible to cure the committed violations, to cancel the procurement procedure” Amendment proposed to the thirtieth subparagraph, Article 18, Part Four: “the conclusion on the existence or absence of violation of complainant’s rights” Determination of lawful interest and subject of complaint Directive 89/665, Article 2 §1

Amendment proposed to Article 42: “A procurement contract shall be null and void if a notice of procurement procedure has not been made public, if such contact is concluded during the period of appealing against the procurement procedure pursuant to Article 18 of this Law and in case such contract is entered into in violation of the timeframe specified in paragraphs three and four of Part Two of Article 31, paragraph four of Part Five of Article 36 and paragraph one of Part Three of Article 39 of this Law” Determination of lawful interest and subject of complaint Directive 89/665, Article 2 d, § 1 a)

Adversarial principle under the Law Complainant Article 18, Part One: The complaint shall contain: reasons for which a complaint is lodged, a reference to violations of the procurement procedure or to procuring entity’s decisions, actions or omission, factual circumstances that may confirm the above, the date when such decisions, actions or omission came to the complainant’s knowledge complainant’s claims and justification thereof while lodging a complaint, a complainant shall send a copy of a complaint to the procuring entity the complaint review authority shall notify the complainant and the procuring entity when and where the complaint is to be reviewed the complainant shall be entitled to take part in the complaint review procedure

Procuring entity Twenty-third subparagraph of Article 18, Part Four: must send the relevant information … within three days upon receipt of the relevant request the complaint review authority shall notify the complainant and the procuring entity when and where the complaint is to be reviewed the procuring entity shall be entitled to take part in the complaint review procedure Adversarial principle under the Law

Complaint review authority if the procuring entity fails to provide information within the prescribed timeframe, the complaint review authority shall review the complaint and shall make its decision thereon within the scope of information available on such complaint the complaint review authority shall be entitled to request and receive the relevant information from procuring entities, participants, controlling bodies and other parties the complaint review authority shall be entitled to involve representatives of state authorities (in agreement with chief officials of state authorities), experts and specialists … for impartial review of the complaint in order to receive consultations and expert conclusions in writing if the complaint has been satisfied, there should be a complaint review authority’s conclusion on satisfaction of the complaint in full or in part Adversarial principle under the Law

Administrative bodies: principles of operation Rule of law principle Principle of rule-of-law state European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 Recommendation Rec (2007) 7 of the Council of Europe Committee of Ministers with regard to efficient management; Recommendation R (91) 1 of the Council of Europe Committee of Ministers with regard to administrative sanctions lawfulness efficiency equality (non-discrimination) impartiality proportionality transparency measures to be taken within a reasonable time right to be heard right to complain (appeal) through a court

Principles laid down by ECHR standards Rule of law principle Principle of rule-of-law state European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 Right to a fair trial Review within a reasonable time One party must notify the other one of the complaint lodged One party’s right to review the other party’s claims and evidence in order to present its explanations Right to open hearing Right to compensation A complaint review body is entitled and committed to balance inequality between the parties (requires them to submit additional evidence) Justified decisions Publicly available decisions

Further steps The lawful interest to lodge a complaint must be clearly determined to ensure the subject of a complaint and the competence of the complaint review authority are well understood The terminology of the Law with regard to the institution of appeal must clearly represent the purpose of this institution in the adversarial process Participants’ rights should be determined: to review materials of the complaint before the decision is made to provide further evidence with regard to the subject matter of the complaint to apply to the complaint review authority to get access to evidence to have open hearing of the case (the right to be heard) to take part in the expert appointment procedure to have expenses reimbursed Reasons to support active position of the complaint review authority to gather evidence should be well identified Appointment of expert examinations and indemnification of expenses need regulation Hearings (oral explanations) should be recorded by technical means