The EU Amendment of Its Procurement Remedies - Essay Example

? THE DECEMBER 2007 EU AMENDMENT OF ITS PROCUREMENT REMEDIES THE DECEMBER 2007 EU AMENDMENT OF ITSPROCUREMENT REMEDIES In December 2007, the EU amended its procurement remedies frameworks with a view to improving the effectiveness of the review procedures concerning contract awards. This amendment culminated in changes to the existing frameworks, which requires correct implementation as well as the proper enforcement by the member countries for the purpose of effectiveness to be realized. The EU had previously adopted some amendments through which the member countries ran from the year 2004 and which, due to inefficiencies noted necessitated the amendment of 2007. Before the 2007 remedy amendments, there existed two directives that concerned the public procurement; 89/665/EEC meant for the sector of public as well as the 92/13/EEC meant for the sector of utilities. These policy directives applied to the only procurements that were under public and the partial contracts on ‘non-priority services’. Public remedies as should be are meant to avail to tenderers means to redress, build the confidence of the general public as well as the corporate world of the fairness that is entailed within the public procurement systems as well as provide frameworks that would protect the public procurement from corrupt activities through breaching of rules. Among other challenges that were noted before the amendment and which necessitated the amendments was the illegal awarding of public contracts for procurement through improper procedures of tendering as well as the problem of corruption as noted by the EIPASCOPE commission 20061. It was noted that though the member countries had successfully adopted and implemented the 2004 public contract awarding regulations, infringement through malpractices were persistent and thus needed redress. Such bodies as the EIPASCOPE were very instrumental in the fight for and demand of the amendments through having clear amendment proposals for the purpose of effecting competency and effectiveness within the public domain in matters of public procurement and the awarding of contracts. Effective public procurement system in EU was required to ascertain that public contracts were advertised and through competitive bidding be awarded to the rightful winner of the bid. However, this has been a major challenge that necessitated the 2007 amendments to the procurement directives. The courts however had the sole privilege to interpret and allow the exceptional cases that would be allowed to have the awarding of contracts done otherwise, other than through this stipulated competitive way. These exceptional circumstances included the instances when there was extreme urgency to award the contract and in the event that only one bidder meets the requirements as required. However, despite the legal frameworks developed in order to ensure the effective of the public procurement laws, there existed a main challenge in the implementation as the breach happened in secrecy; the illegal awarding of the contracts were often negotiated behind the scenes and awarded. Another major concern that necessitated the amendment was the lack of enough time within the countries member states for correction of the contracts awarded erroneously; the main problem noted as the ‘race to signature’. The remedies to such an infringements or breach of the directives required amendment of the directive to create time after the signing of contracts through which the malpractices would be corrected. The commission therefore recommended a minimum standstill period that should be mandatory and imposed between the conclusion of the dialogues and the official signing of the contracts to create time for these evaluations and the necessary adjustments. The commission recommended that at least the standstill period be prolonged to at least ten calendar days with the member states having the provision to decide on their stand still periods. EU principal rules that govern the framework responsible for the public procurement procedures is contained within the 2004/17 directive (for Utilities) and the 2007/66 directive (for Remedies)2. However, the directives are implemented using relevant provisions, which must be interpreted as per these necessary guidelines. The EU governance council as well as the parliament are tasked with the role of overseeing that the member countries are governed within the structures provided for by the EU guidelines. These guidelines are designed by the council as well as the parliament, and then recommended to individual member countries for implementation. Nevertheless, the supremacy of member countries is not compromised as the frameworks developed within the council are basically directives and the respective member countries are responsible of incorporating them within their own systems. The changes required to be adopted in order for the general principles to be adopted effectively within the member states are left at the discretion of the states. The EU procurement rules apply where the contracting entity is the utility responsible for awarding the respective contract, the contract as defined is for services, supplies or even works that are associated to the utility awarding the contract and that the awarded contract value must be over the relevant financial threshold. The directive ‘Directive 2007/66/EC’ forms the basis of this paper’s discussion as was presented on 11th December 2007 for the purpose of improving the effectiveness in the process of awarding public procurement contracts. Among other amendment effects that the contracting process has faced after the amendment are tighter and more profound consequences to the malpractices on the two sides of the bidders and contractors as well. The amendments also provide for regulatory measures, which involves set-aside measures to contracts for such malpractices in the awarding exercises. The public procurement bodies face fines or even shortening of contract terms for the contracts that are awarded through the malpractices and the general breach of regulating laws. The amendments also empowers aggrieved bidders who are not satisfied with the contracting procedures to challenge the procedures and seek the review of contracting authority’s decision which through the court procedure would halt the contracting process. However, despite the powers that the bidders enjoy through the empowered court systems, there are the constraints of time framework through which the contracting processes are now affected after the 2007 amendments. Some of the provisions to the courts by the new remedies require that the bidders seeking the interjection by the courts to act promptly due to the time factor as stipulated3. Following the amendments in 2007, transparency, accountability, objectivity as well as non-discrimination principles govern the public procurement practices within the EU region4 (Bovis 3). The award criteria now follow promptly the most economically advantageous tender and therefore the awarding of contracts follows the principles to the later. In December 2009, ‘ineffectiveness’ was introduced within the procurement frameworks in the United Kingdom as per the requirements of the amended remedy directives of the December 2007. Following the regulation 47 K of the UK public contracts amendment regulations, extreme violations of the pubic procurement and contract awarding procedures courts have the power and capacity to declare these contracts ineffective. Other remedy provisions of the directive amendment upon which third parties are entitled to effect nullifications of at least some parts of a concluded contract award are violation of the stand still provisions of the contract, direct illegal awarding of the contracts as well as the call offs above the threshold values as provided for within the contract agreement. The traditional UK (and Scotland) lacked provisions of periodic, financial as well as other alternative penalties for the breaches as seen above. However, the 2007 EU amendments brought about major changes as regards the penalty systems. Such an regulation as 47N of the UK contract regulations ‘civil financial penalties’ may be imposed by the courts and in some situations, the same regulations provides for financial penalties for the breaches as outlined. Moreover, the two alternatives can as well be imposed instead of an ineffectiveness order or better in addition to this ineffectiveness order. In the event of ineffectiveness, the court provides that the two remedies can be applied and better still when a court order is defied or the provision for the stand still period is not adhered to5. According to the Directive 2007/66/EC, the amendment of 89/665/EEC and 92/13/EEC directives was instrumental in ensuring that the 2004/18/EC and 2004/17/EC directives are effectively applied. The ‘Court of Justice of the European Communities’ interprets that 89/665/EEC and 92/13/EEC directives are only relevant and applicable within the scope of contracts that are awarded under or covered by the 2004/18/EC and 2004/17/EC directives6. Nevertheless, a critical analysis of the amended provisions reveals that the effectiveness of these amendments are still questionable in ensuring compliance with the community law particularly within the modern era whereby the provisions, infringements can still be corrected through law. This journal specifically outlines major weaknesses noted within the remedy frameworks in operations starting from the absence of a substantial period right after the completion of an awarding of a contract within which proper review would be done to ascertain the transparency and adherence to the regulations governing the issuance of public procurement contracts. This, as observed earlier, hinders the judicial process of ascertaining that justice prevails in the awarding of the public contracts. The remedy therefore points to the need for the legislations to consider a prolonged stand still period through which the unsatisfied bidders would engage in intensive review procedure and allow the court systems implement the system of justice over the malpractice noted if any. The 89/665/EEC amendments focused on ‘scope and availability of review procedures’, ‘requirements for review procedures’, ‘stand still period’, ‘ derogations from the stand still period’, ‘time limits for applying for a review’, ‘ineffectiveness’, ‘time limits’, ‘Infringements of this Directive and alternative penalties’, ‘corrective mechanism’, ‘Content of a notice for voluntary ex ante transparency’, ‘ implementation procedures’, and ‘committee review procedures’7. Amendments to the directive 92/13/EEC entailed the addition of such articles as the concerns stand still period and also the corrective measures that member state governments may put in place for effective public procurement purposes. The ‘article ‘1 of the amended 89/665/EEC directive concerns the scope as well as the procedures of the review process within awarding of contracts. The amendment empowered and required member countries to be responsible over review procedures on contracting authorities as claimed by unsatisfied bidders and implement speedy evaluations. Moreover, member states were required to act as the overseers to the contracting procedures in order to ensure the principles of contract awarding in public domain within the EU region were adhered to. Appropriate means of communication to be adopted within member countries for the contract awarding procedures were to be agreed upon and chosen by the individual countries. ‘Article 2’ of the amended Directive 2004/18/EC concerned requirements for review procedures and where the respective governments to the member countries were mandated to oversee that interim procedures in correcting infringements noted within the review procedures are prompt and where appropriate oversee that the harmed parties are awarded compensatory rewards for damages suffered as provided for by law. The amendments also ascertained that member countries were responsible in ensuring that the necessary stand still time required for the review processes by the persons responsible was set. The amendments also outlines the corrective measures to be adopted in matters of infringement where the commission would notify a state in cases of such malpractice where he state is then responsible for correction and subsequent reporting back to the commission on steps taken for the correction. The amendment also provided for time limits within which application of a review following the contract award must be done. Ten days are specified in communication is done through fast means such as through electronic means or fax. In the event that communication is done through other slower means, then the application period is pushed to 15 days. In communicating the contracting authority’s decisions to the participants, the communication should have an accompaniment of the reasons for the decision made. Member states are therefore served with the sole responsibility being the custodian of the legal tools upon which the regulations were enforced8. In a case analysis of United Kingdom and the effect of the directive amendments, UK has shown great improvement in the public procurement through the successful adoption and use of the amendments for competitive dialogue as well as negotiated procurement procedures. According to the directive 2004-18-EC, the member states have the provision of choosing what kind of contracting that the authorities would be permitted to use either through central purchasing bodies, auctions by electronic means, dynamic purchasing systems as well as through competitive dialogue procedure9. Competitive dialogue is a mechanism or a procedure through which institutions achieve bidding mechanisms for the purpose of procurement by discussions. It is a provision through which all economic operators are allowed to request to participate in, and through which a contracting body carries out dialogue with the economic agents chosen in order to find a solution to the requirements that necessitated the dialogue procedure. A newly devised procedure, Competitive dialogue is most applied in public procurement and bidding practices. It was designed to be used in contract procedures, which the open or closed procurement procedures do not provide for10. It has brought great evolution in terms of procurement and bidding in the UK in maintaining competency as well as speed of procurement process within the public and the private domains. The processes of verifying the suitability of the candidate tenderers to participate and the selection is required to be in the very transparent manner possible.. The contracting authorities are also obligated to specify the adopted non-discriminatory procedures that would be adopted within the procedure and of importance is the means through which other entities such as economic operators may verify the transparency as well as non-discriminatory level of the procedures. Moreover, the contracting authority is required to specify the level of competency and means to ascertain it, required, for economic agents to be incorporated in order to fit incorporation within the procedure. The competitive dialogue procedure happens to be one critical procedure in procurement because unlike other procedures, it requires through planning, resources, consumes lots of time, and involves competitive tendering. The UK government has acknowledged the procedure and through the office of government devised a manual for the public competitive dialogue procedure as is a requirement by the EU council and parliamentary committee on the public procurement directive remedies amendment process. The 2007 amendments adopted by the UK has defined timescales through which the operations take place, the expression of interest runs through thirty-seven days and the stand still period of ten days through which the tenders are notified of the tender award. Among other notable strengths of the competitive dialogue procedure from the amendments is that disciplined competition is involved and encouraged, public and private working relations are boosted and the overall delivery of solutions is effective and in a controlled financial implication. However, in the event of poor planning and execution of the competitive dialogue procedures, the cost implication for both the public as well as the private sector rises beyond manageable limits. Criticisms on the effectiveness of the procedure arise from the criteria of defining complex procedures as required, the frequency of the discussion procedures as well as cost implications especially with poor or improper preparation and the lack of necessary skills required for the procedures. While preparing for a competitive dialogue within the UK dialogue procedure for procurement, it is important for one to consider the external factors that influence the success of the dialogue procedure. The nature of the procurement contract to be delivered as well as the parties to be involved plays a major role in the success of the competitive dialogue procurement11. Regulation 4512 permits the process of down selecting of the bidders to be smooth in order to work progressively over the dialogue phases with the requirement that the number of the remaining bidders will effect genuine competition. Moreover, the reduction can be done progressively as the dialogue progresses through the stages, through with a mandatory obligation of being objective as stipulated in the contract notice. Too many bidders slow the process of procurement while very few bidders may result to unsuccessful bidding and genuine competition as is a requirement regulation 45 may be compromised. Reducing on the participants is beneficial as it ensures the proportionality of the costs as incurred through the bidding process13. Nevertheless, despite the great success that the adoption of the competitive dialogue procedure has brought on board to the procurement discipline, small and even some large organizations are still hesitant of adopting the procedure due to mainly the resource constraints as the procedure devotes large sums of financial resources. The lack of technical experience and expertise hinders many firms from adopting the competitive dialogue procedure as procurement mechanism. These are among the weaknesses that the amendments never took into considerations for member countries. The review on ‘HM Treasury’s Verdict on Competitive Dialogue’ recommends some practical ways of ensuring the success of the competitive dialogue procurement procedure within the amendment framework. These ways include that contracting authorities should not practice the procurement procedure as a default procedure. A justification document as to why the contracting authority chooses to use the competitive dialogue should be produced. Unnecessary questions or information should be avoided in the discussion phases in order to save on time and that the evaluation criteria adopted by the contracting authority should form the basis of the discussions to avoid diversion of interest14. The use of competitive dialogue procedure in public procurement arises from the need to devise flexible mechanism of undertaking public procurements. 2004/18/EC, the public sector directive introduced the competitive dialogue as a procedure to award complex procurement tenders at the place of formerly public negotiated procedures of awarding contracts. Time constraints and resource misuse usually characterize the public procurement domain within the other procedures and hence the need to devise such a method that would be instrumental in overcoming such vices previously associated with public procurement. The development of competitive dialogue procurement procedure ascertained transparency within bidding procedures and aids to reduce discrimination within the public and private procurement practices. It follows a predefined procedural approach starting from the preparation stage, pre-qualification and selection stage, Competitive Dialogue stage, Final Tenders stage and finally the Contract Award stage15. Through these steps, the competitive dialogue is very instrumental in ensuring competitiveness in the whole process in matters of confidentiality of bidders’ information, proper evaluation of provisions of the bidders and the efficiency in tendering process is realized as is required from the amendments. References Christopher H B, The Interaction of the UNCRPD with the Public Procurement Regime of the European Union. 3 Devonshires solicitors, HM Treasury’s Verdict on Competitive Dialogue. Bulletin. 1-3 Dundas and Wilson, GUIDE TO EU LAWS GOVERNING UTILITIES PROCUREMENT October 2012 HM treasury, HM Treasury Review of Competitive Dialogue, November 2010. 9 Liisa K, Reform of Public Procurement Remedies: A First Look at the Commission Proposal for an AmendingDirective. EIPASCOPE 2006/3 Martin T, THE TRANSPOSITION OF THE PUBLIC PROCUREMENT REMEDIES DIRECTIVE 2007/66/EC IN THE UNITED KINGDOM ANNUAL REPORT 2010 – UNITED KINGDOM (June 2011). 6-10 Morrison and Foerster, UK Public Procurement Law Digest Volume 2 (2010-2011) September 2011. 1 Nabarro, Competitive Dialogue – Good News for 2011. Projects briefing, January 2011. 2 Office of the government, Competitive dialogue procedure: OGC guidance on the Competitive dialogue procedure in the new procurement regulations. January 2006. 3 The European Parliament And Of The Council Directive 2007/66/EC of 11 December 2007 on 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 [2007] L 335/42 The European Parliament And Of The Council Directive 2007/66/EC of 11 December 2007 on 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 [2007] L 335/31 The European Parliament And Of The Council Directive 2007/66/EC of 11 December 2007 on 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 [2007] L 335/35 The UK Office of Government Commerce, An Introduction to Public Procurement, An Introduction to Public Procurement. OGC, 13 OJ L 16, 30.4.2004, p. 1 OJ L 40, 30.4.2004, p. 6 Read More