Master Slide

1
Private sector interests in legal
protection Tomaž Vesel First deputy
president Court of Audit Slovenia tomaz.vesel_at_rs-r
s.si
Conference onPublic Procurement Review
Remedies Systems Dubrovnik 24-25 May 07
2

• Sign the contract
• Correct relationship with contracting authority
• Arbitration
• Low cost procedures
• De facto independence of review bodies
• Rapid decision
• Clear explanation of decision
• Damages
• Same treatment below the tresholds,
• in all PP and PPP procedures, utilities
• Least conferences as possible

3
The legal framework?

• EC Remedies Directives
• Rapid and effective remedies.
• Independent review bodies.
• Judicial review in last instance.
• Interim relief
• Set aside of procurement decisions.
• Annulment of concluded contract
• Set aside of award decisions (Alcatel doctrine)
• Interim measures
• Damages substantive and consequental damage

4
Not in EU law

• Administrative or civil judicial review
• Composition of review bodies
• Number and size of review bodies
• Rules of calculation of damages
• Procedural law
• Framework Agreements (public sector)
• Competitive Dialogue
• E-procurement, notably reverse auctions and
  dynamic purchasing systems

5
Directive 89/665/EEC Article 1 3. The 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 public supply or public
works contract and who has been or risks being
harmed by an alleged infringement. In particular,
the Member States may require that the person
seeking the review must have previously notified
the contracting authority of the alleged
infringement and of his intention to seek review.
6
Directive 92/13/EEC Article 1 3. The 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.
In particular, the Member States may require
that the person seeking the review must have
previously notified the contracting entity of the
alleged infringement and of his intention to
seek review.
7
C 129/04, Espace Trianon Article 1 of Council
Directive 89/665/EEC is to be interpreted as
not precluding national law from providing that
only the members of a consortium without legal
personality which has participated, as such, in a
procedure for the award of a public contract and
has not been awarded that contract, acting
together, may bring an action against the
decision awarding the contract and not just one
of its members individually. The same is true if
all the members of such a consortium act together
but the application of one of its members is held
inadmissible.
8
C 230/02, Grossman Air Service 1. Articles 1(3)
and 2(1)(b) of Council Directive 89/665/EEC ,
must be interpreted as not precluding a person
from being regarded, once a public contract has
been awarded, as having lost his right of access
to the review procedures provided for by the
Directive if he did not participate in the award
procedure for that contract on the ground that he
was not in a position to supply all the services
for which bids were invited, because there were
allegedly discriminatory specifications in the
documents relating to the invitation to tender,
but he did not seek review of those
specifications before the contract was awarded.
9
C 249/01, Werner Hackmuller Article 1(3) of
Directive 89/665/EEC of 21 December 1989 on the
coordination of the laws, regulations and
administrative provisions relating to the
application of review procedures to the award of
public supply and public works contracts, as
amended by Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures
for the award of public service contracts, does
not preclude the review procedures laid down by
the directive being available to persons wishing
to obtain a particular public contract only if
they have been or risk being harmed by the
infringement they allege. CASE irregular
bids? Decision of National Review Commission,
21.3.2007
10
C 249/01, Werner Hackmuller 2. Article 1(3) of
Directive 89/665, as amended by Directive 92/50,
does not permit a tenderer to be refused access
to the review procedures laid down by the
directive to contest the lawfulness of the
decision of the contracting authority not to
consider his bid as the best bid on the ground
that his bid should have been eliminated at the
outset by the contracting authority for other
reasons and that therefore he neither has been
nor risks being harmed by the unlawfulness which
he alleges. In the review procedure thus open to
the tenderer, he must be allowed to challenge the
ground of exclusion on the basis of which the
review body intends to conclude that he neither
has been nor risks being harmed by the decision
he alleges to be unlawful.
11
SLO APPRP Art. 12/5 Limitations for submitting
review claims in procurement procedure
After expiry of the term set out for
presentation of offers, the bidder may not submit
a review claim for reasons that would or should
have been known to him before expiry of such a
term. C-230/02, Grossman Air Service
12
Exc. C 327/00, Santex Council Directive
89/665/EEC, must be interpreted as imposing on
the competent national courts, where it is
established that, by its conduct, a contracting
authority has rendered impossible or excessively
difficult the exercise of the rights conferred by
the Community legal order on a national of the
Union who has been harmed by a decision of that
contracting authority, an obligation to allow as
admissible pleas in law alleging that the notice
of invitation to tender is incompatible with
Community law , which are put forward in support
of an application for review of that decision, by
availing itself, where appropriate, of the
possibility afforded by national law of
disapplying national rules on limitation periods,
under which, when the period prescribed for
bringing proceedings for review of the notice of
invitation to tender has expired, it is no longer
possible to plead such incompatibility.