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Vesna Gojkovic Milin, SIGMA Public procurement review bodies conference, Ohrid 9-10 June 2016

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Presentation by Vesna Gojkovic Milin, Serbia, at the regional conference organised by SIGMA on Public procurement review bodies, which took place in Ohrid, the former Yugoslav Republic of Macedonia on 9-10 June 2016.

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Vesna Gojkovic Milin, SIGMA Public procurement review bodies conference, Ohrid 9-10 June 2016

  1. 1. © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Regional Conference for Public Procurement Review Bodies in EU Enlargement Countries Independence as Paradigm of Protection of Rights Vesna Gojkovic Milin, Republic Commission for Protection of Rights in PPP, Serbia 9 – 10 June 2016, Ohrid
  2. 2. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • Republic Commission for Protection of Rights in Public Procurement Procedures is an independent and autonomous institution of Republic of Serbia providing protection of rights in public procurement procedures, accountable to National Assembly. Republic Commission submits annual report to National Assembly containing the elements prescribed by Public Procurement Law – hereinafter: PPL • It has the status of legal entity • The assets to provide functioning of Republic Commission are provided in the separate section of the budget of Republic of Serbia (Article 138 of PPL) • National Assembly appoints President and eight Members of Republic Commission upon proposal of the responsible Committee and after completed public competition procedure (Article 140 of PPL) • Conditions for appointment are prescribed by Article 141 of PPL • Republic Commission operates and decides in panels, at panel sessions and general sessions, and ways of operating are regulated by Article 146 of PPL and Rules of Procedures of Republic Commission 2
  3. 3. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • The First Public Procurement Law predicted that throughout all of the stages of public procurement procedure the protection of rights of bidders and protection of public interest were to be provided by Public Procurement Office via Commission for Protection of Rights of Bidders, which was established within the Public Procurement Office and whose President and Members were appointed by Government upon proposal of Minister of Finance (Law was adopted in 2002, and its Amendments in 2004). • The assets for functioning of Commission were provided in the Budget of Republic of Serbia in the section for Public Procurement Office and Commission did not have the status of legal entity or the Service of its own, and it was submitting the report on its work to the Government and National Assembly. • Republic Commission as an independent regulatory body conducting activities related to protection of rights in public procurement procedures and having the legal entity status, separate assets for its functioning within separate Budget section and its own Service has been established by Public Procurement Law in 2008 . 3
  4. 4. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • Public Procurement Law from 2002 prescribed that President and Members of Commission could not be Members of Parliament or councilors, could not perform political and managerial duties, or other duties, services, jobs or functions that could have impact on impartiality in work and performance or would diminish their reputation or reputation of the position of Member or President of the Commission. As a consequence to failure to comply to this provision, the removal from the office was prescribed • The term prescribed was four years, with the possibility of reappointment • Public Procurement Law from2008 prescribed that President and Members of Republic Commission can not perform any other public duty in accordance with the law governing conflict of interest, can not perform any duty within political party, or conduct any duty, service, job, function or activity that could have impact on their impartiality in work and performance or would diminish their reputation or reputation of the position of the Member or President of Republic Commission. • As a consequence to failure to comply to this provision the removal from the office was prescribed upon reasoned proposal of the Government, granting the right to give a statement regarding reasons for removal from the office before National Assembly • The term prescribed was five years, with the possibility of maximum one more reappointment 4
  5. 5. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • Article 144 of PPL prescribes that the President and/or Member of Republic Commission may not perform any other public duty, hold any function in a political party, or perform any other function, service, work, duty or activity that might have impact on his/her independence in work and performance, or that might decrease his/her reputation or the reputation of the function of President or Member of the Republic Commission. • For the first time it is directly prescribed that President or Member of Republic Commission can not decide in protection of rights procedure if there are reasons to doubt their impartiality, or if they are in a relation to one of the parties of the procedure, as explained in the article 29 of PPL, defining participation in management, ownership of more than 1% of shares with the bidder, business activities, employment or any other business connection • Parties can demand exclusion due to the above mentioned reasons, and failure to comply to the above mentioned has removal from the office as a consequence 5
  6. 6. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • Two years after their duties as President and Members of Republic Commission cease, they are not allowed to be hired by bidders that were parties in the procedure in which President and Members decided, if the estimated value of the public procurement in question exceeded 250 million RSD for goods and services or 500 million RSD for works. • President and Members are appointed to a five-year period, and the same person may be appointed maximum two times as President or as a Member, provided that he or she has not been appointed President previously. • As of 2008 the unprofessional and negligent performance of their activities is introduced as a reason for removal from the office of President and Members of Republic Commission, without defining the specific regulations regarding the procedure to establish unprofessional and negligent performance . 6
  7. 7. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • The term conflict of interest is seen as a situation in which an official has a personal interest which influences, may influence or seems to be influencing acting of the official in conducting of public or official duty, in a way that endangers public interest, as well as term of corruption as relationship based upon abuse of official and/or social position or influence in public or private sector aimed at acquiring personal gain or gain for somebody else, are defined by Law on Anti - Corruption Agency. • The provisions of this law are applied to the President and Members of Republic Commission as officials appointed by National Assembly. 7
  8. 8. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • According to the provisions of the mentioned Law, officials are obliged to perform their public function in such a way that public interest is never placed below private and to avoid creating the dependency relations towards persons that could influence their impartiality in performing of public function, and in the case such relationship can not be avoided or already exists, they should do all that is necessary for protection of public interest • Officials can not use public function to acquire any gain or convenience for themselves or persons to them related, nor can they conduct any other work or activity while performing public function activities that ask for full time engagement • The exception, without the agreement of the Agency, may be conducting of scientific and research activities, teaching activities, cultural – artistic activities, humanitarian and sport activities, provided these do not endanger impartial conducting or reputation of public function. These exceptions understand the obligation to report the income thus made 8
  9. 9. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • The Agency may give the consent on submitted request to allow conducting other works and activities, provided that positive opinion of the body that appointed the official was submitted along with the request • Upon taking the position, the official is obliged to inform his or her superior and the Agency on the doubt that there is the conflict of interests regarding the official or persons to him related • If an official took part in adopting of a separate act and had to be excluded due to the conflict of interests, the act is null, unless the official reported the conflict of interests in accordance with this Law and if it was not possible to appoint another person to take part in adoption of the said act • In accordance with the provisions of this Law, the official is obliged to inform the Agency immediately on forbidden influence the official is exposed to in performing the function, and the Agency in turn immediately informs the relevant institution so that the disciplinary, offence or criminal procedures are initiated in accordance with the Law 9
  10. 10. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • The responsibility of the President and Members of Republic Commission is defined precisely with Public Procurement Law, whereas organizational structure of Republic Commission is in line with the authorities established by Public Procurement Law. • Rules of Procedure establish in detail the ways of operating of Republic Commission, determine rules of conducting and deciding in cases presented to Republic Commission within its authorities prescribed by Article 139 of Public Procurement Law, and regulate other issues of importance for functioning and operating of Republic Commission. • The Civil Servants Law applied to the Service of Republic Commission does not adequately regulate the conflict of interests issue 10
  11. 11. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • Rules of Regulations of Republic Commission with regards to the acting upon the cases regulate the following: • Procedure of distribution of cases, conducted in such a way that at the end of each distribution cycle all Members of Republic Commission have approximately the same number of received cases, so that equal work load of all the Members is provided and that it is not known in advance which Member of Republic Commission will be given specific case • When cases are received, first the existence of urgency is established, than type of the procedure and complexity, and after that the cases are distributed to the Members in accordance with the order in which the initial act has been received and taking into consideration the alphabetical order of the surnames of the Members of Republic Commission • The ways to act with the cases when there is a conflict of interests as well as exemption of Members of the Panel of Republic Commission is precisely defined, and it has been established that President and Members of Republic Commission can not act upon any case falling within the scope of responsibilities of Republic Commission if there are reasons to doubt their impartiality or pointing out to possibility of conflict of interest 11
  12. 12. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • Republic Commission is completely independent in deciding on submitted requests, and this independence is seen in the ways this body is appointed, qualifications of its President and Members, as well as in legal framework providing the independence in decision making • The transparency in the activities is of great importance for this status, and it is being achieved by - Publishing of all the decisions made on Public Procurement Portal and web page of Republic Commission - Publishing of Information on Operations - Publishing of Report on Work once it has been adopted by National Assembly - Delivering of relevant information to all the users registered on mailing list of Republic Commission 12
  13. 13. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • Practice has shown that the following is needed - Further continuous training with special emphasis on issues of ethics and integrity as prerequisites to recognize conflict of interest situations, - Further continuous experience sharing through international cooperation and transfer of knowledge in the field of anti - corruption activities, - Further quality training of the employees aimed at achieving the level of expertize and creation of reference practice as recognizable positions of this institution regarding certain protection of rights issues - Bringing into line the salaries of the Members of Republic Commission and the employees of its Service with the salaries in other independent regulatory bodies, as prerequisite for financial independence 13
  14. 14. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • Extremely high level of independence and autonomous position of Republic Commission with regards to the legal framework has been achieved, which is obvious from the development of the system of protection of rights through the amendments of Public Procurement Law • Impartiality in decision making and independence from any type of influence is provided within satisfactory legal surrounding, and when it comes to the operations level, above all it is provided through the expertize and reliability of this body and its Service • Improvement of position of Republic Commission and its positive public recognizability is possible both through further professionalization of officials’ work and work of Service of Republic Commission similar to the work of courts, as well as through creation of general social climate where all legal entities and citizens recognize the particularity of independent regulatory bodies as free of political and business influences and responsible only for full professionalism of their work 14
  15. 15. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights 15 Cases that have been decided (Requests for protection of rights) 2011 2012 2013 2014 2015 Rejected requests 246 262 351 526 561 Dismissed requests 103 83 81 125 94 Requests cancelled as a whole 242 361 369 424 327 Partially cancelled requests 348 364 540 912 866 Suspended procedure 31 23 51 50 55 Dismissed statement 90 89 96 1 0 Returned to the contracting authority to act upon 1 0 0 0 0 Decided upon in another way 4 49 34 14 4 Adopted as based 0 0 0 0 3 TOTAL 1065 1231 1522 2052 1910
  16. 16. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Independence as Paradigm of Protection of Rights • Data regarding ways of deciding on requests for protection of rights in the period between 2011 and 2015 are a good example of professional and independent acting and impartiality of decision making of Republic Commission, and they show that ratio between adopted and cancelled requests is almost always the same, which at the same time however shows that despite the experience of more than a decade, there is still a need for education of contracting authorities when it comes to conducting of public procurement procedures 16 Year Rejected requests Adopted requests and cancelled procedures 2011 23% 55 % 2012 21% 58% 2013 23% 59% 2014 25% 65% 2015 29% 62%
  17. 17. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Thank you for attention 17

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