Public Procurement in Europe Profesori Italieni 224 P

Presidenza del Consiglio dei Ministri
Segretariato Generale - Dipartimento per le Risorse Umane e Strumentali
Public Procurement Network
Public Procurement
in Europe
ISTITUTO POLIGRAFICO E ZECCA DELLO STATO
The book was edited by Stefania Zuccolotto

under the supervision of Chiara Lacava
Public Procurement in Europe
S U M M A RY
Presentation ...................................................................................................................... Pag.
The aim of the book ........................................................................................................
The methodology .............................................................................................................
The scheme ......................................................................................................................
Austria ..........................................................................................................................
15
Belgium ........................................................................................................................
19
Cyprus ..........................................................................................................................
25
Czech Republic .............................................................................................................
33
Denmark ......................................................................................................................
35
Estonia .........................................................................................................................
47
Finland .........................................................................................................................
53
France ...........................................................................................................................
65
Germany .......................................................................................................................
79
Greece ..........................................................................................................................
87
Hungary .......................................................................................................................
93
Iceland ..........................................................................................................................
101
Ireland ..........................................................................................................................
111
Italy ..............................................................................................................................
115
Latvia ...........................................................................................................................
125
Liechtenstein ................................................................................................................
131
Luxemburg ...................................................................................................................
135
The Netherlands ...........................................................................................................
137
Poland ..........................................................................................................................
141
Portugal ........................................................................................................................
153
Contributions:
Republic of Lithuania ................................................................................................... Pag.
157
Romania .......................................................................................................................
161
Slovenia ........................................................................................................................
167
Spain ............................................................................................................................
173
Sweden .........................................................................................................................
185
Switzerland ...................................................................................................................
189
Turkey ...........................................................................................................................
199
United Kingdom ..........................................................................................................
209
Presentation
The Italian Instant Book on public procurement (IBP) is an explanatory handbook of the different public procurement systems in Europe and, as such, a valuable contribution to the stakeholders
and practitioners in European public procurement.
It outlines the basic EC procurement regime explaining how it applies in the various national
procurement environments. It gives a comprehensive insight into each contributor states national contract law and its legal basis in relation to the underlying principles in the EC Treaty. Furthermore, it
provides a comparative survey of the implementation of EC law nationally, the structure of national
rules and practical application of the rules through the legislative and institutional frameworks of
each state. The manner and methods in which public procurements and award procedures are conducted are also explained in detail.
While the IBP provides familiarisation on the public procurement systems operating in each state
participating in the European Public Procurement Network (PPN), it also highlights the convergence
in how these rules are interpreted and reveals common procurement issues.
The IBP is intended to increase awareness and understanding, among procurement entities and
economic operators as well as all other practitioners, of the European procurement system, its substantive rules, remedies, the new organizational and managerial arrangements and models, as well as e-procurement in each state.
In the context of the EUs recent enlargement to 25 members, the IBP is available to its professional public at a time when there is yet a stronger need to assist not only public authorities, agencies
and utilities, but also the contractors seeking to make increased use of the PPN and SOLVIT systems
for informal cross-border dispute settlement in public procurement.
Andrej Dolinsek
The aim of the book

During the Public Procurement Network meeting held in Copenhagen on January 2003, the Italian Delegation promoted the publication of an Instant Book collecting the different experiences on
Public Procurement in Europe.
The main objective of the book is to give an useful instrument to analyse and compare the different legislative systems and organizational models in use in the different countries relating to the public
procurement (PP) policies.
This in order to understand the evolution of procedures and planned reforms in PP sector.
The interest in this argument has increased since the March 2004 after the approval of the Communitarian Directives on PP.
These Directives introduce significant charges in European policies of PP in order to introduce
the actual system and to develop electronic procurement solutions in PP procedures. Some innovative
aspects and principles of the new EU Directives will have a direct effect on domestic legislation and
processes, and will influence the way of acting of national Administrations. Their implementation
will offer a great opportunity for simplifying and modernizing the procurement process.
The real effect of the change due to these policies will depend to the capacity of the involved Administrations to carry out the started processes and to implement adequately these reforms.
Considering the latest development, this Instant Book can represent a significant instrument to
verify how the PP system is structured in the different Countries.
Antonio Catricala'
The methodology
To check the attending changes of public procurement policy in European Nations, it has been
structured an analysis based on the assemble and comparison of the experiences of each State.
The first step of this analysis has been the identification of the main aspects with the objective of
understanding the dynamics that govern behaviours and trends of Public Administration in the European context.
There have been identified six certain lines of research, as explained in the graph below.
In order to obtain, in a short time, suitable information relating to the biggest possible number of
contributions, it has agreed to adopt, as survey tool, a document containing the scheme to follow
up in order to let each delegate free to describe the characteristics of his national system.
The scheme examines the six lines of research, previously determined, closely in order to define a
significant picture of each national system.
It is composed of the following sections:
1. Legislative framework
This section intends to give a general overview of the legislation already in force and that being
prepared for the regulation on public procurement in the States participating in the PPN.
After the identification of the Community Directives on public procurement that have been assimilated into the domestic legal system of each State, the attention of the research is focused on the
general principles constituting the basis of the national legislation (laws and regulations) that currently
regulate the public procurement sector and the detail of the government bills being prepared by
each State in this field.
7
2. Institutional framework
The second section is aimed at outlining a simple profile of the bodies responsible for public procurement, as well as the bodies responsible for appeals regarding public procurement procedures in
each State, outlining the basic aspects of their legal nature, their respective composition and their
competence in the domestic legal system.
3. Types of public procurement and award procedures
The third section aims to offer a comprehensive survey of public procurement procedures in use
into the States participating in the project by illustrating their various types (supplies, services, works
and utilities sectors), their procedures for awarding contracts and the existing appeal systems.
4. New organizational and managerial arrangements
The fourth section proposes to identify any innovative models for managing public procurement
procedures which are making their mark in the PPN participating Countries, alongside the traditional
means for procuring goods and services.
Each State is requested to indicate whether forms of co-operation and collaboration between
public and private entities have been put into effect in the domestic system.
5. Models adopted
Following the previous section, this part requires detailed description of the various innovative
organizational and managerial models for public procurement adopted by each Country and a brief illustration of the national legislation currently regulating the domestic system and the pieces of legislation being prepared for the regulation of the new arrangements described.
6. The e-procurement
The last section aims to examine in detail the use of telematic procedures for the procurement of
goods and services, so-called e-procurement.
After the identification of the general principles forming the basis of the national legislation on eprocurement, it is asked to illustrate the structures dedicated to managing the e-procurement systems,
the procedures adopted for advertising the tender competition documents, the methods for procuring
goods and services by using telematic technology.
This scheme has been sent to delegates of each State attending the Public Procurement Network.
The different contributions collected have been adjusted and arranged in alphabetic order and included
in the instant book.
The Country, members of PPN, that have sent their contributions are the following:
European Union Members: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Irland, Italy, Latvia, Luxemburg, the Netherlands,
Poland, Portugal, Lithuania, Slovenia, Spain, Sweden and United Kingdom;
European Union candidate Countries: Turkey e Romania;
Iceland, Liechtenstein and Switzerland.
Luigi Fiorentino
8
The scheme
The following section intends to give a general overview of both the legislation already in force and that being prepared for
the regulation of public procurement in the States participating in the PPN.
The following information is requested of each State for the purposes of compiling the present
section:
Directives
Indicate the Community Directives on public procurement that have been assimilated into the
domestic legal system of each State.
General Principles
Indicate the general principles constituting the basis of the national legislation on public procurement.
Legislation currently in force
Briefly illustrate the national legislation (laws and regulations) that currently regulate the States
public procurement sector.
Legislation being prepared
Briefly illustrate the pieces of legislation being prepared by each State in the field of public procurement.
The following section is aimed at outlining a simple profile of the bodies responsible for public procurement both in terms of
their status (i.e. their legal nature and composition) and their purpose (i.e, their duties), as well as the bodies responsible for appeals.
section:
The structures responsible for public procurement (legal nature and composition)
Give a brief description of the bodies with responsibility in the public procurement sector of each
State, outlining the basic aspects of their legal nature (public authorities and/or independent bodies)
and their respective composition.
9
Duties
Complete the profile of the responsible bodies outlined above by giving a brief description of the
duties assigned them by the internal legal system in each State.
Bodies responsible for appeals (legal nature and composition)
Give a brief description of the bodies responsible for examining and deciding appeals regarding
public procurement procedures in each State, outlining the basic aspects of their legal nature (public
authorities and/or independent bodies) and their respective composition.
Duties
Complete the profile of the bodies responsible for appeals outlined above by giving a brief description of the duties assigned them by the domestic legal system in each State.
The following section aims to offer a general picture of public procurement procedures in the States participating in the project by illustrating their various types (supplies, services, works and utilities sectors), their procedures for awarding contracts and
the existing appeal systems.
section:
Types of public procurement
Give a broad outline of the types of contract provided for by the domestic legal systems (supplies,
services, works and utilities sectors).
Forms of advertising
Indicate the systems adopted in each State for advertising the tender competition documents and
every other communication relating to public procurement procedures.
Procedures for awarding contracts
Describe the procedures for awarding contracts that are regulated by domestic legal systems
(open, restricted and negotiated procedures)
Appeal procedures
Briefly illustrate the appeal procedures provided by each State in the case that the laws on public
procurement are violated (e.g. provisional remedies, annulment orders and damages).
The following section proposes to identify generally which innovative models for managing public procurement procedures
are making their mark in the PPN participating States, alongside the traditional means for procuring goods and services.The
various innovative models adopted can be described in detail in subsequent sections.
section:
New organizational arrangements
Indicate whether forms of co-operation and collaboration between public and private entities
have been put into effect within the State for realizing and managing services (Public-Private Partnerships....)
10
New managerial arrangements

Indicate whether organizational models of integrated service management have been adopted
within the State through outsourcing (Facility Management....)
Means of E-procurement
Indicate whether telematic procedures for the procurement of goods and services (e.g. telematic
tender competitions, market places....) have been introduced into the domestic legal system
Other experiences of innovation in the public procurement sector
Indicate whether any innovative models in the public procurement sector other than those indicated in the preceding points have been tried out in the domestic system.
5. Models adopted
The following section has the aim of giving details of the new organizational and managerial models for public procurement
indicated in the preceding section.
section:
Legislation in force
Briefly illustrate the States national legislation (laws and regulations) currently regulating the
public procurement sectors new organizational and managerial arrangements indicated in the preceding section.
Structures involved
Briefly describe the structures and/or bodies (public and private) involved in the new organizational and managerial arrangements for public procurement.
Procedures
Illustrate the procedures adopted for realizing and managing services by using the innovate models described.
Give a brief description of the pieces of legislation being prepared by each State for the regulation
of the new arrangements described.
6. The E-procurement
Introduction
The following section aims to examine in detail the use of telematic procedures for the procurement of goods and services (eprocurement).
section:
General principles
Indicate the general principles forming the basis of the national legislation on e-procurement.
11

Briefly illustrate the national legislation (laws and regulations) that currently regulate the States eprocurement sector.
Structures dedicated to e-procurement (legal nature and duties)
Describe the bodies that are dedicated to managing the e-procurement systems in each State.
every other kind of communication relating to e-procurement procedures.
Telematic purchasing procedures
Describe the procedures for procuring goods and services by using telematic technology (on-line
auctions, market places...)
Briefly illustrate the pieces of legislation one-procurement being prepared by each State.
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Contributions
Austria
Directives
Essentially, in Austria the community Directives on public procurement are transposed in the
Bundesvergabegesetz 2002 - BVergG (BGBI. I Nr. 99/2002), the Federal Law on Public Procurement.
A corresponding reference listing the Directives is stated in paragraph 192.
Furthermore, due to the federal system laid down in the Austrian Federal Constitution Law there
are nine additional different Landesvergabekontrollgesetze (La nder laws on the control of public
procurement) establishing a remedy system in accordance with the Directives 89/665 und 92/13.
It has to be mentioned that the BVergG as well as the Landesvergabekontrollgesetze also govern
the field of procurement procedures below the thresholds of the Directives.
General Principles
The general principles of public procurement in Austria were formulated in accordance with the
EC Treaty, the Federal Constitution and the Directives. Paragraph 21 contains the main set of principles, which guide any procurement procedure within the scope of application of the BVergG, i.e.
non-discrimination, the four freedoms of the ECT, transparency, competition, equal treatment, etc.
As already mentioned, the BVergG provides the most important legal frame for public procurement. The current text can be downloaded at http://www.ris.bka.gv.at. The nine different La nder
laws on the control of public procurement can also be found there:
^ Burgenia ndisches Vergabe-Nachprufungsgesetz - VNPG (LGBI. Nr. 34/2003);
^ Ka rntner Vergaberechtsschutzgesetz- K-VergRG (LGBI. Nr. 17/2003);
^ NO Vergabe-Nachprufungsgesetz (LGBI. Nr. 7200-0);
^ Oo. Vergabenachprufungsgesetz (LGBI. Nr. 153/2002);
^ Salzburger Vergabekontrollgesetz 2002 - S.VKG (LGBI. Nr. 103/2002);
^ Steierma rkisches Vergabe-Nachprufungsgesetz (LGBI. Nr. 43/2003);
^ Tiroler Vergabenachprufungsgesetz 2002 (LGBI. Nr. 123/2002);
^ (Vorarlberger) Vergabenachprufungsgesetz (LGBI. Nr. 1/2003);
^ Wiener Vergaberechtsschutzgesetz (WVRG) (LGBI. Nr. 25/2003).
15
A brief outline of the current Austrian legal frame concerning public procurement is illustrated by
Korinek,Vergaberecht in Raschauer,Wirtschaftsrecht, 2003, Rz 701 - 772). There are also recent comments
on the La nder laws on the control of public procurement in the Zeitschrift fur Vergaberecht und
Beschaffungspraxis (ZVB).
There will be a revision of the current legal texts by the time the legislative package enters into
force. For the time being a regulation concerning the preparation and submission of electronic offers,
which shall be enacted by the beginning of the next year is prepared.
As the definition of a contracting authority which falls within the scope of application of the
BVergG mainly refers to the respective definition of the Directives, the BVergG covers the procurement of the regional and local authorities, i.e. the federal government and its subdivisions (Bund),
the regional authorities (La nder), the municipalities (Gemeinden) and associations, as well as the procurement of certain utilities and bodies governed by public law within the same meaning of the Directives (s. paragraph 7 and 8 BVergG).
The number of entities that are covered by the definition of a body governed by public law has
hugely increased during the past ten years due to liberalization and privatization of the public sector.
This development led to the founding of companies based on private law that are 100% or respectively
by majority state owned, performing tasks in the general interest.
Basically, the above-mentioned contracting authorities are responsible for all procurement procedures that fall within their respective competences, meaning they have to carry out any procurement
(work, service, supply) necessary to fulfil their legal tasks.
However, on the federal level due to budgetary restraints and to optimize public procurement
procedures a central purchasing body (the so called Bundesbeschaffung-GmbH) has been established
in 2001 (s. BGBI. I Nr. 39/2001), a limited company to handle the procurement of services and supplies
for the federal state and its companies.
The regional authorities (La nder) carry out most of their procurements through the administrative organization of the regional governments. The municipalities often set up associations for different purposes in the general interest (e.g. waste management).
Among a large number of self-governed bodies, the social security institutions and professional
chambers form a large group of contracting authorities.
Duties
The duties of the above-mentioned contracting authorities are for the most part defined in specific laws describing their respective tasks, comprising the necessary competences for the fulfilment
of these tasks. They range from usual, public administration and social security administration to
real estate management (e.g. the Federal Property Agency, BIG,) or dispute settlement in the broadcasting sector (e.g. the Regulatory Authority forTelecommunications and Broadcasting, RTRGmbH,).
16
Austria

The BVergG and the Landesvergabekontrollgesetze provide for single formal review systems run
by independent special administrative tribunals meeting the requirements of the EC remedy Directives
and Art. 6 of the ECHR. Due to the Austrian federal system there are ten different review bodies:
the Bundesvergabeamt (Federal Procurement Authority, BVA,) for procurements on the federal level
and the autonomous administrative tribunals in seven regions (so called UVS,) and procurement control senates in two regions (Vienna and Salzburg) for procurements on the respective regional and municipal level.
Although there are ten different review bodies the review procedures basically do not differ too
much. The legal practice of the La nder, following an administrative necessity, shows a tendency to harmonize the regulations on procurement review with the provisions of the BVergG. The following description is therefore limited to the basic regulations of the BVergG.
As mentioned before, the BVA is the competent review body for procurements on the federal level. It forms part of the judicial review system as laid down in the Federal Constitution. It is composed
of independent administrative judges and laymen who are nominated on equal terms for a certain
time period by the contracting authorities and the contractors side. The BVAs decisions are generally
rendered in senates consisting of one administrative judge and two laymen. The BVA has the legal
powers as required by the Directives (annul decisions of contracting authorities, interim measures
a.s.o.). According to the BVergG the BVA is competent for the legal protection of bidders in the precontractual phase (i.e. the time before the actual contract has been awarded) of a procurement procedure and should decide within two months. After a contract has been awarded the BVAs competence
is restricted to statements about the conformity or non-conformity of a procurement procedure of a
contracting authority. This statement constitutes an essential requirement and therefore the basis for
damage claims before the civil courts.
The BVAs decisions are published on the Internet (see http://www.bva.gv.at) and can be challenged before the Supreme Administrative Court and the Constitutional Court.
A separate dispute settlement body (Bundes-Vergabekontrollkommission, - B-VKK) is attached
to the BVA. lts powers are limited to giving recommendations in the precontractual phase. The procedure to be followed before the dispute settlement body is not regulated since it is not an administrative
procedure but an informal conciliation process. In some of the La nder similar bodies have been established.
Above the thresholds the BVergG contains the same procedures as regulated in the Directives. Below the thresholds additional procedures are provided, notably electronic auctions and framework
agreements and provisions for direct procurements below a sub threshold, of 20.000 e. There are
also transparency provisions for the award of service concessions.
The publication of procurement procedures above the thresholds strictly follows the requirements of the Directives. Apart from publishing a notice in the OJ federal contracting authorities
have to publish the notice in the Amtlicher Lieferanzeiger, (public supply indicator), a supplement
to a daily bulletin (Wiener Zeitung,) for official announcements. There are simplified rules for publications below the thresholds.
In accordance with the jurisprudence of the ECJ (Alcatel, case) contracting authorities have to
inform the participating tenderers of their intended award decision prior to the conclusion of the contract. The contracting authority must not award the contract during a certain period of time following
the information (two weeks above the thresholds). By this it is ensured that the tenderers may challenge
the decision before the review body. Contracts concluded before the expiry of the time limit are null
and void.
17
The BVergG also contains a strict system of time limits (preclusive time limits). Tenderers have to
challenge aged unlawful decisions of contracting authorities within a certain time limit from the moment they become known with the result that, when that period has passed, it is no longer possible
to challenge such a decision or to raise such an irregularity.
Any appeal before the conclusion of a contract has to be filed to the competent review body (s.
above), damage claims to the civil courts.
There is no specific legal framework for PPPs in Austria. Any activity in this field has therefore to
be carried out in accordance with the pertinent general rules (constitution, ECT, procurement rules).
Nevertheless, the municipal sector shows an increasing tendency in organizing the provision of services
in the general interest (e.g. utilities) jointly with private partner and investors.
As mentioned before, a central purchasing body (Bundesbeschaffung-GmbH) has been established in 2001 to handle the procurement of services and supplies for the federal government. Procurement procedures for framework contracts are launched after inquiring the specific needs of the departments.
There are general opening clauses in the BVergG that equate traditional and modern electronic
communication technologies, thus enabling the procuring authorities to use electronic procurement
methods in accordance with the provisions of the Directives. Below the thresholds there are provisions
for electronic auctions, which are not regulated in the current Directives.
The formulation and inclusion in the BVergG of specific rules for fields of public procurement
that do not fall within the scope of application of the Directives was welcomed and criticized as
well. As indicated above the BVergG governs the field of procurement above and below the thresholds,
service concessions, electronic auctions and framework agreements and also contains rules for Annex
IB services.
5. Models adopted
For the time being there are no special projects in this field in Austria.
As indicated before the BVergG contains a set of provisions, which are aimed to facilitate e-procurement in Austria. In accordance with the e-commerce and the e-signature Directives the communication and transactions between the contracting authority and the tenderers can be settled by electronic
means (e-mail, internet). There are special provisions for the submission and opening of electronic offers, notably that they must be signed and submitted with an advanced electronic signature.
The BVergG also regulates e-auctions below the thresholds. They can be used for standardized
products and services and can be based on either the lowest price only or other quantifiable economic
criteria. There is, however, a sub threshold, of 40.000 e that must not be exceeded using this procedure. There are no special provisions on electronic market places.
As already mentioned the federal government is working on a regulation concerning the preparation
and submission of electronic offers, which shall be enacted by the beginning of the next year.
18
Belgium
Directives
Belgium is fully compliant with the classical European Directives on public procurement:
Directive
Title
Directive 93/36/EEC
Supplies Co-ordination Directive
Directive 93/37/EEC
Works Co-ordination Directive
Directive 92/50/EEC
Services Directive
Directive 2001/78/EC
Use of Standard Forms for the

Publication of Contract Notices
amended by Directive 92/57/EC and Directive

89/665/EEC (Legal Remedies Directive)
General Principles
The basic principles are competition and equal and fair treatment of all tenderers during the complete procedure including the execution.
The Law of 24 December 1993, relating to public assignments of construction works, goods and
services, and its amendments.
The Royal Decree of 8 January 1996, relating to public assignments of construction works, goods
and services and to concessions of public works, and its amendments.
The Royal Decree of 26 September 1996, establishing the general rules of execution for public assignments and concessions of public works, and its amendments.
The Royal Decree of 6 February 1997 relating to public assignments of goods and services applicable to article 3, 3 of the law of 24 December 1993 and its amendments.
The Royal Decree of 6 February 1997 relating to public assignments of goods and services applicable to article 3, 3 of the law of 24 December 1993 and its amendments.
The implementation of the new classical Directive on public procurement (2004/18/CE) is now
being prepared by the Chancellery of the Prime minister.
19
The legislation on public procurement is a federal but is applicable by all authorities, from the
federal to the local level. A joint government and industry working group is in charge of coordinating
and implementing public procurement matters. This working group is the Commission des marche s
publics ^ Commissie voor de overheidsopdrachten.
Duties
The Commission des marche s publics ^ Commissie voor de overheidsopdrachten exists since
the years fifty and is now regulated by a royal decree of 10 March 1998. The principal task of this advisory body is to prepare new rules and also to advise the authorities on problems and general questions
about public procurements.
The Magistrates Court is the proper qualified authority on all public procurement matters.
The Administrative Section of the Administrative court ( Raad van State , or Conseil
dEtat , ) is the proper authority on handling decisions being made on public procurement matters
during the procedure.This section is not qualified for the conflicts about the execution of the contract.
There are no independent federal bodies on disputes on public procurement issues
Duties
All information is available via internet www.cass.be and www.raadvst-consetat.be.
See paragraph Legislation currently in force.
Belgian public authorities have the obligation to publish call for tenders in the national bulletin
of tenders (Bulletin der aanbestedingen or Bulletin des adjudications) for the open and restricted
procedures and the negotiated procedure with publicity. When the conditions for obligatory publication in the official journal of the European communities are fulfilled, the public procurement authority will also publish on European level.
Articles 13-16 for the open and restricted procedures and further described in the royal decree of
8 January 1996 and its amendments.
Article 17 for the negotiated procedures and further described in the royal decree of 8 January
1996 and its amendments.
See paragraph Legislation currently in force.
Appeal procedures
See Bodies responsible the for appeals ,.
20
Belgium

Currently , a task-force on Public Procurement is analysing the functional requirements and will
advise the highest possible level (counsel of ministers) by the end of 2004. At this time realizing and
managing services like Public-Private Partnerships are premature because of important legal as well
as policy questions.
See paragraph above.
Belgium perceives the e-procurement activities as a succession of processes: publication of RFQ,
reception of RFQ, opening of RFQ, evaluation, notification of results, execution of contract, invoicing.
This could be complemented by legal support where required.
At the actual stage only e-publishing is implemented:
The Federal State has implemented JEPP (www.jepp.be). This sub-system is actually used by the
Ministry of Defense, Federal Public Service of Finance (Building agency and Fedral public service
ICT (FEDICT). From the monitoring tools, one infers that other Federal Ministries are monitoring
this activity.
At the regions level (Re gion Wallonne, Vlaams Gewest and Re gion de Bruxelles-Capitale/
Brussels Hoofdstedelijk Gewest), only the Walloon Region has deployed an e-publication system
(www.wall-online.be). The Brussels region has expressed some exploratory interests in the Federal-deployed system.
At the level of e-tendering, a basic tool building on the e-catalogue concept has been implemented. Due to organizational changes, this activity has been withheld.
A possible target under consideration is the deployment of a e-payable demonstrator being able to
expedite final payment, calculating penalties and be used as a requirement gathering tool on digital
signature environment where Administration and Suppliers meet in one critical place. Immediate benefits for stakeholders (including the companies) are straightforward and immediate.
From this perspective, Belgium remains quite prudent and is putting his acts together in order to
increase the lessons-learned and sharing of experience with all interested European bodies.
5. Models adopted
Due to the quite recent technological progress and a national cautious attitude, the first modification to the baseline regulations stated earlier has been recently approved under the terms provided under the royal decree of 18 February 2004 allowing the use of electronic means in public procurement.
Structures involved
The same partners as previously listed, are involved in the early managemental structure : the
Chancellery, the Ministry of Defense, and the Federal public service ICT (FEDICT).
Procedures
Not applicable today.
21

This will take place by the global implementation of the new Directives. A whole new legislation
is being prepared for 2005 ^ begin 2006.
General principles
As a general rule, the national legislation related to e-procurement is or will be aligned on the
applicable European legislation.
This is the case, e.g. for the royal decree of 18 february allowing electronic means in public procurement processes.
The legislation in force to support e-procurement activities is based on the same legislation as described previously.
The national authorities though attempt to encourage, on a voluntary base, the migration to all
e-means, by adjusting some portion of the reference legislation. This is the case for the production
by the supplier of legal and formal documentation required by the legislation.
In Belgium, the deployment of e-procurement assets is, as in many EC-countries, at an early stage
of development.
At the federal level, the Ministry of Defense in close cooperation with the FEDICT mainly executes the management of the JEPP (Joint Electronic Public Procurement) system. Both organizations
intend to create, as quickly as possible, a joint structure, open to all national public procurement offices, to support and manage the actual system, design and procure the needed evolutions, ensure
for proper external and internal communication and promotion of use of electronic means.
In the same perceptive, the Federal Public Service of Economy is in charge of the management of
the Companies crossroads bank (Banque Carrefour des Entreprises (BCE)-Kruispuntbank ondernemingen (KBO).
As mentioned above, the BCE-KBO is providing e-services to all procurement agencies, be it
federal, regional and local.
At the Regional Level, the Walloon Region e-procurement activity is part of a larger concept that
is coordinated by the Wallonie-on-line Project based in Namur.
Other regional entities are in an early stage of adopting e-procurement tools/services.
By law, in order to become official, tenders are to be published in the bulletin of tenders (Bulletin
des Adjudications / Bulletin der aanbestedingen) that can only be consulted electronically at the
web-site www.just.fgov.be.
This bulletin is also released to specialized publishers who forward this information to their respective customers.
The introduction of e-publication means, such as JEPP, indicated some contradiction with the
above paper rules and a requirement for additional procedural management and software development. As it can be seen directly from the web-site (www.jepp.be), JEPP authorizes immediate advertising of RFQ to interested (registered) parties. Use of integrated URL permits direct download of the
actual RFQ terms and internal exploitation can start.
22
Belgium

As said above, the royal decrees have been modified by a royal decree of 18 february 2004 in accordance with the principles and rules on the communication and information exchange by electronic
means in the new Directives. Exchange by electronic means may now be used. Procedures like online auctions and market-places where not considered because this problem will be screened during
the coming implementation of the new Directives.
See paragraph above.
23
Cyprus
1. Legislative Framework
Directives
New Legal Framework
The Community Directives which have been assimilated into our new legal system, which is expected to be put into force as from 01st March 2004, are the following:
Directive
Title
Directive 93/36/EEC
Directive 93/37/EEC
Directive 92/50/EEC
Services Directive

Directive 93/38/EEC
Utility Directive
Directive 89/665/EEC
Remedies Directive
Directive 92/13/EEC
Remedies Directive
Classical Directives
- amended by Directive 92/57/EC and Directive 2001/78/EC -

2001/78/EC
Legal Remedies Directives
Existing legal framework

The existing legal framework which was put into force in 1998 was in line with the provisions of
the classical Directives.
General Principles
The fundamental principles generally applied in the field of public procurement in Greece, for
both above and below threshold contracts, include those laid down in the EC Treaty, and relevant secondary Community legislation (public procurement Directives). Among those are the principles of
equal treatment, non-discrimination, transparency, proportionality and mutual recognition.
Cyprus legislative framework on public procurement that is currently applied is in a transitional
period due to Cyprus forthcoming EU accession on 01.05.2004.
Therefore, the public procurement system that will be applying up to 01.03.2004 is based on the
Public Tender Law enacted in 1997 as well as on the Regulations that were put into effect in 1999.
25
Our existing legal system provides for prior administrative reviews regarding the whole procedure
that has been followed by a contracting authority up to the award of contract. This task is undertaken
by the Public Procurement Directorate (PPD) of the Treasury which is the centre of excellence on
this field. The PPD is in close conduct with all Governmental Ministries and Departments and assists
in the execution of procedures for the procurement of goods, services and works. The PPD is headed
by the Deputy Accountant General of the Republic. In addition, the officers of the Directorate assist
the members of the Main Tender Board and the Central Committee for Variations and Claims, whose
role and duties will be explained below, in their decision making process. Their main task is to assure
that the procedures used are in accordance with the Public Procurement Law and Regulations and
with any circulars issued by the Accountant General.
As far as the Bodies governed by Public Law are concerned, the public procurement procedures
are dictated by regulations drafted by the various organizations themselves having been based on the
Public Tenders Law of 1997.
Cyprus public procurement legal framework has been fully harmonized with the relevant Community Directives. The new legal framework is expected to be enforced by 01.03.2004. Specifically,
two new Laws have been prepared as follows:
^ Award of Public Contracts (Supply, Works and Services) Law of 2003 which, as the name itself
defines, concerns contracts for supplies, works and services.
^ Award on Contracts (Supply, Works and Services) of entities operating in the Water, Energy,
Transport and Telecommunications Sectors Law of 2003 which deals with procurement procedures concerning the utilities sector.
In order to apply the above legislation, relevant regulations have also been prepared. One set of
Regulations concerns all the various stages up to the award of a public contract and another set of regulations deals with the management of the contract.
This new legal framework defines the procedures that have to be followed for public contracts
whose value exceeds the thresholds as set by the Laws as well as for public contracts whose value falls
below the thresholds.
In addition, this legal framework provides for a hierarchical review procedure which will be carried out by an independent review body, namely the Tenders Review Authority.
2. Institutional Framework
The Structures responsible for Public Procurement and their duties
New Legal Framework
Under the new legal framework theTreasury of the Republic will be the Competent Authority for
all contracting authorities obliged to apply the legislation.
In general, the Competent Authority will be responsible for the following:
a. Proceed with spot checks at the Contracting Authorities in order to secure that the correct procurement procedures are followed;
b. Prepare circulars concerning the correct procurement procedures, the European Commissions
announcements and the local and European Courts decisions on procurement issues;
c. Collect and send statistics to the European Commission concerning contracts awarded;
d. Represent Cyprus in the relevant Steering Committees of the European Union and being a
member of the Advisory Committee on Public Procurement in the European Union where
policy making concerning the Union is formulated. The Directorate will also be present
with observer s status in the PublicTenders Steering Committee of the World Trade Organization;
26
Cyprus
e. Formulate policy concerning tenders after the necessary consultation with the Contracting
Authorities. Also to provide consultancy services to the Contracting Authorities;
f. Organize seminars on a regular basis on Public Procurement to Government officials, tenderers and other interested parties.
As far as Central Government is concerned, Tender Boards/ evaluation committees will be established at each Ministry/Independent Service to award contracts of unlimited value.
The Tender Boards will consist of:
^ the Permanent Secretary of the Ministry or his representative as the president;
^ four officers of the Ministry as voting members
The duties of the Tender Boards are:
(a) to award a contract;
(b) to reject any tenders that do not conform to the requirements of the technical specifications;
(c) to cancel a tender for specific reasons as mentioned in the Regulations.
Similar structures will also be set up at semi-governmental organizations and local authorities.
(a) General Information
The main task of the Public Procurement Directorate is to ensure full compliance with the provisions of the legislation currently in force, namely Public Tender Law Act 102(I)97. By the above aforesaid Law, the Accountant General or the Deputy Accountant General or his representatives have
been assigned to the post of the President of the Main Tender Board and of the Central Committee
for Variations and Claims.
(b) Awarding Authorities
(i) The Main Tender Board
The Main Tender Board is the Authorized Body, which has the power and duty to manage and
award in a prescribed manner, tenders. The composition of the Main Tender Board is defined by the
Public Procurement Law and is as follow:
a. The Accountant General or the Deputy Accountant General or his Representative as the President of the Board;
b. The Permanent Secretary of the Ministry of Finance or his Representative;
c. The Permanent Secretary of the Ministry of Commerce, Industry and Tourism or his Representative;
d. The Permanent Secretary of the Planning Bureau or his Representative;
e. The Director of the Department of State Purchases and Supplies or his Representative;
f. The Director of the Contracting Authority or his Representative, provided that he is not already
represented by any of the above members of the Board from (a) to (e).
The Attorney General and the Auditor General of the Republic or their representatives have the
right to participate at the meetings of the Main Tender Board as independent observers. They can express their views on the issued discussed and can require for these views to be recorded in the minutes
kept.
The Main Tender Board can award Contracts of unlimited value.
(ii) Ministerial Level
Tender Boards can also be established at a Ministerial level but can only award contracts of to
CYP100.000 (e 174.000 approx.).
27
The composition of these tender Boards is as follows:

^ President: senior officer of the Treasury that is posted at the Ministry;
^ Members:
a. two officers of the Ministry;
b. one officer of the contracting authority.
(iii) Departmental Level
Tender Boards can be established at the various Departments but can only award contracts up to
CYP30.000,00 ( e 52.000 approx.).
(c) Contracting Authorities
The Contracting Authorities are the Ministries or Departments which conduct a specific tender
competition for the award of a contract. Contracting Authorities initiate a tender competition provided
that the necessary funds are available.
In addition, they are responsible for ensuring that their own procurement procedures are in line
with the legal framework.
(d) The Central Committee for Variations and Claims
The Central Committee has the power and duty to approve in a prescribed manner, matters of
variations in plans. terms or specifications of the Public Contracts and claims from contractors and
the employer. The Central Committee for Variations and Claims consists of the following members:
a. The Accountant General or the Deputy Accountant General or his Representative as the Chairman of the Central Committee;
b. The Permanent Secretary of the Planning Bureau or his Representative;
c. The Permanent Secretary of the Ministry of Communications and Words or his Representative;
d. The Director of the Department of Public Works or his Representative;
e. The Director of the Department of Water Development or his Representative;
f. The Director of the Department of Town Planning and Housing or his Representative;
g. The Director of the Contracting Authority or his Representative, provided that he is not already represented by any of the above members of the Board from (a) to (f).
New legal framework
The new legislative framework provides for a hierarchical review procedure which will be carried
out by an independent authority, namely the Tenders Review Authority.
The aforesaid authority will be composed by a president and four members who are appointed by
the Council of Ministers.
The duty of theTenders Review Authority is to review acts taken or decisions reached by contracting authorities prior to the conclusions of any public contract, regarding supplies, public works and
services, for an alleged infringement of the law.
Furthermore, any economic operator aggrieved by any decision or act set aside by theTenders Review Authority can institute legal proceedings in a Court for the recovery of damages. In addition,
he reserves the right to file a petition to a court if he is still not satisfied with the verdict reached by
the Tenders Review Authority.
At present, the only review procedure that can be activated by an unsuccessful tenderer under the
existing legal framework is to institute legal proceedings in a court for the recovery of damages.
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Cyprus
3. Types of Public Procurement and Award Procedures

Types of Public Procurement
New Legal Framework
The various types of contract stem from the provisions of the new legal framework which correspond to those described in the EC Directives.
Under the existing legal framework, namely Public Tenders Law of 1997, there are various types
available for public procurement contacts depending on the nature of contract (works, supplies, services etc).
New legal framework
Under the new Laws, if the value of the contract which will be awarded exceeds the EU thresholds, then the contracting authorities have to make known their intentions by means of a notice in
the Official Gazette of the European Community as well as in the Official Gazette of the Republic
and in one newspaper of the local press.
If the value of the contract falls below the EU thresholds, there is no need for the invitation to
tender to be published in the Official Gazette of the European Community.
The Contracting Authority that initiated the procedures for the competition is responsible for
making it known by means of an indicative notice in the Official Gazette of the Republic and in
two other papers of the local press.
New legal framework
For the purpose of awarding public contracts, the contracting authorities will be using the open
procedure, the restricted procedure and the negotiated procedure with or without prior publication
of the contract notice depending on the case. The awarding procedures are now fully in line with
the EU Directives.
Under the existing Law, there are three different types of procedures for awarding contracts,
namely the open procedure, the selective procedure and the negotiated procedure.
Appeal Procedures
New legal framework
^ Administrative level
The new legal framework, apart from the option of instituting legal proceedings in a court, provides for a Tenders Review Authority to be set up with the power to review acts taken or decisions
reached by contracting authorities prior to the conclusion of any public contract, for an alleged infringement of the law.
29
The Tenders Review Authority may, upon the filing of an application for review, at the request of
the applicant, and provided that notice is given to the contracting authority at least two days prior
to the date of the hearing of the case, to be present and express its views, to order interim measures
in order to prevent further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure leading to the award of a public contract or the implementation
of any decision taken by the contracting authority, until a final decision is reached.
After the examination of the application, the Tenders Review Authority may, in the light of the information submitted:
a. Confirm the act or decision of the contracting authority;
b. Set aside such act or decision, if taken unlawfully and precedes the conclusion of the public
contract;
c. Order the deletion or amendment, of any discriminatory technical, economic or financial specifications in the contract documents or in any other document related to the contract award
procedure.
The Tenders Review Authority may order against any applicant whose claim is dismissed under
certain provisions of the laws, costs of the proceedings and, in addition, a fine, as it may deem appropriated in view of the circumstances of the case.
^ Judicial level
In addition to the above, any person aggrieved by any decision or act set aside by the Tenders Review Authority, shall be entitled to institute legal proceedings in a Court for the recovery of damages.
Furthermore, any person aggrieved by any decision of the Tenders Review Authority, may challenge such decision before the Supreme Court of Cyprus.
Currently, the only appeal procedure that our national legislation provides for is through the institution of legal proceedings in a court.
4. New Organizational and Managerial Arrangements
These are no important new organizational and management arrangements to be reported.
The Cypriot legislation does not define the concept of Public Private Partnership (PPP) and no
specific provisions exist in the current legislative framework.
Furthermore no telematic procedures for the procurement of goods and services have been introduced into the domestic legal system.
5. Models Adopted
The main type of PPP used in Cyprus is mainly contracts of the Design ^ Build ^ Finance ^ Operate (DBFO) concession type.
These type of contracts have been used in the cases of:
a. Construction of works by contractors in tourist ports and marinas in exchange to the concession of use and exploitation of the zone of the port and the marina for the specific time period;
b. Construction of two new airports by the successful contractor in exchange to the concession of
use and exploitation of the airport zone for a specific time period.
At present in Cyprus, there is no specific legislation concerning e-procurement. We are at a preparatory stage of developing an e-procurement system.
30
Cyprus
Specifically, during the current year a study is anticipated to be carried out for the implementation of e-procurement in Cyprus. In this respect, a tender will be invited.
In 2005, another tender is planned to be published regarding the design, development and commissioning of an information system on e-procurement implementing electronically the Public Procurement Procedures, including electronic auctions and electronic catalogues.
The system will be based on the relevant operational and functional requirements produced by
the working group on e-procurement of the Advisory Committee on Public Procurement in order
to be compatible across the European Union as well as on the study prepared in 2004.
31
Czech Republic
Directives
The obligation forcing the Czech Republic to harmonize its legal arrangement with the EU legislation resulted in a new Draft Act, which is fully compatible with the EU Directives. Currently the Chamber of Deputies of the Parliament of the Czech Republic has approved the Draft Act. The Draft Act
has to be approved by the Senate and signed the president before it comes into force.
General Principles
The characteristic feature of the current system is the fact that it is not based on the European
public procurement Directives but on the so-called model law on public procurement of goods, works
and services, which was adopted by the UN Commission for International Commercial Law.
The Czech Parliament carried the Act on Public Procurement under the Number 199/1994 Coll.
on 28 September 1994. The Act entered into force on 1 January 1995.
The obligation forcing the Czech Republic to harmonize its legal arrangement with the EU legislation resulted in new Draft Act, which is fully compatible with the EU law. Currently the Chamber
of Deputies of the Parliament of the Czech Republic has approved the Draft Act. Before the Act comes
into force the Draft Act has to be approved by the Senate and signed by the president Czech Republic.
The Office for Protection of Competition, headed by the Chairman, is an independent, central
body of state administration that was set up on the ground of the act on 24 May 1991, originally under
the name the Czech Office for Economic Competition. Over the period of 1992-1996 it has been working as the Ministry for Economic Competition. As it follows from the name, the Office carries out,
apart from surveillance over public procurements, powers related to protection of economic competition; it means detection and assessment of cartel agreements and abuse of dominant position and clearing of mergers. In addition, the Office decides on state aids granted in favor of competitors, which
in essence also result in restrictions of economic competition. The Offices power thus consists in creation of scope for fair conditions of competition in a market and it relates not only to the field of public
procurement.
33
Duties
The Office for the Protection of Competition powers in respect to public contracts area are as follows:
1. Review of acts taken by a contracting authority and review of procedures used by contracting
authorities when awarding public contracts including the possibility to cancel the decision
made by the contracting authority, order that the contracting authority perform a new selection, or possibly order the contracting authority to remedy the violation or cancel awarding
of the public contract;
2. Attendance of representatives of the supervisory body at the opening of envelopes containing
bids;
3. Provision of statistical data pertaining to public procurement and their publication;
4. Imposition of sanctions;
5. Other powers, e.g. preliminary ruling follow from a special procedural legislation - Rules of
Administrative Procedure.
Bodies responsible for appeals (legal nature and composition) and their duties
The Office for the protection of competition initiates the administrative proceedings on the basis of an
applicants proposal or on its own initiative, if there is reasonable suspicion that some contracting authority
infringed the law. The procedure has two stages and the second-stage decision is issued by the Chairman
of the Office as an appellate body, on the ground of a special commission set up on the basis of the Act.
All decisions of The Office for the Protection of Competition are subject to possible review by
regional administrative court in full jurisdiction. Furthermore, unsatisfied appellant may appeal to
High Administrative Court which acts on cassation principle.
Above mentioned is defined by Administrative Court Act 150/2002 Collection.
In respect with above-mentioned situation with the new Draft Act, we are no able to answer your
question. Please note the Act on Public Procurement 199/1994 Coll. currently in force is not in accordance with acquis comunitaire.
Unfortunately we are unable to answer your question since no mentioned new organizational and
managerial arrangements have been introduced.
5. Models adopted
Unfortunately we are unable to answer your question since no mentioned new organizational and
managerial arrangements have been introduced.
There is no e-procurement legislation in the Czech Republic.
However you can find on the internet at www.centralni-adresa.cz:
^ Announcement of a public tender;
^ Publication of a public tender;
^ Result of public tender;
^ Cancellation of a public tender;
^ Price difference.
The Draft Act foresees for example the use of information system on award of public contracts or
electronic submission of a tender signed by a secure electronic signature based on a qualified certificate.
34
Denmark
Directives
The following Community Directives on public procurement have been implemented in the domestic legal system of Denmark:
Directive
Title
Date
Remedies Directive
21 December 1989
Directive 93/36/EEC
14 June 1993
Directive 93/37/EEC
14 June 1993
Directive 92/50/EEC
Services Directive
18 June 1992
Directive 93/38/EEC
Sectoral Directive
14 June 1993
Directive 92/13/EEC
Sectoral Legal Remedies Directive
25 February 1992
Directive 97/52/EC
Amending Directives 92/50/EEC, 93/36/EEC and 93/37/ 13 October 1997

EEC
Directive 98/4/EC
Amending Directive 93/38/EEC
Use of Standard Forms for the Publication of Contract 13 September 2001

Notices
16 February 1998
General principles
The EC Treaty lays down some fundamental principles which are generally applicable and which
contracting authorities have to observe when awarding all contracts, including those whose value
fall below the threshold for application of the specific rules laid down in the Directives. All general
principles governing public contracts constitute the basis of the Danish legislation on public procurement. Among those are the principles of equal treatment, non-discrimination, transparency, proportionality and mutual recognition.
In Danish law the public procurement s are directly applicable since they are incorporated telles
quelles. The public procurement Directives have been implemented by the following governmental orders:
^ Governmental order number 649 of 30 July 2002 concerning the procedures for the award of
public works contracts in the European Union;
35
public supply contracts in the European Union;
public service contracts in the European Union;
^ Governmental order number 652 of 30 July 2002 concerning procurement procedures of entities operating in the water, energy, transport and telecommunications sectors.
Each Directive is printed as an annex to the respective governmental order. Thus the actual text of
the Directives constitutes the current legislation in the field of public procurement in Denmark.
The above mentioned governmental orders number 649, 650 and 651 implement the procurement
Directives on public works, supplies and services as amended by the European Parliament and Council
Directive 97/52/EC. Governmental order number 652 implements the utilities Directive as amended
by Directive 98/4/EC of the European Parliament and of the Council.
Furthermore all above mentioned governmental orders contain provisions, which implement the
Commission Directive 2001/78/EC on standard forms.
The Remedies Directives are implemented in Danish law by law number 415 of 30 May 2000 on
the Danish Complaints Board. Governmental order number 602 of 26 June 2000 contains further detailed rules concerning the Complaints Boards competence and organization, the procedures before
the Board etc.
Besides the Directives on public procurement there is a specific legislation in Denmark regulating
construction and work contracts below the threshold of Council Directive 93/37/EEC. The legislation
in question is law number 450 of 7 June 2001 on tendering procedures for work contracts and Governmental order number 595 of 9 July 2002 issued by the Danish Minister for Economic and Business Affairs.
Furthermore the Ministry of Finance has adopted a circular number 159 of 17 December 2002,
which contains instructions to the state authorities concerning purchasing of services and goods below
the thresholds of the EU-Directives.
At the moment there is no legislative activity in the field of public procurement.
The Danish Competition Authority is responsible for the government procurement policy and
for the legislative framework.
The Danish Competition Authority is an agency under the Danish Ministry of Economic and
Business Affairs. The Danish Competition Authority has been the responsible authority in the procurement area since 1993. The reason for placing the matters concerning the public procurement under
the auspices of the Danish Competition Authority is the increasing importance of the public procurement rules as a part of the competition rules.
The Danish Competition Authority strives to ensure the development of effective and free competition in the field of public contracts.
Duties
Among the essential tasks of the Danish Competition Authority is to ensure the proper understanding and application of the procurement rules.
Therefore an important part of the Authoritys work is to provide advice concerning the interpretation and the application of the rules on public procurement. For this purpose the Danish Competition Authority has also established a permanent telephone counselling service.
36
Denmark
Another important task of the Danish Competition Authority is to participate in EU-negotiations

and other international co-operation in the field of public procurement. The Danish Competition
Authority is also responsible for the implementation of the EU rules.
In addition the Danish Competition Authority plays an important role as a complaint authority in
the procurement area. The Authoritys capacity in this relation will be described in the following under
point 3.
In Denmark all contracting authorities - governmental departments and agencies, local authorities etc.- are solely responsible for ensuring that their own procurement procedures are in line with
the law. Contracting authorities can consult the Danish Competition Authority for advice and guidance. However ultimately the decision and the responsibility over a given procurement remains
with the contracting authorities.
Bodies responsible for appeals
If a company in Denmark finds that a public procurement procedure does not fulfil the requirements, the company can complain either directly to the Complaints Board or to the ordinary courts
(legal proceedings), or can raise the matter in a less formal manner with the Danish Competition
Authority (informal problem solving).
1) The Danish Complaints Board
The Complaints Board for Public Procurement is a specialized administrative board, which has
been set up by law to act as review body as required by the two Remedies Directives. It functions as
a quasi-judicial administrative body. Its function is to hear complaints and settle disputes arising
from alleged violations of EU rules on public procurement.
The Complaints Board was set up by law in 1991 to comply with the first Remedies Directive
from 1989. This legislation ^ and thereby the activities of the Board ^ took effect from 1 January
1992, but has later been amended to conform with the requirements of the second Remedies Directive
relating to the utilities sectors adopted in 1992. Detailed rules regarding the functioning of the Board
are laid down in a ministerial order issued by the Danish Minister for Economic and Business Affairs.
Appeal of decisions made by the Complaints Board lies with the ordinary courts.
Bringing a complaint about an alleged violation of EU procurement rules before the Complaints
Board is an option. Alternatively, such a complaint can be taken directly before the ordinary courts
or since 1996 also before the Danish Competition Authority. Whilst there is no precedent for using
the first alternative. The second alternative is used fairly often.
A few decisions by the Board, however, have subsequently been brought before the courts.
2) The Danish Competition Authority
The Danish Competition Authority got formal legal authority in 1996 to bring cases before the
Complaints Board. Where the Complaints Board in practice in the majority of cases expresses its opinion on the legality of contract award procedures at a stage where the contract has been awarded,
the Danish Competition Authority may step in to deal with a complaint during the procurement procedures. Through discussions with the contracting authority/entity the Competition Authority tries
to change the course in order to legalize the contracting authoritys procedures before the procurement procedure is closed and the contract is awarded. This way of dealing with complaints at the earliest stage possible during an award procedure corresponds exactly to the intentions behind the Remedies Directives in the public procurement area.
3) The courts
It is possible that complaints regarding violations of the procurement rules are, as mentioned
above, brought before the ordinary courts instead for first trial.
37
So far, no criminal proceedings have been instituted by the prosecution service against a public
contracting authority or entity for violation of the procurement rules.
Types of public procurement contracts
For any given contracting authority in Denmark, the types of public procurement contracts available correspond with those available under the EC Directives i.e. public works, public supply and public services contracts etc.
For contracts, which are not covered by the EC Directives on public procurement the Treaty free
movement provisions and the Treaty based principles of equal treatment, transparency, proportionality
and mutual recognition apply.
Forms of Advertising
Individual contracts falling within the EC Directives must normally be advertised at the start of
the award procedure. In addition, there is a possibility to publish advance notices or purchases which
the authority intends to make in the future, referred to as Prior Information Notices (PINs). The contract notice must be published in the Official Journal of the EU and its electronic equivalent Tenders
Electronic Daily.
Even if a competition is not required under the EC Directives, for example because the estimated
value of the contract falls below the relevant threshold, the authorities must ensure competition and
to abide by EC Treaty principles.
In Denmark the public procurement Directives apply directly for contracts which are above the
threshold of the Directives. Thus contracts covered by the Directives must be awarded in compliance
with the procedures regulated in the Directives. The following two sections describe shortly the types
of award procedures, which are regulated in the Public Sector Directives and the Utilities Directive.
a) Award procedures in the Public Sector Directives
Contracting authorities can use one of the following types of procedure:
1) The open procedure.
This is a formal tendering procedure under which the call for tender is publicly advertised and all
interested parties are able to tender.
2) The restricted procedure.
This is also a formal tendering procedure, whereby a notice is publicly advertised to invite potential suppliers to express an interest. Tenders are then invited from a limited number of companies selected by the authority.
3) The negotiated procedure.
Under this procedure the authority simply selects potential contractors with whom to negotiate,
and awards the contract to one of these firms without necessarily following any formal tendering procedure. There are two types of negotiated procedure:
^ the negotiated procedure with advertisement, under which the authority must advertise to find suitable
firms with which to negotiate;
^ the negotiated procedure without advertisement, whereby the authority is permitted to select a firm or
firms with whom to negotiate without any prior advertisement.
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Denmark
4) The accelerated procedure.

Under this procedure the authorities may use shorter time limits than the time limits for the normal restricted procedure. The accelerated procedure may only be used in exceptional cases, where urgency renders the time limits for the restricted procedure impractical.
5) The design contest.
The design contest is a competition, in which a contracting authority invites the entry of plans
and designs, which under the rules of the competition are to be judged by a jury and as a result of
which the authority is to acquire the use or ownership of the plans or designs which the jury selects.
As a general rule the contracting authorities must use either the open or the restricted procedure.
The negotiated procedure both with and without advertisement is an exceptional procedure, which
may be used, only in a limited number of cases, which are carefully defined in the Directives.
Individual contracts falling within the Works Directive, Supplies Directive or Services Directive
must normally be advertised at the start of the award procedure. In addition, there is a possibility to
publish advance notices or purchases which the authority intends to make in the future, referred to
as Prior Information Notices (PINs).
b) Award procedures in the Utilities Directive
According to article 20, paragraph 1 in the Utilities Directive the contracting entities may choose
to use one of the following types of award procedures:
1) The open procedure
2) The restricted procedure
3) The negotiated procedure (with advertisement)
4) Design contest
The rules for the open procedure are the same as in the Public Sector Directives. The time limit
for the procedure is 52 days or 36 days where a PIN has been published.
Furthermore according to article 20, paragraph 2 of the Utilities Directive the contracting entities
may use a procedure without prior call for competition in certain cases. This procedure is parallel to
the negotiated procedure without advertisement in the Public Sector Directives.
The Utilities Directive does not contain an explicit provision for accelerated procedure.
c) Contracts, which are not covered by the public procurement Directives
Furthermore within the public works sector the national law on tendering covers all contracts
from 0 DKK to the EU-threshold. In fact it also covers works contracts concluded by private persons
or entities if state or local authorities subsidise the concrete work. However the national regulatory framework offers flexible procurement methods, especially as regards the use of the negotiated procedure
or negotiation within other procedures. Below a sub-threshold, of 2 mill DKK (equivalent to
270.000 Euro) the negotiated procedure is always available.
As regards goods and services there is a set of guidelines from the Ministry of Finance, applicable
to state institutions. These guidelines as well are more flexible than the procurement Directives and
contain no procedural requirements below 500.000 DKK (equivalent to 70.000 Euro).
Appeal procedures
The following sections contain a brief description of the appeal procedures in Denmark.
39
1) The Complaints Board

a) Organization and Competence
The Complaints Board is an independent administrative board for the hearing of complaints concerning violation of the EU rules for the award of public contracts. The competence of the Board relates both to the public procurement Directives and the relevant rules of theTreaty on non-discrimination and the free movement of goods and services.
The Complaints Board is composed by a chairman and two vice-chairmen, all of them professional judges, and a number of expert members appointed by the Danish Minister for Economic
and Business Affairs among persons with knowledge of building and engineering, public procurement, transport and allied commercial activities.
b) Claimants
The Complaints Board only acts upon the submission of a complaint, i.e. a concrete case. The
Board is thus not empowered to give legal opinions on an abstract basis. A complaint may be submitted by any party with a legal interest in complaining, which means by anyone who has an individual
and significant interest. Thus, all potential suppliers, by definition, are entitled to file complaints.
Furthermore, a number of business organizations and public authorities have been granted a right to
complain by the Minister for Economic and Business Affairs. The authorities and organizations currently entitled to submit complaints are listed in a schedule to the above mentioned ministerial order.
Furthermore, the Board is entitled to allow a third party to intervene in its proceedings when the
case is considered to be of great importance to that third party. This applies even in cases where that
party does not itself fulfil the conditions for bringing action.
c) Procedures (including costs)
A complaint is submitted to the Complaints Board for hearing of the case at a charge of DKK
4.000 (corresponding to around e 500).
In practice, the Complaints Board deals with a case in much the same way as a court of law does.
Invariably, the first step is the exchange of pleadings. Notwithstanding, as a starting point, the statutory rule of the exchange of pleadings taking place in writing, cases are often heard by oral procedure.
The procedures are based on the right of confrontation and cross-examination. According to the general principles of administrative law in Denmark, all the documents of the case are open for public inspection, except documents containing the business secrets of tenderers. The decisions of the Complaints Board take the form of so-called orders formulated in the same way as judgements in civil cases
dealt with by the ordinary courts.
It takes on average a period of 5 to 6 months for the Complaints Board to decide on a complaint
brought before it. The Board handles on average 20-25 complaints yearly.
d) Possible Reactions
According to the Danish legislation implementing the two Remedies Directives, the power of the
Complaints Board are the following: the Board can either reject a case, e.g. if it falls outside its competence, or go into the merits of it, in part or in whole. In the latter case, the Board can 1) annul unlawful decisions, 2) impose interim measures, in which case the contract award procedures will be suspended, 3) impose upon the contracting authority/entity to comply with the rules (legalize its actions),
or 4) award damages. The Complaints Board ^ being an administrative body - does not have the power
to annul a contract that has been concluded.
However this power lies with the ordinary courts.
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e) Sanctions
If anybody should refuse to give the Complaints Board the necessary information for consideration of the case, the Complaints Board may impose a fine on the persons or contracting authorities/entities in question to force them to supply the information.
In cases where a claimant succeeds in his claim before the Complaints Board, the Complaints
Board may order the contracting entity to pay the costs to the claimant in connection with the claim.
The defendant contracting authority/entity, however, will not have its costs covered, even if the claim
is dismissed.
Contracting authorities/entities are liable to punishment if the procurement rules are violated.
Moreover, failure on their part to comply with a prohibition or enforcement notice, wilfully or by
gross negligence, issued by the Complaints Board is punishable by a fine. For criminal sanctions to
be initiated the contracting entity must be notified to the prosecution service. Criminal proceedings
have never been instituted by the prosecution against a public contracting authority or entity for violation of the procurement rules.
The Complaints Board can also deal with a subsequent claim for damages against a contracting
entity by the company incurring a loss as a consequence of a violation of the procurement rules by a
contracting authority/entity. In several cases the Board has imposed contracting authorities to pay substantial damages to companies which have suffered a loss.
2) The Courts
The appeal procedure in the Courts is regulated by the Administration of Justice Act.
3) The Danish Competition Authority
a) Competence
In order to increase the possibilities of swift identification of violations of the procurement rules
and a correspondingly swift treatment of complaints, the Danish Competition Authority was given formal legal authority to bring cases before the Complaints Board.
The statutory basis for this work lays exclusively on the powers ^ instituted by law - to lodge complaints with the Complaints Board.
At the same time the Minister for Economic and Business Affairs increased the control of compliance with the procurement rules, as the Danish Competition Authority was requested to take on a
more active and initiating role in this respect. The Minister asked the Authority to try to identify on
its own initiative assumed violations and examine complaints received regarding violations of the
rules.
The Danish Competition Authority is not legally entitled to make formal decisions or suspend a
procedure. It can only issue a recommendation to this effect and is authorized as mentioned to bring
a complaint to the Complaints Board.
Accordingly the objectives for the informal problem solving system is:
To ensure equal competition conditions in an informal and pragmatic way;
To intervene at the earliest possible stage ^ and before contract is signed;
To reach solutions in a speedy way, at the lowest conflict level possible and with a minimum of
costs.
As a consequence the Competition Authority deals only with cases, where contract has not yet
been signed and excludes cases already in legal proceeding.
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b) Claimants
In contrast to the situation for the Complaints Board, there is no limit, in principle, as to whom is
entitled to bring a case before the Danish Competition Authority.Where a complaint becomes known
to the Authority through a company or an organization, which does not have legal interest or has
not been granted a right to file a complaint with the Complaints Board, the Authority is nevertheless
obliged to examine the case if it is well founded.
No charge is payable on the submission of a complaint to the Danish Competition Authority, and
the Authority is not legally entitled to order a party to pay the costs.
The Competition Authority is not legally entitled to make formal decisions and has no formal authority to demand information for assessment of a case. Instead, the Authority requests that the
contracting authority/entity in question make a statement about the facts giving cause for the complaint. In nearly all cases, such a request is complied with.
When the Authority steps in, it is the Authority and not the claimant who is a party to the case.
The Authoritys assessment of a case is drafted as a recommendation to the contracting entity of
which the claimant receives a copy.
If the recommendation of the Competition Authority is not followed, the case can be brought before the Complaints Board for a decision.With the Complaints Board as well as with the Danish Competition Authority, the documents are open for public inspection according to the ordinary rules of
administrative law, except for documents whose contents include the business secrets of a tenderer.
In parallel with its lack of competence to make decisions, the Danish Competition Authority cannot issue an enforcement notice for the suspension of a procurement procedure or for compliance
with requirements for a procurement procedure to be made legal.
If a contracting authority/entity ^ exceptionally - has ignored the recommendation from the Danish Competition Authority as to how the procedures are to be changed to be in conformity with the
rules, the Authority is obliged to consider whether to bring the case before the Complaints Board.
In many instances, brief reports on the outcome of complaint cases brought before the Authority are
published.
In addition to the preventive effect vis-a' -vis the contracting authority or entity in question, publication has a substantial informative value to contracting authorities/entities in general.
To summarise:
The Competition Authority can: recommend a procedure to be stopped while the investigation is
ongoing, issue final recommendations for the procedure in question i.e. make changes in order to
be in conformity with the procurement rules or cancel and restart the procedure in question and bring
cases before the Complaints Board.
e) Sanctions
The Danish Competition Authority has ^ as described above - not been granted particular default
powers except for the option of bringing a case before the Complaints Board.
f) Status
The Competition Authority handles on average 40 complaints yearly, it uses on average 2 months
per case and the contracting authorities follow in general the recommendations before contract is
signed.
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g) How is procedural fairness ensured?

The contracting authority in question can bring the recommendation before the ordinary courts
and the companies preserve their right to bring a case before the Complaints Board.
h) Advantages vs. the formal systems
Informal problem solving is speedier, less expensive, solve problems before it is too late and the
cases remain at a low conflict level.
There is no Danish legal definition on PPP,.
The term PPP covers broadly any commercial relation between a state or local authority and a private party on production and/or delivery of services to the authority and/or directly to the citizens
for which the authority is responsible.
The notion of public responsibility excludes pure privatization (where the market and not the
public sector decides the amount of supply).
Thus PPP contracts is not a homogenous type of contracts. The term may include inter alia:
1. Traditional public procurement contracts, e.g. on the collection of waste;
2. Concessions, where the risks inherent in exploitation are transferred at least partly to the concessionaire, e.g. a cafeteria in side a public pool facility;
3. Private Finance Initiative (PFI) normally pairing a work contract with a service contract (e.g. on
maintenance), eventually combining different payment methods under 1 or 2 above.
4. Free choice of the citizens, whereby the public authority undertakes to pay to any approved (1)
private or public supplier for services to a citizen in accordance with specified quality-standards. This could include a degree of privatization where a citizen out of his own pocket
pays the supplier for surplus services.
5. Public/private companies established by an authority and a private company to provide public
services.
Legal framework
There is no horizontal legislation on PPP in Denmark, but specific legislation for various types of
contracts.
The legal bases for public procurement contracts in Denmark are:
EU-Directives on public procurement;
EU-Treaty (transparency etc.);
Danish legislation on state and local governments works contracts below EU-threshold;
Circular from the Ministry of Finance regarding state authorities services and goods contracts
below EU-threshold.
There is no general legislation on concessions (apart from the EU-rules on works concessions).
The ruling of the Teleaustria case is of course noted.
There is no general PFI-legislation. However, elements in a PFI-contract may be subject to public
procurement rules referred to above.
On 1 January 2003 an Act came into force on the free choice for elderly citizens to choose a private
supplier of personal and practical care and food delivery. A local authority may organize this free
choice in two manners: either to authorize all qualified private suppliers, who will be paid a price
equivalent to the historic costs of the authoritys in-house production, or to organize a tendering procedure, on which 2-5 suppliers are chosen, and paid in accordance with their respective offered price.
(1) Any qualified supplier or eventually chosen through tendering.
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According to the (unwritten) powers of local governments, municipalities may transfer hitherto
in-house production to public/private companies. However such companies may not sell other products than core public services, they may not go beyond the borders of the local districts, the local
authority may (normally) not hold a majority of the shares, and the company may not gain a profit.
In 1992, an Act on public/ private companies came into force, which allowed for profit-driven public/private companies. Such companies operate under the following restrictions: There is a ceiling (10
mill. DKK) for the financial involvement of a single municipality in this type of companies, and the
company may only produce services or goods based on public-sector know-how and private knowhow related hereto.
5. Models adopted
Usual forms of PPP in Denmark
Apart from traditional public procurement PPP is not commonly used in Denmark. However the
government is currently considering whether to test the viability of PFI in certain works projects.
The 275 municipalities participate in around 200 P/P-companies in all (under the rules referred to
4.5 above). It has been argued that public/private companies might be a possibility to increase outsourcing of local governments. By transferring production to a separate a municipality creates armslength, between the authority-role and the supplier-role without totally losing influence on the production. This may be seen as a first step towards full outsourcing. However the risk of distorting competition vis a vis private competitors will have to be analysed.
In Denmark there is no specific legislation concerning e- procurement, besides the procurement
Directives and the legislation on electronic signatures. Two electronic marketplaces called the Public
Procurement Portal and the National Procurement LTD are in function.
a) The Public Procurement Portal
The Public Procurement Portal is an electronic market place to which both private and public
purchasers and their suppliers have access, and whose functionality, interface, security and transaction
costs are regulated by the public sector. The portal was fully launched in January 2002. The portal is
characterized by the circumstance that the public sector hasnt invested in the system, but solely pays
for the use of it.
The Ministry of Science, Technology and Innovation is responsible for the establishment, which
is taking place in co-operation with the Ministry of Finance, who through the Agency for Governmental Management is in charge of the continued operation.
The Ministry of Science, Technology and Innovation has during the establishment of the portal
co-operated with seven pilots. The pilots have together with their suppliers played a big part in developing the portal. The Ministry of Science, Technology and Innovation plays an active part in the
further development of the portal, giving special focus to the creation of tools, which are to promote
both the private and public sectors use of e-commerce. Thus the focus of the portal is for the time
being the development of facilities addressing the after-contract stage, such as ordering and invoicing.
The use of the procurement portal is based on a framework agreement with the private provider
gatetrade.net. The agreement entails that the public sector sets the demands for the portal and that
gatetrade.net makes the system available against payment per transaction.
The establishment of the Public Procurement Portal is an important part in the strategy to make
procurement efficient. The portal aims at creating a common infrastructure for the trade between public units and suppliers.
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b) National Procurement LTD

National Procurement LTD is a central purchasing organization, which is organized as a company, owned by the state and the municipalities. National Procurement LTD is considered to be a contracting authority as defined in the EU-Directives on public procurement. National Procurement
LTD enters into a number of framework agreements concerning various standard products. All framework agreements, which National Procurement LTD is facilitating, are concluded in accordance
with the procedures and the requirements in the procurement Directives. The framework agreements
normally have duration of 4 years as a maximum.
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Estonia
By the year 2004 the following EC Directives shall be transposed into the domestic legal system
of Estonia:
Title
Effect Date
OJEC Reference
The Public Services Directive 92/50/EEC
18th June 1992
OJ:L209 24.7.92
The Public Supplies Directive 93/36/EEC
14th June 1993
OJ:L199 9.8.93
The Public Works Directive 93/37/EEC
14th June 1993
OJ:L199 9.8.93
Directive 97/52/EC (amending 1] 2] & 3] in light of GPA) 13th October 1997
OJ:L328 28.11.97
The Compliance Directive (Public Remedies) 89/665/EEC
21st December 1989
OJ:L395 30.12.89
The Utilities Directive 93/38/EEC
14th June 1993
OJ:L199 9.8.93
th
Directive 98/4/EC (amending 6] in light of GPA)
16 February 1998
OJ:L101 1.4.98
The Utilities Remedies Directive 92/13/EEC
25th February 1992
OJ:L76 23.3.92
Directive 2001/78/EC on standard forms
13th September 2001
OJ:L285 29.10.01
General Principles
The general principles constituting the basis of the national public procurement law of Estonia
are in general those derived from the Community Directives and recognized in all Member States.
These are, in particular, ensuring fair competition, efficient employment of pecuniary means, sound,
open and transparent proceedings.
The first Public Procurement Act in Estonia was passed in 1934. After regaining independence,
the Parliament passed the first modern Public Procurement Act in 1995 and it came into force in 1996.
The main legislation regulating Public Procurement in Estonia at present is the Public Procurement Act that entered into force in 2001. It has been amended several times and the last amendments
made in order to harmonize the Act with the EC Directives shall enter into force on 1st January
2004. Herewith also several new implementing Government Decrees establishing the procedural rules
for the updated State register of public procurements and the standard forms of the various model notices (established with the Directives amended with Directive 2001/78/EC), and a Decree of the Minister of Finance establishing the standard classification of public procurement objects on the basis of
the new Common Procurement Vocabulary shall come into force.
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The procurement rules for public authorities and other bodies governed by public law, as well as
for the utilities sector purchasers are regulated by the same Act. The Public Procurement Act with
the implementing Decrees implement all the Directives referred to above in Estonia.
In addition there are two Government Decrees, given on the basis of the Act regulating the organising of public procurement of works in more detail and regulating the compilation of the official
list of recognized contractors of works. The official list is maintained and compiled in compliance
with Article 29 of the Directive 93/37/EEC.
As some amendments to the Public Procurement Act shall come into force as from Estonias accession to the EU, some implementing Decrees concerning co-operation with the European Commission, attestation and conciliation are being prepared and shall come into force from the moment of accession as well.
InJune 2003 the Minister of Finance of Estonia has given an order to establish a working party for
the preparation of a new Public Procurement Act. The purpose of the preparation of the new Act is
to improve and order the public procurement legislation and to transpose the principles of the new Directives (consolidated public sector and utilities) that are expected to be adopted in near future.
Bodies Responsible for Public Procurement
The Ministry of Finance of the Republic of Estonia (http://www.fin.ee) is responsible for public
procurement policy and drafting legal acts in the field of public procurement. For that purpose the
Ministry of Finance co-operates with the Public Procurement Office, other Ministries and State
Authorities, contracting authorities and the third sector (associations of entrepreneurs, Chamber of
Commerce and Industry etc) by drafting public procurement law and designing public procurement
policy. The Ministry of Finance has been responsible for public procurement issues only since November 2002. The Ministry reckons that there has been shortage of operational support from the government institutions to raise administrative capacity of contracting authorities. In order to start with systematic training in the field of public procurement and to prepare training materials, detailed guidelines and manuals for the contracting authorities, the Ministry of Finance has designed a wide range
of activities that will start in December 2003.
The Public Procurement Office is the State supervision authority responsible for the supervision
of implementation of public procurement law. The Public Procurement Office belongs to the area of
government of the Ministry of Finance and the Minister of Finance nominates the Director General
of the Office.
In the sphere of supervisory activity and decision-making the Public Procurement Office is independent of the Ministry.
The main responsibility of the Public Procurement Office [http://www.rha.gov.ee] is State supervision of implementation of public procurement law to verify compliance of public procurements
with the requirements established in law. According to the Public Procurement Act and the Statute
of The Public Procurement Office its main responsibilities and tasks are:
^ State supervision of implementation of public procurement law;
^ Assessment of the functioning of the public procurement system and submitting proposals for
improving the system;
^ Implementation and maintenance of the information system relating to public procurement
(the State Register of Public Procurements);
^ Providing information relating to public procurements to international organizations pursuant
to international agreements entered into by the Republic of Estonia;
^ Review of protests (complaints) submitted by tenderers;
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Estonia
^ Taking actions in the event of offences e.g. initiation of disciplinary proceedings against persons responsible for infringement of the Public Procurement Act and the imposition of fines
for violations of the public procurement procedures in case of misdemeanour;
^ Notification of a police authority or a prosecutor of the facts known to the Office in case the
offence is not regarded just as a misdemeanour but might turn out to be a criminal offence;
^ Giving consultations on issues relating to public procurement.
An important task of the Public Procurement Office is the processing and maintenance of the
State register of public procurements, which exists only in electronic form. All information relating
to the public procurement, inter alia prior indicative notices, contract notices, design contest notices,
contract award notices and complaints submitted to the Public Procurement Office are to be published
in electronic form through the State register of public procurements which is open to public on the
Public Procurement web site. The rules for dispatching the procurement notices of the contracting
authorities in case the value of the public procurement contract is equal to or exceeds the relevant international value threshold, will be established by Decrees of the Government by the date of accession
and all notices shall be sent to the EC Office for Official Publications via the Register.
In addition to the Public Procurement Office the State Audit Office while carrying out its audits
in the Ministries and State authorities and internal auditors while carrying out their audits in the Ministries and local governments also exercise control over implementation of public procurement rules.
Estonian Competition Board has competence in case of restrictive agreements during the tendering
procedure.
For any given contracting authority in Estonia, the types of public procurement contract available
correspond with those available under the EC Directives.The three main distinguished objects of public procurement are public works, services and goods. The definitions of the objects have been harmonized with the EC Directives.
The procedural rules are the same for the most part in all three cases. Still, there are some additional rules for the procurement of public works prescribed by the Act and the corresponding Decree.
Most of the procedural rules for awarding public procurement contracts apply to contracts the estimated value of which is equal to or exceeds the national value thresholds, which are approximately
e 19.000 in the case of purchase of goods or contracting for services, and e 255.000 in the case of contracting for works.
In Estonia, contracting authorities have to send the electronic model notices for each public procurement contract or design contest, the value of which is equal to or exceeds the national value
threshold, to the State register of public procurements maintained by the Public Procurement Office.
All notices must not be made public before they have been disclosed in the register. If the estimated
value of the contract or of the awards to be paid and other payments to be made in the case of a design
contest is equal to or exceeds the international value threshold provided in the EC Directives, as
from the accession to the EU the notices shall be sent to the EC Office for Official Publications before
publishing them in the State register of public procurements.
If the estimated value of a public procurement contract is 750.000 SDR or higher (5 million SDR
in the case of works), a prior information notice must be sent to the EC Office for Official Publications
via the State register of public procurements as soon as possible after the beginning of the budget
year of the contracting authority or after learning about the need to award a public procurement contract.
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The minimum time limits for publishing the notices are in compliance with the EC Directives
and they apply to all public procurement contracts exceeding the national value thresholds. The contract award notice has to be submitted to the State register of public procurements within 10 days of
the award of the contract.
In case of public procurement contracts the value of which is below the national value threshold
and higher than e 6400 ( e 32000 in the case of works) the publication rules for contract award notices apply.
In Estonia there are four main procedures for awarding public procurement contracts: open, restricted and negotiated procedure, the latter with or without prior publication of a contract notice.
The open procedure, whereby all interested contractors may submit tenders, is the principal procedure. The contracting authorities are obliged to use this procedure unless the Act expressly provides
that they may use other procedures granting less transparency and openness than the open procedure.
The provisions for these procedures are aligned with the EC Directives.
The restricted procedure may be used if the contracting authority has approved objective selection criteria for the tenderers, and it is economically expedient to verify the qualifications of applicants
before submission of the tender documents. Under certain conditions the contracting authority may
predetermine the number of participating tenderers to whom he submits the tender documents after
qualifying them.
The negotiated procedures, as a general rule, should be used when the open procedure has failed
due to no tenders or no appropriate tenders submitted.
In order to promote transparency, the Estonian Public Procurement Act provides that before
starting the negotiations with tenderers in the course of a negotiated procedure without prior publication of a contract notice the contracting authority must submit a special notice concerning the details
of itself and the general data about the object of the contract to the State register of public procurements. He may start the negotiations only after the publication of this notice.
In case of public contracts awarded the estimated value of which is below the national value
thresholds, the contracting authorities have to follow certain principles provided in the Public Procurement Act. They must pursue the good practice of carrying out public procurement, guarantee the efficient employment of pecuniary means, and consult at least with three economic operators if there
are as many of them available. After awarding the contract the economic operator must submit a contract award notice on the conditions referred to above.
Appeal procedures and remedies
Pursuant to the Constitution of the Republic of Estonia Article 15, everyone whose rights and
freedoms are violated has the right of recourse to the courts. Hence, all cases of violation of law are
contestable in the court of law. In Estonia the Administrative Courts have jurisdiction over the public
procurement cases, except for the actions for the award of damages.
Each tenderer or person interested in participating in a tendering procedure who finds that a contracting authority has violated his rights or damaged his interests by violating some provisions of
the Public Procurement Act in the course of a tendering procedure may file a protest against the activities of the contracting authority. In particular, protests can be filed concerning invitations to tender,
tender documents or any decisions of contracting authorities mentioned in the Act and made during
the tendering procedure. Upon receiving a notice from the Public Procurement Office concerning
submission of a protest, the contracting authority is required to suspend the tendering procedure. If
the Office decides to satisfy the protest, it can annul the contested decision of the contracting authority
or require the contracting authority to bring the contract notice or the tender documents into conformity with the requirements prescribed by legislation.
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Estonia
The initiation of the procedure in the Public Procurement Office is not a prerequisite to court
proceedings and decisions of the Office can be contested in court.
A tenderer has the right to require a contracting authority to pay compensation for the costs relating to the submission of a tender, including the costs relating to the preparation of the tender and
the participation in the tendering procedure, if the tenderer proves that the procurement contract
would likely have been entered into with him if the contracting authority had not violated this Act.
If a tenderer submits false information or falsifies documents in the course of a tendering procedure or review of a protest, the tenderer shall pay compensation for the damage caused to the contracting authority or other persons through the submission of such information or documents.
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Directives
EU Directives on public procurement
The EU Directives listed below have been transposed into national legislation:
Directive
N.
Council Directive
92/50/EEC
the coordination of procedures for the award of public service contracts
Council Directive
93/36/EEC
the coordination of procedures for the award of public supply contracts
Council Directive
93/37/EEC
the coordination of procedures for the award of public works contracts
Council Directive
93/38/EEC
the coordination of the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
Directive
89/665/EEC
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
Directive
92/13/EEC
the coordination of the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport
and telecommunications sectors and Directive 97/52/EEC and Directive 98/4/EEC
Directive
2001/78/EC
use of Standard Forms for the Publication of Contract Notices
WTO Agreement on Government Procurement (GPA)

The first WTO Agreement on Government Procurement, called GPA, was signed in 1979. Finland
has been a party to the agreement since the very beginning. The agreement was completed in 1987,
and the latest GPA dates from 1994. At the moment, the GPA is undergoing a review. The Finnish legislation on public procurement complies with the GPA and the GPA is implemented nationally by
means of Decrees on public contracts with a value above the threshold.
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General Principles
The importance of public procurement to the Finnish economy is significant. The annual value
of public procurement in Finland amounts to about 19 billion euro, which is about 15 percent of our
gross domestic product (GDP). The regulation on public procurement aims at a more efficient use
of public funds in order to ensure the best possible price-quality ratio on public procurement financed
out of general taxation.
A further aim of the regulation on public procurement is to enhance the competitiveness of enterprises. The regulation on public procurement is aimed at ensuring the free movement of goods, services, persons and capital. Transparent and non-discriminatory tendering procedures open up opportunities for enterprises and service producers to offer their products and services also to the public sector to a larger extent than before.
Legislation in force in Finland
The Finnish legislation on public procurement is based on the Community law. The term Community law includes besides the Treaty establishing the European Community also Directives.
Public Procurement Act
(Finnish Statute N.1505/1992, amended by 1523/1994,725/1995,1247/1997, 633/1999,1009/2001,1530/2001);
The Public Procurement Act covers the scope, the central principles of contract procedures and
remedies. The Act applies to all public procurement regardless of the value - also to contracts with a
value below the threshold and to so-called secondary services.
Decree on public supply contracts concerning the procurement of goods and services, and on works contracts exceeding given threshold values (380/1998).
Public procurement Directives concerning supplies, services and works have been implemented
by this decree.
Decree on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (381/1998).
The Utilities Directive has been implemented by this decree.
The rules in above mentioned decrees are very similar to those in the Directives above.
Other provisions:
^ Decree on Government Procurement (1416/1993);
^ Decree on Government works and supply contracts (436/1994);
^ Decree on public contracts to which the Public Procurement Act does not apply (342/1994);
^ Decision of the Ministry of Trade and Industry on the advertising for public contracts (909/1994);
^ Decision of the Ministry of Trade and Industry on the adoption of the general terms of government procurement (1417/1993).
Pending legislation
The new legislative package presented and some latest Curia cases have made it necessary to reform our national legislation. National case law has also revealed the need to make some clarifications,
especially concerning procurement below the threshold value. At the moment, drafting has been
started as a part of the duties of government officials. In addition, a national working group has
been appointed to prepare the new public procurement legislation.
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Finland
Structures responsible for public procurement
Ministry of Trade and Industry
The Ministry of Trade and Industry has the overall responsibility for issues relating to public procurement. It is responsible for the follow-up of reforms and topical issues relating to public procurement. The Ministry is further responsible for the drawing up of national legislation on procurement
and on monitoring the compliance with it. The Ministry shall, further, use its influence when public
procurement issues are discussed within the EU and the World Trade Organization (WTO). In some
cases, the Ministry also has the power to take measures if the legislation is not applied correctly. The
Ministry also provides general guidance, training and advice.
Web site: www.ktm.fi/julkisethankinnat
Ministry of Finance
The Ministry of Finance has the responsibility for the economic guidance on public procurement. It also provides guidance on State units procurement.
Hansel Ltd - a central purchasing body
At the moment, Hansel Ltd is the only central purchasing body in Finland. State units are allowed
to purchase works, supplies and services from or through it. Hansel Ltd also provides consulting services concerning public procurement. Hansel Ltds legal status is that of a limited liability company.
It is a State-owned company and a contracting authority in itself.
Contracting entities
The Public Procurement Act applies to State authorities, municipal authorities and to some legal
persons governed by public law. Also public utilities, entities responsible for the water and energy supply and transport shall apply the Public Procurement Act unless otherwise provided. The Public Procurement Act applies further to all contracts concluded by any entity for which the State, municipalities or some other contracting entities have granted aid that covers more than 50 percent of the value
of the contract.
The contracting entities governed by the Public Procurement Act shall apply tendering procedures in their procurement. The main purpose of the Public Procurement Act is to promote competition and a fair and non-discriminatory treatment of applicants and candidates. Specific procedures
laid down in government decrees shall be applied to contracts with a value exceeding the threshold value.
Complaint and appeal bodies (legal nature and composition)
Market Court
The Market Court was established in 2002 and has been functioning since the 1st of March 2002.
Before that it was the Competition Council that handled public procurement issues. The Market Court
is a Finnish national review body and an independent Special Court,. Administratively it is subordinate to the Ministry of Justice.
A matter falling within the competence of the Market Court may not be appealed against subject to
any other body on the grounds that the decision is contrary to the Public Procurement Act.
Market Courts web sites www.oikeus.fi/markkinaoikeus
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Administrative courts
Administrative courts are district courts, which may handle procurement cases when an appeal
has been filed against a decision of an authority. However, administrative courts can examine appeals
only from a legal viewpoint, which means scrutinising that a competent authority has made the decision concerned, that there does not exist incompetence due to the likelihood of bias and the decision
is not against the law.
Magistrates courts
Magistrates courts are lower district civil courts, with which an appeal can be lodged when one
wants to get compensation for damages incurred. The hearing to be held at a magistrates court is a normal civil hearing. The role of magistrates courts in public procurement cases is very small, because
only very few cases have been put before a magistrates court by tenderers.
Classical sector
In Finland, the municipal sector is the biggest supplier. There are 446 local authorities in Finland,
and the Finnish contracting authorities are mostly relative small. Finnish local authorities provide basic
public services for the residents. The most important basic services are those related to education, social welfare and health, and the technical infrastructure. Other areas of responsibility include water
and energy supply, waste management, street and road maintenance and environmental protection. Local authorities seek also to promote commerce and employment.
A municipality may carry out its duties by itself or in cooperation with other municipalities. It
may also buy services from the private sector. Many of the services concerned are provided jointly
with other local authorities. Services in the social and health care sector that are outsourced to a larger
extent than before are the childrens day care and the housing services for elderly people. But municipalities also buy, for instance, meal services, sanitary services and maintenance services to quite a large
extent.
State units consist mostly of Ministries and their subsidiaries. Nowadays services account for the
greatest part of procurement also in the State sector. In the year 2002, services accounted for 51 of
all procurement, rents included.The proportion of rents was 19%. (1) Services - mentioned in the order
of magnitude - consist of repair and maintenance services, works, different office services, travel services and sanitary and laundry services. Information on Finnish municipalities and their functions is
available from www.kunnat.net.
Utilities sector
The utilities sector consists basically of municipal transport authorities and public enterprises providing public transport services by bus, rail or underground railway or maintaining a
network for that purpose. In addition, there are many municipal entities or public enterprises
producing and distributing electricity and water, but there is only an entity for rail services. There
are further some port operators and some municipal and public enterprises to take care of airport
installations.
(1) Rents excluded the proportion of services was 70%.
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Purpose of the advertising procedure
The purpose of advertising is to increase transparency of information on tendering procedures
and award of contracts. To ensure genuine competition, it is important that all enterprises are provided
with a balanced range of information on ongoing tendering procedures. This is a way to ensure genuine competition. It also offers an opportunity to obtain favourable conditions. A further reason for advertising is that a contracting entity cannot be aware of all potential suppliers. The principle of transparency relating to public procurement has been derived from the non-discrimination principle of
the Treaty establishing the European Community.
Advertising of contracts with a value below the threshold
As from 15th October 2001, notices concerning contracts with a value below the threshold could
be published, in the first place on the JULMA web site, which is an information channel and open
electronic market place. All notifications sent to JULMA are also published in the Supplement, called
Julkiset hankinnat, to the Finnish official journal.
JULMA is a project launched by the Ministry of Trade and Industry. The aim of the project is to
save costs and enhance competition. JULMA is particularly suited for notices of contracts with a value
below the threshold and for contracts with a value above the threshold of which no EU-wide notification has to be published (such as service contracts referred to in Annex B).
On the web site of JULMA, suppliers and contracting entities may search contract notices using
different search criteria. Notices can be published on the JULMA web site without charge. Notices
of contracts may be published also in newspapers and professional publications, and on the Internet,
on the web site of the contracting entity concerned. Advertising should take place to an extent that ensures sufficient competition.
If no notice is published of a contract with a value below the threshold, the contracting entity
shall, however, make sure that a sufficient number of candidates get an invitation to tender. The case
law stipulates that five candidates are considered to be a sufficient number of candidates.
Contract notices published on the JULMA web site are either in Finnish or in Swedish. Contracts
with a value below the threshold or notices of service contracts referred to in Annex B (www.ktm.fi/julma)
Advertising of contracts with a value above the threshold
In the case of contracts with a value above the threshold, advertising is obligatory. A contract notice shall be published in the first place in the Supplement to the Official Journal of the European
Community. In Finland, contract notices are published in the Finnish Supplement, called Julkiset hankinnat, which is issued once a week. Breach of the obligation to notify constitutes a substantial procedural defect, which can result in the annulment by the Market Court of a contract awarded.
Depending on the tendering procedure used, suppliers may be invited to tender on a basis of a
notice or a separate invitation to tender. They may, further, be requested to submit an application for
participation in tendering.
A post-award notice shall be published after the contract has been awarded.
Official journal of the EU
Enterprises are able, also by means of computer networks, to follow the notices of European contracts that have been published. The Supplement to the Official Journal of the European Community
comprising notices of public contracts is available on the Internet in the form of a database called Tenders electronic daily (TED). TED contains information in the form of summaries of all public contracts to be awarded in countries that are members of the European Union or parties to the Agreement
on Government Procurement (GPA).
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Contracts with a value above the threshold
The award of public contracts with a value above the threshold are governed by the provisions of
the Decree on public supply contracts concerning the procurement of goods and services, and on
works contracts exceeding given threshold values (380/1998), i.e. the so-called Procurement Decree.
The Decree comprises provisions on special procedures to be applied when awarding public contracts
with a value exceeding a certain amount in Euros, on advertising for public contracts and the time limit for the receipt of tenders.The EU Directives relating to the coordination of procedures for the award
of public service contracts, public supply contracts and public works contracts have been implemented
in Finland by the aforementioned Decree.
Open procedure
The open procedure is the most simple and frequently used procedure for awarding contracts
with a value above the threshold. In the open procedure, the participation of eligible contractors is
not restricted. All interested suppliers are allowed to tender and order the tender documents. In a simplified procedure, the contract notice as such may serve as an invitation to tender (1 million kg potatoes wanted, for instance). A contracting entity may send tender documents directly to those candidates
it would wish to be involved. This may, however, be done first after the publication of the contract notice in the Official Journal of the European Community.
Restricted procedure
In the case of contracts with a value above the threshold, a contracting entity may also apply the
restricted procedure. In the restricted procedure, the contracting entity may limit the number of suitable candidates it will invite to tender on the basis of its own objective, non-discriminatory criteria.
The contracting entity shall indicate in the contract notice the number of candidates it intends to invite
and the criteria on the base of which candidates have been selected. In restricted procedures, the minimum number of candidates shall be five, insofar as there are enough suitable candidates. However,
the number of candidates should not exceed 20.
An invitation with a request to participate can be sent also directly to those candidates the contracting entity would wish to be involved. This can, however, be done first after the publication of
the contract notice in the Official Journal of the European Community.
Negotiated procedure
In negotiated procedures where a contract notice is published, the contracting authorities shall simultaneously and in writing invite the selected candidates to negotiate.
The negotiated procedure where a notice is published can be used for service contracts:
^ in exceptional cases where the nature of the services or the risks attaching thereto do not permit
prior overall pricing by the tenderer;
^ where the nature of the service to be procured is such that contract specifications cannot be established with sufficient precision to permit the award of the contract by selecting the best tender in accordance with the rules governing open or restricted procedures.
The negotiated procedure where a contract notice is published, can be used for works contracts:
^ where the works are performed solely for purposes of research, testing or development and not
with the aim of ensuring profitability or recovering research and development costs;
^ in exceptional cases where the nature of the works or the risks attaching thereto do not permit
prior overall pricing by the tenderer.
The procedure laid down in Section 13 of the Decree does not apply to supply contracts.
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In the negotiated procedure with publication of a contract notice, the minimum number of candidates shall be three, insofar as there are enough suitable candidates.
Contracting entities may use the negotiated procedure without prior publication of a contract notice when in response to an open procedure or restricted procedure:
^ no tenders at all have been submitted;
^ no suitable tenders have been submitted;
^ provided that the original terms of the contract are not substantially altered.
Contracts with a value below the threshold and service contracts referred to in Annex B
Contracts with a value below the threshold are governed by the provisions of the Public Procurement Act (1505/1992). The procurement procedure applied to contracts with a value below the threshold is more flexible than that applied to contracts with a value above the threshold, but also in the former case, advantage shall be taken of existing possibilities of competition. Regardless of the value of
the procurement, a tender notice must be published or a sufficient number of tenderers, which is in
proportion to the size and quality of the procurement, shall be otherwise invited.
The same provisions also apply to service contracts referred to in Annex B to the Procurement
Decree. The Procurement Decree applies to secondary services of this kind only when the threshold
has been exceeded. In that case, a post-award notice shall be published in the Supplement to the Official Journal of the European Communities. The provisions of the Procurement Decree on technical
specifications also apply to service contracts referred to in Annex B.
Open procedure
The award of contracts with a value below the threshold and service contracts referred to in Annex B is, in general, governed only by the provisions of the Public Procurement Act. The Public Procurement Act states that regardless of the value of the procurement, a tender notice must be published
or a sufficient number of tenders shall be otherwise invited,.
The term open procedure, means that a kind of notification is made with regard to the contract.
All interested suppliers have thus an opportunity to take part in the tendering procedure. The notification can be made, for instance, through an electronic information channel called JULMA.
In the case of contracts with a value below the threshold, restricted procedure, is applied when
an invitation to tender is sent directly only to certain suppliers. In this case, no notice is published
on the contract. The number of candidates can be limited and be tailored to the size and quality of
the procurement. Case law stipulates that the minimum number of candidates, mentioned in the Decree on public supply contracts concerning the procurement of goods and services, and on works contracts exceeding given threshold values, i.e. five candidates, can be considered a sufficient number, insofar as there are enough suitable candidates.
It should be noted that, in the case of contracts with a value below the threshold, all interested
suppliers have the right to submit a tender. An invitation to tender shall, in other words, be sent
also to those suppliers who did not receive an invitation in the first place, but who ask for it and
wish to tender. A tender of this kind shall be taken into consideration in comparative selections if
the tender meets the criteria set out for tenderers and if the tender does conform in a material way
with the invitation.
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Direct purchase
Contracting entities may award contracts without a call for competition only in special circumstances. As special circumstances can be regarded the small value of the contract or conditions set
out in the Decree on public supply contracts concerning the procurement of goods and services,
and on works contracts for the use of direct negotiated procedure. Neither the Act nor the Decree specifies what is meant by small value.
Framework agreements
Framework agreements are widely used especially in the case of supply contracts. They provide a
suitable vehicle for common and standardized products. It has already been used to some extent in a
very similar way than proposed in new Directives.
Framework agreements have also been used in connection with service procurements in the case
of typical maintenance services or e.g. with continual planning work.
Appeal procedures
General rules and the Directives concerning legal remedies are implemented by the Public Procurement Act.
Compensation
The one who has placed a candidate, tenderer or contractor at a disadvantage by a practice contrary to the Public Procurement Act or to provisions or regulations issued in pursuance thereof shall
be obliged to pay compensation for the harm caused. In such a case, a claim shall be submitted to a
court of general jurisdiction, i.e. the magistrate court.
Market Court
How to appeal to the Market Court
A claim or petition to the Market court has to be made in writing within 14 days after the receipt
of a decision on public procurement i.e. after having been informed of the name of the successful tenderer or possible exclusion from the competition, etc. The tenderers are considered to have been informed in seven days from the dispatch of the document, unless otherwise shown. The petitioner
shall, before submitting a petition to the Market Court, inform the contracting entity in writing of
his intention to bring the matter before the Market Court.
The Market Court shall not consider a petition concerning the contract award procedure of the
entities operating in the public utilities sector if the procurement is connected with the utilities activity
and its estimated value is lower than the threshold value.
A matter falling within the competence of the Market Court may not be appealed against subject
to any other body on the grounds that the decision is contrary to the Public Procurement Act.
Sanctions imposed by the Market Court
On application, the Market Court may:
^ Totally or partially set aside a decision of a contracting entity;
^ Forbid the contracting entity to apply a section in a document relating to the contract or otherwise to pursue an incorrect procedure;
^ Require the contracting entity to correct its incorrect procedure;
^ Order the contracting entity to make a compensation payment to a part that would have had a
real chance of winning the contract if the procedure had been correct.
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Compensation payment
The compensation payment is a secondary legal remedy. A compensation payment can be ordered
to be made if other measures could inflict injury on the opposing party or the rights of other parties,
or on the public interest, greater than the advantages which it brings or when the petition has been
submitted after the signing of the supply contract. When determining the amount of compensation,
the nature of the error or neglect of the contracting entity, the total value of the contract, and the costs
and injury incurred by the claimant shall be taken into consideration.
Proceedings before the Market Court
The right of action lies with the party concerned that may initiate proceedings. Proceedings may
also be instituted by the Ministry of Trade and Industry, or by the Ministry of Finance in the case of
proceedings relating to contract of public works.
Appeal against the judgement of the Market Court
It is possible to appeal against the decisions made by the Market Court to the Supreme Administrative Court. An appeal has to be made within 30 days from the decision of the Market Court.
Lodging a complaint with the European Commission under Article 169 of the Treaty of Rome is
also possible.
PPP
There are no special provisions on public-private partnerships (PPP) in the Finnish legislation.
Nor are there any other legal or administrative provisions on PPP. The Finnish legislation does not
place any obstacles in the way of different forms of co-operation between the public and the private
sector, though some legislative changes might be useful in order to introduce more flexibility into different forms of co-operation.
The term Public-Private Partnership, has most commonly been understood to correspond to
Private Finance Initiative (PFI) contracts, which include some kind of private funding to a public project. However, also different other forms of co-operation have been assessed as PPP projects in Finland. The co-operation may include, for example, financial arrangements, execution of works or services, service concession, or it can exist in a form of joint venture set up by a public authority and a
private sector operator.
Private finance has been applied in particular to road projects. The Helsinki-Lahti motorway was
the first privately funded road construction project in Finland. The compensation paid to a private
company responsible for the construction depends on the volume of traffic on the motorway. Different
forms of private financing have been considered also in other road construction projects. Private finance has been applied also to public building projects. Private companies have been given the responsibility for the construction and maintenance of school buildings, for instance. In such a case, the municipality pays rent for the facility used for schooling and other public purposes, and pays compensation to the private company concerned for the maintenance of the building and for other services it
provides. Also the State has used this model to some extent.
5. Models adopted
In Finland, there is no new legislation governing public-private partnership arrangements.
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6. E-procurement
General principles
The State authorities, local authorities, joint municipal authorities and other contracting entities
have to follow the public procurement procedures of the EU.The possibilities of allowing the contracting entities to prescribe tenders submitted electronically according to the amendments 97/52/EC and
98/4/EC of the Directives are fully used.
The current public procurement legislation does not include any practical or strategic rules on
electronic purchasing. Certain centralised purchasing techniques have been developed to increase competition and to streamline public purchasing. For example, the central contracting body, Hansel Ltd,
awards public contracts and concludes framework agreements on behalf of governmental contracting
authorities. At this moment, Hansel Ltd has the most advanced system covering the whole procurement cycle. There are few coalitions of municipalities and other local authorities that have their own
e-Procurement development projects underway. The introduction of electronic tools to public procurement is mainly initiated with e-Invoicing due to a joint governmental paperless bookkeeping project
and the advanced payment procedures used in Finland.
An Advisory Board on Procurement has been appointed to develop procurements inter-sectorally and to promote cooperation between administrative sectors. The Advisory Board is drafting a
governmental procurement strategy. One of the main issues in the strategy are actions necessitated
by the introduction of electronic tools.
The Julkiset hankinnat, gazette provides a possibility to use electronic forms of advertising, and
contract notices will be sent automatically to the Official Journal of the EC and to TED. JULMA
web sites provide a possibility to advertise via Internet using its totally electronic system. It is already
quite common to get tendering documents from the Internet or by e-mail.
Telematic purchasing procedures are, so far, not very commonly used in the public sector.
Pending legislation
Implementing a pan-European e-procurement system with all the features and options made possible by the forthcoming EU law poses a great challenge. Finland is planning to do the work stepby-step focusing first on the immediate requirements resulting from the legal package. Maturity of individual technologies should be achieved simultaneously so that solutions that are not broadly available
would not be required. If immature technology is presumed to be used, it could constitute a major barrier to the adoption of e-procurement, and at least significantly slow down it.
In Finland, the focus is solely on e-notification, e-tendering and e-awarding phases. Technologies
for e-signatures are at the moment too incompatible to be used as the only acceptable security solution.
Our idea is that the participation in a tender procedure should be a simple operation accessible to
any person or business, which has a computer with an Internet connection and an e-mail system.
E-procurement systems can be implemented in different ways also according to the coming legislation. Some solutions will have more options than the others. A simple system could comprise
only a website for e-notification and e-mail for e-tendering. Security issues could be solved initially
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using internal security measures only. It is unlikely that only one e-procurement solution will be dominant in the future. Comments on individual issues are dependent on the type of solution. Some flexibility is needed.
Because of decentralized implementation of electronic tools in public sector procurements in Finland the two most important issues are:
^ Improving the services and the use of the Electronic Information Channel JULMA. The purpose is to enlarge the scope of JULMA to all public procurement notices and at the same
time increase the accessibility of the public procurement markets and the use of electronic purchasing.
^ Specifying necessary standards for eProcurement:
e-Invoicing (2003);
e-Ordering (2003-2005);
e-Tendering, e-Awarding and e-Contracting (2003-2006).
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France
All of the Community Directives on public procurement have been incorporated into French law.
Note that the scope ratione personae of the Community Directives is broader than the scope of the French
Public Procurement Code. Hence, on incorporation, France not only amended the Public Procurement Code (which is regulatory), but also had to make provisions (legislative) to cover the entities referred to in the Community Directives that are not within the ambit of the Public Procurement Code.
NB: The texts below are available in French (and also in English and Spanish in the case of the
Public Procurement Code) on the www.legifrance.gouv.fr site.
Incorporation of the Directives
Classical Directives (supplies/works/services)
Directives 93/36 and 93/37 of 14 June 1993 and Directive 92/50 of 18 June 1992 on the coordination
of procedures for the award of public supply, works and service contracts respectively have been incorporated:
^ For persons subject to the Public Procurement Code (PPC): by Decree n. 2001-210 of 7 March
2001 adopting the Public Procurement Code;
^ For persons not subject to the Public Procurement Code, by:
Amended Act n. 91-3 of 3 January 1991 on the transparency and conformity of procurement
procedures and on rules requiring certain contracts to be advertised and open to competition;
Amended Decree n. 92-311 of 31 March 1992 on rules requiring certain public supply, works
and service contracts to be advertised and open to competition.
Council Directive 93/38/EEC of 4 June 1993 coordinating the procurement procedures of entities operating in the water, energy,
transport and telecommunications sectors
^ For persons subject to the Public Procurement Code: incorporated by Decree n. 2001-210 of 7
March 2001 adopting the Public Procurement Code;
^ For persons not subject to the Public Procurement Code, incorporated by:
Act n. 92-1282 of 11 December 1992 on procedures for the award of certain contracts in the
water, energy, transport and telecommunications sectors (French Journal Officiel of 12 December 1992);
Decree n. 93-990 of 3 August 1993 on public procurement procedures in the water, energy,
transport and telecommunications sectors.
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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
Without distinguishing between persons subject and persons not subject to the Public Procurement Code: incorporation by the act of 4 January 1992 (French Journal Officiel of 7 January 1992) and
by Decree n. 92-964 of 7 September 1992 amending the Administrative Courts Code and the Civil Procedure Code and rounding out the above-mentioned act of 3 January 1991.
The pre-contractual summary proceedings are defined by Article L. 551-1 of the Administrative
Justice Code in its wording derived from Act n. 2000-597 on summary proceedings before the administrative courts.
Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors.
Incorporated by:
^ Act n. 93-1416 of 29 December 1993 on remedies regarding the award of certain public supply
and works contracts in the water, energy, transport and telecommunications sectors;
^ The ministerial order of 20 September 2001 stipulating the conditions in which the certificates
of conformity of procurement procedures and performance of public contracts can be issued
to public bodies operating in the drinking water, energy, transport and telecommunications sectors;
^ The ministerial circular of 24 September 2001 on the implementation of a conciliation procedure for disputes concerning the contract award conditions in the water, energy, transport
and telecommunications sectors.
Other important legislation governing public procurement
^ Act n. 75-1334 of 31 December 1975 on subcontracting.
^ Act n. 85-704 of 12 July 1985 on the public contracting authority and its relations with the private contractor (currently being amended to comply with Community legislation).
^ Act n. 93-122 of 29 January 1993 on preventing corruption and transparency in economic life
and public procedures.
^ Act n. 2001-1168 of 11 December 2001 on urgent economic and financial reform measures.
The Public Procurement Code currently in force derives, as we have seen, from Decree n. 2001210 of 7 March 2001. A new reform is currently underway with two main aims: firstly, to simplify
the formalities and, secondly, to facilitate and modernize public procurement by incorporating some
of the flexibility provided for by the Directives, which were not assimilated by the previous reform,
and the improvements made by the competitive dialogue procedure to the performance-based bidding
procedure.
The simplification measures are based on the practical problems reported by public buyers and
their suppliers.
With the aim of making public buyers more professional and accountable, the draft decree currently submitted to the Conseil dEtat (French supreme administrative court) clarifies the obligations
binding on public buyers both below and above the thresholds, simplifies how to determine the applicable invitation to tender procedure when this depends on a threshold, clarifies the level at which needs
should be assessed, and streamlines the application presentation formalities.
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General principles governing public procurement

The principles guiding public procurement in France are stated right from the first article of the
Public Procurement Code: they respect the principles of free access to public procurement, equality of treatment of tenderers and transparency of procedures.
Moreover, public procurement must always be guided by the concern for its efficiency and the
sound use of public monies.
The structures responsible for public procurement and their duties
An appropriate balance is sought in the organization of public procurement between the guarantees of accountability and transparency and the efficient running of procedures.
It is worth making a distinction between the players responsible for managing procurement and
those responsible for supervision and advisory services.
As regards management, the general organizational option is to place the responsibility for awarding and performing a given contract on the echelon nearest to the need that this contract sets out to
satisfy, whether central or devolved administrations, independent administrative authorities, public establishments, local or regional authorities, public enterprises or enterprises with special or exclusive
rights. Moreover, certain public industrial and commercial establishments have chosen to statutorily
abide by the Public Procurement Code principles and rules. The purpose of the code currently in force
is to simplify procedures by merging the rules applicable to the State and to the local and regional
authorities.
In addition, given that France has a particularly dense fabric of local and regional authorities (1),
these authorities award two-thirds of all the contracts awarded. Although the thresholds for the use
of formal procedures are currently much lower in domestic law than provided for by the Directives,
the concern for transparency in the management of public monies often prompts mayors to apply formal procurement rules to public contracts whose value is below the national thresholds. Notwithstanding, lack of knowledge of the principles of free access and equality of treatment constitutes a cause
of illegality that could result in the annulment of the contract or the award decision. This lack of
knowledge is seen, in particular, in the failure to comply with the advertising and competitive tendering obligations (Art. L551-1 of the Administrative Justice Code). It also exposes the person responsible
for this failure to penal sanctions for the crime of favouritism (Art. 432-14 of the Penal Code).
The Public Procurement Code provides for the possibility of forming purchasing groups to allow
economies of scale and the pooling of procurement procedures, especially for small buyers whose public procurement is a minor part of their activity and who do not have the suitable human and material
resources to develop a truly professionalised purchasing function.
The main supervisory and advisory bodies specific to the French system all report to the Ministry
of the Economy, Finance and Industry. They are as follows:
^ For the central government public buyers:
Seven specialized procurement commissions (CSM) (2) are responsible for providing buyers
with the advice they request and issuing opinions on dossiers that they themselves select, before a contract is signed and the successful tenderer is notified. Their opinions and observations relate to the application of the regulations from the point of view of the suitable expression of the need, the sound definition of the purpose of the contract, the choice of procurement procedure and its implementation, the method for choosing the successful ten(1) Approximately 36,000 communes, some one hundred de partements and 26 regions.
(2) Decree n. 2001-739 of 23 August 2001 on specialized procurement commissions.
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derer, the suitability of the price, and the suitability of the administrative, technical and economic clauses in the draft contract to be amended in the event of an unfavourable opinion.
The interministerial investigative task force for public procurement and public service delegation (MIEM) (3) is also responsible for checking the conformity and impartiality conditions under which contracts and public service delegation agreements are prepared, awarded
and performed for central government, local and regional authorities, semi-public national
utility companies responsible for a public service task and local semi-public companies.
The task force is assigned by the Prime Minister, the Minister of the Economy and Finance,
each minister in his or her area of responsibility or by the State Audit Office to find any
breach by a public buyer (elected representatives, civil servants or their representatives) of
the public procurement regulations, criminal law (4), fiscal law (5), competition law (6) or
the civil service regulations, which define the professional code of ethics for civil servants.
The central comptrollers (7) carry out budgetary controls on transactions with financial ramifications by central administrations, but also by national public administrative establishments. The devolved comptrollers (8) control the transactions of the devolved services. The
financial control applies to all transactions charged to the State budget regardless of whether
they are committed by the central services, the devolved services or the national public administrative establishments. It does not, however, apply to the local and regional authorities.
^ For the central government and local and regional authority (regions, de partements, communes
and their public establishments) public buyers:
The General Directorate for Competition Policy, Consumer Affairs and Fraud Control
(DGCCRF) staff operate in keeping with one of their fundamental duties, which is to ensure
fair trading (9).
The Public Accounting General Directorate (DGCP) staff perform documentary audits of
public procurement in keeping with the well-defined accounting staff responsibilities (10)
conferred on them by the legislation on public spending audits (11): checking of the extrinsic
conformity of expenditure vouchers, commonly called a formal or external legality audit
to differentiate it from the internal legality audit that is the prefects responsibility for the local public sector.
The DGCP Lyons unit advises on questions regarding proposed public procurement and
questions calling for an interpretation of public procurement legislation. This unit is available to all local buyers (local and regional authorities, public establishments and central government devolved services). The other services can obtain advice from the Legal Affairs Directorate (DAJ) public buyers advisory office.
^ The local and regional authority contracts are moreover submitted to a legality control by a
State representative (region or de partement prefect or sub-prefect) before they can become binding. If irregularities are found, the prefect or sub-prefect may refer the contracts to the administrative judge for annulment.
^ The State Audit Office and the regional audit offices are courts that check the public bodies
operating conditions and may report irregularities in these bodies public procurement.
(3) Act n. 91-3 of 3 January 1991 on the transparency and conformity of procurement procedures.
(4) Crime of favouritism, which bears sanctions for both civil servants and elected representatives for management misdemeanours committed
in the exercise of their duties: illegal interest, misappropriation of funds, forgery, etc.
(5) Amended act of 25 September 1948 establishing the fiscal and financial disciplinary court.
(6) Arts 7 and 8 of Ordinance n. 86-1243 of 1 December 1986 on the freedom of prices and competition.
(7) Decree n. 2003-639 of 9 July 2003 on financial controls in central administrations.
(8) Order of 21 December 2001 ^ amending the order of 29 July 1996 defining the methods for devolved financial controls ^ and its appendix.
(9) General instruction of 13 December 2001 on the duties and organization of the DGCCRF services and circular of 23 February 2000 on controlling the legality of public procurement and public service delegation.
(10) See, for example, the State Audit Office, Marillier ruling of 28 May 1952; and the Conseil dEtat, Balme ruling of 5 February 1971.
(11) Decree n. 62-1587 of 29 December 1962 on general public accounting regulations; for the local and regional authorities, Article 15 of Act
n. 82-213 of 2 March 1982, which became Article L. 1617-2 of the General Local and Regional Authorities Code.
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The bodies responsible for appeals and their duties

In France, the judge, and the judge alone, is responsible for ruling on appeals relating to the
award of public contracts. Depending on the nature of the contract (which depends mainly on the status of the parties and the purpose of the contract), the judicial judge or the administrative judge is responsible for implementing the provisions of the two remedies Directives.
The French legislation incorporating these Directives (12) provides for referral to a single judge
(the president of the court or his representative) responsible for deciding, before the contract is signed,
whether the contract was awarded in compliance with the advertising and competitive tendering obligations. The judge acts solely on failures to comply with the advertising and competitive tendering obligations. This may lead him to examine the reasons behind the exclusion of a tenderer (13) and the conformity of the composition of the bidding commission (14), but not the respective merits of the tenderers (15) or their statutory capacity to bid for a contract (16).
The judge rules in summary proceedings, i.e. expedited, so as not to undermine the progress of
negotiations prior to the awarding of the contract. If a contract is signed before the announcement
of the ruling, the case is deemed removed from the judge. French law therefore authorizes the judge
to suspend the procedure for a maximum period of 20 days as of when the case is referred to him.
The judges ruling may be appealed before the supreme court of the structure concerned (Conseil
dEtat or Final Court of Appeal).
The judge in question may use other dispute proceedings to declare null and void any contract
awarded irregularly and, in certain cases, to compensate the irregularly rejected tenderer, provided
he proves that he has been deprived of a real chance of winning this contract, or sanction the perpetrator of the irregularity.
Moreover, all parties to the contract and all third parties with an interest in the contract are entitled to request the annulment of acts relating to the award or performance of the contract (remedies
for excessive power). This annulment is likely, in principle, to render the said contract null and void
and entitle the plaintiff to financial compensation (full review).
The fiscal and financial disciplinary court with jurisdiction for all bodies subject to State Audit
Office control may be called on to impose sanctions on public officials responsible for contract award
irregularities.
The criminal judge may be called on to impose sanctions on the perpetrators of an offence
termed by the Penal Code as granting an unwarranted advantage when the principles of transparency
and equality of access have been prejudiced in a contract award procedure.
Disputes concerning the performance of contracts awarded in compliance with the Public Procurement Code are, in principle, now the responsibility of just one administrative judge (17).
Article 131 of the Public Procurement Code and its implementing decree (18) moreover provide for
an amicable settlement procedure at the initiative of the contracting authority or the contractor. This
procedure has the merit of interrupting the period of limitation. The choice of this dispute settlement
method is therefore unlikely to compromise the parties right to appeal.
The composition of the national amicable settlement advisory committee and the regional and
interregional advisory committees is based on the tripartite principle:
^ A president from the Conseil dEtat and aVice-President from the State Audit Office (two members of the administrative courts for the regional committees);
(12) See above: details can also be found in Contribution de la France relative au questionnaire sur les Directives recours (Contribution of France concerning
the Questionnaire on the Remedies Directives) CC/2003/30, to the Advisory Committee on Public Procurement.
(13) Conseil dEtat, 29 July 1998, Ge nicorp.
(14) Conseil dEtat, 27 July 2001, Degremont.
(15) Conseil dEtat, 29 July 1998, Syndicat mixte des transports en commun de lagglome ration clermontoise.
(16) Conseil dEtat, 16 October 2000, Cie Me diterrane enne dexploitation des services deau.
(17) Act n. 2001-1168 of 11 December 2001 on urgent economic and financial reform measures (known as the MURCEF law), Art. 2.
(18) Decree n. 2001-797 of 3 September 2001 on advisory committees for the amicable settlement of public procurement disputes.
69
^ Two civil servants belonging to the ministerial department concerned by the case submitted to
the committee;
^ Two expert key figures belonging to the same business sector as the contractor.
NB: All of the answers given in the following are based on the provisions currently in force, as
derived from the Public Procurement Code adopted on 7 March 2001. However, as stated
in incipit, a new public procurement code is currently being prepared. The amendments
that the reform is expected to make to the current regulations will hence be stated where necessary. Note that the information provided on future provisions is to be considered bearing
in mind that these provisions could change before the final text is adopted.
The Public Procurement Code defines the different contract categories in keeping with the Community Directive definitions.
The definition of works contracts is closely linked with the contracting authority notion since
works contracts are contracts for the purpose of conducting any construction or civil engineering
works at the request of a public entity acting as a contracting authority.
The contracting authority is the public or private entity on behalf of which the construction or
public works are conducted and for which this authority assumes responsibility.
The prime contractor is the person who manages the project, as distinct from the building contractor who handles the architectural, technical and economic aspects of the building, industrial or infrastructure construction work.The prime contractor handles all or part of the design tasks (blueprints,
technical pre-project, basic design study and construction survey) and provides assistance to the contracting authority with procurement; managing the performance of the works contracts; worksite
authorization, steering and coordination; acceptance operations and the completion bond period (19).
For a contract to be termed a works contract, the administrative judge requires the administration
to carry out the tasks of a contracting authority and the works to be carried out under its supervision
and directly on its behalf.
Supply contracts are contracts between a public entity and a supplier for the purpose of the purchase, leasing, hire or hire-purchase, whether with an option to purchase or otherwise, of products
and equipment. Product delivery may include accompanying fitting and installation work.
The supply contract notion covers:
^ Contracts for standard supplies, which are supply contracts to enable public buyers to purchase
already-existing products not custom made to specific technical specifications;
^ Industrial contracts, which are contracts for non-standard supplies mainly to purchase products
not found in the general retail trade that the successful tenderer must custom make to the public
buyers own technical specifications;
^ Leasing, hire and hire-purchase contracts, whether with an option to purchase or otherwise.
Note that the notion of a public supply contract is restricted to contracts for movables. It
does not cover purchases of, hire-purchase of or leasing contracts for real estate.
Service contracts are contracts for the purpose of providing services. The service contract notion
covers, for example:
^ Contracts for standard services, whereby the public buyer purchases services that can be provided without technical specifications from the said buyer;
^ Contracts for intellectual services, which necessarily comprise significant and specific obligations associated with the notion of intellectual property;
(19) Act n. 85-704 of 12 July 1985 on public contracting authorities and their relations with private prime contractors (known as the MOP
law), arts. 2 and 7.
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France
^ Contracts for financial services, especially those associated with real estate purchases.
A number of documents are available on-line on the http://djo.journal-officiel.gouv.fr/MarchesPublics/ site to help public buyers draft contracts:
^ Four general administrative terms and conditions documents (CCAGs) provide standard provisions applicable to the following contract categories: standard supplies, intellectual services,
works and industrial contracts. The CCAGs only apply to contracts referred to therein. If public
buyers choose to make reference to them, they must provide, in the special administrative terms
and conditions (CCAPs), for the necessary dispensation from the CCAG either due to changes
in the regulations or the particularities of the contract. If they do not, they must carefully
read the CCAG to be able to incorporate the required provisions into the CCAP to manage
the contract.
^ The technical guides and recommendations are drawn up by the standing procurement review
groups (GPEMs). These groups are made up of experts in various public procurement
areas (20). These documents used to help draft terms and conditions are also non-regulatory.
All of these documents need to be updated and are being rewritten.
Current legal situation
Contracts below the e 90.000 ex VAT threshold are not subject to any formal advertising obligation.
For the other contracts below the Community thresholds, the notices of invitation to tender may
be published in the Bulletin officiel des annonces des marche s publics (BOAMP, published by the Direction des Journaux officiels, 26 rue Desaix, 75527 Paris Cedex 15 and available for consultation on www.journal-officiel.gouv.fr) or in a publication authorized to publish legal notifications. Each de partement has a list of
such publications stipulated by order specifying the insertions tariff and held in the prefectures legal
filing department. When the contract is performed in a different de partement to that of the department
or establishment, the notification is sent to a publication authorized to publish legal notifications
whose head office is in the de partement of service performance.
The notice covers an entire given contract. Separate notices may not be published for one or more
batches in the case of grouped contracts.
Above the Community thresholds, the notice must be sent to the Office for Official Publications
of the European Communities before insertion in the BOAMP. The national and Community notices
of invitation to tender must contain the same information.
Further details:
The BOAMP is bound to publish the notice, complying with the text of the notice sent by the
public entity, within eleven days or, in urgent cases, within six days of the date of receipt. The public
entity that launches the invitation to tender is responsible for paying the notice insertion costs.
It should be noted that the local and regional authorities may only send the notice for publication
after having been authorized by their deliberative assembly to launch the public procurement procedure.
(20) Quality building coordination group (GCCQ);
Office and educational establishment furniture, equipment and supplies;
Miscellaneous chemical and parachemical industry products;
Foodstuffs;
Mechanical engineering and electricity;
Health care centre and laboratory equipment and supplies;
Textiles, leather and related products;
IT and communication.
71
As regards the content of the notices of invitation to tender, Commission Directive 2001/78/EC of
13 September 2001 is incorporated by the order of 4 December 2002 specifying the standard forms
for the publication of public procurement notices in the Official Journal of the European Communities. This standardizes the notices that public buyers have to send to the Official Journal of the European Union when the estimated value of their contracts is equal to or over the thresholds provided
for by the Directives on the coordination of public procurement procedures.These models are binding
for contracts over the Community advertising thresholds. However, reference to these models and
the wording they contain is recommended for contracts not subject to European advertising.
Planned reform:
It is intended for the new public procurement code to specify that, up to e 90.000 ex VAT,
whether for supply, service or works contracts, the advertising methods must be tailored by the person
in charge of the contract to the sum and purpose of the works, supplies or services in order to allow
for effective competition.
Below the European thresholds, improvements have been made to the draft decree reforming the
Public Procurement Code to take account of all the comments and proposals made throughout the
months of consultations held by the government. The aim of these improvements is to achieve a better
balance between the need for flexibility and the need for transparency and control. For example, it
has been agreed to set a threshold of e 230.000 ex VAT for works contracts, above which buyers are
bound to comply with the formal competitive tendering procedures. Between this intermediate threshold and the Community threshold for works contracts, buyers may choose between the negotiated contract with prior advertising and competitive tendering, competitive dialogue and the invitation to tender should they so wish.
Regarding services, although the flexibility introduced for services referred to in Annex I B of
Directive 92/50 has so far only been incorporated into domestic legislation for a few items, it is intended to apply the streamlined procedure to the said list in its entirety.
Current legal situation
In addition to the main forms of invitation to tender ^ open, restricted, with design competition
and negotiated contracts ^ and the Annex I B streamlined procedure for services, which area all forms
described by Community legislation, the following derived forms should be noted:
Performance-based bidding: whereby the person responsible for the contract defines a detailed
operational programme in the form of verifiable results to be achieved or needs to be satisfied. Each
tenderer proposes ways of achieving these results or satisfying these needs in their tender. This invitation to tender is always restricted.
Public building and works: the procedure specific to public building and works contracts is a particular type of performance-based bidding, which only applies to contracts covering both the design
and execution phases of works referred to in Article 1 of Act n. 85-704 of 12 July 1985 on the public
contracting authority and its relations with the private contractor.
This procedure can only be used if technical reasons make it necessary to associate the building
contractor with the design work. These reasons must be to do with the works purpose or building
techniques.
Regardless of their form, specific provisions are laid down for slice and package contracts (21),
which may be concluded when the nature of the needs to be satisfied is known and can be detailed
in technical specifications, but the quantities likely to be ordered remain uncertain.Slice and package
contracts exist:
(21) Art. 72 of the Public Procurement Code (2001 code).
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France
^ With purchase orders when the uncertainty concerns the quantitative evaluation and the pace of
the overall need to be satisfied (staggered purchases, in particular for consumables);
^ With conditional slices when all the quantitative elements are known, but there is uncertainty
about the possibility of carrying out the entire programme presented (infrastructure and real estate operations and industrial contracts).
Planned reform
The proposal is to replace the performance-based bidding procedure with the competitive dialogue
procedure. This would give public buyers the possibility, in specific contract cases, of launching a dialogue with different service providers to define the buyers needs before appointing the service provider
whose tender, honed as the dialogue progresses, seems to be the most suitable.
The Public Procurement Code reform underway also provides for a number of provisions to foster SME access to public contracts. Examples of this are the further streamlining of the application
documents, the possibility of adjusting the content of the first envelope (selection of applications) in
the event of an omission or incomplete production of a supporting administrative document or the relaxing of the payment-advance granting rules.
Appeal procedures
In the sectors covered by the classical Directives, the judge may order the perpetrator of the
breach to comply with his obligations and suspend the award procedure or the execution of any decision relating to that procedure. He may also annul these decisions and cancel the terms and conditions
intended to be incorporated into the contract, where these are contrary to the said obligations.
As regards contracts signed by utilities operators, the judge may order the perpetrator of the
breach to comply with his obligations within a particular time limit. He may also impose a provisional
daily fine as from the expiry of the specified time limit. He should, nevertheless, take into account
the probable effects of this latter measure as regards all the interests potentially at stake, including
the public interest, and should refrain from granting the order where the negative consequences would
exceed the benefits.
Under French law, as allowed for by the Directives on the coordination of remedies, applications
for damages are independent of applications to annul contracts and applications in pre-contractual
summary proceedings.
The competitor who feels that he has been unfairly ousted may obtain compensation provided he
proves that the administration has committed an offence and that he had a real chance of winning
the contract. If the applicant does not satisfy this latter condition, he may only recover his tendering
costs.
As regards utilities, French law includes the possibility of providing for the payment of a sufficiently large sum as both a precautionary measure and a penalty in the case of pre-contractual summary
proceedings concerning entities not covered by the Public Procurement Code.
For public law contracts, Article L. 551-2 of the AdministrativeJustice Code stipulates that the president of the court, may (...) impose a provisional daily fine as from the expiry of the specified time limits for compliance with the advertising and competitive tendering obligations. If the observed breach has not
been remedied by the time the provisional daily fine becomes due, the judge may impose a definitive
fine. In this case, he rules in summary proceedings with the possibility of appeal in keeping with
the procedure for summary proceedings. The fine, whether provisional or definitive, is independent
of the damages.The provisional or definitive fine is totally or partially lifted if it is established that failure or slowness to comply with the judges order is entirely or partly due to a foreign cause.
For private law contracts awarded by entities not subject to the Public Procurement Code, Article
7-1 of the law of 11 December 1992 lays down provisions that are strictly identical to those of Article
L. 551-2 of the Administrative Justice Code.
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Thinking is currently underway on public-private partnership contracts. These contracts, requiring the definition of a suitable budgetary framework, would enable the private sector play a greater
role in supplying public goods and services by providing a more flexible legal framework that goes beyond the two traditional partnership forms of public contracts and public service delegation.
Indeed:
^ Public contracts are contracts whereby the administrations and the companies enter into customer-supplier relations. The price paid by the administration is the immediate remuneration
for the service provided by the company. The company runs no risk other than that normally
run by any supplier.
^ Public service delegations, a French legal framework for concessions, assign the management
and running of a public service to a third party under the supervision of the administration.
The service is provided by the company and financed by its operations. Public service delegation agreements are long-term and fairly static contracts. Unlike public contracts, the economic
risk is transferred to the company.
Yet when it comes to a company investing large sums, risk-sharing is necessary even though the
two above-mentioned contract types do not provide for it.
Article 6 of Act n. 2003-591 of 2 July 2003 entitling the government to simplify the law authorizes
the government to issue ordinances to make the necessary arrangements to create new forms of contracts incorporating the design, construction, alterations to, running and financing of public facilities
or a combination of these different tasks. It also lays down strict transparency requirements.
The parliamentary debates clearly stated that these new contracts, which will be subject to strict
advertising and competitive tendering rules, should identify the share of financing due to investment,
the share relating to operations and the share relating to financial charges. Moreover, the empowering
statute lays down the principle of equitable access by architects, designers, small and medium-sized enterprises and craftworkers.
These new procedures aim to optimize the lead times and costs of large construction programmes while guaranteeing their long-term quality. The ordinances issued pursuant to Article 6 of
the empowering statute will form the subject of the required consultations with the professionals concerned.
The creation of this new form of contract has no repercussions on the other reform of the Public
Procurement Code by the government.
Means of e-procurement
Given the swift development of Community legislation to encourage the development and use of
new information and communication technologies (Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market;
and the provisions of the legislative package on public procurement and its explanatory memorandum), it was felt necessary for the 2001 reform of the Public Procurement Code to help public procurement take advantage of the potential of the new technologies.
However, given that this is an area of extremely fast technological progress and as the Community
rules were not yet fully stable, it did not seem possible or beneficial to immediately define a strict framework.
For this reason, the possibility of using electronic means to transmit information was therefore
clearly stated, but in a dual system where the option of using paper remains open. The use of electronic
means concerns as much the sending of documents by the public entity as the sending of applications
and tenders.With this new set-up, printed documents can now be replaced by electronic media or EDI.
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A deadline of 1 January 2005 has been set, beyond which no procurement notice can prohibit the
sending of applications and tenders by electronic means. This deadline has been chosen as it seems
to be the maximum reasonable amount of time it would take to fully evaluate the technical data and
for buyers and sellers to upgrade their equipment where necessary.
Lastly, the possibility of reverse on-line auctions has also been developed to integrate this new
up-and-coming business-to-business procedure.
Some large account buyers in central and local government have hence developed their contract
platforms either in house or with IT service providers.
We will simply mention here, by way of an example, the public purchasing card inspired by the
model the English-speaking administrations have already developed and used in the private sector in
France. This card has been tested in nine authorities and public establishments. It should generate
across-the-board management cost savings on small purchases by simplifying the public financial procedures for such purchases.
5. Models adopted
Legislation in force and structures involved
Independently of the draft ordinance on public-private partnership contracts mentioned in the
previous section, the pluriannual domestic security policy act (22) and the pluriannual justice policy
act (23) provide ^ solely in the police, justice and gendarmerie areas ^ for public procurement enabling
private investors to use the central and local government public sphere and to manage equipment
made available to the State in this sphere. Investors may be authorized to use forms of financing
such as leasing and to take out the corresponding guarantees. They could rent equipment to the government either using simple leases or lease-option agreements.
Procedures
The regulatory provisions to implement the above-mentioned acts have not yet been published.
Nevertheless, it has been stated that they should govern a prior advertising and competitive tendering
procedure.
See the above-mentioned developments regarding the draft ordinance on public-private partnerships.
6. E-procurement
General principles
As already stated (24), three guidelines emerge from the choices made when drawing up the
French regulations on e-procurement:
^ Since e-procurement represents merely a change of transactional medium, it should be neutral
in terms of the application of procedural rules already in existence elsewhere, i.e. it should comply faithfully with these rules without having to add any new ones. However, it is not mandatory for procedures currently conducted on paper to be reproduced in electronic form, since
(22) Act n. 2002-1094 of 29 August 2002, known as the LOPSI law.
(23) Act n. 2002-1138 of 9 September 2002, known as the LOPJ law.
(24) See the French contribution to the working group on e-procurement policy in response to the draft paper on functional requirements for
computerising procedures for carrying out one-off purchases.
75
the aim is that electronic procedures should produce the same legal effects as paper procedures.
Lastly, from an economic point of view, the cost of the technical solutions required to computerize the procedures should not be out of proportion with the cost of the current systems.
^ A certain number of practical questions raised are not specific to electronic procedures. In particular, the issue of exchange confidentiality and security also arises in the case of paper procedures, without any technically perfect solution having been found to date. The newness and
scope of these issues should therefore be put into perspective in the case of e-procurement.
Without wishing to underrate the extra risks run by using Internet-based electronic systems,
placing too much importance on them could well turn out to be counterproductive by pushing
for the choice of the most sophisticated solutions, which are also the most expensive.
^ Since e-procurement was not yet covered by the Directives in force when the French legislation
was drawn up, we opted for a totally versatile system (25) to solve the non-discrimination issue.
This choice called for technically more complicated solutions (26) by obliging public purchasers
to simultaneously manage exchanges on electronic and paper media within the same procedure.
The legislative package is more flexible in this regard since it will allow for an exclusively electronic procedure according to the choice of the contracting authority (classical Directive proposal, Art.
42 1).
Article 56 of the Public Procurement Code stipulates that, information exchanges conducted pursuant to the
present code may be transmitted by electronic means. It also provides for the possibility of organising on-line auctions for the purchase of standard supplies.
This provision has two implementing texts:
^ Decree n. 2001-846 of 18 September 2001 issued pursuant to paragraph 3 of Article 56 of the
Public Procurement Code and relating to on-line auctions;
^ Decree n. 2002-692 of 30 April 2002 issued pursuant to paragraphs 1 and 2 of Article 56 of the
Public Procurement Code and relating to e-procurement.
Moreover, Article 4 of Act n. 2000-230 of 13 March 2000 adapting the legal framework in the
field of evidence to information technologies and relating to electronic signature introduced the electronic signature as one of the means of literal proof of obligations and payment provided for by the
Civil Code (Art. 1316-4);
This provision also has two implementing texts:
^ Decree n. 2001-272 of 30 March 2001 relating to electronic signature;
^ The order of 31 May 2002 relating to qualification approval for electronic certification service
providers and the accreditation of entities in charge of evaluation.
The Digital Economy Task Force (MEN) (27) was set up at the Ministry of the Economy, Finance
and Industry at the end of 2002. Its five-year mission is to promote the development of the digital
economy. One of its working parties concentrates on e-procurement and government spending execution. This forum is largely open to all public and private players motivated by serious thinking on
the subject. As such, it is a vehicle for sharing experiences.
(25) ... Candidates who choose to consult online the documents mentioned in the first paragraph maintain the possibility, on submitting their
application or their tender, of choosing between transmission by electronic means and transmission on a paper medium or, if the consultation regulation so permits, transmission on a physical electronic medium. (Decree n. 2002-692 of 30 April 2002, Art. 2).
Candidates shall choose between the electronic transmission of their applications and tenders and sending them on a paper medium or, where applicable, on a physical electronic
medium (above-mentioned decree, Art. 5).
(26) Public buyers may therefore not oblige a candidate to use solely electronic means: for example, the service will consider a question sent by
traditional mail for a tenderer who has submitted his application online. Our legislation even provides for the hypothesis of the physical electronic
medium (diskette or CD-ROM).
(27) Its web site is available in a number of languages: www.men.minefi.gouv.fr
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France
MEN coordinates its work with the work of the Agency for the Development of e-Administration
(ADAE (28)), which is an interministerial agency briefed to promote the development of information
systems to modernize the running of the administration and better satisfy the publics needs. ADAEs
steering council is made up of representatives from the Ministries, the local and regional authorities,
public bodies, users and businesses, as well as experts.
Since the French approach is rather to computerize step by step, task by task, it calls for a coordinated policy covering all public players and the use of private-sector solutions where necessary: an indicative list of service providers in the field is open on the MEN site (29).
The multitude of personalized web sites ^ contracting authority websites and on-line market
places developed by third-party service providers ^ ensures the dissemination of announcements
and notices of invitation to tender on the Internet. These sites hence guarantee swift and easy access
to the information with, where appropriate, value-added legal watchdog services for operators regarding market opportunities corresponding to the companys profile. Nevertheless, at the same time,
this phenomenon has generated a two-sided threat of information dispersal and breach of equality
of access to information on market opportunities.
However, steps are taken to ensure that the information disseminated is strictly identical to that
which is bound to be issued at the same time by the traditional regulated advertising bodies, i.e. the
Bulletin officiel des annonces des marche s publics (BOAMP) at national level and the legal announcement journals
(JALs), which may accept the transmission of publication requests by electronic means where appropriate and may even have a web site themselves on which the notices of invitation to tender are published.
The reverse on-line auction procedure is strictly governed by the above-mentioned Decree
n. 2001-846 of 18 September 2001. This procedure calls for no particular developments since it is modelled on that described in the legislative package (recital 13 and Article 54 of the classical Directive
proposal).
Decree n. 2002-692 of 30 April 2002 does not describe a procedure, but regulates the electronic
information exchange methods applicable to all types of e-procurement procedures (including online auctions). E-procurement procedures are not, in themselves, essentially different to the telematic
purchasing procedures in use in business-to-business relations (market places on line, in house or
hosted by a third party operator). Their only real difference is that they must comply with all the Public
Procurement Code provisions and implementing provisions in an on-line context, which is the purpose of the above-mentioned decree.
The planned reform project does not include any new provisions on on-line considerations, since
the legal framework already governing this area is considered to be sufficient.
(28) www.adae.pm.gouv.fr
(29) http://www.men.minefi.gouv.fr/webmen/groupetravail/g7/acteurs.html
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Germany
Directives
Directive
Title
Directive 93/36/EEC
Directive 93/37/EEC
Directive 92/50/EEC
Services Directive

89/665/EEC (Legal Remedies Directive)
Directive 93/38/EEC
Sectoral Directive
amended by Directive 98/4/EC
Directive 92/13/EEC

General Principles
The general principles underlying the national legislation on public procurement are transparency, competition, non-discrimination, consideration of the interests of SMEs, economic viability
and cost-saving.
The following domestic legislation currently governs the field of public procurement:
^ Act against Restraints of Competition ^ 4th part; implementing the European procurement
rules TM Ordinance on the Award of Public ContractsTM Code for Awarding Public Services
Contracts, part A (VOL/A) and Code for the Award and Contracting of Public Works, part A
(VOB/A) with sections 2-4 and Code for Awarding Freelance Services Contracts.
^ Federal Budget Code with provisional administrative rules on Section 55TM VOL/A and VOB/A
Sections 1 for national procurement law (below the EU thresholds) and analogue rules in the
La nder and municipalities.
At federal level, no legislation is being prepared at present.
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For the field of public procurement, there are more than 30.000 contracting authorities at federal,
La nder and municipal level in Germany, which award public contracts on their own responsibility.
At federal level, there are central procurement agencies in some Ministries (e.g. the Federal Office of
DefenceTechnology and Procurement, the Procurement Office of the Federal Ministry of the Interior),
which are structured as higher federal agencies under public law. In addition to this, there are a large
number of bodies which function as public procurement agencies but are organized under private
law, usually as limited-liability companies, and which are obliged to follow EU procurement law.
The sectoral contracting authorities are generally organized under public law as municipal companies
or under private law as joint-stock companies or limited-liability companies.
Duties
The central procurement bodies of the Federal Government generally cover the needs of the federal agencies (e.g. the Procurement Office for the Federal Border Guard, the Federal Office of Defence
Procurement for the armed forces). The tasks of the other procurement agencies at Federal, La nder
and municipal level and the sectoral contracting authorities can be found in acts of parliament, internal
organizational decisions or statutes. In view of the large number of procurement agencies in Germany
(more than 30.000) space does not permit a detailed description.
^ Public procurement tribunals
For contracts attributable to the German Federal Administration the federal public procurement
tribunals (Vergabekammern des Bundes) and for contracts attributable to the La nder the Land public
procurement tribunals (Vergabekammern der La nder) review the award public contracts. Before
these tribunals the undertakings can enforce the provisions concerning the award procedure.
At the moment there are two public procurement tribunals at the Federal Cartel Office. The public procurement tribunals take their decisions by a tribunal with three members. It is composed of a
chairperson and a full-time associate member, who are civil servants appointed for life with the qualification to serve in the higher administrative service. Either the chairperson or the full-time associate
member has to be qualified to serve as a judge. The third member is one of about thirty honorary associates who are appointed by the President of the Federal Cartel Office. These honorary associate
members should also have several years of practical experience in the field of the awarding of public
contracts.
They exercise their functions independently and on their own responsibility. Their status and
working methods come very close to those of a court.
^ Public Procurement Review offices
In addition to the public procurement tribunals public procurement review offices can be established at Federal and La nder level. The opening of proceedings, upon application or ex officio, lies
in the discretion of these public procurement review offices; the undertakings do not have a right to
a review by these offices, even if in a particular case the contracting entities (Vergabestelle) have
not complied with the award provisions. The public procurement review offices can oblige the authority conducting the award procedure to set aside unlawful measures and to take lawful measures, and
can advise these authorities and undertakings as to the application of the award provisions.
Duties
The public procurement tribunals initiate review proceedings only upon application. Every undertaking which has an interest in the contract and claims that its rights concerning the award procedure were violated by the contracting entity has a right to file an application. Furthermore in doing
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Germany
so, the undertaking must show that it has suffered a loss, or may be about to suffer a loss, in consequence of the alleged violation of provisions governing the awarding of public contracts. An award already made cannot be cancelled by the public procurement tribunal. In this case the undertaking
does not have a right to file an application. The same applies if it would not have had a chance to
win the award absent the alleged violation (e.g. the offer of the applicant was the most expensive one).
The application is inadmissible if during the award procedure the applicant had already become
aware of the violation of provisions governing the awarding of public contracts but had failed to object
to the contracting entity without undue delay. The application is also inadmissible if apparent violations of provisions governing the awarding of public contracts were not challenged in front of the contracting entity by the end of the period specified in the notice for submission of a tender or application
to the contracting entity.
The public procurement tribunals investigate the facts ex officio.
Public contracts can be issued in the form of purchase contracts (Kaufvertra ge), works contracts
(Werksvertra ge), non-gratuitous contracts for services and works (Gescha ftsbesorgungsvertra ge) and
public offers of reward (Auslobungen).
Both paper-based systems (publications), such as the Bundesausschreibungsblatt (Federal Procurement Gazette), the Federal Gazette and publications of the La nder and the municipalities, and electronic systems, such as internet sites of the contracting authorities, portals (e.g. www.bund.de ), e-procurement, are used to publish invitations for bids in Germany.
In Germany, the following public procurement procedures are regulated by domestic law:
^ Open procedure;
^ Restricted procedure with open competition (corresponds to restricted procedure);
^ Restricted procedure without open competition (the contract can be awarded only to a restricted group of companies known to the contracting authority. The exclusively national procedure has formal and deadline requirements);
^ Negotiated procedure with public competition (corresponds to negotiated procedure with prior
publication of the procedure. The negotiated procedure is admissible only under very tight
and precisely defined preconditions; it has no formal or deadline requirements);
^ Negotiated procedure without public competition (corresponds to negotiated procedure without prior publication of the procedure. The negotiated procedure is admissible only under
very tight and precisely defined preconditions; it has no formal or deadline requirements).
Appeal procedures
^ Provisional remedies
In principle there is no need for provisional remedies for the protection of the applicant. After
the application for a review has been served to the contracting entity, it must not make the award until
the public procurement tribunal has taken a decision and until the period for a complaint has expired.
If during the award procedure any rights of the applicant concerning the award procedure are jeopardized in some other way than by the imminent award, the tribunal may, on a specific application, intervene in the award procedure through further preliminary measures.
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In order to protect the contracting entity, the public procurement tribunal may allow it, upon application, to award the contract on a balance of interests, taking into account all interests which may
be impaired by the award as well as the interests of the general public in the quick conclusion of the
award procedure and the negative consequences of delaying the award until the end of the review.
^ Principal proceedings
The public procurement tribunal decides whether the applicants rights were violated and takes
suitable measures to remedy a violation of rights. It takes its decision and gives reasons in writing within a period of five weeks of receipt of the application. It decides on the basis of a hearing.
^ Right of appeal against decisions of the public procurement tribunal
Decisions of the public procurement tribunal can be appealed on the access to the civil courts.
The Court of Appeal at the seat of the public procurement tribunal has exclusive jurisdiction. These
courts set up specialized divisions to deal with these cases. The decisions of the Court of Appeal are
final. Only if a Court of Appeal wishes to deviate from a decision of another Court of Appeal or of
the Federal Supreme Court shall it refer the matter to the Federal Supreme Court. In this case the Federal Supreme Court decides.
^ Damages
The Public Procurement tribunals do not decide on damages. If undertakings want to claim damages, they have to bring separate civil law-suits. If damage actions are based on a violation of the provisions governing the award of public contracts, the court of general jurisdiction is bound by the final
decision of the public procurement tribunal on the complaint (or the decision of the Court of Appeal
or the Federal Supreme Court respectively).
Yes, the possibility for co-operation between public and private entities to offer and administer
services exists in Germany.
The following models for integrated services management via outsourcing are used in Germany:
^ Operator model (Betreibermodell);
^ Concession model (Konzessionsmodell);
^ Management model (Betriebsfuhrungsmodell);
^ Co-operation model (Kooperationsmodell);
^ Financing model (Finanzierungsmodell).
In detail:
a. Operator model
The operator model is probably the most common type of PPP found in Germany. Particularly in
the case of PPP projects supported with public funding, this model is often combined with a co-operation model.
Operator models are models of private financing and/or private operation of public infrastructure. In a typical case, a private investor takes on a commitment to plan, finance and operate an infrastructural facility on behalf of the public sector. The operator usually appears to the outside world
not as an independent legal entity, but as an administrative assistant.The operator models therefore differ from the concession models in that the public sector and not the users pay the operators.
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Germany
b. Concession model
The concept of the concession model is anchored in German procurement law, under works procurement law in Section 98 n. 6 of the Act against Restraints of Competition and Section 32 n. 1 of
the Code for the Award and Contracting of Public Works, part A (VOB/A), as defined in Article 1 d
of the Works Co-ordination Directive (93/37/EEC). Here, the contractor commits himself to provide
a certain service directly to the citizen. In return, he receives the right in the form of a concession
to finance his costs via fees from users. This right is transferred in the form of an entitlement to levy
a fee or of a tariff authorization to impose a charge under private law.The concession can cover a works
or supplies contract.
This concession model is also regulated by the Act on the Construction and Funding of Federal
Trunk Roads by the Private Sector.
c. Management model
Unlike the operator and concession models, in the case of the management model the administration operates the facility itself. It merely transfers the management to a private company, which receives
payment for this.
d. Co-operation model
Under the co-operation model, public contracts are transferred to a private-law company in which
the public sector and one or several private companies are shareholders. Examples of this model can
chiefly be found in the field of waste disposal, water supply and effluent treatment. Co-operation models can be distinguished from operator models as follows: whereas with operator models the planning,
construction, operation and financing of the facility is carried out exclusively by a private company,
here there is instead of a purely private-sector company a mixed private/public-sector company, and
the municipality is greatly and involved in this, normally with at least 51 % of the shares of the company.
e. Financing model
Under this model, in addition to the planning, construction and operation of a facility, the financing is also undertaken by the private sector. Here, a financial framework is established by the private
and public sector, in order to finance the investment from this.
It may be the case that the aspect of financing assumed special significance in the past. However,
the PPP objective ^ i.e. the best possible efficiency increase in a holistic sense ^ requires that the financing always represents only one ^ albeit important ^ component amongst others and must be seen
in the overall context with the planning, construction, operation and evaluation.
Since the implementation of Directives 97/52 EC and 98/4/EC, e-procurement has been possible
under domestic law. Corresponding procedures have since been put in place in Germany.
Yes, other innovative models in the field of public procurement have been tried out in Germany
(e.g. inverse auctions).
5. Models adopted
There are at present no specific laws referring to new organizational and administrative provisions for PPP and outsourcing. So there are no specific legal barriers to such approaches. However,
in the case of PPP in particular, numerous aspects of law may be involved (constitutional law, labour
law, collective bargaining law, civil service law, budget law, organizational law, administrative law, pro83
curement law, commercial law, competition law, company law, tax law, data protection law, municipal
law). Here, procurement law (generally EU procurement law) is of particular significance at the stage
of contract initiation.
In the field of trunk road construction, however, a specific law was passed on private-sector involvement back in 1994, in the form of the Act on the Construction and Funding of Federal Trunk
Roads by the Private Sector of 30 August 1994, Federal Law Gazette I, p. 2243). This law was necessary
in order to permit a shift from tax-funded to privately-funded trunk road construction in Germany
for engineering work (bridges, tunnels, mountain passes) and certain federal roads. Accordingly, in order to increase investment in the federal trunk road network, private-sector companies can now assume tasks of building new and upgrading existing federal trunk roads, the financing being derived
from fees.
Structures involved
In Germany, all levels of government (federal, La nder and municipal administrations) are involved
in PPP or outsourcing. At federal level, this primarily occurs in the area covered by the Federal Ministry of Defence, where various projects previously covered by the Federal Armed Forces are organized
on a PPP basis or are covered by private companies. As a rule, mixed private/public-sector limited-liability companies are set up, based on a public-sector majority or minority holding.
Procedures
Tenders for the innovative models described above (operator model, concession model, co-operation model, financing model) are invited in Germany under current procurement law. Because of
the complexity of the service, there is usually a negotiated procedure with preceding EU-wide publication of the invitation.
No draft legislation is currently in preparation at federal level.
General principles
In addition to the general principles of procurement law, which also apply to conventional procurement (competition, transparency, non-discrimination, confidentiality) information and communication technology principles also apply to e-procurement as equivalents to conventional procurement.
Here, it is a question of the encryption of the electronic bids (as an equivalent to confidentiality), the
qualified electronic signature (as an equivalent to the personal written signature) and the use of internet and email functions (as an equivalent to physical transmission paths).
The field of e-procurement is regulated by the following national legislation:
^ Ordinance on the Award of Public Contracts (Section 15 governing the electronic submission of
bids for supplies and for services above the EU thresholds);
^ Code for the Award and Contracting of Public Works, part A (VOB/A) (Section 21: rules on
electronic bidding for public works; various individual stipulations);
^ Code for Awarding Public Services Contracts, part A (VOL/A) (Section 21: rules on electronic
bidding for services contracts below the EU threshold);
^ Civil Code (BGB) Sections 126, 126a, 127: rules on the equivalence of the written form of declaration of intent prescribed by law and contract with the electronic form in the form of the
qualified electronic signature).
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Germany

The Federal Ministry of the Interior (which has the lead responsibility for e-government applications of the Federal Government) is responsible for the management of the e-procurement system
(the e-government initiative BundOnline 2005). The interests of the Ministries are expressed in a
steering committee composed of representatives of the Federal Ministries of Economics and Labour,
for Transport, Building and Housing, of Defence and of Education and Research. In some La nder
and municipalities, there are similar commercial e-procurement systems run by various agencies (e.g.
the Senate administration for urban development in Berlin, which is responsible for electronic works
contracts of the state of Berlin, the Finance Department in Hamburg for the electronic award of public
contracts of the Free and Hanseatic City of Hamburg).
Recognized systems for a publication of electronic contract notices in Germany are internet portals, internet pages and electronic platforms of public and private providers. For all other types of communication in e-procurement procedures, email programmes, traditional internet access and sufficiently fast and secure telecommunications networks are needed.
The electronic award of public contracts at federal level is based on an internet-supported platform which reflects the conventional procurement steps from the invitation to the submission of the
bid and the award of the contract in electronic form. Similar procedures are being increasingly used
in the La nder and municipalities. Since the use of electronic market places is not envisaged in the public procurement system, such market places are unlikely to be used in practice, at least for procurement
procedures above the EU thresholds.The extent to which electronic market places are used for procurement below the EU thresholds, particularly in the field of negotiated procedures, is not known. An
electronic market place is at present available internally to the relevant agencies of the Federal Ministry
of the Interior in the form of an electronic catalogue of goods and services of companies with which
framework contracts have been concluded for these supplies. Online auctions are currently only practiced on a trial basis and in individual cases for tenders below the EU thresholds, since these procedures have so far not been permissible under law.
At federal level, no legislation is being prepared at present.
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Greece
Directives
The following Community Directives on public procurement have been implemented in the
Greek legal system:
Directive
Title
Directive 93/36/EEC
amended by European Parliament and Council Directive 97/52/EC and Commission Directive 2001/78/EC
Directive 93/37/EEC
Directive 92/50/EEC
Services Directive
Directive 93/38/EEC
Sectoral Directive
amended by Directive 98/4/EC of the European Parliament and of the Council
Remedies Directive
Directive 92/13/EEC
General principles
The fundamental principles generally applied in the field of public procurement in Greece,
for both above and below threshold contracts, include those laid down in the EC Treaty, and relevant secondary Community legislation (public procurement Directives). Among those are the
principles of equal treatment, non-discrimination, transparency, proportionality and mutual recognition.
Public procurement Directives have been incorporated in Greek legislation by the following
Laws and Presidential Decrees.
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Directive
National Legislation
Directive 93/36/EEC
amended by European Parliament implemented by Presidential Decree 370/95 as

and Council Directive 97/52/EC
amended by Presidential Decree 105/2000
Directive 93/37/EEC
amended by European Parliament implemented by Presidential Decree 334/2000

and Council Directive 97/52/EC
as amended by Presidential Decree 336/2002
Directive 92/50/EEC
amended by European Parliament implemented by Presidential Decree 346/1998

and Council Directive 92/57/EC as amended by Presidential Decree 18/2000
and Commission Directive 2001/ and Presidential Decree 101/2003
78/EC
Directive 93/38/EEC
amended by Directive 98/4/EC of implemented by Presidential Decree 57/2000

the European Parliament and of and Directive 98/4 has been implemented by
the Council
Presidential Decree 22/2002
Law 2522/1997
Directive 92/13/EEC
implemented by Law 2854/2000
In the Greek legislation there are also specific laws regulating works and design contracts below
the threshold of Council Directives 93/37/EEC and 92/50/EEC. The main legislation in question is:
For works: Law 1418/1984 as amended by Law 2229/1994, and Presidential Decree 609/85
For design contracts: Law 716/1977.
For design contracts and relevant consulting services: Law 3164/2003 has been passed, the application of which is starting on March 2004.
In cases of contracts below thresholds of the Directives and where there is no other particular law
provision, the framework set in the Directives is implemented in substance.
At the moment the Presidential Decrees for the implementation of the above mentioned Law
3164/2003 are being prepared.
^ The institutional framework for public procurement in Greece consists of three Ministries each
one responsible for one sector according to the division of the classical Directives:
^ Ministry of Economy and Finance which is responsible for public procurement of services (Directive 92/50/EEC), and Ministry of Environment, Physical Planning and Public Works which
is responsible especially for design studies services;
^ Ministry of Development which is responsible for public procurement of supplies (Directive 93/
36/EEC);
^ Ministry of Environment, Physical Planning and Public Works for public procurement of
works and construction contracts (Directive 93/37/EEC);
^ For the utilities sector (Directive 93/38/EEC), the above competent Ministries by sector of responsibility.
^ The above mentioned Ministries co-ordinate their action for the government of procurement
policy and for the preparation of the legislative framework as well as the incorporation of Community legislation in the Greek legal system.
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Greece
Duties
Among the essential tasks of the competent Ministries is the ensuring of the proper understanding and application of the procurement rules.
Contracting authorities in Greece (governmental departments and agencies, local self administration authorities such as prefectures and municipalities, etc.) are solely responsible for ensuring that their
own procurement procedures are in line with the law. Contracting authorities can consult the competent Ministries for advice and guidance. However, ultimately the decision and the responsibility over
a given procurement remain with the contracting authorities.
In addition, the above mentioned Ministries play an important role as first instance complaint
authorities (administrative) in the procurement area. The Ministries capacity in this relation will be described in the following, under point 3.
1. Judicial bodies
When the Contracting Authority is the State or a legal person governed by public Law, the request to suspend or annul the ratifying decision may be made before the Council of State, which is
the highest Administrative Court (Annulment Court) of Greece. For the rest contracting authorities
the cases are brought to civil courts (regional), which are also competent for all cases of damage claims.
2. Administrative bodies
Appeals against decisions of the contracting authorities are lodged before the competent Minister to
come to a decision. In some Ministries advising committees participate in the procedure.
Especially for appeals against the decisions of regional authorities (of 1st and 2nd degree) the
competent administrative body is the Committee set up under Article 18 of Law 2418/94 in each prefectural administration to deal with prefectural or local contracts. Members of this Committee are
high ranking civil servants and its president is a member of the Legal Council of State.
The types of public procurement contracts available in the Greek legal system correspond to
those described in the EC Directives.
Contract notices for works, supplies and services falling within the EC Directives must normally
be advertised at the start of the award procedure as described in the corresponding Directives in the
Official Journal of European Communities and the Greek press. For works and supplies above and below thresholds, publication of contract notices is also made at the Official Gazette of the Government.
The awarding procedures followed by Greek contracting authorities are in compliance with the
public procurement Directives for contracts which are above the threshold of the Directives. As far
as awarding procedures for contracts below the threshold set in the Directives are concerned, the
same principles, rules and procedures are followed in general.
Contracting authorities must use either the open or the restricted procedure. The use of the negotiated procedure both with and without publication is exceptional and may be used only in a limited
number of cases, as defined in the Directives.
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Appeal procedures
1. Administrative level
All parties concerned have the right to lodge an appeal against any act or decision of the Contracting Authority during the award procedure, on the grounds that it infringes the law, before the competent administrative bodies (as above).
If the request for annulment is accepted, the applicant is entitled to claim damages from the Contracting Authority.
In general, decisions taken by the above mentioned administrative bodies can in any case be
brought to the competent Court.
2. Judicial level
Request for injunctions and request for annulment before the competent courts
For procurements covered by Directives
Before submitting the request for an injunction against the ratifying decision, the party concerned
must lodge an appeal before the Contracting Authority. The request for an injunction has to be submitted within a certain period counting from the explicit or tacit rejection of the appeal. During the
period of the examination of the appeal the procedure for the awarding of the contract is ceased.
For injunction requests to be accepted, a serious infringement of Community or national law must
be suspected, and the contracting authorities are obliged to comply with the final decision. The party
concerned who has obtained the enforcement of an injunction in his favour has 30 days to lodge a request for annulment or start main proceedings before the competent court.
For procurements not covered by the Directives
^ When the contracting authorities are the State or a legal person governed by public Law, the
request to suspend or annul their decisions may be made before the Council of State;
^ When the Contracting Authority belongs to the wider public sector, the Civil Courts are competent to adjudicate.
More specifically the Court can, at its discretion, issue a provisional order containing whatever
measures the Court believes are needed, including deliberating and publishing the suspension. The
publication of this decision brings into force whatever measures the Court has decided.
There are no important new organizational and managerial arrangements to be reported. In the
Greek Legislation there is no special term that defines the concept of Public- Private Partnership
(PPP) and there is no single comprehensive special legislative framework that regulates through concession contracts.
Models adopted
The forms of PPP used in Greece are mostly contracts of the Build- Operate- Transfer (BOT)
type as well as joint ventures that are set up in the frame of Local Government Organizations.
There is, though, in the national legislation for the construction of public works a general provision- framework that offers the opportunity of tendering works with other non-financial benefits besides the monetary contractors recompense.
Such other benefits may be the concession of the use or the exploitation of the project for a specific time period or in return to agricultural, mineral or industrial products and others.
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Greece
There are special provisions implemented during the execution stage of the works by concession.
However there are no detailed and exhaustive provisions. The concession contract which is normally
ratified by Law is governed in principal by the terms set out in theTender Documents and complementary by the provisions of the Civil Code.
In addition to these there are also special laws that regulate the concession method for specific
entities as for example:
a. The National Road Fund (TEO) may lease or make concession of the use of areas beside the
national roads to private parties for the construction through private financing of installations
for providing services to passers- by (petrol stations, restaurants etc) in return to the right of
exploiting these installations for a specific time period;
b. Municipalities of the country may award to private companies the construction of monitored
zones for vehicle parking in exchange to their exploitation;
c. The construction of works by contractors in tourist ports (marinas) in exchange to the concession of use and exploitation of the zone of the marina for a specific time period.
The Greek legislation provides that perfectural and local authorities respectively may set up their
own enterprises or participate in businesses which they set up with legal or natural persons or in enterprises that are already in existence for the execution of works that aim at providing public utilities.
In the frame of these provisions municipality enterprises have been set up for water and sewerage,
waste management, teleheating etc.
The Greek state has already used the above provision of the legal system to construct public interest infrastructures.
In Greece there is no specific legislation concerning e- procurement and there has been no such
practice so far. We are at a preparatory stage of developing the networking among public authorities
and also, at a preliminary stage of studying awarding procedures by electronic means.
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Hungary
1. Legal framework
In 1995 the Hungarian Parliament passed the law regulating public procurement: Act XL. of 1995
on public procurement that is still effective today, albeit having been amended on several occasions.
Hungarys association agreement with the European Union came into force in 1994, before the
Act was passed. Consequently, during codification the legislator took into account the public procurement Directives of the European Union. (Besides the Directives the UNCITRAL model agreement
and the public procurement code developed by WTO also served as relevant standards.) As a result,
at its inception the Hungarian law on public procurement was mostly aligned to the relevant body
of EU law, and the impact of subsequent amendments was to facilitate legal harmonization requirements laid down in the accession agreement.
However, with a view to the fact that the new act on public procurement, harmonized in all respects, has not been passed yet, when this summary is being written, therefore the writer is compelled
to review the rules effective currently, presenting the relevant institutional background. Should the
Act in question be passed in the meantime, the following description shall be supplemented and
amended accordingly. (Incidentally, the amendments most likely shall not extend to a significant
change in the institutional structure.)
General Principles
The general principles that express the essence in public procurement are the principles that are
accepted internationally:
^ openness and transparency;
^ fairness in competition;
^ equal opportunities;
^ the principle of national treatment.
Of course, in many instances the general principles incorporated into law are expressed in the
form of specific provisions. The role they have exerted in filling in gaps existing in the law finds demonstration in the fact that the relevant authority, the Public Procurement Arbitration Committee
(see below) in several cases judged a given type of behaviour to be contrary exclusively to one of these
principles.
Currently Effective Rules
Effective Hungarian public procurement law is incorporated in an act and in some lower level legal instruments (government decree, ministerial decree).
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Act XL. of 1995 on public procurement is the fundamental body of law, which provided powers
to have the following decrees issued:
National Law
N.
Government Decree 128/1995
X.20.
VII.24.
detailed rules for centralized public procurement
VII.24.
procurement by central budgetary entities below value thresholds
Ministry of Environment Protection and Region Development Decree 1/1996
II.7.
the procedure for publication in the Public Procurement Bulletin and the relevant fees
the technical terms of reference for public works projects
VI.29.
the procurement of certain pharmaceuticals and medical prostheses
X.22.
procedural rules for procurement of military goods
X.22.
specific rules for certain procurements related to national security and fire protection purposes
The Ministry of Environment Protection and Region Development Decree 16/1998. (VI.3.) on civil engineering design contests was not founded on the powers provided by the Act on public procurement, however it is in concert with its provisions.
Rules Being Drafted
In 2002, in order to fulfil the preconditions required by accession to the European Union, codification activity has commenced on a harmonized public procurement law that ensures alignment to
the Directives. According to information coming from the Ministry of Justice, who is responsible
for preparing legislation, the draft shall be tabled in front of Parliament in September last year. There
shall be a new act regulating public procurement activities, and this shall rely heavily on the now effective act. Naturally, the harmonized act shall have to be supplemented with the legal institutions provided in Directives that are not incorporated into the current act, including among other things the
possibilities for attestation and conciliation, and in addition, certain provisions (e.g. scope, exceptions,
value thresholds, rules for publication in the OJ) shall have to be completely aligned to community law.
May we just mention at this point that the development of the concept and structure for electronic public procurement is under way; the law regarding e-procurement, most probably, shall be promulgated in an independent act.
Bodies Responsible for Public Procurement
When in 1995 the legislators created the public procurement law they established a specific structure in order to implement the objectives incorporated in the law. In this the mainstay is the Council
for Public Procurement, an independent body directly reporting to Parliament.
The Council is constituted of a full-time Chairman and 18 Members, of which an equal proportion (6 members each) represent:
a) public interests;
b) the interests of the contracting authorities;
c) the interests of tenderers.
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Hungary
The Act on public procurement establishes the framework of those organizations that are eligible
for appointing members to the Council. The members serve for a term not less than two years and
are not remunerated for their activity from the budget of the Council for Public Procurement.
The President is elected by the Council for a five year term of service, and may be re-elected once.
The Council elects from its ranks a Vice-President for a two year term of service, who is duly empowered to substitute the President in absentia.
The Council is assisted in discharging their duties by the Secretariat of the Council for Public
Procurement, their standing working structure.
In the field of public procurement the Public Procurement Arbitration Committee, working
alongside the Council, is responsible for the administration of legal remedy. The Arbitration Committee is an independent body, governed in their proceedings exclusively by the provisions of law. However, their scope of activity does not extend to legal debates that emerge after the conclusion of the
contract, in such cases the Court is seized.
There was no independent, specific body set up to control public procurement, and as a consequence control functions are practiced by the general supervisory bodies, such as the State Audit Office, Government Control Office, and the Hungarian Competition Authority, that has a general
competence in issues related to unfair competition.
Objectives
The scope of competence for the Council for Public Procurement is set out in the effective act on
public procurement, as follows:
The Council
a) shall follow with attention how the provisions of the act are implemented, shall initiate the
drafting and amendment of rules related to public procurement;
b) shall provide input into the drafts of law related to public procurement and to the activity of
the Council;
c) shall issue recommendations within the scope of the law to facilitate implementation;
d) shall set out the number of staff for the Public Procurement Arbitration Committee, shall appoint and remove the Chairman of the Committee and the public procurement Commissioners;
e) shall publish the Public Procurement Bulletin, the official organ of the Council, and shall have
the relevant notices published;
f) shall facilitate training in public procurement;
g) shall maintain contacts with public procurement organizations in other nations and with international organizations;
h) shall compile each year the list of recognized tenderers.
Each year the Council convenes an average of 7 to 8 sessions.
The Secretariat carries out the preparations for and the implementation of the decisions made by
the Council, they register statistical data, they maintain contacts with international organizations and
with public procurement bodies in other countries, they issue viewpoints in order to assist the activity
of the actors in public procurement, they cover the duties related to training and pursue other administrative activities that are needed for the operation of the organization.
The Secretariat is headed by the General Secretary; the members of their staff are civil servants
under the Council. At present the Secretariat has a staffing of 35 persons.
The Secretariat, and within its structure the Legal Department, is responsible for preparing
Council resolutions related to legal issues, and in particular for developing Council recommendations.
(Recommendations are designed to provide orientation in legal interpretation issues that recur in the
application of law and, naturally, do not possess mandatory power.) Each year the Secretariat addresses
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approximately 250 to 300 written, and each day about 30 to 40 verbal queries providing legal opinion.
In responding to queries the Secretariat devote particular care to the fact that their positions stated
possess no mandatory power and that they are not empowered to interpret law with regards to specific
cases. As far as possible the officials in the Legal Department regularly represent the Council at various
international events, conferences, and respond to invitations received from international organizations.
They also participate actively in the training programs arranged by the Council.
The Editorial Board operating within the structure of the Secretariat carries out the tasks related
to the publication of notices related to public procurement. The notices received are checked by legal
revisers to ensure these legally fulfill the conditions set out in relevant law.
Bodies Responsible for Legal Remedy
The Act on public procurement established the Public Procurement Arbitration Committee,
operating alongside the Council for Public Procurement, as an independent body in charge of proceedings in legal
disputes arising out of public procurement projects.
The Arbitration Committee has a staff of 19 persons. Its members ^ public procurement commissioners ^ its chairman and deputy chairman are appointed and removed by the Council. Only persons
who have not less than three years professional practice and have, additionally, earned a specialized
law exam, or a specialized administration exam may be commissioners. There are strict rules governing
conflict of interests in the case of commissioners. The commissioners independence is guaranteed
by provisions in the law prohibiting in any specific public procurement case instructions being issued
to the commissioner who shall only consider the provisions in the law when executing duties.
The Arbitration Committees scope of activity includes:
a) conducting a process started because of alleged unjustified neglect in applying a public procurement procedure;
b) ruling in a legal dispute regarding the violation of the principles or of the rules of public procurement;
c) ruling on any request submitted by any interested party against a decision reached by the contracting authority.
Any legal dispute within the context of public procurement in which the Arbitration Committee
has no scope of competence shall fall under the scope of competence of the Court.
Tasks in Front of Bodies Responsible for Legal Remedy
The task of the Arbitration Committee, consequently, is to process disputed cases that involve issues belonging to their scope of competence in the field of public procurement.
The Arbitration Committee is entitled to apply in their rulings the following legal consequences:
a) reject an unfounded request;
b) before the procedure ends they may request the violator of law to rectify the procedure, or may
establish preconditions in front of a decision to be made by an contracting authority;
c) invalidate any decision brought by the contracting authority, as long as the contract has not
been concluded yet;
d) note that the law has been violated (in particular when the relevant contract had been signed in
the meantime);
e) may prohibit tenderer from participating in any public procurement procedure for not more
than five years;
f) must levy a fine against the person or the organization responsible for the violation of the law;
g) may order the application of the rules regarding aggregation (should the procurement infringe
the provision prohibiting dividing into parts);
h) rules on who shall cover the fee of the process and the costs related to the process.
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Hungary
The Arbitration Committee is entitled to make interim measures, in which they may order the
suspension of the procedure and/or prohibit the conclusion of contract, or may call on the contracting
authority to involve the claimant in the procedure.
In the context of public procurement the Court rules on disputed issues that are outside the scope
of competence of the Arbitration Committee (e.g. claim for declaring a contract invalid, or for an
award of damages), and rules on petitions submitted against the rulings of the Arbitration Committee.
3. Types of public procurement and public procurement procedures
Types of Procurement
The Hungarian act on public procurement, just like the Directives, distinguishes three types of
procurement:
^ procurement of goods;
^ procurement of services;
^ procurement of public works.
The definitions of these concepts differ in the Hungarian law from the definitions set out in the
Directives, although as far as their substance is concerned they are mostly identical. (The new law
most probably shall offer amendments to these concepts.) All in all, any contract that is concluded
for a consideration and is not set aside as an exception falls under the material scope of the law.
Publication of Notices
Notices are published in the Public Procurement Bulletin, the official organ of the Council for
Public Procurement, which is issued once a week. The compilation of notices related to public procurement procedures, on the basis of the annexes set out in the law, is the duty of the procuring
authority which also is liable for covering the expenses of publication. Notices have to be delivered
to the Editorial Board of the Bulletin.The Editorial Board supervises, from a legal aspect only, the notices and takes care of the publication of such.
Only the notices and other communications set out in law may be published in the Public Procurement Bulletin. Notices related to the public procurement procedure are:
^ on the one hand linked to procurement intentions (invitation to bid, invitation to participate,
preliminary aggregated information);
^ on the other one are of an informative nature (information about the results of the procedure,
information on the results of the participation phase of the two phase procedures);
^ related to the amendment of invitations to bid (participate) and of documentations, or are related to correcting the notices published.
The scope of communications that may be published as set out in the law includes, e.g. the recommendations of the Council, the information briefing from the President of the Council, the list
of recognized tenderers. Pursuant to the act on public procurement it is mandatory to publish in the
Bulletin the rulings of the Arbitration Committee, and of the Court.
Procedures for Awarding Contracts
Just like the Directives the Hungarian law on public procurement distinguishes three types of
procedures:
^ open procedure;
^ restricted procedure;
^ negotiated procedure.
According to the law on public procurement the open procedure is the principal process among
the procedures; the contracting authority may apply negotiated and (differing from the Directives) restricted procedures only if the law expressly permits it.
97
One of the specific features in the Hungarian system is a specific form of the open procedure, the
open, prequalification procedure. The application of this procedure is mandatory for public works
above a certain value threshold (240 million HUF), and when the national preference clause that still
exists is applied. However, with a view to its form it is a two stage procedure resembling the restricted
procedure.
Another specific feature in the provisions for procedures is the current system for the restricted
procedure. According to the law the restricted procedure may be applied in two cases:
a. if owing to the nature of the subject of the contract there are only a restricted number of tenderers which meet the conditions for fulfilling the contract;
b. there are not less than five suitable tenderers on the list of recognized tenderers regarding the
subject of the procurement.
In this latter case only the tenderers figuring on the list of recognized tenderers may participate in
the procedure.
Finally, the Hungarian public procurement law incorporates a specific provision, insofar as when
the negotiated procedure without a prior publication of notice is applied, the Chairman of the Arbitration Committee shall have to be informed about the starting of the procedure, and about the conditions that substantiate the application of the procedure. (The impact of this provision was a substantial
decrease in the number of procedures without a publication of notice since 1999.) Otherwise, the cases
and the provisions for the negotiated procedure are aligned completely with the provisions of the Directives.
Rules for Legal Remedy
Procedure of the Arbitration Committee
In cases involving public procurement the Arbitration Committee has primary responsibility, as
indicated above, for assessing complaints.
The Arbitration Committee takes action ex officio or responding to a request. Ex officio action is
specific insofar as only persons or organizations laid down in the law are entitled to initiate such action
(e.g. a Member or the President of the Council, the State Audit Office, the ombudsman, etc.). In the
case of a negotiated procedure without a publication of notice the Chairman of the Arbitration Committee is also entitled to initiate a process ex officio if, on the basis of documents compulsorily delivered, an infringement to the provisions of the law may be alleged. The tenderer, the contracting
authority, and any other interested party, whose rights or justified interests are violated or jeopardized
by the activity that violates the law are entitled to submit a request for legal remedy.
In the benefit of ensuring sustained legal confidence there are strict deadlines relating to requesting (or in case of ex officio action, to initiating) a legal remedy procedure: interested parties may submit a request within 15 days from having taken note of the violation (alleged violation) of law, but
in any case within not more than 90 days counted from the occurrence of the petitioned act or behavior. The fee for submitting a request for legal remedy is 150 thousand HUF (app. 625 EUR).
In the request or in the initiating document interim measures may be solicited. As mentioned above
the Arbitration Committee may rule to suspend the procedure, to prohibit the signing of the contract,
or they may request contracting authority to involve the claimant in the process.
The Arbitration Committee performs their activity in three-member tribunals
In the course of activity they are entitled to look into any document pertaining to public procurement, and may obtain any relevant information regarding the case. They are entitled to apply fines
to enforce the above.
There are extremely short deadlines for the process performed by the Arbitration Committee,
with an aim to ensure quick and efficient handling of legal disputes. They are obliged to deliver a ruling within not more than 15 days, counted from the arrival of the request or from the day the process
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Hungary
was initiated.When a hearing is held (which may be requested by any concerned party) this deadline is
30 days. In justified cases the Arbitration Committee may once prolong by not more than 10 days the
deadline available for a ruling.
The number of legal remedy cases is relatively high, compared to the total number of public procurement procedures. There were 791 procedures in front of the Arbitration Committee in 2002. In
2001 the relevant figure was more than 800.
Procedure in Front of the Court
There is no possibility for an administrative appeal against a ruling delivered by the Arbitration
Committee. Interested parties may seize the Court for the purpose of an appeal. According to the
act on public procurement 15 days are available, counted from the receipt of the ruling of the Arbitration Committee, to address the Court. The Court, with a view to the extreme importance of public
procurement issues, shall hear the case with dispatch.
On the basis of the complaint submitted against the ruling of the Arbitration Committee the
Court shall only review the ruling. The Court decision may alter the ruling of the Arbitration Committee (and incidentally may apply the legal consequences which the Committee is entitled to), may approve it, or may order a new legal remedy procedure. An appeal may be submitted against the ruling
of the Court.
138 appeals in 2001 and 167 in 2002 were submitted against the rulings of the Arbitration Committee.
Only the Court may award damages or declare a contract invalid; however under the provisions of
Hungarian civil procedural law a separate claim has to be entered for this process.
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Iceland
Directives
Iceland joined the EEA-agreement 1st. January 1994.
The following Community Directives on public procurement have been implemented in the domestic legal system of Iceland:
Directive
II. Date
Directive 92/50/EEC
18th June 1992
The co-ordination of procedures for the award of public

service contracts
Directive 93/36/EEC
14th June 1993
The co-ordination of the procedures for the award of public supply contracts
Directive 93/37/EEC
14th June 1993
The coordination of procedures for the award of public

works contracts
Directive 97/52/EC
13th October 1993
The amendment Directives 92/50/EEC, 93/36/EEC and 93/

37/EEC concerning the coordination of procedures for
the award of public service contracts, public supply contracts and public works contracts respectively
Directive 93/38/EEC
14th June 1993
The coordination of the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
21st December 1989
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
Directive 92/13/EEC
25th February 1992
The coordination of the laws, regulations and administrative

provisions relating to the application of Community rules
on the procurement procedures of entities operating in the
water, energy, transport and telecommunications sectors
13th September 2001 Amending Annex IV to Council Directive 93/36/EEC, Annexes IV, V and VI to Council Directive 93/37/EEC, Annexes III and IV to Council Directive 92/50/EEC, as
amended by Directive 97/52/EC, and Annexes XII to XV,
XVII and XVIII to Council Directive 93/38/EEC, as
amended by Directive 98/4/EC (Directive on the use of
standard forms in the publication of public contract notices)
Directive 98/4/EC
16th February 1998
The amendment of the Directive 93/38/EEC coordinating

the procurement procedures of entities operating in the
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General principles
The EC Treaty lays down some fundamental principles which are generally applicable and which
contracting authorities have to observe when awarding all contracts, including those whose value
fall below the threshold for application of the specific rules laid down in the Directives. All general
principles governing public contracts constitute the basis of the Icelandic legislation on public procurement. Among those are the principles of equal treatment, non-discrimination, transparency, proportionality and mutual recognition.
The public procurement Directives have been implemented by the following governmental orders:
^ The public procurement Act n. 94/2001;
^ The public projects procedures Act n. 84/2001.
The above mentioned Acts implemented the procurement Directives on public works, supplies
and services as amended by the European Parliament and Council Directive 97/52/EC, the utilities Directive as amended by Directive 98/4/EC of the European Parliament and of the Council and the Remedies Directives. The Act contains further detailed rules concerning the Complaints Board competence and organizations, the procedures before the Board etc.
Furthermore the above mentioned Act contains provisions, which implement the Commission
Directive 2001/78/EC on standard forms.
Furthermore the public procurement Act in Iceland contains instructions to the state authorities
concerning purchasing of construction and work contracts, services and goods below the thresholds
of the EU-Directives.
The Government Procurement Policy of the Icelandic State
The Government of Iceland has approved in November 2002 the Government Procurement Policy which principally aims at creating trust and dependable environment for public procurement.
The procurement policy has a reach over Ministries and State institutions. The policy stipulates as
well special emphasis and goals for government purchasing in the years 2003-2006. The government
emphasizes the conduct of purchasing in the manner that procurement in general is efficient, open,
conducted responsibly and in a fair manner. The arrangement of purchasing aims at fortifying market
competition.
The policy includes defined, measurable goals for the State in general, for individual Ministries
and particular schemes. Moreover, general preconditions are defined that make the fundament for preparation and execution of government purchasing. Finally special emphasis and tasks that will be in
the forefront in the next years are identified. It is made clear that purchasing not only regards the product, the service or the work that is being purchased, but also the total process from the time the purchasing is being prepared until the use of the relevant purchasing has ended.
It is important that managers within the government are conscious of the cost of each internal operation and the cost of comparable operations in the market. By entrusting private entities to carry
out certain tasks it is possible to achieve goals on efficiency, increased competitiveness and diversity
of the service, which is suited to build up knowledge in the society and is of use for other actors in
the market. The government procurement policy does therefore encapsulate operations or tasks that
now are carried out by official institutions.
Definition of purchasing: Each Ministry is expected to issue their defined individual procurement
policy also applicable for their subsidiary institutions, before the end of 2003. The policy shall contain
their main emphasis in purchasing, procedures that are to ensure successful implementation and savings
objectives that are based on the procurement policy. The Ministries are expected to publish their individual policy and introduce its content to their institutions and their employees. The Ministries are as
well expected to make annually a report on the results of the policy.
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Iceland

At the moment there is no legislative activity in the field of public procurement.
The Ministry of Finance is responsible for the government procurement policy and for the legislative framework.
Duties
Among the essential tasks of the Ministry of Finance is to ensure the proper understanding and
application of the procurement rules.
Rikiskaup -The State Trading Centre which is part of the Ministry of Finance takes care of public
procurement and its task is to provide advice concerning the interpretation and the application of
the rules on public procurement.
Another important task of the Ministry of Finance is to participate in EU-negotiations and other
international co-operation in the field of public procurement. The Ministry of Finance is also responsible for the implementation of the EU rules.
In Iceland all contracting authorities governmental departments and agencies, local authorities
etc. are solely responsible for ensuring that their own procurement procedures are in line with the
law. Contracting authorities can consult the StateTrading Centre for advice and guidance. However ultimately the decision and the responsibility over a given procurement remains with the contracting
authorities.
If a company in Iceland finds that a public procurement entity does not fulfil the procedure requirements, the company can complain directly to the Complaints Board or can raise the matter in a
less formal manner with the Ministry of Finance (informal problem solving). They can also complaint to ESA (EFTA Surveillance Authority) in Brussels.
1) The Icelandic Complaints Board
The Complaints Board for Public Procurement is a specialized administrative board, which has
been set up by law to act as review body as required by the two Remedies Directives. It functions as
a quasi-judicial administrative body. Its function is to hear complaints and settle disputes arising
from alleged violations of EU rules and Icelandic laws on public procurement.
The Complaints Board was set up by regulation in 1996 to comply with the Remedies Directives.
Initially, the Complaints Board was an advisory body for the Minister of Finance who entered into rulings. However, according to the public procurement Act n. 94/2001, which entered into force as of
June 1st 2001, the Complaints Board became an independent body, entering into ruling under its
own auspices.
Detailed rules regarding the functioning of the Board are laid down in a ministerial order issued
by the Icelandic Minister of Finance.
Appeal of decisions made by the Complaints Board lies with the ordinary courts.
Bringing a complaint about an alleged violation of EU procurement rules before the Complaints
Board is an option it can also be taken to ESA (EFTA surveillance authority) in Brussels. Such a complaint can not be taken directly before the ordinary courts. It has to be taken first to the Complaints
Board.
Very few decisions by the Board, however, have subsequently been brought before the courts.
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2) The courts
Complaint body resolutions can be appealed to the ordinary courts.
So far, no criminal proceedings have been instituted by the prosecution service against a public
contracting authority or entity for violation of the procurement rules.
For any given contracting authority in Iceland, the types of public procurement contracts available correspond with those available under the EC Directives i.e. public works, public supply and public services contracts etc.
Individual contracts falling within the EC Directives must normally be advertised at the start of
the award procedure. In addition, there is a possibility to publish advance notices or purchases which
the authority intends to make in the future, referred to as Prior Information Notices (PINs). The contract notice must be published in the Official Journal of the EU and its electronic equivalent Tenders
Electronic Daily and are published in the biggest Icelandic newspaper MorgunblaUiU every Sunday.
Even if a competition is not required under the EC Directives, for example because the estimated
value of the contract falls below the relevant threshold, the authorities must ensure competition and
to abide by EC Treaty principles.
In Iceland the public procurement Directives apply directly for contracts which are above the
threshold of the Directives. Thus contracts covered by the Directives must be awarded in compliance
with the procedures regulated in the Directives. The following two sections describe shortly the types
of award procedures, which are regulated in the Public Sector Directives and the Utilities Directive.
a) Award procedures in the Public Sector Directives
Contracting authorities can use one of the following types of procedure:
1. The open procedure.
This is a formal tendering procedure under which the call for tender is publicly advertised and all
interested parties are able to tender.
2. The restricted procedure.
This is also a formal tendering procedure, whereby a notice is publicly advertised to invite potential suppliers to express an interest. Tenders are then invited from a limited number of companies selected by the authority.
3. The negotiated procedure.
Under this procedure the authority simply selects potential contractors with whom to negotiate,
and awards the contract to one of these firms without necessarily following any formal tendering procedure. There are two types of negotiated procedure:
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Iceland
a. the negotiated procedure with advertisement, under which the authority must advertise to find suitable
firms with which to negotiate;
b. the negotiated procedure without advertisement, whereby the authority is permitted to select a firm or
firms with whom to negotiate without any prior advertisement.
4. The accelerated procedure.
Under this procedure the authorities may use shorter time limits than the time limits for the normal restricted procedure. The accelerated procedure may only be used in exceptional cases, where urgency renders the time limits for the restricted procedure impractical.
5. The design contest.
The design contest is a competition, in which a contracting authority invites the entry of plans
and designs, which under the rules of the competition are to be judged by a jury and as a result of
which the authority is to acquire the use or ownership of the plans or designs which the jury selects.
As a general rule the contracting authorities must use either the open or the restricted procedure.
The negotiated procedure both with and without advertisement is an exceptional procedure, which
may be used, only in a limited number of cases, which are carefully defined in the Directives.
Individual contracts falling within the Works Directive, Supplies Directive or Services Directive
must normally be advertised at the start of the award procedure. In addition, there is a possibility to
publish advance notices or purchases which the authority intends to make in the future, referred to
as Prior Information Notices (PINs).
b) Award procedures in the Utilities Directive
According to article 20, paragraph 1 in the Utilities Directive the contracting entities may choose
to use one of the following types of award procedures:
I. The open procedure;
II. The restricted procedure;
III. The negotiated procedure (with advertisement);
IV. Design contest.
The rules for the open procedure are the same as in the Public Sector Directives. The time limit
for the procedure is 52 days or 36 days where a PIN has been published.
Furthermore according to article 20, paragraph 2 of the Utilities Directive the contracting entities
may use a procedure without prior call for competition in certain cases. This procedure is parallel to
the negotiated procedure without advertisement in the Public Sector Directives.
The Utilities Directive does not contain an explicit provision for accelerated procedure.
c) Contracts, which are not covered by the public procurement Directives
Furthermore within the public works sector the national law on tendering covers all contracts
from ISK 10.819.000,- to the EU-threshold. In fact it also covers works contracts concluded by private
persons or entities if state or local authorities subsidise the concrete work. However the national regulatory framework offers flexible procurement methods, especially as regards the use of the negotiated
procedure or negotiation within other procedures.
As regards goods and services there is a general procurement policy from the Ministry of Finance
dated November 2002, applicable to state institutions.
Appeal procedures
The following sections contain a brief description of the appeal procedures in Iceland.
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I. The Complaints Board

a) Organization and Competence
The Complaints Board is an independent administrative board for the hearing of complaints concerning violation of the EU rules for the award of public contracts. The competence of the Board relates both to the public procurement Directives and the relevant rules of theTreaty on non-discrimination and the free movement of goods and services.
The Complaints Board shall be comprised of three persons appointed by the Minister of Finance
for a four-year term. Alternates shall be appointed in the same manner. The chairman of the Committee and alternate must fulfil the legal requirements made of district court judges. Other members of
the Committee must have comprehensive commercial knowledge and experience. Committee members must be independent of interests of the state or other public authorities.
b) Claimants
The role of the Complaints Board is to resolve promptly and impartially complaints by individuals and legal entities concerning claimed violations of this Act and rules adopted pursuant to it.
The Committee shall work independently. Its rulings and decisions as provided for in the Act
may not be referred to other public authorities.
At the request of the Ministry of Finance or a relevant contracting authority, the Complaints
Board may deliver an advisory opinion on particular procurement even in the absence of any complaint.
Complaints may be referred to the Complaints Board by individuals and legal entities who enjoy
rights as provided for by the Act and have legitimate interests in the resolution of the complaint.
A complainant may transfer the right to submit a complaint to an association or organization
which safeguards his interests.
A complaint is submitted to the Complaints Board for handling of the case at no charge.
A complaint must be submitted in writing with the Complaints Board within four weeks of the
complainant having learned, or having been able to learn, of the decision, action or failure to act which
he considers a violation of his rights.
The complaint shall provide information on the complainant, the party against which the complaint is directed and the decision, action or failure to act which is the grounds for the complaint. A
complaint must state the claims of the complainant together with a brief description of the circumstances of the case, developments and reasoning. Claims advanced by a complainant must concern
the remedies available to the Committee as provided for in Act.
If a complaint does not fulfil the conditions laid down by the Act, the Complaints Board shall request that the complainant remedy the deficiencies within a reasonable time limit. If the complainant
fails to do so the Complaints Board shall dismiss the complaint.
The Complaints Committee may as a rule, invite a complainant to submit further documentation
or information to explain a question if it feels the question is not sufficiently clear and may grant
him a certain time limit for so doing.
It takes on average a period of 2 to 3 months for the Complaints Board to decide on a complaint
brought before it. The Board handles on average 30-40 complaints yearly.
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Iceland
The Complaints Committee may with a ruling invalidate or alter a decision by the contracting
authority for public procurement, cf. however the Act (Once a contract has been concluded it shall
not be invalidated or altered, even though the decision of the purchaser on the tendering or awarding
of the contract may have been contrary to law).
The Complaints Committee may instruct the contracting authority to tender certain procurement, advertise a tender once again or alter a tender notice, description of tender or other aspect of
tender documents.
The Complaints Committee may express its opinion on the liability of the contracting authority for damages towards the complainant, but shall not express itself concerning the amount of damages.
The Complaints Committee may decide that the party against whom a complaint is directed
shall pay the complainant the cost of lodging the complaint. If a complaint is clearly unjustified or
lodged for the purpose of delaying the implementation of public procurement the Complaints Committee may rule that the complainant pay legal costs of the case, which shall accrue to the national
treasury.
If a ruling of the Complaints Committee as provided for in the Act is not complied with, it may
levy per diem fines on the party at which the ruling is directed. Fines may amount to up to ISK
500.000 for each day which elapses without compliance with the Complaints Committees ruling. If a
ruling is referred to a court the per diem fines shall not commence until final judgement is pronounced.
Per diem fines as provided for in the here above shall accrue to the national treasury. Per diem
fines and a ruling on legal costs, as provided for here above, are enforceable by execution without prior
court judgement.
The Complaints Board being an administrative body does not have the power to annul a contract
that has been concluded.
However this will have to go to the ordinary courts.
e) Sanctions
The Complaints Board may demand that the parties to the case submit any documentation or
other information concerning the case. If a complainant fails to respond to such a demand his
complaint may be dismissed immediately. If the party against whom a complaint is directed fails
to respond to such a demand, his disregard may serve to his disadvantage in resolution of the question.
The Complaints Board may decide that the party against whom a complaint is directed shall pay
the complainant the cost of lodging the complaint. If a complaint is clearly unjustified or lodged for
the purpose of delaying the implementation of public procurement the Committee may rule that the
complainant pay legal costs of the case, which shall accrue to the national treasury.
The defendant contracting authority/entity, however, will not have its costs covered, even if the
claim is dismissed.
Contracting authorities/entities are liable to punishment if the procurement rules are violated.
Moreover, failure on their part to comply with a prohibition or enforcement notice, wilfully or by gross
negligence, issued by the Complaints Board is punishable by a fine. For criminal sanctions to be initiated the contracting entity must be notified to the prosecution service. Criminal proceedings have
never been instituted by the prosecution against a public contracting authority or entity for violation
of the procurement rules.
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II. The Courts

The appeal procedure in the Courts is regulated by the Administration of Justice Act.
III. ESA (EFTA Surveillance Authority)
Cases can be taken to ESA (EFTA Surveillance Authority), in Brussels.
There is no Icelandic legal definition on PPP, or Public Private Partnership.
The term PPP covers broadly any commercial relation between a state or local authority and a private party on production and/or delivery of services to the authority and/or directly to the citizens
for which the authority is responsible.
The notion of public responsibility excludes pure privatization (where the market and not the
public sector decides the amount of supply).
Thus PPP contracts are not a homogenous type of contracts. The term may include inter alia:
a. Traditional public procurement contracts, e.g. on the collection of waste;
b. Concessions, where the risks inherent in exploitation are transferred at least partly to the concessionaire, e.g. a cafeteria in side a public pool facility;
c. Private Finance Initiative (PFI) normally pairing a work contract with a service contract (e.g. on
maintenance), eventually combining different payment methods under 1 or 2 above;
d. Free choice of the citizens, whereby the public authority undertakes to pay to any approved (1)
private or public supplier for services to a citizen in accordance with specified quality-standards. This could include a degree of privatization where a citizen out of his own pocket
pays the supplier for extra services;
e. Public/private companies established by an authority and a private company to provide public
services.
Legal framework
There is no specific legislation on PPP in Iceland, but specific legislation for various types of contracts.
The legal bases for public procurement contracts in Iceland are:
EU-Directives on public procurement
EU-Treaty (transparency etc.)
Icelandic legislation.
There is no general legislation on concessions (apart from the EU-rules on works concessions).
The ruling of the TELEAUSTRIA case is of course noted.
There is no general PFI-legislation. However, elements in a PFI-contract may be subject to public
procurement rules referred to above.
5. Models adopted
Usual forms of PPP in Iceland
Apart from traditional public procurement PPP is not commonly used in Iceland. We can mention a few projects that the Icelandic government has initiated, ag. a tunnel under Hvalfjord; a nursing
home for elderly people; a technical school. This procurement form can therefore be seen as being
in the pilot stage in Iceland until now.
(1) Any qualified supplier or eventually chosen through tendering.
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Iceland
In Iceland there is no specific legislation concerning e- procurement, besides the procurement
Directives and the legislation on electronic signatures.
One electronic marketplace called the ANZA Procurement Portal is in function in Iceland. It is
operated in collaboration with IBX a Swedish company, that is operating such a marketplace in other
Nordic countries.
a) The ANZA Procurement Portal
It is an electronic market place to which both private and public purchasers and their suppliers
have access, and whose functionality, interface, security and transaction costs are initiated by Ministry
of Finance through tender that took place in the year 2001/2002. The portal was fully launched in
June 2002. It is operating by a private enterprise and the users suppliers and public entities pay solely
for the use of the system per transaction that go through it.
The Ministry of Finance with Rikiskaup initiated this project after consultations with the business
community and public institutions in the year 2000.
The Ministry of Finance and Rikiskaup play an active part in the further development of the portal, giving special focus to the creation of tools, which are to promote both the private and public sectors use of e-commerce. Thus the focus of the portal is for the time being the development of facilities
addressing the after-contract stage, such as ordering and invoicing.
The use of the procurement portal is based on a contract with the private provider ANZA.
The establishment of the Procurement Portal is an important part in the governments strategy to
make procurement efficient. It aims also at creating a common infrastructure for the electronic trade
between public entities and suppliers.
b) Rikiskaup ^ The StateTrading Centre ^
Rikiskaup is a central purchasing organization, which is organized as a directorate under the auspices of the Ministry of Finance and is considered to be a contracting authority as defined in the
EU-Directives on public procurement and is self-financed.
Rikiskaup is directly involved in public procurement for individual state institutions a.g. the Road
admininstration, National hospital etc. Rikiskaup enters into a number of framework agreements concerning various standard products, these framework agreements are concluded in accordance with
the procedures and the requirements in the procurement Directives.
The Rikiskaup framework agreements normally have a maximum duration of 4 years.
Rikiskaup is also contributing consulting in legal and commercial matters to State institutions.
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Ireland
1. Legislative Framework
Directives
The Community Directives on public procurement form the basis of national public procurement legislation in Ireland. All current Directives have been assimilated into domestic law.
The Directives are given legal effect by Statutory Instruments made by the Minister for Finance
under the European Communities Act 1972. The regulations currently in force are:
Title
Directive
S.I. n. 104 of 1993
Review Procedures for the Award of Contracts by

Entities operating in the Water, Energy, Trans- 1993
port and Telecommunications Sectors
Directive 92/13/EEC
S.I. n. 292 of 1994
Award of Public Supply Contracts (Amendment)
1994
Directive 93/36/EEC
S.I. n. 293 of 1994
Award of Public Works Contracts (Amendment) 1994
Directive 93/37/EEC
S.I. n. 309 of 1994
Review Procedures for the Award of Public Supply, Public Works and Public Service Contracts 1994
(n. 2)
S.I. n. 51 of 1995
Award of Contracts by Entities Operating in the

Water, Energy, Transport and Telecommunica- 1995
tions Sectors
Directive 93/38/EEC
S.I. n. 378 of 1998
Award of Public Service Contracts
Directive 92/50/EEC
and 97/52/EC
S.I. n. 379 of 1998
Award of Public Supply Contracts (Amendments) 1998
Directive 97/52/EC
S.I. n. 380 of 1998
Award of PublicWorks Contracts (Amendment)
Directive 97/52/EC
S.I. n. 31 of 1999
Award of Contracts by Entities operating in the

Water, Energy, Transport and Telecommunica- 1999
tions Sectors
Directive 98/4/EC
S.I. n. 334 of 2001
Award of Public Service Contracts (Amendment)
2001
Provides for tendering

by electronic means
S.I. n. 611 of 2001
Award of Public Supply Contracts (Amendment)
2001

by electronic means
S.I. No 612 of 2001
Award of PublicWorks Contracts (Amendment)
2001

by electronic means
S.I. n. 343 of 2002
Public Contract Notices (Standard Forms)
2002
1998
1998
111
Currently, preliminary work is being undertaken to implement the provisions of the new legislative package expected to be adopted by end of 2003 or early 2004.
The Minister for Finance has Ministerial responsibility for public procurement policy. The function is discharged by the National Public Procurement Policy Unit (NPPPU) within the Department
of Finance. The NPPPU is assisted in formulating policy and disseminating best practice guidance
by the Government Contracts Committee (GCC). The GCC is a committee of officials from Government Departments and agencies which have a significant procurement function or from Departments
which have responsibilities for sectors which have significant procurement functions. A specialist
group with responsibility for the construction sector deals with construction matters. The GCC does
not have a statutory basis but public bodies are scrutinidzed on the basis of their compliance with
best practice material developed by the GCC and are accountable to Parliament via the Public Accounts
Committee.
Under the regulations implementing the Remedies Directives, the High Court is the body with
power to review contract award procedures. The Court may rescind an award decision and / or award
compensation for loss or damage as it sees fit.
3. Types of public procurement and award decisions
The public procurement regime is governed by the EU Treaties principles and the provisions of
EU Public Procurement Directives. Regulations giving effect to the EU Directives apply to contracts
for works, supplies and services above the value thresholds set out under the EU Directives which
are awarded by contracting authorities in the public sector and in the utilities sector. The regulations
do not apply to contracts below the EU thresholds but such contracts are subject to the principles underpinning the EU Treaties.
National guidelines require that all contracting authorities observe the principles of competition,
openness and transparency as the norm in promoting best practice and obtaining best value for public
money.
Contracts above the EU Directives thresholds are advertised in the Official Journal of the European Union [OJEU]. They are also advertised on a national public procurement portal www.etenders.gov.ie. It is intended that www.etenders.gov.ie will shortly provide a facility (a notification wizard)
for online completion and transmission of tender notices, including notices to the OJEU.
Contracts above an estimated value of e 50.000 are also advertised on the national public procurement portal www.etenders.gov.ie. Contracting authorities are encouraged to make tender documentation available to interested parties electronically on the portal.
Advertising in the OJEU and on the portal is frequently supplemented by advertising in national
and other appropriate media.
Contract Award Notices are also published on the portal. It is intended the portal will automatically generate a reminder to contracting authorities that have placed an earlier contract notice.
Procedures for Awarding Contracts
Contracts are awarded using open, restricted or negotiated procedures. The open and restricted
procedures are the most commonly used.
112
Ireland
Appeal Procedures
Procurement and Freedom of Information guidelines encourage contracting authorities to give
constructive feedback to unsuccessful candidates and tenderers on selection and award decisions. Under regulations implementing the Remedies Directives a candidate or tenderer who feels aggrieved
has recourse to the High Court for a review of the process. The High Court has the power to rescind
an award decision and / or to award compensation for loss or damage if a complaint is upheld. An aggrieved party may also request the EU Commission to examine the process if it considers an infringement has been committed.
Public Private Partnerships
The Irish Government has embarked on a programme of procuring certain works and services
via public private partnership arrangements (PPPs). The approach is outlined in The Framework for
Public Private Partnership in Ireland, a high level policy document launched by the Minister for Finance in November 2001.The framework agreement describes PPPs as an arrangement between public
and private sectors with clear agreement on shared objectives for the delivery of public infrastructure
and/or public services by the private sector that would otherwise have been provided through traditional public sector procurement.
Legal Structures
To underpin PPP arrangements with maximum legal certainty and to facilitate the fullest possible
participation by Irish State Authorities in the PPP process the State Authorities (Public Private Partnership
Arrangements) Act 2002 was passed. This act enables Irish state authorities to enter into PPPs and give
local authorities the power to enter into joint ventures. The Act contributes to the creation of an environment in which PPP can flourish as a method of public procurement.
In addition, the National Development Finance Agency Act 2002 led to the establishment of the National
Development Finance Agency, a statutory body to help provide cost effective financing for public investment projects. State authorities are obliged to seek advice on financing matters from the agency
although they are not obliged to take the advice.
Administrative Structures
The Public Private Partnerships process in Ireland is supported by a range of administrative structures.
^ Cabinet Committee on Infrastructure, Housing and PPPs: this is chaired by Taoiseach
(Prime Minister);
^ Cross Departmental Team: a high level civil service group which supports the cabinet committee;
^ The Department of Finance oversees the development of PPPs through a Central Policy Unit;
^ Project implementation is overseen by six Departmental / sectoral PPP Units. There are two
other consultative / advisory groups:
^ an interdepartmental group on PPP at which the heads of all the PPP Departmental / sectoral units exchange information and seek to resolve problems;
^ a Public Private Informal Advisory Group (IAG) consisting of representatives of the Irish
Congress of Trade Unions (ICTU), the Irish Business and Employers Confederation
(IBEC), and the Construction Industry Federation (CIF) as well as the heads of the Departmental / sectoral units.
The head of the Department of Finance Central PPP Unit, in the Department of Finance
chairs both of these consultative groups.
^ The National Development Finance Agency, as outlined above, also forms an important resource in the administrative structures that are developing PPP in Ireland.
113
5. e-Procurement
In April 2002 the Department of Finance launched A Strategy for Implementation of E Procurement across the Irish Public Sector. The strategy was adopted as the blueprint for the roll-out of e-Procurement across the public service. The National Public Procurement Policy Unit was established within the Department of Finance and has commenced implementation of the strategy.
It is recognized that most savings and benefits arise from more effective procurement management rather than by use of electronic means alone. The initial part of strategy implementation involves
action to facilitate procurement management reform supported by low cost and low risk e-Procurement initiatives. The focus is on achieving maximum enduring change though ensuring stakeholder buy-in,
knowledge and skills transfer, organizational capacity building and individual capability enhancement.
Existing resources from within the Irish public sector will be engaged in implementing the strategy. Staff from eight sectors with significant procurement functions are participating in procurement improvement projects aimed at building organizational capacity to deliver the outcomes envisaged in the National e-Procurement Strategy. It is intended to develop the capability of eight or nine mangers from
across the public sector who will lead procurement management reform in their respective organizations. Comprehensive orientation and training is being given to equip trainees to undertake this activity. A training and education package and best practice guidance material will be developed to address
individual knowledge and skills development as part of the strategy roll out.
^ S.I. n. 31 of 1999;
^ S.I. n. 334 of 2001;
^ S.I. n. 611 of 2001;
^ S.I. n. 612 of 2001, detailed at 1 above, currently provide for the submission of tenders by electronic means.
Apart from preliminary consideration of the approach to implementing revised EU Public Procurement Directives, there is no procurement legislation currently being prepared. It is intended to
avail of the increased flexibility and the innovative methods of public procurement provided for in
the revised Directives.
114
Italy
Directives
Directive
Date
Title
Ojec
Directive 89/665/CEE
21st December 1989
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
O.J.E.C. ^ 30th December 1989, n.L 395
Directive 92/50/CEE
18th June 1992
Award of Public Service Contracts
O.J.E.C. ^ 24th July 1992, n.L 209
Directive 93/36/CEE
14th June 1993
Award of Public Supply Contracts
O.J.E.C. - 9th August 1993, n.L 199
Directive 93/37/CEE
14th June 1993
Award of Public Works Contracts
O.J.E.C. ^ 9th August 1993, n.L 199
Directive 93/38/CEE
14th June 1993
Coordination of procurement procedures of entities operating in the

O.J.E.C. ^ 9th August 1993, n.L 199
Directive
97/52/CEE
(implemented
trough
the Legislative Decree
402/98)
13th November 1997
Coordination of procedures for the

award of public service contracts,
public supply contracts and public
works contracts
O.J.E.C. - 28th November 1997, n.L 328
Directive 98/4/CE
16th February 1998
Coordinating the procurement procedures of entities operating in the

O.J.E.C. - 1st April 1998, n.L 134
Directive 2001/78/CE
13th September 2001
Directive on the usage of standard

forms in the publication of standard
contract notices
O.J.E.C. ^ 29th October 2001, n.L 285
31st March 2004
Coordination of the procurement

procedures of entities operating in
the water, energy, transport and postal
services sectors
O.J.E.C. - 30th April 2004, n.L 134
31st March 2004
Coordination of the procedures for

award of public supply contracts, public service contracts and public works
contracts
O.J.E.C. - 30th April 2004, n.L 134
115
General principles
The general principles underlying the Italian legislation on public contracts correspond to those
adopted by the European Community.
The principles applied are the following:
^ Equal treatment;
^ Sound administration;
^ Transparency;
^ Proportionality;
^ Mutual recognition.
Data
N.
Argument
Royal Decree
18th October 1923
2440 Dispositions on public accounting management
Royal Decree
23rd May 1924
827
Regulation on the implementation of the law on public

accounting management
Decree of the Presi- 27th July 1984

dent of the Republic
Regulation on works, supplies and services contracts

carrying out with negotiated procedures by national
and local offices of Ministry of Economy and Finance
Decree of the Min- 28th October 1985

istry of Treasury
Decree of approval of the specifications for supplies and

services contracts managed by Provveditorato generale dello
Stato
241
Rules on administrative procedures and right to access

to administrative documentation
Prime Minister De- 11th May 1991

cree
187
Regulation on the checking of share composition of

contractors
Legislative Decree
24th July 1992
358
Legislative package of rules on public supply contracts,

in accordance with the Directives 77/62/CEE, 80/767/
CEE and 88/295/CEE
Law
11th February 1994
109
Framework agreement on public works contracts
Decree of the Presi- 18th April 1994

573
Regulation on the simplification of awarding procedures for public supplies contracts of law amount
Decree of the Presi- 30th June 1994

442
Regulation on works, supplies and services to carry out

with negotiated procedures by the Avvocatura dello Stato
17th March 1995

Legislative Decree
(modified by Law
21st July 2000, n.65)
157
Implementation of the Directive 92/50/CEE on public procurement
Legislative Decree
17th March 1995
158
Implementation of the Directives 90/531/CEE and 93/38/

CEE
Legislative Decree
14th August 1996
494
Implementation of the Directive 92/52/CEE
Legislative Decree
1998
402
Implementation of the Legislative Decree 358/92 to the

Directives 93/36/CEE and 97/52/CEE
Law
(no more applicable because

of the D.P.R. n.554/1999 and
D.P.R. n.34/2000)
116
7th August 1990
Italy
Data
st
N.
Argument
31 March 1998
Legislative Decree
(modified by Law
21st July 2000, n.205)
80
New rules on organization and employee relationship in

Public Administrations (art. 33, 34 e35)
Decree of the Presi- 1999

22
Rules on the adaptation of the public procurement dispositions to the introduction of Euro
Legislative Decree
25th November 1999 525
Decree of the Presi- 21st December 1999 554

Implementation of the Directive 98/04/CE

Regulation of implementation of the Framework agreement on public works contracts ^ 11th February 1994,
n.104
Legislative Decree
18th August 2000
267
Local authorities act
Legislative Decree
9th April 2003
67
Implementation of the Directive 2001/78/CE

^ Implementation of the Directive of the European Parliament and of the Council on the coordination of the procurement procedures of entities operating in the water, energy, transport
and postal services sectors - (Directive 2004/17/CE);
^ Implementation of the Directive of the European Parliament and of the Council on the coordination of the procedures for award of public supply contracts, public service contracts and public works contracts - (Directive 2004/18/CE).
Structures responsible for public procurement (legal nature and composition)
CONSIP S.p.A. (Concessionaria Servizi Informativi PubbliciH)
This is a public limited company serving the State. It provides advice, assistance and ITsolutions for
innovation in Public Administration. The Ministry of Finance and the Economy is the sole shareholder
in the company and defines the latters tasks and functions. In consideration of the fact that it pursues
aims that are in the public (and, clearly, general) interest, Consip is bound to respect particular behavioural rules deriving both from general ethical principles and from specific legal provisions regarding the effectiveness, efficiency, transparency and impartiality of administrative action (www.consip.it)
At a local level, instances of the activation of associated purchasing are spreading. The object of
the transaction varies from ordinary supplies to the definition of framework contracts relating to either
a single or a global service.
Alongside such instances, the creation of marketplaces at a central but, above all, a local level is
also spreading.
Duties
The duties assigned to CONSIP S.p.A. mainly regard the following:
^ The I.T. activities involved in Public Administration, including finances and accounting;
^ Managing and developing the I.T. services used by the Ministry of Finance and the Economy;
^ Awarding contracts (by way of delegated authority) for the supply of goods and services for
Public Administration, managing special agreements with suppliers for the purposes of rationalizing spending as well as electronically preparing and handling the necessary documents
and contracts;
Realizing and managing an e-procurement system for the automation of Public Purchasing.
117

TAR (Tribunale amministrativo regionale - Regional Administrative Court)
Article 125 of the Italian Constitution states: First instance organs of administrative justice are to
be founded in the Regions, in accordance with the order established by the law of the Republic (...),.
Such article is implemented by Law n.1034 of 6th December 1971 which founds the said Regional
Administrative Courts as local organs of administrative justice on a regional basis. These number
twenty (one for each Region) and are situated in the regional capitals. In addition, detached divisions
situated in towns other than the regional capital have been founded in eight Regions.
Each Regional Administrative Court comprises a President and at least five regional administrative judges (as provided for by article 6 of Law n.186 of 27th April 1982). The President must have the
rank of Division President in the Council of State or of Councillor of the Council of State. The judges
must be on the appropriate Regional Administrative Court roll, access to which is solely by way of public examination open only to professional judges.
Council of State
Article 100 of the Italian Constitution provides that the Council of State is a constitutional body
and expressly affirms its autonomy in relation to the Government:
The Council of State is a body advising on legal and administrative issues and protecting justice
in administration (...). The law guarantees the independence of the two Institutions [i.e. the Council
of State and the Court of Accounts] and their constituent parts vis-a'-vis the Government,.
The Council of State comprises a President, 18 Division Presidents and 82 Councillors. It is divided into six divisions: the first three have advisory functions and the others jurisdictional ones.
Each division is composed of two Presidents (one of whom is regular) and at least twelve Councillors.
The advisory divisions rulings are binding if they are adopted in the presence of at least four
Councillors whereas the jurisdictional divisions issue judgements with the participation of one of
the Presidents and four Councillors.
Duties
The AdministrativeJudiciary is made up of the Regional Administrative Courts (which try cases at
first instance) and the Council of State (which tries cases on appeal from the TAR).
The Regional Administrative Courts have three different areas of competence:
^ General jurisdiction on legitimacy;
^ Jurisdiction on the merits in the case of certain, strictly defined subjects;
^ Exclusive jurisdiction likewise limited to expressly defined subjects.
The Regional Administrative Courts decide, at first instance, appeals brought against administrative authorities measures having a regional application. All the TAR judgements and emergency interlocutory orders may be challenged before the Council of State. As regards the administrative authorities acts having an ultra-regional application, the competent court at first instance is the Lazio Regional Administrative Court situated in Rome. The TARs do not have an advisory function.
The advisory function is carried out by the I, II and III Divisions of the Council of State in the
form of opinions, including in response to general queries made by an administrative department.
There then exists a special advisory Division for the governments legislative activities. This operates
before the issue of governmental and ministerial regulations. The most important issues raised before
the advisory divisions are examined by the general Assembly of the Council of State itself.
Appeal adjudication of the Regional Administrative Courts judgements is carried out by the
IVth, Vth and VIth Divisions, on appeal made by private parties or by the Administration who lost
at first instance. In urgent cases, the administrative judge may temporarily suspend the measure or judgement challenged. The most important issues are determined by the Plenary Assembly of the jurisdictional Divisions.
118
Italy
3. Types of public procurement and procedures for awarding a contract

Types of public contract
Public contracts may be divided into the following categories:
^ Profitable contracts (if the contract generates revenue for the body);
^ Unprofitable contracts (if the contract generates expenses for the body);
^ Supply contracts (contracts for a money consideration having purchasing, leasing or finance
leasing as their object);
^ Service contracts (written contracts for a money consideration between a service supplier and an
administrative department);
^ Public Works contracts (Construction, demolition, reclamation, restructuring, restoration and/
or maintenance of works and equipment).
There exists a further ground for distinguishing between different types of contract. This is based
on European legislation:
^ Above the Community threshold (if the value of the contract is over e 130.000,00 for Central
government departments or over e 200.000,00 for Local Authorities);
^ Below the Community threshold.
Advertising of documents must be guaranteed during the various phases of negotiation.
Initially, as soon as possible after the start of the financial year, the awarding authorities must issue
a prior information notice (avviso indicativoH ) announcing the global volume of contracts for each category
of service that they intend to award over the subsequent twelve months, should the estimated overall
value be equal to or over e 750.000,00, excluding VAT.
Subsequently, the authorities intending to award a public contract must announce such intention
by publishing a proper Contract notice (bando di garaH). The systems used for publishing such documentation differ according to the object of the contract or its value.
Contracting authorities awarding contracts for supplies or services with a value exceeding the Community threshold (equal to or over e 200.000,00) are required to publish the notice in:
^ The Official Journal of the European Communities;
^ The Official Gazette of the Italian Republic;
^ At least two national daily newspapers;
^ At least one regional daily newspaper.
Below the Community threshold, it is sufficient to publish notices of contracts for services on the
municipal notice board of the municipality in which the contracting authority is situated. Notices of
contracts for the supply of goods, on the other hand, must be published in the Awarding Authoritys
Bulletin and the Official Gazette of the Italian Republic, whilst a summary of such notices must also
be published in at least two daily newspapers with a national distribution.
The authority nevertheless has the power to make use of other forms of advertising, including
electronic ones.
As regards works contracts with a value equal to or over e 5.000.000,00, the authority is required to
advertise the notice in:
^ The Official Journal of the European Communities;
^ At least two daily newspapers with a national distribution (a summary);
^ At least one daily newspaper with a regional distribution;
^ Advertising on internet sites.
If the value is between e 1.000.000,00 and e 5.000.000,00, the notice must be published in:
119
^ At least two daily newspapers with a national distribution (a summary);

^ At least one daily newspaper with a regional distribution (a summary).
If the value is between e 500.000,00 and e 1.000.000,00, there must be publication of:
^ The notice in the Official Gazette for the Region in which the contracting authority is situated;
^ A summary of the notice in at least two daily newspapers with a provincial distribution.
If the value is less than e 500.000,00, the authority must publish the notice on:
^ The contracting authoritys notice board;
^ The municipal notice board of the municipality in which the works are to be carried out.
As regards planning contracts, referable to architectural and engineering services according to the Directive 92/50/CEE (annex IA, category n.12), the national legislator has issued a special doctrine applied
to planning contracts the same dispositions of works contracts advertising.
Lastly, the authority is bound to provide a sort of post-event informationH by communicating the contracts awarded (by way of notices), unless the provision of such information is expressly prohibited.
Procedures for awarding a contract
In the case of contracts with a value higher than the community threshold, the authority can
choose to avail itself of one of the following procedures:
^ Asta pubblicaH or Public Auction - open procedure - (the procedure begins with a notice, (bandoH) addressed to whomsoever may have an interest in participating in the bidding and can demonstrate, at the time the contract is awarded, that they satisfy the qualifying requirements indicated in the contract notice itself);
^ Licitazione privataH or Restricted Tender Procedure (this consists of bidding that is not open to
whomsoever may have an interest and possess the necessary requisites, but only to those enterprises who are invited by the authority, having been considered suitable in relation to the object
of the restricted tender);
^ Appalto concorsoH - restricted procedure - (in the case where certain services or supplies require
specific forms of technical expertise or special modes of execution; such procedure consists
of inviting people or enterprises deemed suitable to present detailed technical projects for execution [based on general directions issued by the Authority] and indicating the conditions
on which they are prepared to execute them. The Authority then proceeds to choose on the basis of a careful evaluation of the projects technical value and economic appropriateness, as
well as the guarantees as to ability and professionalism that the bidders produce);
^ Trattativa privataH or privately negotiated procedure (under this type of procedure, the authority
consults the enterprises of its own choice and negotiates the terms of the contract with one
or more of them. The cases in which it is possible to use such procedures are strictly controlled
by national legislation; this procedure is used only in exceptional cases).
There is an increasing awareness within Public Administration that an agile, streamlined organization with a basic fixed structure and the ability also to procure external services, that delegates auxiliary functions whilst concentrating on its main activities, is the winning model in the current economic and social context. In this perspective, models of mixed partnership structures (with partly public and partly private share capital) are spreading both at the level of central administration and, above
all, at a local level for the management of services in the public interest, including purchasing.
120
Italy
Alongside these forms of collaboration and remaining within the perspective of achieving considerable savings in terms of costs and time employed, several experiences of purchasing centres are
being developed at the various levels of administration; CONSIP S.p.A. is the main example at a central level but a series of similar structures are making their mark thanks to the municipalities, regions
and other decentralized structures.
The Italian public sector is undergoing a rapid evolution. Until a few years ago, recourse to outsourcing was not common: it was used only for certain types of services and there were few multi-service
contracts.We are now witnessing the developing phenomenon of contracting out in the services sector.
In observance of the legislation applicable to them, there is a trend amongst private enterprises and public institutions/bodies to attach maximum importance to core-business and to delegate the management
of services that are auxiliary to the functioning of their main activity. Renewal of the legislative framework, the introduction of private-law elements and the more general process of re-organising and modernising Public Administration have created more favourable conditions for developing the market. By
concentrating on core activities and contracting out those that are not essential to organization, public
administration is making use of specialist contractors and external support services.This induces greater
flexibility for internal organization and thereby reduces costs through recourse to a competitive market
and the ability to benefit from economies of scale in public spending on procurement.
Indeed, the Global Service, is a form of results-based contract through which a whole series of
activities regarding a property or a property portfolio are entrusted to a single, qualified contractor.
In particular, the Global property maintenance service, (Global Service di manutenzione immobiliareH GSMIH) provides for the entrusting of the whole body of maintenance activities for properties or
public or private portfolios to external contractors for a pre-established period in order to achieve levels
of performance set by the client in advance.
By co-ordinating programming and planning (as well as activities relating to the management of
buildings and their systems and of plants and equipment) with the aim of enhancing functional capability,
low costs, efficiency and effectiveness, Public Administration is therefore applying facility management
strategies which it realizes through Global Service, contracts. In the countries where they have been applied in both the public and private sectors, such strategies have achieved a costs reduction of approximately 20-35%, an improvement in the quality of integrated management services and the possibility of
dealing with a single interlocutor by way of a long-term contract uniting a variety of services (1).
The concept of facility management does not coincide exactly with that of a Global Maintenance
Service, however. Over and above the running of the services connected to use of the property structures, the former includes the management and co-ordination of all the operational areas inherent to
the propertys functioning (ranging from planning to the end of the buildings life cycle).
Global Service,, on the other hand, pertains to a group of services co-ordinated by a single party
who, in addition to maintaining buildings and their plant, supplies a whole series of other, support services in the light of its assumption of responsibility regarding costs sustained and the quality of the services performed.
Hospital enterprises with purposes going beyond the classical institutional ones may be considered an example of this type of service.
Management of the said contracting authoritys assets is part of the non-core business, activities that
it is desirable to contract out. Such action achieves the advantages deriving from entrusting these activities
to expressly specialist enterprises, on the one hand, and makes it possible, on the other, to re-deploy the
contracting authoritys staff who may then be used exclusively to carry out the core business, activities.
In 1999, the Treasury and the Budget and Economic Planning Department (now the Ministry of
Finance and the Economy) initiated a project aimed at transferring to purchasing a series of criteria,
methods and means typical of managerial culture and the management of the decision-making processes concerning purchasing and the process of checking and controlling.
(1) Study carried out by the Facility Management Centre at Glasgow University.
121
The former Ministrys organizational structure provided that tender procedures were attributed
on the basis of fields of competence specifically assigned to the various Departments and the purchasing process was divided between several Offices.
Bologna City Council was the first council to publish notices of three different Global Service,
tender competitions. Going even further, in mid-2003 it awarded the City Global Service, contract
(for management of the global property portfolio maintenance service) advertised in 2002. This was directed at entrusting the management of the global City Council assets maintenance service, optimizing
the Councils own response to direct needs and to those of users by realizing improvements in its
own structure and in the effectiveness of its actions, especially those relating to controls.
Means of e-procurement
The e-procurement model adopted in Italy makes use of sophisticated mechanisms for the electronic purchasing of goods and services:
^ Electronic shops;
^ Electronic auctions;
^ The Market Place.
(The reader is referred to point 6 for a detailed explanation of these instruments).
5. Models adopted
The reader is referred to section 6 in relation to the legislation on e-procurement.
Structures involved
Such agreements may be drawn up between two or more national or local administrative departments or between private and public parties. Generally, when both parties belong to the public sector,
use is made of structures of a private-law nature (i.e. public limited companies) so as to allow greater
autonomy and flexibility in managing the activities involved.
At a national level, some of the parties contributing to purchasing policies are the Ministry of Finance and the Economy, CONSIP S.p.A. and institutions whose objective is to support technological
and organizational innovation in Public Administration (e.g. the Department of Innovation and Technology, the Civil Service Department, FORMEZ, etc.)
Procedures
For the purposes of identifying private partners in cases of public/private partnerships (PPP) or
hybrid companies, or for choosing the party with whom to draw up a global service contract, traditional tender competition procedures are used and, in particular, that of the appalto concorsoH. Indeed,
private partners must be chosen through public procedures whilst also observing Community legislation on free market competition.
^ Implementation of the Directive of the European Parliament and of the Council on the co-ordination of procurement procedures of entities operating in the water, energy, transport and
postal services sectors (Directive 2004/17/EC);
^ Implementation of the Directive of the European Parliament and of the Council on the co-ordination of procedures for the award of public works contracts, public supply contracts and
public service contracts (Directive 2004/18/EC).
122
Italy
6. E-procurement
General principles
The use of e-procurement procedures must guarantee that the general principles deriving from national and community legislation are respected. Such principles are transparency, procedural simplification, the ensuring that participants are treated paripasso (with equal ranking), the general principles concerning electronic signatures and administrative documentation as well as the legislation on privacy contained
in the regulations issued pursuant to Legislative Decree n.196/2003 on the protection of personal data.
Data
N.
Argument
Legislative Decree
12th February 1993
39
Art.3 ^ Rules on automated informative systems of public

administrations, as laid down in the art. 2, co.1, let. mm)
of the Law 23rd October 1992, n.421
Law
15th March 1997
59
Art.15, co.2 ^ Proxy to Government on granting functions to Regions and local Authorities about Public Administration reform and administrative simplification
Decree of the Presi- 10th November 1997 513

Regulation on procedures for documents registration and

transmission with electronic systems, as laid down in
the art. 15, co.2, of Law 25th March 1997, n.59
Decree of the Presi- 20th October 1998

Rules on procedures on managing of electronic protocol

by public administration
Prime Minister De- 8th February

cree
1999
Technical rules on registration, transmission, duplication, copying and approving of electronic documents
Law Decree
22nd May 1999
185
Implementation of the Directive 97/7/CE on consumer

protection
Prime Minister De- 28th October 1999

cree
Electronic management of internal flow of information

of Public Administration
Law
Budget Law 2000
23rd December 1999 488
Prime Minister De- 31st October 2000

cree
Technical rules on electronic protocol - Decree of the

President of the Republic 20th October 1998, n.428
Law
Budget Law 2001
23rd December 2000 388
Decree of the Presi- 28th December 2000 445

Administrative procedure Act
Law
28th December 2001 448 Budget Law 2002
Legislative Decree
23rd January 2002
Decree of the Presi- 4th April 2002

10
Implementation of Directive 1999/93/CEE on the communitarian framework for electronic signature
101
Regulates online auctions and marketplace
Law
24th December 2003 350
Budget Law 2004
Law Decree
12th July 2004
Amendments on budget law
168
123

CONSIP S.p.A. is the point of reference for the States central and decentralized government departments alike (the reader is referred to point 2).
As regards these procedures:
^ Public qualification notice: the ordinary forms of advertising are envisaged. The notice regarding the qualification of potential bidders must be published at least sixty days before the beginning of the bidding procedure. Such aspect is the responsibility of the Authority and must be
carried out in accordance with national and community legislation;
^ Contract notice: this must be published on the contracting authoritys site and on one or more
web sites identified by Prime Ministers decree (article 24 of Law n. 340/2000). The contract notice must be published at least thirty days before the date fixed for dealing. It sets out the date
by which invitations to bid must be communicated to the qualifying parties. It also contains
all the information necessary for identifying the object of the competition as well as the I.T. system for negotiation, the evaluation criteria, possible additional guarantees required, the identification of the person in charge of the process, ways of participating in the procedure and
the day and hour fixed for the start of dealing.
^ Invitation to auction: this is sent to the qualifying parties at least ten days before the date fixed
for the start of the bidding procedures. It is sent by e-mail or other electronic means indicated
in the public qualification notice. It indicates the methods of participating in the procedure
and the day and hour fixed for the start of dealing.
Electronic purchasing procedures
The e-procurement model adopted in Italy makes use of sophisticated mechanisms for the electronic purchasing of goods and services:
a) Electronic shops: after an agreement has been drawn up with a supplier, a presentation shop,
is set up, containing the list of the products the object of the agreement and complete with
technical information, the conditions of supply and the prices agreed. The buyer is able to optimize procurement of those goods and services that are the object of the agreement directly
on line.
b) Electronic auctions: this is a procedure for negotiating and awarding contracts used for the activation of an agreement. Such a procedure involves:
^ the issue of a public qualification notice for suppliers dealing in one or more specific product
categories;
^ the issue of subsequent tender competition notices relating to the product categories referred
to in the cited notice;
^ conduct of the individual auction relating to the notice, through use of an electronic platform for receiving the suppliers bids and evaluating them.
c) Market place: this represents a means of supporting purchasing cheaply and below the community threshold ( e 200.000,00). It represents a digital market within which qualifying suppliers
(qualifying both in terms of their subjective qualifications and by virtue of their own catalogue
of products) make their goods and services available in an electronic market. The registered
buyers (i.e. the Public Administration) can, in their turn, consult the electronic catalogue of
bids and issue a purchasing order (Ordine di AcquistoH - OdA,) or a request for bids (Richiesta
di OffertaH - RdO,) according to the electronic catalogues ability immediately to satisfy their
purchasing requirements. In cases where it lacks the ability, the buyers may require a further
product specification before issuing a purchasing order.
Implementation of the Directive of the European Parliament and of the Council on the co-ordination of procedures for the award of public works contracts, public supply contracts and public service
contracts (Directive 2004/18/EC), as regards the part concerning the new dynamic purchasing systems.
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Latvia
Directives
The Community Directives on public procurement that have been transposed into domestic legal
system:
Directive
Date
th
92/50/EEC
18 June 1992
The coordination of procedures for the award of public service contracts
93/36/EEC
14th June 1993
The coordination of procedures for the award of public supply contracts
93/37/EEC
14th June 1993
The coordination of procedures for the award of public works contracts
93/38/EEC
14th June 1993
The coordination of the procurement procedures of entities operating

in the water, energy, transport and telecommunications sectors
97/52/EC
13th October 1997
Amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service
contracts, public supply contracts and public works contracts respectively
98/4/EC
16th February 1998
Amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
89/665/EEC
21st December 1989
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
92/13/EEC
25th February 1992
The coordination of the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport
and telecommunications sectors
General Principles
The general principles constituting the basis of the national legislation on public procurement:
^ transparency of the procurement process;
^ free competition for sellers of goods, providers of services and performers of construction
work, as well as equal and fair treatment of such;
^ effective utilization of State or local government resources by maximally reducing the risk of
contracting authorities.
125

National legislation that currently regulate the States public procurement sector:
N.
Date
5th July 2001
Law
Procurement for State or Local Government Needs
Law
Construction Work, Supply, Leasing and Services for 4th November 1999
the Needs of Public Service Undertakings
Cabinet Regulation
376
Procedures for the Application of Methods for Selec- 31st October 2000
tion of Tenderers and for Choice of Tenders
Cabinet Regulation
390
Procurements of Seasonal Nature
15th July 2003
Cabinet Regulation
742
Procurement Commissions Action
23rd December 2003
Cabinet Regulation
743
Procedures for Open Competition in relation to Pur- 23rd December 2003

chase of Goods
Cabinet Regulation
744
Procedures for Open Competition with Respect to Per- 23rd December 2003
formance of Construction Work
Cabinet Regulation
745
Regarding Open and Restricted Competition Proce- 23rd December 2003

dures for Provision of Services

Legislation being prepared in the field of public procurement:
^ Amendments in the Law On Construction Work, Supply, Leasing and Services for the Needs of
Public Service Undertakings;
^ Amendments in the Law On Procurement for State or Local Government Needs;
^ Cabinet Regulation On Procedures for Draft Design Competition.
Each authority is responsible for its procurement.
Monitoring of the observance of regulatory enactments in the area of procurements is performed
by the Procurement Monitoring Bureau and other authorities (State Audit Office, Corruption Prevention and Combating Bureau) in accordance with regulatory enactments.
The Procurement Monitoring Bureau is a State administrative authority supervised by the Ministry of Finance and operating in accordance with the Law On Procurement for State or Local Government Needs and the Law On Construction Work, Supply, Leasing and Services for the Needs of Public
Service Undertakings, with the by-laws of the Procurement Monitoring Bureau and with other regulatory enactments. The Bureau is a state institution financed by the State budget.
The State Audit Office is an independent, collegial, supreme audit institution. It performs audits
in conformity with international audit standards recognized in the Republic of Latvia.
The Corruption Prevention and Combating Bureau is an institution of the State Administration
under the supervision of the Cabinet of Ministers.The work of the Bureau is based on the Law on Corruption Prevention and Combating Bureau.
126
Latvia
Duties
The Procurement Monitoring Bureau has the following rights and duties:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
to monitor the conformity of the procurement procedures with the requirements of the Law;
in conformity with its competence to co-operate with relevant foreign authorities;
to publish its decisions, views and recommendations;
to request and receive without hindrance at any stage of a procurement procedure, as well
as to receive free of charge full information regarding the procurement;
to invite independent experts;
to compile and analyse the statistical information on procurement in the State;
to provide methodological assistance and consultations, and to organize training for institutions that are contracting authorities, for sellers of goods, lessors, providers of services
and performers of construction work;
to conduct other activities permitted by regulatory enactments in order to fulfil the tasks
provided for by this Law;
prohibit the entering into of contracts until the rectifying of violations or to request the
termination of the procurement procedure;
to make sure that complaints with respect to violations of procurement procedures are examined;
to prepare reports of procurements in the State.
The State Audit Office and The Corruption Prevention and Combating Bureau perform the inspections following the conclusion of the contract. The State Audit Office performs the auditing of
the legality and usefulness.
The duties of these institutions are provided by the appropriate Laws (Law on Corruption Prevention and Combating Bureau and State Audit Office Law).
The body responsible for examining and deciding appeals regarding public procurement procedures in Republic of Latvia is the Procurement Monitoring Bureau (outlined above). In order to examine complaints, the Procurement Monitoring Bureau forms a complaints examination commission.
In any case every entity can appeal the decision also in court according to Law.
Law On Procurement for State or Local Government Needs provides three types of public procurement - purchases, services received (including the lease), or construction performed for the needs
of the contracting authority.
The second Law that regulates public procurement - Law On Construction Work, Supply, Leasing
and Services for the Needs of Public Service Undertakings ^ also provides the same types of public
procurement. The lease is a separate type of public procurement according to this Law.
Two forms of advertising are provided ^ a written and an electronic form. Usually the contracting
authority shall send a notice to the Procurement Monitoring Bureau regarding the expected procurement and the Bureau places the notice on the Internet. In the most cases the contracting authority publishes the notice in the newspaper LatvijasVestnesis, as well as at least in one other newspaper. A similar
order is after a decision has been taken.
127
In case of a price quotation the procurement commission shall send to at least three possible tenderers an invitation to submit a tender. There is no notice provided.
There are regulated five procedures for awarding contracts by domestic legal system:
^ an open competition;
^ a restricted competition;
^ a request for a price quotation;
^ a negotiated procedure and draft design competition.
The selection of procurement procedure depends on thresholds and the procurement category
(construction works, goods or services). The contracting authority may choose the draft design competition if the contract will be entered into for the preparation of draft designs for construction works
or territorial planning.
Appeal procedures
Tenderers, candidates, sellers of goods, providers of services or performers of construction work
have the right to submit to the Procurement Monitoring Bureau complaints regarding the actions of
the contracting authority with respect to the legality of the procedures of open or restricted competition or negotiated procedure if the submitter considers that the contracting authority or the procurement commission has not observed the requirements of regulatory enactments which regulate procurement and in so doing have violated the lawful rights and interests of the submitter of the complaint. A tenderer may request that the Procurement Monitoring Bureau examine the budget possibilities of the contracting authority. Complaints may be submitted up to the time of entering into a
procurement contract. After a procurement contract has been entered into, the submitter of a complaint may appeal decisions of the contracting authority to a court only in accordance with procedures
prescribed by law.
The Law provides a legal suspension. It means that if a complaint has been submitted to the Bureau prior the entering into a procurement contract, the Bureau shall notify the contracting authority
thereof and the contracting authority shall not enter into a procurement contract without a decision
of the complaints examination commission that permits to enter into such contract. According to
the Law a procurement contract shall not be entered into earlier than 7 working days from the publishing the notice about the decision.
In Latvia only Court is authorized to declare the concluded contract illegal. According to national legislation legal relations after the signing of contract defines general provisions of Civil Law.
The Bureau is not entitled to order the payment of any sums as protective measures.
Decisions of the Procurement Monitoring Bureau regarding the activity of public service undertaking may be appealed in court in accordance with the procedures specified by law.
No forms of developed co-operation and collaboration between public and private entities have
been put into effect within the State for realizing and managing services.
5. Models adopted
No organizational models of integrated service management have been adopted within the State
through outsourcing.
128
Latvia
No telematic procedures for the procurement of goods and services have been introduced yet into
the domestic legal system, except for publishing the notices.
Law On Construction Work, Supply, Leasing and Services provides that contracting authority
shall send a notice to the Procurement Monitoring Bureau regarding the expected procurement and
the Bureau places the notice on the Internet. The same system refers to the notices concerning a decision.
The Procurement Monitoring Bureau has introduced Latvian Procurement Portal what is a kind
of service for society. It is possible to fill up publication forms on-line.
The Procurement Monitoring Bureau has to develop e-procurement system as part of the e-government program and set an electronic procurement system to ensure compliance to the new EU Directive 9270/02. Currently the only parts of procurement procedure possible to be accomplished electronically are Preparing the Invitation to Tenderer, sending the Invitations to the Candidates and Informing the Candidates (the Contract award Notices). Full introduction of e-procurement will give
possibility of managing all steps of procurement procedure using Information technologies. The Bureau has begun to introduce an e-procurement pilot project making it possible to manage simple procurement procedures fully using Information technologies. The Bureau has developed documentation
needed for the start of e-procurement pilot-project and the activities and consultations with experts
in the field of e-procurement within this project will help to discover and solve possible problems in
this field.
We have started to introduce a pilot project of the centralized procurement (establishment of ecatalogues) in order to promote an effective utilization of State or local government resources and
an obtaining of better quality.
129
Liechtenstein
Directives
Directive
N.
Council Directive
89/665/EEC
The Public Remedies Directive
Council Directive
92/50/EEC
The Public Services Directive
Council Directive
93/36/EEC
The public Supplies Directive
Council Directive
93/37/EEC
The public Work Directive
Directive
93/38/EEC
The Utilities Directive Council
Directive
97/152/EEC
amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC; Directive 98/4/EC amending Directive 93/38/EEC
Commission
Directive
2001/178/EC
the use of standard forms, amending Directives 93/36/EEC, 93/37/EEC, 92/

50/EEC
General Principles
Indicate the general principles constituting the basis of the national legislation on public procurement:
^ equal treatment;
^ competition;
^ transparency;
^ award principle of the most economically advantages offer;
^ legal protection.
Briefly illustrate the national legislation (laws and regulations) that currently regulate the States
public procurement sector:
^ Law of the 19th June 1998 over the award public works, supply and service orders (law about the
public procurement, OAWG). LGBI. 1998 N. 135;
^ Ordinance of the 3rd November 1998 over the award public works, supply and service orders
(ordinance over the public procurement, OAWV). LGBI. 1998 N. 189;
^ Ordinance of the 28th November 2000 concerning the amendment of the ordinance over the
award public works, supply and service orders (ordinance over the public procurement,
OAWV). LGBI. 2000 N. 233;
131
^ Ordinance of the 11th February 2003 concerning the amendment of the ordinance over the
award public works, supply and service orders (ordinance over the public procurement,
OAWV). LGBI. 2003 N. 78;
^ Regulation of the 8. January 2002 the threshold value at the agreement over the European economic area (EWRA) as well as after agreeing over the public procurement nature (WTO agreement). LGBI. 2002 N. 13.
Briefly illustrate the pieces of legislation being prepared by each State in the field of public procurement.
^ The utilities Directive are including at the present law of public procurement. In the future a
separated law will created for the utilities sectors.
^ Liechtenstein implements primarily the new and adapted Directives and regulations of the European Union, which were taken into the European Economic Area EEA.
^ Adaptations are made partial at the practical experiences.
The law defines the following public authorities and independent bodies:
^ the state Liechtenstein (public authorities);
^ the communities (public authorities);
^ the facilities of the public right like especially bodies as well as independent institutions and
foundations of the public right (public authorities);
^ facilities of the private right in the cases of a subsidy (independent bodies);
^ Undertakings in the utilities sectors (independent bodies).
Duties
The legal regulations are the same for public authorities and for independent bodies. There are
only differences by the threshold values and in the utilities sectors - like in the Directives.
After the public authorities or the independent bodies forgave a contract, each bidder gets a
award note. After receipt of the award note, the bidder can ask for a award disposal by the public
authorities or the independent bodies. Hardship can be raised against this award disposal with the government or with the administration court. A temporary disposal of the contract is applied separately.
Duties
The legal regulations are the same for public authorities and for independent bodies.
In principle all contracts of a public authorities or a independent bodies are forgive in accordance
with the legal law and ordinance.With exception of the article 5 of the Law about the public procurement.
For example this are the work contracts in accordance with appendix II of the work Directive, service contracts of appendix IA and IB of the services Directive or supplies contracts in accordance
with the regulation on the common procurement vocabulary.
The same regulations are applicable also to clients in the utilities sectors.
132
Liechtenstein
Informations to tender are published in the supplement to the official journal of the European
Union an in the official journals of Liechtenstein. The official journals in Liechtenstein are the Journals
Liechtensteiner Volksblatt, and Liechtensteiner Vaterland,.
The open or non open (restricted) procedures can be applied anytime. The negotiation procedure
can be applied only in the cases in accordance with the Directives.
The open procedure must be published in the official publication organs. Each interested person
gets the tender documents and can do an offer.The surcharge is given to the most economically advantages offer.
The non open (restricted) procedure must be published in the official publication organs. This
procedure has two phases. In a first phase, each interested person can apply. From these applications
are selected between five to twenty, in accordance with criterions. The prosperous application can do
an offer. The surcharge is given to the most economically advantages offer.
The negotiation procedure is executed according to type of the procurement with or without
publication. The selected person can do an offer. The surcharge is given to the most economically advantages offer.
Appeal procedures
After the public authorities or the independent bodies forgave a contract, each bidder gets a
award note. After receipt of the award note, the bidder can ask for a award disposal by the public
authorities or the independent bodies. Hardship can be raised against this award disposal with the government or with the administration court. A temporary disposal of the contract is applied separately.
Current are known no Partnerships between Public and private entities.
Service contracts in accordance with the guidelines, for example Facility Management, will outsource if its possible.
Other examples of outsourcing are the shaping, the printing, the administration and the shipment
of official publications.
Current there are no telematic procedures for the procurement of goods and services have been
introduced into the domestic legal system.
Currently, it doesnt give any experiences of innovative models in the public procurement sector
other than those indicated in the preceding points have been tried out in the domestic system.
The principality of Liechtenstein is a small state, with 34.000 inhabitants. The staff resources are
restricted. For the development of innovative models in the public procurement sector, time is not existing sufficed. Liechtenstein takes over the new Directives of the European Union into the national
laws.
133
5. Models adopted
Currently are planed no new organizational and managerial arrangements indicated in the preceding section in the public procurement sectors.
Structures involved
Because there are no new organizational and managerial arrangements for public procurement,
are also no bodies or structures involved.
Procedures
No adopted procedures are intended because no innovate models are planned.
Because it doesnt give any new arrangements, an adaptation of the law isnt necessary.
General principles
At present, there arent any legal regulations in the national legislation on e-procurement.
Currently there arent any national legislation that regulate the States e-procurement sector.
Because e-procurement arent used in the practice, there arent any bodies that are dedicated to
managing the e-procurement systems.
At the moment arent any systems adopted for advertising the tender competition documents and
every other kind of communication relating to e-procurement, because e-procurement didnt use in
the practice.
Presently, no procedures exist for procuring goods and services by using telematic technology,
like on-line auctions or market places.
134
Luxemburg
The national legislation that regulates the public procurement sector is composed by:
Date
Law
30th July 2003
Law on public procurement (Me morial A 2003 page 1669)
Regulation
07th July 2003
Regulation that puts the law on public procurement into

effect (Me morial A 2003 page 1694)
Regulation
08th July 2003
Regulation that standardizes the public procurement specifications (Me morial A 2003 page 1730)
All the Community Directives on public procurement have just been introduced into domestic
law, especially trough the Law on public procurement, and their principles have just been put into actual legislation.
Luxemburg is going to adjust its public procurement legislation to the rules of the New Legislative Package:
^ 2004/17/CE: the Directive of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors;
^ 2004/18/CE: the Directive of the European Parliament and of the Council on the coordination
of the procedures for award of public supply contracts, public service contracts and public
works contracts.
The first principles constituting the basis of the national legislation on public procurement are
the following:
a) Principle of non discrimination of enterprises (art. 4 of the Law of 30th June 2003);
b) Principle of competition;
c) Principle of using of open tendering procedures;
d) Principle of transparency;
e) Principles of equality;
f) Principle of impartiality;
g) Principle of using of selective tendering procedures;
h) Principle of environmental protection and promotion of sustainable development (art. 4 of the
Law of 30th June 2003).
Usually the adopted procedure is the open procedure.
The possibility to make use of negotiated procedure is exclusively limited to the cases provided
for in law and for contracts of low amount (lower than 44.000 e).
135
The awarding powers in Luxembourg, concerning on the public procurement legislation, according to the art. 2 of the law 30th June, 2003 on public procurement, are reserved to:
^ State;
^ Local Authorities;
^ Associations of Local Authorities;
^ Public Bodies of State or Local Authorities;
^ Body governed by public law.
Each contracting authority carries out a public contract on its own responsibility.
The appeal procedures relating to public procurement must be submitted to a Mediator or to theTender
Commission constituted equally by contracting authorities and representatives of the involved working class.
The jurisdictional appeals against a sentence concerning public procurement must be carried out
within three months since the serving of theTribunal Administratifs ruling. The Cour Administratif represent a second level jurisdiction.
The public procurement legislation provides for the following procedures:
a) la soumission publique ^ open procedure;
b) la soumission restreinte avec publication davis ^ restricted procedure with notice publication;
c) le marche ne gocie avec publication pre alable ^ negotiated procedure with initial evaluation;
d) la soumission restreinte sans publication davis (pour le marche s en-dessous des seuils pre vus
par les Directives europe ennes) ^ restricted procedure without notice publication;
e) le marche negocie ^ negotiated procedure.
The possibility of using non open procedures is limited to the cases provided for in law.
Advertisements for bids have to be published on national newspaper and, if it should be provided
by the New Directives, the notices have to be published on the OfficialJournal of the European Union.
Beginning from the autumn 2004, all the advertisements for bids have to be published on internet
web-site of public procurement: http://www.marche s-publics.lu.
The specifications and any supporting documents have to be published on this web-site. The utilization of electronic support is provided for the new Communitarian and national legislation.
The transposition of European Directives 2004/17 and 2004/18 will present the opportunity to
provide for the using of new organizational and managerial arrangements and to go on with the dematerialization of procedures.
5. Models adopted
No information are available on these models at the moment.
6. The E-procurement.
The Ministry of Public Works is about to establish a structure usable by all contracting authorities
to manage their public contracts through electronic systems.
This structure will work through the internet portal for public procurement: http://www.marche spublics.lu.
In the first phase the available functionalities will be the following:
^ publishing of the different advertisements for bids on this web-site;
^ publishing of the tender documents (the specifications) on this web-site.
The public procurement legislation equally provides for the possibility to send offers by electronic system.
The target is the dematerialization of the procedures through this electronic web-site, its functionalities will be specified in the future.
136
The Netherlands
Directives
The Directives Services, Supplies and Works and the Utilities Directive have been implemented in
the Dutch national legislation in a framework law: the Raamwet,(Stb.193,212). This framework law
is the base of existing and future European procurement legislation. By Algemene Maatregel van Bestuur (AmvB) the EU Directives are indicated as obligatory. This means that the text of the Dutch procurement law is mainly the same text as the EU Directives.
General Principles
Because the text of the Dutch procurement legislation has the same wording as the EU Directives
there are no other general principles than already indicated in the EU Directives. Of course also common Dutch law principles apply.
^ Raamwet;
^ Besluit Overheidsaanbestedingen;
^ Besluit aanbestedingen nutssector.
At the moment the new Directives 2004/17 and 2004/18/EEG published on the 30th of April have
to be implemented in the Dutch legislation (according the above mentioned framework law).
There is no responsible public authority or independent body responsible for public procurement
in the Netherlands.
Duties
No answers/not applicable
Not applicable
All kinds of contracts can be used: there is no special Dutch regulation.
137
Contracting authorities have to publish their notifications and tender documents for procurement
above the EU thresholds in any case in the Official Journal of the EU. There are no legal obligations
to publish their documents elsewhere( in Dutch papers etc.) .For tender procedures for work contracting authorities may publish their public procurement procedures on www.aanbestedingskalender.nl
There are no procedures for awarding contracts by domestic legal systems.
Appeal procedures
There is no specific Dutch national complaints system for procurement. According tot Dutch
law, the decisions of a public authority regarding procurement are seen as acts of civil law. Disputes
in procurement procedures outside the scope of the Directives (for instance tenders under the thresholds values) are also subject to the ordinary courts.
The Dutch civil legislative system has all the facilities requested by the remedies Directives (interlocutory proceedings in urgent cases, accelerated proceedings and normal proceedings etc).
According to Dutch law there are (in addition to these remedies and the possibility to notify a
complaint to the Commission) only two possibilities to act in case of complaints: 1) the normal civil
court procedure and 2) arbitration (especially in the construction sector)
Arbitration
In the construction sector some Ministries of the central government apply in case of government
procurement for works the special policy rules with its special Arbitration Committee for the Building
Industries (ABBI).
This ABBI has been mobilized quite often (around 850 procedures every year, not all procurement cases, also ordinary disputes concerning the execution of works ) and is rather successful in
this field. Other (non-central) authorities may voluntarily declare the UPR applicable to a procurement
procedure, even including one outside the scope of the works Directive. The ABBI seems in practice
similar to an ordinary court (proceedings are similar concerning hearing both parties and full argument on both sides/ decisions are legally binding and can be enforced by enforcement order of a civil
court).
Yes, in some cases public private partnerships have been executed .
Some telematic procedures have been introduced in the domestic legal system.
been tried out in the domestic system.
5. Models adopted
Not applicable.
General principles
The same principles as indicated in the new Directives.
138
The Netherlands

No legislation yet available.
No bodies yet existing except a certifying institute for the electronic signature.
No system yet adopted.
No procedure yet available, only pilots.
Only implementation at the moment of the above mentioned new Directives.
139
Poland
Directives
The following EU public procurement Directives have been assimilated into the Polish legal system through the provisions of the Law on Public Procurement:
Directive
Date
21st December 1989
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
Directive 93/36/EEC
14th June 1993
The co-ordination of procedures for the award of public

supply contracts
Directive 93/37/EEC
14th June 1993
the co-ordination of procedures for the award of public

works contracts
Directive 93/38/EEC
14th June 1993
The co-ordination of the procurement procedures of entities operating in the water, energy, transport and telecommunications
Directive 92/50/EEC
18th June 1992
The coordination of procedures for the award of public service contracts
Directive 97/52/EC
13th October 1997
Amendment of the Directives 92/50/EEC, 93/36/EEC and

93/37/EEC concerning the coordination of procedures for
the award of public service contracts, public supply contracts and public works contracts respectively
Directive 92/13/EEC
25th February 1992
The co-ordination of the laws, regulations and administrative provisions relating to the application of Community
rules on the procurement procedures of entities operating
in the water, energy, transport and telecommunications sectors
13th September 2001
Directive on the use of standard forms in the publication of

public contract notices
141
General Principles
The basic principles of the Polish public procurement legislation:
^ fair competition;
^ equal treatment of contractors;
^ impartiality and objectivity of persons involved in award procedures;
^ public nature of award procedures;
^ primacy of open and restricted procedures.
The basic principles of public procurement are specified in Title I Chapter 2 of the Polish Public
Procurement Law.
The new Polish Public Procurement Law (PPL) was adopted on 29th January 2004. The Law enters into force on 2nd March 2004 and replaces the Act on public procurement of 10th June 1994. The
new Law will be followed by a number of implementing regulations to be issued pursuant to the specific provisions and in accordance with the procedure set forth in the Law.
The Polish authorities are now preparing the implementing regulations to be issued pursuant to
appropriate provisions of the Public Procurement Law (PPL). The regulations are to be issued by the
Prime Minister, Council of Ministers or competent Ministers as appropriate and regulate in detail specific aspects relating to the conduct of award procedures. The Public Procurement Law provides for
the adoption of regulations covering among other such matters as:
^ forms of procurement notices for publication;
^ types of documents to be required by awarding entities from contractors;
^ way of calculation of contract costs and values;
^ forms of records of award procedures and scope of information to be included in these records;
^ procedure for acknowledgement of operation on a competitive market by entities exercising the
utilities activities;
^ rules concerning the competition for the position of the President of the Public Procurement
Office;
^ establishment of lists of arbitrators examining appeals in contract award procedures;
^ procedure for examination of appeals;
^ rules governing the activities of observers in contract award procedures.
The regulations are to be adopted within 6 months from the entry into force of the PPL.
The Public Procurement Office (PPO) is a special body within the Polish central administration,
competent to deal with matters related to public procurement. The PPO plays a policy making and
co-ordinating role for the whole Polish public procurement system. The activities and powers of the
PPO are based on the provisions specified in the Public Procurement Law (PPL) of 29 January
2004. The President of the PPO is appointed directly by the Prime Minister from among candidates
selected in an open competition. His term of office is 5 years.
The Public Procurement Office was first established in 1995 following the adoption of the Act on Public Procurement of10 June1994. Currently it employs c.a.100 people and is divided into several departments.
The President of the PPO is supported by the Council for Public Procurement, which is his advisory
and consultative body. The Council consists of from 10 to 15 members appointed by the Prime Minister.
142
Poland
Duties
The key duties of the Public Procurement Office are:
to publish the official Public Procurement Bulletin in which contract notices (of value above
the thresholds defined in the PPL) are published;
to issue administrative decisions in response to requests for the application of a particular procedure in cases specified in the PPL;
to check the regularity of awarded contracts;
to arrange appeal proceedings under the Act of Public Procurement and establish the list of arbitrators examining appeals;
to prepare training programs, organize and inspire training events in the field of public procurement.
As a rule the Polish public procurement system is a decentralized one. Each entity obliged to follow the Public Procurement Law is responsible for the award of its own contracts. The Public Procurement Office does not therefore award public contracts itself (apart from contracts awarded for its
own purposes), nor does it participate in award procedures.
Give a brief description of the bodies responsible for examining and deciding appeals regarding
public procurement procedures in each State, outlining the basic aspects of their legal nature (public
authorities and/or independent bodies) and their respective composition.
The following review measures are subsequently available in the Polish public procurement system:
^ protests;
^ appeals;
^ complaints.
Protests are examined by awarding entities themselves.
Appeals are examined by arbitration panels. An arbitration panels consists of three arbitrators appointed by the President of the PPO. Arbitrators are selected from among persons entered in the official list drawn up by the President of the Public Procurement Office. Their selection is made by means
of a public drawing. The chairman of the arbitration panel must have a legal background. Arbitrators
are entered in the list for a period of 6 years.
Complaints are examined by regional courts competent for the seat of the awarding entity.
Duties
Complete the profile of the bodies responsible for appeals outlined above by giving a brief description of the duties assigned them by the domestic legal system in each State.
The arbitration panel examine appeals lodged by contractors in the course of an award procedure.
Appeals must be preceded by protests submitted to the awarding entity.
The arbitration panels may:
^ reject the appeal;
^ uphold the appeal and order the awarding entity to perform or repeat an act in question;
^ invalidate an act of the awarding entity.
Regional courts competent for the seat or place of residence of the awarding entity examine the
complaints against the verdicts or final decisions of the arbitration panels. While examining the complaints the courts apply the appropriate provisions of the Code of Civil Procedure. The court shall examine the complaint within 3 months from the date of its receipt by the court.
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The competent court may:

^ reject or dismiss the complaint;
^ discontinue the procedure in question;
^ uphold the complaint changing the verdict of the arbitration panel and judging for the merits
of the case.
The Public Procurement Office is only indirectly involved in appeal proceedings. It performs administrative functions related to the conduct of appeal procedures. It receives appeals and organizes
the meetings of arbitration panels. It also dispatches the complaints lodged by contractors to competent courts.
Basic procedures for awarding public contracts in Poland are open tendering and restricted tendering. Awarding entities may also award contracts by negotiations with publication, negotiations without publication, single-source procurement, request-for-quotations or electronic auction procedure
but only under the circumstances strictly specified in the Public Procurement Law (PPL) and in compliance with EU Directives.
every other communication relating to public procurement procedures.
Public procurement notices (referred to in PPL) shall be published in the Polish Public Procurement Bulletin and in the Official Journal of the European Union. Notices concerning public contracts
of value below the EU thresholds shall be published in the Public Procurement Bulletin within 10
days of their delivery to the Public Procurement Office (PPO). Notices should be sent to the President
of the Office in writing, by fax or by electronic means. The Public Procurement Bulletin publishes notices in the case of contracts of value above EUR 60.000.
Notices concerning public contracts of value exceeding the EU thresholds shall be published
both in the Official Journal of the European Union and in the Polish Public Procurement Bulletin.
The awarding entity is required to prove the date on which the notice was sent to the President of
the Office and to the Office for Official Publications of the European Communities, and in particular
to maintain a proof of its dispatch.
The following notices should be published according to the PPL:
^ prior information notices;
^ contract notices;
^ contract award notices;
^ design contest notices;
^ results of the design contest notices;
^ contract notices in the utilities;
^ contract award notices in the utilities.
With regard to contracts of value above EU thresholds standard forms established by the European Commission in the Directive 2001/78 are used for publication of notices.
With regard to contracts of value below EU thresholds (i.e. the ones announced only in the Polish
Bulletin) simplified standard forms shall be used (based on EU standard forms).
As regards communication between awarding entities and contractors (the term contractors
used in the PPL refers to candidates, tenderers, suppliers, service providers and contractors) the following rules apply. If the contract value exceeds e 60.000, statements, requests, notifications and other information supplied by the awarding authority and contractors should be made in writing. Statements,
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Poland
requests, notifications and information communicated by telex, fax or electronic means are to be
deemed as delivered within the time limit if their content was received by the addressee prior to the
expiry of the time limit and was immediately confirmed by paper documents.
If the contract value does not exceed e 60.000, statements, requests, notifications and other information should be delivered by the awarding entity and contractors according to the choice of the awarding
entity, i.e. in writing, by fax or by electronic means.Where the awarding entity or contractor deliver the information referred to above by fax or by electronic means, each of the parties should forthwith upon request of the other acknowledge their receipt in the same manner. The method of delivering information
and documents by electronic means should not restrict competition.
There are 7 different procedures for awarding public procurement contracts:
1. Open tendering;
2. Restricted tendering;
3. Negotiations with publication (negotiated procedure with publication);
4. Negotiations without publication (negotiated procedure without publication);
5. Single-source procurement;
6. Request-for-quotations;
7. Electronic auction.
Two basic procedures for awarding public contracts are open tendering and restricted tendering.
Procedures other than open tendering or restricted tendering may be used only under the conditions specified in the Act.The choice of the negotiated procedure with publication must be approved by the President of the Public Procurement Office, where the contract value exceeds e 5.000.000 for services and supplies and e 10.000.000 for works. The choice of the negotiated procedure without publication or singlesource procurement must be approved by the President of the Public Procurement Office, where the contract value exceeds e 60.000. In case of contracts awarded in the utilities sectors (water, energy, transport
and telecommunication) the awarding entity may choose freely from among open tendering, restricted tendering or negotiated procedure with publication.
In open tendering tenders may be submitted by all contractors who wish to participate in a procedure. The awarding entity encourages participation by posting a notice in a publicly available place
at its site, on its website and by publishing a notice in the Public Procurement Bulletin (if the value
of contract exceeds e 60.000) and in the Official Journal of the European Union (if the value of contract exceeds e 130.000 for supplies and services and e 5.000.000 for works). The contracts may also
be announced in newspapers and other media, however, not prior to their publication in the Public
Procurement Bulletin.
Where the value of the contract does not exceed e 60.000, the awarding entity should fix the time
limit for submission of tenders taking into consideration the time needed to prepare and submit a tender. This time limit should not be shorter than 15 days from the date of the publication of the notice.
Where the value of the contract exceeds e 60.000, the time limit for submission of tenders should
be not less than 52 days from the date of dispatch of the notice to the President of the PPO. Where
the value of the contract for works exceeds e 5.000.000, and for supplies and services - e 130.000,
the time limit for submission of tenders should be not less than 52 days from the date of dispatch of
the notice to the Office for Official Publications of the European Communities. If the information
concerning the contract was given in a prior information notice about procurement envisaged for
the next 12 months dispatched at least 52 days prior to the date of dispatch of the contract notice to
respectively the President of the PPO or the Office for Official Publications of the European Communities, the awarding entity may fix a time limit for submission of tenders which should not be less
than 37 days.
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Restricted tendering is a contract award procedure in which, following a public contract notice,
contractors submit requests to participate in the contract award procedure and in which tenders may
be submitted only by selected contractors. Restricted tendering consists of two different phases. Firstly,
the procuring entity invites contractors to submit interest in the tendering by publishing an announcement. Where the contract value does not exceed e 60.000, the awarding entity should fix a time limit
for submission of requests to participate in tendering in the contract notice, taking into consideration
the time necessary to prepare and submit the required documents. The time limit should not be less
than 15 days from the date of the publication of the notice. Where the contract value exceeds
e 60.000, the time limit for submission of requests to participate in tendering should not be less
than 37 days from the date of dispatch of the contract notice to the President of the PPO.
Where the contract value exceeds e 5.000.000 for works and e 130.000 for supplies and services,
the time limit for submission of requests to participate in tendering should not be less than 37 days
from the date of dispatch to the Office for Official Publications of the European Communities of
the contract notice. In the event of an extreme urgency for the award of a contract the awarding entity
may fix a shorter time limit for the submission of requests to participate in the tender, however, not
less than 15 days. In such cases the notice should be dispatched to the President of the PPO by fax
or by means of a form available on the website of the PPO, and to the Office for Official Publications
of the European Communities ^ by fax or by electronic means.
Where the contract value does not exceed e 60.000, the awarding entity should fix a time limit for
submission of tenders taking into consideration the time necessary to prepare and submit a tender,
however, this should not be less than 7 days from the date of dispatch of the invitation to tender.Where
the contract value exceeds e 60.000, the time limit for submission of tenders should not be less than
40 days from the date of dispatch of the invitation to tender. If the information about the contract
was given in the prior information notice dispatched at least 52 days prior to the date of the dispatch
of the contract notice to appropriately the President of the PPO or the Office for Official Publications
of the European Communities (in case of contracts of value exceeding e 130.000 for supplies and services, and e 5.000.000 for works), the awarding entity may fix the time limit for submission of tenders
not shorter than 26 days.
In the event of an extreme urgency for the award of a contract the awarding entity may fix a shorter time limit for submission of tenders, which should not, however, be less than 10 days.
Negotiated procedure with publication is a contract award procedures in which, following a
public notice, the awarding entity negotiates the terms of the public contract with contractors of its
choice and subsequently invites them to submit their tenders.
The awarding entities may award their contracts by negotiated procedure with publication, if at
least one of the circumstances below has occurred:
1) during the prior award procedure under open or restricted tendering no tenders have been
submitted or all the tenders have been rejected and the original terms of the contract are not
substantially altered;
2) in exceptional circumstances, where the object of the contract is works or services, the nature
of which or the risks attaching to them do not permit prior pricing;
3) the specific characteristics of the services to be procured cannot be established in advance in
such a way so as to enable the choice of the best tender;
4) the object of the contract is works carried out purely for the purpose of research, experiment
or development, and not to provide profits or to recover research and development costs incurred;
5) the contract value does not exceed the equivalent in PLN of e 60.000.
Where the contract value exceeds e 10.000.000 for works and e 5.000.000 for supplies and services, the use of the negotiated procedure with publication requires prior consent of the President of
the PPO by administrative decision. The awarding entity should invite to negotiate contractors who satisfy the conditions for participation in the procedure in a number specified in the contract notice.
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Poland
The number of invited contractors should ensure competition and should not be less than 5.Where the
contract value exceeds e 10.000.000 for works and e 5.000.000 for supplies and services, that number
should not be less than 7.
Negotiated procedure without publication is a contract award procedure in which the
awarding entity negotiates the terms of the contract with contractors of its choice and subsequently
invites them to submit their tenders. The awarding entities may award their contracts by negotiated
procedure without publication, if at least one of the following circumstances has occurred:
1) during the prior award procedure under open or restricted tendering no tenders have been
submitted or all the tenders have been rejected and the original terms of the contract are not
substantially altered;
2) the contest referred has been held, the prize of which consisted in the invitation of at least two
authors of the selected contest projects to participate in negotiations without publication;
3) the object of the contract is products manufactured purely for the purpose of research, experiment or development, and not to provide profits or to recover research or development costs
incurred;
4) due to a previously unforeseeable extreme urgency for the award of a contract not resulting
from the events brought about by the awarding entity, the time limits provided for open tendering, restricted tendering or negotiations with publication may not be observed.
Where the contract value exceeds e 60.000, the use of the negotiated procedure without publication requires prior consent of the President of the PPO by administrative decision.
Where the contract value exceeds e 5.000.000 for works and e 130.000 for supplies and services,
the use of the negotiated procedure without publication requires also prior dispatch of information
about the cancellation of the procedure to the European Commission.
The awarding entities may award their contracts by single-source procurement procedure only if
at least one of the following circumstances has occurred:
1) supplies, services or works may be provided by only one contractor:
a) for technical reasons of objective character;
b) for reasons connected with protection of exclusive rights, resulting from separate provisions;
c) in the case of the award of contracts in the field of creative and artistic activities;
2) the contest referred to in Article 99, in which the prize consisted in the invitation for the
author of the selected contest project to negotiate under the single-source procurement procedure;
3) due to an exceptional situation, not resulting from events brought about by the awarding entity, there is a need for prompt execution of the contract, and the time limits provided for
other procedures may not be observed;
4) during successive award procedures of which at least one was conducted under open or restricted tendering no tenders have been submitted or all the tenders have been rejected and
the original terms of the contract have not been substantially altered;
5) where a hitherto contractor of services or works is awarded additional contracts not included
in the main contract, which in total do not exceed 20% of the value of that contract, are necessary for its proper performance and their execution became necessary as a result of unforeseeable circumstances, if:
a) for technical or economic reasons the separation of an additional contract from the main
contract would require incomparably high costs to be incurred,
b) the completion of the main contract is conditional upon the performance of the additional
contract;
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6) in the case of the award, within 3 years of the award of the main contract, to the hitherto contractor of services or works, of supplementary contracts constituting not more than 20% of
the main contract value and involving the repetition of the same type of contracts, if the
main contract was awarded under the open or restricted tendering procedure and the supplementary contract was provided for in the specification of essential terms of the contract for
the main contract and concerns the object of the contract described therein;
7) in the case of the award, within 3 years of the award of the main contract, to the hitherto contractor of supplies, of supplementary contracts constituting not more than 20% of the main
contract value and involving the expansion of supplies, if the change of contractor would
make it necessary to purchase items of different technical parameters, what would result in
technical incompatibility or disproportionately serious technical difficulties in use and care,
if the main contract was awarded under the open or restricted tendering procedure and the
supplementary contract was provided for in the specification of essential terms of the contract
for the main contract and concerns the object of the contract described therein.
Where the contract value exceeds e 60.000, the use of single-source procurement procedure requires prior consent of the President of the PPO by administrative decision.
Request for quotations is a contract award procedure in which the awarding entity sends a request for quotations to contractors of its choice and invites them to submit their price quotations.
The awarding entity may award a contract by the request-for-quotations procedure, if the object
of the contract are generally available supplies or services of fixed quality standards and the contract
value does not exceed e 60.000.
The awarding entity should commence a request-for-quotations procedure by inviting such a
number of contractors providing supplies or services, which ensures competition and the choice of
the best tender and which is not less than 5.
Electronic auction is a contract award procedure in which contractors submit their successive
tenders, which are subject to automatic classification, using a form available on the website and allowing entering the necessary data on-line. The awarding entity may award a contract by the electronic
auction procedure, where the object of the contract includes generally available supplies of fixed quality standards and the contract value does not exceed e 60.000.
Appeal procedures
Remedies available for aggrieved contractors are provided for by PPL provisions. Contractors,
participants in design contests and other persons, whose legal interest in obtaining a contract has
been or might have been prejudiced as a result of the infringement by the awarding entity of the provisions of the PPL, are entitled to law enforcement measures specified in the PPL, i.e. protests, appeals
and complaints.
Firstly, they may lodge a written protest against acts performed by the awarding entity in the
course of the procedure and in the event of a failure by the awarding entity to perform an act provided
for in the PPL. Protests may be lodged within seven days from the day on which the contractor found
out or could have found out of the circumstances providing grounds for lodging a protest.The lodging
of a protest is admissible only prior to the conclusion of a contract. Where the protest is upheld by
the awarding entity, it should repeat the protested action. Failure to review the protest within the assigned period is deemed a dismissal of the protest.
Secondly, upon resolution or rejection of the protest or in the case of failure to resolve the protest
in due time the interested contractor may file an appeal with the President of the Public Procurement
Office (PPO). An appeal may be lodged within 5 days from the date of delivery of the resolution of
the protest or from the expiry of the deadline for reviewing the protest by the awarding entity. The appeal is reviewed by a panel of three arbiters appointed by the President of the PPO. As a result of
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the review of the appeal the arbiters may uphold or reject the appeal and assess the costs of the proceedings. When upholding an appeal, arbiters may order the execution or repeating of an action by
the awarding entity or may invalidate an action.
Thirdly, verdicts of the arbitration panels may be complained against to the regional court competent for the seat or place of residence of the awarding entity. Complaints may be lodged through
the President of the PPO within 7 days of the delivery of the decision of the arbitration panel decision.
The courts decision is final and may not be subject to cassation by the Supreme Court.
So far the matters related to Public-Private Partnership have not been formally regulated by the
Polish domestic legislation. The Polish authorities are currently preparing the law regulating in a complex manner the field of PPP. The draft of the new act has already been subject to ministerial consultations.
Models of integrated service management have not been adopted so far in the Polish administration.
The Polish public procurement provides for electronic auctions as one of the available procedures
for awarding public contracts.
5. Models adopted
See point 4 on PPP.
General principles
Provisions on electronic procurement are provided for in the PPL. The following principles apply
to e^procurement:
^ fair competition;
^ transparency;
^ equal treatment of tenderers.
The Polish state e-procurement sector is regulated by the Public Procurement Law. The Law contains provisions concerning the use of electronic means in public procurement. A separate section
within the Law has been devoted to the procedure of electronic auctions.
The Polish system does not provide for central management of e-procurement. Electronic auctions may be organized by any entity which fulfils the requirements specified in the PPL.While awarding contracts by electronic auction the awarding entities may therefore use the services of specialized
providers.
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The Public Procurement Office is currently involved in the project aiming at the preparation of a
central portal rendering free of charge services related to the conduct of electronic auctions. The project should be completed till the end of 2004.
In contract award procedures where the contract value does not exceed the expressed in PLN
equivalent of e 60.000, statements, requests, notifications and other information should be delivered
by the awarding entity and contractors, according to the choice of the awarding entity, in writing, by
fax or by electronic means.
Where the awarding entity or contractor deliver information by fax or by electronic means, each
of the parties should upon request of the other acknowledge forthwith their receipt in the same manner.
The chosen method of delivering information and documents by electronic means should not restrict competition.
Tenders should be, under the pain of nullity, submitted in writing (in the form of a paper document) or if the awarding entity agrees, in electronic form with a secure electronic signature verifiable
through a valid qualified certificate.
Electronic auction is a contract award procedure in which contractors submit successive, more advantageous tenders (bid increments), subject to automatic classification, using a form available on the
website allowing to enter the necessary data on-line.
The awarding entity may award a contract under the electronic auction procedure, where the object of the contract includes generally available supplies of fixed quality standards and the contract value does not exceed e 60.000.
The awarding entity should fix a time limit for the submission of requests to participate in the
electronic auction, which should not be less than 15 days from the date of the notice. The awarding entity should allow all contractors complying with the conditions for participation in the procedure to
participate in the electronic auction and should invite them to tender, specifying in the invitation
the time limit during which the contractor with the lowest price must maintain his tender. The awarding entity may require the contractors to pay a deposit within a time limit specified by the awarding
entity, not later, however, than prior to the expiry of the opening date of the electronic auction. The
provisions of Article 45 and 46 should apply as appropriate. The awarding entity should open the electronic auction within the time limit specified in the notice, which however should not be less than 5
days as from the date on which the invitation to tender was transmitted to contractors.
From the moment of opening till the closing of the electronic auction the awarding entity and
contractors should transmit requests, declarations and other information by electronic means of communication.
Tenders should be submitted, under the pain of nullity, in electronic form with a secure electronic
signature verifiable using a valid qualified certificate. Tenders submitted by contractors should be subject to automatic classification based on price. A contractor must maintain his tender submitted in
the course of the auction until another contractor submits the better tender.
The electronic auction may be a one-stage or multi-stage procedure. The awarding entities may, if
they had made an appropriate reservation in the notice, following the end of each stage of the electronic auction, not qualify to the next stage those contractors who have failed to submit new (bid increments), informing them of the fact forthwith. During each stage of the electronic auction the awarding
entity should transmit, on a current basis, to all contractors information about the position of their
tenders, the number of contractors participating in each stage of the auction, as well as their quotations, however, information allowing identification of contractors should not be disclosed until the
closing of the electronic auction.
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The awarding entity should close an electronic auction:

1) within the time limit specified in the notice;
2) if no new bid increments are submitted by the period specified in the notice, or
3) following the end of the last stage specified in the notice.
Directly following the closing of the electronic auction the awarding entity should provide the
name (company name) and address of the contractor whose tender has been chosen at the website address indicated in the notice. The awarding entity should award the contract to the contractor who offered the lowest price.
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Portugal
Directives
The following European Directives on public procurement were assimilated in internal law:
Directive
Title
National Law
92/50/EEC
The Public Services Directive
93/36/EEC
The Public Supplies Directive
97/52/EC
The Services Directive
93/37/EEC
The Public Works Directive
97/52/EC
89/665/EEC
The Compliance Directive (Public Remedies)
97/52/EC
93/38/EEC
The Utilities Directive
Decreto-Lei n. 223/2001, de 9 de Agosto
2001/78/EC
Directive on standard forms
Decreto-Lei n. 245/2003, de 7 de Outubro
Decreto-Lei n. 197/99, de 8 de Junho
Decreto-Lei n. 59/99, de 2 de MarcV o
Decreto-Lei n. 134/98, de 15 de Maio
General Principles
Transparency, Equal Treatment, Non Discrimination
National laws and regulations that currently regulate the States public procurement sector are:
^ Code for the Administrative Procedure ^ Law n.32/91, of 20th July 1991;
^ Law Decree n.197/99, of 8th June 1999 (Supplies and services);
^ Law Decree n.59/99, of 2nd March 1999 (Works);
^ Law Decree n.134/98, of 15th May 1998 (Remedies);
^ Law Decree n.223/2001, of 9th August 2001 (Utilities - water, electricity, means of transport);
^ Law Decree n.245/2003, of 7th October 2003 (Standard Forms).
Legislation is being prepared for e-procurement concerning the procedure and appropriate legal
requirements, deadlines, and the European rules.
153
The whole legislation relating to public procurement on the works sector is also being reviewed
to be set into force soon.
The structures responsible for the coordination of public procurement at a national level are:
^ DireccV a o-Geral do Patrimonio ( Ministry of Finances) ^ supplies and services ^ public authority
^ Instituto de Mercados de Obras Publicas e Particulares e do Imobilia rio (Ministry of Public
Works, Transportation and Housing) ^ works ^ public authority
Duties
DireccV a o-Geral do Patrimonio:
^ launches procedures for framework agreements for supplies and services;
^ promote the definition and harmonization of legislation regarding European law.
Instituto de Mercados de Obras Publicas e Particulares e do Imobilia rio ^ with the responsibility to:
^
^
^
^
promote and regulate the markets for public and private works;
promote and follow the regulation of these sectors;
ensure the legal dispositions related;
promote the definition and harmonization of legislation regarding European law.

Two kinds of appeals: administrative appeal and litigious appeal.
^ For the administrative appeals : the superior in the hierarchy within any purchasing Public
authority having launched a procedure;
^ For the litigious appeals : the administrative courts and civil courts.
There is no independent authority especially dealing with public procurement appeals.
Duties
Public authorities having launched a procedure ^ appreciate every complaint presented before the
lower level of public authorities.
Administrative Court of Justice ^ appreciates any complaint concerning any illegal administrative
aspects regarding the concrete procedure.
Civil Court of Justice ^ appreciates the damage demands.
Classical public procurement procedure ^ open, restricted and negotiated procedures ^ in line
with the European Community Directives, whose rules have already been adopted by the Portuguese
legislation
Framework Agreements - Contratos Publicos de Aprovisionamento ^ administrative contracts for
several supplies and services signed after having been launched the adequate procedure giving the legal
support to framework agreements.
Public works and concession of public works.
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Portugal
Procedures of awarding contracts:

Portuguese law adopted the same procedures set in European Directives, thus avoiding duplication of legal regimes. This means that above 20.000 e for services and supplies and 16.000 e for works
the procedures are the same as those set in the Directives.
For supplies and services:
^ equal or below 20.000 e - there is no formal procedure but the contracting authorities must
consult 5 candidates for 20.000 e - 3 candidates for 10.000 e and 2 candidates for 5.000 e;
^ below 2.000 e there is no formal procedure.
Works:
^ below 125.000 e - restricted procedure;
^ below 16.000 e - negotiated procedure;
^ below 10.000 e - there is no formal procedures but the contracting authorities must consult 3
candidates;
^ below 2.000 e - there is no formal procedure.
^ Above the thresholds:
OPOCE
Dia rio da Republica ^ portuguese official journal
Widespread newspapers ^ the public authority chooses the newspapers, which have to be widely
read in each region or at a national level
Internet
^ Below the thresholds:
Dia rio da Republica ^ Supplies and services above 20.000 e Works above 10.000 e
Widespread newspapers
Internet
Soon all public authorities will advertise tender competition documents and public procurement
communications in an internet site ( see answer n.6).
The Portuguese domestic legal system follows closely European Community rules on public procurement, therefore the public authorities use the open, restricted or negotiated procedure according
to the particular item being purchased.
If a framework agreement ( only for supplies and services) is used, one of the adequate procedures
described in the relevant Directives takes place necessarily beforehand, thus assuring the respect of
all the European Community rules and general principles.
Appeal procedures
In Portugal there are no special appeal procedures for public procurement cases, a proper measure
has to be pleaded before the Court of Justice or the Administrative Court of Justice, depending on
the nature of the complaint. If a violation is to be examined , the interested party has to appeal either
immediately before the public authority (hierarchic appeal - reclamacV a o hiera rquica) or to the Administrative Court of Justice (litigious appeal ^ recurso contencioso).
If there is an appeal for damages, it has to be also presented before a civil court.
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In Portugal there is aTelematic Catalogue (Cata logoTelema tico do Aprovisionamento Publico) for
some supplies and services and one for Health products.
DireccV a o-Geral do Patrimonio has an Electronic Catalogue for the supply of several products and
services and the information related to those contracts is available through the site www.dgpatr.pt\ctap.
General principles
In Portugal e-procurement is being implemented with full respect of the European Community
rules set out in the Directives enumerated above. New legislation is being prepared and is expected
to enter into force in the year 2004. Unidade de Missa o InovacV a o e Conhecimento (Mission Unit for
Innovation and Knowledge - UMIC is directly dependent of the Presidency of the Council of Ministers ^ Preside ncia do Conselho de Ministros) is leading this process. So far UMIC has presented a National programme for public procurement where is foreseen the creation of new portal for public procurement ^ national level.
For the time being e-procurement is ruled by the laws above described. New legislation is being
prepared.
There is an important reform on the way for the e-procurement sector and a new system is expected to be set into force.
A Central Unit is going to be launched to coordinate Public Procurement, and advertising for eprocurement is going to be made through internet.
For the time being only some supplies and services can be procured with CTAP, (and CTAS for
Health products) and auctions on line , market places etc. are still being studied for the future e-procurement System.
New legislation is being prepared but it is not yet available.
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Republic of Lithuania
Directives
The Law on Public Procurement of the Republic of Lithuania is harmonized with the requirements of the EU Directives on public procurement both in the classical and utilities sectors (1992/
50/EEC, 1993/36/EEC, 1993/37/EEC, 1997/52/EEC, 1993/38/EEC, 1998/4/EEC, 1989/665/EEC, 1992/13/
EEC and 2001/78/EEC). The Law, like the relevant Directives, regulates the sphere of public procurement, procurement threshold values, value calculation methods, common rules in the technical field,
common advertising rules, criteria for qualitative selection, terms for submission of applications and
tenders, purchasing methods, criteria for award of contracts, procedure for purchase notification and
other requirements.
General Principles
Point 1 and 2 of Article 4 of the Law on Public Procurement provides for the general principles
constituting the basis of the Law on Public Procurement
Article 4. Main principles of Public Procurement and Compliance with them:
1. Contracting authorities shall take all the necessary steps to ensure compliance with the principles of equality of treatment, non - discrimination and transparency.
2. The main goal of the procurement is to acquire supplies, services or works necessary for the
contracting authority by following the principles referred to in paragraph 1 above, and making
a rational and economic use of the resources allocated for this purpose.
3. (...)
Public procurement in the Republic of Lithuania is regulated by the Law on Public Procurement
and 16 legal acts of secondary legislation that were prepared for implementation of the requirements
laid down in the Law. The Law on Public Procurement and secondary legislation have come into force
since 1st March 2003.
The Law consists of 5 different chapters covering the following:
a. General provisions;
b. The requirements for public procurements of public authorities (classical sector) above threshold value;
c. The requirements for public procurements of entities operating in water, energy, transport and
telecommunications sectors (utilities sector) above threshold value;
The requirements for public procurements below threshold value (simplified procurement procedures) and 5 chapter ^ The requirements for procedures of reviewing of complaints and claims, reconciliation, attestation and payment for damages.
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Following the comments of the EU Commission experts, the amendments to the Law on Public
Procurement was prepared and was adopted by the Parliament on 16 of December 2003. These amendments came into force on 1 January 2004.
The Ministry of Economy is responsible for public procurement policy making and Lithuanian
legislation alignment with the EU acquis.
The Public Procurement Office under the Government of the Republic of Lithuania (hereinafter
^ Public Procurement Office) is responsible for public procurement implementation, supervision
and control.
Duties
The Ministry of Economy drafts laws, Government resolutions also drafts and adopts Ministers
orders.
The Public Procurement Office drafts Government resolutions, drafts and adopts Office directors orders; supervises the compliance during public procurement procedures with the Law on Public
Procurement and the requirements of related implementing legislation, carries out measures to prevent
violations of the above laws; preparares methodologies, standard documents, collects, stores and analyses information on public procurement and communicates such information to the state or local
authorities and the general public; analyses and assesses the procurement system and draws up proposals for its improvement; implements the policy of information technologies in public procurement;
organizes the training, offers consultations to contracting authorities and suppliers, engages in other
activities prescribed by legislation.
The provisions laid down in the Law on Public Procurement of the Republic of Lithuania allows
to settle disputes in the peaceful way. The supplier may file a claim to the contracting authority. Complaints may be filed with the general court where it is not possible to reach agreement.
Duties
According to the Law on Public Procurement of the Republic of Lithuania the contracting
authority reviews only those claims which have been received before the contract was awarded. The
contracting authority must examine the claims and take a justified decision within 5 days of the receipt
of the claim.
The general court investigates the complaint following the procedures set forth in the Code of
Civil Procedure of the Republic of Lithuania.
The Republic of Lithuania Law on Public Procurement, in the same way as relevant EU Directives, defines and regulates three types of the contracts both in the classical and utilities sectors of public procurement: contracts of supplies, contracts of services and contracts of works.
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Article 18 and 19 of the Law on Public Procurement provides for the requirements for contract
notices. The contracting authorities notices (prior information notices, contract notices and contract
award notices) shall be published in the OfficialJournal of the European Union, as well as in Informaciniai pranes imai (the Information Supplement to the Official Gazette Valstybes z[inios) and the
website of the Official Gazette.
The standard forms of notices in conformity with Directive 2001/78/EEC were adopted by the
secondary legislation.
Article 36 of the Law on Public Procurement provides for the same procedures for awarding contracts for supplies, services and works in the classical and utilities sectors as laid down in the relevant
Directives (1992/50/EEC, 1993/36/EEC, 1993/37/EEC and 1993/38/EEC).
Article 36. Types of Award Procedures
1. The supplies, services or works contracts may be awarded by means of following procedures:
a. open procedure;
b. restricted procedure;
c. negotiated procedure with publication of a contract notice;
d. negotiated procedure without publication of a contract notice.
2. (...).
The contracting authority in the classical sector may award a contract, by using open or restricted
procedure in all cases without limitation and negotiated procedure only in those cases when the contracting authority presents the conditions specified in Articles 44 and 45 of the Law on Public Procurement.
The contracting authority in the utilities sector may award contract using the open, restricted
procedure or the negotiated procedure with publication of a contract notice in all the cases without
limitation.
Appeal procedures
Chapter V of the Law on Public Procurement provides for public procurement review procedures
that envisage a possibility for every supplier interested in procurement and considering that his/her legitimate interests have been infringed to file a complaint with the court of general competence against actions or decisions taken by the contracting authority or submit an application for reconciliation to the
Commission within the meaning of the EU Directive. The Law also establishes the procedure for examination of complaints by the contracting authority or entity.
Point 3 of Article 101 provides for that upon receiving the suppliers written claim, the contracting authority shall suspend procurement procedures until the claims are fully examined and a decision
is taken.
Article 102 of the Law provides for that the supplier shall have the right to file a complaint with
the court without filing a claim with contracting authority. If the procurement procedure is suspended
by the court, the contracting authority must extend the time limits of procurement procedures for
the period the procedures have been suspended.
Article 103 of the Law regulates the compensation of damages. The article provides for that if the
contracting authority or the supplier fails to discharge its obligation under this or other Laws or discharges them improperly, or performs acts prohibited by the Law, then the injured party shall have
the right to claim the damages in court.
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New organizational and managerial arrangements are being considered at the moment and they
are going to be introduced in the nearest future. See section n. 6.
5. Models adopted
See section n. 6.
General principles
According to the Law on Public Procurement of the Republic of Lithuania the basis principles are
the equality of treatment, non-discrimination and transparency.
A new edition of the Law on Public Procurement came into force from March 1st, 2003. It complies with the EU Directives and creates legal conditions for electronic public procurement.
The Law on Electronic Signature of the Republic of Lithuania regulates the creation, verification
and validity of electronic signature, signature users rights and obligations, establishes the certification
services and requirements of their providers and the rights and functions of the institution of electronic signature supervision.
E-procurement related decisions are being made by the Public Procurement Office in close cooperation with Information Society Development Committee and Ministry of Economy.
The Public Procurement Monitoring Information System was developed in 2002. Currently information services are provided only for contracting authorities ^ they are able to prepare and submit
public procurement notices using internet-based forms. Further step towards e-procurement is gradual
transfer of the procurement process to the electronic environment. Currently the project is being
performed in order to make review about current situation on public procurement and to create conception of public procurement transference to electronic environment, fully aligned to EU requirements and based on best practice of EU member States.
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Romania
Directives
The national legislation transposes the principles and the provisions of the following EU Directives:
^ Council Directive 93/36/EEC (The Public Supplies Directive);
^ Council Directive 92/50/EEC (The Public Services Directive);
^ Council Directive 93/37/EEC (The Public Works Directive), European Parliament and Council
Directive 97/52/EC amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC;
^ Council Directive 93/38/EEC (The Utilities Directive), Directive 98/4/EC of the European Parliament and of the Council amending Directive 93/38/EEC;
^ Council Directive 89/665/EEC (The Public Remedies Directive);
^ Council Directive 92/13/CEE ( The Remedies Utilities Directive).
General Principles
The Romanian legislation regarding public procurement ensures the following principles of
awarding the public procurement contract:
^ free competition, that is ensuring all the conditions for any supplier, services provider or undertaker,
irrespective of their nationality, to have the right to become a contractor, according to the law;
^ efficient use of public funds (meaning the use of the competition system and economic criteria for the
awarding of the public procurement contracts);
^ transparency, that is the availability of relevant information regarding the use of the procedure for
the award of the public procurement contract for those interested (concerned);
^ equal treatment, that is the use, in a non-discriminatory manner, of the selection criteria and of the
criteria for the award of the public procurement contract, ensuring for each supplier, services
provider or works provider equal chances to be awarded the public procurement contract;
^ confidentiality, that is guaranteeing the protection of the commercial secret and the intellectual
property of the tenderers.
The framework legislation in this field consists of Emergency Government Ordinance (EGO) n.
60/2001 regarding public procurement approved by Law n. 212/2002.
Based on this framework legislation, the following normative acts have been adopted:
^ Governmental Decision (GD) n. 461/2001, which approves the norms for the implementation of
the EGO n. 60/2001 regarding public procurement;
^ Order of the Minister of Public Finance n. 1012/2001 for the approval of the structure, the contents and the way for using the Standard Documentation for the elaboration and the presentation of the tender, for public procurement of goods;
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^ Common Order of the Minister of Public Finance and the Minister of Public Works, Transportation and Housing n. 1013/873/2001 for the approval of the structure, the contents and the
way for using the Standard Documentation for the elaboration and the presentation of the tender, for public procurement of services;
^ Common Order of the Minister of Public Finance and the Minister of Public Works, Transportation and Housing n. 1014/874/2001 for approval of the structure, the contents and the way
for using the Standard Documentation for the elaboration and the presentation of the tender,
for public procurement of works.
The Directorate for the regulation of public procurement and public investment prioritisation
within the Ministry of Public Finance coordinates the general framework for public procurement
and ensures the transposition of the acquis communitaire, as well as methodological guidance in this
field, through its Unit for regulation and monitoring public procurement.
Duties
The 10 experts within the Unit for regulation and monitoring public procurement are currently in
charge with:
^ the elaboration of the proposals for public procurement legislation taking into consideration
the needs for continuing the transposition of the acquis communitaire and improving the mechanism for the operation of the public procurement system;
^ ensuring methodological guidance for the contracting authorities (including the issuance of
consultative opinions regarding contests);
^ monitoring the awards of public procurement contracts as well as the setting up of relevant statistical data bases;
^ initiating and participating in training activities for the staff involved in public procurement activities within the contracting authorities.
The legislation provides the obligation of the contracting authorities to inform the Ministry of
Public Finance about the contests received. Even if the Ministry of Public Finance has no specific tasks
as a reviewing body, the directorate in charge sends an opinion to the contracting authority, such opinion being only of a consultative nature, i.e. it refers to the way in which the contest might be solved.
If the contestor is not satisfied by the way in which the contest has been solved, then it has the
right to go to a Court of Justice. The legal action is to be filed with the administrative court of justice
having competencies over the area where the contracting authority is located. The contestor may
also file a recourse against the decision of the court; such appeal is to be filed with the Court of Appeal.
The types of contract provided for by the domestic legal systems are the following:
^ Public supply contract - public procurement contract having as object the supply of one or more
goods - as defined in the official statistical classifications - which are purchased, lease rental
or hire purchase, with or without option to buy (the supply contract could also include operations regarding installation and other additional services);
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^ Public services contract - public procurement contract having as object the provision of one or more
services - as they are defined in the official statistical classifications;
^ Works contract - a public procurement contract having as its object either the execution or, according to the case, both the design and the execution of one or more building works - as covered
by the official statistical classifications - or the execution, by whatever means, of any combinations of such building works according to the requirements of the contracting authority and
having a result meant to fulfil in itself a technical and economic function;
^ Contract for the concession of works - public procurement contract of the same type as the works contract, except for the fact that, for the works performed, the contractor, in its capacity of concessionaire, is granted the right to exploit the result of the works, totally or partially, right which
could be accompanied, according to the case, by the payment of a certain amount.
The types of contracts mentioned above are applicable both for the classic sector and the utilities
sector.
The contracting authority has the obligation to send for publishing in the Official Gazette of Romania, Part VI, Public Procurement, the following announcements:
^ a notice of intent, for making public its intention to public procurement; this notice is published for all public procurement contracts envisaged to be concluded up to the end of the budget year and whose estimated value, without VAT, is equal or above of the Lei equivalent of
e 750.000;
^ a notice for participation for all the cases when it uses one of the open, restricted or competitive negotiation procedures as well as in the case when it intends a design contest;
^ a notice of award of the public procurement contract.
Also, the contracting authority has the right, with a view to ensure maximum transparency, to
make public the notice for participation also in other local information media, domestic or international, but only after the publishing of the respective notice in the Official Gazette of Romania, Part
VI, Public Procurement. The notice which is published in other local information media, domestic
or international must mention the number and the date of publication of the Official Gazette in which
was published the notice for participation and must contain other information than those which
were published in the Official Gazette of Romania.
The contracting authority shall apply, one of the following procedures when it awards the public
procurement contract:
^ Open procedure, that is the procedure where each supplier, undertaker or services provider is entitled to submit a tender;
^ Restricted procedure, that is the procedure performed in two distinct phases, where only the candidates selected by the contracting authority are invited to submit tenders;
^ Negotiated procedure, that may be:
competitive negotiation, meaning the procedure by which the contracting authority is in consultations and negotiates the contract clauses, excluding price, with several suppliers, undertakers
or service providers; this procedure is applied only in special cases provided by Law 212/
2002 (art. 11);
negotiation with single source, meaning the procedure where the contracting authority is in consultations and negotiates the contract clauses, including price, with a single supplier, undertaker
or service provider; this procedure is applied only in special cases provided by Law 212/
2002 (art. 12).
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^ Requestfor tender, respectively the simplified procedure by which the contracting authority asks for
tenders from several suppliers, service providers or undertakers; the contracting authority has
the right to apply this procedure for tender only when the estimated value, without VAT, of
the public procurement contract is less than the Lei equivalent of the following thresholds:
for the supply contract: e 40.000;
for the services contract: e 40.000;
for the works contract: e 100.000.
^ Design contest, that is a procedure that enables the contracting authority to acquire, mainly in the
field of land planning, town planning, architecture and civil engineering or data processing,
a plan or design selected by a jury after being put out to competition with or without awarding
prizes to the winner/winners. The design contest may be an independent procedure or part
of a procedure leading to the execution of a service contract. The projects/plans submitted by
the participants to the contest have to remain anonymous until the finalizing of the evaluation
performed by the jury.
Appeal procedures
The remedies system is consists of two phases:
a. In the first phase, the contestor submit a claim/contest at the contracting authority, who therefore has the obligation to analyse the claim/contest and to formulate in writing a motivated resolution regarding the way in which such contest should be solved.
The legislation provides the obligation of the contracting authorities to inform the Ministry of
Public Finance and if the case the Ministry of Public Works,Transportation and Housing, about
the contests received. Even if the Ministry of Public Finance has no specific tasks as a reviewing body, the directorate in charge sends an opinion to the contracting authority, such opinion
being only of a consultative nature, i.e. it refers to the way in which the contest might be solved.
b. If the contestor is not satisfied by the way in which the contest has been solved, it then has the
right to go to a court of justice. The legal action is to be filed with the administrative Court
of Justice having competencies over the area where the contracting authority is located. The
contestor may also file a recourse against the decision of the court; such appeal is to be filed
with the Court of Appeal.
The means for the e-procurement development in Romania were carefully regulated and have been
introduced in the domestic legal system only after a severe surveillance of the pilot project.
The base regulations of the Romanian e-procurement system consist of:
^ Governmental Ordinance - 20/2002 - regarding e-Procurement;
^ Law 468/2002 for the approval of the electronic acquisitions;
^ Governmental Decision - 182/2002 - listing the products and the institutions subject to use
e-Procurement.
General principles
The general principles which are governing e-procurement are similar with those for the traditional public procurement.
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The Internet offers unrivalled efficiency to business oriented processes. During the past few
years, the Internet usage in the Romanian business sector has been growing significantly along with
the legislative framework concerning information technology. The EU Directives 92/50, 93/37, 93/36,
93/37 and 97/52 concerning e-tendering were endorsed in the legislative process. Specifically, the following regulations provided a sound basis for the e-Market initiative:
Governmental Ordinance - 20/2002 - regarding e-Procurement;
Governmental Decision - 182/2002 - listing the products and the institutions subject to use eProcurement;
Law 468/2002 for the approval of the electronic acquisitions;
Law 365/2002 concerning electronic commerce;
Law 455/2001 regarding digital signatures;
Law 676/2001 concerning data privacy.
In a constantly changing economic environment, an electronic market could provide the necessary information flow needed for businesses to knowledgeably sell in the public procurement arena
and for the public institution to optimize their buying activities and achieve a greater flexibility.
The extension of the e-Market system to national level became a key component in the process of
modernization of Government in Romania. By procuring electronically, the Romanian Government
can lower the cost of inputs, also encouraging the private sector to move to B2B and it also creates
the premises for lowering corruption, reducing bureaucracy and ensuring transparency, in the effort
of building efficient and accountable public sector institutions, capable of sustaining long term development.
The managing body of the e-procurement system is the General Inspectorate for Communications and Information Technology (GICIT) which is subordinated to the Ministry for Communication
and Information Technology.
E-Procurement is hosted in a state of the art building employing highly secure facilities by means
of smart cards, biometrics, IP-based and closed circuit video surveillance, guards etc. There are
built-in redundancy and fast recovery schemes at all critical levels with clear responsibilities assigned
to all the personnel in charge.
The hardware supporting the system is distributed in high-availability architecture with dedicated
Internet connections on fiber optics and radio waves in a balanced configuration. At its peak, the system had an average traffic of more than 3 Megabytes per second.
The application was developed so that fine tuning operations are allowed, if required by changes
in the economic environment. It has a high degree of security, as it uses the best breed of encryption
techniques (encrypted communication, digital certificates, security tokens, username/password authentication, etc.). The application nucleus is resilient in terms of standards used to interoperate with other
application. All the functions are customisable to a great extent.
E-Procurement is the project with the most extensive Public Key Infrastructure in Romania (over
3200 certified users) geographically spanning over 230.000 square km and is accessible through generally available web browsers.
There is a massive flow of information between the system and other public bodies with responsibilities in the area of public acquisitions (controlling and regulating authorities etc.).
The application is maintained by a team of highly educated specialists, with specific tasks like application administration, database maintenance, network administration, software development, help
desk, etc. They are available on a 7 days a week basis.
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Following the Romanian legislation and also encouraging local companies to bid on-line, the
public procurement system makes enormous efforts to make this activity easier for companies. Newspaper and on-line advertising are the main vehicles for promoting this kind of auctions.
There are three types of notes that the contracting authority must advertise in order to make publicly their needs:
^ the Auction Intention Note, in which the contracting authority advertises its intention to buy certain
products or services;
^ the Intention Note, the contracting authority makes an Auction Participation Note, in which it
names all the conditions that the tenders must submit in order to participate at the public procurement auction;
^ after the winner (winners) of the auction was decided the contracting authority must post an
Auction Awarding Note.
Moreover, the contracting authority advertises all the tender competition documents on-line on
their website and on the e-procurement site (www.e-licitatie.ro) and also in newspapers.
e-Market is an electronic commerce project initiated by the Romanian Government within the
European e-Government framework presenting itself under the form of a virtual marketplace on the
Internet. It started as a pilot project on March 4th, 2002 and shortly reached a national level. It was intended to offer an alternative way to perform public acquisitions.
The auctions are organized by public institutions and are available to any private company that
has an Internet connection. The bidders make their offers in an easy way and the system guaranties
that the best offer wins.
In order to sell or buy goods or services, each contracting authority or company must be registered in the system. By registering in the e-procurement system, each contracting authority or company
will be designated a unique username and a password through which they are identified in the system.
For a contracting authority to organize an auction it must first describe the product which is to be
bought. For this, it must introduce the following inputs: type of auction, price, dead end, additional
characteristics, etc. Alter that the application will be stored in the system as an invitation to the auction
for the bidders.
For a company registered in the system to sell its products it must fist check the list with the products required by the buyers registered in the system choosing the option Looking for required products,. Several search criteria are available for the bidder to find the specific auctions: category,
name, description, dead line date and starting date.
Each bidder can, after registering in an auction, to cancel its submission or to modify its input by
introducing a lower price.
Note:
All the auctions and transactions finalized are saved in the system and can be viewed by everyone
in the public side of the page.
The regulation bodies are preparing a set of rules that aims to encourage every company to join
the e-procurement environment.
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Slovenia
The EU has laid down a series of laws, in the form of Directives, which are intended to ensure
that public procurement is open to European-wide competition and that suppliers and service providers in any EU Member State are given an equal opportunity to bid for and win public contracts.
The rules constitute an important element of the Single Market Programme. One set of Directives
(the public sector, Directives) covers contracts awarded by central government, local authorities and
other bodies in the public sector. The substantive rules for these public bodies (known as contracting
authorities,) are set out in the following three Directives:
1. Council Directive 93/36/EEC of 14th June 1993 coordinating procedures for the award of
public supply contracts (the Supplies Directive,);
2. Council Directive 93/37/EEC of 14th June 1993 concerning the coordination of procedures for
the award of public works contracts (the Works Directive,);
3. Council Directive 92/50/EEC of 18th June 1992 relating to the coordination of procedures for
the award of public service contracts (the Services Directive,).
A parallel set of rules is set out in Council Directive 93/38/EEC of 14thJune 1993 coordinating the
procurement procedures of entities operating in the water, energy, transport and telecommunications
sectors (the Utilities Directive,). This Directive applies to procurement by utilities which are in the
public sector or which, although in the private sector, carry out the specified activity on the basis of
special or exclusive rights,. All in the process of the transposition of the Directives into their domestic legislation. The GPA System is ever widening the scope of contracts awarded by governments in
other countries to be open to bidders from EU and vice versa.
Slovenia has amended the Public Procurement Act (hereafter: PPA) according to the suggestions
of the European Commission. To make the PP legislation transposed from the EU Law Slovenia has
also introduced these changes to make the domestic law less rigid and more practicable for all the
users.
Public Procurement in Slovenia complies with the principle of freedom of access to public purchasing, equality of treatment and transparency of procedures. The PPA regulates procurement operations at all levels in the country-state and local level ^ including utilities using budget means, directly
and indirectly. The definitions of the Law are consistent with the EU Directives. Yet, efforts are currently being devoted to the task of achieving total compliance with the European law.
Of the public procurement marketplace in Slovenia the present legislature applies to users of public monies i.e. to public authorities and entities governed by public law; also to the bodies having legal
personality that are established for the specific purpose of meeting needs in the general interest and
on noncommercial basis; furthermore, all undertakings over which public authorities exert predominant influence, either by owing them or participating financially therein, are bound by law as contracting authorities.
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Complaints are regulated by a separate law: the Act on the Review of Public Procurement Procedures and the national review body is responsible for the review of complaints lodged under the
PPA. The Act on the Review of Public Procurement Procedures sets up essentially a two stage review
process. The first possibility is a compliant by a disappointed tenderer to the contracting entity itself.
The commencement of the 2 stage review procedure has automatic suspensive effect, although this
suspension may be removed by the National Review Commission on the application of one of the parties. If the contracting entity does not amend its position, the tenderer is given a further 3 days in
which to proceed further with the claim to the second tier review body, the NRC. Interestingly, it is
not only tenderers that may file a complaint, but the PPO as well as the State Attorneys Office and
the Office Competition
and the right to bring a case before the NRC. It may either reject the claim or annul the procedure in
whole or in part. However, it may not, in consequence, award damages. That is in jurisdiction of civil
courts.
Public Procurement Office (hereafter: PPO) is a state body which provides legal opinions asked
and unasked-for by the contracting authorities, grantors of concessions and bidders concerning both
levels of procurement: on the National and on the European level. The PPA regulates the establishment and mandate of the PPO through article 135 where it states that the Government shall adopt
an ordinance on the establishment of the PPO. Such a regulation was put into effect in May 2001.
The PPO has 9 staff members and is organized into 4 departments - Legal advice and training, Analytical work and statistics (Monitoring Section), International co-operation and General matters. The
PPO reports to the Secretary General of the Office of Government (Prime minister). The Director
of PPO is appointed and dismissed by the government.
Complaints by private enterprises or institutions will be passed on to the independent state body National Review Commission (NRC). PPO follows case law of the European Court of Justice in order
to be informed about recent developments. PPO makes an investigation of all contracting authorities
and grantors of concessions.
These institutions will all be obliged to provide relevant information of their procurement and
concessions (National and European) on a regular basis. Relevant information will not only include
notification of the start of procurement procedures but also of the execution and the evaluation of procedures and other data about the contractors such as the number of contracts included in every procedure. PPO is involved in the further development of the PPA, formulation of amendments to the
law, preparation of secondary legislation and decrees and adaptations to new public procurement regulations from the EU. The Office provides trainings for contracting authorities and grantors of concessions, at the central level as well as at the local level. It exchanges with foreign PPOs or comparable
government institutions information and views concerning EU PP Regulations and its interpretation.
It does not provide information about individual public procurement cases to foreign government institutions. The Office draws up standard models for contracts, correspondence, procedures, tenders
and evaluations concerning public procurement and granting concessions to be used by contracting
authorities and grantors of concessions for their communications with the PPO and with bidding enterprises. The analysis will be focused on the implementation and the execution of the public procurement rules and result in proposals for improvement.
The National Review Commission, an independent body organized under the Parliament with its
own budget was established in 1999 in accordance with the Act on the Review of Public Procurement
Procedures. It is responsible for the review of complaints lodged under the PPL. The NRC consists
of president and 4 members who are appointed and dismissed by the Parliament. At least the president
must have the capacity as a judge, though the other members also currently meet the requirements
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Slovenia
for judicial appointment. The secretariat of the NRC consists of 8 experts and administrative staff. In
complex cases, decisions are made by a panel of three members while, in more simple or lower value
(below about e 600.000) cases, the decisions is made by a panel of one member.
The Law establishes two sets of thresholds (these are the same in the ended text): EU thresholds
and domestic thresholds below which no formal procedures of the Law apply. The EU thresholds are
consonant with those contained in the EU Directives. Their only purpose in the Slovenian Law is to
indicate the value of the contract above which a notice must be published in the OJEC. In most other
respects, the same procedures apply to contracts both above and below the EU thresholds until the value reaches the thresholds below which no formal procedures of the Law apply. These are, for works,
about e 80.000 and, for goods and services, about e 40.000. Below these thresholds, it is for the procuring entities to set out the procedures that will apply by way of internal regulation, although the
Law does set out some basic requirements. Discussions with the National Review Commission (below)
suggest that the most usual method below these thresholds is some form of requests for proposals
and that below about e 5.000, there are few procedures at all.
The procedure foreseen in the Law are essentially the same as those provided for in the EU Directives with the addition of an alternative procedure below the national thresholds. The procedures
include negotiate procedure both with and without prior publication. The conditions under which
these procedures may be used appear to be compatible with the EU Directives, although it is not
easy to determine given that the conditions are spread out through the Law. The main conditions
are contained in Article 20, for example, while additional conditions appear in article 84, added later,
together with some of the definitions. There appear to be some reporting requirements introduced
into the Law in respect of the negotiated procedures with certain of the conditions requiring reports
to the European Commission above and beyond the requirements of the Directives themselves. For example, the requirement in article 20(2) to send a report to the European Commission each time the
contracting entity does not receive any appropriate tenders. There is also a requirement, where the procuring entity wishes to rely on the situations in which (1)there is only one supplier for reasons connected with the protection of exclusive rights etc. or (2)there is extreme urgency, for the entity to obtain the opinion of the PPO which has 8 days to issue such an opinion.
Where the publication of notices in the OJEC is required, contracting entities must forward these
directly. All notices in the Official Gazette will also be forwarded to the PPO for publication on the
website.
Centralized purchasing: The Slovenian government has recently adopted a regulation concerning centralized purchasing of goods and services.
Electronic procurement: In this respect, the Law already provides for the use of electronic forms of
communication.
5. Models adopted
Centralized purchasing: Until recently there was no generalized use of coordinated purchasing procedures. For that reason the Slovenian government has adopted a regulation concerning centralized purchasing of goods and services. Under this regulation Joint Services and Government Centre for Informatics are the central units who conduct procurement on behalf of other Government departments. This two units will assist with the coordination of estimating the budget requirements for all
Ministries. PPO has a coordinating role. The first procedure will be carried out next year.
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6. The E - procurement
Slovene public procurement tenets are based on three principles: economy or rather the greatest
value, transparency and accountability. Accordingly, the process of e-government procurement should
not be merely economical but ought to be transparent too. Procurement requirements, rules and the
award criteria should be readily accessible to all potential suppliers and contractors. Accountability is
also the principle which is familiar in the Slovene procurement environment and is still further emphasised through electronic means. Procedures are to be systematical and dependable; and records explaining and satisfying all decisions and actions, should be kept and maintained.
It was the Government Centre for Informatics that made the initial steps in the domain of e-government procurement in Slovenia. The genesis of the information system through electronic access
could be roughly portrayed as follows:
1997/98: The complete tender documentation is accessible in Adobe Acrobat PDF format on internet (http://www.gov.si/razpisi/). Tender forms could be filled in the computer outright and then printed
in a written form as a tender. This is a possible way how they are submitted to the contracting authority;
1997/98 witnesses the establishment of the web site, where all information about public procurement tenders of the Government Centre for Informatics is published: questions and answers to the
contractors, amendments, modifications and changes of the tender documents;
1998: the working out of the electronic system of questions and answers to the bidders;
2000: sees the development and implementation of electronic system providing access to the
awards of small value.
Less then ten percent of the government bidders in the open procedure that are dealing mainly in
hardware, software, helpdesk and consulting obtain a copy of tender documentation in person while
over ninety percent of them just download it. All the parties get the information of this possibility
in the Official Gazette of the Republic of Slovenia (http://www.uradni-list.si).
Further experience will bring about a dynamic e-procurement market. Making the initial steps
within the government institutions first, we feel the pressure of numerous contractors to bring their
brands into the orbit of e-procurement. The government strategy of development of the e-procurement in the Republic of Slovenia is rather simple. By developing e-government services the government provides easier access to most of the documents. The citizens could do most of the tasks, which
previously required visiting the municipality, from home. By developing e-procurement, most of the
commercial companies, which are interested in obtaining orders from the government tenders, will easily be doing it from their office. By developing those two spheres the electronic commerce between
the companies will develop easily.
The main objective is that e-public procurements in Slovenia should not fall foul of the relevant
transparency and accountability principles and rules. The rudimentary processes i.e. marketing research, product identification, pricing, awarding, contract administration and the like should still
bring transparency and accountability more to the fore, when using e-public procurement. And all
the procedures extant in the conventional environment i.e. an open and restricted, qualification systems, and even a negotiated procedure with or without prior publication of a contract notice should
exploit the benefits of e-marketplace within the transparency and accountability rules.
Government web technology is a management tool for well tuned collaboration between all the
stakeholders including direct and indirect users of public money, the legal persons established by
them as entities, bidders and other practitioners in the domain of public procurement. The government web site is to enable the contractors to obtain procurement opportunities as well as information
on past, current and future entities bids. This will enable greater interaction and understanding between all parties, speed up administration of contracts and result in a better end product.
In the year 2000 Slovenia adopted the Electronic Commerce and Electronic Signature Act which
regulates a new field of the operation of the economic subjects, citizens and state organs. This field
has not been regulated until now, but it is becoming more and more important because of the fast
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technological development. A lack of its legal regulation could in the first place represent, which I
would particularly like to emphasize, a significant obstacle within the development of the electronic
commerce of the business sector and thus within the development of the Republic of Slovenia in general.
The Electronic Commerce and Electronic Signature Act regulates certain legal questions, imposed by fast technological development and accelerated introduction of the electronic commerce
into the business and public sector. The essential purpose of the legislator was legally equalize, where
it is possible and reasonable, the electronic form of operation with the earlier classical paper operation,
and, under special conditions recognize to the electronic signature the same validity as the autographic
signature has in the paper world. Thus the Act has suppressed a variety of legal obstacles for the electronic commerce and enabled, together with recently adopted modern legislation, even faster introduction of the electronic commerce.
In the third chapter the Act regulates more extensively the electronic signature and the operation
of the certification service providers, who represent an inevitable condition for the use of the electronic signatures. The Act is entirely relying on the European and world orientations and uses a so-called
dual approach. Namely, it allows the operation of the certification service providers without previous
permission and also does not imply special conditions for their operation, but it enables the operation
of the certification service providers under very various conditions providing of different services of
verification, which gives them different legal effect regarding their reliability. A part of these rules is
also a provision of obligatory and voluntary supervision. The first is done by the Agency for the telecommunications, or until its foundation, the Government Center for Informatics within the so-called
voluntary accreditation scheme.
The Act provides only general conditions for the operation of the certification service providers
and electronic signature creation. the more detailed requirements are - on an explicit legal authorization - with a special provision provided by the Government of the Republic of Slovenia. The Act in
itself in its fourth chapter incriminates certain conducts as criminal offences and thereof provides
the sanctions.
In the beginning of this year (2003) the PPO together with the Government Centre for Informatics, Ministry of Finance, Ministry of Justice and Ministry of the Information Society, intensively
started working on the project E-procurement,. The system is now in the process of construction
and is expected to be finished in the year 2006.
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(1)
Royal Legislative Decree 2/2000 of 16th June constitutes the main legislation on public contracts
currently in force in Spain, approving as it does the Public Contracts (Consolidation) Act (hereinafter,
the Consolidation Act, or PC(C)A,). With this law, Spain implemented the Directives on public
works contracts, public supply contracts and public service contracts, as well as those governing the
appeal systems, within such contract award procedures (Directives 89/665EEC, 92/50/EEC, 93/36/
EEC, 93/37EEC and 92/13/EEC and their amendments as introduced by Directives 97/52EC and 98/
4/EC).
Development of the Consolidation Act is to be found in the provisions of Royal Decree 1098/2001
th
of 12 October. This approves the General Regulations for the application of the Public Contracts
(Consolidation) Act.
Along with these laws, it is equally necessary to take account of Law 48/1998 of 30th December,
which regulates contract procedures for the water, energy, transport and telecommunications sectors.
This Law implements Council Directive 93/38/EEC (known at a Community level as the Directive
on special sector, or public interest sector, contracting) and Directive 92/13/EEC, on the resources,
in these sectors.
All these laws are part of the basic national legislation drawn up according to the dictates of article 149.1.18 of the Constitution.
One of the primary objectives of these laws is the Spanish national laws implementation of the
Community Law on public contracts. The latter is to be integrated in terms of both the Directives
and the abundant case law produced by the European Communities Court of Justice. The legislation
equally aims at simplifying contracting procedures as regards the basic principles of advertising, free
competition and transparency to be applied in contracts drawn up by the Public Administration.
The Spanish legislator has recently reformed the laws governing public contracting so as to introduce
a greater objectivity, transparency and competition into public administrative contracts. In this context,
several aspects require highlighting. The first is the creation of greater and more effective controls concerning contractual variations. This has been achieved by introducing limitations (present for the first
time in our legal order) on variations as to contractual quantities, such limitations operating independently of possible budget implications. The second is the abolition of the possibility of implied extension in administrative contracts and the reduction of contractual time-frames in contracts for the management of public services, consultancy and assistance contracts and service contracts, so as to favour
competition in this contractual field. The third is a more appropriate regulation of anomalous bids.
The fourth involves requiring greater rigour in projects and the establishment of a stricter regime
for joint contracting for the development of projects and execution of the related works, just as for pos(1) This contribution has been kindly wrote by Mr Jose' Antonio Moreno Molina, Titular Professor of Administrative Law of the Universitad de
Castilla-la Mancha
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sible application of the negotiated procedure in awarding complementary works contracts and the introduction of greater diligence requirements applicable to the Administration when issuing certification and paying invoices.
The Consolidation Act is divided into two Books.The first is entitled On Contracts drawn up by
the Public Administration in general, and constitutes the authentic general body of the law on public
administrative contracting. It establishes the context for the Acts application and likewise regulates
the whole administrative organization of public contracting: the contracting authorities and their competences, the objects of contracts and their prices, the qualifications required in order to be able to enter into contracts with the Administration (enterprises capacity and solvency, suppliers classification
and registration and the guarantees required for contracts with the Administration), the formal preparation of the contracting documentation, the procedures (open, restricted or negotiated) and the criteria for awarding contracts: auctions for the lowest-price bid or competitions for the economically
most advantageous offer, advertising and notices of contracts and their expiry dates, execution of
and variations to contracts, performance of the same, price revision, assignment of contracts, subcontracting etc.
For its part, the Second Book (On the Various Types of Administrative Contract,), unites the
laws of special application in each of the cases of typical or specifically named administrative contracts:
for example, public works contracts (title I), contracts for the management of public services (title
II), supply contracts (title III), consultancy and assistance contracts, service contracts and contracts
for specific, concrete non-routine works in Administration (title IV) and contracts relating to public
works concessions (title V).
For the purposes of establishing the legal persons subject to its application, the PC(C)A first considers local administrations as equal in status to the Public Administration (i.e. the National Administration, the Autonomous CommunitiesAdministrations and the Authorities integrating the Local Administrations). As regards the latter, the drafting of Article 1.2(c) of the PC(C)A leaves no room for
doubt regarding the subjection to the Act of the various local bodies envisaged by article 3 of Law
7/1985 (dated 2nd April and setting out the Bases for the Local Regime,), namely, the Municipality,
the Province, the Island (as far as the Balearic Islands and the Canary Islands are concerned), local
bodies ranking lower than a municipality and founded or recognized by the Autonomous Communities, the Comarcas or other bodies encompassing several municipalities, the Metropolitan Areas and
the municipal Mancomunidades .
Article 1 of the PC(C)A establishes that all autonomous organizations must adapt their contractual
activities to the Act in every case. So, too, must the remaining bodies governed by Public Law that
have their own legal personality and are tied to or dependent on any sort of administrative department
if and when the same satisfy the requirements that a) they were founded specifically in order to meet
needs in the general interest that are not of an industrial or commercial nature; and b) the body is
one whose activity is primarily financed by the public administration or by other organizations governed by Public Law or whose management is subject to controls by such organizations or whose
body responsible for administration, management and control comprises members more than half of
whom have been appointed by the Public Administration and/or other Public Law organizations.
As far as the autonomous organizations are concerned, these appear totally subject to the Consolidated Act, as is to be inferred both from a literal reading of article 1.3 PC(C)A and from article 49
of Law 6/1997, dated 14th April, regarding the Organization and Functioning of the National Administration, (OFNA,). A different conclusion is drawn, however, if one compares a reading of article
1.3 with article 3.1.f of the same Act which states that some supply contracts concerning activities directed by Autonomous Organizations are to be deemed excluded. Furthermore, OFNAs additional provisions 10a and 11a establish another regime excluding the PC(C)As application to certain Autonomous
Organizations.
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As regards the Bodies governed by Public Law, those in which the circumstances indicated in article 1.3 converge will remain subject to the precepts of the PC(C)A in their entirety. In order to determine
whether or not such Bodies satisfy the required criteria, it is necessary to turn to the legal constitution
of the particular Body. It is not sufficient that the Bodys activities affect the private or commercial sector,
since some of the functions it develops may be administrative in nature.
On the other hand, the remaining Bodies governed by Public Law are integrated within the regime established by article 2 PC(C)A. Indeed, article 2 establishes the legal regime for Bodies governed
by Public Law falling outside article 1.3s requirements (i.e. by failing to satisfy the need for a general
interest that is not of an industrial or commercial nature, financing that is to a greater extent public
and public control of their management). The Act follows the Community Directives on public procurement contracts for such Bodies. It limits their subjection to the rules regarding enterprises capacity, advertising, procedures and criteria for making an award, but does so only in relation to contracts
that meet the requirements that (1) the contracts are for a value over the community thresholds and
(2) their principle source of financing derives from direct or indirect contributions made by the Public
Administration.
The rest of the contracts drawn up by these Bodies must respect the principles governing public
sector contracting established by additional provision 6a PC(C)A.
3. Types of Public Contract
Taking the contracts drawn up by the Public Administration as a whole, there are some whose object refers more specifically to public works and public services. Such contracts are considered public,
and are governed entirely ( not just during their preparatory phases) by Administrative Law (by both
titles I and II of the PC(C)A). The rest of the contracts drawn up by the Public Administration are considered private-law contracts and, as far as their effect and performance are concerned, are governed
by private law (this is not the case, however, as regards their preparation and award which, as we
have seen, are governed by administrative law).
Thus, article 5 of the PC(C)A currently gathers together the different types of public contract
(which can be typical, specifically named or special contracts). It also defines the Administrations private-law contracts.
Typical or specifically named public contracts
Under the Consolidation Act, typical or specifically named public contracts are defined as those
the direct object of which, together or separately, is the execution of works, the management of public
services or the realization of supplies; and those for the provision of consultancy, assistance or services,
with the exception of contracts included in category 6 of article 206, regarding insurance, banking
and investment contracts and those included in category 26 of the same article, namely, those contracts
which have artistic and literary creation as their object and show contracts,.
Typical or specifically named public contracts:
^
^
^
^
^
^
Public works contracts;

Supply contracts;
Contracts for the management of public services;
Contracts for the provision of consultancy or assistance;
Service contracts;
Contracts concerning Public works concessions.
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Special public contracts

Article 5 of the PC(C)A defines special public contracts according to their tie to the Contracting
authoritys specific competence or field, for the purposes of directly and immediately satisfying a public goal that is within the said authoritys specific competence or because a particular law establishes it.
As indicated by the Advisory Committee on Public Administrative Contracting in its report
n. 5/1996, dated 7th March, the legal reference to the tie, to an administrative competence or field
(rather than a strict belonging,) permits the inclusion within the special public contracts, category
of contracts regarding the particular public interest that the authority in question wishes to achieve.
As regards special contracts, the Public Contracts Act 1995 had gathered together the legal reasoning of the Supreme Court which had interpreted the concept of public service, used by the Public
Contracts Act 1965 to define public procurement contracts as any activity developed by the Administration for the purpose of satisfying the general interest attributed to its specific sphere of competence,, i.e. every activity relating to the specific competence or field of the administrative body that
draws up the contract, (rulings issued by the Supreme Court on 16th October and 19th May 1996).
An analysis of the Supreme Courts legal reasoning reveals a clear tendency to define procurement contracts as public ones, on grounds of their underlying general interest and purpose, the intended use of the elements constituting the object of the contract and the broad application of the underlying concept of general interest and public service.
It therefore follows that special public contracts are governed, preferentially, by their own particular rules and, where those are lacking, will be awarded in accordance with the provisions of Book I
of the Act, in addition to the provisions of article 8.1 of the PC(C)A introduced by the law reforming
the law on public contracts in 1999.
Mixed public procurement contracts
Article 6 PC(C)A considers the premise of the so-called mixed public contracts,, i.e. those contracts characterized by the fact that they contain combined or mixed services proper to different kinds
of public administrative contract. As regards these mixed contracts, the Law asserts the general absorption, theory by which the rules relating to the service of greater importance from an economic
point of view prevail (for example, in a mixed public works and supply contract, the normal rule is
that the rules regulating the public works contract be applied because the estimate for that service
will undoubtedly be the higher of the two).
The Administrations private-law Contracts
Vis a' vis typical public contracts and special public contracts, article 5 PC(C)A defines the Administrations private-law contracts as residual ones.
Consequently, as far as their preparation and award are concerned and where no specific administrative laws exist, the Administrations private contracts will be regulated by the PC(C)A and its provisions as developed further and, as far as their effect and performance are concerned, by private-law rules.
The acts preparatory to contracting and those relating to the contract award may be separated
from the actual contract of a private nature. Thus the said acts may be separately and independently reviewed before a trial judge in the Administrative Division. This was already provided for by article
4.3 of the Public Contracts Act 1965, according to which contracts of a non-administrative nature
were to be regulated, in relation to their preparation and award, by their specific rules and, in relation
to their effect and performance, by those private-law rules that should be applicable.
The PC(C)A therefore maintains the subtle distinction between contracts drawn up by the Administration that are of a public nature and those that are of a private nature. As regards the public contracts, the same Law identifies the Administrative Division as the jurisdiction with competence to
try possible litigation arising between the parties (article 7.2). In contrast, as regards private-law contracts drawn up by Public Administration, it is the Civil Division that is the competent jurisdiction
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to try possible litigation arising between the parties. Those acts that are dictated in relation to the preparation and award of the contract, however, will be deemed separable legal acts that may be challenged before a trial judge in the Administrative Division (article 9.3).
The legal theory of separable acts was established by the Supreme Court in its famous judgments
of 4th February and 15th March 1965. According to this illustrious Court, where there exists a Public Administration, the preparatory and formalizing acts for every legal transaction retain their distinct administrative nature, without prejudice to the fact that the transactionscontent and effect may fall within any other jurisdiction whatsoever. By virtue of this vision of separable acts as formal elements common to the whole field of public contracting, both the process of giving concrete form to the Administrations will and the procedure of choosing a particular contractor are regulated by a group of
rules requiring strict compliance and, where all the elements are present, the Contracting Authoritys
competence to act is incapable of exclusion from the jurisdiction of the Administrative Division, whatever the content of the contractual clauses may be.
Appeal Systems
No specific mechanisms relating to public contracts exist in Spain. Instead, the general regime for
administrative appeals is applicable. This is governed by the Common Administrative Procedure Act
1992 and the Contentious Administrative Jurisdiction Act 1998.
As regards the appeal routes available to parties taking part in tender competitions, Law 62/2003 of
30th December (containing tax, administrative and social order measures) introduced a new article 60(b)
to the Consolidation Act regarding interlocutory measures.The new provision is in response to the important judgment dated 15th May 2003, delivered by the European Court of Justice in case C 214/00, Commission
v. Spain.The Court found that the Kingdom of Spain had failed to fulfil its duties under Council Directive
89/665/EEC dated 21st December 1989 (on the co-ordination of provisions contained in laws, regulations
and administrative decrees governing the appeal procedures applicable to the award of public works contracts and public supply contracts) as modified by Council Directive 92/50/EEC of 18th June 1992 (on the
co-ordination of award procedures for public service contracts). Spain had failed to adopt the measures necessary to satisfy the provisions of articles 1and 2 of the said Directive and, in particular had generally subordinated the possibility of adopting interlocutory measures regarding the awarding authoritiesdecisions
to the need to propose an immediate, direct appeal against the awarding authoritys decision,.
Procedures for awarding public contracts
Open procedure
Faithfully following the Community Directives, the provisions of the Consolidation Act referring
to the procedures and criteria for awarding contracts (articles 73 et seq. of the PC(C)A) provide that contracts may be awarded through an open, a restricted or a negotiated procedure. They establish two
sets of criteria applicable both to open and restricted procedures: auctions for the lowest price bid
and competitions for the most economically advantageous offer. The Law applies these procedures
and award criteria to all types of contract, reaching beyond the Community Directives requirements
which are only applicable to contracts over a determined value level.These rules are even applicable (almost in their entirety) to contracts for the management of public services, which is the only public administrative contract not regulated by Community Directives.
It follows that, in the open procedure, every interested contractor will be able to present a proposal (article 73.2).
This is therefore the procedure that best protects the rights of individual parties, insofar as there
are no limitations imposed on physical and legal persons free access to contracting with the Public Administration.
As far as the contracting authorities are concerned, the choice between using the open or restricted procedure is a free one, in accordance with article 75 of the PC(C)A.
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In the restricted procedure, only entrepreneurs expressly selected by the Administration (following their prior application) can make bids (article 73.3).
Under the legislation on contracts previously in force, use of this procedure was limited to contracts with a value over the thresholds fixed by the Community Directives (article 36(b) of the Public
Contracts Act 1965) and the procedure itself was the equivalent of the phase of prior admission to lowest-price auctions and competitions for the most economically advantageous offer. Such phase was
also present in the previous legislation (article 92 of the Regulations for State Contracts 1975).
The Laws general rules are applied to the restricted procedure, but with some differences as contained in article 91 of the PC(C)A:
^ Before issuing the restricted procedure notice, the Administration must have developed and justified (in a special procedure criteria, sheet) the objective criteria according to which the contracting body will be bound to issue invitations to participate in the procedure; these are to
be taken from amongst those established in articles 16 to 19 of the PC(C)A, according to which
are most appropriate for each contract.
^ The contracting body must (according to the characteristics of the contract) indicate the lowest
and highest numbers of enterprises that it wishes to invite. It must make such indication in
the Contract Notice. In this case, the lowest number must not be less than five and the highest
not more than twenty.
^ Applications to participate must be accompanied by documentation supporting the legal status
of the contractor (and, where applicable, of its legal representative) and its ranking or proof
that it satisfies the requirements relating to economic and financial solvency as well as technical
and professional capacity indicated in the notice.
^ Once it has checked the contractors legal status and solvency, the contracting authority will select the candidates and will issue a written invitation simultaneously to all those admitted to
present their proposals within the timeframe indicated, in each case, in their invitation (which
timeframe must not be shorter than that indicated for each type of contract in this Act). The
written invitation will inform candidates of the place, day and hour that the bidding will begin.
^ The contractors selected will present their proposals together with the document confirming
that the provisional guarantee has been set up.
Lastly, when the proposals have been presented, the contract is awarded according to the general
rules contained in this Act.
Royal Decree 1098/2001 dated 12th October establishes a series of guarantees that are designed to ensure contractors participation in the tender procedures and that incorporate the precepts contained in
the Community Directives on public contracting. Thus, as regards information about notices and complementary documentation in open procedures, there is a time limit of six days for the contracting
authority to send the above-mentioned documentation to the contractors who requested it at the proper
time. In the restricted or negotiated procedures with community advertising, the contracting authority
will send an invitation issued simultaneously to all selected candidates and accompanied by notices containing the special procedure criteria, and complementary documents, together with an indication of
the time limits within which they must maintain their bid.When the urgent, procedure is applied, complementary information on the notices will have to be communicated within four days before the date
fixed for the reception of participation applications. Furthermore, the contracting bodies will have to extend the time limits envisaged for presenting bids when the bids cannot be formulated without previously inspecting the places where the works or the contract are to be carried out or without consulting
the documents attached to the notice containing the special procedure criteria, and it has not been possible to supply the same (for reasons of volume) within the six-day limit previously indicated.
The new General Regulations for the application of the Consolidation Act contain a significant novelty aimed at facilitating contractorsaccess to tender competition procedures.When the documentation
is sent by post, it will be possible to give notification of its presentation, not only by telex, fax or telegram
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but also by way of e-mail (provided that this possibility has been provided for in the notice containing
the special procedure criteria). The act of sending the notification by e-mail will only be valid if there
exists evidence of the transmission and reception, of their respective dates and of the whole contents
of the communication and both the sender and the addressee may be reliably identified,. In such cases,
a printed copy is then obtained and registered before being attached to the paperwork.
As a consequence, for bids to be admissible, two requirements must be satisfied: they must be sent
by post within the prescribed time limit and the sending must be communicated the same day by
way of the means already indicated. Nevertheless, once ten days have passed after the expiry of the
deadline for presenting proposals without any documentation having been received, the latter will
not be admissible in any circumstances.
In the absence of regulation by the Regulations dated 25th November 1975 and in order to gather
the Community Directives on contracting, both the form and the requirements that are to be respected
for participation applications and invitations to present bids in the restricted and negotiated procedures
are regulated. It is also provided that invitations to participate in the restricted or negotiated procedure
may be made by e-mail.
Negotiated procedure with and without advertising
Under the negotiated procedure, contracts are to be awarded to the contractor freely and justifiably chosen by the Administration, after consultation and negotiations with one or several contractors.
Naturally, use of this procedure is strictly exceptional. As prescribed by article 75.1 of the Consolidation
Act, the negotiated procedure will only be used in the cases determined by Book II of the present
Act in relation to each type of contract,.
In accordance with the Community legislation (which greatly emphasizes this point), the Consolidation Act envisages the negotiated procedure (which, in our legal order, has substituted the old direct contracting) as a form of casuistry only to be used in exceptional cases: article 75 establishes that
the contracting bodies will normally, use the auction for the lowest price bid or the competition
for the most economically advantageous offer as the basis for awarding contracts,, whereas the negotiated procedure will only be used in the cases indicated in Book II of the present Act in relation
to each type of contract,.
In cases where the negotiated procedure is used, it will be necessary to request bids from at least
three enterprises qualified to realize the object of the contract (provided that is possible). The price
will then be fixed after direct negotiation with the enterprise chosen and clearly traceable evidence
of all dealing will be left in the paperwork (article 92).
Influenced by the Community Directives on public contracts, the Public Contracts Act 1995 (now
contained within the PC(C)A) introduced the important distinction, in the cases in which negotiated
procedures may be used, between those where advertising at a community level will be necessary
and those in which no prior advertising will be necessary. In actual fact, in the case of public works
contracts, public supply contracts and public service contracts for an amount exceeding the quantitative
limits determining application of the Directives, and in which some of the circumstances envisaged
by the Law (articles 140.1, 181.1 and 209.1) converge, the contracting authority will have to publish a notice in the Official Journal of the European Communities. In the other cases where contracting authorities
will be able to use the negotiated procedure (all clearly defined and limited by the Law), prior advertising of the contract notice will not be necessary (articles 141, 182 and 210 of the PC(C)A).
Amongst the cases where the contracting authorities will be able to use the negotiated procedure
without advertising, we find: when the contract cannot be awarded in an open or restricted procedure
for lack of contractors or because those who have presented themselves have not been admitted to
the bidding; when, as a result of its technical or artistic specificity or for reasons linked with the protection of exclusive rights, the contract can only be entrusted to a particular contractor; and when
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the contract concerns works or supplies declared to be secret or when their execution must be accompanied by special safety measures in accordance with the provisions of regulatory or administrative
laws in force or when it is required for the protection of interests essential to national security.
On the other hand, use of the negotiated procedure without advertising is permitted when a
pressing urgency (resulting from events unforeseen by the contracting authority) requires an execution
that cannot be carried out through the emergency procedure provided for by article 71. This last provision must doubtless be interpreted strictly and as a subsidiary to the emergency procedure prescribed
by article 71 of the Act, insofar as only a strictly exceptional use of a contract award procedure undermining the principles of advertising and free competition is permitted.
The European Court of Justice has ruled to this effect in its already cited judgment of 18th March
1992 (case C-24/91, Commission v. Spain) in which it declared that Spain had failed to observe the requirements of EEC Directive 71/305 on public works contracts, the Rector of the Complutensian University of Madrid having decided to award works having as their object the extension and reform of
the Faculty of Political Science and Sociology and the School of Social Work, by way of direct negotiation,, without the existence of the grounds of urgency pleaded by the Defendants. In the European
Courts opinion, an urgent forwarding of the paperwork would have allowed the Complutensian University to realize the works within the timeframe required to satisfy the public interest. Thus the use
of direct negotiation was in no way justified.
Law 53/1999 reformed the law on public contracts and introduced important novelties with regard
to the grounds for having recourse to the negotiated procedure without advertising most used by
the Public Administration: the one that solely considers the total value of the contracts to be awarded.
In the first place, as regards public works contracts, under the new drafting of article 141(g), it will
be possible to use the negotiated procedure without advertising for contracts where the estimate is below e 60.000.
As far as public supply contracts are concerned, article 182 of the PC(C)A allows the use of the
negotiated procedure without advertising for contracts with a value below e 30.000.
As regards contracts for consultancy, assistance and services, following the reform effected by Law
53/1999, article 210 of the PC(C)A allows the use of the negotiated procedure without advertising for
contracts with a value below e 30.000.
As far as Local Authorities are concerned, it must be emphasized how additional provision 9(a) of
the Public Contracts Act 1995 altered the percentage limiting the use of the negotiated procedure in
public works contracts, public supply contracts and contracts for consultancy, services and specific,
concrete works that are not part of local administrations regular business. Under article 88.3 of Law
7/1985, dated 2 April (regulating the Bases for the Local Regime,), this percentage had been fixed at
5%. The 1995 Acts additional provision 9(a) reduced the percentage to 2%, whereas Law 53/1999 reformed the 1995 Act, establishing a new limit of 10%.
Minor contracts
Apart from the open, restricted and negotiated contract award procedures, the PC(C)A also takes
into consideration another type of procedure which we may classify as special. In actual fact, this regards the grounds for drawing up minor contracts, which article 56 of the Act defines exclusively on
the basis of their value (public works contracts whose value does not exceed e 30.000 [article 121]; supply contracts whose value does not exceed e 12.000 [article 176]; and contracts for consultancy, assistance and services whose value does not exceed e 12.000 [article 201]).
In the case of minor contracts, conduct of the paperwork will only require approval of the expenditure and incorporation of the related invoice (which must respect the requirements correctly established in the respective minor public works contract), in addition to the works estimate, without impacting on projects when such are required by specific laws.
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Royal Decree 1098/2001, dated 12th October, establishes that the invoice will serve as a contractual
document, as will the attachments that such invoices must have. Article 72 of this Regulation also specifies that it is possible to draw up several minor contracts that are recognized as belonging to the
same type of service when they refer to a generic sort of approved expenditure, without exceeding
the values fixed for each type of contract and the related spending authorization. This possibility gives
management greater flexibility by allowing several minor contracts to be realized with one spending
authorization, without having to seek new authorizations.
Amongst the novelties introduced by Law 53/1999s reform of the law on public contracts in the
regulation of minor contracts, the effect article 56.2 must be highlighted. This establishes certain limitations on minor contracts, specifying that they may not be of more than one years duration, nor
be the object of extension or of price revision,. Such provisions have increased competition and transparency in public contracting as their objective.
Spanish Law 13/2003 of 23rd May establishes a new form of regulation for public works concessions. It
modifies the precepts of the Royal Legislative Decree 2/2000 of 6th June (which approved the Public Contracts (Consolidation) Act) by incorporating a Title V (Public works concessions,). In the same way,
through its Additional Provisions, the appropriate reforms of the related legislation in this sector have
been brought to completion, in particular: Law 8/1972 of 10th May, regarding the Construction, Maintenance and Exploitation of Motorways by way of Concession; Law 22/1988 of 28th July regarding Coastlines
and Royal Legislative Decree 1/2001 of 20th July approving the Consolidated Text of the Water Act.
The new Laws main objective (as indicated in its preamble) is to bring public works concessions
up to date by grouping and developing further the defining features of this form of contract (such features being the private sectors contribution towards the creation of public infrastructures and a fair remuneration of the entrepreneurial effort in this sector). Law 13/2003 aspires to extend to all types of
public infrastructure the concession system for financing works that is currently being used to construct motorways.
The texts ultimate goal is doubtless to introduce a stable legal framework for the purposes of providing incentives to the private sector to bear 20% of the e 114.129 million cost to which the Infrastructures Plan 2000-2007 developed by the Ministry of Public Works amounts. The said Plan has a
budget execution horizon of 2010 and covers investments in motorways, superways, railways, ports, airports and other interventions.
The law equally claims to increase the concession systems level of legal certainty. The current scattering of legislation, both sectorally (i.e. impacting on the various types of infrastructures) and geographically (in the sense that different laws exist in the various autonomous communities), prevents the
application of a consistent policy on concessions capable of supposing the application of rules that
are clear for all parties involved: Administrative authorities, concessionaires, financial bodies and, in
particular, users.
The provisions relating to the concessions system included until 2003 in the Consolidation Act had a
secondary role in relation to those regarding other forms of contract such as the works contract. For this
reason, in order to upgrade the concession system, it appeared appropriate to make the changes necessary
to create a unified legal regime whilst taking account of concessions characteristic features. Thus greater
emphasis has been placed on the phase concerning the exploitation of infrastructures and rather less on
the phase concerning execution of the works, as had inevitably been the case in the PC(C)A.
The new law contains three fundamental themes characterizing legislation on concessions: the
risk tied to concessions, economic balance and sources of financing.
The concepts of risk tied to the concession and the concessions economic balance are intimately
linked with the historical evolution of the concession and its legal configuration is of prime importance if public works concessions are to maintain their identity and be recognizable as such.
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Where a contract is, by its very nature, a long-term one, it is clear that, facing the impossibility of
predicting the future with a reasonable error margin, the assumption of risk must not transform the
contract into an aleatory one. Accordingly, an appropriate moderation of the risk parameters is imposed if it is deemed desirable to attract capital investment and private initiatives, applying an inversion in proportion to the requirements of an effort shared by the public and private sectors. It must
nevertheless be emphasized that the concessionaires assumption of a substantial degree, of risk is decisive for a concession contract to merit such status.
This principle was explicitly expressed several times in the text of the law approved in 2003, both in
the preamble and in the articles. It was applied to the various phases of the concessions development,
ranging from the possibility of proposing execution by a private initiative to assumption of the risks,
both during the phase of the works execution and in that of the exploitation. It was thus concretely established that the concessionaires remuneration mechanism will have to respect the principle of risk assumption by the same. The need to include this principle of the enterprises risk assumption is further
created by the definition of the concessions system used in a European Union context. In line with
the above-cited principle of risk assumption, the newAct will help to reinforce the principle of maintaining concessions economic/financial balance. It will do this by establishing (for the first time) a symmetrical mechanism by which the concessionaire will avoid incurring excessive risks but will also renounce,
where appropriate, disproportionate benefits, thereby favouring the Administration and users.This symmetrical handling of extraordinary benefits and losses is a novelty for our concessions system. It will
also presuppose a lowering of tariffs or the reduction of concession timeframes or other improvements
in the concessions economic parameters in those cases producing an increased demand that is significantly higher than that initially envisaged in the concessions economic/financial Plan. Thus users will
also share the benefits resulting from the sound administration of concession projects.
As regards the meaning and effect of the principle of economic balance in concessions, the preamble to Law 13/2003 recalls our public contracting tradition (evident in a great number of tender
competition documents) of hallowing an interpretation of such principle that always favours the concessionaire: to the point that the latters risk disappears, on occasion. For the concession to retain its
nature, the contracts economic balance will have to reconstruct the framework defined and agreed between the Administration and the contractor (in cases where it is altered by clearly established legal
causes). This framework is obligatory for determining the concessionaires risks and benefits. Whether
it has been upset in favour of the concessionaire or against him, producing effects going beyond
what is considered desirable or tolerable for the institutions credibility or for public interest, the balance will have to be established without thereby eliminating the concessionaires interest.
Under the previous regime, an exceptionally increased demand to use the work that went beyond the
forecasts in a concessions economic/financial plan gave grounds for appropriate adjustments.This to avoid
the user (who is, at the end of the day, responsible for the total or partial financing of the investment realized and for paying to use the work) having to bear disproportionately high tolls or rates and, thus, the
creation of manifest unfairness. For this reason, the new article 233.1.d of the Consolidation Act provides
that the concessionaire is contractually bound (according to his bid) by a minimum and a maximum level
of total yield per concession. In this way, should the former not be reached or the latter exceeded during
the period determined in each case, the contract is to be revised. Accordingly, terms for revising the contract in relation to the yield variations deriving from use of the work are added to the contract [article
248.2.(c)]. In this way, both fair remuneration for effort and enterprise risk and only reasonable detriment
to the public works users are guaranteed. In short, this interpretation of a contracts economic balance constitutes one of the primary options inspiring the new regulation of public works concessions in line
with the nature and purpose of risk establishment and its measured distribution.
The characteristics representing concessions as an institution are completed by the diversification
of financing sources. Such diversification is aimed at making concessions more attractive to private capital by introducing a regulatory regime to avoid such investments as are made from being frozen.
In this way, as soon as the contract has been executed, the concession will be fully integrated within
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Spain
commercial dealing as a legal asset capable of assignment or mortgage. Equally, with regard to allowing risk-assumption reversal, the Law facilitates the concessionaire companys being opened to the securities market, not only, logically, through the conventional channels (i.e. financing by credit institutions or through the issue of bonds or other similar securities, including with the possibility of counting on government backing if general interests so dictate) but also by way of the securitization of credit
rights tied to the exploitation of the works. It will be possible to refer such securitization, where appropriate, to rights corresponding to the complementary areas of concessions of a commercial nature.
The presence of private capital is ensured through a solid package of guarantees for possible mortgages
and owners of securities.
In short, the new Law brings a greater legal certainty to the concession system, places the user at
the center of attention in the concession relationship, brings in new financing mechanisms and contributes to the creation of new infrastructures.
5. Means of E-procurement
To date, few measures have been adopted in Spain in relation to electronic public contracting.
Law 30/1992, dated 26th November, (The Legal Regime for Public Administration and Common
Administrative Procedure,) provides for the incorporation of electronic, computer and telematic techniques within administrative activity and requires that the latter open itself to technological innovation
and modernization,. Of the articles of Law 30/1992 to this effect, article 45 must be highlighted. This
states that the Public Administration is to stimulate the use and application of electronic, computer
and telematic means and techniques to develop its activities and carry out its duties. Likewise, this article
provides that, when this is compatible with the means available to Public Authorities, citizens will be
able to enter into dialogue with the said Authority by way of electronic, computer or telematic means
or techniques in the exercise of their rights, whilst respecting the safeguards and requirements envisaged
for each procedure. Amongst the other provisions, it is worth highlighting that, under this Law, the
documents issued by the Public Administration by electronic, computer or telematic means (whatever
the medium), or those issued by the same as a true copy of originals stored using the same means, will
have the same validity and effect as the original documents, provided that their authenticity, integrity
and conservation (as well as their receipt by the affected party where appropriate) are guaranteed, along
with the fulfillment of the safeguards and requisites required by this or other Laws (article 45.5).
It has been the various Autonomous Communities that, with their laws on public contracting,
have begun to include these technical means in contracts. Of the laws that may be set within the framework described, the law passed by the Autonomous Community of Madrid must be highlighted.
This establishes the publication of public contracts specifications on the Internet. In actual fact,
amongst the various national or autonomous laws that are concerned with ensuring that the Administration effectively incorporates the new technology (e.g. the Royal Decree of 16th February 1996 which
regulates the use of electronic, computer and telematic techniques by the National Administration or
the Decree issued by the Council Presidency and Public Administration in Galicia on 15th February
1999, regulating the Administrations use of the Internet), attention should be drawn to the Decree issued by the Council Presidency of the Community of Madrid on 27th April 2000 (regarding information about the new forms of technology, as well as their streamlining and application). The same law
contains a rather interesting provision that appears unprecedented at either a national or an autonomous level. It is a good example of how, in an extremely simple manner, an essential piece of information in the various forms of documentation for public contracting may easily be published in a form
that is accessible to its potential addressees. In fact, article 9 of the said Decree establishes that, for
the purposes of facilitating complete information about Contract Notices issued in the Official Gazette of the Community of Madrid, by the Councils, Autonomous Organizations, Bodies governed
by public law and Public Undertakings in this Autonomous Community, the said contracts specifications will have to be published on the site www.comadrid.es, in accordance with the procedure established by the Finance Council.
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Sweden
In Sweden the EC Directives on public procurement, i.e. 93/36/EEC, 93/37/EEC and 92/50/EEC
(covering the public sector) as amended by 97/52/EC and 93/38/EEC (covering the water, energy, transport and telecommunications sector) as amended by 98/4/EC, have been implemented into national
law, the Public Procurement Act. The two Directives on remedies in the field of public procurement,
89/665/EEC and 92/13/EEC, are implemented into the same act.
Directive 2001/78/EC is implemented in a specific regulation.
Apart from the explicit provisions implemented from the Directives the Swedish law contains a
general clause, denominated the principle of good business practice: The award of public contracts
should be so arranged as to take advantage of existing competition and should also in other respects
accord with the conventions of good business practice. No unwarranted considerations should affect
the treatment of tenderers, candidates or tenders,. This provision is considered to cover the general
principles of nondiscrimination, equal treatment, mutual recognition and transparency.
The Public Procurement Act contains seven chapters:
^ General provisions;
^ Supply contracts above the threshold values;
^ Works contracts above the threshold values;
^ Contracts within the utilities sectors above the threshold values;
^ Service contracts (A-services) above the threshold values;
^ Contracts below the threshold values and B-services;
^ Remedies.
Subordinate to the Public Procurement Act are the following regulations:
^ The regulation on standard forms for notification of public procurement;
^ The regulation on threshold values;
^ The regulation on technical specifications in public procurement;
^ The regulation on written evidence in public procurement;
^ The regulation on co-ordination of government purchasing.
The Swedish Public Procurement Act provides for different remedies. An Administrative Court
of Law can stop the procurement and order the procuring authority or entity to restart the procedure
or correct the procedure. The supplier or service provider may ask for damages in a Court of Law. A
special body, the National Board for Public Procurement is exercising the supervision over public procurement in Sweden.
Specific legal recourses have been included in the Public Procurement Act to provide legal remedies for a supplier who has been treated incorrectly.
185
During an ongoing procedure (until the conclusion of a contract) a supplier who considers that
he has been harmed or risks being harmed may apply to the County Administrative Court. The County
Administrative Court may decide that the award procedure shall be recommenced or that it may not
be concluded until the infringement has been redressed. The court can also make an interim decision
pending a final decision. Reviews have priority at the County Administrative Courts. Appeals against
the decision of the County Administrative Court can be lodged at the Administrative Court of Appeal.
As a result of a ruling of the European Court of Justice (C-81/98, the Alcatel ruling) in announcing
the selection of a supplier the contracting entities shall give notification of the date on which the contract will be signed. In the interim it shall be possible for a potential complainant to submit an application for a review (amendment) of the selection of supplier. A period of ten days must be allowed between the selection of the supplier and the conclusion of the contract, normally no less than one week.
When an award procedure has been concluded (a contract concluded or the procurement terminated), a supplier who considers that he has been harmed can claim damages against the contracting
entity in a district court. Appeal can be made against rulings in these cases to a Court of Appeal.
A supervising body, the National Board for Public Procurement (NOU) is a central government
agency. It consists of a secretariat and a board. The secretariat is responsible for day-to-day operations
and for contacts with contracting entities, other organizations and individuals, principally companies.
The members of the Board are normally meeting ten times a year. The chairman of the Board is a
Head of Division of the Administrative Court of Appeal and the other members are experts from National Board of Trade, Confederation of Swedish Enterprises, Swedish Association of Local Authorities, Swedish Armed Forces, Ministry of Finance, Association of Swedish County Councils and Trade
union.
The tasks of NOU include:
^ to supervise that the Public Procurement Act (LOU) and the GATT agreement (GPA) within
the WTO are followed;
^ to work for efficiency in public procurement;
^ to distribute information by means of telephone information services, newsletters, publications,
seminars and conferences to support the Government Offices;
^ to follow developments in the area of procurement in the EU and the WTO.
NOU publishes a newsletter in Swedish, NOU Info, four times a year. The newsletter is mainly
intended for contracting entities and suppliers to the public sector. Some of the opinions of the
NOU have an important impact on practices and actions taken by the contracting authorities and
the Board submitted several opinions to the Courts of Law.
The Swedish legislation on public procurement above the threshold values contains rules concerning supplies, services (A-services) and works contracts within the classical sector and the utilities
sectors. It also has rules on B-services and contracts below the thresholds.
All procurements above the thresholds (except B-services) are advertised in TED. Contracts below the thresholds and B-services must be subject to advertisement in an electronic database that is
open to the public or some other form of notification that can ensure effective competition.
Contracts above the thresholds are awarded in open, restricted or negotiated procedures. Contracts below the thresholds are awarded in either a selective procedure where the contracting authority
requests applications for tenders or a so-called simplified procedure where the authority requests tenders. In some specifically regulated cases there is a possibility to request tenders from only one economic operator and in exceptional cases a contract may be awarded directly.
Framework agreements are frequently used. Governmental purchasing is regulated to be operated
by a central authority. All governmental authorities are recommended to use those frameworks agreements.
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Sweden
All contracts concluded according to the public procurement act may be subject to legal remedies
after an application of an economic operator.The county administrative court may in a review procedure
prescribe the procurement procedure be recommenced or prescribe an infringement be rectified before
the contract is concluded. The administrative court may decide to take an interim measure according
to which conclusion of the contract is prohibited for the time being.
A contracting authority, which has caused damage to an economic operator by not applying the
rules on public procurement correctly, shall pay damages to the operator. An action for damages is
brought before a general court.
There have been several attempts to break down the administrative monopoly of the state and local governments. Many of the sectors are now open for competition.
The traditional procurement is still the prevailing method of awarding a contract. Many administrations have reorganized into separate divisions for defining the goals and for execution of the actual
operations. In this way an administration may choose to award a contract to the external operator (a
procurement contract) or to an in-house division, if the own division on objective grounds offers a
better quality and price than the external tenderers.
Works concessions and service concessions are not very often used.
There are some interesting cases of joint ventures made by the local governments. An Act on Local Government administration regulates the possibilities of the authorities to start a company together
with the private operator. The supplies and services provided by such a company must be procured according to the rules in LOU.
One special form of providing service to the general public is a customer choice system,.There are
several forms on a common basis, where the private person, the customer,, chooses a service provider
and pays him with a check issued by a local government. The system is not widely spread but it is used
by some local authorities in such areas as in care of the elderly people, school and some supplementary
health care. Even though the private person makes the choice of provider, the choice of quality and the responsibility for the execution of the payment is still with the contracting authority. In many cases there
is a list of approved service supplier to choose among.There customer choice system contains some cases
when the money is transferred to a customer and the choice of supplier is not limited.Those cases should
probably not be covered by the procurement rules.
5. The E procurement
The notices for procurements not regulated by the European Directives in simplified procedure
must be normally published in an electronic database that is open to the public or some other form
of notification that can ensure effective competition. The Public Procurement Act provides for some
exceptions from this general rule.
There is technology for call off on framework contracts and electronic payment of invoices. There
is no telematic technology for on-line auctions, market places etc.
Sweden has no special legislation on e-procurement. The possibilities of allowing the contracting
authorities to prescribe tenders be submitted electronically according to the amendments 97/52/EC
and 98/4/EC of Directives are fully implemented into the Public Procurement Act. Signing contracts
by an electronic signature may also be used. A contracting authority may allow a tender to be submitted by electronic transmission or in some other way provided that it can be ensured that the contents of the tender will not be disclosed before it is opened. The authority may require a tender of
this kind be confirmed immediately. Confirmation shall be given in writing or, should the authority
so allow, in some other manner.
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Switzerland
Introduction
Since the Government Procurement Agreement of the Tokyo Round, Switzerland has brought
very significant modifications to government procurement policy and legislation. The Government
procurement agreement of the WTO (GPA) represents the cornerstone of todays legislation and has
led i.a. to a Federal law passed by Parliament and a new Regulation from the Federal Council. At
the cantonal level (1), remarkable progress has been achieved with an Inter-cantonal Agreement opening up on a reciprocal basis government procurement between the 26 cantons and their 3.000 communes as well as on an international basis with GPA Members in particular.
Further liberalization efforts at the international level have been achieved in particular with the
European Union realizing thereby a liberalization level comparable to the European Economic Area.
Free-trade agreements with Mexico and Chile have also opened new avenues for liberalization.
In addition, Switzerland attaches significant importance to international cooperation in the framework of the Public Procurement Network, (2) as well as by concluding Protocols of agreements
with surveillance authorities in order to enhance cooperation (3).
The Federal government and the cantons cooperate closely to apply homogeneously and in a coherent manner procurement Law. Presently, their joint efforts focus on the development of a common
electronic platform for all government procurement notices including those of the large cities. New
federal laws on e-commerce and e-signature will reinforce efficiency, transparency and accelerate processes. In this context, the ongoing revision of the GPA should also provide further impetus.
General principles
The Swiss legislation on government procurement is based on the following basic principles:
^ transparency of the tendering procedure;
^ strengthening of competition between tenderers;
^ rational use of public funds;
^ equal treatment between tenderers;
^ respect of the provisions referring to workers protection (i.a safety in the construction sector),
and working conditions (i.a. social insurances, vacations,...) for procurement in Switzerland;
(1) In Switzerland, about 20 % of government procurement takes place at the federal, 38 % at the cantonal and 42 % at the cities level for a total
of SFR 30.8 bn in 2000. For more information on federal purchases, see: E. Etter, La statistique des achats de la Confe de ration en 2007, La Vie Economique,
10, 2003 ou http://www.beschaffung.admin.ch/de/index.htm.
(2) Before joining this network, Switzeriand has been Member of the Wider Group of the Steering Group of the Pilot Project on Public Procurement (PPPP) whose work focused on cross-border and precontract problem solving, applications and interpretations of the regulatory framework, and, monitoring of specific sectors.
(3) The Swiss and Italian surveiliance bodies have signed a Protocol of Agreement on September 25th, 2002 covering mainly exchange of information and informal procedures to solve problems before contract awards.
189
^ wide access of tender notices through paper and electronic means;

^ efficient remedy system at the federal and cantonal levels;
^ opening-up of the Swiss market to foreign bidders on a reciprocal basis.
International level
At the international level, Switzerland has concluded two agreements with a significant importance for the opening-up of procurement markets to foreign competition:
i) Government procurement agreement of the World Trade Organization, April 15th, 1994
With this Agreement (4) - entry into force, 1st January 1996 - Switzerland has opened up its markets
for goods, services (5) and construction (6) at the federal and the subfederal levels (cantons, cities), as
well as for several utilities (drinking water, local transportation, airports and ports) above specific
thresholds (7). Switzerland has achieved the maximum level of liberalization with the European Communities, Norway, Iceland, Liechtenstein and Hong Kong/China (8).
ii) Agreement between the European Community and the Swiss Confederation on certain aspects of government procurement, June 1999.
With this Agreement (9) - entry into force 1st June 2002 -, Switzerland and the EC have filled the
gaps between the GPA and the European Economic Area Agreement (EEA) (10) for tenders above
GPA or EC thresholds. This Agreement covers railways and entities active in the field of energy other
than electricity; private operators operating on the basis of special or exclusive rights in the connection
with drinking water, electricity, airports, ports, urban and cable transport. This Agreement also covers
cities through an extension of coverage under the Swiss Annex 2, Appendix I of the GPA.
Although the telecommunication sector is mentioned in the Swiss - EC Agreement (11) as a purchaser subject to its rules, the Swiss authorities have exempted it upon entry into force of the Agreement. This exemption was undertaken on the basis of art. 3, 5 of the Agreement as competition prevails in the Swiss market as a result of liberalization in the key areas of fixed net, mobile communication, internet access and data transmission (12). The EC Commission had also taken a Decision to exempt entities operating in the telecommunication sector of most Members for the same activities in
May 1999.
iii) Other
Switzerland and its EFTA partners (Norway, Iceland, Liechtenstein) have also adapted the EFTA
Convention to the Swiss - EC Agreement albeit without including telecommunication purchasing entities. In addition, Switzerland has further opened up government procurement with Mexico (2000)
(4)
(5)
(6)
(7)
For an analysis, see: L. Wasescha, P. Nell, LOMC et les marche s publicsH, La Vie Economique, 10, 2002.
The list of services is available in the Swiss Annex 4, Appendix I, of the GPA at: (http://www.wto.org/french/tratop_f/gp_gpa_f.htm)
The list of construction services is available in the Swiss Annex 5, Appendix l of the GPA (Source: see footnote 4)
Thresholds: Federal level: goods and services (SFR 248.950.-); construction (SFR 9.6 million)
Cantonal level: goods and services (SFR 383.000.-); construction (SFR 9.6 million)
Utilities: goods and services (SFR 766.000.-); construction (SFR 9.6 million)
(8) Restrictions toward other WTO Members are included in the General Notes of the Swiss Appendix l to the GPA (Source: see footnote 4)
(9) For the text see: OJ L 114/430, 30.04.2002 or http://www.europa.admin.ch. For an analysis of this Agreement, see: L.Wasescha, ,,Das Abkommen u ber bestimmte Aspekte des o ffentlichen Beschaffungswesens: eine Wu rdigung aus politischer und wirtschaftlicher Siche and E. Bollinger, ,,Grundzu ge des Abkommens
u ber bestimmte Aspekte des o ffentlichen BeschaffungswesensH in Accords bilate raux Suisse-UE, Dossier de droit europe en n. 8, Ed. D. Felder, C. Kaddous, Helbing & Lichtenhahn, Bruylant, 2001.
(10) Swiss Membership in the EEA, although accepted by Parliament, was turned down in a referendum on December 6th, 1992. The Agreement on government procurement is part of a package including 6 other agreements. For more information, see: http://www.europa.admin.ch
(11) Swiss - EC Agreement : Annex 1B, Switzerland, entities active in the field of telecommunication.
(12) Ordinance on the exemption to government procurement rules, 18.7.2002, Federal Department onTransportation, Energy and Telecommunication.
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Switzerland
and Chile (2003) in the context of free-trade agreements (FTA). All FTAs with Central and Eastern
European as well as Mediterranean countries include a best-endeavour clause to open-up government
procurement markets on a reciprocal basis.
National level
At the national level, Switzerland has federal and cantonal legislations.
i) Federal legislation
(13)
a) Federal law on government procurement, 16th December 1994. This law, passed by Parliament,
sets all the basic rules for procurement above GPA thresholds;
b) Ordinance on government procurement, 11th December 1995. This Ordinance of the federal
Council sets detailed rules for procurement under and above GPA thresholds;
c) Federal law on national roads, 8th March 1960. This law gives in particular to the cantons the
competence to tender public works for national roads (art. 41). More detailed procedures and
thresholds are dealt with in the Ordinance on the national roads, 18th December 1995, Federal
Council;
d) Federal Arre te , on alpine transit, 4th October 1991. This legislation opens up to foreign competition the contracts referring to the construction of two tunnels underneath the Alps;
e) Other legislation include:
^ Federal law on the internal market, 6th October 1995, which sets up (art. 5) the basic principle
of non-discrimination for all government procurement in Switzerland;
^ Federal law on cartels and other restrictions to competition, 6th October 1995;
^ Ordinance on the adaptation of thresholds (on a yearly basis), Federal Department of
Economy;
^ Ordinance on the exemption to government procurement rules, 18th July 2002, Federal Department on Transportation, Energy and Telecommunication, for exemptions under the
Swiss-EC Agreement.
ii) Cantonal legislation
The 26 Swiss cantons (14) operate under an Intercantonal Agreement on government procurement, 25th November 1994, and its Executive Directives, 1995. All the cantons have joined this Agreement and translated it in their legislation. Major differences between the cantons and the federal government include:
^ the non-incorporation by the cantons of the possibility to negotiate during the tender process;
^ the obligation - after an award decision - to wait until the ten-days deadline for submitting
complaints has elapsed before signing any contract;
^ the possibility for decisions from the Administrative Court to be appealed to the Federal Court.
iii) Legislation being prepared
The Federal government procurement regime is under revision. The project is at preliminary
stage; the new legislation should come into force in 2007 and include also modifications resulting
from the ongoing revision of the GPA in the WTO.
(13) Federal legislation is available on http://www.admin.ch
(14) The 26 cantons are : Appenzell Rhodes lnterieures, Appenzell Rhodes Exte rieures, Argovie, Ba'le Ville, Ba' le Campagne, Berne, Fribourg,
Glaris, Gene' ve, Grisons, Jura, Neucha' tel, Lucerne, Schaffhouse, Schwyz, Soleure, St-Gall, Uri, Tessin, Thurgovie, Valais, Vaud, Obwald, Nidwald,
Zoug, Zurich.
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iv) Other: eco-criteria

The Federal government pursues a policy intended to shift public sector and consumer demand
towards products that meet high economic, environmental and social standards throughout their life
cycle. The Federal Council stipulates also that criteria should not be used in such a way as to close regional markets. The Swiss Agency for the Environment elaborates ecological product criteria that
can be introduced in technical specifications and/or mentioned as award criteria in calls for tenders.
These ecological product criteria are based on national and multinational eco-labels (for instance:
EU-Flower, Blue Angel, Nordic Swan, Energy Star).
The following bodies hold policy responsibilities regarding government procurement.
Federal government level
Purchasing Commission of the Federal government (BKB)
(15)
The purchasing Commission is a policy and coordination body of the Federal government in the
areas of goods and services. Membership is made of the largest purchasing entities of the Federal government and specialized units from various Federal departments. Its tasks refer mainly to:
^ the elaboration of the purchasing policy of the Federal government with in particular recommendations on the evolution of government procurement and tendering systems as well as
the preparation of legislative projects in the field of government procurement;
^ the coordination between purchasing entities;
^ the elaboration of general conditions, standard contracts and tariff scales for services.
It is also useful to note that the purchasing Commission has developed an interactive support tool
on internet (www.gimap.ch). The tool helps the purchasers to go through a government procurement
procedure and provides i.a. legal information and environmental information on products.
Coordination of the federal construction and real estate services (KBOB)
(16)
The KBOB has, in the area of construction, the same competences as the BKB. These entities
have been kept separate because they deal with significantly different fields. Membership is made of
the units of the Federal government dealing with most of the construction projects.
Its tasks refer to defending the interests of its Members - owners or administrators of buildings;
in charge of constructions - with the aim of improved quality and saved resources. The KBOB contributes mainly to:
^ define the purchasing policy at the Federal government, cantons and cities level;
^ coordinate and exchange experiences between its Members;
^ represent its Members interest when dealing with the construction industry;
^ publish recommendations, tariffs, general conditions, contracts as models;
^ work in various areas such as the elaboration of a concept for permanent training, security, inclusion of inflation in constructions pricing, prevention of corruption and integrity clauses.
The BKB and KBOB exchange of views regularly on topics such as corruption and electronic
tendering.
(15) For detailed information, see: http://www.beschaffung.admin.ch/de/index.htm
(16) For detailed information, see: http://www.kbob.ch/de/index.htm
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Switzerland
Federal Finance Control

The Federal Finance Control is an institution acting as external audit at the federal level. It aims at
verifying a correct implementation of the legislation. It proceeds through special, non-systematic examinations. They cover detailed analyses of specific tenders as well as horizontal aspects of several tenders. It also checks prices for large tenders - awarded without competition.
Government procurement Commission: Federal State-Cantons (KBBK)
The KBBK was established with the entry into force of the GPA. The KBBK aims at a faithful
implementation by Switzerland of its international obligations in the area of government procurement.
Its membership is composed of representatives of the cantons and the Federal government involved
in government procurement.
Its major tasks refer to:
^ the elaboration of the Swiss position in international fora;
^ the promotion of exchanges of views between the Federal government and the cantons;
^ the elaboration of recommendations on the transposition of international obligations in Swiss
law;
^ the conclusion of agreements with foreign surveillance entities;
^ the granting of advice and acting as mediator in dispute cases;
^ the filing of complaints for violation of international obligations to the federal or cantonal competent authorities under specific circumstances (17).
Cantonal level
The Swiss Conference of the cantonal directors for publics works, land management and environmental protection (BUPK) (18) is the inter-cantonal authority in charge of government procurement.
The BUPK has the competence to modify the Inter-cantonal Agreement, edict rules on tender procedures, modify thresholds, check the implementation of the inter-cantonal Agreement and adopt rules
of procedures and organization. The BUPK has elaborated executive Directives and non-binding recommendations. The BUPK is also an information and advice organ to the cantons. At the level of
each canton, no uniform structure has been established to control administratively government procurement. In general terms, the department or the unit in charge of government procurement follows
and coordinates the implementation of the legislation.
Bodies responsible for appeal

Federal level: Appeal Commission
An Appeal Commission has been established for the implementation of the GPA. It is independent and composed of a permanent President, six judges including three Lawyers, a computer expert,
an architect and an engineer.
Cantonal level
Each canton has its own procedure based on cantonal Law. Appeals can be brought to an Administrative Court.
(17) A tenderer has complained without filing any remedy procedure; or, at the request of a foreign authority in the absence of any action by the
purchasing entities.
(18) For detailed information, see: http://www.bpuk.ch
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3. Types of government procurement and award procedures

Types of government procurement
Goods
The purchase of goods is based on the principle of centralized procurement. As a rule, similar
and homogeneous goods are procured by one single procurement office. The Federal administration,
Swiss Post and the Federal Railways have their own autonomous procurement organizations. The procurement office observes the market conditions on a permanent basis as well as innovations in its particular areas, procures marketable and standardized goods if possible and acts according to the principles of diligence, economy and ecology. In the Federal administration, civil administration goods on
one hand, and goods related to defence/protection of the population and sports, on the other hand,
are purchased by two different procuring entities.
Services
Service contracts such as consulting, expert opinions, software or disposal are purchased directly
by each individual federal office.
Construction
Construction services referring to the buildings of the civil administration are purchased by the
Federal Office for Construction and Logistics. For military and polytechnical schools buildings, this
task is undertaken by their respective specialized units.
Federal level
Tender and award notices as well as pre-information notices and qualification lists are published
daily in the Swiss Official Gazette (Feuille officielle suisse du commerce). They are also available on
its website under : www.shab.ch.
Cantonal level
Each canton has its own publication. However, a project called simap.ch, has undertaken the
task to create a single electronic publication platform for the Federal Government and the cantons.
This project remains for the time being in a pilot phase and should be fully operational in 2004. It
aims at reinforcing competition and transparency, providing quickly in a centralized manner tender information from all purchasing entities, standardizing tender and award notices, simplifying and rationalizing administrative tasks, and, reinforcing communication through increased cooperation and exchange of views between tenderers and competence centers.
Simap.ch, will offer i.a. the following services:
^ tender notices and their listing;
^ award notices and their listing;
^ applications for tenders;
^ downloading of tender documents;
^ questions from tenderers and answers.
In addition, the following information shall be available:
^ lists of qualified suppliers;
^ legislation and regulations;
^ discussion forum;
^ jurisprudence including Federal Court Decisions;
^ training programs;
^ statistics;
^ practical guides.
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Switzerland

Above the GPA threshold values, the Federal government applies three tender procedures namely:
^ open procedure (any bidder may submit an offer);
^ restrictive procedure (any potential bidder may submit a request to participate); on the basis of qualification criteria, the purchasing authority selects the firms invited to present a bid;
^ discretionary procedure (direct award to a bidder without publication of tender notice) under
specific circumstances (19).
The Swiss cantons also apply these three procedures, albeit with lower thresholds.
Negotiations are foreseen at the federal level provided the tender notice or documentation mentioned it or no bid appeared economically most advantageous based on criteria such as delivery date,
quality, price, rentability, after-sale service, ecological characteristics or technical value.
At the cantonal level, legislation does not include the possibility to negotiate. Below the GPA
thresholds, the federal purchasing entities may use:
^ procedure by invitation: a minimum of three written offers must be requested; (no tender notice);
^ discretionary procedure (under a threshold of SFR 50.000.-).
Appeal procedures
Federal level
Appeal can be brought against the following decisions:
^ the award or the interruption of a tendering procedure;
^ the tender;
^ the decision referring to the choice of participants in a selective procedure;
^ the exclusion of a tenderer from a procedure;
^ the inscription on a list of qualified suppliers.
The appeal has no suspension effect; upon request, suspension may be granted.
The Appeal Commission can only grant compensation payments corresponding to the tender
costs; furthermore, after a contract has been signed, the Appeal Commission can only take note of
the violation of federal law. Decisions of the Appeal Commission are final and cannot be appealed
at the Federal Court.
Cantonal level
The decisions subject to appeal are the same as at the federal level. The appeals have no suspension effect on the procedures. Suspension may be granted provided the appeal has a solid basis and
no major private or public interests are jeopardized.The contract can only be signed 10 days - time-period for appeal - after the award. Decisions of administrative Courts can be appealed at the Federal
Court.
The public-private partnership has no legal basis in the Swiss government procurement legislation.
(19) These circumstances are mentioned in art. XV of the GPA and include for instance works of art or products purchased on a commodity
market.
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Some government purchasing entities, in particular in the computer and software fields, have created independent service units with the task to offer services to the private sector also.
The Federal government intends to encourage the use of electronic means for government procurement. This should increase efficiency and decrease costs. An eprocurement Committee has been
established at the level of the Federal government. Its major projects include:
^ an electronic catalogue;
^ simap.ch;
^ electronic purchasing platform for goods and services which can be included in catalogues by
the Post Office;
^ B2B purchases by the Federal Railways;
^ Swiss official Gazette - availability on internet.
5. Models adopted
Structures
The new organizational and managerial models for government procurement have not yet led to
the adoption of new models.
A revision of the federal legislation on government procurement is presently undertaken. It addresses general practical and legal issues as well as new technological and managerial developments
such as:
^ new tender procedures (dialogue, reverse auction);
^ framework agreements;
^ in-house business;
^ public-private partnership, sponsoring;
^ privatization; purchasers cooperation, purchasers associations;
^ introduction of new technologies - e-procurement.
Switzerland has not yet any specific legislation on e-procurement.
The Federal Railways have introduced reverse auctions for tenders under GPA thresholds. They
usually proceed through open, selective or invitation procedures. Tender notices are published except
under invitation. Tender documentation is available to be downloaded on a website or to be sent by
e-mail.
For standardized goods with clear and homogeneous specifications, auctioning takes place electronically on an auction platform. Tenderers are pre-selected and granted all the necessary confidential
keys to participate in the electronic auction. Tenderers receive a username and a password; instruction
is then on-line provided; a test auction is made with fictive products; the test is evaluated; finally,
the auction takes place. The auction is generally limited in time and auctioneers see either a curve or
prices on their screens.
There are different types of auctions - English, Dutch -, and rules - first price, second price, multivariable bidding, limited time, open time -. The modalities depend on the goods to be purchased
and must be set at the beginning of the tender procedure.
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Switzerland
The ongoing revision of the GPA foresees the introduction of electronic auction as a process involving computers for the presentation of new prices or new values concerning certain elements of
tenders; tenders should then be ranked automatically.
Switzerland prepares presently a federal Law on electronic signature and a federal law on electronic commerce.
Electronic signature
Under Swiss law, contracts which do not specify any form can be concluded orally or electronically. Contracts which specify a specific form such as the presentation of a tender or the conclusion
of a contract subsequent to a tender must be signed by hand. The federal law on the electronic signature will put at the same level the electronic and handwritten signatures. This means that after entry
into force of that Law, it will be possible to tender on-line and to sign the contract with the winner
on-line also.
E-Commerce
The federal Law on e-commerce aims at adapting contract Law to the new possibilities offered by
electronic means. In this context, the major adaptations refer to electronic signature (federal Law is
being prepared), refusal right for consumers who purchase on the internet, improvement of consumers protection for stock/bonds transactions, and increased transparency for goods and services offered electronically.
Conclusion
Government procurement is a very wide and diversified field. Complex legisiation is applied at
various levels of government and by private and public utilities operating under exclusive rights. liberalization takes place progressively at the local, cantonal, national and international levels with an
ever-increasing interest of the business community.
Major efforts toward access to information and harmonization of procedures have been undertaken recently in Switzerland. The cooperation between the Federal government and the cantons has
been fruitful and constructive. This implies that Swiss purchasing entities and bidders should be able
to benefit significantly during the coming years of a lean organization and an efficient implementation
of the new technologies leading to enhanced transparency and increased competition for national
and international bidders.
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Turkey
The framework of the Government Procurement in Turkey was drawn by State Bidding Law
N.2886 for nearly about 20 years. Due to severe criticizing and efforts to harmonize our old legislation
with the international standards and EU led to the preparation of the new procurement system, the
new Public Procurement Law, of Turkey was adopted by the Parliament on 4th January 2002 and
published in the Official Gazette on 22nd January 2002. While certain articles of the Law; Article 53
on Public Procurement Authority,, Interim Article 1 on Standard Tender Documents, and Regulations,, Interim Article 5 on Establishment of the Public Procurement Authority, entered into force
at the date of publication, all remaining articles came into force by 1st January 2003.
By an Amending Law that entered into force on 12thJune 2002, certain articles of the new Public
Procurement Law were revised and further harmonization with the EU Acquis as well as with the international practices has been assured. Those articles are related to the scope of the Law, exceptions
to the Law, and threshold values.
The philosophy and the principles of the main EC Public Procurement Directives (goods, services, utilities, remedies) are assimilated in our new PP Law 4734.
The new law has been primarily prepared with a view to further enhance the principles of transparency, competition, equality of treatment, impartiality, accountability, economic efficiency, predictability.
Law on Public Sector Procurement Contracts N. 4735 was enacted by publishing in the Official
Gazette on 5th January 2002.
The list of legislations and regulations of the Public Procurement Authority is presented by Appendix 1.
One of the most important novelties of the new PPL is the establishment of a Public Procurement Authority (PPA). The PPA is administratively and financially autonomous while maintaining a
linkage to the Ministry of Finance. The main responsibility of the PPA is to ensure the effective execution of the PPL and the proper application of the rules and procedures during the tender proceedings.
In this context, preparation, development and guidance of the implementation of all the legislation concerning the PPL as well as the standard tender documents is among the principal duties of
the PPA.
PPA prepared and published the standard tender documents (by laws regulations) that are necessary for the implementation of the Law by 26th of November 2002. PPA is composed of: the Presidency, the Public Procurement Board (PPB), the Service Units.
The Public Procurement Board:
PPB is the main decision-making body of the PPA.
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PPB Membership (10 members in total):

^ 3 members nominated by the Ministry of Public Works and Settlement;
^ 2 members nominated by the Ministry of Finance;
^ 1 member nominated by the Ministry in charge of the Undersecreteriat of Treasury;
^ 1 member nominated by the Court of Accounts;
^ 1 member nominated by the Supreme Administrative Court;
^ 1 member nominated by the Union of Chambers of Commerce, Industry, Maritime Trade and
Commodity Exchanges;
^ 1 member nominated by the Confederation of the Employer Unions of Turkey.
Public Procurement Board is appointed by the Council of Ministers.The Council of Ministers appointed one of the members as the President. The President of the Board is also the President of the
Authority. One of the members is selected by the Board as the Secondary President.
The Service Units of the PPA:
The Service Units will fulfil the following duties.
^ provision of training on procurement legislation;
^ national and international coordination;
^ compilation and the publication of the relevant information, data and statistics;
^ maintenance of records of those banned from participating in the tenders;
^ research and development activities;
^ regulation of the principles and procedures related to the tender notices;
^ Publication of the Public Procurement Bulletin.
The duties and authorities of the Public Procurement Authority with respect to the tender procedures carried out in accordance with the Law are as follows:
a. to evaluate and conclude any complaints claiming that the transactions carried out by the
contracting entity within the period from the commencement of the tender proceedings
and until the signing of the contract are in violation of the Law and the related legislative
provisions;
b. to prepare, develop and guide the implementation of all the legislation concerning the law
and Public Procurement Contracts Law and the standard tender documents;
c. to provide training on procurement legislation, to provide national and international coordination;
d. to gather information relating to the contracts and tender proceedings carried out; as specified by the Authority, to compile and publish statistics relating to quantity, price and other
issues;
e. to keep the records of those who are banned from participating in tenders;
f. to carry out research and development activities;
g. to regulate the principles and procedures with regard to tender notices, to publish Public
Procurement Bulletin in printed or electronic media;
h. in cases where it is established that domestic tenderers are prevented due to unfair reasons
from participating in tender proceedings taking place in foreign countries, to take relevant
measures in order to ensure that the tenderers of those countries are prevented from participating in the tenders held under the scope of the Law, and to furnish proposals to the Council of Ministers in order to ensure that the necessary arrangements are made;
i. to prepare the annual budget, the final account and the annual activity reports of the Authority, to ensure the implementation of the Authoritys budget, the collection of the revenues
and the incurrence of the expenses.
The Authority may, if deems necessary, review and bring to conclusion any claims of violation of
the Law and the related legislative provisions.
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The Authority may request documents, information and comments from all private and official
institutions, establishments or persons, when fulfilling its duties. The requested documents, information or comments must be provided within the given time limits. The Authority is authorized to issue
the standard tender documents, form of contracts, regulations and communiques relating to the implementation of the Law and Public Procurement Contract Law, subject to Board resolution. The Board
and the Authority employ their authorities by establishing regulative transactions and taking specific
decisions. Standard tender documents, form of contracts and regulations shall put into force through
publication in the Official Gazette.
Appeals and Responsible Bodies:
With regard to the tender proceedings, a contractor, supplier or service provider shall first of all
submit a written complaint to the contracting entity.
The parties shall seek to resolve the complaint by peaceful mutual agreement based on the terms
of this Law. In the absence of a mutual agreement, the contracting entity shall, within thirty days alter
the submission of the complaint, issue a written justifiable decision. If the complaint is upheld in whole
or in part, the decision shall also indicate the corrective measures to be taken. The decision shall be
notified to all tenderers within seven days following the date of the decision.
In cases where no decision can be made within a given period or the decision taken is found unacceptable by the tenderer; the contractor, supplier or service provider can request the Authority to review the case at the end of decision period or fifteen days alter the decision date. The final decisions
made by the Public Procurement Authority with regard to the complaints shall be under the jurisdiction of the Turkish courts and such cases shall have priority.
Complaints made after the signing of the contract is not assessed by the Board. Complaints made
in accordance with the procedures must be reviewed and concluded by the Board until the signing
of the contract.
All decisions of the Public Procurement Board are notified to the parties within five days following such decisions. These decisions are also be published by the Authority in the Official Gazette.
The final decisions made by the Public Procurement Authority with regard to the complaints are under the jurisdiction of the Turkish courts and such cases shall have priority. The Board orders the suspension of the procurement proceedings until the final decision, in case the subject complaint does
not comply with this Law and the related legislation or in case damage or loss which would be irreparable in the absence of a suspension is likely to be inflicted upon the contractor, supplier, service provider, public, the contacting entity or other tenderers. The complaints on the decision of the contracting officer to continue with the tender proceedings due to urgency requirements and public interest
shall be reviewed with priority after suspension of the tender proceedings, when necessary.
The other appeal procedures on public procurement are mentioned in detail under the hading of
Appeal Procedures, in 3 Section.
3. Types of Public Procurement and Award Procedures
The scope of the new PPL is extended significantly as to cover procurement by all kinds of public
entities and public economic enterprises as well as their specified partnerships, governed by public
law, or under public control or using public funds. (Articles 1-2) Main exception in the context is the
procurement of goods and services by the public banks that are subject to separate legislation. (Construction tenders of these banks are within the scope of the PPL)
Unlike its predecessor, which have put more emphasis on works contracts, the new PPL gives an
equivalent weight to the procurement of goods and services as well. The new Law also includes for
the first time a separate section regulating the whole process related to the procurement of the consultancy services. (Articles 48-52)
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The advertisement will not include anything that is not specified in the tender documents. It is
mandatory to include following information in the advertisements: the name, address, telephone and
fax number of the contracting entity; the name, characteristics, type and related quantity of the tender;
in case of procurement of goods, the place of delivery, and in case of services and works, the place
where such task is to be realized; the commencement and completion dates for the subject of the tender; the procurement procedure to be applied, rules of participation and the required documents
and certificates; the criteria to be used in the qualification assessment; indication of whether the tender
is limited only to domestic tenderers, and whether there is a price advantage for domestic tenderers;
where the tender documents can be seen, and the price to obtain tender documents, the place, date
and hour of the tender proceedings, as well as the procedure to be applied; the address where the tenders are to be submitted until the hour specified for opening the tenders; the type of tender and contract; the amount of preliminary guarantee, when applicable, which is at least 2 % to 4% of the tender
price, and which is determined by the contracting entity, the validity period of the tenders.
Procurement Procedures and Tender Notice Requirements
EU practices have been taken into consideration as for the publication rules and time limits applicable under these procedures.
a. Open Procedure (Article 19):
It is a procedure that allows all tenderers to submit tenders.Tender notices will be published at not
less than 40 days prior to the receipt of tenders.
b. Restricted Procedure (Article 20):
Restricted procedure is a procedure in which, tenderers who are invited following pre-qualification by the contracting entity, can submit their tenders. Tenders regarding procurement of goods, services or works for which open procedure is not applicable due to the complexity of the nature of
the work and/or the requirement for high technology, can be conducted by restricted procedure.
In tenders conducted by restricted procedure, the notice of pre-qualification shall be published
not less than twenty-five days in advance, in order to allow candidates to prepare their applications.
Pre-qualification assessment shall be carried out in accordance with the qualification criteria,
which are established pursuant to Article 10 and specified in the pre-qualification documents and in
the pre-qualification notices. Those who fail to meet the minimum requirements specified in these
documents shall not be accepted as qualified. A letter of invitation to tender shall be sent to all prequalified candidates, provided that the tenderers are allowed at least forty days to prepare their tenders.
The candidates who fail to qualify in the pre-qualification assessment shall also be notified with a
written notice of the grounds for not qualifying. The tender proceedings shall be concluded after
the evaluation of the tenders in accordance with the evaluation criteria that are designed in accordance
with Article 10 in a way to avoid any impediment to competition depending on the nature of the
work and that are specified in the tender documents and in the letter of invitation. In case the number
of tenderers that can be invited to submit tenders is less than five or the number of tenderers that submit tenders is less than three, the tender proceedings shall be cancelled.
In case of the cancellation of tenders due to the number of tenderers being less than three, the
tender may be concluded by reviewing the tender document provided that the errors are corrected,
if there is any, and by re-inviting all pre-qualified tenderers.
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Turkey
c. Negotiated procedure
A procedure which can be employed under the conditions set forth in the Law, in which the procurement process is conducted in two stages, and the contracting entity negotiates with the tenderers,
the technical details of the procurement with the contractual terms and in some cases the contract
price:
a) it is compulsory to conduct the tender procedures immediately, due to unexpected and unforeseen events such as natural disasters, epidemics, dangers to lives or properties or events that
could not be predicted by the contracting entity;
b) it is compulsory to conduct the tender procedures immediately, due to occurrence of specific
events relating to defence and security;
c) the procurement is of a character requiring a research and development processes, and not subject to mass production;
d) due to specific and complex characteristics of the works, goods or services to be procured, it is
impossible to define objectively the technical and financial aspects.
In the cases set forth in paragraph (b) and (c), the advertisement of the tender shall not be mandatory. However, in case of (b) and (c) at least three tenderers must be invited. In case of advertisement,
the advertisement notice shall indicate that negotiated procedure will be carried out with those candidates operating in the field of the subject matter of the tender, who are qualified by the contracting
entity. In both advertised and unadvertised tenders, negotiations shall be made only with those who
qualify in accordance with the assessment criteria that are set out by the contracting entity in conformity with Article 10 and specified in the tender documents.
The tenderers shall submit their initial proposals, which do not include prices, for aspects such as
technical details and realization methods of the contract that is the subject of the tender. The tender
commission shall consult to and negotiate with each tenderer on the best methods and solutions for
the procurement of the needs of the contracting entity. Alter the clarification of the conditions as a result of the technical consultations, the tenderers that have demonstrated their capacity and capability
to meet all these conditions shall be asked to submit their final offers including the tender price based
on a revised and agreed technical specification.
In tender proceedings carried out in accordance with (a), (b) and (c), the tender proceedings shall
be concluded after a price negotiation based on the final offers.
In negotiated procedures carried out in accordance with (a), (d) and (e), the tender proceedings
shall be cancelled in case the number of tenderers submitting tenders is less than three. A pre-qualification assessment will be conducted in line of the old invitation method. Pre-qualification notices
of tenders will be published at not less than 25 days in advance of the deadline for pre-qualification
application. A letter of invitation to tender will be sent to all pre-qualified candidates at least 40
days before the submission of the tenders. Negotiated Procedure is applied if:
^ at the end of open or restricted procedures, no tender is submitted;
^ it is compulsory to conduct the tender procedures immediately, due to unexpected and unforeseen events such as natural disasters, epidemics, dangers to lives or properties or events that
could not be predicted by the contracting entity (tender notice not mandatory);
^ it is compulsory to conduct the tender procedures immediately, due to occurrence of specific
events relating to defence and security (tender notice not mandatory);
^ the procurement is of a character requiring a research and development processes, and not subject to mass production;
^ due to specific and complex characteristics of the works, goods or services to be procured, it is
impossible to define objectively the technical and financial aspects.
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d. Direct Procurement:
A procedure which involves the direct procurement of the necessities, in the cases specified in the
Law, following the negotiation of the technical terms and the price of the procurement with the tenderers invited by the contracting entity. The method of direct procurement may be referred to in the
following cases, without any advertisements:
^ if it is established that the needs can be supplied by only one real or legal person;
^ in case only one single real or legal person has exclusive rights with regard to the need in question;
^ in case the spare parts, additional materials or services that are required within the three years
following the initial purchases in order to ensure compatibility and standardization with the
currently available goods, equipment, technology or services cannot be supplied by any natural
or legal persons other than the initial supplier;
^ for needs of contracting entities not exceeding six billion three hundred and sixty five million
Turkish Liras;
^ purchase or lease of immovable property in accordance with the need of the contracting entity.
The procurements pursuant to sub-paragraphs (a), (b) and (c) shall be through negotiation with the
tenderer who is invited allowing sufficient time to prepare his tender, on the price and technical terms
for the most appropriate way to procure the needs of the contracting entity.
However, in case of implementation of sub-paragraph (d), the needs shall be supplied through
price research in the market by individuals assigned by the contracting officer without establishing a
tender commission and obtaining guarantee. The contracts prepared in relation to the needs supplied
as described in this paragraph shall not be notarized and registered. In case of implementation of
sub-paragraph (e), market price survey must be undertaken.
Applicable to the needs:
^ those can be supplied by only one specific natural or legal person and/or
^ not exceeding six billion three hundred and sixty five million Turkish Liras in estimated value.
In addition to above notice requirements, to publish a contract award notice in the Official Journal is obligatory for contracts above certain thresholds stated in Article 47 of the new law. What is
more, the contracting entities may also announce the results of the tender according to the significance
and characteristics of the work which is the subject of the tender via other newspapers published in
the country or abroad, or via broadcasting instruments, data processing networks or through electronic communication (internet).
Appeal Procedures
The review of the complaints is applicable for the phase prior to the signing of the contract. The
PPB will examine the complaints should the due circumstances occur and may; take a corrective action
and determine the remedies or, cancel the tender decision and terminate the tender proceedings or,
may decide that the complaint is irrelevant.
Contracting entities and tender committees will have the obligation to carry out the tender proceedings in accordance with the principles and procedures stated in this Law and this obligation is a
duty owed also to the contractor, supplier or service provider. Any contractor, supplier or service provider who claims that he has suffered a loss of rights or suffered or is likely to suffer loss or damage
resulting from an alleged breach of such duty can demand review in accordance with the phases specified below, with a written complaint.
With regard to the tender proceedings, a contractor, supplier or service provider shall first of all
submit a written complaint to the contracting entity. The complaint will be heard by the contracting
entity only where:
^ no procurement contract has been signed;
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Turkey
^ the complaint is submitted within fifteen days following the date upon which the contractor,
supplier or service provider submitting the complaint became aware of the circumstances giving rise to the complaint or the date upon which the contractor, supplier or service provider
should have become aware of those circumstances.
In case the contracting entity receives a complaint during any phase of the tender proceedings, all
tenderers participating in the tender proceedings shall be informed in writing of such complaint and
shall be asked to notify the contracting entity of any complaints they may have on the same subject
within the time limits defined by the contracting entity. Those who fail to submit their complaints at
this stage can not make further complaints on the same subject matter in the future and cannot claim
that they have suffered losses as a result of the consequent decision to be taken.
The parties shall seek to resolve the complaint by peaceful mutual agreement based on the terms
of this Law. In the absence of a mutual agreement, the contracting entity shall, within thirty days alter
the submission of the complaint, issue a written justifiable decision. If the complaint is upheld in whole
or in part, the decision shall also indicate the corrective measures to be taken. The decision shall be
notified to all tenderers within seven days following the date of the decision.
In cases where no decision can be made within a given period or the decision taken is found unacceptable by the tenderer; the contractor, supplier or service provider can request the Authority to review the case at the end of decision period or fifteen days after the decision date. Following the submission of a complaint, the contracting entity shall be prohibited from signing a contract unless the
contracting officer certifies that urgency and public interest considerations require the tender proceedings to continue. This certification, which is the justifiable approval of the continuation of the tender
proceedings, shall be notified within a period that will ensure that the complainant receives such notice not less than seven days in advance of the signing of the contract. In case the contract is signed
before proper notification of such circumstances by the contracting entity, the tender decision and
the contract shall be rendered null and void. If the contracting entity notifies the contractor, supplier
and service provider that the tender proceedings may continue and the contract may be signed, then
the contractor, supplier and service provider may request a review to be undertaken by the Authority,
within at least seven days following the date of the aforementioned notification. Provided that the contracting entity has been notified by the contractor, supplier or service provider of all alleged breaches
with regard to the tender proceeding that are requested to be remedied, together with an indication
that the right to refer to legal action is reserved, then a complaint may be submitted to the Authority
prior to the signing of the contract, within the time limits and under the conditions stated above. Provided that it specifies the reasons and grounds relating to the complaints submitted to the Authority,
the Board:
^ Determines the corrective operation in cases where no suspension of the tender proceeding is
necessary and remedies by the contracting entity would be sufficient;
^ Orders the termination of the procurement proceedings in case of non-compliance with this
Law and the related legislation, which would constitute an obstacle for the continuation of
the proceeding and which cannot be removed by taking corrective measures;
^ Decides that complaint is irrelevant.
The Board orders the suspension of the procurement proceedings until the final decision, in case
the subject complaint does not comply with this Law and the related legislation or in case damage
or loss which would be irreparable in the absence of a suspension is likely to be inflicted upon the contractor, supplier, service provider, public, the contacting entity or other tenderers.
The complaints on the decision of the contracting officer to continue with the tender proceedings due to urgency requirements and public interest shall be reviewed with priority after suspension
of the tender proceedings, when necessary. Complaints made after the signing of the contract shall
not be assessed by the Board. Complaints made in accordance with the procedures must be reviewed
and concluded by the Board until the signing of the contract. Complaint is an obligatory application
way, which should be used prior to sue. Upon complaints, Institution makes decision within 60 days
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at the latest. In case this decision is towards stopping the bidding procedure, Institution will make the
final decision about the issue within 60 days at the latest beginning from the date of the stopping.
All decisions of the Public Procurement Board shall be notified to the parties within five days following such decisions. These decisions shall also be published by the Authority in the Official Gazette.
The final decisions made by the Public Procurement Authority with regard to the complaints shall
be under the jurisdiction of the Turkish courts and such cases shall have priority.
There is no specific frame for the term public-private partnership,. It generally encloses public infrastructures (Built OperateTransfer - BOT), partnership models (public-private joint ventures) and combination of these. There is no legal framework yet for the procurement process for BOTco-operations.
Telematic procedures for the procurement of goods and services have not been introduced into
the domestic legal system.
5. The E-Procurement
In the area of the usage of telematic Procedures for the Procurement of goods and services, PPL has
no article to regulate this area. There is no any pre-existing work and a related uniform legislative framework in this field either. The use of internet through the procurement procedures are limited with some
tender advertisements and advertisement of the decisions made by the Public Procurement Authority.
Regarding the e-procurement procedure there is an article in PPL:
The PPA is competent to determine which of the procurement notices in the scope of this paragraph will be announced in one of the newspapers that has the national delivery through Media Announcement Institution. In case there are no local newspapers in the locality where the procurement
is to be held, the notices shall be advertised on the notice boards of the related contracting entity, government and municipality buildings and by using municipal means of dissemination, within the
same time limits. These proceedings shall be certified with a minute. Apart from the above-mentioned
compulsory announcement of notices, the contracting entities may also advertise the procurement notices by means of other newspapers or publications having national and international circulation,
data processing networks or electronic media (internet), depending on the significance and characteristics of the procurement. However, where international announcement of notices is required, the
above minimum time limits shall be increased by twelve days,.
Regarding the notification of the result of the tender through internet, PPL provides the article
above:
The tender results of those tenders whose contract value exceeds one trillion TL for procurement of goods or services and two trillion TL for works, shall be published in the Official Gazette
within maximum fifteen days following the date on which the registration of the contract with Court
of Accounts is notified to the contracting entity if necessary. In cases which such a notification is
not necessary, the date of approval and certification by the notary public shall be taken into account.
The contracting entities may also announce the results of the tender according to the significance
and characteristics of the work which is the subject of the tender via other newspapers published in
the country or abroad, or via broadcasting instruments, data processing networks or through electronic communication (internet).
It is clear by the Law that, the notices of procurements for the procurement of goods or services
with an estimated cost between the determined thresholds should publish in the Official Gazette.
Apart from this compulsory announcement of notices, it is arbitrary for the contracting entities to advertise their procurement notices by other publications or internet. However, after officiating the required statutory obligations, entities with developed facilities are announcing their procurement notices in their own web sites providing the transparency and competition in public procurement field
by using IT technologies. Furthermore PPA fallows up the e- procurement working group committee
founded by Advisory Committee on opening up Public Procurement.
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Appendix
Legislation and Regulations of the Public Procurement Authority
LAWS
LAW
N.
APROVAL DATE:
O.J. DATE AND N.
PUBLIC PROCUREMENT LAW

4734 (IT WAS AMENDED BY LAW NUMBERED 4761)
04.01 2002
22.01.2002/ 24648
LAW
N.
APROVALDATE
O.J. DATE AND N.
PUBLIC PROCUREMENT CONTRACTS LAW

4735
05.01 2002
22.01.2002/24648
DECIONS OF THE COUNCIL OF MINISTERS

SUBJECT:
DATE /N.
O.J. DATE/N.
SU BJ ECT:
DATE /N.
O.J. DATE/N.
SUBJECT
DATE /N.
O.J. DATE/SN.
SUBJECT
DATE /N.
O.J. DATE/SN.
PROCEDURES FOR ACCOUNTING PRICE ADJUSMENTS RELATED TO SERVICES PROCUREMENT PURSUANT TO 4734
24.12.2002/5037
31.12.2002/24980/3.
PROCEDURES ACCOUNTING PRICE ADJUSTMENTS
RELATED TO GOODS PROCUREMENT PURSUANT TO 4734
24.12.2002/5038
31.12.2002/24980/3.
PROCEDURES ACCOUNTING PRICE ADJUSTMENTS
RELATED TO CONSTRUCTION WORKS CONTRACTS
PURSUANT TO 4734
24.12.2002/5039
31.12.2002/24980/3.
AMENDING PRINCIPLES ON ACCOUNTING PRICE ADJUSTMENTS OF GOODS PROCUREMENT PURSUANT TO 4734
17.01.200315210
05.02.2003/ 25015
REGULATIONS
REGULATION
O. J DATE/N.
REGULATION
O. J DATE/N.
REGULATION
O. J DATE/N.
REGULATION ON THE IMPLEMENTATION OF SERVICES

PROCUREMENT
20.11.2002/24942
REGULATION ON THE IMPLEMENTATION OF GOODS PROCUREMENT
20.11.2002/24942
REGULATION ON THE IMPLEMENTATION OF CONSTRUCTION WORKS PROCUREMENT
20.11.2002/24942
207

REGULATION
O. J DATE/N.
REGULATION
O. J DATE/N.
REGULATION
O. J DATE/N.
REGULATION
O. J DATE/N.
REGULATION
O. J DATE/N.
REGULATION
O. J DATE/N.
REGULATION
O. J DATE/N.
REGULATION
O. J DATE/N.
208
REGULATION ON THE IMPLEMENTATION OF CONSULTING

SERVICES PROCUREMENT
26.11.2002/24948
INSPECTION AND ACCEPTANCE REGULATION FOR CONSULTANCY SERVICES PROCUREMENT
19.12.2002/24968
SUPERVISION, INSPECTION AND ACCEPTANCE REGULATION FOR GOODS PROCUREMENT
19.12.2002/24968
INSPECTION AND ACCEPTANCE REGULATION FOR SERVICES PROCEREMENT
19.12.2002/24968
INSPECTATION AND ACCEPTANCE REGULATION
WORKS PROCUREMENT
19.12.2002/24968
FOR
REGULATION ON CONTESTS FOR ARCHITECTURE, LANDSCAPE ARCHITECTURE, ENGINEERING, URBAN DESIGN

PROJECTS, TOWN AND REGIONAL PLANNING AND WORKS
OF FINE ARTS
24.12.2002/24973
REGULATION APPLICATION TO CONTRACTING ENTITIES
WITH COMPLAINTS IN THE TENDER PROCEEDING
17.01.2003/24996
AMENDMENTS OF REGULATION ON THE IMPLEMENTATION OF GOODS, SERVICES, CONSULTING SERVICES AND
CONSTRUCTION WORKS PROCUREMENT
07.03.2003/25041
United Kingdom
Directives
Community Directives on public procurement assimilated into the domestic legal system of the UK.
Title
Effect Date
OJEC Reference
Book
Ref.
The Public Services Directive 92/50/EEC
18th June 1992
OJ:L209 24.7.92
The Public Supplies Directive 93/36/EEC
14th June 1993
OJ:L199 9.8.93
The Public Works Directive 93/37/EEC
14th June 1993
OJ:L199 9.8.93
Directive 97/52/EC (amending 1] 2] & 3] in light of GPA) 13th October 1997
OJ:L328 28.11.97
The Compliance Directive (Public Remedies) 89/665/EEC 21st December 1989
OJ:L395 30.12.89
The Utilities Directive 93/38/EEC
14th June 1993
OJ:L199 9.8.93
Directive 98/4/EC (amending 6] in light of GPA)
16th February 1998
OJ:L101 1.4.98
The Utilities Remedies Directive 92/13/EEC
25th February 1992
OJ:L76 23.3.92
Directive 2001/78/EC on standard forms
13th September 2001
OJ:L285 29.10.01
General Principles
In the UK, the governing principles underlying national legislation on public procurement are
the EC Directives themselves, which have been transposed into national legislation. The UK does
not have legislation on public procurement (other than some requirements placed on local authorities
under the Local Government Act) except in relation to the EC Directives.
The Governments policy on procurement is to achieve value for money having regard to propriety and regularity. All UK Government Departments are responsible for:
a) achieving value for money, normally through competition;
b) ensuring that they comply appropriately with their legal obligations under the European Communities public procurement Directives and other international agreements;
c) ensuring that the roles and responsibilities of staff are clearly defined and that there is adequate
separation of duties;
d) ensuring that staff are aware of the procurement policy guidelines of the Government accounting rules and of the guidance on procurement which is issued by the Office of Government
Commerce;
e) ensuring that the guidelines are brought to the attention of all other public bodies/contracting
authorities for which they are responsible.
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Title
Effect
Date
OJEC Reference
Book
Ref.
The Public Services Contracts Regulations
1993
SI 1993 No 3228 ISBN 0-11-034463-4
The Public Supply Contracts Regulations
1995
SI 1995 No 201 ISBN 0-11-052376-8
The Public Works Contracts Regulations
1991
SI 1991 No 2680 ISBN 0-11-015934
The Public Contracts (Works, Services and Sup- 2000

ply (Amendment) Regulations
SI 2000 No 2009 ISBN 0-11-099646-1
The Utilities Contracts Regulations
1996
SI 1996 No 2911 ISBN 0-11-063317-2
The Utilities Contracts
2001
SI 2001 No 2418 ISBN 0-11-029811-X
The Public Contracts (Works, Services, and Sup- 2003

ply) and Utilities Contracts (Amendment) Regulations
SI 2003 No 46 ISBN 0-11-044618-6
note: (1)
These Regulations (secondary legislation), which are Statutory Instruments (SI) applicable to the
whole of the United Kingdom, implement in full the EC Directives in the UK.
The Services, the Supply and the Works Regulations specify the procedures to be followed by
public bodies, called contracting authorities,, when they seek offers for contracts for the provision
of services, supplies or works.
^ 1] The Public Service Contracts Regulations 1993 transpose Directive 1] 92/50/EEC into UK
law.
^ 2] The Public Supply Contracts Regulations 1995 transpose Directive 2] 93/36/EEC into UK
law.
^ 3] The Public Works Contracts Regulations 1991 transpose Directives 71/305/EEC, and 89/440/
EEC into UK law. As such these regulations already complied with the later Directive 3] 93/
37/EEC.
It should be noted that each of the above Regulations also implement the relevant enforcement
rules. These regulations implement, to the extent that it relates to the Directives, the Compliance (Public Remedies) Directive 5] 89/665/EEC on the co-ordination of the laws, regulations and administrative
provisions relating to the application of review procedures to the award of public services, supply
and works contracts. Directive 5] has therefore been assimilated into the UK legal system by reference
to domestic legal remedies systems featured in these Regulations.
^ 4] The Public Contracts (Works, Services and Supply) (Amendment) Regulations 2000 transpose Directive 4] 97/52/EC into UK law. This Directive amends Council Directives 1] 92/50/
EEC 2] 93/36/EEC & 3] 93/37/EEC.
The amendment concerns the co-ordination of procedures for the award of public services, public supply & public works contracts in light of the GPA.
^ 6] The Utilities Contracts Regulations 1996 transpose Directive 6] 93/38/EEC into UK law.
The Utilities Regulations concern the co-ordination of procedures for the award of supply, works
and services contracts by certain entities operating in the water, energy, transport and telecommunications sectors.
(1) The Book ref. Numbers for the Regulations are referenced with a , to reflect the corresponding Directive in part 1.
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United Kingdom
It should be noted that these Utilities Regulations also implement the relevant enforcement rules,
i.e. they implement Council Directive 8] 92/13/EEC. Directive 8] replicates Directive 5] in that it also
concerns the co-ordination of the laws, regulations and administrative provisions relating to the application of Community rules, but this time, to the procurement of entities operating in the water, energy,
transport and telecommunications sector.
^ 7] The Utilities Contracts (Amendment) Regulations 2001 transpose Directive 7] 98/4/EC into
UK law. This Directive amends Council Directive 6] 93/38/EEC.
This amendment concerns co-ordinating the procurement procedures of entities operating in the
water, energy, transport and telecommunications sectors in light of the GPA.
These Regulations make provision for utilities whose contract award procedures and practices
have been attested as being in conformity with Community law and national legislation under an attestation system (of independent review) established in accordance with Council Directive 8] 92/13/EEC
to include a statement to that effect in the notices they publish in the Official Journal of the European
Communities.
^ 9] The Public Contracts (Services, Supply & Works) and Utilities Contracts (Amendment) Regulations 2003 transpose Directive 9] 2001/78/EC, concerning the use of standard forms in the
publication of contract notices, into UK law.
The principal purpose of these amended regulations is to introduce a standard form of the various model notices which the existing Directives require to be published in the Official Journal of
the European Communities at various stages in the procurement process and which are set out in
the relevant Annexes to the Directives and reproduced in the relevant Regulations. Contracting authorities and utilities must use these standard forms for their notices.
Finally, in the UK, there is no specific law or regulation covering below threshold procurement
other than certain requirements for local authorities under the Local Government Act and general
EC Treaty principles. However, the UK approach does ensure that below threshold procurement is
covered by Government procurement policy, which provides that Government purchasing should be
conducted on the basis of achieving value for money through competition. (See 1. General Principles
- for detail.)
Legislation being prepared.
There will be a need to transpose the two draft revised Directives (consolidated public sector and
utilities) once these are adopted at EC level.
The Office of Government Commerce (OGC) www.ogc.gov.uk - an independent Office of HM
Treasury - is responsible for the Governments procurement policy and for the legislative framework.
OGC has a vision, four high level objectives and ten key Strategies. This strategic framework, approved
by the OGC Supervisory Board, sets the broad agenda for building strong customer and commercial
relationships and planning and driving forward actions in support of achieving value for money gains
for central civil government.
OGCs vision is to work with central civil government as a catalyst to achieve best value for
money in commercial activities. OGCs four high level objectives are: 1] To provide guidance and expertise to support the successful delivery of procurement-based projects and other forms of commercial activity; 2] To develop the government market so it is more efficient and attractive for both suppliers and customers; 3] Develop a clear and supportive framework for best-in-class procurement activity
to help achieve better value for money; 4] Deliver efficient and effective services to external and internal customers, gaining widespread recognition for excellence and as a leading contributor to govern211
ment modernization. OGC also has an important role in the dissemination of advice, information and
best practice in public procurement.The OGC works on these agendas in partnership with the relevant
competent authorities in the various devolved administrations and local authorities.
OGCs remit in pursuing these objectives is the UKs central civil government. OGC has a wider
remit for some topics; grouping public sector activity into three categories representing: issues where
it has national or wider public sector responsibilities, those where OGC has identified benefit in collaborating and learning from each other, those where it seeks to proactively promote OGC initiatives
to a wider market. OGCs target by 2005-6 is to deliver 3 billion of value for money gains in central
civil government procurement through the Office of Government Commerces initiatives.
Where its remit is limited, OGC works on this agenda in partnership with the relevant competent
authorities in the three devolved administrations. Note that, in addition, there are other parts of the
public sector where OGC has only a part-remit to pursue these objectives, namely in partnership
with Local Authorities and Higher Education Authorities. Finally, in the case of the Ministry of Defences defence procurement activities, OGC has no remit.
In addition, OGCbuying.solutions, an executive agency of the OGC, offers a procurement arrangement service to purchasing professionals working for Central Government, the wider public sector
and contractors working on their behalf. See www.ogcbuyingsolutions.gov.uk This organization is a
trading fund which helps its customers achieve major savings on process costs as well as better value
for money products and services. It aims to make the procurement process as efficient and effective
as possible, by offering value for money, fitness for purpose and compliance. OCGbuying.solutions
aims to deliver services in the fastest, most appropriate way possible. It makes the most of new technology to help customers and increase efficiency. It provides a platform for suppliers, which allows customers to access pre-tendered products online through several catalogues. The exchange of information
about customer needs enables the public sector to share benefits through aggregating requirements.
There is no mechanism for contracting authorities to notify to a central body cases brought before the courts. The UK Regulations make it clear that the Courts have all the necessary powers, for
example to suspend award procedures, to set aside decisions, to annul awards and award damages.
All UK contracting authorities - Government departments and agencies, devolved administrations, local authorities and NDPBs (Non-Departmental Public Bodies via the departmental reporting
officer) - are solely responsible for ensuring their own procurement procedures are in line with the
law. Contracting authorities can consult the OGC for advice and guidance; however ultimately the decision and responsibility over a given procurement remains with the contracting authorities.
There is no enforcement or surveillance body for public procurement in the UK. It is however
worth emphasising the completeness and expertise of the infrastructure advising on the public procurement rules and disseminating best practice, as well as the acquis of the contracting authorities
in the UK.
Duties
There is no legal assignment of duties to Government or independent bodies in the internal legal
system in public procurement in the UK. There is no enforcement or surveillance authority.
Under each set of Regulations, the duty to comply with those Regulations, and any other enforceable Community obligations in relation to a contract subject to the Regulations, is expressed as a
duty owed by the contracting authorities to (Community) suppliers, contractors or service providers.
For the Works Regulations, the obligation on concessionaires in respect of sub-contracting works under
a public works concession contract is likewise enforceable. A Community supplier is defined as a person
established in - and a national of - a Member State (or a state party to one of the Europe agreements),
who sought or who seeks, or who would have wished to be the person to whom a public contract is
awarded. In addition, the duty of compliance with the Regulations and other enforceable Community
obligations is owed to providers from other states party to the GPA.
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United Kingdom
The Regulations provide that a breach of the duty owed under them by these public bodies, as
above, shall not be a criminal offence but shall be actionable by any supplier, contractor or service-provider, who in consequence suffers or risks suffering loss or damage. The Regulations then make arrangements for proceedings to be brought in the high courts, but only if:
^ the complainant has notified the contracting authority of the nature of the alleged breach and
the intention to bring proceedings under the Regulations and,
^ these are brought promptly and in any event within three months from file grounds arising, unless the court considers there is good reason for extending that period.
Other than the Courts, there is no organization in the UK responsible for examining and deciding on appeals regarding public procurement procedures. Aggrieved parties may choose to present
their grievance to the relevant contracting authority in first instance as all contracting authorities are
ultimately responsible for the compliance of their procurements with legislation in force. Alternatively
aggrieved parties can choose to take the matter directly to the national courts. In the first scenario,
if presented with a request for clarification and advice, the contracting authority may decide to seek
advice from a central Government department on whether the case constitutes a misapplication of
the rules. The Government department or contracting authority may consult OGC for comment if
the alleged breach of the rules constitutes a misapplication of the EC rules specifically.
For the Services, Supply,Works and Utilities Regulations, proceedings may be brought to the high
court in England, Wales and Northern Ireland and to the court of Session in Scotland. In the UK,
the high courts are the only forum, with well-established procedures, with the ability to hear applications for interim measures very quickly, and powers to refer issues to the ECJ where a preliminary ruling is needed. The Regulations explain the system clearly to suppliers.
For breaches of the Regulations, the Directives they implement and other enforceable Community law where the Regulations apply; the legal handling of complaints is in the national courts. This
was established as a new and dedicated cause of action in the courts, with its own procedural rules
for interlocutory hearings, normally with legal representation, allowing proceedings to be brought
in the high courts by Community suppliers, or equivalent, if harmed or at risk of harm.
Duties
There are no organizations in the UK responsible for appeals other than the courts themselves.
When presented with an appeal made by an alleged aggrieved party, the courts judge and then have
power to grant appropriate interim and final relief and to award damages.
The Regulations are silent as to the amount of damages, leaving the courts to decide in accordance with the facts whether to compensate, for example, for loss of tendering costs, loss of opportunity or lost profit and whether to award legal costs. Intended to fit as closely as possible with the normal practice of the courts, the Regulations do not need to address issues such as the balance of convenience in applications for interim measures, the need for legal representation, cross-undertakings in
damages when interim measures are granted and enforcement of the courts decisions.
In summary, the courts have all the required powers to provide, and if necessary enforce, all the
required remedies; once a contract is entered into, damages are the only remedy but there is scope
for damages for loss of opportunity or lost profit in addition to tendering costs. Also, in the case of
the Utilities Contract Regulations, there is provision for disappointed tenderers who have suffered or
consider they risk suffering from a given contract award procedure, to seek use of conciliation procedures under the auspices of the Commission. The Utilities Regulations provide remedies for any breach
of the Utilities Regulations or of any obligations arising under the EC Treaties.
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For any given contracting authority in the UK, the types of public procurement contract available
correspond with those available under the EC Directives, i.e. Public Works, Public Supply and Public
Services Contracts, Public Works and Public Service Concession Contracts, etc. Also to note: in the
UK there are some additional contract types which are not covered by specific EU legislation, although
the Treaty free movement provisions and theTreaty-based obligations of equal treatment, transparency,
proportionality and mutual recognition apply.
For Works, Supply and Services contracts, all contracting authorities in the UK should send a prior information notice (PIN) to the EU as soon as possible after the decision approving the planning of the
Works, Supplies or Services. In the Nord Pas de Calais case ^ (Commission v the French Republic, Case C225/98)- the ECJ ruled however that PINs should only be compulsory if seeking to take advantage
of the reduced timescales. Contract notices should be sent to the OJ according to the following timescales:
^ For the Open procedure; allowing not less than 52 days from dispatch, or 36 days where a PIN has
been published, for responses.
^ For the Restricted procedure; allowing not less than 37 days from dispatch (or 15 days in cases of
genuine urgency) for requests to be selected to tender. After invitations to tender have been issued a minimum of 40 days or 26 where a PIN has been published, (or 10 days in cases or urgency) should be allowed for receipt of tenders.
^ For the Negotiated procedure; allowing not less than 37 days from dispatch (or 15 days in cases of
genuine urgency) for requests to be selected to negotiate. A contract award notice should be
sent to the OJ no later than 48 days after a contract has been awarded.
For Public Works Concessions Contracts, contract notices should be submitted to the OJ allowing not
less than 52 days from dispatch for responses from potential concessionaires.
The intention to hold design contests has to be advertised in the OJ.
For Utilities Contracts, a PIN is required at least once every twelve months in respect of: -those Supply and Part A Services Contracts above the threshold which the utility expects to award in the coming
twelve months, where the total value for the product area or category of service will be 150.000 ECU
(561,480) or more; and Works Contracts which are above the threshold. Calls for competition may
be made: -in a contract notice published in the OJ; or -where the restricted or negotiated procedure
is to be used: - a PIN which is sufficiently detailed.Where a PIN is used all initial expressions of interest have to be confirmed when the award procedure starts, by means of a notice on the existence of
a qualification system. Where a qualification system is used, those invited to tender or negotiate have
to be selected from those who have qualified in accordance with the system.
Finally, even where competition is not required under the EC Directives, for example because the
estimated value of a project falls below the relevant threshold, UK Government departments still
need to obtain value for money through competition, unless there are compelling reasons to the contrary, and to abide by EC Treaty principles.
Procedures for awarding contracts.
In the UK, contracts covered by the Regulations must be awarded in compliance with the requirements of the EC Directives. As a general rule these contracts are the subject of a call for competition
by publishing a contract notice in the Official Journal of the EU and its electronic equivalent Tenders
Electronic Daily.
In line with the EC Directives, the Regulations set out detailed criteria for:
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United Kingdom
a. The specification of requirements, referring wherever possible to relevant European specifications, and avoiding references which would have the effect of favouring or eliminating particular suppliers, contractors, products or services.
b. The rejection or selection of tenderers based on: evidence of their personal position that they
are not unsuitable to be selected on grounds for example, of bankruptcy, conviction of a criminal offence or failure to pay taxes; their economic and financial standing for example, that
they are judged to be financially sound on the basis of their annual accounts; their technical capacity for example that they will be adequately equipped to do the job and that their track record is satisfactory (for public authorities the evidence is prescribed); and for services, their
ability.
c. The award of contracts ^ either various criteria for determining which offer is the most economically advantageous to the purchaser (i.e. best value for money) or lowest price alone.
UK authorities should use the former as it equates with overall value for money.
The criteria are designed to avoid discrimination on grounds of origin in a particular Member State
and to ensure that all suppliers or contractors established in the Member States are treated on equal terms.
Appeal procedures
Complaints should be brought to the attention of the relevant contracting authority. Proceedings
have to be initiated as rapidly as possible and, unless the courts grant leave, within three months of
the grounds arising.
The UK review bodies are the high courts in England,Wales and Northern Ireland and the court
of Session in Scotland.
The applicable law by reference to which the court will examine complaints is likely to be the UK
Regulations, which implement the EC Directives. The Regulations already provide remedies for
GPA providers and the Directive requirements, as amended by Directive 97/52 and 98/4, which give effect to GPA obligations.
The UK courts have power to correct breaches by ordering the suspending or setting aside of a
procedure before the contract has been entered into, or action by awarding damages or by both of
these in appropriate cases.
In addition, there are a number of informal review procedures in UK public procurement. Suppliers are not obliged to litigate. In the UK, it may well be sufficient:
^ to complain to the contracting authority, perhaps at a more senior level;
^ to agree with the contracting authority to have recourse to some form of alternative dispute resolution such as conciliation, mediation or binding arbitration;
^ in the case of Community suppliers etc, supported by their national authorities:
a. by informal contact with the UK members of the Advisory Committee for Public Contracts;
b. by reference to the UKs Single Market Solvit contact point;
c. by accessing the appropriate contact in the Procurement Policy Network.
Public Private Partnerships (PPPs) lie at the heart of the UK Governments modernization programme to deliver the public services which are expected by the public. PPP/PFIs represent a powerful
new approach to the roles of the public and private sectors and a departure from the policies of the past.
PPP/PFIs are a key element in the Governments strategy for delivering modern, high quality public services and promoting the UKs competitiveness. They cover a range of business structures and
partnership arrangements, from the Private Finance Initiative (PFI) to the sale of equity stakes in
state-owned businesses. PFI projects can capture the benefits of having the private sector incentivised
to perform by having its own capital at risk, while safeguarding and advancing the public interest in
215
the best public services for all. The Governments approach is to find ways of harnessing the commercial drive and skill of the private sector to modernize and enhance a range of activities previously provided by the public sector alone. Underpinning every partnership designed are clear principles and
themes. Lessons learned from past projects with private sector involvement are used to deliver services
that meet the needs of customers and the public as a whole, recognize the contribution of staff, and
provide value for money for the taxpayer. .
There are a variety of initiatives, guidance, best practice incentives and information points about
PPPs available in the UK. Government lead rests with HM Treasurys Corporate and Private Finance
team. The 2003 HM Treasury document PFI: Meeting the Investment Challenge, provides further details and can be downloaded from the HM Treasury website at:
http://www.hm-treasury.gov.uk/documents/enterprise_and_productivity/PFI.cfm.
Partnerships UK (PUK) currently provides practical knowledge and assistance in developing policy and operational guidance for the public sector. In the UK PFI investment has now delivered
over 600 operational new public facilities, including 34 hospitals and over 200 refurbished schools.
PPP/PFIs have been brought about in areas as diverse as major hospital projects; projects covering
schools; prisons; defense contracts; projects to modernize the Government estate; military helicopter
training contracts; water treatment services, etc.
In the UK, the Office of Government Commerce (OGC) is engaged in another important new
arrangement: a Centres of Excellence (COE) initiative. These COEs are for programme and project
management. A COE for programme and project management (PPM) is a co-ordinating function providing strategic oversight, scrutiny and challenge across UK Government departments portfolios of
programmes and projects. A COE is a focal point for supporting the departments individual programmes and projects, and for driving the implementation of improvements to increase the departments capability and capacity in programme and project delivery. A COE supports the successful delivery of programmes and projects by providing the 3 core functions of:
^ Coherent upward reporting to the Management Board, the centre (HM Treasury, the Prime
Ministers Delivery Unit (PMDU) and OGC) and ministers to provide assurance, to support
prioritisation and enable effective decision-making;
^ Networking and cross-government lesson learning to build on the outward relationship with
other departments, the centre and delivery partners in the public and private sectors;
^ Inward support to help programmes and projects adopt best practice and learn lessons from
other projects.
The functions of a COE are differentiated from the functions of typical programme and project support offices by the upward relationship with the Management Board and co-ordination of the departments portfolio at a strategic level. The COE constructively challenges what the departments portfolio is
covering, on behalf of the Management Board, in order to clarify the strategic alignment of what is being
delivered, and confirms whether or not the department has the capability and capacity to achieve it.
Scope of a COE - The Management Board has responsibility for and so should monitor the totality of the programme and project landscape. The COE will need to cover all programmes and projects (the departments portfolio) including those related to Public Service Agreements (PSAs), procurement, property and construction, IT-enabled, and business change. For parent departments, delivering PSAs, outcomes and benefits often means working through executive agencies and non-departmental public bodies (NDPBs).
The COE will need a holistic view of the delivery chain and the capability of each part to deliver;
for parent departments this will include agencies and NDPBs. It is important to agree the appropriate
level of reporting on programmes and projects between parent departments and agencies/NDPBs.
The level required will depend on the current programme and project management arrangements
within each organization.
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United Kingdom
UK Government departments are increasingly realizing the benefits of applying programme and
project management techniques to policy development and implementation, e.g. development of a
Bill, a White Paper or flagship Government policy. The implementation and delivery of new policies
should be described in Delivery Plans and should be managed using intelligent application of programme and project management techniques. The COE should plan to also cover these policy programmes and/or projects.
Benefits of a COE - The COE functions embrace the key corporate management functions necessary for successful delivery, which lead to the department meeting its business plan and Public Service
Agreements (PSAs).
Focusing efforts on priority programmes and projects: portfolio management involves the continuing alignment of the departments programmes and projects with the capability and capacity to deliver. This will encourage the elimination of programmes and projects that lack the necessary resources
and capability, and those which are not making a contribution towards PSA targets or other corporate
priorities. Eliminating programmes and projects from the portfolio will help the department to focus
its efforts on the priority programmes and projects that have a greater chance of success. Management
Boards will continue to need aggregate data about their current commitments in order to make appropriate judgements to ensure new initiatives do not create additional over-commitment and, if necessary, to re-prioritise. Effective portfolio management will then inform and support negotiations with
ministers and the centre about the ability to deliver targets.
Repeatable and improving key practices: if every project is done differently it is impossible to
transfer lessons learnt to other projects and develop corporate knowledge of (for example) better estimating. If a practice cannot be repeated it cannot be improved and therefore projects will continue
to fail at unacceptable rates. The OGC has identified a number of key practices that are an essential underpinning to successful delivery (see the Successful DeliveryToolkit entry below in Other experiences
of innovation in the public procurement sector, OGCs innovative initiatives). Once people are able to conduct programmes and projects using repeatable processes, they have the opportunity to identify which
practices work best in their particular environment. These practices can be documented and integrated
as part of organizational standards, and disseminated (as part of training/awareness programmes) across
the entire department.
Improving capability and skills: Building and developing capability and skills requires departments to assess, develop, deploy, recruit and reward staff with PPM skills for specific delivery roles. Assessment of current capability and capacity alongside the scale of the PPM challenge allows for alignment and balance of HR strategies with the departmental need for recruitment, training etc. Departments will want to build career development programmes for staff with key delivery skills, and be
able to address cultural and structural barriers that may be inhibiting PPM improvements.
Improving OGCs support to departments: Information on the extent to which the COE is embedded and is covering all types of projects, both within the department and across the delivery chain,
will enable OGC to focus on recurring issues and help to identify common solutions.
One important model of integrated service management applied in UK public procurement is the aggregationof needs into one common procurement project or by means of a centralized framework agreement. OGC is encouraging aggregation as an effective means of increasing Governments buying power.
This means assisting in identifying areas where aggregation is appropriate and then encouraging its use.
OGC offers support to departments in their role as lead organization for aggregation arrangements, and actively participates in collective framework agreements, including acting as lead organization if required.
OGCs most significant success to date has been the software deal with Microsoft, IBM/Lotus
and Sun Microsystems for office applications under which these firms have agreed a standing offer
to supply Government on discounted terms. OGC, central Government departments, devolved administrations and local government are working closely together on procurement of desktop IT systems
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to secure 100 million additional savings. In addition, OGC facilitates this collaboration across central
civil Government. As such, OGC aims to achieve value for money by catalyzing the sharing and exchange of knowledge about Government commercial activity and then encouraging the rationalization
and grouping of public procurement expenditure. OGC works towards improving the attractiveness
of the Government market aggregation of requirements.
Means of e-Procurement
As with all purchasing techniques, UK authorities should ensure that their purchasing procedures (including e-Procurement procedures) conform to the EC Treaty Principles of equal treatment,
transparency and non-discrimination. UK legislation in the field of e-Procurement is presently dependent on the oncoming developments in EC public procurement law. Until the adoption of the consolidated Directives, UK legislation in the field is therefore pending. However, preparatory work has begun in light of these expected developments in the e-Procurement field.
The EC has made a clear statement of its commitment to the adoption of e-Procurement within
the European Community members. The two major Directives on public procurement which are
pending, should expressly provide for electronic communications and for the conduct of electronic reverse auctions and the establishment of electronic dynamic purchasing systems.The UK is undertaking
preparatory work towards implementing these developments in the UK legal framework for procurement. The UK takes the view that electronic communications can already by used and can specifically
be authorized for submission of tenders.
The Gershon Review and OGCs approach
The Gershon Review of procurement activities in central Government (April 1999), was based on
the definition of procurement as the whole process of acquisition from third parties (including the logistical aspects) and covers goods, services and construction projects. This process spans the whole
life cycle from initial concept and identification of business needs through to the end of the useful
life of an asset or end of a services contract.This definition underpins the Gershon Review recommendations and OGCs agenda. UK Government policy is that public procurement should be based on value for money rather than initial purchase price, with value for money being defined as the optimum
combination of whole life costs and quality to meet the users requirement.
From a wider perspective the Gershon Review proposed to establish OGC as a center of excellence, with a highly motivated staff of suitably skilled and experienced practitioners in public procurement; an organization offering a variety of consultancy initiatives to improve efficiency, solve problems
and disseminate expertise and which is widely used by procurement professionals.
OGC Targets:Value for money savings to the tax payer
OGCs primary target was to deliver 1 billion of value for money gains from central civil Government commercial activities by the end of 2002-3.This target, which was also built into theTreasurys
Public Service Agreement (PSA), was exceeded. The new target, for the period 2005-2006 is to deliver
3 billion of value for money gains in central civil Government procurement through the Office of
Government Commerce.
OGCs innovative initiatives
Launched in February 2001, Gateway reviews are designed to ensure that all Government projects
are subject to rigorous tests and that they pass through a series of procurement gates. The Gateway initiative has placed the UK Government among the world leaders in implementing a structured procurement review methodology and is now viewed as one of the Governments most effective tools
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United Kingdom
to deliver successes in public service procurement. Gateway has been a huge success in a short space of
time. The cost of running Gateway reviews on a given procurement project is less than 0.1 percent
of the project costs with average gains of 5 percent of original forecast project expenditure being recorded. The added value of the Gateways is clear, especially in programmes and projects where complexity, integration and business change are high on the agenda. From learning with the early projects,
a new Gate Zero has been introduced.This is about strategic assessment and aims to ensure that a projects owners understand all of the issues before money is put into their project. The OGC co-ordinates
and leads Gateway review processes for central civil Government in order to assist departments in improving the management of projects through the deployment of these Gateway independent peer reviews at key stages in the project lifecycle of their procurements. OGC is championing the use of
the Gateway principles for central civil Government across the spectrum of large project activity including IT, construction and the commercial aspects of programme expenditure.
There is also a strong emphasis on training in public procurement to help improve Government
commercial skills: the target is to ensure that 75% of key designated procurement staff across Government, have achieved a degree level qualification in procurement practice or another relevant skill by
2004. OGC helps raise awareness of the required skills on project management, IT, construction, contract management and procurement to ensure qualified specialists are deployed across the board.
As an innovative practice OGC has also sought to achieve value for money gains in public procurement through the intense dissemination of best practice techniques, namely: in providing best practice
guidance focused on priority areas identified by Departments and by rationalizing business and operational guidance; encouraging departments to use the Procurement Excellence Model to drive measurement and benchmarking and assist departments in optimizing their performance; and by assisting departments in bringing about a year on year overall reduction in departmental acquisition and transaction costs.
OGCs Successful Delivery Toolkit (at http://www.ogc.gov.uk/sdtoolkit/ ) describes proven good
practice for procurement, programmes, projects, risk and service management. The Toolkit brings together policy and best practice in a single point of reference. It helps you to ask the critical questions
about capability and project delivery; it gives practical advice on how to improve.
Purpose - The Successful Delivery Toolkit provides rapid access to OGCs repository of proven
good practice for managing procurement, business change and property & construction projects.
It explains the issues and helps to provide solutions. Senior management, gateway reviewers, teams
involved in programmes/projects, procurement officers and suppliers are already using theToolkit.
It has been developed for central government, but it is also extensively adopted by the wider public
sector. Corporate readiness and planning are essential for delivering successful programmes and
projects. The key Issues section of theToolkit outlines key considerations for successful initiation
of programmes and projects. It includes questions that senior management must consider
throughout the business change programme or project lifecycle, from addressing business, policy
and strategic initiatives through to evaluation of resulting outcomes and benefits.
The workbook section of the Toolkit helps departments to learn from experience and become
more capable clients. It provides workbooks for key practices such as project management,
with links to detailed information in the Reference Section of theToolkit. It describes the roles
and responsibilities involved in the delivery lifecycle; and the documents that record decisions
throughout each process, such as the business case and project plan.
The guidance in the Toolkit is an integrated part of central initiatives to improve programme
and project success across government; it provides a common basis for organizational standards
that can be tailored to meet individual needs of departments, their partners and suppliers. It
also provides a means for organizations to validate their practices by mapping to a matrix containing guidance summary information.
Content and structure - The guidance contained in theToolkit is structured in a tiered manner,
with each tier having links to the underpinning guidance in the Reference section of theToolkit. Users who only require high-level guidance ca enter via the key issues section and see the
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information that is most relevant to them.This includes the Successful Delivery Pocketbook for
senior managers, to help them plan for programme/project initiation; a programme management interface developed for policy makers; definition of the SRO role and responsibilities;
and the information pack for Centres of Excellence.
The next tier down is the Workbook section providing a step-by-step walk through the principles and practice in essential areas including procurement, programme, project and risk management. Additionally guidance notes are provided, which departments can tailor to their
own circumstances. The Delivery Lifecycle section contains links to briefings on many aspects
of the business change process and will be of interest to those involved in planning, delivery
of major projects or contract management. A guidance summary matrix has been added to
help users find information rapidly by providing an overview of the guidance and its inter-relationship, again with links to the appropriate section of the Toolkit.
The lowest tier in the Toolkit is the Reference section. This section contains the most detailed information in the form of the OGC library, which brings together all guidance developed by OGC.
For ease of access, separate areas have been constructed for the Achieving Excellence in Construction
Guides and the Successful Delivery Skills Programme. Also in the Reference section are role descriptions within a project and service management context; tools and techniques helpful in running and
managing projects, e.g. the project profile model.
Formats - The toolkit is available free of charge in electronic form over the Internet, as an Intranet CD or a single user CD.
Copyright - The toolkit is crown copyright and its usage is governed by Licence; for further
details see:
http://www.ogc.gov.uk/sdtoolkit/supporting/copyright.html
Also, a cross-government group was set up in November 2001 to look at the issue of sustainable
procurement. This group brought together officials from procurement policy and sustainable development policy, as well as experienced public sector procurement practitioners. Following an initial report, work is now taking place to extensively revise the guidance available on the scope to consider environmental issues during the procurement process; to provide better information to purchasers on
whole life cost assessment and green specifications; and to set targets for sustainability on the Government estate. Initiatives have been launched to encourage the procurement of sustainable timber and
sustainable food in a manner consistent with value for money and the EC rules.
Finally, work is also underway to improve access for Small and Medium Sized Enterprises (SMEs) to
the Government market.This includes the provision of better information about forthcoming contract opportunities, and about the operation of contract award procedures in general. In addition, two pilot projects have recently been launched to further develop the ability of SMEs to win Government contracts.
5. Models adopted
None yet, see Section 1. General Principles (1st paragraph).
Structures involved
See section 4. Essentially, the Office of Government Commerce in collaboration with Government departments and other contracting authorities.
Procedures
See section 4.
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United Kingdom

See Section 1, Legislation being prepared; Section 4, Means of e-Procurement (1st paragraph).
6. e-Procurement
General principles
See Section 4, Means of e-Procurement. National legislation on e-Procurement will be enacted in
the UK in conjunction with the implementation of the EC Directives as and when these are agreed.
e-Procurement initiatives are undertaken within the context of current UK and European legislation
and should not contravene or compromise the fairness and transparency of UK public procurement.
In October 2002, the OGC Supervisory Board approved a strategy for the adoption of electronic
procurement by central civil Government i.e. departments, agencies and non-departmental public
bodies but not including wider public sector bodies such as Defence, National Health Service, local
authorities and devolved parliaments. The strategy focuses on how web-enabled tools and techniques
can deliver significant value for money improvements to Governments commercial relationships.
This strategy follows extensive research into how e-Procurement can bring added value to departments procurement activity. The research included e-pilots and e-tendering projects; the lessons learnt
from these projects are documented in the report e-Procurement: Cutting through the Hype.
The overriding aim of the e-Procurement Strategy for central civil Government is to help improve the
commercial relationship between departments and suppliers ^ using electronic tools to add value
and improve efficiency. For more information, please refer to OGCs e-Procurement guidance report
on the web: http://www.ogc.gov.uk/index.asp?id=2314
OGC is working towards realizing a step change in efficiency by catalyzing the use of e-Procurement for the Governments interactions with its supply base. Developing e-Procurement, OGC continues to work closely with the private and wider public sectors to identify ways in which e-Procurement can enable change that will significantly improve the value for money achieved by Government.
The challenge for the public sector is to deliver: streamlined processes to reduce both supplier and
buyer costs; management information to enable more informed negotiations; and greater control and
auditability of procurement spend. These are all principles which shape the UKs policy in helping
bring about legislation on e-Procurement, where relevant, at European level, that should be transposed
into national law in due course.
None at present. See Section 4, Means of e-Procurement.
Structures dedicated to e-Procurement (legal nature and duties)
UK Government departments will make all key investment and ongoing management decisions
on the deployment of e-Procurement systems. The Office of Government Commerce provides:
^ expert advice to departments considering using e-Procurement tools and techniques;
^ framework arrangements where departments can call-off best of breed e-Procurement services
and tools;
^ electronic catalogue and ordering services through OGCbuyingsolutions, the trading arm of
OGC.
In the UK, the OGC and the Office of the e-envoy (OeE), have a more active role in encouraging,
implementing and managing e-Procurement systems. However, all Government departments and
agencies continue to be accountable for setting priorities and making investment decisions, including
on e-Procurement. OGC is there to help Government become a more intelligent and coordinated client.The OGC e-commerce team helps departments and agencies reduce the risks in making e-Procurement decisions by: establishing the policy and legal framework; helping to establish outline business
221
case; developing fit-for-purpose business models; establishing and sharing best practice and providing
framework agreements. Generally OGC aims to bring about an increase overall in the percentage of
interactions with the supply base using e-Procurement and accordingly is encouraging the different
parts of Government to work with OGC in learning from e-Procurement and e-tendering pilots and
adopting the best practice techniques identified. OGC facilitated and led pilot projects, and disseminated the results across the whole of central and civil Government.
OGC recognizes the need for common communications standards so that electronic systems can
talk to each other.Work is being done by OGC and OeE on UK government e-Procurement standards
for inclusion in the e-Gif framework. This should enable trade using a common set of open standards.
OGCs work on interoperability primarily focuses on XML and commodity codes. OGC is also investigating the feasibility of an e-hub to provide a single access point for improved commercial dialogue
with suppliers and improved management information to Government.
OGC attends the EC Advisory Committee Working Group on Electronic public procurement
and contributes to CEN and IDA groups.
OGC also supports individual departmental procurement from a commercial viewpoint, taking
into account the strategic aims of e-Government and the work of the Office of the e-Envoy. Procurement advice is offered on the relative merits of new information technologies and their strategic application across Government.
Finally OGC is examining the Strategic deployment of e-Procurement information technology.
With the Wireless Workspace initiative OGC is piloting, the organization is examining security issues
and how freeing people from the constraints of fixed desks can help them to work more effectively.
Using this technology in the workplace to support more flexible ways of working is perceived to offer
an as yet untapped potential ^ flexibility in space as well as time; immediacy in service delivery; productivity gains and reduced costs as well as work-life balance.
Although not the only source on the subject, as regards all kinds of communication relating to eProcurement procedures and relating to e-Procurement guidance, the OGCs website www.ogc.gov.uk
constitutes a comprehensive portal with links to most other relevant sources. OGCs website features
specific e-Procurement guidance which is also published.
e-Procurement facilitates the use of electronic methods at every stage of the purchasing process
from identification of requirement through to payment, and potentially to contract management.
The UK Government has adopted the principle that electronic enablement of the purchasing process
can be more specifically identified as: e-sourcing for contractual processes (tools include e-tendering,
e-RFQs i.e. Request For Quotations / evaluations and e-auctions); e-Procurement for transactional processes (tools include marketplaces using techniques such as e-catalogues and punch-out); e-payment
(tools include virtual or embedded GPC i.e. the Government Procurement Card (see below), e-invoicing and self-billing).
E-auctions (electronic reverse auctions), or dynamic tradeare web-based online events that enable
efficient, open and transparent bidding between pre-qualified suppliers competing either on lowest
price or best value for money as part of a full tendering process. E-auctions are open, transparent
and fully recorded events and, as such, promote best practice in procurement. E-auctions are viewed
in the UK as a useful tool to assist in achieving best value for money in procurement as part of the procurement process in appropriate cases.
There is currently no reference to the use of e-auctions in the EC procurement Directives,
although the forthcoming legislative changes specifically address this issue. The original Commission
proposal was to permit e-auctions for standard supplies or services (such things as petrol or diesel
where the standard is set irrespective of the choice of supplier and the only criterion left on which
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United Kingdom
to award a contract is price). However, the common position text extends the scope so that it is permissible: to undertake an e-auction for Supplies, Services or Works; to undertake a full evaluation (prior
to the e-auction) of the most economically advantageous tender (value for money in UK terms); during
the e-auction, to use award criteria beyond price for any other relevant factors which are quantifiable
and capable of being put in figures; and during the e-Auction, for suppliers to update their bids in respect of any issue ^ including price ^ so long as these can be quantified. The UK considers that the
text is moving in the right direction in that the proposal remains permissive with flexibilities built in
to accommodate future developments in E-auction technology. Any decision whether to use E-auctions rests with the contracting authority, within the scope of the EC rules. OGC is trying to preempt inappropriate use of e-auctions in Government by developing how to guidance for electronic
reverse auctions: working within legal constraints, criteria and preconditions for auctions, developing
the business case, and for identifying service providers. This is due to be delivered by OGCs e-Commerce team by December 2003.
In October 1997 the GPC (Government Procurement Card) was introduced as a tool to purchase
low value, low risk goods and services, efficiently and cost effectively. The GPC is a purchasing card
provided at no cost to Government by Visa and a number of its member banks. A separate card is available for Travel and Subsistence. Most contracting authorities in the UK are eligible to benefit from
this programme. The GPC programme has continued to grow, with 32,000 cardholders in 165 public
sector organizations. Cumulative savings through the use of the card, since it was introduced in 1997,
surpassed 70 million in December 2002. According to the National Audit Office and to consultants
from KPMG, each use of the card saves the taxpayer 28 in administrative costs. The second contract
for provision of card services to UK Government came into operation on 31st January 2003 following
a re-competitive tendering exercise where Visa and a number of its member banks were again awarded
the contract. GPC is migrating from a simple order and payment tool to a web enabled method of payment to be used with transactional e-Procurement systems.
Also in the UK there is telematic technology co-ordination of property need in public procurement: e-PIMS (Electronic Property Information Mapping System) helping departments to identify appropriate property to meet their needs. e-PIMS, an initiative led by OGC, developed this information
system for the management of departments property occupations. e-PIMS enables the sharing of
property information across Government using the GSI (Government Secure Intranet). Take-up of
the November 2001 version has exceeded all expectations. The latest release, issued in May 2002, enables data on e-PIMS to be synchronized automatically with departmental property databases. This
provides departmental users with a wider range of options for accessing and viewing e-PIMS information, improving the quality and consistency of property decision-making across Government.
In summary, significant progress has been achieved on the UKs major projects using telematic
technology for procurement. These projects have focused on electronic tendering, e-Procurement
and the GPC. The e-pilots project researched the impact of marketplace solutions in terms of technology, people and process.Within the scope of e-pilots, innovative tools such as punch-out (an interface
between a buyers e-Procurement system and a suppliers catalogue site enabling the user to browse
and shop without user ID and password) and electronic reverse auctions were tested. The project
also prompted further work to establish open standards for e-Procurement and for guidance to be provided on security and the use of electronic reverse auctions.
See Section 5, Legislation in force.
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ISTITUTO POLIGRAFICO E ZECCA DELLO STATO

The book was edited by Stefania Zuccolotto

Public Procurement in Europe

The aim of the book ........................................................................................................

The methodology .............................................................................................................

The scheme ......................................................................................................................

Czech Republic .............................................................................................................

The Netherlands ...........................................................................................................

Public Procurement in Europe

Republic of Lithuania ................................................................................................... Pag.

United Kingdom ..........................................................................................................

Public Procurement in Europe

Public Procurement in Europe

The aim of the book

Public Procurement in Europe

Public Procurement in Europe

Public Procurement in Europe

Public Procurement in Europe

Public Procurement in Europe

New managerial arrangements

Public Procurement in Europe

Legislation currently in force

Public Procurement in Europe

Bodies responsible for appeals (legal nature and composition)

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Supplies Co-ordination Directive

Works Co-ordination Directive

Use of Standard Forms for the

amended by Directive 92/57/EC and Directive

Public Procurement in Europe

4. New organizational and managerial arrangements

Public Procurement in Europe

Legislation being prepared

Telematic purchasing procedures

Supplies Co-ordination Directive

Works Co-ordination Directive

Use of Standard Forms for the

amended by Directive 98/4/EC and Directive

Existing legal framework

Public Procurement in Europe

Public Procurement in Europe

The composition of these tender Boards is as follows:

3. Types of Public Procurement and Award Procedures

Public Procurement in Europe

Public Procurement in Europe

Supplies Co-ordination Directive

Works Co-ordination Directive

Sectoral Legal Remedies Directive

Amending Directives 92/50/EEC, 93/36/EEC and 93/37/ 13 October 1997

Amending Directive 93/38/EEC

Use of Standard Forms for the Publication of Contract 13 September 2001

Public Procurement in Europe

Another important task of the Danish Competition Authority is to participate in EU-negotiations

Public Procurement in Europe

4) The accelerated procedure.

Public Procurement in Europe

1) The Complaints Board

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g) How is procedural fairness ensured?

Public Procurement in Europe