romanian remedies system seminar – 11 december 2008 Şerban filipon university of nottingham –...

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ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International Limited – Legal & Procurement Adviser

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Page 1: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEMSEMINAR – 11 DECEMBER 2008

Şerban FiliponUniversity of Nottingham – The Public Procurement Research

Group – PhD Student

WYG International Limited – Legal & Procurement Adviser

Page 2: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

Outline• Background of Romanian Legal System• Two Courses of Action, both under Administrative Litigation

Procedure- The Administrative-Jurisdictional Course of Action- The Judicial Course of Action

• Other Measures

• Note: this presentation is based on the provisions of the relevant legislation, in particular, without limitation, art. 255-296 of the procurement act (EGO 34/2006 as amended), law 554/2004 on administrative litigation (as amended), a review of relevant case-law, and the research work conducted by the author under the Phare Romanian Procurement Project (2007) implemented by WYG International Limited as leader of consortium with Eversheds LLP and Deloitte Romania.

Page 3: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

Background of Romanian Legal System

• Napoleonic Legal System (following French tradition)• Systemic approach to legal regulation: Constitutional

Law; Civil Law; Commercial Law; Administrative Law; Criminal Law

• Case law usually is not a source of law• Public procurement subject to administrative law and

administrative litigation law

Page 4: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

Relevant National Legislation• EGO 34/2006 - transposing the two 2004

directives as well as the remedies directive 89/665 – amended many times, last amendment 02 December 2008 – covers procurement, utilities, concessions, remedies

• Secondary legislation: implementation rules – detailing various areas of public procurement regulation

• Tertiary Legislation: the Procurement Guide• Administrative litigation legislation

Page 5: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

Characteristics of the two courses of action:• The administrative-jurisdictional course of action

- intensively used: over 5000 complaints in 2008- first instance: the National Council for Settlement of Complaints (NCSC)- appeals: Courts of Appeal - quick procedure, short procedural time-limits- automatic suspension of the award procedure- only before a procurement contract is concluded- only to cancel or amend acts of the CA- no award of damages

Page 6: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The National Council for Settlement of Complaints

- main player in the procurement review system- administrative-jurisdictional institution specialised in

complaints against acts issued in procurement procedures

- independent institution (quasi-judicial)- issues decisions that are mandatory for the parties- decisions can be appealed before relevant courts

Page 7: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

Characteristics of the two courses of action• The judicial course of action

- rarely used in procurement- only before courts, after submission to the CA - much longer procedural time limits- before or after the award of a public procurement contract- cancellation of an act or even of a contract- award of damages- no automatic suspension - suspension may be awarded

Page 8: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative-Jurisdictional Course of Action - outline

• Legal Standing• Competence• Procedure• Time-Limits• Suspension• Solutions• Appeals

Page 9: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

• Legal standing for remedies in procurement- Rests with the person who considers it is harmed by an act of the Contracting Authority that breached the provisions of the public procurement law- Has a legitimate interest in connection with an award procedure under the procurement law; and- Suffers, suffered or risks to suffer damage as a result of an act of the contracting authority liable of generating legal effects

Page 10: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative Jurisdictional Course of Action – Competence of the NCSC

• cancelling an act, modifying an act or obliging the CA to issue an act• acts cancelled or modified may not only be those challenged but

also, usually, subsequent or previous ones that have a logical link with the challenged act(s)

• depending on the circumstances, the NCSC may cancel the award procedure, order other correction measures, or apply fines

• NCSC may not substitute the decisions that rest with the CA (e.g. the actual evaluation of offers, conclusion of contracts)

• in general, limited to the requests in the complaint• only in connection with procurement procedures under the

procurement act (refer, for example to case 183/4C4/151 of 2006)

Page 11: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative Jurisdictional Course of Action – Procedure (i) – initiation

• Submission of a complaint to the NCSC and to the Contracting Authority (CA) within the relevant time limits

• Content of complaint

- Parties; object; motivation in fact and in law; request; evidence

Page 12: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative Jurisdictional Course of Action – Procedure (ii) – CA action

• Obligation to inform the other tenderers• Right to take measures to correct the challenged acts

if tenderer is satisfied withdraws its complaint• Obligation to express its opinion and submitting it to the

NCSC (cc to the complainant) together with the entire procurement file

Page 13: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative Jurisdictional Course of Action – Procedure (iii) – before the NCSC

• Panels of three councillors – at least the Chairman has legal background

• Mainly in writing – hearings only if decided by the NCSC• Specialised expertise, if requested and approved by the

CNSC• First assessment of procedural incidents: late

submission; standing; competence; lack of object• If admissible analysis on the merits (consideration of

evidence and application of the relevant law)

Page 14: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative Jurisdictional Course of Action – Procedure (iv) – short time-limits

• 5 or 10 days for submission of complaints but no later than: deadline for submission of tenders / end of standstill periods

• 1 day to CA to inform other tenderers about the complaint

• 1 day for CA to inform about corrective measures• 3 days for CA to express its opinion and submit the

procurement file to the NCSC• 5 days for complainant to respond the clarifications from

the CNSC• 20 (+10) for NCSC to decide

Page 15: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative Jurisdictional Course of Action – automatic suspension (i)

• Advantages / disadvantages• Courses of actions that tenderers may take

- submit a complaint just to buy time to prepare their tender

- “blackmailing” the CA or successful tenderer – in particular where there is budgetary or programming time-limit for contracting

Page 16: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative Jurisdictional Course of Action – automatic suspension (ii)

• Evolution of regulation - EGO 34/2006 – initial regulation: pure automatic suspension- EGO 94/2007 – additional procedure for automatic suspension to operate / incrimination of abusive exercise of the right to challenge- EGO 143/2008 – change of start dates / end dates

• Lifting the suspension: may be awarded if requested by the parties in special circumstances (e.g. extreme urgency)

Page 17: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative Jurisdictional Course of Action – automatic suspension (iii)

• Conclusion of contract during the suspension period / standstill periods contract automatically null and void

• Any solutions if suspension or standstill periods, for example, prevent contract from being concluded before a budgetary or programming time limit for contracting?

• Contract with suspension clause: - contract signed but not in force until a future and uncertain event happens (for example, non-submission of a complaint); - if event happens contract in force retrospectively from the date of signature; - if not contract has never existed

Page 18: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative Jurisdictional Course of Action – solutions

• Rejection of complaint due to incidents or if complaint not substantiated on the merits

• Admission of complaint and:- cancellation of an act (and of previous or subsequent acts)- amendment of an act- obligation to issue an act- cancellation of the award procedure- taking note of withdrawal of complaint

Page 19: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Administrative-Jurisdictional Course of Action – appeals

• 10 days of communication• Court of Appeal in whose jurisdiction is the head-office of

the CA• No automatic suspension of the award procedure or of

the NCSC’s decision (can be awarded if requested)• Decision in the appeal is final

Page 20: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Judicial Course of Action – General

• Rarely used in procurement• Pre-condition: complaint to the CA• If CA does not respond within time-limit or response unsatisfactory

to the relevant administrative litigation Court (Tribunal or Court of Appeal)

• Appeals to the relevant higher courts (Court of Appeal or the Supreme Court)

• No automatic suspension but suspension may be awarded• Procedure mainly oral

Page 21: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Judicial Course of Action – Time-Limits

• 30 days (or up to 6 months in special circumstances) to lodge the prior complaint to the CA

• 30 days for CA to respond to the prior complaint• 6 months (or up to 1 year in special circumstances)• No specified time limits for settlement of the case

Page 22: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

The Judicial Course of Action – Potential Uses

• Where the tenderer missed the short time-limits of the administrative-jurisdictional course of action

• Where a procurement contract was already concluded• Where award of damages is sought (if the complainant

had a real chance of winning the tender)• Where the rights of a third party are harmed in

connection with a procurement procedure (e.g. owner of land to be used for a motorway concession)

Page 23: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

Other measures

• Ex-ante controls – Ministry of Finance• Application of fines by the Procurement Authority

Page 24: ROMANIAN REMEDIES SYSTEM SEMINAR – 11 DECEMBER 2008 Şerban Filipon University of Nottingham – The Public Procurement Research Group – PhD Student WYG International

ROMANIAN REMEDIES SYSTEM

Thank you!

Questions?