CENTRAL PUBLIC ANTI-CORRUPTION PROCUREMENT BUREAU OFFICE Public - - PowerPoint PPT Presentation

Public procurement – anti-corruption regulations. Polish experiences. Hubert Nowak – Vice President, Public Procurement Office Wojciech Śmigielski – Depute Director of Control Proceedings Department Central Anti-Corruption Bureau Kyiv, Ukraine, May 2017

PUBLIC PROCUREMENT OFFICE CENTRAL ANTI-CORRUPTION BUREAU

Public procurement market in Poland

• general data for 2015
• 116 billion PLN (ca 38 billion Euro) – value of awarded public contracts;
• 142.262 – number of awarded public contracts;
• structure of the public procurement market in Poland in terms of types of the public

contracts awarded:

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Public procurement market in Poland

• general data for 2015
• 35.000 entities with status of contracting authority;
• economic operator – could be almost everyone, i.e. natural persons, legal persons,
• rganisational units not having legal personality or above mentioned entities

bidding together (consortia);

• two official publicators for publication of contracts notices:
• Official Journal of the European Union – for contracts above the EU thresholds;
• Public Procurement Bulletin – for contracts below the EU thresholds
• average number of bids in a single public procurement procedure:
• 2,65 – per public procurement procedure above the EU thresholds;
• 2,90 - per public procurement procedure below the EU thresholds;

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Public procurement market in Poland

• general data for 2015
• average length of a public procurement procedure:
• 85 days – procedure above the EU thresholds;
• 35 days - procedure below the EU thresholds;
• 98 days – public procurement procedure for works with estimated

value above the EU thresholds;

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Public procurement market in Poland

• general data for 2015
• controls conducted by the President of the Public Procurement Office:
• 231 – total number of controls conducted in 2015, comprising:
• 130 - obligatory ex-ante controls;
• 72 - ad-hoc controls;
• 29 - ad-hoc controls based on the notification of the non-competitive procedure
• legal actions of the PPO in light of infringement of the Public Procurement Act:
• 90 – notifications to the Public Finance Discipline Officer on violation of public finance

discipline;

• 2 – notifications to the prosecutor’s office on suspicion of committing an offence;
• 22 – financial penalties imposed by the PPO President;
• 2 – applications to the Court for annulment of the contract (and additional 1 for

annulment of the annex).

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Public procurement market in Poland

• general data for 2015
• number of appeals submitted by economic operator’s and judgments of

the National Appeal Chamber – the independent quasi-judicial review body (the appeals refer to irregularities in the public procurement procedure) - 2.877 appeals, from among of which:

• 21% - admitted by the National Appeal Chamber ;
• 16% - admitted by contracting authority;
• 63% - dismissed or rejected.

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Public procurement market in Poland

• general data for 2015
• types of the public procurement procedures:

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

1)

• pen tendering;

2) restricted tendering; 3) negotiated procedure with notice publication; 4) competitive dialogue; 5) innovation partnership (since July 2016); 6) electronic bidding; procedures initiated by publication of the notice 1) negotiated procedure without publication; 2) single-source procurement; 3) request-for-quotation; procedures initiated without publication of the notice

Public procurement market in Poland

• general data for 2015
• Public procurement procedures in numbers:

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Type of procedure Years/Percentage of the procedures 2014 2015 Open tendering 82,19% 83,39% Single-source procurement 13,42% 11,75% Request-for-quotation 3,14% 3,55% Restricted tendering 0,74% 0,83% Electronic bidding 0,21% 0,27% Negotiated procedure without publication 0,21% 0,13% Negotiated procedure with notice publication 0,08% 0,07% Competitive dialogue 0,01% 0,01% Innovation partnership (since July 2016) not existed not existed

Polish public procurement system – legal framework

• Directive no 2014/24/EU of the European Parliament and of the Council of 26

February 2014 on public procurement and repealing Directive 2004/18/EC (Official Journal of the European Union no UE L 94 of 28 March 2014, p. 65);

• Directive no 2014/25/EU of the European Parliament and of the Council of 26

February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (Official Journal of the European Union no UE L 94 of 28 March 2014, p. 243);

• The Act of 29 January 2004 – (Polish) Public Procurement Law (Journal of

Laws of 2015, item 2164 with changes);

• Implementation of the above directives was made by amendment of the Act of

29 January 2004 - Public Procurement Law (PPL) adopted on 22 June 2016 (Journal of Laws of 2016, item 1020).

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Main recent amendments

The main goals of the recent amendment to the PPL: 1) simplification and increased flexibility

• f

the public procurement procedures by: a) facilitation of use of negotiations as a way of clarifying contract terms with bidders and obtaining the services, goods or works that best suit to the contracting authority’s needs; b) reduction of formal duties at the stage of application for a contract:

• at the stage of submission of tenders, economic operator encloses

to the bid only statement as an initial confirmation that he is not subject to exclusion and complies with the conditions for participation in the procedure;

• before awarding a contract, contracting authority shall call on the

economic operator whose tender has been evaluated as the best to submit documents confirming the contractor is not subject to exclusion and complies with the conditions for participation in the procedure;

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Main recent amendments

2) promotion and support for non-economic

• bjectives

such as environmental protection, social inclusion, or innovation, by among

• thers:

a) emphasis on choosing the most advantageous bid, based on cost effectiveness and on award criteria other than price by limiting the use

• f the lowest price criterion;

b) introduction of the new type of procurement procedure - an innovative partnership - aimed at acquiring innovative products and services not yet available on the market; c) promotion of social inclusion of disadvantaged persons and their integration on the labor market by amending provisions which allow to reserve the right to compete for a contract only for contractors whose main activity is social inclusion of such persons and which employ at least 30% of people belonging to disadvantages categories;

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Main recent amendments

3) better access to the public procurement procedures for small and medium-sized enterprises (SMEs) by: a) facilitating the division of the contract into lots, which usually are better accessible for SMEs; b) introducing limitations as regards the conditions that might be determined by the contracting authority with reference to the average annual turnover of the bidder - up to twice the estimated value of the contract; 4) introduction

• f

more flexible rules for the modification

• f

public procurement contracts; 5) simplification of procedures for awarding so called social and other specific services such as legal services, hotel services, catering, cultural services, health services.

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Trainings provided by the Public Procurement Office devoted to new regulations

The Public Procurement Office organized in 2016 : 1) 8 conferences in the largest Polish cities, attended by about 2500 representatives of all parties involved into the public procurement procedure; 2) one of the above mentioned conferences was transmitted on-line; 3) 10 central trainings (in Warsaw), attended by about 700 participants.

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Anti-corruption regulations in the Public Procurement Law

1) open tendering and restricted tendering (initiated by the publication of the contract notice), which are considered to be the most competitive procurement procedures are the basic procedures provided for in the PPL; 2) other procedures and particularly those which are not initiated by publication of the contract notice may be used exceptionally when certain statutory requirements are met; 3) mandatory publication of the tender documents on the websites - in prevail types of procedures; 4) obligation to draw up by Contracting Authorities and post on their websites plans of the contract award procedures which they intend to conduct in a given financial year; 5) obligation to comply with minimum time limits for submission of tenders; 6) Contracting Authority obligation (at the request of any participant) to provide copies

• f other tenders submitted in the procedure;

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Anti-corruption regulations in Public Procurement Law

7) mandatory, collegial tender committee – for procedures above EU thresholders; 8) mandatory exclusion of the Contracting Authorities' employees carrying

• ut activities in the procedure in the event of a conflict of interest with the

potential contractor. Each person carrying out activities in the procedure shall submit under the pain of criminal liability, in a written form a statement on the lack or existence of the conflict of interest; 9) obligation of the Contracting Authority to set up the supervision team in the case of a contract for works or services of a value equal to or higher than a PLN equivalent of EUR 1 000 000. The team is responsible for supervision of the execution of the contract. At least two members of the team are appointed to the tender committee; 10)obligation to inform participants about results

• f

the procedure, classification of the tenders (with scores), justification of exclusion of the bidder and justification of rejection of the bid;

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Anti-corruptions regulation in public procurement law

11)legal protection measures:

• granted to bidders as well as to other persons if they have or had

interest in being awarded the contract and suffered or may suffer a damage as a result of the violation of the provisions of the Public Procurement Law by the Contracting Authority;

• types:

 appeal - shall only be admissible against actions incompliant with the Public Procurement Law, performed by the Contracting Authority in the course of contract award procedure or against failure to such Law which the Contracting authority is bound to perform under this Law. Resolved by specialized body – The National Appeal Chamber, set up in Warsaw;  complaint to the court – complaint against the National Appeal

• Chamber. Resolved by the district court competent for the seat or

place of residence of the Contracting Authority;

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Anti-corruptions regulation in public procurement law – continuation

12)control of the public procurement procedures – executed by the President

• f Public Procurement Office:
• the objective of control is to check the conformity of contract award

procedures with the Public Procurement Law;

• types of the controls:

 ex-ante control of contracts co-financed from the EU funds – conducted before signing the contract (the legal ban to sign the contract before termination of such type of the control) if the value

• f contract or framework agreement for works - is equal to or

exceeds the PLN equivalent of EUR 20 000 000 and for supplies

• r services - is equal to or exceeds the PLN equivalent of EUR 10

000 000;  ad hoc control – may be initiated ex officio or on request (each interested person or entity) in case of justified presumption, that in course of the contract award procedure a breach of the provisions of the Public Procurement Law appeared, which might have influenced the result;

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Administrative bodies involved in public procurement controls/audits in Poland

1) Public Procurement Office; 2) Supreme Audit Office; 3) Regional Accounting Chambers; 4) Central Anti-Corruption Bureau; 5) Prosecutor’s Office; 6) Police.

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Administrative bodies involved in public procurement controls/audits in Poland

The scope of controls/audits executed by each of institutions involved in public procurement controls/audits is different, but following factors should be indicated as main elements analyzed within such controls/audits:

• legality
• efficiency
• effectiveness
• reliability

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Cooperation with social partners - examples

Active role of NGO’s, for example Batory Foundation. Two projects in this field, financed from EU funds, are implemented by Stefan Batory Foundation in cooperation with Polish audit bodies (i.e. Public Procurement Office, Supreme Audit Office, Central Anti-Corruption Bureau). 1) Irregularities Risk Barometer (IRB) 2) Integrity pact

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Cooperation with social partners

• Irregularities Risk Barometer (IRB)

 IRB - a statistical index made up of nine components ("red flags"), indicating that given tender – from the moment of publication to the decision on the selection of the bidder – is under the risk of irregularities. The indicators are: (1) tender procedure, (2) length of the description of the subject of the tender, (3) length of the description of the eligibility criteria, (4) number of required certificates, (5) weight of the non-price criteria, (7) number

• f days from announcement to closure of bidding phase, (8) number of days from closure
• f bidding phase to selection of contractor (9) single bidder.

 IRB enables risk analysis for individual tenders, issuers and bidders, as well as for selected markets, periods, etc., in real time.  IRB is designed primarily for the procurement market participants, the media and watchdog CSOs (especially local).  Anyone can access and use IRB by visiting website: http://barometrryzyka.pl/  The IRB was created by Stefan Batory Foundation, but in consultation, among others, with: Public Procurement Office, Central Anticorruption Bureau and Supreme Audit Office.

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

Cooperation with social partners – Integrity Pacts (IP)

 Integrity Pact (IP) - a contract between a contracting authority and economic operators bidding for public contracts that they will abstain from corrupt practices and will conduct a transparent procurement process. IP also includes a separate contract with a civil society organization which monitors that all parties comply with their commitments.  EC DG Reggio and TI pilot project ‘Integrity Pacts – Civil Control Mechanism for Safeguarding EU Funds’. It aims to explore and promote the use of IPs for safeguarding EU funds against fraud and corruption, and as a tool to increase transparency and accountability, enhance trust in procurement market. Currently is implemented in 11 EUMCs in cooperation with 15 CSOs.  The role of PPO (1): expert support, translation of TI handbook on IPs, preliminary assessment of the suitability

• f IP among contracting bodies, participation in consultations of the IP.

 The role of PPO (2): Cooperation with parties involved in IP implementation – Ministry of Development, Stefan Batory Foundation (monitoring CSO).  The role of PPO (3): audit of the investment covered by the IP.  More information on the pilot of IP in Poland and other countries:

• Information on IP pilot in Poland –

http://www.batory.org.pl/programy_operacyjne/przeciw_korupcji/pakty_uczciwosci

• Polish IP –

http://www.batory.org.pl/upload/files/Programy%20operacyjne/Odpowiedzialne%20Panstwo/PAKT%20UCZ CIWOSCI%201%20MODUL%20SKAN.pdf

• Information on IP pilot in the EU – http://ec.europa.eu/regional_policy/en/policy/how/improving-

investment/integrity-pacts/

. Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

.

Thank you!

Public Procurement Office www.uzp.gov.pl

Public Procurement Office, Postępu Str. 17A, 02-676 Warsaw, POLAND

The CBA was established by the Act of June 2006

• n the Central Anticorruption Bureau

which entered into force on 24 July 2006

Corruption in public and economic sector in particular govermental institutions and local goverment Activity which endangers State’s economic interest

COMBATING

CBA’s activity

EDUCATION & ANTICORRUPTION INFORMATION

Recognition Prevention Detection Prosecution

Polish Public Procurement anti-corruption system Legislation Prevention Control and Investigation NGO’s

„Fraud and Corruption Awareness Handbook”

Prevention and education Cooperation with World Bank – Vice Integrity

„Recommendations on anticorruption proceedings by using the public procurement procedures”

Practical guide for public offials to carry out a public procurement procedure

Central Anti-corruption Bureau e-learning training platform

launched in May 2014

Central Anti-corruption Bureau e-learning training platform Three thematic courses:

• Corruption in public administration
• Corruption in bussiness
• Social effects of corruption

Basic features:

• interactive
• animations with dialogues
• audio/video presentations
• expert-moderated forum
• knowledge test as an element of each e-learning course

www.szkolenia-antykorupcyjne.edu.pl

Central Anti-corruption Bureau e-learning training platform

UNIQE USERS as of April 2017 - 51.033

e-learning training platform - english version until now 320 users, inter alia:

• Russia – 19
• Ukraine – 17
• Lithuania – 16
• Slovakia – 14
• Hungary – 6
• Romania – 5
• Czech Republic – 5

Course completion confirmed by an automatically generated certificate

Central Anti-corruption Buerau analytical activities

Pre-control analysis – economic decisions

Analysis of economic decisions - generally

Central Anti-corruption Buerau control activities

Control – economic decisions

62 59 58 40 36 20 10 20 30 40 50 60 70 Initiated in 2014 Initiated in 2015 Initiated in 2016

Control of economic decisions - generally Control of economic decisions - generally Control of economic decisions - generally Control of public procurement Control of public procurement Control of public procurement

Central Anti-corruption Buerau control and analytical activities Post-control actions

Post-control actions

Controls launched in 2014 Controls launched in 2015 Pre-control analysis in 2014 Pre-control analysis in 2015 Notice to the Public Finance Discipline Office for violation of public financial discipline

5 6 4 1

Notice to the prosecution office for suspicion of committing an

• ffence

25 13 16 9

Liability for breach of provisions at public procurements LIABILITY

DISCIPLINARY

VIOLATION OF THE PROCEDURES BY PUBLIC SECTOR ENTITIES

PENAL

COMMITTING AN OFFENCE DEFINED IN THE PENAL CODE

Liability arising under the Act of 17 December on Liability for the Breach of Public Finance Discipline (Journal of Laws of 2005 no. 14, as amended)

• Investigation is led by the Public Finanse Auditor
• In first instance the sentence is given by the Judgement

Commission on violation of public financial discipline

• In second instance the sentence is given by the Main

Judgement Commission on violation of public financial discipline

Penalties for violation of public financial discipline

Admonition Rebuke Cash penalty

Prohibition of related functions with the use

• f public funds

Penalties for violation of public financial discipline

• Art. 305 Penal code – hindering a public tender
• Art. 228 Penal code – passive bribery/venality
• Art. 229 Penal code – active bribery
• Art. 230 Penal code – paid favoritism
• Art. 230a Penal code – trading in influence
• Art. 231 § 2 Penal code – abuse of power
• Art. 233 Penal code – false testimony
• Art. 250a Penal code – voting bribery – buying/selling votes
• Art. 271 § 1 Penal code – intellectual forgery/attesting an untruth in

document

• Art. 296a Penal code – economic corruption/corruption of managers
• Art. 46 Act on sport – sports corruption
• Art. 47 Act on sport – participation in betting
• Art. 48 Act on sport – counterpart of the offences under art. 230 and

230a of PC

• Art. 54 Act on reimbursement of Medicines, Foodstuffs Intended for

Particular Nutritional Uses and Medical Devices – refund bribery

Types of corruption crimes

Liability under the Penal Code Act of 6 June 1997

(Jornual of Laws of 1997, no 88, item 553, as amended)

• Art. 305 Penal code - hindering a public tender

Anyone who, in order to achieve a material benefit, prevents

• r obstructs a public tender, or acts in concert with another

entity to the detriment of the owner of property or an entity

• r institution for which the tender is to be held is liable to

imprisonment for up to three years. Anyone who, in connection with a public tender, spreads false information or withholds circumstances

• f

significant importance to the conclusion of the agreement that is the subject of the tender,

• r acts in concert with another entity to the detriment of the
• wner of property or an entity or institution for which the

tender is to be held, is liable to the same penalty.

Number of corruption offences in Poland /2016/ registered in the National Criminal Information Centre

Type of offence /articles/ Police Internal Security Agency CBA Prosecu tion

• ffices

Border Guard Military Police Total 228 PC /passive bribery/

4363 8 63 51 9 5 4499

229 PC /active bribery/

1789 4 53 39 69 1954

230 PC /paid favoritizm/

423 2 29 10 3 467

230a PC /trading in influence/

171 3 11 9 1 195

231 § 2 PC /abuse of power/

784 4 60 54 2 12 916

250a PC /voting bribery/

15 13 28

271 § 3 PC /intellectual forgery-document/

17494 4 23 6 4 17531

296a PC /economic corruption/

134 7 141

305 PC /hindering a public tender/

221 1 18 5 2 247

46 Act on sport /sports corruption/ 47 Act on sport /participation in betting/ 48 Act on sport /counterpart of the offences under art. 230 and 230a of PC/

1 1

54 Act on reimbursement of medicines, Foodstuffs Intended for Particular Nutritional Uses and Medical Devices /refund bribery/

1 1

Total

25396 26 277 174 84 23 25980

www.cba.gov.pl www.szkolenia-antykorupcyjne.edu.pl