FIGHTING CORRUPTION TOGETHER SERBIAN CASE Branimir Blagojevic - - PowerPoint PPT Presentation

FIGHTING CORRUPTION TOGETHER – SERBIAN CASE

Branimir Blagojevic

Member of the Republic Commission for the Protection of Rights in Public Procurement Procedures

20.5.2017. www.kjn.gov.rs 1

www.kjn.gov.rs

Building a Strong Public Procurement System

• 3 Main Components:
• Legal Framework
• Institutional Framework
• Capacity Building (Professionalisation)

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Legal Framework

• Public Procurement Law (“Official Gazette of RS” No. 124/12,

14/15, 68/15)

• Public Procurement Development Strategy 2014-2018
• Stage B - Full compliance of Serbian PP legislation with the EU

acquis (2017)

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Institutional Framework

• The Public Procurement Office
• The Republic Commission for the Protection of Rights in Public

Procurement Procedures

• The State Audit Institution
• The Ministry of Finance
• The Commission for Public Private Partnership
• The Commission for Protection of Competition
• The Anti-Corruption Agency

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Institutional Framework

• In April 2014 Memorandum on Cooperation and Coordination was

signed between: PPO, Republic Commission, Ministry of Finance, Ministry of Economy, State Audit Institution, Anti-Corruption Agency, Anti-Corruption Council and Commission for Protection of Competition

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Institutional Framework – Public Procurement Office

• Supervising implementation of the Public Procurement Law
• Participation in drafting regulations and adopting bylaws in the

area of public procurement

• Giving opinions on implementation of the Public Procurement Law

and opinions on the justifiability of applying the negotiated procedure

• Managing the Public Procurement Portal
• Activities in connection with negotiations on accession to the EU
• Participation in drafting the anti-corruption plan
• Initiating misdemeanour procedure and procedure to nullify

contract

• Preparing reports on public procurements

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Institutional Framework – Republic Commission for the Protection of Rights in Public Procurement Procedures

• Republic Commission is an autonomous and independent body of

the Republic of Serbia, ensuring the protection of rights in public procurement procedures

• Competences of the Republic Commission
• Decides on requests for protection of rights in all public

procurement procedures (equivalent to revision of public procurement procedures as in Directive EU 2007/66)

• Decides in accordance with special competences

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Professionalisation

• Public Procurement Officer
• PPL and Rulebook
• Everyone can obtain Certificate (employees in CA, economic
• perators, civil sector…)
• Procedure above 120.000 EUR – PP officer member of the

Committee

• CA whose overall annual value of planned PP exceeds 205.000

EUR, must employ at least one PP officer

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Professionalisation

• Public Procurement Development Strategy 2014-2018
• “The aim of further professionalisation of PP officers is to

improve implementation of the PPL at all levels through training, …”

• “The expected results include more efficient and cost-effective

procurement, fewer irregularities and lower risk of corruption, as well as … applying EU acquis”

• Training tailored for various categories

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Building a Strong System Together

Strong PP System

Government Civil Sector Business

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Strategy – Prevention of Irregularities

• Protection of rights in PP procedures
• Improvement of measures to prevent irregularities and fight

against corruption

• Raising awareness
• The National Anti-Corruption Strategy and public procurement

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PPL - Common measures for prevention of corruption

• CA is obliged to take any necessary measure to prevent corruption

in the course of public procurement planning, public procurement procedure, or implementation of public procurement contract, in

• rder to reveal corruption on time, to remedy or mitigate adverse

consequences of the corruption, and in order to sanction the actors

• f corruption in compliance with the law
• Communication
• Internal plan for combatting corruption in public procurement

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PPL - Internal Act and Procurement Control

• CA is obliged to adopt a bylaw to regulate the process of public

procurement procedure in detail, and in particular the manner of planning procurement (criteria, rules, and the way for determining public procurement subject and estimated values, method of market analysis and research), responsibility for planning, public procurement procedure targets, the manner

• f

executing

• bligations in the procedure, the manner of ensuring competition,

conducting and controlling public procurements, the mode for monitoring implementation of public procurement contracts

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PPL - Protection of Integrity of the Procedure

• Person who participated in planning of public procurement, in

preparing tender documents or separate parts thereof, and person related to him or her, may not act as a bidder or a bidder’s subcontractor, nor may cooperate with bidders or subcontractors in preparation bids. Otherwise, CA is obliged to refuse the bid and to immediately notify the competent state bodies thereon.

• Where bidder or applicant have, directly or indirectly, given,
• ffered or hinted some benefit, or tried to find out any confidential

information or to influence in any way CA’s actions during public procurement procedure, CA shall urgently notify the competent state bodies thereon.

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PPL - Duty to Report Corruption

• Person engaged in public procurement or any other person

employed by CA, as well as any interested person who possesses information on occurrence of corruption in public procurement, shall immediately notify thereon the PPO, the governmental body authorized for combatting corruption, and the competent prosecutorial office

• …may not get employment or…
• Person under Paragraph 1 of this Article may also address the

public if...

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PPL - Prohibition of working engagement with supplier

• Representative of CA who has in any way participated in public

procurement procedures or persons related with him or her, where total value of contracts awarded in these procedures to a specific supplier within the last year prior to termination of his or her office

• r employment exceeded 5% of total value of all contracts that this

contracting authority has concluded over that period, within the next two years after termination of office or employment with this contracting authority, may not...

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PPL – Competition Foul

• Declaration of Independent Bid
• In case of reasonable doubt in veracity of declaration of

independent bid, CA shall immediately notify thereon the

• rganization in charge of the protection of competition
• Each interested person or person employed or in any other way

working with an interested person, is obliged to notify the

• rganization for the protection of competition, if they are aware of

any information on violation of competition in public procurement procedure

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PPL – Competition Foul

• Organization authorized for protection of competition may ban a

bidder or an interested party from participating in public procurement procedure, where it determines that the bidder or the interested party violated competition rules in public procurement procedure within the meaning of the law governing protection of competition

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PPL – Conflict of Interest

• Conflict of interests for the purpose of this Law exists where...
• CA may not award public procurement contract to bidder in case
• f existing conflict of interest, where the existence of such conflict
• f interests affected or could affect the decision making in the

public procurement procedure

• The Republic Commission at the request of CA will approve the

concluding of contract under Paragraph 1 of this Article, provided that...

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Ex ante control - Civil Supervisor

• Where contracting authority conducts public procurement with

estimated value exceeding RSD 1 billion (EUR 8.200.000) the procedure shall be monitored by civil supervisor

• Persons eligible to be appointed for civil supervisors are prominent

experts in the domain of public procurement or in areas related to subject of public procurement

• Also eligible for civil supervisors are associations dealing with public

procurements, prevention of corruption, or prevention of conflicts of interests

• Civil supervisor shall be appointed by the PPO, not later than the day

set in annual public procurement plan as tentative day to initiate public procurement procedure, i.e., within 30 days from the day of endorsement of public procurement plan

Ex ante control - Civil Supervisor

• Contracting

authority may not initiate public procurement procedure before the appointment of civil supervisor

• Civil supervisor shall supervise public procurement procedure and,

to this end, shall have permanent insight into procedure, documents and communication between contracting authority and interested parties, i.e., the bidders

• Regulation on Civil Supervisor (Official Gazette of the RS, No.

29/13)

Ex ante control - The Opinion of the PPO on the justifiability

• f applying the negotiated procedure
• Prior to initiating negotiated procedure (under Paragraph 1, points

2) through 6) of Article 36 PPL) CA shall request opinion of the PPO

• n the justifiability of applying the negotiated procedure
• Within ten days from the reception of completed request, the PPO

is obliged to scrutinize the basis for applying negotiation procedure

• The PPO shall publish its opinion on the Public Procurement Portal

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Protection of Rights Procedure

• The protection of rights procedure is initiated by submitted request

for protection of rights, which may be filed against any action of the CA in a public procurement procedure

• Republic Commission and criteria of ECJ
• Body established by law
• Permanent nature of review body
• Compulsory jurisdiction
• Inter partes procedure
• Applying rules of law
• Independence

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Special Competences

• Monitoring of the implementation of its decisions
• Imposing of fines
• Annulment of contracts
• Control at CA
• Minor offence proceedings in the first instance
• Proposal to remove responsible person from office

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PPL - Null and Void Public Procurement Contract

• ...if concluded in contravention of the provisions of this Law governing

prevention of corruption and conflict of interest

PPL - Minor offenses

• If CA fails to communicate as prescribed by this Law, or to publish its

internal legal act and internal plan for combatting corruption in public procurement

• If CA fails to reject bid offered by persons involved in planning of

public procurement, tender documents or its parts, or persons who have collaborated with a bidder

• If CA concludes public procurement contract under existence of

conflict of interest

• If the bidder acts contrary to the provisions of Article 25 of this Law

(Prohibition of working engagement with supplier)

Criminal Code

• Soliciting and accepting bribes...
• Article 234a - Misfeasance in Public Procurement
• A responsible person in a company or other business enterprise

with capacity of legal entity or an entrepreneur, who in respect to public procurement submits an offer based on false information, or colludes with other bidders, or undertakes other unlawful actions with the aim to thus influence the decision of a CA

• ...responsible person or official in the CA who through abuse of

position or powers, by exceeding his powers or failure to discharge his duty violates the law

• r
• ther

regulations

• n

public procurement and thus causes damages to public funds

THANK YOU