Post on 25-Feb-2016
description
EBRD 2010 Regional Assessment
– Scope, Focus & Main Findings on the Public Procurement Law and Practice
in the EBRD region
Eliza NiewiadomskaLegal Transition Programme
European Bank for Reconstruction and Development
2
Assessment Concept
First assessment of the public procurement sector covering all EBRD countries of operations (29 countries) Specially designed benchmark reflecting critical elements of the public procurement process (the EBRD Core Principles) Research analysis structured around the Legal Efficiency Approach concept – a tool developed for evaluating commercial laws
3
Core Principles are based on recognised international standards:
– WTO GPA– UNCITRAL Model
Law– EU Directives– IFIs’ procurement
policies
Core Principles apply to the procurement process as a whole:
– pre-tendering– tendering– post-tendering phase
Public Procurement Legal Framework
Core Principles
Accountability
Integrity
Transparency
Fair competition
Economy
Efficiency
Proportionality
Reasonable exemptions
Enforceability
Stability
Assessment benchmark: EBRD Core Principles
4
Benchmarks & indicators (1)
1. Accountability of public sector spending. The legal framework should promote accountability across all stages of the procurement process, balancing public and business dimensions of the process.
2. Integrity of the procurement process. The legal framework should promote integrity between the procurement function, transparency in delivering government policy and value for money.
3. Adequate level of transparency. For public procurement to be acceptable to all stakeholders it should be seen to be transparent and objective.
Integrity Safeguards
5
Benchmarks & indicators (2)
EfficiencyInstruments
1. Competition. The legal framework should promote fair competition and prevent discrimination. Tenders and tenderers of equivalent status should be given equal treatment. Domestic preferences should not be allowed.
2. Economy. The law should enable public procurement to be accomplished professionally in a reasonable time.
3. Efficiency of the public contract. The legal framework should ensure value for money is achieved.
4. Value of proportionality. The formality of the public procurement procedure should reflect the scope and size of the contract. The contracting entity should align the value and scope of the contract with a choice of the procurement procedure.
6
Benchmarks & indicators (3)
Institutional&enforcement measures
Uniformity. The legal framework should be comprehensive and limit derogations to reasonable exemptions. The regulation should be unitary, comprehensive and cover all public contracts.
Stable, but flexible. To make the process efficient, stakeholders must learn their roles, rights and obligations, within a stable legislative framework. At the same time, the framework should be capable of flexible so as to accommodate the changing market.
Enforceability. Public procurement law should be easy to enforce. Regulatory and review and remedies mechanisms should be able to assess the compliance of the contracting entities and employ corrective measures when necessary.
Assessment Research Core Areas
‘law on the books’ - quality of public procurement legal framework
Regulatory Gap - what has been achieved and what remains to be done regarding development of legislation
‘law in practice’ - quality of local public procurement practice
Implementation Gap – a gap between standards and local public procurement practice
Country and sub-region groupings EU Member States in the EBRD Region
(Bulgaria, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia)
Balkan Countries and Turkey (Albania, Bosnia & Herzegovina, Croatia, FYR Macedonia, Montenegro, Serbia and Turkey)
Eastern European Countries and Russia (Belarus, Georgia, Moldova, Russia and Ukraine)
Caucasus and Central Asian Republics (Armenia, Azerbaijan, Kazakhstan, Kyrgyz Republic, Mongolia, Tajikistan, Turkmenistan and Uzbekistan)
Main Findings
EBRD Public Procurement Assessment Results:Total Compliance Rating in the EBRD region*
*Data not available for Azerbaijan, Mongolia, Kazakhstan and Turkmenistan
Uzbekistan
Belarus
Kyrgyz Republic
Bosnia and Herzegovina
Tajikistan
Slovak Republic
FYR Macedonia
Latvia
Lithuania
Poland
Hungary
Montenegro
Turkey
0 10 20 30 40 50 60 70 80 90 100
Total Compliance Rating: Legislation, Practice and Sustainability of Public Procurement
‘law on the books’ ‘law in practice’ total sustainabilityAlbania 83 81 82 51Armenia 73 80 76 47Azerbaijan 51 0 0 0Belarus 73 62 67 10Bosnia and Herzegovina 67 72 70 13Bulgaria 77 83 80 80Croatia 75 80 78 32Estonia 71 76 74 11FYR Macedonia 63 84 76 41Georgia 84 78 81 48Hungary 91 78 81 33Kazakhstan 69 0 0 0Kyrgyz Republic 64 73 70 30Latvia 77 80 78 30Lithuania 79 79 79 38Moldova 71 55 62 14Mongolia 71 0 0 0Montenegro 85 79 82 27Poland 69 88 79 22Romania 71 72 72 38Russia 73 79 76 37Serbia 71 67 70 27Slovak Republic 73 77 74 35Slovenia 75 81 79 0Tajikistan 61 80 72 56Turkey 81 86 83 55Turkmenistan 26 0 0 0Ukraine 59 73 67 22Uzbekistan 49 70 60 71
EBRD Public Procurement Assessment Results:Total Compliance of the National PP Legislation
19
15
2 2
Very high High
Satisfactory Low
Very low
MontenegroGeorgiaAlbaniaTurkeyLithuaniaBulgariaLatviaCroatiaSlovenia
UkraineAzerbaijan
UzbekistanTurkmenistan
Hungary
Slovak RepublicArmeniaRussiaBelarusMongoliaMoldovaSerbiaRomaniaEstoniaKazakhstanPolandBosnia and HerzegovinaKyrgyz RepublicFYR MacedoniaTajikistan
EBRD Public Procurement Assessment Results:Total Compliance of the Local PP Practice
Very high HighSatisfactoryLowVery lowNo data
PolandTurkeyFYR MacedoniaBulgariaSloveniaAlbaniaArmeniaTajikistanCroatiaLatviaMontenegroLithuaniaRussiaGeorgiaHungarySlovak RepublicEstonia
UkraineKyrgyz RepublicBosnia and HerzegovinaRomaniaUzbekistanSerbiaBelarus
Moldova
AzerbaijanKazakhstanMongoliaTurkmenistan
15
41
7
EU countries - Summary of Results
Average high to very high compliance with the benchmark
PP legislation ensures competition, transparency, legal and institutional PP framework is comprehensive
Good procurement capacity, in practice local contracting entities adopt internal procurement rules to increase economy and efficiency of procurement
Room for further improvement – procurement planning, methods of contract valuation, eProcurement solutions, public contract management, openness to other than national currencies and languages
EU countries: the case of Hungary
Very high compliance in ‘law on the book’ assessment
High compliance in local practice assessment
Implementation Gap:– transparency– enforceability – proportionality
1. Accountability, 2. Integrity, 3. Transparency, 4. Competition, 5. Economy of the process, 6. Efficiency of public contract, 7.
Proportionality, 8. Uniformity, 9. Stability, 10. Flexibility, 11. Enforceability.
‘law on the books’practice
Balkan Countries & Turkey - Summary of Results Average medium to high compliance with the
benchmark PP legislation promotes competition and
transparency High scores in the enforceability indicators due to
dedicated mechanisms (simple and fit to context) Medium procurement capacity but widely
standardised tendering documents, notices and reports
Room for further improvement: economy and efficiency of procurements, eProcurement solutions, procurement capacity
Balkan Countries & Turkey: the case of Turkey
High compliance in legislation and local practice assessment
Implementation Gap in integrity indicators
Strengths in practice:– Stability of the process– Focus on economy and
efficiency of procurements‘law on the books’
practice
1. Accountability, 2. Integrity, 3. Transparency, 4. Competition, 5. Economy of the process, 6. Efficiency of public contract, 7.
Proportionality, 8. Uniformity, 9. Stability, 10. Flexibility, 11. Enforceability.
Eastern European Countries & Russia - Summary of Results Average medium to high compliance with the
benchmark PP legislation promotes competition and
transparency Inadequate, complicated or expensive enforcement ‘Combating corruption, ignoring efficiency’ Room for further improvement – economy and
efficiency of procurements, eProcurement solutions, procurement capacity, removing barriers to foreign tenderers
Eastern European Countries & Russia: the case of Georgia
High compliance in legislation and local practice assessment
Strengths in practice:– Appropriate balance
between integrity safeguards and efficiency instruments
– Focus on economy and efficiency of procurements
– Proportionality‘law on the books’practice
1. Accountability, 2. Integrity, 3. Transparency, 4. Competition, 5. Economy of the process, 6. Efficiency of public contract, 7.
Proportionality, 8. Uniformity, 9. Stability, 10. Flexibility, 11. Enforceability.
Caucasus & Central Asian Republics - Summary of Results Average low to medium compliance with the
benchmark PP legislation based on outdated standards is now
incomprehensive Inadequate, complicated or expensive enforcement Room for further improvement – implementing both
integrity safeguards and efficiency instruments, eProcurement solutions, procurement capacity, removing barriers to foreign tenderers
CIS & Mongolia: the case of Armenia
Medium compliance in legislation assessment
High compliance in practice assessment
Regulatory Gap: Institutional framework
Strengths in practice: Focus on economy and efficiency of procurements
‘law on the books’practice
1. Accountability, 2. Integrity, 3. Transparency, 4. Competition, 5. Economy of the process, 6. Efficiency of public contract, 7.
Proportionality, 8. Uniformity, 9. Stability, 10. Flexibility, 11. Enforceability.
Summary of Results
Several regulatory gaps in most of the countries in the EBRD region
Substantial implementation gaps or the opposite, where practice is driven by the market
Frequently unbalanced legal frameworks; significant gaps in both integrity safeguards and efficiency instruments
Outdated legislation regarding communication: no electronic communication enabled and usually no access to tender documentation on the Internet, eProcurement is uncommon
Insufficient attention to the procurement capacity and qualification of public procurement staff
Review mechanism available, but frequently only administrative Low fees for tender documents but still high participation costs
due to the formal requirements
Trends in the EBRD Region PP Legislation: low to medium compliance Local PP Practice: medium to high compliance Regulatory Institutions: frequently lacking capacity Sustainability: a new concept, not implemented in
many countries Adequacy of policy-making: frequently unbalanced or
irresponsive to local business culture and market requirements
eProcurement: generally unavailable, some countries are advanced (Albania, Armenia, Lithuania, Turkey)
Thank you for your attention.