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How to develop eProcurement solutions for national implementation – Policy Goals and Legal Framework

A case of Portugal: legal framework for

e-Procurement in Public Procurement

Sector

João de AlmeidaPublic Procurement Policy Seminar

Kiev, 1-2 Dec’ 2011

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1. ePP IN THE CONTEXT OF A BROADER LEGAL AND ECONOMIC REFORM OF

PUBLIC PROCUREMENT (2007 – 2011)

2. ePP AS A STRATEGIC TOOL FOR DELIVERING THE ENVISAGED RESULTS

3. THE LEGAL FRAMEWORK FOR ePP

4. MAIN FEATURES OF THE LEGAL REGIME

5. CONCLUSIONS & DISCUSSION2

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ePP IN THE CONTEXT OF A BROADER LEGAL AND ECONOMIC REFORM OF PUBLIC PROCUREMENT (2007 – 2011)

Overall reform environment (2007 – 2011)

Pressure from the market

Opportunity to improve efficiency in public administration

Three main pillars (Code + CPB + ePP)

The Code of Public Contracts

Transposition of EU 2004/17 and 18 Directives (compliance)

Coverage of the whole contract life cycle, beyond the formation stage (e.g. contract performance)

the provision of a mandatory usage of electronic means for all contracts valued above EUR 5.000

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• Transparency, equal treatment, fair competition• Compliance with National and EU Legislation• Sustainability (priority to economic and environmental elements)• Encouragement of SME’s access to public markets

• Economic: Increase savings in public procurement (contributing to sound and better usage of tax payers’ money);

• Environmental (green public procurement): gradually incorporate environmental requirements within the selection / qualification and award criteria in public tenders

Key values

Main goals

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The launch of a new central purchasing body (National Agency for Public Procurement) as the central tool towards a sustainable system

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5

NATIONAL SYSTEM OF PUBLIC PROCUREMENTKey stakeholders

ANCPNational Agency for Public Procurement

UMC

UMC

Public Entities

NISSION of ANCP is to increase the efficiency and savings of the Portuguese Public Administration

Public Entities

Cont

ract

ors

Supp

liers

Com

mun

ity

/ Soc

iety

Tax

paye

rs /

Citi

zens

Comm

unity / SocietyTax payers / Citizens

Governm

entM

oF

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Sourcing Aggregation Tendering Awarding/ Contract Ordering Invoicing Payment

e-sourcing e-aggregation e-tendering / e-awarding

e-contract

e-catalogu

ee-

orderinge-

invoicinge-

payment

Within the scope of the current technological model put in place by ANCP

The procurement model (components)

The e - procurement model (components)

Mandatory use since Nov’ 2009

A STRATEGIC TOOL FOR DELIVERING ENVISAGED RESULTS

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The legal framework for e-procurement (PT)

The Law making process: where policy makers and ICT experts meet Lawyers

Principles governing public procurement AND e-public procurement (EU, EBRD,OECD …)

Main sources: EU and National Law

The grounds for a trustworthy system: Specific features

E-signature

Documents transmission, opening and “warehousing”

Time and deadlines management: time stamping

Automated decision making versus exclusive competences of awarding/selection committee 7

THE LEGAL FRAMEWORK FOR ePP

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A short set of legislation focused on reliabilityLegal instrument Short description

A

Decree-Law No. 37/2007 Defines the National System of Public Purchases (also NSPP) and creates the National Agency for Public Purchases (also NAPP), as the responsible entity for the management of that system

Regulation 330/2009 Regulates the functioning of the National System of Public Procurement

B Decree-Law 18/2008 Approved the Code of Public Contracts (CPC)

C Decree-Law 143-A/2008 Electronic Platforms and data communication form

D

Regulation No. 701-A/2008 Approves the main standard forms of public procurement related contract notices that are published in the “Diário da República” (Portuguese Official Journal)

Regulation No. 701-B/2008 Setup of an Advisory Committee in charge of monitoring application of the Code of Public Contracts

Regulation No. 701-D/2008 Defines the model of statistical data to be reported by contracting authorities

Regulation No. 701-E/2008 Defines the model of the data reports to be completed and provided by contracting authorities in the Public Procurement Portal www.base.gov.pt

Regulation No. 701-F/2008 Regulates the establishment, operation and management of the Public Procurement Portal (www.base.gov.pt)

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Legal instrument Short description

D

Regulation No. 701-G/2008 Sets out the requirements and conditions of utilization of electronic platforms by the contracting authorities and regulates the terms of operation of those platforms

Regulation No. 701-H/2008 Approves the mandatory content of the program and the execution project of public works; the procedures and standards to be adopted in the design and phased elaboration of public works projects, called “Instructions for the drafting of works”; as well as the classification of works by category

Regulation No. 701-I/2008 Establishing the “Observatory of Public Works”, and its functioning rules

Regulation No. 701-J/2008 Defines the model of statistical data to be reported by contracting authorities

A – Institutional regulations towards a centralised national system of PPB – Code of Public ContractsC – Specific ePP related provisions D – Implementation provisions

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Institutional law

accreditation of e-platforms – license to operate)The process of accreditation is run by CEGER (an entity in charge of the government ICT networks, having no other involvement in public procurement)Independent external compliance audit to each provider / platform

Aggregation, centralization and CPBs help delivering the change towards ePP

Substantive Public Contracts Law

Mandatory use of electronic means The concept of “electronic means”Operations coveredSelection of means depending on the type of procedure

Consequences of non-complianceContract formed through a non-ePP tool (“paper-based procedure”) is null and void (toughest sanction in Portuguese Administrative Law)Disciplinary sanctions (e.f. fines) towards public entity management

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MAIN FEATURES OF LEGAL REGIME

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The success of the adoption of e-Public Procurement in Portugal is by and large due to the constructive commitment of all stakeholders, namely the already established Public eTendering platform operators with several years of experience mostly in the private market. All stakeholders involved in PP trust the system and tools and see ePP as a value added improvement.

Players involvedContracting Entities | Economic Operators | Public eTendering Platform Operators | External Auditors for Platform’s compliance auditing | National Certification Office of e-tendering Platforms – CEGER | National Agency for Public Procurement - ANCP | National Portal for Public Contracts – InCI (www.base.gov.pt) | Universities | Training Institutes | Lawyers | PP external consultants | Court of Auditors | Administrative Courts | Media | PR&Press | Political institutions | EU .................

Jurisprudence: so far there is no record of cases where the “e part” of the public procurement procedure is, in itself, the cause for dispute.

Impact on litigation rate: the Agency is currently assessing the possible impact of ePP on the litigation rate which is nevertheless being surely impacted by the recent transposition of the EU Remedies Directive (2007/66/CE)

2010|First full year of mandatory e-Public Procurement

e-sourcing e-aggregation e-tendering / e-awarding

e-contract

e-catalogue

e-ordering

e-invoicing

e-payment

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CONCLUSIONS & DISCUSSION 

The winner partnership/alliance towards the big change

GovernmentIndustry (ePP operators and economic operators interested in accessing public markets)Public Administrations (central, regional and local)

The success factors

Attitude changing model: Legal, Economic, Educational/Training, Social MarketingOverarching element: confidenceThree consistent pillars (Code, CPB, ePP)Perception of gains and advantagesFour Cs instead of Four Ps

How the role of Law and Lawyers will likely be in the next steps (end-to-end ePP coverage) ?

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Thank youjoao.almeida@ancp.gov.pt

www.ancp.gov.pt