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

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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 Almeida. Public Procurement Policy Seminar Kiev, 1-2 Dec’ 2011. - PowerPoint PPT Presentation

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Apresentao ISCTE 15 Dez 08 PRF

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

Joo de AlmeidaPublic Procurement Policy SeminarKiev, 1-2 Dec 2011Mod.017.001ePP IN THE CONTEXT OF A BROADER LEGAL AND ECONOMIC REFORM OF PUBLIC PROCUREMENT (2007 2011)

ePP AS A STRATEGIC TOOL FOR DELIVERING THE ENVISAGED RESULTS

THE LEGAL FRAMEWORK FOR ePP

MAIN FEATURES OF THE LEGAL REGIME

CONCLUSIONS & DISCUSSION2Mod.017.002

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

3Mod.017.00Transparency, equal treatment, fair competitionCompliance with National and EU LegislationSustainability (priority to economic and environmental elements)Encouragement of SMEs access to public marketsEconomic: 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 tendersKey valuesMain goals4The launch of a new central purchasing body (National Agency for Public Procurement) as the central tool towards a sustainable systemMod.017.0045NATIONAL SYSTEM OF PUBLIC PROCUREMENTKey stakeholdersANCPNational Agency for Public ProcurementUMCUMCPublic EntitiesNISSION of ANCP is to increase the efficiency and savings of the Portuguese Public AdministrationPublic EntitiesContractorsSuppliersCommunity / SocietyTax payers / CitizensCommunity / SocietyTax payers / CitizensGovernmentMoFMod.017.006e-sourcinge-aggregatione-tendering / e-awardinge-contracte-cataloguee-orderinge-invoicinge-paymentWithin the scope of the current technological model put in place by ANCPThe procurement model (components)

The e - procurement model (components)

Mandatory use since Nov 2009A STRATEGIC TOOL FOR DELIVERING ENVISAGED RESULTSMod.017.00The 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

Mod.017.00A short set of legislation focused on reliabilityLegal instrumentShort descriptionADecree-Law No. 37/2007Defines 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 330/2009Regulates the functioning of the National System of Public ProcurementBDecree-Law 18/2008Approved the Code of Public Contracts (CPC)CDecree-Law 143-A/2008 Electronic Platforms and data communication formDRegulation No. 701-A/2008 Approves the main standard forms of public procurement related contract notices that are published in the Dirio da Repblica (Portuguese Official Journal)Regulation No. 701-B/2008 Setup of an Advisory Committee in charge of monitoring application of the Code of Public ContractsRegulation No. 701-D/2008 Defines the model of statistical data to be reported by contracting authoritiesRegulation 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/2008Regulates the establishment, operation and management of the Public Procurement Portal (www.base.gov.pt)8Mod.017.009Legal instrumentShort descriptionDRegulation No. 701-G/2008Sets out the requirements and conditions of utilization of electronic platforms by the contracting authorities and regulates the terms of operation of those platformsRegulation 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 categoryRegulation No. 701-I/2008 Establishing the Observatory of Public Works, and its functioning rulesRegulation No. 701-J/2008 Defines the model of statistical data to be reported by contracting authoritiesA Institutional regulations towards a centralised national system of PPB Code of Public ContractsC Specific ePP related provisions D Implementation provisions Mod.017.00 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 meansOperations 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

10MAIN FEATURES OF LEGAL REGIMEMod.017.00The 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 Platforms 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 11Mod.017.001112

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) ?

Mod.017.00Thank you

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