Private sector interests in legal protection Tomaž Vesel First deputy president Court of Audit

1. Private sector interests in legal protection Tomaž Vesel First deputy president Court of Audit Slovenia tomaz.vesel@rs-rs.si Conference onPublic Procurement Review & Remedies Systems Dubrovnik 24-25 May 07

2. Sign the contract • Correct relationship with contracting authority • Arbitration • Low cost procedures • De facto independence of review bodies • Rapid decision • Clear explanation of decision • Damages • Same treatment below the tresholds, • in all PP and PPP procedures, utilities • Least conferences as possible

3. The legal framework? • EC Remedies Directives: • Rapid and effective remedies. • Independent review bodies. • Judicial review in last instance. • Interim relief • Set aside of procurement decisions. • Annulment of concluded contract • Set aside of award decisions (Alcatel doctrine) • Interim measures • Damages – substantive and consequental damage

4. Not in EU law: • Administrative or civil judicial review • Composition of review bodies • Number and size of review bodies • Rules of calculation of damages • Procedural law • Framework Agreements (public sector) • Competitive Dialogue • E-procurement, notably reverse auctions and dynamic purchasing systems

5. Directive 89/665/EEC Article 1 … 3. The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an allegedinfringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review.

6. Directive 92/13/EEC Article 1 … 3. The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting entity of the alleged infringement and of his intention to seek review.

7. C 129/04, Espace Trianon Article 1 of Council Directive 89/665/EEC … is to be interpreted as not precluding national law from providing that only the members of a consortium without legal personality which has participated, as such, in a procedure for the award of a public contract and has not been awarded that contract, acting together, may bring an action against the decision awarding the contract and not just one of its members individually. The same is true if all the members of such a consortium act together but the application of one of its members is held inadmissible.

8. C 230/02, Grossman Air Service 1. Articles 1(3) and 2(1)(b) of Council Directive 89/665/EEC …, must be interpreted as not precluding a person from being regarded, once a public contract has been awarded, as having lost his right of access to the review procedures provided for by the Directive if he did not participate in the award procedure for that contract on the ground that he was not in a position to supply all the services for which bids were invited, because there were allegedly discriminatory specifications in the documents relating to the invitation to tender, but he did not seek review of those specifications before the contract was awarded.

9. C 249/01, Werner Hackmuller Article 1(3) of Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, does not preclude the review procedures laid down by the directive being available to persons wishing to obtain a particular public contract only if they have been or risk being harmed by the infringement they allege. CASE: irregular bids? Decision of National Review Commission, 21.3.2007

10. C 249/01, Werner Hackmuller 2. Article 1(3) of Directive 89/665, as amended by Directive 92/50, does not permit a tenderer to be refused access to the review procedures laid down by the directive to contest the lawfulness of the decision of the contracting authority not to consider his bid as the best bid on the ground that his bid should have been eliminated at the outset by the contracting authority for other reasons and that therefore he neither has been nor risks being harmed by the unlawfulness which he alleges. In the review procedure thus open to the tenderer, he must be allowed to challenge the ground of exclusion on the basis of which the review body intends to conclude that he neither has been nor risks being harmed by the decision he alleges to be unlawful.

11. SLO APPRP Art. 12/5 Limitations for submitting review claims in procurement procedure: After expiry of the term set out for presentation of offers, the bidder may not submit a review claim for reasons that would or should have been known to him before expiry of such a term. C-230/02, Grossman Air Service

12. Exc.: C 327/00, Santex Council Directive 89/665/EEC, must be interpreted as imposing on the competent national courts, where it is established that, by its conduct, a contracting authority has rendered impossible or excessively difficult the exercise of the rights conferred by the Community legal order on a national of the Union who has been harmed by a decision of that contracting authority, an obligation to allow as admissible pleas in law alleging that the notice of invitation to tender is incompatible with Community law , which are put forward in support of an application for review of that decision, by availing itself, where appropriate, of the possibility afforded by national law of disapplying national rules on limitation periods, under which, when the period prescribed for bringing proceedings for review of the notice of invitation to tender has expired, it is no longer possible to plead such incompatibility.