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

1. How to developeProcurementsolutions for nationalimplementation– Policy Goals and Legal Framework A case of Portugal: legal framework for e-Procurement in Public Procurement Sector João de Almeida PublicProcurementPolicySeminar Kiev, 1-2 Dec’ 2011

2. ePP 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 & DISCUSSION

3. 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

4. The launch of a new central purchasing body (National Agency for Public Procurement) as the central tool towards a sustainable system Key values • 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 Main goals • 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

5. UMC ANCP National Agency for Public Procurement UMC NISSION of ANCP is to increase the efficiency and savings of the Portuguese Public Administration NATIONAL SYSTEM OF PUBLIC PROCUREMENT Key stakeholders Public Entities Public Entities Government MoF Community / Society Tax payers / Citizens Community / Society Tax payers / Citizens Contractors Suppliers

6. A STRATEGIC TOOL FOR DELIVERING ENVISAGED RESULTS • The procurement model (components) • The e - procurement model (components) Mandatory use sinceNov’ 2009 • e-sourcing • e-aggregation • e-tendering / e-awarding • e-contract • e-catalogue • e-ordering • e-invoicing • e-payment Within the scope of the current technological model put in place by ANCP

7. THE LEGAL FRAMEWORK FOR ePP • 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 versusexclusive competences of awarding/selection committee

8. A short set of legislationfocusedonreliability

9. A – Institutionalregulationstowards a centralisednationalsystem of PP B – Code of PublicContracts C – SpecificePPrelatedprovisions D – Implementationprovisions

10. MAIN FEATURES OF LEGAL REGIME • 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 covered • Selection of means depending on the type of procedure • Consequences of non-compliance • Contract 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

11. 2010|First full year of mandatory e-Public Procurement 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 trustthe system and tools and see ePP as a value added improvement. Players involved Contracting Entities | Economic Operators | Public eTenderingPlatform 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)

12. CONCLUSIONS & DISCUSSION • The winner partnership/alliance towards the big change • Government • Industry (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 Marketing • Overarching element: confidence • Three consistent pillars (Code, CPB, ePP) • Perception of gains and advantages • Four Cs instead of Four Ps • How the role of Law and Lawyers will likely be in the next steps (end-to-end ePP coverage) ?

13. Thank you joao.almeida@ancp.gov.pt www.ancp.gov.pt