Those who know a little about public procurement probably assume that all EU countries work to the same rules – the “EU Regulations” as we tend to say. The slightly more knowledgeable will know of the Directives that define how public procurement should be executed. But actually, because the EU Directives have to be translated into national legislation, there is considerable scope for national governments to make their own specific laws. That means the legislation that directly governs procurement is surprisingly different in different member states.
That is highlighted well by a useful new publication from major law firm, CMS Cameron McKenna, available here via the excellent Lexology website and titled the “CMS Toolbox of Remedies in CEE Public Procurement”.
The firm has taken a look at the EU Remedies Directive, which covers how bidders can challenge contracting authorities and the penalties if authorities have acted wrongly, across six eastern European countries. They are Hungary; the Czech Republic, Poland, Romania, Bulgaria and Ukraine. The toolbox contains a short one-page guide for each CEE jurisdiction and “aims to provide a helpful and handy overview”.
Ukraine is included “even though it is not a member of the European Union, because it is an important CEE country, where the significance of public procurement procedures is growing, and the rules of which were modernized recently in order to be closer to EU public procurement law”.
Looking at the material, it’s clear that there are pretty significant variations, as I’m sure we would find if we looked at the UK, Italy, France and Germany, for instance. The steps that bidders should take; who might be involved in adjudicating on claims; and the deadlines for challenges are all different to some extent country by country.
As CMS Cameron McKenna says, “In each CEE jurisdiction there are various remedies available for public procurements to ensure that related infringements may be reviewed as rapidly as possible. Accordingly, in public procurements it is crucial to react quickly and not miss any deadlines in order to successfully challenge the tender and address any questions. Therefore, we have compiled a comprehensive chart regarding the deadlines applicable in CEE jurisdictions”.
So, for example, in Hungary, challenges around infringements of procurement rules go to the Public Procurement Dispute Board rather than the “normal” courts, but any further judicial review is through the ordinary courts. In Bulgaria, the Competition Protection Commission (CPC) is responsible for reviewing appeals and challenges; but judicial review goes to the Supreme Administrative Court. In Romani, we have the well named “National Council for Solving Complaints” (the ‘Council’) or Consiliul National de Solutionare a Contestatiilor.
The timescales for making challenges are also quite different. Again, just as an example, in the Czech Republic, if you want to challenge what you perceive to be an unlawful conclusion of a public procurement contract, you have the earlier of 1 month after the publication of the contract award notice and 6 months after the conclusion of the public procurement contract. In many other cases, you only have 10 days to complain or even less in one or two cases.
All in all, this is a useful guide from Cameron CMS for companies and some interesting comparisons to be made by public authorities and those who are setting policy at national level.