© OECD

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Regional Conference for Public

Review Bodies in EU Enlargement

countries

Quality of PRB Decisions

Blerim DINA, PRB, Kosovo*

9 – 10 June 2016, Ohrid

This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ

Opinion on the Kosovo declaration of independence.

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Quality of PRB decisions

• What is the PRB?

• When did it start operations?

• Whom does it report to?

• Where can the PRB decisions be challenged ?

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Rules for submission of the appeal

• Law on Public Procurement no. 04/L-042, as amended and supplemented by Law no. 04/L-237, Law no. 05/L-068 and Law no. 05/L-092 has introduced two instances for submission of appeals.

1. Initially, a Request for review is submitted by the interested parties to the Contracting Authority, which conducts the procurement activity; and

2. In case the interested party is not satisfied with the decision issued by the concerned Contracting Authority, it may submit an appeal to the PRB.

• The appeal may be submitted to the PRB only after having conducted a precursory procedure aiming to solve the dispute

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How to ensure the involvement of special expertise beyond the legal education (such as finance, engineering, business administration and

technology) needed for public procurement review proceedings?

• PRB carries out its activity based on the PPL adopted by the Assembly and the Rules of Procedure of PRB adopted by the Board.

• PRB has 4 review experts and 4 staff members that have professional competence to review an appeal.

• Rules of Procedure of the PRB allow hiring of technical experts in cases when there is a need for special expertise or when specific skills are required for particular fields.

• In order to hire technical experts, the PRB advertises openings based on Article 29 of the Rules of Procedure of the PRB and hires them on “ad hoc” basis.

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How to ensure the involvement of special expertise beyond the legal education (such as finance, engineering, business administration and technology) needed for public procurement review proceedings?(2)

• Experts appointed by the PRB, are included in the register/roster of PRB technical experts.

• The PRB, when reviewing appeals involves experts from the PRB Register based on the needs and specificities of the appeal.

• The technical expert, having professional capacities for a particular field, shall work independently and provides the expertise about the appeal to the parties involved.

• The technical expert also participates in the hearing, and in the presence of parties, provides arguments in support of his opinion

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How to ensure the speedy resolution of the complaints and the quality

of the decisions at the same time?

• Any appeal submitted to the PRB is registered into the PRB’s archive, with one copy being sent to the CA against which the appeal was submitted, and is published at the same time in the PRB official website.

• Following the registration by PRB, its officials review it right away in order to ensure it meets the requirements from the PPL, and they must complete the review of the appeal within one (1) day after its receipt.

• If the PRB considers that the appeal does not meet the requirements of the law, it shall notify immediately the appellant in writing, using the fastest possible means, about the character and deficiencies found.

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How to ensure the speedy resolution of the complaints and the quality

of the decisions at the same time? (2)

• If the deadline for submission of the appeal has expired or it expires in less than four (4) days, the appellant shall have, after receiving the notification about this, four (4) days at his/her disposal to rectify the deficiencies and re-submit the appeal.

• If the deadline for submission of appeal has not expired yet and it does not expire in less than two (2) days, the appellant may re-submit the request at any time before the expiry of the deadline for submission.

• If the PRB considers that the appeal has been submitted timely and meets the requirements of the law, the PRB assigns immediately a review expert and establishes the review panel to review allegations of the appeal. Depending on the contract value, the review panel may be composed of 1 member, 3 members, or 5 members.

• PRB decisions are taken within 30 days after the submission of the appeal

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How to avoid focusing on purely formal errors and omissions?

• PRB has established such practices based on the law that all appeals received are checked if they satisfy the elements of the appeal as provided by the law.

• In order to avoid errors during the review of appeals, the PRB’s focus is to assign the expert of relevant subject matter.

• The relevant expert examines the allegations and based on specific expertise evaluates the respective appeal.

• If the review expert considers that the appeal should be reviewed by a technical expert, then the PRB assigns the technical expert, who will review the allegations based on his professional expertise.

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How to avoid focusing on purely formal errors and omissions? (2)

• The review panel ensures that during decision making there are no legal omissions and that decisions are issued in line with legal provisions governing public procurement and in line with other applicable legislation.

• The review panel decides by reviewing allegations on the basis of evidence presented by the parties, expert opinion, and after having scrutinized the evidence provided by all parties involved, or those that may have any legal or material interest.

• The PRB endeavors to avoid focusing on purely formal errors

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What are the conditions of quality decision making?

• In order to ensure quality during decision making, the appeal has to be reviewed and completed in a quick, fair and non-discriminatory way, aiming to achieve the right legal and effective outcome.

• The PRB respects the challenging nature of the review procedure

• All interested parties enjoy equal access in review proceedings and legal remedies

• The PRB acts as quickly as possible based on the alleged violation or in other matters of the appeal, and takes into consideration possible consequences of such measures or actions, it ensures protection of all interests of the parties that could be damaged including the public interest.

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What are the conditions of quality decision making? (2)

• Decisions of the PRB are fully in line with the PPL, LAP, applicable laws in the Republic of Kosovo* and practice of European Court.

• Based on the Rules of Procedure of the PRB, its Decision contain:

1. Introduction, enactment clause and reasoning

2. Any orders issued, include but are not limited to damages, annulment of contract signature, procurement procedure followed

3. If there were damages, and if yes, to what extent,

4. Rules for reimbursement of the appeal fee.

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• Questions???

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THANK YOU

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