Public procurement anti-corruption regulations. Polish experiences.

Transcription

1 PUBLIC PROCUREMENT OFFICE CENTRAL ANTI-CORRUPTION BUREAU Public procurement anti-corruption regulations. Polish experiences. Hubert Nowak Vice President, Public Procurement Office Wojciech Śmigielski Depute Director of Control Proceedings Department Central Anti-Corruption Bureau Kyiv, Ukraine, May 2017

2 Public procurement market in Poland - general data for billion PLN (ca 38 billion Euro) value of awarded public contracts; number of awarded public contracts; structure of the public procurement market in Poland in terms of types of the public contracts awarded:

3 Public procurement market in Poland - general data for entities with status of contracting authority; economic operator could be almost everyone, i.e. natural persons, legal persons, organisational units not having legal personality or above mentioned entities bidding together (consortia); two official publicators for publication of contracts notices: Official Journal of the European Union for contracts above the EU thresholds; Public Procurement Bulletin for contracts below the EU thresholds average number of bids in a single public procurement procedure: 2,65 per public procurement procedure above the EU thresholds; 2,90 - per public procurement procedure below the EU thresholds;

4 Public procurement market in Poland - general data for 2015 average length of a public procurement procedure: 85 days procedure above the EU thresholds; 35 days - procedure below the EU thresholds; 98 days public procurement procedure for works with estimated value above the EU thresholds;

5 Public procurement market in Poland - general data for 2015 controls conducted by the President of the Public Procurement Office: 231 total number of controls conducted in 2015, comprising: obligatory ex-ante controls; 72 - ad-hoc controls; 29 - ad-hoc controls based on the notification of the non-competitive procedure legal actions of the PPO in light of infringement of the Public Procurement Act: 90 notifications to the Public Finance Discipline Officer on violation of public finance discipline; 2 notifications to the prosecutor s office on suspicion of committing an offence; 22 financial penalties imposed by the PPO President; 2 applications to the Court for annulment of the contract (and additional 1 for annulment of the annex).

6 Public procurement market in Poland - general data for 2015 number of appeals submitted by economic operator s and judgments of the National Appeal Chamber the independent quasi-judicial review body (the appeals refer to irregularities in the public procurement procedure) appeals, from among of which: 21% - admitted by the National Appeal Chamber ; 16% - admitted by contracting authority; 63% - dismissed or rejected.

7 Public procurement market in Poland - general data for 2015 types of the public procurement procedures: 1) open tendering; 2) restricted tendering; 3) negotiated procedure with notice publication; 4) competitive dialogue; 5) innovation partnership (since July 2016); 6) electronic bidding; procedures initiated by publication of the notice 1) negotiated procedure without publication; 2) single-source procurement; 3) request-for-quotation; procedures initiated without publication of the notice

8 Public procurement market in Poland - general data for 2015 Public procurement procedures in numbers: Type of procedure Years/Percentage of the procedures Open tendering 82,19% 83,39% Single-source procurement 13,42% 11,75% Request-for-quotation 3,14% 3,55% Restricted tendering 0,74% 0,83% Electronic bidding 0,21% 0,27% Negotiated procedure without 0,21% 0,13% publication Negotiated procedure with notice 0,08% 0,07% publication Competitive dialogue 0,01% 0,01% Innovation partnership (since July 2016) not existed not existed

9 Polish public procurement system legal framework Directive no 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (Official Journal of the European Union no UE L 94 of 28 March 2014, p. 65); Directive no 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (Official Journal of the European Union no UE L 94 of 28 March 2014, p. 243); The Act of 29 January 2004 (Polish) Public Procurement Law (Journal of Laws of 2015, item 2164 with changes); Implementation of the above directives was made by amendment of the Act of 29 January Public Procurement Law (PPL) adopted on 22 June 2016 (Journal of Laws of 2016, item 1020).

10 Main recent amendments The main goals of the recent amendment to the PPL: 1) simplification and increased flexibility of the public procurement procedures by: a) facilitation of use of negotiations as a way of clarifying contract terms with bidders and obtaining the services, goods or works that best suit to the contracting authority s needs; b) reduction of formal duties at the stage of application for a contract: at the stage of submission of tenders, economic operator encloses to the bid only statement as an initial confirmation that he is not subject to exclusion and complies with the conditions for participation in the procedure; before awarding a contract, contracting authority shall call on the economic operator whose tender has been evaluated as the best to submit documents confirming the contractor is not subject to exclusion and complies with the conditions for participation in the procedure;

11 Main recent amendments 2) promotion and support for non-economic objectives such as environmental protection, social inclusion, or innovation, by among others: a) emphasis on choosing the most advantageous bid, based on cost effectiveness and on award criteria other than price by limiting the use of the lowest price criterion; b) introduction of the new type of procurement procedure - an innovative partnership - aimed at acquiring innovative products and services not yet available on the market; c) promotion of social inclusion of disadvantaged persons and their integration on the labor market by amending provisions which allow to reserve the right to compete for a contract only for contractors whose main activity is social inclusion of such persons and which employ at least 30% of people belonging to disadvantages categories;

12 Main recent amendments 3) better access to the public procurement procedures for small and medium-sized enterprises (SMEs) by: a) facilitating the division of the contract into lots, which usually are better accessible for SMEs; b) introducing limitations as regards the conditions that might be determined by the contracting authority with reference to the average annual turnover of the bidder - up to twice the estimated value of the contract; 4) introduction of more flexible rules for the modification of public procurement contracts; 5) simplification of procedures for awarding so called social and other specific services such as legal services, hotel services, catering, cultural services, health services.

13 Trainings provided by the Public Procurement Office devoted to new regulations The Public Procurement Office organized in 2016 : 1) 8 conferences in the largest Polish cities, attended by about 2500 representatives of all parties involved into the public procurement procedure; 2) one of the above mentioned conferences was transmitted on-line; 3) 10 central trainings (in Warsaw), attended by about 700 participants.

14 Anti-corruption regulations in the Public Procurement Law 1) open tendering and restricted tendering (initiated by the publication of the contract notice), which are considered to be the most competitive procurement procedures are the basic procedures provided for in the PPL; 2) other procedures and particularly those which are not initiated by publication of the contract notice may be used exceptionally when certain statutory requirements are met; 3) mandatory publication of the tender documents on the websites - in prevail types of procedures; 4) obligation to draw up by Contracting Authorities and post on their websites plans of the contract award procedures which they intend to conduct in a given financial year; 5) obligation to comply with minimum time limits for submission of tenders; 6) Contracting Authority obligation (at the request of any participant) to provide copies of other tenders submitted in the procedure;

15 Anti-corruption regulations in Public Procurement Law 7) mandatory, collegial tender committee for procedures above EU thresholders; 8) mandatory exclusion of the Contracting Authorities' employees carrying out activities in the procedure in the event of a conflict of interest with the potential contractor. Each person carrying out activities in the procedure shall submit under the pain of criminal liability, in a written form a statement on the lack or existence of the conflict of interest; 9) obligation of the Contracting Authority to set up the supervision team in the case of a contract for works or services of a value equal to or higher than a PLN equivalent of EUR The team is responsible for supervision of the execution of the contract. At least two members of the team are appointed to the tender committee; 10)obligation to inform participants about results of the procedure, classification of the tenders (with scores), justification of exclusion of the bidder and justification of rejection of the bid;

16 Anti-corruptions regulation in public procurement law 11)legal protection measures: granted to bidders as well as to other persons if they have or had interest in being awarded the contract and suffered or may suffer a damage as a result of the violation of the provisions of the Public Procurement Law by the Contracting Authority; types: appeal - shall only be admissible against actions incompliant with the Public Procurement Law, performed by the Contracting Authority in the course of contract award procedure or against failure to such Law which the Contracting authority is bound to perform under this Law. Resolved by specialized body The National Appeal Chamber, set up in Warsaw; complaint to the court complaint against the National Appeal Chamber. Resolved by the district court competent for the seat or place of residence of the Contracting Authority;

17 Anti-corruptions regulation in public procurement law continuation 12)control of the public procurement procedures executed by the President of Public Procurement Office: the objective of control is to check the conformity of contract award procedures with the Public Procurement Law; types of the controls: ex-ante control of contracts co-financed from the EU funds conducted before signing the contract (the legal ban to sign the contract before termination of such type of the control) if the value of contract or framework agreement for works - is equal to or exceeds the PLN equivalent of EUR and for supplies or services - is equal to or exceeds the PLN equivalent of EUR ; ad hoc control may be initiated ex officio or on request (each interested person or entity) in case of justified presumption, that in course of the contract award procedure a breach of the provisions of the Public Procurement Law appeared, which might have influenced the result;

18 Administrative bodies involved in public procurement controls/audits in Poland 1) Public Procurement Office; 2) Supreme Audit Office; 3) Regional Accounting Chambers; 4) Central Anti-Corruption Bureau; 5) Prosecutor s Office; 6) Police.

19 Administrative bodies involved in public procurement controls/audits in Poland The scope of controls/audits executed by each of institutions involved in public procurement controls/audits is different, but following factors should be indicated as main elements analyzed within such controls/audits: legality efficiency effectiveness reliability

20 Cooperation with social partners - examples Active role of NGO s, for example Batory Foundation. Two projects in this field, financed from EU funds, are implemented by Stefan Batory Foundation in cooperation with Polish audit bodies (i.e. Public Procurement Office, Supreme Audit Office, Central Anti-Corruption Bureau). 1) Irregularities Risk Barometer (IRB) 2) Integrity pact

21 Cooperation with social partners - Irregularities Risk Barometer (IRB) IRB - a statistical index made up of nine components ("red flags"), indicating that given tender from the moment of publication to the decision on the selection of the bidder is under the risk of irregularities. The indicators are: (1) tender procedure, (2) length of the description of the subject of the tender, (3) length of the description of the eligibility criteria, (4) number of required certificates, (5) weight of the non-price criteria, (7) number of days from announcement to closure of bidding phase, (8) number of days from closure of bidding phase to selection of contractor (9) single bidder. IRB enables risk analysis for individual tenders, issuers and bidders, as well as for selected markets, periods, etc., in real time. IRB is designed primarily for the procurement market participants, the media and watchdog CSOs (especially local). Anyone can access and use IRB by visiting website: The IRB was created by Stefan Batory Foundation, but in consultation, among others, with: Public Procurement Office, Central Anticorruption Bureau and Supreme Audit Office.

22 Cooperation with social partners Integrity Pacts (IP) Integrity Pact (IP) - a contract between a contracting authority and economic operators bidding for public contracts that they will abstain from corrupt practices and will conduct a transparent procurement process. IP also includes a separate contract with a civil society organization which monitors that all parties comply with their commitments. EC DG Reggio and TI pilot project Integrity Pacts Civil Control Mechanism for Safeguarding EU Funds. It aims to explore and promote the use of IPs for safeguarding EU funds against fraud and corruption, and as a tool to increase transparency and accountability, enhance trust in procurement market. Currently is implemented in 11 EUMCs in cooperation with 15 CSOs. The role of PPO (1): expert support, translation of TI handbook on IPs, preliminary assessment of the suitability of IP among contracting bodies, participation in consultations of the IP. The role of PPO (2): Cooperation with parties involved in IP implementation Ministry of Development, Stefan Batory Foundation (monitoring CSO). The role of PPO (3): audit of the investment covered by the IP. More information on the pilot of IP in Poland and other countries: o Information on IP pilot in Poland o Polish IP CIWOSCI%201%20MODUL%20SKAN.pdf o Information on IP pilot in the EU

23 . Thank you! Public Procurement Office

24 The CBA was established by the Act of June 2006 on the Central Anticorruption Bureau which entered into force on 24 July 2006 Corruption in public and economic sector in particular govermental institutions and local goverment COMBATING Activity which endangers State s economic interest

25 CBA s activity Recognition Prevention Detection Prosecution EDUCATION & ANTICORRUPTION INFORMATION

26 Polish Public Procurement anti-corruption system Legislation Prevention Control and Investigation NGO s

27 Prevention and education Fraud and Corruption Awareness Handbook Cooperation with World Bank Vice Integrity Recommendations on anticorruption proceedings by using the public procurement procedures Practical guide for public offials to carry out a public procurement procedure

28 Central Anti-corruption Bureau e-learning training platform launched in May 2014

29 Central Anti-corruption Bureau e-learning training platform Three thematic courses: Corruption in public administration Corruption in bussiness Social effects of corruption Basic features: interactive animations with dialogues audio/video presentations expert-moderated forum knowledge test as an element of each e-learning course

30 Central Anti-corruption Bureau e-learning training platform UNIQE USERS as of April e-learning training platform - english version until now 320 users, inter alia: Russia 19 Ukraine 17 Lithuania 16 Slovakia 14 Hungary 6 Romania 5 Czech Republic 5 Course completion confirmed by an automatically generated certificate

31 Central Anti-corruption Buerau analytical activities Pre-control analysis economic decisions Analysis of economic decisions - generally

32 Central Anti-corruption Buerau control activities Control economic decisions Control of economic decisions - generally 40 Control of public procurement Control of economic decisions - generally Initiated in 2014 Initiated in 2015 Initiated in Control of public procurement Control of economic decisions - generally 20 Control of public procurement

33 Central Anti-corruption Buerau control and analytical activities Post-control actions Post-control actions Controls launched in 2014 Controls launched in 2015 Pre-control analysis in 2014 Pre-control analysis in 2015 Notice to the Public Finance Discipline Office for violation of public financial discipline Notice to the prosecution office for suspicion of committing an offence

34 Liability for breach of provisions at public procurements LIABILITY DISCIPLINARY PENAL VIOLATION OF THE PROCEDURES BY PUBLIC SECTOR ENTITIES COMMITTING AN OFFENCE DEFINED IN THE PENAL CODE

35 Liability arising under the Act of 17 December on Liability for the Breach of Public Finance Discipline (Journal of Laws of 2005 no. 14, as amended) Investigation is led by the Public Finanse Auditor In first instance the sentence is given by the Judgement Commission on violation of public financial discipline In second instance the sentence is given by the Main Judgement Commission on violation of public financial discipline

36 Penalties for violation of public financial discipline Admonition Rebuke Penalties for violation of public financial discipline Cash penalty Prohibition of related functions with the use of public funds

37 Types of corruption crimes Art. 305 Penal code hindering a public tender Art. 228 Penal code passive bribery/venality Art. 229 Penal code active bribery Art. 230 Penal code paid favoritism Art. 230a Penal code trading in influence Art Penal code abuse of power Art. 233 Penal code false testimony Art. 250a Penal code voting bribery buying/selling votes Art Penal code intellectual forgery/attesting an untruth in document Art. 296a Penal code economic corruption/corruption of managers Art. 46 Act on sport sports corruption Art. 47 Act on sport participation in betting Art. 48 Act on sport counterpart of the offences under art. 230 and 230a of PC Art. 54 Act on reimbursement of Medicines, Foodstuffs Intended for Particular Nutritional Uses and Medical Devices refund bribery

38 Liability under the Penal Code Act of 6 June 1997 (Jornual of Laws of 1997, no 88, item 553, as amended) Art. 305 Penal code - hindering a public tender Anyone who, in order to achieve a material benefit, prevents or obstructs a public tender, or acts in concert with another entity to the detriment of the owner of property or an entity or institution for which the tender is to be held is liable to imprisonment for up to three years. Anyone who, in connection with a public tender, spreads false information or withholds circumstances of significant importance to the conclusion of the agreement that is the subject of the tender, or acts in concert with another entity to the detriment of the owner of property or an entity or institution for which the tender is to be held, is liable to the same penalty.

39 Number of corruption offences in Poland /2016/ registered in the National Criminal Information Centre Type of offence /articles/ Police Internal Security Agency CBA Prosecu tion offices Border Guard Military Police Total 228 PC /passive bribery/ 229 PC /active bribery/ 230 PC /paid favoritizm/ 230a PC /trading in influence/ PC /abuse of power/ 250a PC /voting bribery/ PC /intellectual forgery-document/ 296a PC /economic corruption/ 305 PC /hindering a public tender/ 46 Act on sport /sports corruption/ 47 Act on sport /participation in betting/ 48 Act on sport /counterpart of the offences under art. 230 and 230a of PC/ 54 Act on reimbursement of medicines, Foodstuffs Intended for Particular Nutritional Uses and Medical Devices /refund bribery/ Total

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