REPORT ON WORKSHOP PRESENTING THE PROJECT REPORT ON THE IMPLEMENTATION OF THE EU CONCESSIONS DIRECTIVE INTO UKRAINAIN LAW. Ms Anastasia Kalina

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1 HARMONISATION OF PUBLIC PROCUREMENT SYSTEM IN UKRAINE WITH EU STANDARDS REPORT ON WORKSHOP PRESENTING THE PROJECT REPORT ON THE IMPLEMENTATION OF THE EU CONCESSIONS DIRECTIVE INTO UKRAINAIN LAW Ms Anastasia Kalina November 2015 A Project funded by the European Union and implemented by a Consortium led by Crown Agents Ltd

2 The contents of this Report are the sole responsibility of the Crown Agents and its Consortium partners and the opinions expressed in this Report are not to be understood as in any way reflecting an official opinion of EUROPEAID, the European Union or any of its constituent or connected organisations. 2

3 ABBREVIATIONS EU EU Concessions Directive MEDT PP PPL European Union Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts Ministry of Economic Development and Trade of Ukraine Public Procurement Public Procurement Law: Law of Ukraine On the implementation of Public Procurement (No VII) of 10 April

4 TABLE OF CONTENTS Page 1. Introduction 5 2. The Workshop 6 Annexes 8 Annex 1: Workshop Programme 9 Annex 2: Presentations of Mr Steen Bruun-Nielsen 10 Annex 3: List of participants 21 Annex 4: Questionnaire 22 4

5 1. INTRODUCTION The EU funded Project Harmonisation of Public Procurement System in Ukraine with EU Standards commenced work in Kyiv on 11 November The general objective of the Project is to contribute to the development of a solid and consistent public finance management through the establishment of a comprehensive and transparent regulatory framework for public procurement, an efficient public procurement institutional infrastructure, the accountability and integrity of public authorities in regard to public procurement and the development of the Ukrainian state aid system. The Project is currently providing priority assistance in regard to the planning of public procurement reforms in parallel with specific assistance towards necessary changes in public procurement legislation in Ukraine. In addition, the Project is supporting the strengthening of the Ministry of Economic Development and Trade (MEDT) and the Anti-Monopoly Committee of Ukraine (AMCU) as the main institutions responsible in the public procurement system of Ukraine and improved coordination between these entities and other entities in charge of financial control of public procurement activities. In accordance with the approved planning for the Project, the work of the Project is organised into 5 Components. Project Component 2: Public Procurement - Strategy and Legislation includes a specific Sub-Component 2.2 focused on: Approximation of Public Procurement legislation with EU Directives. As part of its programme, the Project convened a Workshop to present the main ideas concerning the approximation of the EU Concessions Directive with Ukrainian legislation. The Workshop Programme is attached to this Report as Annex 1. The purpose of the workshop was to present the findings and ideas of a new Project Report on the Implementation of the EU Concessions Directive into Ukrainian Law, and discuss the recommendations in the Report. The Report provides an introduction to the concept, characteristics, history and use of Concessions and goes on to present the background and content of the EU Concessions Directive. The main part of the Report includes a comparison between the EU Concessions Directive and the other EU Public Procurement Directives and a comparison between the EU Concessions Directive and the exiting Ukrainian Concessions legislation. Based on this comparison, the Report includes a number of recommendations for common rules under a new chapter to be included in the Law on Public Procurement (PPL). The Workshop was attended by 15 persons - officials from the Parliament, the Cabinet of Ministers, the MEDT, the State Financial Inspection, Kyiv City Administration etc. (the participation list is attached to this Report as Annex 3). 5

6 2. THE WORKSHOP Mrs Liliia Dudnik, Deputy Director of the Department for Public Procurement Regulation, Ministry of Economic Development and Trade of Ukraine opened the workshop. She welcomed the Project experts and noted the continuing strong support being provided by the Project. Mrs Dudnik stated that concessions issues are included into the Road Map to be adopted according to EU-Ukraine Association Agreement. Therefore, the event provides an important opportunity to discuss ways towards approximation of Ukrainian legislation to EU standards in regards to the possible application of the EU approach on concessions in Ukraine. Mr Eugene Stuart, Team Leader, EU funded Project Harmonisation of Public Procurement System in Ukraine to EU Standards stated that for many years there was a situation under the EU Public Procurement Directives where it was unclear if and to what degree they applied to concession contracts i.e. agreements with the State granting special or exclusive rights to certain business undertakings. This has now been largely resolved by the new EU Concessions Directive of He highlighted the purpose of the present Report which is to clarify differences between the various Ukrainian Concessions laws and the EU Concessions Directive and to explore the possibility to adopt common rules for the competitive process, e.g. in the form of a special chapter in the PPL. The analysis also considers whether special rules may be required within certain sectors and the extent to which the EU Concessions Directive allows this. He added that the issue of concessions and the existing legislation in Ukraine spans both the public procurement reform activities of the Project and its work on the underlying issues in creating and operating the new State aid system. Mr Steen Bruun-Nielsen, Senior Public Procurement Expert presented the Report on the Implementation of the EU Concessions Directive into Ukrainian Law to the workshop. The presentation of the Report was divided into two parts (see Annex 2): The Concept of Concessions and the EU Concession Directive; Main differences between the Directive and existing Ukrainian Legislation and suggestions for approximation. The presentations addressed the following issues: - Overview of the Report content: the concept and use of Concessions within EU; background and content of the new EU Concession Directive; comparison with existing EU directives on public procurement; comparison with existing relevant Ukrainian legislation and conclusions and recommendations concerning common rules under the PPL; - Background to EU Regulation: EU public procurement directives apply only partially to concessions BUT principles of EU law apply to the award of any concession contract (C-324/98, Telaustria) - Main elements of the EU Concessions Directive: applies to contacts of 5 million and above; exemptions similar to those of the EU Public Procurement Directives; no specific tender procedures defined; however, requirements of principle to selection/award criteria, documentation of procedures, structure of any negotiation phases; restrictions as regards changing of contract and duration; requirements for the tender dossier (technical 6

7 specifications); exclusion grounds as in the EU directives; content of notices and their publication; remedies as in the EU Public Procurement Directives. NB! similar rules to the EU Public Procurement Directives on a number of other points (procuring entities, mixed contracts etc.); - Relevant Ukrainian Legislation: Law On Concessions, Law On Concessions for the Construction and Maintenance of Roads, Law On Specific Aspects of Granting Community- Owned Water and Thermal Energy Supply and Waste Water Disposal Facilities on Lease or Concession, Law On Public-Private Partnership, Law On Specific Aspects of Leases or Concessions of State-Owned Fuel and Energy Sector Facilities, Law On Production Sharing Agreements and various secondary legislation; - Focus of comparison: definitions, thresholds, mixed contracts, tender dossier (technical specifications), tender process (criteria, publication etc.), contract duration and management, complaints; - Comparison: Procuring entities, thresholds, valuation, mixed contracts Ukrainian legislation includes very general rules on entities and nothing as regards valuation and mixed contracts; Technical specifications Ukrainian legislation includes very general requirements; Publication Ukrainian legislation varies greatly as regards time limits and publication requirements; Tender procedures, including award /selection criteria Ukrainian legislation shows great variation and varying degree of transparency; Contract duration and scope for changing contracts Ukrainian legislation differs as regards duration and scope for changing contracts; Complaints No specific complaints procedures other than normal courts. - Conclusions: to introduce common definition of concessions (+ distinction concessions/other public contracts), AND Introduction of common tender procedures in special chapter of PPL: creates clarity and coherence in the interest of procuring entities and enterprises and facilitates future alignment with EU legislation; - Recommendations: exemptions, technical specifications, termination and modification of contracts, tender procedures pre-qualification criteria and complaints ~ rules that are virtually identical to those of the EU Public Procurement Directives ~ simple reference to the PPL; need to modify the Ukrainian Concessions legislation and not merely refer to PPL provisions ~ special rules required in especially four areas; - The four areas: (1) Thresholds - the turnover criterion as second criterion ; (2) Time limits and publications; (3) Award criteria - include investment as a specific criterion and further aspects of risk allocation and (4) Contract duration; - What will the new PPL chapter look like? (special rules in the four areas and one provision making reference to the provisions in the PPL where only a reference is required and which are applicable to concessions as well as public contracts). 7

8 Senior Public Procurement Expert, Mr Oleksandr Shatkovskiy also pointed to the need for further sweeping changes: to merge the existing 6 Laws on concessions into the one single law. Such codification should be accompanied by changes to the PPL: amending Article 2(4) referring to this single act. Also, the information on concession contract opportunities should be published in one place e.g. the Public Procurement Web-Portal. Workshop Evaluation The participants were invited to complete an evaluation of the event (see Questionnaire at Annex 4) in order to summarise their views and provide feedback. The assessment of responses from 11 participants revealed an overall satisfaction with all aspects of the event. In particular, the event scored 4.88 (of a total of 5) in regard to the presentations made and there was strong positive feedback as to the novelty of the information provided. The overall score of 4.27 (of a total of 5) was somewhat low; but probably reflects the fact that the subject matter and the specific proposals addressed certain officials who are not yet prepared to take this issue fully on board. This may also point to a need in the future for the MEDT to work further with other interested public authorities to raise awareness about the public procurement/concessions connection and the EU Concessions Directive in order to advance work on this issue. 8

9 ANNEXES Annex 1: Workshop Programme Annex 2: Presentations of Mr Steen Bruun-Nielsen Annex 3: List of participants Annex 4: Questionnaire ANNEX 1: Workshop Programme 9

10 Date: 6 October 2015 Venue: Room 517, MEDT, Druzhby Narodiv 28, Kyiv Registration Welcome and introduction to the workshop Mrs Liliia Dudnik, Deputy Head of the Public Procurement Department of the Ministry of Economic Development and Trade (MEDT) Dr Eugene Stuart, Team Leader, EU funded Project Harmonisation of Public Procurement System in Ukraine with EU Standards The Concept of Concessions and the EU Concession Directive Mr Steen Bruun-Nielsen, Key Expert, EU funded Project Harmonisation of Public Procurement System in Ukraine with EU Standards Coffee break Main differences between the Directive and existing Ukrainian Legislation and suggestions for Actions Mr Steen Bruun-Nielsen, Key Expert, EU funded Project Harmonisation of Public Procurement System in Ukraine with EU Standards Questions & Discussion Interpretation : Simultaneous 10

11 ANNEX 2 PRESENTATION OF MR STEEN BRUUN-NIELSEN 11

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20 ANNEX 3: WORKSHOP PARTICIPANTS No Name Occupation Signature 1. Liliia Dudnyk Deputy Director of the Department for Public Procurement Regulation, Ministry of Economic Development and Trade of Ukraine 2. Eugene Stuart Team Leader, EU funded Project Harmonisation of Public Procurement System in Ukraine to EU Standards 3. Steen Bruun-Nielsen Senior Public Procurement Expert, EU funded Project Harmonisation of Public Procurement System in Ukraine to EU Standards 4. Oleksandr Shatkovskiy Senior Public Procurement Expert, EU funded Project Harmonisation of Public Procurement System in Ukraine to EU Standards 5. Anastasia Kalina Public Procurement Expert, EU funded Project Harmonisation of Public Procurement System in Ukraine to EU Standards 6. Natalya Shymko Head of Division of Department for Public Procurement Regulation, MEDT 7. Tetiana Lisovska Head of Division of Department for Public Procurement Regulation, MEDT 8. Anna Tovkay Deputy Head of Division of Department for Public Procurement Regulation, MEDT 9. Yuiriy Bugay Department for Public Procurement Regulation, MEDT 10. Anna Bespalova Department for Public Procurement Regulation, MEDT 11. Mila Schepina Department for Public Procurement Regulation, MEDT 12. Natalia Romanova State Financial Inspection 13. Olena Feleniuk Secretariat of Cabinet of Ministers, Office of European Integration 14. Serhii Kriuchkov Adviser to the Minister of Economic Development and Trade 15. Olga Veretilnik Anti-corruption Centre 16. Bohdan Fostuk Secretariat of the Parliamentary Committee on European integration 17. Pavlo Kiselnuk Kyiv City Administration 18. Denis Suhoviy Kyiv City Administration 19. Vladislav Kuvgulo Accounting Chamber of Ukraine 20. Sergii Karandin KMBS 20

21 ANNEX 4 QUESTIONNAIRE 6 October In general, did the Training course fulfil your expectations? 2. What was particularly good in the Training sessions? 3. What information was particularly new in Training sessions? 4. Were there aspects of the Training with which you were not satisfied (e.g. you knew about this already or things were inadequately explained?) 5. Was there something important missing, which was not covered and discussed? 6. Do you believe that the knowledge and information from the Training will assist (you or others) in further work? Definitely not Unlikely To some degree A fair amount Very much Were you satisfied with the presentation abilities of the training lecturers and facilitators? If not, please identify specific difficulties? Very unsatisfied No To some degree A fair amount Very much Specific comments if dissatisfied: 8. Were you satisfied with the distributed material? (Enough materials, the quality of materials ) Very unsatisfied No To some degree A fair amount Very much Have you any specific comments on the materials: 9. Specific session scorecard 21

22 Please score the individual sessions on the scale 1-5 Training Session Lecturer/facilitator score The Concept of Concessions and Mr Steen Bruun-Nielsen the EU Concession Directive Main differences between the Directive and existing Ukrainian Legislation and suggestions for Actions Mr Steen Bruun-Nielsen 10. Other remarks about the Training (e.g. organisation, interpretation etc.). 11. Overall rating of the Training on scale 1-5 Your score: Signature: 1 1 Signature of the evaluation form is helpful to the evaluation process but is not mandatory. 22