National regulations concerning possible approval of the public procurement procedure chosen by the contracting authority

Investigating country

Poland

Question

"Does the public procurement system in your country foresee any kind of administrative decisions approving the type of public procurement procedure chosen by the contracting authority? Do you have any system that is to control contracting authorities' decisions and actions?"

PPN members' answers

Austria

In Austrian procurement system it is within the respective procuring entity's competence to choose the right procedure in accordance with the procurement law ("Bundesvergabegesetz") without any previous external control mechanism. It is therefore up to the contracting authority to foresee obligatory internal control/approval systems concerning the choice of procedure.

The choice of procedure can be challenged by tenderers and bidders in a remedies procedure before the competent review body.

Cyprus

In Cyprus the Regulations which were issued under the Public procurement law provide for the administrative procedures for contacting procurement competitions. In these regulations there are provisions for the approval of the use of negotiated procedure only, by various administrative bodies according to the estimated value of the contract.

Estonia

In Estonia there is no preliminary administrative supervision over the contracting authorities' decisions.

Finland

No, there is no administrative control over every decision or action made by the awarding authority. All decisions can be challenged using national ways of remedies (see section 3 of the Act on Public Procurement).

Hungary

In Hungary the contracting entities have to notify the Public Procurement Arbitration Board (the Hungarian review body) when they initiate a negotiated procedure without the prior publication of a notice or a so called simplified procedure (this is a special procedure for IIB services) without the prior publication of a notice. This notification has to take place upon the commencement of the procedure and the contracting authorities have to forward the contract notice alongside with other documents justifying the application of the procedure to the Arbitration Board.

If the Arbitration Board finds that the application of the procedure was unfounded they initiate an ex-officio review procedure (they have 15 days to make this decision).

If the panel of commissioners find that the application of the procedure was unlawful, they set aside the decision of the contracting entity concerning the choice of procedure (if the contract hasn't been concluded yet) or impose a fine on the contracting authority (as a general rule only if the contract has already been concluded).

There is no similar explicit control related to the choice of procedure, but there is a general control over the content of the contract notices (exercised by the Editorial Board of the Secretariat of the Public Procurement Council). Within this control the Editorial Board checks also the decision of the contracting entity related to the choice of procedure.

Iceland

No such system. It is up to each Contracting authority to decide and choose appropriate public procurement procedure.

Ireland

No, there is no provision requiring approval of type of procedures chosen by contracting authorities.

Italy

Italian national system has been regulated, in the recent past, by several laws but, in compliance with the Directives 17 and 18/2004/EC, a new law no.62/2005 has vested the Italian Public Procurement Authority of the surveillance on PP procedures. The law gives the PPA general oversight and control tasks over public procurement procedures to assure timeliness, correctness and transparency in public administrations proceedings as well as the value for money of PP management. The PPA's main task is to monitor the possible detriments derived by the incorrect course of PP and the infringements against rules and to point out areas where efficiency and effectiveness need to be improved. The PPA has the power to require that the contracting authorities as well as private companies provide data and information about procurement in progress, design and public procurement awards. The Authority normally exercises its right to issue decisions and regulating principles on specific problems submitted by claimants and to settle disputes arising from alleged violations of the law, made by a company or a person involved in a tender procedure. As soon as the initial findings are known, the contracting authorities/entities have always been able to defend their behavior. PPA then takes into account their justifications before adopting final measures or regulating principles. Nevertheless, the PPA can start its inquiry directly. The Authority has, moreover, the power to impose fines when any subject involved in a procedure has not submitted the requested documents or has submitted forged documents or has stated false information. The PPA is an independent state authority and is required to submit reports to Parliament and Government and to provide several consultancy services.

Lithuania

In Lithuanian Law on Public Procurement there is no any particular obligations constantly to perform control weather contracting authority has chosen the type of public procurement procedure correctly or incorrectly. The burden to prove correctness of chose of procurement procedure lies on contracting authority. However, Law on Public Procurement provides possibility for Public Procurement office, upon receiving signs on possible violation of the requirements of beforehand mentioned Law, to suspend procurement procedures, to evaluate those procedures and to decide whether contracting authority may precede or violation has to be corrected or procurement procedure has to be terminated.

Luxembourg

In Luxembourg there has been instituted in 1999-2000 a "finance controlling department" that belongs to the department of finance but whose agents are deployed to all the ministries where they have to control all activities that have a financial impact. In consequence these agents also have to give their agreement for the choice of the public procurement procedure.

Malta

In Malta there is legal notice 177/2005 which covers all aspects of procurement in Malta. Tenders under the threshold of Maltese Lira 20,000 (around 47,00euro) are administered by contracting authorities. Over this threshold tenders are issued by the Department of Contracts as a central agency. Hence, in the latter case the Department of Contracts controls the procedure to be chosen. However, for the former, there is also a supervisory role of this department to ensure that the proper procedures are applied.

Netherlands

In the Netherlands suppliers can challenge decisions taken by contracting entities before the regular courts.

Norway

In Norway, procurement decisions including the choice of a legally permitted procurement procedure, is decentralized. It is the contracting authorities themselves who decide, within the law and regulation which procedure is best suited in the particular purchase. We have therefore no kind of collective administrative decisions approving this choice.

Infringements on public procurement law and regulations are handled by the court.

Spain

A control system exists on the chosen procedure of awarding. One is based on which the sheet of the contract must be studied and be informed by the Legal Service of the hiring organ as well as by the civil employee in charge of the control of expenses of the bottoms public. If a defective application exists they emit a disagreement report that it prevents to continue the transaction of the hiring file.

Sweden

In Sweden there is no administrative decision approving the type of public procurement procedure chosen by the contracting authority.