How to develop eProcurement solutions for national
implementation – Policy Goals and Legal Framework
A case of Portugal:
legal framework for
e-Procurement in
Public Procurement
Sector
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João de Almeida
Public Procurement Policy Seminar
Kiev, 1-2 Dec’ 2011
1.
ePP IN THE CONTEXT OF A BROADER LEGAL AND ECONOMIC REFORM
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OF PUBLIC PROCUREMENT (2007 – 2011)
2.
ePP AS A STRATEGIC TOOL FOR DELIVERING THE ENVISAGED RESULTS
3.
THE LEGAL FRAMEWORK FOR ePP
4.
MAIN FEATURES OF THE LEGAL REGIME
5.
CONCLUSIONS & DISCUSSION
2
ePP IN THE CONTEXT OF A BROADER LEGAL AND ECONOMIC
REFORM OF PUBLIC PROCUREMENT (2007 – 2011)
Overall reform environment (2007 – 2011)
Pressure from the market
Opportunity to improve efficiency in public administration
Three main pillars (Code + CPB + ePP)
The Code of Public Contracts
Transposition of EU 2004/17 and 18 Directives (compliance)
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Coverage of the whole contract life cycle, beyond the formation stage (e.g. contract
performance)
the provision of a mandatory usage of electronic means for all contracts valued above
3
EUR 5.000
The launch of a new central purchasing body (National Agency
for Public Procurement) as the central tool towards a
sustainable system
Key values
•
Transparency, equal treatment, fair competition
•
Compliance with National and EU Legislation
•
Sustainability (priority to economic and environmental elements)
•
Encouragement of SME’s access to public markets
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Main goals
•
Economic: Increase savings in public procurement (contributing to sound
and better usage of tax payers’ money);
•
Environmental (green public procurement): gradually incorporate
environmental requirements within the selection / qualification and award
criteria in public tenders
4
NISSION of ANCP is to
increase the efficiency and
savings of the Portuguese
Public Administration
NATIONAL SYSTEM OF PUBLIC PROCUREMENT
Key stakeholders
Public
Entities
ANCP
National Agency for
Public Procurement
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UMC
Community / Society
Tax payers / Citizens
Contractors
Suppliers
UMC
Government
MoF
Community / Society
Tax payers / Citizens
Public
Entities
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A STRATEGIC TOOL FOR DELIVERING ENVISAGED RESULTS
The procurement model (components)
Sourcing
Aggregation
Tendering
Awarding/
Contract
Ordering
Invoicing
Payment
The e - procurement model (components)
Mandatory use
since Nov’ 2009
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e-sourcing
eaggregation
e-tendering /
e-awarding
econtract
ecatalogue
Within the scope of the current technological model put in place by ANCP
eordering
einvoicing
epayment
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THE LEGAL FRAMEWORK FOR ePP
The legal framework for e-procurement (PT)
The Law making process: where policy makers and ICT experts meet Lawyers
Principles governing public procurement AND e-public procurement (EU, EBRD,OECD …)
Main sources: EU and National Law
The grounds for a trustworthy system: Specific features
E-signature
Documents transmission, opening and “warehousing”
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Time and deadlines management: time stamping
Automated decision making versus exclusive competences of awarding/selection
committee
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A short set of legislation focused on reliability
Legal instrument
Decree-Law No. 37/2007
Defines the National System of Public Purchases (also
NSPP) and creates the National Agency for Public
Purchases (also NAPP), as the responsible entity for the
management of that system
Regulation 330/2009
Regulates the functioning of the National System of Public
Procurement
B
Decree-Law 18/2008
Approved the Code of Public Contracts (CPC)
C
Decree-Law 143-A/2008
Electronic Platforms and data communication form
Regulation No. 701-A/2008
Approves the main standard forms of public procurement
related contract notices that are published in the “Diário da
República” (Portuguese Official Journal)
Regulation No. 701-B/2008
Setup of an Advisory Committee in charge of monitoring
application of the Code of Public Contracts
Regulation No. 701-D/2008
Defines the model of statistical data to be reported by
contracting authorities
Regulation No. 701-E/2008
Defines the model of the data reports to be completed and
provided by contracting authorities in the Public
Procurement Portal www.base.gov.pt
Regulation No. 701-F/2008
Regulates the establishment, operation and management
of the Public Procurement Portal (www.base.gov.pt)
A
D
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Short description
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Legal instrument
Short description
Regulation No. 701-G/2008
Sets out the requirements and conditions of utilization of
electronic platforms by the contracting authorities and
regulates the terms of operation of those platforms
Regulation No. 701-H/2008
Approves the mandatory content of the program and the
execution project of public works; the procedures and
standards to be adopted in the design and phased
elaboration of public works projects, called “Instructions for
the drafting of works”; as well as the classification of works
by category
Regulation No. 701-I/2008
Establishing the “Observatory of Public Works”, and its
functioning rules
Regulation No. 701-J/2008
Defines the model of statistical data to be reported by
contracting authorities
D
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A – Institutional regulations towards a centralised national system of PP
B – Code of Public Contracts
C – Specific ePP related provisions
D – Implementation provisions
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MAIN FEATURES OF LEGAL REGIME
Institutional law
accreditation of e-platforms – license to operate)
The process of accreditation is run by CEGER (an entity in charge of the
government ICT networks, having no other involvement in public procurement)
Independent external compliance audit to each provider / platform
Aggregation, centralization and CPBs help delivering the change towards ePP
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Substantive Public Contracts Law
Mandatory use of electronic means
The concept of “electronic means”
Operations covered
Selection of means depending on the type of procedure
Consequences of non-compliance
Contract formed through a non-ePP tool (“paper-based procedure”) is null and
void (toughest sanction in Portuguese Administrative Law)
Disciplinary sanctions (e.f. fines) towards public entity management
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e-sourcing
e-aggregation
e-tendering /
e-awarding
econtract
ecatalogue
eordering
einvoicing
epayment
2010|First full year of mandatory e-Public Procurement
The success of the adoption of e-Public Procurement in Portugal is by and large due to the constructive
commitment of all stakeholders, namely the already established Public eTendering platform operators
with several years of experience mostly in the private market. All stakeholders involved in PP trust the system and
tools and see ePP as a value added improvement.
Players involved
Contracting Entities | Economic Operators | Public eTendering Platform Operators | External Auditors for Platform’s
compliance auditing | National Certification Office of e-tendering Platforms – CEGER | National Agency for Public
Procurement - ANCP |
National Portal for Public Contracts – InCI (www.base.gov.pt) | Universities | Training
Institutes | Lawyers | PP external consultants | Court of Auditors | Administrative Courts | Media | PR&Press |
Political institutions | EU .................
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Jurisprudence: so far there is no record of cases where the “e part” of the public procurement procedure is, in
itself, the cause for dispute.
Impact on litigation rate: the Agency is currently assessing the possible impact of ePP on the litigation rate which
is nevertheless being surely impacted by the recent transposition of the EU Remedies Directive (2007/66/CE)
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CONCLUSIONS & DISCUSSION
The winner partnership/alliance towards the big change
Government
Industry (ePP operators and economic operators interested in accessing public markets)
Public Administrations (central, regional and local)
The success factors
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Attitude changing model: Legal, Economic, Educational/Training, Social Marketing
Overarching element: confidence
Three consistent pillars (Code, CPB, ePP)
Perception of gains and advantages
Four Cs instead of Four Ps
How the role of Law and Lawyers will likely be in the next steps (end-toend ePP coverage) ?
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Thank you
[email protected]
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www.ancp.gov.pt