Using transparency against corruption in public procurement

Studies in European Economic Law and Regulation 11 Irena Georgieva Using Transparency Against Corruption in Public Procurement A Comparative Analysis of the Transparency Rules and their Failure to Combat Corruption Studies in European Economic Law and Regulation Volume 11 Series editors Kai Purnhagen Law and Governance Group, Wageningen University, Wageningen Josephine van Zeben Worcester College, University of Oxford This series is devoted to the analysis of European Economic Law The series’ scope covers a broad range of topics within economics law including, but not limited to, the relationship between EU law and WTO law; free movement under EU law and its impact on fundamental rights; antitrust law; trade law; unfair competition law; financial market law; consumer law; food law; and health law These subjects are approached both from doctrinal and interdisciplinary perspectives The series accepts monographs focusing on a specific topic, as well as edited collections of articles covering a specific theme or collections of articles All contributions are subject to rigorous double-blind peer-review More information about this series at http://www.springer.com/series/11710 Irena Georgieva Using Transparency Against Corruption in Public Procurement A Comparative Analysis of the Transparency Rules and their Failure to Combat Corruption Irena Georgieva PPG Lawyers Sofia, Bulgaria ISSN 2214-2037     ISSN 2214-2045 (electronic) Studies in European Economic Law and Regulation ISBN 978-3-319-51303-4    ISBN 978-3-319-51304-1 (eBook) DOI 10.1007/978-3-319-51304-1 Library of Congress Control Number: 2017933696 © Springer International Publishing AG 2017 This work is subject to copyright All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed The use of general descriptive names, registered names, trademarks, service marks, etc in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Foreword This is a most timely and most welcome work It is timely because it arrives just as the new procurement directives package of 2014 has come into force; it is most welcome because it addresses the very serious matter of corruption in public procurement with a comparative law perspective The author has a mission – an ambitious and exciting one – to contribute to the awareness of the part that corruption still plays in procurement It is one thing to have paperwork in order, to tick the boxes, as it were, but it is quite another thing to establish that there is no elephant in the room Appearances can be deceptive, and the field of procurement is certainly no exception Working from the experience and practice in Bulgaria, with comparators in the German and Austrian systems, Dr Georgieva offers the reader a clear and surprising insight into just how what might look above board is in fact decidedly underhand The importance of transparency in procurement cannot be overestimated, although of course there are many aspects to compliance and successful high-quality procurement and procurement processes The attractiveness of Dr Georgieva’s work lies in the systematic and almost enchanting way in which she peels back the veils of corruption, like a magician removing layer after layer of covers to reveal the hidden jack-in-the-box This is a work with a pan-European message and imagery While in some countries people think that procurement is straightforward, there is no Member State that is free from some form of diversion from the yellow brick road: a meeting here or there, a favour to someone’s family, a holiday or two in an agreeable location or even a straightforward brown envelope with some enriching contents Corruption in procurement is not, thankfully, endemic, but it is more prevalent than many would like to admit European Union law has sought to coordinate national rules relating to procurement, so that above the thresholds a clear systematic approach will apply, albeit with some options available for the Member States Often, contracting authorities find the European rules irritating, even burdensome, but that is to misunderstand why the rules are there and how they operate to promote a level playing field characterised by undistorted competition, transparency and open access to market participants within the internal market that is at the heart of the European Union’s v vi Foreword structure The new rules have given much  – perhaps even too much  – room for social and other certain policy objectives to play a role These objectives are laudable and may indeed be essential (in particular as regards the environment); however, they can also be abused to disguise the desire of local politicians and others to promote their hobbyhorses and the interests of their friends and allies Corruption may also be intellectual and not just financial in nature The general criterion of MEAT (the most economically advantageous tender) is certainly better than simply looking at the lowest price, which may well not always be the best value for money In applying MEAT contracting authorities must remain within the legitimate bounds of their discretion and stay on the yellow brick road Dr Georgieva’s work should assist those who wish to ensure that contracting authorities succeed in doing so Her book deserves a wide and interested readership, and I wish her and it success University of Groningen Groningen, Netherlands Prof Laurence W. Gormley Preface Writing about corruption is not particularly easy Writing about corruption in your own country – even less so However, the effort is worth it if the problematic issues revealed and the suggestions provided bear fruit and change the status quo for the better Performing the process of awarding public procurements correctly and in the interest of all stakeholders, especially a country’s taxpayers, is of extreme significance as well as a very challenging topic, and the search for the right path continues This book is aimed at all those who sooner or later face a public procurement award due to the nature of their business or because they have to apply the regulations in their capacity as a contracting authority, as well as to the academics who continue to study this vast subject Procurements themselves represent an artificial mechanism which seek to protect public resources by creating much stricter rules for spending ‘common funds’ than are usually found in the relations governing ordinary traders When a resource is shared, however, determining responsibility for it is often more complex Who owns the resource actually, who is liable for its distribution and what rules should regulate the transaction can be hard to determine and difficult to oversee Finally, it is much more challenging to prove theft from the state than from a particular person That is why in this atypical ‘vacuum’ of rules and procedures, corrupt practices emerge much more frequently, and because the appetites are much larger, corruption in this sector flourishes abundantly Procurement rules will continue to have its ups and downs, and their adaptation to real life will continue much longer It is for this reason that I hope my work on this book, and the contrast that is made between the different countries, will be taken into account in the implementation of the new procurement rules at European level Indeed, EU is a community of countries that have agreed to profess the same values, but to be successful the eyes of this alliance must be focused precisely on the ‘individual cases’ This is especially true for public procurements and the many corruption opportunities they create I would like to thank all who have contributed to bringing this book into being and to helping my analysis of the three Member States researched here acquire meaning and completion vii viii Preface I express my special gratitude to Prof Laurence W Gormley (University of Groningen, Netherlands) for the enormous dedication, guidance and support Further, many thanks to Prof Georgi Dimitrov (Bulgarian Academy of Sciences, Bulgaria) for his assistance and belief in his former student; to Prof Elisabetta Manunza (University of Utrecht, Netherlands), Prof Huib van Romburgh (University of Groningen, Netherlands) and Prof Gert-Wim van de Meent (University of Amsterdam, Netherlands) for sharing their valuable opinions on my work; and, last but not least, to the public procurement legal expert Johannes Stalzer for taking the time to consult me on my work on the analysis of Austria Thanks to all my friends and especially my family, for having supported me throughout and for having always stood by my side Sofia, Bulgaria October 2016 Irena Georgieva Contents Introduction 1 1.1 Aspects Analysed 1.2 Benchmarking 2 2 The EU Principles in Public Procurement Transparency – Origin and Main Characteristics 2.1 The Procurement Principles The Concept of Transparency 2.2 Transparency – How Does it Start? 2.2.1 The Meaning of Transparency 11 2.2.2 Features and Functions of Transparency 13 2.3 Transparency in the EU Public Procurement Legislation and the Work of International Organisations Evolution of the Principle 19 2.3.1 The Treaties and the European Court of Justice 20 2.3.2 The Directives 22 2.3.3 The Work of International Organisations Towards Transparency in Public Procurement Procedures 24 2.3.4 Evolution of the Transparency Principle in the Field of Public Procurement 27 2.4 Progress and Degradation of the Principle of Transparency The Example of Bulgaria 34 2.4.1 Historical Predisposition 34 2.4.2 Transparency in the Bulgarian Procurement Legislation 40 2.5 Concluding Observations 44 Bibliography 48 3 Corruption – Definition and Characteristics 51 3.1 The Reasons for This Chapter 51 3.2 Corruption – Common Definitions 52 3.2.1 Forms of Corruption 53 ix 7.9  What Can Be Borrowed from Austria? 255 for contractor selection between the participant and the contracting authority, with the participant bearing the risk of any incorrect data As already commented above, this document has been introduced in Bulgaria but without there being any practice in its implementation for firm conclusions to be drawn However, it already opens some questions as to the real simplification it achieves, bearing in mind that the Bulgarian legislator has found it necessary to require enough other declarative documents from the bidders in addition to the ESPD, and this may not be felt as much support to the participants in the procedures 7.9  What Can Be Borrowed from Austria? The parallel drawn in the field of procurement awards and implementation in Austria is of great significance for the present work because it is a Member State which also faces some difficulties in managing corruption models and their prevention Although in a very different social and economic context, and with a different CPI (unsatisfactory when compared to other Member States but significantly better than that of Bulgarian example), Austria appears to have problems in limiting corruption both among high-ranking officials and more specifically in public spending (these two aspects are often inextricably linked) The corruption scandals of the last few years have toppled Austria from its pedestal as a remarkably stable and upright business partner, and the criticism in the EU reports sometimes sound close to that contained in the reports addressed to Bulgaria This is the central point for the comparison of these two Member States which face similar issues: how does Austria react to the attack that it has become a ‘corruption paradise’? What statutory and structural changes has it introduced in order to escape this status quo? The analysis of the legislation and procurement award systems of the two Member States distinctly reveals the differences in their approach and also the attitude towards transparency rules as an anticorruption instrument, which is the primary objective of this book Evidently, and in contrast to the Bulgarian model, Austria has embraced in its desire to change its current situation, yet stricter legislative bodies and a yet better-oiled policing–prosecution apparatus, resulting in a large number of detected and prosecuted cases and effective sentences (‘Austria is among the best-rated countries for the deterrent effects of successful prosecutions in corruption cases, according to the 2013 Eurobarometer’).121 Even though there are similarities in terms of legislation, between the two example Member States, the reforms launched by Austria differ significantly from the Bulgarian ones While the Bulgarian PPA has suffered countless transformations and unfortunately the New PPA (as drafted) is expected to fare the same way, the designated Austrian law has undergone only a few small-scale amendments in the last five 121  First EU Anti-Corruption Report (n 11) 256 7  Public Procurement in Austria – Reforms Limiting Corruption years122 (expectedly, it would also change as a result of the transposition of the new EU rules), but has reorganised its bodies to meet the needs of the contracting authorities and contractors for independent control bodies: a two-instance fast-­acting, independent judicial system and a public procurement agency – the BBG – acting as a central purchaser and as a role-model against corruption practices The practical experience of the above bodies is not yet sufficiently extensive (considering the period after their reform and reorganisation) and their functions and responsibilities are expected to be further expanded to give effect to the New Procurement Directives But even in their current modus operandi, they demonstrate a positive change and a focused fight against corruption – in practice, and not only on paper The legislative framework in the field of public procurement in Austria is not overly specific in terms of anticorruption instruments created specifically for this sector, but the increased control and broadened powers of the institutions are evidently able to achieve the desired effect The BVergG provides the main instruments to fight corruption as presented in the Procurement Directives Some rules also mirror the Bulgarian approach, but this is again due to the harmonised EU legislation and/or the historical similarities, as discussed above, and not due to a specific approach being adopted by the domestic legislators As a summary of the main findings, the investigation into Austria’s award system shows two main differences with the Bulgarian approach towards resolution of an equally grave problem – corruption in public resource allocation: (i) Transparency rules are not an endless bibliographic list reproduced into Austrian legislation – on the contrary, transparency is achieved by means of an effective administrative machine, strengthening of е-procurement and working control and appellate apparatus (ii) Trust in Austria’s law enforcement system and its constant refinement and efficient actions with the aim of speedy exposure of corruption cases puts a wide berth between where the two countries start in the fight against corruption in public contracts Again, as with the comparison with Germany, it is clear that effective control bodies along with a strong trend of limiting the human element in procurement award are the right path to restricting and curbing corruption in the procurement sector This conclusion will inevitably remain valid following implementation of the New Procurement Directives’ rules in Austria as well  Most of the legislative amendments in Austria were made with the aim of increasing flexibility and decreasing the burden of the procedure However, Austrian procurement legislation was not as burdensome and complicated as the legal framework in Bulgaria, even before the amendments in BVergG were adopted 122 Bibliography 257 Bibliography A Pulito, ‘Austria: The Alpine corruption paradise’ (2013) Academia.edu accessed 26 April 2016 B Müller, ‘Court requests greater transparency for award decisions’ (2011) International Law Office accessed 26 April 2016 B Müller and I Mayr, ‘Amendment introduces new public procurement review bodies’ (2013) accessed 26 April 2016 C Bovis, EU Public Procurement Law (Cheltenham: Edward Elgar, 2007) EF Fabrizy, in T Beken, B Ruyver and N Siron (eds), The organisation of the fight against corruption in the Member States and candidate countries in the EU (Antwerp/Apeldoorn: Maklu, 2001) G Grassl, ‘Austria: Major reform of administrative jurisdiction system takes effect as from January 2014’ (Blog post 2013) accessed 26 April 2016 G Knaul, the United Nations Special Rapporteur on the independence of judges and lawyers, in the presentation of her annual report to the UN General Assembly, New York (24 October 2012) ohchr.org accessed 26 April 2016 J Stalzer, ‘Challenges and opportunities of e-Procurement’ (2014a) Roadmap 15 accessed 26 April 2016 J Stalzer, ‘Austria: court confirms advance effects of the new procurement directives’ (Blog post, August 2015) J Stalzer, ‘Austria Chapter – Public Procurement 2015’ (2014b) International Comparative Legal Guides accessed 26 April 2016 K Jaros and J Stalzer, ‘Austria: Corruptive behaviour in public procurement procedures as a deal breaker for mergers and acquisitions transactions?’ (Blog post 2014) accessed 26 April 2016 K Schwab and X Sala-i-Martín, The global competitiveness report 2014–2015 (Geneva: World Economic Forum, 2014) L Hensgen, ‘Fight against corruption in the Danube region: A study of regional best practices’ (2013) Max Planck Foundation for International Peace and the Rule of Law, Sankt Augustin: Konrad Adenauer Stiftung M Fruhmann in the chapter on Austria in U Neergaard, C Jacqueson and G Ølykke (eds), ‘Public Procurement Law: Limitations, Opportunities and Paradoxes’, in The XXVI FIDE Congress in Copenhagen (Copenhagen: Congress Publications, 2014), vol M Krivachka, ‘Certain Specifics in the Appeal of Decisions of Contracting Authorities pursuant to the Public Procurement Act’ (2006) 10 Pazar i Pravo M Steiner, ‘Comparative law on public contracts’ in R Noguellou (ed), Droit comparé des contracts publics / Comparative law on public contracts (Brussels: Bruylant, 2010) P Humann, ‘eTendering in Austria’ accessed 26 April 2016 P Marboe, P Franzmayr, ‘Austria: Recent Public Procurement Law Introduces a New Award Procedure while a Last-Minute Regulation Dispels Confusion on Threshold Values’ accessed 26 April 2016 258 7  Public Procurement in Austria – Reforms Limiting Corruption R Dzhekova, F Gunev and T Bezlov, European Experience in the Fight against Police Corruption (Sofia: Center for the Study of Democracy, 2013) S Arrowsmith, The law of public and utilities procurement Vol (London: Sweet & Maxwell, 2014) S Arrowsmith, H Prieß and P Friton, ‘Self-cleaning as a Defence to Exclusions for Misconduct: An Emerging Concept in EC Procurement Law?’ (2009) Public Procurement Law Review S Williams-Elegbe, Fighting Corruption in Public Procurement: A Comparative Analysis of Disqualification or Debarment Measures (Oxford: Hart Publishing Ltd, 2012) T Bianchi and V Guidi (eds), The Comparative Survey on the National Public Procurement Systems Across the PPN (Rome: Authority for the Supervision of Public Contracts 2010) Chapter Conclusions ‘For the one who sows to his own flesh will from the flesh reap corruption, but the one who sows to the Spirit will from the Spirit reap eternal life.’ (Galatians 6:8) 8.1  Groups of Conclusions The conclusions drawn on the basis of this work can be organised in the following categories: (a) Relevance and efficiency of the transparency principle as an anticorruption measure in public procurement; (b) The role of control and appellate authorities in the prevention of corruption; (c) Good practices which could be adopted and the most effective trends in handling the problem of corruption in public contracts These are now considered in turn 8.1.1  Transparency Principle Efficiency Against Corruption The work clearly demonstrates the inability of one of the example Member States (Bulgaria) to handle corruption in the public procurement sector by means of excessive reliance on publicity and transparency as pillars of lawful and efficient award Transparency emerged in response to society’s need to fight corruption It reflects the public’s right to have access to a certain level of information on norms, rules, procedures and regimes and the actions of participants, presented in an understandable and clear manner; the information provided should at all times be sufficient for monitoring, verification and assessment The transparency principle is strongly present in the public procurement regime, where it has taken on certain specific characteristics EU legislation sets out certain requirements and restrictions on the parties involved in procurement procedures, with the aim of ensuring that the pro© Springer International Publishing AG 2017 I Georgieva, Using Transparency Against Corruption in Public Procurement, Studies in European Economic Law and Regulation 11, DOI 10.1007/978-3-319-51304-1_8 259 260 8 Conclusions cedures are conducted in openly and fairly Some national legislative frameworks supplement these rules and develop an entire system aimed at ensuring transparent procedures (as is the case with Bulgaria), while other Member States keep to the level determined by the EU legislation An unresolved issue remains the lack of a common definition of transparency and the widely varying positions of the various states regarding the value of this principle In particular, the Bulgarian approach to the transposition of transparency rules reveal a failure of understanding as well as a failure of the numerous attempts to put this principle in action The continuous increase in transparency rules and the ever more complicated legislative basis has been examined and analysed in the course of this work It has become patently clear that the example legislation of Bulgaria abounds in rules imposing ‘absolute transparency’ of award procedures, which sadly often overlap in both meaning and application, requiring that almost the entire public procurement file should be published on Yet the EU claims that corruption in that Member State is increasing and the transparency obligations imposed on contracting authorities act purely as a burden on the award process The outcome ultimately differs considerably from the desired result  – the contractor selection process is greatly obstructed, the administrative apparatus labours under the numerous transparency rules, while corruption itself remains undisturbed Hence, where the process does indeed require clarity and direct monitoring, the legislation turns out to be impotent Further, the overview of the origin and development of corruption worldwide and the focus on the individual historical and socioeconomic specificities of this phenomenon in Bulgaria outlines the main characteristics of corruption in public procurement This description of corruption in Bulgaria is of value in the benchmarking part of this book, aiding the drawing of logical and objective conclusions as to which elements of the German and Austrian award systems have proved effective as anticorruption practices, but which remain inapplicable and unlikely to yield the desired results in Member States similar Bulgaria Examples are provided of completely imprudent legislative decisions, ostensibly introduced for the purpose of combating corruption, but existing only pro forma, without achieving any success in that direction The conclusions regarding the unrealistic expectations of transparency as the main principle in public procurement are supported by an examination of theoretical developments and the work of certain institutions in their attempts to identify a successful method for preventing corruption in the award process TIBG’s pilot project, the Pact, demonstrates tolerance towards publicity as a method for combating corruption in Bulgaria The Pact is a voluntary act for additional monitoring and openness to the public in the award process The sanctioning aspect for failure to fulfil the commitments undertaken under the Pact, however, is minimised and shifted to the background at the expense of the incentive aspect The pilot implementation of the Pact shows that the model is a far cry from being a pillar against the severe corruption problems in the implementation of public procurement procedures The comparison with the Integrity Pact, as applied in Germany, reveals that increasing the punitive element in the implementation of such a monitoring instrument is of utmost importance to provide the missing disciplining effect and for the latter to serve as a rod in the wheel of corruption 8.1  Groups of Conclusions 261 In addition, particularly relevant to this first conclusion is the comparison between the work of the TIBG and the work of another anticorruption organisation in Bulgaria – the CPCCOC – which have certain similarities (both projects claim to offer an effective solution to reducing corruption in public procurement in Bulgaria and they basically use some of the best anticorruption practices of Germany) The approach of the two institutions, however, is completely antipodal, with the TIBG clearly championing increased trust between participants in the procedure and sufficient transparency, while the CPCCOC model offers measures which are far more radical and practical A large part of the CPCCOC proposals are definitely applicable and also conform to the requirements of the New Procurement Directives They highlight the European trend of focusing on other methods against corruption (eg promoting e-procurement, strengthening the role of CPBs etc) Although somewhat weak in certain points, the CPCCOC proposals are indeed constructive and demonstrate the trend for anticorruption policies which not rely on stretching the transparency principle beyond recognition A significant part of this work, which demonstrates the broken link between transparency and corruption and illustrates where the gravest corruption ‘ulcers’ in the public procurement process award occur, is the infringements analysis (presented in Chap 5) The list of infringements occurring in the course of the four phases of public procurement procedures (ie the Choice of Objects Phase, the Announcement Phase, the Procedure Conduct Phase and the Contract Implementation Phase, as defined in Chap 3) can always be supplemented with other types of corrupt practices and specific infringements of the law or combinations thereof, depending on the type of procedure selected or the exact phase in which they occur On analysing the different types of infringements and their occurrence in the four phases, the following conclusions are underscored: Most of the infringements which open up corruption loopholes are carried out in strict observance of publicity and transparency principles, even against a background of overly complicated and heavily bureaucratised procedures, with numerous additional transparency obligations imposed (as is the case of Bulgaria) In this context, a large portion of professedly impeccable procedures turn out to be precisely those in which ‘grand corruption’ is perpetrated, with the subsequent loss of significant financial resources Some of the infringements (especially those occurring at the Choice of Object Phase), such as contractor selection in the absence of a procurement procedure, or splitting procurements in the absence of legal prerequisites, are relatively easy to detect This is largely due to the fact that they are linked to a complete lack of publicity and occur directly outside legal rules These infringements, however, are usually forms of ‘petty corruption’ and can be observed in smaller organisational units/contracting authorities (e.g the patrons of municipalities) In the remaining three phases transparency rules are either strictly observed or are altogether absent (e.g in contract implementation infringements) The procedure runs as advertised, e.g in the public procurement register, the OJEU, the buyer’s profile, national daily newspaper etc Despite all of this overt compliance, the procedure contains discriminatory requirements or provides a loophole for the 262 8 Conclusions selection of the only possible candidate, or the contract is implemented in complete disregard of the contract parameters The methodology for the infringement analysis adopted for the purposes of the book (i.e (i) description of infringed provisions; (ii) description of the infringement itself; (iii) violation of transparency rules, if any; and (iv) description of the types of corruption loopholes opened) clearly highlights the prevalence of those infringements which open up significant corruption loopholes and which have, professedly, complied with all procedural and transparency rules This strongly supports the conclusion that publicity is not a cure for bribery and the selection of a ‘favoured candidate’ to the disadvantage of competitors 8.1.2  Control and Appellate Authorities Effectiveness This work reveals that where the administrative part of the procedure is deemed to have greater significance than its subject matter, it strongly influences how control over public procurement award and execution is carried out The example of the Bulgarian procurement model tends to show that in this Member State the control and appellate authorities monitor the strict observance of the law alone and the presentation of the specific set of documents required by contracting authorities The control bodies’ lack of human resources and financial capacity hinders the detection of intricate corruption schemes including deliberately convoluted technical requirements or evaluation methodologies Infringements with corrupt intent often remain undisclosed Yet even when detected, many of these infringements are penalised by means of fines which are disproportionately lower than the actual loss for society Verdicts are far too rare to have a preventive effect on corrupt schemes In reality, fiscal damage, restriction of competition, market distortion and the disillusionment of a large portion of candidates who no longer wish to participate in public procurement procedures cause damage to the state which cannot be compensated through sanctions, unless these sanctions can ensure reduced corruption in the sector It is apparent from this work that the relationship between the various authorities in Bulgaria and their functions is extremely complex, partly because of the EU legislative base, but partly because of the choices of the national legislator As stated, most of the institutions monitoring and sanctioning the procurement process basically exercise legality control of contracting authority actions, which is insufficient if the goal sought is that these institutions should somehow help in combating corruption Furthermore, the structure of the control and appellate authorities is too burdensome and multi-instanced in comparison to the two other Member States reviewed Some of the institutions have poorly defined powers to intervene in, or to improve the procurement process Ex ante control is concentrated mainly in the powers of the Executive Director of the PPAgency and is restricted in scope Ongoing control is implemented internally, is insufficiently independent and manages to prevent corruption at the lower and middle level of administration only Ex post control is organised in a highly fragmented manner between the different 8.1  Groups of Conclusions 263 authorities and is unable to achieve serious results in exposing corruption and infringements: (i) the financial inspection agency – PFIA – has greater responsibilities but is limited to the implementation of legality control only (monitoring mainly conformity with procedural rules); (ii) the audit office – the NAO – has the authority to analyse the efficiency and effectiveness of the awards but not to respond to alerts and complaints Unfortunately, the actual operation of this auditing authority so far has been negligible due to constant restructuring and changes in its functions, and due to its being an object of political manipulation Finally, the appellate authorities – the CPC and the SAC – also focus only on compliance with the letter of law and have neither the competence nor the expertise to detect corruption schemes hidden, for instance, in the requirements of seemingly procedurally-sound and transparent procurements Last but not least, it is important to underline the lack of independence of the control and appellate authorities from the executive power in Bulgaria This factor definitely affects the efficiency and the meaningfulness of control which is expected to have a preventive and disciplining effect on participants in the award process and to dissuade them from using corrupt schemes Lack of independence has a demotivating effect on eliminated or losing candidates, reflected in the reduced number of appeals which is in any event quite low From this perspective, and although this conclusion goes beyond the scope of a purely analytical look at the regulation of public procurement in Bulgaria, it is evident that so long as there is no political will to ensure that the control apparatus functions effectively so that faith in it can be restored, corruption will not be curbed; on the contrary, the corruption will continue to take advantage of their current impunity It is furthermore evident from the analysis of the participants in the award process, of the control and appellate authorities and of the most common infringements revealing corrupt intent, that against the background of strictly observed procedural rules, public administration in Bulgaria is not effective It is inadequate and insufficiently familiar with European standards The level of technical and professional qualification of individual contracting authorities is in most cases also completely inadequate to address the proposed modern measures, and the legislative framework in public procurement cannot be made fit for the purpose by further ‘experiments’ 8.1.3  Outline of Good Practices Against the obviously unsuccessful attempts of the Bulgarian legislator to create a system of flexible and simple rules, interlinked with a functioning public spending control system and to fight corruption in the sector, the German and the Austrian models tend to demonstrate how this can be done more successfully Not all the solutions used by these two Member States are applicable and/or acceptable for Member States with higher corruption and lower socioeconomic levels such as Bulgaria, but some of them are completely conventional and objectively successful 264 8 Conclusions methods for improving the procurement process and dealing with the manifestations of corruption The benchmarking process and the review of the control and appellate authorities of the two other discussed Member States, as well as their different approaches towards corruption in public procurement strongly support the conclusion made in p. 8.1.2 above The analysis of the public procurement award system in Germany and its comparison with the current state in the counter-example in this book – the Bulgarian system – in terms of corruption and the measures tackling it, has resulted not only in highlighting good German practices which could be borrowed by other Member States but also in a more comprehensive outline of the elements absent from procurement models such as the Bulgarian one An age-old conclusion drawn from this benchmarking process is that regardless the legislative changes needed and regardless how public spending is regulated, a key factor is the actual implementation, control and sanctioning effect of these norms Efficient and preventive measures tackling corruption in the award process can be defined as comprehensive only when combined with an efficient judicial system and only where there is a much larger number of anticorruption proceedings initiated and concluded with an enforceable judgment This inevitably demonstrates that the legislative changes which can be borrowed from Germany comprise only a small portion of the weapons needed in the fight against corruption in public procurement – undeniably an important portion, but not the only one Germany, however, is an invaluable example which Member States suffering from corruption in the award process can follow not only in view of its legislative framework, which is rather more schematic  – mainly outlining essential terms, rights and obligations – but also with view to its application in practice Instead of translating a huge number of transparency rules into statutory norms which fail to limit corruption, Germany has opted for methods which facilitate publicity but also allow control over the activities of both contracting authorities and contractors A good example in this direction is the use of electronic platforms for e-procurement Restricting the human factor is hugely important for a corruption-free environment and is definitely a good practice which should be borrowed at all costs, and the financial resources should be allocated as soon as possible instead of churning out nonsensical criticism against investment in software and e-platforms Another important element is the efficient institutional apparatus in Germany The entire award and implementation stage of public procurement in Germany depends on a well-oiled and independent administrative apparatus, which exercises control over the activities of contracting authorities and sanctions any irregularities in good time In addition, the efficient judicial system and the National Court of Auditors act as controlling and sanctioning bodies; they have a restraining and disciplining effect on all participants in the award and implementation process In ­contrast with Bulgaria, the German Court of Auditors can actually intervene in the procurement process and suggest practical amendments to help the process result in the choice of a quality and cost effective service or work 8.1  Groups of Conclusions 265 The experience in Germany further shows that an effective central purchasing system could greatly limit subjective ‘contracting authority-tenderers relations’ Separation of the functions of the actual user of the goods, services or supplies from those of the entity carrying out and controlling the procedure introduces a very active element into the procedure which, in addition to serving as a safeguard against potential corrupt intent, is also an additional control body with regards to the entire procedure What is more, according to the new procurement package, CPBs will be the first to move onto complete e-procurement (by 2018); this will further strengthen the anticorruption element of their functions by not only mediating the award process on behalf of the contracting authority, but also by limiting the human factor in the selection process In contrast, the application of the concept of CPBs in Bulgaria is at present almost non-existent and completely inadequate where it exists This is why the German model is indeed relevant and why adoption of this model would serve as a positive start in the fight against corruption The introduction of such a scheme requires substantial restructuring and reorganisation of the existing model at national level If however such a separation between contracting authorities and potentially bribing bidders could be accomplished in the Member States, following transposition of the new EU rules, these efforts would be fully justified In addition to this analysis and the good practices outlined, the example of the German award system and the implementation and control over public spending also serves to support the conclusion that ensuring transparency at every step and for every action of the contracting authority is clearly not the key element in combating corruption in the sector Indeed, while an adequate level of information in the award process is a must, Member States with severe corruption problems need to focus on ensuring a wider competitive environment, on flawless and timely control, and on the introduction of provisions with a clear disciplining effect if they truly wish to limit the handing out of public contracts to pre-selected candidates Moreover, some of the significant achievements of Germany in the fight against corruption in procurement underlie the New Procurement Directives The current German practice could thus speed the adaptation of other Member States, like Bulgaria, to some of the rules which will be completely novel to them The analysis, however, also provides objective criticism of some of the new elements in the new procurement package, which, although effective for some countries (as evidently for Germany), may prove supportive of corruption in others (e.g the self-cleaning mechanism, using the most  economically advantageous tender as the sole award criteria etc) In summary, the legal review of the procurement system in Germany leads to the conclusion that a not so burdensome legal framework (additionally enlightened by the transposition of the new EU rules) combined with an efficient and independent control apparatus which monitors the effectiveness of the procedures and demonstrates a strong sanctioning mechanism could be a working recipe for the limitation of corruption in countries at different economic levels of development to Germany and with poor histories in fighting corruption On the contrary – where the German system (overlapping some EU solutions as well) provides for a more discretionary 266 8 Conclusions approach and gives the contracting authorities a freedom of choice, this legislative direction cannot be followed by Member States with issues like Bulgaria’s, without risking exacerbating their problems The parallel drawn in the field of public procurement award and implementation in Austria was of further significance for the present work, because like Bulgaria, Austria has also faced difficulties in managing corruption and its prevention in recent years This helps identify several different aspects and to draw different conclusions from those outlined in the review of the German model Austria is also much more similar in terms of legal system and regulation of public procurement to Bulgaria: this was regarded as a good basis on which positive Austrian practices could be introduced Although Austria has a very different social and economic context and a different CPI, it appears to have serious issues with corruption both among high-ranking officials and more specifically in public spending (as these two aspects are often inextricably linked) Corruption scandals over the last few years have toppled Austria from its position as a stable and upright business partner, while EU criticism on this issue now ringing similar to that in the reports addressed to Bulgaria Despite the similar legislative framework for public procurement in the two countries, the analysis of the legislation and procurement award systems of Austria and Bulgaria reveals differences in their approaches and also in their attitudes towards transparency rules as anticorruption instruments As opposed to the Bulgarian model, in its desire to improve its status, Austria has embraced stricter legislative bodies and improved policing–prosecution apparatus, which has resulted in a large number of cases being detected and prosecuted and effective sentences being handed down The reforms launched by Austria differ significantly from those adopted by Bulgaria While the Bulgarian procurement legislation has suffered countless transformations, the corresponding Austrian law has undergone only a few small-scale amendments in the last years, and though Austria has seriously reorganised its control bodies in order to meet the needs of contracting authorities and contractors for independent control and a swift-acting judicial system The practical experience of the reorganised Austrian bodies is still not sufficiently long-standing for complete conclusions to be drawn, and their functions and responsibilities are expected to be further expanded with view of the new EU legislative base Yet even in their current format they demonstrate a positive change and a focus on the fight against corruption – in actual practice and not only ‘on paper’ The Austrian public procurement agency – the BBG – acts as the main central purchaser and serves as a positive example, with its tailor-made strategy for combating corruption and its code of conduct applicable to all employees The use of the BBG as a CPB is important in terms of its role as an intermediary between businesses and contracting authorities, as is the case in Germany, but much more in terms of being a role model in the fight against corruption The good example which this public procurement body provides while blending the two activities – advisory and practical – is a very positive approach The analysis of Austria in this respect is 8.2 Recommendations 267 invaluable – from genuine practice towards strategy and elaboration of anticorruption measures and not vice versa The legislative framework in the field of public procurement in Austria is not overly specific in terms of the anticorruption instruments created for this sector, but the increased control and broadened powers of the institutions are evidently able to achieve the desired effect The Austrian law sets out the main instruments for combating corruption, as required by EU law In some respects there are national solutions which overlap with the requirements of the New Procurement Directives, although they are not as common as is the case with Germany Some rules mirror the Bulgarian approach as well, but this is again due to the harmonised EU legislation and/or historical similarities and not due to a specific approach of the domestic legislator The investigation into Austria’s award system shows two main differences from Bulgaria’s approach toward resolution of an equally grave problem – corruption in public resource allocation On the one hand, transparency rules are not an endless list of specific requirements in Austrian legislation, as has been the case in Bulgaria in the last few years; on the contrary, transparency is achieved by means of an effective administrative system, functioning е-procurement and a working control and appellate apparatus On the other hand, the trust in Austria’s law enforcement system and its constant refinement and efficient action is what has the greatest impact in combating corruption in public contracts, and distinguishes these two countries Again, it is clear that effective control bodies along with a considerable effort in limiting the human element in procurement award are the best approach to preventing and combating corruption in the sector This conclusion is equally valid both for the current legal systems and for the situation following transposition of the new legislation package 8.2  Recommendations The analysis of the anticorruption policies, transparency rules and procurement award systems of the three Member States which are so close yet so far apart, as well as the highlighting of positive solutions, serves to set out the main recommendations for legislative and institutional measures which should be undertaken in EU countries needing to tackle corruption in procurement They outline not only the weaknesses in national legislation, but also point out legal solutions incorporated in the EU base legislation which are inadequate for countries where corruption remains a serious problem The work succeeded in questioning why ‘the mantra’ for transparency is constantly being repeated in the EU when commenting on the progress of the process of awarding contracts, where there are enough other effective methods which contribute to limiting corruption to manageable levels: –– The legislative framework for procurement at national level needs to present a significantly light, flexible (as to matter of administrative burden) and stream- 268 –– –– –– –– –– –– –– –– –– 8 Conclusions lined system of rules From this perspective, transposition of the new procurement package needs to further take into account the general anticorruption policy and must carefully assess those rules which permit discretion to the national legislator in order to ensure that they not open up additional loopholes for corruption Apart from this, the legislative framework must contain a greater number of imperative rules and give less discretion to the contracting authority with regards to the main decisions related to contractor selection; Decrease of corruption depends directly on the presence of disciplining sanctions, which need to be applied in a timely manner in order to create the perception of proper law enforcement and stability in the legislative and judicial systems Such sanctioning norms should predominate over incentive norms The number of proceedings initiated and corruption schemes detected must be greatly increased; Efficient and independent control of the appellate authorities needs to be established, designed specifically to prevent and detect corruption (exercising effective ex ante, ongoing and ex post control), as well as a designated body to drive the fight against corruption The control system must exercise control both with regards to the legality of procedures and the regularity of their implementation In addition, control needs to focus both on the contracting authority and on the other process participants; Appeal must automatically suspend contract implementation and this suspensive effect must also be supported by speedy proceedings so as not to delay the supply of goods and services required by the contracting authority; An increase in the role of the centralised procurement is expedient The CPBs serve as mediators in the award of standard procedures and increase the distance between the contracting authorities and the bidders-cum-contractors; Reducing the human factor in the award process is a priority This can be achieved by boosting the use of e-procurement implemented in compliance with the provisions of the New Procurement Directives; The responsibility for the presence/absence of corruption in a given public contract should be proportionally distributed among all participants (generally the bribed contracting authority and bribing bidder), and rules need to be introduced concerning the actions of the individual candidates, with a strong disciplining effect; The audit office or auditing body must be a completely independent authority with broad competence in the implementation of public procurement procedures Such an auditing authority needs to have significant expert capacity able to detect corruption schemes by means of audit analyses, and to act as a sanctioning body which may, in addition to administrative penalties, issue recommendations regarding contracting authority actions; The public procurement authority/agency needs to take on wider functions, including corrective anticorruption ones, and not only be responsible for methodological guidelines; Political will for adequate, functioning anticorruption measures must be evident, while the actions of the executive need to be consistent and efficient 8.2 Recommendations 269 In the light of the above, the present work ultimately demonstrates that the fight against corruption in the procurement sector and the curbing of misuse of considerable public funds needs to be a national strategic objective in all Member States, focused on efficient policies to combat this phenomenon and not on the promotion of numerous palliative measures which cannot on their own achieve the desired result ... Union) individual Member States from defining their procurement © Springer International Publishing AG 2017 I Georgieva, Using Transparency Against Corruption in Public Procurement, Studies in European... others (like Bulgaria) they remain an issue © Springer International Publishing AG 2017 I Georgieva, Using Transparency Against Corruption in Public Procurement, Studies in European Economic Law and... any level of certainty 10 2  The EU Principles in Public Procurement Transparency – Origin and Main… Dynamic inter-state integration increases the risk of a nation’s actions in politics or economics