Independence of Public Procurement Review Body

News | Rule of Law and Human Rights | Article 7 May 2020

Institute for Development of Freedom of Information considers that it is questionable whether Georgia succeeded to comply with the obligation undertaken by  Article 143 of the Association Agreement. We believe, that the institutional framework for the independence of the Dispute Resolution Council is still far from complying with the standards required by the agreement signed with the European Union.

 

It is of utmost importance, that the structure of the Council and the rules of appointing its members do not raise questions over its independence from the viewpoint of an objective observer. Even if the body is technically independent from all the actors involved in the procurement process, it is important to ascertain what place it occupies within the hierarchy of public institutions. It is necessary to set up the dispute resolution system in a way that minimizes the doubts over its independence. Otherwise, the loss of trust in the institution could have a tangible negative impact on the entire procurement system. The public will give up on the benefits, for which a well-functioning and efficient system should be created in the first place.[1] As a result, the main goal of the public procurement dispute resolution system, that is taking relevant measures against misconduct and delinquency, will remain unattainable.

 

In order to fulfill the obligations undertaken by Article 143 of the Association Agreement between Georgia and the European Union, and ensure public trust towards the independence and impartiality of the Dispute Resolution Council it is necessary to take a number of legislative steps, namely:

 

- New rules for the appointment and removal of members of the Council should be developed, which will facilitate the institutional and operational independence of the Council. Unlike the existing practice, detailed rules of appointment and dismissal should be regulated by a legal rather than a sub-legal act;

 

- High qualification requirements for the Council members should be developed. At least the chairperson of the Council should meet the qualification requirements applicable to judges. While developing the requirements, it should be taken into consideration that this minimum standard of qualification should ensure that the Council members make well-reasoned decisions based on in-depth assessment of evidence;

 

- The term of office of the Council members should be extended. The term should be proportional to the important role and function assigned by the legislature to the Council;

 

- The existing rules for appointing the members of the Council should be changed to minimize conflicts of interest;

 

- One of the grounds for the early dismissal of the Council members, namely his/her dismissal from the nominating body, should not be the ground for terminating his/her office term as the member of the Council;

 

- The Council should have an own structural unit which will provide it with relevant administrative and technical support. The Council should not be obliged to rely on the human resources of the Agency;

 

-  It is necessary for the Council to have independent financial resources, which will be spent on the salaries of the Council members, remuneration of experts and other necessary expenses.

 

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The publication of this article was financed by the Open Society Institute Budapest Foundation (OSI). The opinions expressed in this document belong to the Institute for Development of Freedom of Information (IDFI) and do not reflect the positions of Open Society Institute Budapest Foundation (OSI). Therefore, OSI is not responsible for the content

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