00:14:08 Kristy Varda: Hello from Loudoun County, Virginia USA 00:14:41 Gigih Pribadi: Hello from Jakarta, Indonesia 00:20:58 Paul Lalonde: Thanks for mentioning the Tracker, Chris. Here is a link: https://publisher.dentons.com/experience/bid-challenge-tracker. 00:25:39 Paul Lalonde: Try this: https://www.dentons.com/en/whats-different-about-dentons/connecting-you-to-talented-lawyers-around-the-globe/news/2021/march/dentons-launches-global-bid-challenge-tracker-to-enable-quick-comparison-of-bid-challenge-laws 00:25:56 Christopher Yukins: Our program information page, with extensive research resources and the panelist biographies: https://publicprocurementinternational.com/webinar-bid-challenges-international/ 00:27:55 Christopher Yukins: Kasia Kuzma is framing the key purposes, from a European perspective, of a bid challenge system -- an important overview. 00:29:00 Paul Lalonde: In Canada's bid challenge process, bidder confidential information is protected from disclosure (to avoid problem of competitors getting at commercially sensitive information). 00:32:55 Christopher Yukins: A pending question: In procurement Best practice, who should be selected to be part of the Dispute Resolution Board to handle procurement complaints? Answer: the U.S. experience is that attorneys, experienced in procurement, handle complaints at GAO, the independent bid challenge forum. 00:34:57 Katarzyna Kuzma: https://www.stowarzyszeniepzp.pl/images/2017PDF/Functioning-of-legal-protection-measures-in-EU-countries-Warsaw.pdf 00:35:37 Paul Lalonde: In Canada, the members of the bid challenge authority (Canadian International Trade Tribunal) are independent adjudicators with a mixed bag of experience. Often former senior trade officials/lawyers. Few have dedicated procurement experience before being named. Not ideal. 00:36:15 Katarzyna Kuzma: I was just sending a link to the report called "Functioning of legal protection measures in EU countries. Key conclusions" produced by the Polish Public Procurement Law Association. It could be useful: https://www.stowarzyszeniepzp.pl/images/2017PDF/Functioning-of-legal-protection-measures-in-EU-countries-Warsaw.pdf 00:42:09 Kieran McGaughey: Good morning/afternoon all. In the UK we are currently in the midst of a public procurement reforms (post Brexit). Interested to see your comments above on the composition of panels handling disputes. One of the consultation questions here in the UK posed that very question, and we await the outcome. Personally I favour the involvement of both lawyers and those with practical experience of procurement. 00:43:44 Christopher Yukins: One of our recent webinars with Michael Bowsher QC and King's College, London was on the pending UK procurement reforms, post-Brexit -- available on publicprocurementinternational.com. 00:44:09 Sandeep Verma: In India, the origin of legal protests on public procurement in higher courts lies in constitutional rights guaranteed under the Indian Constitution: (1) the right of equality—equal treatment before law and equal protection of the law; and (2) the right to freedom of occupation-to run a business, including government contracting business, subject to being technically and financially qualified to do so. 00:45:20 Christopher Yukins: Thank you, Sandeep, for your excellent comments. Comments to "All panelists and attendees" will be preserved as part of the program record, as a chat/text file, on publicprocurementinternational.com. 00:48:03 Mara Demichelis: Thanks to Prof. Yukins for mentioning the Network - Prof. Gabriella M. Racca, Coordinator of the Ius Publicum Network Review: http://www.ius-publicum.com/pagina.php?lang=en&pag=fascicolo - mail (for further information and proposals for contributions): coordination.iuspublicum@gmail.com 01:05:08 Andrei Bennett: Without prejudice to other admin law procedures, in Jamaica, a quasi-judicial tribunal known as the Procurement Review Board is given competence to hear applications for reconsideration and review of decisions of a procuring entity. The tribunal has fairly broad powers to dispense with the application, including the award of costs. Interestingly, an application for reconsideration must be accompanied by a fee equal to 0.05% of the procurement contract price. 01:05:47 Allison Anthony: We have been debating this in SA for a while - whether the public should be able to challenge bids based on public interest. Currently not permitted due to privity of contract. 01:06:36 Allison Anthony: Perhaps it should be more seriously considered with the astounding increase of corruption in SA since covid19. Other government functions have been suffering greatly due to stolen funds. 01:06:48 Geo Quinot: @Allison - I do think that the judgment in the Sanparks case has opened standing up to include the full constitutional standing also in procurement cases dealing with post-award challenges. 01:06:49 caroline nicholas: The poll is very interesting. One issue thrown up by the Covid situation - many bidders may have no incentive to challenge in these circumstances (contracts won't be overturned); they may also not have knowledge in relevant time (failure to follow transparency rules). So limiting challenges to bidders in exceptional circumstances may be too restrictive. On the other hand, citizens' challenges may be unduly disruptive in normal circumstances. Are there any countries with a differentiated approach? Thanks 01:07:59 Christopher Yukins: We will hear in a moment about a "safety valve" built into GAO's rules in the United States, to hear input from other parties. 01:08:12 Allison Anthony: @Geo - let's hope so. 01:08:25 Peter Trepte: What about providing a different avenue for CSOs? On the basis of what they know or can find out without breaching confidentiality of the procurement process… 01:08:39 Sandeep Verma: In India, while the bid challenge, de jure, kind of allows only interested bidders to file a bid challenge; the (de facto) practical experience with administrative functioning and legal experience in higher courts veers to option 4: any citizen can effectively file a bid protest. With public interest litigation being filed by any interested citizen, sometimes successfully so, even after many years of contract award, such an open standing to protest creates its own interesting consequences on how relatively honest procuring officials approach a contract award decision; and other officials approach the same decision. 01:13:28 Laurence Folliot Lalliot: In France, the Administrative supreme court has opened a special challenge for Unions and third parties. Based on the tradition of judicial review, enforcing the procurement rules is seen as part of legality issues, going beyond the privity of contract. BUT the judge requires strict standing parameters : the protester should have direct interest affected. That is a way to restrict this venue. 01:14:53 Andrei Bennett: The matter of standing has not yet been litigated in Jamaica. The relevant legislation gives standing to "an aggrieved person firm or entity"- though there is the possibility to dismiss an application on the basis that the aggrieved party does not have sufficient interest to bring the application. Quite unclear, but I suspect typical JR tests would be used. 01:15:24 Geo Quinot: @Laurence - is this special mechanism available for both pre-award and post-award challenges? 01:15:57 Laurence Folliot Lalliot: Yes 01:19:52 Robert Anderson: Thanks, Chris and other colleagues, for a very rich and interesting set of perspectives. Will this be available for access afterwards? Also, it would be terrific if as many panelists as possible could send links to supporting documents. Great job. Rob 01:20:06 Christopher Yukins: The Constitutional Court in Johannesburg is built into the side of a prison used to hold African National Congress leaders and other political prisoners. All important reminders of the great changes going on in South Africa. 01:22:03 Christopher Yukins: @ Robert Anderson -- all the materials (including YouTube video) will be posted on our program site, publicprocurementinternational.com, and the video will be on the GW Law Government Procurement Law YouTube page. 01:24:17 Geo Quinot: Yes, major changes on the horizon for bid challenge in South Africa due to the major procurement law overhaul that is on the cards. The current draft bill proposes a whole range of additional challenge mechanisms (some of which follows the Model Law) with entity review, administrative review, tribunal review and then only court. Some comments on this in the special edition of the African Public Procurement Law Journal's special 2020 edition on the reforms in South African procurement law - see https://applj.journals.ac.za/pub/issue/view/10 01:34:41 Robert Anderson: Very important comment by Peter. I am seeing all these problems in countries I am working with. 01:38:40 Kristy Varda: This was seen in the JEDI Case... 01:39:09 Paul Lalonde: Procurement authorities in Canada would complain that bid challenges are highly disruptive, but the reality in here is similar to what Matt describes in Canada. Process here is done in 90 or 135 days. 01:41:00 Christopher Yukins: On the publicprocurementinternational.com website are links to a study we recently did with the Administrative Conference of the United States on agency-level bid protests, a study which was endorsed by Congress, and which suggested potential reforms of agency-level bid protests in the US federal system. As Matt pointed out, agency-level bid challenges tend to be underused. 01:42:01 Kristy Varda: All staff (legal, procurement, end users, etc.) involvement and the loss of other project productivity needs to be factored into the cost of a protest. 01:42:09 Mara Demichelis: The role of third parties in the monitoring of the correct execution has been explored in: G. M. RACCA, R. CAVALLO PERIN, Material changes in contract management as symptoms of corruption: a comparison between EU and U.S. procurement systems, in G. M. RACCA – C. R. YUKINS (a cura di) Integrity and Efficiency in Sustainable Public Contracts. Balancing Corruption Concerns in Public Procurement Internationally, Bruylant, Bruxelles, 2014, 247-274 (http://www.ius-publicum.com/repository/file/Racca/2014%20-%20Racca%20-%20Cavallo%20Perin%20-%20Material%20changes%20in%20contract%20management%20as%20symptoms%20of%20corruption%20EU-US.pdf) and in G. M. RACCA, The role of third parties in the execution of public contracts, in L. Folliot-Lalliot - S. Torricelli (eds), Controle et contentieux des contrats publics - Oversight and remedies in public contracts, Bruylant, Bruxelles, 2017, 415-448 (https://publicprocurementinternational.com/oversight-and-challenges-of-public-contracts/) 01:42:43 Allison Anthony: Naturally in construction disputes it is disruptive as the project can usually not continue until the matter is settled. 01:44:24 Paul Lalonde: @Shaun Scott - 10 business days here in Canada. Works reasonably well. Issue is 10 days from when? It can get tricky in messy processes, where multiple issues arise over time. 01:44:50 Gabriella Racca: 30 days in Italy 01:45:26 Kristy Varda: defining what you mean by "days" is critical in your procurement document so that there is no chance for misunderstanding. 01:45:38 Christopher Yukins: Sweden has as many bid challenges as the U.S. government, roughly. Sweden has 9 million people. The US has 330 million people. 01:47:14 Geo Quinot: In South Africa, it is between 180 and 360 days (depending on what was communicated at the outset when the decision was taken)! And then one can still ask the court to condone late filing after that period! 01:48:38 Christopher Yukins: The UN Convention Against Corruption Article 9 calls for an "effective" bid challenge system -- which raises questions if the filing fee (or a bonding requirement) is too high. Essentially all nations are signatories to the Convention. 01:50:00 Shaun Scott: @Christopher. Very interesting. I missed the discussion on "filing fees". Are there guidelines on this? 01:50:04 Laurence Folliot Lalliot: In France, public contracts protests by biders are handled through specific emergency procedures by the Administrative courts: 2 months ( + the 10 days standstill period) 01:50:18 Paul Lalonde: WTO GPA, Art. XVII.3: 3. Each supplier shall be allowed a sufficient period of time to prepare and submit a challenge, which in no case shall be less than 10 days from the time when the basis of the challenge became known or reasonably should have become known to the supplier. 01:52:46 Shaun Scott: @Christopher. Can the chat be made available along with the video, please? 01:53:13 Geo Quinot: @Chris - must it be one OR the other - can't it be AND? 01:53:34 caroline nicholas: Great webinar - thanks! 01:53:45 Amina Deji-Logunleko: Thank you. 01:53:48 Allison Anthony: Thanks everyone. 01:53:54 Paul Lalonde: Thanks, Chris! Great moderating job, as usual! 01:53:54 Shaun Scott: … and the Chat please Christopher 01:53:58 Shaun Scott: Great Webinar