The building designers involvement varies with each type of development depending on defined levels of responsibility required by the

client. At the picture illustrates the main differences between the design and build and the traditional procurement processes. The traditional stages in the creation of a new building can be defined as pre-contract prior to commencement of work on site, describing the building in theoretical terms and post-contract once construction has commenced.

Procurement processes. The design basic advice from Outline interested ideas and programming the design pre-contract stage includes the following: Inception period. Feasibility options. proposals authorities.

Meeting the client, receiving the clients brief, starting to collect survey information, initial

Formulating the design brief, including contributions from all the consultants, considering

Establishing a concept in principle from the design brief requirements, obtaining outline

 interested heating

Scheme

design authorities.

Developing an agreed idea into a coherent working proposition, obtaining approvals from

Detail installations, Construction

design etc. information

Fully developing the idea, incorporating specialist design work for structures, electrical and

Detailed working drawings and specifications defining all the elements in the new building. required Obtaining contractor to construct the building as designed; confirmation of construction methodology and construction The Supervision, requirements Lessons for the next project and for the future. and settlement of the final post-contract stage includes on approvals and the programming. following: site valuations. Completion account. Feedback competitive prices to construct Tendering from a number of selected the new Measurement building. arrangements contractors. planning

Preparation of bills of quantity with numerical measurement of all the materials and labors

Pre-contract

Analysis of tenders and exchange of contracts between the client and the successful

Construction inspections,

Handover to client and user occupation, correction of defects, completion of contract

1. Pre-contract Problem Solution

Face - Contents - Previous/Next "Final Report on the Implementation of the Pilot Project on Public Procurement" The most important part of the Public Procurement Pilot Project has, beyond any doubt, been the precontract problem solution issue. The issue can be looked at from at least three different angles. One aspect is the "hard law approach" which means problem solution according to the letter of the directives and the national legislation. That means problem solution by invoking the national complaint systems. This option could perhaps better be named "conflict solution" rather than "problem solution". It is dealing with problems emerging during the tendering process but at a very late stage when the tendering procedure already has reached the point of no return when a bidder discovers that something has gone very wrong. Another aspect is the "soft law approach" which means problem solution at an early stage of the tendering procedure, before the procedure has come to a conclusion. In these cases we are not speaking about annulations of the procedures or other remedies but about a correction of the ongoing process giving all bidders a chance to participate on equal footing and with an adjustment of the terms and conditions so they are complying fully with the regulatory framework. A third aspect has to do with the application of the "hard" and "soft" law approaches in cross-border cases. How to ensure that a bidder with residence in another Member State of the European Union will be treated at least as favourable as bidders in the country of origin of the tender. The discussions of these issues have been based upon a large number of specific cases and on the basis of an analysis of the problem solving systems. All the above-mentioned problems are related to the pre-contract phase of the tendering procedure. A completely different issue is the use of the complaint systems when the tendering procedure has been terminated, a contractor has been selected and a contract has been signed. These kinds of problems will be dealt with in the next chapter. A. The formal review system Based on the participating countries' answers to a questionnaire, the manner in which the different countries have chosen to establish a review system will be described in this chapter. This includes how the countries have chosen to organize the formal review system, the use of the system measured by the number of cases, and the advantages and disadvantages of the system. The questionnaires reveal that the countries participating in the study have chosen different ways to set up the formal review system. Therefore, precontract problem-solving is also different in these countries.

Table 1. Type of system, formal problem solution The unit responsible for meeting the requirements of the remedy is the Bundesvergebeamt (BVA), an independent legal review system. The Complaints Board for Public Procurement acts as required in the remedies directives as a legal administrative court. The Competition Council has the jurisdiction and works as the Complaint Authority. Complaint Boards, responsible for the proceedings in the first instance, are set up in each Land. Federal contracts fall within the jurisdiction of the federal Complaint Board. There is no designated Complaint Authority. The Governments Contracts Committee is responsible for procurement policy and practice. Infringements of the EU rules regarding the public procurement awarding procedures are subject to the administrative court.

Austria Denmark Finland

Germany

Ireland

Italy

There is no designated Complaint Authority. Decisions of a public The authority regarding procurement are seen as legal transactions under Netherlands civil law. Norway There is no designated Complaint Authority. The national court is used as a review body. There is not an administrative court in the matter of procurement. Taken decisions by an administrative authority are submitted, in case of remedies in the ambit of the juridical system, to the final decision of the competent judge. There is no designated Complaint Authority. The review system operates through the administrative courts in Sweden. At a federal level the independent the Federal Appeal Commission takes the final decisions. At the cantonal level the administrative Courts works as the formal review system. The directives are implemented in the UK by Regulations. They allow for proceedings to be brought in the High Courts. The Courts then have the necessary power.

Spain

Sweden

Switzerland

United Kingdom

The table shows that some countries have not established specific national complaint systems for procurement. The reason is that the general rules of civil procedure offer the facilities requested by the remedies directives, for instance interim proceedings in urgent cases, normal or accelerated proceedings and claims for damages. The courts have the powers to investigate and intervene in procurement cases under national law, and to suspend or set aside a decision made by the contracting authority. As seen above this is the case in for instance Norway, Ireland, Italy, the Netherlands, Spain, Switzerland and the UK. In the Netherlands, decisions of a public authority regarding procurement are also seen as legal transactions under civil law. Disputes in procurement procedures outside the scope of the directives (for instance tenders under the threshold values) may also be brought before the ordinary courts. Specific remedies like a corrective mechanism, conciliation and attestation/verification have been implemented separately in the Dutch law.

Some of the countries using the courts operate at a regional level. Procurement undertaken by the regional authorities may be challenged in the regional (administrative) courts. This is, for instance, the case in Switzerland. Other countries, for instance Austria, Germany and Denmark, have set up Complaints Boards to meet the requirements of the remedies directives. These boards have the necessary power to review the cases brought before them, as required by the directives. The Complaints Boards are independent administrative units that hear complaints submitted by complainants concerning violation of the EU rules in specific cases. As required by the directives decisions of the Complaint Board can be subject to juridical review. Since the cases are brought before the Complaint Boards in the same manner as cases are brought before civil courts, these boards do not normally have the powers to investigate and intervene in procurement cases under national law on their own initiative. When considering the remedies for breaches of the directives the member states have different opinions on appropriate measures. In some member states, for instance in Germany and in Denmark, the Complaints Board can intervene in an ongoing procedure and has the power to nullify illegal decisions. Thus the Board can intervene both before and after the contract has been awarded. In other member states, for instance in the Netherlands and in the UK, if the award decision is challenged after a contract between a contracting authority and a company has been concluded, damages are the only potential remedy. The participating countries were asked about the advantages and disadvantages of their particular system. The typical advantages of the formal review system mentioned by the participating countries:

Conformity with the law, The systems provide a final decision, There is a possibility to intervene in an ongoing procedure.
In general the countries do point out the following disadvantages:

Typically high costs for the involved parties, The length of the procedure, Complainants are reluctant to use the formal review system because of the above, The companies fear the chances of winning the future contracts might be harmed.
B. Analysis of the Formal Pre-contract Review Systems By its very nature, every formal review system is part of a specific legal system with its traditions, concepts and principles. Therefore the objective is not to propose a "standard solution" that works for all systems, but rather to identify a number of issues and possible solutions to be addressed. Among them are the following:

Should the formal consideration of procurement cases be part of the general rules of procedure or should a specific regime be established to deal with pre-contract review cases?
The advantage of using general rules of procedure is obvious: by submitting cases to a court of justice, the parties apply legislative developments that have developed over generations. Furthermore, the costs and difficulties financial as well as "political" of arranging an alternative procedural system will be reduced. Therefore, in general, there must be strong arguments for "re-inventing the wheel" and develop a sui generis system for public procurement cases. The next question might lead to the identification of such arguments:

Do the general rules of procedure allow for sufficient remedies for a party to prevent ongoing presumably unlawful proceedings from being effected?
The answer to that question depends on how the court system allows for interim measures. Most court systems have such rules, but the conditions for applying them vary substantially. As mentioned under some of the disadvantages, it may take weeks for a court to arrange a preliminary hearing in some jurisdictions, in others it can be done overnight. Some legislatures provide the formal review procedure with an automatic suspension effect on the contract award procedure to which they relate. In other systems the costs of invoking these procedures are paramount, notably because the plaintiff is requested to produce a bank guarantee to cover any loss to the defendant, in case an injunction is unsustainable. In other systems, the remedy is available at no substantial costs. If the said rules may generally prevent SME's from producing an injunction before a final contract is made in a medium-scale procurement process, or whether such costs would generally be considered to be prohibitive and if, in a large scale of cases, the application of the court rules is considered to be prohibitive, alternative ways to deal with the said pre-contract complaints should be considered. If so, the following question arises:

If the consideration of cases is subject to a specific procedure, should this procedure be part of the court system or should a specific administrative body be delegated to consider these matters?
The answer to that question is to a large extent dependent upon the structure of the court system and the administrative system in question. Therefore, obviously, it cannot be answered without taking the two systems into consideration. Among the aspects to be considered, the time and costs factors are again paramount.

If a specific administrative body is appointed to consider these complaint matters, how should the powers be delimited between the said body and the court system?
In answering this question, some crucial decisions have to be made in regard to the operation of the two systems. As in other areas of procedural law, there is a general need to balance the rule of law principle with the interests of efficiency: Justice takes time and costs money. In this delicate balance that should be decided at the national level and in accordance with the legal traditions of the jurisdiction in question, some simple points can be made. Among them are the following:

If decisions from an administrative tribunal can be brought before a court of justice, it may be justifiable to lower the procedural guarantees in the interest of expediency, If the procedure before the administrative body includes safeguards similar to those provided by the procedural system, it may be justifiable to preclude an overlap of the two systems, 12

If a preliminary injunction be it produced by a court of law (bailiff 's court) or by an administrative tribunal allows the unsuccessful party to bring the case before an appeals court with no substantive costs, it may be justifiable to lower the procedural guarantees in the interest of expediency and efficiency, If a specific administrative tribunal is empowered to consider cases, it must be decided what powers it is to have. In this decision, there is not "one size that fits all". To some parties, the power to grant damages in a pre-contract case may be the proper solution, whereas to other parties a decision to suspend the procedure provides the adequate remedy. In some cases, the suspension of the procedure may be viewed to be extremely cumbersome to the respondent, whereas in other cases notably when big volumes are at stake a decision to pay damages may be so.
C. Alternative methods of problem-solving Only a limited number of the countries participating in the survey have established systems for informal pre-contract problem solving. Most of the countries have, instead, set up advisory boards, contact points or equivalent bodies. Table 2. Type of System for Informal Problem Solution Separate dispute settlement body. Only recommendations in precontract cases. The Competition Authority considers the complaints. Only recommendations in pre-contract cases. Possibility to bring cases before the Complaints Board. Single Market Contact Point only cross-border cases. Some federal and regional governments have established administrative procurement review bodies. No specific body established. Independent body with contact to the Commission, but with no legal authority to solve disputes. No specific body established. The Ministry of Economics considers the complaints. No specific body established. The Ministry of Economics considers the complaints with assistance from a panel of experts, NFOA. No specific body established. The Ministry of Economics considers the complaints with assistance from an Advisory Committee (on Public Contracts). The National Board for public procurement, NOU, which is a body under the Swedish Ministry of Finance, is responsible for dealing with this type of case. A Commission on Public Procurement (CPCC) is responsible for the informal problem solution. Single Market Contact Point only cross-border cases. A conciliation system is being planned as an alternative to courts

Austria

Denmark Finland Germany Ireland Italy The Netherlands Norway

Spain

Sweden

Switzerland The United Kingdom

proceedings. As parts from the table, some countries have set up contact points that render advice and assist companies facing problems specifically in cross-border cases. A few countries have established an independent function for informal pre-contract problem solving. In Austria a separate dispute settlement body, BVKK, is attached to the formal review body, BVA. In Italy, the Italian Public Works Authority operates in close contact with the European Commission and the European Court of Auditors, consulting it in all the cases of major interpretative interest, and with the corresponding authorities in the other participating countries. The German procurement legislation authorises the federal and regional governments to establish administrative procurement review bodies, which take no part in the formal and juridical review system. They have the power to reverse the decisions of the awarding authority if procurement rules have been violated. They also have the task of informal dispute resolution and act in an advisory capacity to the awarding authorities. In Denmark, the Danish Competition Authority has the overall responsibility in the procurement area. In order to increase the possibilities of swift identification of violations of the procurement rules and a correspondingly speedy treatment of complaints, the Danish Competition Authority was given formal legal authority to bring cases before the formal review body, the Complaints Board. Through this possibility there is a substantially preventive effect vis--vis the contracting authority in question. As appears from the above, there is in some countries no pre-contract problem-solving function. These countries have a significantly lower number of complaints, which might indicate that a problem- solving function facilitates complaints about irregularities in procurement procedures. Other countries have for several years had a system dealing with alleged violations of the rules. These activities have been well known to companies, which may explain the higher number of complaints. Some countries like the Netherlands have also introduced systems to stimulate contracting authorities to comply with the public procurement rules and thus prevent cross-border problems from arising. The Competent Authorities (CAs) participating in the survey were also asked:

If they believed that the companies had heard of the pre-contract problem-solving system, If they believed that the companies know where to submit a complaint and, Who submitted the actual complaint to the CA (the company, advisors, business organisations etc.)?
The companies' familiarity with the option of precontract problem solving as a means of avoiding conflicts varies a great deal from one country to another. In countries with a high number of cases in precontract problem solving, the companies that participate in public procurement know in general about the possibility of pre-contract solving. Countries with little experience in pre-contract problem solving point out that only a minority of the companies know about the pre-contract problem- solving system. In these countries there is a need for more information towards the companies regarding the system.

In general, the complaining companies know where to submit their complaints when the Competent Authorities are well-established and wellknown institutions. Often, however, companies have the impression that the Competent Authority has powers it actually does not have, for instance that there are legal possibilities to challenge the decisions already taken by the public authority. In almost all cases the company has submitted the complaints itself. Except for questions of a more general matter the complaint is rarely filed through business organisations, lawyers or others. This indicates that the companies are typically well informed about how to complain. The countries having set up a system for informal problem solution have pointed out the different advantages and disadvantages of an informal review system. The typical advantages of such a system could be summarised in the following:

Fast solutions to the problems, The solution will usually be less costly for the complainants, The CA has the possibility to react in an ongoing procedure, The contracting authorities respect the CA's assessments and recommendations. And the disadvantages are: Typically the companies do not have sufficient knowledge of the problem-solving system, The CA may not have any guidelines for considering the cases, The CA does not have the ability to impose any sanctions when the contracting authority violates the procurement rules.
In addition to the above, a few countries point out that the Competent Authority's identification time is too long, which reduces the authority's possibility to intervene. D. Analysis of the Alternative methods of Problem-solving Following the conclusions of the previous chapter, the present chapter will highlight some ideas that might be taken into consideration by participating countries who endeavour to make processes for solving pre-contract problems in a swift and flexible manner more efficient. Also in this regard, there is obviously not one solution that fits all legal systems. Any consideration on how to reach this goal should initially focus on questions like:

Following the main reasons underlying the decision to establish alternative methods for problem- solving, what cases should fall within it?
The foregoing analysis indicates that not all cases are suited for informal procedures. A participating country that considers alternative methods for conflict resolution may therefore wish to consider what kinds of cases should be left outside. Common features of the formal review system and alternative methods for problem-solving handling show that some elements must be present in order to ensure that the systems are efficient at the precontract stage. In cases of deliberate infringements, e.g. where such infringement appears to be the result of high-level political decisions made because substantial national interests are at stake or by contrast where the facts are so unclear that thorough investigation is needed, alternative methods may not be adequate. This may also be so in cases where the legal assessment is very complicated or subject tofundamental doubt and where there is a general need for case law.

What is the aim of producing an informal precontract problem-solving system?

The answers to that question can be given at several levels, following the conclusions from the questionnaire outlined in chapter 5. In general, the most fundamental answer should be to make problemsolving more efficient, both in the interest of cost saving for the parties, and in a market perspective.

What authority should be given the task of assisting complaining parties in starting an alternative problem-solving procedure?
In answering this question it should be borne in mind that there are competent authorities with formal powers to enforce the procurement directives. Among the participants in the PPPP, there have been different views on whether, in addition to this general task, a particular authority should also be appointed to supervise or monitor the procurement area and work as a contact point. No general recommendation can be made on this issue.

How should cases be handled under the informal system?

In order to make an informal system transparent to its users, the rules by which cases are considered should be made explicit, for example in a set of principles for procedure, in a manual or in other information available to the public. What procedure should complainants follow to initiate a case? What time frames should complainants expect the Competent Authority to work within? These questions will be discussed further in the following chapter.

How should the formal and informal systems complement each other?
In general, competent authorities should not get involved in cases that are already subject to court procedures. On the other hand, the informal handling of a case should not prevent the complainant from pursuing the case under formal procedures. However, it should generally be made clear to the CA involved in the informal process that a formal process is underway. In both a formal and an informal procedure are chosen, there should be a point where theinformal procedure should cease. The determination of that point should take into consideration what effects the formal procedure may have on the informal procedure. Clearly, at the point at which the deciding body has withdrawn to consider the case, an informal procedure should not also take place. On the other hand, the fact that the formal procedure implies a fact-finding process (including depositions, recovery proceedings or the like) should not in itself exclude the possibility of affecting it alongside informal proceedings. It may very well be that the information provided by those means can be used as a vehicle for obtaining an informal decision.

How should the participating country give information on the system?

An informal solution will either be implemented as a government decision or have a specific legislative basis. In both cases a precondition of success is that the companies and the CA have been informed sufficiently about the problem-solving systems. E. Observations After having discussed the experiences of all the participating countries, after having analysed the results of the discussions in the Steering Committee and after having carefully considered the results of the survey of the pre-contract solving systems the participants in the Public Procurement Pilot Project have agreed to a number of observations, which should be contemplated by the Commission and all the Member States. Hopefully leading to operational conclusions.

The observations are as follows:

1. The aim of this study is not to suggest a uniform system for all participating countries, but to give inspiration to the participating countries to further improve their methods for precontract problem-solving should they wish to do so. 2. Participating countries which do not currently have alternative methods for pre-contract problem- solving could decide whether and when they would like to introduce such a system, 3. Participating countries that have alternative methods of pre-contract problem-solving or are planning to establish such methods should consider agreeing on a common guideline for cooperation on how this system should work among its participants, 4. The competent authorities should be committed to develop a plan for information activities to inform companies, advisors, business organisations etc. about the available services, 5. When the competent authorities inform about the activities regarding pre-contract problem solution, it is necessary to specify the capacities of the competent authorities' powers, 6. Each participating country must allocate adequate resources to implement the guideline for co-operation, 7. The countries should consider a specific guideline on how concrete cases are to be dealt with by the competent authorities. 8. The competent authorities in the Member States should consider to install project teams (ad modum The Netherlands) to stimulate contracting authorities in the central government and in regional and local authorities to perform a professional procurement policy.