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Foreword |
6 |
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Preface |
8 |
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Contents |
10 |
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About the Author |
14 |
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Abbreviations |
15 |
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Table of Cases of the European Court of Justice and the General Court (in chronological order) |
20 |
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Chapter 1: Introduction |
22 |
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1.1 Aspects Analysed |
22 |
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1.2 Benchmarking |
23 |
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Chapter 2: The EU Principles in Public Procurement. Transparency – Origin and Main Characteristics |
25 |
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2.1 The Procurement Principles. The Concept of Transparency |
25 |
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2.2 Transparency – How Does it Start? |
29 |
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2.2.1 The Meaning of Transparency |
31 |
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2.2.2 Features and Functions of Transparency |
33 |
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Providing the Right Amount of Information |
34 |
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Increase of Competition |
35 |
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Control, Collaboration and Participation in Government Policies |
36 |
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Anticorruption Instrument |
38 |
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A Moral Postulate |
39 |
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2.3 Transparency in the EU Public Procurement Legislation and the Work of International Organisations. Evolution of the Principle |
39 |
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2.3.1 The Treaties and the European Court of Justice |
40 |
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2.3.2 The Directives |
42 |
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2.3.3 The Work of International Organisations Towards Transparency in Public Procurement Procedures |
44 |
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WTO |
45 |
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OECD |
46 |
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Transparency International |
46 |
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2.3.4 Evolution of the Transparency Principle in the Field of Public Procurement |
47 |
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Traditional Perception |
47 |
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Anticorruption Aspect. Shift of Priorities |
50 |
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2.4 Progress and Degradation of the Principle of Transparency. The Example of Bulgaria |
54 |
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2.4.1 Historical Predisposition |
54 |
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2.4.2 Transparency in the Bulgarian Procurement Legislation |
60 |
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2.5 Concluding Observations |
64 |
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Bibliography |
68 |
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Chapter 3: Corruption – Definition and Characteristics |
70 |
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3.1 The Reasons for This Chapter |
70 |
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3.2 Corruption – Common Definitions |
71 |
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3.2.1 Forms of Corruption |
72 |
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3.2.2 Origins |
74 |
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3.2.3 Causes and Consequences |
76 |
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3.2.4 International Organisations Against Corruption |
76 |
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3.3 Corruption in Figures |
77 |
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3.4 Corruption in Government Procurement – A Global Review |
78 |
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3.5 Members States with Higher Levels of Corruption – The Example of Bulgaria |
82 |
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3.5.1 Historical Explanation of the Predisposition to Corruption |
82 |
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3.5.2 Economic Factors for Corruption in Bulgaria |
86 |
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3.5.3 Corruption in Bulgaria in Figures |
88 |
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CPI |
88 |
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CMS |
90 |
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3.5.4 Corruption in Government Procurement |
92 |
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3.6 Concluding Observations |
94 |
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Bibliography |
94 |
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Chapter 4: The Public Procurement System in Bulgaria: Authorities, Participants, Control and Achievements |
96 |
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4.1 What Is Examined, and Why? |
96 |
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4.2 The Participants |
97 |
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4.2.1 Contracting Authorities |
97 |
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4.2.2 Bidders |
99 |
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4.3 Authorities Involved in the Public Procurement Process. Controlling and Appellate Authorities |
100 |
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4.3.1 Council of Ministers |
100 |
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4.3.2 Controlling Authorities |
100 |
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The Public Procurement Agency |
102 |
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National Audit Office and Public Financial Inspection Agency |
106 |
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4.3.3 Appellate Authorities |
111 |
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Commission for Protection of Competition |
112 |
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Supreme Administrative Court |
113 |
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4.4 Why Not Less Burdensome But More Effective? |
115 |
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4.5 Some Warriors in the Uneven War Against Corruption in Bulgarian Public Procurement |
116 |
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4.5.1 Who Are They? |
117 |
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4.5.2 Center for the Study of Democracy |
118 |
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4.5.3 Transparency International in Bulgaria |
120 |
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4.5.4 The BORKOR Project – An Attempt to Transfer German Experience in Bulgaria |
125 |
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Pre-qualification |
128 |
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Central Public Procurement Services |
129 |
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4.6 Where Does Bulgaria Stand Now? |
133 |
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Bibliography |
134 |
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Chapter 5: Infringements in Procurement Procedures. Corruption Loopholes and Practices |
136 |
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5.1 Methodology |
136 |
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5.2 Statistics |
138 |
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5.3 Types of Infringements and Incidents of Corruption |
142 |
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5.3.1 Choice of Object Phase |
142 |
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Disbursement of Public Funds Without Regard to Legal Rules |
142 |
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Splitting/Subdividing Public Procurements with the Purpose of Evading the Law |
144 |
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Unsubstantiated Implementation of a Negotiated Procedure Without Prior Publication of a Contract Notice |
148 |
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5.3.2 Announcement Phase |
151 |
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Setting Very Short Time Limits for Tender Preparation |
151 |
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Lack of Coordination Between Documents |
153 |
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Inclusion of Selection Criteria and/or Technical Specifications Which Unreasonably Restrict Participation in the Procurement or Offer an Advantage to One of the Tenderers/Candidates |
155 |
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Mixing Up Selection and Contract Award Criteria |
160 |
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Infringement of, and Changes in, the Evaluation Methodology |
162 |
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5.3.3 Procedure Conduct Phase |
166 |
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Unjustified Cancellation or Continuance of Procedure on Behalf of Contracting Authorities |
166 |
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Participation and Award to ‘Related Parties’. Conflict of Interest. Bid Rigging |
169 |
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Unreasonably Favourable Offers |
171 |
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5.3.4 Contract Implementation Phase |
174 |
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Unwarranted Amendments in the Course of Implementation of Public Procurement Contracts |
174 |
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5.4 One Verdict, Among ... Few |
177 |
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5.4.1 Background |
177 |
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5.4.2 Infringements Found |
178 |
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Inclusion of Requirements Which Unreasonably Restrict Participation in the Procurement and/or Offer an Advantage to One of the Tenderers |
178 |
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Infringement of, and Changes to, the Evaluation Methodology |
179 |
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Unjustified Elimination of Tenderers and Continuing the Procedure with Only One Candidate |
179 |
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5.5 Findings and Future Challenges |
181 |
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5.5.1 Relevant Conclusions |
181 |
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5.5.2 New Legislative Decisions – New Corruption Loopholes |
182 |
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Reserved Awards |
183 |
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Preliminary Market Consultations |
184 |
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Self-Cleaning Mechanism |
184 |
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Bibliography |
186 |
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Chapter 6: The German Procurement System – A Successful Battle Against Corruption |
187 |
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6.1 Benchmarking Mechanism |
187 |
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6.2 Why Germany? |
189 |
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6.2.1 Legislative Similarities |
189 |
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6.2.2 Corruption Level |
189 |
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6.2.3 Public Procurement System |
192 |
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6.2.4 Socioeconomic Differences |
193 |
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6.3 Main Characteristics of the German Public Procurement System – Applicable Legislation |
196 |
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6.4 Main Principles. Transparency Obligations |
198 |
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6.5 The Integrity Pact as a Tool to Optimise Transparency and Curb Corruption |
200 |
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6.6 Contracting Authorities Under GWB |
202 |
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6.7 Procedures |
202 |
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6.8 Award Criteria |
204 |
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6.9 Appeal |
205 |
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6.10 Corruption in Public Procurement and the German Way to Combat It |
210 |
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6.10.1 Corruption Prevention Legislation |
210 |
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6.10.2 Anticorruption Strategies and Institutions |
212 |
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6.11 Successful Pillars to Raise Against Corruption in the Award of Public Contracts |
214 |
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6.11.1 Adequate Legislative Decisions Providing Clear and Unambiguous Rules |
215 |
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6.11.2 Modernised and Facilitated Conduct of Procurement Procedures |
221 |
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6.11.3 Centralised Procurement |
225 |
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6.12 Lessons to Be Learned from Germany |
228 |
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Bibliography |
230 |
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Chapter 7: Public Procurement in Austria – Reforms Limiting Corruption |
232 |
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7.1 Why Austria? |
232 |
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7.1.1 Legislative Similarities |
232 |
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7.1.2 Corruption Level |
234 |
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7.1.3 Public Procurement System |
236 |
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7.1.4 Socioeconomic Differences |
237 |
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7.2 Main Characteristics of the Austrian Public Procurement System – Applicable Legislation |
240 |
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7.3 Main Principles. Transparency Obligations |
243 |
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7.4 Contracting Authorities Under BVergG |
246 |
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7.5 Procedures |
251 |
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7.6 Award Criteria |
253 |
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7.7 Appeal |
255 |
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7.8 Corruption Prevention |
261 |
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7.8.1 Corruption Prevention Legislation |
262 |
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7.8.2 Responsible Bodies |
265 |
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7.8.3 Other Anticorruption Efforts in Public Procurement |
270 |
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7.9 What Can Be Borrowed from Austria? |
272 |
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Bibliography |
274 |
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Chapter 8: Conclusions |
276 |
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8.1 Groups of Conclusions |
276 |
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8.1.1 Transparency Principle Efficiency Against Corruption |
276 |
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8.1.2 Control and Appellate Authorities Effectiveness |
279 |
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8.1.3 Outline of Good Practices |
280 |
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8.2 Recommendations |
284 |
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