HANDBOOK KEY JUDICIAL SKILLS AND COMPETENCIES. for REVIEW COMMISSION ON PUBLIC PROCUREMENT IN ALBANIA

HANDBOOK KEY JUDICIAL SKILLS AND COMPETENCIES for REVIEW COMMISSION ON PUBLIC PROCUREMENT IN ALBANIA

...1 CHAPTER 1 PROCEDURAL FAIRNESS...6 1.1 WHAT IS PROCEDURAL FAIRNESS?...6 1.2 WHICH RIGHTS ARE COVERED BY PROCEDURAL FAIRNESS?...6 1.2.1 Right to be heard...7 1.2.2 Right to be informed...7 1.2.3 Right to representation...8 1.2.4 Right to present and challenge evidence...8 1.2.5 Right to a reasoned decision...9 1.2.6 Right to applicable law...9 1.2.7 The right to equal treatment...9 1.2.8 The right to be heard by an independent/impartial review body...10 CHAPTER 2 CONFLICTS OF INTEREST...11 2.1 IMPARTIALITY AND CONFLICTS OF INTEREST...11 2.2 WHAT IS A CONFLICT OF INTEREST?...12 2.2.1 Actual Conflict of Interest...13 2.2.2 Apparent Conflict of Interest...13 2.2.3 Potential Conflict of Interest...13 2.3 WHAT IS A PRIVATE INTEREST?...13 2.3.1 Types of private interest...15 2.3.2 Personal interests...16 2.3.3 Political interests...16 2.3.4 Social interests...17 2.3.5 Gifts...18 2.4 PREJUDICE AND PREDETERMINATION...19 2.5 DEALING WITH CONFLICTS OF INTEREST...19 2.5.1 How to identify a conflict of interest...20 2.5.2 How to disclose a conflict of interest...20 2.5.3 How to avoid/mitigate conflicts of interest...20 2.5.4 Legal impact of not-dealing with conflict of interest...22 2.5.5 Appointment and employment after leaving office...22 2.6 CASE STUDIES...23 CHAPTER 3 EVIDENCE AND PROCEDURE...28 3.1 INVESTIGATIVE CHARACTER OF THE REVIEW PROCEEDINGS...28 3.2 ROLE AND NATURE OF EVIDENCE...28 3.3 TYPES OF EVIDENCE...28 3.3.1 Written statements...29 3.3.2 Expert opinions...29 3.4 RELEVANCE OF EVIDENCE...30 3.5 OBTAINING EVIDENCE...31 3.5.1 Evidence obtained from the complainant...31 3.5.2 Evidence obtained from the contracting authority...32 3.5.3 Evidence obtained by the tribunal...32 3.6 DISCLOSURE OF EVIDENCE...33 3.7 WEIGHT OR PROBATIVE VALUE ASSESSING THE EVIDENCE...33 3.8 ADMISSIBILITY OF EVIDENCE...35 3.9 BURDEN OF PROOF...35 CHAPTER 4 PROTECTING CONFIDENTIAL INFORMATION...37 4.1 CONFIDENTIAL INFORMATION AND THE TRIBUNAL S ROLE...37 4.2 WHAT INFORMATION IS CONFIDENTIAL?...38 4.2.1 Confidential information designation by law...38 4.2.2 Confidential information designated by third parties...39

4.2.3 Confidentiality test...39 4.3 EXAMPLES OF CONFIDENTIAL INFORMATION...40 4.4 INFORMATION CONSIDERED AS NON-CONFIDENTIAL...41 4.5 HOW TO DESIGNATE INFORMATION AS CONFIDENTIAL...41 4.6 ACCESS TO CONFIDENTIAL INFORMATION...42 4.7 INFORMATION SECURITY...42 4.8 CASES STUDIES...44 CHAPTER 5 APPROACH TO REMEDIES...51 5.1 TYPES OF AVAILABLE REMEDIES...51 5.1.1 Interim measures...51 5.1.2 Set-aside...53 5.1.3 Standstill period...57 5.1.4 Ineffectiveness of the contract...58 5.1.5 Damages...59 CHAPTER 6 DISCRETION...60 6.1 WHAT IS DISCRETION...60 6.2 HOW TO APPLY DISCRETION...60 6.2.1 Recommendation...60 6.2.2 General recommendations for tribunals...62 6.3 STEPS TO BE CONSIDERED WHEN EXERCISING DISCRETION...66 6.4 DISCRETION UNDER THE PPL...67 6.4.1 Issue of interim order...67 6.4.2 Decision on oral hearings...67 6.4.3 Decision on request for an evidence...67 6.4.4 Decision on the remedy...68 6.4.5 Determination of the issues of a complaint...68 CHAPTER 7 WRITING DECISIONS...70 7.1 HOW TO APPROACH WRITING?...70 7.2 HOW SHOULD THE DECISIONS BE STRUCTURED?...70 7.2.1 Introduction...71 7.2.2 Description of the issues...73 7.2.3 Description of the material facts...75 7.2.4 Summary of applicable law...75 7.2.5 Analysis application of law...75 7.3 STYLE AND REVISION...77 7.3.1 Conciseness...77 7.3.2 Paragraphs...78 7.3.3 Use of headings...79 7.3.4 Steps for revisions...79 3

Foreword The purpose of this handbook is to provide the commissioners and inspectors of the Albanian Public Procurement Review Commission with guidance in their decision-making process. The handbook focuses on various procedural phases and instruments of the proceedings and key judicial skills and competencies which should be applied by the commissioners and inspectors in their everyday work. It provides general advice, practical tips and recommendations and case studies which should help the commissioners and inspectors to better understand the underlying principles of the review proceedings, facts they have to focus on and consider and the content of the rights and obligations of the tribunal and participants to the proceedings. The handbook addresses the following topics: Procedural fairness; Conflict of interest; Evidence and procedure; Protecting confidential information; Approach to remedies; Discretion; and Writing of decisions. The handbook is based on the Albanian legal framework governing the review procedure such as the Act No. 9643 on Public Procurement, Act No. 8485 on Administrative Procedure Code and Instruction, but at the same time it draws from the best practices of quasi-judicial and judicial authorities in other countries including European as well as common law countries especially Australia, New Zealand, Canada or USA. Although the practice of quasi-judicial and judicial authorities in common law countries may seem to be very different from practice of authorities from the civil law countries, due to their different legal systems, the basic and underlying principles of administrative procedure and skills which decision makers should apply in the decision making process are in fact very relevant. These skills, approaches to the decision-making process and principles applied in administrative procedure are to a great extent common to both legal systems. In addition, our research showed that materials for quasi-judicial and judicial authorities in the common law countries provide very comprehensive, clear and practical guidance on the best practice to be followed by decision makers. Therefore, we drew heavily from these common law sources while respecting the Albanian legal framework. It is intended that commissioners and inspectors should study the handbook and apply approaches, processes, methods and interpretations suggested in the handbook in the review proceedings. However, the advice and recommendations contained in the handbook do not represent the only possible alternative and commissioners and inspectors should still use their own judgment, knowledge, common sense, and experience. This handbook was prepared within the framework of the European Bank for Reconstruction and Development (EBRD) capacity building program in cooperation with the EBRD, White and Case, Bratislava, Slovakia and Kalo and Associates, Tirana, Albania and was funded by the EBRD Slovak Republic Technical Cooperation Fund. 4

List of used abbreviations Instruction PPL Tribunal Tribunal member refers to Instruction on Functioning and Organization of the Review Commission approved by the Council of ministers decision No. 184 refers to Act No. 9643 on Public Procurement refers to the Review Commission on Public Procurement in Albania or to a general procurement review body if key judicial skills and competencies are described in the context of best practices refers to the commissioners and inspectors of the Review Commission on Public Procurement or to members of general procurement review body if key judicial skills and competencies are described in the context of best practices 5

Chapter 1 PROCEDURAL FAIRNESS This chapter addresses the basic principles of procedural fairness, description of procedural fairness rules and their application to the review proceedings. 1.1 What is procedural fairness? Procedural fairness (or the right to a fair trail) can be defined as a party s right to be heard and to make its arguments in the review proceedings. Principles of procedural fairness in the review procedure should ensure that both the complainant and the contracting authority have a genuine and equal opportunity to influence the tribunal. The tribunal is an administrative body to which procedural fairness obligations apply. As the tribunal decides on the rights and obligations of the parties to the review proceedings, it is important to recognize that the tribunal members perform a quasi judicial role and, therefore, the tribunal members should see themselves more as independent decision makers than mere administrators of the public procurement review process. 1.2 Which rights are covered by procedural fairness? The European Convention on Human Rights (the ECHR ) and its relevant case law is considered as the leading standard for procedural rights of parties to legal proceedings. Article 6 of the ECHR states that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 1 The case law relevant to Article 6 of the ECHR defines procedural fairness as a combination of the following rights: (i) (ii) (iii) (iv) The right to a public hearing (which generally includes the right to an oral hearing, if there are not any exceptional circumstances); The right to be heard within a reasonable time; The right to be heard by an independent and impartial tribunal; The right to a fair hearing which includes: The right of access to a court (right for a court review of the administrative decision); The right to be present at the proceedings (only extends to certain kind of cases); The right to a principle of equality of arms (everyone who is a party to proceedings must have a reasonable opportunity to present his case to the court under conditions which do not place him at a substantial disadvantage against his opponent); The right to adversarial proceedings (to have knowledge of and comments on all evidence stated); The right to a reasoned decision. 2 1 Based on established case law to ECHR, administrative proceedings fall under Article 6 regime 2 Prepared on the basis of The Right to a Fair Trail; A Guide to the Implementation of Article 6 of the European Convention on Human Rights, Human Rights Handbook No. 3, 2006. 6

Albanian Code of Administrative Procedure reflects the ECHR case law. Therefore, the main parties rights which must be respected by the tribunal in order to guarantee procedural fairness include the following: (i) (ii) (iii) (iv) (v) (vi) (vii) the right to be heard; the right to be informed; the right to be represented; the right to present and challenge evidence; the right to a reasoned decision; the right to applicable law; the right to equal treatment; and (viii) the right to be heard by an independent/impartial review body. 1.2.1 Right to be heard The tribunal not only has a duty of fairness to the complainant, but also must ensure that the contracting authority (and other persons who may be affected by the decision, if applicable under Albanian law) is given an adequate opportunity to present its case. It should be noted that under the provisions of the Albanian Code of Administrative Procedures the parties to a dispute have the right to be heard in writing or orally. However, the PPL does not require the holding of oral hearings. In the public procurement context, the hearing usually consists of the complainant s submission of written material to the tribunal and contracting authority. Following the receipt of the complaint, the contracting authority should provide the tribunal with its statement and address the subject of the complaint. Many public procurement tribunals do not provide the complainant with the right to comment on the contracting authority s statement, mainly due to the process economy and the significance of the timeliness in the procurement process. However, some states (e.g. Germany) provide for oral hearings, which allow the complainant to challenge all of the contracting authority s statements before the tribunal. Oral hearings definitely present a better option for both parties to address the other party s position. A useful alternative to the oral hearing and a complementary option to the current Albanian written hearing is an extended application of the written hearing which provides the complainant with the right to receive and comment on the contracting authority s response to its complaint within a specified period of time. 1.2.2 Right to be informed Each party should have the right to be informed on the hearings to be held and about the development of the proceedings, in order to adequately prepare its argument or to have access to files to familiarize with the other party s statement. The PPL does not expressly provide for oral hearings in the review procedure, neither does it provide the parties with the right to access files. In general, the tribunal does not provide any information on the progress of the review proceedings to the parties or on the other party s 7

position. The exception being the fact that the contracting authority is provided with the complaint as the complainant files the complaint with the tribunal and the contracting authority. Thus, Albanian law does not allow the complainant to receive and respond to the contracting authority s statement to its complaint. Although the complainant is provided with the decision of the contracting authority which can be challenged by a complaint, it is not allowed to comment/respond to the contracting authority s statement which may include new information or evidence. The adequate respect for the right to be informed would be observed (i) if the tribunal decided to hold an oral hearing with the presence of both the complainant and the contracting authority or (ii) would provide both parties with the right to access the review proceedings file. If the oral hearing is held, the complainant and the contracting authority should have the right to attend the whole hearing in order to respond to all evidence and arguments brought by the other party. 1.2.3 Right to representation The complainant and the contracting authority have the right to present their case or to have their case presented in the review proceedings by a lawyer or another representative of their choice. The tribunal may not impose any restrictions on the parties right to representation, unless otherwise provided in the applicable law. Currently, this is not the case in Albania and thus, this right is fully respected 1.2.4 Right to present and challenge evidence The purpose of the right to call evidence is to establish the facts. Only after the facts are clear is it possible to determine how the law will apply to those facts. A corollary of the right to call evidence is that the tribunal should have an appropriate mechanism that a party can use to require other persons who have relevant information to provide it to the party or tribunal. 3 The parties are entitled to present any evidence that can prove their case in the review proceedings. It is the tribunal s responsibility to properly assess and evaluate any evidence that is submitted by the parties and to decide if it helps to establish the basic facts of the case, or if other evidence may be needed. Each party should also have the right to challenge the evidence submitted by the other party and thus, respond to the evidence which is unfavorable to its claims. In the review proceedings, the contracting authority is provided with the complaint and, thus, has a reasonable understanding of the complainant s arguments and can adequately challenge the complainant s position. On the other hand, the complainant is only provided with the tender documentation or the contracting authority s decision, which forms the basis for its complaint. However, as the contracting authority can present new arguments in its response to the complaint, the complainant is deprived of its full right to challenge evidence of the contracting authority. The Albanian procurement review procedure is not the only review system which limits the complainant s right to challenge the contracting authority s response. The public procurement laws of some EU Member States apply same or similar rules. 3 A Manual for Ontario Adjudicators, Society for Ontario Adjudicators and Regulators, 2000, p. 46. 8

For more on evidence please refer to Chapter 3. 1.2.5 Right to a reasoned decision The parties have a right to be informed about the reasons for the tribunal s decision. Stating reasons requires summarizing the results of the investigation procedure, the arguments determining the evaluation of the evidence and the considerations of the legal issues which have been relevant for the decision. Therefore, the tribunal should base its decision solely on facts which have been proven by evidence presented by the parties or requested by the tribunal or available within the public domain (e.g., applicable legal regulations, technical norms, market practice, information available on internet, basic information about a particular industry). 1.2.6 Right to applicable law It is the basic duty of tribunal members to follow the applicable law and apply it consistently in every case that comes before it in compliance with the basic public procurement principles: the equal treatment and non-discrimination of tenderers, the transparency of procurement procedures and the effectiveness and economy of the procurement. The tribunal should also consider the intent of the PPL which aims to enhance the value-for-money, open and effective competition, accountability, and due process of law. The tribunal will not commence the review proceedings if the required fee has not been paid, the submitted documents are incomplete or if another technical deficiency in the complaint does not allow the tribunal to do so. Best practices in some of the states provide the complainant with the right to be informed by the tribunal that such deficiency exists and be provided with the opportunity to correct such deficiency within a specified time. However, under Albanian law (and also under law of many EU Member States), the tribunal will declare the complaint as inadmissible due to non-compliance with the formal requirements of the PPL, inform the complainant about it within 3 days and indicate its right to appeal such decision in the court and inform the contracting authority about the restarting of the contract award procedure. Different rules apply if the complaint can not meet the basic legal requirements i.e., if the complaint was filed after the lapse of the review period or the complainant was not entitled to file the complaint. In such scenario, the tribunal is entitled to dismiss the complaint as nonadmissible. 1.2.7 The right to equal treatment Article 14 of ECHR provides for equal treatment of the parties. The ECHR court protects the parties against discrimination when states treat differently persons in analogous situations without providing an objective and reasonable justification. However, the right not to be discriminated against under Article 14 in the enjoyment of the rights guaranteed under the ECHR is also violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. 4 4 ECHR court case - Thlimmenos v. Greece, Judgment of 6 April 2000, para. 44. 9

Thus, the tribunal should not only treat the parties equally if the nature of the case is similar or in order to provide both parties in the review proceedings with the same rights, but it should also differentiate among the parties whose situation is significantly different when deciding on the merits of the complaint or applying procedural rules against the parties to the same proceedings (e.g. if two complainants challenge the same contract award procedure, the tribunal needs to assess the situation of each complainant separately based on the applicable evidence and position of particular complainant). 1.2.8 The right to be heard by an independent/impartial review body Each party is entitled to a hearing by an independent tribunal whose members have no conflict of interest in the reviewed matter. The tribunal should meet the ECHR test for an independent tribunal where the court considers (i) the manner of appointment of its members, (ii) the duration of their office, (iii) the existence of guarantees against outside pressures and (iv) the question whether the body presents an appearance of independence. 5 The impartiality and the various types of conflicts of interest that may apply to tribunal members and the rules for dealing with conflicts of interest are addressed in Chapter 2 5 The Right to a Fair Trail; A Guide to the Implementation of Article 6 of the European Convention on Human Rights, Human Rights Handbook No. 3, 2006, p. 30. 10

Chapter 2 CONFLICTS OF INTEREST This chapter addresses conflict of interest issues. It defines conflicts of interest and specifies the basic types of conflicts of interest that can arise for members of the tribunal. It also provides guidance on the identification and disclosure of conflicts of interest and proposes actions which may be taken in order to avoid or mitigate them. The chapter concludes with case studies which provide practical insight into daily dealings with conflict of interest. 2.1 Impartiality and conflicts of interest A central requirement of administrative justice is the decision maker s impartiality. Impartiality is a principle of justice holding that decisions should be based on objective criteria, rather than bias, prejudice, or the preference of one person over another for improper reasons. 6 Impartiality is a fundamental principle of all judicial, quasi-judicial and administrative institutions, and the obligation to be impartial can be found in many codes of ethics for public servants and judges all around the world. 7 This also applies to the tribunal members, where under the Albanian Code of Ethics of Public Officials, public servants are obliged to be honest, impartial and not to allow their private interests to conflict with their public position and to avoid conflicts of interest and never use their public position for private interests. 8 Conflicts of interest 9 may occur when there is a predisposition to not approach a case with an impartial mind and there is a real danger that the tribunal member might unfairly regard with favor (or disfavor) the case of a party that is subject to the review proceedings. Every tribunal member has a number of professional and personal interests and roles. Sometimes, conflicts of interest cannot be avoided and can arise without anyone being at fault. This is almost inevitable in a small country like Albania where communities, organizations and individuals are often closely connected. Therefore, as suggested by the OECD Guidelines, it is necessary to set a clear conflict of interest policy and approach that will cover the following issues: Definition of the general features of conflict of interest situations; Identification of specific occurrences of unacceptable conflict of interest situations; Leadership and commitment to the implementation of a conflict of interest policy; 6 http://en.wikipedia.org/wiki/impartiality 7 See e.g., Guidance for Promoting Judicial Independence and Impartiality prepared by USAID, January 2002, http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacm007.pdf, see e.g. also Model Code of Conduct for Public Officials, Recommendation No. R (2000)10, adopted by the Committee of Ministers of the Council of Europe Available at http://www.coe.int/t/dghl/monitoring/greco/documents/rec(2000)10_en.pdf. Codes of Ethics of OECD countries can be found at OECD webpage http://www.oecd.org/document/12/0,3343,en_2649_34135_35532108_1_1_1_37447,00.html. Other sources for the codes of conduct of CEE and EE countries can be found in the the work of Jolanta Palidauskaite, Ph.D., Codes of Conduct for Public Servants in Eastern and Central European Countries, Comparative Perspective, or European principles for public administration/sigma papers Nr. 27 available at http://www.oecd.org/dataoecd/26/30/36972467.pdf. 8 Act No. 9131 on the rules of ethics in public administration. 9 For the purpose of this guide we use the term conflict of interest to also cover bias. Bias is a common legal description of some types of conflicts of interest, especially those situations that involve predetermination. 11

Awareness that assists compliance with and the anticipation of at-risk areas for prevention; Disclosure of a conflict of interest as soon as it arises; Partnership with other stakeholders. Identification of actions necessary to avoid any effects of a conflict of interest and to meet their mandatory obligations. 10 2.2 What is a conflict of interest? The Organization for Economic Co-operation and Development (OECD), in its Guidelines for managing conflicts of interest in the public service (2005), defines conflict of interest as a conflict between the public duty and private interests of a public official, in which the public official has private-capacity interests which could improperly influence the performance of their official duties and responsibilities. 11 The Albanian Act on the Prevention of Conflicts of Interest in the Exercise of Public Functions 12 defines a conflict of interest as a conflict between the public duty and the private interest of a public official, in which he/she has a private interest, direct or implicit, that affect, could affect or seems to affect the performance of his/her public duties and responsibilities in an unfair manner. Thus, a conflict of interest is not only the situation where in fact there is an unacceptable conflict between a public official s interests as a private citizen and his/her duty as a public official, but also those situations where there is an apparent conflict of interest or a potential conflict of interest. The distinguishing element is whether the effect on the exercise of the duties has occurred or could have occurred or in fact the effect has not occurred, is not occurring or cannot occur. 13 Albanian law distinguishes between: an actual conflict of interest - a situation in which the private interests of a tribunal member affect, have affected or might have affected the performance of his/her duties and responsibilities as a tribunal member in an incorrect way; an apparent conflict of interest - a situation in which the private interests of a tribunal member, prima facie or by their form, seem to affect, have affected or might affect the performance of his/her duties and responsibilities as a tribunal member in an incorrect way, but, in fact, the effect has not occurred, is not occurring and cannot occur; a potential conflict of interest - a situation in which the private interests of a tribunal member might in the future cause an actual or apparent conflict of 10 OECD Recommendation on Guidelines for Managing Conflict of Interest in the Public Service (2003), p. 4 available at http://www.oecd.org/dataoecd/17/23/33967052.pdf, p. 6, or www.oecd.org/gov/ethics/conflictofinterest. 11 See OECD Recommendation on Guidelines for Managing Conflict of Interest in the Public Service (2003), p. 4. See also OECD/SIGMA Conflict of Interest Policies and Practices in Nine EU Member States: A comparative Review (2005), Sigma papers No. 36 available at http://www.oecd.org/officialdocuments/displaydocumentpdf/?cote=gov/sigma(2006)1/rev1&doclanguage=en and http://dx.doi.org/10.1787/5kml60r7g5zq-en. 12 Act No. 9367, On the Prevention of Conflicts of Interest in the Exercise of Public Functions. 13 Act No. 9367, On the Prevention of Conflicts of Interest in the Exercise of Public Functions. 12

interest to appear, if the official were to be included in certain duties or responsibilities. Like Albanian law, the OECD Guidelines also distinguish between actual, apparent and potential conflicts of interest and state that an apparent conflict can be said to exist where it appears that a public official s private interests could improperly influence the performance of their duties but this is not in fact the case. A potential conflict of interest arises where a public official has private interests which are such that a conflict of interest would arise if the official would become involved in the relevant (i.e., conflicting) official responsibilities in the future. 14 In addition to actual, apparent and potential conflicts of interest, Albanian law further recognizes case by case conflicts of interest and continuing conflicts of interest. The OECD Managing Conflict of Interest in the Public Sector Toolkit ( OECD Toolkit ) suggests three tools for identifying actual, apparent and potential conflicts of interest. 15 2.2.1 Actual Conflict of Interest This occurs where the private interest of the tribunal member is of such a quality (e.g., due to a relationship to one of the parties to the proceedings) or quantity (e.g., profits that can be gained by the tribunal member) that it is reasonable to believe that the private interest could improperly influence the decision-making of the tribunal member. An actual conflict of interest is inadmissible and must be avoided. Otherwise a decision affected by the conflict of private interest of a tribunal member could be challenged before a court. 2.2.2 Apparent Conflict of Interest As suggested in the OECD Toolkit, an apparent conflict of interest can be as damaging as an actual conflict of interest and thus should be treated as an actual conflict of interest until all doubts regarding the personal interests involved are known. 16 2.2.3 Potential Conflict of Interest As the definition of the potential conflict of interest suggests, the personal interest of a tribunal member exists but because he/she is not involved in the decision making, this conflict of interest is not an issue. It would become an issue if the tribunal member s role changes and he/she becomes involved in the matter. 2.3 What is a private interest? A key term that determines conflict of interest is a private interest. An interest in this context means anything that can have an impact on an individual or group. The term private interest includes not only a tribunal member s own personal, professional or business interests, but also the personal, professional or business interests of individuals or groups 14 OECD Recommendation on Guidelines for Managing Conflict of Interest in the Public Service (2003), p. 4. 15 OECD Recommendation on Guidelines for Managing Conflict of Interest in the Public Service Toolkit (2005), p. 23-25. 16 OECD Recommendation on Guidelines for Managing Conflict of Interest in the Public Service Toolkit (2005), p. 23-25. 13

with whom they are closely associated. This can include relatives, friends or even rivals and enemies. 17 Albanian law defines private interests as those interests that conform with, contain, are based on or come from: (a) (b) (c) (d) (e) (f) (g) property rights and obligations of any kind of nature; every other juridical civil relationship; gifts, promises, favors, preferential treatment; possible negotiations for future employment by the official during the exercise of his/her function or negotiations for any other form of future relationship with a private interest for the official after leaving his/her position; engagements in private activity for the purpose of profit or any kind of activity that creates income, as well as engagements in profit-making and non-profit organizations, syndicates or professional, political or state organizations and every other organization; relationships: (i) (ii) (iii) (iv) (v) within a family or among individuals who live together; in a community; ethnic; religious; recognized [relationships] of friendship or enmity; prior engagements from which the interests mentioned in the above letters of this article have arisen or could arise. In our opinion, the above definition of private interests gives clear guidance on situations in which conflicts of private interests exist. Thus, it is in line with the recommendation contained in the OECD Guidelines. 18 17 In whose interests? Preventing and managing conflicts of interest in the APS, Australian Public Service Commission, 2009, p. 2. Copyright Commonwealth of Australia reproduced by permission. 18 OECD Recommendation on Guidelines for Managing Conflict of Interest in the Public Service (2003), p. 7. 14

2.3.1 Types of private interest As defined under the Albanian law, private interests can be divided into the following categories 19 : Personal interests being in a family relationship with the complainant s or contracting authority s representative involved in the procurement in question; having a personal relationship with the complainant s representatives or the contracting authority s representatives involved in the procurement in question. All of the types of private interests apply to tribunal members if their relative or close friend has one of these private interests or if such relative/close friend could be personally affected by a decision of the tribunal. Political interests holding another public office (applies to a relative or a close friend, as the tribunal member may not hold another public office); holding or expressing strong political or personal views that may indicate prejudice or predetermination for or against a person or issue. Financial interests being an employee, advisor, director, or partner of another business or organization; having a professional or legal obligation to complainant or contracting authority; owning assets which may be directly or indirectly influenced by the decision (ownership of land, shares in a company or other investments); having a promise of future employment; receiving a gift, hospitality or other benefit from the complainant or the contracting authority or from someone related to them. Social interests being a member of a club, society or association; being a member of a particular religious or ethnic group; deciding on a matter which deals with the tribunal member s town/village of residence. Some of the specific types of private interests are addressed below. Please note that this is not an exhaustive list of examples of private interests. 19 Examples used in Managing conflicts of interest: Guidance for public entities, Controller and Auditor General, New Zealand, 2007, p. 6-7, have been adjusted to the tribunal s situation. 15

2.3.2 Personal interests One of the most problematic issues is to assess what constitutes a personal relationship which must be taken into account in deciding on the existence of a conflict of interest. Family members If the decision should have an affect on immediate family members (spouse or dependent children) of the deciding tribunal member, this would obviously constitute a conflict of interest for the tribunal member and thus, he/she should abstain from deciding that matter. Relatives With relatives it is a bit different. Generally, it will depend on the closeness of the relationship and the degree to which the tribunal s decision or activity could directly or significantly affect them. A relationship could be close because of the directness of the blood or marriage link, or because of the amount of association. There are no clear rules because these questions involve matters of degree, but it is usually wise not to participate if relatives are seriously affected. 20 Friends and other associates Similar qualifications apply to friends and other associates. It is unrealistic to expect a member or official to have absolutely no connection with or knowledge of the person concerned. Albania is a small and interconnected society. Thus, simply knowing someone or having worked with them, or having had official dealings with them will not usually create any problem. However, a longstanding, close, or very recent association or dealing might. If the tribunal s decision or activity affects an organization that a relative or friend works for, it may be legitimate to take into account the nature of their position for instance, whether they are a senior executive or owner, or whether they are a junior staff member who is not personally involved in the matter and who would not be personally affected by the decision. 21 2.3.3 Political interests Political activities There are no firm rules about the extent to which a tribunal member may properly maintain links with groups and activities outside the tribunal. The public interest should take priority in any potential conflict with private activities, and a tribunal member should consider how a third party would view his/her behavior and how the activity or association might tarnish the integrity of the tribunal. The overriding principle could be that: a public office holder should not participate in a political activity where it may reasonably be seen to be incompatible with the public office holder's duty or impair his or her ability to discharge his or her duties in a politically impartial fashion or cast doubt on the integrity or impartiality of the office. 22 In the event that the tribunal member is a member or a strong supporter of a political party, his/her political views must remain separate from his/her decision making process as it is an important feature of professionalism and impartiality of the tribunal member (no matter if the contracting 20 Managing conflicts of interest: Guidance for public entities, Controller and Auditor General, New Zealand, 2007, p. 19. 21 Managing conflicts of interest: Guidance for public entities, Controller and Auditor General, New Zealand, 2007, p. 19. 22 Information Handbook for Employment Insurance Board of Referees, Employment Insurance Appeals Division, 2010, p. 16. 16

authority is under the control of his favorite party (preferential treatment) or the competing party (negative treatment)). Generally, under the Albanian Code of Ethics, public officials are not allowed to be engaged in an outside activity that (i) impedes the performance of his official duty or asks for his commitment, mental or physical, so as to make difficult the performance of his duties, or (ii) is a continuation of this duty, that infringes in any manner the image of the employee of the public administration. In case of doubt about the qualification of an activity as permissible or not, the tribunal member should consult with the tribunal head. Therefore, the tribunal members may get involved in political activities only as long as it does not impede performance of their duty. The following activities, if kept to a permissible extent, could be allowed and thus would not create a conflict of interest issue: membership in a political party contributing funds a political party; attending political party s events, displaying campaign materials, or expressing political views in a public setting. 23 2.3.4 Social interests Associations with community and other organizations Membership in organizations by active and knowledgeable tribunal members is clearly of benefit to the tribunal. Nevertheless, a tribunal member needs to be aware of the potential problems that membership in such organizations may create. This may be the case in a situation where a tribunal member has expressed his/her views as a member of a nongovernmental organization and such matter subsequently comes before the tribunal. 24 An organization membership might not be the issue. In some circumstances, support for an organization could be equally compromising, particularly regarding public comments or written statements. Donations to a particular organization might also be of concern. Even anonymous donations could breach the principle. In assessing the character of their involvement, tribunal members should think about how a reasonable well-informed observer might react if such interest or involvement were made public. Therefore, if the tribunal member provides donations to organizations and these organizations are involved in the review proceedings, he/she should refuse to participate as his/her donations to the organization in question could give a rise to a conflict of interest. While tribunal members may belong to a committee or advisory body which deals with law reform or other legal issues, they should be mindful of any involvement that may include advising on issues which are controversial or inconsistent with their tribunal role. The expression of a conflicting view could diminish respect for such member and the authority of the tribunal. 25 23 Information Handbook for Employment Insurance Board of Referees, Employment Insurance Appeals Division, 2010, p. 16. 24 Administrative Review Council, Commonwealth of Australia, Guide to Standards of Conduct of Tribunal Members, 2009, p. 30. Copyright Commonwealth of Australia reproduced by permission. 25 Administrative Review Council, Commonwealth of Australia, Guide to Standards of Conduct of Tribunal Members, 2009, p. 31. Copyright Commonwealth of Australia reproduced by permission. 17

2.3.5 Gifts Under Albanian law, it is prohibited for a tribunal member to seek or accept, directly or indirectly, any gifts, favors, promises or preferential treatment, given because of his/her position, if it could create a conflict of interest. A tribunal member, to whom a gift, favor, promise or preferential treatment is offered, should: refuse it and, if the offer was made without his/her knowledge or in advance, return it to the offeror or, if this is impossible, officially surrender it to the tribunal head or to the nearest superior institution; try to identify the person who offered it and his/her motives and interests; in any case, immediately inform the tribunal head or the nearest superior institution about the gift, favor, promise or preferential treatment offered or given, the identification of the individual who offered it, and the circumstances, as well as the possible reasons for this event and its relation to his/her duties as a tribunal member; continue the exercise of duty normally, especially regarding the problem for which the gift, favor, promise or preferential treatment was offered, and continually keep the superior informed about every possible development; if the offer is related to the commission of a criminal offense, report it to the organs competent for criminal prosecution. Albanian law on the Prevention of Conflicts of Interest prohibits the acceptance of any gifts regardless of their value and thus, is even more restrictive than the OECD guidelines which allow for acceptance of certain gifts under special circumstance (e.g. gifts in accordance with social customs (such as birthdays or festivals) or gifts in recognition of services). 26 Other best practices state that a tribunal member should not accept gifts of any kind where this could reasonably be perceived to compromise the impartiality of the public official. 27 If Albanian law moves towards a more material test on gift restrictions, i.e., focuses on gifts which may give rise to a conflict of interest, the tribunal member would have to consider (i) the nature and value of the gift, (ii) the person giving the gift and his/her relationship with the tribunal and (iii) the context in which the gift is being given. This materiality approach has been also adopted by OECD which in its Guidelines suggests using the following questionnaire when deciding on the acceptance of the G Genuine Is this gift genuine, in appreciation for something I have done in my role as a public official, and not requested or encouraged by me? I Independent If I accept this gift, would a reasonable person have any doubt that I could be independent in doing my job in the future, especially if the person responsible for this gift is 26 OECD Recommendation on Guidelines for Managing Conflict of Interest in the Public Service Toolkit (2005), p. 45. 27 Administrative Review Council, Commonwealth of Australia, Guide to Standards of Conduct of Tribunal Members, 2009, p. 34. Copyright Commonwealth of Australia reproduced by permission. 18

involved or affected by a decision I might make? F Free If I accept this gift, would I feel free of any obligation to do something in return for the person responsible for the gift or for his/her family or friends/associates? T Transparent Am I prepared to declare this gift and its source, transparently, to my organization and its clients, to my professional colleagues, and to the media and the public in general? 28 2.4 Prejudice and predetermination Tribunal members are entitled to have their own personal views. Indeed, the tribunal members may often be expected to use their own particular opinions or ideas in carrying out their work. However, having strong views about a matter can create a risk of prejudice or predetermination. Tribunal members might be regarded as being involved in a conflict of interest (biased) if their behavior or beliefs indicate (especially, but not necessarily, when expressed in a public statement) that they have made up their mind about a matter before it came to be heard or deliberated on. In other words, that they have a closed mind or fixed position and are not willing to fairly consider all relevant information and arguments. 29 Such type of prejudice and predetermination would violate their obligation to be impartial in their decision making process and, thus, would give rise to a conflict of interest. General personal factors, such as a tribunal member s ethnicity, religion, national origin, age, political or philosophical leanings, wealth, or professional background, will not often constitute predetermination (unless it gives rise to a strongly held personal belief that directly relates to the matter being considered and then, it should be considered as a conflict of interest). 30 2.5 Dealing with conflicts of interest Pursuant to Albanian law, the tribunal member has the duty to resolve a conflict of interest due to his/her private interest or other conflicting interest as soon as possible after he/she become aware of it. If the tribunal member is uncertain about the existence of a conflict of interest, he/she should consult the matter with the tribunal head. There are two aspects to dealing with particular situations: identifying and disclosing the conflict of interest (primarily the responsibility of the tribunal member) and registering or declaring in writing a potential conflict of interest to the tribunal head; and deciding what action (if any) is necessary to best avoid or mitigate any effects of the conflict of interest (primarily the responsibility of the tribunal). 28 OECD Recommendation on Guidelines for Managing Conflict of Interest in the Public Service Toolkit (2005), p. 43. 29 Managing conflicts of interest: Guidance for public entities, Controller and Auditor General, New Zealand, 2007, p. 20. 30 Managing conflicts of interest: Guidance for public entities, Controller and Auditor General, New Zealand, 2007, p. 20. 19

2.5.1 How to identify a conflict of interest It is important to focus on the overlap between the two interests that is, whether the member s other interest has something to do with the particular matter that is being considered by the tribunal. It is better to err on the side of openness when deciding whether something should be disclosed. Many situations are not clear-cut. If a tribunal member is uncertain about whether or not something constitutes a conflict of interest, it is safer and more transparent to disclose the interest to the tribunal head or the other tribunal members at the board meeting (if recommended by the tribunal head). The matter is then out in the open, and the expertise of other tribunal members can be used to judge whether the situation constitutes a conflict of interest and whether it is serious enough to warrant further action. 31 2.5.2 How to disclose a conflict of interest Under Albanian law, every official, in the exercise of his/her public duties or competencies, on the basis of his knowledge and in good faith, is obliged to make a self declaration in advance (on case by case basis) of the existence of his/her private interests that might become a cause for the emergence of a conflict of interest. The case by case declaration of private interests is done by the official whenever this is requested by the superior or by the superior institution. As a rule, the declaration should be requested and made in advance. Based on the provisions of the Instruction, in cases of conflict of interest as described under the Albanian law, a tribunal member is obliged to disclose the conflict of interest in advance and inform the tribunal head immediately who shall decide in this respect and exclude the tribunal member from the decision-making process. 32 If the tribunal member is aware of the fact that a colleague or the tribunal head has an interest, he/she is obliged to inform the tribunal head or the office of the Prime Minister, if the tribunal head is involved. 33 If a matter in which a tribunal member has an interest arises at a formal meeting, the tribunal member should declare at the meeting that he/she has an interest in the matter before the matter is discussed. The declaration should be recorded in the minutes of the meeting. In other situations, the matter should be raised and discussed with the relevant person as soon as the potential for a conflict of interest is identified. 34 If the parties in the review proceeding (contracting authority/complainant) file a request for the exclusion of the tribunal member, the tribunal head shall decide on the matter. In the event that the parties request the exclusion of the tribunal head, this request will be evaluated by the tribunal which will be presided over by the deputy tribunal head. 2.5.3 How to avoid/mitigate conflicts of interest Albanian law requires that tribunal members are excluded from participation in review proceedings whenever they have a private interest in the decision. For example, a tribunal member may be personally concerned or may be a relative of a person to be affected by 31 Managing conflicts of interest: Guidance for public entities, Controller and Auditor General, New Zealand, 2007, p. 27-28. 32 Such action is requested under the Albanian Act On the Prevention of Conflicts of Interest in the Exercise of Public Functions. 33 Requested under the Albanian Act On the Prevention of Conflicts of Interest in the Exercise of Public Functions. 34 Managing conflicts of interest: Guidance for public entities, Controller and Auditor General, New Zealand, 2007, p. 28. 20