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    1. Introduction

    This report, prepared by the Secretariat of the Procurement Complaints Committee (PCC or “the Committee”) of the European Investment Bank (EIB), provides an overview of the procurement complaints received and handled in the course of 2022, and of the work of the Committee and its Secretariat. It is the fourth annual report compiled and published on the Procurement Complaints Committee’s activity since its establishment in late 2018 [1].

    In line with good practices of other international financial institutions, project-related procurement complaints submitted to the EIB are handled by the Procurement Complaints Committee, a specialised, independent, and impartial committee mandated to handle procurement complaints that challenge the Bank’s decision on project procurement procedures under an EIB-financed project outside the European Union. This system ensures that the Bank handles project procurement complaints regarding EIB-financed projects effectively and independently. If the complainant is not satisfied with the Bank’s outcome or response, they are entitled to escalate their complaint to the European Ombudsman for alleged maladministration by the Bank.


    [1]The Procurement Complaints Committee Annual Report 2021 is available here.

    2. Brief overview of the EIB’s procurement complaints system

    PCC’s remit, work and composition

    The Procurement Complaints Committee is an independent Bank committee with four voting and two non-voting members consisting of senior representatives of different directorates of the Bank.

    It is chaired by the EIB’s Inspector General and assisted by a Secretariat. The chairperson decides upon the admissibility of procurement complaints, is in charge of directing and facilitating the work of the Committee and oversees the Secretariat.

    Promoters of projects financed by the EIB are required to follow the Bank’s Guide to Procurement (September 2018). This guide also describes the EIB’s procurement complaints processes. Promoters are fully responsible for implementing projects financed by the Bank, and in particular all aspects of the procurement process, from drafting tender documents and awarding contracts to implementing contracts. The involvement of the Bank is confined solely to verifying whether or not the conditions attached to its financing are met.

    For projects financed by the Bank within the European Union, it is the relevant national remedy mechanisms that provide appropriate safeguards. This is done through the transposition by EU Member States of EU procurement law, in particular the Remedies Directives, which set minimum national review standards.

    For projects financed by the Bank in non-EU countries [2], the Bank uses a “non-objection” mechanism for approving procurement methods and outcomes. An important feature of the procurement complaints system is that the Bank requires its promoters to observe a standstill period, which is the intervening period of time between the decision to issue a non-objection to the procurement award and the signature of the contract.

    Complainants may call into question a decision taken by the Bank (usually, but not limited to, a non-objection given by the Bank) for project procurement procedures financed under an EIB project. The Committee may decide to either confirm or withdraw the non-objection already issued by the Bank. If it decides to withdraw the non-objection, it may also recommend excluding the project component from the Bank financing, and/or undertaking any other contractual remedies.

    Complainants lodging procurement complaints may be “any party having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement of the EIB’s Guide to Procurement.”


    [2] In countries outside the European Union, the Bank requires that the main mechanisms of the EU directives on procurement be followed, with the necessary procedural adaptations (Section 1.1 of the Guide to Procurement for projects financed by the EIB, September 2018).

    3. PCC complaints received during 2022

    Taxonomy of admissible procurement complaints and corresponding processes

    As described in the Guide to Procurement, procurement complaints that challenge the Bank’s decision on project procurement procedures under an EIB-financed project are classified and handled as follows:

    Procurement complaints lodged prior to the Bank’s decision (objection or non-objection)

    Complaints lodged prior to the Bank’s decision are redirected by the PCC’s Secretariat to the Bank’s services in charge of the respective projects for further follow-up. The substance of such complaints is considered when the Bank decides on the non-objection to the contract award.

    Procurement complaints lodged after the Bank’s non-objection to contract award and prior to the signature of contracts

    Complaints submitted after the Bank has provided its non-objection to the contract award and during the standstill period are reviewed by the Procurement Complaints Committee, which examines the case to enable the Bank to take a final position on whether to confirm or withdraw the non-objection issued by the Bank. The submission of this type of complaint triggers the suspension of the Bank’s non-objection until the Committee has completed its review. Considering that the Bank is not a party to the procurement contract, it can only take decisions concerning the financing it provides to a given project or project component.

    Procurement complaints lodged following the Bank’s non-objection to contract award and after the signature of contracts

    For complaints received after the standstill period has expired and the respective procurement contracts have been signed, the Committee can no longer redress the procurement procedure. However, it examines such admissible complaints to decide whether the Bank should confirm or withdraw its financing of the contract.

    According to the Guide to Procurement, the Bank’s decision is taken in less than 30 calendar days from the submission of the complaint. In complex cases, this deadline may be extended up to 60 calendar days.

    In 2022, the Procurement Complaints Committee received 18 procurement complaints, compared to 23 in 2021 and 31 in 2020. Of these 18 complaints, 13 were procurement complaints submitted prior to the Bank’s decision/non-objection (compared to 18 such complaints in 2021). Accordingly, the PCC Secretariat redirected these complaints to the Bank’s services in charge of the relevant projects for further follow-up as per the Guide to Procurement.

    The remaining five procurement complaints were submitted to the Procurement Complaints Committee following the Bank’s non-objection to contract award (the same number as in 2021) [3] and were reviewed and decided upon. The Committee voted to uphold the Bank’s non-objection for two of the complaints and to withdraw the Bank’s non-objection in the remaining three cases.

    More details on all 18 procurement complaints are provided in the table below, and in the following section.


    [3] There were ten such complaints in 2020.

                       i.    PCC complaints by nature of allegation

    Table 1

    Procurement complaints lodged prior to the Bank’s decision

    Complaint reference

    Country of project concerned

    Nature of allegation

    PCC/2022/02

    Mauritania

    Allegations related to abnormally low price

    PCC/2022/03

    Albania

    Allegations related to the requisite prior experience of key personnel

    PCC/2022/04

    Bosnia and Herzegovina

    Allegations related to the requisite prior experience and the handling of clarifications

    PCC/2022/07

    Tunisia

    Allegations related to eligibility criteria and the timing of the procedure

    PCC/2022/09

    Ecuador

    Allegations related to clarifications

    PCC/2022/10

    Bosnia and Herzegovina

    Allegations related to the availability of documents

    PCC/2022/12

    Ukraine

    Allegations related to the timeliness of responses and information

    PCC/2022/13

    North Macedonia

    Allegations related to a breach of equal treatment

    PCC/2022/14

    Bosnia and Herzegovina

    Allegations related to the pre-qualification phase of the procurement procedure

    PCC/2022/15

    Ghana

    Allegations related to the complainant’s submission

    PCC/2022/16

    Serbia

    Allegations related to the evaluation and scoring methodology

    PCC/2022/17

    India

    Allegations related to the evaluation

    PCC/2022/18

    Tunisia

    Allegations related to the evaluation methodology

     

    Procurement complaints lodged after the Bank’s non-objection to contract award

    Complaint reference

    Country of project concerned

    Nature of allegation

    PCC/2022/01

    Malawi

    Allegations related to disqualification

    PCC/2022/05

    Bosnia and Herzegovina

    Allegations related to disqualification, the experience relevant for the assignment and the qualifications and experience of key personnel

    PCC/2022/06

    Armenia

    Allegations related to the tender’s compliance with the requirements of the procurement documents

    PCC/2022/08

    Ecuador

    Allegations related to the technical reasons for tender rejection

    PCC/2022/11

    Ecuador

    Allegations related to the criteria, the evaluation and the precise scoring methodology

    ii. PCC complaints by sector

    The following table shows a breakdown of the 18 procurement complaints received by project sector.

    >@EIB

    iii. PCC complaints by region of operation

    The following table shows a breakdown of the 18 procurement complaints received by region of operation.

    >@EIB

    4. Observations

    As per Table 1, 13 out of 18 procurement complaints (72%) were submitted prior to the Bank’s decision (non-objection). This proportion is consistent with 2021 data (18 out of 23 procurement complaints or 78% in 2021). The number of complaints that were received after the Bank’s decision is the same as in 2021 (five complaints).

    In terms of sectors, most complaints concerned procurement under projects related to transport and storage, which account for 44% of the complaints (26% in 2021 and 38.7% in 2020), and water supply, sewerage, waste management and remediation activities, which account for 28% of the complaints (31% in 2021). The breakdown of procurement complaints by sector does not raise concerns for any given sector, and the absolute number of complaints in each given sector does not vary substantially between 2021 and 2022.

    In terms of regions of operation, most procurement complaints concerned projects in the enlargement countries (seven complaints), Asia and Latin America (four complaints) and sub-Saharan Africa, the Caribbean and the Pacific (three complaints). This is consistent with 2021 data where procurement complaints were related to projects in the enlargement countries (six complaints), followed by Asia and Latin America (five complaints) and sub-Saharan Africa, the Caribbean and the Pacific (three complaints). While most procurement complaints in 2021 were related to projects in the EU Eastern Neighbourhood (seven complaints), the number of complaints for projects in this region dropped to two procurement complaints in 2022; this change can be partly explained by fewer complaints from Ukraine since the outbreak of the war.

    In terms of subject matter, no specific issue stood out. However, the most common allegations were a flawed technical evaluation or selection process in relation to technical requirements, and allegations related to the requisite level of professional/technical qualifications.

    Of the five complaints reviewed by the Procurement Complaints Committee, four complainants were based in the countries where the projects were located.

    The PCC Secretariat also received a complaint regarding a project in an EU Member State (not registered by the Secretariat). In line with the EIB’s Guide to Procurement, projects within the European Union are implemented by the relevant contracting authorities and monitored by the Member States’ competent controlling bodies as they are subject to EU law. Therefore, in this case, the Secretariat referred the complainant to the competent national remedy mechanism(s) and/or judicial bodies.

    The response time for procurement complaints lodged after the Bank’s non-objection to contract award and prior to the signature of contracts was mostly in line with the Bank’s policy (Annex 8 to the Guide to Procurement for projects financed by the EIB). Complainants received the Committee’s reply and decision within the period specified in the Guide to Procurement (30 days, with the possibility of being extended to 60 days), except in three cases; in one case the reply was submitted after 63 days and in another two cases after 91 days due to the complexity of these cases.

    The PCC Secretariat always informs complainants that if they are not satisfied with the Bank’s response, they are entitled to escalate their complaint to the European Ombudsman for alleged maladministration by the Bank. No complaints were escalated to the European Ombudsman in 2022.

    Most of the complaints were submitted through the dedicated mailbox (procurement.complaints@eib.org). The Procurement Complaints Committee appears to have become more widely known as the main entry point for potential procurement complainants via its website. The Committee’s privacy statement providing information on the handling of personal data in the context of its activities since 2020 is also available on this website. This statement was developed in close cooperation with the Bank’s Data Protection Officer.

    As in previous years, the PCC Secretariat received emails that were not necessarily related to project procurement at the EIB but that may present issues falling within the mandates of the Inspectorate General Investigations Division (IG/IN) or the Complaints Mechanism (IG/CM). The Secretariat’s position within the Inspectorate General facilitates communication and cooperation as well as the transfer of complaints to the Investigations Division concerning allegations of prohibited conduct and to the Complaints Mechanism for non-procurement-related complaints.

    Building on lessons learned, the PCC Secretariat also revisited certain practices and documents related to the Committee’s internal process to ensure that all procurement complaints are administered in an efficient manner throughout the process life cycle and that complainants receive timely answers from the PCC (this task will continue in 2023). The Secretariat also monitors whether the EIB services concerned take the necessary follow-up action in the case of procurement complaints lodged prior to the Bank’s decision.

    5. Outlook for 2023

    For 2023, the PCC Secretariat will continue to revisit specific aspects of its procedures with a view to further improving the Procurement Complaints Committee’s way of working. Lessons learned during 2022 could help improve the overall process in terms of time management, while maintaining a high review standard.

    The Secretariat will continue to work with the Bank’s Data Protection Officer to ensure that the Committee’s and the Secretariat’s work remain compliant with the applicable data protection rules, taking into account any developments in the legal framework.

    March 2023