PUBLIC PROCUREMENT AND CORRUPTION. The Portuguese experience Teresa de Almeida. Public procurement and the risk of corruption. When: The legislation is fragmented, complex and scattered over various legislative instruments. The procedures are complex and time-consuming;
The Portuguese experience
Teresa de Almeida
The prevention of corruption in public procurement demands the design and the implementation of mechanisms:
Objeto/ Contrato/ Preço/ Contratual/ Publicação/ Assinatura/ Adjudicante/ Adjudicatário
The Constitution of the Portuguese Republic specifies that the Court of Auditors (Tribunal de Contas) is the sovereign body responsible for the supreme external audit over the financial activity of the Portuguese state.
The Court’s organisation and activity are regulated in Law no. 98/97, of August 26 and its respective alterations.
Specification of the acts that must be submitted to a priori audit by the Tribunal de Contas, together with identification of the entities that must submit such acts, is provided in the law of the Tribunal de Contas, mainly focusing in contracts signed by public bodies whose value lies in excess of €317.160.
A priori audit is exercised via seal approval concession or refusal.
Grounds for seal approval or refusal include illegality of the acts that implies that such acts are null and void, expenses that are not matched by a specific budgetary allocation or direct breach of financial norms and illegality that alters or may alter the respective financial result.
Payments related to acts and contracts subject to a priori audit may not be made prior to seal approval concession.
The audit reports include observations and recommendations and may originate proceedings for the enforcement of liabilities. Concomitant audit also permits, in the event of determining the illegality of a pending procedure or an act or contract that has not yet been executed, to order that the respective act or contract be submitted to a priori audit.
The audit is pursued via verification of accounts or audits of entities of the State, autonomous regions, local councils, public institutes, social security institutions, associations involving public bodies, public-sector companies, companies whose shares are partly owned by the public sector, concessionaire companies, foundations and entities of any nature that have a public shareholding or benefit from public financing, in this case in order to inspect the application of such financing.
The database contains the Audit Reports and the Judicial Decisions.
Relatório nº 36/2012
Auditoria de seguimento às recomendações do TC
Relatório n.º 13/2007
(Audit Report with the follow-up on the 2007 audit on the Ministers’ Offices.)
On corruption cases involving public procurement, the starting point is, often, an administrative illegality and the consequent benefit for a company.
In particular, the complexity of public procurement:
Case selection versus (?) principle of legality
The Asset Recovery Office (in short ARO/GRA) is set up under the Criminal Police. It has investigative powers, similar to those of criminal police bodies.
The GRA carries out the financial or patrimonial investigation mentioned in Article 3 above by decision of the Public Prosecutor:
The seizure of property is carried out by the GRA under the provisions of the Code of Criminal Procedure. Within 10 days after being notified, the owner of the property or rights may request to the investigating judge to change or revoke the decided measure.
If the proceeds of crime consist, for example, of :
- 2 collections of contemporary art
- cars like aston martin and porsche, and
The investigation needs a professional unit to deal with the management of the assets.
The third countries:
- “Google” their national law;
- Look for links with the EJN;
Be diplomatic: it may not result in a first time, but the door will be open.
Singapore, for example: “The Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act, 2nd Schedule” (available on the Internet).