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Author: Grith Skovgaard Ølykke

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Abnormally Low Tenders from a Competition Law Perspective journal article

Rachel Scheele, Grith Skovgaard Ølykke

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 139 - 149

This article analyses the application of competition rules to abnormally low tenders. The purpose is to determine whether – and under which circumstances – abnormally low tenders may constitute violations of Articles 101 and 102 TFEU, as well as how contracting authorities may or should proceed in case of potential infringements of competition law. It is concluded that abnormally low tenders may indeed violate EU competition law, which can lead to distortions of competition in public procurement markets in the short and/or long run, resulting in a decrease of social welfare. The parallel existences of the two sets of rules that regulate low prices – but which do not entirely coincide – do not seem to facilitate enforcement of competition law violations, which is crucial to obtaining efficient public procurement. Some proposals for a more competition-oriented approach to abnormally low tenders are provided. Keywords: Article 101 TFEU; Article 102 TFEU; Directive 2014/24/EU; bid-rigging; predatory pricing; principle of equal treatment

Sustainable Procurement: A Compliance Perspective of EU Public Procurement Law journal article

Pedro Telles, Grith Skovgaard Ølykke

European Procurement & Public Private Partnership Law Review, Volume 12 (2017), Issue 3, Page 239 - 252

This article analyses the conceptual link between law and compliance, exploring the different theories and types of compliance (corporate, State and regulatory) and how they can be found today within the EU legal public procurement framework. The analytical focus is on Directive 2014/24/EU and within it how sustainable requirements have increased the level of compliance required, particularly regulatory compliance. Compliance was already present in previous EU public procurement frameworks, but its extent on Directive 2014/24/EU leads the authors to consider the current legal framework as subject to substantial regulatory compliance obligations external to the process of procurement. In short, procurement has been transformed in a way to enforce regulatory obligations that are not intrinsic to the process of buying. This leads to the conclusion that questions such as the cost and trade offs from imposing compliance obligations to public and private bodies warrant further research, particularly at the legal, economic and political science intersection.

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