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Examination of Tenders in Terms of Abnormally Low Price: Journal Artikel

The Contracting Authority's Perspective

Katarzyna Kuźma, Caroline Lagendijk, Natalia Olmos

European Procurement & Public Private Partnership Law Review, Jahrgang 18 (2023), Ausgabe 2, Seite 129 - 138

From the perspective of contracting authorities, the issue of abnormally low prices in public procurement is extremely important. This is not only because both the procurement Directives and national legislation in individual EU Member States require authorities to take certain steps to examine whether tenders submitted in a procedure contain an abnormally low price, but it is also important from a purely economic and organisational perspective. At the same time, the recent market instability has compounded the difficulties faced by contracting authorities in making rational decisions and pursuing pricing policies. This article takes the contracting authorities’ perspective, examining the powers and responsibilities that such authorities have when examining abnormally low prices and the practical difficulties of doing so. Keywords: contracting authorities; abnormally low price; tender; obligation to examine; assessment; rejection


EC Notice on How to Tackle Collusion in Public Procurement: Journal Artikel

A Step Forward or a Stall for Time?

Wojciech Hartung, Katarzyna Kuźma

European Procurement & Public Private Partnership Law Review, Jahrgang 16 (2021), Ausgabe 2, Seite 110 - 124

This article analyses the European Commission (EC) Notice on tools to fight collusion in public procurement and on guidance on how to apply the related exclusion ground of 15 March 2021. The grounds and rules for the exclusion of contractors from participation in public procurement procedures adopted in the 2014 Directives raise many interpretation questions of the contracting authorities and contractors on the one hand and the bodies adjudicating on public procurement in EU Member States on the other hand. One of them is the ground referred to in Article 57(4)(d) of Directive 2014/24/EU. Its correct application in practice should contribute considerably to fighting collusive practices in public procurement. It seemed that the long-awaited EC guidance concerning the said exclusion ground will help answer questions of the market and thus contribute to increased legal certainty upon its application. However, this was not the case. Keywords: collusion; EC Notice; exclusion ground; sufficiently plausible indications; contracting authority


In-house Procurement – How it is Implemented and Applied in Poland Journal Artikel

Wojciech Hartung, Katarzyna Kuźma

European Procurement & Public Private Partnership Law Review, Jahrgang 13 (2018), Ausgabe 3, Seite 171 - 183

This article discusses the issue of in-house procurement under Polish regulations and how they are applied by local authorities. The authors focus on special conditions in national provisions additional to those provided for in Directive 2014/24/EU. The Polish legislator allows the award of public contracts in a negotiated procedure without publication (single source procurement) among other differences. Polish regulations provide for the performance of local authority tasks via local authority acts. The authors analyse the relationship between public procurement and competition law with regard to the position of local authorities as entities playing a key role in organising public services markets; in Poland, local authorities, including municipalities, have the status of ‘undertaking’ when organising the performance of public services. What has been observed on the market is the tendency for municipal companies to use the privilege created for them in in-house procurement regulations to encroach on a market that is not related to the tasks of their owner and compete with private operators. EU law sets some limits on in-house procurement but does not in itself guarantee uniform application of this modality, leaving a great deal of freedom to Member States. Keywords: Self-governance; In-house procurement; Competition principles; National regulations.

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