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Is Joint Cross-Border Public Procurement Legally Feasible or Simply Commercially Tolerated? journal article

A Critical Assessment of the BBG-SKI JCBPP Feasibility Study

Albert Sánchez-Graells

European Procurement & Public Private Partnership Law Review, Volume 12 (2017), Issue 2, Page 97 - 111

This paper provides a critical assessment of the “Feasibility study concerning the actual implementation of a joint cross-border procurement procedure by public buyers from different Member States” prepared by Bundesbeschaffung GmbH and Statens og Kommunernes Indkøbs Service A/S (BBG-SKI) for the European Commission. The paper submits that the study provides some interesting data and details about relevant case studies, but that it does not shed significant light on the doubts created by the rules on joint cross-border public procurement (JCBPP) in the 2014 EU Public Procurement Package, and that the main weakness of the study is its lack of a general legal analytical framework. In order to gain additional legal insights on the basis of the empirical data included in the BBG-SKI study, this paper proposes an analytical framework under which the legal compliance of JCBPP structures is assessed. It then summarises each of the case studies included in the BBG-SKI study and offers a critical (re)assessment of the issues that would have required more information and/or which are insufficiently analysed in the BBG-SKI study. Based on this reorganised empirical evidence, the paper proceeds to a critical assessment of some of the outstanding legal barriers and challenges to JCBPP. It concludes by stressing some of the remaining uncertainties concerning legal development at Member State level, and calls on the European Commission to facilitate more detailed research leading to the adoption of future guidance on JCBPP under the 2014 EU Public Procurement Directives. Keywords: Joint Procurement; Collaborative Procurement; Centralised Purchasing Bodies; Joint Entities; Legal Framework; Choice of Law; Conflict of Laws.

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