Mari Ann Simovart, Bettina Tugendreich, Ján Azud, Joseph Kunz

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 99 - 111

This article discusses Article 69 of Directive 2014/24/EU, analysing basic concepts like abnormally low tender, indicating how an abnormally low tender should be identified by the contracting authority and the steps necessary to reach a balanced conclusion on a low-priced tender’s (ir-)regularity. This article explains the meaning of abnormally low tenders from the EU law perspective, providing a basis for the following articles in this special edition of the journal. Keywords: abnormally low tender; Directive 2014/24/EU; Public Sector Directive; Article 69

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

Stelios Tsevas, Kathrin Hornbanger

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 4, Page 258 - 261

Jamie Thomas

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 1, Page 77 - 83

Measures to open up public procurement opportunities for Small and Medium-sized Enterprises (SMEs) are often justified by a perceived need to remove ‘barriers’ to participation in the world of public contracting. The word ‘barrier’ features extensively in the literature on this topic, and in the speeches and policy papers of politicians advocating for various ‘pro-SME’ measures. However, the language used is often inconsistent when it comes to expressing just what ‘barrier’ means in this context. Any business may experience a range of advantages or disadvantages as it tries to succeed in the market, but what makes a particular factor a ‘barrier’ that justifies government intervention? This paper explores the language of ‘barriers’ in the context of public procurement in the EU single market and the UK (as a jurisdiction that was, until very recently, a full participant in that market). Some relevant cases of the Europan Court of Justice (ECJ) are considered that shed light on the court’s view on the difference between an unfair obstacle that should be put right, and a natural disadvantage that does not justify intervention. Finally, in light of these observations, a working definition of an ‘SME procurement barrier’ is suggested. Keywords: SMEs; barriers; EU; UK; fair treatment; suppliers; fair market share

Ricardo Pedro

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 1, Page 3 - 13

This article analyses the legal framework implemented in Portugal for the execution of its Recovery and Resilience Plan. Starting from the analysis of the legal framework offered by the European Recovery and Resilience Facility (RRF), it critically analyses the main regulations created on a special or exceptional basis for the implementation of the Portuguese Recovery and Resilience Plan (PRRP), with emphasis on the governance model, but also on the exceptional measures to facilitate budgetary procedures, expenditure authorisation and staff hiring and also special public procurement measures. As these special and exceptional measures are, as a rule, intended to relax or reduce the mechanisms of prior administrative control of certain procedures, the external control of special public procurement measures by the Portuguese Court of Auditors was strengthened. Lastly, and despite the Portuguese legislator not dedicating special legislation to it, the most appropriate means for resolving any legal disputes arising from the implementation of the Portuguese Recovery and Resilience Plan are addressed. The present article will be divided and published in two parts. The first part will be dedicated to the RRF, the PRRP and special measures for its implementation already with reference to the special public procurement measures approved in this context. The second part will be dedicated to the analysis of the special measures for public procurement and the appropriate means for the resolution of possible disputes arising from the execution of the national RRP. In each part we will present the respective conclusions. Keywords: EU Next Generation Funds, Recovery and Resilience Facility, Portuguese Recovery and Resilience Plan, administrative arbitration

Ricardo Pedro

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 2, Page 107 - 117

This article analyses the legal framework implemented in Portugal for the execution of its Recovery and Resilience Plan (RRP). Starting from the analysis of the legal framework offered by the European Recovery and Resilience Mechanism (MRR), it critically analyses the main regulations created on a special or exceptional basis for the implementation of the Portuguese Recovery and Resilience Plan, with emphasis on the governance model, but also on the exceptional measures to facilitate budgetary procedures, expenditure authorisation and staff hiring and also special public procurement measures. As these special and exceptional measures are, as a rule, intended to relax or reduce the mechanisms of prior administrative control of certain procedures, the external control of special public procurement measures by the Portuguese Court of Auditors was strengthened. Lastly, and despite the Portuguese legislator not dedicating special legislation to it, the most appropriate means for resolving any legal disputes arising from the implementation of the Portuguese Recovery and Resilience Plan are addressed. The present article will be divided and published in two parts. The first part will be dedicated to the MRR, Portuguese RRP and special measures for its implementation already with reference to the special procurement measures approved in this context. The second part will be dedicated to the analysis of the special measures for public procurement and the appropriate means for the resolution of possible disputes arising from the execution of the national RRP. In each part we will present the respective conclusions. Keywords: EU Next Generation Funds; Recovery and Resilience Mechanism; Portuguese Recovery and Resilience Plan; special public procurement measures; administrative arbitration

Christopher Bovis

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 1, Page 1 - 2

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 1,

Penelope Giosa

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 39 - 51

This article argues that the prevention of bid rigging has not been factored into the policy design of the EU Public Procurement Rules in a systematic and consistent way. As it will be shown, the critical junctures of EU Public Procurement Rules did not emerge alongside the anti-cartel legislation in Europe, but entirely independently of the latter. As a result, the current European Public Sector Directive 2014/24/EU is not adequately collusion proof and there is still a long way to go. Keywords: bid rigging; collusion; EU Procurement Directives; competition; transparency

Mario Rašić

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 3, Page 193 - 204

The purpose of this article is to provide a concise analysis of the rules applicable to the rejection of abnormally low and non-compliant tenders in the European Union. The paper will deal with a case decided by the European Court of Justice which deals with violations of rights or fundamental freedoms regarding the (potential) irregularities of tenders. The study is exploratory and interpretative in nature. Data used for this research is secondary data: the author analyses prior research, regulations and decisions of the European Court of Justice and national authorities. The first section of this paper will examine the history and development of the institute of abnormally low tenders within the European Union and Slovenian positive law. The main research part of the paper is the analysis of the most relevant cases stemming from the European Court of Justice. Finally, the main scientific contribution of this paper, in addition to the analysis, is the de lege ferenda observations, which may contribute to resolving challenges related to abnormally low tenders in the EU. Keywords: abnormally low tenders, Directive 2014/24/EU, award criteria