Ricardo Pedro

European Procurement & Public Private Partnership Law Review, Jahrgang 18 (2023), Ausgabe 1, Seite 17 - 26

This article analyses the legal regimes implemented in Portugal for the prevention and combating of corruption in public procurement. Although it is not a new theme, it has received new updates in the law dedicated to the regulation of public procurement – ie, the Public Procurement Code; some of the novelties arising from the imposition of European Union Law on public procurement – while others result from the recent national strategy for the prevention and combating of corruptive phenomena. The implementation of the referred strategy – which covers several areas of action – also benefits matters of public procurement. This has resulted in a set of normative solutions that have strengthened the prevention of corruption, both from an organisational perspective (with the creation of a new public agency for the prevention of corruption) and from an activity perspective (by imposing corruption risk prevention plans, codes of conduct, training programmes and reporting channels, including on contracting authorities). These solutions, particularly the one related to whistleblowing channels, have been reinforced by the recent ‘European Whistleblowing Directive’, which led to the approval of a new national whistleblower protection scheme with immediate relevance in public procurement. Keywords: public procurement; corruption; rule of law; conflict of interests

Marko Turudić, Melko Dragojević

European Procurement & Public Private Partnership Law Review, Jahrgang 18 (2023), Ausgabe 1, Seite 27 - 39

Directive 2014/24/EU represents a significant step in the right direction for socially responsible public procurement (SRPP). It contains many articles referencing SRPP, of which the most important may be Article 18(2). One such article is Article 57(4)a, which contains discretionary exclusion grounds for violations of SRPP, leaving it up to Member States to decide whether they will make such grounds mandatory or leave them discretionary in national legislation. The aim of this paper is to establish how Directive 2014/24/EU’s approach has affected the use of SRPP exclusion grounds in Croatia, a Member State that decided to leave all of the discretionary exclusion grounds discretionary. This research was conducted by acquiring and analysing all available contract notices from 2022 to establish the percentage, value and other factors associated with SRPP use in public procurement procedures in Croatia. Keywords: socially responsible public procurement; discretionary exclusion grounds

Marc Steiner, Désirée Klingler

European Procurement & Public Private Partnership Law Review, Jahrgang 18 (2023), Ausgabe 1, Seite 87 - 93

Mukesh Rawat, K D Raju

European Procurement & Public Private Partnership Law Review, Jahrgang 18 (2023), Ausgabe 3, Seite 209 - 220

Government procurement has emerged as a complex and crucial national and international trade policy subject in the contemporary era. The United States of America (US) and the European Union (EU) are recognised as economies with some of the most advanced procurement regimes. Globally, developing countries have struggled to develop robust procurement regulatory frameworks for government procurement. This paper analyses the evolution of procurement in the US and EU and the valuable lessons for developing countries willing to improve their procurement regimes. The findings will be helpful to achieve harmonisation of procurement rules at the international level and to promote efficacy in the procurement process at the domestic level. Keywords: Public Procurement; US; European Union; Developing Countries; India

Nadia-Ariadna Sava

European Procurement & Public Private Partnership Law Review, Jahrgang 18 (2023), Ausgabe 3, Seite 177 - 184

As of October 2023, the eForms Regulation will become the mandatory standard for public procurement data collection above the thresholds, including data on sustainability. The eForms have the potential to collect sustainable public procurement data and kickstart the process of monitoring green and social public procurement in all Member States. Nevertheless, in their current form, it is improbable that eForms can achieve this goal, because the Regulation makes all sustainable data collection fields optional. Member States can decide to collect sustainable public procurement data, but they lack proper incentives to do so. Both the European Union and Member States should take on the goal of creating a sustainable public procurement data infrastructure, with each its roles and obligations. Keywords: sustainable public procurement, eForms Regulation, data collection, digitalising public procurement, monitoring.

Sarah Schoenmaekers

European Procurement & Public Private Partnership Law Review, Jahrgang 17 (2022), Ausgabe 2, Seite 71 - 80

In the European Union, the award of public contracts by contracting authorities has to comply with the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the free movement of goods, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. In principle, all procurement procedures start with a contract notice which is used as a means of calling for competition in respect of all procedures. By informing all economic operators about the possible business opportunities, European public procurement rules seek to promote competition and aim to open up the procurement market to undertakings beyond national borders. This is expected to lead to lower prices and more choice. Contract notices include information on the language(s) in which tenders or requests to participate must be drawn up which entails that economic operators are bound to draw up their tender proposal in the language(s) chosen by the contracting authority. It is not hard to imagine that this may seriously hinder free movement and restrict competition in the internal market. This contribution will focus on the use of languages in public procurement procedures and reflect on whether Directive 2014/24/EU, which finds it legal basis in the Articles 53(1) TFEU on freedom of establishment, 62 TFEU (free provision of services) and 114 TFEU (approximation of provisions relating to the establishment and functioning of the internal market) is not in itself hindering free movement by its regulation on languages. Keywords: language; non-tariff barrier; free movement; cross-border procurement; procedure

European Procurement & Public Private Partnership Law Review, Jahrgang 17 (2022), Ausgabe 3,

Aleksandra Sołtysińska

European Procurement & Public Private Partnership Law Review, Jahrgang 17 (2022), Ausgabe 3, Seite 158 - 167

The concept of in-house procurement respects the discretion of the Member States regarding the provision of public services and allows for purchasing and contracting services outside the competitive market. Contracting authorities may award an in-house contract to a controlled legal person if they demonstrate that the conditions of organisational and economic dependence have been met. This article analyses the condition of economic dependence and ways to prove that it has been satisfied. Numerous questions regarding the legal forms of entrusting tasks to a controlled legal person, the means of performance of such tasks in the context of admissibility of subcontracting, the methods of calculating revenue derived from the performance of tasks entrusted by the contracting authority and permissible forms of financing a controlled legal person arise in practice and jurisprudence. In view of the above, this publication is an attempt to clarify doubts. Keywords: in-house contract; in-house procurement; subcontracting

Christopher Bovis

European Procurement & Public Private Partnership Law Review, Jahrgang 17 (2022), Ausgabe 3, Seite 141 - 143

Victor Izebhor

European Procurement & Public Private Partnership Law Review, Jahrgang 17 (2022), Ausgabe 1, Seite 23 - 32

Countries are increasingly using Public-Private Partnerships (PPPs) to deliver infrastructure projects and there are a number of reasons why governments around the globe utilise PPPs in delivering infrastructure projects amongst which is the financial benefits of the project. In PPP projects, it is necessary for the host government to carry out an analysis to show that the proposed project is a viable venture. It has been argued by various practitioners and academics that the critical question from the government’s viewpoint is whether the project demonstrates good Value for Money (VfM) sometimes also called Value for Investment (VfI). This article examines the concept of VfM, PPPs as distinguished from traditional procurement. It also expatiates on the use and focus of VfM assessment in the PPP decision-making process and puts the VfM analysis into a broader, context by expanding its subsets which is a mix of both quantitative and qualitative analysis and the tools used in assessing if an infrastructure project demonstrates VfM, this paper also looks at the different criticisms, constraints and limitations submitted by different academics, institutions and practitioners on why VfM should not be the only factor to be contemplated in determining if PPP is the best option for delivering infrastructure projects or if the project should be skewed towards traditional infrastructure procurement. The article proffers key recommendations which can guide government institutions, agencies, and industrial sectors in using and improving the VfM analysis. The concluding section answers if VfM should be the sole criteria in reaching the determination of skewing projects towards PPP or Traditional Procurement. Keywords: public-private partnership, traditional public procurement, value for money, public sector comparator, infrastructure finance