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The Possibility to Reserve a Public Contract under the New European Public Procurement Legal Framework Journal Artikel

Ioan Baciu

European Procurement & Public Private Partnership Law Review, Jahrgang 13 (2018), Ausgabe 4, Seite 307 - 325

Over the years, and owing to a dramatic change in the social configuration of our continent, the initial arrangement consecrated by the Treaty Establishing the European Economic Community of 1957 has evolved, from an essentially economic structure, to an amazingly complex edifice defined by the ‘social market economy’. In this new context, public procurement has been given a central role, as a strategic tool in the implementation of various key social policy objectives. Only this has actually placed it deep in the clash between the traditional internal market rules and those pertaining to EU’s social policies. This article tries to spot the concrete place occupied in the described setting by the possibility to reserve a public contract (an institution discriminatory in its very essence) and how this valuable instrument has been transposed into the national legal framework of Member States. It also aims at showing how, in spite of the fact that, by the adoption of Articles 20 and 77 of Directive 2014/24, the general competition rules haven’t been annihilated but just adapted so to better correspond to the new EU landscape, the solution chosen by several Member States for transposition has in fact perverted their original purpose just to offer sufficient leeway for discrimination based on nationality grounds. Keywords: Public contract reserve; Discrimination; Social policy; Strategic public procurement.


An Examination of the Legal Framework for Public Procurement in Nigeria Journal Artikel

Uche Nnawulezi

European Procurement & Public Private Partnership Law Review, Jahrgang 13 (2018), Ausgabe 4, Seite 338 - 343

This paper examines the legal framework for public procurement in Nigeria. Basically, the paper examines the applicable legislative framework to public procurement in Nigeria by looking at other statutes containing provisions that, though not specifically focused on public purchase, nevertheless very important to the way government goes about its fiduciary relationship and responsibility in public purchase and acquisition. Consequently, there has been a plethora of constitutional, statutory and administrative provisions, regulations and standards that must be adhered to in public procurement. Aside the above provisions, this paper notes that public procurement is not an item for legislation under the executive and concurrent lists. This paper relied on documentary evidence and hence scooped many secondary sources including research reports emanating from public procurement. More importantly, necessary recommendations are made. The paper concludes that the essence of enacting public procurement law is to ensure the establishment of a regulatory authority, responsible for harmonizing government policies on procurement in Nigeria. Keywords: Public Procurement; Legal Framework; Nigeria; Regulatory Authority.


Procurement and Concession Law in Belgium Journal Artikel

State of Play and Particularities

Steven Van Garsse

European Procurement & Public Private Partnership Law Review, Jahrgang 13 (2018), Ausgabe 4, Seite 293 - 300

Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts and public procurement Directives 2014/24 and 2014/25 were transposed into the Belgian legal system by the Public Procurement Act of 17 June 2016 and the Concession Act of 17 June 2016. The legislation entered into force on 30 June 2017. The main features of the public procurement and concessions regulations are in line with the European Directives. Belgian public procurement and concession rules are not a slavishly copy of the directives however. This contribution discusses some particularities and choices made by the Belgian legislator. A number of provisions are criticized, especially as doubts arise as to their compatibility with European Law. Keywords: Public Procurement; Concessions; Legislation; Implementation; Particularities.


Non-legal Barriers to Sustainable Public Procurement in Poland Journal Artikel

Beata Faracik

European Procurement & Public Private Partnership Law Review, Jahrgang 13 (2018), Ausgabe 3, Seite 184 - 197

Despite many efforts being put in the recent years into the reform of the public procurement legislation both at the European and national level in Poland, the increase in the use of sustainable public procurement is disproportionally low. This article looks therefore at the non-legal barriers that affect the use of the sustainable public procurement (including, although not exclusively social clauses, green clauses), based on the research conducted in Poland. It concludes with suggestions of possible solutions and role of non-state actors in stimulating the use of Sustainable Public Procurement. Keywords: Sustainable public procurement; Social clauses; Non-legal barriers; Human rights; Poland.


Human Rights in Public Procurement Journal Artikel

Protecting them Properly?

Ragnhild Lunner

European Procurement & Public Private Partnership Law Review, Jahrgang 13 (2018), Ausgabe 3, Seite 198 - 206

The increased focus on sustainability in public procurement is reflected in the revised EU public procurement directives from 2014. However, even though the EU lawmakers have underlined the importance of enabling smart, inclusive and sustainable growth, and aspired to provide a tool box for contract authorities who would like to do so, the lack of clear guidance may lead to the scope of action not being used. It may even impede contracting authorities from taking human rights issues and sustainable development into account when procuring goods, services and works. This article analyses some of the developments and innovations in the public procurement Directive 2014/24/EU, hereunder technical specifications, life-cycle costing and exclusion, with the aim of commenting on obstacles and opportunities with regards to promoting human rights through the public procurement process. Keywords: Public procurement; Human rights; Life-cycle cost; Technical specifications; Fair trade


Smart Cities and Innovation Partnership Journal Artikel

A New Way of Pursuing Economic Wealth and Social Welfare

Andrea Castelli

European Procurement & Public Private Partnership Law Review, Jahrgang 13 (2018), Ausgabe 3, Seite 207 - 213

In the last decade, the Smart Cities debate has been characterized by a continuous and significant development, giving rise to a wide range of definitions with the purpose of identifying the exact perimeter of the phenomenon. This included determining the processes needed to transform an urban agglomeration into a ‘smart’ city through the development of new technologies and innovation with a social purpose. With the intent of pursuing those targets and creating a model of organization designed to evaluate problems linked to the environmental protection and commercial evolution (and, as a result, to increase the quality of life of people that live in it), the EU introduced a new plan of development (the Europe 2020 program) encouraging public administrations to extend the use of instruments that were already part of the European Union legal system (like the Pre-commercial Procurement, a kind of public-private partnership) and to test new ones, like innovation partnership, introduced by Directive 2014/24/EU on public procurement. This paper aims at analysing the impact of innovation partnership in the European countries, with particular reference to Italy, considering also a comparative perspective between different approaches on the evolution and development of Smart Cities. Keywords: Public procurement; Europe 2020 Strategy; Directive 2014/24/EU; Innovation partnership; Smart Cities




The Evolving Concept of ‘Conflict of Interests’ in the EU Public Procurement Law Journal Artikel

Deividas Soloveičik, Karolis Šimanskis

European Procurement & Public Private Partnership Law Review, Jahrgang 12 (2017), Ausgabe 2, Seite 112 - 131

The concept of conflict of interests is the emerging theme in both the EU public procurement doctrine and legal practice. This article is an endeavour to examine the roots of conflict of interests and to understand if generally applicable features of the concept are equally relevant in public procurement law. It will be shown that there are different types of conflict of interests which are relevant, namely to the practice of public procurement and having the sui generis nature. The publication includes the thorough examination of the EU and Lithuanian case-law related to the conflicts of interest as well as the analysis of the relevant provisions of the Directive 2014/24. Keywords: Public Procurement; Lithuania; Conflicts of Interest; eVigilo; Supreme Court; Directive 2014/24.


Strategic Public Procurement: Facilitating Green, Inclusive and Innovative Growth Journal Artikel

European Commission

European Procurement & Public Private Partnership Law Review, Jahrgang 12 (2017), Ausgabe 3, Seite 219 - 223

Reform of the EU rules on Public Procurement (PP) of 2014, inter alia, brought about numerous changes, additions and updates of previous rules in order to increase flexibility in terms of procedural issues. However, perhaps more importantly, especially as regards long-term perspectives, it also introduced a more flexible notion of Public Procurement which is intended to promote public procurement as a policy instrument. A major part of this new policy approach pertains to so-called ‘strategic public procurement’ comprising green, social and innovative public procurement. Such a policy approach is seen as a way to achieve targets of Europe’s 2020 Strategy for Smart, Sustainable and Inclusive Growth. This article seeks to illustrate the Commission’s approach to strategic public procurement by indicating the existence of opportunities and tools available at EU level, as well as the scope and objectives of the Commission’s policy. It aims to give an overview of strategic public procurement in the context of the new legal framework, to explain the shift toward strategic procurement and finally to give an indication of the further steps the Commission intends to take.