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Locus Standi and the Interpretation of ‘Interest to Obtain a Particular Contract’ in Public Procurement Remedies journal article

Marko Turudić

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 1, Page 14 - 22

Under Directive 1989/665/EEC, locus standi in public procurement remedies is recognised to at least any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. The Croatian Public Procurement Act does not diverge from this definition. The Court of Justice of the European Union (CJEU) has established expansive and detailed case-law on locus standi, and in particular on what is to be considered a ‘particular contract’ under Article 1(3) of Directive 1989/665/EEC. Unfortunately, the case-law of the State Commission for Supervision of Public Procurement Procedures (DKOM) and of the High Administrative Court of the Republic of Croatia (VUSRH) established a much narrower interpretation. This paper aims to analyse relevant case-law of the CJEU, DKOM and VUSRH and explain how has this narrow interpretation of ‘particular contract’ affected the availability of public procurement remedies in Croatia. Keywords: public procurement remedies, locus standi, interpretation of particular contract

Should Value for Money Be the Sole Criteria in Opting for PPP Option for Infrastructure Projects? journal article

Victor Izebhor

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

Business and Human Rights: journal article

The State as a Buyer

Ezgi Uysal

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 52 - 64

Under the UN Guiding Principles (UNGPs), states are advised to be in a commercial relationship with economic actors that are considerate of their human rights influence. Given the amount of taxpayers’ money spent on procurement, public authorities can use their leverage to add social considerations into the procurement process. This article sets out whether public authorities can use their leverage to invite businesses to respect human rights as provided with the UNGPs. After providing an overview of the UNGPs and the EU approach, this article analyses the EU Public Procurement Directive adopted in 2014 which has promoted sustainability concerns with the use of green and socially responsible public procurement. It then establishes, that although prescribed under the Guiding Principles, the EU regime does not always allow human rights concerns to be integrated into the procurement. Keywords: UNGPs; business and human rights; public procurement; sustainability

The Portuguese Covid-19 Public Procurement Rules journal article

Raquel Carvalho

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 30 - 38

The Covid-19 pandemic has been a driver of new State legislation in several fields. This article addresses the special public procurement rules enacted in this context, including some challenges such not-so-reflected legislation raised. The ‘successive’ exceptional public procurement regime implies very complex hermeneutics regarding both the subjective and objective scope of application and the discretionary legal requirements established therein. The key measure is a particular direct award regime that has raised some doubts regarding the need for such solutions when compared to those in the Directive. There has already been some monitoring of the regime’s implementation that has underlined the need to continue monitoring ‘the planning, the implementation and management of the public emergency answer’. Keywords: Covid-19; state of emergency; special public procurement rules

Public Procurement and Equipment: journal article

A Historical Innovation

Ioannis Vidakis, Dimitrios Georgantas, George Vlachos

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 73 - 77

This article connects the politics, strategy, economy, and armament programmes of ancient Athens, during the time of the general and leader Themistocles. It refers, in particular, to the decision of the city to build a strong fleet, as well as to the methodology of assigning, financing, and implementing this massive project, considering the state of the city at that historical period. The article attempts to present a historic innovation, which was quite successful, conveying an optimistic message of a proportionate, effective response to the current challenges our country (Greece) is facing, in the fields of national security and economy. The text aims to encourage the ability to think critically among the readers regarding the crucial role Themistocles played in the course of history and the need to realise that the promotion and support of capable and qualified leaders are of paramount importance for small nations. Keywords: public procurement; defence contracts; naval equipment; Ancient Athens; Themistocles

The UK’s Green Paper on Post-Brexit Public Procurement Reform: journal article

Transformation or Overcomplication?

Albert Sanchez-Graells

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 4 - 18

In December 2020, seeking to start cashing in on its desired ‘Brexit dividends’, the UK Government published the Green Paper ‘Transforming Public Procurement’. The Green Paper sets out a blueprint for the reform of UK public procurement law that aims to depart from the regulatory baseline of EU law and deliver a much-touted ‘bonfire of procurement red tape’. The Green Paper seeks ‘to speed up and simplify [UK] procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery’. The Green Paper aims to do so by creating ‘a progressive, modern regime which can adapt to the fastmoving environment in which business operates’ underpinned by ‘a culture of continuous improvement to support more resilient, diverse and innovative supply chains.’ I argue that the Green Paper has very limited transformative potential and that its proposals merely represent an ‘EU law +’ approach to the regulation of public procurement that would only result in an overcomplicated regulatory infrastructure, additional administrative burdens for both public buyers and economic operators, and tensions and contradictions in the oversight model. I conclude that a substantial rethink is needed if the Green Paper’s goals are to be achieved. Keywords: public procurement; reform; deregulation; green paper; transforming public procurement; Brexit

Will FinTech Cause a Reconsideration of the Administrative and International Law Governing Public Procurement? journal article

Bryane Michael

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 3, Page 229 - 239

Regulators should not just leave FinTech rulemaking up to financial regulators. Contracting authorities should not just develop or use their own selected FinTech applications willy-nilly. They should contribute to overall changes in a procurement law -which extend far beyond simple supervisory or regulatory technologies (RegTech/SupTech). Governments should get serious about the Agreement on Government Procurement and similar treaties - by creating a new authority to help develop the law needed to put FinTech-enabled procurement platforms in place. China’s own world-leading FinTech and cross-border public procurements do not always contribute to a global level playing field. Any FinTech applications facilitating public procurement should thus encourage compliance with the procurement law legal principles the international community has developed over decades. Keywords: public procurement, financial technology, FinTech

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