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INTERNATIONAL AND INTERDISCIPLINARY ∙ A Working Definition of ‘Barriers’ to Small Business in Public Procurement: journal article

From Fair Treatment of Suppliers to Fair Share of the Market

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

Single Bidder Procurements journal article

Csaba Balázs Rigó, Tibor Kugler

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 2, Page 99 - 109

The issue of single bidder procurement has become increasingly popular in recent years. When it comes to the expenditure of public money via public procurement, the existence and the extent of competition in a given public procurement procedure is naturally under the spotlight. The article provides concrete examples of the dangers of applying simplified statistical measures to single bidder procurements and of automatically allowing for submitting tenders for separate lots. Keywords: Single Market Scoreboard; single bidder procurement; tenders for lots; SMEs; TED

A New Methodology for Improving Penetration, Opportunity-Visibility and Decision-Making by SMEs in EU Public Procurement journal article

Stephen Clear, Gary Clifford, Dermot Cahill, Barb Allen

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 83 - 106

Despite over 30 years of legal harmonisation, stubbornly low levels of cross-border public procurement continue to persist in the EU. In 2016 the European Commission sought new thinking to address this long-standing problem. Drawing on a number of cross-border studies undertaken by the authors, the reasons for low level cross-border procurement penetration are identified. A new action-based framework to increase cross-border procurement is proposed, as are new ideas to make it easier to identify public contracts outside national borders. Suggestions for reforming tender evaluation practices that could encourage SMEs to overcome their aversion to ‘home bias’ are proposed, alongside a ‘balanced scorecard tool’ to guide SMEs making critical cross-border public procurement decisions. Keywords: SMEs, cross-border, EU public procurement, non-tariff-barriers, harmonisation

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