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Competition in British Overseas Territories’ Public Procurement journal article

Going for Gold or a Race to the Bottom?

Laura Panadès-Estruch

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 1, Page 13 - 23

British Overseas Territories are the newcomers to public procurement. Competition has been placed at the forefront of their frameworks. But is it competition in practice or just in name? This article argues that competition is a legal principle that does not translate into practice, though performance varies across countries. Results are structured on the basis of a five variable index comprising publicity of relevant legal sources, accessibility of open tenders, publication of contract awards, local preferences and ethics in Government. This is the first scholarly work that looks at BOTs public procurement as a group, focusing on Bermuda, the Cayman Islands and Turks and Caicos Islands. Keywords: Competition; Caribbean; Small Jurisdictions; Ethics; Local Preferences; Publicity; Transparency.

Rule of Law in Public Procurement: Disclosure Rules in Romania and Poland journal article

Laura Farca, Dacian Dragoş, Piotr Bogdanowicz

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 2, Page 99 - 117

The aim of this study is to look at the specifics of Romania and Poland in addressing the manner in which contracting authorities implement the transparency principle in public procurement award procedures. Generally, the practical applicability of this principle arises during both the public procurement award procedures and the contract performance. Yet, disclosure rules slightly vary in both Member States. As a common feature, in practice the level of disclosure during the performance of public procurement contract seems to be quite limited in both Poland and Romania. Keywords: Transparency principle; Protection of business secrets; Rule of law.

Abnormally Low Tenders of Public Providers journal article

A Cross-Subsidisation Issue?

Benedetta Biancardi

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 4, Page 270 - 284

This article analyses whether the European public procurement legal framework provides adequate mechanisms to prevent the violation of State aid rules when public undertakings take part in procurement procedures as economic operators. It is argued that one of the main risks when public undertakings bid in a tendering procedure is the cross-subsidisation of their activities. Thus, the paper first analyses the measures provided under State aid law to prevent cross-subsidisation of activities, in particular the Transparency Directive. Then, it focuses on Article 69(4) of Directive 2014/24/EU, which regulates the exclusion of abnormally low tenders tainted by State aid. Specific attention is given to the ratio of the provision, to the type of incompatible aids covered by it, as well as to the relationship between the duties and powers of the contracting authorities and the controlling role of the European Commission. The last section investigates the transposition and application of such provision at national level, in Italy. This article reaches the conclusion that Article 69(4) of the Directive, as currently formulated and applied, is not useful to detect the cross-subsidisation between competitive and reserved activities of public undertakings and make some proposals to improve the overall effectiveness of the system and to guarantee competition on a level playing field between public and private operators. Keywords: Public undertakings; State aid; Cross-subsidisation; Transparency Directive; Abnormally low tenders.

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