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Examination of Tenders in Terms of Abnormally Low Price: journal article

The Contracting Authority's Perspective

Katarzyna Kuźma, Caroline Lagendijk, Natalia Olmos

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 129 - 138

From the perspective of contracting authorities, the issue of abnormally low prices in public procurement is extremely important. This is not only because both the procurement Directives and national legislation in individual EU Member States require authorities to take certain steps to examine whether tenders submitted in a procedure contain an abnormally low price, but it is also important from a purely economic and organisational perspective. At the same time, the recent market instability has compounded the difficulties faced by contracting authorities in making rational decisions and pursuing pricing policies. This article takes the contracting authorities’ perspective, examining the powers and responsibilities that such authorities have when examining abnormally low prices and the practical difficulties of doing so. Keywords: contracting authorities; abnormally low price; tender; obligation to examine; assessment; rejection

The Prior Information Notice and the Obligation of Motivation · Case C‑515/18 Autorità Garante della Concorrenza e del Mercato v Regione Autonoma della Sardegna · Annotation by Federica Maldari journal article

Annotation on the Judgment of the Court of Justice (Tenth Chamber) of 24 October 2019 in Case C‑515/18 Autorità Garante della Concorrenza e del Mercato v Regione Autonoma della Sardegna

Federica Maldari

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 1, Page 75 - 79

The case deals with the interpretation of Article 7(2) and (4) of Regulation (EC) 1370/2007 on public passenger transport services relating to the direct award of the public service contract, by paying attention to the opening of the transport services sector to competition. The request for a preliminary ruling under Article 267 TFEU concerning the interpretation of those provisions was part of the proceedings between the Italian Competition Authority and the Region of Sardinia on the direct award of the contract for the transport of passengers by rail to Trenitalia S.p.A. by that Region. The referring Court asked the Court of Justice whether those provisions must be interpreted as meaning that the competent authority which intends to award a contract directly must take the necessary steps to open the transport services sector to competition by publishing or communicating, to all interested economic operators, all the information necessary to allow them to submit a serious and reasonable offer, and by carrying out a comparative assessment of all bids. Keywords: Direct award procedure; Tender procedure; Public passenger transport services; Competition; Bids; Prior information notice; Comparative assessment; Obligation of motivation.

Risk Assessment in Public Contracts journal article

Katherine Bloomfield

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 1, Page 7 - 15

This article aims to introduce a novel approach to risk assessment in public service commissioning contracts, through the lens of the UK’s defence sector. It begins by providing a concise background to the contemporary service commissioning tools and approaches that are currently adopted by public sector organisations, paying particular attention to the contemporary implementation of framework agreements. Risk assessment in public sector contracting is embedded by the choice of prescribed terms and conditions, which by design, are formalised within a contract to mitigate a menu of recurrent or common risks. Whilst the interpretation, incorporation and reasonableness of the contractual terms and conditions are readily acknowledged amongst legal practitioners as a fundamental pillar for risk assessment, the dynamic patterns associated with risk remains undervalued. To fully account for the dynamic nature of risk, a tool for mapping the migration of risk has been developed in order to provide a new method of ex ante risk assessment to the design and inception of public sector contracts. Keywords: Contracts; Public sector procurement; Risk assessment; Systemic risk; Framework agreements.

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