Jamie Thomas

European Procurement & Public Private Partnership Law Review, Jahrgang 18 (2023), Ausgabe 1, Seite 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

Carina Risvig Hamer

European Procurement & Public Private Partnership Law Review, Jahrgang 17 (2022), Ausgabe 3, Seite 190 - 201

The article explores and analysis how the principle of proportionality has developed over the years and how the principle is applied in EU public procurement law. It explores different justifications for exclusions of undertakings such as social and environmental considerations, and how the principle of proportionality is used when balancing the different aims in public procurement. It is argued that the principle of proportionality ultimately ensures the procurement rules are flexible and contributes to safeguarding and developing the aims in public contracts. Keywords: proportionality; internal market; restrictions; exclusions grounds

Csaba Balázs Rigó, Tibor Kugler

European Procurement & Public Private Partnership Law Review, Jahrgang 16 (2021), Ausgabe 2, Seite 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

Jakub Pawelec

European Procurement & Public Private Partnership Law Review, Jahrgang 15 (2020), Ausgabe 4, Seite 276 - 281

Using the example of the utilities sector, this article describes a type of activity of public entities which interferes significantly with the market. A wide understanding of State aid has this consequence that it thus extends to actions which ostensibly are legal but in practice cause significant violations of competition at the cost of, and to the detriment of, private business entities operating in the market. This is the case, for example, when public entities (authorities) carry out commercial activities through commercial entities, eg companies. The practice described in the article and the above-mentioned decisions as taken by the said Polish authorities show that with regard to certain situations and behaviours regarding State aid the other competitors in the market may be left unprotected. There is a thesis that in Poland new and in principle clandestine practices have developed of State aid/support which have a very intensive indirect impact on the market. Keywords: market; clandestine forms of State aid; intervention; Poland; public utilities