Rachel Scheele, Grith Skovgaard Ølykke

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 139 - 149

This article analyses the application of competition rules to abnormally low tenders. The purpose is to determine whether – and under which circumstances – abnormally low tenders may constitute violations of Articles 101 and 102 TFEU, as well as how contracting authorities may or should proceed in case of potential infringements of competition law. It is concluded that abnormally low tenders may indeed violate EU competition law, which can lead to distortions of competition in public procurement markets in the short and/or long run, resulting in a decrease of social welfare. The parallel existences of the two sets of rules that regulate low prices – but which do not entirely coincide – do not seem to facilitate enforcement of competition law violations, which is crucial to obtaining efficient public procurement. Some proposals for a more competition-oriented approach to abnormally low tenders are provided. Keywords: Article 101 TFEU; Article 102 TFEU; Directive 2014/24/EU; bid-rigging; predatory pricing; principle of equal treatment

Dagne Sabockis

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 4, Page 237 - 243

This paper proposes a reconciliatory approach to the interpretation of the principle of competition and the principle’s role for green public procurement. To ensure consistency when interpreting article 18(1), second subparagraph of the EU Public Procurement Directive, the paper suggests taking guidance from the general principles of EU law. The paper considers the interpretation of “unduly favouring or disadvantaging” economic operators, and examines which factors are relevant to the assessment of whether the principle of competition is violated in the context of green award criteria. Keywords: green public procurement; competition; principles

Paul Heijnsbroek

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 4, Page 266 - 268

Mari Ann Simovart, Marit Piirisaar

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 3, Page 144 - 157

Incomplete tenders and missing information seem to be a known constant in public procurement, confronting contracting authorities with legal challenges and critically influencing the results of public purchasing. Faced with a non-conforming tender that cannot be accepted, a contracting authority must choose between two options: to reject the tender or to ask for correction of mistakes in the tender. Exceptionally, instead of the option to clarify, the requirement of proportionality may justify an obligation to do. Subject to a complex discretionary decision, making the choice between a rejection and a clarification has to follow the general principles of EU public procurement law and good administration as well as the national administrative law rules. This article looks at the topic with the help of examples from Estonian case-law. By analysing both the relevant procedural and substantial rules, we draw guidelines to assist navigating the legal maze of conflicting considerations that concern the correction of mistakes and clarification of ambiguities in public procurement tenders. Keywords: clarification of tender; correction of mistake in tender; principle of proportionality

Malik Al Jabori

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 3, Page 260 - 263

Marco Ceruti

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 124 - 137

This article explores the exclusion of certain legal services from Directive 2014/24/EU, in relation to the Italian case, where the notion of ‘contract’ (‘appalto’) is opposed to the ‘intellectual/professional work contract’ (‘contratto d’opera’), although the concept of ‘contract’, not that of ‘appalto’, does appear in the European directives. So, with reference to the single legal assignment, a lot of attention must be paid to the terminology. In addition, on the assumption that a public utilitas, albeit modest, must be made contestable, more and more within a traditionally closed market of consolidated (hereditary, I would say) positions that in some ways reproduce a medieval feudal system, it is clear that, by way of a public evidence, some ‘grey areas’ of public administration, where the management of the res publica is intertwined with business and clientelism, generating corruption and malfeasance, in any case precluding impartiality, would be eliminated at the root. Keywords: public procurement, national legislation, exclusion of certain legal services, principles of equal treatment and subsidiarity

Michele Cozzio, Edoardo Tozzo

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 174 - 178

The directions provided by the Court are clear in considering that the limit on subcontracting imposed by Italian legislation is precluded by Directive 2014/24/EU. The percentage limit fixed in general and abstract terms goes beyond what was necessary to achieve its objective specially in relation to combat organised crime and may make it more difficult for the SMEs to access public contracts.

Julien Gaul, Vera Van Thuyne

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 3, Page 236 - 241

The annotated case deals with the particular situation of a preselected candidate in a restricted procedure who has agreed to acquire another preselected candidate, under a merger agreement concluded between the preselection stage and the tendering stage, but completed after the tendering stage. The absorbing candidate eventually submitted a tender while the absorbed candidate did not. The CJEU decided that there was no reason to state, in view of the circumstances of the case, that the tender should be excluded. According to the Court of Justice, even though the substantive identity of the preselected candidate had changed before submitting the tender, there was no violation of the principle of equality, since the tenderer still complied with the selection criteria. It could also not be presumed that the two preselected candidates had exchanged sensitive information that put the other tenderers at a competitive disadvantage.

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.

Marco Ceruti

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 3, Page 197 - 202

This paper explores the exclusion of certain legal services from Directive 2014/24/EU, in relation to the judgment of the CJEU in the P.M. e a. Case, stating that legal services provided by a lawyer are to be conceived only in the context of a relationship intuitu personae between the lawyers and their client, characterised by the utmost confidentiality and by the free choice of representative, at the same time leaving for national legislatures to determine whether those services should be subject to public procurement rules. Keywords: Public procurement; National legislation; Exclusion of certain legal services; Principles of equal treatment and subsidiarity.