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Innovation Procurement in the Elderly Care in the Netherlands: journal article open-access

The Vilans Knowledge Programme Dignity and Pride Experience with Open Innovation

Carina Pittens, Ana Lucia Jaramillo

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 4, Page 263 - 275

The Vilans Research Programme Dignity & Pride is the first nationwide innovation procurement project for nursing home services in Europe. The research program aimed to contribute to the structural increase of the quality of services provided to elderly clients in the Netherlands, based on an open innovation approach. This case study provides a policy, legal and theoretical background to illustrate the experience of Vilans in the procurement of R&D leading to insights for improvement of the care of elderly clients. To ensure quality and manage risk, the main building blocks and steering mechanisms included a governance structure with a review committee, an open policy document as part of the technical specifications, and the use of an open procedure of four (thematic) lots and multiple framework agreements covering three R&D steps. Keywords: open; innovation; procurement; Research and Development (R&D); elderly care

Public-Private Partnership as a Solution for Competition Restrictions for Local Governments in Finland journal article

Paukku Eelis

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 4, Page 292 - 300

This article aims to find out how Finnish legislation allows usage of PPPs by local governments. This study was conducted by analysing the main features of PPPs from literature as well as analysing EU and national legislation. The main findings of the study were that the most significant legislation is EU public procurement legislation, which sets a framework on how the public can acquire the skills and problem-solving from the private sector. The procurement method called ‘the competitive dialogue’ has proven to be effective in PPPs. As there are many different forms of PPPs, it is possible that other legislation can create issues with PPPs as well, mainly EU State aid regulation, national, local government regulation, and national competition regulation. As a main result, it can be stated that regulation does not prevent or even hinder the usage of PPPs as long as legal requirements are taken account and markets are not unnecessarily disturbed. Keywords: public-private partnership; PPP; State aid; public procurement; local government regulation; competitive dialogue

The Value of the Value for Money Principle: journal article

From a Public Private Partnership Perspective

Christina D. Tvarnø

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 4, Page 282 - 291

The article concerns Public Private Partnerships and the value for money principle. The article presents an analysis of the British value for money principle, the lack of similar principle in the EU public procurement law and the importance of value for money in regard to Public Private Partnerships. This article does not question the key principles of transparency, equal treatment, proportionality, non-discrimination, and competition but discusses the value for money as a relevant legal instrument in regard to Public Private Partnerships in EU public procurement law. Keywords: Public Private Partnerships, value for money, public procurement law, Britain, EU law

Administrative Arbitration in Public Procurement in Portugal: State-of-the-Art journal article

Ricardo Pedro

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 3, Page 225 - 235

In recent years Portugal has developed diferent regimes of public arbitration, especially in administrative law. The option to find an alternative to the courts, namely to solve conflits in public procurement is an ongoing project and naturaly a solution with advantages and disavantages. This study deals with some aspects of the general theory of administrative arbitration: not only the traditional matters, but also the recent changes to the Portuguese Code of Procedure in Administrative Courts (CPTA), as well as other aspects that we believe should deserve greater attention from the Authors. In addition, the rules on arbitration set out in the Portuguese Public Procurement Code are addressed. Finally, some notes are included on urgent administrative arbitration, in particular on the regime of ‘pre-contractual arbitration litigation’ resulting from the recent amendments to the CPTA. Keywords: administrative arbitration, urgency, public procurement, administrative procedure, appeals of arbitration decisions

Legal Remedies for Public Private Partnerships in China journal article

Ziwei Zhang

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 3, Page 216 - 224

Although improving the quality and efficiency of public services, Public Private Partnerships (PPPs) are vulnerable to risks and disputes. Therefore, establishing effective legal remedies is of great significance to PPPs. In China, the existing regulations of remedies for PPPs have some problems, eg regarding aspects of the remedies’ subjects, triggering conditions, and methods. To improve PPPs’ legal remedies, the remedies’ subjects and triggering conditions should be broadened, the remedies’ methods should be reformed, and the applicable legal framework should be further improved. Keywords: public private partnerships, public procurement law, dispute resolution, legal remedies, China

Cooperation in Defence and Security Procurement among EU Member States journal article

Applicable Law and Legal Protection

Pascal Friton, Christopher Wolters, Niklas Andree

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 1, Page 24 - 41

Strengthening cooperation in defence and security procurement among Member States has become an important concern of the European Union. Because joint procurements reduce costs, facilitate cooperation and strengthen allies, the European Commission has encouraged Member States repeatedly to cooperate more strongly in such matters. The expected increase in cooperation creates a pressing need to familiarise oneself with the applicable legal framework – a need this paper seeks to satisfy. It focuses on cases, in which Member States charge one entity (which may be, for example, one of the Member States or an international organisation) with the procurement of security goods and services and proceeds in three main steps. First, it analyses the applicable procurement rules for both the external relationship between the entity and the supplier as well as the internal relationship between the entity and the participating Member States. In a second step, the paper proceeds in closely examining the narrowly confined exemptions found in EU primary law as well as the exemption framework of Directive 2009/81/EC. In its final section, the paper delineates the legal protection available to aggrieved parties with respect to both relationships. Keywords: Defence and security; Joint/collaborative procurement; Directive 2009/81/EC; Article 346 TFEU.

On Competition, Free Movement and Procurement journal article

Irgita’s Public Cooperation Conundrum

Willem Janssen, Erik Olsson

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 1, Page 2 - 12

Competition, free movement and procurement are interrelated concepts that have long influenced the discretionary power of public authorities in the European Union to provide services through cooperation with other authorities. This contribution delves into this important issue, which should regain new attention because of the Irgita case before the CJEU. This case has seemingly created a legal conundrum for public cooperation and framework agreements. The discussion in this contribution brings to light the broad implications of this judgement for these two types of cooperation, and poses the question if the influence of EU public procurement law has made it (nearly) impossible to cooperate accordingly in the future. Keywords: Public cooperation; Procurement; Free movement; Competition.

Deus Ex Machina? journal article

Some Remarks on Public Procurement in the Second Machine Age

Paweł Nowicki

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 1, Page 53 - 60

The ‘Second Machine Age’ is a term created by two MIT professors, Erik Brynjolfsson and Andrew McAfee, and means the time of emerging technologies: artificial intelligence, machine learning, neurotechnology, biotechnology, virtual reality, Big Data, Internet of Things, blockchain, etc. Emerging technologies are seemingly not related to law, and in particular to public procurement law, but enter into complex relationships with legal regulation. This paper aims to introduce both the opportunities and challenges that some of these technologies (AI, blockchain, smart contracts) create for public procurement praxis, showing that it’s not deus ex machina. New technologies will undoubtedly enrich and improve the public procurement system, but they also raise legitimate ethical and legal concerns. Keywords: Artificial intelligence; Machine learning; Blockchain; Smart contracts; Future of public procurement; Digitalisation.

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