Marko Turudić, Melko Dragojević

European Procurement & Public Private Partnership Law Review, Volume 19 (2024), Issue 1, Page 14 - 21

Estimated value of procurement is an important initial step in a public procurement procedure, a step which ensures that the contracting authority will be able to allocate the funds necessary to conclude the public procurement contract. Recently, it has become more and more difficult to correctly estimate the value of works procurement. The COVID-19 pandemic, Russian aggression in the Ukraine and the subsequent inflation have substantially raised the prices of construction materials and labour. This has cumulatively and significantly increased the prices of construction and the value of construction public procurement procedures. In this paper, we aim to establish how significant this increase has actually been, and what the main causes and contributing factors were. Keywords: estimated value of procurement, works public procurement, inflation

Albert Sanchez-Graells

European Procurement & Public Private Partnership Law Review, Volume 19 (2024), Issue 1, Page 80 - 85

The Procurement Act 2023 received Royal Assent on 26 October 2023 and its entry into force is currently suspended. The Government plans to trigger its application in October 2024, with a minimum of 6 months’ notice before ‘go-live’. Quite a few implementation challenges remain. This country report provides an update on the completion of the legislative process leading to the post-Brexit ‘transformation’ of procurement legislation in the UK through the Procurement Act 2023. It stresses the implementation challenges that remain if the new rules are to translate into meaningfully different procurement practices and outcomes.

Luca Pardi

European Procurement & Public Private Partnership Law Review, Volume 19 (2024), Issue 1, Page 77 - 79

Ricardo Pedro

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 4, Page 252 - 260

This article addresses the need for disputes arising from public procurement to be resolved quickly and effectively. The Portuguese legislator has adopted measures such as urgent state court proceedings and the creation of specialised public procurement courts to achieve this. Other means of resolution, such as administrative arbitration, has been mobilised. To this end, a specific regime for public procurement arbitration has been developed, imposing its urgent nature. However, the legal nature of public procurement arbitration has been the subject of controversy, especially in relation to its characterisation as voluntary or necessary/mandatory. In this context, this article addresses the legal possibility and the option for a necessary arbitration regime for the resolution of public procurement disputes. Keywords: Public procurement; Arbitration; Dispute resolution.

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

Marc Steiner, Désirée Klingler

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 1, Page 87 - 93

Wojciech Hartung, Tomasz Zielenkiewicz

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 2, Page 121 - 128

One of the elements explicitly indicated in Article 69 of Directive 2014/24/EU that should be taken into account by the contracting authority when assessing the credibility/reliability of a tender is the question of State aid received by a contractor and its impact on the price the contractor offers (Article 69(2)(f) of Directive 2014/24/EU). Keywords: public procurement; abnormally low tender; State aid; economic advantage

Andrea S Patrucco, Ana-Maria Dimand, Désirée U Klingler

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 1, Page 65 - 76

Since the outbreak of COVID-19, Small and Medium-sized Enterprises (SMEs) have faced a heavy economic burden and uncertainty due to a contraction in resources and markets. As the world returns to normal conditions, we aim to synthesise key lessons from the pandemic and discuss which emergency actions should become routine to prevent or minimise the negative economic impact of future crises on SMEs and their innovation power. This paper reviews academic and non-academic literature on how governments can stimulate industrial innovation in SMEs based on experiences from public procurement of innovation during the pandemic. Our findings indicate that public procurement of innovation is a crucial tool to stimulate both the economy and new ideas. Against this backdrop, we propose the implementation of three related procurement policies: inter-agency and inter-governmental collaboration in the public procurement of innovation, cooperation partnerships between the government and firms, and the adoption of practices that encourage SME participation in the procurement of public innovation contracts. Keywords: small and medium-sized enterprises; innovation; emergency management; procurement of innovation

Aura Iurascu

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 1, Page 6 - 16

With the 2003 Communication on Integrated Product Policy, the European Commission started focusing more on ‘greening’ Member States’ public procurement law, by encouraging the adoption of National Action Plans (NAPs). Subsequently, with the 2008 Communication, green public procurement (GPP) criteria were developed. Since then, the Commission has developed more than 20 standard GPP criteria, which are currently applied voluntarily. Recently, the EU Commission indicated that they are working on mandating GPP criteria and several legislative proposals are foreseeing the setup of mandatory EU GPP criteria for all Member States. Some domestic legislations have already introduced mandatory GPP criteria. In particular, the Italian legislator followed up the Commission’s initiative on NAPs, and adopted mandatory minimum environmental criteria (MECs) for 18 purchasing categories. This article aims to describe and compare the evolution of GPP criteria in the EU and Italy to illustrate and anticipate possible outcomes for the forthcoming mandatory GPP at the EU level. By doing so, the paper emphasises the prominent role played by the Italian Council of State in ensuring the mandatory minimum for environmental criteria in Italian law. Finally, it argues that the Italian approach, which uses the ineffectiveness of the contract as a general and well-established remedy, has proven successful in ensuring the enforcement of MECs. Keywords: GPP criteria; sustainable public procurement; mandatory minimum environmental criteria; Italian public procurement law; ineffectiveness of public contract

Ricardo Pedro

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 1, Page 17 - 26

This article analyses the legal regimes implemented in Portugal for the prevention and combating of corruption in public procurement. Although it is not a new theme, it has received new updates in the law dedicated to the regulation of public procurement – ie, the Public Procurement Code; some of the novelties arising from the imposition of European Union Law on public procurement – while others result from the recent national strategy for the prevention and combating of corruptive phenomena. The implementation of the referred strategy – which covers several areas of action – also benefits matters of public procurement. This has resulted in a set of normative solutions that have strengthened the prevention of corruption, both from an organisational perspective (with the creation of a new public agency for the prevention of corruption) and from an activity perspective (by imposing corruption risk prevention plans, codes of conduct, training programmes and reporting channels, including on contracting authorities). These solutions, particularly the one related to whistleblowing channels, have been reinforced by the recent ‘European Whistleblowing Directive’, which led to the approval of a new national whistleblower protection scheme with immediate relevance in public procurement. Keywords: public procurement; corruption; rule of law; conflict of interests