Tünde Tátrai

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 2, Page 172 - 174

Pedro Melo, Sandra Tavares Magalhães

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 2, Page 175 - 175

Csaba Balázs Rigó, Tibor Kugler

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 2, Page 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

Albert Sanchez-Graells

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 4 - 18

In December 2020, seeking to start cashing in on its desired ‘Brexit dividends’, the UK Government published the Green Paper ‘Transforming Public Procurement’. The Green Paper sets out a blueprint for the reform of UK public procurement law that aims to depart from the regulatory baseline of EU law and deliver a much-touted ‘bonfire of procurement red tape’. The Green Paper seeks ‘to speed up and simplify [UK] procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery’. The Green Paper aims to do so by creating ‘a progressive, modern regime which can adapt to the fastmoving environment in which business operates’ underpinned by ‘a culture of continuous improvement to support more resilient, diverse and innovative supply chains.’ I argue that the Green Paper has very limited transformative potential and that its proposals merely represent an ‘EU law +’ approach to the regulation of public procurement that would only result in an overcomplicated regulatory infrastructure, additional administrative burdens for both public buyers and economic operators, and tensions and contradictions in the oversight model. I conclude that a substantial rethink is needed if the Green Paper’s goals are to be achieved. Keywords: public procurement; reform; deregulation; green paper; transforming public procurement; Brexit

Penelope Giosa

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 39 - 51

This article argues that the prevention of bid rigging has not been factored into the policy design of the EU Public Procurement Rules in a systematic and consistent way. As it will be shown, the critical junctures of EU Public Procurement Rules did not emerge alongside the anti-cartel legislation in Europe, but entirely independently of the latter. As a result, the current European Public Sector Directive 2014/24/EU is not adequately collusion proof and there is still a long way to go. Keywords: bid rigging; collusion; EU Procurement Directives; competition; transparency

Stuart Addy

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 19 - 29

There have been many major studies and reports into Public Sector Procurement (PSP) in the United Kingdom (UK). Most are commissioned by and led by appointees from central government and often follow media criticism, making recommendations that are used to amend strategy which is then mandated in legislation. There appears to be a belief that PSP must be managed from the ‘top’ and that it can only be improved or affected by mandate and legislation. The legislation is written to favour the buyer or to respond to specific criticisms from suppliers, rather than being written from the outset with both in mind. There has been little effort reported seeking to create a framework that embraces both, just as there is little evidence that the experiences of the procurement officers are taken into account when amendments to legislation, regulation and procedure are made. This article suggests some implications and possible remedies. Keywords: procurement; commissioning; risk-aversion; innovation

Raquel Carvalho

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 30 - 38

The Covid-19 pandemic has been a driver of new State legislation in several fields. This article addresses the special public procurement rules enacted in this context, including some challenges such not-so-reflected legislation raised. The ‘successive’ exceptional public procurement regime implies very complex hermeneutics regarding both the subjective and objective scope of application and the discretionary legal requirements established therein. The key measure is a particular direct award regime that has raised some doubts regarding the need for such solutions when compared to those in the Directive. There has already been some monitoring of the regime’s implementation that has underlined the need to continue monitoring ‘the planning, the implementation and management of the public emergency answer’. Keywords: Covid-19; state of emergency; special public procurement rules

Ezgi Uysal

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 52 - 64

Under the UN Guiding Principles (UNGPs), states are advised to be in a commercial relationship with economic actors that are considerate of their human rights influence. Given the amount of taxpayers’ money spent on procurement, public authorities can use their leverage to add social considerations into the procurement process. This article sets out whether public authorities can use their leverage to invite businesses to respect human rights as provided with the UNGPs. After providing an overview of the UNGPs and the EU approach, this article analyses the EU Public Procurement Directive adopted in 2014 which has promoted sustainability concerns with the use of green and socially responsible public procurement. It then establishes, that although prescribed under the Guiding Principles, the EU regime does not always allow human rights concerns to be integrated into the procurement. Keywords: UNGPs; business and human rights; public procurement; sustainability

Ioannis Vidakis, Dimitrios Georgantas, George Vlachos

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 73 - 77

This article connects the politics, strategy, economy, and armament programmes of ancient Athens, during the time of the general and leader Themistocles. It refers, in particular, to the decision of the city to build a strong fleet, as well as to the methodology of assigning, financing, and implementing this massive project, considering the state of the city at that historical period. The article attempts to present a historic innovation, which was quite successful, conveying an optimistic message of a proportionate, effective response to the current challenges our country (Greece) is facing, in the fields of national security and economy. The text aims to encourage the ability to think critically among the readers regarding the crucial role Themistocles played in the course of history and the need to realise that the promotion and support of capable and qualified leaders are of paramount importance for small nations. Keywords: public procurement; defence contracts; naval equipment; Ancient Athens; Themistocles

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.