Stelios Tsevas

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 4, Page 307 - 309

Carol Cravero

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 1, Page 30 - 42

Global challenges increasingly require collaborative state-civil society efforts. The formulation and delivery of public policies are no longer the prerogative of the public administration alone. Instead, civil society might play an important role in public policies, including buying practices. Although examples of civil society’s involvement already exist in some public procurement frameworks, its potential is still underexploited or even neglected as to specific public procurement’s stages or purposes. Whilst some specific provisions have been enacted to ensure its effective participation in public procurement to enhance transparency, civil society involvement in buying processes might help fostering sustainability. This paper specifically analyses the questions on how and when (ie at what procurement stage) the involvement of civil society is/can be provided and for what purpose(s) in the light of the 2018 OECD-MAPS and the MDBs guidance documents with a particular focus integrity pacts. Keywords: Sustainable public procurement; Civil society; Integrity.

Raquel Carvalho

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 1, Page 43 - 54

Portugal has been leading the way in the implementation of e-procurement within the European Union. This paper, presented in two Parts, starts, in this Part I, by explaining the framework of e-procurement, describing the Portuguese experience regarding the use of electronic platforms based on factual data assembled by the Portuguese regulatory body. Part II describes the legal regime imposed by the European Union Law thoroughly, particularly by article 22 of Directive 2014/24/EU, which is contained in a specific ruling as it has occurred before the full 2014 Directives transposition. To provide the full picture of e-procurement in Portugal, the paper also explains the projected intention of the Directive transposition and the actual legal ruling enshrined in the Public Contracts Code (PCC). Keywords: e-Procurement; Directive 2014/24/EU Implementation

Katherine Bloomfield

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 1, Page 7 - 15

This article aims to introduce a novel approach to risk assessment in public service commissioning contracts, through the lens of the UK’s defence sector. It begins by providing a concise background to the contemporary service commissioning tools and approaches that are currently adopted by public sector organisations, paying particular attention to the contemporary implementation of framework agreements. Risk assessment in public sector contracting is embedded by the choice of prescribed terms and conditions, which by design, are formalised within a contract to mitigate a menu of recurrent or common risks. Whilst the interpretation, incorporation and reasonableness of the contractual terms and conditions are readily acknowledged amongst legal practitioners as a fundamental pillar for risk assessment, the dynamic patterns associated with risk remains undervalued. To fully account for the dynamic nature of risk, a tool for mapping the migration of risk has been developed in order to provide a new method of ex ante risk assessment to the design and inception of public sector contracts. Keywords: Contracts; Public sector procurement; Risk assessment; Systemic risk; Framework agreements.

Teymour Aliyev

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 1, Page 55 - 62

The Republic of Azerbaijan, as a young member of the Council of Europe, which ratified and implemented to its legislation the provisions of numerous conventions against corruption as well as other international agreements on combating transnational crimes, money laundering and other corruption-related misconduct, and by being a developing country and benefiting from loans and other funds provided by the World Bank Group (WBG), should substantially upgrade its anti-corruption legislation and especially in the procurement area in order to keep pace with fast changing international standards. Whilst the concept of corruption may be more or less universal both in the national legislation and international normative documents, the notions of fraud and other ‘corruption-related’ misbehaviour in laws of Azerbaijan should be clearly defined and advanced to match the definitions used by the WBG and other multilateral development banks. And when they are legibly defined, the grounds for the exclusion and debarment of bidders and contractors committing such misconduct and sanctions should be broadened and differentiated with an eye to ensure fairness of the procurement process and harmonization with regulations applied internationally. In this work the terms of corruption, forgery, fraud and coercion according to the national legislation of Azerbaijan and the WBG standards have been analysed and compared. Further, in order to demonstrate legal shortages and loopholes at the national level, the legal grounds for the exclusion and debarment of bidders committing corruption-related acts at procurement procedures in Azerbaijan and its champion company SOCAR, and the type of applicable sanctions, with comparison to the provisions of the suspension and debarment standards employed by the WBG, have been described. Finally, the author has tried to offer proposals on the elimination of regulatory gaps for the purpose of ensuring the effectiveness and fairness of procurement-related exclusion and debarment process in Azerbaijan. Keywords: Corruption-related Misconduct; Sanctions; Exclusion; Debarment; World Bank Group; Procurement legislation.

Zbigniew Raczkiewicz, Antoine Malherme

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 3, Page 156 - 173

The new rules introduced in the European Union by the General Data Protection Regulation (GDPR) have a tremendous impact on all aspects of our lives, including public procurements. They apply not only to the domestic public procurements but also to the ones covered by international agreements, like the World Trade Organisation’s Agreement on Government Procurement (GPA). It is therefore interesting to analyse what impact the European Union data protection rules have on the application of GPA provisions, in particular if the former do not restrict the latter.

Sergi Nin Sánchez

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 3, Page 180 - 196

In the context of the digital transformation of the European economy and society, new technologies have emerged bringing new opportunities for the benefit of citizens, public administrations and businesses. One of these is the Blockchain-based smart contracts rooted in what is known as Distributed Ledger Technologies (DLTs). This article aims to provide an overview of how DLTs could be successfully implemented in the governance of public procurement, as well as discussing some legal challenges that might appear. Taking into account the proof of concept of all the existing projects in this field, DLTs promise to provide procuring with a high level of transparency, integrity, autonomy, and overall speed-up procurement cycles. While the architecture of a Blockchain-based public procurement scheme is constrained by the immaturity of the technology, it is observed that the establishment of private ledgers (or public-permissioned ledgers) in tender procedures might be more suitable to public procurement. Although the process of implementation might be costly and less feasible in comparison with other fields in the public sector, initiatives focusing on this area should be endorsed. Ultimately, the successful implementation of DLTs in the governance of public procurement is inconceivable without a far-reaching professionalisation of procurement practitioners. Keywords: Blockchain; Smart Public Contracts; Artificial Intelligence; Digital Governance; Distributed Ledger Technology; Digital Procurement.

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.

Slavica Joković

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 3, Page 174 - 179

This article examines relevant provisions of the public procurement legislation in Serbia that concerns competition, such as principle of ensuring competition and competitive public procurement procedures. Efficient implementation of this legislative framework is essential for enhancing competition in the public procurement market. Furthermore, the article gives a review of some measures introduced in fighting against anticompetitive practice. Finally, it analyses the role of competent institutions in Serbia in the area of public procurement and competition. Keywords: Competition; Public Procurement legislation; Public Procurement principles; Public Procurement procedures; Anticompetitive practice; Acquis communautaire.

Raquel Carvalho

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 2, Page 70 - 78

This Part II concludes the paper published in EPPPL 1-2019 regarding the implementation of e-procurement in Portugal. In Part I, the evolution regarding e-procurement provisions within Public Procurement Directives from 2004 to 2014 was addressed. Part II now addresses how both the Public Contracts Code and the specific legislation regarding electronic platforms have transposed the 2014 Public Procurement Directives into internal law, namely: (i) how the transposition of articles 29, 22, 40 and annexes of the 2014 Directives was made [not only the legal regime but also how some litigious questions were taken (and solved) to national administrative courts]; (ii) how the first intention of the Legislator to transpose the 2014 Directives went; and (iii) how they were actually effectively transposed. As already referred to in Part I, the transposition of the 2014 Directives in Portugal was made through a two-step procedure. Article 22 of the 2014/24/Directive was regulated by Law 96/2015, a very extensive and complex regulation regarding e-procurement, while the remaining provisions of the 2014 Directives were transposed in 2017 after a period of public discussion of a very different draft. The path that has been built since 2004 is, thus, consolidated.