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How Will the Adoption of Mandatory GPP Criteria Change the Game? journal article open-access

Lessons from the Italian Experience

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

Preventing and Fighting Corruption on Public Procurement in Portugal: journal article

Where There's Life, There's Hope…

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

Discretionary Exclusion Grounds in Directive 2014/24/EU: journal article

A Missed Opportunity for Socially Responsible Public Procurement?

Marko Turudić, Melko Dragojević

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 1, Page 27 - 39

Directive 2014/24/EU represents a significant step in the right direction for socially responsible public procurement (SRPP). It contains many articles referencing SRPP, of which the most important may be Article 18(2). One such article is Article 57(4)a, which contains discretionary exclusion grounds for violations of SRPP, leaving it up to Member States to decide whether they will make such grounds mandatory or leave them discretionary in national legislation. The aim of this paper is to establish how Directive 2014/24/EU’s approach has affected the use of SRPP exclusion grounds in Croatia, a Member State that decided to leave all of the discretionary exclusion grounds discretionary. This research was conducted by acquiring and analysing all available contract notices from 2022 to establish the percentage, value and other factors associated with SRPP use in public procurement procedures in Croatia. Keywords: socially responsible public procurement; discretionary exclusion grounds

Public Procurement and Effective Dispute Resolution in Portugal journal article

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.

The Principle of Competition in the Context of Green Public Procurement – the Case of Green Award Criteria journal article

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

Abnormally Low Price and State Aid journal article

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

The Evolution of Government Procurement Regimes in the United States of America and the European Union: Lessons For Developing Countries journal article

Mukesh Rawat, K D Raju

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 3, Page 209 - 220

Government procurement has emerged as a complex and crucial national and international trade policy subject in the contemporary era. The United States of America (US) and the European Union (EU) are recognised as economies with some of the most advanced procurement regimes. Globally, developing countries have struggled to develop robust procurement regulatory frameworks for government procurement. This paper analyses the evolution of procurement in the US and EU and the valuable lessons for developing countries willing to improve their procurement regimes. The findings will be helpful to achieve harmonisation of procurement rules at the international level and to promote efficacy in the procurement process at the domestic level. Keywords: Public Procurement; US; European Union; Developing Countries; India

The eForms Regulation and Sustainable Public Procurement Data Collection journal article open-access

Nadia-Ariadna Sava

European Procurement & Public Private Partnership Law Review, Volume 18 (2023), Issue 3, Page 177 - 184

As of October 2023, the eForms Regulation will become the mandatory standard for public procurement data collection above the thresholds, including data on sustainability. The eForms have the potential to collect sustainable public procurement data and kickstart the process of monitoring green and social public procurement in all Member States. Nevertheless, in their current form, it is improbable that eForms can achieve this goal, because the Regulation makes all sustainable data collection fields optional. Member States can decide to collect sustainable public procurement data, but they lack proper incentives to do so. Both the European Union and Member States should take on the goal of creating a sustainable public procurement data infrastructure, with each its roles and obligations. Keywords: sustainable public procurement, eForms Regulation, data collection, digitalising public procurement, monitoring.