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Sustainable Public Procurement Best Practices at Sub-National Level: journal article

Drivers of Strategic Public Procurement Practices in Catalonia and Barcelona

Lela Mélon

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 138 - 161

The strategic use of public procurement across the European Union to contribute to sustainable development has been underdeveloped and unequally distributed among the EU Member States, with seven Member States being sustainable public procurement leaders, and the rest of the Member States having a very modest sustainable public procurement uptake. While Spain has not been one of the best performers, the outstanding Catalan performance as a Spanish autonomous community calls for the analysis of the driving factors that enabled a high sustainable public procurement uptake at the regional and local level. The present article explores the policy coherence, the accompanying legal framework and the supporting activities that have been carried out in Catalonia to incorporate green public procurement as the default procurement option at the regional and local level to serve as a potential model for a transition towards green public procurement for other regional and local procurement authorities. Keywords: sustainability, green public procurement, best practices


Exclusion of Certain Legal Services from Directive 2014/24/EU: the Italian case journal article

Marco Ceruti

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 124 - 137

This article explores the exclusion of certain legal services from Directive 2014/24/EU, in relation to the Italian case, where the notion of ‘contract’ (‘appalto’) is opposed to the ‘intellectual/professional work contract’ (‘contratto d’opera’), although the concept of ‘contract’, not that of ‘appalto’, does appear in the European directives. So, with reference to the single legal assignment, a lot of attention must be paid to the terminology. In addition, on the assumption that a public utilitas, albeit modest, must be made contestable, more and more within a traditionally closed market of consolidated (hereditary, I would say) positions that in some ways reproduce a medieval feudal system, it is clear that, by way of a public evidence, some ‘grey areas’ of public administration, where the management of the res publica is intertwined with business and clientelism, generating corruption and malfeasance, in any case precluding impartiality, would be eliminated at the root. Keywords: public procurement, national legislation, exclusion of certain legal services, principles of equal treatment and subsidiarity


Public Procurement and Natural Disasters: journal article

Lessons from Croatia

Marko Turudić

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 162 - 167

The COVID-19 pandemic has taken lives and endangered health all across the EU, and has had an profound effect on all aspects of economic activity across the Member States. Unfortunately, the pandemic isn't the only natural disaster affecting Croatia today; on 22 March 2020, Zagreb and its surrounding counties were struck by the strongest recorded earthquake since 1880. Croatian Government has implemented economic measures to mitigate the consequences of these two natural disasters. Two of those measures directly affect public procurement; the suspension of the majority of public procurement procedures and the Draft ‘Zagreb Rebuild Act’, which aims to suspend the Public Procurement Act in the procurement of materials, services and works for the Zagreb earthquake rebuild effort. This article aims to analyse the validity and consequences of those measures. Keywords: COVID-19, Croatia, Zagreb earthquake, suspension of public procurement



The Need for Emergency Public Procurement Legislation in China: journal article

Lessons from COVID-19

Jun Chong

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 168 - 173

Under the epidemic situation, materials are in short supply, but traditional procurement cannot meet the needs of emergency speed. This article compares and analyses the regular Chinese procurement methods with the US and EU emergency procurement methods, so as to obtain the methods suitable for China's emergency situation, and calls for emergency procurement legislation. At the same time, this article discusses the scope and principles of emergency procurement, emphasising that emergency procurement should not be abused and still follow the principle of value for money. Keywords: COVID-19, emergency public procurement, procurement methods, value for money, US public procurement, EU public procurement, China public procurement


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


EU Public Procurement Law: journal article

Amendments of Public Works Contracts After the Award due to Additional Works and Unforeseeable Circumstances

Vincent P. Wangelow

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 2, Page 107 - 123

In 2014, a newly enacted set of directives sought to reform the EU Public Procurement Regime, promoting stronger harmonisation but also more flexibility in procurement activities throughout the European Union. Amendments to public contracts after the award have long been a grey area, both for contracting authorities and tenderers alike. However, given the economic importance of public procurement for the European economy, the sound functioning of procurement rules is key. Hence, the article aims to provide a comprehensive evaluation of the new provisions, especially as far as amendments to public works contracts due to the necessity of additional works (following, inter alia, inadequate planning) and unforeseeable circumstances (typically entailing delays, cost overruns etc.) are concerned. In this respect, drawing on sources from legal scholarship of different EU Member States (eg, Germany, France, Spain) and the UK, this article provides an analysis of the rules on post-award amendments to public contracts with an emphasis on Article 72 of Directive 2014/24/EU. To identify the underpinning ideas of these rules, the article considers policy goals and constraints as well as the relevant case law of the Court of Justice of the European Union. Keywords: public works contracts, EU public procurement, amendments, modifications, additional works and unforeseeable circumstances, Directive 2014/24/EU