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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.

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

Administrative Arbitration in Public Procurement in Portugal: State-of-the-Art journal article

Ricardo Pedro

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 3, Page 225 - 235

In recent years Portugal has developed diferent regimes of public arbitration, especially in administrative law. The option to find an alternative to the courts, namely to solve conflits in public procurement is an ongoing project and naturaly a solution with advantages and disavantages. This study deals with some aspects of the general theory of administrative arbitration: not only the traditional matters, but also the recent changes to the Portuguese Code of Procedure in Administrative Courts (CPTA), as well as other aspects that we believe should deserve greater attention from the Authors. In addition, the rules on arbitration set out in the Portuguese Public Procurement Code are addressed. Finally, some notes are included on urgent administrative arbitration, in particular on the regime of ‘pre-contractual arbitration litigation’ resulting from the recent amendments to the CPTA. Keywords: administrative arbitration, urgency, public procurement, administrative procedure, appeals of arbitration decisions

‘Who’s Afraid to Cooperate?’: CJEU Adopts Strict View on Non-Institutionalised Cooperation journal article

Annotation of the Judgment of the Court of Justice of the European Union (Fourth Chamber) of 28 May 2020 in Case C-796/18 Informatikgesellschaft für Software-Entwicklung (ISE) mbH v Stadt Cologne and of the Judgment of the Court (Ninth Chamber) of 4 June 2020 in Case C-429/19 Remondis GmbH v Abfallzweckverband Rhein-Mosel-Eifel

Stéphanie De Somer, Laura Hofströssler

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 3, Page 242 - 251

Over the past twenty years, the Court of Justice of the European Union rendered multiple judgments on the subject of exemptions from public procurement law. This case law has been consolidated in the current Public Procurement Directive. The cases examined in the present annotation offered the Court a first opportunity to further clarify the non-institutionalised cooperation exemption in light of this Directive. The Court has seized this occasion to emphasise its strict position on exempted non-institutionalised cooperation once again.

Legal Remedies for Public Private Partnerships in China journal article

Ziwei Zhang

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 3, Page 216 - 224

Although improving the quality and efficiency of public services, Public Private Partnerships (PPPs) are vulnerable to risks and disputes. Therefore, establishing effective legal remedies is of great significance to PPPs. In China, the existing regulations of remedies for PPPs have some problems, eg regarding aspects of the remedies’ subjects, triggering conditions, and methods. To improve PPPs’ legal remedies, the remedies’ subjects and triggering conditions should be broadened, the remedies’ methods should be reformed, and the applicable legal framework should be further improved. Keywords: public private partnerships, public procurement law, dispute resolution, legal remedies, China

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

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