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Locus Standi and the Interpretation of ‘Interest to Obtain a Particular Contract’ in Public Procurement Remedies journal article

Marko Turudić

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 1, Page 14 - 22

Under Directive 1989/665/EEC, locus standi in public procurement remedies is recognised to at least any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. The Croatian Public Procurement Act does not diverge from this definition. The Court of Justice of the European Union (CJEU) has established expansive and detailed case-law on locus standi, and in particular on what is to be considered a ‘particular contract’ under Article 1(3) of Directive 1989/665/EEC. Unfortunately, the case-law of the State Commission for Supervision of Public Procurement Procedures (DKOM) and of the High Administrative Court of the Republic of Croatia (VUSRH) established a much narrower interpretation. This paper aims to analyse relevant case-law of the CJEU, DKOM and VUSRH and explain how has this narrow interpretation of ‘particular contract’ affected the availability of public procurement remedies in Croatia. Keywords: public procurement remedies, locus standi, interpretation of particular contract

Should Value for Money Be the Sole Criteria in Opting for PPP Option for Infrastructure Projects? journal article

Victor Izebhor

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 1, Page 23 - 32

Countries are increasingly using Public-Private Partnerships (PPPs) to deliver infrastructure projects and there are a number of reasons why governments around the globe utilise PPPs in delivering infrastructure projects amongst which is the financial benefits of the project. In PPP projects, it is necessary for the host government to carry out an analysis to show that the proposed project is a viable venture. It has been argued by various practitioners and academics that the critical question from the government’s viewpoint is whether the project demonstrates good Value for Money (VfM) sometimes also called Value for Investment (VfI). This article examines the concept of VfM, PPPs as distinguished from traditional procurement. It also expatiates on the use and focus of VfM assessment in the PPP decision-making process and puts the VfM analysis into a broader, context by expanding its subsets which is a mix of both quantitative and qualitative analysis and the tools used in assessing if an infrastructure project demonstrates VfM, this paper also looks at the different criticisms, constraints and limitations submitted by different academics, institutions and practitioners on why VfM should not be the only factor to be contemplated in determining if PPP is the best option for delivering infrastructure projects or if the project should be skewed towards traditional infrastructure procurement. The article proffers key recommendations which can guide government institutions, agencies, and industrial sectors in using and improving the VfM analysis. The concluding section answers if VfM should be the sole criteria in reaching the determination of skewing projects towards PPP or Traditional Procurement. Keywords: public-private partnership, traditional public procurement, value for money, public sector comparator, infrastructure finance

Portuguese Recovery and Resilience Plan: journal article

First Legal Thoughts with Focus on Public Procurement (Part II)

Ricardo Pedro

European Procurement & Public Private Partnership Law Review, Volume 17 (2022), Issue 2, Page 107 - 117

This article analyses the legal framework implemented in Portugal for the execution of its Recovery and Resilience Plan (RRP). Starting from the analysis of the legal framework offered by the European Recovery and Resilience Mechanism (MRR), it critically analyses the main regulations created on a special or exceptional basis for the implementation of the Portuguese Recovery and Resilience Plan, with emphasis on the governance model, but also on the exceptional measures to facilitate budgetary procedures, expenditure authorisation and staff hiring and also special public procurement measures. As these special and exceptional measures are, as a rule, intended to relax or reduce the mechanisms of prior administrative control of certain procedures, the external control of special public procurement measures by the Portuguese Court of Auditors was strengthened. Lastly, and despite the Portuguese legislator not dedicating special legislation to it, the most appropriate means for resolving any legal disputes arising from the implementation of the Portuguese Recovery and Resilience Plan are addressed. The present article will be divided and published in two parts. The first part will be dedicated to the MRR, Portuguese RRP and special measures for its implementation already with reference to the special procurement measures approved in this context. The second part will be dedicated to the analysis of the special measures for public procurement and the appropriate means for the resolution of possible disputes arising from the execution of the national RRP. In each part we will present the respective conclusions. Keywords: EU Next Generation Funds; Recovery and Resilience Mechanism; Portuguese Recovery and Resilience Plan; special public procurement measures; administrative arbitration

Will FinTech Cause a Reconsideration of the Administrative and International Law Governing Public Procurement? journal article

Bryane Michael

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 3, Page 229 - 239

Regulators should not just leave FinTech rulemaking up to financial regulators. Contracting authorities should not just develop or use their own selected FinTech applications willy-nilly. They should contribute to overall changes in a procurement law -which extend far beyond simple supervisory or regulatory technologies (RegTech/SupTech). Governments should get serious about the Agreement on Government Procurement and similar treaties - by creating a new authority to help develop the law needed to put FinTech-enabled procurement platforms in place. China’s own world-leading FinTech and cross-border public procurements do not always contribute to a global level playing field. Any FinTech applications facilitating public procurement should thus encourage compliance with the procurement law legal principles the international community has developed over decades. Keywords: public procurement, financial technology, FinTech

Self-Cleaning in EU Public Procurement Law and Its Transposition into Polish Law journal article

Aldona Kowalczyk, Aleksandra Sołtysińska

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 3, Page 181 - 192

The concept of self-cleaning was introduced into Polish and EU public procurement law relatively recently though, earlier, many EU Member States and international institutions saw the need to allow errant contractors to show contrition and goodwill by adopting voluntary remedial measures. Numerous doubts attach to specific remedial measures, timeframes and documents needed for a contractor’s recovery of good standing, and to contractors participating in several tenders simultaneously. This article seeks to both propose the imposition of some sort of order on the self-cleaning regime and respond to issues arising in everyday practice and jurisprudence. Keywords: public procurement, self-cleaning, exclusion grounds

E-Procurement for PPPs and Concessions: journal article

Current Trends and Opportunities

Bruno de Cazalet, Iryna Zapatrina

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 2, Page 131 - 150

Recently, also due to the COVID-19 pandemic, the issue of using e-procurement is becoming more and more relevant for all countries around the world, and especially for EU Member States implementing the requirements of the Directives on public procurement. The substantial advantages of the use of electronic procedures for public procurement for reduction of tender costs and better prices, the possibility to avoid misuse, collusion and corruption, led some countries to explore opportunities to adapt the traditional e-procurement experience for public-private partnership (PPP) and concession tenders. Today, the regulation in this field is practically absent and the experience is very limited. This article presents: an analysis of the situation regarding current regulation, experience in electronic PPP procurement implementation, and trends; the peculiarities of PPP procurement compared to traditional public procurement; the difficulties related to PPP procurement as e-procurement; and the recommendations of authors on the use of electronic procurements for PPPs and concessions based on the peculiarities of a project implemented using relevant mechanisms. Keywords: public-private partnership; PPP; public procurement; electronic procurement; e-procurement; digitalisation

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Issue 2 / 2022