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Public-Private Partnership as a Solution for Competition Restrictions for Local Governments in Finland journal article

Paukku Eelis

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 4, Page 292 - 300

This article aims to find out how Finnish legislation allows usage of PPPs by local governments. This study was conducted by analysing the main features of PPPs from literature as well as analysing EU and national legislation. The main findings of the study were that the most significant legislation is EU public procurement legislation, which sets a framework on how the public can acquire the skills and problem-solving from the private sector. The procurement method called ‘the competitive dialogue’ has proven to be effective in PPPs. As there are many different forms of PPPs, it is possible that other legislation can create issues with PPPs as well, mainly EU State aid regulation, national, local government regulation, and national competition regulation. As a main result, it can be stated that regulation does not prevent or even hinder the usage of PPPs as long as legal requirements are taken account and markets are not unnecessarily disturbed. Keywords: public-private partnership; PPP; State aid; public procurement; local government regulation; competitive dialogue

The Value of the Value for Money Principle: journal article

From a Public Private Partnership Perspective

Christina D. Tvarnø

European Procurement & Public Private Partnership Law Review, Volume 15 (2020), Issue 4, Page 282 - 291

The article concerns Public Private Partnerships and the value for money principle. The article presents an analysis of the British value for money principle, the lack of similar principle in the EU public procurement law and the importance of value for money in regard to Public Private Partnerships. This article does not question the key principles of transparency, equal treatment, proportionality, non-discrimination, and competition but discusses the value for money as a relevant legal instrument in regard to Public Private Partnerships in EU public procurement law. Keywords: Public Private Partnerships, value for money, public procurement law, Britain, EU law

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

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

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

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

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

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