Public Procurement and the EU Competition Rules

Purpose This study applies network analysis to assess geographic preferences in EU public procurement, aiming to enhance transparency, efficiency and competitiveness. Design/methodology/approach Using data from the pacemakers’ public procurement market (2009–2019), we applied assortativity metrics to evaluate the tendency of contracting authorities and companies to engage with geographically similar partners. Findings Results reveal a pronounced preference among contracting authorities for awarding contracts to domestic companies, challenging the EU’s goal of a fully competitive internal market. The analysis highlights persistent national preferences, indicating systematic domestic biases in EU procurement. Research limitations/implications While this study focuses on a specific sector, future research could extend this methodology to other industries and regions to further validate its robustness. Practical implications The proposed network analysis method offers public sector managers and policymakers a real-time tool to detect and address noncompetitive procurement behaviors, supporting transparency, fair competition and efficient resource allocation across the EU’s public procurement landscape. Originality/value This research contributes to public sector management literature by providing a framework that combines network analysis with public procurement data, enabling the detection of potential “red flags” of noncompetitive behaviors for further investigation. This method captures the evolution of these conditions, allowing policymakers to track patterns at the level of individual nodes (contracting authorities or companies). By identifying areas needing intervention and monitoring shifts in market behavior, this approach fosters transparency and enhances public sector management efficiency, aligning with EU objectives for a fair and competitive internal market.

Purpose– Private certification systems (PCS) have emerged as governance tools for sustainable development, regulating social and environmental standards through global supply chains. PCS are seen as essentially private and market-driven, but governments have engaged with them in various ways. There are also substantial differences in the institutional design of PCS with regard to the standard-setting process, ex-ante conformity assessment and ex-post verification procedures. Consequently, what determines the institutional design of PCS has attracted growing attention. This article argues that governments, through public regulation, influence the design of PCS, which in turn affects their effectiveness. The paper aims to discuss these issues.Design/methodology/approach– First, a review of academic literature, policy and legal documents presents how PCS have become institutionalized in government policy, focusing on sustainable public procurement (SPP) regulation. Second, the authors explore the link between effectiveness and the institutional design of PCS by empirically assessing the variations between institutional parameters conducive to effectiveness. Data from the Ecolabel Index database were used to assess the presence or absence of four institutional design parameters related to the rule-making and monitoring mechanisms of PCS.Findings– Public procurement regulations are important drivers influencing the institutional design of PCS. The buying power and market share of government spending is a potential tool for policy-makers not only to stimulate the adoption of PCS, but also for shaping their design and effectiveness. However, the impact of such policies is highly dependent upon the market-share of public procurement within a given sector. In addition to public procurement frameworks, other factors drive the institutional evolution of PCS.Originality/value– The article connects two themes within the study of non-state market regulation; the growing interaction of governments with PCS, and the institutional variety and development of these systems.

ЗДІЙСНЕННЯ «ЗЕЛЕНИХ» ПУБЛІЧНИХ ЗАКУПІВЕЛЬ: ПОТЕНЦІЙНІ ПЕРЕВАГИ ТА ВИКЛИКИ ДЛЯ УКРАЇНИ

This chapter briefly describes how neoliberalism achieved its current position as the dominating (if contested) ideology of the developed world and explains core neoliberal values and policy prescriptions, as well as the effect that they have had on public procurement. It explores the ideological importance of public procurement regulation from the neoliberal perspective and the features that neoliberal principles might suggest should be built into any international regime of public procurement regulation. It then describes the regulation of public procurement by the EU, which it argues maps closely onto the predicted neoliberal construct. It explains that, although the EU regime operates by extensively curtailing the purchasing discretion of public bodies in the Member States, neoliberal arguments have been advanced, and are currently being advanced, to curtail that discretion further. It analyses the extent to which such arguments have failed before the Court of Justice of the European Union to date and then explains the far-reaching additional arguments that are currently being advanced to neoliberalise the EU public procurement regime. These argue for the application of ‘competition’ (the ‘efficiency’ concept of competition) and the pursuit of ‘value for money’ as dominating norms for the system. This chapter then explains how the adoption of such norms would curtail the ability of public purchasers to pursue horizontal policies (the use of public procurement to achieve collateral policy goals such as environmental or social policy goals). It argues, however, that the suggested efficiency/value for money norms are not legally justified. This is because the concept of ‘competition’ to which EU public procurement regulation refers is not the neoliberal ‘efficiency’ concept, but a concept based upon economic freedom that is concerned with competitive equality and the structure of competition in public contracts markets. It is also because the present author accepts the argument that has been advanced by Sue Arrowsmith that, although the pursuit of ‘value for money’ is the central goal of the domestic regulation of public procurement, the legal bases on which EU public procurement legislation is founded do not permit it to mandate the pursuit of ‘value for money’ as a matter of European obligation. The chapter argues, in any event, that in the public procurement context, ‘value for money’ is a complex, multi-faceted and value-driven concept that does not equate to neoliberal notions of ‘efficiency’. Finally, it identifies an internal tension between two aspects of the neoliberal prescription in the public procurement context, the desire to constrain public purchaser discretion so as to preclude, in particular, the pursuit of horizontal policies on the one hand, and the preference to use ‘market-based’ instruments of policy rather than regulation on the other. It explains how a further neoliberal preoccupation, the constant need to improve international ‘competitiveness’, has provoked the EU to adopt (as part of its core economic strategy) the pursuit of horizontal policies in public procurement, both on a voluntary basis and as mandated by EU sectoral legislation. It concludes that by so doing, the EU has rejected a central tenet of neoliberal ideology as regards public procurement (hostility to the so-called ‘instrumental’ use of public procurement to implement horizontal policies) and that its direction of travel means that the neoliberal argument that public procurement must be regulated predominantly to achieve ‘efficiency’ has implicitly been discarded.

This chapter briefly describes how neoliberalism achieved its current position as the dominating (if contested) ideology of the developed world and explains core neoliberal values and policy prescriptions, as well as the effect that they have had on public procurement. It explores the ideological importance of public procurement regulation from the neoliberal perspective and the features that neoliberal principles might suggest should be built into any international regime of public procurement regulation. It then describes the regulation of public procurement by the EU, which it argues maps closely onto the predicted neoliberal construct. It explains that, although the EU regime operates by extensively curtailing the purchasing discretion of public bodies in the Member States, neoliberal arguments have been advanced, and are currently being advanced, to curtail that discretion further. It analyses the extent to which such arguments have failed before the Court of Justice of the European Union to date and then explains the far-reaching additional arguments that are currently being advanced to neoliberalise the EU public procurement regime. These argue for the application of ‘competition’ (the ‘efficiency’ concept of competition) and the pursuit of ‘value for money’ as dominating norms for the system. This chapter then explains how the adoption of such norms would curtail the ability of public purchasers to pursue horizontal policies (the use of public procurement to achieve collateral policy goals such as environmental or social policy goals). It argues, however, that the suggested efficiency/value for money norms are not legally justified. This is because the concept of ‘competition’ to which EU public procurement regulation refers is not the neoliberal ‘efficiency’ concept, but a concept based upon economic freedom that is concerned with competitive equality and the structure of competition in public contracts markets. It is also because the present author accepts the argument that has been advanced by Sue Arrowsmith that, although the pursuit of ‘value for money’ is the central goal of the domestic regulation of public procurement, the legal bases on which EU public procurement legislation is founded do not permit it to mandate the pursuit of ‘value for money’ as a matter of European obligation. The chapter argues, in any event, that in the public procurement context, ‘value for money’ is a complex, multi-faceted and value-driven concept that does not equate to neoliberal notions of ‘efficiency’. Finally, it identifies an internal tension between two aspects of the neoliberal prescription in the public procurement context, the desire to constrain public purchaser discretion so as to preclude, in particular, the pursuit of horizontal policies on the one hand, and the preference to use ‘market-based’ instruments of policy rather than regulation on the other. It explains how a further neoliberal preoccupation, the constant need to improve international ‘competitiveness’, has provoked the EU to adopt (as part of its core economic strategy) the pursuit of horizontal policies in public procurement, both on a voluntary basis and as mandated by EU sectoral legislation. It concludes that by so doing, the EU has rejected a central tenet of neoliberal ideology as regards public procurement (hostility to the so-called ‘instrumental’ use of public procurement to implement horizontal policies) and that its direction of travel means that the neoliberal argument that public procurement must be regulated predominantly to achieve ‘efficiency’ has implicitly been discarded.

The Reform of the EU's Public Procurement Directives: A Missed Opportunity?

This article examines relevant provisions of the public procurement legislation in Serbia that concerns competition, such as principle of ensuring competition and competitive public procurement procedures. Efficient implementation of this legislative framework is essential for enhancing competition in the public procurement market. Furthermore, the article gives a review of some measures introduced in fighting against anticompetitive practice. Finally, it analyses the role of competent institutions in Serbia in the area of public procurement and competition. Keywords: Competition; Public Procurement legislation; Public Procurement principles; Public Procurement procedures; Anticompetitive practice; Acquis communautaire.

The present Insight offers an analysis of the judgment of the Court of Justice in the Vossloh Laeis case (judgement of 24 October 2018, case c-124/17, Vossloh Laeis GmbH v Stadwerke München GmbH), which seeks answers to the extent of cooperation required from an economic operator wishing to demonstrate its reliability towards both the investigating and the contracting authorities. Taking into consideration the AG’s opinion and the CJEU findings, this Insight exposes some of the legal obstacles that follow from the interplay between EU competition and public procurement law and the CJEU attempt at harmonizing two otherwise often conflicting policy areas.

Introduction. The regulation of public procurement has always attracted legislators around the world, because the global economy with its economic, legal and political relationships is closely intertwined with the micro-economies of each state. The paper summarizes the international experience of public administration and control in the public procurement and its adaptation in Ukraine in the context of globalization processes. The purpose of the paper is the generalization of modern concepts of state regulation and control of public procurement; adaptation of foreign experience in the efficiency of public procurement in Ukraine. Results. The experience of foreign countries shows the presence of two powerful groups of system control in different countries: two-channel and single-channel system control with courts of ordinary and specialized jurisdictions. Among the key factors inherent in the foreign control system are such as multi-channel, variability, regulation and preventive. Taking into account the EU Directives on system control and legal protection in terms of effective procurement allows maneuvering between public law and civil law, which disciplines actors of public procurement. The domestic system control in the field of public procurement lacks effective regulatory and methodological documents capable of preventing at a high level any manifestations of abuse of government power (the experience of Singapore and the UK). In particular, in terms of regulating the effectiveness of planning, conducting and monitoring the work of state control bodies over public procurement. The Ukrainian system of public procurement lacks such features as impartiality in tenders, high examination of procurement performance, and civil control by society. Along with financial, quantitative, and qualitative losses, political losses are also characteristic of Ukraine in terms of the deterioration of the investment climate in the country, the weakening of the country’s economic and financial system, violation of the principles of free competition, etc. Conclusion. It seems advisable to develop preventive scenarios for «tracking» the procurement system with calculation of the probability of abuse of power, that is, the «chance» on each channel: from the announcement of the tender to its completion. All this together will work like the British or Singaporean model of strengthening the political image of the country, preventing any manifestations of corruption in this area of activity. A necessary innovation seems to be a preventive-oriented and risk-oriented approach to government regulation and control in the public procurements.

Globally, public procurement has been used as a tool to support small and medium size enterprises (SMEs) due to the important role they play in the economy. SMEs participation in every sphere of economic activities including public procurement is one of the ways the sector can promote economic development of the country. However, SMEs sometimes are usually reluctant to sell to government. The purpose of the study is to investigate the factors affecting effective participation of SMEs in public procurement market in Zambia. This study employed cross sectional descriptive design, with a quantitative approach. Data was collected was collected from a total of 186 respondents drawn from SMEs registered with PACRA and operating in Lusaka, the capital city of Zambia. Random sampling was used in selecting SMEs, and respondents included company/business owners, managers as well as supervisors. Data collected was analysed using exploratory factor analysis and regression analysis. The findings revealed that regulatory framework factors, SMEs capacities factors, public procurement tendering factors and SMEs attitude factors are significant determinants with a combined effect size of (0.675) and a coefficient of determination of 43.9%. Further, based on the Hierarchical regression model, the study finds that the largest predictors of SMEs effective participation in public procurement market are public tendering process and SMEs attitude towards public procurement. Findings of this research can potentially contribute to high participation of SMEs in the public procurement market in Zambia.

Assessing the economic impact of public investment in Malaysia: a case study on MyRapid Transit project using a dynamic computable general equilibrium model

Studies highlight that public procurement in any country acts as a barometer of public confidence in fairness and transparency of public institutions. A number of cases related to corruption in public procurement in the country have been highlighted by media on regular basis. These incidents raise questions regarding robustness of the procurement framework in vogue in the country. Though no special legislative framework dealing with public procurement exists in the country, the administrative guidelines on the subject are quite exhaustive. Procurement is not a state subject; hence law can be made by the Centre for entire country. However, no separate law governing public procurement has been enacted in India. However, public procurement in India is not bereft of its share of issues. Multiplicity of instructions, absence of procurement law and singular emphasis on upfront value of acquisition without considering life cycle cost mars public procurement in India. Further, social and environmental sustainability has also not received the attention it deserves. Studies highlight that migration of public procurement to Internet could provide us savings of up to 25% by streamlining 30% of Indian Union Budget spent on provisioning of goods / services. However, any such endeavor has 70% chances of failure. With only 13% e-procurement research focusing on public sector make matter worse. In the above backdrop, the chapter would cover: Importance of public procurement, Difference between public and corporate procurement, Overview of procurement framework of the country - covering constitutional/ legislative/ administrative provisions, generic public procurement process, various types of procurements – limited tender, open tender, single tender, issues in public procurement of the country and e-procurement initiatives by Government of India and status thereof.

The article is devoted to topical issues of formation and, as a consequence, the implementation of Ukraine’s tasks aimed at improving the development of market relations of member countries on the basis of European principles. The purpose of writing this article is to study the general theoretical foundations of the public procurement market in Ukraine on the experience of European practice, as the European integration direction of Ukraine opens new opportunities for the country to reach a qualitatively new level. With the start of operation of the Free Trade Area of Ukraine with the EU, a new stage of Europeanization of national legislation has begun, which is designed to ensure the economic integration of Ukraine with the EU by removing obstacles to mutual trade. The authors note that in order to become a full member of the European Union, Ukraine is creating a practice of eradicating corruption in the public sector and improving legislation in the field of public bidding. The article outlines the legal nature of public procurement in Ukraine, defines the place of this institution in the European integration direction of the state. The paper examines the legal regulation of relations in the field of public procurement in the EU, aimed at ensuring the functioning of the internal market based on the principles of non-discrimination, competition and transparency, which also affects the order and conditions of «horizontal» goals, establishing negative obligations not to violate the basic principles and rules of procurement. The publication concludes that the access of companies from EU member states to the public procurement market of Ukraine will increase competition. This will help to spend budget funds more efficiently and encourage domestic companies to be more competitive.

Introduction. The effectiveness of public administration largely depends on the transparency and efficiency of public procurement, which ensures the implementation of state programs and meets the needs of government bodies and municipal institutions. Properly organized procurement contributes to the rational use of budget funds, reduces corruption risks, and strengthens citizens’ trust in the state. Therefore, the need to examine the current state of the public procurement system, identify its strengths and weaknesses, and develop practical recommendations for improving procedures determines the relevance of the topic and its importance for enhancing the efficient use of budget funds and fostering a competitive environment. The purpose of the paper is to identify and systematize modern procedures and electronic mechanisms of public procurement in Ukraine, evaluate their efficiency and transparency, and develop practical recommendations to enhance the efficiency of public spending and promote competitiveness in the public procurement market. Results. The analysis of Ukraine’s public procurement system revealed significant improvements in transparency, competitiveness, and efficiency following the implementation of electronic mechanisms, particularly the Prozorro system and Prozorro Market platform. The study classified procurement procedures into open tenders, competitive dialogue, negotiated procedures, simplified procurement, and defense procurement, highlighting the specific purposes, advantages, and limitations of each. Statistical data from Prozorro indicate a steady increase in the number and volume of procurement transactions conducted through electronic platforms, reflecting greater openness and control over the use of budgetary funds. Open tenders ensure maximum competition and cost-effectiveness, while competitive dialogue and negotiated procedures provide flexibility for complex procurements requiring detailed specifications and stakeholder engagement. Simplified and defense procurement procedures demonstrated high efficiency in urgent or specialized cases, allowing rapid response while maintaining legal compliance. Legislative reforms and government strategies between 2022 and 2024 are also analyzed. These reforms introduced measures aimed at harmonizing Ukrainian procurement regulations with EU directives. As a result, procurement efficiency has increased, corruption risks have been minimized, and trust in public institutions has been strengthened. Overall, the results confirm that the combination of legal modernization, procedural diversification, and digitalization of procurement processes contributes to a more transparent, competitive, and effective public procurement system in Ukraine. Conclusion. The effective functioning of Ukraine’s public procurement system is a key factor in ensuring transparency, competitiveness, and efficiency in the use of state funds. The analysis of legal, organizational, and electronic mechanisms, particularly the Prozorro system and Prozorro Market platform, confirms that digitalization and open procedures significantly improve control over budget expenditures, reduce corruption risks, and foster competition in the procurement market. The classification of procurement procedures open tenders, competitive dialogue, negotiated procedures, simplified procurement, and defense procurement provides a clear framework for understanding the diversity and specificity of modern public procurement in Ukraine. Legislative changes and government strategies implemented from 2022 to 2024 show the state’s commitment to harmonizing national procurement regulations with EU standards and enhancing the professional competence of participants.

In its 2011 Proposal for a new Directive on public procurement, the European Commission included the consolidation of the general principles of procurement. For the first time, in addition to the ‘classic’ triad of equality, non-discrimination and transparency, it expressly included the principle of competition amongst such general principles. In the 2011 Proposal, the Commission referred to an objective concept of restriction of competition, which would be proscribed by the future Directive. Successive negotiations allowed the Council and the European Parliament to alter the drafting of this provision. The final text in Article 18(1) of the 2014 Directive thus contains a different version of the principle of competition. In this final version, both a subjective element and a presumption of distortion of competition are included, which could diminish the effectiveness of the principle. Moreover, both deviations from the initial proposal by the Commission are difficult to reconcile with the existing case law of the Court of Justice of the European Union (CJEU).This paper traces the legislative evolution of the principle of competition in public procurement and looks for explanations for the alteration of its initial drafting. Looking to the future, it considers whether the CJEU will stand by the new drafting and limit the principle as desired by the Council and the Parliament or, conversely, it will promote a functional approach along the lines of the objective conception initially proposed by the Commission. This paper proposes that the second option is preferable and, in any case, more likely in view of the CJEU's treatment of similar issues in other areas of EU public procurement law (such as the classical anti-circumvention provisions), as well as EU economic law more generally (and, remarkably, competition law and the granting of State aid).