Procurement Regulations Research Articles

Об отдельных аспектах предупреждения неисполнения или ненадлежащего исполнения обязательств поставщиками по государственным контрактам на поставки продовольствия для нужд уголовноисполнительной системы Российской Федерации

The article deals with the problem of fulfilling the terms of state contracts for the supply of food for the needs of the penal system of the Russian Federation, associated with the receipt of low-quality products by customers. The subject of the study was the materials of judicial practice, accompanying documents of territorial bodies of the FPS of Russia, Russian civil legislation, scientific literature on the topic under study. The purpose of the work is to reveal and analyze the gaps in the legal regulation of food procurement for the needs of the penal system of the Russian Federation based on the materials of judicial practice. The practical significance of the work lies in identifying the difficulties in planning the public procurement to ensure the activities of the penal system in the event of non-performance or improper performance of obligations by suppliers. The methodological basis of the work was formed by the structural and logical method, methods of analysis, synthesis, comparison, induction. As a result of the work carried out, a comparative table of the terms of settlement of civil disputes between customers and suppliers of low-quality food products is presented, the problems affecting the proper execution of state contracts in the field of food procurement are highlighted, specific recommendations of the terms that can be included in the state contract with the aim of preventing unscrupulous food suppliers from participating in procurement are formulated. Key words: penal system, purchase of goods (works, services), contract system, provision for state needs, unscrupulous supplier, goods of inadequate quality.

The UK’s Green Paper on Post-Brexit Public Procurement Reform:

In December 2020, seeking to start cashing in on its desired ‘Brexit dividends’, the UK Government published the Green Paper ‘Transforming Public Procurement’. The Green Paper sets out a blueprint for the reform of UK public procurement law that aims to depart from the regulatory baseline of EU law and deliver a much-touted ‘bonfire of procurement red tape’. The Green Paper seeks ‘to speed up and simplify [UK] procurement processes, place value for money at their heart, and unleash opportunities for small businesses, charities and social enterprises to innovate in public service delivery’. The Green Paper seeks to do so by creating ‘a progressive, modern regime which can adapt to the fastmoving environment in which business operates’ underpinned by ‘a culture of continuous improvement to support more resilient, diverse and innovative supply chains.’ I argue that the Green Paper has very limited transformative potential and that its proposals merely represent an ‘EU law +’ approach to the regulation of public procurement that would only result in an overcomplicated regulatory infrastructure, additional administrative burdens for both public buyers and economic operators, and tensions and contradictions in the oversight model. I conclude that a substantial rethink is needed if the Green Paper’s goals are to be achieved.

Державне регулювання публічних закупівель в Україні в умовах реформ та інтеграційних процесів

The article is concerned with topical issues of the State regulation of public procurement in Ukraine in the context of reforms and integration processes. The conceptual principles of regulation of the public procurement system have been formulated, taking into account the requirements and challenges of modern processes of reforms of the national economy and the implementation of the European integration vector. The public procurement system is considered as a new institutional unit in the national economy – the market for goods and services to the State-owned institutions and organizations with the involvement of budgetary funds. The significance of the public procurement system for the country’s economy as an environment for financing and implementing entrepreneurial initiatives aimed at creating high-quality goods and services, which is characterized by volumes equal to 15% of GDP, is substantiated. The article is aimed at defining the theoretical-conceptual and applied principles of the State regulation of the public procurement system in Ukraine in the context of efficient implementation of reform goals and taking into account the impact and challenges from the active participation of the national economy in the international distribution of labor in the course of integration processes with the EU countries. The article defines the key directions of the State policy on the regulation of the public procurement system, which include: stimulating the economic development of the entrepreneurial sector and overall economic growth on the basis of sustainability and balance; support for the production of domestic goods and services with high added value; stimulation of production of goods and services using local resources; stimulating the creation by domestic producers of both goods and services of cooperation associations in order to use the opportunities for the distribution of labor to create more competitive products; supporting the formation of an economic basis for the development of territorial and economic entities in the regions of Ukraine. As for the above defined directions of the State regulation of the public procurement system in Ukraine, appropriate measures have been proposed, the implementation of which is expected to contribute to the strengthening of the national economy and does not contradict the provisions of ratified international agreements.

Public procurement and corruption during Covid-19: self-monitoring and whistleblowing incentives after Srebrena Malina

Crises and emergencies tend to increase opportunities for corruption in public procurement. This article shows how the Covid-19 pandemic has given rise to new corruption opportunities and how regulators are trying to combat these, using the example of the case of the Bosnian raspberry firm Srebrena Malina. The literature review concludes that prevention mechanisms focus on the legal and regulatory aspects without considering firms’ perspectives. In contrast, an approach based on summary content analysis may help firms develop potential self-monitoring solutions that they can apply to ensure compliance with anti-corruption regulations and avoid sanctions. Explorative expert interviews with ten international compliance experts are also conducted. The findings illustrate that whistleblowing incentives could foster compliance with existing regulations and policies in public procurement. This article advocates a more consequential implementation of the current anti-corruption and public procurement regulations alongside self-monitoring measures in the form of whistleblowing incentives.

An overview of and a proposed reform for the organ procurement: System of the United States

Abstract. Over 107,000 Americans are currently awaiting a lifesaving organ transplant. The vast shortage of organs for transplant in the United States is commonly known, but few are aware that the capacity exists for an additional 28,000 organs to be procured each year. These viable organs are not procured because of the limitations of the market and governance structure of the organizations primarily responsible for organ procurement across the United States, Organ Procurement Organizations (OPOs). In this paper, the author provides an overview of the current organ procurement system and its flaws, debates the newly revised organ procurement regulations to come into effect in 2022, and offers a sweeping, market-based reform proposal for the organ procurement system. Keywords. Organ procurement, Organ procurement organizations (OPOs). JEL. I10, I11, I18 .

Реформа контрактной системы в сфере закупок: иллюзия решений и реальность проблем

The article analyzes the main development of the current stage of the reform of the public procurement system in the Russian Federation, which began in 2013. It is shown that since the beginning of the reform, the Russian procurement regulation system has made significant progress in terms of standardization and simplification of contractual relations, organization of processes and facilities. The experience of practical implementation of the contracting system is considered, the problems that have developed in the field of public procurement to date are identified. It is shown that the problems of organizing public procurement are not limited to corruption and the desire to give large contracts to “their” suppliers. An unresolved problem remains the need to maintain a balance of interests between ensuring procurement efficiency for the customer and providing contractors with competitive access to the competition for contracts. Unresolved this dilemma often turns budget savings into an end in itself, which reduces the effectiveness of the Russian contract system as a whole. The price and quality of products are different scales, which in modern reality are increasingly leaning towards economy. Hard-to-reach and sparsely populated municipalities become especially vulnerable in this struggle. It is shown in the work that the named problems cannot be solved by mere «easing» or «toughening» of the provisions of the law. It is important, while maintaining the foundations of the current system, to focus on finding options that stimulate efficient spending of funds or, at least, prevent the growth of inefficiency in procurement. The conclusion is made about the need for a systematic evolution of the contract system, taking into account regional aspects. To do this, it is advisable to transfer the emphasis in the organization of public procurement from the regulation of the procurement procedures themselves to the formation of incentive (restraint) mechanisms for specific officials involved in the organization of procurement.

La contratación pública en tiempos de Pandemia del Covid-19 en España

El presente trabajo de investigación pone el foco sobre la contratación durante la pandemia generada por el COVID19 y los instrumentos excepcionales que se han ido aprobando durante el periodo comprendido entre marzo y agosto de 2020 por parte de las instituciones públicas españolas (Gobierno-Administración General del Estado, Comunidades Autónomas y Ciudades Autónomas). Para ello, se ha partido de un enfoque neo-institucionalista que tiene en cuenta los efectos de los cambios normativos a través del isomorfismo y como estos afectan en la toma de decisiones. La metodología utilizada se ha basado en el análisis de distintos documentos generados por la Oficina Independiente de Regulación y Supervisión de la Contratación (OIReScon). Entre los resultados más importantes, se puede destacar que casi la totalidad de las instituciones estudiadas han aprovechado las flexibilizaciones de la legislación en materia de contratación para generar márgenes de ambigüedad que les han permitido saltarse temporalmente las obligaciones de información y publicación y que los cambios normativos estatales tienen una gran influencia tanto sobre la legislación aprobada como los procedimientos administrativos.

PUBLIC INTEREST IN PUBLIC PROCUREMENT

The basis of legal relations in public procurement are private and public interests. The purpose of the study is a substantive assessment of the authors hypothesis that the purpose of legal regulation and financial support of public procurement is to satisfy the public interest expressed in the form of a public need for goods, works, and services. The methodological basis of the study rests on historical and systematic approach, analysis, synthesis and comparative-legal methods. The results of the analysis of normative legal acts regulating public procurement, doctrinal literature and practice showed that public interest denounced in the form of public need is realized through public procurement. Public and private interests can be realized exclusively jointly since these needs cannot objectively be met individually. In general, ensuring public as well as private interests boils down to defining and legally securing the rights and obligations of the customer and their officials, which safeguards them in the process of meeting public needs through public procurement. The study revealed the dependence of the essence of public interest on the political regime, which determines the ratio of public and private interests. Public interest in public procurement is suggested to understand as the value-significant selective position of an official or another person authorized by the government, which is expressed in the form of the public need for the necessary benefit; gaining such benefit involves both legal regulation and financial security. The purpose of legal regulation of public procurement is to satisfy public interest. These concepts should be legally enshrined in Law No. 44-FZ.

ПУБЛІЧНІ ЗАКУПІВЛІ ЯК ІНСТРУМЕНТ ДЕРЖАВНОЇ ПОЛІТИКИ СПРЯМОВАНОЇ НА ЗАПОБІГАННЯ ТА ЛІКВІДАЦІЮ НАДЗВИЧАЙНИХ СИТУАЦІЙ, В ТОМУ ЧИСЛІ ЕПІДЕМІЙ, НА ПРИКЛАДІ КОРОНАВІРУСНОЇ ХВОРОБИ (COVID-19)

The article aims to analyze the public procurement implementation within the ordinary conditions as well as the conditions of the prevention and liquidation of emergencies (in a special situation), including epidemics, based on the case study of coronavirus disease (COVID-19). The paper offers suggestions on solving problems in public procurement implementation under conditions of prevention and liquidation of emergencies. To achieve the aforementioned goal, both theoretical (analysis, synthesis, generalization) and empirical (observation and other) methods were used. Additionally, the comparative legal method was used for the analysis of international practices (the World Trade Organization, the European Union) and the experience of the individual EU member states on the implementation of public procurement in the context of tackling the coronavirus disease COVID-19. The article provides an in-depth analysis of the legislation of Ukraine and other countries to formulate an author’s vision of ways how to improve the legal regulation of public procurement aimed at preventing or eliminating emergency situations, in particular epidemics. The authors offer the following: to expand the opportunity of using the negotiated procedure for the procurement of supplies, works or services that are necessary not only to eliminate emergencies, but also to prevent them; to empower the Cabinet of Ministers of Ukraine and the National Security and Defense Council of Ukraine to introduce the negotiated procedure for the procurement of supplies, works and services in case of special conditions; to reduce the time for the negotiated procedure implementation (up to 1 day) when emergency or pressing need purchase is necessary (for example, to prevent an epidemic); to grant the right to the Cabinet of Ministers of Ukraine to establish a list of supplies, works or services for which one hundred percent prepayment may be provided in procurement contracts.

The Implementation of E-Procurement in Indonesia: Benefits, Risks, and Problems

E-procurement was a new model of muamalah applied in the procurement in several countries in the world. Indonesia was implemented from 2010, but the implementation was not maximal. Proven there were still doubts to use this modern muamalah model. So, this research aimed to find information on how e-procurement was implemented in Indonesia. Data were obtained from a questionnaire containing a list of structured and open questions provided to government agency procurement officers, provider staff, and secondary data from e-procurement research in several local governments in Indonesia. The results showed that the implementation of e-procurement reduced fraud. Benefit (maslahah) e-procurement was proven to be more than the risk (mafsadat). There were still doubts about sharia in the implementation of procurement due to a lack of information. The implementation of e-procurement still needs the attention to strengthening the quality of procurement officials, regulations, supervision, and internet support so that e-procurement success.

Procurement planning as a strategic tool for public procurement effectiveness: Experience from selected public procuring entities in Dodoma city, Tanzania

Purpose The significance of the public procurement function is on the survival and development of procuring entities and that of a nation at large. This study aims to focus on examining the influence of procurement planning on the effectiveness of public procurement, experience from selected public procuring entities in Dodoma city, Tanzania. Design/methodology/approach A cross-sectional design was adopted from which data were collected from 146 respondents who were purposively chosen from several public procuring entities located at Dodoma city in the United Republic of Tanzania by using a survey structured questionnaire and analysed through a binary logistic regression model. Findings Findings revealed that procurement planning as a strategic function significantly influences the effectiveness of public procurement. The binary logistic regression model included the implementation of prepared procurement plans (p = 0.039), the involvement of users as stakeholders and important institutional actors in public procurement (p = 0.033), compliance to procurement laws and regulations when planning (p = 0.016) and adequacy of budget (p = 0.042) as predictors of procurement planning were tested to be significantly related to the effectiveness of public procurement. It was concluded that public procuring entities can achieve public procurement effectiveness through procurement planning. Social implications The implications and policy recommendations of the findings of this study would be useful to procurement practitioners mostly in public procuring entities. Originality/value This study contributes to adding knowledge to the existing body of knowledge on procurement planning as an imperative activity in public procurement in Tanzania.

Contratos públicos de emergencia y crisis del covid-19: Inmediatez contra seguridad jurídica

La ley española de contratos incluye una regulación de la contratación pública en casos de emergencia que elimina controles para facilitar la inmediatez de la prestación, y que puede ser complementada por las normas específicas dictadas para situaciones excepcionales, como ha ocurrido con la crisis del covid-19, que adapta la regulación de emergencia a las necesidades de provisión de bienes y servicios sobrevenidas con la pandemia. Se mantienen en cualquier caso diversos controles imprescindibles, ya sean previos, como la justificación causal, porque la Administración no es libre tampoco cuando contrata; o posteriores, como la publicidad de la adjudicación y los controles judiciales.

Breaching the Interpretative Wall between Private and Public Commercial Contracts

Abstract From a purely contractual perspective, this article reflects upon labour standard clauses with the objective to ensure that the fundamental ILO conventions and the International Bill of Human Rights are complied with throughout global value chains in respectively business-to-business (private), and public commercial contracts. The clauses are in both settings based widely on the same standards; however scholarship on the two types of contracts has been quite separate. The article reviews some Scandinavian case law concerning labour standard clauses and procurement regulation. It finds that contractual argumentation supported the outcome in these cases, isolates this argumentation, and reflects on whether contractual perspectives on the public contract might inspire current research on private contracts. It finally argues that an actual fusion is already taking place, wherefore contract lawyers may play an important role as to whether ‘the interpretative wall’ should be breached, or whether this is not feasible due to the distinctive characteristics of each contract.

Hurting Pockets: A Case Study of Peru’s Legal Obligations in Transparency and Justification of Public Expenditure in State Advertising

Abstract Public procurement of advertising is a matter of constant debate in many countries around the world. At one point in Peru, during 2018, hiring private media outlets to broadcast or publish state advertising was prohibited by law. Taking into account the ensuing controversy in Peru, this study assesses state advertising investment in the South American country, and examines whether certain public entities (government ministries) have complied with the obligations of justification, transparency and prohibitions provided for by the law that regulates state advertising. The findings of this study point to a worrying level of noncompliance. We display these results in a systematized manner and complement them with a qualitative analysis of the justification given by public entities for spending on advertising, as well as the accountability they provide (or should provide) ex-post. This baseline study is essential to identify possible failings in the regulation of public procurement of advertising, as well as the bad practices of the state when budgeting for public expenditure on advertising campaigns. While the case study is based on the Peruvian experience, the findings can be used in many other jurisdictions as a roadmap for avoiding certain shortcomings in the regulation of state advertising.

Resilience in Times of Pandemic: Is the Public Procurement Legal Framework Fit for Purpose?

"This article aims to analyze whether the legislation enacted in the field of public procurement in Romania, based on the 2014 EU Directives, is effective in fostering resilience of the public institutions and indirectly of communities, and to provide a fit-for-purpose mechanism for dealing with the pandemic generated by the new type of coronavirus, Sars-CoV-2. The article discusses the necessity of new rules meant to promote swiftly purchases during the state of emergency. Undoubtedly, the pandemic generated crisis has raised some serious challenges to which public procurement regulations is in principle properly equipped to deal with: urgent need for supplies, works and services, but also unemployment or protection of other disadvantaged categories of people. We argue that resorting to specific tools (negotiated procedures, framework-agreements, centralized procurement, sustainable and social procurement, reserved contracts) when carrying out swift interventions generated by the pandemic would have been more suitable during this health crisis or even for preventing the effects of this pandemic. Instead, the attention of the legislator has been concentrated only on (unnecessarily) exempting the swift purchases of medical equipment from the rule of law. "

Procurement in the Time of COVID-19

This piece reflects on the role of public procurement regulation in the face of a situation generating an extremely urgent need for the public sector to buy additional supplies and equipment, such as the COVID-19 pandemic. Counterintuitively, at a time of heightened public expenditure, public procurement rules are ‘deactivated’. That does not mean that unusual procurement mechanism are not ‘activated’, though, as the example of the EU’s Joint Procurement Agreement shows. It also does not mean that ‘reactivating’ public procurement regulation will not present challenges, some of which deserve careful consideration.

Government procurement clause in EVFTA and implications for Vietnam

EVFTA is one of the newest endeavors of Vietnam regarding the international integration process, which is anticipated to be beneficial for Vietnam in many aspects across industries. The government procurement sector does not stay out of this influence. This article mainly aims to explore the government procurement sector of Vietnam, the performance of the government regarding managing this market and how it will be affected and reformed by EVFTA. More importantly, by examining the significant factors that may have an impact on the EVFTA's implementation from Vietnam's perspective, the article attempts to assess the compatibility of the current situation of Vietnam with the fundamental conditions to conduct public procurement regulations of EVFTA efficiently. The article collects, summarizes, and analyzes the secondary data from trustworthy sources like the Vietnam General Statistics Office, the ranking table of the International Telecommunication Union, the official annual report of state departments of Vietnam, and other documents like journal articles, research papers,etc. Another methodology employed in the research is the in-depth interviews with professional experts who have been working for several years in the international integration field. the article discovers that Vietnam is capable of implementing EVFTA's chapter 9 efficiently but with more careful preparation. The article also points out that despite of having a strong mindset of globalization, Vietnam's public expenditures are still loosely covered by laws, which leads to irrational allocation on national budget. A number of implications are suggested to localize the EVFTA's regulations and recommendations are made to apply modern technologies to improve the procurement system, especially on the capacity of government on managing the government procurement sector. The authors hope to help state authorities to have a broader look and improve the sector as well as embrace the opportunities from EVFTA regarding government procurement sector.

COVID-19, Public Procurement Regimes and Trade Policy

This paper analyzes a prominent dimension of the initial policy response to the COVID-19 pandemic observed in many countries: the imposition of export restrictions and actions to facilitate imports. Using weekly data on the use of trade policy instruments during the first seven months of the COVID-19 pandemic (January-July, 2020) we assess the relationship between the use of trade policy instruments and attributes of pre-crisis public procurement regulation. Controlling for country size, government effectiveness and economic factors, we find that use of export restrictions targeting medical products is strongly positively correlated with the total number of steps and average time required to complete procurement processes in the pre-crisis period. Membership of trade agreements encompassing public procurement disciplines is associated with actions to facilitate trade in medical products. These findings suggest future empirical assessments of the drivers of trade policy during the pandemic should consider public procurement systems.

Procurement policy and SME participation in public purchasing

This study investigates the relationship between regulatory policies governing public procurement and participation by small and medium enterprises (SMEs), using a large dataset on European procurement. We find that better quality procurement regulation is associated with greater SME participation and higher probability that SMEs win contracts. Dividing contracts into smaller lots, a key feature of 2014 EU procurement regulation reform, bolsters participation by SMEs but only increases the probability of SMEs winning contracts for small value lots (€25,000 or less). Our results suggest governments seeking to enhance participation by SMEs in public procurement without explicitly favoring SMEs can do so by improving the overall quality of procurement processes.

The Features of the Legal Regulation of Procurement for the State and Municipal Needs During the Coronavirus Pandemic

Introduction: currently, the normal development of the political, economic and legal spheres is significantly affected by the outbreak of the COVID-19 declared a pandemic by the World Health Organization. The epidemic attracted the attention of health professionals and the population around the world, as previously the coronavirus infections in humans did not go beyond the acceptable level of a biological risk. The current events directly related to the pandemic affect all areas of our habitual way of life, its legal component, including the sphere of procurement for the state and municipal needs. Objective: to study the features, positive and negative aspects of the legal regulation of the contract procurement system for the state and municipal needs in the conditions of introduction of innovative management technologies during the coronovirus pandemic. Methods: the methods of systematization, analysis, and comparative law are used. Results: the author analyzed the innovations in procurement for the state and municipal needs in the context of the pandemic; the specifics and features of the development of the system of state and municipal procurement in the paradigm of industry 4.0 during the pandemic are determined; the shortcomings of the current civil law mechanism for protecting the rights of legal entities in the field of procurement for state and municipal needs based on industry 4.0 technologies during the pandemic are identified; identified the possibility of abuse due to the temporary relaxation of the legislation on public procurement; identified the possibility of the legal qualification of the coronavirus as force majeure, the circumstance that makes it impossible to fulfill the obligations; proved that the introduction of the ability to purchase from a single supplier can negatively affect the activities of small and medium-sized enterprises. Conclusions: the innovations in the legal regulation of procurement for the state and municipal needs amid the pandemic in the context of the fourth industrial revolution contain a number of positive aspects: the launch of many digital services; the simplification of the procedure for conducting purchases in the event of force majeure and emergencies; easing the requirements for small and medium-sized businesses; expanding the opportunities to change the term and price of the contract; the changes in the procedure for applying penalties, etc. However, we should not forget about the possible negative consequences of easing the rules of public procurement: the probability of reducing the efficiency and effectiveness of procurement; the appearance of corruption and its manifestations; the abuse at every stage of public procurement; the difficulties in justifying the real impact of the pandemic on the execution of the state order; the ability to purchase from a single supplier can negatively affect the activities of small and medium-sized enterprises; the risk of the violation of antitrust laws due to constantly changing regulations and other consequences.