Public Procurement Directives Research Articles

Jednolity europejski dokument zamówienia – aspekty prawne

The European Single Procurement Document is a self-declaration of a business’s financial status, abilities, and suitability for public procurement procedures. It is used as prima facie evidence of the fulfilment of the conditions required in public procurement procedures across the European Union. According to the new public procurement directives, the ESPD shall be provided exclusively in electronic form. However, both electronic and paper versions of the ESPD may exist until 18 April 2018. It has led to a situation in which companies can prove that they fulfil the exclusion and selection criteria of a tender without a requirement to submit various documents at the beginning of a tender.

Public procurement culture after accession to the EU – The case of a Central European transition country

Understanding and implementing European public procurement directives does not mean that countries that joined the European Union at a later stage were immediately able to adjust to their logic. It is not necessarily a problem of skills; cumbersome and slow learning is due much more to cultural differences, and lack of practice and knowledge of the interpretation of law by the European Court of Justice. This article sums up the results of four surveys presenting the changes in Hungary’s public procurement culture over 10 years, which has a useful message for other more recent Member States.

Valuing sustainable change in the built environment

PurposeThe paper aims to assess the strengths and weaknesses of sustainable return on investment (SuROI) to determine it suitability as a means through which social value can be predicted in line with public procurement directives and the Social Value Act, whilst at the same time as fitting the developer’s business model and CSR commitments.Design/methodology/approachUsing a multi-case design, findings from a comprehensive evaluation of three major housing-led mixed-use regeneration developments are presented. The three case study locations were selected on the basis of the developer’s strong commitment to place-making and social sustainability. Together with a strong strategic desire to reposition their organisation away from the traditional business as usual profit-led model.FindingsWhilst the social return on investment methodology is applicable to the charity sector, its use in the built environment is highly questionable. When applying the model to the mixed-use housing projects, the authors identified a number of technical limitations to the model, inter alia a lack of suitable proxies and especially proxies relating to the built environment for the valuation of identified outcomes; the use of monetisation as a evaluating measure which did not support some of the more abstract or softer benefits identified; problems collecting, identifying and evaluating data to inform the model given the complexity and scale of the project; and significant time and expense associated with the valuation and finally the inability to benchmark the report on completion. These findings have implications for the social housing providers and local authorities looking to use SuROI to evaluate potential built environment projects.Originality/valueThe paper offers unique insights into the viability of using existing social value measurement methodologies. The paper identifies the significant limitations associated with the SuROI methodology.

The Impact of the Case-Law of the Court of Justice of the European Union in the Field of Public Procurement

AbstractThe article examines the case-law of the Court of Justice of the European Union on Public Procurement issues. On the one hand, the paper analyzes the control exercised by the Court in this area while the Member States implement the Public Procurement Directives by transposing them into national law or by administrative practice which is subject to judicial review. The Court's control is executed through the interpretation of provisions and through actions taken by the European Commission against Member States for breaches of EU law in the area of Public Procurement. On the other hand, in the references for a preliminary ruling, the Court of Justice of the EU defines some basic terms, such as 'public procurement' (at Union level), a contractor, a minimum threshold, etc., and affirms the key principles that must be respected for the fulfilment of Public Procurement objectives such as transparency, competition and equal treatment. The article aims to show the contribution of the case-law of the Court of Justice of the European Union to the development and uniform application of Public Procurement legislation in the Member States and facilitates the functioning of the Internal market

Latest jurisprudence of the Court of Justice of the EU in the field of Public Procurement Law

The article examines the notable judgments of the Court of Justice of the European Union in the field of public procurement law delivered in 2016 and 2017. The judgments discussed address issues such as the concept of ‘public contract’, the scope of application of the Public Procurement Directives, exclusion, economic and financial standing, review procedures and non-contractual liability of the European Union.

Inside the Municipal Lobby: Explaining Local Government Influence on the New EU Public Procurement Directives

Despite a challenging context, local authorities succeeded in influencing one of the most fiercely debated issues of the new EU Public Procurement Directives (2014): the (conditional) exemption of public-public cooperation (PPC). Using theory-building process-tracing this paper analyses the PPC-case to design a parsimonious causal model of successful municipal lobbying under challenging circumstances. The model represents a composed mechanism that triggered municipal lobby influence through the interplay of three basic parts: a strategic lobby campaign deployed by a strong protagonist, an external opportunity structure underpinning and strengthening the latter and a significantly receptive EU decision-making arena. Furthermore, the case suggests that in challenging lobby cases local government can profit from its distinctive character as an electorally legitimised and politically connected interest group to promote its interests in the EU polity.

Human Rights in Public Procurement

The increased focus on sustainability in public procurement is reflected in the revised EU public procurement directives from 2014. However, even though the EU lawmakers have underlined the importance of enabling smart, inclusive and sustainable growth, and aspired to provide a tool box for contract authorities who would like to do so, the lack of clear guidance may lead to the scope of action not being used. It may even impede contracting authorities from taking human rights issues and sustainable development into account when procuring goods, services and works. This article analyses some of the developments and innovations in the public procurement Directive 2014/24/EU, hereunder technical specifications, life-cycle costing and exclusion, with the aim of commenting on obstacles and opportunities with regards to promoting human rights through the public procurement process. Keywords: Public procurement; Human rights; Life-cycle cost; Technical specifications; Fair trade

Procurement and Concession Law in Belgium

Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts and public procurement Directives 2014/24 and 2014/25 were transposed into the Belgian legal system by the Public Procurement Act of 17 June 2016 and the Concession Act of 17 June 2016. The legislation entered into force on 30 June 2017. The main features of the public procurement and concessions regulations are in line with the European Directives. Belgian public procurement and concession rules are not a slavishly copy of the directives however. This contribution discusses some particularities and choices made by the Belgian legislator. A number of provisions are criticized, especially as doubts arise as to their compatibility with European Law. Keywords: Public Procurement; Concessions; Legislation; Implementation; Particularities.

Lithuania ∙ New Regulation after Transferring the Public Procurement Directives

Lithuania ∙ New Regulation after Transferring the Public Procurement Directives

Transposition of the EU Public Procurement Directives 2014 in Austria

The EU public procurement directives 2014 further advance the European Commission’s ambitions to regulate most public procurement at the EU-wide level. The Directives already set out a fairly concrete legal framework for national parliaments regarding public procurement procedures for work, supply and service contracts above the EU-thresholds. The Austrian parliament decided to implement these directives mostly word for word, but at the same time tried to preserve most of the historical developments to the public procurement law that were specific to Austria. In addition to that, the Austrian legislature responded to recent ECJ case law that was established after the EU Directives were published. The new public procurement code creates legal certainty for both contracting authorities and contractors in several different aspects. However, the interpretation of some provisions will be subject to case law, especially regarding contractual cooperation between contracting authorities. Concerning contracts not fully regulated by the Directives – such as concessions as well as social and other specific services – the Austrian legislature opted not to regulate them further and leave some flexibility to the contracting authorities.

Self-cleaning in public procurement: operational potentiality and regulation in the European Union

Public procurement is one of the causes for corruption. In addition to the punitive aspect, it is necessary to study other approaches that address the preventive aspect. These would be the compliance and self-cleaning techniques, originating in English-speaking countries. The European Union has just regulated self-cleaning in its public procurement Directive from 2014, establishing a series of characteristics to be developed by the Member States.

Effectiveness of public procurement in stimulating innovation outputs: EU firms

Over the last decade a number of public procurement directives at national and European Union level have sought to enhance the effectiveness of public procurement in stimulating firm-level innovation. Yet there is an absence of empirical evidence relating to the impact of public procurement on innovation. In this paper, we address this gap by evaluating the effectiveness of public procurement on a range of innovation output indicators. Using the Community Innovation Survey 2012 dataset, we empirically estimate direct and indirect treatment effects of public procurement in different country groups (Innovation Leaders, Innovation Followers and Moderate Innovators). We find no systemic direct effects on innovation outputs across country groups. However, for indirect effects, our results indicate strong universal effects on non-technological innovations. Our empirical evidence provides some policy implications, in particular relating to “innovation-friendly” public procurement.

Recent developments in the case law of the Court of Justice in the field of public procurement

This paper provides a concise presentation of judgments of the Court of Justice in the field of public procurement, handed down between March 2016 and March 2017, which add interesting new elements to the Court’s case law. It focuses on developments concerning the scope of application of the public procurement directives, the qualitative selection of tenderers, the award of the public contract and the judicial protection awarded to tenderers.

Legal Framework for the Procurement of Public-Private Partnerships An Australian Perspective in the European Union Context

Based on an assumption that in its current shape the EU public procurement framework is a highly regulated and rigid system, in which delivery of successful PPP contracts may be hindered, in this paper it will be considered, whether there could be a different, more beneficial way in which to award PPP contracts. The question is whether an exclusion of the PPP award contract from the Public Sector Directive could be an adequate solution. It is worth considering, whether such a change would provide the flexibility needed and whether, at the same time, it could lead to a lack of legal certainty and hinder the development of EU integration.In order to answer the posed questions the author will apply a general systemic approach. The characteristics of this approach is to introduce and compare – at an overall level – the highly regulated European procurement system to another system which has an absolutely different approach towards procurement in order to investigate, whether an exclusion of PPP contracts from public procurement directives in the EU could be beneficial.

Providing Social Enterprises with Better Access to Public Procurement: The Development of Supportive Legal Frameworks

This article discusses the issue of social enterprises gaining access to public procurement processes and contracts at the EU and national level. It primarily examines the opportunities for social enterprises to access public procurement contracts provided for in the Public Procurement Directive 2014/24/EU (Public Procurement Directive). It also investigates measures introduced by the Greek government to provide social enterprises with access to public service contracts at a national level through tailor-made law, namely the Social Economy and Social Entrepreneurship Law of 2011 and its amendment in 2016 (Social Entrepreneurship Law of 2011 and amendments).

Sustainability Assessment through Green BIM for Environmental, Social and Economic Efficiency

BIM is representing a shift in the traditional process of building delivery. Its adoption in US reached 71% in 2012 rising from 17% in 2007; moreover, Europe is going to adopt BIM for public contracting as promoted by the European Union Public Procurement Directive. Meanwhile, BIM is widely diffused in UK and Northern Europe, as it includes a more accurate documentation, less rework and shorter project timelines. The use of BIM to provide data for energy performance evaluation and sustainability assessment is defined Green BIM and pioneering design organizations are adopting this approach to enable integrated design, construction and maintenance towards Net Zero Energy buildings. Green BIM includes Building Energy Modelling dealing with project energy performance to identify options optimising building energy efficiency during the life cycle. By allowing revisions during the design phase, project teams can ensure that customers’ green ambitions beyond regulation compliance can be realized, together with technical and economic requirements. Thus, BIM can provide information to support the calculation of a number of credit points to define goal levels of sustainability related to rating systems. The aim of the paper is to investigate the opportunity to include the “green dimension” in BIM considering the more diffused rating systems.

Is Joint Cross-Border Public Procurement Legally Feasible or Simply Commercially Tolerated? A Critical Assessment of the BBG-SKI JCBPP Feasibility Study

This paper provides a critical assessment of the Feasibility study concerning the actual implementation of a joint cross-border procurement procedure by public buyers from different Member States prepared by BBG-SKI for the European Commission. The paper submits that the study provides some interesting data and details about relevant case studies, but that it does not shed significant light on the doubts created by the rules on joint cross-border public procurement (JCBPP) in the 2014 EU Public Procurement Package, and that the main weakness of the study is its lack of a general legal analytical framework. In order to gain additional legal insights on the basis of the empirical data included in the BBG-SKI study, this paper proposes an analytical framework under which to assess the legal compliance of JCBPP structures. It then summarises each of the case studies included in the BBG-SKI study and offers a critical (re)assessment of the issues that would have required more information and/or which are insufficiently analysed in the BBG-SKI study. Based on this reorganised empirical evidence, the paper proceeds to a critical assessment of some of the outstanding legal barriers and challenges to JCBPP. It concludes by stressing some of the remaining uncertainties concerning legal development at Member State level, and calls on the European Commission to facilitate more detailed research leading to the adoption of future guidance on JCBPP under the 2014 EU Public Procurement Directives.

The Use of Tender Procedures to Exclude State Aid: The Situation under the EU 2014 Public Procurement Directives

The Use of Tender Procedures to Exclude State Aid: The Situation under the EU 2014 Public Procurement Directives

‘Europe 2020’ and the EU Public Procurement and State Aid Rules: Good Intentions That Pave a Road to Hell?

In 2010, the European Union launched ‘Europe 2020, a strategy for smart, sustainable and inclusive growth’ whose goals in employment, innovation, education, social inclusion and climate/energy need to be reached by 2020. Although such a project has undeniable benefits, the authors of this paper analyse the shortcomings of ‘Europe 2020’ in the field of EU public procurement rules and the latter’s interconnected relationship with State aid rules. The paper is divided into two main parts. The first part considers whether social and environmental considerations in a public tender could lead to a violation of the EU’s public procurement and/or State aid rules. The paper analyses and presents the possible ways in which social and environmental considerations may lead to discrimination, the prevention of which is one of the basic principles of EU law in general and public procurement rules in particular. Further, the authors analyse the link between public procurement and State aid rules. The second part evaluates the public procurement directives and the La Poste case to find out whether the new directives create new risks of infringing State aid rules. The paper points to the contradictions between public procurement and State aid rules. In doing so, the authors take a critical approach to the new public procurement rules and the difficult task of achieving simplification, flexibility, legal certainty, greater sustainable and inclusive growth while at the same time not jeopardising State aid rules.

Success Factors for Early Contractor Involvement (ECI) in Public Infrastructure Projects

It is widely accepted that contractor involvement in the front end can influence the outcome of the project in a positive way. However, in the traditional project delivery method of construction projects, the design and construction process are separated and sequentially. As a consequence of this, it is difficult to integrate construction knowledge in the front-end of projects. The evolving project methods are designed to remove such typical challenges by involving contractors early in the process. The purpose of this paper is to explore the success factors for early contractor involvement (ECI) in public infrastructure projects. In addition, the paper aims to propose suitable approaches to implement ECI for public owners in future projects without violating the EU public procurement directives. In addition to a literature study, multiple case studies on eleven projects selected from the Norwegian public bridge projects were carried out. The majorly identified ECI success factors are timing of ECI application, proper compensation, trust, contractors’ qualification, owners’ competence, and risk distribution. The paper concludes that public owners can implement ECI by using various approaches without violating the EU public procurement directive. Furthermore, based on the identified success factors, effective practical strategies for the successful implementation of ECI may be generated.