Public Procurement Regime Research Articles

Fiscal expropriation in Turkey under the rule of Erdoğan

This work signifies an attempt to elaborate on the concrete workings of fiscal policy in today’s Turkey through the notion of primitive accumulation. The subject matter is a political regime that constitutes itself increasingly through coercion. And to understand the political regime’s constitution in its wholeness, its concrete existence in its relations with the economic life surrounding it, primitive accumulation – the notion that construes coercion as an economic power – is necessary. Furthermore, since the notion of class struggle is inherent to primitive accumulation, the latter notion also elicits to reflect on the formation of the state as it hinges on the class society. The notion of primitive accumulation reveals the class power that the state predicates and the concrete ends that this predicate sights. Political coercion can’t be comprehended separately from the capitalist accumulation, and in the case of Turkey, their unity finds expression most clearly in the practices of fiscal expropriation. Throughout the work, fiscal expropriation is examined through three specific forms it takes: the unity of over-taxation with growing indebtedness of the state, public procurement regime, and public–private partnerships. All of them signify the proletarianisation and further impoverishment of the people just as in the era when Karl Marx has drawn up the notion of primitive accumulation.

Reforming procurement standards in order to effectively deliver public infrastructure: Rethinking the regulatory environment in post-pandemic South Africa

This research study identifies a specific layer of regulation within the governance regime which is a key factor impeding the procurement and delivery of public infrastructure in South Africa. We first identify current weaknesses of conflict and confusion at the level of soft law in the procurement and delivery of public infrastructure projects. Then we present a detailed case study of a successful South African megaproject (the procurement and delivery of the public infrastructure for two new universities, the New Universities Project) to demonstrate that these weaknesses can be avoided. The research note’s regulatory account focuses on the key element of quality in the South African public procurement regime, distinguishing that concept from the often conflated notion of value-for-money. We discuss how the problems identified could be addressed by means of changes to soft law prior to the finalisation of the current and ongoing public procurement legislative reform process.Contribution: Through a case study of the on-time and with-budget public procurement and delivery of two new universities for South Africa, the article demonstrated that national policy on public infrastructure can be successfully implemented, with attention to the key soft law layer of regulation.

THE QUIET REVOLUTION OF ISRAEL’S PUBLIC PROCUREMENT LAW

This article gives a legal-historical outlook on the development of the Israeli procurement law, the main achievements and challenges, and the “quiet revolution” it is going through. This article analyses the respective roles of the three branches: the legislature, the executive, and the judiciary from an institutional vantage point, in designing the public procurement legal framework. This, while considering the greater socio-political and economic context. Israel’s public procurement regime is undergoing significant changes. The most recent changes involve a greater degree of professionalism by different governmental units; e-procurement; e-tendering; and a pilot of e-guarantees. Furthermore, the government is promoting public-private partnerships (PPPs) by engaging in more sophisticated long-term procurement models. Moreover, the decision of the Supreme Court of Israel in Bibi Roads Earthmoving & Development Ltd v Israel Railways Ltd is an important milestone representing a formalistic approach in contract law interpretation of government procurement contracts. This decision had a profound impact on the procurement cycle as a whole. A proposal for a revision of the Mandatory Tenders Regulations, aimed at increasing competition and diversity of suppliers by giving the government/executive more discretion in the procurement process, is now on the table. Within this context, the judicial overhaul promoted by the 37th government and its ramifications on public procurement law is briefly discussed.

Apuntes para el análisis comparado de la contratación pública electrónica en Italia y en España

La contratación pública electrónica es una realidad en toda Europa. Los Estados nacionales han ido trasponiendo, en diferente grado y medida, las Directivas de la Unión Europea de 2014 sobre contratación pública. Desde su aprobación, la Unión Europea no ha dejado de incidir en la necesaria trasformación digital de los procedimientos de contratación en aras de una mayor transparencia, eficacia y eficiencia. El panorama normativo de la contratación pública en Italia no puede sino avanzar en esta senda. La presente investigación tiene por objetivo estudiar el régimen de la contratación pública electrónica italiana, al tiempo que se compara con la mantenida por España, destacando los aspectos positivos y mejorables de ambas regulaciones para lograr una implantación de la contratación pública electrónica con carácter definitivo y, cómo no, obligatorio.

COVID-19, public procurement regimes and trade policy.

This paper analyses 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.

The Portuguese Covid-19 Public Procurement Rules

The Covid-19 pandemic has been a driver of new State legislation in several fields. This article addresses the special public procurement rules enacted in this context, including some challenges such not-so-reflected legislation raised. The ‘successive’ exceptional public procurement regime implies very complex hermeneutics regarding both the subjective and objective scope of application and the discretionary legal requirements established therein. The key measure is a particular direct award regime that has raised some doubts regarding the need for such solutions when compared to those in the Directive. There has already been some monitoring of the regime’s implementation that has underlined the need to continue monitoring ‘the planning, the implementation and management of the public emergency answer’. Keywords: Covid-19; state of emergency; special public procurement rules

Ethics in South African public administration: a critical review

Commissions, for example, Zondo and Mokgoro, have revealed that public administration in South Africa is in a dilemma, because unethical and corrupt acts manifests among public office bearers. This scourge impedes government departments capacity to render public services effectively and efficiently. South African public administration is confronted by multiple obstacles such as the lack of transparency, accountability and efficiency. Government public procurement systems have become a breeding ground for corruption and maladministration. This article argues that a central neglected factor is failure to adhere to sound ethical conduct in the execution of public duties despite numerous government training and development initiatives in this regard in the public sector. Arguably, the new dispensation under the current leadership of President Ramaphosa needs to overhaul the functioning of public organisation, implement sound whistle blowing mechanisms to inhibit corruption and encourage public managers to observe good ethical conduct when serving the public. The implications of this study, therefore, accentuate good principles of governance which includes transparency, accountability and ethics, which are the key determinants for effective public service delivery.

Ethics in South African public administration: a critical review

Commissions, for example, Zondo and Mokgoro, have revealed that public administration in South Africa is in a dilemma, because unethical and corrupt acts manifests among public office bearers. This scourge impedes government departments capacity to render public services effectively and efficiently. South African public administration is confronted by multiple obstacles such as the lack of transparency, accountability and efficiency. Government public procurement systems have become a breeding ground for corruption and maladministration. This article argues that a central neglected factor is failure to adhere to sound ethical conduct in the execution of public duties despite numerous government training and development initiatives in this regard in the public sector. Arguably, the new dispensation under the current leadership of President Ramaphosa needs to overhaul the functioning of public organisation, implement sound whistle blowing mechanisms to inhibit corruption and encourage public managers to observe good ethical conduct when serving the public. The implications of this study, therefore, accentuate good principles of governance which includes transparency, accountability and ethics, which are the key determinants for effective public service delivery.

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.

Towards mandatory Green Public Procurement (GPP) requirements under the EU Green Deal: reconsidering the role of public procurement as an environmental policy tool

The aim of this paper is to analyze the inclusion of Green Public Procurement (GPP) requirements in the EU public procurement regime. The debate about moving towards greener public purchasing has been fueled afresh in the wake of the EU Green Deal, which highlights the significance of a public procurement regime in pursuing the existing environmental policy goals at EU level. This is also reflected in other key EU policy documents, such as the Circular Economy Package, the Sustainable Development Goals (SDGs) as well as the climate change legislation implementing the Paris Agreement. In this context, this paper aspires to map the intersections between the public spending decisions of contracting authorities and their discretion in inserting environmental considerations through the lens of increasing compliance with the adopted environmental targets.

A Diagnosis of the Post-Apartheid Public Procurement Regime in South Africa

The purpose of this study is to analyse the progress that the post-Apartheid public procurement regime has made in South Africa in achieving its mandate of addressing socio-economic imbalances created by Apartheid. Based on the desktop literature review and research design, this study explores, through a conceptual analytical approach, the pros and cons that have characterized the South African public procurement regime to date. The study appreciate and acknowledge tremendous progress made to date in ensuring that the South African public procurement regime meets the international standards governing supply chain management processes. Nevertheless, research findings have shown some shortcomings in that the current procurement regime as it recycle enterprises without really creating sustenance. This has resulted in most SMEs benefitting from the government procurement, struggling to survive outside public procurement. The current B-BBEE framework have shown fundamental gaps, and consequently created of more black business managers than black industrialists who are sustainable entrepreneurs. Big companies with the capacity to respond to the seven elements of the scorecards hire black executives and pay them salaries while they share dividends and profits. Thus, the Public Procurement in South Africa needs to be constantly evaluated, monitored and adjusted accordingly, considering the highly dynamic contemporary business environment. This is in the ambit of: lack of proper knowledge, skills and capacity; non-compliance with SCM policy and regulations; inadequate planning and the linking of demand to the budget; Accountability, fraud and corruption; inadequate monitoring and evaluation of SCM; unethical behaviour; decentralization of the procurement system without proper regulated mechanism and Irresponsiveness of the B-BBEE policy. The study concludes by recommending a revamp of the B-BBEE framework in its current form in order to make it more responsive and effective. Keywords: Public Procurement, Preferential Procurement Policy Framework, Broad-Based Black Economic Empowerment, Supply Chain Management DOI: 10.7176/EJBM/12-29-02 Publication date: October 31 st 2020

Approaches Regarding the Simplified Public Procurement Procedure in Romania

Abstract Public procurement in Romania is an important part of any economy, regardless of the geographical location, political orientation or level of development. Therefore, they can be considered as a separate part, but not insignificant, of the business of a functioning market economy. Moreover, they benefit from its own law, including the global economic agreements governing commercial transactions of this type. Public Procurement is an important element of the Internal Market and a basic method of public spending and ensuring the free movement of goods, services and works by domestic and foreign companies. Through the adoption and implementation in the national legislation of the Member States of a package of Directives 2014, a new Public Procurement regime is settled. The Public Procurement Law provides two new awarding procedure. Simplified procedure – may be applied by the contracting authority for the contracts with a reduced value and the Innovation partnership. The above procedures are in addition to the procedures below which were already provided for by the prior legislation. In Romania a simplified procedure is applied for contracts /framework agreements with an estimated value below the above mentioned thresholds but with exceed RON 135,060 for supply and services contracts and RON 450,200 for works contracts. Within a simplified procedure, contract notices are published only in the Electronic System for Public Procurement.

EU Public Procurement Law:

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

Tenderers May Be Excluded, If the Grounds for Exclusion Are Applicable to Their Subcontractors

In January 2020 the Court of Justice of the European Union delivered its judgment in Case C-395/18. The Court said that the public procurement regime of the European Union does not preclude exclusion of a tenderer, if the ground for exclusion is applicable to one from its subcontractors. However, such exclusion shall not be automatic.

Appeal of Public Procurement Procedures

Abstract Public Procurement is an important element of the Internal Market and a basic method of public spending and ensuring the free movement of goods, services and works by domestic and foreign companies. Through the adoption and implementation in the national legislation of the Member States of a package of Directives 2014, a new Public Procurement regime is settled. The purpose of the new Directives is to exclude the risk of giving national tenderers an advantage. There are a number of issues, including the kind of legal protection contractors can expect in Public Procurement procedures. This article analyses one of the mechanisms for controlling Public Procurement - their appeal. It relates to the judicial control exercised by the relevant national institutions in the Member States and the conditions and procedures for appeal that are governed by the national laws, once the Directives have been transposed into national legal systems. Despite a limited number of cases, the Court of Justice of EU (CJEU) also exercises judicial review within the context of a reference for a preliminary ruling, where a national court hearing an appeal against a Public Procurement procedure, has referred a question to the CJEU.

Reform in the contract state: Embedded directions in public procurement regulation in South Africa

ABSTRACTAs South Africa contemplates another episode of public procurement legal reform, we trace the post-apartheid history of such efforts and consider critical issues moving forward. South Africa has over the last few decades followed the international trend of an expanding ‘contract state’. Public procurement is increasingly important to state operational and allocative concerns. South Africa’s public procurement regime is progressively configured into a centrally steered but decentralised organisational form. Inflected through domestic public procurement politics, however, the development of this organisational form has been truncated, with the establishment of only limited central steering capacity producing a public procurement regulatory regime which is weak, fragmented and incoherent, contributing to problems of state incapacity and corruption. In 2013 South Africa’s Minister of Finance announced a major push to reform South Africa’s contract state. The effort aims to better establish, locate and extend public procurement regulatory authority. It has begun to elaborate a centre-led, strategic and increasingly developmental procurement methodology. It is moving towards more flexibility, effectively an attempt to reduce rigidity in rules while building more robust and distributed disciplinary mechanisms, ones which take account of deficits in regulatory capacity and political will. We consider the potentials and pitfalls of these movements and suggest ways to optimise them.

Regime diferenciado de contratações públicas e contratação por resultados no Brasil

Este trabalho objetiva, em síntese, o estudo da contratação por resultados como instrumento de ampliação da eficiência da Administração Pública. Para isto, a pesquisa é iniciada com a análise do cenário internacional e as principais espécies de contratos por resultado: Payment by Results (PbR) e Social Impact Bonds (SIBs), que têm como traço comum a transferência para o particular dos riscos financeiro e operacional na prestação de serviços de interesse público e a remuneração proporcional aos resultados. Estudar-se-á, ainda, o Regime Diferenciado de Contratações Públicas, inaugurado no Brasil para atender aos grandes eventos esportivos e posteriormente perenizado. Será demonstrado que o RDC inovou a contratação pública no Brasil com algumas características, como possibilidade de contratação integrada, sigilo do orçamento estimado, inversão de fases da licitação e previsão de um recurso único, tudo para garantir mais celeridade (na licitação e na execução do contrato) e evitar o conluio e outros ataques à concorrência pública. Por fim, serão estudados os contratos por resultados previstos no RDC – contrato de remuneração variável e contrato de eficiência – para fazer uma análise comparatista com o PbR e as SIBs e avaliar a implementação destas no Brasil sob o marco daquele regime diferenciado.

The Many Faces of Transparency in EU Public Procurement

Transparency in EU Public Procurement regime can be divided into advertising obligations under the EU Procurement Directives and access to documents under national laws of Member States. Due to limited EU rules on post-award transparency the disclosure rules are subject to national laws. Here history, political development, divisions to private and public law traditions as well as the tendency for corruption seems to have affected to the level of transparency in each Member State. This paper provides a comparative analysis and discusses certain differences of national transparency rules including their objectives, scope, active publication obligations as well as some commercial concerns in public procurement regime.

NATIONAL REGIME IN IMPLEMENTATION OF PUBLIC PROCUREMENT AS A FACTOR FOR ENSURING NATIONAL INTERESTS

Introduction: under the conditions of economic sanctions imposed by foreign countries against Russia, the issue of import substitution was sharply raised. Its mechanisms are stipulated, among other things, in the Article 14 of the Federal Law «On the contract system in the procurement of goods, works, services for the provision of state and municipal needs» (hereinafter – Federal Law No. 44): prohibitions, restrictions and conditions for admission of foreign goods, works, services on the territory of the Russian Federation. These mechanisms find reflection and development in the decisions of the Government of the Russian Federation, which create difficulties in their application by business entities. The article makes an attempt to analyze the legal framework on this issue, to identify problems and suggest ways to solve them. Methods: the general scientific methods of research (formal and dialectical logic, systemic) and private-science methods (comparative legal, formal-legal) were used in the article. This allowed to determine, on the basis of analysis of international legal acts, Russian legislation and law-enforcement practice, the limits of restrictions, prohibitions and conditions for admission of foreign goods, works, services to the Russian market. Analysis: the article analyzes the institution of national public procurement regimes enshrined in international legal acts, regulatory legal acts of the Russian Federation, including resolutions of the Government of the Russian Federation in which prohibitions, restrictions and conditions for admission of foreign goods, works, services in the territory of the Russian Federation are established; the problems that are caused by the unsystematic nature of Russian legislation are revealed. Results: the analysis of the legal framework on the national regime of public procurement made it possible to come to a conclusion about its imperfection and the need for carrying out its comprehensive expertise that would identify all the problematic aspects in this area and suggest ways of eliminating them. Moreover, it is necessary to develop a single set of issues that should be reflected in all decisions of the Government of the Russian Federation on prohibitions, restrictions, conditions for admission of foreign goods, works and services within the framework of the national public procurement regime.

SUBJECTIVE SCOPE OF THE CONCEPT OF A "BODY GOVERNED BY PUBLIC LAW" IN THE CONTEXT OF PUBLIC OVERSIGHT OVER THE PUBLIC PROCUREMENT MARKET

In the practice of awarding public contracts, particular interpretative problems arise concerning the subjective scope of application of the public procurement regime. In this context, of key significance is the issue of properly capturing and understanding the legal institution of the body governed by public law – as contained in the Directive of the European Parliament and of the Council 2014/24/EU of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, as well as Directive of the European Parliament and of the Council 2014/25/EU of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC. Depending on the interpretation admitted, different categories of entities can then be either bound by or relieved of the duty to apply the cited provisions. What is more: the content of the aforementioned Directives impacts the content of national legal regulations concerning public procurement. Not only is the aforementioned term composed of several elements that must (generally) appear together with one another, but those elements themselves contain a range of imprecise and vaguely-defined terms. Their interpretation must therefore refer not only to the scholarly literature, but also case-law, particularly that of the CJEU. This publication is an attempt at exploring the particular elements comprising the concept of a “body governed by public law” in the context of public oversight of the public procurement market.