lecture 8 Flashcards
(33 cards)
What is the definition of public procurement?
The purchase of goods, services and supplies by public authorities through a competitive award of contracts or concessions to independent undertakings on the market.
public authorities
within public procurement
broad. The state, universities, hospitals, etc
Also some private entities (footbal clubs etc) can also be a contracting authority
➞ it is addressed to the public sector
- radboud for eg is a private establisment, but subsadices for more than 50%, and these organisations is a catogary which falls under PP
They must follow the directives which we will see in the section legal framework
What is the main goal of EU public procurement law?
To create one internal market for government contracts and concessions, eliminating barriers to contracts.
What are the two types of contracts in public procurement?
a.Contracts: these are typically service contracts (the state is paying for services it’s getting from law firms for eg)
- I buy and I pay
b. Concessions: to exploit the railways for e.g ➞ most commen example are the concessions for public transport and the tollways. You recieve the right to exploint or to contruct and exploit
- e.g. I want to organise the busses ➞ right to exploit (you get the right to exploit and they ask you to pay for every trip)
- then you can earn money if it a profitable business and then the operator will pay to the contracting authority
How much is spent annually on public procurement EU-wide?
About 2,000 billion Euros.
➞ spent by 250,000 contracting authorities
It depends on your economic model on how much a MS spends. If you believe that you can contract out a lot of services in different areas, you are higher, because you use the market more
What is the significance of the GPA and TFEU in public procurement?
They are higher legal frameworks that govern public procurement, with directives and national rules following below.
What is the pyramid structure in public procurement law?
- GPA
- TFEU
- Directives 2014/23 and 2014/24
- National rules
- Local rules + tender docs
So the rules higher in the pyramid take precedence over the lower ranked rules
So for us this means that we must pay attention to the different layers
True or False: Public procurement is a unified system across EU member states.
False. Public procurement is harmonized but not unified.
we can also deduce this based on the fact that there is national law in the pyramid structure
What percentage of tenders is governed by EU directives?
About 50%.
Fill in the blank: A tender is the non-legal name for a _______.
[public procurement procedure]
e.g. of a tender doc: tecnical specification and rules on what the bbq’s should look like, and the rules are set out in the specific tender
facts on tenders
300.000 EU tenders per year, and each of these tenders contains specific rules to which you should stick in that particular tender
- Prohibition to contact the contracting authority outside the person indicated in the tender docuemtn for eg
The value of the tenders in the GPA/TFEU sector is higher here vs at national law
In practise it is still a challenge to have a German company bidding in a tender for a dutch contract etc (so cross-border).
- here you see that PP is quite formal and that companies often aren’t willing to stick to the rules which are differnet in all countries
One of the difficulties of public procurement law
that there are inefficiences in the process. About 2/3rd of these are caused by corruption
Why is public procurement law so vulnarable for corruption?
Reasons:
- financial stability of the countries
- contracts are high value (so it is worthwhile to spend money on corruption)
- good for you country to say you are working with the state
Reason why so vulnarable:
A tender starts with a publication EU wide, which means that unlike a private procurement, a public one is know
- the transparacy of PP makes that it is profitable to be corrupt
main goal of public procurement law
based on general procuremetn agreement
- That the EU should be one market for government contracts and concessions. And that there should be an end to all the barriers to the concessions and contracts
- The obsticles to one internal market was the reason to create this one internal market and to gain efficiencies
➞ one internal market for PP
sub-goals of public procurement law
- The barriers between MS should be eliminated ( to avoid favouritism to the freedom to provide services and goods ➞ idea is that everyone is equal, so company abroad should have the same opportunities)
- To open up public contracts to competition between diferent undertakings
new goal of public procurement law
- Social goals (minimum pay for eg, this is what you impose on the tender document), sustainabitlity (impose all kinds of requirements in the tender ➞ cars for eg), climate…
- These are more guiding goals in PP nowadays
What are the general principles of EU public procurement law? List them.
- Equal treatment
- Non-discrimination
- Transparency
- Proportionality
- Mutual recognition
- Effective competition
What is the principle of equal treatment in public procurement?
All bidders must receive the same information and have the same deadlines.
- Important here is also deadlines: if there is a deadline today (23rd at 12 o’clock) you need to hand in your bid. It is against the principle of equal treatment if you arrive by bus and then get extra time. Everyone should get the same rules and it’s your own responsibility. ➞ same rules for everybody
Didam case ➞ but a little bit outside the scope because there was no good supplied to the contracting authority
- Do not treat other foreign goods differently
Principle of non-discrimination in public procurement
- indirect discrimination (based on language eg)
- You can still impose language requirements
- Legal form
What does the principle of transparency aim to achieve in public procurement?
To ensure that there is no discrimination or equal treatment violations by providing clear information throughout the process.
- Corruption is an item in PP. You can’t check if there is discrimination or equal treatment if there is no transparancy
it is a kind of principle, like equal treatment, which applies to the whole process
What is a concession in the context of public procurement?
A contract that gives the right to exploit a service or infrastructure, such as public transport.
What are some social goals linked to public procurement today?
- Minimum pay
- Sustainability
- Climate requirements
What challenges exist with cross-border bidding in public procurement?
Different rules and regulations across countries can discourage companies from participating.
Why is public procurement particularly vulnerable to corruption?
High-value contracts and the financial stability of countries make it attractive for corrupt practices.
