Marta Andrecka

Sustainable public procurement under EU law - new perspectives on the state as stakeholder

This book examines the effectiveness of the modernisation of EU public procurement law in light of the overarching treaty goals on sustainability. Contributors expertly cover core issues of public procurement, including life-cycle costing (LCC), ecoand fair-trade labels, the link to the subject matter (LtSM) requirement, the mandatory horizontal rule on environmental and social legal compliance and framework agreements. Also explored are the balancing of economic and non-economic objectives implied in sustainable public procurement. The volume proceeds to identify major unresolved issues in the use of sustainability considerations and highlights challenges and possibilities for the national implementation due to take place in 2016. The book contributes to the dismantling of the compartmentalisation that underpins unsustainable policy decisions by discussing the interface of company law and public procurement law and the implication of the new rules on sustainable public procurement for sustainable companies and specifically for smalland medium-sized enterprises (SMEs).

Contracting Out of the Provision of Welfare Services to Private Actors and Liability Issues

Abstract The article discusses liability issues related to the contracting out of welfare services. It focuses on the possible liability of the private actor and of the public entity towards the individual (the citizen) for non-performance or mal-performance of the welfare service. It is argued that since there is no contract between the individual and the private service provider there may be several obstacles to a claim against the private service provider based on contract. At the same time it is a general tort law principle that there is no vicarious liability for independent contractors, making it difficult also to succeed with a claim against the public entity based on tort law. Thus, a liability gap seems to exist. However, the article demonstrates that there are signs in different jurisdictions that solutions are being found in case law to this problem allowing to some extent for the imposition of some kind of vicarious liability on the public entity. Four different models are identified. The reasoning behind these models varies but they all have in common that the public law nature of the service that has been outsourced somehow plays a role.

Dealing with Legal Loopholes and Uncertainties within EU Public Procurement Law Regarding Framework Agreements

Provision on framework agreements has been introduced into European Union (EU) Law in 2004. Since then framework agreements have gained popularity and importance on the European Union (EU) public tender market. Nevertheless, the use of frameworks poses significant legal challenges necessitating the clarification of the governing rules and the introduction of further guidelines. Unfortunately, clarifications were not fully provided in the new Directive 2014/24/EU. This article is a study of legal loopholes and uncertainties that occur during public procurement of framework agreements as a result of current EU rules and national practices in Denmark and the United Kingdom. The article highlights the need for clarification of the existing rules and introduction of transparency to the subsequent call-off stage of framework agreements. To achieve study aims, three methods were applied: a doctrinal analysis, a small scale comparative law research and field research based on qualitative research by the means of semi-structured interviews.

Framework Agreements: Transparency in the Call-Off Award Process

Framework agreements have become a very popular procurement tool in the European Union, since their recognition in the 2004 Public Sector Directive. Meanwhile, there has been a lot of discussion regarding the need to balance the benefits that these agreements bring. Such benefits include, efficiency through economies of scale (as one procedure can subsequently be used to award several contacts), and administrative efficiency. It is also vital to consider the risk that is associated with framework agreements, such as the significant risk for competition and lack of transparency in the award process. The latter will be the focus of this paper. Throughout the paper the author argues that the rules on framework agreements do not ensure enough transparency in the award process for call-off contracts.

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.

Innovation Partnership in the New Public Procurement Regime – A Shift of Focus from Procedural to Contractual Issues?

At the beginning of 2014, the European Parliament and the Council adopted the new directive on public procurement. Inter alia, the new Directive introduces a new procedure called the innovation partnership. The availability of the new provisions maybe valuable particularly from the perspective of complex contracts, which are characterised as mixed contracts.This is because the innovation partnership has a potential to enable a contracting authority to procure complex contracts with more than one type of subject matter regarding development of innovation and its delivery. On the one hand, the innovation partnership has a potential to overcome the primary challenge and uncertainty regarding the usage of a two-stage procedure divided into pre-commercial and commercial procurement, relating to the unfair competition and the conflict of interest that may occur based on cooperation within the pre-commercial phase. On the other hand, the establishment of an innovation partnership may be seen not only as an answer to existing challenges, but also as a new way of realising the objective of a smart, sustainable and inclusive growth that characterises the Europe 2020 strategy. However, at the same time the application of the innovation partnership provisions may pose certain challenges. The aim of this article is to identify and discuss these challenges. To achieve this aim firstly, the scene for the discussion will be set by a presentation of background information. Secondly, three methods of procuring innovation will be discussed: first, the pre-commercial procurement; secondly, delivery of innovation throughout the competitive dialogue procedure; and, finally, the newly introduced innovation partnership. Thirdly, particular attention will be given to the innovation partnership provision in the Directive. Focus will be given to the proposed procedure and structure of the partnership. Fourthly, the article will consider what new solutions the new procedure introduces. Finally, the last section will conclude the discussion.