La contratación pública de las sociedades de economía mixta

2019 ◽  
pp. 707
Author(s):  
Gabriel J. Vivancos Martínez
Keyword(s):  
Public Administration ◽  
Public Procurement ◽  
Private Law ◽  
Mixed Economy ◽  
The Public ◽  
Public Contracting ◽  
Rules Set

Las Sociedades de Economía Mixta han tenido queadaptar su contratación al régimen propio de la contratación públicade la Ley de Contratos del Sector Público. La transición delderecho privado al derecho público no ha sido fácil, en gran medidapor las deficiencias legislativas que una norma redactada paralas Administraciones Públicas provoca cuando se aplica a los PoderesAdjudicadores pero no Administración Pública (PANAPS).La complejidad en la contratación de esta figura no se agota conla Ley de Contratos del Sector Público sino que alcanza la aplicaciónde otras normas originariamente destinadas para las Administraciones.La Ley 9/2017, de 8 de noviembre, destina un título a lacontratación de esta figura pero incluso antes de su entrada en vigorpresenta importantes controversias contrarias a la seguridadjurídica.The Mixed Economy Companies have had to adapttheir procurement to the public contracting rules set on the PublicSector Contracts Law. The transition from private law to thepublic sector has not been easy, largely due to the legislative deficiencies that a norm written for the Public Administrations provokeswhen applied to the Awarding Powers but not Public Administration(PANAPS for their Spanish acronym). The complexity ofthis public procurement form does not end with the Public SectorContracts Law, but reaches also to the legal application of otherrules originally destined to the Administrations. The 8th November9/2017 Law devotes a title to this contracting figure, but even beforeits entry into force presents important controversies regardinglegal security. 

scholarly journals Prawo administracyjne prywatne. Propozycja nowego terminu w siatce pojęciowej polskiego prawa administracyjnego

2018 ◽  
Vol 114 ◽  
pp. 149-165
Author(s):  
Witold Małecki
Keyword(s):  
Public Administration ◽  
Public Procurement ◽  
Legal Framework ◽  
Legal Regulation ◽  
Administrative Law ◽  
Public Law ◽  
Private Law ◽  
Protective Measures ◽  
Public And Private ◽  
The Public

PRIVATE ADMINISTRATIVE LAW. THE PROPOSAL OF A NEWDistinction of the set of norms called ,,private administrative law” is conditioned by the recognition that the theorem on the public-law affiliation of administrative law is of typological relevance, not of classification relevance — in every branch of law also in administrative law it is possible to distinguish, in various proportions, norms of public and private law. The norms of private administrative law set the legal framework for public administration to use forms of activity that traditionally belong to private law in a way that prevents “escape to private law”, fusing private-law forms of activity and public-law protective measures. Public procurement law is presented as a model area of legal regulation within the scope of private administrative law.

scholarly journals Public Policies for Procurement under COVID19

2021 ◽  
Vol 1 (3) ◽  
pp. 9-36
Author(s):  
Luís Valadares Tavares ◽  
Pedro Arruda
Keyword(s):  
Comparative Analysis ◽  
Comparative Study ◽  
Public Procurement ◽  
Public Policies ◽  
European Directives ◽  
Public Markets ◽  
The Public ◽  
Public Contracting ◽  
The Comparative Study ◽  
Selection Of

Public procurement is a main issue in the frontline of Governments fighting COVID 19 pandemic as the need for additional and urgent acquisitions as well as the need to consolidate the supply chains and to promote sustainable and innovative procurement have been a source of deep changes and main challenges disturbing public markets and invalidating several assumptions of the traditional public contracting. In this paper, the development of appropriate public policies to cope with these challenges is studied following the approach suggested by several authors and including four stages: a Stage on Facts and Issues where the main challenges and conditions are studied, the Options Stage to describe which polices and procedures can be adopted, a Values Stage stating the main values to be pursued and, finally, a Policies Stage including the selection of the recommended policies. The analysis of the challenges and facts includes the study of a taxonomy of short and longer term needs and the available options are based on the comparative study of procedures ruled by the European Directives on Public Procurement approved on 2014. The major values to be respected include the principle of competition which is a major institutional principle of the European Treaty and of the Directives as well as the goal of promoting sustainable and innovative public procurement. Several indicators are suggested to describe the application of the public procurement policies adopted across EU and their comparative analysis is presented using the TED data for contracts concerning COVID 19. The case of Portugal is discussed and final remarks about the recommended public policies are also included herein.

scholarly journals Assessing the Public Administration’s Intention in EU Economic Law: Chasing Ghosts or Dressing Windows?

2016 ◽  
Vol 18 ◽  
pp. 93-121
Author(s):  
Albert SANCHEZ-GRAELLS
Keyword(s):  
European Union ◽  
Public Administration ◽  
Public Procurement ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
The Public ◽  
Economic Law ◽  
Right To Good Administration ◽  
State Liability

AbstractHere I reflect on the role of subjective or intentional elements in EU economic law prohibitions, particularly in relation to rules concerning public administration. From a normative perspective, it is desirable to suppress the need for an assessment of subjective intent and to proceed with an objectified enforcement of such prohibitions. With this in view, I consider public procurement and Member State aid rules as two examples of areas of EU economic law subjected to interpretative and enforcement difficulties due to the introduction – sometimes veiled – of subjective elements in their main prohibitions. I establish parallels with other areas of EU economic law – such as antitrust, non-discrimination law and the common agricultural policy – and seek benchmarks to support the main thesis that such intentional elements need to be ‘objectified’, so that EU economic law can be enforced against the public administration to an adequate standard of legal certainty. This mirrors the development of the doctrine of abuse of EU law, where a similar ‘objectification’ in the assessment of subjective elements has taken place.I draw on the case law of the Court of Justice of the European Union to support such ‘objectification’ and highlight how the Court has been engaging in such interpretative strategy for some time. The paper explores the interplay between this approach and more general protections against behaviour of the public administration in breach of EU law: the right to good administration in Article 41 of the Charter of Fundamental Rights of the European Union and the doctrine of State liability for infringement of EU law. I conclude with the normative recommendation that the main prohibitions of EU economic law should be free from subjective elements focused on the intention of the public administration.

scholarly journals Arbitrability of Procurement Disputes

JURIST ◽  
2021 ◽  
Vol 3 ◽  
pp. 2-6
Author(s):  
Viktor V. Eremin ◽  
Keyword(s):  
Public Procurement ◽  
The State ◽  
Future Research ◽  
Wide Field ◽  
Private Law ◽  
The Public ◽  
Judicial Practice ◽  
Legal Relationship ◽  
Civil Contract

This article discusses the arbitrability of disputes, which in the domestic doctrine referred as procurement disputes. These are disputes from a number of laws related to public procurement and ordering. The article provides a brief analysis of the possibility of referring such disputes to arbitration courts. An obstacle to the consideration of these disputes by arbitration courts is judicial practice, which does not accept the use of the private-law mechanism for resolving disputes in such a publicly significant sphere as procurement for public needs. In addition, the author makes the assumption that the concept of the “public element”, which prevails in domestic judicial practice, makes it difficult to enforce the decisions of the arbitration courts on such disputes, since they inevitably have “public elements”, for example, the presence of budgetary funds in the legal relationship special contracting procedures. This concept is in contradiction with the fact that the state contract is a civil contract and, generally, is arbitrable, like other types of procurement. The further possibility of applying arbitration proceedings in procurement disputes is extremely controversial and leaves a wide field for future research.

WAYS TO INCREASE THE EFFICIENCY OF PUBLIC ADMINISTRATION IN THE FIELD OF PROCUREMENT

2017 ◽  
Author(s):  
Valentyna Tokareva ◽  
Keyword(s):  
Public Administration ◽  
Economic Efficiency ◽  
Public Procurement ◽  
Social Efficiency ◽  
The Public ◽  
The World Bank ◽  
Efficiency And Effectiveness ◽  
Key Aspects ◽  
Procurement System ◽  
Final Effect

The article analyzes ways to increase the efficiency of public administration in the field of procurement. The legal and regulatory conditions that affect the ability of the private sector to interact with the public sector in order to make a profit are described. The analysis of these conditions focuses on two key aspects: the procurement process, starting from the stage of formation of demand for goods, work, services and ending with the implementation of the state contract, and the mechanism for reviewing complaints in the system. The following indicators of system efficiency were used as indicators for these processes: needs assessment, invitation to participate in procurement; submission of applications; consideration, evaluation of applications, conclusion of a contract; content and management of the contract; warranty obligations; payment obligations; complaints submitted to the bodies of first instance; complaints filed with the bodies of second instance. It should be noted that this list of basic data is not exhaustive, but most significantly affects the final effect of the implementation of norms and rules of procurement in the country. Based on the results of the analysis of the World Bank research, recommendations have been developed for improving the organizational and administrative methods of managing the system of goods, works and services procurement. It is proved that the assessment of the economic efficiency of placing an order can be carried out in comparison with: the maximum possible indicators within the procedure completed by the time of analysis; with generalized results of the initial level using the same procedures; with positions planned by the customer, taking into account one or more indicators. The opinion on the need to analyze all the processes taking place in the public procurement system: from procurement planning to monitoring the progress of the contract. In addition, it is emphasized that when assessing the effectiveness of procurement, it is necessary to take into account not only the economic efficiency and effectiveness of the procedure, but also social efficiency, as one of the objectives of procurement is to meet customer needs.

Implementation of Green Considerations in Public Procurement

2019 ◽  
pp. 23-44
Author(s):  
Andrea Appolloni ◽  
Maria Antonietta Coppola ◽  
Gustavo Piga
Keyword(s):  
Public Procurement ◽  
Good Work ◽  
Procurement Process ◽  
The Public ◽  
Public Contracting ◽  
Contract Performance ◽  
Environmental Criteria ◽  
Winning Bidder ◽  
Technical Specifications ◽  
Environmental Considerations

Green considerations can be applied during all phases of the public procurement process: from the pre-award to the award and post-award phase. They can be included in technical specifications, award criteria, and contract performance clauses. Technical specifications provide a detailed description to the market of the good, work, or service to be procured. They constitute the basis for drafting green award criteria, which allow contracting entities to evaluate the received bids and award the contract. Contract performance clauses can also be used by public contracting entities to introduce environmental considerations in the procurement process. These clauses are based on the capacity of the winning bidder to perform the negotiated environmental criteria. Notwithstanding the importance of GPP, green considerations are seldom applied in public procurement. Reasons can be found in the lack of appropriate regulations at national and international level, or in the actual lack of training of the procurement workforce.

scholarly journals O Controle Externo dos Contratos da Administração Pública pelo Tribunal de Contas: Ensaio sobre o Momento da Fiscalização Financeira Adotado no Brasil e em Portugal

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Gilberto Pinto Monteiro Diniz
Keyword(s):  
Public Administration ◽  
Public Procurement ◽  
Financial Supervision ◽  
External Control ◽  
Legal Norms ◽  
The Public ◽  
Contract Performance ◽  
The Moment ◽  
High Degree ◽  
Procurement Contracts

O CONTROLE EXTERNO DOS CONTRATOS DA ADMINISTRAÇÃO PÚBLICA PELO TRIBUNAL DE CONTAS: ENSAIO SOBRE O MOMENTO DA FISCALIZAÇÃO FINANCEIRA ADOTADO NO BRASIL E EM PORTUGAL EXTERNAL CONTROL OF PUBLIC ADMINISTRATION PROCUREMENT CONTRACTS BY THE COURT OF AUDITORS: ESSAY ON THE MOMENT OF FINANCIAL SUPERVISION ADOPTED IN BRAZIL AND PORTUGAL Gilberto Pinto Monteiro DinizRESUMO: No Brasil e em Portugal, a contratação pública representa uma das principais fontes de despesa pública, constituindo-se, portanto, matéria de elevado grau de relevância e materialidade para a fiscalização financeira a cargo do tribunal de contas. Em razão disso, o objetivo deste trabalho é demonstrar o momento adotado pelos órgãos de controle externo desses dois países para verificar se o procedimento adotado pela Administração Pública para efetivar a contratação pública obedeceu às normas jurídicas pertinentes, bem assim se a execução contratual cumpriu com êxito o objeto pactuado e, ainda, se atingiu o resultado desejado. PALAVRAS-CHAVE: Tribunal de contas; fiscalização financeira; controle prévio, concomitante e subsequente; contratação pública. ABSTRACT: In Brazil and Portugal, public procurement represents a major source of public expenditure and thus constitutes a matter of high degree of relevance and materiality for the financial supervision handled by the Court of Auditors. For this reason, the aim of this work is to demonstrate the moment adopted by the external control bodies of these two countries to check if the procedure adopted by the Public Administration to carry out the public procurement abided by the relevant legal norms, as well as if the contract performance successfully fulfilled the agreed subject matter and, also, if it has reached the desired result.KEYWORDS: Court of auditors; financial supervision; prior, concomitant, and subsequent checking; public procurement.SUMÁRIO: Introdução. 1. Estado democrático de direito e controle externo exercido pelo tribunal de contas. 2. Inserção do tribunal de contas na estrutura do estado. 2.1. No estado brasileiro. 2.2. No estado português. 3. Contratação pública. 3.1. Relevância econômica e financeira da contratação pública. 4. Fiscalização financeira da contratação pública pelo tribunal de contas. 5. Momento da fiscalização financeira da contratação pública: prévio, concomitante e subsequente. 5.1. Momento adotado no Brasil. 5.2. Momento adotado em Portugal. Considerações finais. Referências.

scholarly journals The transposition of the 2014 EU Directives on public procurement by Portugal: woes and expectations

2018 ◽  
Vol 1 (1) ◽  
pp. 33-44
Author(s):  
Luís Valadares Tavares
Keyword(s):  
Public Administration ◽  
Environmental Sustainability ◽  
Public Procurement ◽  
Legal Framework ◽  
New Approach ◽  
Public Markets ◽  
The Public ◽  
Administration Culture ◽  
Eu Directives ◽  
Negative Impacts

The new EU Directives on Public Procurement are oriented to promote the application of the concept of strategic public procurement which has been subject to several communications and discussions promoted by the European Commission and European Parliament. This new approach to Public Procurement has deep implications in the legal framework adopted by each Member State as well as in the public administration culture and organization in order that the new objectives of promoting the qualification of markets, the increase of innovation, the respect by social cohesion and environmental sustainability and a better access to public markets by SME’s will be achieved aligned with the UE 2020 Agenda. In this paper, the process and the results of the transposition of this Directives by Portugal are studied not just in terms of the respect for the Directives rules but also considering its likely positive and negative impacts on Portuguese public markets which are also synthetically described herein.

scholarly journals ADMINISTRATIVE AND LEGAL REGULATION OF INFORMATION RELATIONS OF PUBLIC PROCUREMENTS SUBJECTS IN THE ECONOMIC SPHERE

2019 ◽  
Vol 5 (4) ◽  
pp. 74
Author(s):  
Mykhailo Vilhushynskyi ◽  
Andrii Chornous
Keyword(s):  
International Relations ◽  
Public Administration ◽  
Public Procurement ◽  
Legal Regulation ◽  
Preventive Control ◽  
The Public ◽  
Analytical Monitoring ◽  
Economic Sphere ◽  
Further Development ◽  
Development Prospects

The purpose of the article is to scrutinize administrative and legal regulation of information relations of public procurement subjects in the economic sphere. Within the framework of the conducted research, the authors note that the system of subjects that carry out administrative and legal regulation of information relations in public procurement consists of general and special public administration subjects. The primary objectives of the article are the following: 1) to determine an exclusive list of public administration subjects that provide administrative and legal regulation of information relations in the field of public procurement; 2) to outline major trends of further development of administrative and legal regulation that relates to information relations of public procurement subjects. Methodology. In the course of the article preparation, a set of philosophical and ideological approaches has been used (in particular, the dialectical approach, which is a way of thinking based on the analysis of all available views on disclosure of the content of administrative and legal regulation of information relations of public procurement subjects; analytical approach, which is based on cognitive activity concerning proving or refuting the notion of a public procurement subjects system; hermeneutic that is used to understand the terms related to information relations of public procurement subjects in the economy); general scientific research methods (logical, which is based on “simple to complex” and “abstract to concrete” principles and relates to general characterization of information relations of public procurement subjects in the economic field); special methods (system-structural method when defining organizational structure and legal regulation of public procurement subjects activity, legal comparative analysis when studying foreign countries expertise; formal legal and formal logical approaches). Results. According to the results of the research, the authors have classified all public administration subjects that carry out legal administration of information relations in the field of public procurement into four separate organizational and structural levels. The particular article provides authors’ assumptions concerning further development of administrative and legal regulation of information relations of public procurement subjects in the economy, namely, emphasizes the necessity of strengthening preventive control in forms of general (analytical) monitoring, supervision of individual procurement procedures, and further automation of procurement processes; accentuates the tendency of public procurement sphere professionalization by organizing personnel trainings and educating public officials how to work with advanced information technologies; supports the need to continue implementing measures aimed at improving legislation, professionalizing labour resources in the public procurement field, improving international relations, attracting additional investments to integrate advanced technologies and hire field experts with background in managing national information resources and building e-government. Practical implications. The authors’ survey results may be used in legislative work related to the legal regulation of information relations of public procurement subjects in the economy. The particular article may also be used in further scientific researches concerning information relations of public procurement subjects in the economic field. Moreover, the article might be used in the academic process, in lectures and seminars on information and administrative law. Value/originality. The scientific novelty of the article comprises of synthesis of existing normative and doctrinal approaches to understanding information relations of public procurement subjects in the economy; generalization of information concerning public procurement subjects in the economic field; determination of development prospects of administrative and legal regulation of information relations of public procurement subjects in the economic sphere. The authors have articulated development prospects of administrative and legal regulation of information relations of public procurement subjects in the economy, emphasized the necessity of enhancing preventive control in the form of general (analytical) monitoring, particular procurement procedures supervision, and further automation of the procurement process. Moreover, the article focuses on the professionalization of the public procurement sphere through educating qualified personnel to work with modern information systems and technical devices. The authors also support the necessity of continuing the implementation of measures aimed at the legislation improvement, public procurement sphere professionalization, international relations development and proper executions of functions established by the Law of Ukraine “On Public Procurement”.

scholarly journals Progres of the Public Procurement System in Albania and in the European Union

2016 ◽  
Vol 1 (2) ◽  
pp. 72
Author(s):  
Emalita Dobra
Keyword(s):  
European Union ◽  
Public Administration ◽  
Public Procurement ◽  
Public Works ◽  
The European Union ◽  
The Public ◽  
Public Contracts ◽  
Procurement Procedure ◽  
Proper Estimation ◽  
Procurement System

A proper estimation of the value of the public contracts is of major importance of the contracting authority. First, value of contracts govers the regime of rules under which the proceedings will be conducted. Second the decision of the contracting authority concerning the application of specific procurement procedure depends whether the value of contract is below or above specific threshold. For multi year contracts or contracts with renewal option, the contracting Authority must provide clauses for the revision of prices in accordance with published official inflation. In case of goods the contracts through renting or leasing of these, the estimated value of the public contract shall be based on the monthly rent or fee multiplied by the number of months the contract will last. The contracting Authority is responsible for comparing the above mentioned elements with a cost analyses of the goods, services or works. European Union rules provided in Article 9 of the directive 2004/18/EC of the European Parliament and of the council of 31 March 2004 on the coordination of procedures for the award of public works, supply and services and in contain also more detailed rules concerning methods of estimation of contract value which should be applied in specific case. The priciple of the transparency of public procurement requires that all potential contractors have the same chances to compete for contracts being offeres by public administration. (; public contracts, procurement, goods, proceedings contracting Authority, etc. )

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