Striking a Balance Between EU Competition Law and Public Procurement Law: Analysing the CJEU attempt in the Vossloh Laeis case

The present Insight offers an analysis of the judgment of the Court of Justice in the Vossloh Laeis case (judgement of 24 October 2018, case c-124/17, Vossloh Laeis GmbH v Stadwerke München GmbH), which seeks answers to the extent of cooperation required from an economic operator wishing to demonstrate its reliability towards both the investigating and the contracting authorities. Taking into consideration the AG’s opinion and the CJEU findings, this Insight exposes some of the legal obstacles that follow from the interplay between EU competition and public procurement law and the CJEU attempt at harmonizing two otherwise often conflicting policy areas.

Public Policies for Procurement under COVID19

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.

Challenges in public procurement before, during, and after the COVID-19 crisis: Selected theses on a competency-based approach

This paper develops three theses on a competency-based approach during and after the COVID-19 crisis. These theses are based on the following empirical findings: case insights into the procurement of protective gear in Germany, the supplier shortage, which was a problem even before the crisis, and a quantitative view on the extended supply chain challenges in public procurement, including the decreasing number of bidders and an overly narrow view on supply chain partners. A key finding is that while the COVID-19 crisis has uncovered the problems of public procurement, the root causes lie more deeply in public procurement capabilities. As a result, this paper promotes extended public buyer competencies based on a European Framework, evidence-based decision-making in public procurement and the use of digital technologies to improve the security of supplies.

IT Procurement Case Study of the Japanese Government within the Institutional Theory Context

Japanese government has sought to create and implement an IT procurement system that fosters competitive bidding. This study examines 31 IT procurement case studies surrounding the 2016 launch of Japan’s social security and tax number system with which the author was directly involved. It identifies a disjunction between IT procurement as a legal and a social system, wherein the government and vendors acknowledge that some vendors will inevitably be awarded contracts. The Japanese government should thus reconsider its IT procurement system and abandon competitiveness as a goal.

Public procurement and Covid-19 in Portugal: the particular case of the acquisition of institutional publicity related to the pandemic disease

In addition to several other exceptional legal measures adopted in regard to public procurement related to the pandemic of the disease Covid-19, the Government also enforced a specific regime for the acquisition of institutional publicity related or associated to Covid-19. However, this framework (set forth in article 2nd-B of Decree-Law no. 10-A/2020, of March 13, added by Decree-Law no. 20-A/2020, of May 6) is highly problematic and raises several issues, as, under the “cover” of a procurement regime, it is actually a direct public subsidization to the social media market, with a full upfront payment based on grounds of “urgency” that does not seem compatible with the public procurement rules.

Competitive Public Procurement during COVID-19: The Unique Political and Policy Experience of the United States

COVID-19 appeared during one of the most turbulent political environments in U.S. history. This research documents how political polarization during a presidential election year coincided with an incoherent national policy and procurement response to the COVID-19 pandemic, and empirically examines the competitive nature of pandemic-related public procurement contracts across the 50 states based on partisan control of state governments.

Covid-19 – the impetus for public service innovation. Advancing the shift towards social procurement

With the present and future being shaped by the Coronavirus disease and worldwide responses to it, critical insights are essential. The Covid-19 pandemic has profoundly influenced the lives of most people on the plane as well as the global market, some experts believing it has caused the worst economic decline since the Great Depression. The pandemic found States unprepared to face the challenges brought by it, it has exposed the vulnerabilities of individuals, societies and economies. A few months after the sparking of the first wave of Covid-19 it was possible to assess the earliest public intervention and to foresee how the virus is going to impact economic and social systems. Given the significant increase in public expenditure since the beginning of the pandemic, this Article will articulate and explore the role of public procurement in anticipating the risk of market failure, despite the complicated environment. Likewise, focus will be drawn upon the EU soft law instruments designed to respond to economic and public health issues, through the prism of solidarity. The Article will then focus on the analysis of the Italian response to the pandemic through public purchasing techniques.

Direct Award, the New Normal in times of Covid-19

This article outlines the main exceptional and temporary measures adopted in Portugal to address the Covid-19 pandemic crisis.

Public Procurement of Innovation A Cultural Challenge

The promotion of innovation is a key objective of modern public policies promoting sustainable development and public procurement of innovation can be considered as a strategic instrument of such policies as it is clearly expressed by the recent EU Directives on public procurement. The concept and the requirements of public procurement of innovation (PPI) are studied in this paper identifying traditional obstacles to its dissemination and suggesting several initiatives allowing an easier application of this concept compromising legal traditions with innovative rules. Special attention is given to the new Portuguese legal framework transposing 2014 Directives focusing on its new potential but also on shortcomings that should be corrected shortly.

The Impact of Professionalization in Public Procurement – evidence from a case study

The importance of public procurement for achieving value for money in public purchases – thus obtaining important savings in the use of taxpayers’ money and effectiveness in meeting citizen’s demand for public goods of a given quality – is widely recognised, as made clear by the Directive 2014/24 of the European Union and the international legal framework for public procurement at large. But how can these goals be met? Professionalization is a necessary condition and thus represents a key part of the final answer. But what kind of professionalization is really needed? In what environment? With which results? These questions are rarely answered with real life examples. Taking advantage of a questionnaire-based cohort of individuals that have gone through a process of professionalization in an international environment, this paper expands on its challenges and on the importance of professionalization of the persons working in public procurement-related activities as key to an efficient use of public money.