Albert Sánchez Graells

Bio: Albert Sánchez Graells is an academic researcher from University of Bristol. The author has contributed to research in topic(s): Procurement & Competition (economics). The author has an hindex of 5, co-authored 54 publication(s) receiving 180 citation(s).

Public Procurement and the EU Competition Rules

Abstract: Part One Introduction 1 Introduction and Framework for Analysis I. Introduction II. General Approach to the Interrelationship between Competition and Public Procurement Law III. Aim of the Study IV. Structure of the Study and General Overview V. Methodology: An Eclectic and Heuristic Multi-Disciplinary and Functional Approach to EU Law VI. Normative Assumptions VII. Delimitation of the Study: Exclusions and Limitations Part Two Foundations and Principles: The Economic and Legal Basics of Public Procurement and Competition Law 2 An Economic Approach to Public Procurement and Competition I. Introduction II. Types of 'Public Procurement Markets' III. Economic Dimensions of Public Procurement IV. The Role of Public Authorities as Purchasing and Contracting Authorities V. Public Procurement as a Market Failure: Difficulties in Recreating a Competitive Scenario and Competition- Restricting Effects 60 VI. Conclusions to this Chapter 3 Basics of Competition and Public Procurement Regulation I. Introduction II. Principles Common to Competition and Public Procurement Law as Two Sets of Economic Regulation III. The Goal(s) of Competition Law IV. Goals of Public Procurement V. Conclusions to this Chapter: Common Goals of Competition Law and Public Procurement Conclusions to Part Two: Legal and Economic Normative Foundations of a More Competition-Oriented Public Procurement System Part Three General Part: The Building Blocks of a Framework for the Competition Analysis of Public Procurement 4 EU Competition Law and Public Procurement: The Inability of EU Competition Rules to Rein in Anti-Competitive Public Procurement I. Introduction II. The Inability of Rules on the Grant of State Aid and Special or Exclusive Rights to Tackle Anti-Competitive Public Procurement III. The Inapplicability of 'Core' EU Antitrust Rules to Public Procurement: A Jurisprudentially Created Gap in EU Competition Law IV. The Insufficiency of State Action Doctrine to Capture Most of the Anti-Competitive Public Procurement Regulations and Practices V. Preliminary Conclusions: The Insufficiency of Current Competition Institutions and Potential Improvements to Achieve Better Results VI. A Revision of Current Doctrine to Achieve Better Results (1): A More Economic Approach to the Concept of 'Economic Activity' in the Public Procurement Field VII. A Revision of Current Doctrine to Achieve Better Results (2): Setting the Proper Bounds to the State Action Doctrine VIII. Conclusions to this Chapter 5 The Principle of Competition Embedded in the EU Public Procurement Directives I. Introduction II. The Competition Principle Embedded in the pre-2014 EU Public Procurement Directives III. The Principle of Competition Consolidated in Article 18(1) of Directive 2014/24: A Critical Assessment of the Interpretative Difficulties it Creates IV. Implications of the Competition Principle for the Shaping of Public Procurement Rules by Member States: The General Obligation to Develop a Pro-Competitive Public Procurement Framework V. The Principle of Equal Treatment and the Principle of Competition Distinguished VI. Conclusions to this Chapter Part Four Analysis of Competition Distortions Caused by Public Procurement 6 A Critical Assessment of the 2014 EU Public Procurement Directives and the Existing Case Law from a Competition Perspective: Preventing Competitive Distortions by the Public Buyer I. Introduction II. A Competition Appraisal of Potential Distortions Derived from Public Procurement Processes III. Two Examples of Potential Distortions Derived from the Exercise of Public Entities' Market Power IV. Conclusions to this Chapter 7 Complementary Proposals for the Development of a More Competition-Oriented Public Procurement Framework I. Introduction II. Complementary Proposals Aimed at Limiting Publicly Created Restraints of Competition III. Complementary Proposals Aimed at Limiting Privately Created Restraints of Competition IV. Complementary Measures Aimed, in General, at Strengthening the Relationships between Competition and Procurement Authorities V. Conclusions to this Chapter Part V General Conclusions 8 Conclusions: Towards a More Competition-Oriented Procurement System References

Public Procurement and Competition: Some Challenges Arising from Recent Developments in EU Public Procurement Law

Abstract: The relationship between public procurement and competition has recently been receiving an increasing amount of attention, both in academic and policymaking circles. It is becoming common ground that public procurement holds a complex and bidirectional relationship with market competition and that, consequently, a tighter link between public procurement and competition law enforcement needs to be established.This paper explores the recent OECD push for more competition in public procurement and its role as an influential factor in the ongoing reform of EU public procurement rules. Afterwards, it critically assesses three of the main challenges to keeping public procurement precompetitive: (i) the difficult balance in terms of procurement transparency created by the clash between competition and corruption concerns; (ii) the magnification of the undesired (potential) anticompetitive effects of public procurement that centralised procurement may generate, as well as its increasing use as an improper tool of market regulation; and (iii) the possible competitive distortions and the potential advantages resulting from the generalization of eProcurement. The conclusions extract some common patterns derived from the previous analysis and suggest some policy recommendations mainly oriented at boosting oversight and professionalization of procurement.

Are the Procurement Rules a Barrier for Cross-Border Trade within the European Market? A View on Proposals to Lower that Barrier and Spur Growth

Abstract: Public procurement rules were introduced in the European legal system as a device mainly intended to help build an effective internal market where competition is not distorted, in search for economic development. According to the supporting Cecchini Report, increasing cross-border competition for public contracts would generate major economic effects (both static and dynamic). Almost 40 years after, it is relevant to see if EU public procurement rules continue to be a boost for the internal market or, on the contrary, have become a true burden and a significant barrier to cross-border trade as some claim. Given the relevance of public procurement in the Europe 2020 Growth Strategy and the proposal for new procurement Directives sponsored by the European Commission, this issue seems particularly timely.This paper proposes a slightly different approach to the assessment of whether EU public procurement rules are a potential obstacle to cross-border trade -- moving from macroeconomic analysis towards a “better regulation” view of the chances to reduce red tape and simplify procurement processes -- and offers a preliminary appraisal of some of the simplification measures and/or new devices included by the European Commission in the 2011 proposal for new procurement Directives (limiting the analysis to general provisions and, therefore, not covering procurement in the excluded sectors, concessions nor defence and security sensitive procurement).

Impact of public procurement aggregation on competition: risks, rationale and justification for the rules in directive 2014/24

Abstract: This paper assesses the risks, rationale and justification for the rules on centralisation and aggregation of public procurement in Directive 2014/24. The paper explores the justifications advanced for the aggregation of purchasing and the countervailing risks it generates. In both cases, it focuses in economic and administrative aspects. It then proceeds to a summary overview of the new rules for the aggregation of public procurement in Directive 2014/24, and emphasised how the Directive is expressly recognising possibilities that clearly exceed the more modest approach in Directive 2004/18. Moving on, it then focusses on the potential justification for certain activities now permitted by the 2014 rules, and engages in a critical assessment of their competitive impact. The paper briefly highlights the far-reaching and not necessarily positive implications that a maximisation of the centralisation and aggregation possibilities under Directive 2014/24 could have, and proposes that strict competition law enforcement will be necessary to avoid undesired consequences. Some suggestions for further research are provided by way of conclusions.

Centralisation of procurement and supply chain management in the English NHS: some governance and compliance challenges

Abstract: This paper provides a critical analysis of the new operating model for NHS procurement that is being implemented in 2018/2019 (the NOM). The government expects NOM to generate significant savings through centralised procurement and strategic supply chain management, which would then be dedicated to frontline NHS healthcare services through newly devised ‘sustainability and transformation plans’ (STPs). The paper stresses that the NOM rests on a complex network of contracts resulting in a layer of contractualised governance that obscures its architecture and decision-making processes. It maps the changes that the NOM introduces in the operation and governance of the NHS supply chain and identifies key challenges in ensuring that the NOM is subjected to adequate oversight and accountability mechanisms, in particular from the perspective of public procurement and competition law. The paper advocates for the location of all NOM relationships on the NHS Business Services Authority, especially to facilitate judicial review.

Justifying the application of the theory of efficient breach specifically within the context of commercial contracting.

Abstract: This thesis provides a functional, and justifiable application of the theory of the efficient breach of contract within the commercial context. Limiting the theory’s application in this way is the primary original contribution. This is because the theory of efficient breach has not been explicitly applied solely to the commercial setting previously. This is legitimate because the underlying intention behind commercial contracting is profit generation. As such, maximising the wealth which flows from commercial contracts will be the focus of the parties involved. An additional original contribution is that this thesis represents the first major discussion of efficient breach which applies the theory to English law. This thesis also makes additional contributions. A definition of “commercial” in a contract law context is established to frame the discussion that is to follow. It is then outlined that the fundamental structure of English contract law will remain the same whether a dispute concerns a commercial, or a non-commercial contract. However, there is a difference in the approach of the court where rights are pursued for commercial, profit driven reasons in contrast with rights that are of a personal nature. Next, it is set out that in English law, promise is not the basis of contract. As such, the efficient breach of commercial contracts cannot be discounted based on issues of morality which are linked to promise breaking. Numerous other criticisms which have been directed at efficient breach are also discounted. Ultimately, a legitimate formulation of the efficient breach of commercial contracts is outlined. This iteration is permissive, rather than mandatory. It provides efficient optionality, meaning that where a party has the opportunity to breach efficiently, it will not necessarily take place. However, should a party choose to breach, they will be justified. This is a departure from more prescriptive approaches.

The implementation of BIM within the public procurement: A model-based approach for the construction industry

Abstract: Recently more and more Public Sectors have been paying close attention to save cost and, at the same time, improve efficiency. Usually, the Construction Industry has a relevant annual turnover, which represents an important part of the GDP for most of the EU countries and concerns in a large part the Public Sector. Thus, some Public Clients, such as UK, are adopting new strategies in order to improve the current situation. One of these strategies is Building Information Modelling (BIM), which forces all the parties involved in the process to adopt a collaborative approach reducing inefficiencies. Moreover, also the European Parliament is going to encourage the BIM adoption to ‘modernise the procurement process and ensure greater efficiencies’. The EU Directive will be an important push to reform the EU Members’ Public Construction Procurement. The aim of this M. Sc. Thesis is to analyse the possible implementation of BIM within the Public Procurement, especially how Model Checking can be applied within Tendering to verify the compliance between the Client’s requirements and the bid’s contents. The first part presents both the most widespread Public Procurement Methods, such as Design-Bid-Build (DBB), Design-Build (DB), Construction Management (CM), Design-Build-Operate (DBO) and Design-Build-Finance-Operate (DBFO), as well as innovative kinds of Procurement Procedures, such as Integrated Project Delivery (IPD), Project Alliancing (PA), Cost Led Procurement (CLP), Integrated Project Insurance (IPI), Two Stage Open Book and Early BIM Partnering (EBP). A paragraph is dedicated to the drivers and the barriers of e-Procurement, which should be part of the Public Procurement strategy. Later, the main issues related to BIM are shown, such as current BIM Authorised Uses and Permitted Purposes, Interoperability and OpenBIM, along with BIM implementation in Public Sector of several countries (Singapore, USA, Finland, UK, Norway, Denmark, Netherlands, South Korea, Hong Kong, Australia, New Zealand, Iceland, Estonia, Sweden, Germany, China, Ireland, Taiwan and Italy) and the relation between e-Procurement and BIM. Additionally, the principal possibilities and challenges dealing with BIM adoption are presented. The following chapter is dedicated to the investigation of the possible BIM implementation in Tendering. Even if integrated procedures, such as IPD, seem to be the most suitable with BIM, a discussion of the BIM role in DBB and DB or Design Competitions is carried out, showing the main Client’s requirements, benefits for Bidders and Clients, together with limitations and possibilities. Thereafter, a paragraph illustrates Model Checking in the evaluation of design proposals. First, a short description of the main commercial software, which can support BIM-based tendering (such as Solibri Model Checker (SMC), EDM Model Server, dRofus, Affinity, dProfiler, Autodesk NavisWorks, Tekla BIMsight, Bentley Projectwise Navigator, Riuska, Autodesk Ecotect, EasyBIM, Vico Cost Planner and Mitchell Brandtman) is provided. Later, a list of the most common operations, which nowadays

Reconciling effectiveness and fairness in the EU leniency policy

Abstract: ................................................................................................................................ 2 TABLE OF CONTENTS ................................................................................................................ 3 ACKNOWLEDGMENTS .............................................................................................................. 9 LIST OF ABBREVIATIONS ......................................................................................................... 10 CHAPTER 1: INTRODUCTION ................................................................................................... 12 Background and Context ..................................................................................................... 12 I. Problem and Aim of the Thesis ........................................................................................... 13 II. Key Concepts and their Application in this Thesis ............................................................. 16 III. Effectiveness and Fairness ............................................................................................. 17 A. The notion of effectiveness ..................................................................................... 17 1. Notions of fairness ................................................................................................... 18 2. Reconciling Effectiveness and Fairness in Competition Law Enforcement .................. 18 B. Theories of punishment .......................................................................................... 21 1. a. Deterrence ......................................................................................................... 21 b. Retribution ......................................................................................................... 25 c. A mixed theory of punishment ......................................................................... 27 i. Approximation of the theories .................................................................... 28 ii. Application in cartel enforcement ............................................................... 29 Summary .................................................................................................................. 30 2. Application of the Key Notions throughout the Thesis ................................................. 31 C. Effectiveness ............................................................................................................ 31 1. Fairness .................................................................................................................... 32 2. Effectiveness through fairness ................................................................................ 33 3. Methodology ....................................................................................................................... 35 IV. Contribution and Scope ....................................................................................................... 36 V. Structure .............................................................................................................................. 37 VI. CHAPTER 2: EFFECTIVENESS AND FAIRNESS IN EU CARTEL ENFORCEMENT ............................ 40 Introduction ......................................................................................................................... 40 I. Legitimacy in EU cartel enforcement .................................................................................. 41 II.

The long shadow of public policy; Barriers to a value-based approach in healthcare procurement

Abstract: Procurement in the UKs National Health Service (NHS) is facing its most significant financial challenge Despite the sheer scale and complexities of the public healthcare sector, the Government's solutions are all too often packaged as "collaborate more", "standardise products" and "leverage spend" Unfortunately, these over simplistic solutions take a myopic view of market drivers, conflate spend with potential savings and fail to deliver value Many contracts have already been commercially optimised yet the funding crisis continues to deepen New value-based procurement approaches are needed to drive longer-term innovation and cost reduction and to move debates from efficiencies to embrace effectiveness in integrated supply chains In this research, we adopt the resource-based view (RBV) as a lens to explore the extent to which NHS resources support the strategic adoption of value-based approaches An empirical case study on a regional cluster of six NHS Trusts in England, confirms the dominance of narrow price-based approaches that create barriers to moving towards longer-term, valuebased procurement The antecedent roots of price-based approaches are unpicked through a hermeneutic analysis of recent Government commissioned reports to show how these have set the tone, culture and priorities for healthcare procurement in the UK The analysis provides explanatory power to the case study by illustrating how Government reports have led to, and legitimised the dominance of price-based approaches and caused relational and resource-based barriers to adopting value-based procurement, despite stakeholder enthusiasm The findings provide unique insights into why public procurement has struggled to reach beyond its traditional cost orientated scope We contribute to an extended consideration of the RBV in public organisations through identifying the role of the policy environment in determining and legitimatising an organisation's strategic direction