[What is a cost-benefit analysis?].

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.

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

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

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

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

The European Union (EU) 2020 Strategy aims at forming the conditions for smart, sustainable and inclusive growth targets. Assessment of the EU countries’ situation is of vital importance in attaining the EU 2020 Strategy. This paper presents an impartial evaluation of the performance of 27 EU member countries in terms of each EU 2020 Strategy. For the basis of the evaluation, we propose an effective and easily practicable measure for ranking and monitoring the countries according to their performance by using the VIKOR and the TOPSIS methods, multi-criteria decision making (MCDM) methods, which allows for the integration of the 22 indicators, and be capable of considering such a broad spectrum of criteria including various economic, financial, demographic, educational and innovational. Our study provides a comparative analysis of the above-two methods. The contribution of the study to the literature is that these methods can be applied for assessing countries in terms of the EU 2020 Strategy which have the multi–dimensionality targets. The results point out new EU member countries such as Slovenia and Romania have attained higher scores than many of the 15 EU countries.

Assessing Euro 2020 Strategy Using Multi-criteria Decision Making Methods: VIKOR and TOPSIS

This paper offers some reflections on the position advanced by the EFTA Court that a simple breach of EU public procurement law is in itself sufficient to trigger the contracting authority’s liability in damages (Fosen-Linjen). I argue that this position is flawed because it deviates from previous case law of the Court of Justice of the European Union (Spijker), and because it is based on interpretive errors and internal contradictions in the EFTA Court’s reasoning. In criticising the EFTA Court’s Judgment from the perspective of the harmonisation of EU law, I rely on the better view of the UK Supreme Court. The latter held that the liability of a contracting authority for the breach of EU public procurement rules under the remedies directive is assimilated to that of the State under the general EU law doctrine of State liability and thus requires a sufficiently serious breach (Nuclear Decommissioning Authority). My reflections are based on the need to keep procurement damages litigation constrained to its main function and limited to justified cases. I use this normative position to argue against the expansion of private enforcement of EU public procurement law as a correction of the shortcomings in its public enforcement.

https://journals.lub.lu.se/njel/article/download/18670/16932

You Can’t be Serious: Critical Reflections on the Liability Threshold for Damages Claims for Breach of EU Public Procurement Law After the EFTA Court’s Fosen-Linjen Opinion

La protección jurídica de los precios o cotizaciones de un mercado

Here 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.

/pdf/assessing-the-public-administration-s-intention-in-eu-4h063teph9.pdf

Assessing the public administration's intention in EU economic law: chasing ghosts or dressing windows?

This revised foreword to a special issue of e-competitions explores the EU competition law implications of public procurement activities. More specifically, it tries to highlight how bid rigging seems pervasive in the public procurement setting despite increased enforcement efforts (a situation that should come as no surprise to economists) (Part I), how there are very significant limitations and almost absolute difficulties in curving the market behavior of power public buyers (Part II) and how other issues, such as the treatment of mergers or State aid in public procurement markets may require more refined analyses than those applied so far (Part III). References to EU and national case law are used to color the depiction of the current situation in the enforcement of EU competition law in the public procurement setting, but the selection of cases or jurisdictions considered does not attempt to be exhaustive. This second edition is updated to the content of Directive 2014/24 on public procurement and includes some recent cases in selected jurisdictions.

Albert Sánchez Graells

Papers

You Can’t be Serious: Critical Reflections on the Liability Threshold for Damages Claims for Breach of EU Public Procurement Law After the EFTA Court’s Fosen-Linjen Opinion

La protección jurídica de los precios o cotizaciones de un mercado

Assessing the public administration's intention in EU economic law: chasing ghosts or dressing windows?

Public Procurement: A 2014 Updated Overview of EU and National Case Law