Albert Sánchez Graells

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

Economic analysis of law, or economically-informed legal research

Abstract: In this chapter, I reflect on the topic of ‘lay decision-making in the legal system’ from the perspective of the economic analysis of law. Or, in other words, I look at the ways in which economic theory and insight can help resolve issues of legal decision-making by providing both a methodology for the analysis of the legal reality to which the decision relates (that is, contributing to the decision-making process by structuring it and helping us focus on relevant factors), and a normative framework and workable criteria to favour some alternatives over others (i.e. providing a decision-making benchmark). Broadly, then, I am concerned with the question of how economic analysis can help us improve legal decision-making. After this broad overview, and in order to stress the link with the rest of the contributions to this book, I briefly focus on the potential application of some of these theories to research that aims to assess specific issues of lay decision-making in the legal system. Some final thoughts stress the importance of carrying out economically-informed legal research more generally.

Revisiting the concept of undertaking from a public procurement law perspective: a discussion on EasyPay and finance engineering

Abstract: In EasyPay and Finance Engineering (C-185/14), the Court of Justice of the European Union (CJEU) has revisited the concept of undertaking for the purposes of the application of EU competition law. It has clarified the test applicable to economic agents engaging in ‘mixed’ economic and non-economic activities. The EasyPay test determines that, in order not to be qualified as “economic” because of its links with another activity that fulfils an exclusively social function based on the principle of solidarity and entirely non-profit making, an activity must, by its nature, its aims and the rules to which it is subject, be inseparably connected to it. In the paper, we discuss how the CJEU has arguably given a stricter interpretation and adopted a less lenient approach to the severability or separation of activities than in previous cases like FENIN, Selex or Compass-Datenbank. In our view, this interpretation is anchored on a functional analysis of the concept of undertaking, and it is a welcome development that will have far reaching implications. Beyond that general discussion, the paper focuses on the potential implications of the EasyPay test in the area of public procurement and, in particular, for the activities of central purchasing bodies. We submit that EasyPay facilitates a revision of the current position regarding the direct applicability of EU competition law to entities carrying out public procurement activities and, in particular, central purchasing bodies. We also submit that this is highly desirable because it grants legal certainty to economic operators when dealing with a central purchasing body, to the effect that the purchasing activities will be under competition law and the derived constrains on the market behaviour of large public buyers that may abuse of their buyer power.

Truly Competitive Public Procurement as a Europe 2020 Lever: What Role for the Principle of Competition in Moderating Horizontal Policies?

Abstract: Public procurement is a pillar in the Europe 2020 strategy and one of the core policies derived from the Single Market Acts I and II. Majoritarian views advocate for an interventionist approach and instrumental utilization of procurement for the promotion of horizontal policies seen as deeply embedded in the Europe 2020 strategy. Conversely, public procurement can only make such a contribution by promoting the maximum degree of competition and being open to market-led innovation, instead of trying to mandate or ‘drive’ such innovation or ‘greening’ of procurement. This article takes the view that the principle of competition is the main tool in the post-2014 procurement toolkit and the moderating factor in the implementation of any horizontal (green, social, innovation) policies under the new rules. That is, that competition remains the main consideration in public procurement and that the pursuit any horizontal policies, including those aimed at delivering the Europe 2020 strategy, need to respect the requirements of undistorted competitive tendering. In other words, the article argues that competition considerations should take precedence over national non-economic policies whose effects impair or jeopardize the goals set at EU level. To substantiate that claim, the article focuses on the interpretation of Article 18(1) of Directive 2014/24, which consolidates the principle of competition, and proposes a strict proportionality test applicable to the promotion of horizontal procurement policies where such ‘strategic’ or ‘smart’ use of public procurement can generate market distortions.

Public Procurement and ‘Core’ Human Rights: A Sketch of the EU Legal Framework

Abstract: The 2014 EU rules on public procurement arguably create regulatory space for the implementation of ‘core’ human rights oriented public procurement policies. In this chapter, I discuss the main constraints for the inclusion of ‘core’ human rights-related considerations in the procurement process through the following instruments: exclusion grounds; use of labels; award criteria and award constraints; rejection of abnormally-low tenders; and contract performance requirements. I offer a sceptical view of the effectiveness of any of these mechanisms due to policy fuzziness and significant resource constraints. I further query the desirability of ‘core’ human rights oriented procurement due to the implicit trade-offs it creates against the general effectiveness of the procurement function.

Public procurement: An overview of EU and national case law

Abstract: Both public procurement and competition law constitute particularly relevant fields of public policy and legislation in the EU. Their relevance throughout the process of construction of the…

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

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

Abstract: 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.