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Journal ArticleDOI

Exclusion, Qualitative Selection and Short-listing

19 Dec 2014-Social Science Research Network (DJOF Publishing)-pp 97-129
TL;DR: In this paper, the authors provide some initial thoughts on the new rules on exclusion, qualitative selection and short-listing in the new public sector procurement directive bound to repeal Directive 2004/18.
Abstract: This paper provides some initial thoughts on the new rules on exclusion, qualitative selection and short-listing in the new public sector procurement directive bound to repeal Directive 2004/18. The assessment is based on a comparison with the equivalent rules under the current Directive, as well as on the problems and implementation difficulties that the author envisages.
Citations
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DissertationDOI
01 Jan 2018
TL;DR: In this article, the authors discuss the ability of Public-Private Partnerships (hereinafter PPPs) to generate socio-environmental benefits in the ongoing process of boosting growth within the European Union.
Abstract: This thesis discusses the ability of Public-Private Partnerships (hereinafter PPPs) to generate socio-environmental benefits .In the ongoing process of boosting growth within the European Union, it is crucial to acknowledge that PPPs could be used as effective public delivery means of both economic and socio-environmental gains. This study recognises PPPs as key elements, not only for the functioning of the Internal Market, but also for the promotion of sustainable development goals. Overall, this thesis argues that PPPs can be considered as viable alternatives in the delivery of sustainable public services and/or infrastructure. Especially in the light of the current European contingencies, the ability of PPPs to generate also socio-environmental benefits represents another important reason why PPPs should be broadly exploited throughout the European Union.

24 citations

Journal ArticleDOI
TL;DR: In this paper, the authors take issue with the shelving of the revision process and critically assess whether the Remedies Directive is still fit for purpose, and suggest that the European Commission should relaunch the review process as a matter of high priority.
Abstract: EU public procurement law relies on the specific enforcement mechanisms of the Remedies Directive, which sets out EU requirements of administrative oversight and judicial protection for public contracts. Recent developments in the case law of the CJEU and the substantive reform resulting from the 2014 Public Procurement Package may have created gaps in the Remedies Directive, which led the European Commission to publicly consult on its revision in 2015. One year after, the outcome of the consultation has not been published, but such revision now seems to have been shelved. This chapter takes issue with the shelving of the revision process and critically assesses whether the Remedies Directive is still fit for purpose. The chapter focuses on selected issues, such as the interplay between the Remedies Directive and the Charter of Fundamental Rights, and with the general administrative law of the Member States. It also assesses the difficulties of applying the Remedies Directive ‘as is’ to some of the new rules of the 2014 Public Procurement Package, which creates uncertainty as to its scope of application, and gives rise to particular challenges for the review of exclusion decisions involving the exercise of discretion. The chapter also raises some issues concerning the difficulties derived from the lack of coordination of different remedies available under the Remedies Directive and briefly considers the need to take the development of ADR mechanisms into account. Overall, the chapter concludes that there are important areas where the Remedies Directive requires a revision, and submits that the European Commission should relaunch the review process as a matter of high priority.

3 citations

Journal ArticleDOI
TL;DR: The foundational rationale for system-based procurement procedures and associated decision-making is revisited for its potential for finding a deterministic approach to balancing the legal requirements, both system- and process-based.
Abstract: South Africa's public procurement system is accorded constitutional status, establishing fundamental requirements for the operation of the system. The application of these constitutional system requirements and their interpretation in the judicial adjudication of procurement cases have highlighted the tension between the administrative, or process-centric, legal requirements and the system-centric nature of procurement procedures. The importance of a deterministic approach for procurement decision-making can be considered from two angles – the certainty of the procurer in the conformity of its own conduct and external certainty to diminish the risk of unnecessary challenge. This article revisits the foundational rationale for system-based procurement procedures and associated decision-making for its potential for finding a deterministic approach to balancing the legal requirements, both system- and process-based. These principles are tested against a selection of adjudicated outcomes to formulate practical recommendations for practitioners aimed at deterministic decision-making in the procurement process.

1 citations

References
More filters
DissertationDOI
01 Jan 2018
TL;DR: In this article, the authors discuss the ability of Public-Private Partnerships (hereinafter PPPs) to generate socio-environmental benefits in the ongoing process of boosting growth within the European Union.
Abstract: This thesis discusses the ability of Public-Private Partnerships (hereinafter PPPs) to generate socio-environmental benefits .In the ongoing process of boosting growth within the European Union, it is crucial to acknowledge that PPPs could be used as effective public delivery means of both economic and socio-environmental gains. This study recognises PPPs as key elements, not only for the functioning of the Internal Market, but also for the promotion of sustainable development goals. Overall, this thesis argues that PPPs can be considered as viable alternatives in the delivery of sustainable public services and/or infrastructure. Especially in the light of the current European contingencies, the ability of PPPs to generate also socio-environmental benefits represents another important reason why PPPs should be broadly exploited throughout the European Union.

24 citations

Journal ArticleDOI
TL;DR: In this paper, the authors take issue with the shelving of the revision process and critically assess whether the Remedies Directive is still fit for purpose, and suggest that the European Commission should relaunch the review process as a matter of high priority.
Abstract: EU public procurement law relies on the specific enforcement mechanisms of the Remedies Directive, which sets out EU requirements of administrative oversight and judicial protection for public contracts. Recent developments in the case law of the CJEU and the substantive reform resulting from the 2014 Public Procurement Package may have created gaps in the Remedies Directive, which led the European Commission to publicly consult on its revision in 2015. One year after, the outcome of the consultation has not been published, but such revision now seems to have been shelved. This chapter takes issue with the shelving of the revision process and critically assesses whether the Remedies Directive is still fit for purpose. The chapter focuses on selected issues, such as the interplay between the Remedies Directive and the Charter of Fundamental Rights, and with the general administrative law of the Member States. It also assesses the difficulties of applying the Remedies Directive ‘as is’ to some of the new rules of the 2014 Public Procurement Package, which creates uncertainty as to its scope of application, and gives rise to particular challenges for the review of exclusion decisions involving the exercise of discretion. The chapter also raises some issues concerning the difficulties derived from the lack of coordination of different remedies available under the Remedies Directive and briefly considers the need to take the development of ADR mechanisms into account. Overall, the chapter concludes that there are important areas where the Remedies Directive requires a revision, and submits that the European Commission should relaunch the review process as a matter of high priority.

3 citations

Journal ArticleDOI
TL;DR: The foundational rationale for system-based procurement procedures and associated decision-making is revisited for its potential for finding a deterministic approach to balancing the legal requirements, both system- and process-based.
Abstract: South Africa's public procurement system is accorded constitutional status, establishing fundamental requirements for the operation of the system. The application of these constitutional system requirements and their interpretation in the judicial adjudication of procurement cases have highlighted the tension between the administrative, or process-centric, legal requirements and the system-centric nature of procurement procedures. The importance of a deterministic approach for procurement decision-making can be considered from two angles – the certainty of the procurer in the conformity of its own conduct and external certainty to diminish the risk of unnecessary challenge. This article revisits the foundational rationale for system-based procurement procedures and associated decision-making for its potential for finding a deterministic approach to balancing the legal requirements, both system- and process-based. These principles are tested against a selection of adjudicated outcomes to formulate practical recommendations for practitioners aimed at deterministic decision-making in the procurement process.

1 citations