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European Public Procurement: Commentary on Directive 2014/24/EU [Kietas viršelis]

  • Formatas: Hardback, 1040 pages, aukštis x plotis: 244x169 mm
  • Serija: Elgar Commentaries in European Law series
  • Išleidimo metai: 26-Oct-2021
  • Leidėjas: Edward Elgar Publishing Ltd
  • ISBN-10: 1789900670
  • ISBN-13: 9781789900675
Kitos knygos pagal šią temą:
  • Formatas: Hardback, 1040 pages, aukštis x plotis: 244x169 mm
  • Serija: Elgar Commentaries in European Law series
  • Išleidimo metai: 26-Oct-2021
  • Leidėjas: Edward Elgar Publishing Ltd
  • ISBN-10: 1789900670
  • ISBN-13: 9781789900675
Kitos knygos pagal šią temą:
This detailed Commentary provides an authoritative interpretation of each provision in the main EU Directive on public procurement - Directive 2014/24/EU, and is rich in its critical analysis of the provisions of the 2014 Directive and the case-law. The Commentary also highlights the application problems and interpretative issues being raised in EU Member States, which in due time will make their way up to the CJEU or even require further legislative interventions.





Key features include:









Updated to include the most significant CJEU case law as of end-2020 Analysis that is informed by the practical issues arising across the EU Member States, as well as in the UK Written by a diverse pool of specialists in each of the aspects of the Directive upon which they comment, with the Commentary underpinned by their collective knowledge of public procurement law in the old 28 EU Member States.





Providing a practice-oriented analysis that allows for a problem solving approach, European Public Procurement will be particularly relevant to practising lawyers including within the civil services in all EU jurisdictions and the UK. The depth of analysis offered in the Commentary will also be of great benefit to academics and postgraduate students with an interest in public procurement and, more generally, public law, administrative law and public administration.

Recenzijos

On the one hand, the book is very easy to navigate. It serves as a good starting point for those seeking to gain a quick understanding of the Directives provisions, as the articles are addressed in a clear and structured manner, and references are made to both the ECJs case law as of 2020, further literature, and some developments in the national case law mainly from the contributors national jurisdictions. On the other hand, the commentary goes far beyond merely describing and categorizing the Directives provisions. Instead, the authors engage in a critical analysis of the articles and place them in a broader context. They highlight issues of application and interpretation that are inherent in the Directive, thereby also spurring further academic and policy discussions. -- Dagne Sabockis, Common Market Law Review This book is an essential companion to the directive. Bringing together a brilliant team of experts on EU public procurement law, this commentary is rich with perspective on the directive, what brought the EU to construct its language as it has, and what to make of the rules and the policy thinking behind them. The book is a benefit to those seeking to fully understand the EUs policy and practice where public procurement is concerned. This is a striking, substantial contribution to scholarship where procurement law, beyond simply EU procurement law, is concerned. -- Christopher L Atkinson, Public Organization Review The editors are leaders in the field of public procurement law and have assembled an unrivalled set of authors from across Europe to provide an authoritative commentary of the crucial mother of all procurement regulation Public Sector Procurement Directive 2014/24/EU. Here you will quickly find all there is to know about the Directives Articles 1 to 94. There are hardly any alternatives to this useful work and this commentary might well achieve the same importance for Directive 2014/24/EU as the Palandt has for German civil law. Procurement lawyers might come to say: quod non est in Caranta/Sanchez-Graells., non est in mundo. -- Martin Trybus, University of Birmingham, UK and Member of the Procurement Review Board of the European Space Agency, France 'This Commentary is one of the most valuable additions to the public procurement literature for years. It combines the advantages of a legal commentary of the continental European tradition (comprehensiveness, structure, depth, etc.) with comparative perspectives, cutting-edge research, and the necessary contextualization, to understand the interactions between the Directive and the complex national systems of administrative and public law. The outstanding editors as well as the 36 contributors from 18 European countries deserve much praise for this important book!' -- Martin Burgi, Ludwig Maximilian University of Munich, Germany

List of contributors xxxi
Preface xxxiv
List of abbreviations xxxvi
Table of cases xxviii
Table of legislation xlv
Article 1 Subject-Matter And Scope
A Introduction
B What Is Procurement? Elements For A Definition
C Public Contract
D Acquisition
E For Pecuniary Interest
F The Residual Freedom Of The Member States
Article 2 Definitions
A General
B Covered Procuring Entities
C Concept And Taxonomy Of Public Contracts
D Terminology For Undertakings Involved In Different Stages Or Types Of Procurement Procedures
E Terms Of General Use In The 2014 Directive
Article 3 Mixed Procurement
A Introduction
B Substantive Scope
C Mixed Contracts Fully Covered By The 2014 Directive
D Contracts Which Have As Their Subject-Matter Procurement Covered As Well As Procurement Not Covered By The Directive
E Mixed Contracts Containing Elements Of Concessions
F Mixed Contracts Containing Parts Covered By Article 346 TFEU Or The Defence Procurement Directive
G Mixed Contracts Containing Parts Covered By Both The 2014 Directive And The 2014 Utilities Directive
H Mixed Contracts Composed Of The Different Parts That Are Not Objectively Separable
Article 4 Threshold Amounts
A Introduction
B Substantive Scope
C Revision Of The Thresholds
D Public Contracts Outside The Scope Of The Directive
Article 5 Methods For Calculating The Estimated Value Of Procurement
A Introduction
B Estimated Value Of The Contract
C Separate Operational Units: Where Has The Concept Come From?
D Separate Operational Units And Anti-Splitting Rule
E Objective Reasons For The Classification As A Separate Operational Unit
1 Separate Budget
2 Independent Procurement Procedure, Decision-Making Powers And Mandate To Conclude Contracts
3 Additional Criteria To Be Taken Into Account
a Other Units With Similar Purchases
b Obligation To Use Centralised Procurement?
F The Choice Of The Method Used To Calculate The Estimated Value Of A Procurement
G The Timing Of The Calculation Of The Estimated Value Of A Procurement
H Calculation Of Estimated Value Of Procurement In Different Types Of Procedure
I Awarding A Contract In The Form Of Separate Lots
J Specific Public Supply And Services Contracts
Article 6 Revision Of The Thresholds And Of The List Of Central Government Authorities
A Introduction
B Methods For Revision Of The EU Procurement Thresholds
C Revision Of The List Of Central Government Authorities
Article 7 Contracts In The Water, Energy, Transport And Postal Services Sectors
A Introduction
B The 2014 Utilities Directive
C General Exemption
D Parallel Exemption
E Specific Exemption: Postal Services
F Concluding Remarks
Article 8 Specific Exclusions In The Field Of Electronic Communications
A General
B Rationale
C Scope
Article 9 Public Contracts Awarded And Design Contests Organised Pursuant To International Rules
A General
B Scope
C Procurement Procedures Established By International Agreements Between A Member State And One Or More Third Countries Or International Organisations
D Procurement Procedures Established By International Organisations Or By An International Financing Institution
1 Full Financing
2 Majority Financing
E Procurements With Defence Or Security Aspects Which Are Awarded Or Organised Pursuantto International Rules
Article 10 Specific Exclusions For Service Contracts
A Overview
B History
C Scope Of Specific Exclusions
1 Acquisitions or rental of immovable property or rights thereon
2 Acquisition, development, production or co-production of programme material
3 Arbitration and conciliation services
4 Legal services
a Legal and procedural representation services provided by lawyers
b Certification and authentication services provided by notaries
i Legal services provided by trustees or appointed guardians or specifically designated persons
c Legal services connected with state authority
5 Financial services
6 Loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments
7 Employment contracts
8 Civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations
9 Public passenger transport services by rail or metro
10 Political campaign services covered
Article 11 Service Contracts Awarded On The Basis Of An Exclusive Right
A Introduction
B Background
C Scope: Public Service Contracts Concluded With A Contracting Authority
D Exclusive Right
E Compatibility With EU Law
F Public-Public Cooperation: Exclusive Rights And Other Exemptions
G Final Remarks
Article 12 Public Contracts Between Entities Within The Public Sector
A Introduction
B General Remarks
C In-House Procurement And The Notion Of Public Contract
D Individual Vertical Top-Down Cooperation
E Vertical Bottom-Up And Horizontal Cooperation
F Joint Vertical Top-Down Cooperation
G The Non-Institutionalised Exemption
H The Calculation Of The Activities Criterion
Article 13 Contracts Subsidised By Contracting Authorities
A Contracts Subsidised By Contracting Authorities
1 Scope of the provision
B Private Procurement
C The Notion Of 'Subsidising'
D Subsidising Directly Related To The Executed Project
E Competence
F Expressly Indicated Categories Of Building Work Or The Services Related Thereto
G The 2014 Utilities Directive
Article 14 Research And Development Services
A Introduction
B Services Excluded And State Aid Issues
C Implementation
Article 15 Defence And Security
A Article 15.1 Public Contracts Within The Scope Of Defence Procurement Directive
B Article 15.2 Essential Security Interests Exclusion
C Article 15.3 Secrecy And Security Measures Exclusions
Article 16 Mixed Procurement Involving Defence Or Security
A Introduction
B Rules Applicable To Mixed Procurements
Article 17 Procurement Involving Defence Or Security Aspects Pursuant To International Rules
A Article 17(1): General Principles
B Article 17(1)(A): International Agreement Or Arrangement With Third Countries
C Article 17(1)(B): Stationing Of Troops
D Article 17(1)(C): International Organisations
E Article 17(2): Contracts Financed By An International Organisation Or Institution
Article 18 Public Procurement Principles
A General
B The Principle Of Equal Treatment
C Principle Of Transparency
D Principle Of Proportionality
E A Principle Of Competition?
F A Principle Of Sustainability?
G Scope And Binding Force Of Article 18(2)
1 Appropriate Measures
2 Applicable Obligations
H Article 18(2): A General Principle Of Public Procurement Law?
Article 19 Economic Operators
A Introduction
B Free Movement And Staff To Be Responsible For The Performance Of The Contract In Question
C Groups Of Economic Operators
Article 20 Reserved Contracts
A Introduction
B The Requirements
C Transposition
Article 21 Confidentiality
A General
B Confidential Information Of The Economic Operators
C Competing Disclosure Obligations
D Confidentiality Waivers In Procedures Involving Negotiations
E Competing Obligations Under Access To Information Laws
F Broader Measures Imposed On Economic Operators To Ensure Information Confidentiality
Article 22 Rules Applicable To Communication
A Introduction To The Implementation Of Mandatory E-Procurement In The EU Member States
B First Subparagraph Of Article 22(1): General Principles Of E-Procurement
C Second To Fifth Subparagraphs Of Article 22(1): Exceptions To The Mandatory E-Procurement
D Article 22(2)
E Article 22(3)
F Article 22(4)
G Article 22(5)
H Article 22(6)
I Article 22(7)
J Malfunctioning Of It
Article 23 Nomenclatures
A What Is The CPV? Objectives And Aim; Functions And Benefits
B Background And The Current Legal Framework
C Structure Of The CPV And The Assignation Of Codes
D Overall Assessment Of The System And Conclusions
Article 24 Conflicts Of Interest
A Context
B The Concept Of Conflicts Of Interest
C Remedies
D Final Considerations
Article 25 Conditions Relating To The GPA And Other International Agreements
A Introduction: The Gateway To The European Union And The Power Of 27
B Legal Foundations For EU Power To Enter International Agreements On Procurement With Third Countries
C Eligibility Criteria
D The Obligation To 'Accord Treatment No Less Favourable'
E Final Remarks
Article 26 Choice Of Procedures
A Introduction
1 Importance Of Procurement Procedures
2 Content And Systematic Relevance Of Article 26
B Choice Between Six Pre-Defined Procedures - Article 26(1), (2) And (3)
1 Standard Procedures: Open Procedure And Restricted Procedure
2 Specific Procedures: Competitive Procedure With Negotiation, Competitive Dialogue, Innovation Partnership And Negotiated Procedure
C Specific Requirements For The Competitive Procedure With Negotiation And The Competitive Dialogue - Article 26(4)
1 Adaptation ground - Article 26(4)(a)(i)
2 Design or innovation ground - Article 26(4)(a)(ii)
3 Negotiations ground - Article 26(4)(a)(iii)
4 Technical specifications ground - Article 26(4)(a)(iv)
5 Irregularity or unacceptability ground - Article 26(4)(b)
D Regular Call For Competition - Article 26(5)
E Exceptional Character Of The Negotiated Procedure Without Prior Publication Of A Call For Competition - Article 26(6)
Article 27 Open Procedure
A Introduction
B Single-Stage And Open Structure - Article 27(1)(1) And (3)
C Minimum Time Limits - Article 27(1)(2) And Article 27(2) TO (4)
1 Standard minimum time limit - Article 27(1)(2)
2 Fast track - Article 27(2)
3 State of urgency - Article 27(3)
4 Electronic tenders - Article 27(4)
Article 28 Restricted Procedure
A Introduction
B First Stage: Submission Of Requests To Participate - Article 28(1)
C Second Stage: Submission Of Tenders - Article 28(2)
D General Fast Track - Article 28(3)
E Specific Fast-Track For Sub-Central Contracting Authorities - Article 28(4)
F Electronic Tenders - Article 28(5)
G State Of Urgency - Article 28(6)
H Overview: Time Limits
Article 29 Competitive Procedure With Negotiation
A Introduction
B Call For Competition
C Request to Participate
D Initial Tender
E Final Tender
Article 30 Competitive Dialogue
A General
B Grounds For Use
C Structure Of The Procedure
1 Publication of notice, etc.
2 Dialogue stage
3 Tender phase
4 Award and negotiations with the preferred tenderer
D Other Issues
Article 31 Innovation Partnership
A Background
B The Innovation Partnership Procedure - An Overview
C Grounds For Use
D Procedural Rules
1 Selection phase
2 Mandatory negotiations
3 Confidentiality
4 Award criteria
E Innovation And Subsequent Acquisition
1 Successive Phases: Article 31(2)
2 Intermediate Targets
F Intellectual Property Rights And State Aid
Article 32 Use Of The Negotiated Procedure Without Prior Publication
A Introduction
B Grounds For Use: Works, Supplies And Services
1 Failure of an earlier open or restricted procedure
2 Only one suitable economic operator
a Artistic reasons
b Technical reasons
c Exclusive rights
3 Extreme urgency
C Grounds For Use: Supplies Only
1 Research, experimentation, study or development
2 Additional deliveries
3 Commodity purchases
4 Purchases on advantageous terms in insolvency procedures
D Grounds For Use: Service Only
1 Contracts following a design contest
E Grounds For Use: Works And Services
1 Additional works or services referred to in the contract notice
Article 33 Framework Agreements
A Introduction
B Definition Of The FA
C The Duration Of FAS And Contracts Awarded On Their Basis
D Identification Of Parties And Closed Character Of FAS
1 Non-signatories
2 The overall value of the framework agreement
E Types Of FAS
1 Single-supplier FA
2 Multi-supplier FA
a Direct award of call-off contracts
b Mini-competition
F Public Contract Or FA?
G Change Of FA Member
Article 34 Dynamic Purchasing Systems
A General
B Novelties In The Regulation Of DPS Under The 2014 Directive
C Basic DPS Legal Regime Under The 2014 Directive
Article 35 Electronic Auctions
A General
B Legal Rules
Article 36 Electronic Catalogues
A General
B Legal Regulation
Article 37 Centralised Purchasing Activities And CPBS
A Background: The 'recognition' of Centralised Procurements By The 2004 Procurement Directive
1 The situation in Europe prior to the 2014 Directive and the Commission v French Republic case of 2005
2 The solution offered by Article 11 of the 2004 Procurement Directive
B The Evolution Of The Model In Articles 2(1), 14-16 And 37 Of The 2014 Directive
1 The preliminary activity for the preparation of the 2014 Directive
2 The reasons for centralisation of procurements: what do the Recitals of the Directive say?
3 Centralised purchasing activities: the permanent basis requirement and the wholesaler vs. agent model
4 Ancillary purchasing activity
5 Centralised purchasing bodies and contracts between entities within the public sector (Article 12 of the 2014 Directive)
6 Sharing the responsibility between the CPBs and the contracting authorities using their services
7 CPBs and competition: the ASMEL case of 2020
Article 38 Occasional Joint Procurement
A Introduction
B Different Forms Of Performing Joint Procurement
C Liability
D Conclusion And Implementation Of A Contract Awarded Through The Joint Procurement
Article 39 Procurement Involving Contracting Authorities From Different Member States
A General
B Compatibility With EU Law-Compliant Domestic 'Mandatory Public Law Provisions'
C Cross-Border Provision Of Centralised Purchasing Services
D Ad Hoc Or Occasional Cross-Border Joint Procurement
E Permanent Or Institutionalised Cross-Border Joint Procurement
F Additional Critical Considerations On The Model Of Article 39(4)
G Interaction With The Rome I Regulation On The Choice Of The Law Applicable To Contracts
Article 40 Preliminary Market Consultations
A Notion And Rationale
B Methods For Market Consultation
Article 41 Prior Involvement Of Candidates Or Tenderers
A Introduction
B The Remedies For Conflicts Of Interest
C Exclusion
D Indirect Involvement
E Relations Between Articles 24 And 41
Article 42 Technical Specifications
A General
B What Are Technical Specifications?
C Equal Access Of Economic Operators
D Procurement Intended For The Use Of Natural Persons
E Intellectual Property Rights (IPR)
F Reference To A Specific Make, Source Or Particular Process
G Setting The Specifications
1 Functional requirements
2 Technical specifications
H Conformity Of The Tenders
Article 43 Labels
A Introduction
B Types Of Labels
C How Can Labels Be Applied In Public Procurement?
D When Can A Reference To A Specific Label Be Used?
1 A broad range of exceptions
E When A Reference To A Specific Label Cannot Be Used
F General Requirements For Usage Of Labels In Public Procurement
Article 44 Test Reports, Certification And Other Means Of Proof
A General
B Conformity Assessment Body
C Other Means Of Proof
D Cooperation Between Member States
Article 45 Variants
A General And Terminological Issues
B Technical Specifications And Minimum Requirements
C Variants And Competition
D Non-Fully Compliant Conforming And Variant Tenders
Article 46 Division Of Contracts Into Lots
A Lot Division's Objectives And Rationale And The Legislative Road Towards Article 46
1 Introduction and aims of the provision
2 Towards Article 46 of the 2014 Directive
B Article 46
1 Determination of lot division in the procurement process
2 Making lot division mandatory
3 Article 46(2)
4 Article 46(3)
Article 47 Setting Time Limits
A Scope Of The Regulation
B Fixing Time Limits
C Calculating Time Limits: Council Regulation (Eec, Euratom) 1182/71
D Adaptation Of National Regulations
E On-Site Inspection Or Verification Of Documents
F Other Conditions For Extension Of Time Limits
G Significant Changes
H Consequences Of Failure To Comply With The Directive
Article 48 Prior Information Notices
A Scope Of The Regulation
B Facultative Nature
C Possibility To Reduce Time Limit
D Obligatory Components Of Prior Information Notice
E Publication Of Prior Information Notice
F Prior Information Notice As Call For Competition
G Period Covered By Prior Information Notice
Article 49 Contract Notices
A Subject-Matter Of The Regulation
B Role Of Contract Notices
C Mandatory Components Of Contract Notices
1 Information about the contracting authority
2 Information about the contract
3 Information about the procedure
D The Definition Of The Contract Value
E Obligation To Include All Mandatory Components
F Publication
Article 50 Contract Award Notices
A Substantive Scope
B Time Limit For Sending The Notice
C Scope Of Application
D Mandatory Notice Content
E Can And Pin
F Cans For FA
G DPS
H Exceptions Under Which Certain Information May Be Withheld
I Publication Of The Notice
J Statistical Information
Article 51 Form And Manner Of Publication Of Notices
A Scope And Purpose Of These Rules
B Standard Forms
C Publishing Authority
D Rules And Manner Of Publication
E Time Limit And Costs Of Publication
F Annex VIII To The 2014 Directive
G Language Of Publication
H Continued Publication
I Date Of Dispatching The Notice
J Facultative Publication
Article 52 Publication At National Level
A Substantive Scope
B Purpose Of The Regulation
C Content Of Notices
D Time Limit For Publication
E Prior Information Notices
F Breaches Of The Rules On Publication
Article 53 Electronic Availability Of Procurement Documents
A Article 53(1)
B Unrestricted, Full, Direct Access Free Of Charge
C Transparency
D Technical Exceptions To E-Access
E Confidentiality And E-Access
F Additional Information
Article 54 Invitations To Candidates
A General
B Scope
C Content Of The Invitations
Article 55 Informing Candidates And Tenderers
A General
B Obligation To Provide Information Motu Proprio
C Obligation To Provide Information On Request
1 Individual on request information rights
2 Tender-wide on request information rights
D Withholding Of Information
Article 56 Choice Of Participants And Award Of Contracts
A Introduction
B Outline Of The Evaluation Process
1 Selection and award - an overview
a Process
b Criteria and conditions
2 Analysis
a Compliance with requirements, conditions and criteria
b Qualitative selection, exclusion and reduction of numbers of tenderers
C Sustainable Procurement
D Order Of Tender Evaluation
E Requests For Rectification
1 Introduction
2 Requests for rectification
a Full compliance with the principles of equal treatment and transparency
b Submission of missing documents
c Supplementation and completion of incomplete information or documentation
d Clarification of erroneous information or documentation
3 Duty to allow rectification
4 Restriction of requests by Member States or contracting authorities
5 Procedural considerations
F Amendment Of Annex X Through Delegated Acts (Paragraph 4)
Article 57 Exclusion Grounds
A Introduction
B Mandatory Grounds For Exclusion (Article 57(1))
1 Scope of application
a Conviction by final judgment
b Territorial scope
c Personal scope
2 Establishing the facts
3 Relevant offences
a White-collar crime (Article 57(1)(a), (b), (c) and (e))
b Other offences (Article 57(1)(d), (e), (f))
4 Legal consequence
C Breaches Of Tax Duties Or Social Security Contributions (Article 57(2))
1 Requirements for exclusion
2 Mandatory or discretionary exclusion
3 Means of proof
4 Relevant time for assessment and self-cleaning
D Derogations (Article 57(3))
1 Overriding reasons relating to the public interest (Article 57(3)(1))
2 Exclusion clearly disproportionate (Article 57(3)(2))
E Discretionary Grounds For Exclusion (Article 57(4))
1 The discretionary character of exclusion grounds
2 The grounds for exclusion
a Violation of environmental, social and labour law obligations (Article 57(4)(a))
b Bankruptcy, insolvency or winding-up proceedings (Article 57(4)(b))
c Grave professional misconduct (Article 57(4)(c)) d. Agreements to distort competition (Article 57(4)(d))
e Conflict of interest and prior involvement (Article 57(4)(e) and (f))
f Significant or persistent deficiencies (Article 57(4)(g))
g Serious misrepresentation (Article 57(4)(h))
h Undertaking to unduly influence the decision-making process or to obtain confidential information, and provision of misleading information (Article 57(4)(i))
F Relevant Time For Exclusion (Article 57(5))
G Self-Cleaning (Article 57(6))
1 Scope of application
2 Self-cleaning measures (Article 57(6)(2))
a Compensation for any damage caused
b Collaboration with investigating authorities
c Technical, organisational and personnel measures
3 Decision (Article 57(6)(3))
a Authority evaluating the self-cleaning measures
b Burden of proof
c Decision
H Implementing Conditions And Time Limits For Exclusion (Article 57(7))
1 Relevant time period
2 Beginning of the exclusion period
a Mandatory exclusion grounds
b Discretionary exclusion grounds
i Article 57(4)(e) and (f)
ii Article 57(4)(h) and (i)
iii Article 57(4)(b)
iv Article 57(4)(a), (c) and (d)
v Article 57 (4)(g)
Article 58 Selection Criteria
A General
B Suitability To Pursue The Professional Activity
C Economic And Financial Standing
D Technical And Professional Ability
E Third Party Reliance And Common Tenders
F Means Of Proof
Article 59 European Single Procurement Document
A General
B Main Purposes
C How Does It Work?
D The Underlying Exchange Data Model (EDM)
E Issues Raised By The ESPD
1 Cost transfer from economic operators to contracting authorities
2 Cross-border issues when documentation is freely available
3 Added uncertainty on procedural timescales
4 Added uncertainty in multi-stage procedures
Article 60 Means Of Proof
A General
B Means Of Proof Which May Be Requested For Exclusion Grounds
C Means Of Proof Which May Be Requested For Selection Criteria
1 Economic and financial standing
2 Technical ability
3 Previous works, goods and services
4 Quality control (technicians and technical bodies)
5 Quality control (description of facilities)
6 Supply chain management
7 Complex or special products or services
8 Educational and professional qualifications
9 Environmental management measures
10 Average annual manpower
11 Tools, plant and technical equipment available
12 Subcontracting
13 Samples, descriptions, photographs and certificates
D Sharing Of Information Between Member States
E How Old Or Recent Should The Documentation Be?
F A Recently Acquired Business Unit
Article 61 Online Repository Of Certificates (E-Certis)
A General
B Uncertain Nature Of E-Certis
C Data Reliability Of E-Certis
D Future Of E-Certis
Article 62 Quality Assurance Standards And Environmental Management Standards
A Introduction
B What Are Quality Assurance And Environmental Management Standards?
C History Of Relevant Provisions In EU Procurement Directives
D Mutual Recognition And Equivalence
E Reasons That Are Not Attributable To The Economic Operator
Article 63 Reliance On The Capacity Of Other Entities
A General Information
Article 64 Official Lists Of Approved Economic Operators And Certification By Bodies Established Under Public Or Private Law
A General
B Administrative Simplification
C Registration By Groups Of Economic Operators
D Cross-Border Issues
E Impact On Competition
Article 65 Reduction Of The Number Of Otherwise Qualified Candidates To Be Invited To Participate
A Introduction
B Shortlisting
Article 66 Reduction Of The Number Of Tenders And Solutions
A Introduction
B Conditions For The Applicability Of Article 66
Article 67 Contract Award Criteria
A Introduction
B The Most Economically Advantageous Tender (Meat)
C Qualitative And Cost Criteria
1 Qualitative Criteria
2 Cost Criteria
D The Link To The Subject-Matter
E Choice, Competition And Verification
F Weightings And Scoring (Including Intervals And Thresholds)
G Conclusion
Article 68 Life-Cycle Costing
A Introduction
B Definition
C Different Types Of Costs
D Social LCC
E LCC Methodologies
Article 69 Abnormally Low Tenders
A Introduction
B Duty To Verify Apparently Abnormally Low Tenders
1 When Does A Tender Appear To Be Abnormally Low?
2 Verification
3 Explanations
C Duty And/Or Power To Reject Abnormally Low Tender
1 When is a tender abnormally low?
a Total price or individual prices/price elements?
b Strategic pricing
c Tenders free of charge
2 The duty to reject in some circumstances
3 The power to reject
a May abnormally low tenders be accepted?
b Tenders which are abnormally low due to State aid
4 Duty to inform the Commission
D Duty To State Reasons
E Duty To Provide Information To Other Member States
F Contracts Below The Thresholds
G Public Tenderers
H Does The Provision Apply When Other Elements Than Price Are Low?
Article 70 Conditions For Performance Of Contracts
A General
B Types Of Contract Performance Conditions
1 Environmental performance conditions
2 Social performance conditions
C The Character Of The Contract Performance Conditions
D Form Of Performance Conditions
E Minimum Wage Contract Performance Condition
Article 71 Subcontracting
A History
B Rationale
C Scope
1 Subcontractors' compliance with Article 18(2)
2 Disclosure and restriction of subcontractors
3 Direct payments
4 Main contractor's liability
5 Subcontractor's involvement in contract execution
6 Measures for ensuring compliance with environmental and social provisions
7 National rules regarding subcontractors' liability and direct payments to subcontractors
8 Member States' discretion for implementation
Article 72 Modification Of Contracts During Their Term
A Introduction
B Permissible Modification
1 Modifications foreseen in review clauses
2 Options
3 Modifications including additional works, services or supplies
4 Modifications due to unforeseen circumstances
5 Change of contractor/economic operator
a Change of contractor/economic operator foreseen in a review clause
b Change of contractor/economic operator due to restructuring
c Change of contractor due to assumption of the main contractor's obligations towards its subcontractors by contracting authority
6 Unsubstantial modification
7 De minimis modification
8 Information obligations related to the modifications made
C Impermissible Modification
1 Introduction
2 Hypothetical changes of terms of procurement
3 Modification of the economic balance of the contract for the benefit of the contractor
4 Substantial extension of the scope of the contract
5 Impermissible change of contractor
Article 73 Termination Of Contracts
A Background
B Characteristics Of The Termination Regime
1 A possibility or an obligation?
2 Not limited to situations set out by the Directive
3 Statutory power or based on a contract clause
C Grounds For Termination
1 Contract amendment as a ground for termination
2 Termination due to mandatory exclusion grounds
3 Termination due to a serious infringement of EU law established by the CJEU
D Other Rules And Terms Applicable To Termination
1 Immediate termination or a reasonable notice period?
2 Agreeing on the consequences of termination
Article 74 Award Of Contracts For Social And Other Specific Services
A The 2004 Procurement Directive
B Drafting The New Social Services Rules
C Services
D Thresholds
Article 75 Publication Of Notices
A Scope
B Contract Notices
C Prior Information Notices
D Contract Award Notice
Article 76 Principles Of Awarding Contracts
A National Procurement Rules
1 Member States must put national rules in place
2 National rules must comply with transparency and equal treatment
3 National rules must allow contracting authorities to take into account the specificities of the services in question
B Principles
C Requirements
Article 77 Reserved Contracts For Certain Services
A Drafting Of Article 77
B Services
C Reserved Contracts And Market Distortions
D Organizational Conditions
Article 78 Scope
A Introduction
B Design Option (Article 78(B))
C Design And Potential Follow-Up Procurement For Services (Article 78(B) In Fine)
D Design And Direct Procurement For Services (Article 78(A))
Article 79 Notices
A Contest Notices
B Contest Result Notices
C Mode Of Publication Of The Notices
Article 80 Rules On The Organisation Of Design Contests And The Selection Of Participants
A Procedural Choices
B Procurement Principles
C National Implementation
Article 81 Composition Of The Jury
A Introduction
B Composition Of The Jury
Article 82 Decisions Of The Jury
A Independence Of The Jury
B Anonymous Submissions
C Evaluation
Article 83 Enforcement
A Introduction
B Prior To The 2014 Reform
C The 2011 Proposal For A New Directive For The Public Sector
D The Structure Of Article 83 Of The 2014 Directive
E The Duty To Monitor (Articles 83(2), (3) And (6))
F The Duty To Give Advice And Support (Article 83(4))
Article 84 Individual Reports On Procedures For The Award Of Contracts
A Background
B The Ratio Of Article
84
C Individual Reports - What's New?
D Obligation To Document The Progress Of Procurement Procedures - Article 84(2)
Article 85 National Reporting And Statistical Information
A Introduction
B Transparency Obligations
Article 86 Administrative Cooperation
A The Constitutional Basis For Administrative Cooperation
B Administrative Cooperation In The Exchange Of Information: Issues And Tools
1 Relevance, difficulties, tools and mechanisms developed at EU level
a Relevance
b Difficulties
c Tools and mechanisms developed at EU level
2 The International Market Information (IMI) System and its compliance with data protection rules
3 Other systems of cooperation: the SOLVIT network
C The Directive's Provision
1 The interaction with the principle of confidentiality and data protection rules
2 The pilot project for the use of the IMI system in procurement
Article 87 Exercise Of The Delegation
A General
B Procedure
C Relevant Provisions Covered Under The Delegation
Article 88 Urgency Procedure
A General
Article 89 Committee Procedure
A General
B Procedure
C When Must The Committee Procedure Be Used?
Article 90 Transposition And Transitional Provisions
A General
B (Long) Delays In The Transposition Of The 2014 Directive
C Progressive Transition To E-Procurement
Article 91 Repeals
A Repeals
B The 'Anticipatory Effect' Of The 2014 Directive
Article 92 Review
A General
B Financial Thresholds In Light Of The EU's Obligations Under The GPA
Article 93 Entry Into Force
A General
B Infringements Of The 2014 Directive: State Of Play And Commission's Efforts To Improve Implementation
Article 94 Addressees
A General
B Application Of The 2014 Directive In The EEA EFTA States
C 'Exporting' EU Public Procurement Norms And Standards Worldwide
1 Approximation of national legislation with the procurement acquis in the enlargement context
Index
Edited by Roberto Caranta, Full Professor of Administrative Law, Law Department, University of Turin, Italy and Albert Sanchez-Graells, Professor of Economic Law, School of Law, University of Bristol, UK