Public procurement, general interest and competition law –

Public procurement is in a tough time. The final word purpose of contracting (acquiring a passable contract that meets high quality requirements as a automobile for satisfying the overall curiosity) has misplaced worth in comparison with the load of competitors legislation, which finally ends up being preponderant. I’d virtually enterprise to level out that it’s the core worth of public procurement.
It isn’t solely a authorized drawback.
Regardless of the shortcomings of the LCSP, already talked about on different events, it’s a rule that permits for the articulation of a adequate regime for the safety of different devices of common curiosity, beginning with the preservation of high quality. Finally, there are sufficient springs to articulate a sustainable and efficient contracting. That it has springs, doesn’t imply that it’s an ideologically oriented norm by the Authorities proposing the norm and that it must be considerably modified.
It’s a drawback, for my part, derived from a method of understanding contracting by sure businesses and administrative our bodies that cut back the issue of the rule basically to the applying of competitors legislation. There are lots of events the place there may be neither a public contract within the eyes of the European Directives (though I’ll write about it tomorrow), there may be neither a public market nor the rules referring to the execution of the contract are adequately weighted, particularly in relation to personal contracts, topic to personal legislation.
Not too long ago, for instance, the Advisory Board has dominated on authorized companies contracts. Really, the valuation between corporations of an analogous nature is awfully complicated and the added worth of a sure agency solely derives from the data {that a} member has … one thing that’s not possible to weigh in an announcement and that, nonetheless, could be identified by the adjudicator. When a guide is chosen over one other, there’s a common level of orientation of his work, which turns into virtually an intangible even whether it is identified.
The talk on minor contracts, which has brought about so many rivers of ink, could be an instrument within the combat towards depopulation, insofar because it fixes financial exercise to the territory and, subsequently, serves to combat depopulation. Curiously, within the area of minor contracts, the European Directive doesn’t intrude. A special problem that should be checked that a man-made division of the item of the contract is just not going down … that’s unlawful and should be pursued.
Nonetheless, it’s nonetheless thought of that solely in distinctive instances can it’s awarded instantly, even supposing even the applying of European requirements doesn’t need one thing like that.
One may speak about what occurs with inside relations throughout the Administration, the place there was a transparent vocation to open a market with forceps. I disagree with what the Directive offers in relation to personal means, however it definitely offers a greater scope for using authorized buildings left at house. The system for the distribution of powers, which might even have served for this goal, has not been transposed, past the truth that the strategy of the Directive could be utilized instantly.
The examples might be multiplied and I don’t assume it’s a query to affect them.
The actually vital problem is whether or not competitors is the one criterion to make use of in relation to public procurement.
If we take article 1 of the usual, we see that there are three goals that should be met collectively in all procurement proceedings: a) Assure freedom of entry to tenders, publicity and transparency of procedures, and non-discrimination and equal remedy between the bidders; b) assure the general public functions which might be pursued with the articulation of a contracting process and c) the incorporation of social and environmental standards in a transversal method.
All three are obligatory. In actual fact, the primary, the one that’s most related from the angle of competitors legislation (as a result of the opposite two points allude to totally different components of safety of the overall curiosity) derive, for instance, from the truth that the contract is important, that’s, throughout the scope of this public sector entity, there isn’t any risk of instantly executing the supply throughout the scope of the reference Administration.
The mandatory flexibility in public procurement should be linked to the precept of administrative effectivity. Do you assume for a second what’s the price of these procedures for the award of contracts? Has the impression on the overall curiosity of the indiscriminate granting of precautionary measures been analyzed throughout the complete strategy of the process, executed for the advantage of the safety of bidders and competitors legislation? Do you consider the impression on disruptive actions of the Administration on account of having to publish all of the specs? Or has the impression on public sector enterprise secrets and techniques from the publication of the complete buying coverage been analyzed? Or have you considered the additional value that the administration is paying as a result of an extension of a contract with a worth discount accepted by the contractor is just not allowed? They’re all actual instances.
The competitors, which is just one ingredient, is completely strengthened, with out with the ability to see all the benefits that this extremely bolstered safety of 1 facet of the overall curiosity to the detriment of the others entails. Even when speaking about competitors, the price of not complying with these guidelines is usually remembered. Is there a research on the associated fee (in materials and human sources and in cash) of getting to bid when it may be awarded instantly?
The second and third handle points associated to integrity and the introduction of different components of a social nature. Elements whose decision is just not the identical in all instances and which depends upon the orientation of the contracting authority.
We’ve got to comprehend that public procurement is just not a price in itself. It’s an instrument, amongst many others, obtainable to the general public sector to make public insurance policies, introducing components of worldwide safety of the overall curiosity. An concept that the Advisory Board of Aragon picked up for a few years. It isn’t sufficient to say {that a} cleansing service is employed for the very best worth, as a result of that signifies that the Municipality of Madrid could be very soiled and, moreover, the filth is territorially distributed. We can’t say that we solely rent one legislation agency, as a result of meaning not penalizing the truth that the crew they suggest is just males. That’s doing micropolitics that in the long term finally ends up being just like the flight of the butterfly. The examples might be prolonged to infinity, respecting this hyperlink with the item of the contract
It’s clear that throughout the margins of public coverage, competitors should be reserved. However it’s on this second, not earlier than. Or in different phrases, the complete regime can’t be conditioned by the applying of competitors. Years in the past, Sosa Wagner and Mercedes Fuertes identified that the competitors legislation magnifying glass is a magnifying glass that’s distorting actuality. I feel the time has come to go to the attention physician and take one other lens that permits us to offer a extra full view of what the overall curiosity wants with a contract.

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