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The award phase is of crucial importance for the outcome of the competition for the contract and it is therefore not surprising that it has been considered in thousands of public procurement disputes in the Member States of the EU.
The subject of this book has for obvious reasons already received scholarly attention in the many books and articles on EU public procurement law. However, the existing literature has seldom been based on a comparative approach covering a broad range of Member States of the European Union with diversified national approaches to EU public procurement law. The present publication is original in this sense and consequently provides the reader with an insight that cannot be found elsewhere.
Foreword by the Editors of the European Procurement Law Series
List of Contributors
Chapter 1. Award criteria under EU law (old and new) - by Roberto Caranta
Chapter 2. Award of contracts covered by the EU Public Procurement rules in Denmark - by Steen Treumer
Chapter 3. Award of contracts covered by the EU Public Procurement rules in France - by Francois Lichere
Chapter 4. Awarding of Contracts in German Procurement Law - by Martin Burgi
Chapter 5. Award of contracts covered by EU Public Procurement rules in Italy - by Roberto Caranta & Mario E. Comba
Chapter 6. Awarding of Contracts in Polish Procurement Law - by Marcin Spyra & Piotr Szwedo
Chapter 7. The Theory and Practice of Award Criteria in the Romanian Procurement Law - by D. Dragos, B. Neamtu & R. Suciu
Chapter 8. Award Criteria and Award-Related Challenges under Spanish Public Procurement Law - by Albert Sanchez Graells
Chapter 9. Awarding of public contracts in the United Kingdom - by Pedro Telles
Chapter 10. Rejection of abnormally low and non-compliant tenders in EU public procurement: A comparative view on selected jurisdictions - by Albert Sanchez Graells
Chapter 11. The electronic award of public procurement - by Gabriella M. Racca
Chapter 12. Evaluation models in public procurement: A comparative law perspective - by Paula Bordalo Faustino
List of Cases
Professor of Public and European Law at the Ludwig-Maximilians-University in Munich as well as Director of Public and European Law Research Center for Public Procurement Law and Administrative Cooperations (FVV) in Germany. Before, he held the chair of Public and European Law at the Ruhr-University in Bochum, where he was dean of the law faculty between 2008 and 2010. Since 2004 he is Director of the (only) Public Procurement Research Institute (FVV) in Germany.
He is a member of the board of trustees of the Institute of Mining and Energy Law at the Ruhr-University and Visiting Professor at the George-Washington-University Law School, situated in Washington D.C. As Director of the Public Procurement Research Institute, Professor Martin Burgi rendered outstanding services in European and national public procurement law. He is founder and scientific chairman of the “Düsseldorfer Vergaberechtstag”, which is the leading annual conference in public procurement law in Germany.
Professor Martin Burgi frequently attends international conferences on procurement law, contributes as a speaker and hosted the U.S.-European Leadership Roundtable in Düsseldorf (November 2010). His broad area of expertise includes modernization and privatization in the international context, legal protection at international courts, the roles of regions and municipalities in the global change. He serves as Official expert for parliamentary institutions and legal consultant for stock exchange enterprises, states and local municipalities.
Besides his consulting government bodies and enterprises, he has written numerous articles, chapters and books, among them articles and book chapters on (European) public procurement law published internationally, e.g.: “Small and medium sized enterprises and procurement law – European legal framework and German experiences”, in: PPLR, 284-294 (2007)”Damages as an effective remedy? – German Perspective”, Oxford University Press (2011); “Implementation and Application of the new Competitive Dialogue – Experience in Germany”, in: Arrowsmith/Treumer (eds.), Public Procurement Global Revolution IV, Oxford, University Press (2011); “Can Secondary Considerations in Procurement Contracts be a Tool for In-creasing Innovative Solutions?”, in: Olykke/Risvig/Tvarno (eds.), EU Public Procurement – Modernisation, Growth and Innovation, 275 – 290 (2012); “Competitive dialogue in Germany”, in: Arrowsmith/Treumer (eds.), Competitive Dialogue in EU Procurement, 306 – 338 (2012); In-House Procurement and Horizontal Cooperation Between Public Authorities, in: EPPPL, 86 – 93 (2012) (with Frau Koch).
Full professor of administrative law with the Law Faculty of the University of Turin (Italy). He is Director of the Master on Public Procurement for Sustainable Development jointly managed by his University and ITC-ILO Turin. He is member of the Procurement Review Board of the European Space Agency. He is directing (with Steen Treumer) the European Procurement Law Series, DJØF, Copenhagen. He is member of both the research networks Public Contracts in Legal Globalization / Contrats Publics dans la Globalisation Juridique and PLAN – Procurement Law Academic Network. He will be the general rapporteur to the 2014 FIDE conference on Topic 3 - Public Procurement Law: Limitations, Opportunities and Paradoxes. Among his recent works on public procurement ‘Transparence et concurrence’ in R. NOGUELLOU U. – STELKENS (eds.) Droit comparé des contrats publics. Comparative Law on Public Contracts (Bruxelles, Bruylant, 2010) ; ‘Le contentieux des contrats publics en Italie’ in Rev. fr. dr. Adm. 2011, 54-61 ; ‘Many Different Paths, but Are They All Leading to Effectiveness’ in S. TREUMER – F. LICHÈRE (eds.) Enforcement of the EU Public Procurement Rules (Copenhagen, DJØF, 2011); ‘Damages for Breaches of EU Public Procurement Law: Issues of Causation and Recoverable Losses’ in D. FAIRGRIEVE – F. LICHÈRE (edds.), Public Procurement Law. Damages as an Effective Remedy (Oxford, Hart, 2011), and ‘The Borders of EU Public Procurement Law’ in D. Dragos – R. Caranta (eds.) Outside the EU Procurement Directives – Inside the Treaty? (Copenhagen, DJØF, 2012).
Full professor of public comparative law with the Law Department of the University of Turin (Italy). He is President of the school of international studies of the Political Sciences Department and Director of the Master GOMAP (gouvernance et management des marches publics an appui au développement durable) jointly managed by the University of Turin, the Science Politiques School of Paris and ITC-ILO Turin. He is member of both the research networks Public Contracts in Legal Globalization / Contrats Publics dans la Globalisation Juridique and PLAN – Procurement Law Academic Network. He is responsible for Turin unit of the national research project, funded by the Ministry of education, about Jurisdiction and Pluralisms.
His more recent publications in the field of public procurement include a book on the execution of public procurement: “L’esecuzione dei lavori pubblici. Profili comparatistici ”, Torino, Giappichelli, 2011, and numerous articles: “Retendering or sale of contract in case of bankruptcy of the contractor? Different solutions in an EU and comparative perspective”, in G. Piga – S. Treumer (eds), “The Applied Law and Economics of Public Procurement”, Routledge, London, 2012, pag. 201-211; with S. Richetto, “Horizontal Cross-Fertilization and Cryptotypes in EU Administrative Law”, in “Review of European Administrative Law”, vol. 5, 2012, pag. 153-165; with F. Cassella, “Public procurements below the threshold in Italy”, in R. Caranta – D. Dragos (eds.), “Outside the procurements directives – inside the Treaty?”, Djoef, Copenhagen, 2012, pag. 163 – 186.
Jean Monnet Professor of Administrative and European Law at the Public Administration Department, Babes Bolyai University, Cluj Napoca, Romania, and Co-director of the Center for Good Governance Studies. Former Vice Dean and Acting Dean of the Faculty of Political, Administrative and Communication Sciences (2008-2012); Marie Curie Fellow at Michigan State University (2005-2006); Visiting Scholar at Rockefeller College of Public Administration and Policy, SUNNY at Albany, USA (2002) and University of Padova (2008); Romanian Writers Association National Prize for legal research (2003); Scientific Coordinator of the Commission for drafting the Administrative Procedure Code of Romania (2006-2008) and Expert in the Commission for drafting the Administrative Code (2010-2011). Chair of the “Law and Administration’ Panel of the European Group of Public Administration (since 2010). Member of the editorial board of European Public Procurement and PPP Law Review, International Journal for Court Administration, Transylvanian Review of Administrative Sciences. His research publications include 2 edited books, 7 chapters in international books, 4 books in Romanian as single author and 4 in collaboration, over 30 papers in scientific journals.
Currently finishing her PhD research project on “Public Procurement Award Criteria in the EU Member States: A Comparative Case Study” at the School of Law, University of Nottingham. She is also a part-time tutor of European Law and a teaching assistant of the Corruption module in the Executive Postgraduate Programme in Public Procurement Law and Policy at the same University. Paula is responsible for the administration of the Procurement Law Academic Network (PLAN) and is co-editor of the books reviews for the Public Procurement Law Review (PPLR).
Paula is a Portuguese lawyer, specialized in public procurement, with experience in giving legal advice to contracting authorities throughout public procurement procedures (including litigation). Before moving to Nottingham in 2009, she took part in the task force assigned by the Portuguese government to draft the Portuguese Public Contracts' Code (implementing EC directives 2004/17 and 2004/18). Paula also taught public procurement postgraduate courses at several Portuguese law schools, and worked as a professional trainer on public procurement for the Portuguese Public Administration.
Paula is an active member of the Procurement Lawyers’ Association (PLA) and is co-founder of a Portuguese web-based public procurement observatory (http://www.contratacaopublica.com.pt).
Professor of public law at the University of Aix-Marseille, France. After graduating in law at the University of Montpellier (Licence) and at the Institut d’études politiques d’Aix-en-Provence in political sciences, he passed a Master degree (Diplome d’Etudes approfondies) in 1993 and then his PhD (doctorat) at the University of Montpellier in 1998 and was appointed lecturer in public law (Maître de conferences) in 1999 and Professor of public law in 2000 after he succeeded at the “Agregation”. Since then, he has taught public contract law and administrative law in different Master degrees in France and in Europe.
Professor Lichère has published numerous books and articles, mainly in the field of public contracts law and administrative law dealing with business (“Droit public économique”), in French and English. He is co-editor with Steen Treumer of the book Enforcement of EU public procurement rules, Djof publishing, 2011, and co-editor with Duncan Fairgrieve of the book Public Procurement Law : Damages as an effective remedy, Hart Publishing, 2011. He is editor of the Droit des marchés publics et contrats publics spéciaux, the main reference in public procurement law in France. He is co-author of the Lamy Droit du numérique, in charge of the section on public procurement contracts dealing with IT.
Professor Lichère is also a consultant to law firms, advising clients in the public sector and the private sector in the field of administrative law, both in French law and comparative law.
PhD, Associate Professor within the Public Administration Department at Babes Bolyai University, Cluj Napoca, Romania, and co-director of the center for Good Governance Studies. Her academic background includes a BA in public administration (2002) and a M.A. in European law (2003) from Babes Bolyai, as well as a M.A. in urban planning from Michigan State University, USA (2006). She obtained her PhD in sociology in 2008, with a topic on urban growth management in Romania. Since 2009, she has been involved in several researches on public procurement. Her publications include 5 chapters in international books, 2 books as single author and 2 co-edited, over 20 articles in journals.
Professor of Administrative Law and Deputy Director of the Department of Management of the University of Turin (Italy). Her research interests include Public Services, Public Contracts and Public Procurement, Concessions, PPP, public liability and compensation for damages as well as accountability of public administrations and integrity issues. Recently her research interests also focused on Collaborative Procurement and Central Purchasing Bodies, GPO as well as the use of Framework Agreements particularly in European Healthcare Systems and sustainability (environmental and social considerations) in Public Procurement. One of her main current areas of research is the entire process of public procurement from the definition of needs to its execution stage.
She is in charge of the Italian Unit of the EU project on Public Procurement for Innovation (PPI), Healthy Ageing and Public Procurement of Innovation funded by the EU Commission (DG Enterprises) with the task of drafting a legal study on the innovative procurement models for a EU joint procurement system in Healthcare. She has been consultant of the Organisation Economic Co-operation and Development (OECD). She is Member of the Scientific Board of the Master of Science in Public Procurement Management for Sustainable Development jointly organized by the International Training Centre of International Labour Organization (ITC – ILO) and the University of Turin. She is also Member of the Teaching Staff of Ph.D in Public Law at the University of Turin. She is Member of the Scientific Board of the Law Review "Diritto Amministrativo", she is on the editorial staff of the Law Review "Foro amministrativo - Consiglio di Stato", and www.neldiritto.it. She is involved in the Ius Publicum Network Review in Madrid, on April 26th, 2010 by the Editorial Boards of Die Verwaltung, Diritto amministrativo, International Journal of Constitutional Law, Public Law, Revista de Administración Pública and Revue Française de Droit Administratif. The aim of Ius Publicum Network is to follow the recent developments in each network member country, focusing on the development of Administrative and Public Law in connection with other legal cultures (www.ius-publicum.com). She is in charge of the Coordination of the Ius Publicum Network Review and one of the Italian responsible of the Public Contracts topic. She is Member of the Public Contracts in Legal Globalization comparative law network (www.contrats-publics.net) and she is co-director with C. Yukins (George Washington University Law School) of the project on Integrity and efficiency in sustainable Public Contracts. She is also member of the Procurement Law Academic Network (http://www.planpublicprocurement.org/main/), of the Research Network on EU Administrative Law (www.reneual.eu) and the European Procurement Law Group.
She recently published in Public Contract Law Journal, vol.41, n.1, Fall 2011 (“Competition in the execution phase of public procurement”), in Public Procurement Law Review (“Collaborative procurement and contract performance in the Italian Healthcare Sector: illustration of a common problem in European procurement”, Issue n. 3/2010, 119 et seq.), in S. Arrowsmith - S. Treumer (eds.), Competitive Dialogue, (G. M. Racca - D. Casalini, Competitive dialogue in Italy, 2012), in European Procurement Law Series (“Aggregate Models of Public Procurement and Secondary Consideration: An Italian Perspective”, in The Law of green and social procurement in Europe, R. Caranta and S. Trybus –Eds.; “Derogations from the standstill period, ineffectiveness and remedies in the new tendering procedures: efficiency gains vs. risks of increasing litigation”, in Enforcement of the EU Public Procurement Rules, S. Treumer and F. Lichère - eds., Djøf publishing, 2011; “The Role of IT solutions in the Award and Execution of Public Procurement below Threshold and List B Services Overcoming E-Barriers” in Outside the EU Procurement Directives – Inside the Treaty?, D. Dragos – R. Caranta, 2012) and in C. Harland – G. Nissimbeni - E. Schneller, Strategic Supply Management (G. M. Racca, G. L. Albano, Collaborative Public Procurement and Supply Chain in the EU experience, London, 2013, 179-213).
LL.B., BA (Business), DEA (Law), PhD (Eur) (Law) is a Lecturer in Law at the University of Hull, UK, specialising in EU Economic Law and, more specifically, in EU Competition Law and EU Public Procurement Law. Prior to this appointment, Albert was Lecturer in European and Commercial Law at the Law Faculty of the Comillas Pontifical University (Madrid, Spain), as well as Director of its Master in International and European Business Law. Albert has spent significant research time at the Library of Congress (Washington, USA), the Centre for Competition Law and Policy of the University of Oxford (UK) and the Law Department of the Copenhagen Business School (DK). His research interests are in law and economics, especially regarding competition and public procurement law., on which he completed his PhD (Eur) and has recently published Public Procurement and the EU Competition Rules (Oxford, Hart Publishing, 2011). His working papers and some of his most recent publications are available at http://ssrn.com/author=542893.
Assistant professor with the Public Administration Department at Babeș-Bolyai University, Romania, since 2009. Graduate and post-graduate studies in Public Administration (MPA) at Babeș Bolyai University. Currently PhD candidate in environmental policy studies. Research interests are related to the doctoral studies’ field, and also European integration (with regard to the relevance of the process from a Romanian perspective). Her research publications include 3 chapters in international books, 2 books in Romanian in collaboration, 5 papers in scientific journals. Member of the editorial board of Transylvanian Review of Administrative Sciences.
Attorney at law (radca prawny), graduate of the Law Faculty of the Jagiellonian University in Kraków and adjunct faculty at the Department of Private Business Law at the Law Faculty of the Jagiellonian University, member of Editorial Board of Transformacje Prawa Prywatnego Legal Quarterly published by Jagiellonian University. He is books and articles on inter alia contract law and corporate law. Dr Spyra is a member of the Services Contracts Group a subcommittee established by the Polish Private Law Codification Commission.
Lecturer in law at Bangor University where he is member of the acclaimed Winning in Tendering project team hosted by the Institute for Competition and Procurement Studies (ICPS). On this role he is working with contracting authorities in the UK to change the advertising practice for low value contracts and it is expected that the guidance produced will be taken up by the Welsh Government in 2014. He is a regular speaker in leading international conferences and one of the co-organiser of the ICPS Procurement Week. Beforehand his appointment to Bangor University, Pedro received his Ph.D from the University of Nottingham, where he researched the implementation of competitive dialogue in Portugal and Spain under the supervision of Prof. Sue Arrowsmith and Prof. David Fraser. Previously, he worked as a lawyer in Portugal and Spain advising public and private clients in public procurement and commercial practice between 2003 and 2007.
Professor of Public Procurement Law and Privatization Law at the Faculty of Law, University of Copenhagen. He published his prize awarded Ph.D.-dissertation in 2000 on the principle of equal treatment of tenderers in the EU public procurement rules. His numerous international publications on public procurement law include many in the recognized international journal Public Procurement Law Review which he has co-edited as from 2006. Steen Treumer is also editing the European Procurement Law Series together with Roberto Caranta. Among his most recent works on public procurement is The Applied Law and Economics of Public Procurement (editor with Professor Gustavo Piga), Routledge 2013; Competitive Dialogue in the EU (editor with Professor Sue Arrowsmith), Cambridge University Press 2012 and Enforcement of the EU Public Procurement Rules (editor with Professor François Lichère), DJØF Publishing 2011.
He has arranged more than 30 international conferences and seminars including two global public procurement conferences in 2010 in collaboration with Professor Sue Arrowsmith, University of Nottingham. Steen Treumer is currently Deputy Chairman of the Danish Association for Public Procurement Law, member of the Danish Complaints Board for Public Procurement and has been a consultant in numerous public procurement cases.
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