The International Procurement Post - July 2022
We are proud to launch our first quarterly newsletter on the key international Public Projects and Procurement Law developments.
In Focus
Public Procurement and the consequences of the war in Ukraine
In its 5th sanction package, the EU addresses public procurement by essentially ruling out Russian participation in EU tenders. This ban puts additional strain on the already stressed global supply chains, making it all the harder for contracting authorities and tenderers to comply with public contracts.
Our colleagues Janneke Kohlen and Matteo Stainer have pointed out the main challenges in dealing with the ban on Russian Participation. With the help of other colleagues, they also highlighted initiatives taken by several countries to mitigate challenges in public procurement caused by the sanctions and the disrupted supply chains. This article provides practical guidance on how to comply with the EU sanctions and, more in general, on what mechanisms are or can be used to soften their impact on tendering procedures.
For more information contact Janneke Kohlen.
Updates from our jurisdictions
UK
Post-Brexit Procurement Bill introduced to overhaul UK procurement law
During the Queen’s Speech on 10 May 2022, the UK Government introduced a new post-Brexit Procurement Bill into the House of Lords with the aim of making procurement simpler, more transparent and reducing costs for both business and the public sector. The Procurement Bill will replace existing regulations with a single regulatory framework which aims to deliver a variety of fundamental improvements, including “slashing red tape and driving innovation” and incorporating greater focus on social value. The new legislation is currently being debated in the House of Lords and is due to come into force in 2023.
For more information contact Stuart Cairns or Alex Kelly.
Poland
Polish Act on Counteracting Support for Aggression Against Ukraine
Since 16 April 2022, a new Act of 13 April 2022 on Specific Solutions to Counteracting Support for Aggression against Ukraine and to Protect National Security (the "Act on Counteracting Support for Aggression Against Ukraine") has been in force in Poland. The Act requires the exclusion of contractors entered on a list maintained by the minister responsible for internal affairs. The Polish legislator chose not to amend the existing Public Procurement Law (the "PPL Act"), but rather introduced a different parallel law.
For more information contact Tomasz Zalewski or Julita Hoffmann.
Italy
The Court of Justice rules again on the non-compliance of a provision of the Italian Procurement Code with the EU procurement directives
The European Court of Justice (C-642/20 of 28 April 2022) declared the non-compliance with the EU legislation of the Italian provision that imposes to the leading company of a temporary grouping to possess a majority share of the requirements and perform majority of the awarded services.
For more information contact Simone Cadeddu or Camilla Triboldi.
Belgium
Major changes in the exclusion system of tenderers from procurement procedures: the butterfly effect of recent developments in the case-law of the Court of Justice of the European Union
On 18 May 2022 (Belgian Gazette, 30 May 2022), the provisions of the Belgian Law of 17 June 2016 on public procurement relating to exclusion of tenderers from procurement procedures have been amended to implement recent developments in the case-law of the Court of Justice of the European Union. These changes are of a fundamental nature and must be considered by companies willing to participate in a procurement procedure in Belgium.
For more information contact Marc Martens or Kevin Munungu.
The Netherlands
Bidders bearing the burden of current supply chain problems for construction projects
The Dutch court has recently determined (to our knowledge, for the first time) that supply chain issues, for example as a result of the war in Ukraine, may not be laid entirely at the winning bidder's feet. We take a look at a recent court case concerning a tender procedure for the construction of a research ship.
For more information contact Andrea Chao or Mariam Ali.
Germany
Dealing with deficit public contracts - contract adaption due to incalculable increased costs?
In practice, this question regularly occurs, especially in the context of long-term public procurement contracts. Serious cost drivers are for example natural catastrophes, the Corona pandemic, the war in Ukraine, a change in collective agreements or generally actions by third parties that cannot be influenced. The public contracts run the risk of running into deficit. Dealing with deficit public contracts and the adaptation of remuneration is generally a complex matter. In the event of a (threatened) insolvency of the contractor due to the cost increases, this can further complicate the process. The parties to the contract are therefore well advised to consider the contractual, procurement, budgetary and state aid implications at an early stage and to have them comprehensively checked from a legal point of view to ensure that the contract adaptation as a whole is legally secure.
For more information contact Alexander Csaki or Ferdinand Sieber.
France
Environmental aspects will be considered by French public purchasers when assessing the various bids
Decree n° 2022-767 amending the French Public Procurement Code has been issued on 3 May 2022 and introduces new provisions regarding awarding criteria and their specifications.
For more information contact Boris Martor or Raphael Weiss.
Denmark
Amendments to the Danish Public Procurement Act – coming into force on 1 July 2022
In Denmark, the Public Procurement Directive (2014/24) is implemented into Danish law by the Danish Public Procurement Act (‘the Act’). The Act was introduced in 2016, and the amendments, which the Danish Parliament passed this June, are the first major changes since the Act came into force. The amendments to the Act came into force on 1 July 2022. We comment on the amendments, which we deem most relevant.
For more information contact Mikkel Taanum.
Webinars and events
Public Procurement: International Perspectives
On June 29 2022, we held our first webinar in the series of Public Procurement: International Perspectives. The new series aims to look at the key differences, as well as similarities between international public procurement approaches across our international offices and the local trends in the different markets we work in.
The first webinar included our expert speakers Janneke Kohlen, Stuart Cairns, Peter Jorgensen and Thomas Larsen who covered key themes in the UK and Ireland, Denmark and The Netherlands. They covered:
- What processes are used mostly by each Government
- What each Government’s key focus is
- Sustainability
- Digitalisation in procurement
- Social value
- Procurement in the public utilities sector
- Procurement regarding hospitals
The next event in our series will be taking place on 7 September 2022 and be hosted by our teams in Germany and Finland. If you would like to subscribe to our alerts to recieve the invitation, please click here.
Danish Seminar: The amendment of the Udbudsloven
Recently, our Danish team held a seminar on the amendment of the Udbudsloven. They took a closer look at the upcoming amendments to the Public Procurement Act which came into force on the 1 July 2022. This will have an impact on tenders published from now.
For further information, please contact Peter Jorgensen or Thomas Larsen.
Warsaw office hosts breakfast on proportionality in public procurement
Our Warsaw Commercial team recently held its first post-pandemic breakfast meeting at the Academy of Modern Public Procurement, as part of a training cycle devoted to the entire public procurement industry. The aim of these meetings is for people to share their views and discuss the practical problems faced by both contractors and contracting authorities.
The event focused on the principle of proportionality in procurement contracts. Although the principle was formally introduced into Public Procurement law in July 2016, its significance in relation to procurement contracts is still not recognised in practice.
Over 15 professionals from leading Polish and international companies attended, including representatives from PGE, Unibep, IBM, Poczta Polska, Veolia, Gaz-System, and others.
During the meeting, our Warsaw Commercial team lawyers Tomasz Zalewski (Partner) and Julita Hoffmann (Senior Associate), discussed:
- The proportionality principle in a public procurement procedure under EU law
- The proportionality principle in a public procurement procedure under Polish law
- Dutch Guidelines on the application of the proportionality principle in procurement contracts
- Guidelines in the Public Procurement Law
- Contractual provisions which may be disproportionate
- Practical tips for drafting contracts in accordance with the proportionality principle
For further information, please contact Tomasz Zalewski.
The Sdu Annual Conference on Current Issues in Procurement Law
On 21 June, the Sdu Annual Conference on Current Issues in Procurement Law took place. Janneke Kohlen, Public Procurement Partner in The Hague was joined by a line-up of speakers.
An overview was held on procurement law jurispudence (Netherlands and EU) 2020/2021 and the following was discussed:
- Consequences of the Didam judgment for the sale of real property by public authorities
- Policy measures for dealing with complaints and legal protection in public procurement
- Repairing errors in public procurement
- Evaluation of qualitative criteria, motivation, and judicial review
- Exclusion because of past performance or breach of competition rules
- Framework agreements and mini competitions
- Dilemmas in legal protection
For further information, please contact Janneke Kohlen.
Bird & Bird news
Our new Dublin office
Our new office in Dublin officially opened on 13 June 2022. The office is based in George's Dock, close to Dublin's tech hub Grand Canal Dock. Follow the dedicated LinkedIn page for the latest news and updates here.
