The International Procurement Post - Autumn 2022

In focus

Embedding Social Value in Procurements

In the main article of our Autumn newsletter we explore how social value can be successfully incorporated into procurement processes: the pitfalls to avoid and ways to achieve meaningful and tangible improvements. We also assess the potential impact of the Procurement Bill on incorporating social value into procurements.

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For more information contact Henna Malik. 

Updates from our jurisdictions

Belgium

Forewarned can be forearmed - GDPR and Public Procurement

On 6 May 2022, the Belgian Council of State has issued a judgment relating to the verification of the conformity of an offer with the General Data Protection Regulation No. 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”).

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For more information contact Kevin Munungu. 

The Netherlands 

Flexibility in a rapidly changing world and economy: procuring construction contracts without a fixed price in the Netherlands

Is it possible to tender without bidders having to quote a fixed price for the entire construction contract during the procurement procedure?

There are several reasons that can be given for why it might not always be desirable for procuring authorities to require bidders to quote a fixed price. A tendering authority knows its needs, but does not always know which resources or services meet these needs. Another reason could be that the tendering authority wants to assess what the market has to offer in terms of, for example, technical solutions. The importance of flexibility in pricing also becomes relevant to deal with supply chain issues while dealing with fairly long lead times.

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For more information contact Andrea Chao or Mariam Ali. 

Germany

Startup Strategy - Building a German GovTech-Valley or remaining in the paper-based Stone Age? 

On 27 July 2022 the Federal Cabinet approved and published the first comprehensive startup strategy. The Federal Government intends to award more public contracts to Tech-Startups. In order to give startups much more consideration in public procurement, the Federal Government wants to simplify, professionalise and digitise the procurement procedures. But there are reasonable doubts whether the measures outlined by the startup strategy will be sufficient and expedient.

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For more information contact Dr. Benjamin Wübbelt or Mario Kreutzer. 

France

Strengthening the consideration of environmental and social aspects in French public procurement law

In France, ESG criteria (environmental, social and governance) have been reinforced in public procurement law by the Law n°2021-1104 dated 22 August 2021, known as the "climate and resilience law". It introduces a new article L. 3-1 into the French Procurement Code (hereinafter "FPC"), under the terms of which "public procurement participates in achieving the objectives of sustainable development, in their economic, social and environmental dimensions, under the conditions defined in this code" (art. 35 of the law dated 22 August 2021). Its application decree n°2022-767 dated 2 May 2022 was published in the “Journal Officiel” dated 3 May 2022.

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For more information contact Boris Martor or Raphael Weiss.

Unpredictability and conditions of modification of public contracts

On 15 September 2022, the French Conseil d’Etat, issued an opinion regarding the possibilities for the parties to modify the price or tariffs of public procurement contracts and on the conditions of application of the theory of unforeseeability in a context of high inflation. The Directorate of Legal Affairs (DAJ) also published guidelines detailing the practical modalities of the opinion issued by the Conseil d’Etat which takes up the opinion of the members of the Council of State step by step.

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For more information contact Boris Martor or Elie Badawi. 

Denmark

The legal landscape for a contracting authority's collection supplementary information from a tenderer has been modified by a Danish court

As a result of the judgment, not only is a contracting authority allowed to collect supplementary information after the award-decision. The contracting authority is also allowed to collect new supplementary information, at least in the form of new references as documentation for the fulfilment of minimum requirements to a technical requirement by a tenderer.

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For more information contact Mikkel Taanum. 

Finland

Amendments to the Finnish Act on Public Procurement and Concession Contracts

The Finnish Government has proposed to reform the Act on Public Procurement and Concession Contracts (1397/2016, the Act). The Government submitted its proposal to Parliament on 25 August 2022. The changes are mostly due to come into force on 1 January 2023. Generally, the Finnish Government proposes to increase consideration of environmental aspects, quality and responsibility in public procurement. The changes would apply in procurement both national as well as above EU thresholds.

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For more information contact Katia Duncker or Riikka Aarikka.

Poland

Public tenders in Ukraine - assisting businesses rebuild the country

Despite the ongoing war with Russia, Ukraine’s process of reconstruction has already begun. The total loss to Ukraine's economy stands at about $600 billion and continues to soar. The good news, though, is that Ukraine has one of the most modern electronic procurement systems in Europe. This increases the chances of a large number of competitive bids in public tenders.

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For more information contact Tomasz Zalewski, Julita Hoffmann or Karoline Kacprzak.

Webinars and events

Public Procurement: International Perspectives II 

On 7 September 2022, we held our second webinar in the series of Public Procurement: International Perspectives. The 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 second webinar included our expert speakers Janneke Kohlen, Peter Jorgensen, Benjamin Wuebbelt and Riikka Aarikka who covered key themes in the Netherlands, Germany and Finland. They covered: 

• What processes are mostly used by each Government
• What each Government's key focus is
• The war in Ukraine and its impact on public procurement
• New procurement acts

Watch the recording here

Public Procurement: International Perspectives III

On 19 October 2022, we will be holding the third webinar in the series of Public Procurement: International Perspectives. 

Our expert speakers Tomasz Zalewski, Julita Hoffmann, Karolina Kacprzak, Jacopo Nardelli and Camilla Triboldi will cover key themes in Poland and Italy including: 

• The regulations in each country
• Recent problems experienced for public procurement
• Challenges for foreign contractors

Sign up here

Warsaw office hosts event on public tenders in Ukraine

Tomasz Zalewski, along with special guest Alexandra Misiats (Partner and Head of Procurement in SDM Partners Law office), recently hosted a hybrid event on how an EU-based company could start tendering in Ukraine. The presentation was titled 'Public tenders in Ukraine: Assisting businesses rebuild the country'.

The seminar shared practical information on how an EU-based or focused company can start tendering in Ukraine and discussed the latest developments and opportunities as well as questions raised during the tendering process. Furthermore, they spoke about European bidding for non-residents.

For further information, please contact Tomasz Zalewski. 

Watch the recording here