The International Procurement Post - Spring 2023

We are pleased to share the Spring edition of our quarterly newsletter on the key international Public Projects and Procurement Law developments. Brought to you by the International Public Projects and Procurement Group at Bird & Bird.

In Focus

Possibilities for subsequent demands in the case of missing, erroneous or incomplete documents

The Spring Edition of the International Public Procurement & Projects Team at Bird & Bird’s main article concerns a common challenge that most, if not all, who conduct public tender procedures have encountered. A tenderer submits an application for participation or a tender, where some information or documentation is erroneous or outright missing. This can have dire consequences for tenderers as it possibly results in the contracting authority rejecting the application or tender as non-compliant since the specified requirements aren’t met.

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For more information contact Thomas Larsen, Tina Johansen or Katja Vollertzen

EU: Football the (un)intended consequence of the FSR. Is public procurement next?

In an attempt to bridge the “regulatory gap” of foreign subsidies which impact the EU internal market, the EU adopted recently its Foreign Subsidies Regulation (the “FSR”). The European Commission is also expected to adopt in the next months an Implementing Regulation to provide further guidance on the enforcement of these rules.

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For more information contact Jose Rivas or Ignacio Villalba Navarro.


Updates from our jurisdictions

Belgium

A draft law amending the Belgian Act of 17 June on public procurements is underway...

The Belgian Council of Ministers has just approved a draft law which aims at promoting the access of small and medium-sized enterprises to public procurement procedures. This draft law is in line with the action plan drawn up by the Belgian government to identify the various barriers to access to public contracts[1]. Among the actions identified, this initiative plan identified in particular the need to improve transparency at all stages of the public procurement procedure with a view to better information for economic operators and healthier competition. This plan also stressed the need to simplify the public procurement procedure from the point of view of SMEs.

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For more information contact Kevin Munungu.


The Netherlands 

Dutch Court of Appeal clarifies the consequences of public entities selling land without organizing a selection procedure

On 26 November 2021, the Dutch Supreme Court (“Supreme Court”) ruled that a public entity must organize a selection procedure prior to selling land based on transparent and objective criteria, unless the public entity substantially motivates that there will be only one ‘seriously’ interested party for the land or rights concerned. 

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For more information contact Janneke Kohlen or Matteo Stainer


Italy

The new regulations on soccorso istruttorio in the Italian Public Procurement Code

With Legislative Decree No. 36 of 31 March 2023, published in the Official Gazette of the Italian Republic on 1 April 2023, the new Public Contracts Code was introduced in Italy, which will replace Legislative Decree No. 50 of 18 April 2016 as of 1 July 2023.

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For more information contact Chiara Nuzzo or Camilla Triboldi


Germany

Green Public Procurement - More Sustainability in public procurement

The Federal Ministry of Economics and Technology's new Procurement Transformation Package takes the Federal Environment Agency's guidelines a step further.

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For more information contact Johannes Woltering.


France

New green perspectives to be considered by French public purchasers

Law No. 2023-175 on the acceleration of renewable energies deployment dated 10 March 2023 introduces new contracts available to French public purchasers.

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For more information contact Boris Martor or Raphael Weiss.


Poland

The Supreme Court has opened the door for contractors to claim damages from contracting authorities that violate public procurement law. But how do things look in practice?

In order to claim damages for a breach of public procurement law in Poland, no final judgment by the National Appeals Chamber ("NAC") declaring that the contracting authority acted unlawfully is needed. Yet the courts continue to dismiss claims in the absence of such a ruling. Our law firm has filed a complaint in a case affected by this.

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For more information contact Tomasz Zalewski or Julita Hoffmann.


UK

The UK Procurement Bill

Following our Winter update, the UK’s Procurement Bill (“Bill”) has now completed its passage through the Committee Stage in the House of Commons. The next stage in the Parliamentary process is the Report Stage, where MPs will debate further amendments to the Bill. No date for the Report Stage has been announced, but the UK Government anticipates this to be in May 2023.

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For more information contact Stuart Cairns

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