The International Procurement Post - Winter 2023

Brought to you by the International Public Projects and Procurement Group at Bird & Bird.

In Focus

Control of abnormal prices - no pain no gain?

The European Court of Justice ruled (C-669/20 of 15th September 2022, EU:C:2022:684, Veridos): Other bid prices are only indicative and do not alone determine the contracting authority's obligation to verify the offered prices.

If the price or cost of a bid appears to be abnormally low in relation to the service to be provided, the contracting authority must request clarification from the bidder. The current crises and existing supply issues of the companies often lead to significant price fluctuations, so that contracting authorities may be confronted even more with the question if price and performance are in an appropriate relationship. The decision of the European Court of Justice, which focuses on the requirements for the handling of abnormally low prices, will not make things any easier for contracting authorities.

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For more information contact Dr. Alexander Csaki or Karoline Kniha

Updates from our jurisdictions

Belgium

Advance payments in public procurements in Belgum: recent developments in Belgium

A new Royal Decree (published on December 9, 2022) has been recently adopted in Belgium in order to amend the payment conditions of public procurements due to the economic situation following the war in Ukraine. While under Belgian Law, advance payments are not allowed in public procurements except in certain (highly restrictive) situations, this Royal Decree extends the situation in which a contracting authority is allowed to grant an advance payment. allowing for an advance payment, under certain conditions.

According to article 2, § 1 of this Royal Decree, a contracting authority may, for contracts in progress on December 19, 2022 grant an advance payment to the successful tenderer, if the successful tenderer requests it and the contracting authority grants this request.

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For more information contact Marc Martens or Kevin Munungu

Netherlands

Dutch District Court gives further clarity for its doctrine under which public entities must organize a selection procedure prior to selling land

On 24 October 2022 the District Court of Rotterdam (“Court”) ruled on the legality of the sale of a plot of land by a joint scheme of municipalities (“Joint Scheme”).[1] It held that the Joint Scheme violated the so-called Didam-doctrine by selling a plot of land without organizing a selection procedure prior to the sale. As it concerned the sale of land other than for pecuniary interest, the contract fell outside of the scope of EU and Dutch public procurement law, since it does not qualify as a public works contract under the Public Procurement directives.

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For more information contact Janneke Kohlen or Matteo Stainer

France

French public procurement and concession contracts' data will be available on an online access-free portal

Administrative order ECOM2235715A relating to key data from public procurement contracts and administrative order ECOM2235716A relating to key data from concession contracts have been issued on 22 December 2022 and amend the French Public Procurement Code provisions on data’s collection and release.

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French Public Procurement's General Conditions for works contracts have been amended

Administrative order n° ECOM2234957A amending the French Public Procurement’s General Conditions have been issued on 29 December 2022.

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Regulations from the French Public Procurement Code have been slightly amended in favour of private operators

Decree n° 2022-1683 amending the French Public Procurement Code have been issued on 28 December 2022.

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For more information contact Boris Martor or Raphael Weiss

Denmark

The principle of equal treatment may also constitute a ground for exclusion due to possible distortion of competition

The Court of Justice of the European Union (the "Court") has with its judgment in Case C-416-/21, J. Sch. Omnibusunternehmen and K. Reisen, decided on the extent of the voluntary ground for exclusion in the procurement Directives Article 57(4), as well as the scope of the principle of equal treatment as an obstacle to tenderers, which constitute an economic unit being awarded a contract, when they submit separate bids for a tender.

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For more information contact Alexander Brochner or Nanna Krabbe

Poland

Cyberattack on Polish public procurement platform

On 7 November 2022, a hacking attack on the infrastructure of e-Zamówienia Platform (e-Procurement Platform) took place in Poland. As a result of the attack, the Platform did not work for one whole day.

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For more information contact Tomasz Zalewski

UK

The UK Procurement Bill

The Cabinet Office in the UK has confirmed that the Procurement Bill (the first significant Post-Brexit Procurement legislation in the UK) had its first reading in the House of Commons on 14 December, having now completed its passage through the House of Lords.

Importantly, there is now an indication that the Bill will receive Royal Assent in the first half of 2023 (a little earlier than anticipated). Whilst this will mark that the point that the legislation appears on the statute book, there will be an, as yet unknown, period before it will need to be implemented. It does however indicate that the UK could have a new procurement regime in place late 2023 or early 2024.

International bidders, continuing to look to build business in the UK, are encouraged to keep abreast of the impending changes. As we approach that point, Bird & Bird’s UK Procurement Team, will be rolling out a series of workshops for clients. 

For more information contact Stuart Cairns