The International Procurement Post - Autumn 2023

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

In Focus

Access of third-country bidders and goods to the European public procurement tenders

In this article, our international public projects and procurement team provide an overview on the European legislation on third-country operator access to the public procurement market and the solutions adopted by Member States.

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For more information contact Simone Cadeddu, Chiara Nuzzo or Camilla Triboldi.

Webinar: EU Regulation on control of Foreign Subsidies: First experiences

The EU Foreign Subsidies Regulation (FSR) is aimed at preventing non-EU government subsidies from distorting the European Union’s internal market. This webinar focuses on the procedural and legal risks under the FSR, as well as the very first experiences with the regulation and distilling some best practices. The knowledge gained in this webinar will help you understand how to identify potential risks and steer clear of common pitfalls when it comes to foreign subsidies. The speakers will also share best practices for successfully navigating the new EU foreign subsidy control system.

Find out more and register here

For more information contact Jose Rivas, Janneke Kohlen, Morten Nissen, Peter Dann Jørgensen or Marc Martens.

Updates from our jurisdictions

UK

The Procurement Act 2023: Key changes to be aware of

Three years following the publication of the Green Paper: Transforming public procurement, the Procurement Bill received Royal Assent on 26 October 2023, meaning the UK now has new a Procurement Act 2023 (“Act”).

While this is a significant milestone to “transforming public procurement” in the UK, there is still a lot of work to be done to support its implementation and to understand how it will operate in practice.

In recent communications, the Cabinet Office has stated that it is planning for the necessary secondary legislation to be laid early next year and anticipates the new regime will come into effect from October 2024. It will only be once we start to see more of the detail that we will get a better idea as to how the new regime is intended to work.

In this article we discuss what the key changes are.

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For more information contact Stuart Cairns or Tom Ward.

The Netherlands

Dutch court of first instance informally applies administrative law measures in a civil procurement law case

In its judgment dated 31 October 2023 the Court of first instance of Noord-Holland applied in fact administrative law measures in a civil procedure which it justified by reasoning that the civil interim relief procedure is materially the same as an administrative preliminary proceeding. This reasoning is contrary to the Dutch system of legal proceedings in public procurement cases.

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For more information contact Janneke Kohlen or Matteo Stainer.

Denmark

Supplementary information concerning references; the final word?

The High Court in Denmark has gone against the practice from the Danish Com-plaints Board for Public Procurement in its long-awaited decision on the possibility for a public authority to collect supplementary information concerning references.

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For more information contact Thomas Thorup Larsen, Simon Haugaard, Cecilie Hald, Tina Johansen or Katja Vollertzen.

Poland

Lower limit of maximum contractual penalties - new Polish public procurement case law

Polish public procurement law requires contracting authorities to specify in contracts the maximum total amount of contractual penalties.

However, the law does not explicitly prevent contracting authorities from setting a very high limit. The National Appeals Chamber (“NAC”) in its new judgments prevents such actions on the part contracting authorities.

In this article we discuss what the problem is, why it is so important and what contractors should do.

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For more information contact Tomasz Zalewski.

Finland

Current discussion on in-house entities in Finnish Public Procurement

For several years now, there has been public debate in Finland about the so-called in-house entities, which are mainly related to municipalities and wellbeing services counties. In these arrangements, municipalities and wellbeing services counties set up joint in-house entities from which they procure services without competitive tendering under the Public Procurement Act. Some of these in-house entities have up to hundreds of shareholders. Discussions have therefore focused on the assessment of the conditions under which these entities are to be acquired, and it now seems that a real change in approach is being sought. The issue has been discussed by both the Finnish Competition and Consumer Authority (FCCA) and the Market Court, and in-house entities have also been considered in the current Government Programme.

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For more information contact Riikka Aarikka.

Germany

Non-exclusive framework agreements in Germany?

Public procurement is a fundamental component of government operations. But there is always one question: How can we implement a legal system of public procurement law to get exactly what we want in a flexible way? One good option is the institute of framework agreements. This article will focus on the special nature of non-exclusive framework agreements. This article looks at the topic of non-exclusive framework agreements.

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For more information contact Dr. Alexander Csaki.