Procurement law Flashcards
What is public procurement?
Public procurement covers the process leading up to the award and conclusion of a public contract by a public body (contracting authority) and a company (economic operator). It delivers value for taxpayers’ money, prevents favoritism and corruption, and promotes competition within the market. It is different from private procurement by private companies or individuals.
What is a procurement procedure/tender?
A procurement procedure/tender is when a contracting authority chooses to perform certain activities externally and starts a public procurement procedure by putting out a tender for supplies, services or works. Interested economic operators can submit a bid, and the contracting authority evaluates all bids and chooses the best economic operator and motivates its decision.
What are the sources of public procurement law?
The sources of public procurement law include
1. European directives
2. Principles of public procurement law (enshrined in the European Directives)
3. Dutch Public Procurement Act (national law)
4. Jurisprudence/case law from European and national courts
What are the four sectors of the special sector category of contracting authorities?
water, energy, transport and postal services sector
Who are contracting authorities?
Contracting authorities are
1. states, provinces, regional/local authorities
2. bodies governed by public law
3. special sector/utilities contracting authorities insofar as the contracts deal with the four sectors, such as Stedin, Waternet, ProRail, and Schiphol International Airport.
What are the principles of procurement law?
The principles of procurement law are non-discrimination, equal treatment, transparency, and proportionality, and they ensure fairness and objectivity in the public procurement process.
What is the principle of non-discrimination?
The principle of non-discrimination prohibits discrimination based on nationality from other EU nations and promotes a single EU internal market not divided by national borders.
What is the principle of equal treatment?
The principle of equal treatment ensures that all economic operators and candidates are treated equally and have the same opportunities to win the contract, preventing discrimination and favoritism.
What is the principle of transparency?
The principle of transparency allows parties to verify the actions of a contracting authority and allows the contracting authority to justify its decisions. It ensures an objective bid evaluation and prevents favoritism, discrimination, and an unfair tender process.
What is the principle of proportionality?
The principle of proportionality ensures that all aspects of the procurement process are proportional with the characteristics of the public contract, technical requirements, exception grounds, selection criteria, and awards criteria.
The contracting authority evaluates the bids and goes through these three steps to assess a bid:
- Exclusion grounds (yes/no) -> yes, you’re out
To ensure the background of the candidate. Exclusion grounds: criminal activities, fraud, risk of bankruptcy, etc. - Selection criteria (yes/no) -> no, you’re out
To check the suitability to pursue the professional activity: economic and financial standing (yearly turnover) and technical, professional ability, etc. - Award criteria (points) -> the most points wins the contract
Most economically advantageous tender wins the contract. Different categories to which the contracting authority awards points: best quality, lowest price, most innovative, best planning, etc.
What does a preliminary injucntion entail in the context of procurement law?
- A judge can annul the award of the public contract, order a re-evaluation of the bids, etc.
- Judge can agree with the contracting authority
- Judge can order a restart of the public procurement procedure
- Judge can order the contracting authority to award the decision to anyone but the complainant.
- In a preliminary injunction no compensation for damages can be awarded
What are the characteristics of an “open procurement procedure”
- Open procedure
o Every economic operator can submit a bid
o Might amount in an overload of candidates and bids
o Relatively simple tenders, for instance the purchase of office supplies
o Relative fast procedure
What are the characteristics of a “restricted procurement procedure”
- Restricted procedure
o Comparable with the open procedure
o The contracting authority invites a selected group of economic operators to submit a bid (based on clear objective criteria = principle of transparency and equality)
o To limit the number of economic operators and bids, especially when there is a large market
o Might be useful for projects with security risks, for example fire extinguishing installation in restricted areas, defence
What are the threshold values for central government in procurement law? And what happens above and below the threshold?
Central government
Supplies: 144.000
Services: 144.000
Works. 5.548.000
above threshold -> European public procurement procedure
under threshold -> national procedure
