Click here to download the Public procurement 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 34 jurisdictions are covered in this report:

Angola; Belgium; Bolivia; Bulgaria; Canada; Cape Verde; Chile; China; Cyprus; European Union; Finland; France; Germany; Ghana; India; Ireland; Italy; Korea; Macedonia; Malta; Mozambique; Netherlands; Norway; Panama; Poland; Portugal; Sao Tome and Principe; Spain; Sweden; Switzerland; Taiwan; Tanzania; United Kingdom; United States

Questions

The set of questions relating to the topic of public procurement and answered by the guide for each jurisdiction covered include:

Legislative framework

• • What is the relevant legislation regulating the award of public contracts?
• • Is there any sector-specific procurement legislation supplementing the general regime?
• • In which respect does the relevant legislation supplement the EU procurement directives or the GPA?
• • Are there proposals to change the legislation?

Applicability of procurement law

• • Which, or what kinds of, entities have been ruled not to constitute contracting authorities?
• • Are contracts under a certain value excluded from the scope of procurement law? What are these threshold values?
• • Does the legislation permit the amendment of a concluded contract without a new procurement procedure?
• • Has there been any case law clarifying the application of the legislation in relation to amendments to concluded contracts?
• • In which circumstances do privatisations require a procurement procedure?
• • In which circumstances does the setting up of a public-private partnership (PPP) require a procurement procedure?

Advertisement and selection

• • In which publications must regulated procurement contracts be advertised?
• • Are there limitations on the ability of contracting authorities to set criteria or other conditions to assess whether an interested party is qualified to participate in a tender procedure?
• • Is it possible to limit the number of bidders that can participate in a tender procedure?
• • How can a bidder that would have to be excluded from a tender procedure because of past irregularities regain the status of a suitable and reliable bidder? Is the concept of “self-cleaning” an established and recognised way of regaining suitability and reliability?

The procurement procedures

• • Does the relevant legislation specifically state or restate the fundamental principles for tender procedures: equal treatment, transparency, competition?
• • Does the relevant legislation or the case law require the contracting authority to be independent and impartial?
• • How are conflicts of interest dealt with?
• • How is the involvement of a bidder in the preparation of a tender procedure dealt with?
• • What is the prevailing type of procurement procedure used by contracting authorities?
• • Can related bidders submit separate bids in one procurement procedure?
• • Is the use of procedures involving negotiations with bidders subject to any special conditions?
• • If the legislation provides for more than one procedure that permits negotiations with bidders, which one is used more regularly in practice and why?
• • What are the requirements for the conclusion of a framework agreement?
• • May a framework agreement with several suppliers be concluded?
• • Under which conditions may the members of a bidding consortium be changed in the course of a procurement procedure?
• • Are there specific mechanisms to further the participation of small and medium-sized enterprises in the procurement procedure? Are there any rules on the division of a contract into lots? Are there rules or is there case law limiting the number of lots single bidders can be awarded?
• • What are the requirements for the admissibility of variant bids?
• • Must a contracting authority take variant bids into account?
• • What are the consequences if bidders change the tender specifications or submit their own standard terms of business?
• • What are the award criteria provided for in the relevant legislation?
• • What constitutes an “abnormally low” bid?
• • What is the required process for dealing with abnormally low bids?

Review proceedings and judicial proceedings

• • Which authorities may rule on review applications? Is it possible to appeal against review decisions and, if so, how?
• • If more than one authority may rule on a review application, do these authorities have the power to grant different remedies?
• • How long do an administrative or judicial proceedings for the review of procurement decisions generally take?
• • What are the admissibility requirements?
• • What are the time limits in which applications for review of a procurement decision must be made?
• • Does an application for review have an automatic suspensive effect blocking the continuation of the procurement procedure or the conclusion of the contract?
• • Approximately what percentage of applications for the lifting of an automatic suspension are successful in a typical year?
• • Must unsuccessful bidders be notified before the contract with the successful bidder is concluded and, if so, when?
• • Is access to the procurement file granted to an applicant?
• • Is it customary for disadvantaged bidders to file review applications?
• • If a violation of procurement law is established in review proceedings, can disadvantaged bidders claim damages?
• • May a concluded contract be cancelled or terminated following a review application of an unsuccessful bidder if the procurement procedure that led to its conclusion violated procurement law?
• • Is legal protection available to parties interested in the contract in case of an award without any procurement procedure?
• • What are the typical costs of making an application for the review of a procurement decision?