Transparency in EU Procurements. Disclosure Within Public Procurement and During Contract Execution, Kirsi-Maria HALONEN, Roberto CARANTA and Albert SANCHEZ-GRAELLS

Kirsi-Maria Halonen, Roberto Caranta and Albert Sanchez-Graells

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to stephane.rodrigues-domingues@univ-paris1.fr for review in this section.

This volume combines country reports and comparative papers on the multiple facets of the principle of transparency in EU public procurement law.

The procurement directives to a large extent leave to the discretion of the Member States the determination of the scope of transparency obligations, as well as the determination of the types of documents susceptible of disclosure to candidates, tenderers and third parties. Under EU public procurement rules, contracting authorities are public authorities, bodies governed by public law, as well as any entity receiving more than 50% of the funds from a contracting authority. Public procurement rules are supposed to ensure undistorted competition for public contracts, as well as in the broader markets where the public buyer carries out their procurement.

The book demonstrates that economic operators have a clear incentive to manipulate competitive tendering procedures in order to obtain benefits from the public buyer. It explains that the risk of collusion in tenders for public contracts is more than obvious to economists and does not simply pose a theoretical threat. Indeed, the rules governing public procurement can make communication among rivals easier and promote bid rigging beyond the risks of cartelisation that exist in other markets. The OECD thus recommends to carefully consider which information is to be published and to avoid disclosing competitively sensitive information as this may facilitate bid-rigging schemes.

France, for example, makes it possible to protect documents, including commercial and industrial secrets, which can only be disclosed to third parties if it is possible to redact the confidential information without distorting the meaning of the document. Contracting authorities facing a request for access can seek consent from the tenderers if they plan to disclose competition-sensitive information. Where there is a challenge against a decision to withhold information, the competent authority (the “Commission d’accès aux documents administratifs”—CADA) takes into account whether granting access to certain documents would contribute or not to the creation of cartels and hence to breaches of competition law.

The book takes note of the fact that the “transparency first” systems generate excessive transparency in practice. It devotes specific chapters to transparency in procurement by the EU institutions; on public procurement in Denmark, Finland, France, Germany, Italy, Poland, Romania, Spain and the United Kingdom. It is a valuable source of information for practitioners and academics alike.

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Athanase Popov, Transparency in EU Procurements. Disclosure Within Public Procurement and During Contract Execution, Kirsi-Maria HALONEN, Roberto CARANTA and Albert SANCHEZ-GRAELLS, February 2020, Concurrences N° 1-2020, Art. N° 92896, p. 244

Publisher Elgar Publishing

Date 28 June 2019

Number of pages 352

Visites 128

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