Combating Collusion in Public Procurement: Legal Limitations on Joint Bidding, Katarzyna KUŹMA and Wojciech HARTUNG

Katarzyna Kuźma, Wojciech Hartung

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 catherine.prieto@univ-paris1.fr for review in this section.

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Combating Collusion in Public Procurement: Legal Limitations on Joint Bidding by Katarzyna Kuźma and Wojciech Hartung is devoted to the current and exciting topic of preventing cartels in public procurement. It is therefore aimed at a broad audience with practitioners and researchers of public procurement and competition law and thus transcends the classical divide between public and private law. The selected angle, unprecedented and ambitious, focuses on the concrete application of Article 57(4) D of Directive 2014/24/EU of 26 February 2014 on the award of public contracts. This article allows Member States to allow contracting authorities to exclude, or even require them to exclude, any economic operator participating in a procurement procedure when they have "sufficiently plausible evidence to conclude that the economic operator has concluded agreements with other economic operators with a view to distorting competition".

Although this provision appears, a priori, to be easily applicable in public procurement procedures, it nevertheless raises many practical problems which make its use complex for contracting authorities. This book looks in detail at the various stages and conditions for applying these provisions and provides high-quality interpretations.

After returning to the mechanism of mandatory or potential exclusions specific to public procurement procedures, to which Article 57(4)(D) of Directive 2014/14/EU is linked, the authors discuss its legal regime in detail.

The main strength of this book is that it offers a solid analysis and a stimulating interpretation of the phrase "agreements with other economic operators with a view to distorting competition" used in Article 57 of the Directive. Indeed, specialists in economic law quickly identified a real difficulty in understanding its meaning and thus in implementing this provision, which is central to the prevention of public procurement cartels. The authors’ demonstration, which is particularly rich, establishes a clear link between this provision specific to public procurement law and European competition law. To do so, the analysis is based on a systematic and comparative cross-referencing of these two laws, which proves to be particularly convincing. It also goes beyond the most general issues and deals very broadly with the various situations which contracting authorities and undertakings wishing to participate in a tendering procedure may encounter, as in the case of the application of Article 57(4)(D) when economic operators are in a situation of economic unity or as part of a group of economic operators.

In addition to its striking and solid analysis, the book presents the interest of an accessible construction for the readers. Readers can easily refer to the various chapters to focus on a specific point of the study, depending on their needs.

This topical subject in a period of economic crisis and rising public demand should therefore satisfy public procurement professionals, researchers and above all public authorities. The cross-analysis with competition law finally makes it possible to significantly extend the audience of this now essential work.

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Author

  • University of Paris I Panthéon-Sorbonne (Paris)

Quotation

Vincent Bridoux, Combating Collusion in Public Procurement: Legal Limitations on Joint Bidding, Katarzyna KUŹMA and Wojciech HARTUNG, February 2021, Concurrences N° 1-2021, Art. N° 98939, pp. 268-269

Publisher Edward Elgar Publishing

Date 9 October 2020

Number of pages 304

Visites 116

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