Referenser i offentlig upphandling UrT 2024 nr 3 s. 123
10 years of changing contracts: for better or for worse? UrT 2024 no 3 p. 215
The aim of EU public procurement legislation is to open Member States’ public procurement markets to competition. EU public procurement directives and the principles of equal treatment and transparency aim at achieving this end notably by making sure tenderers have equal opportunities to participate in contract awards across the EU. In an ideal situation, a contracting authority decides, in the absence of undue influence, what it wants to buy and on what conditions, tenderers submit their tenders on an equal competitive position, and the evaluation of tenders is conducted objectively. This ideal situation can be distorted in many ways. For example, where a person conducting a procurement process has a personal interest in the outcome or where a tenderer has been involved in the preparation of a procurement. In the Directive 2014/24, the first situation falls under conflict of interests regulated in Article 24 whereas the latter situation is covered by Articles 40 and 41 on market consultations and prior involvement in the preparation phase. Both sets of rules were adopted during the 2014 modernisation of EU public procurement directives to prevent the use of unsound practices in the award of public contracts.
The purpose of this article is to discuss the rules and concepts of conflicts of interests by focusing on the conditions in which a violation of procurement legislation is established. In addition, the aim is to raise the following question: under which concept should situations, where a tenderer or a company connected to it has carried out most, if not all, planning work for the contract fall into? The question is related to my PhD research on tenderers prior involvement in the preparation phase, where I have limited my focus to Articles 40 and 41. However, during the research, in particular a case from the Supreme Administrative Court of Finland (KHO:2016:56) has brought forward the question of whether a tenderer’s involvement in the preparation can be so extensive that it could be likened to a procurement service provider within the meaning of Article 24.
Johanna Saammalma
PDF: Conflicts of interests and tenderers’ prior involvement in the preparation of a procurement UrT 2024 no 3 p. 189
Volym: 3
Sida: 189
År: 2024