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This paper stresses that public procurement regulation and practice can result in distortions of competition and offers stylised economic analysis of the ways in which they can unfold. Against that backdrop, the paper provides updated analysis of the distortions of competition that can derive from the exercise of administrative discretion by public buyers and their treatment under EU competition and public procurement law. The paper concentrates, in particular, on a proposal to boost the role of the principle of competition of Article 18(1)II of Directive 2014/24/EU as a tool to promote pro-competitive public procurement regulation and practice.

This paper stresses the negative impact that the excessive levels of transparency imposed by public procurement rules can have on competition for public contracts and, more generally, on the likelihood of cartelisation of the markets where public procurement takes place. The paper critically assesses some recent Judgments of the Court of Justice of the European Union and the General Court from this perspective and shows how the top EU Courts are still oblivious to the fact that excessive transparency may diminish the effectiveness of procurement by reducing competition. It also indicates that the case law itself has unused balancing tools that may help reduce the negative impact of excessive transparency, particularly if coupled with a reduction of the financial incentives offered to litigants that have no other claim than a 'mere' lack of compliance with full transparency. The paper concludes that a reform in the enforcement and oversight mechanisms oriented towards the setting up of a semi-opaque review system would overcome some of the deficiencies identified in the current case law from a law and economics perspective.

This Chapter builds on the argument that mitigating the allure and policy irresistibility of digital technologies requires reassessing the true potential benefits of digital technologies and, more importantly, the necessary enabling mechanisms, likely roadblocks, and new risks that come with them (which is fully developed at https://ssrn.com/abstract=4216825). Taking a closer functional look at the technologies will allow for a better understanding of the constraints on their likely contribution to improving (digital) procurement governance. Such constraints should not only serve as a counterpoint to the hype that follows superficial or techno optimistic assessments, but also help recentre policy agendas towards establishing proper foundations for digital adaptation in the long term. The Chapter will evidence the importance of data availability and quality across technologies. This will lead to an analysis of the difficulties in generating an enabling big data architecture despite efforts led by eg the European Commission, or the Open Contracting Partnership. Such big data architecture will remain the main constraint on the implementation of digital technologies for a while. Thinking further into the future, the Chapter will highlight the displacement, rather than avoidance or resolution, of governance risks that the adoption of digital technologies can generate (which will then be explored in more detail elsewhere). The Chapter closes with a recapitulation of the feasibility boundary for digital procurement governance.

This chapter assesses the use of public procurement to enforce labour standards from a competition and State aid perspective, and concentrates on the establishment of contract compliance clauses under the rules of Article 26 of Directive 2004/18/EC and Article 70 of Directive 2014/24/EU and in relation with the Posted Workers Directive. In particular, it assesses the case law of the European Court of Justice in Rüffert, Bundesdruckerei and RegioPost from an economic perspective. This highlights the potential negative competitive implications that derive from the asymmetrical rules the case law creates for the cross-border and the inter-regional provision of services to the public sector. It also underlines the risk of (regional) economic protectionism that they create. The chapter then assesses these issues from the perspective the EU public procurement, competition and State aid rules. It concludes that, given the current ineffectiveness of the checks and balances theoretically oriented towards the prevention of these undesirable effects, contracting authorities and policy makers would be well advised to abandon their efforts of setting partial, incomplete and difficult to monitor minimum/living wage requirements for public contracts only.

This short note on methodology has been extracted from my PhD thesis, which deals with the relationship between public procurement and competition policy at the EU level (a reworked version has been recently published as Public Procurement and the EU Competition Rules, Oxford: Hart Publishing, 2011). Therefore, the following pages will explore the methodology chosen to conduct a study that mainly aimed to answer the following research question: How can and should publicly-generated competitive distortions in the public procurement field be addressed under EU economic law and, particularly, under the general framework of competition and public procurement law? In order to address such a macro-legal question (and the implied micro-legal questions), I opted for an eclectic and heuristic multi-disciplinary and functional approach to EU Law. The following pages develop the reasons behind such an option which, it must be stressed, was strongly conditioned by the aim of my research. Hopefully, however, the justification for such a methodology will serve as a (limited) case study for researchers approaching similar topics related to EU Law.

In this paper, I reflect about a recent regulatory trend concerning the enforcement of labour standards through contract compliance clauses and other requirements of public contracts tendered under European Union public procurement law. On the back of recent developments in the case law of the European Court of Justice regarding cross-border situations of procurement-based enforcement of labour standards, notably in the re-examination of the Rüffert case in both the Bundesdruckerei and RegioPost cases, I reflect on this phenomenon from the perspective of regulatory substitution. In setting out a basic framework to assess regulatory substitution, I hypothesise that most of the difficulties evidenced by the case law stem from the transfer of labour regulation goals to the public procurement sphere. I then aim to test this hypothesis by means of an analysis of labour policy-oriented mechanisms included in the 2014 revision of the EU public procurement rules. I then go on to critically assess the fitness for purpose of the procurement mechanisms from the perspective of contributing to the enforcement of labour standards. I ultimately conclude that, even though the 2014 Public Procurement Package has galvanised the trend of regulatory substitution whereby employment and social goals have now become part and parcel of public procurement strategy in the EU, a close examination of the legal mechanisms created by Directive 2014/24/EU shows that this regulatory substitution is both limited and highly dependent on the implementation (and investment of significant administrative resources) at Member State level.

This chapter aims to identify the key areas where EU competition law is relevant from a public procurement perspective: that is, mainly, the prevention and sanctioning of procurement manipulation by suppliers (bid rigging) and the granting of distortive State aid that advantages some of them over others. It also focuses on potential abuses of market power by undertakings holding a dominant position, but it assesses this potential distortion of competition to a more limited extent. Once these areas are identified, the chapter describes the basic EU competition rules that apply in each of these different cases, as well as their interpretation in the case law of the CJEU. The main goal of this chapter is to provide public procurement students with an overall view and basic understanding of the EU competition rules more directly relevant to procurement practice.

The development of a more competition-oriented public procurement system is possible, on the basis of the principle of competition that is embedded in the EC public procurement Directives. This paper explores the existence of the principle of competition, roughly delimits its scope, and broadly indicates the legal consequences that can be extracted from the principle of competition as regards the interpretation, transposition and application of EC public procurement Directives in a more competition-oriented manner.

Following the identification of emerging risks in digital procurement governance (see https://ssrn.com/abstract=4254931), this Chapter explores how to embed risk assessments in the initial stages of decision-making processes leading to the adoption of digital solutions for procurement governance, and how to ensure that they are iterated throughout the lifecycle of use of digital technologies. The Chapter critically reviews the model of AI risk regulation based self-regulation and self-assessment that is emerging in EU and UK regulation and considers how to strengthen it, including the possibility of subjecting the process of technological adoption to external checks. The analysis converges with the broader proposal for institutionalised regulatory checks on the adoption of digital technologies by the public sector.