Public Procurement Regulation
This chapter lays down the foundation for understanding GPP and the underlying concept of public procurement. It starts by defining the term of public procurement, discussing the need for regulation and by illustrating the tensions that can arise between
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Public Procurement Regulation
2.1 Terminology There is no universal definition for the term public procurement (term referred to in the EU) or government procurement (term referred to in the US and in the WTO context). Literature commonly refers to it as: The purchasing by public bodies from external providers of the products and services these bodies need.1
This working definition highlights the two criteria that are decisive for a purchase to qualify as public procurement: the buyer, on the one hand, is a public body (i.e. the contracting authority or procuring entity) and the seller, on the other hand, is private provider (usually referred to in literature and practice as tenderer, bidder, supplier or economic actor). As a third criterion, Arrowsmith in the above definition refers to “products and services these bodies need”.2 The question of whether a contracting authority needs the good or service they procure to fulfill a public function (as opposed to a commercial activity) often gives rise to controversy. For example, it is not clear whether the provision of a public bike rental service constitutes a public need and thus qualifies as public procurement.3 Moreover, the delineation between public procurement and concessions often remains ambiguous.4
Definition based on Arrowsmith 2003, 2–3. Ibid. 3 See for example in Switzerland, Sect. 9.3. 4 Ibid. 1 2
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 R. Koch, Green Public Procurement under WTO Law, European Yearbook of International Economic Law 9, https://doi.org/10.1007/978-3-030-48214-5_2
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2 Public Procurement Regulation
2.2 Phases Public procurement is more than a mere monetary transaction. It is a process that includes various phases:5 1. Planning phase: in a first step, contracting authorities recognize the need for goods, services and construction works and determine the characteristics that define it.6 2. Opening of the tender: in a second step, they publish the tendering announcement/call for offers. 3. Evaluation phase: after having received the offers, the contracting authority evaluates the best offer, according to the previously determined criteria. 4. Awarding phase: the contract is awarded to the best tenderer, while the others are notified of the awarding decision. 5. Contract Administration Phase: the public procurement process does not end with the awarding of the contract, but is followed by the phase where the tenderer has to perform the contract. The contracting authority can monitor the implementation of the contract. Although public procurement encompasses all five stages, legal studies often focus on public procurement in a narrower sense, covering only the first four stages (until the actual conclusion of the contract), since it is in these phases that the legal challenges arise. In the context of GPP, however, the contract administration phase is of particular relevance, since this phase can achieve significant environmental savings.
2.3 Object
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