Month: November 2024

ICAPP 2024 – Dublin

On November 10-12, 2024 academics and public procurement professionals from around the world gathered at Dublin City University for the inaugural International Conference for Advancing Public Procurement (ICAPP 2024), coordinated by colleagues from Florida Atlantic University and launched with the kind support of NIGP, The Institute for Public Procurement.

GW Law’s Christopher Yukins presented on issues of green procurement on the first day of the conference. The focus of this post is on several excellent presentations made during the second day, during the “legal issues” session chaired by Professor Tünde Tátrai of Corvinus University, Budapest.

Damages as a Legal Remedy in Bid Challenges (EU)

Alice Lea Nikolay, LL.M. of the University of Vienna (WU), from the Institute for Austrian and European Public Law, presented on “Damages as a Remedy –
Recent Developments and Future Perspectives.” She presented on damages that may be available in a bid challenge (a “bid protest” in the United States) under the European Union’s procurement directives, and suggested how damages may be dealt with in the future under the EU’s evolving procurement law.

Bid Challenges (Protests) in Croatia

Ema Menđušić Škugor, PhD, Co-Managing Partner of Divjak, Topić, Bahtijarević & Krka in Zagreb, Croatia, presented on “The Mess of Redress in the Croatian Public Procurement System.” She explained that the Croatian public procurement system is a complex one, even without considering the redress mechanisms available to its participants. But its redress segment remains a separate story. Several authorities are separately competent and offer varying degrees of protection. Some are widely used, in particular the appeals mechanism before the State Commission for Supervision of Public Procurement Procedures and the administrative dispute which can be initiated before the High Administrative Court. However, these mechanisms seemingly suffer from a continuous lack of governmental recognition regarding their practical significance – the administrative fees for initiating procedures before the State Commission are the highest in the country, while the High Administrative Court itself challenged the award of its exclusive competence in public procurement matters before the Croatian Constitutional Court. On the other hand, some mechanisms are (despite their importance) scarcely present on the market due to persistent lack of resources – this primarily concerns the ex-ante and ex-post inspection review procedure by the Ministry of Economy as the authority competent for overseeing the entire local public procurement system. In short, the environment denotes a concerning lack of consistency. Moreover, it lacks strategic, as well as expert vision and political will to, firstly, consider the public procurement system as a whole and, secondly, propose a redress system corresponding to its needs. Her slides, presented at the International Conference for Advancing Public Procurement (ICAPP) 2024, aim to shine a light on the current shortcomings of the redress system in Croatian public procurement legislation, with the purpose of opening up a discussion towards actions and solutions to overcome them.

Understanding Kolin and EU Protectionism

Marko Turudić, a professor in the University of Zagreb Faculty of Law, presented on “Exclusion of Third Country Economic Operators from EU Public Procurement — The Aftermath of the Kolin Judgement.” He led a spirited discussion of the Court of Justice for the European Union’s recent decision in Kolin, which (see post) may open the door to more aggressive protectionism in EU public procurement.

Innovation Through Procurement: Across Europe

Spurred by the report on The Future of European Competitiveness led by former Italian Prime Minister Mario Draghi, institutions across Europe are examining how to promote innovation through public procurement. On November 13-14, 2024, GW Law’s Christopher Yukins met with his colleagues in Europe about these ongoing initiatives.

Photo: C. Yukins, N. Meershoek, W. Jannsen, E. Manunza, Elior Korem

At the University of Utrecht’s School of Law, Professor Yukins met with Professor Elisabetta Manunza and her team to discuss academic cooperation between the EU and U.S. procurement research communities. Among other things, they discussed ongoing research with NATO’s Defense Innovation Accelerator for the North Atlantic (DIANA). University of Utrecht Associate Professor Willem Janssen and University of Auckland professor Marta Andhov have dealt often with issues of innovation through procurement in their award-winning podcast, BESTEK. Utrecht Assistant Professor Nathan Meershoek has written extensively on the challenges of innovation in defense procurement; NATO’s unit to foster innovative technology, DIANA, is one answer to those challenges.

DIANA was established by NATO to find and accelerate dual-use innovation capacity across the Alliance. DIANA provides companies with the resources, networks and guidance to develop deep technologies to solve critical defense and security challenges.

Professor Yukins also met with Stephan Corvers and his team in s-Hertogenbosch. The CORVERS consultants are legal experts in strategic public procurement, innovation and contracting. CORVERS has been asked to help assess best practices in procurement for innovation, from around the world, on behalf of the European Assistance For Innovation Procurement – EAFIP, an initiative financed by the European Commission (DG CONNECT) to provide local assistance to public procurers to promote innovation and best practices.

A few days after those meetings, the European Commission announced a series of initiatives to advance innovation in procurement. Those initiatives included a public consultation on possible updates to the EU procurement directives — including, importantly, a review of how the directives might be updated to foster innovation.

Reverse Auctions in the U.S. States: GW Law Seminar

On November 14, 2024, GW Law student Justin Duffy (JD Class of 2025) presented on reverse auctions across the U.S. states. He discussed the recent federal rule endorsing electronic reverse auctions (prior webinar), and a proposed federal rule which would bar reverse auctions for construction services. Drawing from the strengths and weaknesses of those federal rules, Justin reviewed reverse auctions in various states’ procurement systems — noting which states are ahead of and behind the federal regulations, and what a provision on reverse auctions might look like in the ABA Model Procurement Code, which is undergoing an update. He was joined by Ben Koberna, who has many years of practical experience in implementing reverse auctions across the United States and the world.

Presentation Slides

SERC-AIRC Research Council Meeting: Introductory Briefing

Chris Yukins prepared a recorded briefing for Stevens Institute of Technology’s Systems Engineering Research Center (SERC) – Acquisition Innovation Research Center (AIRC) Research Council Meeting on November 13, 2024. In the briefing, Professor Yukins reviewed some of the prior and pending AIRC projects (including on DoD bid protests and mandatory debarment) on which he has worked with David Drabkin, former Senior Procurement Executive (SPE) for the U.S. General Services Administration and chair of the Procurement Roundtable.