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.
