Professor Gabriella Racca hosted a colloquium on transnational procurement at the University of Turin on February 5, 2020. The discussion focused on a new book, Joint Public Procurement and Innovation: Lessons Across Borders (G. Racca & C. Yukins, eds., 2019). Further information is included in the accompanying flyer.
Professor Chris Jansen (VU Amsterdam) and Professor Patricia Valcárcel Fernández (University of Vigo), members of the academic consortium Public Contracts in Legal Globalisation, are undertaking a detailed (and quite interesting) study of contract administration law in the European Union, to assess the relationship between competition and contract administration. They presented on this project at the consortium’s meeting at the University of Paris – Nanterre (La Defense campus) on December 13, 2019. They describe their project as follows:
This project seeks to investigate, problematize, and clarify the possible interaction between the competition interest, as well as its regulation, inherent in competitive tendering on the one hand, and the execution of public contracts and concession contracts on the other. The project is based on the assumption that the particular factual and legal context of competitive tendering must be taken into account by the courts when they apply rules of substantive law in order to resolve issues related to the execution of contracts. If this assumption turns out to be correct, it would further mean that the resolving of issues by the courts could, in its turn, have an impact on the competition interest. If that is indeed proven to be the case, the results of the project could be relevant for the further debate on public procurement regulation.
Based on the aforesaid assumptions, this project seeks to answer the following three research questions. (1) In the event that a national court of law must resolve issues regarding the execution of a public contract or a concession contract by applying rules of substantive law (general administrative law; general private law; common law, depending on the legal system concerned), will the court take into account the particular factual and legal context of the competitive tendering procedure? If so: how will the court do this? If not: why not? to indicate those rules that relate to the award of public contracts and concession contracts by means of competitive tendering procedures. Another factual difference relates to the bargaining power of the parties involved in the two situations. In the second situation, it is possible – although not necessarily so – that the two private parties will have had equal bargaining power when they negotiated the content of their contract. In the first situation, however, it is inherent in the competitive tendering procedure that the contracting authority will have had the power to dominate the content of the subsequent contract.(2) To what extent is it possible to problematize and/or unify the various approaches that are found in the answers to question (1)? (3) Based on the aforesaid analysis, to what extent is it possible and necessary to give recommendations to national courts, legislators and perhaps even the supranational legislators (e.g. the European Union) as regards the subject matter?
As the project description suggests, this study relates directly to what may the next wave of reform in procurement in the European Union — a critical reassessment of public contract administration law (and forums), which is also a focus of the upcoming March 16, 2020 symposium at King’s College, London.
The full project description is included below.
On December 12, 2019 the University Paris Est Créteil hosts a conference on principles of public contracts in Europe, coordinated by Professor Stéphane de La Rosa, University Professor and Director of the Research Team MIL (Markets, Institutions and Liberties).
Martin Raz – Havel & Partners – Czech Republic
Steven Van Garsse, Professeur à l’Université de Anvers (BE), Professor of Public Law – University of Anvers/Hasselt, on Principles of efficiency and effectiveness
Romélien Colavitti, Senior Lecturer in Public Law – University of Valenciennes, on The principles governing alternate modes of dispute resolution
Carole Cravero, PhD student University of Turin and University of Paris-West Nanterre, on The Principles of Corporate Social Responsibility and Public Contracts
Vincent Bouhier, Senior Lecturer and Dean – Evry-Paris Saclay University, The Principle of Reciprocity
Lt Col Daniel Schoeni, Judge Advocate, U.S. Air Force; PhD Candidate, University of Nottingham, Is the practice of negotiation in public contracts a common principle?
Christopher Yukins, Lynn David Research Professor of Government Procurement Law, George Washington University Law School; moderator
On September 30, 2019, at the University of Warsaw, the Public Procurement Law Association of Poland held a conference (program below) on exclusion of contractors (called “debarment” in the United States and elsewhere), which looked at rules and practices in the European Union (EU), the European Free Trade Association (EFTA) and the United States. The conference featured a report (below) summarizing procedures used in 31 EU and EFTA nations, which was sponsored by the Association. The presentation by Professor Christopher Yukins is also set forth below.
Join a special presentation on the United States’ international trade agreements in procurement. Chris Yukins and Allen Green will present on their chapter in The Contractor’s Guide to International Procurement (American Bar Association 2018) (Erin Loraine Felix & Marques Peterson, eds.). They will give an overview of international trade agreements, and discuss recent “Buy American” developments in the Trump administration. The program will be held at the Dentons law firm, 1900 K Street NW, from 12-1:30 pm. Lunch will be served.
Call-in information: +1-877-211-3621 Passcode: 788 499 1844
Chapter by Christopher R. Yukins & Allen B. Green, in The Contractor’s Guide to International Procurement (American Bar Association 2018) (Erin Loraine Felix & Marques Peterson, eds.)
Available at: https://ssrn.com/abstract=3443244
Some of the most difficult issues in U.S. procurement law stem from the nation’s several centuries of accumulated protectionist measures, and from a patchwork of trade agreements meant to contain that protectionism. These conflicting measures reflect a push-and-pull in U.S. procurement policy, between those who favor closed procurement markets and those who favor open competition; the compromises reached between the two camps have created a Byzantine set of rules and requirements. At the same time, though, this area of law holds a special promise for the future of procurement, for cross-border agreements currently offer the readiest means of erasing anti-competitive differences between national rules, by bringing many nations to a common standard of international best practice. To make sense of this complex area, this chapter proceeds in three parts. Part II reviews the major pieces of protectionist legislation passed by Congress, focusing first on the Buy American Act of 1933; this discussion also references some of the most important implementing regulations. Part III reviews the most important U.S. trade agreements which have limited the force of that protectionist legislation, including the World Trade Organization’s Agreement on Government Procurement (GPA). Because barriers to procurement can also arise from structural factors — “non-tariff barriers to trade” which, in practice, may protect domestic vendors — this part also explains how the trade agreements mitigate those non-tariff barriers. Finally, Part IV concludes by offering some practical suggestions for those working in this field, and suggests a possible road ahead for cooperation in international procurement markets.
Yukins, Christopher R. and Green, Allen, International Trade Agreements and U.S. Procurement Law (2018). Chapter 9 to The Contractor’s Guide to International Procurement (American Bar Association 2018) (Erin Loraine Felix & Marques Peterson, eds.); GWU Law School Public Law Research Paper No. 2019-55; GWU Legal Studies Research Paper No. 2019-55. Available at SSRN: https://ssrn.com/abstract=3443244
In an editorial published in Italian newspaper Il Sole 24 Ore, Professor Gustavo Piga of the University of Rome – Tor Vergata, an activist in Italian politics and and a leader in the international procurement community, responded to an article by Christopher Yukins assessing the Trump administration’s latest Buy American initiative. Professor Piga argued that, though the actual impact of the Trump order might be minimal (as Professor Yukins pointed out), Italian policymakers should emulate U.S. support for small businesses, which the U.S. undertakes through protectionist preferences. Professor Piga closed: “GliStatiUniti lo insegnano chiaramente: non pensando per le piccole, smettiamo di pensare in grande.” (“The United States clearly teaches this: by not thinking of the small, we stop thinking big.”).
This is the fourth European conference on e-public procurement organized by the Portuguese Observatory of Technology Foresight (OPET), focusing on the European public procurement directives and their implementation in the European member states through e-procurement. The conference scientific committee is headed by Professor Luis Valaderes Tavares, and the conference program is here.
On March 5, 2019 Christopher Yukins joined a videoconference for King’s College, London’s online diploma course on EU and global procurement law. His slides are below. On April 24, 2020, he joined them for a supplemental class by Zoom videoconference (linked below).
On May 30, 2019, there will be a conference on U.S. – EU environmental issues in Rome; the program for the colloquium, which will cover issues from climate change to sustainability in procurement, may be downloaded below.
The conference was launched by Dr. Giovanni Antonelli, of the “Sapienza” University of Rome, with the support of Prof. F. Giglioni and Prof. M.V. Ferroni of the University’s Department of Political Science, and the Center for American Studies. Dr. Antonelli writes:
For over the last year we have been thinking how to engage some of the most eminent international experts for empowering our common interest and work towards potential models of sustainable development.
Built upon the shared belief that the current political divide felt over our continents is polarizing and alienating not only our cultures but often it is even estranging groups and movements that have similar values and goals, the “U.S.–E.U. Environmental Law Colloquium” aims to encourage participation and collaboration between American and European Scholars on a regular basis, to share the progress of our researches and to launch new initiatives and projects for the implementation of the environmental policies.
For the organization of this first edition we do want to acknowledge the important role played by the Sapienza University Department of Political Science and by the Center for American Studies of Rome, without whose fundamental support this international project would not have been carried out.
We would like to thank all the speakers who have decided to join our project, with a specific regard to Prof. J. Freeman (Harvard Law School), Prof. M. Gerrard (Columbia Law School), Prof. M. Scanlan (Vermont Law School), Prof. C. Yukins (GWU School of Law) and Prof. J. Dernbach (Widener University).
The all-day colloquium will begin at 9:30 a.m. on May 30, 2019, at the Center for American Studies, Via M. CAETANI, 32, Rome.
For information and reservations: giovanni.antonelli@uniroma1.it