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.