More than four years after the entry into force of the new EU Public Procurement Directive, more than two years after the deadline for transposition and more than one year after publication of the first transposition draft, the time has come. Following the resolutions of the Council of Ministers and the Federal Council, it can be assumed that the Federal Procurement Act 2018 will enter into force by July 2018.
The courts have ruled that a successful tenderer which raises unreasonable objections to an application to vary a confidentiality ring in a public procurement dispute may be liable for the claimant's costs of the application, even though it's not a party to that dispute. The decision means that successful tenderers wanting to object to the use and adaptation of confidentiality rings in procurement challenges should consider carefully the extent to which they should raise objections.
The Ministry of Finance has issued a regulation in order to implement provisions for the establishment of state-owned infrastructure guarantee corporations (BUPI). The regulation sets out more detailed provisions on government guarantees for infrastructure projects, as well as the nature, scope of and procedures governing such guarantees. A guarantee provided by a BUPI may cover infrastructure, political and default risks, among others.
Saudi Arabia is currently attempting an ambitious reorientation of its economy. The Saudi Arabian Vision 2030 and the National Transformation Programme 2020 comprise the most comprehensive strategy shift in Saudi Arabian economic policy since oil was found in the country. The Saudi Arabian Vision 2030 and the National Transformation Programme 2020 are expected to ease existing restrictions and liberate the market, in order to foster development of a domestic defence manufacturing industry.
In a recent decision, the Seventh Circuit joined the Eighth, Ninth and Tenth Circuits in holding that the federal disadvantaged business enterprise (DBE) programme is constitutional on its face because it serves the compelling government interest in remedying a history of discrimination in highway construction contracting. With four appellate courts approving of the constitutionality of this federal DBE programme, should non-DBE specialty subcontractors be worried?
Almost one year after the two-year transition period of the EU directives on public procurement law expired, Austria published a consultation draft of the new Federal Procurement Act 2017 to implement the directives. While Austria took a somewhat conservative approach when implementing the directives, there are some areas where the Austrian draft for the transposition of the directives is significantly stricter than the directives themselves.
The Federal Administrative Court recently addressed whether the party to a winning project in a conflict procedure was entitled to claim rights in the environmental impact assessment for the inferior project. The court ruled that, on the one hand, the legal standing of a party in a conflict procedure is not strictly restricted to that procedure. On the other hand, the court found that being party to a conflict procedure does not guarantee unlimited legal standing in the approval procedure of the other project.
The regulation increasing the Procurement Act's thresholds has been extended for a further two years. Thus, contracting public authorities can continue to benefit from the significantly wider application of the direct award procedure and the so-called 'restricted procedure without prior publication' until 2018. However, contracting authorities should be aware that the Treaty on the Functioning of the European Union may still require an ex ante notice for contracts of a certain cross-border interest.
The Ministry of Infrastructure, Transport and Networks recently approved and made available to interested bidders the final version of the draft concession agreement for the new international airport in Kasteli, Crete. This bidding phase highlights that the Greek aviation sector is undergoing a significant transformation, one which will result in a major shift in the operation of Greek airports from the public sector to the private sector.
The two-year transition period for implementing the new EU directives on public procurement recently lapsed. While the majority of member states have at least partially implemented the directives, Austria has yet to pass draft legislation transposing any of them. However, despite this, the directives (at least in significant parts) already apply in Austria and individuals can – either directly or indirectly – rely on the majority of the provisions therein.
Due to their capital-intensive nature, infrastructure projects are traditionally financed by the government; but there has recently been a shift towards public-private partnerships (PPPs) as an alternative mode of procuring infrastructure. The potential benefits of increased PPP-driven infrastructure projects include poverty reduction, job creation and economic improvements, and measures should be taken to incentivise greater participation.
The Vienna Administrative Court recently ruled on a challenge to a tender conducted by a German centralised purchasing body under German public procurement law. The court concluded that even if the German purchasing body was qualified as a centralised purchasing body, the Austrian complaints mechanism would apply, as the purchasing activities in relation to the Austrian lot were attributable to the Viennese contracting authority.
The Vienna Administrative Court recently ruled on the requirements regarding the level of proof needed to demonstrate grave professional misconduct in relation to public procurement. The court held that a contracting authority need not necessarily wait for a final criminal judgment: if criminal investigations provide grounds for sufficient and precise suspicion, there is no need to wait for an indictment or a court order to institute proceedings.
The Ministry of Finance recently established a working group to draft a new model for partnerships between Brazilian public entities and the private sector for the implementation of strategic projects of national significance. The working group's draft bill seeks to create a fast-track public-private partnership model which is more responsive, efficient, flexible and transparent.
Commercial contracts entered into with public authorities are categorised as private contracts, but the liquidation of such contracts is treated differently, due to the existence of clauses of a public nature and the Appellate Court's interpretation. Contractors entering into such tenders must be aware of these differences, the possible legal implications that may arise from them and their impact on contracts.
In Brazil, there is a substantial gap between the number of people using public transport in the cities and the available public infrastructure. This issue has become a priority for all levels of government. As such, the country is looking for ways to tackle this issue, including establishing a centralised authority in metropolitan regions, developing a transport network restructuring model and establishing a long-term urban mobility plan.
The Administrative Court of Lower Austria recently confirmed that certain provisions in the new EU directives on public procurement have advance effects. The court ruled that the negotiated procedure set out in the Procurement Act must be interpreted in line with EU Directive 2014/24/EC. Contracting authorities and bidders should thus consider certain mandatory rules and provisions set out in the directives when applying existing regimes.
The federal government recently issued a new federal decree in order to regulate expression of interest procedures, which allow private companies to perform feasibility studies for infrastructure projects at their own expense, on authorisation by the relevant government entities. The use of such procedures in new infrastructure projects has been shown to increase public acceptance and project credibility.
Turkey is exploring alternative ways to fund infrastructure projects, which have traditionally been financed by bank debt. The establishment of a new legal framework means that private equity investment funds could be an alternative tool for financing future infrastructure projects. Investment funds specialised in infrastructure projects could attract both domestic and foreign investors.
The Anti-corruption Law has expanded the list of possible penalties and set out new administrative and judicial penalties which may be imposed on private parties in cases of fraudulent practice in connection with public procurement proceedings and related government contracts. Moreover, the act now imposes joint liability on controlling, controlled and affiliated companies, as well as on companies that are members of the same consortium.