Following last week's initial reaction to the publication by the European Commission of the "Feasibility study concerning the actual implementation of a joint cross-border procurement procedure by public buyers from different Member States" prepared by BBG and SKI, I have now written a response paper: "Is Joint Cross-Border Public Procurement Legally Feasible or Simply Commercially Tolerated? ~ A Critical Assessment of the BBG-SKI JCBPP Feasibility Study" (2017) European Procurement & Public Private Partnership Law Review (forthc), available at: https://ssrn.com/abstract=2944008.
The paper provides a critical assessment of the BBG-SKI study and submits that, while the study provides some interesting data and details about relevant case studies, it does not shed significant light on the doubts created by the rules on joint cross-border public procurement (JCBPP) in the 2014 Public Procurement Package [which I had previously sketched out here], and that the main weakness of the study is its lack of a general legal analytical framework.
In order to go beyond the shallow legal analysis of the BBG-SKI study and try to gain additional legal insights on the basis of the same empirical data, the paper proposes an analytical framework under which to assess the legal compliance of JCBPP structures. It then summarises each of the case studies included in the BBG-SKI study and offers a critical (re)assessment of the issues that would have required more information and/or which are insufficiently analysed in the BBG-SKI study. Based on this reorganised empirical evidence, the paper proceeds to a critical assessment of some of the outstanding legal barriers and challenges to JCBPP. It concludes by stressing some of the remaining uncertainties concerning legal development at Member State level, and calls on the European Commission to facilitate more detailed research leading to the adoption of future guidance on JCBPP under the 2014 EU Public Procurement Directives.