The paper discusses issues of balance between promotion of competition and the pursuit of horizontal or secondary policies in public procurement under the rules of Directive 2014/24. The abstract is as follows:
Public procurement is a pillar in the Europe 2020 strategy and one of the core policies derived from the Single Market Acts I and II. Majoritarian views advocate for an interventionist approach and instrumental utilisation of procurement for the promotion of horizontal policies seen as deeply embedded in the Europe 2020 strategy. Conversely, public procurement can only make such a contribution by promoting the maximum degree of competition and being open to market-led innovation, instead of trying to mandate or ‘drive’ such innovation or ‘greening’ of procurement.
This paper takes the view that the principle of competition is the main tool in the post-2014 procurement toolkit and the moderating factor in the implementation of any horizontal (green, social, innovation) policies under the new rules—that is, that competition remains the main consideration in public procurement and that the pursuit any horizontal policies, including those aimed at delivering the Europe 2020 strategy, need to respect the requirements of undistorted competitive tendering. To substantiate that claim, the paper focusses on the interpretation of Article 18(1) of Directive 2014/24, which consolidates the principle of competition, and proposes a strict proportionality test applicable to the promotion of horizontal procurement policies where such ‘strategic’ or ‘smart’ use of public procurement can generate market distortions.
The full reference is: Sanchez-Graells, Albert, Truly Competitive Public Procurement as a
Europe 2020 Lever: What Role for the Principle of Competition in
Moderating Horizontal Policies? (July 31, 2015). Available at SSRN: http://ssrn.com/abstract=2638466. Comments welcome!