Browsing by Author "Jämsén-Smith, Iina Marjaana"

The purpose of regulating public procurement within the EU is to establish rules that enable the contracting authority to select the tender that offers the best value for money in respect of the goods or services that are being procured. However, value for money will not be achieved if the purchase price is increased by tenderers entering into unlawful agreements amongst each other with the aim of distorting competition in contract award procedures. Competition can be distorted by collusive tendering or through other means such as unlawful joint tendering. European and national competition authorities have investigation and enforcement powers to react to such schemes by issuing penalties in the form of fines after the award of the contract. Although fines fulfil the purpose of punishing tenderers and acting as a general deterrent, they are an ex-post sanction and do not prevent the award of a contract in a pending public procurement procedure to a tenderer that has ignored the deterrent and has regardless of it participated in a scheme that distorts competition. It is thus vital to also react to such schemes prior to the award of the contract. Article 57(4)(d) of Directive 2014/24/EU on public procurement empowers contracting authorities to exclude tenderers from ongoing public procurement procedures if the contracting authority suspects a tenderer’s involvement in a scheme that distorts competition. However, legal uncertainty has arisen in relation to how Article 57(4)(d) should be interpreted. The wording of the provision is very similar to that of Article 101(1) of the Treaty on the Functioning of the European Union (‘TFEU’) and both provisions pursue similar objectives. Given these similarities, the first part of this thesis centres on exploring whether Article 57(4)(d) of Directive 2014/24/EU should be interpreted in line with Article 101 TFEU. The focus of the second part is on the application of Article 57(4)(d) of Directive 2014/24/EU in the context of joint bidding in public procurement. Joint bidding is expressly permitted by EU public procurement law and can potentially generate sincere advantages to the economy. However, it can also be used as a means for engaging in illegal cartel conduct that infringes Article 101 TFEU. Distinguishing legitimate procompetitive joint bidding agreements from anticompetitive joint bidding agreements that infringe Article 101 TFEU can be difficult, particularly when complicated joint bidding arrangements are concerned. The second part of this thesis focuses on identifying the criteria that should be considered in assessing whether a joint bid is compliant with Article 101 TFEU. The identification of such criteria is crucial to assist contracting authorities in the application of Article 57(4)(d) of Directive 2014/24/EU in the context of joint bidding and economic operators considering the submission of a joint bid.