The International Procurement Post - Spring 2024

Brought to you by the International Public Projects and Procurement Group at Bird & Bird.

Finland

Some Clarifications Obtained on the Status of In-House Entities

The Finnish Act on Public Procurement and Concession Contracts (1397/2026, as amended) (“the Act”) requires that contracting entities in Finland arrange competitive tendering for their procurements. One exception to the main rule is procurements from in-house entities, which do not require such tendering. However, evaluating and determining the status of these entities is not always straightforward. This complexity has sparked ongoing debate in Finland regarding in-house entities and conducting public procurement without competitive tendering, as may be permitted under the Act.

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For more information contact Riikka Aarikka.

Denmark

The Danish Complaints Board for Public Procurement approves the Central Denmark Region's procurement of Covid tests by use of the negotiated procedure without prior publication

The case concerns the Central Denmark Region's direct award of contracts for the supply of Covid-19 antigen tests in the period February 15, 2021 - December 22, 2021, and whether the conditions for the use of this special procedure were met.

During the Covid-19 pandemic, the Central Denmark Region (the Region) assumed a special role as a central purchasing body for the Danish regions, municipalities, and all state institutions. Through direct award of contracts under Article 32(2)(c) of Directive 2014/24/EU on public procurement, the Region procured over 84 million tests for sectors like education, elderly care, and hospitals, with a value of around EUR 268 million.

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For more information contact Thomas Thorup Larsen, Simon Haugaard or Tina Johansen.

Poland

China and Turkey find access to the EU public procurement market increasingly difficult

In Poland, contractors from China and Turkey are winning more and more public contracts of increasing value, mainly in the infrastructure sector. As a result, two cases in Poland before the EU Court of Justice (C-266/22, C-266/22) are being watched with great interest to see whether contractors from these countries are entitled to rights under the public procurement directives (Nos. 2014/24 and 2014/25).

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For more information contact Tomasz Zalewski, Julita Hoffmann or Karolina Kacprzak. 

Germany

In-house procurement and public limited companies: Can the control condition be met? 

For the application of the in-house exception, the contracting authority must first exercise over the distinct entity a control that is similar to the control that it exercises over its own departments (control criterion). When assessing whether the control condition is satisfied, the form of the company plays a not insignificant role. Regarding public limited companies, the CJEU has already ruled several times that sufficient control cannot be exercised for an in-house procurement. However, the circumstances of the individual case are always decisive. But what really matters?

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For more information contact Karoline Kniha.

The Netherlands

Circular Procurement and the Built Environment

How can we reduce our material consumption and generate less waste? This is an important question being addressed by legislators around the world. The European Union (the “EU”) leads the way with its ambitious goal to transform the EU into a sustainable, low-carbon, resource-efficient and competitive economy. 

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For more information contact Janneke Kohlen or Mariam Ali. 

United Kingdom

Use of AI in Public Tenders

A Procurement Policy Note (PPN) on the use of AI in tenders was published in March 2024 (PPN 02/24: Improving Transparency of AI Use in Procurement). The PPN provides guidance to contracting authorities in respect of their duties to put proportionate controls in place to ensure confidential contracting authority information/information not in the public domain is not used to train AI systems.

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For more information contact Henna Malik.