The International Procurement Post: Winter 2023/24

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

In Focus

Procurement of AI Solutions - Legal and commercial developments, and considerations for contracting authorities

This article discusses legislative and regulatory developments relating to the procurement of artificial intelligence (“AI”) solutions in the UK public sector, recent commercial developments, risks posed by AI technologies, and practical steps that contracting authorities can take to mitigate these risks.

Read the full story

For more information contact Roger Bickerstaff or Henna Malik.

Updates from our jurisdictions

The Netherlands

Commissioning construction works to be completed by a third party in the event of a non-performing (sub)contractor

As a contracting authority, are you entitled to terminate a construction contract with a non-performing contractor and have the works carried out by a third party? If so, how would you approach this matter? Recently, the Dutch court Zeeland-West Brabant issued an interesting ruling that provides insight as to how these questions should be answered.

Read the full story

For more information contact Janneke Kohlen or Mariam Ali.

Denmark

An amendment notice cannot replace a contract notice

In a ruling of January 10, 2024, the Danish Complaints Board for Public Procurement (named the Complaints Board) dismissed the procedure of a contracting authority. The contracting authority had chosen to announce an amendment to a minimum requirement regarding the suitability of the tenderers by using an amendment notice, instead of issuing a cancellation notice and a new tendering process.

Read the full story

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

Poland

How to choose the best contractor? A new approach to procurement in Poland

In Poland, almost 90% of procedures above the EU thresholds are carried out under the open tender procedure. Only 0.7% of them are conducted under the restricted tender procedure, including the pre-qualification of contractors. We help our clients to change their approach to procurement and prepare procedures for them to assess the quality of contractors' experience.

Qualitative evaluation of contractors' experience, also known as expert evaluation, is still a novelty on the Polish market, unlike in other EU countries. The National Chamber of Appeal, in its judgment of 12 August 2022, KIO 1908/22, finally ruled that the graded evaluation of experience is objective and allows to select the contractors that are most capable of performing the contract.

Read the full story

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

Germany

The key regulations and the burden of proof for product and manufacturer preferences in public tenders

In public procurement law, manufacturer- and product-specific tenders are permitted only under strict conditions. The public contracting authority must prove that the choice of a manufacturer- or product-specific description is objectively justified by the nature of the procurement and is free from arbitrariness. Constant jurisprudence highlights the importance of product neutrality to keep market access open and to ensure equal opportunities. Manufacturer-specific conditions must not lead to a disproportionate restriction of competition and are justified only in exceptional cases, such as when system security and compatibility necessarily require it. A critical examination of the decisions of procurement chambers and senates shows that the justification for such tenders must meet a high burden of proof.

Read the full story

For more information contact Dr. Patrick Goffart.

Italy

Council of State rules again on the invalidity of quality certificates after Brexit

With judgment No. 9629 of 9 November 2023, the Council of State – the Italian court of appeal for trials concerning administrative law cases – has returned to the issue of the validity of quality certificates issued by certification bodies located in the United Kingdom after Brexit.

Read the full story

For more information contact Camilla Triboldi or Chiara Nuzzo.