EU Public Procurement Law

EU Public Procurement Law

Second Edition

Elgar European Law series

Christopher H. Bovis

In this fully revised and updated edition, Christopher Bovis provides a detailed, critical, concise and accessible overview of the public procurement legal framework and its interaction with policies within the European Union and the Member States.

Chapter 2: The legal framework of public sector procurement

Christopher H. Bovis

Subjects: law - academic, european law, politics and public policy, public policy


THE REMIT AND SCOPE OF THE PUBLIC SECTOR DIRECTIVE The Public Sector Directive1 is applicable to the award of public contracts between economic operators and contracting authorities. The term economic operator includes undertakings that are described as contractors, suppliers and service providers and has been introduced in the new Public Sector Directive for simplification purposes.2 On the other hand the concept of contracting authority embraces a variety of organizations that fall within the remit of the State, central or local government3 and also bodies which are governed by public law.4 PUBLIC CONTRACTS: TYPES AND CATEGORIES One of the most important ingredients for the applicability of the Public Sector Directive is the existence of a public contract. What determines the nature of a public contract is not the legal regime that governs its terms and conditions and the relations between the parties. The crucial characteristic of a public contract for the purpose of the Public Sector Directive is the makeup of the See Directive 2004/18, OJ 2004, L134/114. See Article 8 second indent of the Public Sector Directive. The definition of contracting authorities has been uniformly maintained across the evolution stages of public procurement regulation. Article 9 of the Public Sector Directive repeats verbatim the definition of contracting authorities previously found in the preceding Public Procurement Directives and in particular the Public Supplies Directive 93/36/EC, OJ L 199, as amended by Directive 97/52/EC OJ L 328 and Directive 2001/78/EC, OJ L 285; the Public Works Directive 93/37/EC, OJ L 199, amended...

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