Reformation or Deformation of the EU Public Procurement Rules
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Reformation or Deformation of the EU Public Procurement Rules

Edited by Grith S. Ølykke and Albert Sanchez-Graells

Using an innovative ‘law and political science’ methodology, this timely book carries out a critical assessment of the reform of the EU public procurement rules. It provides a rich account of the policy directions and the spaces for national regulatory decisions in the transposition of the 2014 Public Procurement Package, as well as areas of uncertainty and indications on how to interpret the rules in order to make them operational in practice.
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Chapter 5: Division into lots and demand aggregation – extremes looking for the correct balance?

Ignacio Herrera Anchustegui

Abstract

The 2014 Directive aims at increasing efficient public spending and ensuring best value for money for contracting authorities. To achieve this, the 2014 Directive promotes fostering SMEs’ participation in public procurement tenders and adopts a demand aggregation policy. The 2011 Proposal incorporated a pro-SME suggestion to divide public contracts into lots, which resulted in the adoption of Article 46 of the 2014 Directive. Its outcome is a compromise between a strong suggestion for contracting authorities to divide contracts and a softer approach. As a result, division into lots is not mandatory in all cases, but Member States can make it compulsory for certain contracts under national law. Concomitantly, the 2014 Directive also promotes and encourages demand aggregation techniques such as framework agreements, dynamic purchasing systems and centralised purchasing. However, aggregating demand to reduce costs and increase buyer power dis-incentivises contracting authorities from dividing contracts into lots, and, therefore, risks impairing SME participation. This chapter discusses how these provisions have been incorporated into the 2014 Directive and which stakeholders have shaped their content, while showing how these trends clash, which, in practice, requires an exercise in balancing.

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