AD ALTA
JOURNAL OF INTERDISCIPLINARY RESEARCH
Milosavljevic et al., 2019, Nystrom & Mandell, 2019, O´Shea et
al., 2019).
Naturally, the Europe 2020, the Investment Plan for Europe and
the Initiative are per se policies and so their objectives and goals
need to be carried through by individual law instruments.
Similarly, pursuant to the TEU and TFEU, the exclusive
conferred competencies of the EU do not extend to the public
procurement, and especially if it has a local or strictly national
dimension. The eIDAS Regulation is rather an exception in the
arena of the modernized electronic procurement, since softer
instruments such as Directives and policies, prevail. Namely,
there should be underscored a trio of Directives from the same
year: (i) the Directive 2014/24/EU on public procurement
abolishing the prior Directive 2004/18/EC, (ii) the Directive
2014/25/EU on public procurement in water, energy, transport
and mail services abolishing the Directive 2004/17/EC and (iii)
the Directive 2014/23/EU on concession granting. This trio, i.e.
this general Directive and two special Directives on public
procurement should make sure that businesses have a non-
discriminatory access to the EU market and benefit by legal
certainty as it concerns the governing law.
As a matter of fact, the Initiative represents an attempt by the
European Commission to address the Investment Plan for
Europe and to fully materialize these three Directives from 2014
and to make the public procurement more effective, efficient and
sustainable and the related competition healthier (Radulescu et
al., 2018). Within the Initiative, the European Commission sets
out six priority axis for public procurement: a) use of innovation,
ecological and social criteria (Hochman et al., 2015) with the
focus on the complex assessment of the proposed solution, b)
professionalization of public contracting authorities, c)
improvement of the access of the SMEs to the public
procurement on national as well as EU levels, d) increase of the
quality of data about public procurement (unified e-forms, public
registries), integrity and transparency, e) digitalization of public
procurement, and f) setting of the co-operation with public
contracting authorizes from the entire EU. The pivotal priority
axis is the first mentioned i.e. the use of innovation, ecological
and social criteria (MacGregor Pelikánová, 2019a & 2019b).
Specifically, there is the EU-wide tendering platform TED. In
addition, the European Commission launched ex ante a help desk
system to assist contracting authorities in public procurement
regarding goods or services above EUR 250 million. The help
desk system is instrumental in resolving issues and questions
related to the selection of the type of public procurement used,
setting of the criteria for selection, etc. Projects with a value
exceeding EUR 500 million can be consulted with the European
Commission.
Due to its well-known organization and IP drive, Germany was
expected to be one of the flagship EU member states to carry on
the Investment Plan for Europe, eIDAS and Initiative. The
results regarding trustworthiness and other digital document
issues meet expectations, since Germany has a long tradition of
having a focus on the legal certainty in the digital setting (Vogt,
2016) and is the leading state with respect to the eID and the
mutual recognition (Andrasko, 2017). In contrast, an analysis of
public procurement in Germany and the German use of TED
raises serious issues (EC, 2018 & 2019). Although opening up
EU public procurement markets and transparency are critical,
Germany has one of the lowest values of contract notices
published in TED under the EU public procurement legislation.
Including utilities, these contracts only make up 1.6% of GDP,
compared to the EU average of 4.14% and this may hinder the
effective, efficient and sustainable spending of public money and
cause German and European companies to miss out on business
opportunities (EC, 2018 & 2019). For example, in 2015 the total
procurement volume of the German public sector was around
EUR 330 billion, of which EUR 170 billion (52%) were
allocated to the core- and extra-budgetary activities of the public
authorities, and EUR 160 billion (48%) to public entities. Based
on the total number of all public procurement procedures (EU-
wide or national procedures that were not restricted from the
outset to certain participants) in the period 2011 to 2015, 82%
were effected nationally and only 18% EU-wide (EC, 2018 &
2019). There is a myriad of reasons for this, such as laws open to
divergent interpretations allowing for circumventing public
procurement procedures, especially EU-wide procedures, and an
underemployment of the modernized electronic public
procurement. This leads to the lack of transparency, as better
information can enable a more targeted policy approach when it
comes to opening up the German public procurement market.
In contrast to Germany, Ireland showed a strong drive for PPPs
with the explanation that it can address more efficiently, and
perhaps as well more effectively and sustainably, public needs,
especially public infrastructure needs (O´Shea et al., 2019).
However recently, a comparative analysis of traditional public
procurement and PPP mechanisms has revealed via detailed
semi-structured interviews with key stakeholders and an
examination of the available documentation a different picture.
There was found no evidence that PPP leads to faster delivery or
that PPP results in better value for money (O´Shea et al., 2019).
Therefore, Ireland works further in the direction of the
modernized electronic procurement.
A similar trend can be observed as well in Sweden and there are
already some very practical propositions how to improve it, such
as the use of unit price contracting (“UPC”) forcing potential
contractors, aka competing agents to offer corresponding unit
prices i.e. the bid is a price vector. Due to the not exclusive drive
for the low cost, most often, but not always, the lowest vector
sum is awarded the contract. Such a modernized electronic
public procurement is transparent and properly addressing the
potential problem of unbalanced bidding (Nystrom & Mandell,
2019).
4 Modernized electronic public procurement – a Czech
setting and case study
The EU framework for the modernized electronic public
procurement is reflected by the Czech law, namely the legal duty
to have and conduct the public procurement electronically (4.1).
A Czech case study via a pioneering questionnaire investigation
reveals that the awareness is low, but once increased,
respondents seem to see an impact on the competition and to
share a positive perception of the modernized electronic public
procurement and to welcome it (4.2)
4.1 Czech compulsory electronization of public procurement
In the Czech Republic, the trio of public procurement Directives
from 2014 is reflected by the Czech Act No. 134/2016 Coll., on
public procurement (“Public Procurement Act”). The eIDAS
Regulation is reflected by the Act No. 297/2016 Coll., on
services to create trustworthiness for electronic transactions
(“Trustworthiness Act”) which, among other things, abolished
the Act No. 227/2000 Coll., on electronic signature and took
effect on 19 September 2018. The main focus of the
Trustworthiness Act concerns the trustworthiness of electronic
communications
and transactions, including electronic
signatures, stamps, seals and documents.
In order to properly follow the strategies from the Investment
Plan for Europe and Initiative and further develop the Public
Procurement Act and Trustworthiness Act, there was issued a
Ministerial Ordinance 260/2016 Coll., on setting detailed
conditions for electronic instruments, electronic acts for public
procurement and conformity certificate (“Ordinance 2016”). The
Ordinance 2016 took effect on 1 October 2016 and especially
regulates the access to documents and information via electronic
instruments in the sphere of public procurement.
The Ordinance 2016 imposes the duty on all public contracting
authorities to make sure that everybody can check the identity of
this public contracting authority as previewed by eIDAS
Regulation, Trustworthiness Act and Art.3 of the Ordinance
2016. Further, the public contracting authority has the duty to
provide potential contractors with a certificate of the public key
in order to enable these potential contractors to encrypt the
- 36 -