Emerging Challenges to Public Procurement: Covid-19 and Regulatory Approaches to Public Contracting in the EU, the United Kingdom, and France

Abstract

In recent years, the use of public procurement as a tool to manage the health crisis and, most recently, the Ukraine crisis, has raised concerns. In their efforts to fight the pandemic, as well as for palliation of the economic effects of lockdowns, Member States have implemented various procurement adjustments, and since 2020 we have seen the European Commission resorting to guidance that, in effect, puts in abeyance public procurement rules related to transparency, equality, and competition. Against this backdrop, the article reflects on the regulatory tensions stemming from the use of public procurement as a crisis management tool. Relying on comparative legal analysis, the article looks at the changes in public procurement spurred by the SARS-CoV-2 crisis in the EU, France, and the UK. The article expresses particular interest in evaluating the discretion left to the contracting authorities and the extent to which allowing such discretion can negatively influence public procurement principles such as transparency, legal certainty, equality, and open competition.