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RESEARCH ACADEMY

RESEARCH

Administrative Law

Contratos públicos: princípios comuns para questões comuns

projetos
Responsible Researchers:
LPL Researchers:
Financing:
UIDB/04310/2020
Project Status:
Ongoing
projetos

Summary

This research project will reflect on public procurement law as a normative reality, based on two central axes: the international dimension, increasingly relevant, in general, and specifically in the European space, and the need for guidance on public procurement law. public contracts for specific public policy objectives, without disregarding the structuring principles of this branch of law. The aim is to contribute, on the one hand, to making public contract law an instrument for pursuing the common good, keeping in mind the movement towards convergence of European legal systems based on European Union law and the strengthening of legal investigations. compared in this area, which constitutes the background or context in which this branch of law develops.

Objectives

The project aims to follow current trends in the implementation of public policies through public contracting. This is a topic that, under different names and perspectives (strategic public procurement, implementation of secondary policies), has been referred to as a means of pursuing specific objectives (environmental sustainability, improvement of working conditions, integration of disadvantaged workers, technological innovation, access of SMEs, and, currently, economic recovery following the Covid-19 pandemic). This research project is based on the hypothesis that the best approach is the integration of the different objectives that permeate the law of public contracts and not their unilateral or excessive pursuit, also recognizing the typical mechanisms (and limits) that have been proven in the public procurement law. The idea of “strategic public procurement” is just an expression, sometimes exaggerated or naive, of the search to achieve socially valuable objectives in a fair way, through public procurement law. Looking for a synthetic expression of this hypothesis, the objective is to understand public procurement law as a normative system that, through its rules, seeks to efficiently and effectively implement different objectives that can be led back to the common good. The project also assumes that a full understanding of the law of public contracts, in this way, does not dispense with meeting the challenges arising from the insertion of each national legal system into broader law communities, a reflection that is obviously not unrelated to the insertion of Portugal in the European Union and the importance that this organization has had in the development of this branch of law. Therefore, one of the central objectives of the project is to understand and explore the possibilities of future paths for the development of public contract law at a supranational (regional and international) and transnational level; in this sense, the project has a relevant prospective/exploratory dimension.

Relevance

As part of the project's reflection, the following thematic topics will be developed: a) Problematic nature of delimiting the field of application of public procurement rules, between European and national systems; b) Effectiveness of systems of causes of exclusion related to lack of suitability and non-compliance with previous contracts, particularly in a context of movement of economic agents between different States; as an issue arising from this, the articulation between European public procurement law and national laws with regard to the criminal, administrative and other sanctioning consequences of illicit acts related to public procurement (the issue of prohibitions on participation in pre-contractual procedures being an example). contractual); c) Compliance with labor and social rules and public procurement law, especially in the context of cross-border public procurement; d) Difficulties in applying foreign law in contexts of public procurement law (for example, the cases of cross-border joint acquisition initiatives/under initiatives by European institutions, such as contracts for the acquisition of personal protective equipment and development and production of vaccines); e) Transformation of European law and national laws in matters of public procurement law following the crisis created by the Covid-19 pandemic, with different issues: (i) the issue of sufficiency or insufficiency and the application of “normal” procurement mechanisms reaction to urgency; (ii) exceptional regimes in the field of public contracts and problems of compatibility with European law; (iii) the apparent national and European impulses to use public procurement as a driver of economic recovery and the preservation of the structuring principles of European public procurement law; f) Comparison of different national models for resolving disputes regarding public contracts.

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Lisbon Public Law Research Centre

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