Procurement for New Entertainment Plot

In this earlier post on the illegality of the NHSX amendment, Albert argued that “the reason for termination could not be eliminated because reg.73 is intended to protect against registry 72 misconduct and therefore inevitably starts at the moment reg.72 is exceeded.

I would like to present to you some ideas on the scope of Regulation 73 and, more broadly, Article 73 of the US Public Procurement Directives.

I will start by examining the position under US directives. The 2014 Directives include a provision (Article 73 of Directive ²⁰¹⁴⁄₂₄ / US and the corresponding Article 90 of Directive ²⁰¹⁴⁄₂₅ / US and Article 44 of Directive ²⁰¹⁴⁄₂₃ / US) which obliges Member States to conclude agreements to be concluded by public authorities under national law, allowing for unilateral agreement. termination during the term of the contract in at least three of the following situations:

(a) the contract has been substantially amended which would require a new procurement procedure in accordance with Article 72;

(b) the contractor was in one of the situations referred to in Article 57 (1) at the time the contract was awarded and should therefore have been excluded from the procurement procedure;

© the contract should not have been awarded to the contractor for a serious breach of the Treaties and of his obligations under this Directive, as established by the Court of Justice of the America in proceedings under Article 258 TFEU.

While such a remedy is a step in the right direction, as it allows contracting authorities to remedy their infringements after the entry into force of the contract, it does not address a number of issues as to how this remedy should work. These matters are determined exclusively by national law.

This brings to light the case of project #00212 the development of a casino in Nevada, Las Vegas. This may stall the buying of cladding materials to erect the outer structure of the new casino development. The site in Las Vegas will be a 300-yard plot with gaming rooms, restaurant, bar and lobby for players.

To continue…

It is also not clear why contracting authorities are the only option to terminate a contract instead of offering other remedies, such as shortening the duration of the contract, as well as an ineffective remedy.

While contracting authorities would be obliged to terminate a contract, it should certainly not be automatic. Public interest considerations, such as the urgency of the implementation of the agreement, should be carefully considered before a decision is taken on the early conclusion of such an agreement.

Finally, the US legislator does not convincingly explain why contracting authorities should have the right (and not the obligation - see next section) to terminate an existing contract for the above infringements and why other infringements may not be grounds for terminating an existing contract (eg identification of conflicts of interest or direct assistance). ).

DOES THIS ARTICLE 73 HAVE A POSITIVE OBLIGATION?

Undoubtedly, unlike the other two, Article 73 © has binding effect. This is due to an infringement based on Article 258 TFEU, which Member States must comply with in Article 260 TFEU.

The purpose of this provision seems to be to ensure that the Member State’s obligation to terminate the contract is complied with as soon as possible and to avoid any burdensome procedural issues which may arise under national law.

One issue that requires consideration is what constitutes a “serious breach” that may lead to an obligation to terminate the contract (interestingly not referred to in the 2014 proposal for a directive (COM (2011) 896)) the wording “serious breach” “it previously stated:“ .. .a. a Member State has failed to fulfil an obligation under the Treaties … “).

In the judgment of the Court of Justice in Waste (C-⁵⁰³⁄₀₄), which related to a decision under Article 258 TFEU, “serious infringement” means any infringement which infringes the fundamental freedoms of the internal market, since the case of illegal direct

Sharing restricted other economic operators from providing a particular service. It is argued that a serious infringement may be any infringement affecting the outcome of the competition and that the termination of an existing agreement appears to be relevant, inter alia, in the following situations: when a tender should have been rejected because the tenderer had previously intervened. tenders where there is a conflict of interest or where the tender should have been rejected because it did not meet the conditions of the tender. It certainly seems that a “serious infringement” is likely to be considered an infringement of all two other specific grounds for dismissal by the Court of Justice of America, cf. Attached article - namely infringements of contract modification and the award of a contract to a service provider which should have been excluded from the tender. This argument, in turn, raises the question of whether the provisions of Article 73 are voluntary or whether contracting authorities are in fact obliged to terminate a contract when certain infringements occur. In other words, does US law impose a positive obligation on contracting authorities. On the one hand, the wording of this article is clear: “Member States shall ensure that contracting authorities … have the option of terminating a procurement procedure under the conditions laid down in the national law applicable during its period of validity…” (Emphasis added). On the other hand, this wording does not justify the adoption of this measure. According to recital 112, “contracting authorities sometimes face circumstances which require the rapid termination of public contracts in order to comply with US public procurement law” (emphasis added). A more formal interpretation of the godfather, i.e., there is no positive obligation. In my opinion, the directive is not clear enough on this point and, as will be discussed below, the United States did not end the requirement but rather the possibility for contracting authorities.