Right for Equal Opportunity for Fair Public Contract? Human Rights in Public Procurement

Abstract

According to the new European Union’ Public procurement legislation (hereinafter 2014 PP Directives), the award of public contracts by or on behalf public authority has to comply with the principles of the Functioning of the European Union, and in particular the free movement of goods, freedom of establishment and freedom to provide services, as well as the principles deriving therefrom such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency and sound procedural management. We understand that the main goal of public procurement is not to protect human or fundamental rights, but to put public funds to effective use. However, by adopting the new concept of procurement, there exists space for the penetration of such rights in the public procurement arena. Human and fundamental rights protection shall be applied continuously during the process of procurement, and in both the contracting and implementation phases. The authors will focus their research especially on the competitor´s right to good administration which shall guarantee the competitor´s right for equal opportunity for fair contract. Nowadays, it is not rare a situation, when the contracting authority due to breach of the principle of sound administration prioritizes another competitor rather than one, who was supposed to win. Therefore, a competitor´s right to adequate compensation under such circumstances will also be examined.