This presentation discusses the EU's Joint Procurement Agreement for the procurement of medical countermeasures, its main characteristics and key legal issues. It also discusses the UK's decision not to participate in the JPA for ventilators in response to the COVID-19 crisis.

1. The EU’s Joint Procurement
Agreement: how does it work,
and why did the UK not
participate?
Prof Albert Sanchez-Graells
IMPPM ‘Procurement Pills’
Rome/Bristol, 4 April 2020

2. Agenda
Explore the EU’s Joint Procurement
Agreement for Medical Countermeasures
Compare it to the structure of cross-border
procurement regulated in Directive 2014/24/EU
Speculate on the reasons why the UK decided
not to participate in COVID-19 related JPA

3. Background
These are unprecedented times in the
application of EU public procurement law
Luckily, Art 32(2)(c) Dir 2014/24/EU
provides an adequate escape valve for
this extreme emergency. This is beyond
any doubt after the Commission’s
Guidance on covid-19 procurement

4. EU’s response
What the EU can do is rather limited in several
important policy areas (notably, public health)
Procurement is somewhat uniquely situated
due to the existence of the Joint Procurement
Agreement to procure Medical
Countermeasures (JPA)
Pragmatic approach (see rescEU stockpile)

5. Basic design of JPA
Centralised and partially delegated procurement mechanism
• Centralised through JPA Steering Committee [JPASC] and the
Specific Procurement Procedure Steering Committee(s) [SPPSC]
• Partially delegated to the European Commission, including separate
evaluation committee (see useful explanatory note on its operation)
• [Useful presentation on basic elements of the JPA at time of
signature: https://slideplayer.com/slide/9492928/]

6. Main functionality
Centralised and speedy procurement procedure subjected to the
rules for the EU Institutions as a common standard – tends to avoid
duplication and could generate buying power [but non-exclusive …]
Allocation of medical countermeasures under approval of the
SPPSC as a fundamental principle, subject to derogation in
problematic situations (Art 17) – can avoid buyer competition and
ensure a more balanced/targeted distribution of available supplies

7. Who’s in?
EU27, UK and 2 EEA countries
(Norway and Iceland)
Note, there has been a rush of
adherences since February (Sweden,
Poland, Norway, Finland and Iceland),
with the last signatory joining on 30
March 2020 – not all could participate
in first efforts, but more to come?

8. Key legal issues
The JPA has a sui generis legal nature. It is subjected to EU law and
operates as a budgetary implementing measure of Decision
1082/2013/EU (see official note). Litigation is before the CJEU
Procurement under the JPA is carried out in accordance with the
Financial Regulation – currently, the Omnibus Regulation
2018/1046/EU. Implicitly, very limited access to procurement
remedies (subject to public law of each of the Member States**)

9. Key legal issues
Procurement can follow one of four routes/procedures:
open, restricted, negotiated or competitive dialogue
Award can result in a direct (public supply) contract (potentially
split into lots), or a framework contract
Direct contractual relationship between each of the participating
Member States and suppliers, including direct payments (Art 27, 44)

10. Applicable law
A moveable feast?
“The law applicable to framework or
direct contracts pursuant to this
Agreement and the competent court for
the hearing of disputes under these
contracts shall be determined in these
contracts” (Art 42(2) JPA)

11. Comparison of legal
structures
In legal terms, it is clear that the JPA is a ‘procurement only’ sui
generis agreement and that the only clearly pre-defined legal
issues concern the subjection of the JPA and the ensuing
procurement (up to award) to EU law & CJEU jurisdiction only
Its final legal structure is left to specific decisions of the
participating Member States (and market acceptability), much like
in other contexts of EU-wide JCBCPP (such as EPCO)

12. What does it look like?

13. Will we have litigation?
Probably not, but this is hard to foresee
If there were disputes, there would likely be high-powered
incentives to settle them

14. What happened in
UK?
There is evidence that the UK Government
positively decided not to participate
Official reasons are laughable
(miscommunication)
Plausible reasons point to industrial
strategy, of different degrees of
‘reasonableness’
Potential new #ferrigate re Dyson

15. Some final thoughts
This can be a very interesting catalyser of
joint cross-border procurement
The legal issues remain largely up for
grabs and this is not a likely test case for
litigation
Is there scope for broader international
coordination for the future?

16. Further reading
On cross-border procurement, generally:
• A Sanchez-Graells, ‘The Emergence of Trans-EU Collaborative
Procurement: A “Living Lab” for European Public Law’ (2020) 29(1)
Public Procurement Law Rev 16-41.
• Idem, ‘Is Joint Cross-Border Public Procurement Legally Feasible or
Simply Commercially Tolerated?: A Critical Assessment of the BBG-
SKI JCBPP Feasibility Study’ (2017) 12(2) EPPPL 97-111
• Idem, ‘Collaborative Cross-Border Procurement in the EU: Future or
Utopia?’ (2016) 3(1) Procurement Law Journal 11-37.

17. Further reading
On the Commission’s Guidance on covid-19 procurement, see the
comments by Pedro Telles and myself in our respective blogs
On the UK’s non-participation in the JPA for ventilators, see the
multiple entries by Pedro Telles in his blog telles.eu since 24 March
2020, and specially the one of 3 April 2020
Some more general reflections in my ‘Procurement in the time of
COVID-19’ forthcoming in the University of Bristol Law School Blog

18. Thank you for your
attention & stay in
toucha.sanchez-graells@bristol.ac.uk
@asanchezgraells