One contributor highlights the problem of "secondary markets", where a private contractor who entered into the original PPP sells on his share of the PPP contract to another private sector provider. While in these cases the service is still delivered and the requirements of the contract met, the private company that entered into the original agreement can make sizeable profits. There is criticism that none of this additional profit is passed to the public sector.
Another contributor says that - contrary to the ECJ judgment C-314/0112 - Member States prohibit the transfer of the actual performance from the winner of the competition to a third party.
Some contributors are discontent with the "double tendering" requirement in the case of public contracts awarded to companies which are partly owned by the public sector. As these companies risk being considered contracting authorities, they are subject to tendering procedures in relation to their downstream contracts. This is considered to constitute a competitive disadvantage vis-à-vis their private competitors.
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12 ECJ, C-314/01, ECR 2004, not yet published. In paragraph 46 of this judgment the ECJ states that a tenderer claiming to have at its disposal the technical and economic capacities of third parties on which it intends to rely if the contract is awarded to it may be excluded only if it fails to demonstrate that those capacities are in fact available to it.