Public Procurement Reform
• Gergő Poszler
European Commission
• Directorate General Internal Market and Services
• Unit C/2 – Public Procurement Legislation I.
•
NB: The information in this presentation is not binding for the European Commission and does not
present an official position of the European Commission
Objectives of the Reform
1. Simpler /
more flexible
procedures
3. Better access
(SMEs, cross-border
trade)
2. Strategic use
4. Sound
procedures
5. Governance / Professionalisation of procurement
08/04/2015
Scope of proposals
 Two proposals, replacing Directive
2004/18/EC (Classic) and Directive
2004/17/EC (Utilities)

No changes to the Directives on Defence procurement
(2009/81/EC) nor on Remedies (89/665/EEC and
92/13/EEC, both as amended by 2007/66/EC)
 Other parallel proposals :
– Proposal on concessions
– Proposal for a Regulation on International Access
Scope/basic provisions




Thresholds (no change)
Exclusions: In particular public-public, Art. 11
Abandoning A/B-services distinction – but
Specific regime for Social services (social, health and
cultural services):
 Simplified rules: Higher threshold – EUR 500 000 (Art. 4 d)
– Below threshold: typically no-cross-border interest (recital 11)
– Above threshold: Member States free to decide on procedures,
only requirement: ex-ante (+ ex-post) OJ publication (Art. 75) +
non-discrimination (Art. 76 (1))
Flexibilisation of procedures
 Possibility of increased use of “competitive
procedure with negotiation” (Art. 24 & 27)
 Simplification/added flexibility for competitive
dialogue, framework agreements and DPS
(dynamic purchasing systems)
 Simplified publication for sub-central contracting
authorities: prior information notice replaces
contract notice (Art. 24 (2)(b))
 General review of deadlines
Strategic use
 No abandoning of link with the subject matter,
but softening (production process, externalities –
Art. 66, 67)
 Facilitate handling of societal requirements
through labels (Art. 41)
– Specific label may be requested if requirements linked
to the subject-matter of the product
– Equivalent labels must be accepted as well
– Possibility for economic operators to provide alternative
evidence where no access to the label in due time
Strategic use: Environment
 Allow production process (e.g. paper bleach) in:
– technical specifications (Art. 40) and
– as award criterion (Art. 66)
 Clarify concept of life-cycle costing optional,
allowing to take into account externalities if
verifiable and monetisable (Art. 67.1 b)
 Existing common EU methodology = mandatory
where life-cycle costing chosen (Art. 67.3)
Strategic use: Social aspects
 Production process related requirements
– as award criteria (Art. 66)
– in contract execution clauses
– requirements must concern
• protection of health of staff or
• social integration of disadvantaged persons (Rec. 41)
– Example: recruitment of disadvantaged persons for the provision of
the service
Strategic use: Innovation

Innovation
procedure:



partnership
(Art.
29)
=
new
the contracting authority cooperates with a company
selected in a regular competitive tender procedure
to develop an innovative product, work or service,
which does not exist on the market
E-procurement
 Mandatory full electronic availability of tender
documents (Art. 51)
 Fully electronic communication = mandatory 2
years after transposition deadline (Art. 19.7)
 Improved e-tools:
 simplification of Dynamic Purchasing Systems
(Art. 32)
 e-catalogues (Art. 34)
 e-signatures (Art. 19.5)
SME access
 Division of contracts into lots (Art. 44): “apply
or explain” - EUR 500 000 / EUR 5 Million
 Turnover cap (Art. 56.3) (economic and
financial standing): max. 3x the estimated
contract value
 Reduced documentation requirements, selfcertification, use of existing databases
 Direct payment of subcontractors
Sound procedures and governance
• Conflict of interest
• Illicit conduct
• Unfair advantages
• National oversight bodies
• Knowledge centres
• Administrative cooperation
Utilities: Proposed changes
 Essentially same changes proposed for the
Utilities as for the Classic Directive - but
 Due regard to the different field of application
(also public and private undertakings) and the
ensuing need to conserve a more flexible
regime.
 Only few changes on issues specific to the
Utilities Directive
08/04/2015
Utilities: Specific Issues
• (Ex Art. 30) Activities directly exposed to competition
(Art. 27, 28, Annex III):
 Material conditions are unchanged - Uniform and more flexible
deadlines (Member States & contracting entities) - Mandatory
inclusion of a reasoned and substantiated position by
competition authority/regulator
 Explicit clarification of the notion of "special and
exclusive rights" (Art. 4(2), Annex II)
 No special or exclusive rights where rights granted following
procedures ensuring adequate transparency, based on objective
criteria;
08/04/2015
 List of legislation (procedures) meeting the requirements
(including concessions proposal)
Process
COMMISSION PROPOSAL
20 December 2011
COUNCIL
GENERAL APPROACH
10 December 2012
PARLIAMENT
IMCO REPORT
18 December 2012
TRIALOGUE
February/March 2013 - ?
Council General Approach
• Main amendments:
– Light regime
• 750,000 threshold, additional services (legal, administrative,
investigation and security, restaurant, etc.)
– Documentation requirements
• No procurement passport, diminished role for e-Certis
– Governance
• Far-reaching reduction of scope of provisions
– Public-public
• Outside activities increased from 10% to 20%
– Transposition, e-procurement introduction
• Longer periods (+6, +12 months)
IMCO Report
• Main amendments:
– “Localism”
• short-distance award criterion, social external costs
– Contract modification
• Increase of scope for modifications without new tender
– Additional exclusions
• Danger prevention, fixed price procurement
– Public-public
• Elimination of certain criteria for horizontal cooperation
– Reciprocity regarding 3rd country operators
• Insertion of Art 58-59 from 2004/17/EC
Important remaining issues (1)
– Procedures
• “Tool-box” vs. obligation to transpose all procedures
• Use of PIN for sub-central contracting authorities
– Strategic procurement
• MEAT only vs. lowest price/cost (at least for standardised goods)
• Eliminate “localism” provisions
• Obligation to ensure compliance with social, environmental and
labour law – coherence with posting of workers regime
– Documentary requirements
• Replace procurement passport with enhanced access to national
databases
Important remaining issues (2)
– E-procurement
• Fixing deadlines for mandatory introduction
– SMEs
• Indication of reasons for not splitting into lots
• Ratio minimum annual turnover – contract value
• Subcontracting: “liability throughout the subcontracting chain”
– Aggregation of demand
• Adherence of new contracting authorities to framework contracts;
maximum length (4-5 years)
• Use of central purchasing bodies, occasional joint procurement
up to Member State / up to contracting authority
Important remaining issues (3)
– Procedural requirements
• Variants: obligatory authorisation vs choice of contracting auth.
– Sound procedures
• Modifications: ensure reasonable scope of de minimis rule for
non-substantial modifications (10%-15% and below threshold)
– Governance
• Agree on scope for monitoring and national reporting
– Scope
• Agree on exclusions, public-public, transposition deadline
• Avoid blockade on reciprocity (3rd country operators)
Outlook
• Remaining issues are surmountable
• Therefore aim to finalise project in 1st reading:
TRIALOGUE
Political Agreement reached
Letter
COREPER - IMCO
Adoption
COUNCIL
Vote - PARLIAMENT
(endorsing the Political
Agreement)
Thank you for your attention!
Questions?