Dr. Manfred Kraff, Deputy Director-General
Ljubljana, 20 th February 2015
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 Background
 Legal Framework in Public Procurement
 Procurement Errors in EU Projects
 Main Changes in the Directive
 Decrease Overall Error Rate through Transposition
 New Concession Directive
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 Definition for public procurement:
Process by which public authorities purchase work, goods or services from companies which they have selected for this purpose
 EU Directives:
Implementation of principles and freedoms established by EU Treaties
 Procurement under EU Directives:
EUR 425 billion or 3.4 % of EU GDP (2011 figures)
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 Initatial Directives were adopted in 2004
 2004/17/EC: Procurement in the water, energy, transport and postal services sectors
 2004/18/EC: Public works, supply and service contracts
 Need for reforms due to budgetary constraints and economic, social and political developments
 Simpler and more efficient rules for public purchasers and companies
 Best value for money for public purchases
 Respect of principles of transparency and competition
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 Proposed revision by the Commission: December 2011
 Vote by the European Parliament: 15 Januar 2014
 Adoption by the Council: 11 February 2014
 Transposition by the Member States in national law
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Deadline: April 2016
Exception e-procurement: September 2018
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 Directive 2014/24/EU of the European Parliament and of the Council of
26 February 2014 on public procurement
 Directive 2014/25/EU of the European Parliament and of the Council of
26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors
 New Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts
 Information on public procurement: http://ec.europa.eu/growth/single-market/public-procurement/index_en.htm
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 Main types of irregularities identified by European Court of Auditors:
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Non-respect of publication thresholds
Unauthorised negotiation during award procedure
Substantial modification of contracts
Restrictive selection / award criteria
Disproportionate selection / award criteria
Lack of transparency and equal treatment
 … leading to lack or distortion of competition
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DAS 2013: Contribution to overall error rate by type
INELIGIBLE
Projects/Beneficiaries
22%
INCORRECT
AGRICULTURAL AREA
14%
OTHER
4%
PUBLIC PROCUREMENT
21%
Ch5:Regional Policy
17%
INELIGIBLE Costs
39%
Ch7:External Relations
1%
Ch8:Research
1%
Ch4:Rural Development
2%
Ch6:Employment
0%
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 Unjustified use of negotiated procedures without prior publication
 Additional work without procedure
 Disproportionate or discriminatory selection criteria
 Use of inappropriate scoring method
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• European Parliament 2013 draft Resolution for Discharge:
§111. "… points out that Directive 2014/24/EU of the European Parliament and of the Council is to be implemented by Member States until 18 April 2016; considers that it will bring considerable changes in procurement procedures and
might necessitate further methodological changes;"
• Council 2013 Recommendation for Discharge:
§8. "… The Council stresses that any simplification of the national public procurement rules should aim at limiting errors, whilst fully ensuring the protection of the Union's financial interests. Finally, in the light of the newly revised public procurement rules and procedures, the Council invites the
Commission to ensure through its technical assistance that the recently updated guidelines on public procurement are disseminated and understood by all
relevant actors."
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 Simplified and more flexible public procurement procedures for both public purchasers and businesses
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Possibility to negotiate terms of contracts that better suit needs
Competitive dialogue procedure for particularly complex projets
Reduced publicity obligations for regional and local authorities
Self-declarations of bidders and full documentation of winning bidder
Better access of SMEs by splitting contracts into lots and reduction of required turnover
 Frame for flexibility in the modification of existing contracts
 No change of the nature or economic balance of the contract
 Value does not exceed certain thresholds (application of Directives; 10% for goods and services; 15% for work)
 Unforeseen events or technical reasons, if increase does not exceed 50%
 New simplified arrangements for social, cultural and health services and certain others (e.g. hospitality, catering, canteen)
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 Incentive to develop e-Procurement
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Electronic submission of tenders (by 2017 or 2018)
European Single Procurement Document – to alleviate administrative burden of companies (by 2018)
 Compulsory use of eCertis
 Easier bundling of purchases
 Joint procurement procedures
 Central purchasing body
 Procurement as policy instrument
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Environmental objectives (e.g. life cycle cost and CO2 footprint)
Social objectives (e.g. integration of vulnerable or disadvantaged workers)
Pro-innovation (e.g. new procedure for purchase of innovative products)
 National organisation of public services is not affected
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 Flexibility on contract modifications
 Strict interpretation when using exceptions (e.g. negotiated procedure without publication)
 Professionalisation of procurement through
Central Purchasing Bodies to be envisaged
 E-procurement roll-out (simplification of process, harmonised procedures, easier transparency)
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 Avoid "national gold-plating":
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Keep open flexibilities of the Directive
No extra / unnecessary obligations
Transpose objectives and principles in law
Provide the "how to" in soft law
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 Concessions: Long-term contracts to transfer a right of exploitation of services or infrastructure (e.g. water, electricity, highways infrastructure)
 Economic risk remains with the operator remunerated by the users
 Advantages of having a legal framework:
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Legal certainty
Transparency and more open business opportunities
Flexibility
Impartiality and judicial protection
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 Legal framework
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Applies main principles (transparency, equal treatment, competition)
Ex-ante and ex-post transparency
No pre-defined procedure
 No European Court of Auditors' error typology yet
 Transposition
 Risk of "national gold-plating" when defining procedures
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