Clearer and more flexible directives
By Sophie Mosca | Tuesday 20 December 2011
The European Commission wishes to clarify, make more flexible and strengthen the legal certainty of public procurement rules. It also wants public contracts to be more accessible to SMEs and to contribute to the achievement of certain social aims. Accordingly, the executive proposed, on 20 December, two directives that replace existing texts
(1). “Public contracts account for 19% of European GDP,” said Commissioner Michel Barnier (internal market and financial services), and “these directives will result in savings of €70 billion in all the member states”.
The directives apply to public works contracts worth more than €5 million, public services contracts of more than €200,000 and contracts of more than €500,000 for certain sectors. They reduce derogation possibilities and introduce a more flexible regime for social services, the specific nature of which is recognised for the first time given their limited impact on competition. The definition of social services is widened: they include social services and health services, personal services, services for the distribution of various benefits (maternity, family, unemployment, etc); services related to education and culture, religious services and services provided by unions. Possible derogations from these rules are also clarified and, for the first time ever in a directive, a definition is given of partnerships between public authorities. More flexibility is also introduced in member states’ choice of procedures: they can choose between open or restricted procedures or those that introduce more competitive dialogue, such as the negotiated procedure with publication of a contract notice for complex contracts, without this becoming the rule.
SMES AND SOCIAL OBJECTIVES
The documentation to be provided by bidders will be simplified through the systematic use of sworn statements: only preselected candidates will have to present documentary evidence. A public procurement ‘passport’ will also be put in place in the form of a standardised electronic registration. These elements contribute to another priority of the revision, that of encouraging the participation of SMEs. The division of contracts into lots also becomes the rule for contracts worth more than €500,000 apart from a few exceptions, and non-compliance must be justified (‘apply or explain’ principle). For sub-contracting, SMEs will be paid directly by the contracting authority, which should help reduce conflicts with the lead company that wins the public contract.
Generally speaking, the Commission aims to set up a more secure framework and it adapts procedures to create greater transparency and allow the promotion of specific policies. The executive imposes as the general rule the electronic publication of calls within two years, encourages cross-border bids and limits conditions for amending a contract. It spells out how social aims are to be taken into account – promotion of quality jobs, integration of vulnerable persons, etc. When awarding contracts, the authority must take into account the life-cycle cost of the goods or services concerned, including transport costs and recycling possibilities. The text also introduces a special procedure: a partnership to encourage the development of innovative solutions.
New public procurement governance is also promoted: member states are obliged to designate a national authority in charge of monitoring and implementing public procurement, set up knowledge centres that advise contracting authorities and economic operators and engage in cooperation with other states through the Internal Market Information System (IMI).(1) Directives 2004/18 for general public procurement and 2004/17 for the water, energy, transport and postal services sectors