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 2. Strategic use 3. Better access (SMEs, cross-border trade) 4. Sound procedures 5. Governance / Professionalisation of procurement 01/05/2020

  

Scope of proposals

Two proposals

, replacing

Directive 2004/18/EC

(Classic) and

Directive 2004/17/EC

(Utilities)

No changes

to the Directives on (2009/81/EC) nor on

Remedies Defence

procurement (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

– technical specifications (Art. 40) and – as award criterion (Art. 66) (e.g. paper bleach) in: 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 partnership

(Art.

29) = new    procedure: 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, self certification, 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

Utilities Directive on issues

specific

to the 01/05/2020

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  01/05/2020 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 ;  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 1 st reading: TRIALOGUE Political Agreement reached Letter COREPER - IMCO Adoption COUNCIL Vote - PARLIAMENT (endorsing the Political Agreement)

Thank you for your attention!

Questions?