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NEW EU PUBLIC PROCUREMENT DIRECTIVES
IMPLEMENTATION PROCESS – GENERAL
APPROACH
Better legal protection for EU financial interests in
Romanian public procurement
Olivier MOREAU
[email protected]
17 June 2015 Intercontinental Hotel, Bucharest
European Public Procurement Reform
The new public procurement rules are expected to contribute
to growth & reducing deficits. They will help to:
• Reduce lengthy and burdensome procurement processes that
add cost to business and barriers to market competition
• Modernise the procurement procedures and provide more
flexibility for purchasers to follow best commercial practice,
so that the best possible procurement outcomes can be
achieved
• Support measures to enhance SME access to public
procurement, where such measure are non-discriminatory
and are consistent with a value for money approach.
Role of the EC services in the process:
Transposition assistance
Public Procurement Directives:
• Directives 2014/24/EU, 2014/25/EU and 2014/23/EU
adopted on 26 February (OJEU L 94 of 28.3.2014)
– 2014/24/EU = 94 Articles and Annexes, 138 Recitals
– 2014/25/EU = 110 Articles and Annexes, 142 Recitals
– 2014/23/EU = 55 Articles and Annexes, 88 Recitals
= more than 350 OJ pages !
• 2 years from publication to transposition deadline (18 April
2016)
• Work planning started already before formal adoption
• Involving Member States from the beginning
Transposition planning:
8 groups of issues identified
Transposition assistance
Measures 1: multilateral assistance
• Thematic meetings of Expert Group
 Priority: clarification/discussion of main identified issues
 meetings concentrated on 1st half of transposition period
 12 days of meetings (5 2-day meetings and 2 1- day meetings from
February till November 2014; a further 7 days of meetings planned for
2015
 MARKT services : written material (ppt slides)
 MS : written questions sent prior to meetings
• An electronic forum for the transposition process
• Objective: to monitor the process and thus ensure :
 Implementation in due time
 Implementation in a clear and consistent manner
Transposition assistance
Measures 2
• Concessions:
 Definition, duration and
estimation of value
• Classic & Utilities:
 Mixed contracts (incl. defence),
 Operational units (threshold
calculation),
 e-procurement,
 Light regime (social services),
 in particular reserved contracts,
 Exclusions from the scope of the
Directives,
 Public-public cooperation,
 Modifications
 Exclusion grounds, in particular
self-cleaning,
 Aggregation of demand - joint
procurement – framework
contracts,
 Award procedures, including
innovation partnerships,
Aggregation of demand
 Utilities – specific aspects
 Award criteria (in particular lifecycle costing)
 Social considerations
 Subcontracting
Transposition assistance
Measures 3: bilateral assistance
• Exchange of written questions / answers, mainly by emails
• 2nd year of transposition period – intensified 6 months before end
of transposition period
• Bilateral meetings: on demand
• Listing/planning all actions required - tables
 ECservices: supporting activities: standard forms; IMI pilot project
 Member States: national action plans, using correlation tables or other
documents serving the same purpose till notification of transposition measures
• Involvement of the businesses and lawyers in the implementation
process
Transposition seen from the perspective
of a MS: the process in the UK
• UK Ministers want to transpose early to get benefit of
improvements, subject to collective Ministerial agreement
• Will implement by 3 separate Statutory Instruments (S.I.),
replacing the existing SIs for the public sector and utilities, with a
new S.I. for concessions, starting with the public sector Directive
(2014/24/EC).
• Each of these SIs will also provide for remedies. UK experience is
that there are not many court cases, but there is significant
concern about potential legal action
• Copy out approach adopted to avoid goldplating
UK Implementation: engagement with
stakeholders
Discussion papers circulated to stakeholders in the second half
of 2013 seeking views on the 37 different policy options for
Member States, divided into the following subjects:
Light touch regime (LTR)(articles 74-76), SMEs, strategic use of
procurement, termination of contracts, sheltered workshops,
procedures, tender assessment, central purchasing bodies, eprocurement, exclusions/anti-corruption & standard forms.
Responses
Support for :
• new flexibilities and not adding extra burdens
• Minimal rules for LTR (social and other specific services)
• Need to have lowest price or cost as a possible award criterion
Consultation on the draft UK Regulations
https://www.gov.uk/government/consultations/transposingthe-2014-eu-procurement-directives
• Consultation ran until 17 October 2014. It included a
consultation document (with questions & comment on policy
choices), the draft Public Contracts Regulations 2015 & a
technical note on drafting
• 20 questions covered particular policy choices, a request to
comment on the drafting & to update Schedule 1 bodies.
Comments on new measures to increase SME participation
were also sought
• The draft Regulations reflected discussions with government
departments, in particular the interface with health
regulations
Consultation responses:
204 replies from wide range of stakeholders
Business
Central Gov Dept
Devolved Administrations
Education
Individual
Legal
Local Government
Police
Procurement Organisation
Professional/Trade Body
Voluntary/Third Sector
Trade Union
15
7
1
60
5
18
46
2
7
20
18
5
Consultation outcomes:
preliminary observations
• General support for the choices on options
• Questions over applying the light touch regime before
April 2016
• Support for flexibilities, but local authorities concerned
about changes below the EU threshold
• Trade Unions & the voluntary sector want to highlight
social & quality aspects
Post-consultation
Next steps
• •Update draft regulations
• •Final write round to get collective agreement
from Ministers
• •Make and lay the Regulations in January to
come into effect in February 2015
• •Prepare guidance including:
LTR & mutuals, procurement routes, awarding contracts, inhouse contracts, selection & exclusion, DPS,
environmental/social , e-procurement & changes to contracts
UK implementation: embedding the Directives
Face to Face Training
• Delivered through 140 volunteer trainers, trained by Cabinet
Office
• Over 200 sessions across the UK in June & July 2014 reaching
6,000 procurement personnel
E-Learning
• Hosted by Crown Commercial Service (CCS) by end 2014
• Training needs to start before Regulations are in place, but elearning material will be updated regularly
Materials
• Handbook available on the Gov.uk and CCS Website from June
2014.
• Further guidance was prepared
• Transposition webpage https://www.gov.uk/transposing-euprocurement-directives