• Home
  • eAlerts
  • European Commission Publishes Proposals to Reform Public Procurement Rules

European Commission Publishes Proposals to Reform Public Procurement Rules

Scotland
01/12/2011
Download PDF

The European Commission has published wide-ranging proposals to reform the public procurement rules. The proposals incorporate a number of changes which would significantly affect the current rules governing public sector procurement. In particular:

introducing the concept of a 'sub-central contracting authority', so that authorities outside central government are subject to less onerous advertising requirements and reduced timetables;
abolishing the distinction between Part A and Part B services, with the majority of Part B services to be subject to the full procurement regime. The exception is 'social services' which are to benefit from an increased threshold of €500,000. Above this threshold, they will be subject only to advertising requirements and whatever regime the Member States choose themselves to put in place to ensure compliance with the principles of transparency and equal treatment;
continuing to mandate the availability of the open and restricted procedures but allowing Member States a choice as to whether to allow the use of the competitive dialogue procedure, a new 'competitive procedure with negotiation' (replacing the negotiated procedure) and a new procedure for establishing 'innovation partnerships';
establishing a new 'competitive procedure with negotiation' in which bidders would submit a proposal as the basis for negotiations. Following negotiations to improve the content of the proposals, they would all be invited to submit final tenders. The proposals put in place a number of safeguards to ensure that negotiations do not increase the risk of authorities breaching the principles of transparency, non-discrimination and equal treatment. These include a requirement to specify at the outset the subject matter of the contract together with the award criteria and any minimum requirements to be met;
Member States would only be permitted to make the competitive procedure with negotiation and/or the competitive dialogue procedure available in the following circumstances:

-
 works - for design and execution contracts; where negotiations are needed to establish the legal or financial makeup of the project; or in certain circumstances where the works are performed solely for purposes of research or innovation, testing or development;
- services/supplies - when the technical specifications cannot be established with sufficient precision; and

-
 generally - in the event of irregular or unacceptable tenders following an open or restricted procedure, or where, due to specific circumstances related to the nature or the complexity of the works, supplies or services or the risks attaching thereto, the contract cannot be awarded without prior negotiations;
innovation partnerships would be available for establishing a partnership for the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works;
the European Courts' case law on public-public cooperation is codified and clarified (Teckal and Hamburg Waste), as is the case law on material changes to contracts (Pressetext); and
there are specific provisions introduced on conflicts of interest, confidentiality and proportionality.

There are very few changes proposed to the utilities regime - perhaps the most important is the clarification that a utility does not have a 'special or exclusive right' if its right has been openly competed.



Finally, the Commission has proposed an entirely separate directive for works and services concessions, which will apply for both utilities and public bodies (contracting authorities). The proposals are intended to ensure transparency and equal treatment when awarding concessions worth over €5 million.


Search Filters

Advanced Search

Key contact

Related content