Final proposals for new EU procurement directive published


On 19 October 2012, the Council of the European Union issued the third version of its compromise text of the proposed new public procurement directive. This has been issued in advance of a meeting of the Public Procurement Working Group on 5 November 2012 and in preparation for the meeting of Permanent Representatives Committee.

Key changes to be aware of include:

slightly less onerous advertising and minimum tender return deadlines for 'sub-central' government authorities including local authorities (Article 2(3)). These changes will facilitate greater reliance on Prior Information Notices and more flexible time limits for tender returns;
a new requirement on all authorities to produce individual reports for every OJEU procurement, essentially a form of tender report for every OJEU procurement conducted, which the European Commission will be entitled to request from the authority (Article 85);
an obligation on authorities to justify in its tender documentation or report a decision not to split into lots supply and services contracts with an estimated value equal to or greater than €500,000, or €5 million for works contracts (Article 44);
removal of the distinction between Part A and Part B services, with the majority of Part B services to be subject to the full procurement regime. Specific new rules will apply to 'social and other specified services' and will apply to contracts for these services having an estimated value of more than €500,000 (Articles 74 to 76). The list of services covered is set out in Annex XV;
removal of the requirement to justify use of the competitive dialogue procedure and introducing a new 'competitive procedure with negotiation' (replacing the negotiated procedure) and a new procedure for establishing 'innovation partnerships' (Articles 24 to 30);
new statutory exceptions for the use of 'public-public cooperation' (effectively codifying the Teckal and Hamburg Waste case law, Article 11) and modifications to existing contracts (effectively codifying the Pressetext case law on material changes triggering a requirement to conduct a fresh OJEU tender process, Article 72); and >
an extension of some of the grounds for excluding contracts from the scope of the Directive, including a new provision in Article 10a excluding services awarded to other public sector bodies on the basis of 'an exclusive right' which they enjoy under national law (this is an attempt to reflect the Ambulanz Glöckner case law, effectively an extension of Teckal).

A compromise text of the new Utilities Directivedeliver its opinionconcession contracts (replacing Directive 2004/17) was published in September. September also saw the Committee of the Regions on the European Commission's proposal for a directive on the award of .