The new Procurement Directives Key Issues The Commission's view The Procurement Lawyers' Association 14 October 2013 London Nico Spiegel European Commission, DG Market and Services
Objectives of the reform 1. Simpler/ more flexible procedures 2. Strategic use 4. Sound procedures 3. Better access (SMEs, cross-border trade) 5. Governance / professionalisation of procurement
Legislative process December 2011 3 Commission proposals: Revision of 2004/18 (classic) and 2004/17 (utilities) New concessions Directive July 2013 political agreement Early 2014 adoption 2 years for transposition 4.5 years for e-procurement (at the latest)
Clarification of scope New concept of procurement Mixed contracts Exclusions Contracts awarded under international rules Legal services, civil defence, political campaign services Public public cooperation
Simplification Increased use of negotiated procedure competitive procedure with negotiations competitive dialogue Innovation Partnership Simplified advertising for sub-central authorities Prior information notice Reduced time limits Light touch regime for social and other services
Reduction of administrative burden Single European Procurement Document Submission of documentation only for winning bidder Access to national databases Certificates submitted by winning bidder
Access to procedures Proportionate criteria for financial standing Encouragement of division into lots Exclusion grounds Violation of social/labour law obligations Significant/persistent deficiencies in a prior public contract Unduly influencing decisionmaking Distortion of competition Self-cleaning
Award criteria Sole award criterion: MEAT most economically advantageous tender consists of price or cost, using a cost-effectiveness approach such as lifecycle costing, and may include the best price-quality ratio to be assessed on the basis of award criteria linked to the subject-matter of the contract. MS can exclude or restrict the use of price or cost only as sole criterion. Extended choice for price evaluation Life cycle costing
Contract modifications Court of Justice New tender required for significant changes Exceptions Low value (works 15%, services, supplies 10%) Transparency about possible changes Change of contractor causing significant inconveniences Unforeseen circumstances (50% limit in classic directive)
E- procurement Electronic notices Availability of procurement documents Communication Simplification of dynamic purchasing E-catalogues E-signatures
Strategic procurement Freedom of choice what to buy Subject matter link maintained but extended (production process, fair trade) Use of labels Life cycle costs (including measurable external costs) Social criteria (protection of workers, employment of handicapped, long term jobless, etc.)
Social aspects Compliance with environmental, social and labour law Subcontracting Direct payments Information on subcontractors Joint liability Abnormally low tenders Obligation to require explanations Obligation to exclude in case of environmental, social, labour law violation
Governance Monitoring, reporting (3 years) level of SME participation procurement fraud, corruption, conflict of interest and other serious irregularities Keeping of contracts (1 million, 10 million) Guidance and support Statistical reports (below threshold estimates) Individual reports Cooperation via IMI
Concessions New Directive covers: Works concessions >5 million Euros Service concessions >5 million Euros covers: Contracting authorities (public sector) Contracting entities (utilities sectors) excluded: Water sector (production, transport, distribution of drinking water)
Distinction contracts concessions Contract: Remuneration Concession Right of exploitation of works/services Operating risk
Concession Directive Main features Light procedure no predetermined types of procedure, only general principles and procedural guarantees Award criteria objective linked to subject-matter of concession ensure effective competition based on an overall economic advantage for the public authority may include environmental, social or innovation-related criteria 16/10/2013
Contact Nico Spiegel European Commission Directorate General Internal Market and Services Directorate C: Public procurement, Unit C 3 e-mail: Nico.Spiegel@ec.europa.eu http://ec.europa.eu/internal_market/publicprocurement/index_en.htm