The European Commission wants to set up a European platform listing all public procurement contracts above the minimum European thresholds, as part of an overhaul of European Union rules governing public procurement, presented on Wednesday 9 September.
European Commissioner for the Internal Market Stéphane Séjourné listed the advantages of such a platform, which will be mandatory for public buyers: - increased transparency will offer more opportunities to businesses, especially on a cross-border basis; - “lower prices” for public buyers thanks to a higher number of bids submitted; - “cross-checking with judicial data to combat corruption effectively”; and - “simple, single” registration for businesses seeking opportunities.
Available in all the languages of the Union with automatic translations, the European interface will also be interoperable with existing national or regional platforms.
Mr Séjourné also stressed the simplification exercise carried out by the EU institution as part of the reform. According to a provisional version (see EUROPE 13907/8), this legislative overhaul is intended to reduce the requirements inherent in public procurement from 900 to 200 pages, according to the Commissioner. The three main Directives governing traditional public procurement contracts (Directive 2014/24), special sectors (Directive 2014/25), and concessions (Directive 2014/23) would be merged into a single Regulation.
In addition, contract award procedures would be reduced to three. A so-called ‘open’ procedure will make it possible to select a bid on the basis of the predefined contract award criteria. A so-called ‘dynamic’ procedure, through which companies make themselves known and are then invited to compete for recurring stock-replenishment purchases. A third procedure, known as an ‘innovation’ procedure, will make it possible to develop an innovative solution to a societal problem and create a market for it.
In this respect, Mr Séjourné referred to innovative solutions that may involve the use of “artificial intelligence”.
Best value for money basis. While the majority of selected bids still essentially remain based on price, the Commission intends to encourage public authorities to take their decisions on the basis of best value for money by giving greater weight to social, environmental, and sovereignty requirements.
“We can legislate as much as we like; if public money does not go where our laws and our objectives go, it is all empty words”, Mr Séjourné argued. He referred to the introduction of the following principle: “At least 30% of the evaluation of a bid will have to be based on quality criteria”, including working conditions, accessibility, decarbonisation of the economy, cybersecurity, security of supply, or innovation.
EU preference. Another major new feature of the forthcoming legislative reform concerns the possibility for public buyers to apply a ‘European preference’ by restricting participation in a call for tender to economic operators established in the EU, from a third country (e.g.: Canada, South Korea, the United States, Israel, the United Kingdom, Ukraine, Switzerland, etc.) party to the Government Procurement Agreement (GPA) at the WTO or from a third country that has signed a free trade agreement with the EU containing a chapter on access to public procurement.
Third countries with which the EU has established a customs union that includes provisions on public procurement have been added to this list. This is not the case for Türkiye, which should therefore be excluded until reciprocal commitments on public procurement have been made.
Thus, Mr Séjourné specified, a public buyer in the EU will be able to “exclude operators coming from countries with which we do not have a Government Procurement Agreement, both on the basis of the company’s nationality or on the basis of the origin of the products”. In concrete terms, “a European company offering Chinese products” would potentially be targeted. In addition, he said, a public buyer may also, in its award criteria, give more points to European bids.
The Commission will be empowered to decide, by means of a delegated act and following a factual assessment, whether an eligible third country no longer allows European companies to participate in public procurement under the same conditions as those enjoyed by national companies. The screening work on the 40 or so third countries concerned has already begun, with Mr Séjourné hoping for “concomitance” between the publication of a list of third countries not guaranteeing reciprocity in access to public contracts and the finalisation of the legislative overhaul.
“When there is too great an asymmetry in terms of openness, action will be needed”, the Commissioner had told a few journalists the previous day, “fully” acknowledging that the future rules should serve as leverage to open up new public procurement markets.
The concept of ‘European preference’ laid down in the cross-cutting regulatory framework governing public procurement will be applied on a voluntary basis. By contrast, Mr Séjourné recalled, “European preference becomes mandatory in strategic sectors” through the application of sectoral texts, such as the ‘industrial accelerator’ act for “‘clean tech’ companies, nuclear or automotive” (see EUROPE 13933/2), the ‘CADA’ Regulation for “‘cloud’ computing and artificial intelligence” (see EUROPE 13880/2) and the so-called ‘CMA’ legislation for critical medicinal products (see EUROPE 13867/7).
“Other sectors may be concerned in future”, he pointed out, welcoming the “doctrinal shift” under way at EU level.
Approval in European Parliament. In the European Parliament, the Chair of the Committee on the Internal Market, Anna Cavazzini (Greens/EFA, German), welcomed the reform put forward by the European Commission, which has, in her view, “listened to the European Parliament’s call to move away from the price-only mechanism and towards looking at the quality of the products and services purchased” (see EUROPE 13705/13). “However, the Commission could even have gone one step further to promote green and social initiatives”, she nevertheless noted.
Mrs Cavazzini also welcomed the introduction of rules allowing public buyers to purchase products and services from European suppliers. “Resilience and security of supply are aspects that should be considered to boost our competitiveness”, she argued, considering it “key” to ensure consistency with the other legislative texts in the application of this provision.
German social democrat Gaby Bischoff said that “the acknowledgement of the role of collective bargaining among the social criteria is definitely a win” for her political family, while saying she was concerned that “these criteria remain optional for public buyers”.
See the Commission proposal: https://aeur.eu/f/ncw (Original version in French by Mathieu Bion)