On Wednesday, 24 July, the European Commission published guidelines for public buyers located in the European Union regarding the participation of third-country companies in their calls for tenders.
These non-binding guidelines notably reiterate that, under European legislation, access to the EU’s public procurement markets is only guaranteed to companies from third countries with which the European Union has signed free trade agreements that also cover public procurement in either a multilateral context (e.g., WTO Agreement on Government Procurement covering 20 parties, including the EU but not China) or in a bilateral context (e.g., recent trade agreements with Japan, Canada, and Mercosur).
Other companies from third countries that are not covered by such agreements thus do not have guaranteed access to EU public procurement markets and can be excluded. In particular, the directive (2014/25/EU) on public procurement in the water, energy, transport, and postal services sectors makes it possible to exclude a tenderer if over half of its products originate from third countries that have not signed a trade agreement on the award of public contracts.
To this end, the Commission has called for further legislative work to be carried out on the introduction of an instrument governing the participation of third-country companies in public procurement markets in accordance with the European Council’s request in March (see EUROPE 12220/1).
The European institution reiterates that the rules in force authorise the rejection of abnormally low tenders. The guidelines contain a list of questions to pose to the tenderer in order to ask it to justify its price. For example: Does the offer meet the legal and contractual obligations? Is the offer’s financing calculation reliable?
In addition, concrete examples are presented in order to explain how to establish and integrate social and environmental standards in practice so that price is not the only criterion for awarding a public contract. Any tenderer, whether from the EU or a third country, will then have to comply with them.
Finally, it is reiterated that public authorities may ask the Commission for an evaluation of a project’s compatibility with EU rules before launching a call for tenders (a mechanism known as an ex ante evaluation).
See the document: http://bit.ly/2JSylzf (Original version in French by Mathieu Bion)