In time for early September, the European Commission is finalising a draft reform of the European public procurement rules aimed at remedying the shortcomings observed in the regulatory framework in place since 2014 (see EUROPE 13735/10). In line with the commitments made by its President, Ursula von der Leyen, and at the request of the European Parliament (see EUROPE 13705/13), it will give public authorities the option of geographically reserving certain contracts for economic operators through the introduction of a ‘European preference’.
In order to simplify the current regulatory framework, the EU institution is expected to present a reform which aims, according to a draft legislative text obtained by Agence Europe, to merge into a single regulation all the directives governing traditional public procurement (Directive 2014/24), special sectors (Directive 2014/25) and concessions (Directive 2014/23). The directive governing defence public procurement will not be affected by the legislative reform.
New procedures. To discourage the award of a public contract solely on the basis of the price offered, the European Commission plans to introduce, by default, a so-called ‘open-negotiated procedure’, which will make it possible to select a tender either directly or by negotiating with tenderers on the basis of the contract award criteria. A so-called ‘dynamic simplified procedure’ will make it possible to carry out recurring purchases of ready-to-use solutions.
Furthermore, a so-called ‘innovation challenge procedure’ may be used to develop, test and acquire solutions not yet available on the market that are intended to address a societal challenge.
By default, contracting authorities will have to select the tenderers offering the best quality for money. The quality of a tender may therefore be linked to its technical, functional and aesthetic merits, social, environmental or security considerations, the quality of the staff involved in carrying out the contract, and after-sales and technical assistance services.
The weighting of qualitative criteria will have to represent at least 30% of the points awarded to a tender, and at least 50% in the case of labour-intensive contracts.
ESG. Whereas the current directives have not fully met the objective of promoting social and environmental dimensions, the draft regulation clarifies the use of environmental requirements that can be imposed during the award of a public contract.
It also clarifies the social objectives that a contracting authority may pursue when launching a competitive procedure, such as social inclusion, improving working conditions or effective human rights protection within supply chains. The possibility of awarding reserved contracts is maintained in areas such as culture, educational services and health services.
Moreover, public buyers will be empowered to — and in some cases required to — take account of risks linked to the interests of the European Union or the Member States in terms of security and public safety, in relation to critical infrastructure, sensitive information, cybersecurity, strategic dependencies, supply disruptions and undue influence from third countries.
European preference. In order to make public procurement an instrument serving EU strategic objectives, a public authority will be able to apply a ‘European preference’, for example by limiting participation in a tender procedure to those economic operators who are established in the EU, to a third country party to the Agreement on Government Procurement (GPA) at the WTO, or from a third country that has signed a free trade agreement with the EU that contains a chapter on access to public procurement.
A contracting authority may also require works, products and services to originate in the geographical areas referred to above.
By delegated act, the European Commission will be empowered to determine that a third country may no longer benefit from the ‘European preference’ if, following a factual market analysis, that country does not grant European companies the same conditions of access to its public procurement.
Lastly, in order to increase transparency regarding calls for tender, Member States will have to present, at the start of each year, a document that sets out information on their public procurement needs plan. Interactive solutions at national and European level will be put in place to facilitate information on contract opportunities and to allow companies on once-only basis to provide certain documentation required for participation in public procurement procedures.
Read the draft regulation: https://aeur.eu/f/muy (Original version in French by Mathieu Bion with Solenn Paulic)