Brussels, 24/07/2006 (Agence Europe) - On 24 July, the Commission published an interpretative communication on public procurement contracts not covered - or only partly covered - by specific EU directives (2004/18/EC for the more usual markets and 2004/17/EC for certain specific sectors). The aim of this non-binding text is to recall the rules deriving from the Treaty, to interpret Court of Justice case law and provide public authorities with guidance on how to award this kind of contract. In addition, the Commission wants to send the political message that greater transparency in the award of low-value contracts would be of considerable benefit to European small and medium-sized enterprises.
The communication provides guidance to contracting authorities to help them comply with the standards developed by the Court. It explains how to ensure that low-value contracts are advertised adequately and transparently, by giving specific advice on how widely the contract should be advertised, the various methods of advertising that could be used and which elements the advertisement should contain. The communication also provides guidance on how public authorities can ensure a fair and impartial procedure for awarding contracts. The principles of such a procedure include a transparent and objective approach, appropriate time-limits, mutual recognition of written evidence between different Member States, equal access for economic operators from all Member States, and non-discriminatory description of the subject matter of the contract. Finally the communication explains how bidders can request a review of the impartiality of decisions taken in the course of an award procedure, through national appeal procedures.
The communication covers public contracts which have a value lower than European thresholds: €211,000 euro in the case of services or supplies contracts, or €5.4 million in the case of works contracts. Although they each represent a small sum of money, “in some Member States” these contracts amount to “over 90%” of public contracts awarded, said Commissioner Charlie McCreevy's spokesman. Also included are the services contracts that feature in annexes II B of directive 2004/18/EC and XVII B of directive 2004/17/EC, such as hotel and restaurant services; transport by rail or water; legal services; staff, security and vocational training supply; and social and health, recreational, cultural and sports services. Outside the scope of the communication, however, are service concessions, which for the moment lie outside European legislation, but should be the subject of a draft directive in early 2007 (see EUROPE 9077).
The Commission gave up on its idea to include in this communication a de minimis threshold below which it would not consider complaints. The decision to undertake a litigation procedure will depend on the seriousness of the infringement and its repercussions on the internal market. In June, several Member States, including Germany, France and Austria, put pressure on the Commission over a communication, which they felt was an attempt at creeping legislation, creating confusion notably because of this de minimis threshold (see EUROPE 9200).