The new EU public procurement Directives were adopted by the European Parliament on 15 January 2014. The new rules replace Directive 2004/18/EC on public works, supply and service contracts and Directive 2004/17/EC on procurement in the water, energy, transport and postal services sectors.
The new Directives introduce a number of simplified rules and procedures. The key changes are described below.
1. Standardised European Single Procurement document
The documentation required for a procurement procedure is reduced through a standardised European Single Procurement Document. This means that only the winning bidder will have to submit formal evidence (certificates and attestations). Consequently, the minimum deadlines to submit tenders are shortened.
2. Mandatory use of electronic communication
Electronic means of information and communication exchange will become mandatory in procurement procedures as this can greatly simplify the publication of contracts and increase the efficiency and transparency of procurement processes. The deadline for the mandatory use of electronic communication is 54 months (transposition deadline of 24 months + 30 months).
3. More possibilities for negotiation
The new public procurement Directives will abolish the current standard negotiated procedure and replace it with a new procedure called the competitive procedure with negotiation. The new procedure will be very similar to the Competitive Dialogue. The main difference for the competitive dialogue will be that tenders are submitted from the beginning, are then subject to negotiation and then resubmitted to finalise positions.
4. Facilitating access for small and medium sized enterprises (SMEs)
In order to facilitate the participation of SMEs, contracting authorities are now encouraged to divide large contracts into lots through the ‘apply or explain’ principle. This means that where the contracting authority decides that it would not be appropriate to divide the contract into lots, the individual report or the procurement documents should indicate the main reasons for the contracting authority's choice. Also, as far as the proof of the economic operator’s financial capacity is concerned, when a minimum turnover requirement is set at a higher level than twice the estimated contract value, the individual report or procurement documents should indicate the main reasons for the contracting authority's choice.
5. Innovation partnership
A new partnership procedure, the innovation partnership, will be foreseen in the Directives. The innovation partnership will aim towards the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works, if they correspond to the agreed performance levels and maximum costs.
6. Blacklisting of companies
The new Directives also allow public authorities to effectively blacklist companies and prevent them from bidding for public contracts. This action would be justified where for example the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract.
7. Strategic use of public procurement
The new Directives focus on achieving the objectives of the Europe 2020 Strategy for sustainable growth, environmental, social and innovation procurement. Consequently, contracting authorities can now determine the most economically advantageous tender and the lowest cost using a life-cycle costing approach. The notion of life-cycle costing includes internal costs and cost imputed to environmental externalities (including the CO2 footprint) linked to the product, service or works during its/their life cycle.
In their award decisions, contracting authorities may also require that works, supplies or services bear specific labels certifying environmental, social or other characteristics. In addition, contracting authorities can take into account criteria linked to the production process of the works, services or supplies to be purchased such as the inclusion of vulnerable and disadvantaged people or the use of non-toxic substances.
However, it should be stressed that no general mandatory requirements for environmental, social and innovation procurement were set.
8. Introduction of a simplified regime
In the new Directives, the distinction between the current A (‘priority’)-services and B (‘non-priority’)-services will be abolished. The current B-services will be subject to the full set of rules in the Directives, unless listed in the ‘new simplified regime’ annex. All services not explicitly listed fall under the full regime in the Directives.
9. Next steps
After their publication in the Official Journal of the European Union, the Directives will enter into force within 20 days. After this date, Belgium will have 24 months to implement the provisions of the new rules into national law.
In this regard, it should be noted that the Belgian Public Procurement Act of 15 June 2006 (implementing the provisions of the Directive 2004/18/EC and Directive 2004/17/EC) that only just entered into full force on 1 July 2013, will already need amending.
