K-Zine

Modernising the EU Public Procurement Directives - text of draft Directive to simplify and update the existing Directives published.

On the 20th March last the Council of the EU published the long awaited text of the proposed Directive to coordinate the procedures for the award of public works, public supplies and public service contracts designed to simplify and modernise the public procurement process.

At present the rules governing the award of such contracts are contained in three separate Directives dating from the early 1970's (having being undated in the 1990's).

In addition the Irish Department of Finance has what is termed the "Green Book" setting out the rules for the award of public contracts which it too is working to update.

Simplification of the process

It is proposed the replace the existing three Directives with one unified coherent text. Interestingly - now that the liberalisation of the telecommunications market has resulted in the creation of effective competition the new Directive will exclude contacts from this sector from the operation of the new Directive.

The new provisions are to be presented in a more user friendly manner and will follow the logic and order of the award process itself. The relevant thresholds will be expressed in euro rather than special drawing rights.

Modernisation of the process

The procedures governing the award process will be updated to reflect the current administrative demands and requirements. Here are some examples of what is proposed:

For example contracts "dialogue" between tenderers and contacting authorities to determine the contract conditions would be permitted subject to overriding requirement of protecting and guaranteeing the principles of transparency and equal treatment.
The new proposals will allow for certain flexibility for recurring purchases by contracting authorities in the approach to standard-form contracts. This is aimed at allowing the purchasing contracting authority to benefit from economies of scale resulting from a longer term procurement policy.
Contracting authorities are to be allowed more flexibility in setting down the scope of the proposed contract allowing for the setting out of the requirements in terms of performance and not just in terms of standards.
In deciding to award the contract to the "most economically advantageous tender" the contracting authority will be free to take both environmental and social criteria into account. These criteria must be specifically mentioned in the tender notice and the contract documentation and must relate to the underlying purpose of the contract to be awarded.

The new Directive will also seek to promote the optimum use of information and communications technologies to facilitate effective procurement and to encourage the better use of among other technologies, the following:

Electronic purchasing systems.
Electronic auctions.
Centralised purchasing techniques.
Transmission of information by electronic means.

The new Directive will restate the obligation on contracting authorities to award contracts on the basis of objective criteria which ensures compliance with the principles of transparency, non-discrimination and equal treatment. The two award criteria from the existing three Directives will remain; either lowest price or most economically advantageous tender.