Observatorio de Contratación Pública

Observatorio de Contratación Pública

Actualidad

Propuesta de Directiva del Parlamento Europeo y del Consejo sobre contratación pública

Persigue, además de la eficiencia del gasto público, que pasa por la simplificación de las reglas actuales, la protección del medio ambiente, el ahorro energético, la promoción de la innovación, la lucha contra el cambio climático y la inclusión social.

11/11/2011
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The existing public procurement legislation needs to be revised and modernised in order to make it better suited to deal with the evolving political, social and economic context.

In its communication of 13 April 2011 on “The Single Market Act: Twelve levers to boost growth and confidence”, the Commission included among its twelve key priority actions to be adopted by the EU institutions before the end of 2012 a revised and modernised public procurement legislative framework to make the award of contracts more flexible and enable public contracts to be put to better use in support of other policies.

This proposal has two complementary objectives:

  • Increase the efficiency of public spending to ensure the best possible procurement outcomes in terms of value for money. This implies in particular a simplification and flexibilisation of the existing public procurement rules. Streamlined, more efficient procedures will benefit all economic operators and facilitate the participation of SMEs and cross-border bidders.
  • Allow procurers to make better use of public procurement in support of common societal goals such as protection of the environment, higher resource and energy efficiency, combating climate change, promoting innovation and social inclusion and ensuring the best possible conditions for the provision of high quality social services.

Detailed explanation of the proposal

1) Simplification and flexibilisation of award procedures

The proposed Directive provides for a simplification and flexibilisation of the procedural regime set by the current public procurement Directives. For this purpose, it contains the following measures:

Clarification of scope: The basic concept of “procurement” which appears also in the title of the proposed Directive has been newly introduced in order to better determine the scope and purpose of procurement law and to facilitate the application of the thresholds. The definitions of certain key notions determining the scope of the Directive (such as body governed by public law, public works and service contracts, mixed contracts) have been revised in the light of the case-law of the Court of Justice. At the same time, the proposal endeavours to keep continuity in the use of notions and concepts that have been developed over the years through the Court’s case-law and are well known to practitioners. In this context, it should be noted that minor deviations from the wording and presentation known from the previous Directives do not necessarily imply a change of substance, but may be due to simplification of texts.

The traditional distinction between so-called prioritary and non-prioritary services (“A” and “B” services) will be abolished. The results of the evaluation have shown that is no longer justified to restrict the full application of procurement law to a limited group of services. However, it became also clear that the regular procurement regime is not adapted to social services which need a specific set of rules (see below).

Toolbox approach: Member State systems will provide two basic forms of procedure, open and restricted procedure. They may, in addition, foresee either as standard procedures or subject to certain conditions, the negotiated procedure with publication, the competitive dialogue and/or the innovation partnership, a new form of procedure for innovative procurement (see below).

Contracting authorities will furthermore have at their disposal a set of six specific procurement techniques and tools intended for aggregated and electronic procurement: framework agreements, dynamic purchasing systems, electronic auctions, electronic catalogues, central purchasing bodies and joint procurement. Compared to the existing Directive, these tools have been improved and clarified with a view to facilitating e-procurement.

Lighter regime for sub-central contracting authorities: In line with the WTO Government Procurement Agreement, the proposal provides a simplified procurement regime that applies to all contracting authorities below the central government level, such as local and regional authorities. These purchasers may use a prior information notice as a means of calling for competition. If they make use of this faculty, they don’t have to publish a separate contract notice before launching the award procedure. They may also set certain time limits in a more flexible way by mutual agreement with participants.

Promotion of e-procurement: The use of electronic communications and transaction processing by public purchasers can deliver significant savings and improved procurement outcomes while reducing waste and error. The proposal aims at helping Member States to achieve the switchover to e-procurement enabling suppliers to take part in online procurement procedures across the Internal Market. For this purpose, the proposed Directive provides for the mandatory transmission of notices in electronic form, the mandatory electronic availability of the procurement documentation and imposes fully electronic communication on Central Purchasing Bodies. It streamlines and improves Dynamic Purchasing Systems and electronic catalogues, fully electronic procurement tools that are particularly adapted to highly aggregated procurement done by Central Purchasing Bodies.

Modernisation of procedures: The proposal provides a more flexible and user-friendly approach for certain important features of award procedures. Time-limits for participations and submission of offers have been considerably shortened, allowing for quicker and more streamlined procurement. The distinction between selection of tenderers and award of the contract which is often a source of errors and misunderstandings has been made more flexible, allowing at for contracting authorities to decide on the most practical sequencing by examining award criteria before selection criteria and to take into account the experience of the staff used for the contract as an award criterion.

The grounds for exclusion of candidates and tenderers have been reviewed and clarified. Contracting authorities will be entitled to exclude economic operators which have shown significant or persistent deficiencies in performing prior contracts. The proposal provides also the possibility of “self-cleaning”: contracting authorities may accept candidates or tenderers in spite of the existence of an exclusion ground if they have taken adequate measures to remedy the consequences of any illicit behaviours and effectively prevent further occurrences of the misbehaviour.

The modification of contracts during their term has become an increasingly relevant and problematic issue for practitioners. A specific provision on modification of contracts takes up the basic solutions developed by case-law and provides a pragmatic solution for dealing with relatively minor modifications of public contracts.

2) Strategic use of public procurement in response to new challenges

The proposed Directive is based on enabling approach providing contracting authorities with the instruments needed to contribute to the achievement of the Europe 2020 strategic goals by using their purchasing power to procure goods and services that foster innovation, respect the environment and combat climate change while improving employment, public health and social conditions.

Life cycle costing: The proposal gives public purchasers the possibility to base their award decisions on life cycle costs of the products, services or works to be purchased. This can be done through the criterion of the most economically advantageous tender or through the criterion of the lowest cost which replaces the “price only” criterion. The life cycle of a product or works covers all stages from raw material acquisition until the final disposal, including production, transport and maintenance, while the life cycle of a service includes all stages from its preparation to the end of its provision. The costs to be taken into account do not only include direct monetary expenses, but also external environmental costs if they can be monetarised and verified. Where a common European Union methodology for the calculation of life cycle costs has been developed, contracting authorities are obliged to make use of it.

Production process: Contracting authorities may refer to all factors directly linked to the production process for determining the economically most advantageous tender. This includes, for instance, the employment of disadvantaged people in the production process of the products, works or services procured. On the other hand, it excludes requirements that are not related to the process of producing the products, works or services covered by the procurement, such as a general corporate social responsibility requirements covering the whole operation of the contractor.

Labels: Contracting authorities may define requirements by referring to labels attributed by specific certification schemes, provided that they accept also equivalent labels. This applies for instance to European or (multi-)national eco-labels or labels certifying that a product is free of child-labour. The certification schemes in question must be drawn up on the basis of scientific information, established in an open and transparent procedure and accessible to all interested parties.

Sanctioning violations of mandatory social, labour or environmental law: Under the proposed Directive, a contracting authority can exclude economic operators from the procedure, if it identifies infringements of obligations established by Union legislation in the field of social, labour or environmental law or of international labour law provisions. Moreover, contracting authorities will be obliged to reject tenders if it has established that they are abnormally law because of violations of Union legislation in the field of social, labour or environmental law.

Social services: The evaluation on the impact and effectiveness of EU public procurement legislation has shown that social, health and education services have specific characteristics which make them inappropriate for the application of the regular procedures for the award of public service contracts. These services are typically provided within a specific context that varies widely between Member States due to different administrative, organisational and cultural circumstances. The services have, by their very nature, only a very limited cross-border dimension. Member States should therefore have large discretion to organise the choice of service providers. The proposal takes account of this by providing a specific regime for public contracts for these services, with a higher threshold of EUR 500 000 and imposing only the respect of basic principles of transparency and equal treatment. Contracts below this value can be presumed to have no cross-border interest.

Innovation: Research and innovation play a central role in the Europe 2020 strategy for smart, sustainable and inclusive growth. Public purchasers should be enabled to buy innovative products and services promoting future growth and improving efficiency and quality of public services. The proposal provides for this purpose the innovation partnership, a special procedure for the development and subsequent purchase of new, innovative products, works and services, provided they can be delivered to agreed performance levels and costs. In addition, the proposal improves and simplifies the competitive dialogue procedure and facilitates cross-border joint procurement which is an important instrument for innovative purchasing.

3) Better access to the market for SMEs and Start-ups

Small and medium-sized enterprises (SMEs) have a huge potential for job creation, growth and innovation. Easy access to procurement markets can help them to unlock this potential while allowing contracting authorities to broaden their supplier base, with positive effects of higher competition for public contracts. In order to make public contracts as accessible as possible to SMEs, the Commission published in 2008 the “European Code of Best Practices facilitating access by SMEs to public procurement contracts”[8]. The proposal builds on this work and provides concrete measures to remove barriers for market access by SMEs.

Simplification of information obligations: The general simplification of information obligations in award procedures will greatly benefit SMEs. The proposal provides for the mandatory acceptance of self-declarations as prima-facie evidence for selection purposes. The actual production of documentary evidence will be facilitated by a standardised document, the European Procurement Passport which is a means of proof for the absence of grounds for exclusion.

Mandatory division into lots: Contracting authorities will be obliged to subdivide public contracts above EUR 500 000 into – homogeneous or heterogeneous – lots to make them more accessible for SMEs. However, the proposal provides exceptions from this obligation, if the division would be excessively difficult or expensive or restrict competition.

Limitation on requirements for participation: To avoid unjustified barriers in the way of participation by SMEs, the proposed Directive contains an exhaustive list of possible conditions for participation in award procedures and states explicitly that any such conditions shall be restricted “to those that are appropriate to ensure that a candidate or tenderer has the ... capacities and ... abilities to perform the contract to be awarded”. Turnover requirements which are frequently a formidable obstacle to access by SMEs are explicitly limited to three times the estimated contract value, except in duly justified cases. Finally, any conditions for participation by groups of economic operators – an instrument of particular relevance for SMEs – must be justified by objective reasons and proportionate.

Direct payment of subcontractors: In addition, Member State can provide that subcontractors may request for direct payment by the contracting authority of supplies, works and services provided to the main contractor in the context of the contract performance. This offers subcontractors which are often SMEs an efficient way of protecting their interest in being paid.

4) Sound procedures

The financial interests at stake and the close interaction between public and private sector make public procurement a risk area for unsound business practices such as conflict of interest, favouritism and corruption. The proposal improves the existing safeguards against such risks and provides for additional protection.

Conflicts of interest: The proposal contains a specific provision on conflicts of interest covering actual, potential or perceived conflict of interest situations affecting staff members of the contracting authority or of procurement service providers intervening in the procedure and members of the contracting authority’s management who may influence the outcome of an award procedure even if they are not formally involved in it.

Illicit conduct: The proposal makes clear that candidates or tenderers engaging in illicit behaviour such as attempts to improperly influence the decision-making process or entering into agreements with other participants to manipulate the outcome of the procedure have to be excluded from the procedure. Such illicit activities violate basic principles of European Union result and can result in serious distortions of competition.

Unfair advantages: Market consultations are a useful instrument for contracting authorities to obtain information on the structure, capability and capacity of a market while at the same time informing market actors on public purchasers’ procurement projects and requirements. However, preliminary contacts with market participants must not result in unfair advantages and distortions of competitions. The proposal contains therefore a specific provision on safeguards against undue preference to participants who have advised the contracting authority or been involved in the preparation of the procedure.

5) Governance

National oversight bodies: The evaluation has shown that not all Member States are consistently and systematically monitoring the implementation and functioning of the public procurement rules. This compromises the efficient and uniform application of European Union law. The proposal provides therefore that Member States designate a single national authority in charge of monitoring, implementation and control of public procurement.

Knowledge centres: In many cases, contracting authorities do not have the internal expertise to deal with complex procurement projects. Appropriate and independent professional support by appropriate administrative structures could considerably improve procurement outcomes by expanding the knowledge base and the professionalism of public procurers and delivering assistance to businesses, notably SMEs. The proposal obliges therefore Member States to provide support structures offering legal and economic advice, guidance, training and assistance in preparing and conducting award procedures.

Administrative cooperation: The proposal provides also for effective cooperation allowing national oversight bodies to share information and best practices and to cooperate through the Internal Market Information System (IMI).
 

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