Procurement Law

Proposed EU Directives

Paul James, Eversheds LLPSOPO Conference, 12 November 2012

Public Directive key changes

• Abolition of part B services except – social, health, rescue, prison and education services

“services to the person” – rescue, firefighting and prison services– hotel and restaurant services– legal services

• subject to “light touch” regime• €500,000 threshold and compliance with transparency/

equal treatment

Public Directive key changes

• Lighter regime for “sub central” bodies (non GPA bodies so not central govt and NHS) – agree shorter time limits with bidders (as low as 10

days for ITT)– annual notices can replace specific OJEU notices

• Exclusions for certain services contracts including radio media services, arbitration, conciliation and raising capital

Public Directive key changes

• Procedural choice– negotiated procedure and competitive dialogue both

selectable– negotiated procedure rules on confidentiality, selection,

use of BAFO– CD to allow negotiation of terms post selection,

provided it does not materially amend essential parts of procurement and does not risk distorting competition or causing discrimination

Public Directive key changes

• New “Innovation Partnership” • under negotiated procedure for “establishing a

structured partnership for the development of innovative product, service or works and the subsequent purchase of the resulting supplies, services or works”

• can be with one partner or several partners conducting separate research and development activities

Public Directive key changes

* timings in brackets apply if electronic notice/ documents

Procedure Now Proposed

Open 52 (45) days to tender22-36 days if valid PIN

35 (30) days15 days

Restricted 37(30) days for PQQ40(35) days to tender22-36 days to tender if valid PIN

30(25) days30(25 days10 days

Negotiated 37(30) days for PQQNo time limits for tender

30 days30 days

CD 37(30) days for PQQ 30 days

Public Directive key changes

• Express provisions on the Teckal exemption– at least 85% of activity for the owners (turnover for

services in last three years will be considered)– no private participation– multi-party owners acceptable if co-operative, cost

reimbursement only and in the public interest and participating contracting authorities do not perform more than 15% of activities

Public Directive key changes

• Express provision on “substantial modifications”• Modification substantial if above relevant threshold and

10% of original contract value but not if– a diligent authority could not foresee it and– does not alter the overall nature of the procurement

and– price increase not over 50% of original contract value

• Electronic procurement pushed further– all OJEU notices, specifications and supporting

documents electronic within 2 year transition– CPBs must be fully electronic

Public Directive key changes

• SME encouraging provisions including– explanation of why not sub-dividing contracts

>€500,000 into lots– self declaration in PQQs rather than full information

disclosure– no re-submission of info to the same authority if sent in

last 4 years and still valid– no min turnover requirements over 3x contract value

unless exceptional circumstances

Utilities Directive additional points

• “Special and exclusive rights” don’t arise if granted through a transparent/objective process

• Oil/gas exploration utilities no longer covered• Innovation partnership introduced but not competitive

dialogue• Limiting frameworks to 4 years• “Activities directly exposed to competition” exemption

simplified (Article 30 exemptions)• Affiliated undertaking/joint venture exemption

– Teckal style exemption included if >90% for the utility – affiliates under dominant influence and 80% of turnover

for the affiliate

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