Public procurements. What changes brings the new EU Directive in the national legislation

by Oana Strătulă

At EU level, public procurements are considered to be one of the key market tools, which have to be used by the Member States with the goal of achieving a smart, sustainable and inclusive growth, while ensuring the most efficient usage of public funds1.   

The key role of public procurements has been acknowledged by the European Commission in the Europe 2020 Strategy which was presented in the European Commission Communication  from March 3, 2010, named  “Europe 2020. An European strategy for a smart, sustainable and inclusive growth “.
Under these circumstances, it became necessary to adapt the Community texts to the new requirements and market realities. This adaptation was achieved on February 26, 2014, through the adoption of the 2014/24/EU Directive of the European Parliament and of the Council on public procurement and through the repeal of the 2004/18/EC Directive on the coordination of procedures for the award of the public procurement contracts of works, goods and services.

What are the new value thresholds established by the Directive

The new Directive establishes norms applicable to the procurement procedures used by contracting authorities in connection with public procurement contracts and design contests, whose estimated value without VAT is equal to or greater than:

– 5.186.000 euros, in the case of public procurement contracts of works;

– 134.000 euros, in the case of public procurement contracts of goods and services awarded by central governmental authorities and in the case of design contests organized by these authorities;

– 207.000 euros,  in the case of public procurement contracts of goods and services awarded by regional and local contracting authorities;

 – 750.000 euros, in the case of public procurement contracts of services for social and other specific services.

What are the principles that public procurements must comply with

Article 18 of the new Directive maintains the obligation for contracting authorities to respect essentially the same principles stipulated in the Directive of 2004, namely the principle of equality, of non-discrimination and of transparency. The novelty is given by the fact that the new Directive also regulates the principle of proportionality (“Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent and proportionate manner“).
Also, the new Directive renounces at regulating the non-discrimination clause (Article 3 of the 2004 Directive) and states, explicitly, that the contracting authorities have the obligation to ensure fair competition between economic operators, so that  the concept of acquisition is not made ​​with the intention of excluding it from the Directive’s scope of application or with the intention to artificially narrow the competition. It is considered that the competition is artificially narrowed if the concept of acquisition is made with the unjustified intention of favoring or disadvantaging certain economic operators.

What are the award procedures from the new Directive

The open procedure –  in which any interested economic operator may submit an offer as a response to an invitation at a tender procedure. The minimum time limit for receipt of tenders is 35 days from the date on which participation notice was sent.

The restricted procedure – in which any economic operator may submit a request for participation as a response to an invitation at a tender procedure, providing the information which are requested by the contracting authority for the qualitative selection.

In the restricted procedure case, only the economic operators invited by the contracting authority – after having assessed the information provided – may submit an offer. Also, the contracting authorities may limit the number of suitable candidates which will be invited to participate to the procedure.

The competitive procedure with negotiation – in which any economic operator may submit a request for participation as a response to an invitation at a competitive tendering procedure, following that only those economic operators invited by the contracting authority – after having assessed the information provided by them – to submit an initial offer, which will constitute the basis for further negotiations. Just as in the case of the restricted procedure, the contracting authority may limit the number of suitable candidates to be invited to participate to the competitive procedure with negotiation.

Also, competitive procedures with negotiation may take place in successive stages in order to reduce the number of offers that will be negotiated by applying the criteria for awarding mentioned in the participation notice, in the invitation to confirm interest or in other documents of the acquisition.

The competitive dialogue – in which any economic operator may submit a request for participation as a response to a participation notice, following that at the dialogue to participate exclusively the economic operators invited by the contracting authority, after evaluating the information provided.

The contracting authority continues the dialogue until it is able to identify the solution(s) which meet its needs. After declaring the conclusion of the dialogue and the proper informing of the remaining participants, the contracting authority will invite each of them to submit their final tenders based on the solution(s) presented and specified during the dialogue.

The contracting authority will evaluate the tenders received on the basis of the criteria for the award specified in the participation notice or in the descriptive document.

The innovation partnership – in which any economic operator may submit a request for participation as a response to a participation notice, providing the information for the qualitative selection required by the contracting authority. In the case of innovation partnership, the contracting authority has the obligation to identify, in the procurement documents, the need for a product, an innovative service or some innovative works that can not be satisfied through the purchase of goods, services or works already available on the market.

The innovation partnership will be structured in successive stages according to the stages from the process of research and innovation, which may include the manufacture of products, the provision of services or the completion of works.  The innovation partnership establishes intermediate targets which must be be achieved by the partners and the payment of the remuneration in adequate tranches.

The negotiation procedure without prior publication – may be used for public procurement contracts of  goods, services and works, in any of the following cases:

– if no offers or no suitable offer or no requests to participate or no appropriate request to participate in response to an open or restricted procedure was submitted, as long as the initial conditions of the contract are not substantially modified and if a report will be transmitted to the Commission at its request;

– if the works, goods or services can be provided only by a certain economic operator for one of the following reasons: the purpose of the acquisition is the creation or purchase of a work of art or unique artistic performances;  the competitors are missing due to technical reasons; the protection of exclusive rights, including intellectual property rights;

 – to the extent that is absolutely necessary when, for reasons of extreme urgency determined by  events which could not have been foreseen by the contracting authority and which are not under its attribution, the deadlines for open or restricted procedures or for competitive procedures with negotiation can not be complied

The new Directive establishes the rule of division into lots of products and services

In order to promote the competition among the economic operators and to ensure compliance with the principles of non-discrimination, equal treatment, proportionality and efficiency in the use of funds, Art. 46 para. 1 of the new Directive states that the contracting authorities may decide to award a contract in the form of separate lots, and can determine the size and scope of such lots.

Also, the next paragraph states that, except for the contracts whose division is mandatory in accordance with paragraph (4) of the same Article, the contracting authorities must indicate the main reasons underlying their decision of not making the division into lots, which will be included in the procurement documents or in the individual report.

Finally, paragraph 4 of art. 46 gives Member States the right of making mandatory the award of contracts in the form of separate lots, under certain conditions which will be specified in accordance with their national law and considering the EU law.

From the mentioned above Community rules it results that the division into lots will represent the rule in public procurement, following that, the public authorities will be able to make purchases in a single lot only in exceptional cases and only if they motivate the decision of not making the division into lots.

The deadline for implementing the new Directive into national law of the Member States

In accordance with Art. 90 of the new Directive, the Member States will ensure the entry into force of the laws, regulations and administrative provisions necessary to comply with the Directive by 18 April 2016. Furthermore, Member States are required to communicate immediately to the Commission the text of those measures.

1. This is a translation of the article published on May 12th, 2014, in