The new EU Directives – summing up our thoughts so far

How do we feel overall about the new EU Directives on public procurement? We’ve given some fairly detailed comments on them here, here and here, and got some well informed views back from readers too.

The line from government is that these are changes that will allow procurement staff to exercise more initiative and commercial skills. However, that relies on two factors. Firstly, the new regulations must actually give those greater ‘freedoms’ and flexibility. And even if that is the case, contracting authorities and their procurement specialists must be willing, capable and ready to use them.

It would appear that the official line sees the main new ‘freedom’ to be the competitive negotiation process. Yet the irony is that Cabinet Office – Francis Maude, the Minister, to be precise – has been very opposed to the Competitive Dialogue process, which arguably has given the same freedom to negotiate for years.  But setting that aside, the new procedure does look as if it offers an attractive route for many procurements.

However, as we said before, Competitive Negotiated will have to be handled with care.  The idea of negotiating is great, but every supplier will have to be handled the same, with a strong audit trail, or more challenges will result. You can’t just chat to your preferred supplier, and ask them to drop their price a few percent to take them ahead of the competition in the evaluation. You will have to offer the same chances to all bidders, I assume, so the negotiation will need to be well structured within clear parameters.

That also pre-supposes that contracting authorities have the skills required to handle all these negotiations. That’s another issue. But let’s be positive and welcome the move, and all of us who have worked in this environment know there are times when a bit of negotiation – going a bit further than the ‘clarification’ we have tended to use – would be useful.

There are a number of other changes that are to be welcomed.  Clarification of what changes in contract details can be accommodated is welcome, as is the ability to look at the specific details of consultants and other service providers at tender stage. The tighter timescales have their risks but will be welcomed by many, the changes in parts A and B service definitions, and the ‘simplified regime’ for services with ‘a limited cross border dimension’  should all be welcomed.

In other cases, the changes look good, but we are less convinced they will actually make much difference once implemented. Will suppliers really get excluded for ‘poor past performance?’ That will require a lot of clear evidence, so I suspect it won’t happen because contracting authorities either just won’t have the evidence, or will feel nervous about challenge anyway. And in another move, the benefits for mutuals may help a small number of people, but will it lead to a groundswell in employees wanting to create their own entities? Again, doubtful.

So all in all, a qualified welcome is probably in order. We are concerned as we said here that the changes could take us further towards protectionism and subjective procurement decisions; but we have considerable trust in procurement professionals to act sensibly. And if in doubt, remember that the EU treaty principles still provide a great summary of how procurement should be conducted – fair, transparent, proportionate and open.

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