New EU Procurement regulations – our readers comment

Before we come back to our comments on the new EU procurement regulations, I wanted to feature the excellent comments we had on our last article (here).

Flo picked up on the move that sees bidders only having to prove they possess (for instance) certificates or regulatory approvals after they’ve been awarded the contract.

From the CA’s (contracting authority) viewpoint, I foresee practical difficulties (I’ll not use the challenge word here) arising from the move to self certification with only the successful bidder having to evidence its capability and capacity prior to award. What happens if they can’t evidence it? Or the rose tinted specs were on when the declarations were signed several months ago? In Ireland, they’ve been using self declarations in works tenders for a number of years and have ‘pulled’ verification of the declarations back to between the selection and ITT stages i.e  capability and capacity is checked before getting tenders – to minimise problems later.

She also commented on the new timescales.

From the bidder’s point of view, a potential 15 day response time where PIN’s have been published for 45 days is a tad tight – that’s really 11 days, given there’ll be 2 Saturdays and Sundays in there. Oops, sorry, I forgot - bidders work 7 day weeks!

Good to hear from Roger Holloway, sensible as ever, who doubts how much more flexibility we will really have.

Beyond the political spin, the new regs are likely to open up new fruitful areas of challenge as contracting authorities struggle to get to grips with the rules. The fact that there’s 333 pages of text to wade through before you get to the final Article 94 says a lot in itself. To quote the new Directive’s preamble: “the competitive procedure with negotiation should be accompanied by adequate safeguards ensuring observance of the principles of equal treatment and transparency. Award criteria should remain stable throughout the entire procedure and should not be subject to negotiations”. Doesn’t sound much like freedom and flexibility to me.

Public procurement is a quasi-legal discipline these days and the skill is in getting decent outcomes despite the byzantine nature of the system. As someone who’s studied this area in depth, it really is a minefield and many smaller contracting authorities are an easy target for challenges.

Dan also questioned how big the changes will really turn out to be. He makes a key point as well – that the basic treaty principles such as non-discrimination will still apply.

For all the talk of them being ‘revolutionary’, these new regs don’t change all that much. For the most part they just clarify the law and codify existing case law. Do they make it easier to negotiate? Not really. They allow organisations to engage in pre-procurement dialogue with interested firms. But they could do that anyway, it’s just that a lot of organisations didn’t know how. And the restrictions on non-discrimination are still in place so organisations are going to have tread carefully anyway.

They change the rules for the Negotiated Procedure to bring it on a par with the Competitive Dialogue Process. But that one wasn’t used all that much anyway. I foresee it being business as usual, but consultants are going to make a lot more money from the training of procurers and suppliers.

And Final Furlong in a sense refuted my ides that the changes might lead to less cross-border trade – as FF points out, it is pretty low already!

We mustn’t forget that, despite the massive investment (aka cost) in complying to EU public procurement legislation, particularly in our in-country policies, procedures, processes, training (in our procurement teams to be reactive ‘tender-jockeys’) and fighting-off legal challenges, only 3-4% of our total, annual, public sector spend is actually (European) ‘cross-border’.

That is a sobering statistic and suggests the politicians make a lot of noise about this for reasons that are… well, political. Anyway, we’ll be back to our comments on the new regulations shortly, and thanks to all our commentators as always.

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Voices (2)

  1. Jason Kay:

    As much as we all need to be aware and understand the implications of these changes, we must not get too carried away with the possibilities of challenge. Remember the principles and ensure whatever you do, they are followed even when applying some of the new opportunities the changes offer. I do worry that we talk and worry too much without actually getting on and achieving what we need to.

    1. Peter Smith:

      That is a lot of wisdom in 60 words, Mr Kay. Totally agree. When I do the odd bit of training / lecturing on this topic I always say think about whether what you’re doing is in line with the treaty principles – if it is, then you’ll probably be OK. thanks!

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