Professor Sue Arrowsmith, Achilles Professor of Public Procurement Law and Policy, University of Nottingham

Size: px

Start display at page:

Download "Professor Sue Arrowsmith, Achilles Professor of Public Procurement Law and Policy, University of Nottingham www.nottingham.ac."

Mavis Hoover
7 years ago
Views:

1 Professor Sue Arrowsmith, Achilles Professor of Public Procurement Law and Policy, University of Nottingham

2 Summary Proposals for change: 1. A single directive 2. Real simplification 3. Policy coherence 4. Smarter remedies

3 Why? Combination of complexity/uncertainty and strict remedies leads to: Resource costs for procuring entities, including from litigation Over-compliance purchasers are concerned more with complying with technical rules than value for money, and make the procedure unnecessarily bureaucratic Barriers for SMEs Deterrence to good suppliers

are concerned more with complying with technical rules than value for money, and

4 Why? Reform can preserve benefits of directives but reduce costs

5 1. A single directive Single Procurement Directive to replace: Public Contracts Directive 2014/24 Utilities Directive 2014/25 Concessions Directive 2014/23 Defence and Security Directive 2009/81 Single Remedies Directive with remedies for all regimes

Concessions Directive 2014/23 Defence and Security Directive

6 1. A single directive Some key reasons for a single directive on procedures: Directives are now very similar in substance on key issues e.g. on procedures involving negotiation, framework agreements Includes concessions Much litigation concerns the boundaries between directives

7 1. A single directive Should be based on Utilities Directive

8 2. Real simplification Law is too difficult to apply, and litigation excessive, because of: Complexity of material Volume of material Low quality of legislation (poor drafting, inconsistency between different directives etc) Low quality and unpredictable nature of ECJ decisions Exacerbated by not using Advocates General Uncertainty (in part because of above) 2014 legislation has made this worse

between different directives etc) Low quality and unpredictable nature of ECJ decisions Exacerbated

9 2. Real simplification Example: similarity between competitive procedure with negotiation and competitive dialogue in Public Contracts Directive Same grounds for use Both now require a final tender at the end of the procedure so are they fundamentally different? Some differences in explicit rules But largely not important (e.g. PINs to advertise competitive procedure) or merely state what applies anyway (e.g. may give prizes or payments in competitive dialogue)

are they fundamentally different? Some differences in explicit rules But large

10 2. Real simplification Example: Art.67(3) Directive 2014/24 Award criteria shall be considered to be linked to the subject-matter of the public contract where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle, including factors involved in: (a) the specific process of production, provision or trading of those works, supplies or services; or (b) a specific process for another stage of their life cycle, even where such factors do not form part of their material substance (emphasis added)

works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle, including factors involved

11 3. Policy coherence Purpose of the directives is not clear: In particular, laying down how to get value for money is not the purpose of the directives Balance between commercial and environmental considerations EVN case Can a procuring entity negotiate the price down with the winning bidder? See Arrowsmith, The Purpose of the EU Public Procurement Directives: Ends, Means, and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies. (2011/12) 14 Cambridge Yearbook of European Legal Studies, 1-47

12 3. Policy coherence No clear conception of when Member States can regulate their entities more strictly than the directives require Early directives had clear conception states could give entities less flexibility than the directives allowed 2014 directives (and some recent case law) no clear conception, or debate Sometimes specified e.g. Member States cannot deny CAs use of competitiv e procedures Member States can require use of discretionary exclusions Mostly not specified

directives allowed 2014 directives (and some recent case law) no clear conception, or debate Sometimes specified e.g.

13 4. Smarter remedies Supplier remedies should be required only when manifest error of fact or commercial judgment or application of the law (negligence) E.g remedy for not advertising a contract only when it is clear the law required an advertisement Currently cannot require fault: Case C-314/09, Stadt Graz v Strabag Burden of showing manifest error/negligence should be on the supplier?

g remedy for not advertising a contract only when it is clear the law required an advertisement

14 4. Smarter remedies Remedy should not be required when the breach is not likely to have had an impact on the supplier s position Burden should be on the procuring entity to show impact not likely?

15 4. Smarter remedies May need other approaches to interpretative function of litigation e.g. national advisory body (Commission could still bring ECJ proceedings)

16 4. Smarter remedies A role for attestation? = independent accreditation that a procuring entity follows the EU procurement rules in its policies and practices; formerly an option for utilities Could be an additional enforcement system, that would make limited supplier remedies more acceptable Could be: Mandatory for all regulated entities alongside reduced supplier remedies or Option for regulated entities/member States that would entail more limited supplier remedies regime

formerly an option for utilities Could be an additional enforcement system, that would make limited supplier remedies

E U R O P E A N E C O N O M I C A R E A

E U R O P E A N E C O N O M I C A R E A S T A N D I N G C O M M I T T E E O F T H E E F T A S T A T E S Distribution: EEA EFTA 20 March 2012 SUBCOMMITTEE I ON THE FREE MOVEMENT OF GOODS EEA EFTA Comment