4.2 Public prcurement Table f cntents 1. Prcurement rules... 2 Rules fr public partners... 2 Rules fr private partners... 5 2. Mst cmmn prcurement errrs... 6 3. Enfrcement f prcurement rules and cnsequences in case f vilatin... 7 4. Where t find mre infrmatin and supprt?... 7 Reference dcuments... 8 Annexes and related factsheets... 8 Versin 02 as f 01.03.2016
Public prcurement rules aim at ensuring that the purchase f services, gds and wrks fllws transparent prcedures and that fair cnditins f cmpetitin fr suppliers are prvided. Accrding t the Eurpean structural and investment (ESI) funds regulatins, the prgramme bdies have t ensure that the prgramme and the prjects are implemented in cmpliance with the applicable public prcurement rules. Thus, any purchase f gds, services r public wrks fr the implementatin f the prgramme r a prject has t be carried ut in line with the relevant public prcurement rules. Public prcurement law is a cmplex matter and many findings during financial cntrls in ESI-financed prgrammes and prjects are related t prcurement errrs. Thus, this factsheet prvides basic infrmatin abut public prcurement law, the relevant prgramme rules, mst cmmn prcurement errrs and further guidance n this issue. 1. Prcurement rules Rules fr public partners The Eurpean Cmmunity has set up minimum requirements fr public prcurement. They vary depending n the type f institutin making the purchase, n the nature f purchases and the relevant sectr in which purchases are made (specific rules are set e.g. fr supply, wrks r service cntracts r fr purchases in the water, energy and ther similar sectrs). Accrding t Eurpean public prcurement law the State, reginal r lcal authrities, assciatins frmed by such authrities, bdies gverned by public law and their assciatins 1 are bliged t fllw public prcurement rules when purchasing gds, services and public wrks. Cnsidering the nature f the activities generally perfrmed in Alpine Space prjects, the main reference dcument n EU public prcurement rules is the directive n public cntracts fr the acquisitin f services, supplies and wrks, i.e.: Directive 2014/24/EU as amended by the Cmmissin delegated regulatin (EU) 2015/2170. 1 A definitin f bdies gverned by public law is prvided in art. 2 f the Directive 2014/24/EU n public prcurement and explained in the factsheet n Wh can participate. 2
This prcurement directive applies t purchases whse estimated value net f value added tax (VAT) is equal t r abve certain threshlds. The fllwing table summarises the main EU threshlds, accrding t this directive. Type f cntractr Nature f prcurement Estimated value, Central Gvernment authrities (e.g. ministries) Sub-central cntracting authrities (e.g. regins, municipalities) excluding VAT Public cntracts fr services and supply EUR 135,000 Public cntracts fr wrks 2 EUR 5,225,000 Public cntracts fr services and supply EUR 209,000 Public cntracts fr wrks 3 EUR 5,225,000 The EU rules set the general framewrk fr the awarding f public cntracts. They have t be transpsed int natinal law. Depending n the natinal legal system prcurement law is made n natinal, reginal r lcal level. As a result, applicable public prcurement rules and threshlds vary between Member States r regins in which Alpine Space prject partners are lcated. Mrever, institutins may set specific internal rules fr prcurements. They may fr instance set stricter prcurement prcedures r lwer threshlds which shall be beyed whenever the institutin purchases smething. It shuld be nted that the strictest f the applicable prcurement rules applies. It shuld be nted that even belw the threshlds, the fundamental principles f public prcurement established in the EC Treaty (transparency, effective cmpetitin, nn-discriminatin and equal treatment) still apply. In additin, prcurement law is further develped thrugh the jurisprudence f the Eurpean Curt f Justice. It is therefre imprtant that prject participants are well aware f the public prcurement rules which are applicable t them and act accrdingly. In case f dubts, prject participants shuld cntact their first level cntrl bdy (FLCB) befrehand. Since prcurement law is a cmplex matter, prject participants are strngly recmmended t seek legal advice if needed. This culd be prvided by the legal department f the prject participant. Mrever, external prcurement experts (e.g. lawyers) can be cntracted t prvide legal supprt and such csts are eligible fr c-financing as lng as the eligibility rules n prgramme and natinal level are beyed. Public prcurement rules fresee different kinds f prcurement prcedures. In general it can be stated that the higher the value f a cntract t be awarded, the stricter the prcurement rules that have t be cmplied with (e.g. regarding the prir publicatin f a call fr tenders r the pssibility t invite a limited number f suppliers based n a market analyses). 2 It shuld be nted that the prcurement f wrks is rather uncmmn in Alpine Space prjects. 3 See abve. 3
The adherence t public prcurement prcedures has t be well dcumented in the framewrk f Alpine Space prjects. Dcuments such as public prcurement ntes, terms f reference, ffers, rder frms and cntracts have t be available fr financial cntrl and audit purpses. Thus, even where natinal public prcurement rules allw fr direct cntracting fr small cntract values, the selectin prcedure has t be dcumented transparently (e.g. prf f market researches, dcuments tracing the selectin f an peratr and the awarding f a cntract) and the bservance f the principles f ecnmic and efficient use f funds have t be prved. It is recmmended that, even where direct awarding is allwed, prject participants still request ffers frm different prviders r prvide evidence f adequate market search befre selecting ne prvider, in rder t ensure an adequate level f transparency and f ecnmical use f public funds. Als in these cases, prir cntact with the FLCB is highly recmmended t enquire the FLCB s expectatins. In-huse cntracting Public prcurement rules fresee very limited and well defined exceptins. One f these cncerns the s called in-huse cntracting. These are cntractual relatinships established between an authrity willing t purchase services/gds/wrks and a prvider (legal persn gverned by private r public law) which is under the cntrl f this authrity (administrative cntrl, cntrl in terms f the activities perfrmed and financial cntrl). These cntracts fall utside the scpe f public prcurement if all f the fllwing cnditins are fulfilled: the cntracting authrity exercises ver the prvider a cntrl which is similar t the cntrl exercised ver its wn departments; and mre than 80% f the activities f this prvider are carried ut in the perfrmance f tasks entrusted by the cntrlling cntracting authrity (r by ther legal persns cntrlled by that cntracting authrity); and n direct private capital participatin in the cntrlled prvider is given. The nly pssible exceptins t this rule are frms f private capital participatin that are required by natinal legislative prvisins, in cnfrmity with the EU Treaties, and which d nt exert a decisive influence n the cntrlled prvider. This cntrl may be exercised directly by a single cntracting authrity r jintly with ther cntracting authrities (fr further reference see art. 12 (3) f the EU directive 2014/24/EU). Befre recurring t any exemptin t public prcurement rules, prject participants shuld assess carefully whether the cntractual relatinships they intend t enter actually fulfil the stringent cnditins set by public 4
prcurement rules. In case f dubts, the prgramme strngly recmmends that public prcurement prcedures are fllwed and prcurement experts are cnsulted. Green public prcurement and ther hrizntal aspects Interreg Alpine Space strives fr an innvative and sustainable develpment f the Alpine area. Public prcurement rules allw fr hrizntal aspects such as the prtectin f the envirnment, scial cnsideratins (e.g. advancement f wmen, better integratin f migrants) r the enfrcement f innvatin t be taken int accunt when purchasing a prduct, service r wrk. Prject participants are thus invited t make use f this pssibility whenever pssible. These aspects may be integrated int public prcurement prcedures fr instance by the fllwing means: taking these hrizntal aspects int accunt in the planning f the prcurement r the specificatin f services (e.g. a study n a certain tpic may take int accunt the different needs f men and wmen); setting specific selectin and award criteria (e.g. preference given t equipment with lw electric pwer cnsumptin r assessment taking int accunt the life-cycle-csts f equipment when analysing the ffers f the ptential prviders); including specific clauses in the cntract with the prvider f the service, gd r wrk (e.g. freseeing that certain tasks are perfrmed thrugh the invlvement f disabled persns and establishing a cntract penalty in case this is nt respected). It shuld be kept in mind that a balance is t be ensured between the prmtin f these hrizntal aspects and the need t prvide fair cnditins f cmpetitin fr suppliers. Attentin is thus t be paid that they d nt result in a discriminatry treatment amng prviders f similar services/supplies/wrks. Rules fr private partners The abve mentined Directive 2014/24/EU (article 2) lists the type f rganisatins that are subject t public prcurement rules (i.e. State, reginal r lcal authrities, assciatins frmed by such authrities, bdies gverned by public law and their assciatins 4 ); ther actrs such as private cmpanies, NGOs r ther assciatins f private bdies are nrmally nt subject t public prcurement law. 4 As mentined abve, a definitin f bdies gverned by public law is prvided in art. 2 f the Directive 2014/24/EU n public prcurement and explained in the factsheet n Wh can participate. 5
Hwever, Alpine Space prjects are c-financed with public funds and these funds shall be used in cmpliance with the principles f efficiency, ecnmy and expediency. Therefre, Interreg Alpine Space sets simplified prgramme rules fr prcurements f thse actrs that are nt subject t the EU Directive n public prcurement. Type f cntractr Private actrs (e.g. private cmpanies, NGOs r ther assciatins f private bdies) that are nt subject t the EU Directive 2014/24/EU n public prcurement (i.e. nt the State, reginal r lcal authrities, assciatins frmed by such authrities, bdies gverned by public law and their assciatins) Estimated value f the cntract, excluding VAT EUR 5,000 r higher EUR 50,000 r higher Requirements Perfrm and dcument adequate market search (e.g. cllecting ffers frm at least 2 different market peratrs, internet price cmparisn) Publicatin f terms f reference fr the purchase n: - Interreg Alpine Space website The purchase prcess f these private prject partners shall be dcumented using a frm prvided by the prgramme. 2. Mst cmmn prcurement errrs Experience made in ESI-funded prgrammes has revealed the fllwing as being the mst cmmn prcurement errrs: Insufficient publicatin f prcurement prcedure (e.g. direct award withut any prir ntificatin, ntificatin nly n natinal r reginal instead f EU-level) Imprecise definitin f the subject-matter f the cntract t be awarded Excessively shrt deadlines fr the submissin f tenders Mix-up f selectin and award criteria Use f discriminatry r dissuasive selectin r award criteria 6
Unlawful splitting f cntracts Use f wrng prcurement prcedure Unlawful applicatin f exemptin rules Unlawful negtiatin during award prcedure Mdificatin f a tender r criteria during evaluatin Unlawful substantial cntract mdificatin r purchase f additinal wrks, services f supplies. Prject participants are therefre asked t pay special attentin t avid similar errrs. 3. Enfrcement f prcurement rules and cnsequences in case f vilatin Fr each prject participant, the FLCB checks inter alia if the applicable prcurement rules have been respected. Therefre, prject participants have t ensure that any prcurement prcedure is rderly carried ut and dcumented. Additinal cntrls may als be carried ut by auditing bdies f the prgramme, the EU r f the EU-Member State where the prject participant is lcated. Prject participants risk lsing ERDF financing if they cannt prvide dcumentary prf f cmpliance with Eurpean, natinal, lcal and their wn internal public prcurement rules r with the prgramme rules n prcurement mentined abve. If a prcurement errr is detected, the Cmmissin Decisin C (2013) 9527, f 19 December 2013 n the guidelines fr determining financial crrectins t be made fr nn-cmpliance with public prcurement rules, will apply. If nn-bservance f the prgramme rules fr purchases by private partners is detected, a financial crrectin will apply f 10% f the value f the cntract that is reprted t the prgramme. 4. Where t find mre infrmatin and supprt? An verview n the applicable EU public prcurement rules, including aspects such as green public prcurement, is available at the dedicated website f the Eurpean Cmmissin: http://ec.eurpa.eu/grwth/single-market/public-prcurement/index_en.htm http://ec.eurpa.eu/internal_market/publicprcurement/ther_aspects/index_en.htm 7
Reference dcuments Directive n public prcurement 2014/24/EU as amended by the Cmmissin delegated regulatin (EU) 2015/2170 Cmmissin Decisin C (2013) 9527 f 19 December 2014 n guidelines fr determining financial crrectins fr nn-cmpliance with public prcurement rules. Annexes and related factsheets Purchase frm Factsheet Wh can participate Factsheet What can be c-financed Factsheet Financial cntrl system Factsheet Prject greening 8