Tired of complaining about EU rules and procedures, buyers and sellers have been given their say on the future of public procurement within the European Union. In this article we look some of the changes demanded by the grassroots and the clear calls for increased simplification of procurement rules.

1. The Public Has It’s Say On:
The Future Of EU Public Procurement
Tired of complaining about EU rules and procedures, buyers and sellers have
been given their say on the future of public procurement within the
European Union. In this article we look some of the changes demanded by
the grassroots and the clear calls for increased simplification of procurement
rules.
A review of public procurement in the EU began in early 2011 with the publication of Green
Paper titled 'Towards a more efficient European Procurement Market'.
The green paper set out proposals or more accurately issues for discussion under a total of 24
different headings – from the 'modernisation of procedures' to the promotion of 'innovation'
through procurement. It was an elaborate questionnaire posing a total of 120 questions about
public procurement in the future.
The irony of a process of simplifying EU procurement starting with what was effectively a
questionnaire of 120 questions – was not lost on many! However the questions were straight-
forward and to the point, as the following example shows:
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2. 17. Do you think that the procedures and tools provided by the Directive to address
specific needs and to facilitate private participation in public investment through
public-private partnerships (e.g. dynamic purchasing system, competitive dialogue,
electronic auctions, design contests) should be maintained in their current form,
modified (if so, how) or abolished?
Public Procurement - Europe Is Listening
Fast forward a number of months and the EU had received just over 600 responses from public
organisations, member state governments, industry associations and even private citizens.
Those sellers and their industry associations who availed of this one in 50 year opportunity to
input to Europe’s policies on public procurement accounted for approx. 40% of all responses
received.
These responses will shape the new regulations due before the end of 2011, so reviewing the
results is likely to provide a good indication of the changes that are likely to be made.
A Call For Greater Simplification
1. There is widespread support for greater flexibility and simplification of EU procurement
rules. One clear expression of this is support for the generalisation of the negotiated
procedure. It was favoured as a primary means of affording greater flexibility and reducing the
administrative burden placed on buyers.
2. Most believe that procurement procedures are too formalised and do not allow contracting
authorities to obtain the best possible procurement outcomes. This results in calls for more
flexibility in the conduct of the procedure, such as possibility to contact participants in a flexible
manner to clarify open issues or to discuss elements of the offer.
3. There is clear support for the general acceptance of the negotiated procedure. Generalizing
the negotiated procedure – this was favoured as a primary means of affording greater flexibility
and reducing the administrative burden placed on buyers.
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3. 4. Other 'flexibility measures' that receive broad market support, include:
• A stronger focus on aspects of quality and sustainability as award criteria.
• A generalised use of qualification systems that are currently only provided under the
Utilities Directive
• The introduction of specific procedures for innovative procurement, such as forward
commitment contracts or long-term partnering with innovative undertakings.
• A more generalised use of the accelerated procedure.
5. There is strong support for simplifying evidence for the qualification of bidders – this for
example could mean that certificates and other evidence would only be required from the
winning bidder. It would certainly cut the cost and bureaucracy associated with prequalifying
bidders.
6. The repeal of the rigid separation of selection and award phases is something that most
respondents are in favour of. That includes the view that it would be justified in exceptional
cases to allow contracting authorities to consider supplier capability and suitability criteria in
the award phase. This is particularly true for consultancy or social services, where the
providers' professional experience and qualification really matter.
7. Most believe that contracting authorities
should be able to consider previous
experience or track record with bidders – The Top Changes Supported By Sellers:
opening up the potential for certain
1. The simplification of evidence for qualification
suppliers to be black-listed based on poor of bidders
past performance. 2. Promote innovation
3. Cross border joint procurement
4. More negotiation
8. Three quarters of buyers who responded
5. Clarify rules on substantial modifications
called for increased thresholds. However,
the commission makes it clear that its
obligations to international treaties make The Top Changes Supported By Buyers
this impossible.
1. More negotiation
2. Specific solutions for cross border joint
procurement
3. Simplify evidence for pre-qualified bidders
4. Increase thresholds
5. Promote innovation
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4. 9. There is support for clarifying the position on amendments to contracts during
implementation (including termination) and simplified procedures were amended contracts
need to be re-advertised. However the EU has not been given free rein in this area, with little
support for changes regarding contractor changes, or contract execution (e.g. execution
guarantees delivery conditions, delays, payment, etc.). The regulation of sub-contracting is
favoured by buyers, but not other groups.
10. As regards measures to improve SME access to public tenders stakeholder's opinions are
divided. Such measures include:
• Mandatory splitting of contracts into lots
• Turnover caps
• Quotas/targets for SME awards
• Mandating a second language in respect of tenders
11. There is clear support however for better recognition of certificates across borders,
although not for a European-wide prequalification system.
12. An overall majority rejected the introduction of secondary (and thereby more arbitrary)
procurement criterion. Businesses in particular were in favour of maintaining the link with the
subject matter believing that it was essential to fair competition and best value for money.
13. This reflects the division regarding the strategic use of public procurement in support of
other goals, such as the environment, or innovation. For instance, a majority of business and
contracting authorities believe that the current rules on technical specifications make sufficient
allowance for the introduction of considerations related to societal policy objectives, whereas a
very clear majority of civil society organisations consider them to be insufficient.
14. There was widespread support for more innovative procurement, such as;
• Competitive dialogue, design contest and in particular the negotiated procedure
• Greater acceptance of variants and performance requirements in technical specifications
• The possibility of reacting to unsolicited proposals and pre-commercial arrangements.
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5. 15. Further intervention by the EU to prevent against the risk of corruption, with the exception
of conflicts of interest, exclusion grounds and debarment.
16. There was support for simplification of many other aspects of public procurement,
including; Part A and B services, social services and the simplification of works contracts.
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