Ray Collis

10 Ways To Make Public Procurement Easier

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In the wake of the publication of its Green Paper on the future of Public Procurement the EU Commission has received a flood of calls for the simplification of public buying.  Here is a summary of the most requested changes.

EU Greenpaper Implications For Sellers


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 of those who took part in the consultation process felt 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.

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 – opening up the potential for certain suppliers to be black-listed based on poor past performance.

8. Three quarters of buyers who responded called for increased thresholds.  However, the commission makes it clear that its obligations to international treaties make this impossible.

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

Click here for a paper on the EU consultation process on procurement changes.

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