REWRITING THE EU PROCUREMENT PROCEDURES: WHEN TWO BECOMES ONE?

In procurement week 2016, Caroline Nicholas of United Nations Office of Legal Affairs raised an important issue that I have been deliberating on since my LLM lecture on the procurement procedures. During her presentation, Ms Nicholas queried the need to have so many ‘negotiated’ procedures in one procurement regime, ‘why not keep it simple’?

This article will attempt to present an argument on the simplification of the competitive procedure with negotiations and the competitive dialogue as special procedures found in Directive 2014/24.

Art 26 of Directive 2014/24 provides for six choices of procedures that member states may provide to their contracting authorities. The open and restricted procedures being the standard procedure which a member state shall provide to the contracting authorities without any pre-conditions attached to them. In addition to these standard procedures, the EU saw the need for flexible procedures which would allow contracting authorities to negotiate with economic operators. Underlining the introduction and amendment of these special procedures was the call for simplification, flexibility and modernisation which in my opinion was not executed to the capacity that it ought to be.

Unlike the standard procedures, the contracting authorities must satisfy the 4 conditions in art 26(4) before using the competitive procedure with negotiation (CNP) or a competitive dialogue (CD). Being the subject matter of this article, it is argued that the EU can simplify the Directives even further by either choosing one procedure over the other, the CNP preferably.

In the first instance, what is the difference between a negotiation and a dialogue? The Oxford dictionary definition of a negotiation is a ‘discussion aimed at reaching an agreement’. This is identical to the definition of a dialogue which is a ‘conversation or discussion to solve a problem’. As we can see, even the names of both procedures are identical, this is more so when we come to the provision of the procedures.

As can be seen from art 29 (1) and art 30 (1), the first part of the CNP and CD is similar to the restricted procedure as the economic operators must first send a request for participation before the invitation to negotiate or dialogue begins. The main differences in both procedures’ can be summarised in a paragraph to show the insignificance of the changes. The CNP differs from the CD because in the CD procedure, the economic operators are not required to submit an initial tender before the dialogue begins. Apart from this, the similarity in both procedures continues until the award stage as in the CNP, no more negotiation, changes or variation may occur after the final tenders have been submitted. Meanwhile, in the CD procedure the “Contracting authorities may specify prizes or payments to the participants in the dialogue” after the award procedure. In my opinion, this small variation of specifying prize and payment is part of the issues that must be discussed by both parties as part of the parties’ contract obligations before the signing of the contract, despite what procedure is used. So, the question still remains, is there actually a need for both procedures in the same procurement regime?

Let’s not forget that there are two extra specialist procedures that contracting authorities can adopt in their procurement exercise, although the innovative partnership is not used often and the court has reinstated that the negotiation procedure without prior publication must be used in strict conditions as stated in Salt International Limited v Scottish Ministers [2015] CSIH 85.

It is clear in the academic community that no changes will be made to the Public Contracts Regulations following the vote to leave the EU. However, if the procurement Directives or the UK Regulations is to be amended in the near future, it is hard to envisage the procedures being significantly different to what it is now, especially to the extent where the legislatures choose a procedure over the other. In order to maintain trade with Europe, it is argued that changes to the Regulations will be minimal.

Back to Ms Nicholas’s question, perhaps the inclusion of these two procedure were not aimed at simplify the Directives but instead based on a political policy from member states like Portugal that prefer the use of CD and the UK that seems to prefer CNP over CD procedure. As such, policy in this instance may just overrule simplicity which means that the rewriting of these procedures is just a mere fantasy.

Author: Miriam Mbah

Date: December 2016

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