Rewriting the Public Procurement Playbook

The 2014 EU public procurement reform has very much changed the legal framework for public sector purchasers. Now the rules have been transposed in a number of Member States and the laggards are expected to fall in line in the next few months.

Among the number of significant novelties impacting or about to impact the procurement profession across Europe two will be retained here: the widening of the scope for the use of flexible procedures, and the clarification of the legal framework for sustainable (and innovative) public procurement.

The widening of the scope for flexible procedures

The 2014 public sector directives both offers contracting authority an orgy of procedures to choose among and waters down the requirements for access to procedures involving negotiations.

Departing from the EU Commission’s preferred toolbox approach, Article 26 of Directive 2014/24/EU directs the Member States to offer their contracting authorities the full procedural panoply to choose among. Contracting authorities are thus for instance allowed to use competitive dialogue and competitive procedures with negotiations when including design or innovative solutions in their calls for tenders.

Moreover a special framework has been designed for the procurement of innovation – the innovation partnership. Negotiations through the development of complex procedures and procedural frameworks obviously requires from procurement officials quite different professional qualities than managing semi-automatic open or restricted procedures (which themselves will probably more and more be conducted electronically in the future).

The clarification of the legal framework for sustainable (and innovative) public procurement.

Contracting authorities have been enlisted in pushing Horizon 2020 societal goals, including sustainability and innovation. Directive 2014/24/EU has much contributed to clarify how contracting authorities may include social and environmental concerns in their purchasing decisions.

To some extent, by linking the “link to the subject-matter” to the life cycle of the service or good purchased and by allowing direct reference to labels, the new Directive makes public purchasers life easier. However, assessing the materiality of the “link” on the specific circumstances of each procurement and even more developing and using life-cycle costing methodologies will require high professional qualities from procurers.

These professional qualities will have to range from the technical (e.g. how do you actually measure externalities? how do you seriously check compliance with labour standards in supply chains spanning half of the World?), to the legal (e.g., are all the requirements of the chosen label linked to the subject matter of the specific contract? is the LCC methodology chosen, adapted or adopted really and demonstrably based upon objectively verifiable and non-discriminatory criteria?)

As already indicated, the same or even higher standards of professionalization are required for the management of innovation partnerships. Conclusion: professionalisation, professionalisation, and more professionalisation.

The new EU legal framework for public procurement very much empowers contracting authorities and the procurement professionals. It also places high demands on them in terms of technical, managerial and legal skills. And skills need being nurtured!

Author: Prof. Roberto Caranta

Date: December 2016

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