Public procurement: towards a new single European framework
On 9 September, the European Commission will present the “Public Procurement Act”, a proposed regulation on public procurement.
What is the purpose of the “Public Procurement Act”?
The regulation is intended to replace the three 2014 Directives with a single legislative instrument. As a regulation, it will be binding in its entirety and directly applicable in each Member State upon its publication in the Official Journal of the European Union. It will apply above the EU procurement thresholds, without directly governing procedures falling within the scope of national law.
The proposed regulation is structured around four specific objectives:
- greater flexibility;
- environmental, social and innovation considerations;
- the “Buy European” principle;
- and digital marketplaces.
What would be the main implications for the existing legal framework?
The open procedure with negotiation would become the standard procurement procedure. Several specific procedures would also be introduced, including an “Innovation Challenge” procedure designed to develop innovative solutions, as well as specific procedures for emergency or crisis situations.
The proposal establishes the Best Price-Quality Ratio (BPQR) as the default award method, based on a “comply or explain” approach. The draft regulation provides for a minimum weighting of 30% for quality criteria in standard public contracts, increasing to 50% for labour-intensive contracts.
Contracting authorities would determine the best price-quality ratio by comparing tenders not only on the basis of price or cost, but also against quality criteria linked to the subject matter of the contract, including environmental, social, innovation and security considerations, as well as life-cycle costing.
Contracting authorities may apply European preference requirements under the “Buy European” framework, including by restricting participation, requiring a minimum level of EU origin, or granting preferences in the evaluation of tenders.
Finally, the proposal provides for the creation of a decentralised network of interconnected national e-procurement platforms. The aim is to make national systems interoperable, through digital business profiles and an EU-level “Public Procurement Data Space”.
The digital component is intended to facilitate SME access to public procurement opportunities and improve the monitoring of procurement procedures. The introduction of a unified data-management framework would also strengthen transparency and the fight against fraud.
What are the main changes introduced by the “Public Procurement Act”?
While the regulation is intended to harmonise the core EU public procurement framework, certain provisions of the French Public Procurement Code (Code de la commande publique) will likely need to be revised to ensure consistency with the new EU rules. Provisions falling within the scope of general administrative law or contract law should, however, remain largely unaffected.