2 Modernisation of EU Public Procurement Policy - Association Agreements_English

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ENI East Regional Conference Public Procurement Modernisation of EU Public Procurement Policy Association Agreements DCFTA Schuster English

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2 Modernisation of EU Public Procurement Policy - Association Agreements_English

  1. 1. Modernisation of EU Public Procurement Policy Niels Schuster DG Internal Market and Services Association Agreements DCFTA 1
  2. 2. Outline 1. Overview of the Reform 2. Classical Directive 3. Utilities Directive (Water, Energy, Transport, Postal) 4. New Concessions Directive 5. Government Procurement Agreement (GPA) 6. Association Agreements/DCFTA 2
  3. 3. Overview of the Reform 3
  4. 4. Current Rules Classical Directive (2004/18/EC) • Public works, public supplies and public services Utilities Directive (2004/17/EC) • Water, energy, transport and postal services sectors Directive on Defence procurement (2009/81/EC) Remedies Directives (89/665/EEC and 92/13/EC ) 4
  5. 5. New Rules: Preparatory works Greenpaper on modernisation (January 2011) Evaluation of existing rules Results of public consultation (June 2011)  623 replies (Business, public authorities, civil society, academics & legal experts, citizens…) Public procurement conference (June 2011) European Commission proposal (December 2011) 5
  6. 6. New Rules: Legislative process July 2013: political agreement February 2014: Adoption Directive – needs to be transposed by EU Member States 2 years for transposition 4.5 years for e-procurement (at the latest) 6
  7. 7. Objectives of the reform 1. Simplification & more flexibility 7. New rules for Concessions 3. Better access for Small & Medium Enterprises (SME) 2. Strategic use 6. Governance 4. Sound procedures 5. Compliance with GPA 7
  8. 8. Classical Directive 8
  9. 9. Simplification & more flexibility I Increased use of negotiated procedures Reduction of administrative burden Reduced time limits Simplified rules for sub-central authorities e-Procurement 9
  10. 10. Simplification & more flexibility II Light regime  New specific simplified rules for social, health, cultural and other services • higher threshold – EUR 750 000; • only requirements: ex-ante (and ex-post) publicity + non- discrimination principle; for the rest national rules Other services covered: • Hotel and restaurant services • Certain legal services • Rescue, fire fighting and prison services • Government services and services to the community 10
  11. 11. Strategic procurement I (1) Strategic policies may be considered in award decision (2) Technical specifications may refer to production process (3) Integration of disabled & disadvantaged workers (4) Innovation Partnership (5) Use of labels 11
  12. 12. Strategic procurement II Sole Award Criterion: Most economically advantageous tender (MEAT)  to be assessed on the basis of 1. price, or 2. cost, using cost-effectiveness approach (e.g. "life cycle"), or 3. the best price-quality ratio using criteria such as • Production process • Social & environmental criteria • Innovative characteristics NB: Criteria must be linked to the subject matter of the contract ! 12
  13. 13. Strategic procurement III Life-cycle costs Costs for the Contracting Authority Acquisition Use, Maintenance, End of life External Costs 13
  14. 14. SME-friendly measures Division into lots  "apply or explain" principle; Proportionate criteria for financial standing  limited to twice contract value Reduced documentary requirements  "European Single Procurement Document" 14
  15. 15. Sound procedures I • Conflicts of interests clarified • Exclusion grounds strengthened and extended • Compulsory exclusion in case of abnormally low tender • Modifications of contracts simplified 15
  16. 16. Sound procedures II Principles of procurement – Horizontal clause Appropriate measures to ensure that economic operators comply with applicable obligations in the field of environmental, social and labour law Referred to under:  Non award  Exclusion grounds  Abnormally low tenders  Subcontracting 16
  17. 17. Sound procedures III Main changes: Competitive procedures with negotiation  Replaces current negotiated procedure with publication Competitive dialogue  slightly broader scope for negotiations in the final stages Innovation partnership  Research services for the development of an innovative product by one or more providers plus supply contract Negotiations without publication  no substantial changes 17
  18. 18. Utilities Directive 18
  19. 19. Utilities Directive • Procurement for services, supplies or works • By utilities (public or private) • Utilitiy activity (water, energy, transport, postal)  Private entities subject to procurement rules if "operating on the basis of special and exclusive rights"  More flexible regime for utilities 19
  20. 20. Utilities Directive  Essentially same changes for the Utilities as for the Classic Directive Differences  Framework contracts:  max 8 years (classic 5 years)  Contract modifications  Unforseen circumstances: unlimited (classic: max 50%)  Definition of special or exclusive rights 20
  21. 21. New Concessions Directive 21
  22. 22. New Directive on Concessions  Works & service concessions ≥ € 5 million  Classical & utilities sector Not:  Drinking Water (supply or distribution)  Exclusive rights  Lotteries  Public passenger transport services 22
  23. 23. Distinction contracts – concessions Right to exploit the work or services (sometimes with payment)  transfer of operating risk  no guarantee to recoup the investments and costs.  risk can be limited by regulation, but always real exposure to possible loss, not merely nominal or negligible  demand or supply risk or both Clear delimitation from situations such as licenses, authorizations
  24. 24. Duration of Concessions The duration of concessions shall be limited General principle for concessions lasting more than 5 years:  Shall not exceed time necessary to recoup investments made for operating works/services with return on invested capital  Possibility to take into account investments at beginning and during life of concession and those necessary to achieve specific contractual objectives.
  25. 25. Concessions: few procedural rules • Publication (ex-ante & ex-post) • Transparency, equal treatment, non-discrimination • Procedural guarantees, not defined procedures • Exclusion (=), selection criteria (light) • Objective award criteria • Minimum time-limits
  26. 26. Government Procurement Agreement (GPA) 26
  27. 27. Government Procurement Agreement Structure • Text: General principles • Annexes: coverage (schedules by parties) Principle of non-discrimination (subject to coverage)  National treatment  Most favoured nation clause  Treatment of other Parties’ goods, services and suppliers that is “no less favorable than” that accorded to domestic/other parties' products, services and suppliers
  28. 28. Procurement rules in the text • Tendering procedures • Publication/invitations to participate • Qualification of suppliers • Time limits • Necessary Documentation • Award criteria
  29. 29. Revised GPA Revised GPA: more user friendly, closer to EU Directives • Easier access to procurement - Better use of electronic means • Improved rights of developing countries to accede • Rules to avoid conflicts of interest and prevent corrupt practices • Introduces more flexibility for entities • Use technical specifications aimed at protection of environment • Technical specification relate to production process and methods • Award: lowest price or most advantageous tender
  30. 30. Revised GPA : Future Seeking accession: China, New Zealand, Albania, Georgia, Jordan, the Kyrgyz Republic, Moldova, Montenegro, Oman, Panama and Ukraine WTO commitments to accede: the Former Yugoslav Republic of Macedonia , Mongolia, the Russian Federation and Saudi Arabia Revised GPA : 2/3 Parties rule for entry into force
  31. 31. Association Agreements DCFTA 31
  32. 32. Main points (1) Mutual access to public procurement markets (2) Gradual approximation of legislation with EU To be accompanied by:  Enhanced institutional framework  Roadmap/Strategy  Cooperation and technical assistance 32
  33. 33. Gradual Approximation (Classical Directive) Basic elements Definitions, thressholds, principles, procedures, exclusion grounds, selection and award criteria, publication, information … Other mandatory elements (Works) Concessions, design contests… Non-mandatrory (but recommended) Competitive Dialogue, FWA, Dynamic Puchasing Systems… Out of scope Reporting, statistical information… 33
  34. 34. Indicative Schedule Phase Approximation Market access 1 • Institutional framework • Basic standards • Roadmap Central government authorities (supplies) 2 • Basic elements Classical & Remedies State, regional & local authorities and public law bodies (supplies) 3 • Basic elements Utilities & Remedies All contracting entities (supplies) 4 • Other elements Classical All contracting authorities (services & works contracts and concessions) 5 • Other elements Utilities All contracting entities (services & works) 34
  35. 35. More information • EU Public Procurement Rules • http://ec.europa.eu/internal_market/publicprocurement/index_en.htm • EU-Georgia Association Agreement • http://eeas.europa.eu/georgia/assoagreement/assoagreement-2013_en.htm • EU-Moldova Association Agreement • http://eeas.europa.eu/moldova/assoagreement/assoagreement-2013_en.htm • EU-Ukraine Association Agreement • http://eeas.europa.eu/top_stories/2012/140912_ukraine_en.htm • 35

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