EU Public Procurement Andrea Sundstrand Associate Professor Rules

EU Public Procurement Andrea Sundstrand Associate Professor

Rules on public procurement ● EU-law – EU treaty on the Functioning of the European Union. – EU Directives and Regulations. – Other international agreements (GPA-agreement etc. ). ● National laws – National law on public procurement (LOU). – Related national laws and regulations (contract laws, law on damages etc. ). ● Case-law – ECJ. – National Administrative Courts. – National Civil Courts. ● Guidances/decisions from the EU Commission. ● Decisions and information from the national competition authorities or national procurement authorities.

The purpose of the EU regime The purpose of coordinating the procedures for the award of public contracts at the EU level is precisely to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State. Judgments of 3 October 2000, University of Cambridge, C‑ 380/98, EU: C: 2000: 529, paragraph 16; of 18 October 2001, SIAC Construction, C‑ 19/00, EU: C: 2001: 553, paragraph 32; and of 24 January 2008, Lianakis and Others, C‑ 532/06, EU: C: 2008: 40, paragraph 39).

The EU general principles ● Principle of equal treatment – All suppliers must be treated equally. ● Principle of non-discrimination – Prohibits all discrimination based on nationality. ● Principle of openness – Predictability and transparency. ● Principle of proportionality – Requirements must have a natural relation to the supplies, services or works which are being procured. ● Principle of mutual recognition – Documents issued in one Member State must be accepted in another Member State.

EU Directives 4 Procedural Directives 2014/24/EU classical 2014/25/EU utilities 2014/23/EU concessions 2009/81/EU defence & security 3 Remedies Directives 89/665/EC classical 92/13/EC utilities 2007/66/EU amending the other 2

The Swedish legislation ● The Public Procurement Law. ● The Law on Utilities Procurement. ● The Law on Concessions. ● The Law on Security and Defence Procurement. ● 3 Laws on user choice – check systems.

What is Public Procurement? Public Procurement – ”. . . the process of acquisition, usually by means of a contractual arrangement after public competition, of goods services, works and other supplies by the public service. ” Purchase, leasing, rental or hire-purchase of supplies, civil engineering projects or services. Pure sales not gifts -- donations are not included.

The Classical sector Contracting authorities ● state, local or other authorities, decision-making bodies in local authorities and county councils ● the undertakings, associations, societies, foundations which have been established to meet needs in the general interest provided that these needs are not of an industrial or commercial nature and - get their main source of income from another contracting authority, - their procurement is subject to public supervision or - more than half of the members of the board have been appointed by the public.

The Utilities sectors ● Contracting authorities and state owned companies carrying out an activity in the utilities sectors. ● Private companies carrying out an activity in the utilities sectors with a special or exclusive right, authorised by a competent authority in a Member State. ● The utilities sectors are the – water sector, – energy sector, – passenger transport sector and – postal sector.

The threshold values ● Goods and services classical sector government 221. 000 euro 144. 000 euro ● Utilities and defence 418. 000 euro ● Works and concessions all sectors 5, 548 mil. euro

Procurement above thresholds ● Open procedure ● Selective procedure ● Negotiated procedure, with or without a notice ● Competitive dialogue ● Design contests ● Innovation Partnerships ● Works – and service concessions

Procurement below the thresholds Member States are free to develop their own systems, since these procurements are not covered by EU law. Sweden has rather strict provisions, while for example Denmark and the UK have far less legislation.

Criteria for selection Selection criteria may relate to: (a) suitability to pursue the professional activity; (b) economic and financial standing; (c) technical and professional ability.

Criteria for award Contracting authorities shall base the award of public contracts on the most economically advantageous tender. The most economically advantageous tender from the point of view of the contracting authority shall be identified on the basis of the price or cost, using a cost-effectiveness approach, such as life-cycle costing, and may include the best price-quality ratio, which shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects, linked to the subject-matter of the public contract in question.

Award criteria – ● must be connected to the subject matter of the contract, ● not give the contracting authority too much free choice, ● be expressly mentioned in the notice or in the contracting documents, ● be measurable, ● be in accordance with all the EU basic principles. C-513/99, Concordia, C-331/04 ATI EAC m. fl.

Procurement schedule PLANNING What needs? Contract documents. CONTRACT THE PROCUREMENT PROCESS Receiving tenders. Opening, exclusion. Notice Evaluation of the bids re: qualification criteria. Evaluation if and how bids fullfill award criteria. Negotiations? 10 -day standstill period Follow up Signing of contract Award decision

A public contract… may be signed …. ● 10 days after the award decision, ● if the decision explains who won the contract and why, and ● if the stand-still period is stated. ● It is called a ”stand-still”-procedure, which can be used when appealed to a court = prolonged stand-still! Judgment of 28 October 1999, Alcatel Austria and Others, C‑ 81/98, EU: C: 1999: 534, paragraph 33.

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