[2] Although the United Kingdom left the EU on 31 January 2020, the existing regulations continued to apply until 31 December 2020 in accordance with the Brexit withdrawal agreement.
[3] But these rules, being prohibitive in character, proved insufficient to eliminate the protection afforded by the Member States to domestic enterprises by preferential procurement practices.
[4] The European Communities (EC) Council of Ministers adopted General Programmes in 1962 which envisaged the abolition of national quotas and restrictions in public procurement.
[9] Similar principles of transparency and non-discrimination were applied to the awarding of public works contracts with Directive 71/305, taking the form of the "prohibition of technical specifications that have a discriminatory effect", a requirement for "adequate advertising" and "the fixing of objective criteria for participation";[10] these, however, did not replace national tendering procedures and practices with a set of common rules.
[a] Open tendering procedures were now the norm and negotiated contracts agreed with suppliers chosen by the authority concerned were allowed only in exceptional circumstances.
[23] Following the official completion of the single market project in 1992, the attention of the European institutions shifted towards the service sector, in view of its ever-increasing macroeconomic importance.
[27] The aim was to make the legal framework more homogeneous, but the changes to the Works Directive included significant clarification and a special, mitigated régime for the award of concession contracts.
[33] The 2014 Public Procurement Directive introduced an obligation to take into account accessibility criteria for disabled persons in the specification for any works, goods or services intended for use by the general public or by staff of the contracting authority, unless there was justification for not doing so,[34] and allowed for consideration of third party labels as proof that goods and services met required social and environmental characteristics "linked to the subject-matter of the contract".
The commission's letter of formal notice was sent to Austria, Belgium, Bulgaria, Croatia, the Czech Republic, Cyprus, Estonia, Ireland, Greece, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovenia, Finland, Spain and Sweden.
[40] In the commission's Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives, published in August 2006, it was explained that certain other principles, equal treatment, non-discrimination, mutual recognition, proportionality and transparency, were derived from the Treaty principles and apply to all government procurement within the EU,[41] and should be applied to all purchasing, taking account of proportionality, regardless of the level of expenditure.
The UK case of APCOA Parking v City of Westminster (2010), to which the 2004 Directive applied, identified several ECJ rulings where the right to abandon a procurement exercise had been considered.
Other contracts, whose value is considered de minimis, are not required to be awarded under the Directives' procedures, although the basic rules of the European Union Treaties, such as non-discrimination, still apply.
[59] Nevertheless, the Commission's Interpretative Communication of 2006 confirmed that the principles of equal treatment, non-discrimination, mutual recognition, proportionality and transparency remain applicable to contracting where there is expected to be cross-border interest.
[61] The de minimis principle also provides an incentive for authorities to divide contracts into separate lots for the purpose of avoiding bothersome procedures.
Although the Directives prohibit doing this, such avoidance of procurement law is difficult to detect and enforce (as of 2007 no case relating to it had ever been before the ECJ, and it is thought to be mainly responsible for the observed low percentage of all public contracts that are published in the Official Journal.
To take advantage of this provision, businesses must demonstrate that they have paid fines or provided compensation for damages, "clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities" and taken appropriate steps relating to their organisation, policies, procedures and personnel to address the cause of previous failings.
The rules state that for projects above a certain financial threshold (about €100K) a contract notice must be published in Supplement S of the Official Journal of the European Union OJEU previously known as [OJEC S-Series].
[69] Regulated minimum timescales apply, which vary according to the procedure chosen; if "a state of urgency duly substantiated by the contracting authority" makes it impracticable to comply with the relevant time limit,[50]: Article 27(3) then an "accelerated procedure" may be followed, typically allowing a time limit of not less than 15 days "where a state of urgency duly substantiated by the contracting authority renders [the ordinary timescale] impracticable.
[77] Public contracting authorities may enter into framework agreements with one or more businesses, which prescribe the terms and conditions which would apply to any subsequent contract and make provision for selection and appointment of a contractor by reference directly to the agreed terms and conditions or by holding a competition inviting only the partners to the framework agreement to submit specific commercial proposals.
"Irregular" tenders are those which do not comply with the procurement documents, which were received late, where there is evidence of collusion or corruption, or which have been found by the contracting authority to be abnormally low.
[85] In 2015 the European Commission issued guidance advising on how public procurement rules could be used in connection with the then-current "asylum crisis", recognising that "in many Member States, the number of persons seeking asylum has increased significantly [and unforseeably], but whether this allowed Member States to conclude that "compliance with general deadlines" was impossible needed to be assessed on a case-by-case basis.
The EU seeks "to create an innovation-friendly environment that makes it easier for great ideas to be turned into products and services that will bring our economy growth and jobs"[100] and the objectives of Innovation Partnerships can be seen as: To commence the process of establishing an Innovation Partnership, a contracting authority must publish a Contract Notice in the Official Journal of the European Union (OJEU), which will 'identify the need for an innovative product, service or works that cannot be met by purchasing products, services or works already available on the market, and indicate which elements of this description define the minimum requirements to be met by all tenders'.
[101] There is a 30-day statutory minimum period from dispatch of the Contract Notice to the OJEU office to the closing date for requests from businesses wishing to participate in the process.
The selected businesses will then be invited to submit "research and innovation projects aimed at meeting the needs identified by the contracting authority that cannot be met by existing solutions".
[43] A report commissioned by the European Parliament's Committee on the Internal Market and Consumer Protection (IMCO) has recommended that Member States "should consider creating Central Purchasing Bodies (CPBs)" in order to secure "coherent and coordinated procurement".
The Teckal exception (or exemption), derived from a 1999 ECJ ruling, allows a contracting authority to award a contract directly to a separate entity provided these two requirements are both met: The Hamburg Waste exception applies to genuine inter-authority agreements through which separate entities, each with a public service duty to perform, agree to carry out that duty together, where the cooperation is governed only by consideration relating to the public interest.
[121][122] An "Ex-ante Assessment Mechanism", introduced in November 2017,[123] allows the European Commission and contracting authorities to share information about the public procurement aspects of various infrastructure projects.
Resolutions were adopted by the European Council on 21 December 1976 (referenced in Directive 77/62/EEC issued on the same date)[8]: Preamble and 22 July 1980 regarding non-member state access to community public supply contracts, which noted the scope for individual Member States to apply their own commercial policy measures but also anticipated a Commission proposal on the "co-ordination and progressive standardization" of policies.
[128] The UK government at the time was "strongly opposed" to restrictions on third country access to EU markets, fearing that "tit-for-tat protectionism" would result.
[131] Within the European Commission's operations, public procurement policy is administered by unit GROW.C.2 within the Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, located in Brussels.