Saturday, 20 December 2008

Fast-tracking EU procurement 2009 and 2010

Accelerated procurement procedures are important for contracting authorities and for businesses desperate to secure contracts during the economic recession.

The European Commission is going to allow speedy procurement procedures during 2009 and 2010 for major public projects in order to combat the economic recession. The Commission made public its intent to shorten the overall time limit from 87 days to 30 days in a press release issued on Friday:

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/2040&format=HTML&aged=0&language=EN&guiLanguage=en

Here is the text of the Commission’s press release:


In its conclusions of 12 December the European Council invited the Commission to adopt a number of measures in response to the financial crisis. One of these measures concerns the use of accelerated procedures in public procurement.

The public procurement Directive 2004/18/EC allows recourse to accelerated procedures where justified on the grounds of urgency. The Commission recognizes that the exceptional nature of the current economic situation can justify the use of the accelerated procedure reducing considerably the overall time limit of the procedure from 87 days to 30 days. Such presumption of urgency should apply throughout 2009 and 2010 for all major public projects.

Background

The Commission considers that speeding up procurement procedures can significantly support Member State action to foster their economies through rapid execution of major public investment projects. Such action should be based on the existing internal market acquis.

The time limits set out by the public procurement Directive 2004/18/EC include a certain time frame for potential bidders to decide whether to participate and to draw up their tenders. Furthermore the Remedies Directive 2007/66/EC provides for a standstill period between the award decision and the conclusion of the contract to allow for review of the award decisions. In the restricted procedure, bidders first have to request to participate. Subsequently, selected candidates are invited to submit their tenders.

The regular regime for the restricted procedure, leading to the above time limit of 87 days, provides for minimum 37 days from the date on which the contract notice is sent for lodging requests to participate as well as for another minimum 40 days for the selected candidates to submit their tenders. After the award decision, the abovementioned "standstill period" of 10 days applies before the contract can be concluded.

Under the accelerated restricted procedure, which the Commission considers justified in the light of the financial crisis, contracting authorities can shorten the time limit for requests to participate from 37 to 10 days if the contract notice was sent by electronic means and the subsequent time limit for the selected candidates to submit their tenders from 40 to 10 days. With the remaining standstill period of 10 days, time limits for the restricted procedure can therefore be ultimately shortened to 30 days all in all.

Further details about public procurement legislation can be found at:

http://ec.europa.eu/internal_market/publicprocurement/index_en.htm


Source:

Commission press release: Public procurement: Commission recognises need for accelerated procurement procedure (19 December 2008, IP/08/2040)

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Procurement time limits


The main provision on time limits of the Procurement Directive 2004/18/EC is Article 38. Paragraph 8 sets out the grounds for a contracting authority to shorten the time limits as well as the minimum delays to apply under any circumstances:


S e c t i o n 2
Time limits

Article 38
Time limits for receipt of requests to participate and for receipt of tenders

1. When fixing the time limits for the receipt of tenders and requests to participate, contracting authorities shall take account in particular of the complexity of the contract and the time required for drawing up tenders, without prejudice to the minimum time limits set by this Article.

2. In the case of open procedures, the minimum time limit for the receipt of tenders shall be 52 days from the date on which the contract notice was sent.

3. In the case of restricted procedures, negotiated procedures with publication of a contract notice referred to in Article 30 and the competitive dialogue:

(a) the minimum time limit for receipt of requests to participate shall be 37 days from the date on which the contract notice is sent;

(b) in the case of restricted procedures, the minimum time limit for the receipt of tenders shall be 40 days from the date on which the invitation is sent.

4. When contracting authorities have published a prior information notice, the minimum time limit for the receipt of tenders under paragraphs 2 and 3(b) may, as a general rule, be shortened to 36 days, but under no circumstances to less than 22 days.

The time limit shall run from the date on which the contract notice was sent in open procedures, and from the date on which the invitation to tender was sent in restricted procedures.

The shortened time limits referred to in the first subparagraph shall be permitted, provided that the prior information notice has included all the information required for the contract notice in Annex VII A, insofar as that information is available at the time the notice is published and that the prior information notice was sent for publication between 52 days and 12 months before the date on which the contract notice was sent.

5. Where notices are drawn up and transmitted by electronic means in accordance with the format and procedures for transmission indicated in point 3 of Annex VIII, the time limits for the receipt of tenders referred to in paragraphs 2 and 4 in open procedures, and the time limit for the receipt of the requests to participate referred to in paragraph 3(a), in restricted and negotiated procedures and the competitive dialogue, may be shortened by seven days.

6. The time limits for receipt of tenders referred to in paragraphs 2 and 3(b) may be reduced by five days where the contracting authority offers unrestricted and full direct access by electronic means to the contract documents and any supplementary documents from the date of publication of the notice in accordance with Annex VIII, specifying in the text of the notice the internet address at which this documentation is accessible.

This reduction may be added to that referred to in paragraph 5.

7. If, for whatever reason, the specifications and the supporting documents or additional information, although requested in good time, are not supplied within the time limits set in Articles 39 and 40, or where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the contract documents, the time limits for the receipt of tenders shall be extended so that all economic operators concerned may be aware of all the information needed to produce tenders.

8. In the case of restricted procedures and negotiated procedures with publication of a contract notice referred to in Article 30, where urgency renders impracticable the time limits laid down in this Article, contracting authorities may fix:

(a) a time limit for the receipt of requests to participate which may not be less than 15 days from the date on which the contract notice was sent, or less than 10 days if the notice was sent by electronic means, in accordance with the format and procedure for sending notices indicated in point 3 of Annex VIII;

(b) and, in the case of restricted procedures, a time limit for the receipt of tenders which shall be not less than 10 days from the date of the invitation to tender.



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Standstill period

The Remedies Directive 2007/66/EC referred to by the Commission is officially Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (published exactly a year ago, OJ 20.12.2007 L 335/31).

The amended Directive 89/665/EEC is officially Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts.



The Remedies Directive came into force on the 20th day after publication, but the member states still have a year to transpose its provisions (by 20 December 2009).

The Remedies Directive 2007/66/EC inserted a new Article 2a into the existing Directive:


‘Article 2a
Standstill period

1. The Member States shall ensure that the persons referred to in Article 1(3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article 2c.

2. A contract may not be concluded following the decision to award a contract falling within the scope of Directive 2004/18/EC before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure.

Candidates shall be deemed to be concerned if the contracting authority has not made available information about the rejection of their application before the notification of the contract award decision to the tenderers concerned.

The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:

— a summary of the relevant reasons as set out in Article 41(2) of Directive 2004/18/EC, subject to the provisions of Article 41(3) of that Directive, and,

— a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing this paragraph.


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Guidance

The Commission’s press release serves as an advance notice for contracting authorities planning public projects for 2009 and 2010 as well as for businesses aiming to secure government contracts during these desperate times.

The minimum time limits of 10 plus 10 days in Article 38(8) of the Procurement Directive have to be applied by the contracting authorities, as well as the standstill period of 10 days provided for in the Remedies Directive 2007/66/EC, at least after 20 December 2009.



The concrete decisions are up to the contracting authorities in the EU member states and the Commission’s press release mentions a “presumption of urgency”, which indicates a benevolent attitude with regard to accelerated procurement procedures.

Still, I presume that there is a need for more exact guidance among contracting authorities and economic operators both from the Commission and from the relevant national governments. Hopefully added information is in the pipeline.



Ralf Grahn