The internal market rules of the European Community (European Union) require equal and objective treatment of potential bidders and actual tenderers in public procurement.
The treaty principles are set out in a more concrete manner in secondary legislation, here the Procurement Directive 2004/18/EC. We take a look at a basic Directive provision on economic operators, i.e. firms and individuals (potentially) participating in public contracts procedures.
The European Commission has shown interest in the opportunities for small and medium-sized enterprises (SMEs) to compete successfully in tender procedures. We add a few references for interested readers.
***
Article 4
The EC (EU) Classic Directive or Procurement Directive 2004/18/EC starts Title II Rules on public contracts, with Chapter I General provisions. Article 4 Economic operators concerns some aspects of equal treatment of tenderers from different member states:
TITLE II
RULES ON PUBLIC CONTRACTS
CHAPTER I
General provisions
Article 4
Economic operators
1. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.
However, in the case of public service and public works contracts as well as public supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.
2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.
***
Economic operator
We start by returning to the definition of economic operator.
Economic operator is a convenient term to cover the concepts of contractor, supplier and service provider, as described in Article 1(8):
8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Latest consolidation
The latest consolidated version of the Procurement Directive 2004/18/EC, found on Eur-Lex under legislation in force, is of 15 September 2008.
***
Equal treatment, non-discrimination and transparency
We are reminded of the general rules concerning equal treatment of companies and individuals vying for business contracts and of transparent procedures, in Article 2 of the Procurement Directive 2004/18/EC:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Mutual recognition
Article 4(1) evokes the principle of mutual recognition. To require domestic qualifications in the awarding member states tends to favour domestic bidders at the expense of firms or individuals from other member states and consequently against the internal market principles of free movement.
The Community rules on mutual recognition of diplomas and professional qualifications apply.
***
Professional qualifications
Legal persons can be required to show that they have suitably qualified individuals, who can fulfil the contract.
The Community rules on mutual recognition of diplomas and professional qualifications apply.
Under Freedom of establishment, the Commission’s Guide to the Community rules on public works contracts (based on the old Directive 93/37/EEC) explains some of the treaty provisions on professional qualifications (page 2 to 3):
However, the taking-up and pursuit of certain self-employed activities may be conditional on complying with certain provisions laid down by law, regulation or administrative action justified by the general good, such as rules relating to organization, qualifications, professional ethics, supervision and liability. Such provisions may stipulate in particular that pursuit of a particular activity is restricted to holders of a diploma, certificate or other evidence of formal qualifications, to persons belonging to a professional body or to persons subject to particular rules or supervision, as the case may be.
Where the taking-up or pursuit of a specific activity is subject to such conditions in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with them. It is for this reason that Article 57 provides that the Council is to issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications or, as the case may be, for the coordination of national provisions concerning the taking-up and pursuit of activities as self-employed persons.
It follows, however, from the Court’ s case-law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.”
***
Joint bids
Article 4(2) allows companies to leave joint bids as groups. Only if necessary, can a group be demanded to assume a specific legal form.
The Commission’s Guide to the Community rules on public works contracts (based on the old Directive 93/37/EEC) explains how a group of companies can submit a tender without assuming a particular legal form. A successful group may be required to assume a certain legal form, indicated in advance (page 54):
6.4.3 Groups of contractors
Groups of contractors must be allowed to submit a tender or to negotiate without having to assume a particular legal form. However, a group may be required to assume a particular legal form if it is awarded the contract. In such a case, the contracting authority must have indicated beforehand, in the contract notice, the legal form required.
As was pointed out in connection with the definition of the contractor (point 1.2), the Court has stated that a company which has neither the intention nor the resources to carry out the works itself may participate in a procedure for the award of a public works contract. However, in order to prove that it has the required financial and economic standing and technical capability, it must establish that it actually has available to it the resources of the contractors by whom it intends to have the contract carried out and that those resources meet the requirements specified by the contracting authority.
***
SMEs: “Small Business Act” for Europe
Groups of contractors are important, because they offer small businesses opportunities to participate in joint bids for public contracts too large for them to handle on their own.
One of the ten principles of the “Small Business Act” for Europe is Principle V Adapt public policy tools to SME needs: facilitate SMEs’ participation in public procurement and better use State Aid possibilities for SMEs.
Source: Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: “Think Small First” A “Small Business Act” for Europe (Brussels, 25.6.2008 COM(2008) 394 final).
The Member States committed to implement the SBA by adopting the Competitiveness Council Conclusions of 1 December 2008.
The SBA Action Plan, annexed to the Competitiveness Council Conclusions, focuses on short and medium-term measures to improve SMEs’ access to finance, to improve the regulatory environment and to enhance market access for SMEs. These priority measures are an integral part of the Commission’s response to alleviate the negative impact of economic and financial crisis on enterprises, especially SMEs.
The European Council on 11-12 December 2008 supported the full implementation of the Action Plan for the SBA adopted by the Competitiveness Council on 1 December 2008.
***
Code of Best Practice(s)
The European SBA refers to the Code of Best Practice. Readers interested in improving the opportunities for small and medium-sized enterprises in public procurement are invited to look at the suggestions made by the Commission Staff Working Document: European Code of Best Practices Facilitating Access by SMEs to Public Procurement Contracts (Brussels, 25.6.2008 SEC(2008) 2193).
You can look at the proposals directly or read the earlier blog posts with summaries.
Ralf Grahn
Showing posts with label Classic Directive. Show all posts
Showing posts with label Classic Directive. Show all posts
Sunday, 28 December 2008
Saturday, 27 December 2008
EU procurement: Exclusive rights and non-discrimination
When a contracting authority (a body governed by public law) grants a special or exclusive right to carry out a public service activity to another entity, which is not a contracting authority, the latter must comply with the principle of non-discrimination on the basis of nationality.
The EC (EU) Procurement Directive 2004/18/EC tries to ensure this through Article 3. The act by which the special or exclusive right is granted shall provide that the entity complies with the principle of non-discrimination on the basis of nationality, when it awards contracts to third parties as part of its activities:
Article 3
Granting of special or exclusive rights: non-discrimination clause
Where a contracting authority grants special or exclusive rights to carry out a public service activity to an entity other than such a contracting authority, the act by which that right is granted shall provide that, in respect of the supply contracts which it awards to third parties as part of its activities, the entity concerned must comply with the principle of non-discrimination on the basis of nationality.
***
ECJ Case C-275/98.
In the Case C-275/98 Unitron Scandinavia A/S and 3-S A/S, Danske Svineproducenters Serviceselskab v Ministeriet for Fødevarer, Landbrug og Fiskeri, the ECJ’s preliminary ruling based on the old Directive 93/36 neatly laid out two principles. The tendering procedures need not apply, but the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively (and it implies an obligation of transparency):
30 A systematic interpretation of that provision therefore shows that the contracting authority is not required to demand that the body in question comply with the tendering procedures laid down by Directive 93/36.
31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.
Ralf Grahn
The EC (EU) Procurement Directive 2004/18/EC tries to ensure this through Article 3. The act by which the special or exclusive right is granted shall provide that the entity complies with the principle of non-discrimination on the basis of nationality, when it awards contracts to third parties as part of its activities:
Article 3
Granting of special or exclusive rights: non-discrimination clause
Where a contracting authority grants special or exclusive rights to carry out a public service activity to an entity other than such a contracting authority, the act by which that right is granted shall provide that, in respect of the supply contracts which it awards to third parties as part of its activities, the entity concerned must comply with the principle of non-discrimination on the basis of nationality.
***
ECJ Case C-275/98.
In the Case C-275/98 Unitron Scandinavia A/S and 3-S A/S, Danske Svineproducenters Serviceselskab v Ministeriet for Fødevarer, Landbrug og Fiskeri, the ECJ’s preliminary ruling based on the old Directive 93/36 neatly laid out two principles. The tendering procedures need not apply, but the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively (and it implies an obligation of transparency):
30 A systematic interpretation of that provision therefore shows that the contracting authority is not required to demand that the body in question comply with the tendering procedures laid down by Directive 93/36.
31 It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.
Ralf Grahn
Friday, 26 December 2008
EU procurement: Equal treatment, non-discrimination and transparency
Cavalier or corrupt contracting authorities are a menace to the public purse, taxpayer value and competitive businesses.
Is the European Community (European Union) concerned with public procurement only above certain threshold levels?
For those interested in good public governance and value for money, it is a relief to know that some common principles apply to all public contracts within the European Economic Area (EEA).
***
Article 2 principles
Article 2 of the Procurement Directive 2004/18/EC reminds us of three principles, which apply to public procurement, namely equal treatment, non-discrimination and transparency:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Recital 2
Recital 2 of the Procurement Directive 2004/18/EC, also known as the Classic Directive, explains that the provisions of the Treaty establishing the European Community (TEC) apply to all public procurement contracts. However, above certain threshold levels more detailed harmonised EC (EU) secondary legislation kicks in:
(2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.
***
Treaty provisions
Here we look briefly at some of the main treaty provisions, which apply to public procurement contracts. (More detail can be found, in the light of the Lisbon Treaty, in previous blog posts on individual Articles.)
***
Article 2 TEC Common market
Article 2 of the Treaty establishing the European Community (TEC) states:
The Community shall have as its task, by establishing a common market…
The common market is the original concept enshrined in the Treaty of Rome (EEC Treaty). Since the Single European Act (SEA) it has gradually been replaced by the term internal market in the treaty and secondary legislation. (The Commission seems to favour the single market.) The Treaty of Lisbon would replace the common market by the internal market throughout.
***
Article 3 TEC Community activities
Article 3 TEC sets out Community activities based on the objectives (tasks) mentioned in the previous Article. At least the following are relevant to the common market (internal market) and consequently to public procurement:
Article 3 TEC (parts)
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
-----
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
-----
***
Four freedoms
The four market freedoms – free movement of goods, persons, services and capital – meet the material scope of the Procurement Directive, which concerns the execution of works (buildings and civil engineering works), the supply of products (goods) and the provision of services.
The ECJ has given the fundamental treaty principles concrete meaning based on the specific treaty provisions.
***
Free movement of goods
TEC Articles 23 to 31 contain the main principles regarding the free movement of goods.
Article 28 TEC prohibits all restrictions on imports an all measures having equivalent effect between member states.
***
Free movement of services
The free movement of services is set out in Articles 49 to 55 TEC.
Article 49 TEC prohibits restrictions on the freedom to provide services in another member state.
***
Right of establishment
Restrictions on the freedom of establishment of nationals of a member state in another member state are prohibited according to Article 43 TEC (to Article 48 TEC).
***
Free movement for workers
Articles 39 to 42 TEC aim at securing the free movement for workers within the Community.
***
Non-discrimination
The four freedoms can be seen as expressions of a principle of equal treatment of all economic actors and persons within the internal market.
Equality comprises both (active) equal treatment and (passive) absence of discrimination.
Normally, acts in breach of the specific market freedoms also constitute discrimination on grounds of nationality, but in any case the fundamental prohibition against discrimination on grounds of nationality stands as a reminder to contracting authorities and as an anchor for economic operators from other member states:
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules
designed to prohibit such discrimination.
***
Interpretative Communication
If a public contract falls within the scope of the Procurement Directive 2004/18/EC, the detailed rules apply to the award procedure above the thresholds.
The Commission has offered guidance on public procurement procedures in cases where the specific rules of the Directives do not apply:
Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 1.8.2006 C 179/2).
The Interpretative Communication refers to the EU-wide competitive tendering procedures set up in the Procurement Directive 2004/18/EC and the Utilities Directive 2004/17/EC, but refers to two kinds of contracts that are not or only partially covered by the Directives:
— Contracts below the thresholds for application of the Public Procurement Directives;
— Contracts for services listed in Annex II B to Directive 2004/18/EC and in Annex XVII B to Directive 2004/17/EC that exceed the thresholds for application of these Directives.
(Concessions are a third such category, mentioned in footnote 3 on the first page.)
***
Obligation of transparency
After summarizing the EC Treaty rules and the basic standards for the award of contracts, the Communication reminds the contracting entities (authorities) of the obligation to evaluate if an intended contract might potentially be of interest to economic operators located in other member states.
The Commission proceeds to deal with adequate advertising:
According to the ECJ, the principles of equal treatment and of non-discrimination imply an obligation of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the market to be opened up to competition.
The obligation of transparency requires that an undertaking located in another Member State has access to appropriate information regarding the contract before it is awarded, so that, if it so wishes, it would be in a position to express its interest in obtaining that contract.
Ralf Grahn
Is the European Community (European Union) concerned with public procurement only above certain threshold levels?
For those interested in good public governance and value for money, it is a relief to know that some common principles apply to all public contracts within the European Economic Area (EEA).
***
Article 2 principles
Article 2 of the Procurement Directive 2004/18/EC reminds us of three principles, which apply to public procurement, namely equal treatment, non-discrimination and transparency:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Recital 2
Recital 2 of the Procurement Directive 2004/18/EC, also known as the Classic Directive, explains that the provisions of the Treaty establishing the European Community (TEC) apply to all public procurement contracts. However, above certain threshold levels more detailed harmonised EC (EU) secondary legislation kicks in:
(2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.
***
Treaty provisions
Here we look briefly at some of the main treaty provisions, which apply to public procurement contracts. (More detail can be found, in the light of the Lisbon Treaty, in previous blog posts on individual Articles.)
***
Article 2 TEC Common market
Article 2 of the Treaty establishing the European Community (TEC) states:
The Community shall have as its task, by establishing a common market…
The common market is the original concept enshrined in the Treaty of Rome (EEC Treaty). Since the Single European Act (SEA) it has gradually been replaced by the term internal market in the treaty and secondary legislation. (The Commission seems to favour the single market.) The Treaty of Lisbon would replace the common market by the internal market throughout.
***
Article 3 TEC Community activities
Article 3 TEC sets out Community activities based on the objectives (tasks) mentioned in the previous Article. At least the following are relevant to the common market (internal market) and consequently to public procurement:
Article 3 TEC (parts)
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
-----
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
-----
***
Four freedoms
The four market freedoms – free movement of goods, persons, services and capital – meet the material scope of the Procurement Directive, which concerns the execution of works (buildings and civil engineering works), the supply of products (goods) and the provision of services.
The ECJ has given the fundamental treaty principles concrete meaning based on the specific treaty provisions.
***
Free movement of goods
TEC Articles 23 to 31 contain the main principles regarding the free movement of goods.
Article 28 TEC prohibits all restrictions on imports an all measures having equivalent effect between member states.
***
Free movement of services
The free movement of services is set out in Articles 49 to 55 TEC.
Article 49 TEC prohibits restrictions on the freedom to provide services in another member state.
***
Right of establishment
Restrictions on the freedom of establishment of nationals of a member state in another member state are prohibited according to Article 43 TEC (to Article 48 TEC).
***
Free movement for workers
Articles 39 to 42 TEC aim at securing the free movement for workers within the Community.
***
Non-discrimination
The four freedoms can be seen as expressions of a principle of equal treatment of all economic actors and persons within the internal market.
Equality comprises both (active) equal treatment and (passive) absence of discrimination.
Normally, acts in breach of the specific market freedoms also constitute discrimination on grounds of nationality, but in any case the fundamental prohibition against discrimination on grounds of nationality stands as a reminder to contracting authorities and as an anchor for economic operators from other member states:
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules
designed to prohibit such discrimination.
***
Interpretative Communication
If a public contract falls within the scope of the Procurement Directive 2004/18/EC, the detailed rules apply to the award procedure above the thresholds.
The Commission has offered guidance on public procurement procedures in cases where the specific rules of the Directives do not apply:
Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 1.8.2006 C 179/2).
The Interpretative Communication refers to the EU-wide competitive tendering procedures set up in the Procurement Directive 2004/18/EC and the Utilities Directive 2004/17/EC, but refers to two kinds of contracts that are not or only partially covered by the Directives:
— Contracts below the thresholds for application of the Public Procurement Directives;
— Contracts for services listed in Annex II B to Directive 2004/18/EC and in Annex XVII B to Directive 2004/17/EC that exceed the thresholds for application of these Directives.
(Concessions are a third such category, mentioned in footnote 3 on the first page.)
***
Obligation of transparency
After summarizing the EC Treaty rules and the basic standards for the award of contracts, the Communication reminds the contracting entities (authorities) of the obligation to evaluate if an intended contract might potentially be of interest to economic operators located in other member states.
The Commission proceeds to deal with adequate advertising:
According to the ECJ, the principles of equal treatment and of non-discrimination imply an obligation of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the market to be opened up to competition.
The obligation of transparency requires that an undertaking located in another Member State has access to appropriate information regarding the contract before it is awarded, so that, if it so wishes, it would be in a position to express its interest in obtaining that contract.
Ralf Grahn
Thursday, 25 December 2008
EU procurement: Telecommunications networks and services
The EC (EU) Procurement Directive 2004/18/EC defines public telecommunications networks, network termination points, public telecommunications services and telecommunications services in Article 1.15:
15. For the purposes of Article 13, Article 57(a) and Article 68(b), the following phrases shall have the following meanings:
(a) ‘public telecommunications network’ means the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;
(b) a ‘network termination point’ means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to, and efficient communication through, that public network;
(c) ‘public telecommunications services’ means telecommunications services the provision of which the Member States have specifically assigned, in particular, to one or more telecommunications entities;
(d) ‘telecommunications services’ means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television.
***
Recital 21
Recital 21 of the Procurement Directive or Classic Directive makes an effort to explain and to delimit the exclusion of public telecommunications contracts from the scope of the Directive:
(21) In view of the situation of effective market competition in the telecommunications sector following the implementation of the Community rules aimed at liberalising that sector, public contracts in that area should be excluded from the scope of this Directive insofar as they are intended primarily to allow the contracting authorities to exercise certain activities in the telecommunications sector. Those activities are defined in accordance with the definitions used in Articles 1, 2 and 8 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector, such that this Directive does not apply to contracts which have been excluded from the scope of Directive 93/38/EEC pursuant to Article 8 thereof.
***
Excluded contracts
Under Section 3 Excluded contracts, Article 13 of the Procurement Directive lays down the following rules:
Article 13
Specific exclusions in the field of telecommunications
This Directive shall not apply to public contracts for the principal purpose of permitting the contracting authorities to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services.
***
Article 57(a) and 68(b) contain further exclusions.
***
Utilities Directive 2004/17/EC
The Utilities Directive, officially the Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 30.4.2004 L 134/1; later amendments) excluded purchases by telecommunications entities from the new Utilities Directive, as described in Recital 5:
(5) The scope of Directive 98/38/EEC covers, at present, certain contracts awarded by contracting entities operating in the telecommunications sector. A legislative framework, as mentioned in the Fourth report on the implementation of the telecommunications regulations of 25 November 1998, has been adopted to open this sector. One of its consequences has been the introduction of effective competition, both de jure and de facto, in this sector. For information purposes, and in the light of this situation, the Commission has published a list of telecommunications services which may already be excluded from the scope of that Directive by virtue of Article 8 thereof. Further progress has been confirmed in the Seventh report on the implementation of telecommunications regulations of 26 November 2001. It is therefore no longer necessary to regulate purchases by entities operating in this sector.
***
The exclusion of public telecommunications contracts from the scope of the new Utilities Directive would have brought them under the new general Procurement Directive.
The contracts by contracting authorities would have fallen under the new Procurement Directive, but Article 13 specifically excludes this.
***
Background: Effective competition
A Communication from the Commission evaluated the development of effective competition within the telecommunications sector:
Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC List of services regarded as excluded from the scope of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors pursuant to Article 8 thereof (OJ 30.4.2004 C 115/7)
Directive 93/38/EEC is applicable in particular to contracts awarded by telecommunications operators; however its constraints are no longer justified where there is effective competition after the liberalisation of this sector. For this purpose Article 8 of the Directive lays down that where there is effective competition in the telecommunications services market, procurements for the provision of these services may be exempted from the scope of the Directive. In its Communication on public procurement in the European Union, the Commission indicated that it would examine whether this Article could be applied.
Ralf Grahn
15. For the purposes of Article 13, Article 57(a) and Article 68(b), the following phrases shall have the following meanings:
(a) ‘public telecommunications network’ means the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;
(b) a ‘network termination point’ means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to, and efficient communication through, that public network;
(c) ‘public telecommunications services’ means telecommunications services the provision of which the Member States have specifically assigned, in particular, to one or more telecommunications entities;
(d) ‘telecommunications services’ means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television.
***
Recital 21
Recital 21 of the Procurement Directive or Classic Directive makes an effort to explain and to delimit the exclusion of public telecommunications contracts from the scope of the Directive:
(21) In view of the situation of effective market competition in the telecommunications sector following the implementation of the Community rules aimed at liberalising that sector, public contracts in that area should be excluded from the scope of this Directive insofar as they are intended primarily to allow the contracting authorities to exercise certain activities in the telecommunications sector. Those activities are defined in accordance with the definitions used in Articles 1, 2 and 8 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector, such that this Directive does not apply to contracts which have been excluded from the scope of Directive 93/38/EEC pursuant to Article 8 thereof.
***
Excluded contracts
Under Section 3 Excluded contracts, Article 13 of the Procurement Directive lays down the following rules:
Article 13
Specific exclusions in the field of telecommunications
This Directive shall not apply to public contracts for the principal purpose of permitting the contracting authorities to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services.
***
Article 57(a) and 68(b) contain further exclusions.
***
Utilities Directive 2004/17/EC
The Utilities Directive, officially the Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 30.4.2004 L 134/1; later amendments) excluded purchases by telecommunications entities from the new Utilities Directive, as described in Recital 5:
(5) The scope of Directive 98/38/EEC covers, at present, certain contracts awarded by contracting entities operating in the telecommunications sector. A legislative framework, as mentioned in the Fourth report on the implementation of the telecommunications regulations of 25 November 1998, has been adopted to open this sector. One of its consequences has been the introduction of effective competition, both de jure and de facto, in this sector. For information purposes, and in the light of this situation, the Commission has published a list of telecommunications services which may already be excluded from the scope of that Directive by virtue of Article 8 thereof. Further progress has been confirmed in the Seventh report on the implementation of telecommunications regulations of 26 November 2001. It is therefore no longer necessary to regulate purchases by entities operating in this sector.
***
The exclusion of public telecommunications contracts from the scope of the new Utilities Directive would have brought them under the new general Procurement Directive.
The contracts by contracting authorities would have fallen under the new Procurement Directive, but Article 13 specifically excludes this.
***
Background: Effective competition
A Communication from the Commission evaluated the development of effective competition within the telecommunications sector:
Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC List of services regarded as excluded from the scope of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors pursuant to Article 8 thereof (OJ 30.4.2004 C 115/7)
Directive 93/38/EEC is applicable in particular to contracts awarded by telecommunications operators; however its constraints are no longer justified where there is effective competition after the liberalisation of this sector. For this purpose Article 8 of the Directive lays down that where there is effective competition in the telecommunications services market, procurements for the provision of these services may be exempted from the scope of the Directive. In its Communication on public procurement in the European Union, the Commission indicated that it would examine whether this Article could be applied.
Ralf Grahn
Wednesday, 24 December 2008
EU procurement: Common Procurement Vocabulary (CPV)
Within the European Union the updated Common Procurement Vocabulary CPV 2008 is in use since 17 September 2008.
The EC (EU) Procurement Directive 2004/18/EC, also known as the Classic Directive, defines the Common Procurement Vocabulary (CPV) in the following way in Article 1.14:
14. The ‘Common Procurement Vocabulary (CPV)’ shall designate the reference nomenclature applicable to public contracts as adopted by Regulation (EC) No 2195/2002, while ensuring equivalence with the other existing nomenclatures.
In the event of varying interpretations of the scope of this Directive, owing to possible differences between the CPV and NACE nomenclatures listed in Annex I, or between the CPV and CPC (provisional version) nomenclatures listed in Annex II, the NACE or the CPC nomenclature respectively shall take precedence.
***
CPV Regulation No 2195/2002
The Regulation referred to in Article 1.14 is officially Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV).
The CPV Regulation has been amended, so this is where you find the consolidated version from 15 September 2008:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R2195:20080915:EN:PDF
There is an amendment in the pipeline, a Commission proposal concerning regulatory procedures (implementing powers): Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory procedure with scrutiny – Adaptation to the regulatory procedure with scrutiny Part Four (11.2.2008, COM(2008) 71 final):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0071:FIN:EN:PDF
The Recitals of the CPV Regulation present the reasons for a single reference system which uses the same description of goods in the official languages of the European Community and the legislative choices:
Whereas:
(1) The use of different classifications is detrimental to the openness and transparency of public procurement in Europe. Its impact on the quality of notices and the time needed to publish them is a de facto restriction on the access of economic operators to public contracts.
(2) In its Recommendation 96/527/EC (5) the Commission invited contracting entities and authorities to use the Common Procurement Vocabulary (CPV), developed on the basis of certain existing classifications with a view to gearing them more closely to the particular features of the public procurement sector, when describing the subjects of their contracts.
(3) There is a need to standardise, by means of a single classification system for public procurement, the references used by the contracting authorities and entities to describe the subject of contracts.
(4) The Member States need to have a single reference system which uses the same description of goods in the official languages of the Community and the same corresponding alphanumeric code, thus making it possible to overcome the language barriers at Community level.
(5) A revised version of the CPV therefore needs to be adopted under this Regulation as a single classification system for public procurement, the implementation of which is covered by the Directives on the coordination of procedures for the award of public contracts.
(6) Illustrative tables must also be drawn up showing the correspondence between the CPV and the Statistical Classification of Products by Activity in the EEC (CPA), the Provisional Central Product Classification (CPC Prov.) of the United Nations, the General Industrial Classification of Economic Activities within the European Communities (NACE Rev. 1) and the Combined Nomenclature (CN).
(7) The structure and codes of the CPV may need to be adapted or amended, in the light of developments in the markets and users' needs. A suitable revision procedure must therefore be established.
(8) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.
(9) Since the objective of the proposed action, namely the drawing up of a classification system for public contracts, cannot be sufficiently achieved by the Member States and can therefore, by reason of the dimensions and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
(10) A Regulation has been chosen rather than a Directive as the establishment of a classification system for public contracts does not require implementation by the Member States.
(11) With a view to familiarising users with a unified classification system that will eventually be compulsory, the implementation of this CPV Regulation should be preceded by a period of adjustment.
Article 1 of the CPV Regulation enshrines the adoption of the Common Procurement Vocabulary and the relationship between the CPV and the other product nomenclatures:
Article 1
1. A single classification system applicable to public procurement, known as the ‘Common Procurement Vocabulary’ or ‘CPV’ is hereby established.
2. The text of the CPV is set out in Annex I.
3. The illustrative tables showing the correspondence between the CPV and the Statistical Classification of Products by Activity in the EEC (CPA), the Provisional Central Product Classification (CPC Prov.) of the United Nations, the General Industrial Classification of Economic Activities within the European Communities (NACE Rev. 1) and the Combined Nomenclature (CN) are set out in Annexes II, III, IV and V respectively.
***
CPV 2008
On the occasion of the 28 November 2007 amendment to the CPV Regulation, the Commission painted a broad picture of the CPV and the reasons behind the change in the press release Public procurement: new classification system to provide EU businesses with easier access to public contracts (28 November, 2007IP/07/1787):
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1787&format=HTML&aged=0&language=EN&guiLanguage=fr
More detail on the latest major update is offered by the amending Regulation: Commission Regulation (EC) No 213/2008 of 28 November 2007 amending Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV) and Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement procedures, as regards the revision of the CPV (OJ 15.3.2008 L 74/1):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:074:0001:0375:EN:PDF
***
SIMAP guidance: CPV 2008
SIMAP – the gateway to European public procurement – explains the CPV classification system and offers links to in depth guidance: CPV 2008 Guide, CPV 2008 Explanatory Notes, CPV 2008 Supplementary Codex Explanatory Notes and Correspondence tables:
http://simap.europa.eu/codes-and-nomenclatures/codes-cpv_en.html
The CPV 2008 is in use since 17 September 2008.
***
I wish my procurement readers a Merry Christmas or equivalent.
Ralf Grahn
The EC (EU) Procurement Directive 2004/18/EC, also known as the Classic Directive, defines the Common Procurement Vocabulary (CPV) in the following way in Article 1.14:
14. The ‘Common Procurement Vocabulary (CPV)’ shall designate the reference nomenclature applicable to public contracts as adopted by Regulation (EC) No 2195/2002, while ensuring equivalence with the other existing nomenclatures.
In the event of varying interpretations of the scope of this Directive, owing to possible differences between the CPV and NACE nomenclatures listed in Annex I, or between the CPV and CPC (provisional version) nomenclatures listed in Annex II, the NACE or the CPC nomenclature respectively shall take precedence.
***
CPV Regulation No 2195/2002
The Regulation referred to in Article 1.14 is officially Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV).
The CPV Regulation has been amended, so this is where you find the consolidated version from 15 September 2008:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R2195:20080915:EN:PDF
There is an amendment in the pipeline, a Commission proposal concerning regulatory procedures (implementing powers): Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory procedure with scrutiny – Adaptation to the regulatory procedure with scrutiny Part Four (11.2.2008, COM(2008) 71 final):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0071:FIN:EN:PDF
The Recitals of the CPV Regulation present the reasons for a single reference system which uses the same description of goods in the official languages of the European Community and the legislative choices:
Whereas:
(1) The use of different classifications is detrimental to the openness and transparency of public procurement in Europe. Its impact on the quality of notices and the time needed to publish them is a de facto restriction on the access of economic operators to public contracts.
(2) In its Recommendation 96/527/EC (5) the Commission invited contracting entities and authorities to use the Common Procurement Vocabulary (CPV), developed on the basis of certain existing classifications with a view to gearing them more closely to the particular features of the public procurement sector, when describing the subjects of their contracts.
(3) There is a need to standardise, by means of a single classification system for public procurement, the references used by the contracting authorities and entities to describe the subject of contracts.
(4) The Member States need to have a single reference system which uses the same description of goods in the official languages of the Community and the same corresponding alphanumeric code, thus making it possible to overcome the language barriers at Community level.
(5) A revised version of the CPV therefore needs to be adopted under this Regulation as a single classification system for public procurement, the implementation of which is covered by the Directives on the coordination of procedures for the award of public contracts.
(6) Illustrative tables must also be drawn up showing the correspondence between the CPV and the Statistical Classification of Products by Activity in the EEC (CPA), the Provisional Central Product Classification (CPC Prov.) of the United Nations, the General Industrial Classification of Economic Activities within the European Communities (NACE Rev. 1) and the Combined Nomenclature (CN).
(7) The structure and codes of the CPV may need to be adapted or amended, in the light of developments in the markets and users' needs. A suitable revision procedure must therefore be established.
(8) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.
(9) Since the objective of the proposed action, namely the drawing up of a classification system for public contracts, cannot be sufficiently achieved by the Member States and can therefore, by reason of the dimensions and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
(10) A Regulation has been chosen rather than a Directive as the establishment of a classification system for public contracts does not require implementation by the Member States.
(11) With a view to familiarising users with a unified classification system that will eventually be compulsory, the implementation of this CPV Regulation should be preceded by a period of adjustment.
Article 1 of the CPV Regulation enshrines the adoption of the Common Procurement Vocabulary and the relationship between the CPV and the other product nomenclatures:
Article 1
1. A single classification system applicable to public procurement, known as the ‘Common Procurement Vocabulary’ or ‘CPV’ is hereby established.
2. The text of the CPV is set out in Annex I.
3. The illustrative tables showing the correspondence between the CPV and the Statistical Classification of Products by Activity in the EEC (CPA), the Provisional Central Product Classification (CPC Prov.) of the United Nations, the General Industrial Classification of Economic Activities within the European Communities (NACE Rev. 1) and the Combined Nomenclature (CN) are set out in Annexes II, III, IV and V respectively.
***
CPV 2008
On the occasion of the 28 November 2007 amendment to the CPV Regulation, the Commission painted a broad picture of the CPV and the reasons behind the change in the press release Public procurement: new classification system to provide EU businesses with easier access to public contracts (28 November, 2007IP/07/1787):
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/07/1787&format=HTML&aged=0&language=EN&guiLanguage=fr
More detail on the latest major update is offered by the amending Regulation: Commission Regulation (EC) No 213/2008 of 28 November 2007 amending Regulation (EC) No 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV) and Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement procedures, as regards the revision of the CPV (OJ 15.3.2008 L 74/1):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:074:0001:0375:EN:PDF
***
SIMAP guidance: CPV 2008
SIMAP – the gateway to European public procurement – explains the CPV classification system and offers links to in depth guidance: CPV 2008 Guide, CPV 2008 Explanatory Notes, CPV 2008 Supplementary Codex Explanatory Notes and Correspondence tables:
http://simap.europa.eu/codes-and-nomenclatures/codes-cpv_en.html
The CPV 2008 is in use since 17 September 2008.
***
I wish my procurement readers a Merry Christmas or equivalent.
Ralf Grahn
Tuesday, 23 December 2008
EU procurement: Electronic means
The EC (EU) Procurement Directive 2004/18/EC defines electronic means in Article 1.13:
13. ‘Electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.
***
Electronic equals writing
In the preceding post, EU procurement: Written or in writing, we saw that electronic information is included in the definition of written and in writing.
We also saw that a public contract must be in writing and that written communication is essential throughout the award process.
Here is the EC (EU) Procurement Directive 2004/18/EC definition of written and in writing in Article 1.12, which we looked at yesterday:
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
***
Use of electronic means
We have seen that electronic means have been put on an equal footing with other written communication, but the bare definition of electronic means does not even begin to convey the importance attached to the concept.
We look at just a few of the many examples in the Procurement Directive of electronic communication used in procurement procedures.
***
Electronic auctions
The Recitals present the background and the reasons for the new Procurement Directive or Classic Directive.
Recital 14 describes electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Advantages
Recital 35 describes the potential advantages of electronic information exchange:
(35) In view of new developments in information and communications technology, and the simplifications these can bring in terms of publicising contracts and the efficiency and transparency of procurement processes, electronic means should be put on a par with traditional means of communication and information exchange. As far as possible, the means and technology chosen should be compatible with the technologies used in other Member States.
***
Electronic signatures
Recital 37 mentions the aim to encourage the use of advanced electronic signatures:
(37) Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (3) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) should, in the context of this Directive, apply to the transmission of information by electronic means. The public procurement procedures and the rules applicable to service contests require a level of security and confidentiality higher than that required by these Directives. Accordingly, the devices for the electronic receipt of offers, requests to participate and plans and projects should comply with specific additional requirements. To this end, use of electronic signatures, in particular advanced electronic signatures, should, as far as possible, be encouraged. Moreover, the existence of voluntary accreditation schemes could constitute a favourable framework for enhancing the level of certification service provision for these devices.
***
SIMAP
Beyond the definitions, we turn to European public procurement practice and projects aiming at reaping the benefits of electronic communications, important for the future of procurement and government services in general.
SIMAP describes itself as the gateway to European public procurement. The following greeting refers to electronic means:
Information system for European public procurement
The SIMAP portal provides access to most important information about public procurement in Europe.
Tender notices are published on TED website, the single official source of public contracts in Europe. Most of public procurement notices are sent for publication through an electronic channel. A web-based tool — eNotices — simplifies and speeds up preparation and publication of tender notices. eSenders service allows qualified organisations to submit notices directly as XML files.
http://simap.europa.eu/index_en.html
***
TED – Tenders Electronic Daily
TED (Tenders Electronic Daily) is the online version of the 'Supplement to the Official Journal of the European Union', dedicated to European public procurement. This is the meeting place for notices from contracting authorities and businesses looking for opportunities in the procurement markets:
http://ted.europa.eu/Exec?Template=TED/editorial_page.htm&DataFlow=ShowPage.dfl&StatLang=EN
***
IDABC
Further proof of the EU’s drive towards electronic services is IDABC.
The IDABC Programme stands for Interoperable Delivery of European eGovernment Services to public Administrations, Business and Citizens. It takes advantage of the opportunities offered by information and communication technologies:
http://ec.europa.eu/idabc/en/chapter/3
***
ePractice.eu
ePractice is a web portal dedicated the development of eGovernment services, with news and information:
http://www.epractice.eu/home
Ralf Grahn
13. ‘Electronic means’ means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.
***
Electronic equals writing
In the preceding post, EU procurement: Written or in writing, we saw that electronic information is included in the definition of written and in writing.
We also saw that a public contract must be in writing and that written communication is essential throughout the award process.
Here is the EC (EU) Procurement Directive 2004/18/EC definition of written and in writing in Article 1.12, which we looked at yesterday:
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
***
Use of electronic means
We have seen that electronic means have been put on an equal footing with other written communication, but the bare definition of electronic means does not even begin to convey the importance attached to the concept.
We look at just a few of the many examples in the Procurement Directive of electronic communication used in procurement procedures.
***
Electronic auctions
The Recitals present the background and the reasons for the new Procurement Directive or Classic Directive.
Recital 14 describes electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Advantages
Recital 35 describes the potential advantages of electronic information exchange:
(35) In view of new developments in information and communications technology, and the simplifications these can bring in terms of publicising contracts and the efficiency and transparency of procurement processes, electronic means should be put on a par with traditional means of communication and information exchange. As far as possible, the means and technology chosen should be compatible with the technologies used in other Member States.
***
Electronic signatures
Recital 37 mentions the aim to encourage the use of advanced electronic signatures:
(37) Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (3) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’) should, in the context of this Directive, apply to the transmission of information by electronic means. The public procurement procedures and the rules applicable to service contests require a level of security and confidentiality higher than that required by these Directives. Accordingly, the devices for the electronic receipt of offers, requests to participate and plans and projects should comply with specific additional requirements. To this end, use of electronic signatures, in particular advanced electronic signatures, should, as far as possible, be encouraged. Moreover, the existence of voluntary accreditation schemes could constitute a favourable framework for enhancing the level of certification service provision for these devices.
***
SIMAP
Beyond the definitions, we turn to European public procurement practice and projects aiming at reaping the benefits of electronic communications, important for the future of procurement and government services in general.
SIMAP describes itself as the gateway to European public procurement. The following greeting refers to electronic means:
Information system for European public procurement
The SIMAP portal provides access to most important information about public procurement in Europe.
Tender notices are published on TED website, the single official source of public contracts in Europe. Most of public procurement notices are sent for publication through an electronic channel. A web-based tool — eNotices — simplifies and speeds up preparation and publication of tender notices. eSenders service allows qualified organisations to submit notices directly as XML files.
http://simap.europa.eu/index_en.html
***
TED – Tenders Electronic Daily
TED (Tenders Electronic Daily) is the online version of the 'Supplement to the Official Journal of the European Union', dedicated to European public procurement. This is the meeting place for notices from contracting authorities and businesses looking for opportunities in the procurement markets:
http://ted.europa.eu/Exec?Template=TED/editorial_page.htm&DataFlow=ShowPage.dfl&StatLang=EN
***
IDABC
Further proof of the EU’s drive towards electronic services is IDABC.
The IDABC Programme stands for Interoperable Delivery of European eGovernment Services to public Administrations, Business and Citizens. It takes advantage of the opportunities offered by information and communication technologies:
http://ec.europa.eu/idabc/en/chapter/3
***
ePractice.eu
ePractice is a web portal dedicated the development of eGovernment services, with news and information:
http://www.epractice.eu/home
Ralf Grahn
Monday, 22 December 2008
EU procurement: Written or in writing
The EC (EU) Procurement Directive 2004/18/EC defines written and in writing broadly in Article 1.12, including electronic means:
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
***
Written contract
Public works contracts, public supply contracts and public service contracts – public contracts – must be concluded in writing. This is one of the essential characteristics according to Article 1.2(a) of the Procurement Directive, also called the Classic Directive:
2. (a) ‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
***
Written documentation
The written form does not apply only to the final contract, but the main stages such as invitations to tender and tenders have to be in writing and the main stages of the procurement process documented.
The contracting authorities act under public law and the remedies on offer require documentation.
Ralf Grahn
12. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means.
***
Written contract
Public works contracts, public supply contracts and public service contracts – public contracts – must be concluded in writing. This is one of the essential characteristics according to Article 1.2(a) of the Procurement Directive, also called the Classic Directive:
2. (a) ‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
***
Written documentation
The written form does not apply only to the final contract, but the main stages such as invitations to tender and tenders have to be in writing and the main stages of the procurement process documented.
The contracting authorities act under public law and the remedies on offer require documentation.
Ralf Grahn
Saturday, 20 December 2008
EU procurement: Central purchasing body (CPB)
The EC (EU) Procurement Directive 2004/18/EC, also known as the Classic Directive, defines a central purchasing body (CPB) in Article 1.10:
10. A ‘central purchasing body’ is a contracting authority which:
— acquires supplies and/or services intended for contracting authorities, or
— awards public contracts or concludes framework agreements for works, supplies or services intended for contracting authorities.
***
Contracting authority
The definition of a central purchasing body builds on the concept of a contracting authority.
You can turn to the blog post EU procurement: Contracting authority, at:
http://grahnlaw.blogspot.com/2008/12/eu-procurement-contracting-authority.html
***
Reasons given
The Recitals of the Procurement Directive present reasons for the consolidated legislation and for novelties. Recital 15 describes the central purchasing body (CPB):
(15) Certain centralised purchasing techniques have been developed in Member States. Several contracting authorities are responsible for making acquisitions or awarding public contracts/framework agreements for other contracting authorities. In view of the large volumes purchased, those techniques help increase competition and streamline public purchasing. Provision should therefore be made for a Community definition of central purchasing bodies dedicated to contracting authorities. A definition should also be given of the conditions under which, in accordance with the principles of non-discrimination and equal treatment, contracting authorities purchasing works, supplies and/or services through a central purchasing body may be deemed to have complied with this Directive.
***
Article 11
Procurement Directive Article 11 sets out the optional nature of central purchasing bodies, but complying with the procurement rules is mandatory:
Article 11
Public contracts and framework agreements awarded by central purchasing bodies
1. Member States may stipulate that contracting authorities may purchase works, supplies and/or services from or through a central purchasing body.
2. Contracting authorities which purchase works, supplies and/or services from or through a central purchasing body in the cases set out in Article 1(10) shall be deemed to have complied with this Directive insofar as the central purchasing body has complied with it.
***
UK OGC
The United Kingdom Office of Government Commerce has published OGC Guidance on Central Purchasing Bodies (March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Central_Purchasing_Bodies.pdf
The updated six page brochure (pdf) gives advice to contracting authorities entering into agreements with central purchasing bodies.
Ralf Grahn
10. A ‘central purchasing body’ is a contracting authority which:
— acquires supplies and/or services intended for contracting authorities, or
— awards public contracts or concludes framework agreements for works, supplies or services intended for contracting authorities.
***
Contracting authority
The definition of a central purchasing body builds on the concept of a contracting authority.
You can turn to the blog post EU procurement: Contracting authority, at:
http://grahnlaw.blogspot.com/2008/12/eu-procurement-contracting-authority.html
***
Reasons given
The Recitals of the Procurement Directive present reasons for the consolidated legislation and for novelties. Recital 15 describes the central purchasing body (CPB):
(15) Certain centralised purchasing techniques have been developed in Member States. Several contracting authorities are responsible for making acquisitions or awarding public contracts/framework agreements for other contracting authorities. In view of the large volumes purchased, those techniques help increase competition and streamline public purchasing. Provision should therefore be made for a Community definition of central purchasing bodies dedicated to contracting authorities. A definition should also be given of the conditions under which, in accordance with the principles of non-discrimination and equal treatment, contracting authorities purchasing works, supplies and/or services through a central purchasing body may be deemed to have complied with this Directive.
***
Article 11
Procurement Directive Article 11 sets out the optional nature of central purchasing bodies, but complying with the procurement rules is mandatory:
Article 11
Public contracts and framework agreements awarded by central purchasing bodies
1. Member States may stipulate that contracting authorities may purchase works, supplies and/or services from or through a central purchasing body.
2. Contracting authorities which purchase works, supplies and/or services from or through a central purchasing body in the cases set out in Article 1(10) shall be deemed to have complied with this Directive insofar as the central purchasing body has complied with it.
***
UK OGC
The United Kingdom Office of Government Commerce has published OGC Guidance on Central Purchasing Bodies (March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Central_Purchasing_Bodies.pdf
The updated six page brochure (pdf) gives advice to contracting authorities entering into agreements with central purchasing bodies.
Ralf Grahn
Friday, 19 December 2008
EU procurement: Contracting authority
Contracting authority is one of the key concepts of the EC (EU) Procurement Directive 2004/18/EC, popping up in almost every provision. With the position as a contracting authority goes the responsibility to follow the right procedures.
Even if state, regional and local authorities are normally easy to recognise, the role of other bodies or associations can be tricky.
Here is the definition of a contracting authority in Article 1.9 of the Procurement Directive, also known as the Classic Directive:
9. ‘Contracting authorities’ means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
A ‘body governed by public law’ means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b) having legal personality; and
(c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.
Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. Member States shall periodically notify the Commission of any changes to their lists of bodies and categories of bodies.
***
Annex III
The quick route to check if a body is a contracting authority, is in principle, to look at the relevant country list in Annex III List of bodies and categories of bodies governed by public law as referred to in the second subparagraph of Article 1(9).
Notice that the Commission has updated its country lists 15 December 2008. They are available on the web page Contracting authorities bound by EU public procurement rules:
http://ec.europa.eu/internal_market/publicprocurement/authorities_en.htm
For an overview of the changes, you can read the press release Public procurement: updated lists of Contracting Authorities give better access to public contracts for businesses (IP/08/1971, Brussels, 15 December 2008). The press release paints a broad picture of EU public procurement, potential savings to taxpayers and it contains the current contract thresholds, in force since 1 January 2008:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1971&format=HTML&aged=0&language=EN&guiLanguage=en
But even if updated, the list does not exclude other organisations from the responsibilities of a contracting authority. The interpretation is functional.
***
Commission Guide
To mention one example, the Commission’s Guide to Community rules on public works contracts (based on the old Directive 93/37/EEC) explains the contracting authority in the following way (page 9 to 11):
1.3 The contracting authority
The Directive defines contracting authorities as the State, regional or local authorities, bodies governed by public law, or associations formed by one or more such authorities or bodies governed by public law.
The State
It is worth stressing that for the purposes of applying the Directive, the concept of the State is not confined to the administration as such, but also covers bodies which, albeit not formally part of the traditional structures of the administration, have no legal personality of their own and carry out tasks that are normally the responsibility of the State administration, which they merely represent in different ways. This point was clarified by the Court of Justice in Beentjes v Netherlands State, in which it had to rule whether Directive 71/305/EEC applied to the award of public works contracts by the Waterland Local Land Consolidation Committee, a body with no legal personality of its own. To that end, the Court stressed that “the objective of Directive 71/305/EEC is to coordinate national procedures for the award of public works contracts concluded in Member States on behalf of the State, regional or local authorities or other legal persons governed by public law” and that the term “the State” within the meaning of Article 1(b) Directive 71/305/EEC defining contracting authorities “must be interpreted in functional terms. The aim of the Directive, which is to ensure the effective attainment of freedom of establishment and freedom to provide services in respect of public works contracts, would be jeopardized if the provisions of the Directive were to be held to be inapplicable solely because a public works contract is awarded by a body which, although it was set up to carry out tasks entrusted to it by legislation, is not formally a part of the State administration.
Consequently, a body such as that in question here, whose composition and functions are laid down by legislation and which depends on the authorities for the appointment of its members, the observance of the obligations arising out of its measures and the financing of the public works contracts which it is its task to award, must be regarded as falling within the notion of the State for the purpose of the abovementioned provision, even though it is not part of the State administration in formal terms.”
Bodies governed by public law
The Directive defines bodies governed by public law on the basis of three cumulative criteria. A body governed by public law thus means any body:
(1) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
(2) having legal personality, and
(3) * either financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law,
* or subject to management supervision by those bodies,
* or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.
The Directive thus applies to any body with legal personality under public or private law, established in the general interest, whose operational choices and activities are or may be influenced by a contracting authority as a result of the links between them by virtue of one or more of the conditions that go to make up the third criterion.
The only bodies which are established in the general interest and fulfil the other criteria but are not regarded as contracting authorities by the Directive are those set up for the specific purpose of meeting needs of an industrial or commercial nature, i.e. needs which they satisfy by carrying on economic activities in the industrial or commercial field that involve supplying goods or services on markets which are open to other public or private operators under fully competitive conditions. These are therefore bodies which carry on a business equivalent to that of a private operator.
It should be emphasized that the exemption provided for by the Directive applies only to bodies which carry on such economic activities since they were set up in order specifically to do so. Consequently, the exemption does not apply to bodies which, while carrying on commercial or industrial activities, were in fact set up to satisfy a different general interest: e.g. a body set up specifically to carry out administrative tasks so as to meet general–interest needs of a social nature, which, to ensure that its books balance, also carries on a profitable commercial activity.
Nevertheless, each individual case must be analysed to determine whether the body governed by public law is subject to the Directive.
In the interests of greater transparency in application, the Directive sets out, in Annex I, a list19 of bodies and categories of bodies fulfilling the criteria for bodies governed by public law and lays down a procedure for updating the list to ensure that it is as exhaustive as possible.
The obligation on a body governed by public law to comply with the Directive does not, however, depend on its prior inclusion in the list: it is under such an obligation as soon as it fulfils the criteria. Similarly, although a body may be on the list, it could be exempted from complying with the Directive if it were no longer to meet one or more of the cumulative criteria.
***
Procurement Guidelines
Once you have established that you are a contracting authority or aim to do business with one, the procedures become important.
Because the procedures are mandatory for contracting authorities and valuable to know for contractors, suppliers and service providers, step by step guides have been published.
Although the implementing national legislation differs from jurisdiction to jurisdiction, the legal background (EC/EU) and the basic challenges remain the same. Here is one example in English:
The Irish Government has published Public Procurement Guidelines – Competitive Process, which apply to supplies and services (39 pages) as well as other guides for public purchasers:
http://www.e-tenders.gov.ie/guides/guides_list.aspx?Type=2
Ralf Grahn
Even if state, regional and local authorities are normally easy to recognise, the role of other bodies or associations can be tricky.
Here is the definition of a contracting authority in Article 1.9 of the Procurement Directive, also known as the Classic Directive:
9. ‘Contracting authorities’ means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
A ‘body governed by public law’ means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b) having legal personality; and
(c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.
Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. Member States shall periodically notify the Commission of any changes to their lists of bodies and categories of bodies.
***
Annex III
The quick route to check if a body is a contracting authority, is in principle, to look at the relevant country list in Annex III List of bodies and categories of bodies governed by public law as referred to in the second subparagraph of Article 1(9).
Notice that the Commission has updated its country lists 15 December 2008. They are available on the web page Contracting authorities bound by EU public procurement rules:
http://ec.europa.eu/internal_market/publicprocurement/authorities_en.htm
For an overview of the changes, you can read the press release Public procurement: updated lists of Contracting Authorities give better access to public contracts for businesses (IP/08/1971, Brussels, 15 December 2008). The press release paints a broad picture of EU public procurement, potential savings to taxpayers and it contains the current contract thresholds, in force since 1 January 2008:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1971&format=HTML&aged=0&language=EN&guiLanguage=en
But even if updated, the list does not exclude other organisations from the responsibilities of a contracting authority. The interpretation is functional.
***
Commission Guide
To mention one example, the Commission’s Guide to Community rules on public works contracts (based on the old Directive 93/37/EEC) explains the contracting authority in the following way (page 9 to 11):
1.3 The contracting authority
The Directive defines contracting authorities as the State, regional or local authorities, bodies governed by public law, or associations formed by one or more such authorities or bodies governed by public law.
The State
It is worth stressing that for the purposes of applying the Directive, the concept of the State is not confined to the administration as such, but also covers bodies which, albeit not formally part of the traditional structures of the administration, have no legal personality of their own and carry out tasks that are normally the responsibility of the State administration, which they merely represent in different ways. This point was clarified by the Court of Justice in Beentjes v Netherlands State, in which it had to rule whether Directive 71/305/EEC applied to the award of public works contracts by the Waterland Local Land Consolidation Committee, a body with no legal personality of its own. To that end, the Court stressed that “the objective of Directive 71/305/EEC is to coordinate national procedures for the award of public works contracts concluded in Member States on behalf of the State, regional or local authorities or other legal persons governed by public law” and that the term “the State” within the meaning of Article 1(b) Directive 71/305/EEC defining contracting authorities “must be interpreted in functional terms. The aim of the Directive, which is to ensure the effective attainment of freedom of establishment and freedom to provide services in respect of public works contracts, would be jeopardized if the provisions of the Directive were to be held to be inapplicable solely because a public works contract is awarded by a body which, although it was set up to carry out tasks entrusted to it by legislation, is not formally a part of the State administration.
Consequently, a body such as that in question here, whose composition and functions are laid down by legislation and which depends on the authorities for the appointment of its members, the observance of the obligations arising out of its measures and the financing of the public works contracts which it is its task to award, must be regarded as falling within the notion of the State for the purpose of the abovementioned provision, even though it is not part of the State administration in formal terms.”
Bodies governed by public law
The Directive defines bodies governed by public law on the basis of three cumulative criteria. A body governed by public law thus means any body:
(1) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
(2) having legal personality, and
(3) * either financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law,
* or subject to management supervision by those bodies,
* or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law.
The Directive thus applies to any body with legal personality under public or private law, established in the general interest, whose operational choices and activities are or may be influenced by a contracting authority as a result of the links between them by virtue of one or more of the conditions that go to make up the third criterion.
The only bodies which are established in the general interest and fulfil the other criteria but are not regarded as contracting authorities by the Directive are those set up for the specific purpose of meeting needs of an industrial or commercial nature, i.e. needs which they satisfy by carrying on economic activities in the industrial or commercial field that involve supplying goods or services on markets which are open to other public or private operators under fully competitive conditions. These are therefore bodies which carry on a business equivalent to that of a private operator.
It should be emphasized that the exemption provided for by the Directive applies only to bodies which carry on such economic activities since they were set up in order specifically to do so. Consequently, the exemption does not apply to bodies which, while carrying on commercial or industrial activities, were in fact set up to satisfy a different general interest: e.g. a body set up specifically to carry out administrative tasks so as to meet general–interest needs of a social nature, which, to ensure that its books balance, also carries on a profitable commercial activity.
Nevertheless, each individual case must be analysed to determine whether the body governed by public law is subject to the Directive.
In the interests of greater transparency in application, the Directive sets out, in Annex I, a list19 of bodies and categories of bodies fulfilling the criteria for bodies governed by public law and lays down a procedure for updating the list to ensure that it is as exhaustive as possible.
The obligation on a body governed by public law to comply with the Directive does not, however, depend on its prior inclusion in the list: it is under such an obligation as soon as it fulfils the criteria. Similarly, although a body may be on the list, it could be exempted from complying with the Directive if it were no longer to meet one or more of the cumulative criteria.
***
Procurement Guidelines
Once you have established that you are a contracting authority or aim to do business with one, the procedures become important.
Because the procedures are mandatory for contracting authorities and valuable to know for contractors, suppliers and service providers, step by step guides have been published.
Although the implementing national legislation differs from jurisdiction to jurisdiction, the legal background (EC/EU) and the basic challenges remain the same. Here is one example in English:
The Irish Government has published Public Procurement Guidelines – Competitive Process, which apply to supplies and services (39 pages) as well as other guides for public purchasers:
http://www.e-tenders.gov.ie/guides/guides_list.aspx?Type=2
Ralf Grahn
Thursday, 18 December 2008
EU procurement: Economic operator
Economic operator is a term used to cover a contractor, supplier or service provider in the context of the Procurement Directive or Classic Directive 2004/18/EC. Article 1.8 also defines the terms tenderer and candidate:
8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Article 4
Since economic operator covers the different roles of a party selling or wanting to sell works, products or services, it appears throughout the Procurement Directive. However, Article 4 adds some features worth noting:
Article 4
Economic operators
1. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.
However, in the case of public service and public works contracts as well as public supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.
2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.
***
Contractor
Because we are not looking at the substantive provisions at this moment, only short and general descriptions of the terms are presented.
Contractor is used in the context of public works contracts. The Commission’s Guide to community rules on public works contracts (based on the old Directive 93/37/EEC) presents the following general characteristics (page 9):
1.2 The contractor
As the Court has stated, the concept of the contractor must be interpreted so as to include not only a natural or legal person who will himself carry out the works but also a person who will have the contract carried out through agencies or branches or will have recourse to technicians or outside technical divisions. or even a group of undertakings, whatever its legal form. In the case in point, the Court ruled that “a holding company which does not itself execute works may not, because its subsidiaries which do not carry out works are separate legal persons, be precluded on that ground from participation in public works contract procedures”.
***
Supplier
Supplier is used in relation to products. The Commission’s Guide to the Community rules on public supply contracts (based on the old Directive 93/36/EEC) makes the briefest introductory comment on supplier:
1.2 The supplier
The supplier may be a natural or legal person or a group of suppliers.
***
Service provider
Service provider is evidently used with regard to service contracts. The Commission’s Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) gives the following brief description:
1.2 Service providers
A service provider is any natural or legal person which offers to provide services. A public body may also be a service provider within the meaning of the Services Directive.
***
Tenderer
An economic operator who has submitted a tender is called a ‘tenderer’.
***
Candidate
An economic operator who has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Key procurement terms: Glossaries
Public procurement is a tricky field with a number of specific terms. There are a number of glossaries available to find quick answers to key terms. Here are a few UK examples for practical use.
The North East Regional Portal (TNERP): Procurement Glossary
http://www.n-e-life.com/uploadedFiles/Procurement%20glossary%20final(1).pdf
Tendering for Care (TfC): The TfC Glossary of Terms for Tendering and Procurement
http://www.tenderingforcare.com/system/files/Glossary%200208.pdf
North Hertfordshire District Council: Glossary of Procurement Terms
http://www.north-herts.gov.uk/index/working/procurement/glossary_of_procurement_terms.htm
Sustainable Procurement Information Network (SPIN): Glossary
http://www.s-p-i-n.co.uk/glossary.asp
Tony Zemaitis Associates Limited: Tender Terminology / Tendering Glossary
http://www.zemaitis-uk.com/pdfs/Tender-Terms-and-Glossary-Tony-Zemaitis-Associates.pdf
National Council for Voluntary Organisations (NVCO): Glossary of Procurement and Commissioning Terms
http://www.ncvo-vol.org.uk/sfp/?id=10694
Ralf Grahn
8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Article 4
Since economic operator covers the different roles of a party selling or wanting to sell works, products or services, it appears throughout the Procurement Directive. However, Article 4 adds some features worth noting:
Article 4
Economic operators
1. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.
However, in the case of public service and public works contracts as well as public supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate, the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.
2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.
***
Contractor
Because we are not looking at the substantive provisions at this moment, only short and general descriptions of the terms are presented.
Contractor is used in the context of public works contracts. The Commission’s Guide to community rules on public works contracts (based on the old Directive 93/37/EEC) presents the following general characteristics (page 9):
1.2 The contractor
As the Court has stated, the concept of the contractor must be interpreted so as to include not only a natural or legal person who will himself carry out the works but also a person who will have the contract carried out through agencies or branches or will have recourse to technicians or outside technical divisions. or even a group of undertakings, whatever its legal form. In the case in point, the Court ruled that “a holding company which does not itself execute works may not, because its subsidiaries which do not carry out works are separate legal persons, be precluded on that ground from participation in public works contract procedures”.
***
Supplier
Supplier is used in relation to products. The Commission’s Guide to the Community rules on public supply contracts (based on the old Directive 93/36/EEC) makes the briefest introductory comment on supplier:
1.2 The supplier
The supplier may be a natural or legal person or a group of suppliers.
***
Service provider
Service provider is evidently used with regard to service contracts. The Commission’s Guide to the Community rules on public procurement of services (based on the old Directive 92/50/EEC) gives the following brief description:
1.2 Service providers
A service provider is any natural or legal person which offers to provide services. A public body may also be a service provider within the meaning of the Services Directive.
***
Tenderer
An economic operator who has submitted a tender is called a ‘tenderer’.
***
Candidate
An economic operator who has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
***
Key procurement terms: Glossaries
Public procurement is a tricky field with a number of specific terms. There are a number of glossaries available to find quick answers to key terms. Here are a few UK examples for practical use.
The North East Regional Portal (TNERP): Procurement Glossary
http://www.n-e-life.com/uploadedFiles/Procurement%20glossary%20final(1).pdf
Tendering for Care (TfC): The TfC Glossary of Terms for Tendering and Procurement
http://www.tenderingforcare.com/system/files/Glossary%200208.pdf
North Hertfordshire District Council: Glossary of Procurement Terms
http://www.north-herts.gov.uk/index/working/procurement/glossary_of_procurement_terms.htm
Sustainable Procurement Information Network (SPIN): Glossary
http://www.s-p-i-n.co.uk/glossary.asp
Tony Zemaitis Associates Limited: Tender Terminology / Tendering Glossary
http://www.zemaitis-uk.com/pdfs/Tender-Terms-and-Glossary-Tony-Zemaitis-Associates.pdf
National Council for Voluntary Organisations (NVCO): Glossary of Procurement and Commissioning Terms
http://www.ncvo-vol.org.uk/sfp/?id=10694
Ralf Grahn
Wednesday, 17 December 2008
EU procurement: Electronic auction
What is an electronic auction in EU procurement? What we see is typically an automated Dutch auction (reversed auction) of standard goods.
Article 1.7 of the Procurement Directive 2004/18/EC offers the following, more technical definition:
7. An ‘electronic auction’ is a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.
Consequently, certain service contracts and certain works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions.
***
Reasons given
Recital 14 of the Procurement Directive (Classic Directive) presents the following reasons for defining and regulating electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Optional
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and it is for the member states to choose if they want to employ electronic auctions:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Using electronic auctions
The main Procurement Directive 2004/18/EC provision concerning electronic auctions is Article 54. Having opted for electronic auctions, the transposing legislation of the member state and the procedures employed by the contracting authority must fulfil certain criteria:
Article 54
Use of electronic auctions
1. Member States may provide that contracting authorities may use electronic auctions.
2. In open, restricted or negotiated procedures in the case referred to in Article 30(1)(a), the contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the contract specifications can be established with precision.
In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second indent of the second subparagraph of Article 32(4) and on the opening for competition of contracts to be awarded under the dynamic purchasing system referred to in Article 33.
The electronic auction shall be based:
— either solely on prices when the contract is awarded to the lowest price,
— or on prices and/or on the new values of the features of the tenders indicated in the specification when the contract is awarded to the most economically advantageous tender.
3. Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice.
The specifications shall include, inter alia, the following details:
(a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;
(b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract;
(c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;
(d) the relevant information concerning the electronic auction process;
(e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding;
(f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.
4. Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criterion/criteria set and with the weighting fixed for them.
All tenderers who have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values; the invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out.
5. When the contract is to be awarded on the basis of the most economically advantageous tender, the invitation shall be accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in the first subparagraph of Article 53(2).
The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic rerankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced beforehand to a specified value.
Where variants are authorised, a separate formula shall be provided for each variant.
6. Throughout each phase of an electronic auction the contracting authorities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the specifications. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction.
7. Contracting authorities shall close an electronic auction in one or more of the following manners:
(a) in the invitation to take part in the auction they shall indicate the date and time fixed in advance;
(b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before they close the electronic auction;
(c) when the number of phases in the auction, fixed in the invitation to take part in the auction, has been completed.
When the contracting authorities have decided to close an electronic auction in accordance with subparagraph (c), possibly in combination with the arrangements laid down in subparagraph (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction.
8. After closing an electronic auction contracting authorities shall award the contract in accordance with Article 53 on the basis of the results of the electronic auction.
Contracting authorities may not have improper recourse to electronic auctions nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the specification.
***
Scotland
The Scottish Government’s guide on public procurement chops the contents of the provisions into readable chunks for generations accustomed to Power Point or equal presentations.
http://www.scotland.gov.uk/Publications/2006/11/16102303/euguidance#a10
***
Ireland
The Irish Government’s eProcurement network offers policy and guidance documents on a number of issues. One of these documents is the Quick Guide to eAuctions, which explains electronic auctions step by step for contracting authorities. The guide is available here:
http://www.eprocnet.gov.ie/policy-guidance-documents
***
ePractice.eu
In its own words, ePractice.eu is a portal created by the European Commission which offers a new service for the professional community of eGovernment, eInclusion and eHealth practitioners. It is an interactive initiative that empowers its users to discuss and influence open government, policy-making and the way in which public administrations operate and deliver services. ePractice.eu involves practitioners from all 27 Member States, EU-member candidate states and EFTA countries. Practitioners from other countries outside the EU are also welcome to join.
A wealth of information and search options (including ‘electronic auction’) is available at the ePractice.eu site:
http://www.epractice.eu/home
***
By the way
The European Union and the European Economic Area bring together not only politicians, but also civil servants from the different states. Through regular contacts and exchanges of experiences, the EU becomes an important learning environment.
Is it realistic to think that this diffusion of knowledge would take place to the same extent without the European Union?
Ralf Grahn
Article 1.7 of the Procurement Directive 2004/18/EC offers the following, more technical definition:
7. An ‘electronic auction’ is a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.
Consequently, certain service contracts and certain works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions.
***
Reasons given
Recital 14 of the Procurement Directive (Classic Directive) presents the following reasons for defining and regulating electronic auctions:
(14) Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with the principles of equal treatment, non-discrimination and transparency. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also to be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of the tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.
***
Optional
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and it is for the member states to choose if they want to employ electronic auctions:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Using electronic auctions
The main Procurement Directive 2004/18/EC provision concerning electronic auctions is Article 54. Having opted for electronic auctions, the transposing legislation of the member state and the procedures employed by the contracting authority must fulfil certain criteria:
Article 54
Use of electronic auctions
1. Member States may provide that contracting authorities may use electronic auctions.
2. In open, restricted or negotiated procedures in the case referred to in Article 30(1)(a), the contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the contract specifications can be established with precision.
In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second indent of the second subparagraph of Article 32(4) and on the opening for competition of contracts to be awarded under the dynamic purchasing system referred to in Article 33.
The electronic auction shall be based:
— either solely on prices when the contract is awarded to the lowest price,
— or on prices and/or on the new values of the features of the tenders indicated in the specification when the contract is awarded to the most economically advantageous tender.
3. Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice.
The specifications shall include, inter alia, the following details:
(a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;
(b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract;
(c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;
(d) the relevant information concerning the electronic auction process;
(e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding;
(f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.
4. Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criterion/criteria set and with the weighting fixed for them.
All tenderers who have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values; the invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out.
5. When the contract is to be awarded on the basis of the most economically advantageous tender, the invitation shall be accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in the first subparagraph of Article 53(2).
The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic rerankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced beforehand to a specified value.
Where variants are authorised, a separate formula shall be provided for each variant.
6. Throughout each phase of an electronic auction the contracting authorities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the specifications. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction.
7. Contracting authorities shall close an electronic auction in one or more of the following manners:
(a) in the invitation to take part in the auction they shall indicate the date and time fixed in advance;
(b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before they close the electronic auction;
(c) when the number of phases in the auction, fixed in the invitation to take part in the auction, has been completed.
When the contracting authorities have decided to close an electronic auction in accordance with subparagraph (c), possibly in combination with the arrangements laid down in subparagraph (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction.
8. After closing an electronic auction contracting authorities shall award the contract in accordance with Article 53 on the basis of the results of the electronic auction.
Contracting authorities may not have improper recourse to electronic auctions nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the specification.
***
Scotland
The Scottish Government’s guide on public procurement chops the contents of the provisions into readable chunks for generations accustomed to Power Point or equal presentations.
http://www.scotland.gov.uk/Publications/2006/11/16102303/euguidance#a10
***
Ireland
The Irish Government’s eProcurement network offers policy and guidance documents on a number of issues. One of these documents is the Quick Guide to eAuctions, which explains electronic auctions step by step for contracting authorities. The guide is available here:
http://www.eprocnet.gov.ie/policy-guidance-documents
***
ePractice.eu
In its own words, ePractice.eu is a portal created by the European Commission which offers a new service for the professional community of eGovernment, eInclusion and eHealth practitioners. It is an interactive initiative that empowers its users to discuss and influence open government, policy-making and the way in which public administrations operate and deliver services. ePractice.eu involves practitioners from all 27 Member States, EU-member candidate states and EFTA countries. Practitioners from other countries outside the EU are also welcome to join.
A wealth of information and search options (including ‘electronic auction’) is available at the ePractice.eu site:
http://www.epractice.eu/home
***
By the way
The European Union and the European Economic Area bring together not only politicians, but also civil servants from the different states. Through regular contacts and exchanges of experiences, the EU becomes an important learning environment.
Is it realistic to think that this diffusion of knowledge would take place to the same extent without the European Union?
Ralf Grahn
Tuesday, 16 December 2008
Dynamic purchasing system in EU procurement
A dynamic purchasing system is defined in Article 1.6 of the Procurement Directive 2004/18/EC:
6. A ‘dynamic purchasing system’ is a completely electronic process for making commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting authority, which is limited in duration and open throughout its validity to any economic operator which satisfies the selection criteria and has submitted an indicative tender that complies with the specification.
***
Recital explanations
Recitals 12 and 13 of the Procurement Directive offer the following explanation of a dynamic purchasing system:
(12) Certain new electronic purchasing techniques are continually being developed. Such techniques help to increase competition and streamline public purchasing, particularly in terms of the savings in time and money which their use will allow. Contracting authorities may make use of electronic purchasing techniques, providing such use complies with the rules drawn up under this Directive and the principles of equal treatment, non-discrimination and transparency. To that extent, a tender submitted by a tenderer, in particular where competition has been reopened under a framework agreement or where a dynamic purchasing system is being used, may take the form of that tenderer's electronic catalogue if the latter uses the means of communication chosen by the contracting authority in accordance with Article 42.
***
(13) In view of the rapid expansion of electronic purchasing systems, appropriate rules should now be introduced to enable contracting authorities to take full advantage of the possibilities afforded by these systems. Against this background, it is necessary to define a completely electronic dynamic purchasing system for commonly used purchases, and lay down specific rules for setting up and operating such a system in order to ensure the fair treatment of any economic operator who wishes to take part therein. Any economic operator which submits an indicative tender in accordance with the specification and meets the selection criteria should be allowed to join such a system. This purchasing technique allows the contracting authority, through the establishment of a list of tenderers already selected and the opportunity given to new tenderers to take part, to have a particularly broad range of tenders as a result of the electronic facilities available, and hence to ensure optimum use of public funds through broad competition.
***
Optional dynamics
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and dynamic purchasing systems are among the options for the member states:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Procedure: Dynamic purchasing systems
Article 33 of the Procurement Directive or Classic Directive 2004/18/EC sets out the dynamic purchasing system procedures:
Article 33
Dynamic purchasing systems
1. Member States may provide that contracting authorities may use dynamic purchasing systems.
2. In order to set up a dynamic purchasing system, contracting authorities shall follow the rules of the open procedure in all its phases up to the award of the contracts to be concluded under this system. All the tenderers satisfying the selection criteria and having submitted an indicative tender which complies with the specification and any possible additional documents shall be admitted to the system; indicative tenders may be improved at any time provided that they continue to comply with the specification. With a view to setting up the system and to the award of contracts under that system, contracting authorities shall use solely electronic means in accordance with Article 42(2) to (5).
3. For the purposes of setting up the dynamic purchasing system, contracting authorities shall:
(a) publish a contract notice making it clear that a dynamic purchasing system is involved;
(b) indicate in the specification, amongst other matters, the nature of the purchases envisaged under that system, as well as all the necessary information concerning the purchasing system, the electronic equipment used and the technical connection arrangements and specifications;
(c) offer by electronic means, on publication of the notice and up to the expiry of the system, unrestricted, direct and full access to the specification and to any additional documents and shall indicate in the notice the internet address at which such documents may be consulted.
4. Contracting authorities shall give any economic operator, throughout the entire period of the dynamic purchasing system, the possibility of submitting an indicative tender and of being admitted to the system under the conditions referred to in paragraph 2. They shall complete evaluation within a maximum of 15 days from the date of submission of the indicative tender. However, they may extend the evaluation period provided that no invitation to tender is issued in the meantime.
The contracting authority shall inform the tenderer referred to in the first subparagraph at the earliest possible opportunity of its admittance to the dynamic purchasing system or of the rejection of its indicative tender.
5. Each specific contract must be the subject of an invitation to tender. Before issuing the invitation to tender, contracting authorities shall publish a simplified contract notice inviting all interested economic operators to submit an indicative tender, in accordance with paragraph 4, within a time limit that may not be less than 15 days from the date on which the simplified notice was sent. Contracting authorities may not proceed with tendering until they have completed evaluation of all the indicative tenders received by that deadline.
6. Contracting authorities shall invite all tenderers admitted to the system to submit a tender for each specific contract to be awarded under the system. To that end they shall set a time limit for the submission of tenders.
They shall award the contract to the tenderer which submitted the best tender on the basis of the award criteria set out in the contract notice for the establishment of the dynamic purchasing system. Those criteria may, if appropriate, be formulated more precisely in the invitation referred to in the first subparagraph.
7. A dynamic purchasing system may not last for more than four years, except in duly justified exceptional cases.
Contracting authorities may not resort to this system to prevent, restrict or distort competition.
No charges may be billed to the interested economic operators or to parties to the system.
***
Guide
The same ground is covered, but chopped into a reader friendly format by the UK Office of Government Commerce (OGC) guide Dynamic Purchasing Systems – OGC Guidance on Dynamic Purchasing Systems in the New Procurement Regulations (updated version March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Dynamic_Purchasing_Systems.pdf
***
eProcurement
From dynamic purchasing systems there is only a short step to electronic procurement. If you are interested in e-procurement in the European Union, you could start your tour by looking at the IDABC web page 2010: The e-procurement target for Europe:
http://ec.europa.eu/idabc/en/document/5467/5584
Ralf Grahn
6. A ‘dynamic purchasing system’ is a completely electronic process for making commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting authority, which is limited in duration and open throughout its validity to any economic operator which satisfies the selection criteria and has submitted an indicative tender that complies with the specification.
***
Recital explanations
Recitals 12 and 13 of the Procurement Directive offer the following explanation of a dynamic purchasing system:
(12) Certain new electronic purchasing techniques are continually being developed. Such techniques help to increase competition and streamline public purchasing, particularly in terms of the savings in time and money which their use will allow. Contracting authorities may make use of electronic purchasing techniques, providing such use complies with the rules drawn up under this Directive and the principles of equal treatment, non-discrimination and transparency. To that extent, a tender submitted by a tenderer, in particular where competition has been reopened under a framework agreement or where a dynamic purchasing system is being used, may take the form of that tenderer's electronic catalogue if the latter uses the means of communication chosen by the contracting authority in accordance with Article 42.
***
(13) In view of the rapid expansion of electronic purchasing systems, appropriate rules should now be introduced to enable contracting authorities to take full advantage of the possibilities afforded by these systems. Against this background, it is necessary to define a completely electronic dynamic purchasing system for commonly used purchases, and lay down specific rules for setting up and operating such a system in order to ensure the fair treatment of any economic operator who wishes to take part therein. Any economic operator which submits an indicative tender in accordance with the specification and meets the selection criteria should be allowed to join such a system. This purchasing technique allows the contracting authority, through the establishment of a list of tenderers already selected and the opportunity given to new tenderers to take part, to have a particularly broad range of tenders as a result of the electronic facilities available, and hence to ensure optimum use of public funds through broad competition.
***
Optional dynamics
Recital 16 of the Procurement Directive reminds us that the Community procurement legislation is harmonised, not unified. National differences and choices exist, and dynamic purchasing systems are among the options for the member states:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Procedure: Dynamic purchasing systems
Article 33 of the Procurement Directive or Classic Directive 2004/18/EC sets out the dynamic purchasing system procedures:
Article 33
Dynamic purchasing systems
1. Member States may provide that contracting authorities may use dynamic purchasing systems.
2. In order to set up a dynamic purchasing system, contracting authorities shall follow the rules of the open procedure in all its phases up to the award of the contracts to be concluded under this system. All the tenderers satisfying the selection criteria and having submitted an indicative tender which complies with the specification and any possible additional documents shall be admitted to the system; indicative tenders may be improved at any time provided that they continue to comply with the specification. With a view to setting up the system and to the award of contracts under that system, contracting authorities shall use solely electronic means in accordance with Article 42(2) to (5).
3. For the purposes of setting up the dynamic purchasing system, contracting authorities shall:
(a) publish a contract notice making it clear that a dynamic purchasing system is involved;
(b) indicate in the specification, amongst other matters, the nature of the purchases envisaged under that system, as well as all the necessary information concerning the purchasing system, the electronic equipment used and the technical connection arrangements and specifications;
(c) offer by electronic means, on publication of the notice and up to the expiry of the system, unrestricted, direct and full access to the specification and to any additional documents and shall indicate in the notice the internet address at which such documents may be consulted.
4. Contracting authorities shall give any economic operator, throughout the entire period of the dynamic purchasing system, the possibility of submitting an indicative tender and of being admitted to the system under the conditions referred to in paragraph 2. They shall complete evaluation within a maximum of 15 days from the date of submission of the indicative tender. However, they may extend the evaluation period provided that no invitation to tender is issued in the meantime.
The contracting authority shall inform the tenderer referred to in the first subparagraph at the earliest possible opportunity of its admittance to the dynamic purchasing system or of the rejection of its indicative tender.
5. Each specific contract must be the subject of an invitation to tender. Before issuing the invitation to tender, contracting authorities shall publish a simplified contract notice inviting all interested economic operators to submit an indicative tender, in accordance with paragraph 4, within a time limit that may not be less than 15 days from the date on which the simplified notice was sent. Contracting authorities may not proceed with tendering until they have completed evaluation of all the indicative tenders received by that deadline.
6. Contracting authorities shall invite all tenderers admitted to the system to submit a tender for each specific contract to be awarded under the system. To that end they shall set a time limit for the submission of tenders.
They shall award the contract to the tenderer which submitted the best tender on the basis of the award criteria set out in the contract notice for the establishment of the dynamic purchasing system. Those criteria may, if appropriate, be formulated more precisely in the invitation referred to in the first subparagraph.
7. A dynamic purchasing system may not last for more than four years, except in duly justified exceptional cases.
Contracting authorities may not resort to this system to prevent, restrict or distort competition.
No charges may be billed to the interested economic operators or to parties to the system.
***
Guide
The same ground is covered, but chopped into a reader friendly format by the UK Office of Government Commerce (OGC) guide Dynamic Purchasing Systems – OGC Guidance on Dynamic Purchasing Systems in the New Procurement Regulations (updated version March 2008):
http://www.ogc.gov.uk/documents/OGC_Guidance_on_Dynamic_Purchasing_Systems.pdf
***
eProcurement
From dynamic purchasing systems there is only a short step to electronic procurement. If you are interested in e-procurement in the European Union, you could start your tour by looking at the IDABC web page 2010: The e-procurement target for Europe:
http://ec.europa.eu/idabc/en/document/5467/5584
Ralf Grahn
Monday, 15 December 2008
EU procurement: Framework agreement
Framework agreement is one of the important terms defined at the beginning of the Procurement Directive 2004/18/EC.
***
Definition: Framework agreement
Article 1.5 of the Procurement Directive offers the following definition of a framework agreement:
5. A ‘framework agreement’ is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.
***
Recital 11
Recital 11 presents some important features of a framework agreement:
(11) A Community definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities.
***
Recital 16
Recital 16 of the Procurement Directive serves as a reminder that the Community procurement legislation is harmonised, not unified. National differences and choices exist:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Article 32
The procedures are set out in more detail in the Procurement Directive, with framework agreements in Article 32:
Article 32
Framework agreements
1. Member States may provide that contracting authorities may conclude framework agreements.
2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53.
Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.
When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.
The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.
Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.
3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.
For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.
4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.
Contracts based on framework agreements concluded with several economic operators may be awarded either:
— by application of the terms laid down in the framework agreement without reopening competition, or
— where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:
(a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;
(b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders;
(c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;
(d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.
***
Detailed explanations
The Commission’s Directorate-General Internal market and services presents ten pages of detailed explanations in its Explanatory note – Framework agreements – Classic Directive [= Procurement Directive].
Ralf Grahn
***
Definition: Framework agreement
Article 1.5 of the Procurement Directive offers the following definition of a framework agreement:
5. A ‘framework agreement’ is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.
***
Recital 11
Recital 11 presents some important features of a framework agreement:
(11) A Community definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities.
***
Recital 16
Recital 16 of the Procurement Directive serves as a reminder that the Community procurement legislation is harmonised, not unified. National differences and choices exist:
(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.
***
Article 32
The procedures are set out in more detail in the Procurement Directive, with framework agreements in Article 32:
Article 32
Framework agreements
1. Member States may provide that contracting authorities may conclude framework agreements.
2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53.
Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.
When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.
The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.
Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.
3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.
For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.
4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.
Contracts based on framework agreements concluded with several economic operators may be awarded either:
— by application of the terms laid down in the framework agreement without reopening competition, or
— where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:
(a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;
(b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders;
(c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;
(d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.
***
Detailed explanations
The Commission’s Directorate-General Internal market and services presents ten pages of detailed explanations in its Explanatory note – Framework agreements – Classic Directive [= Procurement Directive].
Ralf Grahn
Thursday, 30 October 2008
Public procurement in Sweden
Internal market rules are applied to public procurement in the EU member states through European Community directives, transposed into national law.
But how single is the Single Market, if you are a European or international firm and you want to do business in one of the member states of the European Union?
You may even want to supply goods or services to central, regional or local government.
We look at the procurement legislation in Sweden, with a view to the information available to foreign suppliers in English.
***
The European Community directives are the foundation, and naturally they are available in English.
The so called Classic Directive:
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 30.4.2004 L 134/114), since amended. This is a link to the consolidated version:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0018:20080101:EN:PDF
The so called Utilities Directive:
Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 30.4.2004 L 134/1) has been amended a few times, so this is a link to the consolidated version:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0017:20080101:EN:PDF
***
Preparing transposition in Sweden
When the Swedish Government got around to transposing the EC Directives, it presented a massive Bill to the Parliament. The main proposal runs to 570 pages:
Regeringens proposition 2006/07:128 Ny lagstiftning om offentlig upphandling och upphandling inom områdena vatten, energi, transporter och posttjänster:
http://www.regeringen.se/content/1/c6/08/43/76/9cb61697.pdf
The Government Bill was accompanied by two sets of Annexes.
Annexes 1 – 6 (373 pages):
http://www.regeringen.se/content/1/c6/08/43/76/c6856bc3.pdf
Annexes 7 – 15 (280 pages):
http://www.regeringen.se/content/1/c6/08/43/76/1aa64eec.pdf
***
Two statutes
The new Swedish procurement legislation consists of two main Acts, in force from 1 January 2008.
Lag om offentlig upphandling (Swedish Public Procurements Act)
The Act transposing the Classic Directive 2004/18/EC is called Lag (2007:1091) om offentlig upphandling (abbreviated LOU)
***
Försörjningslagen
Lag (2007:1092) om områdena vatten, energi, transporter och posttjänster (colloquially Försörjningslagen) transposes the Utilities Directive 2004/17/EC.
Current Swedish legislation can be accessed through (in Swedish):
www.lagrummet.se
***
Translations?
The Swedish Government offers some unofficial translations of legal acts on a web page called Swedish statutes in translation, with links to a dozen legal areas, but I was unable to find any translation of the procurement acts there:
http://www.sweden.gov.se/sb/d/3288
***
Swedish Competition Authority
The Swedish Competition Authority (Konkurrensverket) is responsible for improving competition and, since 1 September 2007, for supervising public procurement. It offers some basic information, news and publications in English:
http://www.kkv.se/default____218.aspx
Last year, the Competition Authority published The Strategy of the Swedish Competition Authority and its Direction for Procurement Issues (30 pages), where it set out its main goals to enhance competition in public procurement:
http://www.kkv.se/upload/Filer/ENG/Publications/strategidok_eng.pdf
The main public procurement aims of the Swedish Competition Authority are the following:
procuring entities being aware of their options regarding procurement and that they avoid violating the Swedish Public Procurements Act,
the competitive sector of the Swedish economy grows and the competitive solutions are applied to an increased extent in the public sector,
suppliers have the opportunity and want to take part in procurements,
Swedish consumers, procuring entities and suppliers know about the significance of competition for a varied selection goods and services of good quality at reasonable prices.
By the way, there is an unofficial Swedish translation of the Swedish Competition Act (but I found no translation of the procurement acts):
http://www.kkv.se/upload/Filer/ENG/Publications/compact_eng.pdf
***
State procurement
The Swedish state coordinates its purchasing activities. For some information in English, go to Statlig inköpssammordning, Coordination of government procurement:
http://www.avropa.nu/templates/Page____9.aspx
There is a short presentation of the coordinating body, the Swedish Financial Management Aurhority (Ekonomistyrningsverket) on:
http://www.avropa.nu/upload/Dokument/Yttranden,%20rapporter,%20pm/In%20English.pdf
***
Sveriges offentliga inköpare SOI
Sveriges Offentliga Inköpare SOI is an association for about 1,100 purchasing professionals, but the information is available only in Swedish:
http://www.soi.se/
***
Swedish National Board of Trade
Kommerskollegium (the Swedish National Board of Trade) is the Swedish governmental agency dealing with foreign trade and trade policy. Its main areas of activity are related to the European Community:
The Internal Market
The Customs Union
External Trade policy
The web pages offer a fair amount of basic information in English. For more, go to:
http://www.kommers.se/templates/Standard____3127.aspx
The National Board of Trade is a partner in the SOLVIT network.
***
Green public procurement
Three public procurement themes are the darlings of politicians. One is the participation of small and medium sized enterprises (SMEs), the second is e-procurement and the third one is green public procurement.
Sweden would not be Sweden without green procurement cropping up. Naturvårdsverket (the Swedish Environmental Protection Agency) offers a point of departure on its page More and more public bodies in Sweden have guidelines on green procurement:
http://www.naturvardsverket.se/en/In-English/Menu/Climate-change/Swedish-News-on-Climate-Change/More-and-more-public-bodies-in-Sweden-have-guidelines-on-green-procurement/
***
Upphandling24
Upphandling24 is a commercial website in Swedish, dedicated to public procurement news and information:
http://upphandling24.idg.se/
***
Confederation of Swedish Enterprise
Svenskt Näringsliv (the Confederation of Swedish Enterprise) lobbies for more open public markets. The information is in Swedish:
http://www.svensktnaringsliv.se/fragor/offentlig_upphandling/article15121.ece
***
Local Authorities and Regions
For the members of Sveriges Kommuner och Landsting (the Swedish Association of Local Authorities and Regions, SALAR) the complicated procurement legislation is a constant headache, which results in demands for simplification and continuous monitoring of new proposals and decisions (in Swedish):
http://www.skl.se
***
Freedom of choice
The Swedish Competition Authority has a page in English ‘New rules pave the way for freedom of choice’ on a new government proposal. The law, due to come into force on 1 January 2009, regulates how municipalities and county councils are to proceed if they decide to introduce a freedom-of-choice system in their care services:
http://www.konkurrensverket.se/t/NewsPage____3987.aspx
The Government Bill, Regeringens proposition 2008/09:29 Lag om valfrihetssystem, is available in Swedish:
http://www.regeringen.se/content/1/c6/11/25/56/e7303623.pdf
***
It is hard to penetrate new markets, especially outside one’s own home country, and public procurement adds its own twist.
The language barriers within the internal market are formidable, and in Sweden the available official information in English can be described as basic. But generally Swedish officials are helpful and English is almost a second language to them, so once you get the ball rolling, you have every chance of success.
Ralf Grahn
But how single is the Single Market, if you are a European or international firm and you want to do business in one of the member states of the European Union?
You may even want to supply goods or services to central, regional or local government.
We look at the procurement legislation in Sweden, with a view to the information available to foreign suppliers in English.
***
The European Community directives are the foundation, and naturally they are available in English.
The so called Classic Directive:
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 30.4.2004 L 134/114), since amended. This is a link to the consolidated version:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0018:20080101:EN:PDF
The so called Utilities Directive:
Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 30.4.2004 L 134/1) has been amended a few times, so this is a link to the consolidated version:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0017:20080101:EN:PDF
***
Preparing transposition in Sweden
When the Swedish Government got around to transposing the EC Directives, it presented a massive Bill to the Parliament. The main proposal runs to 570 pages:
Regeringens proposition 2006/07:128 Ny lagstiftning om offentlig upphandling och upphandling inom områdena vatten, energi, transporter och posttjänster:
http://www.regeringen.se/content/1/c6/08/43/76/9cb61697.pdf
The Government Bill was accompanied by two sets of Annexes.
Annexes 1 – 6 (373 pages):
http://www.regeringen.se/content/1/c6/08/43/76/c6856bc3.pdf
Annexes 7 – 15 (280 pages):
http://www.regeringen.se/content/1/c6/08/43/76/1aa64eec.pdf
***
Two statutes
The new Swedish procurement legislation consists of two main Acts, in force from 1 January 2008.
Lag om offentlig upphandling (Swedish Public Procurements Act)
The Act transposing the Classic Directive 2004/18/EC is called Lag (2007:1091) om offentlig upphandling (abbreviated LOU)
***
Försörjningslagen
Lag (2007:1092) om områdena vatten, energi, transporter och posttjänster (colloquially Försörjningslagen) transposes the Utilities Directive 2004/17/EC.
Current Swedish legislation can be accessed through (in Swedish):
www.lagrummet.se
***
Translations?
The Swedish Government offers some unofficial translations of legal acts on a web page called Swedish statutes in translation, with links to a dozen legal areas, but I was unable to find any translation of the procurement acts there:
http://www.sweden.gov.se/sb/d/3288
***
Swedish Competition Authority
The Swedish Competition Authority (Konkurrensverket) is responsible for improving competition and, since 1 September 2007, for supervising public procurement. It offers some basic information, news and publications in English:
http://www.kkv.se/default____218.aspx
Last year, the Competition Authority published The Strategy of the Swedish Competition Authority and its Direction for Procurement Issues (30 pages), where it set out its main goals to enhance competition in public procurement:
http://www.kkv.se/upload/Filer/ENG/Publications/strategidok_eng.pdf
The main public procurement aims of the Swedish Competition Authority are the following:
procuring entities being aware of their options regarding procurement and that they avoid violating the Swedish Public Procurements Act,
the competitive sector of the Swedish economy grows and the competitive solutions are applied to an increased extent in the public sector,
suppliers have the opportunity and want to take part in procurements,
Swedish consumers, procuring entities and suppliers know about the significance of competition for a varied selection goods and services of good quality at reasonable prices.
By the way, there is an unofficial Swedish translation of the Swedish Competition Act (but I found no translation of the procurement acts):
http://www.kkv.se/upload/Filer/ENG/Publications/compact_eng.pdf
***
State procurement
The Swedish state coordinates its purchasing activities. For some information in English, go to Statlig inköpssammordning, Coordination of government procurement:
http://www.avropa.nu/templates/Page____9.aspx
There is a short presentation of the coordinating body, the Swedish Financial Management Aurhority (Ekonomistyrningsverket) on:
http://www.avropa.nu/upload/Dokument/Yttranden,%20rapporter,%20pm/In%20English.pdf
***
Sveriges offentliga inköpare SOI
Sveriges Offentliga Inköpare SOI is an association for about 1,100 purchasing professionals, but the information is available only in Swedish:
http://www.soi.se/
***
Swedish National Board of Trade
Kommerskollegium (the Swedish National Board of Trade) is the Swedish governmental agency dealing with foreign trade and trade policy. Its main areas of activity are related to the European Community:
The Internal Market
The Customs Union
External Trade policy
The web pages offer a fair amount of basic information in English. For more, go to:
http://www.kommers.se/templates/Standard____3127.aspx
The National Board of Trade is a partner in the SOLVIT network.
***
Green public procurement
Three public procurement themes are the darlings of politicians. One is the participation of small and medium sized enterprises (SMEs), the second is e-procurement and the third one is green public procurement.
Sweden would not be Sweden without green procurement cropping up. Naturvårdsverket (the Swedish Environmental Protection Agency) offers a point of departure on its page More and more public bodies in Sweden have guidelines on green procurement:
http://www.naturvardsverket.se/en/In-English/Menu/Climate-change/Swedish-News-on-Climate-Change/More-and-more-public-bodies-in-Sweden-have-guidelines-on-green-procurement/
***
Upphandling24
Upphandling24 is a commercial website in Swedish, dedicated to public procurement news and information:
http://upphandling24.idg.se/
***
Confederation of Swedish Enterprise
Svenskt Näringsliv (the Confederation of Swedish Enterprise) lobbies for more open public markets. The information is in Swedish:
http://www.svensktnaringsliv.se/fragor/offentlig_upphandling/article15121.ece
***
Local Authorities and Regions
For the members of Sveriges Kommuner och Landsting (the Swedish Association of Local Authorities and Regions, SALAR) the complicated procurement legislation is a constant headache, which results in demands for simplification and continuous monitoring of new proposals and decisions (in Swedish):
http://www.skl.se
***
Freedom of choice
The Swedish Competition Authority has a page in English ‘New rules pave the way for freedom of choice’ on a new government proposal. The law, due to come into force on 1 January 2009, regulates how municipalities and county councils are to proceed if they decide to introduce a freedom-of-choice system in their care services:
http://www.konkurrensverket.se/t/NewsPage____3987.aspx
The Government Bill, Regeringens proposition 2008/09:29 Lag om valfrihetssystem, is available in Swedish:
http://www.regeringen.se/content/1/c6/11/25/56/e7303623.pdf
***
It is hard to penetrate new markets, especially outside one’s own home country, and public procurement adds its own twist.
The language barriers within the internal market are formidable, and in Sweden the available official information in English can be described as basic. But generally Swedish officials are helpful and English is almost a second language to them, so once you get the ball rolling, you have every chance of success.
Ralf Grahn
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