17 January 2014

On 15 January, major reforms of the European Union's public procurement law were adopted by the European Parliament. This new package will replace the existing Public Sector Directive (2004/18/EC), the Utilities Directive (2004/17/EC) and introduce new rules on the award of concession contracts.

Much of the new rules codifies judgments of the Court of Justice of the EU since the 2004 directives came into force. However, authorities and bidders will also be confronted by a range of new measures including:

  • wider scope to exclude potential candidates, including for poor performance under past contracts
  • self-certification of compliance with prequalification requirements
  • more opportunities for contracting authorities to use the relatively flexible competitive procedure with negotiation
  • the introduction of a new procedure called Innovation Partnerships which allows authorities to procure innovative solutions which are not yet available on the market
  • utilities will be permitted to use competitive dialogue for the first time
  • measures which encourage the division of larger contracts into lots
  • the introduction of a comprehensive set of rules on permissible changes to existing contracts
  • the abolition of the 'Part B' category of services and its replacement with a much narrower 'light-touch' regime.

The rules on public procurement remedies will not change. Therefore, familiar features of procurement litigation such as the 10 day minimum standstill period between the end of evaluation and contract execution, and the 30 day window to commence litigation, are unaffected.

The reforms will enter into force in early March, from which time EU Member States will have a period two years to align their national legislation with the new directives. In July of last year, the Cabinet Office indicated its intention to achieve a speedy transposition of the new rules into law in the UK, as the Government is hopeful that the more flexible award procedures will improve the efficiency of public sector purchasing. The latest indications are that the new legislation will be enacted here by the early part of 2015.

Brendan Ryan is a member of our cross-disciplinary Public Procurement and State Aid team led by John Houlden.

Key contact

John Houlden

John Houlden Partner

  • Head of Public Sector
  • Head of Procurement and Subsidy Control
  • Projects

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