Public Procurement 

Every year, over 250 000 public authorities in the EU spend around 14% of European GDP on the purchase of services, works and supplies. In many sectors such as energy, transport, waste management, social protection and the provision of health or education services, public authorities are the principal buyers.

This page does not explain the public procurement but focuses on the importance of the standardization for the purposes of open, competitive procurement.

Transparent procedures alone are not sufficient to ensure the opening of procurement markets if the technical specifications used in the purchasing procedures are in practice discriminatory. Therefore, the use of standards plays a crucial role in the effectiveness of any measures for opening-up public procurement markets and in the realization of consequent economies in the market place.

It is important to note that from 18 April 2016, the old directives on public procurement will be replaced by:

1 BACKGROUND

Public purchasers have historically tended to rely upon local, or at least, national suppliers. With increasing frequency over the years, they have therefore followed the trend of increasing use of national standards, when available and appropriate (standards exist and their quality meets the expectations of public purchasers), for expressing the details of their technical requirements in specifications and contracts. In this, they have doubtless been encouraged, to a greater or lesser degree, by their relevant national authorities and the industry concerned.

It is a principle of the European Community's "new approach" on technical harmonization and standards that the use of standards is one way to show compliance with the "essential requirements" of European Directives and Regulations. This way to comply to the law, is and should remain voluntary.

However, it is also a principle of the European Community's evolving procurement rules, designed to bring about the Single Market, that contracting bodies will be obliged to define their technical specifications by reference to European Standards (EN) (when existing).

Tender documents must enable products conforming to other national or international standards recognized in a Member State and offering equivalent guarantees of safety and reliability to be accepted on an equal footing.

This general rule applies irrespective of Community legislation and applies to all public bodies and bodies for whose acts the State is responsible in Community law.

These include local authorities, agencies and other bodies where public authorities have some measure of financial or decision-making control, whether formally or otherwise.

The new Public Procurement Directives aim at public procurement procedures helping public purchasers to implement environmental policies, as well as those governing social integration and innovation. In this way public procurement is becoming a policy strategy instrument and could be a driver for new developments.

The new rules also aim at reducing administrative burden, making it easier for small and medium-sized enterprises (SMEs) to participate in public tenders, extend the use of e-procurement tools (e.g. e-based European Single Procurement Document), simplified arrangements for social, cultural and health services, etc.

Moreover there is a particular focus on avoidance of conflicts of interest, favouritism and corruption.

2 PUBLIC PROCUREMENT DIRECTIVES AND TECHNICAL SPECIFICATIONS

2.1  The Public Procurement Directives refer to:

  • the specific obligations of the public contracting entities;
  • the various procedures (open, restricted, negotiated) that must be followed to award contracts (supply, civil engineering works, services);
  • the establishment in the European Union (EU) of a system of legal remedies in order to examine appeals of the contractors.

2.2  Framing of the term "public sector" in the Public Procurement Directives.

Public procurement within the meaning of the Public Procurement Directives is the acquisition by means of a public contract of works, supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose.

Those contracting authorities are:

  • the State, regional or local, authorities,
  • associations formed by one or more such authorities
  • bodies governed by public law

Specific rules apply to entities operating in the water, energy, transport and postal services sectors, where public contracting authorities may exercise directly or indirectly a dominant influence by virtue of their ownership, their financial participation, or the (legal) governance of the sector.

2.3  Use of standards:

The technical specifications used in public procurement shall be formulated in one of the following ways (separate or combined):

  1. in terms of performance or functional requirements, including environmental characteristics, provided that the parameters are sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting authorities to award the contract;
  2. by reference to in order of preference. 
  •  national standards implementing ENs
  • European Technical Assessments
  • common technical specifications ((specifications drawn up by a procedure recognised by the Member States for uniform application in the Member States and published in the OJEU)
  • international standards
  • other technical reference systems established by the ESOs
  • national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the supplies;

Always allowing for the use of an equivalent reference;

When a contracting authority chooses to formulate its technical specifications through option a, it shall not reject a tender that complies on the basis of option b, and vice versa.

This underlines the importance of the role ENs have in the process

2.4  When an EN is available, a derogation from the obligation to refer to this EN is permitted only if:

      • the innovative nature of the project makes the use of products covered by the EN not appropriate;
      • the EN does not include provisions* for establishing conformity, or if technical means to do this do not exist;
      • using the EN, the contracting authority would be obliged to:

- buy products incompatible with equipment already in use;
- pay a disproportionate cost; or
- encounter disproportionate technical difficulties (but only as a part of clearly defined strategy with a view to change-over, within a given period, to ENs).

* test methods by which conformity of products with each applicable requirement may be verified. The requirement presupposes that ENs are written in such a way as to leave open to purchasers' decisions concerning certification and Quality Assurance processes.

2016-06-16