At the recent e-public procurement conference in Porto, we had a very useful and intense session where nine different speakers representing different countries presented an update of how their country is proceeding in terms of transposing the EU procurement directives into national legislation.
The speakers were a mix of lawyers, academics, and practitioners, not all on the inside of the transposition process, but all with a good views of what is going on, and it was a very interesting and useful session. Over the next few days, and in three installments, we’ll give you an update of the progress being made.
A working group is advising the government, which has decided to review the existing code of 2008 rather than developing new legislation. Portugal already has mandatory eProcurement so is ahead of the game there. A proposal will go to the government very soon, then there will be public consultation. Key issues and challenges will be handling life-cycle costs; innovation; the issues around dividing into lots; and using past performance as a reason to exclude bidders.
German procurement law is in two parts. Below the OJEU threshold it is based on budget law; above, it is competition law. it is also complicated because Germany has different laws for sectors e.g. defence, utilities, and rules for works, supplies, and “independent professional services” (!) There are some moves to simplify this a little but Germany is “only going to do what has to be done by 2016”. There will be no big new procurement reform in the nest year or two unfortunately.
There are also laws at Länder (regional) level – for instance, that is where eProcurement law rests. There is a common “cover sheet process” for physical signature alongside eProcurement – will this be allowed as “eProcurement” under the directives? (Editor’s comment – for the leading economy in Europe, I must say public procurement sounds very confusing – in fact, a nightmare – in Germany! Perhaps that is why the country has a very low percentage of public sector spend actually advertised openly under OJEU processes)?
Parliament is in the process of approving its own directives on “how to write the new law”. The text has been approved by the upper house and is going to the lower soon. There will be a “unified code” including the concessions area. There is reference to stability because of past problems – Italy introduced 46 new laws under the previous directives! But already, adjustments are creeping in – “food delivery needs a specific law on its own”. There are some strange requirements as well, for example, you can advertise tenders on-line but must also publish the advert in two national and two local newspaper. And who will pay for this – the winner of the tender! (Editor’s comment – Quite extraordinary and frankly not very sensible, we would judge).
The anti-corruption authorities will have the power to check the quality of the competence of procuring entities – this is new. But there is no money granted to make this happen. There is to be greater centralisation – 35 bodies will conduct almost all procurement, based around central departments, regions and large cities. There has been a lot of lobbying from large firms which seems to have worked. Smaller firms (SMEs) are worried by this, and there is little mention of SME and local issues – only reference is to stop “artificial aggregation”. There are some points around social clauses and stability of workforce (TUPE type arrangements). One interesting point – it will be mandatory to say which parts of contracts will be sub-contracted and to whom, at bidding stage.
(Editor’s comment – Italy appears to be following what might be called an “interesting” approach to the directives, making some changes that may prove to be disastrous and some that are quite innovative. This will certainly be a country to keep our eyes on as the new legislation starts being used, in terms of learning what works and what does not).