Regulaton & Policy
Porto e-Public Procurement Conference – Transposition of the Directives in EU Countries (part 2)

(Picture; Palácio da Bolsa, Porto)

At the recent Porto e-public procurement conference, we had a very useful and intense session where 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. In part 1, we featured Germany, Portugal and Italy. Today, three more countries.

Finland

Two working groups submitted a draft of the new legislation on May 13th. Some 60 experts from various organisations have been involved in the work to develop the draft over a 40-day period, and the aim is for legislation to come into force in April /May 2016. It will be submitted to Parliament for debate and approval in the autumn anyway.

There will be no regulation for below threshold contracts but there will be recommendations for good practice. Increasing the share of spend for SMEs is an objective of the law – contracting authorities “should divide into lots” – but the law is likely to be pretty much as per the directives. There will be encouragement for innovation, through use of loose and output based specifications and perhaps longer partnerships. Contract notices should be published via a central portal (hankintailmoitukset.fn). Now there is an easy to remember url …

France

France has one of the highest proportion of SMEs winning public procurement contracts in the EU and their influence – along with that of the huge industrial giants – can be seen in the discussion about transposition. The first “decree” was published in October 2014, and public consultation has now finished. There is an expectation that the new laws will come into operation in September this year.

Some of the key points will include the two times contract value “rule” to excluding suppliers on a turnover basis will apply to all contracts. There will be guidance on innovation partnerships and how to use and promote IP (intellectual property). The French government sees the opportunity to promote and develop industry through these partnerships. It is less clear what the position is likely to be on electronic communications and procurement.

For contracts between 15 and 90K Euros (sub-OJEU) there are quite well defined processes as an intermediate procedure – but “contract opportunities should be made public, but that does not imply they must be published.” No, I’m not sure I understand that either!

UK

The UK is now no longer a single entity. Scotland is running on the Public Contracts (Scotland) Regs of 2012 and that country is preparing very different laws for the new directives compared to England and Wales, which implemented the new Public Contracts Regulations 2015 in February. England has taken a “cut and paste” approach to the directives: “you can only have two out of good, fast and cheap” and the speed at which the new regulations came in suggest they may not be “good.”

However the structure of the regulations and emphasis has been changed, but “mistakes have been introduced too” – we may see further changes to the law because of the haste with which they were introduced. That haste was officially so public procurers could start to take advantage of the new flexibility more quickly but it was probably really because the government wanted to get them in place before the elections in May. “No-one knows how to run innovation partnerships, competitive negotiation or pre-market engagement” and there is no direction in the regulations. Contracting authorities only had 20 days to prepare for the new regulations coming into force, and there is no guidance yet – it is promised but will be shorter than previous guidance. (Editor’s note – this was very much the previous Minister’s approach, but as Francis Maude has been replaced by Matt Hancock, we might see some different approaches emerging).

Previously, the UK had no laws on below threshold procurement, but there are now some issues covered in the new Small Business Act, including advertising all contracts over £10K on Contracts Finder and prompt payments through the supply chain.

Look out for part 3 of our review of the transposition process shortly with Netherlands and Hungary, and an overall round-up.