Regulaton & Policy
Law Firm Dentons Update on Implementation of EU Directives

It is always good to find a genuinely useful document hidden away on the Internet, and that certainly applies to today’s discovery. Law firm Dentons has published a guide to the legal systems and implementation of the 2014 public procurement directives, across 10 European countries – “A few questions about Implementation of the EU public procurement directives”.

Dentons is the largest law firm in the world by number of lawyers following a merger with a major Chinese law firm in 2015. The firm has 125 locations serving over 50 countries; based on a quick look at their website, it looks like the 10 countries chosen for this report are based on the countries where the firm has an office; the lack of input around the Nordic countries is perhaps the most obvious gap. But nonetheless, the aim of the report is admirable:

“To give you a clear picture of the various public procurement markets in the EU, we provide brief overviews of the legal systems in the Czech Republic, France, Germany, Hungary, Italy, Poland, Romania, Slovakia, Spain and England, Wales & Northern Ireland. For each country, we answer four questions:

– Have the said Directives been implemented into the local legal system and if so, when?

– Which pieces of legislation regulate public procurement in those countries?

– What thresholds trigger public procurement procedures and where to look for invitations to tender, both in EU tenders and those ‘below the EU thresholds’?

– What legal protection can contractors expect in public procurement procedures?”

The choice of those four questions suggests that the central target audience for the document is suppliers and potential suppliers to the public sector, who will be interested in aspects such as the “where to look for tenders” question. But it is also a generally fascinating and useful read for procurement practitioners, policy makers and “geeks ” like us.

The different countries as we discussed here are at different stages in terms of transposition of the directives; some like the UK and France have completed their work, others such as Poland are apparently very advanced whist others such as Romania has not implemented the directives but “Parliament approved on 10 May 2016 four new laws regulating the public procurement framework in Romania and transposing the EU Directives …”

It would be good to understand what exactly this means in cases like this – will there be a full transposition in time, or does Romania think it has now done what is necessary with the four new laws? A little more commentary would have been interesting, but to be fair to Dentons, the whole report might have become very lengthy if every detail had been expanded into a full discussion! In other cases, such as Spain, politics is perhaps getting in the way of new legislation, as the country faces national elections this summer.

It is also interesting to understand other aspects of national policy, such as the approach to complaints and challenges. For instance, in the Czech Republic, suppliers can request a formal review of a contract decision from the Office for Protection of Competition.

The deadline for filing such motion is 10 days from the supplier’s receipt of the awarding authority’s negative decision on its objections. A supplier filing this motion has to make a deposit in the amount of 1% of the tender bid price – with the minimum deposit being the CZK equivalent of €1,850 and the maximum being €370,000″.

Do such fees represent a barrier to firms who might wish to challenge? Or are they a sensible way to stop frivolous challenges? We can see both sides of the argument on that one!

One slightly odd factor in terms of the report is the length of each country’s entry. Italy for instance runs to less than one page, whereas France requires almost three. It is not clear whether this reflects the complexity of each country’s legislation or merely the enthusiasm or depth of knowledge of the Denton’s office (or perhaps it might be just the conciseness of the author for each country!)

Italy by the way has more than 5,000 appeals a year against procurement decisions – that is probably the maximum number for any country, we suspect. Anyway, many thanks to Dentons for putting this together, you can download a copy here, and it does not even require registration.