The rules for European public procurement are changing, and also for more substantial national ones (from 5 million upwards). Furthermore, still on the subject of tenders, the proposal to plant some "poles" in defense of companies made in the EU continues. And for the first time a form of European regulation is established for concession contracts. This was decided by the European Parliament at the end of this week's plenary session in Strasbourg with the approval of a "package" of measures which, although staggered over time, are destined to significantly modify, in terms of transparency, efficiency and simplification, the sector of public procurement and concessions of goods and services.
Changing the rules governing procurement is one of the priorities listed in the Single Market Act I (the Single Market Act No. 1) to unlock the development potential of the European economy and is also one of the key components of the strategy EU 2020 for smart, sustainable and inclusive growth, i.e. the goal that the European Union has set itself to achieve by the end of the current decade.
Furthermore, the observation of the fact that in Europe the public administrations allocate approximately 18% of the gross domestic product of the entire EU to the construction of public works and the purchase of goods and services - it is underlined in the Palaces of Brussels and Strasbourg - leads to consider public procurement a powerful lever to achieve major economic and social objectives for five hundred million European citizens. And for this reason the criteria and methods for awarding contracts - add the insiders of the two capitals of the European Union - must be absolutely transparent, ensure equal treatment for all those who participate in the tenders and ensure that taxpayers' money is used as effectively as possible.
The new rules are based, they explain to the European Parliament, on the principle of the "most economically advantageous tender", i.e. literally "the most economically advantageous tender". A definition in which the adverb "economically" can be misleading since in reality that formula contains the criteria that must determine the selection of projects presented for a public tender: environmental protection, social aspects, characteristics innovations, the experience of the people involved in carrying out the contract, any offer of after-sales services or technical assistance; without neglecting the financial aspects such as the price or the life cycle costs of the works, goods and services covered by the contract.
Another of the objectives that the new regulation intends to achieve is a higher level of simplification of the procedures associated with participation in tenders: both to reduce costs borne by businesses and to also allow small and medium-sized businesses the opportunity to take participates in tenders for the award of a contract. In this sense, the development of a single document is envisaged, in all EU languages, valid for participating in any type of contract, to be filled in with the self-certifications relating to the required documents. The original presentation of which will be required exclusively of the winners of the contract. Overall, the reduction of charges connected with participation in a tender will be, the rapporteurs of the directives predict, at least 80%. On the other hand, however, the new legislation provides for stricter rules for subcontracting, which must not become "fraud tricks to circumvent compliance with the law", mainly those concerning the protection of work.
“These new rules – commented Marc Tarabella, the Belgian MEP of the parliamentary group of socialists and democrats, rapporteur of the directive on procurement – send a strong signal to European citizens, who have the right to see public money used in compliance with efficiency criteria”. And somewhat rhetorically he adds that “the new criteria will put an end to the dictatorship of the lowest price”.
Even for concession contracts, which have not yet been subject to specific legislation, the same rules as for public procurement will apply. The characteristic of concessions is that they are agreements freely stipulated by private treaty between a public administration and a company. Furthermore, these contracts are very complex, long-term and of particularly high value. The lack of clear rules valid throughout the EU has led, according to the European institutions, to growing legal uncertainty and has hindered the complete liberalization of services across EU member countries. This has led to distortions in the functioning of the single market; furthermore, economic operators, in particular SMEs, have been subject to limitations in the enjoyment of the rights guaranteed by the single market itself and have lost important business opportunities.
The rapporteur of the directive on concession contracts, the French Philippe Juvin, of the European People's Party, observes that also with reference to this issue "the new rules are important". Since, he clarifies, "they contribute to the creation of an economic environment in which, thanks to the increased transparency of the rules of the game, all the subjects involved (public institutions, economic operators, citizens), will be able to derive some benefit".
On the contents of the three directives just approved in Strasbourg, last June Parliament had already reached an agreement with the Council, the body in which the governments of the 28 EU member states are represented. This means that the legislative process of the measures in question has substantially concluded: only the formal adoption by the Council is missing. But in order for the new rules to come into force, since they are directives, their transposition into national legislation is necessary, an operation that the parliaments of the member countries will have to carry out within two years at the latest.
Instead, as regards the regulation relating to the participation of companies from third countries in European public tenders, the confrontation between the European Parliament and the Council will have to be deepened; and also better specified the line of the Strasbourg Assembly. Which in any case in the session that has just ended expressed a vote in favor of the proposal which intends to limit the participation of non-EU companies to larger contracts (from five million upwards), as well as those in which the share in the hands of these companies exceeds 50% of the value of the contract, only to those belonging to third countries that have entered into trade agreements with the European Union.
A condition of reciprocity, this, motivated by the fact that - say the supporters of the proposed limitation - 85% of public procurement markets in the EU are "potentially open to international bidders". About three times that of 32% in the US and 28% in Japan. However, this position will have to deal with that of a significant parliamentary minority who fear possible retaliation from the EU's trading partners as well as a tarnishing of the image of a Europe at the forefront of the trade liberalization process and therefore a fierce opponent of protectionism . For these reasons, the prediction of those who believe that for the development of this regulation, the unavoidable agreement with the Council and the final vote in Parliament, it will be necessary to go beyond the European elections in May is widely shared in Brussels and Strasbourg.
