Social Services of General Interest: Public Procurement Aspects

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Social Services ofGeneral InterestPublic
Procurement Aspects

• Petr Wagner
• Internal Market Services DG
• Directorate C Public Procurement Policy

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Variant of Direct Provision IN-HOUSE

• Acting trough a separate legal entity
• Strict control of the contracting authority
• (similar to own department)
• No or very limited business with third parties
• No participation of private undertakings

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In the area of social services similar
obligations for the award of public service
contracts and service concessions

• EC law applies only in cases presenting a
  cross-border interest
• Only the basic principles of EC law apply
• Non-discrimination
• Transparency

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Public Service Contracts

• Public authority pays a fixed remuneration
• Directive applies from thresholds (Art. 7)
• However, SSGI not subject to all the detailed
  rules (Art. 21)
• Technical specifications
• Outcome of the procedure published
• Basic Principles of Community Law/Crossborder
  Interest (C-507/03)

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Service Concessions

• Remuneration Right to economically exploit the
  service
• Directive does not apply to service concessions
• Basic rules and principles of Community Law

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Basic principles of EC law

• equal treatment, non-discrimination on grounds of
  nationality
• transparency, equal access
• fair and impartial award process
• effective judicial protection

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Basic Principles of EC Law

• Transparency/Equal Treatment/Non-discrimination
  require
• Adequate publicity
• May be limited to short description
• Give the possibility to all potentially
  interested service providers

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Basic Principles of EC Law

• Public authority to select the applicants in a
  non-discriminatory and impartial way
• During potential negotiations all operators must
  be on equal footing/receive the same information

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Definition of social service to be rendered
By drafting detailed specifications based on
their particular requirements and conceptions,
public authorities can obtain tailor-made
services delivering best possible quality adapted
to their specific needs.

• overall concept of the service
• specific needs of certain user groups,
  socio-economic context, involvement of users
• compatibility with existing structures
• Limit Discrimination

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Local context

• Contracting authority can ask for
• local infrastructures to be set up by the
  successful bidder (office/workshop, deploys
  equipment at the place of performance)
• knowledge about existing local infrastructures to
  be acquired by the employees providing the
  service (existing network of social actors)
• experience of the relevant services in a similar
  environment

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Local context

• EC rules to ensure fair competition among
  operators accross Europe
• To provide better value for money
• Limit Local context requirements must not go
  beyond what is necessary to ensure an adequate
  service provision. They must under no
  circumstances create unjustified advantages for
  existing local service providers

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Non-Profit Service Providers

• Procurement rules are meant to guarantee fair
  competition among all bidders regardless of their
  legal form (exception sheltered workshops).
• Individual CA cannot decide themselves to limit
  tenders to non-profit service providers
• A public service contract or concession might
  under exceptional circumstances be reserved to
  non-profit organisations if such a restriction is
  provided by a national law that is compatible
  with Community law. (Restriction on freedom of

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Non-Profit Service Providers

• A public service contract or concession might
  under exceptional circumstances be reserved to
  non-profit organisations if such a restriction is
  provided by a national law that is compatible
  with Community law.
• Restriction on freedom of establishment/fr. to
  provide services could be justified, if necessary
  and proportionate to attain certain social
  objectives pursued by national welfare system.
• (C-70/95 Sodemare)

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Public Private Partnership

• Choice of private partner has to be subject of a
  tender procedure
• Communication on IPPPs

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Public Public Partnership

• Service contract to 3rd party PP rules apply
  for both public and private
• Joint procurement (Common call for tenders,
  Central Purchasing Body)
• Transfer of task/competences to another entity
  (service performed in full independence/sole
  responsibility)
• Mutual assistance
• Networks - Exchange of best practices