Diapositiva 1

1
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies- Seminar 5 Dr Aris
Georgopoulos Assist. Professor in European and
Public Law- Advocate University of
Nottingham Global Governance Fellow, Robert
Schuman Centre of Advanced Studies, European
University Instirute - Florence
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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Outline

• Advertising Requirements
• Qualification Requirements
• Award criteria
• Frameworks Agreements
• Horizontal policies Environmental and Social
  Criteria

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Advertising Requirement

• Contract Notice (Art 35 (2))
• EU wide advertisement with the aim to notify
  potential interested economic operators across
  the EU
• Standard form
• General rule
• in fixing time limits for the receipt of tenders
  and requests to participate entities shall take
  account, in particular, of the complexities of
  the contract and the time required for drawing up
  tenders (Art 38 (1))
• In open procedures firms must generally be given
  at least 52 days to tender (Article 38(2)),
  calculated from the date of despatch of the
  contract notice (not the date of publication)

4
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Advertising Requirement

• The 52 day period may also be reduced in certain
  cases
• A Prior Indicative Notice (PIN) has been
  published within the previous year mentioning the
  specific contract and providing details of it
• PIN an advance notice of the contract. if the
  bidders have such advance notice then they can
  prepare accordingly thus justifying the
  shortening of time limits
• The time limit in this case can be reduced to 36
  days (for simple contracts the time limit can be
  reduced to 22 days)

5
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Advertising Requirement

• The 52 day period may also be reduced in certain
  cases
• when the contract notice is drawn up and
  transmitted electronically
• Time limit shortened by 7 days (ex if no PIN 45
  days with PIN 29 days or a possible minimum 15
  days for simple contracts)
• when the entity offers unrestricted and full
  direct access by electronic means to contract
  and supplementary documents (website address has
  to be mentioned in the contract notice)
• Time limit is shortened by 5 days
• !!! this reduction by 5 days can be in addition
  to the reduction by 7 days if the contract notice
  is transmitted electronically- in all cases)

6
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Advertising Requirement

• Restricted procedure
• Time limits for requests to participate 37 (can
  be reduced by 7 days if contract notice
  dispatched electronically)
• In cases of urgency accelerated versions of the
  restricted procedure are available
• the 37 day period becomes a period of not less
  than 15 days (or 10 when the notice is sent
  electronically) Article 38(8)(a)

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Advertising Requirement

• Restricted procedure
• How many firms can be invited to participate?
• Sufficient number to ensure genuine competition
• minimum 5 (Art. 44 (3))
• !!! In negotiated procedure with prior notice and
  competitive dialogue the minimum number can be 3

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Qualification Requirements

• Qualification the selection of economic
  operators will participate in the procurement
  process
• NB Do not confuse this with the process for
  selecting the winner of a contract (award)
• The selection criteria refer to
• a) Economic and Financial standing of economic
  operators (Article 47)
• b) Technical and professional ability (Article 48)

9
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Qualification Requirements

• Exclusion of economic operators can only be
  justified on the specific grounds stipulated in
  the Directive (Article 45 the list is
  exhaustive)
• See also Joined Cases C-226/04-C-228/04, La
  Cascina v Ministero della Difesa 2006 E.C.R.
  I-1347
• Rationale of the exhaustive list
• To limit the discretion of the contracting
  authorities to exclude firms only on objective
  grounds that do not contravene the principle of
  equal treatment and non-discrimination

10
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Qualification Requirements

• Question Can an authority refuse to consider a
  bid because the bidder failed to follow the
  authoritys equal opportunities guidelines?
• No, because this ground of exclusion is not
  mentioned in the Directive

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Qualification Requirements

• Proof of economic financial standing
• Contracting authorities may require a number of
  documents (indicative list Art. 47)
• Minimum requirements (for example minimum annual
  turnover) should be included in the contract
  notice or invitation to tender must relate to
  the subject matter of the contract must be
  proportionate (Article 44 (2))

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Qualification Requirements

• Proof of technical or professional standing
• Contracting authorities can only require the
  evidence enumerated in the list of Art. 48
  (exhaustive list)
• NB National contractor approval lists are not
  mentioned in the Directive as a means of proving
  Technical standing
• See C-71/92, Commission v Spain 1993 ECR
  I-5923)

13
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Qualification Requirements

• Question
• Is a general national rule that requires
  contracting authorities to exclude firms from a
  contract, because they had participated in the
  preparation of the specifications of that
  contract, compatible with EU PP rules?
• (This is not explicitly stipulated as a ground of
  exclusion under the Directive)
• No. Such a general exclusion is not proportionate
  to the aim of ensuring transparency and
  competition.
• NB. Instead it would be possible to exclude only
  those firms that could not show that their
  participation would not undermine competition
• Joined Cases C21/03 and C-34/03, Fabricom v État
  Belge 2005 E.C.R. I-1559)

14
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Public Sector Qualification Requirements

• Official lists of a MS must be accepted (in
  principle) by contracting authorities in the
  other MSs (Article 52 (4))
• - Contracting authorities can only question these
  lists if they (CAs) set clearly higher standards.
  

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Award Criteria

• Award Criteria (Article 53)
• Lowest price or most economically advantageous
  tender remain the award criteria
• Award criteria may include environmental
  characteristics (e.g. energy savings, disposal
  costs) provided these are linked to the subject
  matter of the contract
• Case C-513/99, Concordia Bus Finland v Helsinki
  2002 E.C.R. I-7213
• Award criteria not linked to the subject matter
  of the contract may not be used
• C-448/01 EVN and Wienstrom v Austria 2003 E.C.R.
  I-14527
• How about the so-called workforce criteria (for
  example extra points for employing persons with
  disabilities)?
• Not clear Case C-225/98, Commission v French
  Republic 2000 ECR I-7445

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Award Criteria

• Relative weightings must be given for each award
  criterion (Art. 53 (2))
• Weightings may expressed by providing a range
  with an appropriate maximum spread.

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Award Criteria

• Weightings must be disclosed in the notice or
  documents
• Exception
• When in the opinion of the contracting authority
  and for demonstrable reasons weighting is not
  possible
• In this case criteria must be listed in
  descending order of importance

18
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Award Criteria

• Question
• Can MSs adopt general rules that require
  contracting authorities to use lowest price for
  all works contracts?
• No!!!!
• Case C-247/02, Sintesi ApA v Autorità per la
  Viglinaza sui Lavori Pubblici

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Framework Agreements

• Article 1(5)
• An agreement between one or more contracting
  authorities and one or more economic operators,
  the purpose of which is to establish the terms
  governing contracts to be awarded during a given
  period, in particular with regard to price and,
  where appropriate, the quantity envisaged
• i.e. Agreement to agree
• Framework agreements are used, in the case of
  repetitive purchases, to choose suppliers who,
  when the time comes, will be able to meet the
  purchaser's needs.

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Framework Agreements
N.B. A contract which creates rights and
obligations (e.g. where work and response times
are guaranteed) is not a framework as defined
in the Directive. Frameworks can cover
supplies, works and services and can be used in
conjunction with the open, restricted,
competitive dialogue and negotiated procedures
(namely all the procedures)
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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Framework Agreements
Maximum duration is four years unless,
exceptionally, a longer period can be justified
(!!! Specific contracts may extend beyond the
life of the framework) Where a single
appointment is not made then the minimum number
of framework suppliers is three or the number
passing the selection criteria if less
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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Framework Agreements

• For each call-off contract
• Award to a single supplier
• Award to the supplier that offers best value on
  the basis of the framework award criteria
• Mini competition

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Framework Agreements

• Mini Competition
• Not compulsory
• Must not substantially change the original
  framework terms.
• Award to the supplier offering the best bid on
  the basis of the published framework award
  criteria.

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EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Horizontal Policies

• In principle they are allowed provided that they
  relate to the subject matter of the contract.
• Environmental criteria even under the previous
  directives ?Concordia Buses New Directive Article
  53 (1) (a))
• Social criteria? The directive is not explicit

25
EU Public Sector Directive Advertising,
Qualification, Award criteria, Frameworks,
Horizontal Policies Seminar5
Horizontal Policies

• In principle they are allowed provided that they
  relate to the subject matter of the contract.
• Environmental criteria even under the previous
  directives ?Concordia Buses New Directive Article
  53 (1) (a))
• Social criteria? The directive is not explicit
• Social criteria As long as they are not
  discriminatory
• C-31/87 Beentjes,
• C-225/98, Commission v France
• !!! Award criteria v. Contract conditions