I have just uploaded on SSRN a short new paper, which provides some initial thoughts on the new rules on exclusion, qualitative selection and short-listing in the 2011 proposal for a new public sector procurement Directive, as amended by the 30 November 2012 Compromise Text published by the Council. The assessment is based on a comparison with the equivalent rules under current Directive 2004/18/EC, as well as on the implementation difficulties that I envisage.
In the paper, I reach the following conclusions:
As this brief overview of the novelties
and changes proposed by the Compromise Text on the rules concerning exclusion,
qualitative selection and short-listing has shown, the Commission has presented
(and the Council is willing to allow for) reform proposals that aim to generate
some simplification and flexibilisation of the current rules. The Compromise
Text has also tried to clarify and improve the drafting of the current
Directives and to consolidate requirements and avoid duplication where
possible.
The search for flexibility
and simplification is particularly clear concerning the rules that aim to make
exclusion of economic operators a dynamic activity (§2.2), that increase the
scope and power for contracting authorities to seek clarifications and source
additional information from tenderers (§2.4), that allow for an evaluation of
the effectiveness of self-cleaning measures adopted by economic operators that
should otherwise be excluded (§3.3), or that allow for a ‘certificate-less’
qualitative selection of candidates, subject to an ex post verification of the self-declarations submitted (§4.5).
However, such flexibility does not come without risks and contracting
authorities must tread lightly if they want to avoid challenges based on potential
abuses of their (increased) administrative discretion. Moreover, the extent and
weight of the obligations derived from the principle of good administration are
expanding and this needs being duly taken into consideration.
There are also clear
indications of a clearer integration of public procurement and competition
rules (such as the possibility to exclude bid riggers, §3.2) and of the use of
public procurement as a lever to ensure compliance with social, labour and
environmental rules, in a classic example of pursuit of secondary (or
horizontal) considerations in procurement (§2.3). This shows that, despite the
search for simplification, the (asymmetrical) integration of public procurement
and other economic and non-economic policies by necessity depicts a more
complicated scenario that requires further professionalism and capacity
building in the Member States, as well as more cooperation between contracting
authorities and other competent authorities, such as national competition or
environmental agencies.
All in all, in my view, EU
public procurement regulation continues becoming more and more sophisticated
(and complicated), the Compromise Text does not solve all problems and creates
some new and, consequently, public procurement litigation will continue playing
a key role in the clarification of the applicable rules.
