Changes to European procurement legislation — a very short introduction

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Understanding spend

4 min readFeb 17, 2017

European procurement legislation is complicated and regularly updated to account for legal judgements and new procurement initiatives. It takes a while to even begin to wrap your head around it, so this blog is aimed at making life easier by providing a short introduction to the latest changes in European public procurement directives.

Public procurement directives outline the process that must be followed before a public sector body awards a works, supply or services contract to suppliers when the contract value is over certain thresholds. All tenders over these thresholds have to be published in OJEU (the Official Journal of the European Union) and its online service Tenders Electronic Daily.

Currently, there are three directives in place that determine European procurement:

The European Public Contracts Directive (2014/24/EU)
The European Utility Contracts Directive (2014/25/EU)
The Defence and Security Directive(2009/81/EC)

We’ll have more detail on some of the changes in coming blogs. In the meantime, here’s a quick rundown of some of the most significant changes, plus the thresholds.

Changes

SME access is improved by encouraging buyers to split contracts into smaller lots. This change gives buyers the ability to restrict the number of lots any one company can win in a given contract, and must provide a reason when they have not.
SME access is further eased by lowering the maximum company turnover cap for potential suppliers to double the value of the tender unless there is a clear justification.
Supplier screening has been streamlined by allowing for more self-declaration which means that suppliers no longer have to fill out many complicated forms to demonstrate eligibility.
Buyers can take fuller account of suppliers’ past performance when evaluating bids and can exclude suppliers accordingly, but if suppliers demonstrate that they have made improvements, these grounds for exclusion will no longer apply.
Buyers are encouraged to consult the market, including experts and organisations prominent in the market, before putting together a tender, provided this does not breach rules on competitiveness or transparency.
There is more leeway allowed for negotiation at the invitation to tender stage with previous restrictions on competitive dialogue relaxed. The minimum requirements will remain fixed, but the negotiations will shape the tender. The negotiation must take place in a non-discriminatory way, with updates on changes to the tender communicated to all the potential suppliers. This approach is particularly encouraged for innovative projects.
A light touch regime has been introduced for social and health services. Thresholds for OJEU publication have been raised significantly to €750,000 to account for the fact that social services are highly reflective of individual countries’ cultures and so smaller tenders in this area are rarely appropriate for cross-border suppliers.
The minimum supplier response time limits have been reduced, speeding up the tender process. In urgent cases that are substantiated by contracting authorities, this can now be as little as 15 days.
Electronic procurement documents must be made available unrestricted and free of charge at a URL at the same time the opportunity is published on OJEU.
Social factors can be accounted for when awarding the contract. Buyers can decide not to award a contract to the most economically advantageous tender if this tender does not comply with environmental, social and labour law obligations. In the UK, this means that buyers can take into account the Social Value Act when allocating contracts, (it had previously only applied prior to the tender being let).

Exclusions

Even when an opportunity is not covered by the directives, if it could benefit from an international approach, it should be advertised in a way that is accessible

The directives are codified in UK law, with a few local additions. The most notable of these is that contracts below the OJEU limit should still be published openly on Contracts Finder.

The threshold for publishing to Contracts Finder is £10,000 for central government and £25,000 for all other government bodies including local authorities and the NHS.