New EU Procurement Directives: an excellent outcome for the UK?
After 18 months of intensive scrutiny and debate the trilogue of EU institutions (the Commission, the Council and the Parliament) have agreed the final draft texts of the new EU Public Procurement Directives. The package of three new Directives is due to be approved at the plenary session of the European Parliament in December.
On 25 July, the Cabinet Office issued a Procurement Policy Note describing the package as representing 'an excellent overall outcome for the UK', adding that:
For contracting authorities, this means being able to run procurement exercises faster, with less red tape, and more focus on getting the right supplier and the best tender. And for suppliers, the process of bidding for public contracts should be quicker, less costly, and less bureaucratic, enabling suppliers to compete more effectively.
The proof of the pudding will be in the eating, but at this stage it is too early to tell whether the new rules will get the thumbs up from both authorities and suppliers. Moreover, we have not seen how much progress really has been made on the compromise texts produced by the Council towards the end of last year. There was lot of devil in the detail of those texts and based on what we do know of the inter-institutional discussions, the three heavy pieces of EU legislation will require careful consideration when we finally do see the adopted texts.
Authorities and suppliers should therefore be wary of suggestions that the set of three new EU directives - more rules rather than less – are going to reduce procurement risk and make life easier for everyone.
The outcome for the UK is likely to depend heavily on the approach taken to the transposition on the new directives. While the substantive content of the new rules will have to be transposed into the implementing regulations there are opportunities to do this in way that provides a comprehensive single set of national rules that are provide a better degree of legal certainty, both for authorities and for suppliers.
While there are some welcome simplifications in the new rules, for example as to the use of the negotiated and competitive dialogue procedures, there are also many new provisions that attempt to codify the case-law of the Court of Justice of the European Union and to introduce new obligations on authorities when conducting tender processes designed to achieve EU-wide objectives around growth, innovation and jobs.
The Cabinet Office plans to accelerate the transposition of the new rules for England, Wales and Northern Ireland, and to issue a series of consultation PPNs on specific aspects of the new rules later this year. In Scotland, the adopted texts will feed into the Scottish Government's proposals for the Procurement Reform Bill, with a similar consultative period on transposition. In May Deputy First Minister Nicola Sturgeon announced the Scottish Government's plan to delay introducing the Bill until after the summer recess in order to ensure it is consistent with the new rules coming out of Brussels.
