Friday, January 22, 2010

One more step towards an ever closer Union on public procurement..., and more filters available for

By the end of last year, and more precisely on December 20th 2009, the transposition period given to Member States to adapt their national legislations to Directive 2007/66/EC (the so called Remedies Directive), ended up, being that at the beginning of 2010 only France, Poland, Slovakia and the United Kingdom had fulfilled their obligation and notified the Commission about the measures taken to do so. Given that only three more MS had notified partial transposition measures, it leaves twenty MS which had failed to notify the Commission about transposition measures concerning Directive 2007/66/EC by the beginning of 2010.

Looking back, it was in May 2006 when the Commission put forward a proposal to amend the Remedies Directive aimed to ensure a more equitable environment in public procurement and encourage EU companies to tender in any MS by providing them higher legal certainty. This review based on previous consultations, was intended to improve the effectiveness of pre-contractual reviews as well as providing a way to fight against situations where redress measures were not sufficiently clear for unsuccessful bidders or even situations of “race to the signature” in which there is not a reasonable period between the award of the contract and its signature.

One of the key elements of this revision on Remedies Directives has been the introduction of a harmonized 10-day Mandatory Standstill Period between the award of the contract and its signature, in order to allow unsuccessful bidders to request additional information and take appropriate actions if they consider that their right has been harmed by breach of the rules. If the standstill period is not respected or the contract has been illegally awarded, the Directive provides the possibility to bring it to the Court and declare the ineffectiveness of the contract. The ineffectiveness of the contract can be declared on various grounds such as the failure to advertise the contract in the OJEU or the breach of the standstill period and the automatic suspension, and can be claimed up to six months after the contract award.

Apart from any dogmatic issues which have already come to the Palestra, it seems that contracting authorities, economic operators and national Courts will now have to face the legal consequences of declaring a contract's ineffectiveness, the compensations, as well as the eventual practical issues arising from that declaration such as protection of properties, subcontractors rights protection or any other situation originated. It seems, indeed, quite an interesting debate...

The new Remedies Directive targets very specially the illegal direct award of contracts, which has been considered by the European Court of Justice as the most serious breach of Community law in the field of public procurement on the part of a contracting authority, giving the Courts the possibility to declare ineffective a contract directly awarded if transparency and open competitiveness has not been respected.

Further to these redress measures, Directive 2007/66/EC also introduces some new practical issues such as the introduction of a new form, the so-called Voluntary Ex Ante Transparency (VEAT) notice, which allows contracting authorities to avoid ineffectiveness of the contract based on failure to advertise by giving the required transparency. This type of document will generally be associated to the award procedure of a contract without prior publication of a contract notice or the negotiated without a call for competition procedure.

In addition to improving access to information concerning Community public procurement, the implementation of Directive 2007/66/EC will also have some practical implications, providing new filtering options for the information tools which allow users to publish EU procurement notices in any website, allowing them to publish these type of notices automatically in their sites.

We have already mentioned in several occasions the difficulties that many EU companies face when taking part in public procurement market. These barriers to access public procurement market, which are even being considered under the scope of the new European Innovation Plan, burden very specially small but very innovative companies, as it is considered that promoting innovation by public procurement could be a good contribution to rationalize public expenses. This is one of the reasons why keeps its commitment to continue to facilitate access to information about public procurement opportunities in the European Union for all interested public.

We will keep you posted on any new feature which comes up to improve tools, as well as any new possibility that new developments on EU public procurement rules may offer for all of you.

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