EU- Green Paper Strategic use of PP in response to new challenges How to buy v. What to buy AUT position Michael Fruhmann

Preliminary remark Discussion about PP and its role in the context of EU 2020 strategy (COM(2010) 2020) – a strategy for smart, sustainable and inclusive growth

Preliminary remark II Green paper offers 2 policy options: 1) provide contracting authorities with the wherewithal to take into account those objectives under procedural public procurement rules ("how to buy")

Preliminary remark III Contd: 2) impose mandatory requirements on contr. authorities or provide for incentives to steer their decisions as to which goods and services should be procured ("what to buy")

AUT basic approach Policy option 2 (what to buy) is not acceptable! Would be too intrusive and contrary to principle of subsidiarity! (would also lead – inter alia - to permanent changes of legal framework)

AUT basic approach II This does not imply that EU legislator may not impose requirements (on goods a.s.o.) – AUT does not favour an approach specifically designed for PP (contr. auth. as special victims)

AUT basic approach III PP regime should be as simple as possible (with low transaction costs) – special requirements lead to complexity (costs), policy conflicts and poss. discrimination or anti-competitive behaviour

Technical specifications Already poss. to take social/green aspects into consideration! No obligation to make performance or functional requirements mandatory!

Procedures Negotiated procedure, competitive dialogue and design contests are suitable for taking into account environmental, social, accessibility and innovation policies AUT does not object new tools (for ex. as regards innovation)

Procedures II AUT sees the necessity to simplify existing procedures (esp. competitive dialogue)

Award criteria The dualism of most economically advantageous tender and lowest price must be kept and the decision to use either (resp. the weighting of criteria) is a decision of the contr. authority! 3rd category of award criterion is not useful!

LCC Already implemented in AUT but obligatory use of LCC not feasible in all cases + raises the methodology question!

Link to subject matter of the contract AUT position: the close link to the subject matter of the contract must be kept!

Link to subject matter of the contract II AUT position: open to discuss a weakening of that close link to the subject matter of the contract as regards execution clauses!

Thank you for your attention! Michael Fruhmann