EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies- Seminar 5 Dr Aris Georgopoulos Assist. Professor in European and Public Law- Advocate University of Nottingham Global Governance Fellow, Robert Schuman Centre of Advanced Studies, European University Instirute - Florence

Outline Qualification Requirements Award criteria EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Outline Advertising Requirements Qualification Requirements Award criteria Frameworks Agreements Horizontal policies: Environmental and Social Criteria

Public Sector: Advertising Requirement EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Advertising Requirement Contract Notice (Art 35 (2)) EU wide advertisement with the aim to notify potential interested economic operators across the EU Standard form General rule: in fixing time limits for the receipt of tenders and requests to participate entities “shall take account, in particular, of the complexities of the contract and the time required for drawing up tenders” (Art 38 (1)) In open procedures firms must generally be given at least 52 days to tender (Article 38(2)), calculated from the date of despatch of the contract notice (not the date of publication) Once the notice is dispatched to the Official Journal is obliged to publish the notice in 12 days or if the notice is submitted electronically in 5 days

Public Sector: Advertising Requirement EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Advertising Requirement The 52 day period may also be reduced in certain cases: A Prior Indicative Notice” (PIN) has been published within the previous year mentioning the specific contract and providing details of it PIN= an advance notice of the contract. if the bidders have such advance notice then they can prepare accordingly thus justifying the shortening of time limits The time limit in this case can be reduced to 36 days (for simple contracts the time limit can be reduced to 22 days)

Public Sector: Advertising Requirement EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Advertising Requirement The 52 day period may also be reduced in certain cases: when the contract notice is drawn up and transmitted electronically: Time limit shortened by 7 days (ex if no PIN 45 days; with PIN 29 days or a possible minimum 15 days for simple contracts) when the entity offers “unrestricted and full direct access by electronic means” to contract and supplementary documents (website address has to be mentioned in the contract notice) Time limit is shortened by 5 days !!! this reduction by 5 days can be in addition to the reduction by 7 days if the contract notice is transmitted electronically- in all cases)

Public Sector: Advertising Requirement EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Advertising Requirement Restricted procedure: Time limits for requests to participate: 37 (can be reduced by 7 days if contract notice dispatched electronically) In cases of urgency “accelerated” versions of the restricted procedure are available: the 37 day period becomes a period of not less than 15 days (or 10 when the notice is sent electronically): Article 38(8)(a)

Public Sector: Advertising Requirement EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Advertising Requirement Restricted procedure: How many firms can be invited to participate? Sufficient number to ensure “genuine competition” minimum 5 (Art. 44 (3)) !!! In negotiated procedure with prior notice and competitive dialogue the minimum number can be 3

Public Sector: Qualification Requirements EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Qualification Requirements Qualification = the selection of economic operators will participate in the procurement process NB Do not confuse this with the process for selecting the winner of a contract (award) The selection criteria refer to: a) Economic and Financial standing of economic operators (Article 47) b) Technical and professional ability (Article 48)

Public Sector: Qualification Requirements EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Qualification Requirements Exclusion of economic operators can only be justified on the specific grounds stipulated in the Directive (Article 45 the list is exhaustive) See also Joined Cases C-226/04-C-228/04, La Cascina v Ministero della Difesa [2006] E.C.R. I-1347 Rationale of the exhaustive list: To limit the discretion of the contracting authorities to exclude firms only on objective grounds that do not contravene the principle of equal treatment and non-discrimination

Public Sector: Qualification Requirements EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Qualification Requirements Question: Can an authority refuse to consider a bid because the bidder failed to follow the authority’s equal opportunities guidelines? No, because this ground of exclusion is not mentioned in the Directive

Public Sector: Qualification Requirements EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Qualification Requirements Proof of economic financial standing: Contracting authorities may require a number of documents (indicative list Art. 47) Minimum requirements (for example minimum annual turnover) should be included in the contract notice or invitation to tender; must relate to the subject matter of the contract; must be proportionate (Article 44 (2))

Public Sector: Qualification Requirements EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Qualification Requirements Proof of technical or professional standing: Contracting authorities can only require the evidence enumerated in the list of Art. 48 (exhaustive list) NB National “contractor approval lists” are not mentioned in the Directive as a means of proving Technical standing See C-71/92, Commission v Spain [1993] ECR I-5923) statement of the tools, plant, and technical equipment available; the education and professional qualifications of the contractor and/or the contractor’s staff; and a list of works or services or deliveries carried out over the last five years (for works) or three years (for supplies and services)

Public Sector: Qualification Requirements EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Qualification Requirements Question: Is a general national rule that requires contracting authorities to exclude firms from a contract, because they had participated in the preparation of the specifications of that contract, compatible with EU PP rules? (This is not explicitly stipulated as a ground of exclusion under the Directive) No. Such a general exclusion is not proportionate to the aim of ensuring transparency and competition. NB. Instead it would be possible to exclude only those firms that could not show that their participation would not undermine competition Joined Cases C21/03 and C-34/03, Fabricom v État Belge [2005] E.C.R. I-1559)

Public Sector: Qualification Requirements EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Public Sector: Qualification Requirements “Official lists” of a MS must be accepted (in principle) by contracting authorities in the other MSs (Article 52 (4)) - Contracting authorities can only question these lists if they (CAs) set clearly higher standards.

Award Criteria Award Criteria (Article 53): EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Award Criteria Award Criteria (Article 53): Lowest price or most economically advantageous tender remain the award criteria Award criteria may include environmental characteristics (e.g. energy savings, disposal costs) provided these are linked to the subject matter of the contract Case C-513/99, Concordia Bus Finland v Helsinki [2002] E.C.R. I-7213 Award criteria not linked to the subject matter of the contract may not be used C-448/01 EVN and Wienstrom v Austria 2003] E.C.R. I-14527 How about the so-called “workforce criteria” (for example extra points for employing persons with disabilities)? Not clear Case C-225/98, Commission v French Republic [2000] ECR I-7445

EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Award Criteria Relative weightings must be given for each award criterion (Art. 53 (2)) Weightings may expressed by providing a range with an appropriate maximum spread.

Award Criteria Weightings must be disclosed in the notice or documents EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Award Criteria Weightings must be disclosed in the notice or documents Exception: When in the opinion of the contracting authority and for demonstrable reasons weighting is not possible In this case criteria must be listed in descending order of importance

Award Criteria Question: EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Award Criteria Question: Can MSs adopt general rules that require contracting authorities to use lowest price for all works contracts? No!!!! Case C-247/02, Sintesi ApA v Autorità per la Viglinaza sui Lavori Pubblici

Framework Agreements Article 1(5) EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Framework Agreements Article 1(5) An agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged i.e. Agreement to agree Framework agreements are used, in the case of repetitive purchases, to choose suppliers who, when the time comes, will be able to meet the purchaser's needs.

EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Framework Agreements N.B. A contract which creates rights and obligations (e.g. where work and response times are guaranteed) is not a ‘framework’ as defined in the Directive. Frameworks can cover supplies, works and services and can be used in conjunction with the open, restricted, competitive dialogue and negotiated procedures (namely all the procedures)

EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Framework Agreements Maximum duration is four years unless, exceptionally, a longer period can be justified (!!! Specific contracts may extend beyond the life of the framework) Where a single appointment is not made then the minimum number of framework suppliers is three or the number passing the selection criteria if less

Framework Agreements For each “call-off” contract: EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Framework Agreements For each “call-off” contract: Award to a single supplier Award to the supplier that offers best value on the basis of the framework award criteria Mini competition

Framework Agreements Mini Competition Not compulsory EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Framework Agreements Mini Competition Not compulsory Must not substantially change the original framework terms. Award to the supplier offering the best bid on the basis of the published framework award criteria.

EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Horizontal Policies In principle they are allowed provided that they relate to the subject matter of the contract. Environmental criteria: even under the previous directives Concordia Buses New Directive Article 53 (1) (a)) Social criteria? The directive is not explicit

EU Public Sector Directive: Advertising, Qualification, Award criteria, Frameworks, Horizontal Policies Seminar5 Horizontal Policies In principle they are allowed provided that they relate to the subject matter of the contract. Environmental criteria: even under the previous directives Concordia Buses New Directive Article 53 (1) (a)) Social criteria? The directive is not explicit Social criteria: As long as they are not discriminatory C-31/87 Beentjes, C-225/98, Commission v France !!! Award criteria v. Contract conditions