1. Olivier MOREAU olivier@ppi-ebrd-uncitral.com 17 June 2015 Intercontinental Hotel, Bucharest NEW EU PUBLIC PROCUREMENT DIRECTIVES IMPLEMENTATION PROCESS – GENERAL APPROACH Better legal protection for EU financial interests in Romanian public procurement

2. European Public Procurement Reform The new public procurement rules are expected to contribute to growth & reducing deficits. They will help to: Reduce lengthy and burdensome procurement processes that add cost to business and barriers to market competition Modernise the procurement procedures and provide more flexibility for purchasers to follow best commercial practice, so that the best possible procurement outcomes can be achieved Support measures to enhance SME access to public procurement, where such measure are non-discriminatory and are consistent with a value for money approach.

3. Role of the EC services in the process: Transposition assistance Public Procurement Directives: Directives 2014/24/EU, 2014/25/EU and 2014/23/EU adopted on 26 February (OJEU L 94 of 28.3.2014) – 2014/24/EU = 94 Articles and Annexes, 138 Recitals – 2014/25/EU = 110 Articles and Annexes, 142 Recitals – 2014/23/EU = 55 Articles and Annexes, 88 Recitals = more than 350 OJ pages ! 2 years from publication to transposition deadline (18 April 2016) Work planning started already before formal adoption Involving Member States from the beginning

4. Transposition planning: 8 groups of issues identified

5. Transposition assistance Measures 1: multilateral assistance Thematic meetings of Expert Group Priority: clarification/discussion of main identified issues meetings concentrated on 1st half of transposition period 12 days of meetings (5 2-day meetings and 2 1- day meetings from February till November 2014; a further 7 days of meetings planned for 2015 MARKT services : written material (ppt slides) MS : written questions sent prior to meetings An electronic forum for the transposition process Objective: to monitor the process and thus ensure : Implementation in due time Implementation in a clear and consistent manner

6. Transposition assistance Measures 2 Concessions: Definition, duration and estimation of value Classic & Utilities: Mixed contracts (incl. defence), Operational units (threshold calculation), e-procurement, Light regime (social services), in particular reserved contracts, Exclusions from the scope of the Directives, Public-public cooperation, Modifications Exclusion grounds, in particular self-cleaning, Aggregation of demand - joint procurement – framework contracts, Award procedures, including innovation partnerships, Aggregation of demand Utilities – specific aspects Award criteria (in particular life- cycle costing) Social considerations Subcontracting

7. Transposition assistance Measures 3: bilateral assistance Exchange of written questions / answers, mainly by emails 2nd year of transposition period – intensified 6 months before end of transposition period Bilateral meetings: on demand Listing/planning all actions required - tables ECservices: supporting activities: standard forms; IMI pilot project Member States: national action plans, using correlation tables or other documents serving the same purpose till notification of transposition measures Involvement of the businesses and lawyers in the implementation process

8. Transposition seen from the perspective of a MS: the process in the UK UK Ministers want to transpose early to get benefit of improvements, subject to collective Ministerial agreement Will implement by 3 separate Statutory Instruments (S.I.), replacing the existing SIs for the public sector and utilities, with a new S.I. for concessions, starting with the public sector Directive (2014/24/EC). Each of these SIs will also provide for remedies. UK experience is that there are not many court cases, but there is significant concern about potential legal action Copy out approach adopted to avoid goldplating

9. UK Implementation: engagement with stakeholders Discussion papers circulated to stakeholders in the second half of 2013 seeking views on the 37 different policy options for Member States, divided into the following subjects: Light touch regime (LTR)(articles 74-76), SMEs, strategic use of procurement, termination of contracts, sheltered workshops, procedures, tender assessment, central purchasing bodies, e- procurement, exclusions/anti-corruption & standard forms. Responses Support for : new flexibilities and not adding extra burdens Minimal rules for LTR (social and other specific services) Need to have lowest price or cost as a possible award criterion

10. Consultation on the draft UK Regulations https://www.gov.uk/government/consultations/transposing- the-2014-eu-procurement-directives Consultation ran until 17 October 2014. It included a consultation document (with questions & comment on policy choices), the draft Public Contracts Regulations 2015 & a technical note on drafting 20 questions covered particular policy choices, a request to comment on the drafting & to update Schedule 1 bodies. Comments on new measures to increase SME participation were also sought The draft Regulations reflected discussions with government departments, in particular the interface with health regulations

11. Consultation responses: 204 replies from wide range of stakeholders Business Central Gov Dept Devolved Administrations Education Individual Legal Local Government Police Procurement Organisation Professional/Trade Body Voluntary/Third Sector Trade Union 15 7 1 60 5 18 46 2 7 20 18 5

12. Consultation outcomes: preliminary observations General support for the choices on options Questions over applying the light touch regime before April 2016 Support for flexibilities, but local authorities concerned about changes below the EU threshold Trade Unions & the voluntary sector want to highlight social & quality aspects

13. Post-consultation Next steps Update draft regulations Final write round to get collective agreement from Ministers Make and lay the Regulations in January to come into effect in February 2015 Prepare guidance including: LTR & mutuals, procurement routes, awarding contracts, in- house contracts, selection & exclusion, DPS, environmental/social, e-procurement & changes to contracts

14. UK implementation: embedding the Directives Face to Face Training Delivered through 140 volunteer trainers, trained by Cabinet Office Over 200 sessions across the UK in June & July 2014 reaching 6,000 procurement personnel E-Learning Hosted by Crown Commercial Service (CCS) by end 2014 Training needs to start before Regulations are in place, but e- learning material will be updated regularly Materials Handbook available on the Gov.uk and CCS Website from June 2014. Further guidance was prepared Transposition webpage https://www.gov.uk/transposing-eu- procurement-directiveshttps://www.gov.uk/transposing-eu- procurement-directives