Extending the scope of EU

public procurement law

Willem A. Janssen

IPPC6 - 2014

Thesis and outline

Decision-making in the pre-procurement phase relating

to (public) service delivery should be based on

objective and transparent criteria.

1. Pre-procurement phase

2. Present regulation

3. General arguments

4. Sectorial arguments

5. Towards objectivity and transparency

6. Two examples

The scope of EU public procurement law

Procurement phase Post-procurement phase Pre-procurement phase

EU public procurement law

Defining demand

Decision on

performance

modalities:

• In-house or

• externalise?

National law

Market

research

Choice of

procedure

Procurement procedure:

•2004/18 – 2004/17

•New directives

Selection of contractor

National law

Contract performance

and management

Evaluation

Present: pre-procurement phase (1)

• Democratic decision-making on (public) service delivery

• Fundamental choice: state, market, or society itself?

– Defining the public interest/task

• Contracting authorities have discretionary power to decide upon

public service delivery.

– Protocol 26. and 106(2) TFEU

Present: pre-procurement phase (2)

• “It should be recalled that nothing in this Directive obliges Member

States to contract out or externalise the provision of services that

they wish to provide themselves or to organise by means other than

public contracts within the meaning of this Directive.” (preamble 5,

Directive 2014/24/EU)

• Art. 12 Classic public procurement directive

• EU law only accommodates performance choices, but leaves MS /

public authorities to decide who should perform services.

General arguments

• EU: “Market fatigue”

• Financial and debt crisis

• Loss of confidence in market performance

• Art. 4(2) Lisbon Treaty

• NL: Emphasis on a “compact” government

• Increase of in-house performance

• Valued principles and goals only apply when fundamental decision

is made: inconsistency

• Broader applicability on legal instruments and entities

Dutch sectorial arguments

In-house performance:

• Waste sector

• Supportive services

Inconsistent tendering policy:

• Public transport

• Social support

Towards objectifying the pre-

procurement phase

• Key factors:

– Objective and transparent criteria should decide upon who is the

best performer of a public service.

• Questions to address:

– What level of regulation?

– What kind of enforcement?

– What field of law?

Dutch Public Procurement Act 2012

• Article 1.4 PPA 2012:

– Obliges contracting authorities to create ‘societal value’

– Contracting authorities must base two decisions on ‘objective

criteria’:

• Choice of procedure

• Choice of invitees

– Duty to motivation

• Leading the way?

Comparative view: US FAIR Act

• Obligation to compose an annual list of services

• OMB Circular A-76: comparison between alternatives

• Challenge and appeal procedures

• Combination of regulation and judicial enforcement

Conclusion

Willem A. Janssen LL.M.

Lecturer and PhD Candidate

Europe Institute - Utrecht University

w.a.janssen@uu.nl

Decision-making in the pre-procurement phase relating to public service

delivery should be based on objective and transparent criteria.

Questions?