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Support to Kosovo institutions on SAA implementation

Novelties of the new European Public Procurement Law

Transposition of European Public Procurement Law in national law

Pristina, … September 2018

Twinning Project KS 14 IPA OT 02 16

Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland

TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW

2 Pristina, 2018

Twinning project KS 14 IPA OT 01 16 “Support

to Kosovo institutions on SAA implementation”

Table of contents

1 International Law

2 EU primary law

3 EU secondary law

4 Directives on Public Procurement

5 Regulations on Public Procurement

6 Thresholds

7 Example of Germany to transpose in national law

8 Example of Croatia as a new member of EU

9 Transposition of options



3 Pristina, 2018



1. International Law

• The current „Agreement on Government Procurement“ GPA of the World

Trade Organisation (WTO) was signed at 30.03.2012. After the ratifications it

entered into force at 06.04.2014.

• GPA is the only legal binding agreement on procurement of the WTO. It aims to

achieve more transparency and accountability of public procurement within the

GPA judiciary.

• GPA contracting parties: the European Union (for all current 28 Member

States) Armenia, Canada, Hong Kong (China), Iceland, Israel, Japan, Korea

(Republic), Liechtenstein, Moldova, Montenegro, Netherlands (for Aruba), New

Zealand, Norway, Singapore, Switzerland, Taipei (Chinese), Ukraine and the

United States (USA). 18 parties (+ 28 MS of EU).

• 10 WTO members are in the acceding process. About 30 are observers.

• The GPA is already transposed in the new EU procurement law.



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2. EU primary law

The Treaty on the Functioning of the European Union (TFEU)

• 1st Version: Treaty of Maastricht 1992,

• Current valid version: Treaty of Lisbon 2007.

• The primary law also apply in the subthreshold area.

• Important for public procurement law:

Equal treatment,

transparency,

prohibition of discrimination.



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3. EU secondary law

EU Directives (enacted by the Parliament / the Council)

To be transposed in a certain time frame into national law

EU Regulations (enacted by the Commission)

Immediately applicable



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Contracts on works, supplies and services

Directive on public procurement 2014/24/EU

Of 28th March 2014, in force since 17th April 2014

Had to be transposed in national law by 18th April 2016, some

provisions later

Contracts of Utilities

Directive on procurement by entities operating in the water, energy, transport and postal services sectors 2014/25/EU



provisions later

4. Directives on Public Procurement



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4. Directives on Public Procurement

Concessions for works and services

Directive on the award of concession contracts 2014/23/EU



provisions later

Contracting in defence and security area

Directive on the coordination of procedures for the award of

certain works contracts, supply contracts and service contracts

by contracting authorities or entities in the fields of defence

and security 2009/81/EC of 13th July 2009

Including remedies provisions



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Clean vehicles

Directive 2009/33/EC of 23rd April 2009 on the promotion of clean and energy-

efficient road transport vehicles

in force since 4th June 2009

Had to be transposed in national law by 4th December

2010

Electronic invoices

Directive on electronic invoicing in public procurement

2014/55/EU

Of 16th April 2014, in force since 26th May 2014

To be transposed in national law by 27th November 2018.

Proceeding electronic accounts: EU-Norm of CEN by

27th May 2017. Sub central CAs by 27th November 2019

4. Further related Directives



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Classical: coordination of the laws,

regulations and administrative provisions relating to the

application of review procedures to the award of public supply and public

works contracts

Directive 89/665/EEC

Of 21st December 1989

Utilities: coordinating the laws,

regulations and administrative provisions relating to the application of Community rules on the procurement

procedures of entities operating in the water, energy, transport and

telecommunications sectors

Directive 92/13/EEC

Of 25th February 1992

4. Directives on remedies



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Common Procurement Vocabulary (CPV)

Regulation (EC) No. 2195/2002 of the Parliament and the

Council (originally the Commission)

of 5th November 2002,

Consolidated version of 18th June 2009

Establishing standard forms for the publication of notices

in the field of public procurement

Regulation (EC) Nr. 842/2011 of the Commission

of 19th August 2011

5. Regulations on Public Procurement



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determining the rules applicable to periods, dates

and time limits

Regulation (EEC) No. 1182/1971 of the

Council of 3rd June 1971

establishing the standard form for the European Single Procurement

Document ESPD

Commission Implementing Regulation (EU) 2016/7 of

5th January 2016

In force since 26th January 2016, applicable with the transposition of Directive

2014/24/EU, also applicable for Directive 2014/25/EU

5. Regulations on Public Procurement



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▸ Above the thresholds the European procedure is applicable. Below the thresholds the national procedure is applicable. However, the primary law is legally binding.

▸ Thresholds will be adopted every two years by the Commission.

▸ Lower national thresholds would be basically permitted.

▸ Example Germany: Dynamic Reference in the national law § 106 sect. 2 GWB

1. On directive 2014/24/EU (classic), article 4,

2. On directive 2014/25/EU (utilities), article 15,

3. On directive 2009/81/EG (defence-security), article 8,

4. On directive 2014/23/EU (concessions), article 8.

▸ Germany: Published regularly in Federal Gazette by the Ministry of Economy.

6.Thresholds



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Contracts / contracting authorities EUR net

Supplies and services of central CAs 1 144.000

Supplies and services general 1 221.000

Works 2 3 5.548.000

Supplies and services of Utilities CAs 2 443.000

Supplies and services of defence-security CAs 3 443.000

Concessions 4 5.548.000

6.Thresholds

1 Article 4 classical directive 2 Article 15 utilities directive 3 Article 8 defence-security directive 4 Article 8 concessions directive

Updated 2017



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6.Thresholds

Contracts / contracting authorities EUR net

Social and other special services (including legal counselling) 1 750.000

Social and other special services (utilities) 2 1.000.000

1 Art. 74 in conjunction with Art 4 lit. d, annex XIV of Directive 2014/24/EU

2 Art. 91 in conjunction with 15 lit. c, annex XVII of Directive 2014/25/EU



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7. Example of Germany to transpose in national law – above thresholds

GWB part 4, §§ 97 – 184 Law against restrictions of competition

Defence- Security

Regulation

VSVgV

§ 2 VgV: for works

additionally VOB/A

section 2

§ 2 Abs. 2 VSVgV:

for works additionally

VOB/A section 3

Award Regulation

VgV

Concessions Regulation

KonzVgV

Award statistics

Regulation

VergStatVO

Utilities Regulation

SektVO

Reg

ula

tio

ns

R

efe

ren

ce

s

Law



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Amendment of the e-Government Law

Obtaining electronic invoices since 27th Nov. 2018. By sub central CAs since 27th Nov.

2019

E-invoicing Register of

Competition

Law on Register of Competition

To indicate excluded

companies

Will be operable in 2019

General provisions for self cleaning process

7. Example of Germany to transpose in national law – above thresholds



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Law: Budget Laws of Federal and Lander-level* § 55 BHO/LHO

Administrative regulations VV-BHO, VV-LHO

VOL/A

Conditions of contract for services

section 1

UVgO

Sub threshold procurement regulation

VOB/A

Tender procedures for building works

section 1

7. Example of Germany to transpose in national law – below thresholds

*Applies only for state´s and local bodies ruled by budgetary law, not for other entities.



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§ 55 LHO Budget law priority of public procedures

No. 1 – 4 to § 55 VV-LHO

Administrative budget regulation

“Public contracts and procurement in Rhineland-Palatinate” Administrative regulation of the Ministry of Economy of 24 April 2014

Lander regulation on reviewing bodies of 19th September 1999, updated 8th July 2010

7. Example of Germany to transpose in national law –

Lander level – Rhineland-Palatinate

Law on SME support

§ 7 Principles of public procurement

E Government Law Rhineland-Palatinate

Draft 2017 (e-invoicing)



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8. Example of Croatia as a new member of EU

Croatia had a 8 year lasting process to become member of the

European Union. Them membership was achieved at 1st July 2013.

29th December 2008. opening of chapter 5 “public procurement”

http://www.mvep.hr/custompages/static/hrv/files/pregovori/4/05.pdf

30th June 2010. closing of chapter “public procurement”

http://www.mvep.hr/custompages/static/hrv/files/pregovori/5/p5.pdf

http://www.mvep.hr/custompages/static/hrv/files/pregovori/ZSEUHR/05

.pdf





http://www.mvep.hr/custompages/static/hrv/files/pregovori/ZSEUHR/05.pdf





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8. Example of Croatia – transposition process

• Simplification of rules (cutting the red tape)

• (Anti)corruption

• Effective legal protection

• MEAT (most economically advantageous tender)

• SME (small and medium sized enterprises)

• Social & green

• Innovations

• E-public procurement (e-submission)

• Education and control (capacity building, ESI funds - European structure and Investment Funds)



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• http://www.javnanabava.hr/

• http://www.dkom.hr/

• https://eojn.nn.hr/Oglasnik/

• http://ec.europa.eu/growth/single-market/public-procurement/

• https://ec.europa.eu/growth/tools-databases/ecertis/

• http://eur-lex.europa.eu/

• http://ted.europa.eu/TED/main/HomePage.do

• http://ec.europa.eu/prelex/apcnet.cfm?CL=en

• http://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm

8. Example of Croatia – useful links

http://www.javnanabava.hr/

http://www.dkom.hr/

https://eojn.nn.hr/Oglasnik/

http://ec.europa.eu/markt/ecertis/login.do



http://eur-lex.europa.eu/



http://ted.europa.eu/TED/main/HomePage.do

http://ec.europa.eu/prelex/apcnet.cfm?CL=en

http://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm



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9. Transposition of options

• The new directives encompass a high number of option which the

national legislator has to take in account. He can decide to choose an

option as an obligation for contracting authorities or as a possibility for

them or not to apply the option at all.

• The application of the options should be based on a decision of the

government. In this process PPRC is strongly involved.

• The transposition of options should be harmonised, e.g. option for

subcontracting in all three directives.

Options of the new directives:

• Directive 2014/24/EU on Public Procurement – 48 options

• Directive 2014/25/EU on Utilities – 42 options

• Directive 2014/23/EU on Concessions – 25 options



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Broadening the scope of the Directive 4

Additional flexibility/ simplification for contracting authorities 5

Central Purchasing Bodies 5

Division into lots 2

e-procurement 6

Horizontal "social" clause 1

Exclusion grounds 6

List of approved economic operators 1

Reserved contracts 1

Contract award criteria 3

Subcontracting 9

Abnormally low tenders 1

Modification of contracts 1

Simplified regime for social and other specific services 3

Options of Directive 2014/24/EU on Public Procurement – overview



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Activities directly exposed to competition 1

Additional flexibility/ simplification for contracting authorities and/ or

contracting entities 3

Central Purchasing Bodies 5

Division into lots 2

e-procurement 3


Exclusion grounds 2

Reserved contracts 1

Contract award criteria 3

Subcontracting 9

Abnormally low tenders 1

Modification of contracts 1


Options of Directive 2014/25/EU on Utilities – overview



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Reserved concessions 1

Economic operators 2

Communication 2


Technical and functional requirements 1

Exclusion grounds 4

Award criteria 1

Subcontracting 8

Modifications 1

Options of Directive 2014/23/EU on Concessions – overview



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A German example of transposing an option

Article 32 para. 1 DIR 2014/24/EU

“In the specific cases and circumstances … Member States may

provide that contracting authorities may award public contracts by a

negotiated procedure without prior publication.”

German Law GWB §§ 130, 131: “A negotiated procedure without

competition is only available to the extent permitted by this law.”

VgV Procurement Regulation § 14 sect. 4:

“The contracting authority may award contracts in the negotiated

procedure without competition only in following cases: …”



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A German example of transposing an option

9 cases displayed, i.a.

• if no or no suitable offers or requests to participate have been made in an

open or restricted procedure, unless the initial terms and conditions of the

contract are fundamentally changed,…

• if the task can only be provided by a particular company, because a unique

piece of art or artistic achievement is to be created or acquired or because for

technical reasons there is no competition …

• if it is a delivery item listed and purchased on a stock market exchange,

• if, following a design competition, a service contract has to be awarded to the

winner or to one of the winners according to the terms of this competition;

Thank you very much for your attention!

Pristina, September 2018

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