EC procurement law proposals to create "vastly more complex" system, warns leading academic

European Commission proposals to simplify the EU’s public procurement regime will – together with other changes – result in a set of rules which is vastly more complex than the current arrangements, a leading procurement law academic has warned.

Writing in a forthcoming issue of Public Procurement Law Review, Professor Sue Arrowsmith of Nottingham University says: “If these proposals are adopted the resulting regime will truly be…. a ‘Frankenstein’s monster’.”

Prof. Arrowsmith acknowledges that Brussels’ proposals do provide some additional flexibility, but says that at the same they have introduced more rigidity and burdensome requirements for member states.

She calls instead for consolidation of the existing directives into a single directive for all regulated contracts that is based on the Utilities Directive. Prof. Arrowsmith also urges the adoption of a single set of remedies, applying to all award procedures covered by the single directive.

“It is submitted that this approach will ensure a real simplification of the current procurement directives in the sense of reducing the complexity of the regime,” she argues.

“It will also provide for the greater flexibility for member states that is recognised as one of the objectives of the current reform programme.”

Prof. Arrowsmith says a better balance was needed between the directives’ objective of promoting a single market and member states’ interests in regulating public procurement for national objectives.

“Fundamental to this balance is the important point, often misunderstood,….that it is not an objective of the directives to ensure value for money in procurement," she writes. "This remains a matter for member states, and internal market measures adopted by the EU must take account of member states’ interests in this area, as well as others, in accordance with the principle of proportionality.”

The academic, who is Achilles Professor of Public Procurement Law and Policy at Nottingham, recognises that a degree of transparency is useful, but argues that there are significant limits on its value – “and, in particular, of very detailed transparency rules that limit the discretion of procuring entities” – as a tool for achieving the single market objectives themselves. 

The full article is accessible here.