Local Partnerships legal chief warns MEPs about excessive complexity in EU public procurement

EU public procurement rules have become so complex that public authorities have increased their focus on legal certainty and limitation of legal threat rather than on procedures which maximise value for money, the director of legal at Local Partnerships told MEPs last month.

Appearing before the European Parliament’s Committee on Internal Market and Consumer Protection, Rob Hann said the economic and financial crisis and certain decisions of the European Court of Justice – such as Teckal, Roanne and Leonakis – have had “unexpected, unforeseen and unwelcome consequences” for projects procured in different circumstances.

These difficulties “have been magnified” by the Remedies Directive, which provides new avenues for aggrieved contractors to pursue.

Hann cited as an example the fact that ECJ case law on the use of evaluation criteria and weightings suggests there is no ability to ‘flex’ criteria due to changing market circumstances or to meet a contracting authority’s changing requirements.

Hann, who was representing the Council of European Municipalities and Regions before the committee, asked: “Is it appropriate to cement criteria and weightings in stone, prior to the dialogue stage where under the competitive dialogue process, dialogue can last 18 months?”

He added: “Aggrieved bidders are now in a strong position to cause delay, increase costs and uncertainty for successful bidders and the authority itself, right at the end of an already expensive and time consuming process.”

One of the problems, Hann told the committee, was that public procurement is increasingly used by European institutions to address policy objectives in areas such as environment, energy, social policy, innovation and so on. These measures are often introduced through a range of legislation and ‘soft’ measures such as guidance, creating confusion and uncertainty.

CEMR would like to see a “fundamental” review of the public procurement directives, he said. Going forwards, European institutions need to introduce initiatives affecting public procurement in a more co-ordinated manner and involve grassroots practitioners in their development from the outset.

Hann also outlined CEMR's concerns that the fundamental principle of local public bodies being able to decide for themselves when they should or should not subject a function to public competition “seems to be in question or in danger of being eroded to the detriment of local democracy and decision-making”.