Public Procurement in the European Union

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EDIFICIA International Lawyers - International Law Firm

EDIFICIA International Lawyers - International Law Firm

EDIFICIA Lawyers has been successful in representing the interests of Companies in Public Procurement & EU-Tendering against the European Commission.

Public Procurement: Being awarded a contract for public works and for the purchase of goods and services in accordance with the principles underlying the Treaties of the European Union is not always easy for smaller and medium-sized companies (SME).

The commercial success of a Company client starts with a research into project opportunities: Any information relating to public procurement in the EU is published in the Official Journal:

  • Periodic Indicative Notices (PIN) indicate the annual estimated procurement volume for every contracting authority
  • Invitations to tender are the formal invitations to suppliers to tender offers that start the process of awarding a contract.
  • Contract Award Notices (CAN) notify the public about the award of a contract to a successful tenderer, including the price and the reason for the selection.

Once a company has selected an opportunity for tendering, Edificia are keen to assist in preparing for, and winning EU-contracts. The legal services comprise e.g.:

  • Examining any framework agreement with the European Commission (Public contracting authorities)
  • Examining the Terms of Reference (ToR) and any potential liabilities
  • Negotiating and drafting any consortium agreement between members of a bidding consortium ( joint venture partners)
  • Debt Collection of receivables ( unpaid invoices)
  • Defending any action taken by the European Commission (Anti Fraud Office – OLAF) against a company (flagging, fining, blacklisting)

 

EU Public Procurement Law

Whilst the public procurement rules may seem daunting in their detail, a Failing Tenderer is not without some clout. Tenderers may wish to better understand the tender process and their respective rights.  If in doubt, it is best to seek legal advice. EDIFICIA Lawyers provide clients with legal advice in any such Tender Procedure. With the assistance of a legal expert a professional scrutiny of the Tendering Process may provide a clearer picture as to whether the key principles were or are being complied with by the Public Contractor:

  • Openness and transparency of the Process
  • Equal and fair treatment to all tenderers
  • Consistency of the Public Contractor during the Tender Procedure

 

EU Public Procurement Law – Overview and general objectives

EU Public procurement law regulates the tendering and purchasing process of the public sector  be it the Central Government, Regional States, Municipalities, or Local Authorities, or be it – usually state owned or controlled – utility sector companies, such as e.g. the Federal Railway Company, a university or a housing association (‘Public Contractors’) regarding contracts for the supply of goods, or providing works and services. The main legal framework of Public Procurement is set out in Regulation 2004/18/ EC. It has been frequently modified in subsequent years, latest in the Directive 2014/23/EU: Concessions, Directive 2014/24/EU: Public Sector Simplification, Directive 2014/25/EU: Utilities

EU Procurement law is intended to open up the public procurement market of any EU-Member State to European-wide competition, and to promote the free movement of goods and services within the EU. It seeks to overcome any direct or indirect “buy national” policies. The mentioned Regulation was adopted by Germany in 2004.

 

When do EU-Regulations apply?

A Tender Authority in Germany (German Public Contractor) must normally advertise the contract in the EU’s Official Journal and follow the procedural rules set down in the Regulations if the following general conditions are met:

  • The contract is for public works, public services or public supplies. Sometimes the contract may include supplies and services or works – a so called ‘mixed contract’ (e.g. the supply noise reducing rail brakes for German Railways and its maintenance). In such case, a Public Contractor must determine which element (eg the supply element or the service element) is the predominant element and, therefore, which set of rules will apply. The rules for the supply of goods and for the provision of services do vary with regard to e.g. the financial threshold being lower for the provision of services;
  • The estimated value of the contract (net of VAT) is equal to or exceeds the relevant financial threshold. The rules expressly prohibit deliberately splitting contracts to bring them below the relevant threshold.