On September the 9th, the Directorate-General of Internal Market, Industry, Entrepreneurship and SME’s proposed a single, directly applicable Regulation – the PPA – to replace the three 2014 Directives on public contracts.

Public procurement is a powerful policy lever at the Union’s disposal, especially in a geopolitical context marked by intensifying competition, supply-chain vulnerabilities and the exploitation of economic dependencies, accounting for around 15% of the EU’s GDP. The complexity and lack of flexibility of 2014 Directives confirmed that today’s public procurement rules know significant shortcomings, creating significant legal uncertainty for both public buyers and economic operators. Price-only awards remain prevalent and the uptake of social, environmental and innovation requirements continue to be limited. Rules on market access for non-EU companies lack clarity and no longer respond effectively to today’s geopolitical realities. Fragmented eProcurement systems prevent proper transparency and efficient monitoring.

Two new main procedures are proposed, both possible with or without selection criteria, and with or without negotiations. An open procedure where economic operators submit (first) tenders from the outset, and a dynamic procedure in which economic operators first join and are later on invited to tender or negotiate for individual procurement opportunities arising during the validity of the procedure.

These two procedures are complemented by an innovation procedure for the development and acquisition of innovative solutions that the public buyers wishes to have developed by an economic operator to best meet its needs.The rules on concessions are incorporated in the Regulation proposal, complemented by adapted rules for concessions where needed to take account of certain specific characteristics of concessions.

Contracts will as a rule be awarded on the basis of the best price-quality ratio, with minimum quality weighting requirements, including higher weighting for labour-intensive contracts.

On environmental procurement, the proposal provides clearer legal bases for the use of environmental requirements throughout the procurement cycle. It strengthens the contribution of procurement to circularity, recycled and refurbished content, waste recovery and energy efficiency, and creates a framework for mandatory green procurement requirements for certain product categories where divergent application of requirement risks creating market fragmentation.

On socially responsible procurement, the proposal highlights a number of important societal objectives, including social inclusion, labour market integration, accessibility for persons with disabilities, improved working conditions, up-skilling and re-skilling of the workforce, gender equality and human rights in supply chains, health and educational services, accessibility obligations for persons with disabilities.

On innovation procurement, the new innovation procedure allows public buyers to formulate societal challenges rather than fixed technical specifications, assess proposals through a value assessment framework, test and validate approaches, and then procure the resulting solutions. New provisions on resilience and security of supply apply in particular to contracts involving essential or important entities and critical infrastructures.

The proposal modernises and clarifies the treatment of third-country participation, explaining the distinction between operators, and works, services or supplies that are covered by the Union’s international procurement commitments and those that are not and establishes a common framework.

With 7 mandatory exclusion grounds from sectoral acts based on Title V of the TFEU that are linked to serious criminal offences, this proposal rationalises existing grounds for exclusion from the participation in a procurement procedure.

EPLG Willem Janssen and Roberto Caranta contributed to the to the proposals with two studies and an expert opinion available at https://op.europa.eu/en/publication-detail/-/publication/d61c5acf-a7ef-11f0-a7c5-01aa75ed71a1/language-en , https://op.europa.eu/en/publication-detail/-/publication/865d0382-a7e4-11f0-a7c5-01aa75ed71a1/language-en and https://op.europa.eu/en/publication-detail/-/publication/06d2e436-abf4-11f1-b9e5-01aa75ed71a1/language-en