Cabinet Office claims progress in negotiations over EU procurement reforms

The Government has made significant progress in negotiations over proposals to revise the existing EU public procurement rules, the Cabinet Office has claimed.

In an update, it said negotiations through the EU Competitiveness Council between January and July 2012 had led to the removal of the proposed ‘national oversight bodies’. Scrapping that proposal had been a priority in the UK negotiating position.

The Cabinet Office also confirmed that “unhelpful” proposals on mandatory division into lots for SMEs had been relaxed; in their place will be a “comply or explain” regime. There will also be provision for greater access to the competitive procedure with negotiation.

The update on the negotiations – which have reached roughly the halfway point – suggested that the Government had ensured that the improvements it had campaigned for during 2011 had been maintained and not watered down.

The Cabinet Office meanwhile suggested that the concessions proposal had been “substantially simplified”.

It added: “There may be further opportunities for more UK public sector contracts, such as some public private partnerships, to be procured under the concessions regime, which should be more flexible than the main public procurement legislation.”

Negotiations have been divided by the Presidency into a series of thematic clusters including: increased flexibility; the strategic use of public procurement; reducing documentation requirements; frameworks; SME access; E-procurement; and Governance.

The update admitted that the European Commission’s proposed removal of the pre-existing “Part B services” provisions was likely to go ahead as it was backed by a strong majority of member states. The UK position is that there is no need for such a move.

The Presidency of the EU has suggested a compromise position that would maintain a light-touch regime for a wider range of services than was proposed by the Commission.

The Cabinet Office meanwhile said the Government would continue to campaign for “innovative public service delivery-agents such as employee-owned ‘mutuals’ to become established before they are subject to full competition”.

Cabinet Office Minister Francis Maude has written to ministerial counterparts in other member states to press for a time-limited exemption.

The Cabinet Office said negotiations would continue throughout 2012. Discussions on concessions have started but detailed negotiations will not begin until the Autumn.

The revised directives could be adopted in early 2013, “but this is dependent on various factors including discussions with the European Parliament”.

Transposition would then follow – the current proposal would require member states to implement the new rules within 18 months of the new directive being published in the Official Journal of the EU. It is expected that the concessions proposals will be finalised after the main procurement directive.

The Commission’s original proposals were first published in December 2011.

The Government had campaigned for a range of changes including:

  • more freedom for procurers to negotiate with suppliers;
  • simplification of the supplier selection/prequalification process;
  • faster procurement through reduced minimum timescales;
  • simpler rules on dynamic purchasing systems;
  • allowing assessment of past performance (at the selection stage);
  • allowing relevant skills/experience assessment (at the award stage);
  • allowing the use of emarketplaces; and
  • clarifying and improving the rules on social and environmental aspects.

In addition, the update said that outside the negotiations the UK had worked with a number of Member States to oppose a proposed market access regulation.

This proposal would have enabled the EU to close its markets to those countries whose markets are not reciprocally open to the EU.

However, the Government believes that, if implemented, the proposal could lead to a net reduction in market access and could diminish growth potential “at a time when it is needed most”.

The update said that there had been an initial exchange of views in a council working group, but negotiations had not started and the timetable was unclear.

The update can be found here

Philip Hoult