We mentioned here that the European Commission is looking to make improvements to the efficiency of public procurement. The initiative has four main strands:
- Definition of priority areas for improvement
- Voluntary ex-ante assessment of large infrastructure projects
- Recommendation on professionalisation of public buyers
- Consultation on stimulating innovation through public procurement
Today, we will look in more detail at the second of those initiatives – the assessment of large infrastructure projects. This proposed service from the Commission has three elements:
- a helpdesk (for contracts above €250 million), which offers clarification on issues of EU procurement rules, to be provided within one month of the request, and made available (anonymised) generally
- a notification mechanism (for contracts above €500 million) where Member States can ask the “Commission services [to] express their views on whether the procurement plan complies with EU procurement rules, without prejudice to any future legal interpretation or assessment” (so this relates to the whole plan rather than just the procurement regulations aspect that the first element covers)
- an information exchange mechanism – a knowledge management tool for use by national authorities and contracting authorities, geared towards showing examples of good practice on different projects.
Now both Dr Pedro Telles and Dr Albert Sanchez-Graells have commented on this already. They are two leading legal academics in the public procurement field, and their thoughts are always worth reading, and this is true in this case (follow those links to see more from them).
They both point out some issues around this idea, whilst recognising the positives too. The idea is that the Commission can advise contracting authorities (buyers) on their projects before they get too far. The buyers can ask about the procurement options they are considering, issues around state aid or other legal technicalities and so on.
The problem form a legal point of view is the Commission is saying that the advice it will give has no legal standing … ”views expressed by the Commission services in their assessment are not legally binding on those using the mechanism or on the Commission, and are without prejudice to the interpretation of the relevant rules by the Court of Justice of the European Union“.
So in theory, you might ask for advice, get it, follow it – and then be taken to court after the event for breaking procurement rules! Surely, if the Commission gives advice, it needs to stand behind it later? In practice we suspect that a green light from the Commission will count for something if anything untoward happens later.
There is also a question of timescales. In my experience, even very large capital projects have timescales that appear tight from inside the programme. There are always different papers to be presented, approvals to be sought and so on, even if the end-to-end elapsed time is considerable. So the Commission is saying it will respond in one month or three months, but can they meet this and is it fast enough for an opinion that has no legal status anyway?
The question of confidentiality also comes into play around all the elements, including the third knowledge management idea. EU rules mean the Commission has to disclose much of its information, so might authorities be concerned about what will get into the public domain in terms of their own affairs? As Dr Telles says; “The Commission may try to guarantee confidentiality of the communications and their content, but yet another footnote (23) states the obvious: all documents produced by the Commission (or in its possession) are subject to Regulation (EC) No 1049/2001 regarding public access of documents”.
Another problem we have seen with initiatives of this kind is the question of who defines “best practice”. There is no point including content in such knowledge repositories if actually, it isn’t really best practice – or even good practice – at all. Who will decide what is accepted or how material is rated and defined?
Our final question (not covered so much by Telles and Sanchez-Graells) is around resources. Of course the Commission has legal experts in house, but we suspect the sort of questions that buyers want answering are often more than purely legal in nature. They may well touch on financial issues, questions of procurement process and procedures, even operational questions.
Does the Commission really have the expertise and resource to answer these convincingly and add value? And it is not just capability; if there is a strong uptake for this service, does the Commission have the capacity to cope? As far as we understand it, the service is free of charge, but there cannot be unlimited funds for this initiative.
So, well-intentioned undoubtedly, and certainly not stupid ideas. But equally, there are a lot of questions and the devil will be in the detail as usual.