When awarding a contract regarding e.g. works, services or supplies to a certain business, local and regional authorities should first consider whether a European public procurement procedure needs to be followed. The rules in this respect have been laid down in the European public procurement directives and, as from 1 April 2013, also in the Dutch Public Procurement Act (‘Aanbestedingswet’).
On the basis of the Public Procurement file, local and regional authorities can gain insight into the key issues with which they might be confronted in practice in the context of European regulation and policy in the field of public procurement.
The European public procurement directives
The most important European directives that local and regional authorities will have to deal with in the field of public procurement, are Directives 2004/18 and 2004/17. Public procurement directive 2004/18 applies to all public contracts within the so-called classical sectors: works, supplies and services. Directive 2004/17, on the other hand, is applicable to all public contracts within the special sectors: water, energy, transport and postal services. Most questions from local and regional authorities concern Directive 2004/18.
Formerly, the European public procurement directives were transposed into Dutch legislation by means of some governmental decrees (‘Algemene Maatregelen van Bestuur’ or ‘AMvB’) which were referred to as the Dutch Public Procurement (Tendering Rules) Decree (‘Bao’) and the Dutch Tendering (Special Sectors) Decree (‘Bass’). On 1 April 2013, both decrees were repealed and, ever since, the transposition of the European public procurement directives is effected by means of the Dutch Public Procurement Act (‘Aanbestedingswet’).
At the beginning of 2014, the European Commission published some proposals regarding the revised European public procurement directives: Directives 2014/23 (concession contracts), 2014/24 (classical sectors) en 2014/25 (special sectors). These directives had to be transposed into Dutch legislation before April 2016, by means of a revision of the Public Procurement Act.
Purpose of the European public procurement directives
The European public procurement directives have been prepared, among other things, to encourage fair and free competition within the EU and to establish an internal market. Within this context, the EU intends to create a European space for public contracts.
Proper implementation of the directives should ensure a more professional procurement process at contracting authorities. In this respect, integrity of governance, transparency and the acquisition of the best product at the economically most advantageous price are considered of paramount importance.
Regulation and policy
The regulations for European public procurement may be experienced as highly complex. It is crucial to scrutinise these directives, among other things, to assess whether or not an assignment from a local or regional authority falls within the scope of the European public procurement directives. Apart from the rules laid down in these directives, the judgments from the European Court of Justice also play an important role with respect to the interpretation of these rules. In addition, the European Commission does not just try and drive the desired developments on the public procurement market on the basis of European legislation, but also by means of European policy. Therefore, as regards the application of European rules and the interpretation thereof, European policy may be just as significant to local and regional authorities. All issues listed under the Public Procurement web file, provide further information on the regulations, case-law and policies relevant to that specific issue.