Would you like to see a much simpler approach taken by the European procurement legislation?

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The publication of the European Commission's Green Paper on the modernisation of EU public procurement policy gives a once in a decade opportunity to influence the way in which your procurement is controlled. I would like to urge you to make your voice heard, writes Glenn Fletcher, Director, EU Procurement, Achilles.

The Commission is seeking to streamline procurement legislation and bring it up-to-date as part of a general programme to look at all single market issues which affect trade between member states in the run up to 2020 (as part of the Europe 2020 strategy).

The Commission thinks the rules need to be simplified and updated to improve the climate for business innovation and provide support for small firms and for the European Union's requirement to improve carbon efficiencies, whilst ensuring the best use of public funds and that European markets are kept open.

The Green Paper is one of a number of elements of the review process which also includes extensive consultancy reports to inform Commission policy leading to a formal proposal in 2012 to amend the public and utility sector procurement directives. The process of producing the new directives is likely to take at least five years. With further time for member states to make that directive into their own national law, it's unlikely we'll see formal changes in the UK law arising from this review until at least 2018, assuming that the legislative process moves fairly quickly.  However stakeholder comment at this early stage is likely to have much more impact than when the legislative process formally starts.

The Green Paper seeks comments on a large number of suggestions for improvements to the legislation, many of which have come from the supplier community, and the range of issues it covers can be measured by the fact that it covers 55 pages and seeks answers to 114 separate questions arising from the paper.  The Commission also makes it clear that it is seeking new ideas not mentioned in the paper, in particular from those in the procurement community.

The Green Paper includes a large of suggestions aimed at improving flexibility for the purchaser. These include simpler rules for simple, commercially available items and much greater access to negotiated procedures (which most purchasers consider essential to improve value for money). The paper also suggests the use in the public sector of qualified lists of suppliers, eliminating the need to apply to individual notices for each contract (currently this 'qualification system 'approach is only available to energy, water transport and postal services "utilities entities").

The paper also echoes something of the modernisation and transparency agenda of the UK Cabinet Office efficiency programme, including the reduction of the detail of pre-qualification processes to allow small firms greater access to the contract opportunities.

The Commission thinks there could be greater discretion given to purchasers to build social and environmental policies (sustainability) into procurement.  This is considered particularly important for measures to help reduce carbon intensity.  The tone of the paper however suggests the Commission has doubts as to how this can be achieved without risk to the openness of European markets.

An interesting suggestion which fits in well with the concept of deregulating procurement is that the rules should no-longer apply to entities in the utilities sector. These are bodies such as electricity, water and transports companies that have been regulated by the European procurement legislation since 1990. At that point it was argued that the procurement of these utilities was strongly influenced by national governments and that regulation was necessary to ensure the opening up of trade between member states. The liberalisation of those markets since 1990 suggests to the commission that there is no need to regulate through directives, when the commercial behaviour of utility companies in procurement is more likely to be influenced by commercial factors, rather than government diktat. This approach is probably one of the most radical suggestions in the Green Paper and is likely to attract support from many in the UK utility community.

A large part of the paper is clearly aimed at reducing regulation and to simplify the process for purchaser and supplier communities. However there are a number of areas in which the Commission suggests an increase in the degree of regulation.

For example, it suggests that the legislation should limit the changes that could be made to a contract once it has been awarded this is currently not covered by the legislation. It also suggests that certain standards, (e.g. environmental standards) should be made mandatory within the legislation and they suggests providing obligations to protect whistle blowers who expose corruption in procurement.

Many of these areas are traditionally considered to be matters for the discretion of the member states or of the purchasing entities themselves. The commission's suggestion of EU regulation of these areas should be increased is therefore likely to prove controversial with purchasers and suppliers and with the member states.

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