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Support to Kosovo institutions on SAA implementation
Novelties of the new European Public Procurement Law
Transposition of European Public Procurement Law in national law
Pristina, … September 2018
Twinning Project KS 14 IPA OT 02 16
Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland
TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
2 Pristina, 2018
Twinning project KS 14 IPA OT 01 16 “Support
to Kosovo institutions on SAA implementation”
Table of contents
1 International Law
2 EU primary law
3 EU secondary law
4 Directives on Public Procurement
5 Regulations on Public Procurement
6 Thresholds
7 Example of Germany to transpose in national law
8 Example of Croatia as a new member of EU
9 Transposition of options
Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland
TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
3 Pristina, 2018
Twinning project KS 14 IPA OT 01 16 “Support
to Kosovo institutions on SAA implementation”
1. International Law
• The current „Agreement on Government Procurement“ GPA of the World
Trade Organisation (WTO) was signed at 30.03.2012. After the ratifications it
entered into force at 06.04.2014.
• GPA is the only legal binding agreement on procurement of the WTO. It aims to
achieve more transparency and accountability of public procurement within the
GPA judiciary.
• GPA contracting parties: the European Union (for all current 28 Member
States) Armenia, Canada, Hong Kong (China), Iceland, Israel, Japan, Korea
(Republic), Liechtenstein, Moldova, Montenegro, Netherlands (for Aruba), New
Zealand, Norway, Singapore, Switzerland, Taipei (Chinese), Ukraine and the
United States (USA). 18 parties (+ 28 MS of EU).
• 10 WTO members are in the acceding process. About 30 are observers.
• The GPA is already transposed in the new EU procurement law.
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TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
4 Pristina, 2018
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2. EU primary law
The Treaty on the Functioning of the European Union (TFEU)
• 1st Version: Treaty of Maastricht 1992,
• Current valid version: Treaty of Lisbon 2007.
• The primary law also apply in the subthreshold area.
• Important for public procurement law:
Equal treatment,
transparency,
prohibition of discrimination.
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3. EU secondary law
EU Directives (enacted by the Parliament / the Council)
To be transposed in a certain time frame into national law
EU Regulations (enacted by the Commission)
Immediately applicable
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Contracts on works, supplies and services
Directive on public procurement 2014/24/EU
Of 28th March 2014, in force since 17th April 2014
Had to be transposed in national law by 18th April 2016, some
provisions later
Contracts of Utilities
Directive on procurement by entities operating in the water, energy, transport and postal services sectors 2014/25/EU
Of 28th March 2014, in force since 17th April 2014
Had to be transposed in national law by 18th April 2016, some
provisions later
4. Directives on Public Procurement
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4. Directives on Public Procurement
Concessions for works and services
Directive on the award of concession contracts 2014/23/EU
Of 28th March 2014, in force since 17th April 2014
Had to be transposed in national law by 18th April 2016, some
provisions later
Contracting in defence and security area
Directive on the coordination of procedures for the award of
certain works contracts, supply contracts and service contracts
by contracting authorities or entities in the fields of defence
and security 2009/81/EC of 13th July 2009
Including remedies provisions
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8 Pristina, 2018
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to Kosovo institutions on SAA implementation”
Clean vehicles
Directive 2009/33/EC of 23rd April 2009 on the promotion of clean and energy-
efficient road transport vehicles
in force since 4th June 2009
Had to be transposed in national law by 4th December
2010
Electronic invoices
Directive on electronic invoicing in public procurement
2014/55/EU
Of 16th April 2014, in force since 26th May 2014
To be transposed in national law by 27th November 2018.
Proceeding electronic accounts: EU-Norm of CEN by
27th May 2017. Sub central CAs by 27th November 2019
4. Further related Directives
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Classical: coordination of the laws,
regulations and administrative provisions relating to the
application of review procedures to the award of public supply and public
works contracts
Directive 89/665/EEC
Of 21st December 1989
Utilities: coordinating the laws,
regulations and administrative provisions relating to the application of Community rules on the procurement
procedures of entities operating in the water, energy, transport and
telecommunications sectors
Directive 92/13/EEC
Of 25th February 1992
4. Directives on remedies
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Common Procurement Vocabulary (CPV)
Regulation (EC) No. 2195/2002 of the Parliament and the
Council (originally the Commission)
of 5th November 2002,
Consolidated version of 18th June 2009
Establishing standard forms for the publication of notices
in the field of public procurement
Regulation (EC) Nr. 842/2011 of the Commission
of 19th August 2011
5. Regulations on Public Procurement
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determining the rules applicable to periods, dates
and time limits
Regulation (EEC) No. 1182/1971 of the
Council of 3rd June 1971
establishing the standard form for the European Single Procurement
Document ESPD
Commission Implementing Regulation (EU) 2016/7 of
5th January 2016
In force since 26th January 2016, applicable with the transposition of Directive
2014/24/EU, also applicable for Directive 2014/25/EU
5. Regulations on Public Procurement
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▸ Above the thresholds the European procedure is applicable. Below the thresholds the national procedure is applicable. However, the primary law is legally binding.
▸ Thresholds will be adopted every two years by the Commission.
▸ Lower national thresholds would be basically permitted.
▸ Example Germany: Dynamic Reference in the national law § 106 sect. 2 GWB
1. On directive 2014/24/EU (classic), article 4,
2. On directive 2014/25/EU (utilities), article 15,
3. On directive 2009/81/EG (defence-security), article 8,
4. On directive 2014/23/EU (concessions), article 8.
▸ Germany: Published regularly in Federal Gazette by the Ministry of Economy.
6.Thresholds
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Contracts / contracting authorities EUR net
Supplies and services of central CAs 1 144.000
Supplies and services general 1 221.000
Works 2 3 5.548.000
Supplies and services of Utilities CAs 2 443.000
Supplies and services of defence-security CAs 3 443.000
Concessions 4 5.548.000
6.Thresholds
1 Article 4 classical directive 2 Article 15 utilities directive 3 Article 8 defence-security directive 4 Article 8 concessions directive
Updated 2017
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TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
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Twinning project KS 14 IPA OT 01 16 “Support
to Kosovo institutions on SAA implementation”
6.Thresholds
Contracts / contracting authorities EUR net
Social and other special services (including legal counselling) 1 750.000
Social and other special services (utilities) 2 1.000.000
1 Art. 74 in conjunction with Art 4 lit. d, annex XIV of Directive 2014/24/EU
2 Art. 91 in conjunction with 15 lit. c, annex XVII of Directive 2014/25/EU
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7. Example of Germany to transpose in national law – above thresholds
GWB part 4, §§ 97 – 184 Law against restrictions of competition
Defence- Security
Regulation
VSVgV
§ 2 VgV: for works
additionally VOB/A
section 2
§ 2 Abs. 2 VSVgV:
for works additionally
VOB/A section 3
Award Regulation
VgV
Concessions Regulation
KonzVgV
Award statistics
Regulation
VergStatVO
Utilities Regulation
SektVO
Reg
ula
tio
ns
R
efe
ren
ce
s
Law
Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland
TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
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Amendment of the e-Government Law
Obtaining electronic invoices since 27th Nov. 2018. By sub central CAs since 27th Nov.
2019
E-invoicing Register of
Competition
Law on Register of Competition
To indicate excluded
companies
Will be operable in 2019
General provisions for self cleaning process
7. Example of Germany to transpose in national law – above thresholds
Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland
TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
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Law: Budget Laws of Federal and Lander-level* § 55 BHO/LHO
Administrative regulations VV-BHO, VV-LHO
VOL/A
Conditions of contract for services
section 1
UVgO
Sub threshold procurement regulation
VOB/A
Tender procedures for building works
section 1
7. Example of Germany to transpose in national law – below thresholds
*Applies only for state´s and local bodies ruled by budgetary law, not for other entities.
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§ 55 LHO Budget law priority of public procedures
No. 1 – 4 to § 55 VV-LHO
Administrative budget regulation
“Public contracts and procurement in Rhineland-Palatinate” Administrative regulation of the Ministry of Economy of 24 April 2014
Lander regulation on reviewing bodies of 19th September 1999, updated 8th July 2010
7. Example of Germany to transpose in national law –
Lander level – Rhineland-Palatinate
Law on SME support
§ 7 Principles of public procurement
E Government Law Rhineland-Palatinate
Draft 2017 (e-invoicing)
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TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
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8. Example of Croatia as a new member of EU
Croatia had a 8 year lasting process to become member of the
European Union. Them membership was achieved at 1st July 2013.
29th December 2008. opening of chapter 5 “public procurement”
http://www.mvep.hr/custompages/static/hrv/files/pregovori/4/05.pdf
30th June 2010. closing of chapter “public procurement”
http://www.mvep.hr/custompages/static/hrv/files/pregovori/5/p5.pdf
http://www.mvep.hr/custompages/static/hrv/files/pregovori/ZSEUHR/05
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TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
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8. Example of Croatia – transposition process
• Simplification of rules (cutting the red tape)
• (Anti)corruption
• Effective legal protection
• MEAT (most economically advantageous tender)
• SME (small and medium sized enterprises)
• Social & green
• Innovations
• E-public procurement (e-submission)
• Education and control (capacity building, ESI funds - European structure and Investment Funds)
Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland
TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
21 Pristina, 2018
Twinning project KS 14 IPA OT 01 16 “Support
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• http://www.javnanabava.hr/
• http://www.dkom.hr/
• https://eojn.nn.hr/Oglasnik/
• http://ec.europa.eu/growth/single-market/public-procurement/
• https://ec.europa.eu/growth/tools-databases/ecertis/
• http://eur-lex.europa.eu/
• http://ted.europa.eu/TED/main/HomePage.do
• http://ec.europa.eu/prelex/apcnet.cfm?CL=en
• http://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm
8. Example of Croatia – useful links
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TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
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Twinning project KS 14 IPA OT 01 16 “Support
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9. Transposition of options
• The new directives encompass a high number of option which the
national legislator has to take in account. He can decide to choose an
option as an obligation for contracting authorities or as a possibility for
them or not to apply the option at all.
• The application of the options should be based on a decision of the
government. In this process PPRC is strongly involved.
• The transposition of options should be harmonised, e.g. option for
subcontracting in all three directives.
Options of the new directives:
• Directive 2014/24/EU on Public Procurement – 48 options
• Directive 2014/25/EU on Utilities – 42 options
• Directive 2014/23/EU on Concessions – 25 options
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TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
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Twinning project KS 14 IPA OT 01 16 “Support
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9. Transposition of options
Broadening the scope of the Directive 4
Additional flexibility/ simplification for contracting authorities 5
Central Purchasing Bodies 5
Division into lots 2
e-procurement 6
Horizontal "social" clause 1
Exclusion grounds 6
List of approved economic operators 1
Reserved contracts 1
Contract award criteria 3
Subcontracting 9
Abnormally low tenders 1
Modification of contracts 1
Simplified regime for social and other specific services 3
Options of Directive 2014/24/EU on Public Procurement – overview
Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland
TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
24 Pristina, 2018
Twinning project KS 14 IPA OT 01 16 “Support
to Kosovo institutions on SAA implementation”
9. Transposition of options
Broadening the scope of the Directive 7
Activities directly exposed to competition 1
Additional flexibility/ simplification for contracting authorities and/ or
contracting entities 3
Central Purchasing Bodies 5
Division into lots 2
e-procurement 3
Horizontal "social" clause 1
Exclusion grounds 2
Reserved contracts 1
Contract award criteria 3
Subcontracting 9
Abnormally low tenders 1
Modification of contracts 1
Simplified regime for social and other specific services 3
Options of Directive 2014/25/EU on Utilities – overview
Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland
TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
25 Pristina, 2018
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9. Transposition of options
Broadening the scope of the Directive 3
Simplified regime for social and other specific services 1
Reserved concessions 1
Economic operators 2
Communication 2
Horizontal "social" clause 1
Technical and functional requirements 1
Exclusion grounds 4
Award criteria 1
Subcontracting 8
Modifications 1
Options of Directive 2014/23/EU on Concessions – overview
Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland
TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
26 Pristina, 2018
Twinning project KS 14 IPA OT 01 16 “Support
to Kosovo institutions on SAA implementation”
9. Transposition of options
A German example of transposing an option
Article 32 para. 1 DIR 2014/24/EU
“In the specific cases and circumstances … Member States may
provide that contracting authorities may award public contracts by a
negotiated procedure without prior publication.”
German Law GWB §§ 130, 131: “A negotiated procedure without
competition is only available to the extent permitted by this law.”
VgV Procurement Regulation § 14 sect. 4:
“The contracting authority may award contracts in the negotiated
procedure without competition only in following cases: …”
Priština, October 11th, 2016 Twinning Proposal by Germany, Croatia and Poland
TRANSPOSITION OF EUROPEAN PUBLIC PROCUREMENT LAW IN NATIONAL LAW
27 Pristina, 2018
Twinning project KS 14 IPA OT 01 16 “Support
to Kosovo institutions on SAA implementation”
9. Transposition of options
A German example of transposing an option
9 cases displayed, i.a.
• if no or no suitable offers or requests to participate have been made in an
open or restricted procedure, unless the initial terms and conditions of the
contract are fundamentally changed,…
• if the task can only be provided by a particular company, because a unique
piece of art or artistic achievement is to be created or acquired or because for
technical reasons there is no competition …
• if it is a delivery item listed and purchased on a stock market exchange,
• if, following a design competition, a service contract has to be awarded to the
winner or to one of the winners according to the terms of this competition;
Thank you very much for your attention!
Pristina, September 2018