Modernising the EU’s public procurement regime: a blueprint for real simplicity and flexibility

On 20 December 2011 the European Commission published its proposals for two new procedural directives on public procurement, one to replace Public Sector Directive 2004/18 and one to replace Utilities Directive 2004/17, with the stated aims of “simplification” and “flexibilisation” (sic) of the rules to improve value for money. However, following the pattern of the previous reforms in 2004, whilst the proposals do indeed provide for some additional flexibility, they have at the same time in many respects introduced more rigidity and burdensome requirements for Member States. Furthermore, these and other changes proposed will result in a set of rules which is vastly more complex than the current regime that the proposals purport to simplify. In this context, this article proposes a simple blueprint for reforming the directives to in the shape of a single directive for all regulated contracts that is based on the Utilities Directive, although with some modifications. Such an approach will afford the flexibility necessary for Member State to promote their own procurement policies, including value for money, in an appropriate way - in particular, it will allow Member States to authorise use of procedures involving negotiation, allow them to take account of the significant benefits of qualification systems, and facilitate cost-effective approaches to advertising contracts. Further, it will greatly reduce the complexities and uncertainties that apply under the current regulatory regime. This will result both from the greater simplicity of the content of the utilities rules as compared with the rules that apply under the other directives, and from the very existence of a single regime, which, inter alia, will eliminate the need to operate under multiple regimes and to determine the boundaries between them. Thus this approach will promote both the flexibility and simplification objective of the current reform agenda whilst at the same, it is submitted, providing a suitable framework of rules for promoting the single market in public procurement in the EU.