ANNEX
The emerging results of consultation on the Commission's Green Paper on public
procurement
Note by the Treasury
This note summarises the responses so far on the five main issues at paragraph 2 of the
Explanatory Memorandum. The final version of the CBI's response is expected shortly, but is
unlikely to differ significantly from the interim response which CBI has sent to the European
Commission. The CBI response is significant in representing the views of both purchasers and
suppliers (including contractors and service-providers).
1. The objectives of the EU's procurement policy and its impact to date.
The comments received on this section reflect scepticism on the use of cross-border transactions
as the yardstick for measuring the impact of the rules. In practice, suppliers break into local
markets by establishing local presence and this is not picked up by the figures. Respondents have
noted, however, that import penetration across the EU has nearly doubled since 1987 although the
last of the directives did not come into force until July 1994.
There is agreement that the rules must not impinge on value for money and should offer a better
fit with world class procurement practice.
Some utilities have been disappointed by the lack of response from suppliers.
2. The implementation of the Community legislation in national law and effective
application.
This section of the Green Paper has produced the greatest response because it advocates a period
of stability, without fundamental changes to the Directives, and suggests additional means of
enforcement.
Most replies agree that the Directives need to be simplified, clarified and brought up-to-date,
implicitly to offer greater flexibility, particularly for the public sector. The these is evolution
not revolution, but with a deregulatory approach, perhaps under the SLIMS process.
There is general support for:
-- consolidation of the three public sector directives into one text;
-- allowing more use in the public sector of the competitive negotiated procedure
and qualification systems as a means to call for competition;
-- making the same provision for the use of framework agreement as in the
utilities sector;
-- reviewing the coverage of the Utilities Directive, so that utilities which
operate in increasingly competitive markets are removed from the scope of the rules or benefit from
a lighter regime; and
-- updating the directives so that they do not hinder new approaches to the
delivery of public services, such as private finance and public-private partnerships, the effective
operation of joint ventures and best practice.
Some public sector purchasers favour raising the thresholds for supplies and services. (Comment:
To have any practical effect, that would require the WTO Government Procurement Agreement (GPA)
thresholds to be raised as well.)
Periodic Information Notices of major intentions in the coming year are considered by purchasers
to be confusing and of little value.
On enforcement, respondents are opposed to the idea of independent enforcement authorities.
Many favour the development of conciliation as an alternative to legal proceedings. Those who have
mentioned dissuasive payments or fines are against them. There is qualified support for voluntary
attestation (independent audit of procurement systems) but may replies emphasise the need for an
incentive to use it, such as derogation from the detailed rules.
3. How market access can be facilitated by information and training and also
through the development of electronic procurement.
Many replies highlight the need for guidance from the Commission is to reduce legal uncertainty
and provide advice on how to complain in other Member States. This could include examples of best
practice and be made available on the Internet.
The importance of increased awareness through training is emphasised for both purchasers and
suppliers (particularly SMEs).
There is agreement that market access for suppliers would also be helped by the provision of
market data and by streamlining the information provided in the Official Journal, both in its hard
copy and electronic formats. This would be aided by the availability of standard forms and by
improvements to coding systems.
There are varying levels of enthusiasm for the Green Paper's proposals on the development of
electronic tendering. Use of the Internet features in several responses, together with concern that
new technical barriers should not be allowed to develop.
4. How public procurement policy can be combined with other Community policies
Replies here mostly consider that the use of non-commercial criteria would compromise value for
money and that public procurement should not be used to promote other policy goals.
There is a suggestion that guidance should be provided on the extent to which purchasers can
specify green products or products produced by green processes. Some purchasers seek greater
freedom to apply environmental criteria.
There is general dissatisfaction with the Community's standards-making process.
The importance of small firms is recognised but, except in the construction sector, there is
no call for positive discrimination rules below the threshold of the directives or for Community
rules on prompt payment. As elsewhere the emphasis is on better information and guidance.
The existing systems for checking compliance in relation to Community-funded contracts are
considered to be adequate.
Developments on the liberalisation of defence procurements should not involve any change to the
scope of Article 223/EEC.
5. Access to other countries' procurement markets.
There is support for further liberalisation under the WTO, through a multilateral agreement
which would have less detailed rules than the current GPA or the EC Directives.
6. Consultation with other Member States has identified shared concerns, with the
reluctance of some towards legislative change and with enthusiasm by very few for new enforcement
measures. There is no enthusiasm for increased powers for the Commission but, without exception,
Member States can be expected to call for the effectiveness of the present regime to be improved
through guidance, training and better market information.
7. In post-consultation discussions, purchasers and suppliers have offered support
for reinstating on the face of the directives the principles of non-discrimination an competitive
procurement on which they are based. In addition to guiding interpretation of the Directives this
would offer the basis for an alternative lighter regime for liberalised sectors or a basis for
attestation as an alternative to the detailed rules.
HM Treasury
March 1997
