The current legislative framework setting the rules for public procurement consists of the 3 directives adopted in 2014 (2014/23/EU on concessions, 2014/24/EU on “classic” procurement and 2014/25/EU on “utilities” procurement). These rules aim at ensuring that public procurement procedures are transparent and fair.
In October 2017, the European Commission published a package of mostly soft law measures (guidance) aimed at helping with the implementation of the directives. It promoted the “strategic use” of public procurement (i.e. using innovative, green, social / societal criteria), as well as the professionalisation of public procurers (i.e. capacity building). FIEC broadly welcomed these measures, especially the professionalisation of public buyers, but was more sceptical about the strong promotion of “strategic procurement” (i.e. including innovative, green and social/societal criteria). These criteria are not clearly defined and sometimes diverge significantly from the traditional principle of purchasing for the best value for money, which can put at risk the level playing field between the various bidders.
Several recent strategies published by the new Commission foresee a great deal of initiatives regarding public procurement. The Commission envisages proposing further legislation and guidance on green public procurement. Importantly, it will come up with minimum mandatory green criteria for public procurement in sectoral initiatives, EU-funding or product-specific regulation, i.e. set a common definition of what a green purchase is. Moreover, the Commission will propose a Sustainable Procurement Screening Instrument ensuring the greening of public infrastructure projects. Also, it is foreseen to use Level(s) to integrate life cycle assessment into public procurement. With regard to SMEs, the European Commission will call on contracting authorities to use the flexibility offered by the procurement framework and launch an “SME friendly” label for contracting authorities.