EU procurement guidance: Introduction to the EU procurement rules†
The European Union (EU) Procurement Directives*1, and the Regulations*2 that implement them in the UK, set out the law on public procurement. Their purpose is to open up the public procurement market and to ensure the free movement of goods and services within the EU.
The rules apply to purchases by public bodies and certain utilities which are above set monetary thresholds. They cover all EU Member States and, because of international agreements, their benefits extend to a number of other countries worldwide.
Where the Regulations apply, contracts must be advertised in the Official Journal of the EU (OJEU) and there are other detailed rules that must be followed. The rules are enforced through Member States’ courts, and the European Court of Justice (ECJ).
- 12.1 Four award procedures are provided for in the Regulations:
- the open procedure, under which all those interested may respond to the advertisement in the OJEU by tendering for the contract;
- the restricted procedure, under which a selection is made of those who respond to the advertisement and only they are invited to submit a tender for the contract. This allows purchasers to avoid having to deal with an overwhelmingly large number of tenders;
- the competitive dialogue procedure, following an OJEU Contract Notice and a selection process, the authority then enters into dialogue with potential bidders, to develop one or more suitable solutions for its requirements and on which chosen bidders will be invited to tender; and
- the negotiated procedure, under which a purchaser may select one or more potential bidders with whom to negotiate the terms of the contract. An advertisement in the OJEU is usually required but, in certain circumstances, described in the Regulations, the contract does not have
- 12.2 to be advertised in the OJEU. An example is when, for technical or artistic reasons or because of the protection of exclusive rights, the contract can only be carried out by a particular bidder.12.2 Public authorities have a free choice between the open and restricted procedures. The competitive dialogue procedure is available where the contract cannot be awarded under open or restricted procedures. The negotiated procedure may only be used in the limited circumstances described in the Regulations. Utilities have a free choice between the open, restricted and negotiated procedures, but the Competitive Dialogue procedure is not available to them.
- 12.3 Under restricted, competitive dialogue and competitive negotiated procedures (those where a call for competition is required by advertising in the OJEU) there must be a sufficient number of participants to be selected to proceed to the tender stage to ensure genuine competition. The Regulations require a minimum of five for the restricted procedure, and three for competitive dialogue and negotiated procedures.
(12. Choice of procurement procedure)
- Directive 2004/18/EC of the European Parliament and of the Council of 31st March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts; and
Directive 2004/17/EC of the European Parliament and of the Council of 31st March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. Please see: Official Journal L 134.
- The Public Contracts Regulations 2006 and the Utilities Contracts Regulations 2006