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Foreword
Public procurement (the purchase by governments and state-owned enterprises of goods, services and works) accounts on average for approximately 12% of GDP of all OECD member countries (excluding procurement by state-owned utilities). When the purchases value of the procurement contracts of state-owned utilities is also accounted for, the size of procurement markets increases by an additional 2 to 13 percentage points of GDP.

Therefore, the legal framework of public procurement is key to improving the quality of government services, better allocating resources and providing greater value for taxpayers’ money. The legal framework has been harmonized by the EU Public Procurement Directives. However, member states have used their playing field when implementing these directives to fix certain national peculiarities, which lead to relevant differences in national public procurement laws.

Three new public procurement directives have been published on March 28th, 2014: (i) Directive 2014/24/EU on public procurement, (ii) Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors and (iii) Directive 2014/23/EU on the award of concession contracts. These new directives entered into force on April 17th, 2014 and must be implemented into national law until April 17th, 2016. Several member states, however, have implemented parts of the new regime already.

This guide intends to provide an overview on the EU Public Procurement Directives and 22 national procurement laws following ten questions, answered by CMS public procurement specialists experienced in the respective jurisdictions, including Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, China, Czech Republic, France, Germany, Hungary, The Netherlands, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Switzerland, Ukraine and the United Kingdom.

Your CMS experts are happy to answer any further questions you may have.

Bernt Elsner, editor
EU Directives
By Bernt Elsner and Florian Kromer, CMS Vienna:
In December 2011, the European Commission adopted its proposals on public procurement which is part of an overall programme aiming at an in-depth modernization of public procurement in the European Union. The programme included the revision of Directive 2004/17/EC (procurement in the water, energy, transport and postal services sectors, Directive 2014/25/EU) and 2004/18/EC (public works, supply and service contracts, Directive 2014/24/EU), as well as the adoption of a new directive on concessions (Directive 2014/23/EU), which – until now – had only been partially regulated at European level. The directives entered into force on April 17th, 20 days following its publication in the Official Journal of the European Union on March 28th, 2014. Member states have 24 months to implement the provisions of the new rules into national law. The changes the new directives seek to implement have been italicised in this document.
1. Where can one find public procurement notifications for the EU/EEA?
  • TED (Tenders Electronic Daily), the online version of the ‘Supplement to the Official Journal of the European Union’; TED contains public procurement notices and can be accessed via http://ted.europa.eu.
  • SIMAP, the European system of information on public procurement (http://simap.europa.eu/index_en.htm) provides information both for buyers and suppliers, including standard forms and links to the relevant legislation.
  • The EU institutions also publish tender notices.
  • eNotices is an online tool for the preparation and publication of public procurement notices.1. What are the relevant thresholds for the applicability of the Directives?

2. What are the relevant thresholds for the applicability of the Directives?


Awarded bySupply contractsService contractsWorks contracts
Contracting authority other than central government 207 000207 000
Central government authorities134 000134 000
Central government authorities operating in the field of defence concerning products other than Annex V207 000
Central government authorities operating in the field of defence concerning products pursuant to Annex V134 000
Any public contractor (Art 7 Dir 2004/18)207 000207 0005 186 000
Utility Services Sector (Water, energy, transport and postal services) (Art 16 Dir 2004/17)414 000414 0005 186 000
Utility Services Sector: design contests (Art 61 Dir 2004/17) 414 000


Awarded bySupply contractsService contractsSorks contractsService contracts for social and other specific services
Sub-central contracting207 000207 000
Central government authorities134 000134 000
Central government authorities operating in the field of defence concerning products other than Annex III207 000
Central government authorities operating in the field of defence concerning products pursuant to Annex III134 000
Any public contractor 207 000207 0005 186 000750 000 (Annex XIV)
Utility Services Sector (Water, energy, transport and postal services) 414 000414 0005 186 0001 000 000 (Annex XVII)

Awarded byConcession contracts:
Any public contractor5 186 000

Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • The contracting authorities are free to choose between the open and the restricted procedure (Art 28 Dir 2004/18/EC and Art 40 Dir 2004/17/EC).
  • In case of complex contracts and if the use of the open/restricted procedure is not possible, the contracting authority may use the competitive dialogue (Art 29 Dir 2004/18/EC). This does not apply to the utility services sector.
  • Cases justifying the use of the negotiated procedure, with prior publication of a contract notice, include: (i) where only irregular or unacceptable tenders have been submitted in response to an open or restricted procedure or competitive dialogue insofar as the original terms of the contract are not substantially altered; (ii) exceptional cases, when the nature of the works, supplies, or services or the risks attached thereto do not permit prior overall pricing, (iii) services insofar as contract specifications cannot be established with sufficient precision (particularly financial and intellectual services), and contracts in respect of public works contracts, for works which are performed solely for purposes of research, testing or development (Art 30 Dir 2004/18).
  • In the utility services sector the use of the negotiated procedure is always possible (Art 40 (2) Dir 2004/17/EC).
  • Cases justifying the use of the negotiated procedure without prior publication of a contract notice include: (i) contracts for which no tenders or no suitable tenders or no applications have been submitted in response to an open or restricted procedure, (ii) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator; (iii) insofar as it is strictly necessary, for reasons of extreme urgency due to unforeseeable events, (iv) cases of public supply contracts when the products involved are manufactured purely for the purpose of research, (v) cases of public service contracts, when the contract concerned follows a design contest, (vi) for certain additional deliveries/works/services (Art 31 Dir 2004/18). In the utility sector area certain modifications to this apply (Art 40 (3) Dir 2004/17).
  • Contracting authorities may apply open or restricted procedures (Art 26 (2) Dir 2014/24 and Art 44 (2) Dir 2014/25).
  • Contracting authorities may apply a competitive procedure with negotiation or a competitive dialogue in the following situations:
    • with regard to works, supplies or services fulfilling one or more of the following criteria (Art 26 (4) Dir 2014/24):
      • the needs of the contracting authority cannot be met without adaptation of readily available solutions;
      • they include design or innovative solutions;
      • the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial make-up or because of the risks attaching to them;
      • the technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European Technical Assessment, common technical specification or technical reference within the meaning of points 2 to 5 of Annex VII;
    • with regard to works, supplies or services where, in response to an open or a restricted procedure, only irregular or unacceptable tenders are submitted. In such situations contracting authorities shall not be required to publish a contract notice where they include in the procedure all of, and only, the tenderers which satisfy the criteria for qualitative selection and which, during the prior open or restricted procedure, submitted tenders in accordance with the formal requirements of the procurement procedure (Art 26 (4) (b) Dir 2014/24).
  • In the utility services sector the use of the negotiated procedure with prior call for competition is always possible (Art 44 (2) Dir 2014/25).
  • In the specific cases and circumstances mentioned below, Member States may provide that contracting authorities may award public contracts by a negotiated procedure without prior publication.
    The negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service contracts in any of the following cases (Art 32 (2) Dir 2014/24):
    • where no (suitable) tenders or no (suitable) requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission, where it so requests
    • where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons, when no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement:
      • the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;
      • competition is absent for technical reasons;
      • the protection of exclusive rights, including intellectual property rights;
    • if it is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with. The circumstances invoked to justify extreme urgency shall not, in any event, be attributable to the contracting authority.
    The negotiated procedure without prior publication may be used for public supply contracts (Art 32 (3) Dir 2014/24):
    • where the products involved are manufactured purely for the purpose of research, experimentation, study or development; however, contracts awarded pursuant to this point shall not include quantity production to establish commercial viability or to recover research and development costs;
    • for additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years;
    • for supplies quoted and purchased on a commodity market;
    • for the purchase of supplies or services on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.
    The negotiated procedure without prior publication may be used for public service contracts, where the contract concerned follows a design contest and is to be awarded, under the rules provided for in the design contest, to the winner or one of the winners of the design contest; in the latter case, all winners must be invited to participate in the negotiations.
  • In the sector area there are certain modifications and additions to this (Art 50 Dir 2014/25).
  • Contracting authorities may apply “innovation partnerships” as a new procurement process for the procurement of innovative products, services or products that cannot be met by conventional solutions on the market (Art 26 (3) and Art 31 (1) Dir 2014/24; Art 44 (3) and Art 49 (1) Dir 2014/25).
  • Dir 2014/23 on the award of concession contracts applies to the award of works or service concessions (as defined in Art 5 (1) Dir 2014/23) to economic operators (Art 1 (2) Dir 2014/23)

2. Which decisions of a contracting authority can be appealed?
  • An appeal is possible against unlawful contract award decisions, discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or any other document related to the contract award procedure (Art 2 (1) (b) Dir 89/665/EEC and Art 2 (1) (b) Dir 92/13/EEC).

3. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • The period for applying for review must amount to a minimum of 10 days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate by fax or electronic means.
  • The period for applying for review shall amount to a minimum of 15 calendar days if other means of communication have been used.
  • For reviews concerning the setting aside of decisions, the contracting authority’s decision is to be accompanied by a summary of the relevant reasons, the period shall amount to a minimum of 10 days following the date of the publication of the decision concerned (Art 2c Dir 89/665/EEC and Art 2c Dir 92/13/EEC).

4. How long is the standstill period?
  • There is a standstill period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned (if fax or electronic means have been used).
  • It lasts for at least 15 calendar days if other means of communications have been used.
  • It shall amount to a minimum of 10 calendar days from the day following the date of the receipt of the contract award decision (Art 2a Dir 89/665/EEC and Art 2a of Dir 92/13/EEC).

5. Which review bodies exist?
  • Review bodies have to be established by the Member States. The powers may be conferred on separate bodies responsible for different aspects of the review procedure. These bodies must be entitled to grant interim measures, set aside decisions and award damages.
  • Member States may require that the person concerned first seek review with the contracting authority.
  • If the review body is not a court it must still provide written reasons for its decision, with the possibility to appeal to a court according to Art 234 TFEU (Art 2 (9) Dir 89/655/EEC and Art 2 (9) Dir 92/13/EEC).

6. Are there any filing fees for an appeal?
  • Filing fees, if any, are regulated by national laws.

7. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • If Member States require that the bidder concerned first seeks review with the contracting authority, the submission of such an application for review must result in an immediate suspension of the possibility to conclude the contract (Art 1 (5) Dir 89/665/EEC and Art 1 (5) Dir 92/13/EEC). If a body of first instance, independent of the contracting entity, reviews a contract award decision, Member States shall ensure that the contracting entity cannot conclude the contract before the review body has made a decision on the application (Art 2 (3) of Directive 89/665 EEC and Art 2 (3) of Directive 92/13/EEC).
  • Otherwise, review procedures do not necessarily have an automatic suspensive effect (Art 2 (4) Dir 89/665/EEC and Art 2 (3a) Dir 92/13 EEC).
  • Member States must ensure the availability of interim measures to suspend the award of a public contract (Art 2 (1) a Dir 89/665/EEC and Art 2 (1) a Dir 92/13/EEC).

8. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • Member States provide for ineffectiveness of a contract if (i) the contract has been awarded without prior publication of the contract notice, (ii) if certain infringements have deprived the tenderer applying for review, (iii) in case of derogation form the standstill period, for contracts based on a framework agreement or a dynamic purchasing system (Art 2d (1) Dir 89/655 EEC and Art 2d (1) Dir 92/13/EEC as amended by Directive 66/2007/EC).
  • Member States may provide that the review body independent of the contracting authority shall decide, after having assessed all relevant aspects, whether the contract should be considered ineffective or whether alternative penalties should be imposed.
  • Alternative penalties must be effective, proportionate and dissuasive. They shall be the imposition of fines on the contracting authority or the shortening the duration of the contract (Art 2e (2) Dir 89/655/EEC and Art 2e (2) Dir 92/13/EEC as amended by Dir 66/2007/EC).
  • According to Art 2 (1) (c) Dir 89/665/EEC and Art 2 (1) (d) Dir 91/13/EEC as amended by Dir 66/2007/EC, Member States shall ensure that the measures taken concerning the review procedures, include provisions for powers to award damages to persons harmed by an infringement.

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