Procurement Regulation and the Uniplex Effect,

Abstract

EU public procurement legislation has been developed in order to promote principles of competition, equal treatment, mutual recognition, proportionality and transparency through the Public Sector Procurement Directive (2004/18/EC) and the Utilities Directive (2004/17/EC) which apply to supplies, works and services above the stipulated value thresholds procured by contracting authorities. For those economic operators who experience a breach of public procurement law a complaint can be made to the European Commission under the Article 258 procedure but this may be slow and ineffective. The Public Sector Remedies Directive and the Utilities Remedies Directive provide a new regime from December 2009 which includes inter alia a mandatory standstill period between award and contract signature in accordance with the Alcatel judgment, an obligation for Contracting Authorities (CAs) to provide feedback to tenderers and suspension of the contract award after the commencement of proceedings.
The public procurement directives were developed from earlier legislation and incorporate further important principles established by the Court of Justice of the European Union (CJEU) relating to the integration of horizontal policies such as the achievement of social and environmental objectives into the public procurement process. Currently the process of modernising EU public procurement policy is underway in the form of a consultation process commencing with a green paper which seeks to invite views from all those who have a stake in public procurement with legislative proposals expected in 2012. The focus is upon the most effective ways of improving processes in order to achieve Europe 2020 objectives which set out to promote business innovation, a low-carbon economy and the participation of Small and Medium Enterprises (SMEs).
Before and since the implementation of the directives in national Public Contract Regulations (PCR) there has been a series of developments in EU and member state case law which have been instrumental in establishing legal principles to address the multitude of grievances put forward by unsuccessful tenderers participating in the public procurement process. Many of the claims are focused upon the lack of equality and transparency in the bidding process and a number of cases have dealt with the problems associated with selection and award criteria. This paper examines specific aspects of the selection process which have been a cause for concern including the time limits for notification of infringement of the PCR, the discretion exercised by Contracting Authorities (CAs) in this process and the impact of Uniplex and other cases upon these issues.