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Public procurement policy review: March to May 2017

This post sets out the key developments in public procurement legislation and policy that lawyers need to be aware of and covers the period from March to May 2017. The post does not consider case law as this is covered in our monthly public case digest. For a summary of the latest cases, see Public Procurement case digest (April 2017). A new case digest covering cases from May 2017 will be published in mid-June 2017.

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European Commission publications

The European Commission has issued the following publications:

  • On 25 May 2017, the European Commission published a notice in the Official Journal extending its deadline for considering a request from the Czech Republic under Article 35 of Directive 2014/25 on procurement by utility companies (the new Utilities Directive).
  • On 17 May 2017, the European Commission confirmed that it had decided to take Italy to the EU Court of Justice on the grounds that it had breached EU law by awarding an extension to a motorway concession contract without a call for tenders.
  • On 17 May 2017, the European Commission published its report on the review of the practical application of the European Single Procurement Document (ESPD). The ESPD offers preliminary evidence in the form of a self-declaration concerning exclusion criteria (e.g. criminal convictions) and selection criteria (economic and technical capacity) in order that usually the full set of underlying documents (e.g. relevant certificates) only needs to be presented by the winning tenderer.
  • On 18 March 2017, the European Commission published a notice in the Official Journal announcing that it has received a request from Eneco BV and NV Nuon Energy under the new Utilities Directive (OJ 2017 C85/6). This request concerns the retail of electricity and gas in the Netherlands.

Other European and government publications

  • On 3 May 2017, the government published updated European Structural and Investment Funds programme guidance.
  • In April 2017, the European Parliament published a paper entitled Consequences of Brexit in the area of Public Procurement. The paper assesses, in comparison with the position under EU membership, the implications of four approaches found in the EU’s relationships with other trading partners. These include the European Economic Area (EEA) Agreement model, and the World Trade Organisation (WTO) Agreement on Government Procurement (GPA) model. Between those two are what the paper calls an EEA–minus approach and a GPA-plus approach. It also notes the procurement-specific issues that may need to be addressed in any withdrawal agreement.
  • On 6 March 2017 the first meeting of the EU network of first instance review bodies took place. The meeting discussed ways to make the work of these bodies more efficient. At first instance review bodies, bidders can challenge the award of procurement contracts by public authorities.
  • On 15 March 2017, the government published Common Minimum Standards for Construction, replacing the previous standards for public sector procurement, which were published in 2012.


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