Public procurement in the EEA
The main objective of the EEA rules on public procurement is to ensure that public funds are spent in the most effective manner, according to the principle of “best value for money”, and to enhance cross-border competition for public contracts in the EEA.
The EEA rules on public procurement require public entities in EEA countries to follow certain procedures when buying goods, services or works that exceed certain values. The procedures must guarantee transparency and equal treatment of all potential suppliers in the EEA and must allow them equal access to public contracts in other EEA countries. As a rule, such contracts are announced in the Tender Electronic Daily (TED).
The legislation distinguishes between three sectors:
- the classic sector
- the utilities sector
- the concessions sector
The “classic sector” refers to all sectors except those that are explicitly excluded. The rules for public contracts in these sectors, provided they exceed a certain value, are laid down in Directive 2014/24/EU, and include provisions relating to:
- technical specifications
- selection and award criteria
Due to their particular characteristics, specific rules have been adopted for “utilities sector”, which covers water, energy, transport, and postal services. The rules are laid down in Directive 2014/25/EU and are similar to those applicable to the classic sector. There are, however, some important differences. The Directive provides, for example, for the possibility of granting an exclusion from the application of the Directive if, in the State concerned, there is unrestricted access and full competition in the market.
The “concessions sector” is the latest to be regulated in detail at EEA level. The 2004 Public Procurement Directives only partially covered concessions and the absence of clear EEA rules led to legal uncertainty as well as obstacles to the free provision of services. In response, Directive 2014/23/EU was adopted, introducing a stable legal framework for public authorities and economic operators to ensure non-discrimination and fair access to markets and EEA-wide competition for high-value concessions. Concession contracts are used by public authorities to deliver services or build infrastructure. Concessions involve a contractual arrangement between a public authority and an economic operator (the concession holder). The latter provides services or carries out works and is remunerated by being permitted to exploit the work or service.
For contracts falling outside the scope of the Directives referred to above, the award of public contracts must still respect the fundamental principles of EEA public procurement law, which implies a duty to verify whether these contracts are of cross-border interest, e.g. due to their value or duration. This means that they must involve a certain degree of transparency and that potential candidates may not be discriminated against.
Directive 89/665/EEC, as amended by Directive 2007/66/EC, provides for a framework for remedies in order to challenge award procedures and requires EEA States to adopt the measures necessary to ensure that decisions by contracting entities can be effectively reviewed. Remedies for breaches of the EEA public procurement rules must be sought primarily before the national courts.