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 two sectors:
- the classic sector
- the utilities 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 2004/18/EC, 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 2004/17/EC 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.
For contracts that fall outside the scope of Directives 2004/18 and 2004/17, the European Court of Justice has ruled that the award of public contracts (including service concessions) must still respect the fundamental principles of EU law, if 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 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.
A new Remedies Directive has recently been adopted, but it has not yet entered into force in the EFTA States.