Sustainability public Procurement using new procedures of the 2014 Directives

Abstract

It is common knowledge that the current directives on public contracts 2014/23/EU, 2014/24/EU and 2014/25/EU allow the use of award rules to foster sustainability. In particular, the main directive on public procurement, i.e. Directive 2014/24/EU, states that ‘this Directive clarifies how the contracting authorities can contribute to the protection of the environment and the promotion of sustainable development while ensuring that they can obtain the best value for money for their contracts’ (recital 91). It stems from it that this new ‘horizontal’ objective must be conciled with the core of public procurement rules, best value encapsulating free access to public contracts, equal access and transparency. In other words, there might be situations where those core principles may limit the use of public procurement for enhancing sustainability. Bearing in mind this potential conflict, can the new award procedures put in place in 2014 be an efficient tool to promote the sustainability objective? Here lies the question we propose to deal with in this article. One must first make clear what the expression of new award procedures covers since the 2014/24/EU directive does not refer to any ‘new procedures”. When it comes to novelties, it only refers to ‘new rules’ for cross border joint procurement (recital 72). But making no reference to any new procedures does not necessarily means that no new award procedure was introduced. Indeed, at least one may be ranked in this category. Strictly speaking, the only real new procedure introduced in 2014 is the innovation partnership. It is aimed ‘at the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works, provided that they correspond to the performance levels and maximum costs agreed between the contracting authorities and the participants’ (article 31.2 of directive 2014/24). ‘In the procurement documents, the contracting authority shall identify the need for an innovative product, service or works that cannot be met by purchasing products, services or works already available on the market. It shall indicate which elements of this description define the minimum requirements to be met by all tenders. The information provided shall be sufficiently precise to enable economic operators to identify the nature and scope of the required solution and decide whether to request to participate in the procedure’. There can be either just one or several partner in developing the innovative solutions (article 31.1 of directive 2014/24) (Cerqueira Gomes, 2021). However, two other procedures are relevant for the topic we are addressing: the competitive procedure with negotiation and the competitive dialogue. They actually existed before – the former under a different name – but they can be treated as new non just because their legal regimes have been slightly updated but because, and more importantly, the legal conditions set for their use have been considerably extended. For instance, under the 2004 directive, competitive dialogue was only allowed when a procurement contract was ‘particularly complex’ i.e. when contracting authorities where not objectively able to define the technical means capable of satisfying their needs or objectives, and/or were not objectively able to specify the legal and/or financial make-up of a project (article 1.11.c of Directive 2004/18/EU). Negotiated procedures, as they were then called, where allowed in a limited number of exceptional situations. Both procedures are now subject to the same conditions so widely drafted that they are very likely to be easily met in practice (article 26.4.a. of Directive 2014/24/EU) (Telles and Butler, 2021). The following reflections are based on the analysis of the text of the Directives, of the legal and economic literature regarding sustainable public procurement (SPP) and on a survey that the Chair on public contracts law is currently running1. This Chair uses on the field investigation methods (interviews, online surveys) in order to assess the impact of public contracts rules on the actual purchasing practice. We will first analyse why these new procedures could have been a good tool for sustainable public procurement and then why this has not the case before drawing some conclusions.