The EU’s new public procurement directives

After a lengthy legislative process, the Council of the European Union adopted three new directives on public procurement on 11 February 2014. The directives will come into force 20 working days after publication in the EU’s Official Journal (OJEU). Member states will then have two years in which they must implement the directives, although the UK has indicated that it intends to implement the directives as soon as possible.

The directives mark the most significant reform of public procurement law since 2004, when the current directives were adopted. Although the directives do not revolutionise the current regime, they do introduce some important changes to address a number of criticisms and uncertainties that have become associated with procurement in the EU. It has been argued by many, particularly small and medium-sized enterprises (SMEs), that the current directives place unduly onerous requirements on bidders for public contracts. Contracting authorities (generally those bodies spending government money, CAs) also argue that the current directives are too prescriptive in terms of formal procedures and award criteria, and afford limited opportunities to procure creative solutions. Furthermore, a number of issues, including the scope to make material changes to existing contracts and the ability for collaboration between CAs, have become rather complex as a result of developing case law. The directives provide the opportunity to remedy these deficiencies, and Taylor Wessing has set out in this update what it considers to be the most significant developments…

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