The general procedures for the award of public contracts, both those known as ‘classic’ and those under the ‘new procedures’ – which shall be examined in the following chapter of this work – constitute the essential element in ensuring adequate performance for the contracting authorities, and as a result, for the general interest, given that they affect the form and the conditions of both the operator and the contract to be signed as a result of the award procedure. Secondly, and this in my opinion is less important in qualitative terms, they constitute a crucial element in safeguarding the internal market, in so far as where the procedures are conducted properly, this will allow competition between the economic operators interested in providing the service to the contracting authority to take place harmoniously.
Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (hereinafter, the Public Procurement Directive) envisages three procedures which may be defined as being classic and which depend on the number of operators able to present their bids to the awarding authority – these would be the open, restricted, and negotiated procedures – and four new procedures – which would be competitive dialogue, framework agreements, dynamic purchasing systems, and central purchasing bodies. Furthermore, these are the only procedures that may be used by contracting authorities in the EU, which may not resort to procedures which are not provided for by the Directive. This chapter examines the the three classic procedures.
There are therefore seven procedures, sharing certain common principles which are set forth at article 2 of the Public Procurement Directive, pursuant to which the contracting authorities ensure ‘equal treatment, non-discrimination, and transparency’. I shall return to this point in the next section.
As may be seen, the Public Procurement Directive emphasizes the values relating to the operators, their legal situation, and the treatment they are to receive from the contracting authorities. As a result the overwhelming influence of competition concerns can be felt throughout the Directive. This is something that is to be expected in Directives that have the basic aim of regulating the procedure for awarding contracts, given that other substantial aspects of the public procurement regime are left to be ruled by the provisions enacted within the Member States provided that these do not affect the functioning of the internal market. Facilitating cross-border procurement is indeed the reason for the promulgation of Directives of this kind for the harmonization of matters affecting public contracts.
Beyond this initial assessment, which is reflected throughout this essay, it would be useful to bear one fact in mind: the explanation of the régime governing procurement procedures leads us to the most important fact in this matter. This is where the conditions offered by the tenderers are specified, where the technical specifications, the level of protection afforded to the general interest against breaches, and where the performance conditions for the service are proposed. In other words, all of those aspects define what the contracting authority seeks to obtain from this public contract and how involved it is willing to be in the execution of the contract. Ultimately, where the aim is to ‘steer’ an award procedure, it is at this time that the conditions will be specified. And it is precisely for this reason that the case law has held that it is compulsory for technical specifications and for general and special administrative clauses not to be discriminatory.
Lastly, it would be convenient to point out that the Public Authorities have reached a significant degree of sophistication in their public procurement procedures. As I already stated on another occasion (with reference to the application of the principle of budgetary stability it is even possible to talk of certain legal-financial engineering in public contractual activities. This requires the mechanisms for controlling public activity to go deep into the nature of the contract in order to assess whether or not the award procedures for the contract are suitable. Cases in which the negotiated procedure has been applied amount to a clear example of this situation.
The award procedures for contracts tend to give rise to complex case-files. Arguably the challenge facing European legislators now is how to simplify procedures in order to allow awards to be made more rapidly, thereby ensuring higher satisfaction in the public service provided. This is a question concerning the effectiveness and efficiency of public procurement, and it should not conflict in any way with the sustainability clauses contained in public procurement, given that procurement is also a mechanism for implementing public policies.
We should not overlook in this introduction a sociological fact which even the Court of Justice has referred to: the difficulty involved in enforcing the Public Procurement Directives. The increase in number of the contracting authorities, some of which are very small and with a poorly-qualified staff, the difficulties that sometimes arise in determining whether or not a particular service, and as such, a particular contract, falls within the scope of application of the Directive, and lastly, an uneven level of awareness on the part of the same contracting authorities, all make the procedure for enforcement rather complicated. This is not an excuse, obviously, but it does explain some of the events that have occurred. It might also be for this reason that the 2004 Directive has gone a long way towards codifying the case law of the Court of Justice, given that the contracting authorities were even less aware of this case law.