Draft of a new Public Procurement Act has been published

The process of implementing EU Directives concerning public procurement and utilities contracts has entered a new phase. On 21 April 2015 the Public Procurement Office published a draft of the new Act regulating the matter.

Despite the initial plan for the new law, it will not merge the rules on public procurement and concessions. The draft of a new Act that will govern concessions has been published separately.

The new legislation will implement new EU Directives, including:

• Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, and
• Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC.

The Directives must be implemented by 18 April 2016, but some rules may be implemented in 2017 or 2018.

The current draft does not differ significantly from the initial conception (which we described here). The proposed changes include:

• the introduction and promotion of electronic procurement,
• simplification of procedures, e.g. the introduction of a European Single Procurement Document – as preliminary proof that the economic operator meets the tender conditions; only the successful bidder will then be required to submit all documents confirming the ability to take part in public procurement,
• improving the access of small and medium-sized enterprises to public procurement, e.g. dividing procurement into smaller parts and limiting excessive eligibility requirements with respect to financial and economic capacity,
• changes to the tendering procedure, e.g. improving access to negotiation procedures, introducing innovation partnership as a new procurement mode and eliminating the sole source procedure, which will be superseded by an amended negotiated procedure without prior publication,
• amendments to the grounds for excluding economic operators and the introduction of self-cleaning by the economic operator,
• changes to the award criteria, e.g. introducing the most economically advantageous tender as well as promoting life-cycle costing as an award criteria,
• a new regime for the cancellation of public procurement procedures – the prerequisites justifying such cancellation will be exemplary only and not exhaustive,
• making the deposit for participation in the procedure optional.