Since the European Commission’ feasibility study on Joint Cross-Border Public Procurement (“JCBPP”) was released in March 2017 there has been increasing momentum for contracting authorities (“CA”) to organise JCBPPs.
Benefits of JCBPP
It follows from this study numerous benefits arise from committing to a JCBPP. Firstly, JCBPP allow CA to reduce administrative burdens on themselves and tenderers, and to reduce prices (economies of scale). In addition to lowering procurement costs, the procedures of JCBPP can also be more effective than separate tenders; for instance, CA can share costs, work, deployment of staff, knowledge, and expertise. While these benefits apply to all CA, they are particularly important for smaller CA wishing to organise large-scale procurement procedures.
Although the use of JCBPP remain uncommon, there are a few examples that demonstrates its advantages. One of the projects analysed by the European Commission, was the Healthy Ageing Public Procurement of Innovation ("HAPPI"). The HAPPI project focused on the procurement of innovation, with an aim to detect and purchase innovative solutions that address an ageing society’s needs, and to provide these solutions to hospitals and nursing homes across Europe. The HAPPI project, which ran between 2012 and 2016, brought together five central purchasing bodies from different Member States, and allowed CA from across the EU to purchase three distinct innovative products in the field of elderly care. One of the most important benefits experienced by the CA of the HAPPI project was opportunity to exchange good practice and learn about the procurement practices occurring within other Member States. CA also found that administrative burdens were reduced compared to procedures at national level. These experiences demonstrate that the use of JCBPP is effective and advantageous for purchasing innovative solutions required in different Member States.
Further, JCBPP can play an important role by creating greater opportunities for cross border energy trade, which in turn can reduce the price of energy for consumers within the European Union.
In addition to the many benefits received by using JCBPP, CA may also face a number of legal challenges. For example, issues may arise as a result of differing procurement practices among Member States, questions of applicable law and questions of jurisdiction.
CMS, with its legal and practical knowledge of procurement across nearly all jurisdictions in the European Union, is expertly suited to guide CA and tenderers in a JCBPP. Please contact Petra Heemskerk or Maartje Speksnijder for further information on this topic.