Transposition in action

The new Bulgarian Public Procurement Act ("PPA"), introduced in mid-February 2016, is now in full force and effect. It provides the procurement rules which correspond to the new procurement package (Directive 2014/24/EU and Directive 2014/24/EU), except the rules for concessions (since Directive 2014/23/EU is expecting transposition in a separate piece of legislation).

The PPA is an attempt to preserve the balance between the already established rules, and those which Europe now puts on the table. It certainly does not constitute a copy-pasted version of the EU legislation, where the unique and specific focus of the Bulgarian legislator, as presented in the PPA, is in some cases positive, but alas - not in all.

Regarding the European legislator's aim of making the new procurement framework easier to use, more flexible, and less burdensome, unfortunately the Bulgarian legislature has definitely not managed to achieve this aim – PPA is multi-structured, too complex, and too dependent on its by-laws (which are complicated in and of themselves). A separate issue is that on an EU level, the ambitious desire for enacting simpler legislation, has proven difficult to implement in reality, and this affects the transposition in the Member States' national legislations as well.

Positive approach

One of the positive aspects of the new PPA is that it does not use the opportunity, provided by Directive 2014/24/EU (Art. 67, para 2, last sentence), to completely give up on the "lowest price" criterion. This criterion continues to exist in practice as a sub-criterion of the "most economically advantageous tender". For countries with high levels of corruption in the procurement sector, as is the case in Bulgaria, the excuse to expand the assessment of the contracting authority further, and to rely on a subjective approach would have a detrimental effect on the procurement process. For this reason, this moderate line taken by the Bulgarian legislator is appreciated.

This effectively means that procurements for which complex technical requirements are not needed can be assessed only by a price criterion without the use of complicated assessment methodology which often leads to discrimination against participants. This criterion has already proven to be positive in the selection of contractor/s for certain procurements and, despite the criticism from Europe that the preference of the "lower price" criterion somehow stops innovative development, its application could not be abolished in Bulgaria.

Ulcers in the process

Again, in spite of the exaltation of the new European standards in part of the Member States, some, completely new to the Bulgarian legislative techniques rules, have already encountered disapproval from practitioners, although they have still not been used in practice.

A typical example in this regard is the represented "self-cleaning" mechanism that will be used now in Bulgaria as well, as is the case in other Member States which already have experience in applying this mechanism, even before the implementation of the new rules (such as in Germany, the Netherlands, and Austria).

The provision of article 57 par. 6 of Directive 2014/24/EU is reproduced almost verbatim in the Bulgarian PPA. All too common legislative decisions such as "a participant has clarified the facts and circumstances exhaustively and has actively cooperated with the competent authorities and fulfils specific prescriptions, technical, organisational and staffing measures aimed to prevent new crimes or offenses" (Art. 56, para 1, it 3 PPA) now only arouse laughter. Clearly, such provision gives complete freedom to the contracting authority at its own discretion (or "properly advised") to determine whether the candidate should remain in the procurement procedure or not. It is totally unacceptable that the spending of public funds be regulated by terms such as "exhaustive", "active assistance", "measures to prevent future violations", without their corresponding strict definition being set out in the law… Yet again, this is not only an omission of the Bulgarian legislator, but also of the European framework as a whole. Regrettably, too liberal an approach to regulation in some cases is totally inappropriate.

The above criticism represents only a few basic and initially spotted features of the new law. We look forward to its enactment in practice. Still, practitioners have already expressed questions as to whether the new law will follow the fate of the previous one and will be doomed to endless amendments throughout the next decade.