In January 2011, the European Commission published a Green Paper on the modernisation of EU public procurement policy ("Towards a more efficient European public procurement market", COM(2011)15 of 27 January 2011).

On Monday 18 April 2011, NautaDutilh submitted its reaction to the Green Paper (see attachment).

The reaction opens with a general comment to the effect that the obligation for contracting authorities to conduct European tendering procedures and for tenderers to comply with the formalities of these procedures result in transaction costs that are only rarely offset by cost savings. It therefore submits that the modernisation of the EU public procurement rules should result in deregulation, rather than further regulation.

It then goes on to address the questions raised in the Green Paper, but also other current issues which, in the firm's experience, are relevant for both contracting authorities and tenderers in the Netherlands and Belgium. Some of these issues are the following:  

  • repairing minor defects in tenders;
  • balancing the obligations to reason award decisions and to respect the confidentiality of the tenders;  
  • joint sourcing by public and private entities;  
  • level playing field measures;  
  • the concept of "body governed by public law";  
  • the distinction between IIA- and IIB-services;  
  • the scope of the concept of "clear cross border interest", which is relevant in determining whether the obligation to provide for appropriate transparency measures which derives directly from the TFEU applies to certain contracts which are not governed by the public procurement directives, such as contracts below the thresholds, concessions for services and contracts for IIB-services;  
  • the level of the value thresholds;  
  • the simplification of the existing compulsory procurement procedures;
  • the implementation of social, innovation and environmental policy objectives through public procurement procedures.