Ensuring an adequate framework for Public Procurement


Public Procurement procedures are based on an EU framework leaving some room for specific national implementation rules. This generates several important differences across national legislations (e.g. exclusion grounds, treatment of abnormally low tenders, selection criteria). Nevertheless, and taking into account specific characteristics of the sector that may differ from country to country, the EU framework should be flexible, leaving room for manoeuvre to Member States.

The current legal framework does not adequately address unfair competition by third country companies in Public Procurement procedures, especially those bidding at prices that appear to be abnormally low. Moreover, some EU Member States have started to exclude bids submitted by companies from countries that have no bilateral or EU-level agreement.

The instrument of ‘in-house procurement’, which allows the provision of works or services without applying the procurement procedures, should be an exceptional instrument to be used by contracting authorities. However, in several Member States it is being increasingly used to the detriment of private companies.

Public procurement needs to play a key role in the green transition as it largely defines the parameters under which construction companies compete for works contracts.


Restrict the possibilities of in-house procurement by Public administrations.

The development of a European common method for the calculation of life-cycle costs to be applied for the assessment of life-cycle costs in tenders falling into the scope of the EU procurement directives.

A harmonisation of the methods used for identifying abnormally low tenders and procedures for verification by contracting authorities.

A convergence on the inclusion/exclusion criteria of third country bidders with the aim of achieving a level-playing field across the EU, in accordance with the regulation establishing the International Procurement Instrument (IPI).

A good example is provided already by the Commission’s Communication on Guidance on the participation of third-country bidders and goods in the EU procurement market, which clarifies that economic operators from third countries, which do not have any agreement providing for the opening of the EU procurement market or whose goods, services and works are not covered by such an agreement, do not have secured access to procurement procedures in the EU and may be excluded.

The use of “strategic” procurement, mainly in relation to some types of ESG (environmental, social and governance) criteria, must be carefully assessed. It is essential to keep the direct link of the award criteria/conditions for the performance of contracts with the objective of the contract.

While the principle of neutrality is enshrined in the Public Procurement Directives, some contracting authorities continue to impose the use of a particular BIM (Building Information Modelling) software on bidders. Measures should be taken to avoid this practice.

Public authorities should be encouraged to make abetter use of the possibility provided by the Public Procurement directives to submit variants. This would foster the use of new techniques and innovative solutions.