Consolidate EU procurement directives for simpler, more flexible rules

13 April 2012

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16 April 2012 | Paul Snell

EU public procurement rules could be made simpler and more flexible if the current directives were consolidated, an academic has proposed.

According to Sue Arrowsmith, professor of public procurement law and policy at the University of Nottingham, combining the four current directives governing procurement – the public sector, utilities, defence and security and for concessions – into one would make the regime less complex, “making the rules easier to understand” for both buyers and suppliers.

Her paper, Modernising the EU's Public Procurement Regime: a Blueprint for Real Simplicity and Flexibility, suggested using the current Utilities Directive as a base and harmonising the directives.

“[The Utilities Directive] provides the appropriate degree of flexibility and is more simple and clearly written than the others,” she told SM. “You would need to look at it and change some bits of it, taking the best bits of all the directives – but it is the best starting point because it provides suitable flexibility.”

This would lead to a number of radical changes, including exempting private utilities from the rules and reducing some threshold levels.

Arrowsmith – who is a past winner of the CIPS Swinbank Medal for academic contribution to the profession - does not suggest that the whole regime be overhauled, but would more effectively achieve the EU’s two main aims of reform, increased flexibility and simplification. The current proposed reforms announced at the end of last year are more flexible, but she says, have also added complexity and bureaucracy.

For public sector buyers the new proposals would not mean major changes in practice, but would provide greater clarity and surety.

“They would still be following all the same basic principles, but there wouldn’t be so many complex legal rules to understand. There wouldn’t be so many pitfalls or potential trip ups,” she added. “In the rules as they stand at the moment they are so complicated, you can do something perfectly commercial and reasonable, but because there are so many rules and they are so uncertain it is so easy to trip up by mistake even when you make a genuine effort to comply.”

But Arrowsmith is realistic about whether her proposal has any possibility of adoption, with member states more likely to focus on parts of the current reforms they wish to change rather than consider alternative options.

A summary of the paper can be found here, and the full proposal can be downloaded here.

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