The Commission published in late December its draft legislative proposals on a replacement EU procurement directive (as well as a draft replacement utilities directive and a proposed new directive on concession contracts).
The revised draft rules are intended to provide clarity in a number of areas which have been the subject of case law under the current regime to improve and streamline procurement procedures and to facilitate cross-border competition and opportunities for SMEs. The many changes include the concept of innovation partnerships as a new procurement route and the negotiated procedure becomes a competitive procedure with negotiation. The draft regulations also contain new provisions on joint procurement by contracting authorities market testing tenders presented as an electronic catalogue and the concept of a European procurement passport which has previously been promoted as a means of reducing administration for SMEs.
The Cabinet Office has issued a Procurement Policy Note asking for feedback on some of the proposals contained within the draft. It expresses concern that the Commission has chosen not to exempt mutuals from the draft regulations and at the level of governance requirements.
Negotiations on the draft directives are ongoing and as a result these proposals may change significantly before any new regulations are adopted into EU law (expected to be in 2013) and then transposed into UK legislation.