Civil Engineering Reference
In-Depth Information
Should the contracting authority decide that a public contract might be of interest
to economic operators located in other EU member states, the Communication pro-
vides guidance under three distinct heads - advertising, contract award and review
procedures.
Inrelationtoadvertising,anundertakinglocatedinanEUmemberstatemusthave
access to appropriate information regarding a public contract before it is awarded, to
allowittobeinapositiontoexpressitsinterestinthatcontract.Inordertosatisfy
this requirement the Commission is of the view that a contracting authority must
publish a sufficiently accessible advertisement prior to the award of the contract, and
lists optional means of publication. The Communication states that the greater the
interest of the contract to potential bidders from other EU member states, the wider
the coverage should be. he advertisement should provide as much information as an
economic operator from another EU member state will reasonably need to make a
decision on whether to express interest in the procurement procedure.
Itcanbeseenfrom
Sidey v Clackmannanshire Council
(2011) that rights and obli-
gations of contracting authorities and bidders in a below threshold process fall into
three tiers:
•
Above threshold: the Regulations/Directives apply to procurement processes,
remedies are available in terms of the Regulations/Directives and obtainable by
way of sheriff court, commercial or ordinary action;
•
Below threshold with cross-border interest: general principles of European law and
public law apply to procedures followed and decisions taken but statutory remedies
are not available in terms of the Regulations/Directives. In principle, contractors
may bring Judicial Review proceedings against a contracting authority;
•
Belowthresholdwithnocross-borderinterest:Europeanlegalrulesarenotengaged
under the Directive/Regulations but public law would apply in relation to contract-
ingauthoritiesand,inprinciple,contractorsmaybringJudicialReviewproceedings
against a contracting authority in respect of its acts and decisions it has taken.
2.19 Forthcoming changes in the Procurement law landscape
helawasdescribedinthischapterisintendedtobecorrectatthetimeofwriting.
However, the law in this area is currently undergoing significant transformation. An
overhaul of EU public procurement rules has been progressing for some time and new
Public Procurement Directives were adopted by the European Parliament on 15 Jan-
uary 2014 published in the Oicial Journal of the EU on 28 March 2014 and come into
force on 17 April 2014. Implementation is require by member states within two years.
These replace the existing Public Sector Directive (2004/18/EC), the new Public Sec-
tor Directive (2014/24/EU), the Utilities Directive (2004/17/EC) and introduce new
rules on the award of concession contracts with the introduction of the Concessions
Directive (2014/23/EU). The provisions of the new Directives include:
•
self-certification of compliance with prequalification requirements;
