After having cross-referred to Directive 2014/24 regarding the value thresholds that trigger compliance with its Part 2 rules, reg.6 of the Public Contracts Regulations 2015 (PCR2015) establishes the Methods for calculating the estimated value of procurement. The rules under reg.6 PCR2015 also follow extremely closely those of art 5 Dir 2014/24, with some minor drafting changes and a renumbering and consolidation of subsections that provides some improvements. There are two points that deserve some comments (Pedro's are here).
Firstly, the only difference in drafting that is worth emphasizing concerns the timing of the calculation of the estimated value of the procurement. While art 5(4) Dir 2014/24 indicates that the "estimated value shall be valid at the moment at which the call for competition is sent ..." (emphasis added), reg.6(7) PCR2015 indicates that the "estimated value shall be calculated as at the moment at which the call for competition is sent ..." (emphasis added).
The consequences of this divergence depend on how literally the rules are interpreted. Under a strict literal interpretation, reg.6(7) PCR2015 seems more limiting for contracting authorities, as it imposes a positive obligation to calculate the estimated value at a specific time (ie dispatch of the relevant notice or start of the procurement), whereas art 5(4) Dir 2014/24 requires a check of (a previous?) calculation at that time. However, it seems clear that contracting authorities need to actually check the estimated value at the same point in time either under reg.6(7) or art 5(4), which makes the drafting rather irrelevant in practical terms.
Secondly, it is worth stressing that reg.6(14) keeps references to values in Euro when it comes to exempt the award of contracts for individual lots. This creates a significant problem of a financial moving target that Pedro identified in his previous post (although I disagree with the fact that it applies to reg.5 PCR2015 as well). As Pedro rightly stressed, the problem with keeping values in Euro
is that Central Government decided to trade certainty in practice for lawmaking simplicity. It can be argued that the new way is the correct one to ensure sterling values do not deviate from the original euro ones ... but the price to pay is to force every single public procedure close to those values to be manually checked by the contracting authority before tender. Furthermore, for really close call cases it is not clear what is the correct approach to determine the exchange rate applicable: is it the mid-market value? The end of day? Is it the value from the day before launching the procedure or when the decision of launching a procedure is being taken? (emphasis added).
Given that the European Commission has been including the corresponding values in currencies other than Euro for the 80,000 and 1,000,000 thresholds in its previous communications for these purposes, it would have been much more preferable for the UK Government to follow the technique used in relation to the thresholds covered by reg.5 PCR.
Indeed, they should have extend the rule under reg.5(4), whereby "The value in pounds sterling of any amount expressed in euro in any of the provisions of the Public Contracts Directive ... shall be taken to be the value for the time being determined by the Commission for the purpose of that provision and published from time to time in the Official Journal in accordance with Article 6 of the Public Contracts Directive. This would have avoided significant legal uncertainty and would have reduced the administrative costs to contracting authorities willing to benefit from this derogation to compliance with the rules of Dir 2014/24 in the award of "low-value" lots.
Postscript
Pedro has spotted the issue of the difficulty in valuing framework agreements or innovation partnerships and has raised the issue of "a perverse incentive for contracting authorities to establish framework agreements with procurement values below thresholds to avoid any sort of transparency. Now let's marry this idea with a short initial term of the framework (say, one year) which [coincidentally] justifies a below-threshold calculation value and that the framework then gets extended to the maximum 4 year period afterwards." I agree with the existence of the risk, however, I think that this is the sort of issue clearly covered by the anti-circumvention prohibition in art 5(3) Dir 2014/24 and reg.6(5) and 6(6) PCR2015, which clearly set out that "The choice of the method used to calculate the estimated value of a procurement shall not be made with the intention of excluding it from the scope of this Directive [Part]. A procurement shall not be subdivided with the effect of preventing it from falling within the scope of this Directive, unless justified by objective reasons."
The following are my comments on this issue, as they will be soon published in A Sanchez Graells, Public procurement and the EU competition rules, 2nd edn (Oxford, Hart, 2015) 261-63.
Specific rules have been developed to deter such strategic use of public procurement thresholds, or the unjustified resort to ‘unregulated’ public procurement activities. As regards the strategic conduct of public procurement below the thresholds set by the EU directives on public procurement, article 5(3) of Directive 2014/24 expressly states that the object of public contracts may not be subdivided to prevent its coming within the scope of the directive. More specifically, it establishes that the choice of the method used to calculate the estimated value of a procurement shall not be made with the intention of excluding it from the scope of this Directive,[1] and that a procurement shall not be subdivided with the effect of preventing it from falling within the scope of this Directive, unless justified by objective reasons.
The latter caveat allowing for the objective justification of a subdivision of a contract that makes it fall below the relevant thresholds was not present in the equivalent rule of art 9(3) dir 2004/18 (‘No works project or proposed purchase of a certain quantity of supplies and/or services may be subdivided to prevent its coming within the scope of this Directive’). It is submitted that this new caveat is prone to create significant litigation, particularly if the European Commission identifies numerous instances of recourse to ‘objective reasons’ on the part of the Member States and the latter argue for a broad interpretation of the exception—which should be rejected.[2] However, given the additional explanation provided in recital (20) of Directive 2014/24, it is submitted that the addition of the caveat is largely irrelevant and only aimed at a further prevention of the artificial split of contracts in the framework of centralised procurement. In that regard, it is important to take into account that, according to the recital, the rationale for the ‘objective reasons’ caveat is that
In my view, then, the
caveat should be interpreted as creating a strengthened requirement for a
justification that intends to escape the rule on prohibited division of
contracts on the basis of (allegedly) objective reasons and, particularly, aims
to anticipate and prevent potential infringements of the EU rules by
contracting authorities that manage (de)centralised procurement systems.
Generally speaking, however, the discussion seems to need being re-oriented
towards the definition of contracting authority and the recouse to
collaborative procurement (below).
Generally, though, the anti-split or anti-circumvention rule is clear and establishes a prohibition of strategic use of public procurement thresholds. To be sure, these rules do not prevent contracting authorities from splitting or dividing the contracts into as many lots as they deem fit or objectively justified (on issues regarding the division of contracts in lots and the aggregation of lots, see below §II.A.xviii), but rather focus on their obligation to take the aggregate value of those lots into consideration when determining whether the relevant thresholds are met—and, hence, whether their award should be conducted pursuant to the rules of the EU directives on public procurement (see art 5(8) and 5(9) dir 2014/24).[3] Consequently, the prohibition on circumventing the application of the directives is not violated per se by dividing the contracts in lots, but only by failing to treat those lots as a single economic and technical unit and, consequently, by failing to award them in compliance with public procurement rules.[4]
This prohibition has also been clearly interpreted by the EU judicature, which has provided guidance as to what constitutes an ‘artificial’ division of the object of a contract to circumvent public procurement rules—by putting emphasis on the criterion of the economic and technical unity of the object of the various contracts whose award should have been conducted jointly.[5] Therefore, a public buyer that artificially divided into separate contracts or purchases certain of its requirements that should objectively be considered to constitute a single economic and technical unit would be found in breach of the EU directives on public procurement. A different dimension is that of the temporal compatibility between the spread of the needs and the periodicity of the contracts or purchases conducted by the public buyer.[6] Where a significant mismatch can be identified—ie, when purchases below the thresholds occur too often—the public buyer should equally be found in breach of the EU public procurement rules, since the conduct of an excessive number of purchases or the conclusion of an excessive number of contracts should equally be considered an artificial split of the object of the contract in circumvention of the EU rules.
From a competition perspective, the rule against the artificial division of the contract to exclude it from public procurement rules seems to be sound and, in general, should prevent the exercise of strategic public procurement below the thresholds. Nonetheless, it is suggested that, when exercising their discretion as regards the need to group their requirements into a single or few contracts—rectius, when assessing the extent of the obligation not to split them—contracting authorities should not only bear in mind a criterion of strict proportionality (between the inconveniencies and costs of running a procurement process and the unity or separability of its requirements), but also the principle of competition. In cases where the application of the proportionality principle might be neutral towards the aggregation or not of contracts, competition considerations might become relevant. In those cases, if recourse to public procurement rules can generate increased competition for the contract—or, put otherwise, if the conduct of ‘unregulated’ procurement activities might generate a negative impact on market dynamics—the contracting authority should opt for the aggregation of its requirements and the conduct of the corresponding tender. The same criteria apply to both the conduct of procurement below EU and national thresholds, since the competition element is equally important in both cases. In the end, it is submitted that public buyers should not divide their requirements to avoid compliance with public procurement rules not only when it is unwarranted or disproportionate, but also when it could result in a negative impact on market competitive dynamics.
Postscript
Pedro has spotted the issue of the difficulty in valuing framework agreements or innovation partnerships and has raised the issue of "a perverse incentive for contracting authorities to establish framework agreements with procurement values below thresholds to avoid any sort of transparency. Now let's marry this idea with a short initial term of the framework (say, one year) which [coincidentally] justifies a below-threshold calculation value and that the framework then gets extended to the maximum 4 year period afterwards." I agree with the existence of the risk, however, I think that this is the sort of issue clearly covered by the anti-circumvention prohibition in art 5(3) Dir 2014/24 and reg.6(5) and 6(6) PCR2015, which clearly set out that "The choice of the method used to calculate the estimated value of a procurement shall not be made with the intention of excluding it from the scope of this Directive [Part]. A procurement shall not be subdivided with the effect of preventing it from falling within the scope of this Directive, unless justified by objective reasons."
Specific rules have been developed to deter such strategic use of public procurement thresholds, or the unjustified resort to ‘unregulated’ public procurement activities. As regards the strategic conduct of public procurement below the thresholds set by the EU directives on public procurement, article 5(3) of Directive 2014/24 expressly states that the object of public contracts may not be subdivided to prevent its coming within the scope of the directive. More specifically, it establishes that the choice of the method used to calculate the estimated value of a procurement shall not be made with the intention of excluding it from the scope of this Directive,[1] and that a procurement shall not be subdivided with the effect of preventing it from falling within the scope of this Directive, unless justified by objective reasons.
The latter caveat allowing for the objective justification of a subdivision of a contract that makes it fall below the relevant thresholds was not present in the equivalent rule of art 9(3) dir 2004/18 (‘No works project or proposed purchase of a certain quantity of supplies and/or services may be subdivided to prevent its coming within the scope of this Directive’). It is submitted that this new caveat is prone to create significant litigation, particularly if the European Commission identifies numerous instances of recourse to ‘objective reasons’ on the part of the Member States and the latter argue for a broad interpretation of the exception—which should be rejected.[2] However, given the additional explanation provided in recital (20) of Directive 2014/24, it is submitted that the addition of the caveat is largely irrelevant and only aimed at a further prevention of the artificial split of contracts in the framework of centralised procurement. In that regard, it is important to take into account that, according to the recital, the rationale for the ‘objective reasons’ caveat is that
For
the purposes of estimating the value of a given procurement, it should be
clarified that it should be allowed to base the estimation of the value on a
subdivision of the procurement only
where justified by objective reasons. For instance, it could be justified
to estimate contract values at the level of a separate operational unit of the
contracting authority, such as for instance schools or kindergartens, provided
that the unit in question is independently responsible for its procurement.
This can be assumed where the separate operational unit independently runs the
procurement procedures and makes the buying decisions, has a separate budget
line at its disposal for the procurements concerned, concludes the contract
independently and finances it from a budget which it has at its disposal. A subdivision is not justified where the
contracting authority merely organises a procurement in a decentralised way
(emphasis added).
Generally, though, the anti-split or anti-circumvention rule is clear and establishes a prohibition of strategic use of public procurement thresholds. To be sure, these rules do not prevent contracting authorities from splitting or dividing the contracts into as many lots as they deem fit or objectively justified (on issues regarding the division of contracts in lots and the aggregation of lots, see below §II.A.xviii), but rather focus on their obligation to take the aggregate value of those lots into consideration when determining whether the relevant thresholds are met—and, hence, whether their award should be conducted pursuant to the rules of the EU directives on public procurement (see art 5(8) and 5(9) dir 2014/24).[3] Consequently, the prohibition on circumventing the application of the directives is not violated per se by dividing the contracts in lots, but only by failing to treat those lots as a single economic and technical unit and, consequently, by failing to award them in compliance with public procurement rules.[4]
This prohibition has also been clearly interpreted by the EU judicature, which has provided guidance as to what constitutes an ‘artificial’ division of the object of a contract to circumvent public procurement rules—by putting emphasis on the criterion of the economic and technical unity of the object of the various contracts whose award should have been conducted jointly.[5] Therefore, a public buyer that artificially divided into separate contracts or purchases certain of its requirements that should objectively be considered to constitute a single economic and technical unit would be found in breach of the EU directives on public procurement. A different dimension is that of the temporal compatibility between the spread of the needs and the periodicity of the contracts or purchases conducted by the public buyer.[6] Where a significant mismatch can be identified—ie, when purchases below the thresholds occur too often—the public buyer should equally be found in breach of the EU public procurement rules, since the conduct of an excessive number of purchases or the conclusion of an excessive number of contracts should equally be considered an artificial split of the object of the contract in circumvention of the EU rules.
From a competition perspective, the rule against the artificial division of the contract to exclude it from public procurement rules seems to be sound and, in general, should prevent the exercise of strategic public procurement below the thresholds. Nonetheless, it is suggested that, when exercising their discretion as regards the need to group their requirements into a single or few contracts—rectius, when assessing the extent of the obligation not to split them—contracting authorities should not only bear in mind a criterion of strict proportionality (between the inconveniencies and costs of running a procurement process and the unity or separability of its requirements), but also the principle of competition. In cases where the application of the proportionality principle might be neutral towards the aggregation or not of contracts, competition considerations might become relevant. In those cases, if recourse to public procurement rules can generate increased competition for the contract—or, put otherwise, if the conduct of ‘unregulated’ procurement activities might generate a negative impact on market dynamics—the contracting authority should opt for the aggregation of its requirements and the conduct of the corresponding tender. The same criteria apply to both the conduct of procurement below EU and national thresholds, since the competition element is equally important in both cases. In the end, it is submitted that public buyers should not divide their requirements to avoid compliance with public procurement rules not only when it is unwarranted or disproportionate, but also when it could result in a negative impact on market competitive dynamics.
[1]
For a discussion on the very problematic use of intentional elements in the
2014 Directives and, in particular, in the context of the principle of
competition embedded in art 18 dir 2014/24, see above ch 5, §III.
[2] Case
C-394/02 Commission v Greece [2005]
ECR I-4713 33; Case C-337/05 Commission v Italy [2008]
ECR I-2173 57; C-250/07 Commission
v Greece [2009] ECR I-4369 17.
[3] It
is important to stress that the system allows for certain flexibility and that,
despite the rules preventing the artificial split into lots in art 5(8) and 5(9)
dir 2014/24, contracting authorities may award contracts for individual
lots without applying the procedures provided for under the Directive, provided
that the estimated value net of VAT of the lot concerned is less than EUR 80
000 for supplies or services or EUR 1 million for works. However, the aggregate
value of the lots thus awarded without applying the Directive shall not exceed
20 % of the aggregate value of all the lots into which the proposed work, the
proposed acquisition of similar supplies or the proposed provision of services
has been divided (art 5(10) dir 2014/24).
[4] Along the same lines, although
with reference to the equivalent provisions in Directive 93/38, see Opinion of
AG Jacobs in case C-16/98 Commission v France 34–37. From the opposite
perspective, analysing whether the improper or artificial aggregation of
contracts that do not constitute a single economic and technical unity could
result in a breach of the same provisions, see Opinion of AG Mischo in case
C-411/00 Swoboda 53–64. In very clear terms, the ECJ concluded that the
purpose that inspires these provisions ‘(the concern to avoid any risk of
manipulation) also precludes a contracting authority from artificially grouping
different services in the same contract solely in order to avoid the
application in full of the directive to that contract’; see Case C-411/00 Swoboda
[2002] ECR I-10567 58.
[5] Case C-16/98 Commission v
France [2000] ECR I-675; and Case C-412/04 Commission v Italy [2008]
ECR I-619 72. See also Opinion of AG Jacobs in case C-16/98 Commission v
France. Similarly, albeit in less elaborated terms, see Opinion of AG
Kokott in case C-220/05 Auroux 65 fn 58; Opinion of AG Ruiz-Jarabo
Colomer in Case C-412/04 Commission v Italy 85–88; and Opinion of AG
Mengozzi in case C-237/05 Commission v Greece 76–79. See also Opinion of
AG Trstenjak in Case C-271/08 European
Commission v Federal Republic of Germany 165. For recent cases discussing
the splitting of contracts, see T-384/10 Spain
v Commission [2013] pub. electr.
EU:T:2013:277 and T-358/08 Spain v Commission [2013] pub.
electr. EU:T:2013:371. Both of them respectively appealed as C-429/13 and
C-513/13, which will give the ECJ an opportunity to update its doctrine on the
artificial split of contracts. (*)
[6] The temporal dimension was also
analysed, although in a limited way, in the Opinion of AG Jacobs in case C-16/98 Commission v France 71.
(*) The text of the foonote indicates that the appeals are pending due to the fact that I closed the 2nd edition of the bookin the fall of 2014. Both cases have now been decided by the CJUE: C-429/13 and C-513/13. I am grateful to Jonn Sannes Ramsvik for having raised this issue to my attention.
(*) The text of the foonote indicates that the appeals are pending due to the fact that I closed the 2nd edition of the bookin the fall of 2014. Both cases have now been decided by the CJUE: C-429/13 and C-513/13. I am grateful to Jonn Sannes Ramsvik for having raised this issue to my attention.