eforms the next generation of the public procurement standard forms

Transcription

1 eforms the next generation of the public procurement standard forms Explanatory note Introduction This document introduces eforms, a major update to the public procurement standard forms aiming at significantly improving data on procurement in the EU. This document is the main part of a targeted consultation and presents the proposed twenty-one most important changes to the forms. eforms are one of the actions in the Single Market Strategy, where the European Commission has committed to "facilitate the collection, consolidation, management and analysis of procurement data, supporting Member States efforts towards better governance in public procurement" 1 because "governance of the procurement systems needs to be improved to ensure efficiency, transparency and integrity. Some of the main missing links are the lack of quality data, the inability to match related data from different databases, the insufficient sharing and reuse of data, and a shortage of skills and tools for analysing available information. These barriers are widely acknowledged, having been identified by the G-20 and the World Bank, the OECD and the European Court of Auditors and the Commission itself. The increasing use of information technology in public administrations, such as the transition to mandatory e-procurement in 2018, offers opportunities to tackle these problems. Better data would allow Member States to improve governance. This means better evidence-based policy and management by public authorities and increased transparency by opening up data. Sharing data triggers feedback from the public, which can be used to improve aspects of procurement practice at all levels, from local procurement to national legislation. Furthermore, better information on the vulnerabilities of their public procurement systems would help Member States take remedy measures and promote good procurement practices." 2 This document is structured as follows: in chapter 2, we explain the goals of eforms. In chapter 3, we go through the adoption process, including specific steps and final deliverables. Chapter 4 is the main part of this document, presenting the twenty-one largest proposed changes to the procurement forms. Chapter 5 outlines how to ensure that procurement forms stay up to date. Chapter 6 poses several detailed questions which came up during the drafting of this document. Finally, Annex I provides further background information such as how notice publication works (this may be helpful in particular if you are new to the subject), what their exact role is, and what the eforms design principles are. The content of this document is for consultation only. It is not a final proposal of the European Commission, nor a commitment on implementing particular proposed changes or technical features. Any future proposals will be modified on the basis of this consultation, further technical work, as well as identified technical, budgetary, and other constraints. Finally, please note that this document does not discuss syntax, i.e. how forms should be implemented at the IT level p p.59 (shortened) 3 Technically speaking, the implementing regulation only plays the role of a semantic data model. The syntax is prepared afterwards by the Publication Office of the EU.

2 Purpose eforms have several goals. First, they should improve competition for public contracts and governance of public procurement (in line with the EU Single Market Strategy). Second, they aim to simplify the use of procurement notices (in line with the goals of the 2014 public procurement legislative package), in particular by ensuring that everything allowed by the procurement directives can be done in the forms and drafting the forms in a way that (detailed) knowledge of procurement legislation is not necessary for using them (see section 7.3. for details). Finally, they ensure synergies with similar ongoing projects, specifically the Open Contracting Partnership s Open Contracting Data Standard, a global non-proprietary contracting data standard the implementation of which has been announced by several Member States, and the work of the European Committee s for Standardisation Business Interoperability Interfaces workshop and Technical Committee 440 workshop on data standardisation in the area of e-procurement. More concretely, the main purpose of eforms is to meet the needs of a diverse set of stakeholders involved in the publication and use of procurement data (while complying with the applicable provisions of the procurement directives 4 ). Table 1 gives an overview of the users and their needs. 49 Table 1 Users of standard forms eforms data users Companies ( "Economic operators") Buyers 5 Electronic Senders Publications Office of the EU Managers of national procurement systems (e.g. ministries, remedy bodies) Other policy users of the data, e.g. citizens, academia, civil society, EU institutions Other commercial users, e.g. operators of other business opportunity search portals User needs finding business opportunities finding suppliers, low administrative burden sending information correctly, cheap and fast, in some Member States also creating a profit publishing information correctly, cheap and fast using procurement data to inform public procurement policy using procurement data to inform public procurement policy generating profit Overall, these needs can be grouped into three goals: competition for public contracts, good governance of public spending, and low costs of publishing (incl. low administrative burden). These reflect the procurement directives' core principles of equal treatment, non-discrimination, transparency, proportionality, and competition 6. Please note that some of these needs are contradictory for instance having more information has benefits for some stakeholders, but also increases the costs of providing and publishing this information for others. In these cases, eforms try to find the right balance. However, fortunately, in most cases the needs go in the same direction, such as when more structure makes the forms easier to fill, easier to implement, and easier to read and analyse. 4 In particular 2014/24/EU Annex V, as well as the obligations on standard forms included in the various articles throughout the directives. 5 Throughout this document "public buyers", or simply "buyers", is used as a shorthand for "contracting authorities or entities or other bodies conducting public procurement, similarly to how it is used in the expression "buyer's profile" /24/EU Rec. 1. (Throughout this document, for simplicity, only references to the general procurement directive, 2014/24/EU, are given. The points analogically hold also for the other procurement directives.) 2

3 Process The goals described above can be reached only through a transparent and participatory drafting process. For this reason, as well as in order to have enough time for implementation at national level, the work on eforms is starting already in 2016, with the tentative goal being to have the standard approved by EU Member States in the fourth quarter of 2017, replacing the current Commission Implementing Regulation (EU) 2015/1986. The appropriate date of entry into force is still under discussion. Step by step process: Targeted consultation on major changes, questions, and technical specifications (Nov 2016 Jan 2017) Public consultation on the draft implementing regulation (April-May 2017) Translation of the draft implementing regulation into all EU official languages (June 2017) Approval by Member States delegates in the Advisory Committee on Public Procurement and adoption by the European Commission (July-September 2017) Implementation in IT systems (deadline under discussion) Given the significant complexity of the project, we request as many comments as possible already for the first consultation, so that the number of large changes to the forms later in the process, especially after translation, can be minimized as far as possible. The final eforms package presented to the EU Member States for their approval will consist of four deliverables, presented below. The first two will be adopted, while the last two are provided as background information. (For an explanation of why we propose to adopt some of these deliverables and not others - largely in the same way as was the case for the previous forms - see chapter 5 on the eforms update policy.). The deliverables are: Main text of the implementing regulation. This document is to be discussed and approved in the comitology procedure by EU Member States' representatives. This document is not yet written and thus not part of this consultation. Annex to the implementing regulation, which will be based on the technical specifications discussed below. This document is to be approved in the comitology procedure by EU Member States' representatives. Updated version of the eforms explanatory note you are currently reading. Technical specifications, a spreadsheet giving further technical information as well as a column with explanations for each field. These explanations are intended to be tailored to national contexts by national authorities and afterwards displayed by Electronic Senders to their users. This document is also a part of this consultation. 3

4 Proposals This section highlights major proposals for changes in eforms. While this list offers only a selected list of highlights (the full picture is given in the technical specifications document), in our opinion it covers all the major new features of eforms. All of the points below are proposals, i.e. descriptions of what the new procurement forms would be like if the particular proposal was implemented. Consultation: For each of these proposed changes, please indicate in the second sheet of the eforms_comments spreadsheet whether you Agree, Disagree, because, or have No opinion. Detailed comments can be included in the third sheet Maintain the repetition of fields across forms Similarly to the previous editions of the standard forms, the same information is requested for multiple forms within one procurement procedure (e.g. type of procedure must be included in both the contract notice and the contract award notice). Reasoning: With electronic forms, this does not cause additional administrative burden, as all information which was already entered into a previous notice can be prefilled automatically by Electronic Senders on the basis of the "previous notice publication number". Furthermore, the repetition of the fields ensures that sufficient information is available in two cases: first, in case of procedures such as the negotiated procedures without prior publication of a call for competition, and, second, in cases where the "previous notice publication number" is incorrectly specified by the buyer Maintain field numbering which is unique across forms Similarly to the previous editions of the standard forms, fields are numbered and the numbering is unique across all forms. This means that when reading a contract award notice, the numbering may be missing elements which are present only in a different type of a form. For example, the numbering of fields in a contract award notice may be 1, 3, 4, 6, because sections 2 and 5 are available only in the contract notice. Reasoning: This is the only way to ensure that each field has a unique number Maintain the current relationship between eforms and the ESPD The relationship between the European Single Procurement Document 7 (ESPD) and the "Legal, economic, financial and technical conditions" section of the eforms is left essentially untouched, with only some cosmetic changes. Same as in the previous version of the standard forms, if a field is contained in both the ESPD and the standard forms, the users may choose whether they want to only include the information in the ESPD, the procurement documents, or the notice. Section 5: Legal, economic, financial and technical conditions The conditions are only in the European Single Procurement Document (ESPD) The conditions are in the European Single Procurement Document (ESPD) and other procurement documents The conditions are in the European Single Procurement Document (ESPD) and listed and briefly described below 7 The ESPD data model is available at 4

5 Reasoning: The ESPD and the "Legal, economic, financial and technical conditions" section of the eforms contain some of the same information. However, their purpose is different: the ESPD is primarily intended as a self-declaration for participants, while the eforms are mainly used as advertising towards economic operators. For this reason, the buyer may wish to emphasize those elements of the selection criteria which are particularly likely to influence the decision of economic operators to participate (or even continue reading the notice). The "list the fields below" option allows the buyer to do this, while also keeping the best option from the point of view of reducing administrative burden, i.e. only referring to the ESPD Distinguish lighter legal regimes by optional fields, not missing fields Individual forms look more similar than in previous versions, which can be most strongly seen on notices for social and other specific services. Their structure has been fully aligned with other forms (e.g. social service contract notice contains the same fields like any other contract notice), with the crucial difference that all fields are voluntary for the social services standard forms. Reasoning: The lighter legal regimes are an important part of the directives, which should be reflected in the standard form. For this reason, identical notices cannot be used, for example, for social services and other purchases. On the other hand, buyers under a lighter regime sometimes still want to communicate to economic operators more information (e.g. type of procedure, selection or award criteria) than the mandatory minimum 8. The most efficient way to share this information is to include the same fields as those that are used for other types of purchases. Thus, for forms with a lighter regime, we include the possibility to use all of the fields available in stricter regime, but all of these additional fields are voluntary, and thus can easily be skipped Give full flexibility to lots To increase the usage of lots (a goal of the 2014 legislative package), their flexibility should be increased. For example, it should be possible to use different selection criteria, procurement techniques (e.g. framework agreements), and deadlines in different lots. These changes require changes on the TED publishing system and in the TED website, to allow searching for and displaying procurement opportunities at the level of lots, not only notices. The Commission services will assess carefully the impact of these changes before adopting a final position. Correspondingly, value fields indicating the value of the whole notice have been removed, because if business opportunities are being advertised at the level of lots, they are no longer necessary. Furthermore, notice values can generally be found by summing the values of individual lots 9. Reasoning: The usage of lots should be supported, as they reduce admin burden (by allowing to publish one notice instead of two) and facilitate access for SMEs. Not being able to fully tailor each lot (e.g. not being able to have different selection criteria for different lots) reduces buyers' interest in buying them as well as restricts their choices above the scope of the procurement directives. Lot identifiers, which already exist in the current version of the forms, will be used to identify lots within notices and on the TED website. Buyers will still be submitting a short lot identifier (so that they can carry over a number from a previous procurement system), which must be unique within a 8 This is even more relevant in Member States where regulation prescribes social services to be procured according to more stringent rules than those of the EU directives. 9 When a notice is not "split into lots", i.e. when there is only a "single lot", the situation does not change compared to the previous version of the forms. 5

6 notice. Afterwards, this will be combined with the notice ID and/or the procurement procedure ID (see section 4.11), to create a long, globally unique lot ID. Please note that the increase in flexibility of lots will likely require adaptation of Electronic Senders' interfaces for example by adding buttons such as "copy information to all lots" to be used for notices where a hundred lots are used in a very similar manner, as is common in the medical sector. Furthermore, we also propose that a contract award notice can no longer be used to award contracts based on several separate calls for competition. This option complicates the data structure and working with the data. Moreover, this option is used only very seldom (around 350 notices annually, i.e. 0.2% of all contract award notices) and this need should further decline thanks to the larger flexibility of lots (i.e. where two contract notices would have been needed previously, buyers can now often publish two lots) Reorganize sections Sections of forms have been reorganised, with the proposed set-up being indicated below: 1. Basic 2. Buyer 3. Communication 4. Procedure 5. Object of the procurement 6. Legal, economic, financial and technical conditions for participation 7. Award criteria 8. Techniques 9. Dates 10. Design contest 11. Award of contract 12. Review procedure 13. Additional information 14. Changes Reasoning: The new grouping splits sections so that section names truly correspond with their contents (e.g. communication is no longer part of the buyer information; award criteria are no longer part of the object of the procurement; framework agreements are no longer part of the procedure) and stays closer to the terminology of the directive (i.e. the terms "procedure" and "techniques" are used in their legal as well as everyday sense). Furthermore, sections have been organised so that those that are repeatable per lot (see 4.5) are neighbouring each other (e.g. "dates" have been separated from "procedure") Align the prior information notice with a call for competition with the directive The prior information notice (PIN) may always contain several objects of the contract (i.e. provide information about several procurement procedures), even if used as a call for competition (CfC) or to reduce time limits. Reasoning: The option to use PINs as CfC has been intended by the legislator as a simplification measure, allowing buyers to launch several procurement procedures by using one simple notice. The current version of the standard forms does not allow this, as a prior information notice used as a call for competition is rather designed similarly to a contract notice. 6

7 For clarity, we include a detailed description of the workflow involving a PIN used as a CfC below. (Given the major impact of this proposed change, we also include legal references, which in all cases related to directive 2014/24/EU.) 1. The buyer publishes a PIN as a CfC. This notice can announce multiple restricted or negotiated procedures and multiple lots, as well as establish framework agreement(s) or dynamic purchasing system(s) (Art. 48(2)). There are no specific requirements concerning the time limit for receipt of the expression of interests, but setting them too short could be considered against the principle of fair competition. 2. Written (Art. 75(1)(b)) expressions of interest, containing just contact details, are made by economic operators (Art. 26(5) third paragraph and Art. 75(1)(d)). 3. Between the 35th day following the dispatch of the PIN and one year after sending it (Art. 48(2)(d)), at any time and any number of times, the buyer may send invitations to confirm interest (Art. 54(1) second paragraph), including (a link to) procurement documents (Art. 53(1)first paragraph) and 54(2)) to all economic operators who expressed their interest (Art. 26(5) third paragraph and 54(1) second paragraph). 4. Economic operators confirm their interest and submit documents on meeting exclusion and selection criteria (Art. 28(1)). 5. The buyer examines the documents and sends an invitation to submit tenders to economic operators which met the criteria Economic operators submit tenders. 7. The buyer evaluates the offer(s), awards contract(s), and publishes contract award notice(s). Results of separate procedures must be published in separate contract award notices. On the other hand, multiple contract award notices may be published as a result of only one procedure, e.g. to respect the 30 day deadline set for the publication of the notice following the conclusion of a contract (Art. 50(1)) Add policy relevant fields Fields concerning green, social, and innovative procurement were added, as well as fields on whether the procedure was challenged before a review body, fields on whether the management of the procurement procedure has been outsourced to a private company and to which one, and on the quantity and units of what is being bought. Reasoning: These fields are very relevant from the perspective of procurement governance as well as the drafting of future procurement legislation: Green, social, and innovative procurement is a political priority and Member States have committed to fulfilling ambitious goals, for example in the area of green public procurement No further procurement documents are sent at this point, because all procurement documents have been provided together with previous invitations to confirm interest

8 Information on challenged procedures can help find buyers who have repeated professionalisation problems. Information on whether procurement procedures have been outsourced is crucial to understand whether professionalisation issues are actually with buyers, or with external actors (thus indicating which of the two requires training). Furthermore, knowing to whom procurement management has been outsourced allows checking for conflict of interest, as well as comparing the results of the different procurement management providers. The quantity and unit (e.g. kg, hour, m 2 ) can be used to estimate and compare unit prices, which is a frequent request by public authorities. While these unit prices will be usable only for some types of procurement (e.g. goods more than works) and will seldom be perfectly accurate because of different details of the procurement, they can still be used as useful input for further analyses Furthermore, all except the last of these fields are simple checkboxes, so they should cause minimal administrative burden. The exact wording of the fields is available in the technical specifications spreadsheet. The policy fields are relevant mainly for the following categories of users: "managers of national public procurement systems" and "Other policy users of the data, e.g. citizens, academia, civil society, EU institutions". To cater to both users, most fields have been proposed as "for publication". Nevertheless, if Member States wish to collect the data and not publish it, this is also an option Add the option to explicitly mark fields not intended for publication For the contract award notice, we have added a field which can be used to mark other fields not intended for publication, including a typology and justification. Any number of fields can be marked in this way, but a typology and justification must be given for each field. Field not intended for publication because of reasons stated below: + Potential harm to law enforcement + Public interest + Commercial interests of an economic operator + Fair competition + Justification: Reasoning: according to 2014/24/EU Art. 50(4), any field in the contract award notice may be exempt from publication. For this option to be available while maintaining technical validation rules necessary for ensuring data quality a field needs to be added that allows indicating such fields. The justification field is added to understand why fields are not being published, as well as to ensure that the field is used only in the cases allowed by the directives. (Please note that the way how this form will be used depends on the user interface provided by the Electronic Sender. For example, Electronic Senders may ask whether users have a legally valid reason for not publishing some information, and if this is the case, then provide an option to "review" the entire notice and check a box next to each field as to whether it should be published or not. The translation to "field ID" will then happen on a technical level between an Electronic Sender and the Publications Office.) 8

9 Enable the use of forms below the EU procurement thresholds Fields have been added to allow the use of forms also for below-threshold procurement, e.g. by adding the option to choose "national procedure" in the "type of procedure" or "This notice was preceded only by a publication at the national level" in the "previous publication" section. Please note that using the same standard does not in any way imply the publication on TED (nor using TEDrelated services such as enotices) it only means that data can be stored at Member State level in the same structure for both below and above threshold notices. Reasoning: According to 2014/24/EU Art. 51(6), if a buyer sends his notice to the Publications Office, the Publication Office is obliged to publish it even if it does not fall within the scope of the procurement directives. However, the format of the standard forms must be used. Thus, for this option to be usable, the standard forms must cater for the needs of below threshold notices. Furthermore, the use of standard forms (or some of their sections) for below threshold procurement would reduce the overall administrative burden thanks to a lower total number of fields and forms. Finally, Member States collecting below- and above-threshold data in the same format would have an easier time comparing these two parts of their national procurement and would also be able to more easily compare information on below-threshold procurement between each other. Please note that the use of standard forms is unrelated to the applicability of the EU procurement directives, i.e. the forms may be used while the directives are not. In this sense, standard forms are essentially an open standard Establish an EU-wide identifier for procurement procedures Our aim is that every public procurement procedure should have a unique EU-wide identifier. Every notice within a procedure would refer to this identifier. This identifier should appear in all versions of a notice; that is both on TED and on national portals. Reasoning: This identifier will solve three existing problems. First, it will allow easily finding all notices related to a given public procurement procedure. Second, it will allow economic operators to know whether a procedure they have found on TED is the same one as they have found on a national portal. Third, it will simplify cross-checking that notices published at both national portals and in TED contain the same information and are published at the right time (i.e. to ensure that national notices are not published beforehand, which would give an advantage to domestic companies) Simplify and harmonize labels As far as possible, plain, everyday language is used while jargon and legal terms are avoided. For the same concepts, the same expressions are used (if legally admissible). For example, we replace "contracting authority" and "contracting entity" by "buyer" (as already used e.g. in "buyer's profile"), "contract notice" and "concession notice" only by "contract notice" (because a concession contract is also a contract), etc. On the other hand, when the directives clearly use different expressions for similar concepts (e.g. "prior information notice" vs. "periodic information notice", "application" vs. "request to participate", or "tender" vs. "project"), we keep this distinction. Reasoning: The readers of notices (e.g. SMEs) may have very low knowledge of procurement legislation, and thus may find technical terms confusing. Furthermore, in reality, public buyers also 12 See definition of open standard at p.9. 9

10 often do not have detailed knowledge of procurement legislation (e.g. small buyers, who may be conducting procurement once in several years). Finally, having several terms referring to identical concepts can be confusing Change the structure of the contract award section The award of contract section has been subdivided into four subsections: two major ones and two minor ones. The first major subsection contains information about contracts, and the other major one contains information about individual lots (if the procurement is not divided into multiple lots, then there is a single sub-section the contents of which correspond to a "single lot"). Reasoning: The relationship between lots and contracts is many-to-many, i.e. one contract can award several lots, and within one lot (in case of framework agreements and dynamic purchasing systems), several contracts may be awarded. Separating these two sections removes the need to repeatedly submit the same information. Specifically, the first major part of the contract award section contains information about the contract: e.g. who is the contractor, to which lots (previously mentioned in the object of the contract section) the contract pertains, and when it was signed. The second major part contains information about the lot: in particular its value, how many tenders were received, and whether subcontracting is likely. If a lot is listed in a contract award notice and there is a contracted associated with it, then the lot has been awarded. If the lot is listed but does not have a contract associated with it, it is not awarded. Not listing a lot in a contract award notice (while it was in the call for competition) means that the procedure is still ongoing for this lot. This process is shown in Figure 1. (Please note that in a user interface, this data structure can be represented in various ways, including as an explicit lot awarded / lot not awarded checkbox.) Finally, subsections three and four deal with subcontracting and submission of variants 13. These fields are placed separately from the first two sub-sections because they need to clearly indicate to which contracts as well as lots they are related. 13 The field "The contract was awarded to a tenderer who submitted a variant" is mandatory according to the sectoral directive (2014/25/EU). 10

11 347 Figure 1: Contract award Contract Notice Contract Award Notice (1 st ) Contract Award Notice (2 nd ) Object of the procurement Object of the procurement Result of the procedure Object of the procurement Result of the procedure Contract Award LOT Contract Award LOT LOT 1 LOT 1 Contract LOT 1 Awarded LOT 2 LOT 2 Contract LOT 2 Awarded LOT 3 LOT 3 LOT 3 Not awarded LOT 4 LOT 4 Contract LOT 4 Awarded Clarify monetary fields for framework agreements and dynamic purchasing systems Several new fields have been introduced throughout the forms to clarify monetary fields in framework agreements and dynamic purchasing systems. This is an overview of the relevant fields: "Framework agreement established" "Dynamic purchasing system set up" "Contracts within a framework agreement or a dynamic purchasing system are being awarded" "Maximum total value of the framework agreement" Maximum value of the procurement is lower than the sum of lot values. Maximum total value of the following group(s) of lots: [Group identifier] [Lot identifiers] [Maximum total value of all lots in the group] Reasoning: Reporting of values in the standard forms has not been clear, leading to confusion when entering information as well as harder use of data. Four particular problems stand out: confusion concerning whether a contract award notice is announcing a new framework agreement or only new contracts 14 within an already existing framework agreement; whether monetary values in the notice 14 Contracts within framework agreements can also be referred to as orders, purchases, call-offs, etc. 11

12 correspond to the maximum value of the whole framework agreement or the value of individual awarded contracts; and double counting of the same funds. The first two checkboxes in the list above existed in a similar format in the previous version of the forms, and indicate that a call for competition or a contract award notice includes a framework agreement or a dynamic purchasing system. The third, new, field indicates that contracts have been awarded within a dynamic purchasing system, a framework agreement announced by an earlier notice, or within a framework agreement announced by the same notice. Table 2 visualises the use of these three fields. Please note that the third checkbox does not in any way expand the obligation of Member States to publish information about contracts within framework agreements on TED. This decision remains fully at the discretion of Member States, in line with their right not an obligation to publish (given by 2014/24/EU Art. 50(2)). The purpose of the new field is only to allow the buyers to indicate when they have chosen to use this option. The fourth field is a new field and serves to indicate the maximum value of the framework agreement over its entire duration 15. Table 2 Use of checkboxes for dynamic purchasing systems and framework agreements Call for competition 1 st Contract award notice 2 nd, 3 rd Contract award (e.g. contract notice) notice Dynamic purchasing Contracts within a system set up framework agreement or Procedure 1 Not applicable a dynamic purchasing system are being awarded Framework Framework agreement Contracts within a agreement established framework agreement or Procedure 2 established a dynamic purchasing system are being Procedure 3 Framework agreement established Framework agreement established and Contracts within a framework agreement or a dynamic purchasing system are being awarded awarded Contracts within a framework agreement or a dynamic purchasing system are being awarded Finally, the fifth and sixth field give information on funds which can be spent in several lots, and thus serves to avoid counting the same money multiple times when calculating the maximum total value of the entire procurement. With the current forms, this situation occurs in two cases. First, for some framework contracts, funds can be shared across several lots. For example, Lot 1 may be about purchases of Medicine A and have a maximum value of 1 million, Lot 2 about Medicine B and have also a maximum value of 1 million, while a hospital has a general budget on medicine of 1.5 million and a policy of purchasing medicine in response to actual demand. If values at lot level were taken at face value, this would mean double counting some of the actual/potential 15 Please note that this is not the value of the framework agreement estimated for the purposes of the call of competition, but the final maximum value of the framework agreement which resulted from the competition. 12

13 spending (i.e. 2 million instead of 1.5). Second, this scenario can also happen with options, e.g. when there are three lots, each with an option, but there are sufficient funds to use only one of these options Change how the notice changing a previous notice and the contract modification notice work The functioning of the "Notice changing a previous notice" and "Contract modification notice" is changed as to better use the possibilities given by electronic communication. Instead of stating what has been changed and where, these notices will now consist of two parts: the first one will be a new version of the notice which is to be modified (i.e. if a change to a contract notice is published, then the first part of the change notice will be a new version of the contract notice), while the second will be a brief summary of the changes and, in case of the contract modification notice, an explanation of why they are being done. Reasoning: By essentially republishing a corrected form, the exact nature of changes (and the resulting document) can be easily visualised similarly to the way that track changes works in text processors. This is currently not possible, because the location of changes is stored as unstructured text ( Place of text to be modified ) and the content of changes can be submitted in a structured format only in a selected number of fields. Furthermore, this approach also reduces the overall number of unique fields across the forms, because instead of having new fields such as Text to be corrected, we republish fields which already exist in a different form Change the type of buyer classification The original type of authority classification has been renamed to "type of buyer" and changed in several ways: The distinction between authorities and agencies/offices has been removed. The typology is used for notices under all directives, not just the classical. New categories have been added: Public undertaking, Buyer operating on the basis of a special or exclusive right, and Buyer awarding a contract subsidized by a contracting authority Reasoning: The first change simplifies the classification by removing the unclear distinction between authorities, agencies and offices. The second change solves two current problems: first, not knowing whether a contracting entity is also a contracting authority leads to some buyers being asked non-applicable questions in the main activity section (see section 4.17); second, there was no information about who is procuring under the sectoral directive. The third change ensures that all types of buyers are explicitly covered by the typology: the first two terms have been added for the sectoral directive, while the third one for the classical directive. Explicitly mentioning these categories is easier from a user perspective (i.e. it is clearer than hesitantly choosing the "Other" category) and it also allows monitoring the use of the directives by these particular types of buyers. To reduce confusion, the names have been taken directly from the directives We believe this is also less confusing than proposing a new name which would be both more general and not covering buyers from other categories by accident. 13

14 Change the applicability of the main activity classification The applicability of the main activity classification has been changed, so that it no longer reflects only the type of directive, but also the type of buyer (see section 4.16). When this field appears is indicated in the table below: Table 3 Main activity field depending on the directive, type of buyer, and social services Directive Type of buyer Social and other specific services Main activity for contracting authorities Main activity for contracting entities Classical Subsidized contracts Classical Contracting authority No Mandatory Other Contracting authority No Mandatory 17 Voluntary Other Other No Mandatory Classical Contracting authority Yes Voluntary Other Contracting authority Yes Voluntary Voluntary Other Other Yes Voluntary Reasoning: The set up described in the table above solves two existing problems: contracting authorities procuring under the sectoral directive no longer need to mandatorily choose from a list which may not reflect their main activity (e.g. extraction of gas and oil), while not giving any information about their actual main activity (e.g. general public services; environment) Align the voluntary ex-ante transparency notice (VEAT) with the contract award notice. The structure of VEATs has been brought closer to the structure of the contract award notices for the same directives. Reasoning: Less diversity between forms reduces costs. Furthermore, since a VEAT will always be followed by a contract award notice, this increase in similarity does not cause any administrative burden, because the contract award notices can be prefilled on the basis of the VEAT Remove fields which are actually feature of Electronic Senders' user interfaces, not data fields We have removed several fields which were not specifying what information should be collected, but only how this should be done. These include the distinction between "the following address(es) 17 This field can be mandatory because it contains "general public services", essentially a "catch-all" category. 14

15 mentioned above:" and "at an address not mentioned above:"; "duration in months" and "duration in days"; and different manners of choosing between "yes" and "no". Reasoning: Historically, standard forms were fulfilling two roles at once. They were a "data standard", but also a way how to display the questions to the user, i.e. a "user interface". With electronic notifications, these two functions are now separate and eforms are only a data standard. The fields mentioned in the previous paragraph may still be useful, but should be part of an Electronic Sender's user interface. After receiving the information, the Electronic Senders should then send the information in the format requested by the standard form. The same logic also applies for the former distinction between the two ways of asking yes/no questions: either as " yes no", or as " yes". Once again, this is only a question for a user interface (because from a data point of view, the lack of an answer can be reported as a "no", and a "no" can be reported as a "lack of an answer"). Thus, this distinction is no longer made in eforms Recommend a procedure for selecting notices The eforms technical specifications also include a suggestion on the order in which Electronic Senders should ask information necessary for selecting a standard form while minimising the information submitted by the user. Reasoning: This information is included mainly because it is useful to for understanding the overall workflow of eforms. The order of questions influences the overall amount of fields that must be filled in. In eforms, we suggest asking first about the previous notice in the procedure (which allows to prefill the largest proportion of the notice), then the legal basis (which allows to limit the number of relevant notices), and only then the function of the notice (contract notice, contract award notice). Finally, specifying questions are asked on whether the notice concerns social or other specific services, is used as a call for competition, or aims to reduce time limits.) Add a voluntary subsection with information on all submitted tenders Add a subsection collecting information on all submitted tenders (e.g. who has submitted the tender, what was the offered price), not just the winning one. This section would be voluntary, i.e. Member States can use it, but are not be obliged to. This subsection would be part of section 10, Result of the procedure. Reasoning: Voluntary extensions establish a data standard for a policy relevant area, while keeping in mind that different buyers and Member States have different monitoring priorities. Collecting information on all submitted tenders would have two advantages for Member States: first, it is highly policy relevant; second, collecting structured data on tenders can reduce administrative burden and increase the reliability of data. The bidder information is relevant in the following policy areas: Finding collusion in public procurement, for instance by enabling competition authorities to look for bid suppression, bid rotation, market allocation, or cover ("fake") bidding. The 15

16 crucial importance of bids for discovering collusion is recognized by the OECD 18, bid collection is being developed for the OCDS, and is currently already done in some Member States, e.g. Slovakia. Having a data standard would not only facilitate collection at national level, but would also allow Member States to benchmark what types of bidder behaviours are suspicious and conduct cross-border analyses, e.g. in neighbouring regions. Answering one of the fundamental questions on the effectiveness of EU public procurement regulation, that is whether the low percentage of cross-border procurement is caused by a lack of cross-border bids, or by cross-border bids having a lower success rate than other bids. Understanding the attractiveness of national public procurement markets, i.e. knowing what proportion of a Member State's companies actually bid for procurement contracts, in which sectors, regions, etc. and whether there is a problem to be addressed. Improving the effectiveness of national remedy systems by calculating the ratio between the number of procurement procedures in which a company participated and those where it challenged the decision (if data on remedies is available). This would allow answering the question on how many companies challenge award decisions regardless of the procedure Furthermore, automatically collecting structured information on all bids can reduce administrative burden. This is the case because when eforms come into force, electronic submission of tenders will be mandatory (the deadline is October 2018). Thus, the collection of structured data from the tenders received may require only limited investment. However, once this information is collected, the following fields in the "core" part of the standard forms can be filled in automatically: Number of tenders received, Number of tenders received from tenders from other EU Member States, Number of tenders received by electronic means, Number of tenders received from small or medium enterprises (esp. if combined with information from the ESPD or national registries), Number of requests to participate received (if also submitted electronically). Moreover, the contractor information (name, address, town, etc.) and the value of the contract could be filled in simply by selecting one of the submitted bids from a list. Additionally, besides being easy to get, both the prefilled data and the data selected from a list would be more reliable, because it would come directly from the source - the tender. Concerning the concept of a voluntary extension, compared to no standardisation of data, voluntary standardisation has the advantage of allowing Member States to compare data (be it in aggregate or non-aggregate form, be it between neighbouring countries or just neighbouring regions). The scope of using an extension is up to the Member State: it can be used together with all forms, but it can also be used only in particular sectors (e.g. medical, if there are fears of collusion), for certain types of contracts (e.g. works, if they are considered more important), or only above a certain value. Furthermore, it is important to note that as bidder information can be damaging to economic operators, or abused by them, in particular by using it to check whether competitors are breaking collusive agreements, information on bids (or at least bid values) should be collected, but not published. (Alternatively, publication could be considered at a later stage, once the information is no longer relevant from a business standpoint.) 18 OECD (2009): Guidelines for Fighting Bid Rigging in Public Procurement. in particular the checklist for detecting bid rigging in public procurement. 16

17 Finally, having the possibility to publish information on TED would also allow Member States to publish at national level (see section 7.2) - if they wish to do so. In the technical annex, this extension is listed on a separate sheet: Extension: S10_bidders. 17