Joint Procurement under Directive 2014/24/EU Lessons from the Defence Sector

Transcription

1 Joint Procurement under Directive 2014/24/EU Lessons from the Defence Sector Dr. Baudouin Heuninckx, MCIPS Ph.D., D.Sc., LL.M., M.Sc., M.A. Public Procurement Research Group University of Nottingham, Slide UK 1

2 Centralised and Joint Purchasing Centralised Purchasing Activities (Art.2(14)) Activities conducted on a permanent basis Acquisition intended for contracting authorities Award of contracts or framework agreements for contracting authorities Central purchasing body: contracting authority providing centralised purchasing activities (Art.2(16) and 37) A contracting authority fulfils its obligations under the Directive when uses a central purchasing body Occasional Joint Procurement (Art.38) Two or more contracting authorities agree to perform certain specific procurements jointly Jointly responsible for fulfilling their obligations under the Directive Exception: each contracting authority has sole responsibility for fulfilling its obligations under the Directive for what it conducts in its own name and on its own behalf Slide 2

3 Multinational Procurement (Art.39) Contracting authorities from different Member States may act jointly in the award of public contracts Activities of central purchasing body in accordance with national provisions where central purchasing body located Contracting authorities from different Member States may jointly award a public contract Must conclude agreement on responsibilities, applicable law and organisation of procedure Contracting authorities from different Member States may set-up a joint entity under national or EU law Participants must agree applicable national procurement rules For undetermined or limited period, for certain types of contracts or for one or more individual contracts Slide 3

4 Collaborative Defence Procurement State A State B State C State D Intergovernmental agreement(s) Specificity 1: always between States Program management entity Prime contract Specificity 2: often large-scale procurement involving R&D Industrial agreement(s) Prime contractor (joint venture) Specificity 3: juste retour Partner company 1 Partner company 2 Partner company 3 Subcontracts Subcontract or (from State A) Subcontract or (from State C) Subcontract or (from State D) Subcontract or (from State B) Subcontract or (from State A) Slide 4

5 Matryoshka of Four Legal Relationships State A State B State C State D 2 3 Program management entity Prime contract 4 Prime contractor (joint venture) Slide 5

6 Legal Instruments and Comparison (1) Decision of each participant to procure jointly Defence: some Directive 2009/81/EC exclusions apply (collaborative procurement based on R&D, international rules, ) But EU Treaties principles apply unless exemption (e.g. in-house) Public sector: central purchasing body and joint procurement exclusions But can contracting authority choose freely centralised purchasing body? Agreement among the participants Defence: ad-hoc intergovernmental agreement (MOU) or treaty Defines participating States, programme management organisation, requirements, cost share, work share, etc. Often does not cover whole programme scope (phase/tranches) Public sector: not always mentioned in Directive 2014/24/EU but necessary to define the rules of the game Legal nature of the agreement depends on participating contracting authorities Joint transnational entity: not under international law 2 1 Slide 6

7 Legal Instruments and Comparison (2) Rules of contract award Defence: rules of the management entity apply (international organisation or lead nation) Multinational agreement on technical specifications Often tight control of the award process by the participants Public sector: rules of State where central purchasing body located, or as agreed among participants Always provisions of national legislation In case of framework agreement, must define the rules for participating contracting authorities to place orders Rules on contract interpretation and dispute resolution 3 Defence: rules of the management entity, plus contract law of a participant Public sector: rules of State where central purchasing body located, or as agreed among participants Problem in case of orders placed under framework agreement? 4 Slide 7

8 Lessons for the Public Sector (1) Pay attention to the preparation phase Coordinated procurement and budget planning among participants Initially, focus on quick wins (avoid complex development contracts) Maximum harmonisation of requirements (no-one is unique) Avoid juste retour considerations But risks of political pressure for large projects Agree clear governance structure and rules among participants Especially in occasional joint or transnational procurement! Avoid working case-by-case (heavy workload) Aim for a structural cooperation Streamlined decision-making Move away from unanimity among participants after procurement start Adequate delegation to central purchasing body / joint entity Leave freedom to contractor to develop solutions Slide 8

9 Lessons for the Public Sector (2) Clarify which rules apply to the award process Rules for the award of contract or framework agreement Who can place and how are orders placed under a framework agreement Central purchasing body or each participant? To be reflected in the contract documents Rules for the execution of the contract and dispute resolution (jurisdiction) Generic lessons Financial benefits of cooperation will be smaller than expected But still expect economies of scale and sharing of non-recurring costs Do not underestimate cultural differences Different procurement cultures (more or less strict domestic regulations) Knowledge of language Avoid monopoly creation Aggregated procurement risks stifle the market for SME Collaborative efforts to be continued through life Slide 9

10 Thank You for Your Attention! Baudouin Heuninckx, 2017 ALL RIGHTS RESERVED This document and all information contained herein is the sole property of Baudouin Heuninckx (the author), subject to the existence of any pre-existing rights. The views expressed in this document are solely those of the author, and do not necessarily represent those of the Belgian Defence or the University of Nottingham. No intellectual property rights are granted by the delivery of this document or disclosure of its content. This document shall not be reproduced or disclosed to a third party without the express consent of the author. This document and its content shall not be used for any purpose other than that for which it is provided. The statements made herein do not constitute an offer, nor do they constitute acceptance of an offer. They are based on the assumptions shown and are expressed in good faith. Where the supporting grounds for these statements are not shown, the author will be pleased to explain the basis thereof. THE AUTHOR HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ARISING FROM THE USE OF THIS DOCUMENT OR OF THE INFORMATION CONTAINED HEREIN. THE AUTHOR ALSO DISCLAIMS ANY OTHER OBLIGATION AND LIABILITY WHATSOEVER WHETHER IN CONTRACT, WARRANTY, PRODUCT LIABILITY, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE, ACTIVE, PASSIVE OR IMPUTED LIABILITY OR STRICT LIABILITY), BY STATUTE OR OTHERWISE, ARISING FROM THE USE OF THIS DOCUMENT OR OF THE INFORMATION CONTAINED HEREIN. Slide 10