Scope

Evaluation of Directive 2007/66/EC amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (the Remedies Directives)

Evaluation findings

Based on the evaluation, the Commission concluded that the Remedies Directives, in particular the amendments introduced by Directive 2007/66/EC, largely meet their objectives in an effective and efficient way although it has not been possible to quantify the concrete extent of their cost/benefits. Even if specific concerns were reported in some Member States, they usually stem from national measures and not from the Remedies Directives themselves. In general qualitative terms, the benefits of the Remedies Directives outweigh their costs. They remain relevant and continue to bring EU added value. However, certain shortcomings were identified which relate to: the lack of clarity of certain provisions, the fact information on national remedies systems has not been collected in a structured manner and has been rarely used for policy making purposes. The Commission takes the following measures to tackle these issues:

The Commission takes the following measures to tackle these issues:

(a) Guidance: the Commission initiated discussion on the interplay between the Remedies Directives and the new legislative package on public procurement, which seem to which seem to work together. Further assistance is provided via an electronic platform for national review bodies;

(b) Promotion of transparency: the Commission has developed – together with Member States – a limited number of objective, measurable and relevant indicators on the functioning of remedies systems in Member States (number of complaints, costs, length of procedures, outcome of appeals of first instance decisions);

(c) Promotion of cooperation between first instance review bodies: the Commission has created the Network of first instance review bodies to improve the exchange of information and best practices. There have been eleventh meetings in Brussels and Member States usually holding the Presidency of Council of EU. The initiative has received a strong and very warm support from the stakeholders. Additionally, during the conference “Improving access to public procurement” that took place on 15 June 2018 in Sofia as a joint event with the Bulgarian Presidency, a workshop on “Effective remedy systems to boost access to public procurement markets”, with the objective to promote the idea that well-functioning remedies systems at national level are crucial for effective public procurement. The workshop brought together members of the Network, procurement litigation lawyers, representatives of academia and representatives of economic operators, who discussed what the pre-requisites of an effective remedy system are from different perspectives.

(d) Consistent enforcement activities and monitoring: in cases where the most significant and systemic breaches of the Remedies Directives are identified, the Commission is committed to take appropriate measures to bring the relevant national practices into line with EU rules.

Estimated savings and benefits

The Remedies Directives provided overall benefits in line with the intended impacts, both direct and indirect. There are clear indications that the benefits achieved through the Remedies Directives outweigh their costs.

The costs to contracting authorities and suppliers of bringing forward or defending a review case (including direct and indirect costs) vary widely across the EU, typically accounting for 0.4%-0.6% of the contract value. It should be also noted that the costs would not reduce to zero if the Remedies Directives were repealed. On the contrary, they could be even higher because of national differences in the review and remedies rules and a lack of harmonisation at the level leading to a more cumbersome context for tenderers and others.

The benefits are important in terms of sound financial management, the best price/quality ratio and deterrence, especially when considering the value of invitations to tender published on Tenders Electronic Daily. The 2011 evaluation of EU public procurement legislation in general estimated that savings of 5% realised for c.a. EUR 420 billion of public contracts that were published at EU level would translate into savings or higher public investment of over EUR 20 billion a year. The effective implementation of the Remedies Directives can therefore make such estimated savings from the procurement Directives more likely to happen. Finally, the evaluation did not identify any administrative burden considered to be unnecessary for the operation of the Remedies Directives.