Distinguishing technical specifications and award criteria on the basis of role, not content

The revision of the public procurement Directive intends to open up the space for the procurement of environmentally sustainable, socially responsible and innovative goods. One very important way to underscore that a contracting authority’s discretion extends to incorporating sustainable development considerations is to clarify that technical specifications, award criteria and contract performance conditions should be distinguished in accordance with their respective roles within the procurement process, not on the basis of their content.

In this briefing, we explain how the objectives of legal certainty, simplification, enabling more sustainable public procurement and respecting subsidiarity can all be advanced if the revised Directive takes such an approach. We also explain why the alternative approach of listing characteristics that can or cannot be addressed at the respective stages would be likely to perpetuate the unnecessary complication and legal uncertainty that is currently holding back sustainable public procurement.

Please note this is the updated version of the original briefing (published in April 2012) following the publication of the CJEU’s decision in a key case.

Size 240 KB
Published May 1, 2012
Found in Rule of law