Taking Counsel: In the light of financial crisis 's accelerated public procurements

  • 2009-02-25
  • By Rasa Narbutaite [Jurevicius, Balciunas & Bartkus]
The European Council, by approving a European Economic Recovery Plan as of Dec. 12, 2008, supported the use for 2009 and 2010 of accelerated procedures in public procurement procedures and the European Commission has recognized this need. Accelerated procurement procedures are important within the European Union for contracting authorities and for businesses determined to secure contracts during the economic recession.

According to the European Commission's press release, it is of the view that speeding up procurement procedures can significantly support Member State action to foster their economies through the rapid execution of major public investment projects.

Directive 2004/18/EC of the European Parliament and of the Council of March 31, 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts permits the deadlines for the receipt of expressions of interest and the receipt of tenders to be reduced where it is justified on grounds of urgency. The Commission recognizes that the exceptional nature of the current economic situation in the world can justify the use of the accelerated procedure allowed in Directive 2004/18/EC. Such a presumption of urgency should apply throughout 2009 and 2010 for all major public projects.

The Commission recognizes that the use of the accelerated procedure considerably reduces the overall time limit of the procedure 's reducing the length of the tendering process for the most commonly-used procedures for major public projects from 87 to 30 days. As per Article 38(8) of Directive 2004/18/EC, certain minimum time limits of 10 days are set. Accordingly, the contracting authorities can shorten the time limit for requests to participate from 37 to 10 days (when the contract notice is sent by electronic means) and the subsequent time limit for the selected candidates to submit their tenders from 40 to 10 days. Assembling the standstill period of 10 days provided for in the Remedies Directive 2007/66/EC, all in all time limits for the restricted procedure can therefore be reduced to 30 days.

The planning of major public projects for 2009 and 2010 may use the accelerated procedures; however, the application of a definition of major public project, as well as the estimation of the urgency factor, shall be assessed on a case by case basis as no official position is provided. The consideration of current financial situation as a presumption of urgency is rather delicate, and thus a concrete decision would depend on national policies (especially in budgeting) and is up to the contracting authorities in the Member States.

Rasa Narbutaite  is an associate advocate at Jurevicius, Balciunas & Bartkus, a member of Baltic Legal Solutions, a pan-Baltic integrated legal network of law firms including Glikman & Partnerid in Estonia and Kronbergs & Cukste in Latvia, dedicated to providing a quality "one-stop shop" approach to clients' needs in the Baltics.