Guidance on public investment into sustainable infrastructure projects
This guidance demonstrates how public procurement can be used to deliver major sustainable infrastructure projects in line with the objectives of the European Green Deal. It covers the whole life cycle of the procurement process, starting with the pre-procurement phase through to tendering, procurement, construction, use, maintenance and operation, and end of life.
Public procurement ex-ante assessment mechanism
National authorities and contracting authorities/entities can pose questions to the European Commission and receive an assessment of a project’s compatibility with the EU's regulatory framework before taking important steps in the project.
The mechanism is intended for all types of infrastructure projects, and in particular, those in the transport, energy, ICT and non-residential construction sectors.
Large framework agreements covering several smaller projects are not covered by this mechanism.
National authorities can contact the helpdesk on specific issues they face when developing the procurement plan for a project with a total estimated value of at least €250 million or of otherwise high importance.
Questions might include:
- What is the applicable EU legal framework governing a project: classic procurement, utilities directives, the concessions directive, etc.?
- What are the conditions for exclusions from the directives?
- What procurement procedures should be used and what are their specific features?
- What are the selection and award criteria?
- How to include green, social and innovative considerations
- How to implement joint procurement under Article 39 of Directive 2014/24/EU
If necessary, the helpdesk can continue to offer advice throughout the project, e.g. on issues related to award procedures or the possibility of amending existing contracts. However, any detailed assessment of the broader procurement plan or specific aspects of it, will have to be conducted under the notification mechanism.
A contracting authority is considering the best procurement solution for the construction of a new, 150-km railway line. The authority could contact the helpdesk to inquire:
- How should the public-private partnership that will build and operate the railway be developed? Does the envisaged distribution of risks require using procurement procedures in the field of utilities or will the project fall under the concessions directive?
- If the country concerned is considering signing an international agreement covering the implementation of the project, would this agreement exempt the procurement procedures from the scope of the directives?
- How best could a competitive procedure involving negotiation be designed and managed? How could the number of qualified candidates invited to participate in the procedure be reduced?
If the railway line links 2 different countries, the helpdesk could also be contacted:
- to seek clarification of the agreement needed between the contracting authorities from 2 countries to undertake joint procurement
- to clarify the applicable procurement regime when 2 EU countries want to set up a joint entity to realise a project
If a contract needs to be modified after it has been signed, an authority can submit questions concerning the conditions under which contracts could be modified. This would help it to decide whether or not a modification is possible without a new transparent procurement procedure.
Once a decision is reached on how a project will be carried out from a public procurement point of view, and the preparation of the tender documentation is advanced, national authorities and contracting entities can notify the Commission of infrastructure projects whose total estimated value exceeds €500 million, or are of otherwise high importance.
We can provide an assessment on whether the procurement plan complies with EU procurement rules, without prejudice to any future legal interpretation or assessment.
While the helpdesk is available for specific questions, the notification mechanism covers the broader procurement plan, for example:
- whether the project will use a build, a design-build or a design-build-operate contract
- whether the project will be executed through many separate tenders and which procurement procedures will be used
- how procurement for a cross-border project will be carried out
National authorities and contracting entities can notify the Commission of the overall procurement plan of the project and/or specific issues of decisive importance to the whole project.
To ensure effective treatment of notifications, authorities can raise specific issues linked to one of the tenders, but they should not notify us of each individual call for tender.
Organisations can also notify the Commission of their proposal for specific contract amendments, or of any substantial changes to a previous notification that might have a bearing on the outcome of an assessment, e.g. changing a public procurement procedure from a standard to an exceptional procedure.
The authorities have decided to split the project into 3 sections of approximately 50 km each. They will be tendered out separately, for construction and maintenance, under the utilities procurement framework.
The authorities want to check that this approach is in line with the EU procurement rules, and notify this plan to the Commission. This notification will need to include information on the procurement procedures to be used to award the contracts for the 3 lots, the planning of the procurement process, the envisaged timing, the advertising and information process, etc.
The contracting entity can indicate specific issues needing particular attention such as the definition of the award criteria in the technical specifications for the first segment.
If the contracting entity plans to modify a contract, it might want to receive an assessment from the Commission services that their plan is compliant with EU rules. In this case, the contracting entity could notify this modification to the Commission.