by Giuliana Miglierini
After ten years of debate, a new era in the field of European public procurement is opening: negotiators from the French Presidency of the European Council and the European Parliament reached a provisional agreement on 14 March 2022 on the draft regulation establishing the new International Procurement Instrument (IPI). The tool aims to achieving a true reciprocity in access to international public procurement markets.
“Currently, European procurement is broadly open to companies from third countries, but European companies do not always have reciprocal access to public procurement in those countries. This new European instrument will equip the EU with credible leverage to open up our partners’ public procurement to our companies and will enable us to right that imbalance and defend our companies against these discriminatory practices. Today’s well-balanced agreement is a historic step in implementing an open, sustainable and firm trade policy”, commented Franck Riester, French Trade minister.
The agreed draft text is based on the second, amended proposal of a regulation adopted by the EU Commission on 29 January 2016, after the failure of the first version dated 21 March 2012. The mandate to negotiate for the European Council was approved on 2 June 2021. Further steps are now needed before the final adoption of the IPI regulation, including finalisation of the text at the technical level, approval by the EU’s Permanent Representatives Committee, and final vote by the Parliament and Council. Guidelines are also expected from the EU Commission to facilitate the application of the new regulation.
How IPI will work
Public procurement accounts for 15 to 20% of global GDP (data EU Commission). Historically, there is an unbalance in access to public procurement markets, with European companies often experiencing significant barriers to enter third countries.
The mechanism foreseen by the IPI tool requires the Commission to carry out a transparent investigation on bids made by extra-EU companies wanting to participate to public procurement tenders in the EU, should EU companies be subject to serious and recurring barriers to access the third country’s public procurement practices. The concerned country will be invited to participate to the investigative procedure, in the form of consultation. Should it decline the invitation, reciprocal measures will be applied by the EU to restrict the access of the third country’s companies to European public procurement market. More in detail, restrictions of access may take the form of a price penalty (up to 100%, if only price is taken into account), a reduced score (max. 50% score adjustment), or exclusion from the tendering procedures.
Once adopted by the European Council and Parliament, the IPI regulation will only apply to cases for which an international public procurement agreement between the third country and the EU is not in place, or where such agreement does not include commitments to open up markets for the goods or services under consideration. Furthermore, it won’t be possible for the Commission to investigate the practices of least-developed countries which benefit from the “everything but arms” arrangement, a provision intended to encourage the sustainable growth in lowincome countries.
Negotiators also established a limit value for the application of the new procurement procedures, i.e. an estimated value equal to or above €15 million excluding VAT for works and concessions, and ≥ €5 million for goods and services. Some strict conditions have been also set for member countries to request exemption from IPI measures for a limited list of local contracting authorities. To this instance, negotiators from the EU Parliament obtained the reduction to only two possible exceptions whereby an authority seeking tenderers in member states can opt out of IPI measures. Big contracting authorities, for example city halls of large towns or the central government, will always have to apply the new rules. Local contracting authorities will only be exempted from the IPI if they represent fewer than 50,000 people. Contracting authorities must always apply IPI for a percentage of annual overall tender value of 80%.
The investigation of bids received from third countries shall consider also social, environmental and labour requirements. Successful tenderers following within the field of IPI’s application will be subject to additional obligations, so to avoid circumvention of the new rules; for example, it shall be precluded to subcontract more than 50% of the total value of the contract. “This puts an end to the long list of prominent examples in which third-country bidders win illustrious public contracts across the EU while their home markets are de facto off limits for EU bidders. The agreement is effective while limiting the administrative burden to a minimum.”, said the EU Parliament’s Rapporteur Daniel Caspary.
Some reasons to overcome current barriers
A more detailed overview of the drafting process that led to the proposed IPI regulation is available in the Briefing document prepared by the European Parliamentary Research Service.
Previous steps aimed to better support access of European companies to international public procurement markets are represented by the 2014 revised Government Procurement Agreement (GPA) signed at the World Trade Organization (WTO) and various bilateral free trade agreements (FTA), such as the government procurement chapter of the EU-Japan Economic Partnership Agreement (EPA). According to the EU Parliament, these actions led only to mixed results, as many emerging economies may prove reluctant to join the GPA or to open their public procurement markets to the EU bilaterally. Also first line players such as the United States may see public procurement as a legitimate tool to promote domestic production or employment (e.g. the US Buy American Act).
The IPI’s drafting process was resumed in 2019, following concerns about the competitiveness of the European industry vs China, as detailed in the Franco-German manifesto for a European industrial policy. The adoption of the IPI was also among the targets established by the new industrial strategy for Europe, published by the European Commission in March 2020.
According to the Briefing document, in 2016 the EU average for public procurement expenditure was about 13.4%, compared to 16.2% in Japan and 9.4% in the US. Netherlands, Finland and Sweden were the EU countries with the highest levels of public procurement, Ireland, Cyprus and Portugal those with the lowest.
Data also show that in 2018 the value of public procurement of goods, services and works European markets open de jure to bidders from GPA signatories (e.g. Australia, Canada, Japan and the US) amounted to €352 billion (over a total value of €2 trillion). While not having yet joined the GPA, according to the Commission other countries such as Brazil, China, India and Turkey have increased their protectionist measures. These trends points to half of the global procurement market being currently closed to foreign bidders: an important target to be tackled by the IPI regulation, as improved access might more than double EU procurement exports (currently estimated in €10 billion).
Among the main barriers used by third countries to prevent access of European companies to public procurement, the Briefing document mentions the lack of transparency (no online publication of notices or fragmented procedures), a requirement for national establishment such as joint ventures (China, Indonesia) or local establishment (Brazil, Indonesia), local origin requirements (India 50%, Indonesia 50%), the “buy Chinese” policy, etc.