Towards a single Procurement Act: the European Commissions proposal

E. Verweij and T.A.A. Nefs

With the new ‘Public Procurement Act’, the European Commission is working on the most far-reaching overhaul of European public procurement law since 2014. On 9 September 2026, the European Commission published its proposal for this Public Procurement Act: the Proposal for a Regulation on public contracts and concessions (COM(2026) 590 final; hereinafter: the “Proposal”). The Proposal is intended to replace the three current procurement directives (2014/23/EU, 2014/24/EU and 2014/25/EU). In this blog we discuss the main features of the Proposal. We also consider to what extent the Commission has accommodated the wishes expressed from across Europe and beyond during the preceding public consultations.^[1]

Introduction: background, nature of the Proposal and next steps

The Proposal comprises an extensive explanatory memorandum, a preamble with 66 recitals and 149 articles. An internal working version had already leaked in June 2026. This blog discusses the final content of the Proposal. NB: this is still emphatically a proposal, which has yet to go through the further European legislative process. It is to be expected that the Proposal will undergo various amendments in the course of that process.

The Proposal was preceded by a research phase and a consultation process. In October 2025 the Commission completed its evaluation of the 2014 directives. On that basis the Commission concluded, among other things, that the intended legal clarity and flexibility have not been achieved, that price is still too often the sole award criterion, that the rules on access for economic operators from ‘third countries’ no longer match geopolitical reality, and that the digital procurement landscape is fragmented. Two public consultations formed the further basis for the Proposal. The explanatory memorandum and the preamble emphatically frame the Proposal in terms of competitiveness, simplification and economic security: public procurement (accounting for roughly 15% of EU GDP) is to become a strategic instrument.

The Proposal does not amend the directive on defence and security procurement (2009/81/EC); a separate revision process is under way for that directive. The Remedies Directives also remain outside the revision (more on this below). The Proposal makes no changes to those directives themselves, although it does tie in with them on certain points. For example, it leaves the standstill period untouched and delimits the group of interested parties in the dynamic procedure.

From directive to regulation: what does that mean?

The Commission has thus not opted to amend the three current directives, but for a single new regulation with direct effect (legal basis: Article 114 TFEU). That has major consequences. A regulation requires no implementation by the Member States: there will be no transposition period and no (or at least less) room for national choices or national add-ons (‘gold-plating’). The Commission thereby seeks to eliminate the divergences between the national legal systems of the Member States that have arisen over the years.

For the Netherlands, this means that the Aanbestedingswet 2012 (the Dutch Public Procurement Act) would for the most part be replaced by directly applicable Union law. That raises questions about typically Dutch instruments such as the Gids Proportionaliteit (Proportionality Guide) and the ARW 2016, and about national rules for below-threshold contracts. The further process will have to clarify what consequences this has for Dutch national procurement law and flanking policy.

It is striking that, in opting for a regulation, the Commission has not followed the input of many respondents in the consultation rounds. In those rounds, several respondents had asked to retain the instrument of directives and specifically not to opt for a regulation. The choice of instrument is therefore likely to become a major point of debate in the further process.

Classic and utilities sectors under one roof

With the Proposal, the Commission opts for a single regulation that applies to both classic contracting authorities and contracting entities (utilities). The separate Utilities Directive disappears. Here too, the Commission has not followed the input of respondents in the consultation rounds: many contracting entities in particular argued for retaining their own, more flexible directive.

Some specific rules for the utilities sectors do remain, such as a higher threshold for supplies and services (EUR 432,000); the exclusion for awards to affiliated undertakings and joint ventures (Articles 83 and 84 of the Proposal); the possibility of exempting activities that are sufficiently exposed to competition (Articles 19 and 20 of the Proposal); and the use of qualification lists (Article 49 of the Proposal). But, for example, the longer maximum duration of framework agreements in the utilities sectors (up to eight years) lapses under the Proposal. The procurement procedures for the classic and utilities sectors are also aligned: the Proposal provides for the same three procedures. Of these, the ‘open procedure’ and the ‘dynamic procedure’ are freely available; the ‘innovation procedure’ is open only for certain societal challenges (Article 31 of the Proposal). As a result, tenderers can benefit from more uniformity, transparency and periodically recurring competition.

The exemption for activities directly exposed to competition, currently laid down in Articles 34 and 35 of Directive 2014/25/EU, is, as noted, retained (Articles 19 and 20 of the Proposal). The Proposal makes it possible to put a preliminary question to the Commission ahead of a formal exemption request, on the basis of which the Commission may already grant an exemption using information already available to it (Article 20(1) and (2) of the Proposal). Furthermore, the periods for deciding on the formal request are shortened to 90 days, or 60 days where the request is accompanied by a position adopted by an independent national authority, with a limited possibility of extension (Article 20(4) of the Proposal). The Commission thus appears not to go as far as various respondents requested during the consultation rounds, namely excluding various utilities sectors entirely from the scope of European public procurement law.

Concepts: limited changes, some codifications

The core concepts remain largely unchanged. The definition of ‘public contract’ is materially identical to the current one. Three points stand out. First, the overarching concept of ‘public buyer’, which comprises the concepts of ‘contracting authorities’ and ‘contracting entities’ (utilities). Where the Proposal refers to ‘public buyers’, the obligations therefore apply to contracting authorities and contracting entities alike. Only where the Proposal refers to ‘contracting authorities’ or ‘contracting entities’ do the provisions concerned apply exclusively to contracting authorities or contracting entities respectively.

Second, the financing criterion in the concept of ‘body governed by public law’ is quantified: ‘financed, for the most part’ is replaced by financing for more than 50% (Article 7(4) of the Proposal). The leaked draft still assumed 60%, but the Commission evidently did not want to go that far.

Third, Article 1(6) of the Proposal codifies the case law^[2] on the transfer of powers between public authorities: a pure transfer of powers without remuneration falls outside the Regulation. The codification of case law requested in the consultations, including on ‘open house’ models and pecuniary interest, is only partially delivered: the selectivity requirement is codified for concessions (Article 115(1)(c) of the Proposal), but a general codification for public contracts is lacking.

In-house awards and public-public cooperation

The exemptions for quasi-in-house awards and public-public cooperation return in virtually unchanged form (Articles 80 and 81 of the Proposal). The ‘essential part of the activities’ criterion remains at 80% (Article 80(1)(b) and (3)(b) of the Proposal). The 20% limit for public-public cooperation is likewise maintained (Article 81(1)(c) of the Proposal). The familiar concept of ‘open market’ is not further defined, despite requests to that effect during the consultation phase. The consultation rounds featured many requests both to relax and to tighten these further conditions for in-house awards. The Commission appears to have chosen, by way of compromise, to (largely) maintain the current framework.

There are nonetheless some changes, such as in the method for calculating the average turnover of the controlled entity (Article 80(4) of the Proposal). In addition to the average turnover over three years, an appropriate alternative activity-based measure, such as costs, may now also be used. This is offset by a tightening: awards based on these exemptions must henceforth be made public within 20 days of the conclusion of the contract through the ‘National Public Procurement Data Space’ (the ‘NPPDS’, discussed below), including a justification for relying on the exemption (Article 134(3) of the Proposal). This is to make legal protection possible. Also new is a separate exemption for local and regional authorities that entrust tasks to each other or use each other’s own resources, including in exchange for remuneration (Article 82 of the Proposal). Equally new is the clarification that the in-house and cooperation exemptions do not apply where the contract is subcontracted in its entirety without a procurement procedure (Article 80(6) and Article 81(4) of the Proposal).

Other exemptions

The list of other exempted contracts remains largely unchanged, but there are some striking changes. The most important concerns research and development: contracts for certain R&D services are exempted in full (Article 79 of the Proposal). This concerns “the procurement of fundamental research, industrial research and experimental development up to original development. Original development of a first product, service or work may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the product, service or work concerned is suitable for production or supply in quantity to acceptable quality standards, but shall not include quantity production or supply to establish commercial viability or to recover research and development costs. R&D procurement may include obtaining the ownership of prototypes or first products, services or works that are developed at the public buyer’s request in the course of and for a particular research and development services procurement contract, but shall not include the commercial deployment of end-products, services or works.”

Thresholds: no increase

The thresholds are not being raised. They remain at their current level: EUR 5,404,000 for works and concessions; EUR 140,000 and EUR 216,000 respectively for supplies and services awarded by central and sub-central authorities; EUR 432,000 for supplies and services awarded by contracting entities; and EUR 750,000 for social and specific services (Article 2 of the Proposal). Recital 6 explains why: the thresholds are anchored in the GPA and cannot be raised unilaterally. According to the Commission, an increase must be tabled in the next round of negotiations on the GPA. The many requests from the consultation rounds to raise the thresholds therefore cannot (yet) be accommodated.

Below-threshold contracts: no rules, but data sharing

The Proposal contains no substantive rules on the award of contracts with a value below the thresholds. The Commission thereby passes over the requests made by some respondents during the consultation rounds for such rules. The Proposal does, however, introduce a remarkable new obligation: information on all contracts with a value of EUR 10,000 or more must, including below the thresholds, be made available to the national procurement data space (‘National Public Procurement Data Space’, NPPDS; discussed in more detail below), within 20 days of the conclusion and of the completion of the contract (Article 134 of the Proposal). The Proposal attaches a sanctions regime to this: Member States must designate competent authorities and provide for effective, proportionate and dissuasive fines for infringements of the obligation to make this information available (Article 134(9) of the Proposal). For the Netherlands, where hardly any structural publication takes place below the thresholds, this would be a considerable change.

CPV codes and notices

The modernisation and simplification of the CPV system requested during the consultation rounds does not materialise. The Proposal continues to rely on CPV codes in numerous places, and there is no sign of a revision of the CPV Regulation. The current standard forms do disappear: publications will henceforth take place through data-driven ‘information categories’ (consultation, competition, result, contract, modification and completion). The underlying system is set out in Articles 109 to 113 of the Proposal. The public buyer records its decision-making and communications for each procedure and makes them available through the ‘National Public Procurement Data Space’ (NPPDS, discussed below; Article 109 of the Proposal). The notices (‘public summaries’) are transmitted via the NPPDS to the Publications Office of the EU and published (Articles 110 and 112 of the Proposal).

Third countries and European preference

Article 70 of the Proposal builds on the Kolin İnşaat and Qingdao judgments (CJEU 22 October 2024, C-652/22; CJEU 13 March 2025, C-266/22 (Qingdao)): the rights and principles of European public procurement law accrue only to economic operators from the EU and from countries with which the Union has agreed reciprocal market access (the GPA or a trade agreement). The principle of equal treatment in Article 4 of the Proposal is expressly limited to economic operators from the Union and to ‘covered’ economic operators within the meaning of Article 70 of the Proposal, i.e. economic operators from countries that are party to the GPA or another relevant trade agreement.

Articles 70 to 77 of the Proposal further contain a regime for applying European preferences. Economic operators, goods, services and works are designated as ‘covered’ or ‘non-covered’, to be determined for each procedure via an online tool of the Commission that must be consulted. Public buyers may then, provided this is announced in advance, reserve participation to EU and covered economic operators, impose requirements of origin and give preferential treatment to European tenders in the evaluation; and reject tenders of which less than half of the value is covered (Article 73 of the Proposal).

This regime confers various powers on the Commission. It may withdraw covered status from countries or product groups, for example where reciprocity is lacking or to protect security of supply (Article 72 of the Proposal). The Commission may also make optional preference measures mandatory (Article 75 of the Proposal). Recital 34 mentions the railway and shipbuilding sectors as examples.

With this system the Commission accommodates various requests made during the consultation rounds for more clarity on how to deal with economic operators from ‘third countries’. Within those consultations, giving preference to economic operators and suppliers of European origin was a major point of debate. It is therefore to be expected that this part of the Proposal will still give rise to considerable discussion. Whether the European Parliament and the Council will accept the Proposal unchanged on this point remains to be seen. For Norway, Iceland and Liechtenstein, their position can be brought within the covered category via the EEA Agreement (Article 70(1)(b) of the Proposal, on countries with a bilateral or multilateral trade agreement with the Union); the Proposal is moreover marked as EEA-relevant: the heading states ‘Text with EEA relevance’, which means that, once adopted, the Regulation can also come to apply to these countries through incorporation into the EEA Agreement.

Procurement procedures

The Proposal contains far-reaching changes to the procurement procedures to be followed. All current procedures (the open and restricted procedures, the competitive procedure with negotiation, the competitive dialogue, the innovation partnership and the dynamic purchasing system) disappear. They are replaced by the following three procedures, supplemented by a residual category.

Open procedure

The open procedure (Article 34 of the Proposal) becomes the standard procedure, including for concessions. Any economic operator may express its interest and in doing so immediately submits a tender (as in the current open procedure); the minimum time limit is 20 days. For the rest, the Proposal leaves the time limits to the public buyer, which gears them to the nature and complexity of the contract and extends them in the event of additional information or significant changes (Article 96 of the Proposal). The public buyer announces in advance whether it will apply selection criteria (including suitability requirements) (which has thus become optional, Article 27 of the Proposal) and whether it intends to negotiate. Negotiating is thus likewise optional: the public buyer may also choose to award immediately on the basis of the first tenders, without negotiation rounds (Article 34(1) and (3) of the Proposal). Where the public buyer does apply selection criteria, these are constrained: experience with previous public contracts may in principle not be required, unless the complexity of the contract or the nature of its subject-matter justifies it (Article 27(6) of the Proposal). Requirements concerning, for example, turnover, financial statements or professional liability insurance are permitted (Article 27(7) of the Proposal; on the cap on the turnover requirement, see below under ‘Access for SMEs’). If the public buyer opts to negotiate, it may do so in several rounds, and the number of participants may be reduced per round on the basis of the award criteria or their quality elements. There may be no negotiation on the ‘essential characteristics’ of the contract. The public buyer must also indicate in advance which elements are non-negotiable. After the final round, final tenders are submitted which may no longer be amended (comparable to the current competitive procedure with negotiation). The public buyer may also still decide to forgo negotiations and award directly on the basis of the first tenders, but only if it has reserved that possibility in the notice (Article 34(6) of the Proposal).

Dynamic procedure

The dynamic procedure (Articles 36 to 40 of the Proposal) replaces the current dynamic purchasing system and is intended for recurring purchases of ready-made solutions. The public buyer chooses at the time of the notice whether to conduct the procedure with or without selection criteria (Article 37(2) of the Proposal). In the variant without selection criteria there are no suitability requirements, but the exclusion grounds do apply; on joining, economic operators declare through their profile in the electronic eligibility service that they are qualified to perform the contract (Article 38(1) of the Proposal). In the variant with selection criteria, the public buyer admits to the procedure only economic operators that meet those criteria (Article 39(2) of the Proposal). If more than five candidates come forward for a specific contract, the public buyer may limit the number of economic operators invited to five or more, selected by means of random algorithmic determination (Article 38(3) of the Proposal).

‘Innovation Procedure’

The innovation procedure (‘Innovation Procedure’, Articles 41 to 45 of the Proposal) replaces the current innovation partnership and the competitive dialogue. In this procedure the public buyer formulates a societal challenge instead of a technical specification. A public market consultation of at least two months is followed by a selection phase, a testing and validation phase of no more than two years with upfront payments per milestone, and a published positive or negative decision to proceed (Article 44(8) of the Proposal). The public buyer then negotiates with the positively assessed economic operators on, among other things, volumes and price, after which the contract is awarded directly; this may take place for up to five years after publication of that decision (Article 45 of the Proposal).

Other

In addition, a variant of the negotiated procedure without prior publication remains: direct award with publication afterwards (Articles 46 to 48 of the Proposal). The familiar grounds (a single economic operator, technical reasons, exclusive rights, additional deliveries, commodity markets, particularly advantageous opportunistic purchases, extreme urgency) return, supplemented by national security and, strikingly, categories of event, hotel, restaurant and catering services. Film, radio and television services and news-agency services have also been added (Article 47(c) of the Proposal). In crisis situations established at Union level, the urgency ground applies automatically. Equally striking is that the current ground that no (suitable) tenders have been received is absent from the list.

The ‘Needs Plan’ still envisaged in the leaked working version, a mandatory indicative procurement plan per budget period which was even a condition for using the dynamic procedure, did not make it into the final text. What remains is the market consultation as a regulated preparatory instrument, with its own notice (Article 30 of the Proposal). In addition, public buyers must document and share considerably more: all decision-making and communications per procedure must be recorded (Article 109 of the Proposal) and a broad range of information, from participants and subcontractors to payments and the origin of goods, must go to the NPPDS (Article 134 of the Proposal).

On balance, the Commission thereby accommodates the consultation to a significant extent: many respondents asked for a simplification of the procurement procedures. The downside is that public buyers and tenderers will probably have to get used to the new procedures all over again, which may prove a source of disputes.

Framework agreements

The rules on framework agreements (Article 103 of the Proposal) amount to a limited relaxation of the system, but above all to shorter durations. The maximum duration becomes three years for a framework agreement with a single economic operator and five years with several economic operators (currently still four years for the classic sectors and eight years for the utilities sectors). In exceptional cases a longer duration may be applied, provided this is duly justified by the complexity or the specialised nature of the purchase (Article 103(2) of the Proposal). In practice, the shortening therefore need not always work out so strictly. For contracting entities, which in the consultation asked precisely for the removal of maximum values and for more flexibility, this is a clear deterioration: they will henceforth be bound by the stricter regime. The case law on stating maximum quantities and values in advance is codified. It is remarkable, however, that those maxima may still be adjusted in the notice of the result, provided the adjustment is proportionate to the terms of the winning tender (Article 103(3), final sentence, of the Proposal); how this squares with the case law on the limiting effect of maxima remains to be seen. Furthermore, contracts based on a framework agreement may continue to run beyond the end of the framework agreement, but by no more than half of its duration (Article 103(4), final sentence, of the Proposal). The respondents’ wish for precisely more flexibility in durations is thus only partially granted.

Sustainable, environmental and social criteria

The Proposal bundles green, social and innovation considerations into separate chapters containing mainly facilitative provisions: public buyers may take environmental and social considerations into account in specifications, award criteria and conditions for the performance of the contract (Articles 50 and 55 of the Proposal), provided they are linked to the subject-matter of the contract. That link is defined more broadly than before: an indirect link also suffices, expressly including working conditions (Article 90 of the Proposal). Within this optional framework, public buyers may also impose circularity requirements, for example on lifespan, reparability, recycled content or circular business models such as product-as-a-service; this is not an obligation (Article 51 of the Proposal). Recital 40 also mentions fair-trade conditions and fair wages in the supply chain as examples. Also new is a separate provision on food procurement, aimed at, among other things, fair remuneration of farmers, organic products and animal welfare (Article 53 of the Proposal).

The framework is not entirely non-committal, however. Three obligations stand out. First, public buyers must purchase only products, services and works with a high energy-efficiency performance, unless this is not technically feasible; the obligation from the Energy Efficiency Directive moves to the Regulation (Article 52 of the Proposal). Second, accessibility requirements remain mandatory for purchases intended for use by natural persons. Third, when purchasing products and technologies covered by the Union legislation listed in Annex VII, public buyers must in principle themselves include appropriate environmental characteristics in specifications, award criteria or conditions for performance, expressed in the performance classes, levels or thresholds of that legislation (Article 54(1) of the Proposal). The Commission may moreover, by delegated act, harmonise those characteristics and make them mandatory. It may do so only where diverging requirements create a real risk of fragmentation of the internal market or where demand for these products needs to be stimulated (Article 54(2) of the Proposal). This creates a mechanism through which mandatory green procurement can be introduced per product category without a new legislative procedure. The exceptions to such mandatorily prescribed characteristics are limited: refraining is permitted only where only one economic operator can supply without a reasonable alternative, or where application would lead to disproportionate costs or technical incompatibility in operation and maintenance (Article 54(3) of the Proposal). Anyone requiring an ecolabel must moreover use the EU Ecolabel where available (Article 91 of the Proposal).

In the social field, reserved contracts for sheltered workshops remain (with the 30% threshold, Article 57(1) of the Proposal), supplemented by a new reservation for non-profit organisations for certain public welfare services (Article 57(2)). The light regime for social and other specific services is also retained, with award in accordance with national law (Article 58 of the Proposal). A general obligation to apply social criteria, as advocated by the trade unions, is not introduced: social requirements remain optional (Article 55 of the Proposal). Here the Commission follows the line of the public buyers and employers’ organisations, which argued for encouraging rather than obliging.

Best price-quality ratio: mandatory weighting of quality

The award system changes fundamentally. Contracts will henceforth be awarded on the basis of the best price-quality ratio, with a minimum weighting for quality criteria of 30%, and even 50% for labour-intensive contracts (Article 98 of the Proposal). Awarding on the basis of lowest price or costs is permitted only where quality is sufficiently safeguarded through the specifications or the conditions for performance; the public buyer must state its reasons for this in the notice (‘comply or explain’). It is also possible to compete solely on quality at a fixed price (paragraph 2). Life-cycle costs count within the quality weighting. The same applies to environmental criteria that are mandatory under Union legislation: they too count within the minimum weighting. Merely complying with statutory obligations, by contrast, does not qualify as an award criterion (paragraph 4).

The European preference also feeds through into the award phase: the price reductions and additional points for European tenders discussed above may be made part of the best price-quality ratio evaluation (Article 98(2)(b) and Article 73(2)(b) of the Proposal).

Digital sovereignty, security and resilience

The Proposal contains new rules on security and resilience (Articles 66 to 69 of the Proposal). For every procurement procedure identified as posing risks to security or public security, public buyers must take appropriate measures at all stages, from planning and market consultation to award and performance (Article 66 of the Proposal). This ranges from security requirements in specifications to the screening of tenderers. The security risks referred to include the protection of critical infrastructure, cyber threats, espionage, harmful strategic dependencies and undue influence from third countries, including through the ownership structure of tenderers. Public buyers are also given the power to terminate ongoing contracts in whole or in part, or to exclude economic operators during performance, where the contractor fails to comply with its obligations to prevent or mitigate security risks or where such a risk materialises or threatens to materialise, following a written and proportionate assessment and, in principle, with the operator being heard (Article 67(1) and (2) of the Proposal). For products with digital elements, Member States must ensure that the cybersecurity requirements of the Cyber Resilience Act are taken into account in procurement (Article 68 of the Proposal). For contracts for critical entities within the meaning of NIS2 and the CER Directive, public buyers must consider requirements on security of supply and resilience, from stockholding obligations within the Union to emergency plans.

The digital infrastructure itself is also regulated. Electronic communication becomes mandatory at all stages, through generally available and non-discriminatory means, with safeguards for the integrity and confidentiality of tenders (Article 127 of the Proposal). The Commission will facilitate a secure interoperability network through which public buyers and economic operators can communicate with each other via different eProcurement service providers (Article 128 of the Proposal). The Commission may furthermore have uniform, harmonised standards drawn up for procurement procedures and procurement documents and, if the standardisation organisations fail to deliver in time, itself adopt common specifications (Articles 129 and 130 of the Proposal). EProcurement platforms must be established in the EEA, be owned and controlled within the EEA without decisive influence from third countries, and keep all procurement data within the EEA. Each Member State must in addition establish or designate a national procurement data space (National Public Procurement Data Space, NPPDS): a single central national access point providing access to information covering the full procurement and contract cycle, from participants, subcontractors and tenders to payments, strategic objectives and risk indicators (Article 134 of the Proposal). The information must remain available for at least ten years. The NPPDS too must be established in the EEA, be in EEA ownership and store all data within the EEA. The national data spaces feed, within ten days, a Public Procurement Data Space (PPDS) managed by the Commission: a central repository of procurement information from all Member States, to which the Commission may also grant access for Union institutions such as the European Public Prosecutor’s Office, OLAF and the ECB, and in which non-public information can be consulted only with access rights (Article 135 of the Proposal). On the basis of these data spaces, the Member States and the Commission must monitor the functioning of the procurement markets and report periodically (Article 137 of the Proposal). The Commission will build its own eProcurement service, the software of which will be released as open source. For works with a value of EUR 25 million or more, Building Information Modelling becomes mandatory. On numerous points the Commission may moreover adopt mandatory security requirements by delegated act. Each Member State must also designate a national coordinating authority: it coordinates the national authorities involved in the implementation of the Regulation, acts as the central contact point for the Commission and other Member States, and draws up standard documents and guidance for large infrastructure projects and long-running contracts; Member States may also entrust this authority with the prior review, discussed below, of modifications exceeding 50% (Article 138 of the Proposal). For tenderers this means a structural increase in compliance requirements, both when tendering and during performance.

Access for SMEs

The Proposal contains a consistent package of SME measures, largely in line with the consultation. Selection criteria become optional and, where applied, capped: the turnover requirement may not exceed 50% of the estimated annual contract value (Article 27(7) of the Proposal; currently up to 200%) and experience with previous public contracts may in principle not be required, unless the complexity of the contract or the nature of its subject-matter justifies it (Article 27(6) of the Proposal). For groups of economic operators it is clarified that a group meets the criteria where one participant does, or where the participants meet them jointly (Article 22(1) of the Proposal). Different requirements for groups are permitted, inter alia, in the case of ‘critical tasks’ and provided they are duly justified (paragraph 2).

Subcontracting remains permitted, but subcontracting the contract in its entirety is prohibited (Article 24 of the Proposal). The public buyer may also require the replacement of subcontractors to which exclusion grounds apply. Member States may (further) restrict subcontracting where there is a substantiated higher risk of infringement of social and labour-law obligations (Article 24(1) and (7) of the Proposal).

Public buyers must consider dividing contracts into lots (Article 100 of the Proposal). In that assessment the public buyer must take into account, among other things, the potential contribution of lots to SME participation, the reduction of dependency on a single supplier, and security of supply; if it decides against division, it must state its reasons (Article 100(2) of the Proposal).

Exclusion grounds, ESPD and self-cleaning

The system of exclusion grounds is consolidated and expanded (Article 25 of the Proposal). New grounds include convictions for environmental crimes, violation of EU sanctions, illegal employment of third-country nationals, fraud with non-cash means of payment and child sexual abuse. The look-back period is five years. Among the optional grounds (Article 26 of the Proposal), one new ground stands out: exclusion of economic operators that do not possess sufficient reliability in view of the security and public-order interests of the Union or of a Member State, precisely the security-related exclusion ground requested in the consultation. Also new is an optional ground for economic operators in respect of which the Commission has, in the preceding three years, adopted a prohibition decision under the Foreign Subsidies Regulation (Article 26(1)(h) of the Proposal). The maximum exclusion period for optional grounds is raised to five years.

Self-cleaning is confined to the optional exclusion grounds: only Article 26 of the Proposal offers the possibility of rebutting the existence of the ground or demonstrating reliability through remedial measures (Article 26(2) of the Proposal), and recital 13 states expressly that self-cleaning is not permitted for the mandatory grounds. That is a tightening compared with Article 57(6) of Directive 2014/24/EU, which also allows self-cleaning for mandatory grounds. An operator that has been excluded from participation in procurement procedures by final judgment cannot rely on self-cleaning during that exclusion period either (Article 26(2), penultimate subparagraph, of the Proposal). Member States may designate a national authority to assess self-cleaning measures; a positive decision of that authority binds public buyers (Article 26(2) of the Proposal).

The European Single Procurement Document (ESPD; in the Netherlands known as the UEA) disappears. It is replaced by an electronic eligibility service managed by the Commission with a ‘digital business credential tool’ (Article 133 of the Proposal). This will be a central portal set up by the Commission in which the public buyer enters the applicable exclusion grounds, selection criteria and requirements of origin for each procedure, and the economic operator creates a matching eligibility profile; verification then takes place through digital business data, such as the European Business Wallets, which must be available in all Member States by 30 June 2028 (Article 133 of the Proposal). Public buyers must prescribe that service as the means of proof of the absence of exclusion grounds and of compliance with the selection criteria, including in respect of third parties on whose capacities reliance is placed and of subcontractors; where the service produces an automated verification, that verification is binding on the public buyer (Article 28(1) and (2) of the Proposal). The evidence is retrieved as far as possible automatically from national registers (criminal records, tax and insolvency registers, business registers and UBO registers), which must be connected by 15 June 2029 (Article 29 of the Proposal). As long as data are not digitally available, a self-declaration suffices (Article 28(3) of the Proposal). The Commission thereby responds to the many complaints raised in the consultation rounds about the burden of the ESPD.

Abnormally low tenders

The rules on abnormally low tenders are tightened (Article 101 of the Proposal). The duty to investigate is objectivised: an explanation is mandatory where prices are significantly lower than the other tenders, the public buyer’s own estimate or prices in comparable earlier contracts. The tenderer must demonstrate the economic viability of its price over the entire duration of the contract. Also new is that the public buyer is in certain circumstances obliged to exclude: if a satisfactory explanation is not forthcoming, even after a request for clarification, the public buyer is obliged to reject the tender (Article 101(4) of the Proposal). A prohibition decision under the Foreign Subsidies Regulation does not create a presumption of an abnormally low tender; that situation has been placed among the optional exclusion grounds (Article 26(1)(h) of the Proposal). The Commission thus follows the line of the respondents who asked for a tightening; the counter-voices urging restraint find no resonance.

Rectification of defects

The Proposal introduces rules on the rectification of errors in tenders. The public buyer may, on a strictly non-discriminatory basis, give economic operators the opportunity to supplement, clarify or complete (manifestly) incomplete or incorrect or missing information or documents; this is, however, possible only in the case of minor informalities or irregularities and provided the tender or the eligibility information is not materially changed (Article 102(2) of the Proposal).

The Proposal also regulates corrections by the public buyer itself: manifest errors in the procurement documents may be corrected up to the deadline for the submission of tenders. In the case of material, irreparable errors the procedure must be withdrawn (Article 102(1) and (3) of the Proposal). In addition, the public buyer may withdraw the procedure up to the signature of the contract, and in the case of contracts divided into lots also partially. That decision must be reasoned and communicated to the tenderers as soon as possible (Article 102(4) of the Proposal).

Modifications after award and termination

The rules on the modification of contracts are recast (Article 106 of the Proposal). The system of Article 72 of Directive 2014/24/EU, with exhaustive cases and percentage ceilings, is replaced by a more open test: modifications are permitted as long as they are not substantial, and substantial modifications are permitted in three cases (additional works or services, unforeseeable circumstances and replacement of the contractor). In each case this is subject to the condition that the initial economic balance is not altered. Every modification must moreover respond to an objective need that has arisen during performance and remain limited to what is necessary and appropriate for that purpose (Article 106(1) of the Proposal). The 50% cap per modification for additional works and unforeseeable circumstances disappears as a validity ceiling (Article 106(4)(a) and (b) of the Proposal). It returns only as the threshold for a prior publication obligation, which may be dispensed with only in the event of urgency due to an established emergency (Article 106(6) of the Proposal). For substantial modifications under paragraph 4 that remain below 50%, a limited ex-post publication obligation applies: within 20 days of the modification (Article 106(7) of the Proposal). Modifications may moreover not be used to remedy shortcomings in the performance of the contractor that are not justified by circumstances beyond its control (Article 106(9) of the Proposal).

Review clauses are given their own legal basis in the form of ‘adjustment mechanisms’ (Article 105 of the Proposal): predetermined, clear and unequivocal mechanisms for price indexation, demand-driven adjustments and performance-related payments, provided they are objectively justified by the nature of the contract and preserve the economic balance (Article 105(1) of the Proposal). This grants the widely supported wish to make price revision possible in the event of cost increases, although it remains a power rather than an obligation.

The familiar de-minimis thresholds of 10% (supplies and services) and 15% (works) merge into a single threshold: modifications of up to 15% of the value of the initial contract are considered not to be substantial, provided the economic balance of the contract does not shift (Article 106(2) of the Proposal). The current additional ceiling of the European threshold lapses in this respect, in line with the input of respondents. In the case of successive modifications, the cumulative net value remains decisive (Article 106(2) of the Proposal). It is also expressly provided that adjustments based on a previously disclosed adjustment mechanism do not constitute a modification within the meaning of the modification rules (Article 105(3) of the Proposal). On balance this is a relaxation that is in line with the consultation, but the new open norms will undoubtedly raise new demarcation questions.

Finally, a mandatory termination regime is new: the public buyer must terminate the contract where the contractor has been convicted by final judgment on a mandatory exclusion ground. This is subject to an overriding reason of public interest, or where the CJEU has found in infringement proceedings that the contract should not have been awarded to the contractor because of a serious breach of Union law (Article 107 of the Proposal).

Concessions: from light regime to fully fledged rules

A separate part is devoted to concessions (Articles 114 to 126 of the Proposal). The starting point, however, is the reverse of that of Directive 2014/23/EU: the regime for public contracts applies mutatis mutandis to concessions, unless Articles 114 to 126 of the Proposal provide otherwise. The characteristic light regime of Directive 2014/23/EU, with relatively more freedom in designing the procedure, thereby largely disappears. Concessions are awarded through one of the new procedures discussed above. The procedures are thus the same as for ordinary public contracts (Article 123(1) of the Proposal); the notice for concessions must, however, additionally provide insight into the composition of the estimated value (investments and operating revenues) and the allocation of the main risks (Article 123(2) of the Proposal).

The Proposal clarifies the concept of ‘operating risk’, in line with the wishes of several respondents in the second consultation. The definition focuses on the concessionaire’s actual exposure to uncertain economic outcomes (Article 115 of the Proposal). It is also clarified that arrangements without selectivity (open-house-type admission systems), and the mere granting of rights of use over public land or property, do not constitute a concession.

In addition, the Proposal contains a series of new obligations for concessions: a required risk analysis prior to the procedure; measurable performance requirements (KPIs) in the concession documents; detailed rules on the duration, which may not exceed the period in which the concessionaire can recoup its investments with a reasonable (but not guaranteed) return and which may also be requested as part of the tender (Article 122 of the Proposal); and periodic performance monitoring with a five-year record-keeping and reporting obligation (Article 121(3) of the Proposal). In addition to the termination grounds that also apply to ordinary contracts (Article 107 of the Proposal), an additional ground for termination applies for reasons of public interest: proportionate, reasoned, only where a less intrusive measure does not suffice, and against appropriate compensation (Article 126 of the Proposal). Modifications of more than 50% of the value must be published in advance (Article 125(6) of the Proposal) and may be made subject to prior national review (Article 138(2) of the Proposal). For review clauses and modifications during the term, Articles 124 and 125 of the Proposal largely correspond to the general rules for regular contracts (Articles 105 and 106 of the Proposal), including the 15% threshold for ‘minor modifications’. There are, however, differences: adjustment clauses must leave the transfer of the operating risk intact (Article 124(1) of the Proposal); in assessing whether a modification is substantial, the mandatory performance requirements of Article 119 of the Proposal are also taken into account (Article 125(3) of the Proposal); and where the continuity of an essential service is threatened, the public buyer may take temporary, strictly necessary measures (Article 125(8) of the Proposal).

Coherence with sectoral legislation

An important, less visible part of the Proposal is the ‘regulatory deep cleaning’. Procurement obligations that are currently scattered across dozens of sectoral instruments, including the Energy Efficiency Directive, the CSDDD, the Accessibility Directive, the Cyber Resilience Act and the Net Zero Industry Act, are repealed and replaced by the general chapters of the Regulation on strategic procurement, applicable to all contracts: green, social, innovation, security and European preference (Part III, Title II of the Proposal). The exclusion grounds from eleven sectoral instruments are likewise consolidated, and the scattered powers to adopt procurement criteria are replaced by a single horizontal mandate.

For the relationship with sectoral preference rules, a horizontal framework applies: where sectoral Union legislation prescribes participation restrictions or preferences, the general rules of the Regulation apply, unless the sectoral act provides otherwise (Article 77 of the Proposal). Autonomous regimes such as the International Procurement Instrument and the Foreign Subsidies Regulation continue to exist alongside this; according to the explanatory memorandum, more far-reaching amendment of sectoral legislation must take place separately. The Commission thereby addresses a clear signal from the consultation: the call for coherence between the procurement framework and the many ‘how to buy’ provisions in sectoral legislation.

Legal protection

On legal protection the Proposal indeed contains next to nothing: the Remedies Directives (89/665/EEC and 92/13/EEC) are not being revised and remain applicable, including the standstill period. That confirms the picture from the consultations, in which legal protection had been placed outside the scope. It is worth noting, however, that the Proposal limits the group of interested parties in the dynamic procedure to economic operators that have submitted a tender (Article 38(4) of the Proposal). For the Netherlands, the debate on improving legal protection in procurement thus remains primarily a national matter, on which the Dutch legislative proposal on legal protection in procurement is still pending.

Conclusion: what does this mean in practice?

The Proposal shows a Commission opting for maximum harmonisation: a single regulation, three procedures, mandatory quality weighting, a European preference regime and a fully digital infrastructure. On some points, consultation wishes are generously granted (room for negotiation, once-only, SME measures, the R&D exemption, a framework for third countries); on others they are not (thresholds, duration of framework agreements, merging of the utilities sectors).

After publication, the real legislative process begins: the ordinary legislative procedure. Given the political sensitivity of the choice of instrument, the European preference and the mandatory best price-quality ratio, and the substantial delegation of powers to the Commission, a lengthy process with substantial amendments to be expected lies ahead. Under the Proposal, the Regulation enters into force twenty days after publication in the Official Journal and applies from two years after its entry into force (Article 149 of the Proposal). Judging by the 2014 revision and that period, the new rules will realistically not apply before 2029 or 2030.

For public buyers and economic operators there is thus no immediate need for action. There is, however, every reason to follow the process and to start taking stock of what the proposals would mean for their own procurement strategy, framework agreements, award models and supply chains. We are following developments closely.