Much to my disappointment, one of the changes included in the compromise text that reflects the current status of negotiations for the modernisation of EU public procurement rules is a change of wording in Article 15 of the proposal for a new Directive replacing 2004/18(http://tinyurl.com/modernisationcompromise).
According to the initial proposal, that provision dedicated to the 'Principles of procurement' read: "Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate way. The design of the procurement shall not be made with the objective of excluding it from the scope of this Directive or of artificially narrowing competition" (emphasis added). In my view, this was an excellent development of EU public procurement rules.
As I said some months ago (Are the Procurement Rules a Barrier for Cross-Border Trade within the European Market? A View on Proposals to Lower that Barrier and Spur Growth: http://ssrn.com/abstract=1986114), it seemed to be getting clearer and clearer that market integration in procurement must go hand in hand with promoting and protecting effective competition for public contracts, and the drafting of Article 15 of the proposal for a new Directive finally overcame some difficulties in the development of EU procurement rules--which still suffer the problem of being excessively focused on preventing discrimination based on nationality (which has overshadowed other discrimination problems, protectionist policies and competition restrictions and distortions in European public procurement; Public Procurement and the EU Competition Rules [2011] Hart Publishing 108-110 and 212-219)—although a broader objective of fostering competition on the basis of fair and open access to procurement (not only for bidders from different Member States) can be identified in Directive 2004/18 and is further reinforced in the proposed new procurement Directive.
Now, with the compromise text, we go back to square zero and the non-discrimination rhetoric, since the new drafting of Article 15 reads: "Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner that avoids or remedies conflicts of interest and prevents corrupt practices. The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of unduly favouring or disadvantaging certain economic operators or certain works, supplies or services" (emphasis added).
Now, with the compromise text, we go back to square zero and the non-discrimination rhetoric, since the new drafting of Article 15 reads: "Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner that avoids or remedies conflicts of interest and prevents corrupt practices. The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of unduly favouring or disadvantaging certain economic operators or certain works, supplies or services" (emphasis added).
In my view, this is a step back in the modernisation of the EU procurement system and I cannot see what would be wrong with the consolidation of the principle of competition in the text of the Directives, since it is a general principle of EU Law already explicitly recognised in the field of public procurement (The Principle of Competition Embedded in EC Public Procurement Directives, http://ssrn.com/abstract=1928724) and that provides a fantastic analytical framework on which to develop welfare-enhancing public procurement rules and practice.
Therefore I would personally like to see the text of the intial proposal reinstated in Article 15 of the new Directive. Otherwise, there will still be scope for (apparently) non-discriminatory restrictions of competition in public procurement, and that would only result in losses of economic welfare for EU citizens [Distortions of Competition Generated by the Public (Power) Buyer: A Perceived Gap in EC Competition Law and Proposals to Bridge It http://ssrn.com/abstract=1458949].