EU consultation submission: Exclusions reform

The fifth entry into this series about my submission the EU consultation on the revision of the procurement Directives is on exclusions reform and how taking them out of the procurement process is an obvious win for simplification.

30. Currently, contracting authorities have to apply mandatory and optional exclusions during a procurement procedure, either at the beginning or just before awarding the contract. The list of exclusions now in Article 57 of Directive 2014/24/EU has grown over time and grown since as well, with new exclusion grounds now being routinely introduced outside procurement rules for contracting authorities to follow as well.
31. These exclusion requirements create unnecessary burden on the procurement process and should be moved outside it because:
    - They add no value to the core purpose of procuring
    - Their cost is externalised from parties interested in their pursuance and internalised by contracting authorities instead
    - Required information is often already held by public authorities
    - Current approach creates redundant and repetitive documentation requirements
32. This is certainly the case for those exclusions included in Article 57(1) and (2) which by and large do not pertain to the contract at hand and are simply a way to enforce policy objectives that have nothing to do with public procurement. These exclusion grounds - if worthy of enforcement - should instead be enforced centrally at the member State level in a single verification system. In this particular, the member State of the economic operator and not that of the contracting authority. This should not be taken to mean a return to the 1990s practice of having approved supplier lists or its modern equivalent of Article 64 of Directive 2014/24/EU.
33. Instead of an ESPD all that would be needed is either a certificate or, more preferably, a flag on the electronic platforms considering the economic operator excluded or not. This would immediately simplify the work of contracting authorities in every single procurement procedure while centralising and professionalising the checks of exclusion grounds in a central body. Furthermore, any issues, complaints or disputes would be between the member State providing the status and not the contracting authority, once again reducing the opportunity for delays due to exclusions (or lack of them) being challenged.
34. This suggestion goes hand in hand with the one made above of integrating procurement into the wider public administration and understanding how in practice it is embedded in other activities. This would force member States to reconsider their approach to data and what data they keep in separate silos, something that is already underway due to the Interoperable Europe Act - which is supposed to apply to procurement as well. But if member States were able to create the VAT Mini One Stop Shop scheme to avoid VAT on digital services affecting cross-border trade, surely it is possible to consider a similar solution for public procurement exclusions checks.
35. While this would be applicable to the vast majority of economic operators taking part in public procurement within the EU, a legacy process would have to be kept in place for those economic operators coming from outside the EEA, be it from parties to the GPA, bilateral trade deals covering public procurement or those from third-countries - assuming the latter will still be allowed to participate in public procurement that is.