Rethinking the procurement Directives: Moving exclusions out of the procurement process

One of the characteristics that has always puzzled me about public procurement as a process is its hijack to achieve objectives that have nothing do with the act of buying. It simply an easy, convenient and 'free' way to enforce compliance with objectives external to the procurement process. We could talk about those added objectives such as social, green or innovation but for this post I will be focusing on something else: exclusions.

I have written before about compliance requirements having increased over time in successive rounds of Directives but honestly it has just gotten worse since 2016. We keep on piling exclusion grounds and checks into the public procurement process. For example, the Deforestation Regulation includes an exclusion on article 25 of a maximum of 12 months for non-compliance with the Regulation. Of course that for those interested in enhancing the enforcement of this Regulation, adding this exclusion ground is a free way to improve its enforcement regime. But it is not free - as it is not any of the other exclusion grounds - since it adds one extra requirement for contracting authorities to keep track of in every single procurement they participate in. I do wonder if this particular exclusion only applies for contracts above thresholds or also those below, but I digress.

In general terms, exclusions compliance adds no value to the procurement process and is a huge drag in its workflow. While things got better in 2014 when for open procedures contracting authorities were allowed to simply check the exclusion and qualification information for the winner it has not gone away and - as mentioned above - is progressively getting worse as new sectorial exclusion grounds are bolted on. I would argue that excluding exclusions from the procurement process would yield the easiest win in terms of simplifying public procurement. But I can hear you say, are those policy objectives pursued via exclusions not laudable? If they are then the associated cost should be born by beneficiaries, ie the States themselves centrally.

What I would propose instead of the current approach is simply to move the compliance and enforcement outside the procurement process altogether. Those checks should be done centrally by each member State since very often they already have the information needed to proceed with the check. I mean very often we are talking about statements from various public bodies that need to be collected (sometimes frequently) by economic operators and then handed over to the contracting authority.

So, for the most part the data informing the exclusions is already mostly in the hands of the state. That it sits in silos is a different problem, but one where we're seeing moves already with the Interoperable Europe Act for instance. If all checks are done centrally then all the contracting authority needs to do is simply assess if the economic operator has evidence of such status and that's it, except for economic operators from third countries which would probably require a legacy approach to this.

In short, all the disputes, complaints and time scales involved with exclusions would be taken away from the hands of the individual procurement officer and reside centrally. For economic operators they would not have to provide new documentation either every time they tender or at the very least every time they are successful.