Collaborative Centralized Cross-Border Public Procurement : Where Are We and Where Are We Going To?

The Directive 2014/24/EU on Public Procurement (“the Directive 2014/24), the Directive 2014/25/EU on Utilities, and the European Commission have as one of their aims the impulse of aggregation of public purchases by means of central purchasing bodies and other aggregated procurement techniques. The interest and initiative of public procurement stakeholders, particularly the Commission, some Member States, and some contracting authorities to strengthen and develop further centralized purchasing techniques. As part of these efforts, centralized purchasing services are now seen not only as purely national option but rather as a vehicle for public-public cross-border collaboration. For the first time in EU/EEA public procurement history, the Public Procurement Directives expressly contemplate the possibility of awarding public contracts through contracting authorities from different MS by means of cross-border procurement collaboration. These cross-border collaborative provisions allegedly allow contracting authorities “derive maximum benefit from the potential of the internal market in terms of economies of scale and risk-benefit sharing” and minimize risks. Cross-border centralization collaboration opens the door to a novel and innovative way of carrying out public procurement that steers away from a purely public and national procurement purchasing option regarding which entity ‘buys for you’ to a ‘buy-through Europe’ model, towards the maximum optimization or public resources. Based on this, contracting authorities can enter into public contracts for the purchasing of works, goods or services through a CPB located in a different MS and under the scope of two or more legal regimes. While a well-intended idea, it is not clear, however, whether these cross-border CPB provisions will be workable in practice due to the complexity of its implementation and the legal and economic obstacles they will face