The implementation of public procurement directives in Finland is delayed beyond 18.4.2016 – how to handle procurement procedures before the national legislation is in force

The national renewed acts on public procurement will enter into force in the latter half of 2016, but the direct effect of the public procurement directives will start on the 18th of April 2016 when the national transposition period set out in the directives comes to an end. The principle of direct effect concerns all of the procurement directives: directive 2014/24/EU on public procurement, directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors and directive 2014/23/EU on the award of concession contracts.

The principle of direct effect means that private entities, for example companies that submit tenders in procurement procedures, have the right to directly appeal to the provisions of the procurement directives in national authorities and courts, whereas the contracting authorities have the obligation to apply the directives when executing tendering procedures after the 18th of April.

However, the principle of direct effect only covers the provisions that place a clear and unconditional obligation to the contracting authority or other procurement related authorities or corresponding rights to tenderers of candidates. Examples of these kinds of provisions are the provisions that concern the division of contracts into lots, electronic availability of procurement documents, European Single Procurement Document and the modification of contracts during their term. The direct effect of clear and unconditional provisions shall be applicable to procurement procedures that start on the 18th of April 2016 or after.

Typically, the procurement procedure starts with the publishing of a contract notice, and related to this, HILMA, the Finnish contract notice online portal, has published a bulletin about the end of the national transposition period and the publishing schedule of contract notices on their website.

”The upcoming changes will cause a disruption in usage, and because of this, HILMA users that want their contract notices published before the 16th of April are asked to submit their filled contract notices to the online system latest on the Friday 15th of April by 12:00. The contract notices filled out and submitted after this deadline will be published on the 18th of April.”

So, if you want your procurement procedure to start before the direct effect of the procurement directives, you must leave your contract notice in the HILMA-portal at the very latest on this Friday before noon. The provisions about the modification of contracts during their term shall be applicable to any contract modifications that are done after the 18th of April, even though the procurement procedure that led to the contract started before the end of the transposition period 18.4.2016.

Exactly what provisions of the directives must be applied? How to apply them to tendering procedures in practice? Finnish Procurement Lawyers Attorneys organizes training sessions about the direct effect of the directives that must be taken into consideration before we have the new national procurement legislation in force. If you are interested in a training session tailored to your specific needs, do not hesitate to contact us: head of training services Katri Nousiainen, katri.nousiainen@hankintajuristit.fi or +358 40 7711 098 from whom you can get more detailed information about the training and its contents