The European Single Procurement Document

This paper will show that the European Single Procurement Document (ESPD) introduced by Directive 2014/24/EU and Commission Implementing Regulation 2016/07 constitutes a paradigm shift on how public procurement procedures are run in the EU and one with unintended consequences. Before its introduction, each economic operator wishing to take part in a public procurement procedure had to submit all qualifying information at the start of the procedure. This mean incurring in transaction costs that are certain to have the opportunity of an uncertain benefit: winning the contract. The ESPD alters the balance of power (and costs) by replacing the full documentation requirement with a simple self-declaration form, aiming for a reduction in transaction costs and the removal of a barrier to the participation of economic operators in public procurement procedures. It is unclear if in reality its use will amount to savings in transaction costs or if those will actually increase and if the change in incentives may lead to more strategic non-compliance by economic operators and reduced legal compliance by contracting authorities, which may be tempted to overlook at least minor shortcomings by winning bidders. The ESPD is composed by the aforementioned self-declaration form, a free service provided by the European Commission, the underlying exchange data model and the open source code for the Commission’s service. Together they make up what can be defined as the ESPD system. The changes introduced by the ESPD system are significant and some of the implications do not appear to have been fully taken into account in the legislative process. In this paper the it will be argued these issues are of a framework, practical and legal uncertainty nature. In addition to these issues it is possible to identify areas for legislative improvement such as restricting the possibility of the contracting authority asking for the documentation of all bidders instead of simply the winner and making the exclusion of Article 57(4)(h) of Directive 2014/24/EU a mandatory ground for exclusion instead of a discretionary one.