Algorithms, green tenders and a ban on third countries: the EU rules on public procurement

For the first time, it will be a regulation rather than a directive. It will be directly applicable in all Member States for tenders above the EU threshold. It will be formally presented by the European Commission in early September. Brussels is preparing to radically overhaul the public procurement system, introducing a number of new features this time round compared with the approach taken on previous occasions: there will be a greater digital focus, with an explicit role for algorithms in tenders, greater emphasis on energy efficiency criteria and the aim of increasing transparency. At the same time, the role of third countries that do not guarantee reciprocity will be restricted.

The main new features

The first change, as mentioned, lies in the legal instrument, which will be a regulation and which will consolidate the directives in place to date: concessions, ordinary sectors and special sectors. The system will become a single one, with a significant simplification. In theory (though it remains to be seen how the various countries will interpret it), the Italian Public Procurement Code, introduced in 2023 by Legislative Decree 36, should remain in force, as it will apply to all contracts below the EU threshold: €5.4 million for works and €140,000 for services and supplies.

In short, within this framework, the trend towards more frequent use of non-competitive procedures is expected to continue. Above the threshold, however, the system will be simplified and the standard procedure will be an open procedure with negotiation: in other words, all operators will be able to submit tenders, but the public authority may ask some of them to negotiate certain terms. There remain, however, some points to be clarified in this regard: for example, as already highlighted by the trade unions, protections such as those enshrined in our Labour Code – which currently require the application of the collective agreements of the comparatively most representative organisations – could be bypassed.

With regard to tenders, a simplified dynamic procedure is being introduced, designed for the recurrent procurement of products where there is a very large pool of potential participants. To ensure administrative efficiency whilst also guaranteeing the fairness of procedures, public authorities will be able to invite only those entities selected via an algorithm to the final stage of the tender. The rules governing the definition of the algorithm will be set out in an implementing act by the European Commission. As regards green procurement, a clause is being introduced that strongly promotes the uptake of energy efficiency: when public authorities purchase goods, services or works, ‘they must, where possible, procure only those products, services and works with superior energy efficiency performance’.