Sustainable Public Procurement

The Office of Government Procurement published Opportunities and approaches for Sustainable Public Procurement: A reference for public procurement practitioners and policy makers. Further information is available here.


The Office of Government Procurement published the new contract thresholds applicable from 1 January 2024 here, (as published by the EU here).


Changes to Standard Forms (eForms)

Commission Implementing Regulation (EU) 2019/1780 establishes standard forms (eForms) for the publication of procurement notices. Fields relating to requirement that arise from other instruments are being added (the International Procurement Regulation, the Foreign Subsidies Regulation, and the Energy Efficiency Directive).

Amendments will also provide for new standardised forms for notices that are not subject to the publication requirements laid down in the Public Contracts, Utilities and Concessions Directives. Clarifications will be made to whether fields in standard forms in notices are mandatory, conditional mandatory, or existing mandatory.

Commission Implementing Regulation (EU) 2023/2884 (provisions of which apply from 1 June 2024 and 1 November 2024) will amend Regulation (EU) 2019/1780 to provide for a transitional period to allow early use of the new fields, once the Commission has published a notice announcing that the relevant formats and procedures have been adapted.

Contract Modification

In Bulgarian Cases C-441/22 and 443/22, contractors under two separate contracts had required more time to complete works than provided in the contract. The Head of the Managing Authority applied a financial correction of 25% to the funding to be provided from European Structural and Investment Funds to the two awarding authorities, to be used to pay the contractors. Broadly, the Head of the Managing Authority claimed that allowing extra time was inconsistent with certain terms of the contract and award criteria.

The awarding authorities challenged the decision and several preliminary questions were referred to the CJEU concerning Article 72 of Directive 2014/24, which provides for the circumstances in which a contract may be modified without a new procurement procedure. The CJEU stated:

  • under Article 72(1)(e) and (4), for the purposes of classifying an amendment to a public procurement contract as 'substantial', the parties do not have to have signed a written agreement to amend the main contract, since a common intention to make the amendment may be inferred from other written evidence from those parties, and
  • the diligence the contracting authority must have shown in order to be able to rely on Article 72(1)(c)(i) requires it to have taken into consideration when preparing the contract the risks of exceeding the time limit for the performance of that contract caused by foreseeable events (such as normal weather conditions and regulatory prohibitions on carrying out works published in advance and applicable during the contract), since such events cannot justify (where they have not been provided for in the documents governing the procedure for the award of the contract) the execution of the works beyond the period laid down in those documents and the contract.

Tenderer Exclusion

In Portuguese Case C-66/22, T challenged the award of a contract to F. The case proceeded to the Supreme Court which noted that F was previously fined by the Portuguese Competition Authority for breach of competition rules in the context of an earlier procurement run by an entity that had merged with the awarding authority in this case.

Under Portuguese law, an express decision delivered by the Competition Authority imposing on a tenderer the ancillary penalty of prohibition from participating in procurement procedures for a certain period of time, is needed if an awarding authority is to exclude a tenderer on grounds of lack of reliability on account of a breach of competition rules unrelated to the public procurement being conducted.

Issues that arose were whether this was contrary to Article 57(4)(d) of Directive 2014/24 (which permits contracting authorities to exclude an economic operator where the authority has sufficiently plausible indications to conclude that the operator has entered into agreements with other operators aimed at distorting competition) because it did not give this decision-making discretion to the awarding authority.

The Portuguese court also queries whether, in the context of a decision to award a contract, reliance on a decision of the Competition Authority could constitute a sufficiently reasoned, particularly in the light of the right to sound administration under Article 41(2)(c) of the Charter of Fundamental Rights of the EU.

In its reasoning, the CJEU noted that application of the Article 57(4)(d) exclusion is not limited to the public procurement procedure in which the anti-competitive behaviour has arisen. The CJEU (Grand Chamber) ruled that:

  • Article 57(4)(d) of Directive 2014/24 precludes national legislation that limits the ability to exclude a tenderer on account of significant evidence of conduct liable to distort competition rules in the public procurement procedure in the context of which that conduct has arisen,
  • Article 57(4)(d) precludes national legislation that confers the power to decide to exclude economic operators from public procurement procedures on grounds of a breach of competition rules solely on the national competition authority, and
  • Article 57(4)(d), read in the light of the principle of sound administration, means that a decision by a contracting authority on the reliability of an economic operator must be reasoned.


A preliminary question referred from the Slovakian Court in Case C-547/22 concerns a case in which the CJEU previously found the exclusion of a tenderer to have been unlawful. That tenderer now seeks damages in the national court, where the standard of proof to show that damage is sufficiently foreseeable is lower for loss of opportunity than for loss of profit.

Advocate General Collins considers that the key question is whether EU law requires Member States to admit a claim in damages for loss, where the procurement procedure has concluded and a contract has been entered into with the successful tenderer.

Article 2(1)(c) of the Remedies Directive 89/665/EEC requires Member States to ensure that the measures taken concerning the review procedures include powers to award damages to persons harmed by an infringement.

Advocate General Collins' Opinion suggests that Article 2(1)(c) must be interpreted as meaning that it is for domestic laws to determine the conditions under which a national court may adjudicate upon a claim for the award of damages by a tenderer unlawfully excluded from a procurement procedure. Those conditions include the burden and standard of proof, causation and the quantum of any award. Member State laws must comply with the principles of equivalence and effectiveness. The principle of effectiveness requires that a national court cannot rely on a practice whereby a tenderer unlawfully excluded from a procedure is precluded from claiming damages for loss of an opportunity to obtain that contract.


Procurement Act 2023

The UK Government published Transforming Public Procurement Knowledge Drops to provide a series of overviews of changes to public procurement regulation in the UK.

In its report, Competition in public procurement, the House of Common Public Accounts Committee identified some concerns around implementation of the Procurement Act 2023. It recommends requiring Contracts Finder and Find a Tender to capture more data to allow competition trends to be tracked; providing further details around transition to the new regime (timing, cost, learning and development); and providing guidance on the risks posed by framework agreements to competition.

UK Procurement Policy Notes

PPN 11/23 summarises new thresholds for UK procurements.

PPN 12/23 sets out new requirements for UK authorities following North Macedonia's accession to the WTO Agreement on Government Procurement.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.