The draft of the new Public Procurement Directive was approved in January. It pushes for electronic procurement as a way of opening up competition but, in approving the Directive, the European Parliament has spoken about the care that must be taken to ensure that the tender process is fair. There are clear warnings for anyone tendering a project using BIM.
It is a general rule that the award of public contracts must comply with the principles of the Treaty on the Functioning of the European Union: in particular, the free movement of goods, freedom of establishment and the freedom to provide services. The principles that derive from that are equal treatment, non-discrimination, proportionality, and transparency.
The European Parliament believes that electronic means of information and communication “can greatly simplify the publication of contracts and increase the efficiency and transparency of procurement processes”. Standardisation of the electronic means of communicating tender requirements should enhance the possibilities of companies to participate in procurement procedures across the European market.
The key is that such communication of requirements must be non-discriminatory. There is a question as to whether differing technical formats or processes and standards could potentially create obstacles to interoperability and therefore restrict competition. For example, to participate in a procurement procedure in the absence of open formatting of a BIM model, accessible to all, would competition be unnecessarily restricted?
The UK government’s push for BIM may well be an advantage in this respect because the industry has an opportunity to influence the standardisation of technical formats that will be accepted as open and competitive.
The European Parliament has specifically directed the European Commission that when it is considering whether there is a need to enhance interoperability between differing technical formats or impose specific standards (if necessary), it must “take the utmost account of the opinions of the stakeholders concerned… [and] consider the extent to which a given standard has already been used in practice by economic operators and contracting authorities and how well it has worked”.
The government has up to two years to implement the Directive in the UK and this fits with the timelines for implementation of BIM. The industry has a real opportunity to embed tender practices for BIM projects that comply with the principles of the Directive and become EU standards.
By Assad Maqbool, a partner at Trowers & Hamlins specialising in projects and construction
