Amendments to the Public Procurement Act to the Finnish Parliament – HE 244/2020 vp

The Finnish Government has 10.12.2020 submitted a Government Bill concerning amendment of the Public Procurement Act and certain other pieces of legislation (HE 244/2020 vp). The Bill proposes certain technical amendments and clarifications to the Public Procurement Act as well as the Utilities Procurement Act which aim to delineate the wording of the Acts more precisely with the wording of the Procurement Directives.

Perhaps the most essential amendment concerns the notification of the maximum amount of the procurement contracts based on a framework agreement. A framework agreement is a contract between one or several procurement entities and one or several suppliers aiming at confirming the prices, amounts and other terms of procurement contracts during a certain period. Framework agreements are used, in particular, when the amount or quality of the procured goods or services or the time of the procurement are not exactly known beforehand. There has been challenges in case-law and procurement practice concerning the definition of the volume of the framework agreements in case of procurements by central purchasing bodies, in particular.

According to the proposal, procurement contracts based on the framework agreement shall be concluded between the suppliers selected for the framework agreement and the contracting entities who and whose combined maximum volume or value have been clearly specified in the procurement documents of the tender competition for the framework agreement. The amendment clarifies that the procurement documents must contain, in addition to the contracting entities participating in the framework agreement, also the combined maximum volume or value of their procurements. It is also noted in the Bill that there is a need to further follow the use of framework agreements and clarify the legislation further if the case-law based on the new Procurement Directives requires. There is at least one preliminary ruling pending at the moment at the Court of Justice regarding this question (C-23/20).

The Bill does not contain a proposal concerning electronic control of the criminal records of the tenderers that was expected by many economic operators and contracting entities. The electronic transfer of criminal records was deemed as a practical and useful way to minimize the administrative burden for both contracting entities and tenderers. However, it was discovered that the transfer of personal data in the electronic transfer of criminal records needed more detailed further preparation due to questions relating to basic rights. The required level of detailed preparation was not deemed possible without setting up a further working group including all relevant fields of the government.

According to the Government Bill, the amendments are aimed to enter into force in 1.3.2021.

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