Sub-threshold Procurement: Legal Considerations and Procedure

Sub-threshold procurement refers to public contracts whose estimated value falls below the EU thresholds for mandatory EU-wide tendering. Even though these contracts do not require adherence to EU procurement directives, they are still subject to principles of transparency, competition, and non-discrimination. The specific procedures and regulations are governed by national laws of the respective member state, often influenced by EU principles.

Legal Considerations:

1. Transparency:
   • Even sub-threshold contracts must be conducted in a transparent manner, ensuring clear and accessible information about the procurement process.
2. Competition:
   • Opportunities must be open to as many suppliers as possible to avoid favoritism and ensure value for money.
3. Non-Discrimination:
   • Equal treatment of bidders is required, regardless of their nationality or location, provided they meet the criteria.
4. Proportionality:
   • Requirements and criteria set by the contracting authority must align with the size and scope of the contract.
5. Documenting Decisions:
   • Authorities must maintain proper records of decisions, evaluations, and the selection process for accountability and potential audits.

Sub-threshold Procurement Procedure (General Outline):

1. Market Research:
   • Conduct market analysis to identify suitable suppliers and ensure adequate competition.
2. Preparation of Tender Documents:
   • Draft concise and clear documents, including:
     • Description of the goods, services, or works.
     • Technical specifications.
     • Selection and award criteria.
     • Submission deadlines.
3. Advertising the Contract:
   • Publicize the opportunity on national or local platforms, depending on the contract’s value. In some cases, direct invitations to known suppliers are permitted.
4. Submission of Bids:
   • Allow suppliers to submit bids within the specified deadline.
5. Evaluation of Bids:
   • Assess bids against pre-defined criteria such as price, quality, or sustainability.
6. Award Decision:
   • Notify all bidders of the decision and provide reasons for the selection or rejection.
7. Contract Award and Signing:
   • Formalize the agreement, ensuring it aligns with the procurement’s terms.
8. Post-award Transparency:
   • Publish information about the awarded contract, if required by national law.

Key Differences from Above-threshold Procurement:

• Flexibility: Sub-threshold procurements are less formalized, allowing authorities to adapt procedures to the contract’s scope and value.
• Advertising Requirements: No mandatory EU-wide advertising; focus is on local or national platforms.
• Simplified Processes: Procedures are typically faster and less complex to reduce administrative burdens.

Example of Sub-threshold Procurement:

A municipality seeks to procure IT equipment valued at €50,000. As this is below the €143,000 threshold for central authorities, the municipality may:

• Request quotes directly from known suppliers.
• Advertise the opportunity on a national platform.
• Evaluate based on the most economically advantageous offer.

Even at this level, fairness and competition principles apply, ensuring transparency and equal opportunities for suppliers.