Social Goals via Public Contracts in the EU: a New Deal?

The use of the public procurement market as a means for obtaining wider community benefits is quite common in the European and national frameworks. The European directives on public procurement not only confirm, but even strengthen, such a integrated approach. The main novelty introduced by the directives lies undoubtedly in the the key role assigned to so-called buying sustainable approaches (BSAs) and the reliance placed on public procurement procedures and contracts to achieve horizontal objectives. A broader Euro- pean public contracts market (that also embraces social services and PPPs); a wider range of horizontal objectives that can be incorporated into tender procedures (at any stage); the clear preference for BSAs linked to specific legal obligations and/or administrative provisions and the consequent key role assigned to Member States to regulate relevant goals, related obligations and BSAs; the provision of more flexible and adaptable procedures; a closer interconnection between the different stages of the tender procedure; the significant role of past nonperformance: all of these measures can be consi- dered as part of the «New Deal» that EU law aims to promote via public contracts. To the cost-effectiveness of the European integrated strategy and its contract-centred scenario, regulatory efforts aiming at both harmonizing the legislative framework governing BSAs (starting with the establishment of goals and connected obligations) and tender documentation and contract design are key to success. This brings into play a wide set of legal instruments (including soft regulation) and a broad list of actors (other than States and their legislative branches). Only upon such a synergic and multilevel horizon can the flexibility boosted by the 2014 directives on public procurement sail into calm waters and ensure that key high-impact social goals are achieved.