Article by Stergios Konstantinou, published (in Greek) on Lawspot.gr
On 9 September 2026, the European Commission published a proposal for a Regulation heralding a far-reaching reform of the EU public procurement framework: the proposed Regulation on public contracts and concessions, officially referred to as the **Public Procurement Act** (the “PPA”).¹
If adopted, the PPA is intended to replace Directives 2014/23/EU, 2014/24/EU and 2014/25/EU and Directive 2014/23/EU having been transposed into Hellenic law by Law 4413/2016, and Directives 2014/24/EU and 2014/25/EU by Law 4412/2016, with a single, directly applicable Regulation covering public contracts, utilities contracts and concessions.
The change is not merely formal. The PPA seeks to turn public procurement into a powerful instrument of European industrial policy, geopolitical resilience and digital governance. At the same time, the choice of a Regulation rather than Directives will, in principle, reduce the scope for divergent national transposition and signals a significantly greater degree of harmonisation of public procurement law across the Union.
For lawyers advising public buyers and contractors, the PPA raises questions of immediate practical importance:
- How will the new procedural architecture operate?
- What does the establishment of the Best Price-Quality Ratio (BPQR) as the general rule for contract award mean in practice?
- – How far does the new European preference framework extend, and where does international law impose limits?
This article examines the most significant innovations introduced by the proposal as submitted by the European Commission. Since the PPA remains a legislative proposal rather than applicable law, individual provisions may change substantially during the ordinary legislative procedure.
1. The Regulatory Framework: Why Radical Change, and Why Now?
1.1. The Shortcomings of the 2014 Framework
The European Commission’s in-depth evaluation of the 2014 Directives confirmed that the current public procurement rules suffer from significant shortcomings. Complexity and lack of flexibility create considerable legal uncertainty for both public buyers and economic operators. Awards based solely on price remain frequent, while the use of social, environmental and innovation-related requirements remains limited.
The rules governing access to the procurement market for non-European companies lack clarity and no longer respond effectively to today’s geopolitical realities. Fragmented e-procurement systems hinder adequate transparency and effective monitoring, while, despite improvements in transparency, data gaps and data-quality issues at both EU and national level hamper effective governance, strategic decision-making and the prevention of corruption.
The **European Court of Auditors (“ECA”)**, in its 2023 Special Report, reinforced these findings, noting that competition for public contracts had declined over the previous decade, that single-bid procedures had become increasingly common, and that cross-border participation by SMEs remained limited.
Beyond these technical shortcomings, the broader geopolitical context has proved equally decisive. Both the **Draghi** and **Letta** reports identify public procurement not merely as a mechanism for public spending, but as a strategic investment instrument capable of strengthening the Union’s clean industrial base, supporting innovation, advancing the green and digital transitions, and enhancing economic security and strategic autonomy.
2. The New Procedural Architecture
2.1. A Radical Simplification of the Procedural Architecture
The PPA substantially simplifies the range of procurement procedures. Unlike the current framework, which distinguishes between a greater number of separate competitive procedures, the proposal builds its core procedural architecture around two principal procedures: the **open procedure** and the **dynamic procedure**.
Both procedures may operate with or without selection criteria and with or without negotiations. A separate **innovation procedure** is also introduced, while a distinct regime is retained for exceptional circumstances in which a contract may be awarded without a prior competitive procedure, subject to the conditions laid down in Articles 46–48.
1. Open Procedure²
Under the open procedure, any interested economic operator may express its interest and submit a tender through the electronic eligibility service.
The deadline for the receipt of expressions of interest accompanied by tenders may not be less than 20 days from publication of the public summary of competition.
The application of selection criteria and the conduct of negotiations are choices available to the public buyer and must be disclosed in advance in the public summary of competition.
2. Dynamic Procedure³
The dynamic procedure replaces and expands upon the logic of the existing dynamic purchasing system. Economic operators may request to join the procedure at any point during its period of validity.
Where the dynamic procedure is conducted without selection criteria and more than five economic operators express an interest in a specific contract, the public buyer may, instead of inviting all interested operators, invite five or more economic operators selected through the electronic eligibility service by means of a random and non-discriminatory algorithmic selection.
By contrast, where a dynamic procedure is conducted with selection criteria, the possibility of inviting only a subset of economic operators is governed by objective and non-discriminatory criteria or rules disclosed in advance.
3. Innovation Procedure⁴
This entirely new procedure enables public buyers to address a “societal challenge” for which no appropriate solution has been identified.
The innovation procedure comprises the following stages: determination of the societal challenge and design of the value assessment framework; launch of the procedure; selection of innovative solution proposals; testing, validation and assessment of those proposals; and award of the public contract.
2.2. Negotiations: A Generalised Possibility Subject to Clear Limits
One of the most significant changes introduced by the proposal is the much broader integration of negotiations into the procedural architecture.
Under both the open and dynamic procedures, the public buyer may decide in advance to conduct negotiations. In the innovation procedure, a specific negotiation stage is envisaged for the commercial deployment of the innovative solution following its testing, validation and assessment.
Negotiations may enable public buyers to improve the quality, effectiveness and overall value of the solution being procured. At the same time, the conduct of negotiations must be subject to safeguards ensuring equal treatment, proportionality and the protection of commercially sensitive information.
Under Article 33, negotiations may concern only **non-essential characteristics** of the works, supplies or services to be procured. Exclusion grounds, selection criteria and award criteria may not be negotiated, while negotiations may not substantially alter the subject matter of the contract.
The terms that are not open to negotiation must be defined in advance with sufficient precision.
3. The Best Price-Quality Ratio (BPQR) as the General Rule for Award
3.1. BPQR as the Default Award Method
Perhaps no other provision is likely to reshape day-to-day procurement practice more significantly than the establishment of the **Best Price-Quality Ratio (“BPQR”)** as the default method for awarding contracts.
Public buyers are to award the contract to the economic operator offering the **best quality for money**. To that end, they are to evaluate tenders according to the BPQR method and apply award criteria subject to the prescribed minimum weighting for quality, without prejudice to the specific derogation available under Article 98(5).
The proposal therefore provides for a minimum weighting of **30% for quality criteria**, rising to **50% for contracts whose subject matter is labour-intensive**.
Recital 42 further states that, in the latter case, the quality weighting should include significant social considerations. Particular care is therefore required to distinguish between the binding text of Article 98 and the explanatory language contained in the recitals.
At the same time, public buyers may derogate from the minimum weighting rule where the quality of the works, supplies or services being procured can adequately be ensured through technical specifications, conditions for the performance of the contract, or a combination of those instruments with quality-based award criteria.
This derogation is not unconditional: the public buyer must indicate in the public summary of competition how the derogation is justified.
3.2. Quality Criteria: Scope and Safeguards
Quality criteria comprise any criteria used to assess the extent to which a tender proposes beneficial, efficient or sustainable outcomes in relation to the subject matter of the contract.
The quality of a tender may, for example, relate to technical merit, aesthetic and functional characteristics, accessibility, design for all users and production methods; environmental and climate-related considerations; social considerations; innovation objectives; security and public safety interests; resilience and security-of-supply requirements; or European preference requirements where these are applied in the form of award points.
4. The European Preference Framework: Geopolitics and Public Procurement Law
4.1. The CJEU’s Clarification of the Legal Landscape
The architecture of Chapter 5 of the PPA on European preference builds directly on two landmark judgments of the Court of Justice of the European Union (“CJEU”).
In **Kolin İnşaat**,⁵ the CJEU confirmed that the EU public procurement Directives do not confer rights or procedural protections on economic operators from third countries that have not concluded applicable international agreements with the Union.
Crucially, the Court held that regulation of access by third-country economic operators to the EU public procurement market falls within the **exclusive competence of the Union**, as part of the common commercial policy.
In **Qingdao**,⁶ the CJEU applied the same principle in the context of the participation of a Chinese company in a Romanian procurement procedure.
According to the Court’s case law, and in particular the Kolin and Qingdao judgments, the rights and principles deriving from EU public procurement law do not extend to economic operators, goods, services or works originating in third countries that are not covered by such international commitments.
4.2. The Concept of Coverage and the Access2Markets Tool
The PPA introduces a fundamental distinction between **“covered” economic operators** — namely operators originating in third countries that are parties to the WTO Agreement on Government Procurement (“GPA”), subject to the specific scope of the relevant coverage, or countries that have concluded bilateral trade agreements with the Union — and **“non-covered” economic operators**.
The European Commission is expected to make available, through **Access2Markets**, a publicly accessible online tool providing a comprehensive and up-to-date overview of the Union’s public procurement commitments under international agreements.
The concept of “coverage” is not determined solely by the economic operator’s country of origin. It depends on the specific international commitments applicable to the individual procurement procedure, including the category of public buyer, the subject matter of the contract, applicable thresholds and relevant exclusions.
For the purposes of each specific procurement procedure, public buyers are to determine which economic operators, goods, services and works are covered under the applicable international agreements, as reflected in the online tool.
4.3. The European Preference Toolbox
In respect of economic operators, goods, services or works that do not benefit from the relevant international coverage, public buyers may use a graduated toolbox of European preference measures.
Among other things, public buyers may restrict participation exclusively to economic operators and subcontractors originating in the Union or otherwise covered; require the goods, services or works offered to originate in the Union or otherwise qualify as covered; apply, solely for evaluation and ranking purposes, a percentage reduction to the price of a tender; or allocate additional award points.
Such a notional price reduction does not affect the contractual price ultimately payable to the contractor; it is used solely for the comparative evaluation of tenders.
Public buyers may also reject a tender where the value of Union or covered goods, services or works included in that tender is less than 50% of the total estimated value of the tender.
Under Article 75, the European Commission is also empowered, by means of delegated acts, to amend Article 73 so as to require public buyers to apply one or more of the European preference requirements laid down therein to non-covered economic operators, subcontractors, goods, services or works where this is in the interest of the Union.
This provision significantly strengthens the possibility of pursuing a coherent public procurement policy at Union level.
The Commission’s power is not, however, unlimited. The proposal provides for specific exceptions to the application of European preference requirements, including where no reasonable alternative supply exists or where application of the requirements would result in disproportionate costs.
It should also be noted that the European preference framework operates alongside, rather than in place of, existing instruments such as Regulation (EU) 2022/1031 on the International Procurement Instrument (“IPI”), Regulation (EU) 2022/2560 on Foreign Subsidies, and applicable trade-defence measures.
The proposal applies without prejudice to Union trade-policy instruments containing public procurement provisions, in particular the Foreign Subsidies Regulation, as well as measures adopted under the Union’s trade-defence toolbox and EU restrictive measures.
5. Strategic Public Procurement: Green, Social and Innovation Objectives
5.1. Green Public Procurement
In the field of environmental procurement, the proposal provides clearer legal bases for the use of environmental requirements throughout the procurement cycle.
It strengthens the contribution of public procurement to circularity, recycled and refurbished content, waste recovery and energy efficiency, and establishes a framework for mandatory green public procurement requirements for certain product categories where divergent requirements risk fragmenting the internal market.
5.2. Socially Responsible Public Procurement
In the field of socially responsible public procurement, the proposal highlights a range of important social objectives, including social inclusion, labour-market integration, accessibility for persons with disabilities, improved working conditions, upskilling and reskilling of the workforce, gender equality, and the protection of human rights throughout supply chains.
5.3. Innovation and Intellectual Property
The rules governing the allocation of intellectual property rights under the new innovation procedure deserve particular attention.
For public contracts subject to the innovation procedure, economic operators retain ownership of intellectual property rights arising during the innovation procedure or during performance of the corresponding public contract, unless a different allocation is justified by **overriding reasons of public interest** clearly stated in the procurement documents.
Such overriding public-interest reasons may include, among other matters, the need to prevent technological lock-in or to safeguard security or critical public services.
6. Security, Resilience and Critical Infrastructure
Chapter 4 of Part III introduces a horizontal framework for integrating security, public-safety, resilience and security-of-supply considerations into public procurement.
Where a particular procurement procedure has been identified as presenting or including a risk to security or public safety, public buyers are to take appropriate measures at any stage of the procedure, from procurement planning and market consultation through to contract award and performance, in order to protect the relevant interests of the Union or one or more Member States.
Where a contract is to be performed by a **critical entity**, the public buyer is to include, where relevant, security-of-supply and resilience requirements in the procurement documents.
The digital infrastructure supporting e-procurement is itself brought within the scope of the new requirements.
Providers of e-procurement services must be established in the **European Economic Area (“EEA”)**, be owned and controlled by natural or legal persons established in the EEA, and must not be subject, directly or indirectly, to decisive influence by a natural or legal person established in a third country.
E-procurement service providers must also store all data relating to public procurement procedures within the EEA.
These provisions demonstrate that supply-chain security and data sovereignty are becoming autonomous parameters in the design of public procurement procedures, although not every specific obligation will apply indiscriminately to every procurement procedure.
7. Digital Infrastructure: The European Public Procurement Marketplace
The PPA provides for a comprehensive digital transformation of public procurement management. Three interconnected systems are of central importance:
Interoperability Network⁷: a secure data-exchange network established or designated by the European Commission and based on harmonised semantic standards.
Electronic Eligibility Service⁸: a digital verification service covering exclusion grounds, selection criteria and origin requirements and implementing the **once-only principle**. In other words, economic operators provide supporting evidence once rather than repeatedly.
National Public Procurement Data Spaces and the Union Public Procurement Data Space⁹: each Member State is to establish or designate a National Public Procurement Data Space serving as the central national access point for information relating to public procurement and the contract lifecycle.
The European Commission estimates that, for economic operators, the new requirements will entail recurring costs of approximately EUR 477 million, fully offset by recurring savings of approximately EUR 1 billion resulting from the digital ecosystem and other simplification measures.
For public buyers, the estimated new recurring cost amounts to EUR 141 million, while the digital ecosystem is expected to generate annual savings of approximately EUR 220 million.
8. Governance, Integrity and Professionalisation
The PPA strengthens monitoring and integrity obligations at both national and Union level.
Public buyers are required to adopt appropriate, proportionate and effective measures to combat fraud, favouritism, collusion and corruption, and to effectively prevent, identify and remedy conflicts of interest arising both during procurement procedures and during the performance of public contracts.
To support these measures, public buyers are required, before award and, where relevant, during contract performance, to use appropriate **data-based risk-analysis tools**, such as **Arachne+** or an equivalent tool available at national level.
9. Concessions: Under One Roof
The integration of the rules governing concessions into the PPA removes the existing asymmetry between public contracts and concessions.
The definition of “operating risk” is clarified. Operating risk means the risk that, under normal operating conditions, the concessionaire will not recoup the investments made and the costs incurred in executing the works or providing and managing the services forming the subject matter of the concession, with the result that the concessionaire bears the risk of losses associated with performance of the concession.
Operating risk must involve genuine exposure to changing market conditions, and any potential estimated loss incurred by the concessionaire must not be economically insignificant.
10. Practical Takeaways for Legal Advisers
If adopted in a form that retains the proposal’s core elements, the proposed Public Procurement Act will significantly reshape the legal landscape for public procurement across all 27 Member States.
Legal advisers should prepare on several fronts:
1. Procedural strategy: The new open and dynamic procedures will require public buyers to make conscious and properly documented choices in advance regarding the use of selection criteria and negotiations.
2. Award documentation: The BPQR as the general rule, combined with minimum quality weightings, will require public buyers to develop robust and auditable evaluation methodologies. Any use of the derogation under Article 98(5) will require clear documentation of the public buyer’s reasoning.
3. Third-country participation: The European preference framework, built on the Kolin and Qingdao case law, creates a more differentiated system of market access. The Access2Markets tool is likely to become of significant practical importance, since international “coverage” will need to be assessed at the level of the individual procurement procedure rather than solely by reference to the tenderer’s country of origin.
4. Security and due diligence: Security of supply, cybersecurity, subcontracting chains and dependence on third countries acquire a clear regulatory dimension, particularly in contracts presenting security risks or relating to critical entities and infrastructure. The precise scope of each obligation will need to be assessed by reference to the nature and subject matter of the individual contract.
5. Digital readiness: The electronic eligibility service and the once-only principle will require investment in digital business credentials and interoperability capabilities. The proposal provides that the Regulation will apply two years after its entry into force, making that period critical for the technical and organisational preparation of all stakeholders.
6. Intellectual property strategy in innovation procedures: The default retention of intellectual property rights by economic operators under innovation procedures reshapes the commercial equation for public-private cooperation in innovation. At the same time, public buyers will need to carefully structure the scope of licences required for the operation, maintenance, adaptation and future use of deliverables, as well as the exceptional circumstances in which a different allocation of ownership may be justified.
The PPA has not yet been adopted. It is a Commission proposal that will be examined by the European Parliament and the Council of the European Union under the ordinary legislative procedure.
The final regulatory framework may therefore differ substantially from the text analysed in this article.
For that reason, monitoring the legislative progress of the PPA is already becoming an important part of the preparation required of public buyers, economic operators and their legal advisers.
1. European Commission, *Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on public contracts and concessions, repealing Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, and amending Regulations (EC) No 1370/2007, (EU) 2023/1542, (EU) 2024/1157, (EU) 2024/1252, (EU) 2024/1735, (EU) 2024/1781, (EU) 2024/2847, (EU) 2024/3110 and (EU) 2025/40, and Directives 2008/98/EC, (EU) 2019/882, (EU) 2022/2381, (EU) 2023/1791 and (EU) 2024/1760 (Public Procurement Act)*, COM(2026) 590 final, 9 September 2026.
2. PPA, Article 34.
3. PPA, Article 36.
4. PPA, Articles 41–45.
5. CJEU, Kolin İnşaat Turizm Sanayi ve Ticaret, C-652/22, EU:C:2024:910, judgment of 22 October 2024.
6. CJEU, *CRRC Qingdao Sifang and Others*, C-266/22, EU:C:2025:178, judgment of 13 March 2025.
7. PPA, Article 128.
8. PPA, Article 133.
9. PPA, Articles 134–135.