2.2 How has EU regulation impacted local procurement in long-term care? Member States had to adopt this Directive by April 2016 but were given leeway to regulate practical matters in their national law (OECD/ EU, 2016) or, according to national constitutions, at regional level. In some countries, e.g. Spain, regional legislation has not yet been fully adapted to the European directive and regions are still in the process of passing legislation to provide a legal framework for contracting personal social services. The European Commission has considered the transposition of the Directive as overall satisfactory but “will continue to closely monitor the implementation of the directives and evaluate the concrete experiences of national authorities and business with the current regime” (Breton, 2020).
Since a fundamental aim of the EU is to create a common market based on competition, equal treatment and transparency, it is desirable to know about contracts with sufficiently high value across Europe, in particular if this involves crossborder trade or service delivery. To take account of the specific characteristics of social, health and education services, the 2014 EU public procurement directive provided a list of ‘social and other specific services’ where a ‘light touch regime’ applies to such services (e.g. home help services, training and social security services). Public tenders of a lower value than €750,000 are not considered attractive in principle to enterprises from other Member States and therefore public buyers can conduct tendering under this threshold as they wish, according to national procurement regulations. For contracts over €750.000, national authorities must implement national legislation to regulate these procurement processes.
Legislation and distribution of responsibilities Long-term care and related legislation on procurement together with reforms in social services have been introduced in most countries over the past 15 years. These include, among others:
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These national regulations can stipulate that quality of services provision is taken into account in the tendering process. This means that, based on previously defined quality criteria, public authority buyers can choose the provider that best meets qualitative criteria set out in the tender for the service in question (e.g. accessibility, continuity, or needs of the various categories of service users). States also have the possibility of banning the cost-only criteria in their national legislation on social service procurement (European Commission 2016).
006 Spanish Law to Promote Personal 2 Autonomy and Care for Dependent People, Act on the System of Choice in the Public Sector in Sweden, 2014 Procurement Reform Act in Scotland (UK), 2016 Procurement Code in Italy.
The various pieces of legislation set out the responsibilities for procurement, planning, regulation, funding and quality assurance in long-term care, which are distributed across national, regional and local government levels. Not surprisingly, there is a tendency towards regulation, planning and funding at national level, but most administrative duties are actually shared within a system of multi-level governance. Procurement and contracting are mostly carried out at local level, together with funding and quality assurance. An exception happens in small countries, where all tasks from planning to quality assurance are carried out at national level.
Therefore, though the Directive is built on the principle of ‘value for money’, it focuses significantly on contracts being awarded on the basis of a combination of cost-related and noncost-related factors. In our questionnaire, we asked respondents how the EU public procurement Directive 2014/24/EU of 26 February 2014 affected contracting practices in their country in the area of LTC (Figure 5).
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