White Paper January 25th, 2024
eForms – Kickstarting the public procurement reform
For decades, the German government and the governments of many other European countries have lacked a proper overview of how their civil services spend tax money in the course of public procurement. This is set to change with the introduction of eForms from October 2023. The introduction of eForms offers the opportunity not only to increase data quality and data transparency, but to reform public procurement in Germany.
By means of Implementing Regulations (EU) 2019/1780 and 2022/2303, the European Commission has paved the way for the digitalisation of notice documents in public procurement.
In this White Paper, we explain the background to the introduction of eForms and shed light on the potential they offer for the civil service and tenderers. In addition, we provide recommendations for action regarding the further digitalization of public procurement.
Viewed from outside, public procurement in Germany and in many EU member states can seem like a ‘black box.’ There is a lack of complete and reliable information about what is being publicly procured and how. This is partly due to the absence, before now, of an agreed framework of rules for collecting such data (i.e. data standardisation). Another reason is the uniform landscape of different tendering platforms that has emerged in Germany, reinforced by the dynamics of federalism, which renders it impossible to obtain a general overview of the available data.
Although public procurement data had previously been recorded, Germany has performed rather poorly in terms of the quality and comparability of data when compared to other EU countries.
Particularly in times of crisis (COVID-19 pandemic, Ukraine conflict), higher data quality offers the opportunity for strategically better procurement. Contracting and procuring authorities should not therefore view public procurement as a necessary chore, but as a strategic tool – and one that supports political decision-making in times of crisis.
To leverage the potential of public procurement data, the European Commission enacted an implementing regulation on digital notice forms (eForms) in the field of public procurement in 2019 (EU Implementing Regulation 2019/1780 and EU Implementing Regulation 2022/2303). Its goal is for all notice forms in procurement processes above the EU thresholds (henceforth referred to as “above-threshold forms”) to be conveyed in standardised digital form to the European tendering platform Tenders Electronic Daily (TED) as of 25 October 2023. This excludes notice forms in procurement processes below the EU thresholds (henceforth referred to as “sub-threshold forms”).
The technical preparation and the organisational and legal introduction of eForms in Germany is jointly managed by the Federal Ministry of the Interior and Community (BMI), the Federal Ministry for Economic Affairs and Climate Action (BMWK), the BMI Procurement Office (BeschA) and the Coordination Office for IT Standards (KoSIT).
Different aspects of the introduction of eForms
Legal implementation of eForms
Making eForms mandatory for procurement processes in Germany required the amendment of existing procurement law (including the Procurement Ordinance (VgV)). The Federal Ministry for Economic Affairs and Climate Action (BMWK) played the leading role here. An amended VgV, duly passed by both houses of the German parliament, was published on 23 August 2023 and forms the legal basis for the introduction of eForms.
Specialist/technical implementation of eForms
Along with Implementing Regulations 2019/1780 and 2022/2303, the Publications Office of the European Union issued a Software Development Kit (SDK). This SDK contains technical building blocks to support the introduction of eForms. It should be noted here that the Publications Office explicitly enjoined EU member states to review the requirements set out in the Implementing Regulation and adapt them to national imperatives as necessary. This entailed answering the following questions:
Which data fields of notice documents should be optional, mandatory or absent in Germany, and to what extent?
Which of the EU’s optional code lists should be used? Do contents of code lists have to be adapted to comply with German law?
What rules are needed to ensure that notice documents are correctly and efficiently populated and accepted by TED?
Organisational introduction of eForms
The groups most strongly affected by the changes involved in the introduction of eForms are public procurement and contracting authorities and their users as well as the makers of specialised IT procedures, which are faced with the task of technically implementing the eForms-DE standard in their procurement systems.
The makers of specialised IT procedures have to program the changes associated with eForms-DE in their procurement systems. For users, this results in mandatory changes to the population of notice documents and to the user interfaces of these procurement systems. It thus makes good sense for the makers of specialised IT procedures to conduct training for users of procuring and contracting authority services in the respective procurement system themselves.
The introduction of eForms not only increases the quality of the data available for public procurement. Rather, the standardization of the data model increases the quantity of data and therefore enables the analysis of a much larger amount of information.
The OZG project aims to greatly simplifying the uniform tendering platform landscape for tenderers. Inspired by the implementation in other EU member states, the idea emerged to introduce a central service, which would function as a hub for procuring/contracting authorities and tenderers while also assuming the role of a national TED eSender*: the Data Service for Public Procurement (DÖE).
The DÖE thus combines the goal of the standards-based introduction of eForms in Germany with the creation of simplified access for tenderers to public procurement processes. In future, therefore, companies will no longer have to search a variety of procurement platforms to find and participate in relevant tenders.
The how: XSE and the eForms-DE standard
The eForms-DE standard consists of several components that contain the professional, legal and technical decisions for the introduction of eForms in Germany:
Specifications for eForms-DE
Essentially, the specifications contain all the technical information needed to implement eForms-DE in software or specialist IT procedures. The decisions of the Pre-Award expert council as to which data fields should be used, and how and in what number they are to be used, are set out in the specifications. In addition, the code lists and the Schematron rules (business rules) are described there in technical detail.
Schematron rules for eForms-DE
To provide the organisations, bodies and individuals charged with the implementation of eForms-DE with rules on how the data fields of eForms-DE are related and what interdependencies exist between them, and how these are validated and populated, KoSIT has issued Schematron rules. A typical example of business rules are if-then rules: “If data field A is populated, then data field B must also be populated.”
During data transmission, code lists are used to uniquely identify and describe relevant states of affairs in a specific data transfer context. For example, the Pre-Award expert council approved the use of a code list (“suitable business types”) which defines what type of SME a notice is particularly suitable for.
The potential of eForms for Germany
Public agencies are required to publish for public tender the procurement of goods, delivery, service and construction jobs that exceed defined thresholds. The data generated during the procurement process affords extensive insights into how public agencies procure goods and services. The reliable evaluation and use of these datasets make it possible to determine aspect such as how high national demand is for services, deliveries and construction work, how many companies are reached by invitations to tender, and whether legal requirements have been fulfilled. A wide variety of valuable information can be derived from the innovative and responsible use of data, enabling future decisions to be made on the basis of solid information.
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Nortal AG has been closely following the introduction of eForms in Germany from the beginning. Thanks to our broad experience in public procurement digitalis+ation projects, our team was able to promptly create a concept for implementing the EU Implementation Regulation.