Article 70 - Covered economic operators, goods, services or works
Article 70 is the first article of Chapter 5, that is the chapter on European preference. This first article establishes which economic operators, goods, services or works are considered to be within from the Union (broadly considered) to warrant non-discrimination and equal treatment. In the absence of 'covered' in the definitions of Article 6, this is where we will find the closest to a definition for the covered to be offered within the Public Procurement Act. This article should be read in conjunction with Recitals (32) and (33) which provide some context to its ambition. Marko goes into a bit more detail on his commentary about Recital 32.
This article combines both the identity of economic operators (who to buy from) as well as the goods, services or works that are being bought (what to buy). By doing so, Article 70 provides a clear signal of departure vis-a-vis the Directives from 2014. Overall, this article looks and feels like an evolution of the convoluted approach to tackling this subject from the Industrial Accelerator Act proposal from earlier in the year.
Economic operators
Article 70(1) deals with economic operators and which are to be considered covered for the purposes of the Public Procurement Act. The participation of economic operators from beyond the EU and EEA is guaranteed to those coming from a third country that is either a party to the GPA, bilateral/multilateral agreement or a customs Union. The 'covered' status, however, is not fully automatic since it only applies to procurement that fall within the scope of the commitments of the Union in the respective agreement. This implies that the economic operator being country party to any such agreement as defined by Article 74(1) is not the only requirement to be met. Ultimately, the contract object will determine if the economic operator is within coverage for a given procurement.
For example, if one looks to the EU's GPA commitment for services on its Annex 5, the list of included services is not extensive. Legal services are not included in the list even though the exclusion of the Public Procurement Act Article 85 only applies to some legal services (ie, those requiring authority to practice law such as litigation or representation in court). This means a law firm established in Australia could not take part on a tender to provide legal services in Ireland even if said legal services did not include litigation or representation in court.
It is worth noting the choice of words on Article 70(1)(b). In it, the right to participation is warranted to economic operators arising from countries with which the EU 'has concluded a bilateral or multilateral trade agreement.' This provision should not be read as meaning only a traditional trade agreement, but also those encompassing a deeper relationship that covers procurement as well. For example, the EU-UK Trade and Cooperation Agreement, the EU-Ukraine Deep and Comprehensive Free Trade Area, or the countries in the accession path to the EU that have entered Stabilisation and Association Agreements such as Albania, Bosnia and Herzegovina, North Macedonia, Montenegro and Serbia.
As for the customs union provision of paragraph (c), the only union of this type the EU is party of is that of Turkiye.* Its Article 48 establishes what seems to be a framework for a future agremeent opening both procurement markets...that is yet to be achieved 30 years later. Therefore, it seems this paragraph (c) has been clearly designed with the intention in mind of either accomodating Turkiye in the future without the need of revising the text of the Public Procurement Act or as a fairly obvious carrot to convince it to open up its public procurement market. Nonetheless, this also provides a degree of future proofing in case the Union were to enter into additional customs unions in the future. This is also a step up from the original Industrial Accelerator Act proposal which did not mention customs unions.
Goods, services and works
For the goods, services and works to be provided in the contract, Article 70(2) establishes an identical set of requirements to that of economic operators from Article 70(1), linked to the rules of origin established in Article 74(2)(3) and (4).
*technically the EU is also on customs unions with Andorra, Gibraltar and San Marino. There is also the European Union Customs Union with Monaco and Akrotiri and Dhekelia.