On 9 September 2026, the European Commission presented its proposal for a Regulation on public contracts and concessions, known as the ‘Public Procurement Act’ (COM(2026) 590, procedure 2026/0265(COD)). The proposal would repeal Directives 2014/23/EU, 2014/24/EU and 2014/25/EU and replace them with a single regulation, directly applicable in all Member States. A large part of the rules currently contained in Law no. 98/2016 on public procurement, Law no. 99/2016 on sectoral procurement and Law no. 100/2016 on works concessions and services concessions would be laid down directly by Union law.
The most debated element is the European preference: contracting authorities could limit participation to tenderers from the EU and from countries ‘covered’ by international agreements, could require products to be of a certain origin or could grant advantages at the evaluation stage. The proposal has not yet been adopted, but tenderers from states that have no procurement agreement with the EU, such as Türkiye or China, are already in a weaker position following recent case law of the Court of Justice of the European Union (CJEU).
1. Why a regulation instead of the 2014 directives
The proposal replaces the current framework, made up of Directive 2014/24/EU (classical public procurement), Directive 2014/25/EU (utilities) and Directive 2014/23/EU (concessions), with a single regulation. Defence and security procurement, governed by Directive 2009/81/EC, remains outside the scope of the proposal.
A regulation applies directly, without transposition, so economic operators would be subject to the same rules in all Member States. The proposed thresholds correspond to the current ones: €5,404,000 for works and concessions, €140,000 for supplies and services procured by central government authorities, €216,000 for other contracting authorities and €432,000 for supplies and services procured by contracting entities in the utilities sectors (Article 2 of the proposal).
2. How the European preference would work
2.1. Three categories of economic operators
The proposal distinguishes between Union operators and products, ‘covered’ operators and products, and those from non-covered third countries. An operator from a third country is ‘covered’ where its state is a party to the WTO Government Procurement Agreement (GPA) or has a trade agreement or a customs union agreement with the EU that contains public procurement commitments, and the specific procurement falls within the commitments undertaken by the EU under that agreement (Article 70). The EU–Türkiye customs union does not contain such commitments, so Turkish operators remain non-covered. According to recital 32, the status is determined separately for each procedure.
Recital 33 reflects the CJEU case law in Kolin and CRRC Qingdao Sifang, stating that the rights and principles deriving from Union public procurement law do not extend to economic operators, goods, services or works originating in third countries that are not covered under the Union’s international commitments.
2.2. The tools available to the contracting authority
According to Article 73 of the proposal, the contracting authority could, provided that it announces this in the procurement documents:
- limit participation to EU and covered operators, including as regards subcontractors;
- require products to be, wholly or in a certain proportion, of EU origin or from a covered country;
- reject tenders in which the value of EU or covered origin represents less than half of the estimated value of the tender;
- grant EU or covered tenders a price reduction or additional points at the evaluation stage, without that adjustment affecting the price actually paid under the contract.
The rules of origin would be laid down uniformly by the Regulation (recital 35), based on customs rules and the principles of Regulation (EU) 2022/1031 on the International Procurement Instrument. The Commission has also announced an online tool for checking this status.
2.3. Optional preference, which may be made mandatory
As a rule, applying the preference would remain at the discretion of the contracting authority. However, the Commission could make it mandatory by means of delegated acts, only in respect of non-covered operators and products and where this is in the Union interest (Article 75), and sectoral acts may impose their own preference rules (recital 35 gives the example of critical medicines). Recital 34 illustrates the Union interest through sectors such as rail transport and shipbuilding. The proposal does not contain a closed list of products or sectors, and the preference could be set aside, among other things, in emergencies or where there is no reasonable alternative. More precisely, Article 76 provides for four situations in which the contracting authority may decide not to apply these requirements, namely where the contract falls within the scope of Article 48 (emergency and crisis), where the products or services required cannot be supplied by an EU or covered operator and there is no reasonable alternative, where no suitable tenders have been submitted or where applying the preference would entail disproportionate costs.
3. Quality, simplification and digitalisation
Award on the basis of the best price-quality ratio would become the general rule. Under Article 98(4), quality criteria should account for at least 30% of the score and for at least 50% in labour-intensive contracts. Under Article 98(5), the authority could depart from these weightings only if it explains how quality is ensured through the technical specifications or the contract performance conditions.
The current procedures would be replaced by two main procedures, the open procedure and the dynamic procedure, both with or without negotiation, complemented by an innovation procedure. National e-procurement platforms would be interconnected through a Union-level interoperability network, which would allow information to be exchanged between contracting authorities and economic operators. The proposal also provides for the creation of an electronic service for verifying operators’ eligibility, based on digital tools for identifying and verifying company data, through which the documents and information required to take part in procurement procedures could be provided only once and reused.
4. Timeline: what happens between now and application
The text may be significantly amended in the European Parliament and the Council. The ‘One Europe, One Market’ roadmap of 24 April 2026 sets the target of concluding negotiations in the last quarter of 2027. The Regulation would enter into force 20 days after its publication in the Official Journal of the EU and would apply two years after that.
Are you preparing a procedure in which non-EU tenderers may take part, or do you intend to submit a tender in Romania? We review the procurement documents and the applicable regime.
5. Rules that already apply to non-EU tenderers
5.1. The Kolin and CRRC Qingdao Sifang judgments
In its judgment of 22 October 2024 in Case C-652/22 Kolin, concerning a rail tender in Croatia, the CJEU held that an economic operator from a country that has not concluded with the EU an agreement guaranteeing equal and reciprocal access to public procurement, in this case Türkiye, cannot rely on Directive 2014/25/EU to challenge the award of the contract. Access for such operators falls within the exclusive competence of the Union in the field of the common commercial policy. In the absence of an EU act, the contracting authority assesses on a case-by-case basis whether to admit them to the procedure, and their challenge is examined solely on the basis of national law.
The judgment of 13 March 2025 in Case C-266/22 CRRC Qingdao Sifang directly concerns Romania. The Romanian Railway Reform Authority (ARF) had excluded a consortium led by a Chinese company from a procedure for the procurement of 20 trains, on the basis of the definition of economic operator in Law no. 98/2016, as amended by Government Emergency Ordinance (GEO) no. 25/2021. The Court held that a Member State cannot, by means of national legislation, require the exclusion of operators from countries without an agreement. The contracting authority, however, decides whether to admit them and may provide for differentiated treatment in the procurement documents, for example an adjustment of the score.
5.2. The International Procurement Instrument (IPI)
Regulation (EU) 2022/1031 allows the Commission to adopt measures against third countries that restrict EU operators’ access to their public procurement. The measures consist of a score adjustment or the exclusion of tenders and concern contracts of at least €15 million (works and concessions) and €5 million (goods and services) respectively. The first measure, Implementing Regulation (EU) 2025/1197, applicable from 30 June 2025, excludes operators of Chinese origin from procedures for medical devices with a value of at least €5 million, and products of Chinese origin may not exceed 50% of the contract value.
5.3. The Foreign Subsidies Regulation (FSR)
Under Regulation (EU) 2022/2560, a tenderer must notify foreign financial contributions where the estimated value of the contract is at least €250 million (or the lots for which it is tendering total at least €125 million) and where its group, together with its main subcontractors and suppliers, has received at least €4 million from the same third country in the previous three years. Below the second threshold, a declaration is submitted. The contract may not be awarded while the Commission is examining the notification (20 working days for the preliminary review, 110 working days for the in-depth investigation). Failure to notify may be penalised by a fine of up to 10% of the group’s turnover.
6. Practical recommendations
For contracting authorities in Romania
- Determine as early as the preparation stage whether you will admit tenderers from states without a public procurement agreement with the EU and what treatment you will apply to them, stating this clearly in the procurement documents.
- For procedures for the procurement of medical devices falling under the CPV codes listed in Implementing Regulation (EU) 2025/1197 and with an estimated value of at least €5 million, excluding VAT, check whether the IPI measure applies.
- In procedures of at least €250 million, build the Commission’s FSR review period into your timetable.
- Review the weighting of quality factors in your template procurement documents, in light of the proposed 30% threshold.
For non-EU tenderers (including from Türkiye and China)
- Check whether your state of origin is a party to the GPA or has an agreement with the EU covering the procurement in question; Türkiye and China are not parties to the GPA.
- Read the procurement documents carefully: the contracting authority may limit participation or provide for differentiated treatment.
- Check the origin of products and subcontractors, which is already relevant for IPI measures.
- Calculate in good time the foreign financial contributions received by your group, as well as by the main subcontractors and suppliers involved in the tender, so that you know whether you are required to submit an FSR notification or declaration.
Frequently asked questions
Does the Public Procurement Act already apply?
No. It is a proposal currently going through the legislative procedure. If adopted, it will apply automatically in all Member States two years after its entry into force.
Can a contracting authority in Romania exclude a tenderer from Türkiye today?
Yes. Under the Kolin and CRRC Qingdao Sifang judgments, the contracting authority may decide on a case-by-case basis whether to admit tenderers from states without a procurement agreement with the EU, and the decision must be apparent from the procurement documents. A national rule requiring automatic exclusion cannot be applied.
Will the European preference be mandatory?
In the proposed form, applying it is, as a rule, an option for the contracting authority. The Commission could make it mandatory by means of delegated acts, only in respect of non-covered operators and products and where this is in the Union interest, and some sectoral acts may impose their own rules.
Are EU tenderers affected by the FSR?
Yes. The notification obligation depends on the financial contributions received from third countries, regardless of where the tenderer is established, if the thresholds are met.
Adesman & Asociații assists contracting authorities and economic operators from Romania and from outside the Union in preparing and conducting award procedures, in analysing the regime applicable to tenderers from third countries and in challenges before the National Council for Solving Complaints (CNSC) and the courts. Find out more about our public procurement and public-private partnerships practice.
Would you like to know which rules apply to your tender or to the procedure you are organising? Speak to our public procurement team.
This material is provided for general information purposes only and does not constitute legal advice. The proposed regulation may be amended during the legislative process, and the applicable regime must be assessed in light of the specific circumstances and the legislation in force at the date of the analysis.
