Activities of Sergio Gaetano COFFERATI related to 2011/0438(COD)
Plenary speeches (1)
Award of concession contracts - Public procurement - Procurement by entities operating in the water, energy, transport and postal services sectors (debate)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on public procurement
Amendments (121)
Amendment 16 #
Proposal for a directive
Recital 5
Recital 5
(5) Under Articles 9, 10 and 11 of the Treaty on the Functioning of the European Union, environmental protection requirements, with the promotion of a high level of employment, the guarantee of suitable social protection, the fight against social exclusion and a high level of education, training and the protection of human health protection must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting socially and environmentally sustainable development. This Directive clarifies how the contracting authorities may use their discretionary power in the definition and awarding of public contracts, in order to contribute to the protection of the environment, social welfare and the promotion of sustainable development, whilst ensuring that they can obtain the best value for money for their contracts.
Amendment 17 #
Proposal for a directive
Recital 7
Recital 7
(7) Illicit conduct by participants in a procurement procedure, such as attempts to unduly influence the decision-making process or to enter into agreements with other candidates to manipulate the outcome of the procedureat procedure, as well as failure to respect measures in the field of environmental protection and health, working conditions and social protection, as defined in the international legislation referred to in Annex XI, European and national legislation and/or collective agreements in force where the services, work or supplies are provided, can result in violations of the basic principles of Union law and in serious distortions of competition. Economic operators should therefore be required to submit a declaration on honour that they do not engage in such illicit activities and be excluded if this declaration proves to be false.
Amendment 21 #
Proposal for a directive
Recital 18
Recital 18
(18) In view of the detrimental effects on competition, negotiated procedures without prior publication of a contract notice should only be used in very exceptional circumstances. This exception should be limited to cases where publication is either not possible, for reasons of force majeure in line with the standing case-law of the Court of Justice of the European Union, or where it is clear from the outset that publication would not trigger more competition, not least because there is objectively only one economic operator that can perform the contract. Only situations of objective exclusivity can justify the use of the negotiated procedure without publication, where the situation of exclusivity has not been created by the contracting authority itself with a view to the future procurement procedure, and where there are no adequate substitutes, the availability of which should be assessed thoroughly. If, in the cases defined in this Directive, the contracting authorities opt for a negotiated procedure without prior publication, they should send a report to the oversight body justifying the reason for this choice. The oversight body should also be competent to analyse and assess such reports.
Amendment 23 #
Proposal for a directive
Recital 30 a (new)
Recital 30 a (new)
(30a) To facilitate access by SMEs to the public procurement market, groups of economic operators, who could form consortia of companies, should also be allowed to present joint tenders for a contract. In this case, the contracting authorities should allow the groups of economic operators to combine the individual characteristics of the group members to satisfy the financial, technical and legal requirements as a single entity.
Amendment 24 #
Proposal for a directive
Recital 41
Recital 41
(41) Furthermore, in technical specifications and in award criteria, contracting authorities should be allowed to refer to a specific production process, a socially sustainable feature of the life cycle or of the production process, a specific mode of provision of services, or a specific process for any other stage of the life cycle of a product or service, provided that they are linked to the subject-matter of the public contract. IFurthermore, in order to better integrate social considerations in public procurement, procurers may also be allowed to include, in the award criterion of the most economically advantageous tender, characteristics relatedconditions of execution and award criteria, social characteristics connected with the purpose of the contract. The social characteristics can be related, for example, to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics may only concern the protection of health of the staff involved in the production process or, the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract, including accessibility for persons with disabilities. Any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff memb, gender equality, access to professional training in the workplace, users in their working environvolvement. They should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services1 and in a way that does not discriminate directly or indirectly against economic operators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements to which the Union is party. For service contracts and for contracts involving the design of works, contracting authorities should also be allowed to use as an award criterion the organisation, qualification and experience of the staff assigned to performing the contract in question, as this may affect the quality of contract performance and, as a result, the economic value of the tender.
Amendment 25 #
Proposal for a directive
Recital 42
Recital 42
(42) Tenders that appear abnormally low in relation to the works, supplies or services might be based on technically, economically or legally unsound assumptions or practices. In order to prevent possible disadvantages during contract performance, c or on illegal conduct or a failure to adhere to obligations concerning workers or environmental protection measures. Contracting authorities should be obliged to ask for an explanation of the price charged where a tender significantly undercuts the prices demanded by other tenderers. Where the 1 OJ L 18, 21.1.1997, p.1. or in the event that an offer appears unusually low for other reasons. Where the tenderer cannot provide a sufficient explanation, the contracting authority should be entitled to reject the tender. RFurthermore, rejection should also be mandatory in cases where the contracting authority has established that the abnormally low price charged results from non-compliance with mandatory Unobligations arising from international law, Union or national legislation in the fields of social, labour or environmental law or international labour law provisionsand/or collective agreements which apply where the work, service or supplies are provided, in the fields of social security, working conditions and environmental protection.
Amendment 26 #
Proposal for a directive
Recital 43 a (new)
Recital 43 a (new)
(43a) In order to ensure the correct functioning of public procurement, the subcontracting instrument must be correctly regulated. The contracting authority must be informed, within the tenders presented, of the parts of the contract which a bidder may intend to subcontract, along with any subcontractors proposed. Every change in the subcontracting chain for the current contract should ensure that the contract is performed in accordance with the bid made and must be agreed by the contracting authority. The contracting authority should make arrangements for the direct payment of the subcontractors, insofar as this is permitted by the nature of the contract itself. Finally, a ‘joint and several liability’ system should be set up in the subcontracting chain and this chain should be limited to a maximum of three consecutive vertical subcontractors.
Amendment 27 #
Proposal for a directive
Recital 44
Recital 44
(44) The laws, and regulations and collective agreements, at both national and Union level, that are in force in the areas of employment conditions and safety at work apply during the performance of a public contract, In cross-border situations, where workers from one Member State provide services in another Member State for the purpose of performing a public contract, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services1 lays down the minimum conditions that must be observed by the host country in respect of such posted workers. Where national law contains provisions to this effect, nalong with collective agreements which apply where the work, service or supply is to be provided. Non-compliance with those obligations mayshould be considered to be grave misconduct on the part of the economic operator concerned, liable to and lead to the exclusion of that economic operator from the procedure for the award of a public contract. 1 OJ L 18, 21.1.1997, p. 1.Or. it
Amendment 28 #
Proposal for a directive
Recital 48 a (new)
Recital 48 a (new)
(48 a) Contracting authorities should respect the delay of payment as established in Directive 2011/7/EU.
Amendment 29 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 2 a (new)
Article 1 – paragraph 2 – subparagraph 2 a (new)
This Directive is without prejudice to the right of public authorities at all levels to decide whether, how and to what extent they want to perform public functions themselves. Public authorities may perform public interest tasks using their own resources, without being obliged to call on outside economic operators. They may do so in cooperation with other public authorities.
Amendment 34 #
Proposal for a directive
Article 2 – paragraph 1 – point 22 a (new)
Article 2 – paragraph 1 – point 22 a (new)
(22 a) 'Life cycle characteristics' means elements relating to any part of the life cycle of a product or works or the provision of a service, as defined in point 22 of this Article. Life cycle characteristics can be invisible characteristics that are embedded in a product as a result of choises made in the production or other non-use phases of the life cycle of the product, even if such characteristics are not apparent in the physical characteristics or functional qualities of the resulting product or service;
Amendment 35 #
Proposal for a directive
Article 2 – paragraph 1 – point 22 b (new)
Article 2 – paragraph 1 – point 22 b (new)
(22b) a ‘socially sustainable production process’ means a production process where the provision of work, services and supplies complies with health and safety, social security and employment law provisions, notably concerning the principle of equal treatment in the workplace. The principle of equal treatment in the workplace means adherence to the current regulations governing working and employment conditions, including health and safety, social security and employment law provisions defined by the stipulations of international law listed in Annex XI, in European Union and Member State legislation and in collective agreements which apply where the work, services and supplies are provided;
Amendment 40 #
Proposal for a directive
Recital 48 a (new)
Recital 48 a (new)
(48a) Contracting authorities should respect the delay of payment as established in Directive 2011/7/EU.
Amendment 47 #
Proposal for a directive
Article 15 – paragraph 2 a (new)
Article 15 – paragraph 2 a (new)
Economic operators shall comply with obligations relating to social and employment protection and the working conditions which apply in the place where the work, service or supply is to be performed as set out by Union and national legislation and/or collective agreements or international labour law provisions listed in Annex XI.
Amendment 48 #
Proposal for a directive
Article 15 – paragraph 2 b (new)
Article 15 – paragraph 2 b (new)
Contracting authorities shall aim for "best value" in procurement policy. This is achieved through the awarding of the public contract to the most economically advantageous tender.
Amendment 49 #
Proposal for a directive
Article 15 – paragraph 2 c (new)
Article 15 – paragraph 2 c (new)
The details of public contracts shall be made public.
Amendment 50 #
Proposal for a directive
Article 16 – paragraph 2 – subparagraph 1
Article 16 – paragraph 2 – subparagraph 1
Groups of economic operators may submit tenders or put themselves forward as candidates. Groups of economic operators, notably small and medium-sized enterprises (SMEs) may take the form of a consortium of enterprises. Contracting authorities shall not establish specific conditions for participation of such groups in procurement procedures which are not imposed on individual candidates. In order to submit a tender or a request to participate, those groups shall not be required by the contracting authorities to assume a specific legal form.
Amendment 51 #
Proposal for a directive
Article 16 – paragraph 2 – subparagraph 1 a (new)
Article 16 – paragraph 2 – subparagraph 1 a (new)
Contracting authorities shall give the possibility to a group of economic operators to fulfil all technical, legal and financial requirements as a single entity, summing up the individual characteristics of the components of the group.
Amendment 52 #
Proposal for a directive
Article 18 – paragraph 2 a (new)
Article 18 – paragraph 2 a (new)
2 a. Article 18 (1) and (2) shall not prevent the public disclosure of contracts once concluded including any subsequent changes.
Amendment 53 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 3
Article 21 – paragraph 1 – subparagraph 3
For the purposes of this Article, ‘private interests’ means any family, emotional life, economic, politicalconomic or other shared interests with the candidates or the tenderers or any subcontractor proposed in the tender in accordance with the provisions of Article 71, including conflicting professional interests.
Amendment 54 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point a
Article 30 – paragraph 2 – subparagraph 1 – point a
(a) where no tenders or no suitable tenders or no requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission or the national oversight body designated according to Article 84 where they so requestaltered.
Amendment 55 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
Amendment 56 #
Proposal for a directive
Article 30 – paragraph 5 a (new)
Article 30 – paragraph 5 a (new)
5a. If a contracting authority decides, pursuant to paragraphs 1, 2, 3, 4 and 5 of this Article, to use a negotiated procedure without prior publication, it shall provide to the oversight body referred to in Article 84 a detailed report justifying this choice and containing the procurement documents and related information, together with the procurement documents for the previous call for tenders if it wishes to use the negotiated procedure without prior publication on the basis of paragraph 2(a).
Amendment 58 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 2
Article 40 – paragraph 1 – subparagraph 2
These characteristics may also refer to the specific process of production or provision of the requested works, supplies or services or of any other stage of its life cycle and socially sustainable production process as referred to in points (22), (22a) and (22b) of Article 2.
Amendment 59 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 5 a (new)
Article 40 – paragraph 1 – subparagraph 5 a (new)
Technical specifications may also include, as appropriate, requirements relating to: (a) performance, including levels of environmental and climate performance and performance in terms of socially sustainable production process; (b) life cycle characteristics; (c) socially sustainable production process; (d) the organisation, qualification and experience of the staff assigned to performing the contract in question; (e) safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions; (f) rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve; (g) social characteristics, including social inclusion, gender balance, access to on- site vocational training.
Amendment 60 #
Proposal for a directive
Article 40 – paragraph 3 – point a
Article 40 – paragraph 3 – point a
(a) in terms of performance or functional requirements, including social and environmental characteristics, provided that the parameters are sufficiently precise to allow tenderers to determine the subject- matter of the contract and to allow contracting authorities to award the contract. In accordance with paragraph 1, technical specifications may be formulated in terms of performance or functional requirements relating to life cycle or socially sustainable production process characteristics of the requested works, supplies or services, and not only to the performance or functional requirements of the works, supplies, or services in use;
Amendment 63 #
Proposal for a directive
Article 54 – paragraph 1 – point b
Article 54 – paragraph 1 – point b
(b) the tender comes from a tenderer that is not excluded in accordance with Articles 21 and 55 and that meets the selection criteria set out by the contracting authority in accordance with Article 56 and, where appropriate, the non-discriminatory rules and criteria referred to in Article 64 and 71.
Amendment 64 #
Proposal for a directive
Article 54 – paragraph 2
Article 54 – paragraph 2
2. Contracting authorities may decideshall not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply, at least in an equivalent manner, with obligations established by Union legislation in the field of social and labour law or environmental law with obligations in the field of social and employment protection, working conditions and environmental legislation, as set out by Union and national legislation and/or collective agreements that apply in the place where the work, service or supply is to be performed or ofby the international social and environmental law provisions listed in Annex XI.
Amendment 65 #
Proposal for a directive
Article 66 – paragraph 2 – point - a a (new)
Article 66 – paragraph 2 – point - a a (new)
(- aa) decent working conditions, health and safety in the workplace and respect for collective bargaining;
Amendment 65 #
Proposal for a directive
Article 54 – paragraph 2 a (new)
Article 54 – paragraph 2 a (new)
2 a. Where such laws do not apply, not compliance of the tender with other laws which ensure an equivalent level of protection and apply in the place where the work, service or supply is to be performed shall also provide a basis for exclusion.
Amendment 66 #
Proposal for a directive
Article 54 – paragraph 4
Article 54 – paragraph 4
4. The Commission shall be empowered to adopt delegated acts in accordance with Article 89 to acomplemendt the list in Annex XI, where necessary due to the conclusion of new international agreements or modification of existing international agreements.
Amendment 67 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 1 – point e a (new)
Article 55 – paragraph 1 – subparagraph 1 – point e a (new)
(e a) participation in exploitation of human trafficking and child labour covered by Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.
Amendment 69 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – introductory part
Article 55 – paragraph 3 – subparagraph 1 – introductory part
A contracting authority mayshall exclude from participation in a public contract any economic operator if one of the following conditions is fulfilled:
Amendment 70 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – point a
Article 55 – paragraph 3 – subparagraph 1 – point a
(a) where it is aware of any violation of obligations established by Union legislation in the field of social and labour law or environmental lawin the field of social and employment protection, working conditions and environmental legislation, as set out by Union and national legislation and/or collective agreements that apply in the place where the work is performed or the service is provided, or of the international social and environmental law provisions listed in Annex XI. Compliance with Union legislation or with international provisions also includes compliance in an equivalent manner.
Amendment 71 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 2 a (new)
Article 55 – paragraph 3 – subparagraph 2 a (new)
A contracting authority shall exclude from participation in a public contract any economic operator if one of the conditions set out in paragraphs 1, 2 or 3 is fulfilled in respect of a subcontractor proposed by the economic operator in accordance with Article 71.
Amendment 72 #
Proposal for a directive
Article 55 – paragraph 4 – subparagraph 1
Article 55 – paragraph 4 – subparagraph 1
Any candidate or tenderer that is in one of the situations referred to in paragraphs 1, 2, 3 and 3a may provide the contracting authority with evidence demonstrating its reliability or, if appropriate, the reliability of its subcontractor, despite the existence of the relevant ground for exclusion.
Amendment 73 #
Proposal for a directive
Article 55 – paragraph 4 – subparagraph 2
Article 55 – paragraph 4 – subparagraph 2
For this purpose, the candidate or tenderer shall prove that it has compensated any damage caused by the criminal offence or misconduct, clarified the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities and taken concrete technical, organisational and personal measures that are appropriate to prevent further criminal offences or misconduct. Contracting authorities shall evaluate the measures taken by the candidates and tenderers, including reporting and control systems and internal audit structures to monitor compliance. Evidence provided by the candidate or tenderer to this effect shall be sufficient to satisfy the contracting authorities that the measures taken by the candidates and tenderers, or, as appropriate, the reliability of its sub- contractor, are sufficient to prevent further criminal offences or misconduct, taking into account the gravity and particular circumstances of the criminal offence or misconduct. Where the contracting authority considers the measures to be insufficientis not satisfied, it shall state the reasons for its decision.
Amendment 74 #
Proposal for a directive
Article 55 – paragraph 5
Article 55 – paragraph 5
5. Member States shall ensure that contracting authorities and economic operators can easily obtain information and assistance with regard to the application of this Article through the liaison point provided for insingle body, several bodies or administrative structures established or appointed to that effect in accordance with Articles 884 and 87.
Amendment 75 #
Proposal for a directive
Article 56 – paragraph 1 – subparagraph 1 – point c a (new)
Article 56 – paragraph 1 – subparagraph 1 – point c a (new)
(c a) compliance with obligations in the field of social and employment protection, working conditions and environmental legislation, as set out by Union and national legislation and/or by collective agreements that apply where the the work, the service or the supply is performed and with the international social and environmental law provisions listed in Annex XI.
Amendment 76 #
Proposal for a directive
Article 56 – paragraph 1 – subparagraph 2
Article 56 – paragraph 1 – subparagraph 2
They are not obliged to impose all the conditions listed in paragraphs 2, 3 and 4, but and they shall notmay provide requirements other than those listed.
Amendment 77 #
Proposal for a directive
Article 56 – paragraph 1 – subparagraph 3
Article 56 – paragraph 1 – subparagraph 3
Contracting authorities shall limit any conditions for participation to those that are appropriate to ensure that a candidate or tenderer has the legal and financial capacities and the commercial and technical abilities to perform the contract to be awarded. All requirements shall be related and strictly proportionatelinked to the subject-matter of the contract, taking into account the need to ensure genuine competition.
Amendment 78 #
Proposal for a directive
Article 56 – paragraph 4 – subparagraph 1
Article 56 – paragraph 4 – subparagraph 1
With regard to technical and professional ability, contracting authorities mayshall require that economic operators possess or have made provisions to access or acquire the necessary human and technical resources and experience to performensure the performance of the contract to an appropriate quality standard and, where so requested by the contracting authority, in accordance with any contract performance clause specified in accordance with Article 70. Contracting authorities may conclude that economic operators will not perform the contract to an appropriate quality standardensure the required performance where the contracting authority established that they have conflicting interests which may negatively affect the performance of the contract.
Amendment 79 #
Proposal for a directive
Article 56 – paragraph 4 – subparagraph 2
Article 56 – paragraph 4 – subparagraph 2
Amendment 80 #
Proposal for a directive
Article 56 – paragraph 5 a (new)
Article 56 – paragraph 5 a (new)
5 a. This Article shall apply also to subcontracting procedures and subcontractors.
Amendment 82 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – introductory part
Article 66 – paragraph 1 – subparagraph 1 – introductory part
Without prejudice to national laws, regulations or administrative provisions concerning the remuneration of certain services, the criterion on which contracting authorities shall base the award of public contracts shall be onethat of the following:most economically advantageous tender.
Amendment 83 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point a
Article 66 – paragraph 1 – subparagraph 1 – point a
Amendment 84 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point b
Article 66 – paragraph 1 – subparagraph 1 – point b
Amendment 85 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 2
Article 66 – paragraph 1 – subparagraph 2
Amendment 86 #
Proposal for a directive
Article 66 – paragraph 2 – introductory part
Article 66 – paragraph 2 – introductory part
2. The contracting authority shall assess the most economically advantageous tender referred to in point (a) of paragraph 1 from the point of view of the contracting authority shall be identifiedaragraph 1, on the basis of criteria linked to the subject-matter of the public contract in question. Those criteria shall include, iIn addition to the price orand costs referred to in point (b) of paragraph 1, other criteria linked to the subject- matter of the public contract in question, such as, assessed solely on the basis of a cost-effectiveness approach, as in the determination of the life-cycle costs in compliance with the stipulations of Article 67, the following examples shall feature among the criteria:
Amendment 87 #
Proposal for a directive
Article 66 – paragraph 2 – point a a (new)
Article 66 – paragraph 2 – point a a (new)
(a a) life cycle process and life cycle characteristics;
Amendment 88 #
Proposal for a directive
Article 66 – paragraph 2 – point a b (new)
Article 66 – paragraph 2 – point a b (new)
(ab) the socially sustainable production process;
Amendment 89 #
Proposal for a directive
Article 66 – paragraph 2 – point b
Article 66 – paragraph 2 – point b
(b) for service contracts and contracts involving the design of works, the organisation, qualification and experience of the staff assigned to performing the contract in question mayshall be taken into consideration, with the consequence that, following the award of the contract, such staff may only be replaced with the consent of the contracting authority, which must verify that replacements ensure equivalent organisation and quality;
Amendment 90 #
Proposal for a directive
Article 66 – paragraph 2 – point d a (new)
Article 66 – paragraph 2 – point d a (new)
(da) social criteria, such as, for example, decent working conditions, health and safety, respect of collective bargaining, gender equality, social inclusion, including employment opportunities for disabled, disadvantaged or vulnerable workers, access to professional training in the workplace, user consultation and participation, economic accessibility, human rights and fair trade;
Amendment 91 #
Proposal for a directive
Article 66 – paragraph 3
Article 66 – paragraph 3
Amendment 92 #
Proposal for a directive
Article 66 – paragraph 4
Article 66 – paragraph 4
4. Award criteria shall not confer an unrestricted freedom of choice on the contracting authority. They shall ensure the possibility ofensure effective competition and shall be accompanied by requirements that allow the information provided by the tenderers to be effectively verified. Contracting authorities shall verify effectively, on the basis of the information and proof provided by the tenderers, whether the tenders meet the award criteria.
Amendment 93 #
Proposal for a directive
Article 66 – paragraph 5 – subparagraph 1
Article 66 – paragraph 5 – subparagraph 1
Amendment 94 #
Proposal for a directive
Article 66 – paragraph 5 – subparagraph 2
Article 66 – paragraph 5 – subparagraph 2
Amendment 95 #
Proposal for a directive
Article 67 – paragraph 3 – subparagraph 1
Article 67 – paragraph 3 – subparagraph 1
Whenever a common methodology for the calculation of life-cycle costs is adopted as part of a legislative act of the Union, including by delegated acts pursuant to sector specific legislation, it shall be applied where life-cycle costing is included inin accordance with the award criteriaon referred to in Article 66(1).
Amendment 96 #
Proposal for a directive
Article 69 – paragraph 1 – introductory part
Article 69 – paragraph 1 – introductory part
1. Contracting authorities shall require economic operators to explain the price or costs charged, where all of the following conditions are fulfilled:the price or costs charged are more than 25 % lower than the average price or average costs of the remaining tenders.
Amendment 97 #
Proposal for a directive
Article 69 – paragraph 1 – point a
Article 69 – paragraph 1 – point a
Amendment 98 #
Proposal for a directive
Article 69 – paragraph 1 – point b
Article 69 – paragraph 1 – point b
Amendment 99 #
Proposal for a directive
Article 69 – paragraph 1 – point c
Article 69 – paragraph 1 – point c
Amendment 101 #
Proposal for a directive
Article 69 – paragraph 2
Article 69 – paragraph 2
2. Where tenders appear to be abnormally low for other reasons, contracting authorities mayshall also request such explanations.
Amendment 102 #
Proposal for a directive
Article 69 – paragraph 3 – introductory part
Article 69 – paragraph 3 – introductory part
3. The explanations referred to in paragraphs 1 and 2 mayrelate in particular relate to:
Amendment 103 #
Proposal for a directive
Article 69 – paragraph 3 – point d
Article 69 – paragraph 3 – point d
(d) compliance, at least in an equivalent manner, with obligations established by Union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XI or, where not applicable, with other provisions ensuring an equivalent level of protection;
Amendment 104 #
Proposal for a directive
Article 69 a (new)
Article 69 a (new)
Amendment 105 #
Proposal for a directive
Article 71 – paragraph 1
Article 71 – paragraph 1
1. In the procurement documents, the contracting authority may ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractorsshall ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors, providing information regarding the subcontractor including names, contact details and legal representatives. Any changes in the subcontracting chain shall be proposed by the economic operator and agreed by the contracting authority. In the case the proposed change regards also the involvement of a new subcontractor, the main contractor shall indicate its name, contact details and legal representatives Any operators in the subcontracting chain shall ensure the respect of the provisions of this Directive and of the conditions established in the procurement documents and shall guarantee a performance of the duties connected to the contract equivalent to the one defined in the tender.
Amendment 106 #
Proposal for a directive
Article 71 – paragraph 1 a (new)
Article 71 – paragraph 1 a (new)
1 a. Member States shall limit the possibility for a tenderer to subcontract when executing a public contract to a maximum of three or less successive subcontractors. The contracting authorities may establish further limitations to the use of subcontracting, with regard to the number of subcontractors or of successive subcontractors or to the possibility of changes in the subcontracting chain, or may establish that no parts of the contracts shall be subcontracted to third parties.
Amendment 108 #
Proposal for a directive
Article 71 – paragraph 2 a (new)
Article 71 – paragraph 2 a (new)
2 a. The reasons for the use of subcontractors shall be set out in the procurement documents, strictly motivated by technical considerations and not circumvent relevant legislation and obligations which apply where the provision of works, services and supplies takes place;
Amendment 109 #
Proposal for a directive
Article 71 – paragraph 3
Article 71 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability. main contractor's and subcontractors' liability. Member states shall provide for a system of joint and several liability down the sub- contracting chain. The principal economic operator and any subcontractor involved in doing work on a public contract shall be jointly and severally liable for any liability which arises from the failure by a subcontractor to comply with provisions relating to fundamental rights, health and safety requirements, social rules and standards, employment and working conditions, health and safety at workplace and social security, as set out by EU and national laws, regulations or administrative provisions, collective agreement and contracts, and international labour law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed. Member States may provide for more stringent liability rules under national law.
Amendment 110 #
Proposal for a directive
Article 71 – paragraph 3 a (new)
Article 71 – paragraph 3 a (new)
3 a. The main contractor and any intermediate subcontractor in their contracts with their subcontractors, shall stipulate that in the event that they have reason to believe that their immediate subcontractor is violating the rules referred to in Paragraph 3, the immediate subcontractor shall take immediate action to remedy the situation, and that, failing this, the contract concerned shall be terminated.
Amendment 116 #
Proposal for a directive
Article 76 – paragraph 2
Article 76 – paragraph 2
2. Member States shall ensure that contracting authorities may take into account the need to ensure quality, continuity, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of users, the involvement and empowerment of users and innovation. Member States may also provide that the choice of the service provider shall not be made solely on the basis of the price for the provision of the service, as well as consumer protection and social inclusion.
Amendment 118 #
Proposal for a directive
Recital 48 a (new)
Recital 48 a (new)
(48a) Contracting authorities should respect the delay of payment as established in Directive 2011/7/EU.
Amendment 118 #
Proposal for a directive
Article 76 – paragraph 2 a (new)
Article 76 – paragraph 2 a (new)
2a. The general principles referred to in Article 54, the exclusion grounds referred to in Article 55 and the rules governing subcontracting referred to in Article 71, shall also apply to the contracts defined in Article 74.
Amendment 121 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 1 – point d
Article 84 – paragraph 3 – subparagraph 1 – point d
(d) establishing and applying comprehensive, actionable ‘red flag’ indicator and monitoring systems to prevent, detect and adequately report instances of procurement fraud, corruption, conflict of interest and other serious irregularities as well as specific breaches of provisions contained in Articles 54, 55 and 71;
Amendment 122 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 1 – point f a (new)
Article 84 – paragraph 3 – subparagraph 1 – point f a (new)
(fa) examining the reports sent to them by contracting authorities intending to use a negotiated procedure without publication;
Amendment 123 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Directive is without prejudice to the right of public authorities at all levels to decide whether, how and to what extent they want to perform public functions themselves. Public authorities may perform public interest tasks using their own resources, without being obliged to call on outside economic operators. They may do so in cooperation with other public authorities.
Amendment 123 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 3
Article 84 – paragraph 3 – subparagraph 3
Member States shall empower the oversight body to seize the jurisdiction competent according to national law for the review of contracting authorities'’ decisions where it has detected a violation in the course of its monitoring and legal advising activity or when examining reports provided by the contracting authorities on the basis of Article 30.
Amendment 124 #
Proposal for a directive
Article 87 – paragraph 1
Article 87 – paragraph 1
1. Member States shall make available technical support structures in order to provide legal and economic advice, guidance and assistance to contracting authorities in preparing and carrying out procurement procedures. Member States shall also ensure that each contracting authority can obtain competent assistance and advice on individual questions, in partcular in relation to provisions contained in Articles 54, 55 and 71.
Amendment 126 #
Proposal for a directive
Annex XI – indent 1 a (new)
Annex XI – indent 1 a (new)
- Convention 94 on Labour Clauses in Public Contracts;
Amendment 200 #
Proposal for a directive
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1a. Economic operators shall comply with obligations relating to social and employment protection and the working conditions which apply in the place where the work, service or supply is to be performed as set out by Union and national legislation and/or collective agreements or international labour law provisions listed in Annex XI.
Amendment 203 #
Proposal for a directive
Article 15 – paragraph 1 b (new)
Article 15 – paragraph 1 b (new)
1b. Contracting authorities shall aim for "best value" in procurement policy. This is achieved through the awarding of the public contract to the most economically advantageous and sustainable tender.
Amendment 205 #
Proposal for a directive
Article 15 – paragraph 1 c (new)
Article 15 – paragraph 1 c (new)
1c. The details of public contracts shall be made public.
Amendment 232 #
Proposal for a directive
Recital 18
Recital 18
(18) In view of the detrimental effects on competition, negotiated procedures without prior publication of a contract notice should only be used in very exceptional circumstances. This exception should be limited to cases where publication is either not possible, for reasons of force majeure in line with the standing case-law of the Court of Justice of the European Union, or where it is clear from the outset that publication would not trigger more competition, not least because there is objectively only one economic operator that can perform the contract. Only situations of objective exclusivity can justify the use of the negotiated procedure without publication, where the situation of exclusivity has not been created by the contracting authority itself with a view to the future procurement procedure, and where there are no adequate substitutes, the availability of which should be assessed thoroughly. Contracting authorities which, in the cases defined in this Directive, use a negotiated procedure without publication should submit a report justifying their decision to the supervisory body, whose tasks should include the analysis and assessment of such reports.
Amendment 272 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – introductory part
Article 55 – paragraph 3 – subparagraph 1 – introductory part
A contracting authority mayshall exclude from participation in a public contract any economic operator if one of the following conditions is fulfilled:
Amendment 274 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – point a
Article 55 – paragraph 3 – subparagraph 1 – point a
(a) where it is aware of any violation of obligations established by Union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XI. Compliance with Union legislation or with internationalin the field of environmental law or social and labour law, as established by Union legislation and national laws, regulations or administrative provisions, arbitration award, collective agreements and contracts, and international social and environmental law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed, including in the subcontracting chain. Compliance with these provisions also includes compliance in an equivalent manner.
Amendment 276 #
Proposal for a directive
Article 55 – paragraph 4 – subparagraph 1
Article 55 – paragraph 4 – subparagraph 1
Amendment 277 #
Proposal for a directive
Article 56 – paragraph 1 – subparagraph 1 – point c a (new)
Article 56 – paragraph 1 – subparagraph 1 – point c a (new)
(ca) compliance with rules and standards in the field of health and safety, social and labour law defined by Union and national legislation and by collective agreements which apply in the place where the work, service or supply is performed.
Amendment 280 #
Proposal for a directive
Article 56 – paragraph 4 – subparagraph 1
Article 56 – paragraph 4 – subparagraph 1
With regard to technical and professional ability, contracting authorities mayshall require that economic operators possess or have made provisions to access or acquire the necessary human and technical resources and experience to performensure the performance of the contract to an appropriate quality standard and, where so requested by the contracting authority, in accordance with any contract performance clause specified in accordance with Articles 70 and 71. Contracting authorities may conclude that economic operators will not performensure the performance of the contract to an appropriate quality standard where the contracting authority established that they have conflicting interests which may negatively affect the performance of the contract.
Amendment 282 #
Proposal for a directive
Article 56 – paragraph 5 a (new)
Article 56 – paragraph 5 a (new)
5a. This Article shall also apply to subcontracting procedures and subcontractors.
Amendment 298 #
Proposal for a directive
Recital 43 a (new)
Recital 43 a (new)
(43a) In order to ensure that public procurement functions correctly, subcontracting should be properly regulated. The contracting authority should be informed, in the tenders submitted, of the parts of the contract which a bidder may intend to subcontract, along with any subcontractors proposed. Any change in the subcontracting chain for the current contract should be made in such a way as to ensure that the contract is performed in accordance with the tender submitted and should be agreed by the contracting authority. The contracting authority should make arrangements for the direct payment of the subcontractors, insofar as this is permitted by the nature of the contract itself. Finally, a system of joint and several liability should be established in the subcontracting chain and the chain should be limited to a maximum of three consecutive vertical subcontracts.
Amendment 302 #
Proposal for a directive
Recital 48 a (new)
Recital 48 a (new)
(48 a) Contracting authorities should respect the delay of payment as established in Directive 2011/7/EU.
Amendment 324 #
Proposal for a directive
Article 69 – paragraph 2
Article 69 – paragraph 2
2. Where tenders appear to be abnormally low for other reasons, contracting authorities mayshall also request such explanations, in particular in cases where the price or costs charged are lower than the price or costs paid to the current operator or where the price or costs charged are lower than the prices resulting from other current and comparable procurement procedures.
Amendment 340 #
Proposal for a directive
Article 71 – paragraph 1
Article 71 – paragraph 1
1. In the procurement documents, the contracting authority mayshall ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors, providing information regarding the subcontractor including names, contact details and legal representatives. Any changes in the subcontracting chain shall be proposed by the economic operator and agreed by the contracting authority. The proposed change shall be rejected if it doesn't guarantee the respect of the general principle defined in Article 54.2 or if one of the conditions for exclusion laid down in Article 55 applies. Any changes in the subcontracting chain shall ensure the respect of the provisions of this Directive and of the conditions established in the procurement documents and shall guarantee a performance of the duties connected to the contract equivalent to the one defined in the tender. In the case the proposed change regards also the involvement of a new subcontractor, the main contractor shall indicate its name, contact details and legal representatives.
Amendment 343 #
Proposal for a directive
Article 71 – paragraph 3
Article 71 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability. main contractor's and subcontractors' liability. Member states shall provide for a system of joint and several liability down the sub- contracting chain. Member States shall ensure that the main contractor and any intermediate subcontractor may be directly held liable like a guarantor, in addition to or in place of a subcontractor, for any liability which arises from the failure by the subcontractor to comply with provisions relating to fundamental rights, health and safety requirements, social rules and standards, employment and working conditions, health and safety at workplace and social security, as set out by EU and national laws, regulations or administrative provisions, collective agreements and contracts, and international labour law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed; these obligations shall also apply in cross- border situations, where workers from one Member State provide services in another Member State. This shall apply without any further conditions, in particular without the subject or the subjects held liable being directly at fault. Member States may provide for more stringent liability rules under national law. The contracting authority in its contract with the main contractor, and the main contractor and any intermediate subcontractor in their contracts with their subcontractors, shall stipulate that in the event that they have reason to believe that their immediate subcontractor is violating the rules referred to in the second subparagraph, the immediate subcontractor shall take immediate action to remedy the situation, and that, failing this, the contract concerned shall be terminated. If the termination of the contract and the replacement of the concerned subcontractor takes the form of a transfer of undertaking, as defined in Directive 2001/23/EC, the provisions of that Directive shall apply.
Amendment 361 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 1 – point d
Article 84 – paragraph 3 – subparagraph 1 – point d
(d) establishing and applying comprehensive, actionable ‘'red flag’' indicator and monitoring systems to prevent, detect and adequately report instances of procurement fraud, corruption, conflict of interest and, other serious irregularities as well as specific breaches of provisions contained in Articles 54, 55 and 71;
Amendment 364 #
Proposal for a directive
Article 87 – paragraph 1
Article 87 – paragraph 1
1. Member States shall make available technical support structures in order to provide legal and economic advice, guidance and assistance to contracting authorities in preparing and carrying out procurement procedures. Member States shall also ensure that each contracting authority can obtain competent assistance and advice on individual questions, in particular in relation to provisions contained in Articles 54, 55 and 71.
Amendment 365 #
Proposal for a directive
Article 87 – paragraph 3 – subparagraph 2
Article 87 – paragraph 3 – subparagraph 2
Member States shall ensure that interested economic operators have easy access to appropriate information on the obligations relating to taxes, environmental protection, and to social and labour law obligations, which are in force in the Member State, in the region or localitypply in the place where the works are to be carried out or the services are to be provided and which will be applicable to the works carried ou. Member States shall ensure that con site or to the services provided duringtracting authorities state where the perinformance oftion can be found in the contract documents.
Amendment 366 #
Proposal for a directive
Article 87 – paragraph 3 – subparagraph 2 a (new)
Article 87 – paragraph 3 – subparagraph 2 a (new)
Member States shall ensure that contracting authorities request tenderers or candidates in the contract award procedure to indicate that they have taken account, when drawing up their tender, of the obligations relating to social and labour law obligations, which apply in the place where the works are to be carried out or the services are to be provided.
Amendment 370 #
Proposal for a directive
Annex XIII – point c
Annex XIII – point c
(c) Certification that the economic operator is not the subject of insolvency or winding-up proceedings as referred toin one of the situations listed in Article 55(3)(b) and 55 (3a) new;
Amendment 594 #
Proposal for a directive
Article 15 – paragraph 2 a (new)
Article 15 – paragraph 2 a (new)
Economic operators shall comply with obligations relating to social and employment protection and the working conditions which apply in the place where the work, service or supply is to be performed as set out by Union and national legislation and/or collective agreements or international labour law provisions listed in Annex XI.
Amendment 597 #
Proposal for a directive
Article 15 – paragraph 2 b (new)
Article 15 – paragraph 2 b (new)
Amendment 598 #
Proposal for a directive
Article 15 – paragraph 2 c (new)
Article 15 – paragraph 2 c (new)
The details of public contracts shall be made public.
Amendment 613 #
Proposal for a directive
Article 18 – paragraph 2 a (new)
Article 18 – paragraph 2 a (new)
2 a. Paragraphs 1 and 2 of this Article shall not prevent the public disclosure of contracts once concluded including any subsequent changes.
Amendment 795 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point a
Article 30 – paragraph 2 – subparagraph 1 – point a
(a) where no tenders or no suitable tenders or no requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission or the national oversight body designated according to Article 84 where they so requestaltered.
Amendment 800 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
Amendment 822 #
Proposal for a directive
Article 30 – paragraph 5 a (new)
Article 30 – paragraph 5 a (new)
If a contracting authority decides, under this Article, to make use of the negotiated procedure without prior publication, it shall provide the supervisory body referred to in Article 84 with a detailed report stating the reasons for that choice and containing the tender documents and related information and, should it elect to follow a negotiated procedure without prior publication under point (a), the tender documents from the previous call to tender.
Amendment 1063 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – point d
Article 55 – paragraph 3 – subparagraph 1 – point d
(d) where the economic operator has shown significant or persistent deficiencies in the performance of any substantive requirement under a prior contract or contracts ofis inscribed in an official register of non- compliance, as similar nature with the same contracting authorityet out in Article 73a.
Amendment 1071 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 2
Article 55 – paragraph 3 – subparagraph 2
Amendment 1163 #
Proposal for a directive
Article 66 – paragraph 2 – point -a (new)
Article 66 – paragraph 2 – point -a (new)
(-a) decent working conditions, health and safety in the workplace, respect for collective bargaining;
Amendment 1194 #
Proposal for a directive
Article 66 – paragraph 2 – point d a (new)
Article 66 – paragraph 2 – point d a (new)
(da) social criteria such as, for example, gender equality, social inclusion, including work opportunities for disabled, disadvantaged or vulnerable workers, access to professional training in the workplace, consultation with and participation of users, economic accessibility;
Amendment 1298 #
Proposal for a directive
Article 69 a (new)
Article 69 a (new)
Amendment 1322 #
Proposal for a directive
Article 71 – paragraph 1
Article 71 – paragraph 1
1. In the procurement documents, the contracting authority may ask or may be required by a Member State to ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors. shall ask the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors, providing information regarding the subcontractor including names, contact details and legal representatives. Any changes in the subcontracting chain shall be proposed by the economic operator and agreed by the contracting authority. In the case the proposed change regards also the involvement of a new subcontractor, the main contractor shall indicate its name, contact details and legal representatives Any operators in the subcontracting chain shall ensure the respect of the provisions of this Directive and of the conditions established in the procurement documents and shall guarantee a performance of the duties connected to the contract equivalent to the one defined in the tender.
Amendment 1325 #
Proposal for a directive
Article 71 – paragraph 1 a (new)
Article 71 – paragraph 1 a (new)
1a. Member States shall limit the possibility for a tenderer to subcontract when executing a public contract to a maximum of three or less successive subcontractors. The contracting authorities may establish further limitations to the use of subcontracting, with regard to the number of subcontractors or of successive subcontractors or to the possibility of changes in the subcontracting chain, or may establish that no parts of the contracts shall be subcontracted to third parties.
Amendment 1327 #
Proposal for a directive
Article 71 – paragraph 1 b (new)
Article 71 – paragraph 1 b (new)
1b. The reasons for the use of subcontractors shall be set out in the procurement documents, strictly motivated by technical considerations and not circumvent relevant legislation and obligations which apply where the provision of works, services and supplies takes place;
Amendment 1345 #
Proposal for a directive
Article 71 – paragraph 3
Article 71 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability. main contractor's and subcontractors' liability. Member States shall provide for a system of joint and several liability down the sub- contracting chain. The principal economic operator and any subcontractor involved in doing work on a public contract shall be jointly and severally liable for any liability which arises from the failure by a subcontractor to comply with provisions relating to fundamental rights, health and safety requirements, social rules and standards, employment and working conditions, health and safety at workplace and social security, as set out by EU and national laws, regulations or administrative provisions, collective agreement and contracts, and international labour law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed. Member States may provide for more stringent liability rules under national law.
Amendment 1388 #
Proposal for a directive
Article 73 a (new)
Article 73 a (new)
Article 73a Monitoring of contract performance and register of non-compliance 1. Contracting authorities may monitor the performance of the contractor awarded the contract and, at appropriate stages during the contract term, carry out an assessment of performance using a method that is based on objective and measurable criteria and applied in a systematic, consistent and transparent way. Any performance assessment shall be communicated to the contractor in question, which shall be given the opportunity to object to the findings within a reasonable timeframe and to obtain judicial protection. 2. Where an assessment is carried out in accordance with paragraph 1 and an economic operator or a subcontractor appointed for that contract by the economic operator has been found to have shown significant or persistent deficiencies in the performance of any substantive requirement under the contract and the economic operator has not objected to the findings or the economic operator's objections have not been validated through seeking judicial protection, the contracting authority shall communicate the fact and the necessary detail of the such an assessment to the supervisory and administrative authorities as referred to in Articles 84 and 88. 3. In that case the economic operator shall be inscribed in an official register of non-compliance, managed by the supervisory and administrative authorities as referred to in Articles 84 and 88. 4. Member States shall ensure that contracting authorities can easily consult the official registers of non-compliance and obtain information and assistance with regard to the application of this Article through the assistance provided by supervisory and administrative authorities as mentioned in Articles 84, 87 and 88.
Amendment 1484 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 1 – point f a (new)
Article 84 – paragraph 3 – subparagraph 1 – point f a (new)
(fa) examining reports sent to it by contracting entities intending to follow a negotiated procedure without publication;
Amendment 1485 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 1 – point g a (new)
Article 84 – paragraph 3 – subparagraph 1 – point g a (new)
(ga) management of the official register of non-compliance as laid down in Article 73a.
Amendment 1487 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 3
Article 84 – paragraph 3 – subparagraph 3
Amendment 1550 #
Proposal for a directive
Article 88 – paragraph 1
Article 88 – paragraph 1
1. Member States shall provide mutual assistance to each other, and shall put in place measures for effective cooperation with one another, in order to ensure exchange of information on issues referred to in Articles 40, 41, 42, 55, 57, 59, 60, 61, 63, 69 and 6973a. They shall ensure the confidentiality of the information which they exchange.