BETA

37 Amendments of Mikael GUSTAFSSON related to 2011/0439(COD)

Mikael GUSTAFSSON

Proposal for a directive
Recital 5

(5) Under Article 9 of the Treaty on the Functioning of the European Union, the Union must take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health in defining and implementing its policies and activities. Under Article 11 of the Treaty on the Functioning of the European Union, environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development. This Directive clarifies how the contracting ~~entities may~~authorities should contribute to the protection of the environment ~~and the promotion of sustainable development, whilst ensuring that they can obtain the best value for money for their contracts.~~ , social protection and public health and safety and can use their discretionary powers to lay down technical specifications and award criteria conducive to the conclusion of socially and environmentally sustainable public contracts, whilst guaranteeing a link with the subject- matter of the contract and ensuring that they can obtain the best value for money for their contracts. This Directive recognises in particular the right of any Member State to ratify and comply with ILO Convention No. 94.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Recital 19

(19) There is considerable legal uncertainty as to how far cooperation between public authorities should be covered by public procurement rules. The relevant case-law of the Court of Justice of the European Union is interpreted divergently between Member States and even between contracting authorities. As this jurisprudence would be equally applicable to public authorities when operating in the sectors covered by this directive, it is appropriate to ensure that the same rules apply in both this directive and Directive [~~…/…~~.../.../EU][on public procurement]. It is therefore necessary to clarify in what cases contracts concluded between contracting authorities are not subject to the application of public procurement rules. Such clarification should be guided by the principles set out in the relevant case-law of the Court of Justice. However, the application of public procurement rules should not interfere with the freedom of public authorities to decide how to organise the way they carry out their public service tasks. In particular, 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. Contracts awarded to controlled entities or social business, as defined in the Commission communication of 25 October 2011 entitled 'Social Business Initiative', or cooperation for the joint execution of the public service tasks of the participating contracting authorities should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Recital 19 a (new)

(19 a) This Directive ensures the application of Directive 2001/23/EC on the approximation of laws of the Member States relating to the safeguarding or workers' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses in order to ensure the respect of the rules of equal competition and the protection of workers in the context of the transfer of the undertaking.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Recital 33

(33) Electronic means of communication are particularly well suited to support centralised purchasing practices and tools because of the possibility they offer to re- use and automatically process data and to minimise information and transaction costs. The use of such electronic means of communication should therefore~~, as a first step,~~ be rendered compulsory for central purchasing bodies, while also facilitating converging practices across the Union. This should be followed by a general obligation to use electronic means of communication in all procurement procedures after a transition period of two yearscouraged.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Recital 34

(34) Joint awarding of contracts by contracting entities from different Member States currently encounters specific legal difficulties, with special reference to conflicts of national laws. Despite the fact that Directive 2004/17/EC implicitly allowed for cross-border joint public procurement, in practice several national legal systems have explicitly or implicitly rendered cross-border joint procurement legally uncertain or impossible. Contracting entities from different Member States may be interested in cooperating and in jointly awarding contracts in order to derive maximum benefit from the potential of the internal market in terms of economies of scale and risk-benefit sharing, not least for innovative projects involving a greater amount of risk than reasonably bearable by a single contracting entity. Therefore new rules on cross-border joint procurement designating the applicable law should be established in order to facilitate cooperation between contracting entities across the Single Market. In addition, contracting entities from different Member States may set up joint legal bodies established under national or Union law. Specific rules should be established for such form of joint procurement.deleted

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Recital 36

(36) Contracting entities that wish to purchase works, supplies or services with specific environmental, social or other characteristics should be able to refer to particular labels, such as the European Eco-label, (multi-) national eco-labels or any other label provided that the requirements for the label are linked to the subject-matter of the contract, such as the description of the product and its presentation, including packaging requirements and the production process. It is furthermore essential that those requirements are drawn up and adopted on the basis of objectively verifiable criteria, using a procedure in which stakeholders, such as government bodies, consumers, manufacturers, distributors, trade unions and environmental organisations can participate, and that the label is accessible and available to all interested parties.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Recital 57

(57) The evaluation has shown that Member States do not consistently and systematically monitor the implementation and ~~the~~ functioning of public procurement rules. This has a negative impact on the correct implementation of provisions stemming from thoese directives, which is a major source of cost and uncertainty. ~~Several~~ Member States have appointed a national central body dealing with public procurement issues, but the functions that such bodies are empowered with vary considerably across Member States. Clearer, more consistent and authoritative monitoring and control mechanisms would increase knowledge of the functioning of procurement rules, legal certainty for businesses and contracting entities, and contribute to establish a level playing field. Such mechanisms could serve as tools for detection and early resolution of problems, especially with regard to projects cofunded by the Union, and for the identification of structural deficiencies. There is in particular a strong need to coordinate those mechanisms to ensure consistent application, controlsshould therefore step up their monitoring efforts and in the case of uncertainties they should not hesitate to ask the Commission for clarification. Moreover, the European Commission should report annually on the need for clarifications, on new jurisprudence of the European Court of Justice, and mon~~itoring of public procurement policy, as well as systematic assessment of the outcomes of procurement policy across the Union~~ frequently heard complaints concerning the implementation of this Directive.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Recital 61

(61) Effective cooperation is necessary to ensure consistent advice and practice within each Member State and across the Union. Bodies designated for monitoring, implementation, control and technical assistance should be able to share information and cooperate; in the same context, the national authority designated by each Member State should act as the preferred contact point with the Commission services for the purpose of collecting data, exchanging information and monitoring the implementation of Union public procurement law.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Recital 63

(63) It is of particular importance that the Commission carryies out appropriate consultations ~~during its preparatory work, including at expert level~~with all stakeholders, including SME-, environmental-, and consumer organisations and trade unions. When preparing and drawing up delegated acts, the Commission should ensure simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and the Council.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 13 – paragraph 9

9. Contracting entities may award contracts for individual lots without applying the procedures provided for under this Directive, provided that the estimated value net of VAT of the lot concerned is less than EUR 8160 000 for supplies or services or EUR 12 million for works. However, the aggregate value of the lots thus awarded without applying this Directive shall not exceed 20 % of the aggregate value of all the lots into which the proposed work, the proposed acquisition of similar supplies or the proposed purchase of services has been divided.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 19 – paragraph 1 – point b

(b) arbitration and conciliation services; and any of the following legal services: (i) legal representation of a client in judicial proceedings before courts, tribunals or public authorities by a lawyer within the meaning of Article 1 of Directive 77/249/EEC; (ii) document certification services which must be provided by notaries; (iii) legal services provided by trustees, appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned; (iv) other legal services which in the Member State concerned are connected with the exercise of official authority.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 19 – paragraph 1 a (new)

This Directive shall not apply to public service contracts awarded by a contracting authority to another contracting authority or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a published law, regulation or administrative provision which is compatible with the Treaty on the Functioning of the European Union.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 32 – paragraph 2 a (new)

2a. This Article shall not prevent public disclosure of concluded contracts, including any subsequent changes.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 34 – paragraph 1

Member States shall ~~ensure that, at the latest 2 years after the date provided for in Article 101(1), all procurement procedures under this Directive are performed using~~take all necessary steps to facilitate the use of electronic means of communication, in particular e- submission, for all procurement procedures under this Directive, in accordance with the requirements of this Article.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 36 a (new)

Article 36 a Protection of whistleblowers Contracting entities shall have in place internal whistleblowing procedures for staff to ensure that: (a) any staff member (including temporary and contract workers, interns and consultants) who makes a good-faith disclosure regarding any type of material wrongdoing is protected from any and all forms of retaliation, harassment or deleterious actions; (b) the confidentiality of whistleblowers is maintained unless explicitly waived by them; (c) adequate mechanisms are made available for disclosures to be made, such as helplines and online forms; (d) a whistleblower who has been retaliated against has the right to a fair hearing before an impartial forum and shall be fully compensated; those who commit retaliation shall be duly sanctioned; (e) disclosures are properly investigated and corrective action taken (if appropriate), and that whistleblowers have the option to participate in these procedures; (f) managers must prove that any actions taken against a whistleblower were motivated by reasons other than the whistleblowing; (g) inaccurate disclosures, if made in good faith, are protected; disclosures shown to be made in bad faith are not protected; (h) management and staff are adequately trained in whistleblower rights, policies and procedures; (i) whistleblower policies are monitored and evaluated at regular intervals by independent bodies and (j) external whistleblowing to elected officials, NGOs, the media and other appropriate parties is protected if internal channels do not function or do not exist.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 43

Article 43 Innovation partnership 1. Member States may provide that contracting entities may apply innovation partnerships as regulated in this Directive. Member States may decide not to transpose into their national law innovation partnerships or to restrict the use of it to certain types of procurement. In innovation partnerships, any economic operator may submit a request to participate in response to a call for competition in accordance with points (b) and (c) of Article 39(2) with a view to establishing a structured partnership for the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works, provided that they correspond to the agreed performance levels and costs. 2. The partnership shall be structured in successive stages following the sequence of steps in the research and innovation process, possibly up to the manufacturing of the supply or the provision of the services. It shall provide for intermediate targets to be attained by the partner and provide for payment of the remuneration in appropriate instalments. Based on those targets, the contracting entity can decide after each stage to terminate the partnership and launch a new procurement procedure for the remaining phases, provided that it has acquired the relevant intellectual property rights. 3. The contract shall be awarded in accordance with the rules for a negotiated procedure with prior call for competition set out in Article 42. In selecting candidates, contracting entities shall pay particular attention to criteria concerning the tenderers’ capacity and experience in the field of research and development or of developing innovative solutions. They may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 72(2). Only those economic operators invited by the contracting entity following its assessment of the requested information may submit research and innovation projects, aimed at meeting the needs identified by the contracting entity that cannot be met by existing solutions. The contract shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 76 (1)(a). 4. The structure of the partnership and, in particular the duration and value of the different phases shall reflect the degree of innovation of the proposed solution and the sequence of the research and innovation activities required for the development of an innovative solution not yet available on the market. The value and duration of a contract for the purchase of the resulting supply, service or works shall remain within appropriate limits, taking into account the need to recover the costs, including those incurred in developing an innovative solution, and to achieve an adequate profit. Contracting entities shall not use innovation partnerships in such a way as to prevent, restrict or distort competition.deleted

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 44 – paragraph 1 – point d – point i

(i) the absence of competition for technical or legal reasons;

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 45 – paragraph 5 a (new)

5 a. Contracting entities have the possibility to add new economic operators to the framework agreement during the term of the contract, provided that these economic operators meet all the criteria set in this article, and did not exist yet at the time of the conclusion of the agreement. Contracting entities have the possibility to remove economic operators from the framework agreement during the term of the contract, where the economic operator has shown significant or persistent deficiencies in the performance of any substantive requirement under the agreement.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 46 – paragraph 6 – introductory part

6. Contracting entities shall indicate the duration of the dynamic purchasing system in the call for competition. ~~They shall notify the Commission of any change in duration, using the following standard forms:~~

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 47 – paragraph 1 – subparagraph 1

Contracting entities may use electronic auctions in which new prices, revised downwards, and/or new values concerning certain elements of tenders are presented. Electronic auctions can only be used for commonly used purchases of goods that are generally available on the market at a more or less standardised quality. They cannot be used for the purchase of services or complex or non standardised products.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 47 – paragraph 6 – subparagraph 1

~~Where the contract is to be awarded on the basis of the most economically advantageous tender, t~~The invitation shall be accompanied by the outcome of a full evaluation of the relevant tender carried out in accordance with the weighting provided for in the first subparagraph of Article 76(5).

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 52

Article 52 Joint procurement between contracting entities from different Member States 1. Without prejudice to Title I, Chapter III, Section 2, Subsection 2: Special relations, contracting entities from different Member States may jointly award contracts by using one of the means described in this Article. 2. Several contracting entities may purchase works, supplies and/or services from or through a central purchasing body located in another Member State. In that case, the procurement procedure shall be conducted in accordance with the national provisions of the Member State where the central purchasing body is located. 3. Several contracting entities from different Member States may jointly award a contract. In that case, the participating contracting entities shall conclude an agreement that determines (a) which national provisions shall apply to the procurement procedure; (b) the internal organisation of the procurement procedure, including the management of the procedure, the sharing of responsibilities, the distribution of the works, supplies or services to be procured, and the conclusion of contracts. When determining the applicable national law in accordance with point (a), contracting entities may choose the national provisions of any Member State in which at least one of the participating entities is located. 4. Where several contracting entities from different Member States have set up a joint legal entity, including European Groupings of territorial cooperation under Regulation (EC) No° 1082/2006 of the European Parliament and of the Council1 or other entities established under Union law, the participating contracting entities shall, by a decision of the competent body of the joint legal entity, agree on the applicable national procurement rules of one of the following Member States: (a) the national provisions of the Member State where the joint legal entity has its registered office; (b) the national provisions of the Member State where the joint legal entity is carrying out its activities. 1 OJ L 210 of 31.7.2006, p. 19 This agreement may either apply for an undetermined period, when fixed in the constitutive act of the joint legal entity, or may be limited to a certain period of time, certain types of contracts or to one or more individual contract awards. 5. In the absence of an agreement determining the applicable public procurement law, the national legislation governing the contract award shall be determined following the rules set out below: (a) where the procedure is conducted or managed by one participating contracting entity on behalf of the others, the national provisions of the Member State of that contracting entity shall apply; (b) where the procedure is not conducted or managed by one participating contracting entity on behalf of the others, and (i) concerns a works contract, contracting entities shall apply the national provisions of the Member State where most of the works are located; (ii) concerns a service or supply contract, contracting entities shall apply the national provisions of the Member State where the major part of the services or supplies is provided; (c) where it is not possible to determine the applicable national law pursuant to points (a) or (b), contracting entities shall apply the national provisions of the Member State of the contracting entity which bears the biggest share of the costs. 6. In the absence of an agreement determining the applicable public procurement law under paragraph 4, the national legislation governing procurement procedures conducted by joint legal entities set up by several contracting entities from different Member States shall be determined following the following rules: (a) where the procedure is conducted or managed by the competent organ of the joint legal entity, the national provisions of the Member State where the legal entity has its registered office shall apply; (b) where the procedure is conducted or managed by a member of the legal entity on behalf of that legal entity, the rules set out in points (a) and (b)of paragraph 5 shall apply; (c) where it is not possible to determine the applicable national law pursuant to points (a) or (b) of paragraph 5, the contracting entities shall apply the national provisions of the Member State where the legal entity has its registered office. 7. One or more contracting entities may award individual contracts under a framework agreement concluded by or jointly with a contracting entity located in another Member State, provided that the framework agreement contains specific provisions enabling the respective contracting entity or entities to award the individual contracts. 8. Decisions on the award of contracts in cross-border public procurement shall be subject to the ordinary review mechanisms available under the national law applicable. 9. In order to enable the effective operation of review mechanisms, Member States shall ensure that the decisions of review bodies within the meaning of Council Directive 92/13/EEC1 located in other Member States are fully executed in their domestic legal order, where such decisions involve contracting entities 1 OJ L 76, 23.03.1992, p. 14. established on their territory participating in the relevant cross-border public procurement procedure.deleted

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 54 – paragraph 1 a (new)

1a. Technical specifications may also include requirements relating to: a) Employment conditions, organisation, qualification and experience of staff assigned to performing the contract in question;

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 54 – paragraph 4

4. ~~Unless~~On an exceptional basis, and only when justified by the subject-matter of the contract, technical specifications ~~shall not~~may refer to a specific make or source, or to a particular process, ~~or to trade marks, patents,~~ types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted, on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraph 3 is not possible. Such reference shall be accompanied by the words ‘'or equivalent’'.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 54 – paragraph 6 – subparagraph 2 a (new)

Contracting authorities must be able to control and follow up that the requirements are fulfilled, during the tendering process as well as during the performance of the contract.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 55 – paragraph 1 – subparagraph 1 – point c

(c) the labels are established in an open and transparent procedure in which all stakeholders, including government bodies, consumers, trade unions, manufacturers, distributors and environmental organisations may participate,

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2

Contracting entities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the label indicated by the contracting entities. ~~For products that do not bear the label, contracting entities shall also accept a technical dossier of the manufacturer or other appropriate means of proof.~~

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 56 – paragraph 2

2. Contracting entities shall accept other appropriate means of proof than those referred to in paragraph 1, such as a technical dossier of the manufacturer where the economic operator concerned has no access to such certificates or test reports referred to in paragraph 1, or no possibility of obtaining them within the relevant time limits.deleted

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 58 – paragraph 1 – subparagraph 2

Contracting entities shall indicate in the specifications whether or not they authorise variants and, if so, the minimum requirements to be met by the variants and any specific requirements for their presentation. Where variants are authorised, they shall also ensure that the chosen award criteria can be usefully applied to variants meeting those minimum requirements as well as to conforming tenders which are not variants.deleted

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 58 – paragraph 2

2. In procedures for awarding supply or service contracts, contracting entities that have authorised variants shall not reject a variant on the sole ground that it would, where successful, lead either to a service contract rather than a supply contract or to a supply contract rather than a service contract.deleted

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 59 – paragraph 3 – subparagraph 1

~~Where more than one lot may be awarded to the same tenderer, contracting entities may provide that they will either award a contract per lot or one or more contracts, covering several or all lots.~~deleted

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 59 – paragraph 3 – subparagraph 2

~~Contracting entities shall specify in the procurement documents whether they reserve the right to make such a choice and, if so, which lots may be grouped together under one contract.~~deleted

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 59 – paragraph 3 – subparagraph 3

Contracting entities shall first determine the tenders fulfilling best the award criteria set out pursuant to Article 76 for each individual lot. They may award a contract for more than one lot to a tenderer that is not ranked first in respect of all individual lots covered by this contract, provided that the award criteria set out pursuant to Article 76 are better fulfilled with regard to all the lots covered by that contract. Contracting entities shall specify the methods they intend to use for such comparison in the procurement documents. Such methods shall be transparent, objective and non- discriminatory.deleted

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 70 – paragraph 7

~~7. The Commission shall be empowered to adopt~~ delegated ~~acts in accordance with Article 98 to amend the list in Annex XIV, where necessary due to the conclusion of new international agreements or modification of existing international agreements.~~

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 80

Contracting entities may lay down special conditions relating to the performance of a contract, provided that they are indicated in the call for competition or in the specifications. Those conditions may, in ~~particular, concern social and environmental consid~~clude social and environmental considerations, and may also include social and employment protection and working conditions applying in the place where the work, service or supply is to be performed as set out by national legislation and/or collective agreements or internationsal labour law provisions listed in Annex XIV. They may also include the requirement that economic operators foresee compensations for risks of price increases that are the result of price fluctuations (hedging) and that could substantially impact the performance of a contract.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 89 – paragraph 2 – subparagraph 3

WThe~~re release of~~ information on the outcome of the contest would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of a particular economic operator, public or private, including the interests of the economic operator to whom the contract has been awarded, or might prejudice fair competition between economic operators, such information may be withheld from publicationill be released, unless the release would impede law enforcement or be contrary to the public interest.

2012/09/03
Committee: IMCO

Mikael GUSTAFSSON

Proposal for a directive
Article 92 a (new)

Article 92a Register of non-compliance 1. If an economic operator violates the conditions set out in the contract, in particular regarding social and employment protection and working conditions and subcontracting, it shall be inscribed in a register of non-compliance of public procurement rules. 2. The register of non-compliance shall be processed and updated regularly by the supervisory and administrative authorities mentioned in Article 93. Contracting entities shall have the right and the obligation to consult the register before awarding a public contract.

2012/09/03
Committee: IMCO