53 Amendments of Evelyne GEBHARDT related to 2011/0438(COD)
Amendment 284 #
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 specific mode of provision of servicelife cycle characteristics, such as a specific production process, including for example social and environmental aspects, a specific mode of provision of services, functional or performance requirements aimed at minimising or maximising environmental or social impacts, 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. IThe link to the subject matter rule should be interpreted broadly. Accordingly, 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 tendertechnical specifications and award criteria, characteristics related to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics may onlyfor example concern the protection of health of the staff involved in the production process, gender balance (e.g. equal pay, work-life balance), access to vocational training, users' involvement and consultation, affordability, human rights, ethical trade or the favouring of social integration of disadvantaged persons or members of vulnerable groups (such as long-term unemployed persons, Roma, migrants or younger and older workers) 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 members in their working environment. 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 services22 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 antechnical specifications or award criteriona the organisation, qualification and experience of the staff assigned to performing the contract in question, as this may affect the quality and sustainability of contract performance and, as a result, the economic value of the tender. Contracting authorities may also integrate into technical specifications or award criteria social considerations relating to external social costs directly linked to the life- cycle, such as the impacts of production on the surrounding environment and adjacent communities. Contracting authorities should lay down in the technical specifications obligations relating to social and employment conditions, health and safety in the workplace, social security and working conditions as set out by EU and national laws, regulations or administrative provisions, arbitration awards, 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 should also apply in cross-border situations, where workers from one Member State provide services in another Member State.
Amendment 291 #
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, 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 tenderer cannot provide a sufficient explanation, the contracting authority should be entitled to reject the tender. Rejection should be mandatory in cases where the contracting authority has established that the abnormally low price charged results from non-compliance with mandatory Union legislation in the fields of social, labour or environmental law or international labour law provisionsenvironmental law or with obligations relating to social and employment conditions, health and safety in the workplace, social security and working conditions as set out by EU and national laws, regulations or administrative provisions, arbitration awards, 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.
Amendment 293 #
Proposal for a directive
Recital 43
Recital 43
(43) Contract performance conditions are compatible with this Directive provided that they are not directly or indirectly discriminatory, are linked to the subject- matter of the contract and are indicated in the contract notice, the prior information notice used as a means of calling for competition or the procurement documents. They may, in particular, be intended to favour on-site vocational training, the employment of people experiencing particular difficulty in achieving integration, the fight against unemployment, protection of the environment or animal welfare. For instance, mention may be made, amongst other things, of the requirements — applicable during performance of the contract — to recruit long-term job-seekers or to implement training measures for the unemployed or young persons, to comply in substance with fundamental International Labour Organisation (ILO) Conventions, even where such Conventions have not been implemented in national law, and to recruit more disadvantaged persons than are required under national legislation. As regards obligations relating to social and employment conditions, health and safety in the workplace, social security and working conditions as set out by EU and national laws, regulations or administrative provisions, arbitration awards, 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, contracting authorities should lay down provisions fixing an appropriate level of protection in the contract performance clauses.
Amendment 328 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 1
Article 1 – paragraph 2 – subparagraph 1
2. Procurement within the meaning of this Directive is the purchase or other forms of acquisition of works, supplies or services as referred to in this Directive by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose.
Amendment 342 #
Proposal for a directive
Article 1 a (new)
Article 1 a (new)
Article 1a This Directive does not affect labour law, that is any legal or contractual provision concerning employment conditions, working conditions, including health and safety at work and the relationship between employers and workers, which Member States apply in accordance with national law which respects Community law. Equally, this Directive does not affect the social security legislation of the Member States.
Amendment 343 #
Proposal for a directive
Article 1 b (new)
Article 1 b (new)
Article 1b This Directive does not affect the exercise of fundamental rights as recognised in the Member States and by Community law. Nor does it affect the right to negotiate, conclude and enforce collective agreements and to take industrial action in accordance with national law and practices which respect Community law.
Amendment 344 #
Proposal for a directive
Article 1 c (new)
Article 1 c (new)
Article 1c This Directive does not affect the freedom of Member States to define, in conformity with Community law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to.
Amendment 357 #
Proposal for a directive
Article 2 – paragraph 1 – point 11 a (new)
Article 2 – paragraph 1 – point 11 a (new)
(11a) ‘Service concession’ is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
Amendment 414 #
Proposal for a directive
Article 7 a (new)
Article 7 a (new)
Article 7a This Directive shall not apply to service concessions as referred to in Article 2(1)(11a)(new).
Amendment 415 #
Proposal for a directive
Article 7 b (new)
Article 7 b (new)
Article 7b 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.
Amendment 435 #
Proposal for a directive
Article 10 – paragraph 1 – point d a (new)
Article 10 – paragraph 1 – point d a (new)
(da) financial transactions for the purpose of obtaining finance or capital, investment or financing of public procurement projects;
Amendment 490 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 2
Article 11 – paragraph 1 – subparagraph 2
A contracting authority shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of point (a) of the first subparagraph where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. The above conditions shall be met where a contracting authority awards a public contract to a legal person which it controls jointly with other contracting authorities.
Amendment 499 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
Amendment 544 #
Proposal for a directive
Article 11 – paragraph 4 – point a
Article 11 – paragraph 4 – point a
(a) the agreement establishes a genuine cooperation between the participating contracting authorities aimed at carrying out jointly their public service tasks and involving mutual rights and obligations of the partiesjointly or for each other;
Amendment 548 #
Proposal for a directive
Article 11 – paragraph 4 – point b
Article 11 – paragraph 4 – point b
Amendment 566 #
Proposal for a directive
Article 11 – paragraph 4 – point d
Article 11 – paragraph 4 – point d
Amendment 654 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 3 a (new)
Article 24 – paragraph 1 – subparagraph 3 a (new)
Member States shall provide that contracting authorities must apply the competitive procedure with negotiation or the competitive dialogue when the public contract might imply a transfer of undertaking.
Amendment 671 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 4 – point e a (new)
Article 24 – paragraph 1 – subparagraph 4 – point e a (new)
(ea) due to consultation requirements with employees' representatives for works or services where staff are affected.
Amendment 807 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point c – paragraph 1
Article 30 – paragraph 2 – subparagraph 1 – point c – paragraph 1
This exception only applies when no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
Amendment 898 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 2 - point a and b (new)
Article 40 – paragraph 1 – subparagraph 2 - point a and b (new)
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 as referred to in point (22) of Article 2. Account must also be taken of the following requirements: (a) social criteria such as respect for decent working conditions, health and safety regulation, collective bargaining, gender balance (e.g. equal pay, work-life balance), social inclusion, including employment opportunities for disabled, disadvantaged or vulnerable workers (such as long-term unemployed persons, Roma, migrants or younger and older workers), access to vocational training, user involvement and consultation, affordability, human rights and ethical trade; (b) for service contracts and contracts involving the design of works, the organisation, qualification and experience of staff assigned to performing the contract.
Amendment 903 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 2 a (new)
Article 40 – paragraph 1 – subparagraph 2 a (new)
Obligations relating to social and employment conditions, such as health and safety at workplace, social security and working conditions as set out by EU and national laws, regulations or administrative provisions, arbitration award, 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, shall be clearly set out by contracting authorities in the technical specifications as part of the absolute requirements for the tendering of the contract.
Amendment 914 #
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 environmental characteristics and social 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, including, in accordance with paragraph 1, requirements relating to life cycle characteristics of the requested works, supplies and services, as referred to in point (22a new) of Article 2;
Amendment 1043 #
Proposal for a directive
Article 55 – paragraph 2
Article 55 – paragraph 2
2. Any economic operator shall be excluded from participation in a contract where the contracting authority is aware of a decision having the force of res judicata establishing that it has not fulfilled obligations relating to the payment of taxes or, social security contributions in accordance with the legal provisions of theor any other obligation relating to social and employment conditions, such as health and safety at workplace, social security and working conditions as set out by EU and national laws, regulations or administrative provisions, arbitration award, collective agreement and country in which it is established oacts, 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 wsith those of the Member State of the contractuations, where workers from one Member State provide services ing authoritynother Member State.
Amendment 1055 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – point a a (new)
Article 55 – paragraph 3 – subparagraph 1 – point a a (new)
(aa) A contracting authority shall exclude from participation in a public contract any economic operator if one of the conditions set out in paragraph 1, 2, 2a (new) and points (c) or (d) of paragraph 3 is fulfilled in respect of a subcontractor proposed by the economic operator in accordance with Article 71.
Amendment 1075 #
Proposal for a directive
Article 55 – paragraph 4 – subparagraph 1
Article 55 – paragraph 4 – subparagraph 1
1. Any candidate or, tenderer or subcontractor that is in one of the situations referred to in paragraphs 1, 2 and 3 may provide the contracting authority with evidence demonstrating its reliability despite the existence of the relevant ground for exclusion.
Amendment 1079 #
Proposal for a directive
Article 55 – paragraph 4 – subparagraph 2
Article 55 – paragraph 4 – subparagraph 2
For this purpose, the candidate or, tenderer or subcontractor 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 or subcontractors taking into account the gravity and particular circumstances of the criminal offence or misconduct. Where the contracting authority considers the measures to be insufficient, it shall state the reasons for its decision.
Amendment 1125 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – introductory part
Article 66 – paragraph 1 – subparagraph 1 – introductory part
1. Without prejudice to national laws, regulations or administrative provisions concerning the remuneration of certain services, the criteriaon on which contracting authorities shall base the award of public contracts shall be one of the following:the most economically advantageous and sustainable tender.
Amendment 1139 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point b
Article 66 – paragraph 1 – subparagraph 1 – point b
Amendment 1150 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 2
Article 66 – paragraph 1 – subparagraph 2
Costs mayshall be assessed, on the choice of the contracting authority, on the basis of the price only or using a cost- effectiveness approach, such as a life-cycle costing approach, under the conditions set out in Article 67.
Amendment 1156 #
Proposal for a directive
Article 66 – paragraph 2 – introductory part
Article 66 – paragraph 2 – introductory part
2. The most economically advantageous tender referred to in point (a) of paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject-matter of the public contract in question. Those criteria shall include, in addition to the price or costs referred to in point (b) of paragraph 1, other criteria linked to the subject-matter of the public contract in question, such as:
Amendment 1192 #
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 respect for the right to decent working conditions, health and safety rules, collective bargaining, gender equality (e.g. equal pay, work-life balance), social integration, including employment opportunities for disabled, disadvantaged or vulnerable workers (such as long-term unemployed persons, Roma, migrants or younger and older workers), access to on-site vocational training, user involvement and consultation, affordability, human rights and ethical trade;
Amendment 1197 #
Proposal for a directive
Article 66 – paragraph 3
Article 66 – paragraph 3
Amendment 1202 #
Proposal for a directive
Article 66 – paragraph 4
Article 66 – paragraph 4
4. Award criteria shall not confer an unrebe closely linked to the subject-matter of the contract (including invisible characteristricted freedom of choice on the contracting authority. Ts of products or services, such as life cycle characteristics, as referred to in point (22a new); they shall ensure the possibility of effective and fair 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 1280 #
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 XIenvironmental law or with obligations relating to social and employment conditions, such as health and safety at the workplace, social security and working conditions, as laid down in EU and national laws, regulations or administrative provisions, arbitration rulings, collective agreements and contracts and the international labour law provisions listed in Annex XI, which apply in the place where the work, service or supply is performed (these obligations shall also apply in cross-border situations, in which workers from one Member State provide services in another Member State), or, where not applicable, with other provisions ensuring an equivalent level of protection;
Amendment 1308 #
Proposal for a directive
Article 70
Article 70
Contracting authorities 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 considerationsshall include obligations relating to social and employment conditions, such as health and safety at the workplace, social security and working conditions, as laid down in EU and national laws, regulations or administrative provisions, arbitration award, collective agreement and contracts and the international labour law provisions listed in Annex XI, which 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. 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.
Amendment 1323 #
Proposal for a directive
Article 71 – paragraph 1
Article 71 – paragraph 1
1. In the procurement documents, the contracting authority mayshall ask or mayshall 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 and to give information on their subcontractors, including their names, contact details and legal representatives. Any change in the subcontracting chain and any new subcontractors shall be indicated without delay to the contracting authority, including their names, contact details and legal representatives.
Amendment 1326 #
Proposal for a directive
Article 71 – paragraph 1 a (new)
Article 71 – paragraph 1 a (new)
1a. The reasons for using subcontractors shall be set out in the procurement documents; they should be based on technical considerations and should not be designed to reduce labour costs.
Amendment 1333 #
Proposal for a directive
Article 71 – paragraph 2
Article 71 – paragraph 2
2. Member States mayshall provide that at the request of the subcontractor and where the nature of the contract so allows, the contracting authority shall transfer due payments directly to the subcontractor for services, supplies or works provided to the main contractor. In such case, Member States shall put in place appropriate mechanisms permitting the main contractor to object to undue payments. The arrangements concerning that mode of payment shall be set out in the procurement documents.
Amendment 1343 #
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 liabilityThe main contractor and any intermediate subcontractor may, in addition to or in place of a subcontractor, be directly held liable as a guarantor by the employee and/or common funds or institutions of social partners for any liability which arises from the failure by a subcontractor to comply with provisions relating to social and employment conditions, such as health and safety at the workplace, social security and working conditions, as laid down in EU and national laws, regulations or administrative provisions, arbitration rulings, collective agreements and contracts and the international labour law provisions listed in Annex XI, which 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 being subject to any further conditions, and in particular without the employer being directly at fault.
Amendment 1348 #
Proposal for a directive
Article 71 – paragraph 3 a (new)
Article 71 – paragraph 3 a (new)
3a. A maximum of three undertakings may be involved successively in the performance of a public contract as subcontractors.
Amendment 1386 #
Proposal for a directive
Article 73 a (new)
Article 73 a (new)
Article 73a Member States have wide discretion to organise the choice of the service providers in the way they consider most appropriate; they are free to provide social services and other specific services themselves or to organise their provision in any other way that does not entail the conclusion of public contracts, provided such a system ensures compliance with the basic principles of transparency and non-discrimination.
Amendment 1422 #
Proposal for a directive
Article 75 – paragraph 4
Article 75 – paragraph 4
4. The notices referred to in paragraphs 1 and 2 shall be published in accordance with Article 49.
Amendment 1434 #
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 high quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantaged and vulnerable groups, the involvement and empowerment of users and innovation. Member States may also providshall ensure that the choice of the service provider ishall not be made solely on the basis of the price for the provision of the service but takes into account quality and sustainability criteria for social services as set out above.
Amendment 1436 #
Proposal for a directive
Article 76 – paragraph 2 a (new)
Article 76 – paragraph 2 a (new)
2a. Member States and/or contracting authorities shall ensure that economic operators respect obligations relating to social and employment conditions, such as health and safety at workplace, social security and working conditions as set out by EU and national laws, regulations or administrative provisions, arbitration award, 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; these obligations shall also apply in cross-border situations, where workers from one Member State provide services in another Member State.
Amendment 1439 #
Proposal for a directive
Article 76 – paragraph 2 b (new)
Article 76 – paragraph 2 b (new)
2b. Member States shall ensure that the provisions on subcontracting, as set out in Article 71, are respected.
Amendment 1441 #
Proposal for a directive
Article 76 – paragraph 2 c (new)
Article 76 – paragraph 2 c (new)
2c. Member States shall ensure the application of the exclusion grounds as set out in Article 55.
Amendment 1442 #
Proposal for a directive
Article 76 – paragraph 2 d (new)
Article 76 – paragraph 2 d (new)
2d. When choosing the service provider, Member States may consider using reserved contracts as set out in Article 17.
Amendment 1443 #
Proposal for a directive
Article 76 – paragraph 2 e (new)
Article 76 – paragraph 2 e (new)
2e. Contracting authorities may reserve specific contracts for non-profit organisations which specialise in providing social services, if the basic principles of transparency and equal treatment are respected.
Amendment 1448 #
Proposal for a directive
Article 83 – paragraph 1 a (new)
Article 83 – paragraph 1 a (new)
Where an economic operator or a subcontractor appointed for a contract has been found to have shown significant or persistent deficiencies in the performance of any substantive requirement under the contract, the contracting authority shall communicate the facts and the necessary details to the supervisory and to the administrative authorities mentioned in Articles 84 and 88.
Amendment 1449 #
Proposal for a directive
Article 83 – paragraph 1 b (new)
Article 83 – paragraph 1 b (new)
Member States shall ensure that contracting authorities can easily obtain information and assistance with regard to the application of this Article through the supervisory and administrative authorities provided for in Articles 84 and 88.
Amendment 1459 #
Proposal for a directive
Article 83 a (new)
Article 83 a (new)
Article 83a Register of non-compliance If an economic operator violates the conditions set out in the contract, in particular regarding social and employment protection, working conditions and subcontracting, he shall be inscribed in a register of non-compliance. Appearing in a register of non- compliance shall be an exclusion ground.
Amendment 1476 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 1 – point a
Article 84 – paragraph 3 – subparagraph 1 – point a
(a) monitoring the application of public procurement rules and of the rules on social and employment protection and working conditions by the economic operator awarded the contract and by his subcontractors including the related practice by contracting authorities and in particular by central purchasing bodies;
Amendment 1510 #
Proposal for a directive
Article 85 – paragraph 1 – point e
Article 85 – paragraph 1 – point e
(e) the name of the successful tenderer and the reasons why its tender was selected and, where known, the share of the contract or framework agreement which the successful tenderer intends to subcontract to third parties and information on their subcontractors including their names, contact details and legal representatives;