44 Amendments of Evelyne GEBHARDT related to 2011/0439(COD)
Amendment 207 #
Proposal for a directive
Recital 47
Recital 47
(47) Furthermore, in technical specifications and in award criteria, contracting entauthorities 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 rule concerning the link to the subject- matter 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 only, for example, concern the protection of health of the staff involved in the production process, gender equality (e.g. equal pay, work-life balance), access to vocational training, user 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 young 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 services 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 free to use as technical specifications or award criteria the organisation, qualifications 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 impact 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 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 XIV, which 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 210 #
Proposal for a directive
Recital 49
Recital 49
(49) 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 entauthorities 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 entauthority should be entitled to reject the tender. Rejection should be mandatory in cases where the contracting entauthority has established that the abnormally low price indicated results from non- compliance with mandatory Union legislation in the fields of social, labour or environmental law or international labour law provisionsUnion environmental law or with obligations relating to social and employment conditions, 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 XIV, which 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 211 #
Proposal for a directive
Recital 50
Recital 50
(50) 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 notice used to make theprior information notice used as a means of calling for competition, or in 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 examplinstance, mention may be made, amongst other things, of the requirements – applicable during the performance of the contract – to recruit long- term job-seekers or to implement training measures for the unemployed or for 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 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 XIV, which apply in the place where the work, service or supply is performed, contracting authorities should lay down in the contract performance clauses provisions setting an appropriate level of protection.
Amendment 235 #
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 within the meaning of this Directive by one or more contracting entauthorities from economic operators chosen by those contracting entauthorities, provided thawhether or not the works, supplies or services are intended for the pursuit of one of the activities referred to in Articles 5 to 11a public purpose.
Amendment 242 #
Proposal for a directive
Article 1 a (new)
Article 1 a (new)
Article 1a This Directive shall not affect labour law, that is any legal or contractual provision concerning employment conditions, working conditions, including health and safety at the workplace and relations between employers and employees which Member States apply in accordance with national law and in a manner consistent with Union law. This Directive shall likewise not affect Member States’ social security laws.
Amendment 243 #
Proposal for a directive
Article 1 b (new)
Article 1 b (new)
Article 1b This Directive shall not affect the exercise of fundamental rights as recognised in the Member States and by Union law. It shall likewise not affect the right to negotiate, conclude and enforce collective agreements and to take industrial action, in accordance with national law and practices which are consistent with Union law.
Amendment 244 #
Proposal for a directive
Article 1 c (new)
Article 1 c (new)
Article 1c This Directive shall not affect the freedom of Member States to define, in conformity with Union law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with State aid rules, and what specific obligations they should be subject to.
Amendment 318 #
Proposal for a directive
Article 19 – paragraph 1 – point c a (new)
Article 19 – paragraph 1 – point c a (new)
(ca) transactions to enable contracting authorities to raise money or capital, make investments or finance procurement;
Amendment 357 #
Proposal for a directive
Article 21 – paragraph 3
Article 21 – paragraph 3
Amendment 386 #
Proposal for a directive
Article 21 – paragraph 4 – point a
Article 21 – paragraph 4 – point a
(a) the agreement establishes a genuine co- operation between the participating contracting authorities aimed at carrying out jointly their public service tasks and involving mutual rights and obligations of the partieor on each other’s behalf their public service tasks;
Amendment 389 #
Proposal for a directive
Article 21 – paragraph 4 – point b
Article 21 – paragraph 4 – point b
Amendment 401 #
Proposal for a directive
Article 21 – paragraph 4 – point d
Article 21 – paragraph 4 – point d
Amendment 492 #
Proposal for a directive
Article 39 – paragraph 1 – subparagraph 2 a (new)
Article 39 – paragraph 1 – subparagraph 2 a (new)
Member States shall provide that contracting authorities must apply the competitive procedure with negotiation or competitive dialogue if the public contract might lead to a transfer of undertaking.
Amendment 522 #
Proposal for a directive
Article 44 – paragraph 1 – point d – paragraph 1
Article 44 – paragraph 1 – point d – 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 594 #
Proposal for a directive
Article 54 – paragraph 1 – subparagraph 2 point a, b and c (new)
Article 54 – paragraph 1 – subparagraph 2 point a, b and c (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. The following shall also be taken into account as technical specifications: (a) social criteria, such as respect for the right to decent working conditions, compliance with 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 young and older workers), access to vocational training and user involvement and consultation; (b) social considerations relating to the external social costs directly linked to the life cycle, such as the impact of production on the surrounding environment and adjacent communities; (c) for service contracts and contracts involving the design of works, the organisation, qualifications and experience of the staff assigned to performing the contract.
Amendment 599 #
Proposal for a directive
Article 54 – paragraph 1 – point 1 (new)
Article 54 – paragraph 1 – point 1 (new)
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 XIV, which 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 mandatory requirements governing the award of the contract.
Amendment 602 #
Proposal for a directive
Article 54 – paragraph 3 – point a
Article 54 – paragraph 3 – point a
(a) in terms of performance or functional requirements, including environmental 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 entauthorities to award the contract, including in accordance with the requirements concerning the life-cycle characteristics of the requested works, supplies or services;
Amendment 703 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – introductory part
Article 76 – paragraph 1 – subparagraph 1 – introductory part
Without prejudice to national laws, regulations or administrative provisions concerning the remuneration of certain services, the criteriaon on which contracting entauthorities shall base the award of contracts shall be one of the following:the most economically advantageous and sustainable tender.
Amendment 711 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point b
Article 76 – paragraph 1 – subparagraph 1 – point b
Amendment 718 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 2
Article 76 – paragraph 1 – subparagraph 2
Costs mayshall be assessed, at the choice of the contracting entity, on the basis of the price only or using a cost- effectiveness approach, such as a life-cycle costing approach, underin accordance with the conditions set out in Article 77.
Amendment 722 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 1
Article 76 – paragraph 2 – subparagraph 1
The most economically advantageous tender referred to in point (a) of paragraph 1) from the point of view of the contracting entauthority shall be identified on the basis of criteria linked to the subject-matter of the public contract in question.
Amendment 726 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – introductory part
Article 76 – paragraph 2 – subparagraph 2 – introductory part
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 741 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point d a (new)
Article 76 – paragraph 2 – subparagraph 2 – point d a (new)
(da) social criteria, such as respect for the right to decent working conditions, compliance with 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 744 #
Proposal for a directive
Article 76 – paragraph 3
Article 76 – paragraph 3
Amendment 746 #
Proposal for a directive
Article 76 – paragraph 4
Article 76 – paragraph 4
4. Award criteria shall not confer an unrestricted freedom of choice on the contracting entity. Tbe linked to the subject-matter of the contract (this shall not exclude invisible product or service characteristics, such as life-cycle characteristics); they shall ensure the possibility of effective and fair competition and shall be accompanied by requirements whichthat allow the information provided by the tenderers to be effectively verified. Contracting entauthorities shall verify effectively, on the basis of the information and proof provided by the tenderers, whether the tenders meet the award criteria.
Amendment 799 #
Proposal for a directive
Article 79 – paragraph 3 – point d
Article 79 – 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 XIVenvironmental 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 XIV, 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 821 #
Proposal for a directive
Article 80
Article 80
Contracting entauthorities 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 compliance 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 XIV, 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 827 #
Proposal for a directive
Article 81 – paragraph 1
Article 81 – paragraph 1
1. In the procurement documents, the contracting entity mayauthority shall 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 the subcontractors, including their names, contact details and legal representatives. Any change in the subcontracting chain and details of any new subcontractors, including their names, contact details and legal representatives, shall be indicated without delay to the contracting authority.
Amendment 829 #
Proposal for a directive
Article 81 – paragraph 1 a (new)
Article 81 – 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 not be designed to reduce labour costs.
Amendment 837 #
Proposal for a directive
Article 81 – paragraph 2
Article 81 – 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 entauthority 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 841 #
Proposal for a directive
Article 81 – paragraph 3
Article 81 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability. The main contractor and any intermediate subcontractor may, in addition to or in place of a subcontractor, be held directly 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 XIV, 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 provision shall apply without being subject to any further conditions, and in particular without the employer being directly at fault.
Amendment 846 #
Proposal for a directive
Article 81 – paragraph 3 a (new)
Article 81 – paragraph 3 a (new)
3a. A maximum of three undertakings may be involved successively in the performance of a public contract as subcontractors.
Amendment 891 #
Proposal for a directive
Article 83 – paragraph 1 a (new)
Article 83 – paragraph 1 a (new)
Member States shall enjoy a broad measure of discretion when it comes to organising the selection of service providers in the manner they regard as most appropriate; they shall be free to provide social or other specific services themselves or to organise their provision in another way which does not involve the conclusion of public contracts, provided that the arrangements are consistent with the basic principles of transparency and non-discrimination.
Amendment 910 #
Proposal for a directive
Article 86 – paragraph 2
Article 86 – paragraph 2
2. Member States shall ensure that contracting entauthorities 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 alsoshall 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, but shall take into account the quality and sustainability criteria for social services set out above.
Amendment 912 #
Proposal for a directive
Article 86 – paragraph 2 a (new)
Article 86 – paragraph 2 a (new)
Amendment 913 #
Proposal for a directive
Article 86 – paragraph 2 b (new)
Article 86 – paragraph 2 b (new)
2b. Member States shall ensure that the provisions on subcontracting, as set out in Article 81, are observed.
Amendment 914 #
Proposal for a directive
Article 86 – paragraph 2 c (new)
Article 86 – paragraph 2 c (new)
2c. When choosing the service provider, Member States may consider using reserved contracts in accordance with Article 31.
Amendment 915 #
Proposal for a directive
Article 86 – paragraph 2 d (new)
Article 86 – paragraph 2 d (new)
2d. Contracting authorities may reserve specific contracts for non-profit-making organisations which specialise in providing social services, provided that the basic principles of transparency and equal treatment are observed.
Amendment 916 #
Proposal for a directive
Article 86 – paragraph 2 e (new)
Article 86 – paragraph 2 e (new)
2e. Member States shall ensure that the grounds for exclusion set out in Article 55 of Directive 2004/18/EC are applied.
Amendment 920 #
Proposal for a directive
Article 92 – paragraph 1 a (new)
Article 92 – paragraph 1 a (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 Article 93 and 97.
Amendment 927 #
Proposal for a directive
Article 92 a (new)
Article 92 a (new)
Article 92a 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 referred to in Articles 93 and 97.
Amendment 929 #
Proposal for a directive
Article 92 b (new)
Article 92 b (new)
Article 92b Non-compliance register If an economic operator breaches the conditions set out in the contract, in particular regarding social and employment protection, working conditions and subcontracting, its name shall be entered in a non-compliance register. Inclusion in a non-compliance register shall be a ground for exclusion.
Amendment 938 #
Proposal for a directive
Article 93 – paragraph 3 – subparagraph 1 – point a
Article 93 – paragraph 3 – subparagraph 1 – point a
(a) monitoring the correct application of public procurement rules and of the related practice by contracting entules on social and employment protection and working conditions by the economic operator awarded the contract and by its subcontractors, including the related practice by contracting authorities and in particular by central purchasing bodies;
Amendment 955 #
Proposal for a directive
Article 94 – paragraph 1 – subparagraph 2
Article 94 – paragraph 1 – subparagraph 2
Contracting entities shall document the progress of all procurement procedures, whether or not the procedures are conducted by electronic means. To that end, they shall document all stages in the procurement procedure, including all communications with economic operators and internal deliberations, preparation of the tenders, dialogue or negotiation if any, selection and award of the contract, the name of the successful tenderer and the reasons for choosing its tender and - if known - the proportion of the contract or of the framework agreement which the successful tenderer plans to subcontract, and information concerning the subcontractors, including their names, addresses and legal representatives.