[ParlTrack]

Proposal for a directive
Recital 8 a (new)

(8a) The objectives of improving the access of EU economic operators to the public procurement markets of certain third countries protected by restrictive procurement measures and preserving equal conditions of competition within the European Single Market require that the treatment of third-country works, supplies and services not covered by the international commitments of the Union be harmonised throughout the European Union.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Recital 8 b (new)

(8b) Contracting authorities shall exclude from procedures for the award of contracts any works, supplies and services that are not covered by the international commitments of the Union. In the interests of transparency, contracting authorities that intend to exercise this competence, in accordance with this directive, to exclude from procedures for the award of contracts any tenders that include products, works, supplies and services originating from outside the EU and in respect of which the value of the products, works, supplies and services not covered exceeds 50 % of the total value of these products, works, supplies and services, should inform the economic operators of this intention.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Recital 10

(10) The results of the Evaluation on the Impact and Effectiveness of EU Public Procurement Legislation16 demonstrated that the exclusion of certain services from the full application of the Directive should be reviewed. As a result, the full application of this directive is extended to a number of services ~~(such as hotel and legal services, which both showed a particularly high percentage of cross- border trade)~~, with the exception of legal services and mandatory social protection services. This Directive will not, however, affect the right of contracting authorities to manage social services as they see fit.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Recital 14

(14) 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. 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. The sole fact that both parties to an agreement are themselves contracting authorities does not as such rule out the application of procurement rules. 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. Contracts awarded to controlled entities 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. This directive should aim to ensure that any exempted public-public cooperation does not cause a distortion of competition in relation to private economic operators. Neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Recital 16

(16) For the same reasons, contracting authorities should be free to use the competitive dialogue. The use of this procedure has significantly increased in terms of contract values over the last years. It has shown itself to be of use in cases where contracting authorities are unable to define the means of satisfying their needs or of assessing what the market can offer in terms of technical, financial or legal solutions. This situation may arise in particular with innovative projects, the implementation of major integrated transport infrastructure projects, large computer networks or projects involving complex and structured financing.deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Recital 17

(17) Research and innovation, including eco-innovation and social innovation, are among the main drivers of future growth and have been put at the centre of the Europe 2020 strategy for smart, sustainable and inclusive growth. Public authorities should make the best strategic use of public procurement to spur innovation. Buying innovative goods and services plays a key role in improving the efficiency and quality of public services while addressing major societal challenges. It contributes to achieving best value for public money as well as wider economic, environmental and societal benefits in terms of generating new ideas, translating them into innovative products and services and thus promoting sustainable economic growth. This directive should contribute to facilitating public procurement of innovation and help Member States in achieving the Innovation Union targets. A specific procurement procedure should therefore be provided for which allows contracting authorities to establish a long-term innovation partnership for the development and subsequent purchase of a new, innovative product, service or works provided it can be delivered to agreed performance levels and costs. The partnership should be structured in such a way that it can provide the necessary ‘market-pull’, incentivising the development of an innovative solution without foreclosing the market.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Recital 37

(37) Contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment. These criteria should guarantee that tenders are assessed in conditions of effective competition, also where contracting authorities require high-quality works, supplies and services that are optimally suited to their needs, for instance where the chosen award criteria include factors linked to the production process. As a result, contracting authorities should be allowed to adopt as award criteria ~~either~~ ‘the most economically advantageous tender’ ~~or ‘the lowest cost’~~, taking into account that in the latter case they are free to set adequate quality standards by using technical specifications or contract performance conditions.

2012/07/12
Committee: IMCO

Sergio Gaetano COFFERATI, Marc TARABELLA

Proposal for a directive
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.

2012/07/12
Committee: IMCO

Sergio Gaetano COFFERATI, Marc TARABELLA

Proposal for a directive
Recital 48 a (new)

(48 a) Contracting authorities should respect the delay of payment as established in Directive 2011/7/EU.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 2 – paragraph 1 – point 8 – point c

(c) the realisation~~, by whatever means,~~ of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work;

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 2 – paragraph 1 – point 12

(12) ‘economic operator’ means any public or private natural or legal person or ~~public entity or~~any group of such persons and/or entities which offers the execution of works and/or a work, the supply of products or the provision of services on the market;

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 2 – paragraph 1 – point 23 a (new)

(23a) ‘non-covered goods, works, supplies or services’ means goods, works, supplies or services originating in a country with which the Union has not concluded an international agreement in the field of public procurement, including market access commitments, or goods, works, supplies or services originating in a country with which the Union has concluded such an agreement, but in respect of which the relevant agreement does not apply;

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 10 – paragraph 1 – point c

(c) arbitration and conciliation services and the services of lawyers in the form of legal representation;

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 10 – paragraph 1 – point e

(e) employment contracts and mandatory social protection arrangements;

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – introductory part

1. The establishment of a wholly public structure to manage services of general economic interest or social services shall be a public authority prerogative falling within the exclusive sphere of competence of Member States. A contract awarded by a contracting authority to another legal person shall fall outside the scope of this Directive where the following cumulative conditions are fulfilled:

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point b

~~(b) at least 90 % of the activities of that legal person are carried out for the controlling contracting authority or for other legal persons controlled by that contracting authority;~~deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point b

~~(b) at least 90 % of the activities of that legal person are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities;~~deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2 – point c

~~(c) the controlled legal person does not pursue any interests which are distinct from that of the public authorities affiliated to it;~~deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 11 – paragraph 4 – point c

~~(c) the participating contracting authorities do not perform on the open market more than 10 % in terms of turnover of the activities which are relevant in the context of the agreement;~~deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 15 – paragraph 2

~~The design of the procurement shall not be made with the objective of excluding it from the scope of this Directive or of artificially narrowing competition.~~deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2

The notion of conflict of interests shall ~~at least~~ cover any situation where the categories of persons referred to in paragraph 2 have, directly or indirectly, a private interest in the outcome of the procurement procedure, which may be perceived to impair the impartial and objective performance of their duties.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 21 – paragraph 1 – subparagraph 3

~~For the purposes of this Article, ‘private int~~‘Private interests’ shall be underests’ood to means any ~~family, emotional life, economic, political or other shared interests with the candidates or the tenderers, including conflicting professional interes~~property or financial shared interests with the candidates or the tenderers or advantages stemming from direct financial payments linked to employment, an employment contract, investments and involvement in activities supported under the contracts.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 21 – paragraph 2 – point b

(b) the chairperson of the contracting authority and members of decision- making bodies of the contracting authority who, without necessarily being involved in the conduct of the procurement procedure, may nevertheless influence the outcome of that procedure.deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Title 1 – chapter 2 a (new)

CHAPTER IIa Rules on reciprocity Article 22a Exclusion by contracting authorities of tenders involving products and services which are not covered by an international agreement 1. In keeping with the provisions of this Article, contracting authorities shall assess whether tenders involving works, supplies or services originating in third countries which are not bound by an international agreement should be excluded from public procurement procedures if the value of the non-covered works, supplies or services represents more than 50 % of the overall value of the works, supplies or services making up the tender. A tender originating in a third country which is not bound by an international agreement shall automatically be rejected if the price is 30 % lower than the average price or cost of the other tenders. 2. Contracting authorities may require tenderers to provide information about the origin of the works, supplies and services contained in the tender and about their value. They shall accept declarations on the tenderer’s honour as provisional grounds for not excluding a tender pursuant to paragraph 1. A contracting authority may at any stage of the procedure ask a tenderer to submit all or some of the required documents where this appears necessary to ensure the proper conduct of the procedure. If contracting authorities receive tenders which they plan to exclude in accordance with the provisions of paragraph 1, they shall notify the Commission. They may continue their assessment of the tenders during the notification procedure. The notification shall be forwarded electronically, using a standard form. The Commission may adopt implementing acts establishing standard forms to be used to submit declarations concerning the origin of works, supplies or services. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 91(2). The standard form shall contain the following information: (a) the name of and contact details for the contracting authority; (b) a description of the subject-matter of the contract; (c) the name of and contact details for the economic operator whose tender is to be excluded; (d) information concerning the origin of the economic operator, the works, supplies or services and their value. 3. If the Commission rejects the contracting authority’s decision to exclude a tender pursuant to the provisions of paragraph 1, it shall inform the contracting authority, giving its reasons, within 15 days from the first working day after the date on which it received the notification of intent to exclude. This period may be extended once for a maximum of 15 days in duly substantiated cases, in particular if the information contained in the notification of intent to exclude or in the documents attached thereto is incomplete or inaccurate or if the facts as reported undergo substantive changes. If, at the end of that 30-day period, the Commission has not adopted a decision approving or rejecting the exclusion of the tender, that exclusion shall be deemed to have been approved by the Commission. 4. Decisions to exclude tenders may be taken: (a) if the international agreement concerning access to the market in the area of public procurement concluded between the Union and the country of origin of the products or services sets out, in respect of the products or services whose exclusion is being proposed, explicit market access reservations formulated by the Union; (b) in the absence of an agreement as referred to in point (a), if the third country concerned implements restrictive measures concerning procurement which give rise to a lack of substantial reciprocity in terms of market access between the Union and the third country concerned. For the purposes of point (b), substantial reciprocity shall be presumed not to exist if the restrictive measures concerning procurement result in serious and persistent discrimination against Union economic operators, works, supplies and services. 5. The Commission shall hear the contracting authorities concerned before taking a decision pursuant to paragraph 3. Article 22b Implementation of the conditions governing reciprocity Contracts concluded with an economic operator in breach of a decision by the Commission to approve the exclusion of a tender pursuant to Article 22a, following notification by the contracting authority of the intention to exclude, shall be declared null and void within the meaning of Directive 2007/66/EC.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 24 – paragraph 1 – subparagraph 4 – point a

(a) with regard to works, where the ~~works~~ contract ~~has as its object both~~s have multiple objects, such as the design ~~and the~~, execution, funding, operation and maintenance of works within the meaning of Article 2(8) or where negotiations are needed to establish the legal or financial makeup of the project;

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 24 – paragraph 1 – subparagraph 4 – point b

(b) in respect of public works, supply and service contracts, for works which are performed solely for purposes of research or innovation, testing or development and not with the aim of ensuring profitability or recovering research and development costs;

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 24 – paragraph 1 – subparagraph 5

~~Member States may decide not to transpose into their national law the competitive procedure with negotiation, the competitive dialogue and the innovation partnership procedures.~~deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 27 – paragraph 3 – subparagraph 1

3. Contracting authorities shall negotiate with tenderers the tenders submitted ~~by them~~and the procurement documents, subject to the provisions of paragraph 2, to improve the content of the offers in order to better correspond to the award criteria and minimum requirements referred to in the second subparagraph of paragraph 1.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 – point a

(a) the ~~description~~object of the procurement;

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 27 – paragraph 4 – subparagraph 1

4. During the negotiations, contracting authorities shall ensure the equal treatment of all tenderers. To that end, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others. They shall take particular care to ensure that all tenderers, whose tenders have not been eliminated pursuant to paragraph 5, are informed in writing of any changes ~~to the technical specifications other than those setting out the minimum requirement~~made during the negotiations, in adequate time to allow such tenderers to modify and re-submit amended tenders following these changes, as appropriate.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 27 – paragraph 6 a (new)

6a. Contracting authorities may not confine negotiations to the prices quoted in tenders.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 28

Article 28 Competitive dialogue 1. In competitive dialogues, any economic operator may submit a request to participate in response to a call for competition by providing the requested information for qualitative selection. The minimum time limit for receipt of requests to participate shall be 30 days from the date on which the contract notice is sent. Only those economic operators invited by the contracting authority following the assessment of the requested information may participate in the dialogue. Contracting authorities may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 64. The contract shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 66(1)(a). 2. Contracting authorities shall set out their needs and requirements in the contract notice and they shall define these needs and requirements in the notice and/or in a descriptive document. At the same time and in the same documents, they shall also set out and define the chosen award criteria. 3. Contracting authorities shall open, with the candidates selected in accordance with the relevant provisions of Articles 54 to 65, a dialogue the aim of which shall be to identify and define the means best suited to satisfying their needs. They may discuss all aspects of the contract with the chosen candidates during this dialogue. During the dialogue, contracting authorities shall ensure equality of treatment among all tenderers. To that end, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others. Contracting authorities shall not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue without its agreement. Such agreement shall not take the form of a general waiver but shall be given with reference to the intended communication of specific solutions or other specific confidential information. 4. Competitive dialogues may take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria defined in the contract notice or in the descriptive document. In the contract notice or the descriptive document, the contracting authority shall indicate whether it will use this option. 5. The contracting authority shall continue the dialogue until it can identify the solution or solutions which are capable of meeting its needs. 6. Having declared that the dialogue is concluded and having so informed the participants, contracting authorities shall ask them to submit their final tenders on the basis of the solution or solutions presented and specified during the dialogue. Those tenders shall contain all the elements required and necessary for the performance of the project. 7. Contracting authorities shall assess the tenders received on the basis of the award criteria laid down in the contract notice or in the descriptive document. Where necessary, in order to finalise financial commitments or other terms of the contract, the contracting authority may negotiate the final terms of the contract with the tenderer identified as having submitted the most economically advantageous tender in accordance with Article 66(1)(a) provided such negotiations do not have the effect of modifying essential aspects of the tender or of the public procurement, including the needs and requirements set out in the contract notice or in the descriptive document and does not risk distorting competition or causing discrimination. 8. The contracting authorities may specify prizes or payments to the participants in the dialogue.deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 29

Article 29 Innovation Partnership 1. In innovation partnerships, any economic operator may submit a request to participate in response to a contract notice 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 authority may 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 competitive procedure with negotiation set out in Article 27. In selecting candidates, contracting authorities shall pay particular attention to criteria concerning the tenderers’ capacity and experience in the field of research and development and of developing innovative solutions. They may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 64. Only those economic operators invited by the contracting authority following its assessment of the requested information may submit research and innovation projects aimed at meeting the needs identified by the contracting authority 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 66(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 authorities shall not use innovation partnerships in such a way as to prevent, restrict or distort competition.deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 30 – paragraph 1

1. Member States may provide that contracting authorities may award public contracts by a negotiated procedure without prior publication only in the cases laid down in paragraphs (2) to (5). Contracting authorities may not use the negotiated procedure without advertising for the sole purpose of negotiating the price of works, supplies and services.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point c – point iii

iii) the protection of other exclusive rights, including priority vis-à-vis a property site.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point d a (new)

(da) where an economic operator takes the initiative to propose an innovation partnership to a contracting authority 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.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 33 – paragraph 1 – subparagraph 1

Contracting authorities may use electronic auctions to purchase standardised goods only, in which new prices, revised downwards, and/or new values concerning certain elements of tenders are presented.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 35 – paragraph 3 – subparagraph 1

A contracting authority fulfils its obligations pursuant to this Directive when it procures by having recourse to centralised purchasing activities, to the extent that the procurement procedures concerned and their performance are conducted by the central procurement body ~~alone~~ in all its stages from the publication of the call for competition to the end of the execution of the ensuing contract or contracts.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
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 referred to in points (22), (22a) and (22b) of Article 2.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 43 – paragraph 1 – subparagraph -1 (new)

1. A variant shall be an alternative method of design, execution or funding of the contract.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 44 – paragraph 1 – subparagraph 1

Public contracts may be subdivided into homogenous or heterogeneous lots. For contracts with a value equal to or greater than the thresholds provided for in Article 4 but not less than EUR 500 000, determined in accordance with Article 5, where the contracting authority does not deem it appropriate to split into lots, it shall provide in the contract notice or in the invitation to confirm interest a specific explanation of its reasonlots.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 44 – paragraph 1 – subparagraph 2

Contracting authorities shall indicate, in the contract notice or in the invitation to confirm interest, whether t~~enders are limited to one or more lots only~~he contract is limited to one or more lots only. They shall be free to set the number of lots, taking account, in particular, of the technical characteristics of the services to be provided, the structure of the economic sector in question and, where appropriate, the rules applicable to certain professions.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 44 – paragraph 2

2. C~~ontracting authorities may, even where the possibility to~~andidates may not submit different tenders for ~~all lots has been indicated,~~differing numbers of lots. Contracting authorities shall limit the number of lots that may be awarded to a tenderer, provided that the maximum number is stated in the contract notice or in the invitation to confirm interest. Contracting authorities shall determine and indicate in the procurement documents the objective and non-discriminatory criteria or rules for awarding the different lots ~~where the application of the chosen award criteria would result in the award to one tenderer of more lots than the maximum number~~.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 52 – paragraph 1 – subparagraph 1

In restricted procedures~~, competitive dialogue procedures, innovation partnerships~~ and competitive procedures with negotiation, contracting authorities shall simultaneously and in writing invite the selected candidates to submit their tenders ~~or, in the case of a competitive dialogue, to take part in the dialogue~~.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 54 – paragraph 3

3. In open procedures, contracting authorities may decide to examine tenders before verifying the fulfilment of the selection criteria, provided that the relevant provisions of this section are observed, including the rule that the contract shall not be awarded to a tenderer that should have been excluded pursuant to Article 55 or that does not meet the selection criteria set out by the contracting authority, in accordance with subsection 1 of this section.deleted

2012/07/12
Committee: IMCO

Salvatore IACOLINO, Marc TARABELLA

Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2 a (new)

Where they arise in the course of the procedure to select the contractor, these exclusion grounds shall likewise serve to exclude the company concerned from the contract award procedure.

2012/07/12
Committee: IMCO

Salvatore IACOLINO, Marc TARABELLA

Proposal for a directive
Article 55 – paragraph 2

2. Any economic operator shall be excluded from participation in a public 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 the country in which it is established or with those of the Member State of the contracting authority.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
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 of a similar nature with the same contracting authority or with others.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 63 – paragraph 8 a (new)

8a. The contracting authority may perform the qualitative selection on the basis of a system for marking and ranking candidates, which may be used in the final ranking of tenders.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 64 – paragraph 1 – subparagraph 1

1. In restricted procedures, and competitive procedures with negotiation, ~~competitive dialogue procedures and innovation partnerships,~~ contracting authorities may limit the number of candidates meeting the selection criteria that they will invite to tender or to conduct a dialogue, provided a sufficient number of qualified candidates is available.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 64 – paragraph 2 – subparagraph 1

1. In the restricted procedure the minimum number of candidates shall be five. In the competitive procedure with negotiation~~, in the competitive dialogue procedure and in the innovation partnership~~ the minimum shall be three. In any event the number of candidates invited shall be sufficient to ensure genuine competition.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
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 criteria on which~~ contracting authorities shall base the award of public contracts ~~shall be one of the following:~~on multiple criteria used to determine the most economically advantageous tender.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point a

~~(a) the most economically advantageous tender;~~deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point b

~~(b) the lowest cost.~~deleted

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 66 – paragraph 2 – point d – subparagraph 1 a (new)

Those criteria may include criteria concerning human resources directly participating in the production process, such as decent conditions including pay, social protection, health and safety protection, equal opportunities and gender equality for the staff assigned to the production, employment for disadvantaged persons or members of vulnerable groups and training opportunities for the workers involved in the production process.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 68 – title

~~Impediments to award~~Decision not to award the contract

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 68 – paragraph 1 – introductory part

Contracting authorities shall be free not to follow up a public procurement procedure. The reasons for the decision not to award the contract must be set out and communicated to all candidates and tenderers. In any event, contracting authorities may not award the contract to the tenderer submitting the best tender where one of the following conditions is fulfilled:

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 69 – paragraph 1 – point a

(a) the price or cost charged is more than 530 % lower than the average price or costs of the remaining tenders

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 69 – paragraph 1 – point c

(c) at least ~~fiv~~three tenders have been submitted.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 69 a (new)

Article 69a When a contracting authority plans to accept an abnormally low tender including works, supplies or services not originating in the European Union, in which the value of the works, supplies or services not covered exceeds 50 % of the total value of the works, supplies or services that make up the tender, in accordance with Article 22a, the contracting authority shall inform the other tenderers in writing, explaining why the price or costs proposed are abnormally low. Tenders originating in third countries not bound by an international agreement shall automatically be rejected when the price or cost charged is more than 50 % lower than the average cost of the other tenders.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 71 – paragraph 1

1. In the procurement documents, the contracting authority ~~may ask or may be requ~~shall ask the tenderer to indicate in its tender the share of the contract it wishes to subcontract to thired ~~by a Member State to ask the tenderer to indicate in its tender any share of~~parties and any proposed subcontractors, providing information regarding the subcontractor, including names, contact details and legal representatives. The contracting authority must be informed without delay of any change in the subcontracting chain. If a change is proposed, including the participation of a new subcontractor in the subcontract ~~it may intend to subcontract to third parties and any proposed subcontractors~~ing chain, the main contractor must indicate the name, contact details and legal representatives. The operators in the subcontracting chain shall comply with the provisions of this Directive and the conditions laid down in the supply documents, and shall guarantee a performance of the tasks connected with the contract equivalent to that defined in the invitation to tender.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 71 – paragraph 2

2. Member States ~~may~~shall limit the possibility for a tenderer to subcontract the performance of a public contract to a maximum of three successive subcontractors. Member States shall provide that at the request of the subcontractor and where the nature of the contract so allows, the contracting authority ~~shall~~must 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~~must be sdet ~~out~~ermined in the procurement documents.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 71 – paragraph 3

3. The reasons for using subcontractors must be set out in the contract documents and strictly justified by technical considerations. Subcontracting may not be used to circumvent the relevant legislation and the obligations relating to the provision of works, services and supplies. Paragraphs 1 and 2 shall be without prejudice to the ~~question~~liability of the pr~~incipal economic operator’s liability.~~ oject manager and subcontractors. Member States must provide for a system of joint and several liability in the subcontracting chain.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 71 – paragraph 3 a (new)

3a. The main economic operator and any subcontractor involved in carrying out works in a public contract shall be jointly and severally liable for non-compliance by the subcontractor in relation to fundamental rights, health and safety requirements, social welfare rules and standards, requirements associated with employment and working conditions, health and safety in the workplace and social security, as well as failure to comply with any relevant provision of European Union law, any national legislative, administrative or regulatory provision, collective agreements and contracts and the international agreements listed in Annex XI that apply in the place where the work is performed or the service or supplies are provided. These obligations shall also apply in cross-border situations, where workers from one Member State provide services in another Member State. 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 reasons to believe that their immediate subcontractor has violated the rules referred to in the first subparagraph, the immediate subcontractor must take immediate action to remedy the situation, and that, failing this, the contract concerned shall be terminated. Member States may provide for stricter liability rules under their national law.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 72 – paragraph 2 – introductory part

2. ~~A modification of a contract during its term shall be considered substantial within the meaning of paragraph 1, where it renders the contract substantially different from the one initially concluded.~~ In any case, without prejudice to paragraph 3 and 4, a modification shall be considered substantial where one of the following conditions is met:

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 72 – paragraph 2 – point c

(c) the modification extends the s~~cope~~ubject of the contract considerably to encompass supplies, services or works not initially covered.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 72 – paragraph 4

4. Where the value of a modification can be expressed in monetary terms, the modification shall not be considered to be substantial within the meaning of paragraph 1, where its value does not exceed the thresholds set out in Article 4 ~~and~~or where it is below 510 % of the price of the initial contract, provided that the modification does not alter the overall nature of the contract. Where several successive modifications are made, the value shall be assessed on the basis of the cumulative value of the successive modifications.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 72 – paragraph 5

5. Contract modifications shall not be considered substantial within the meaning of paragraph 1 where they have been provided for in the procurement documents in clear, precise and unequivocal review clauses or options or in the form of a price revision clause or clauses on the procedures for setting prices. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications or options that would alter the overall nature of the contract.

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 74

CWithout prejudice to the freedom of Member States and/or contracting authorities to provide social services and other specific services and to organise them without recourse to a public procurement procedure, contracts for social and other specific services listed in Annex XVI shall be awarded in accordance with this Chapter, where the value of the contracts is equal to or greater than the threshold indicated in Article 4 (d).

2012/07/12
Committee: IMCO

Marc TARABELLA

Proposal for a directive
Article 76 – paragraph 1

1. Member States shall put in place appropriate procedures for the award of contracts subject to this Chapter, ensuring full compliance with the principles of transparency and equal treatment of economic operators and allowing contracting authorities to take into account the specificities of the services in question. Member States may also provide that contracting authorities may opt to limit participation in a public procurement procedure for the provision of social and health services to non-profit-making organisations. The contract notice shall refer to this provision.

2012/07/12
Committee: IMCO

70 Amendments of Marc TARABELLA related to 2011/0438(COD)

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