[ParlTrack]

Proposal for a directive
Recital 40

(40) Public contracts should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption, fraud to the detriment of the Union’s financial interests or money laundering. Non- payment of taxes or social security contributions and violations of environmental or social obligations, including rules on accessibility for disabled persons, should also be sanctioned by mandatory exclusion at the level of the Union. Given that contracting entities, which are not contracting authorities, might not have access to indisputable proof on the matter, it is appropriate to leave the choice of whether or not to apply the exclusion criteria listed in Directive [2004/18] to such contracting entities. The obligation to apply Article 55(1) and (2) of Directive [2004/18] should therefore be limited to contracting entities that are contracting authorities. Furthermore, contracting entities should be given the possibility to exclude candidates or tenderers for ~~violations of environmental or social obligations, including rules on accessibility for disabled persons or other~~ forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights.

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Recital 43

(43) Contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment. Those criteria should guarantee that tenders are assessed in conditions of effective competition, also where contracting entities require high-quality works, supplies and services that are optimally suited to their needs. As a result, contracting entities should be allowed to adopt as the award criteri~~a either~~on "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~~.

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Recital 44

(44) W~~here contracting entities choose~~ith a view to awarding a contract to the most economically advantageous tender, ~~they~~contracting entities must determine the award criteria on the basis of which they will assess tenders in order to identify which one offers the best value for money. The determination of those criteria depends on the subject-matter of the contract, since they must allow the level of performance offered by each tender to be assessed in the light of the subject-matter of the contract, as defined in the technical specifications, and the value for money of each tender to be measured. Furthermore, the chosen award criteria should not confer an unrestricted freedom of choice on the contracting entity and they should ensure the possibility of effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified.

2012/08/29
Committee: INTA

Gianluca SUSTA, Sergio Gaetano COFFERATI

Proposal for a directive
Recital 56 a (new)

(56a) Contracting entities should respect the delay of payment as established in Directive 2011/7/EU.

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Article 70 – paragraph 5

5. Contracting entities ~~may decide~~shall not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply, at least in an equivalent manner, with obligations established by Union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XIV.

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – introductory part

Without prejudice to national laws, regulations or administrative provisions on the remuneration of certain services, the criteriaon on which contracting entities shall base the award of contracts shall be ~~one of the following:~~the most economically advantageous tender.

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point a

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

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point b

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

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Article 76 – paragraph 1 – subparagraph 2

Costs may 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, under the conditions set out in Article 77.deleted

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
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 ~~ent~~authority shall be identified on the basis of criteria linked to the subject- matter of the public contract in question.

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
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,~~– assessed, at the choice of the contracting entity, on the basis of price only or using a cost-effectiveness approach, such as a life-cycle costing approach, under the conditions set out in Article 77 - other criteria linked to the subject-matter of the contract in question, such as:

2012/08/29
Committee: INTA

Gianluca SUSTA, Sergio Gaetano COFFERATI

Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point - a a (new)

(- aa) decent working conditions, health and safety at the workplace and respect for the right to collective bargaining; (this amendment should be inserted before point (a) of this paragraph)

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Article 76 – paragraph 3

~~3. Member States may provide that the award of certain types of contracts shall be based on the most economically advantageous tender referred to in point (a) of paragraph 1 and in paragraph 2.~~deleted

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Article 76 – paragraph 5 – subparagraph 1

~~In the case referred to in point (a) of paragraph 1, t~~The contracting entity shall specify the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender.

2012/08/29
Committee: INTA

Gianluca SUSTA

Proposal for a directive
Article 79 a (new)

Article 79a Tenders comprising products and services originating in third countries 1. This Article shall apply to tenders covering products and services originating in third countries with which the Union has not concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for Community undertakings to the markets of those third countries. This Article shall also apply to tenders covering products and services originating in third countries that fall within the scope of a market reservation by the EU in an international agreement (i.e. Free Trade Agreements and Government Procurement Agreement). It shall be without prejudice to the obligations of the Union or its Member States in respect of third countries 2. Contracting authorities and entities may require tenderers to provide information on the origin of the goods and services contained in the tender, and their value. Any tender submitted for the award of a supply or service contract where the value of the products originating in third countries, as determined in accordance with Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, and/or the value of services as determined by the origin of the natural or legal person providing the service, exceeds 50 % of the total value of the products or services constituting the tender may be rejected under the following conditions. 3. Upon request of contracting authorities, the Commission shall assess whether to approve, for contracts of an estimated value equal or above EUR 5 000 000 exclusive of value-added tax (VAT) the exclusion from procedures for the award of contract tenders comprising goods or services originating outside the Union, if the value of goods 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 or services originating in a country with which the Union has concluded such an agreement, but in respect of which the agreement does not apply, exceeds 50 % of the total value of the goods or services constituting the tender. 4. For contracts referred to in paragraph 3, the Commission shall adopt an implementing act concerning the approval of the intended exclusion. Those implementing acts shall be adopted according to the examination procedure. 5. When adopting implementing acts pursuant to paragraph 4, the Commission shall approve the intended exclusion in the following cases: (a) if the international agreement concerning market access in the field of public procurement between the Union and the country where the goods and/or services originate contains, for the goods and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union; (b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. For the purposes of point (b), a lack of substantial reciprocity is presumed where restrictive procurement measures result in serious and recurring discriminations of Union economic operators, goods and services. When adopting implementing acts pursuant to paragraph 4, the Commission shall not approve an intended exclusion where it would violate market access commitments entered into by the Union in its international agreements. 6. When assessing whether a lack of substantial reciprocity exists, the Commission shall examine the following: (a) to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union goods, services and economic operators; (b) to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union goods, services and economic operators. 7. Contracts concluded with an economic operator in violation of Commission implementing acts adopted pursuant to paragraph 4 upon intended exclusion notified by contracting authorities/ entities shall be declared ineffective within the meaning of Directive 2007/66/EC. (Replaces amendment 25 of the Draft Opinion)

2012/08/29
Committee: INTA

15 Amendments of Gianluca SUSTA related to 2011/0439(COD)

ParlTrack - 2011-2024