32 Amendments of Ramona Nicole MĂNESCU related to 2011/0438(COD)
Amendment 86 #
Proposal for a directive
Recital 2
Recital 2
(2) Public procurement plays a key role in the Europe 2020 strategy as one of the market-based instruments to be used to achieve a smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. For that purpose, the current public procurement rules adopted pursuant to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts have to be revised and modernised in order to increase the efficiency of public spending, facilitating in particular the participation of small and medium-sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals, leading to creation of new sustainable jobs. There is also a need to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union.
Amendment 92 #
Proposal for a directive
Recital 11
Recital 11
(11) Other categories of services continue by their very nature to have a limited cross- border dimension, namely what are known as services to the person, such as certain social, health and educational services. These services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. AFor a better quality of these services in contracts, a specific regime should therefore be established for public contracts for these services, with a higher threshold of EUR 500 000. Services to the person with values below this threshold will typically not be of interest to providers from other Member States, unless there are concrete indications to the contrary, such as Union financing for transborder projects. Contracts for services to the person above this threshold should be subject to Union-wide transparency. Given the importance of the cultural context and the sensitivity of these services, Member States should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate. The rules of this directive take account of that imperative, imposing only observance of basic principles of transparency and equal treatment and making sure that contracting authorities are able to apply specific quality criteria for the choice of service providers, such as the criteria set out in the voluntary European Quality Framework for Social Services of the European Union's Social Protection Committee. Member States and/or public authorities remain free to provide these services themselves or to organise social services in a way that does not entail the conclusion of public contracts, for example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting authority, without any limits or quotas, provided such a system ensures sufficient advertising and complies with the principles of transparency and non-discrimination.
Amendment 96 #
Proposal for a directive
Recital 19
Recital 19
(19) Electronic means of information and communication can greatly simplify the publication of contracts and increase the efficiency and transparency of procurement processes. TIt is necessary that they should become the standard means of communication and information exchange in procurement procedures. The use of electronic means also leads to time savings. As a result, provision should be made for reducing the minimum periods where electronic means are used, subject, however, to the condition that they are compatible with the specific mode of transmission envisaged at Union level. Moreover, electronic means of information and communication including adequate functionalities can enable contracting authorities to prevent, detect and correct errors that occur during procurement procedures.
Amendment 98 #
Proposal for a directive
Recital 27
Recital 27
(27) The technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To that end, it must be possible to submit tenders that reflect the diversity of technical solutions so as to obtain a sufficient level of competition. Consequently, technical specifications should be drafted in such a wayand applied in conformity with the principles of transparency and non-discrimination, to avoid artificially narrowing down competition through requirements that favour a specific economic operator by mirroring key characteristics of the supplies, services or works habitually offered by that economic operator. Drawing up the technical specifications in terms of functional and performance requirements generally allows this objective to be achieved in the best way possible and favours innovation. Where reference is made to a European standard or, in the absence thereof, to a national standard, tenders based on equivalent arrangements must be considered by contracting authorities. To demonstrate equivalence, tenderers can be required to provide third-party verified evidence; however, other appropriate means of proof such as a technical dossier of the manufacturer should also be allowed where the economic operator concerned has no access to such certificates or test reports, or no possibility of obtaining them within the relevant time limits.
Amendment 99 #
Proposal for a directive
Recital 28
Recital 28
(28) Contracting authorities that wish to purchase works, supplies or services with specific environmental, social or other characteristics should be able to refer to particular labels, such as the European Eco-label, (multi-)national eco-labels or any other label provided that the requirements for the label are linked to the subject-matter of the contract, such as the description of the product and its presentation, including packaging requirements. It is furthermore essential that these requirements are drawn up and adopted on the basis of objectively verifiable criteria, using a procedure in which stakeholders, such as government bodies, consumers, manufacturers, distributors, social organisations and environmental organisations, can participate, and that the label is accessible and available to all interested parties.
Amendment 102 #
Proposal for a directive
Recital 34
Recital 34
(34) 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 should also be sanctioned by mandatory exclusion at the level of the Union. Furthermore, contracting authorities should be given the possibility to exclude candidates or tenderers for violations of environmental or social obligations, including rules on accessibility for disabled persons, health and safety at work rules or other forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights.
Amendment 107 #
Proposal for a directive
Recital 38
Recital 38
(38) Where contracting authorities choose to award a contract to the most economically advantageous tender, they 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, economic and social sustainability. The determination of these 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 authority 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.
Amendment 112 #
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, unemployed young persons, persons with disabilities, women 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.
Amendment 117 #
Proposal for a directive
Recital 47
Recital 47
(47) In line with the principles of equal treatment, objectivity and transparency, the successful tenderer should not be replaced by another economic operator without reopening the contract to competition. However, the successful tenderer performing the contract may undergo certain structural changes during the performance of the contract, such as purely internal reorganisations, mergers and acquisitions or insolvency. Such structural changes should not automatically require new procurement procedures for all public contracts performed by that undertaking.
Amendment 119 #
Proposal for a directive
Recital 51
Recital 51
(51) Not all contracting authorities may have the internal expertise to deal with economically or technically complex contracts. Against this background, appropriate professional support would be an effective complement to monitoring and control activities. On the one hand, this objective can be achieved by knowledge sharing tools (knowledge centres) offering technical assistance to contracting authorities; on the other hand, business, not leastespecially the SMEs, should benefit from administrative assistance, in particular when participating in procurement procedures on a cross-border basis.
Amendment 127 #
Proposal for a directive
Article 2 – paragraph 1 – point 22
Article 2 – paragraph 1 – point 22
(22) ‘life cycle’ means all consecutive and/or interlinked stages, including production, transport, installation, use and maintenance, throughout the existence of a product or a works or the provision of a service, from raw material acquisition or generation of resources to disposal, clearance and finalisation;
Amendment 207 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 2
Article 16 – paragraph 1 – subparagraph 2
However, in the case of public service and public works contracts as well as public supply contracts covering in addition services or siting and installation operations, legal persons may be required to indicate, in the tender or the request to participate, the names and the relevant professional qualifications of the staff to be responsible for the performance of the contract in question.
Amendment 208 #
Proposal for a directive
Article 16 – paragraph 2 – subparagraph 1
Article 16 – paragraph 2 – subparagraph 1
Groups of economic operators may submit tenders or put themselves forward as candidates. Groups of economic operators, particularly small and medium-sized enterprises, may take the form of a consortium of enterprises. Contracting authorities shall not establish specific conditions for participation of such groups in procurement procedures which are not imposed on individual candidates. In order to submit a tender or a request to participate, those groups shall not be required by the contracting authorities to assume a specific legal form.
Amendment 209 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
Member States may reserve the right to participate in public procurement procedures to sheltered workshops and economic operators whose main aim is the social and professional integration of disabled and disadvantaged workers or provide for such contracts to be performed in the context of sheltered employment programmes, provided that more than 30% of the employees of those workshops, economic operators or programmes are disabled or disadvantaged workers.for:
Amendment 212 #
Proposal for a directive
Article 17 – paragraph 1 – point a (new)
Article 17 – paragraph 1 – point a (new)
(a) sheltered workshops, or provide for such contracts to be performed in the context of sheltered employment programmes, provided that the majority of the employees concerned are disabled persons who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions or easily find employment on the ordinary market;
Amendment 213 #
Proposal for a directive
Article 17 – paragraph 1 – point b (new)
Article 17 – paragraph 1 – point b (new)
(b) social enterprises programmes whose main aim is the social and professional integration of disadvantaged workers, provided that more than 30% of the employees of those economic operators or programmes are disabled or disadvantaged workers.
Amendment 214 #
Proposal for a directive
Article 17 – paragraph 1 a (new)
Article 17 – paragraph 1 a (new)
1a. The protection of the intellectual property of the tenderers should be ensured.
Amendment 216 #
Proposal for a directive
Article 18 – paragraph 2 a (new)
Article 18 – paragraph 2 a (new)
2a. The contracting entity shall not use in other competitive procedures the information forwarded to it by economic operators during a precedent competitive procedure.
Amendment 238 #
Proposal for a directive
Article 29 – paragraph 3 – subparagraph 3
Article 29 – paragraph 3 – subparagraph 3
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) and Article 66(2).
Amendment 245 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 4
Article 40 – paragraph 1 – subparagraph 4
For all procurement the subject of which is intended for use by persons, whether general public or staff of the contracting authority, those technical specifications shall, except in duly justified cases, be drawn up so as to take into account accessibility criteria for people with disabilities or design for all users other than, by way of exception, in duly justified cases, which shall be stated in the call for competition and the tender documents.
Amendment 258 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 1 – point c
Article 41 – paragraph 1 – subparagraph 1 – point c
(c) the labels are established in an open and transparent procedure in which all stakeholders, including government bodies, consumers, manufacturers, distributors, social organisations and environmental organisations, may participate;,
Amendment 263 #
Proposal for a directive
Article 43 – paragraph 1
Article 43 – paragraph 1
1. Contracting authorities mayshall authorise tenderers to submit variants. They shall indicate in the contract notice or, where a prior information notice is used as a means of calling for competition, in the invitation to confirm interest whether or not they authorise variants. Variants shall not be authorised without such indicaContracting entities may indicate in the specifications that the variants are not authorized and the related specific reason for such prohibition.
Amendment 265 #
Proposal for a directive
Article 43 – paragraph 2
Article 43 – paragraph 2
2. Contracting authorities authorising variants shall state in the procurement documents the minimum requirements to be met by the variants and any specific requirements for their presentation. They shall also ensure that the chosen award criteria can be usefully applied to variants meeting those minimum requirements as well as to conforming tenders which are not variants.
Amendment 266 #
Proposal for a directive
Article 43 – paragraph 3 – subparagraph 2
Article 43 – paragraph 3 – subparagraph 2
In procedures for awarding public supply or service contracts, contracting authorities that have authorised variants shall not reject a variant on the sole ground that it would, where successful, lead to either a service contract rather than a public supply contract or a supply contract rather than a public service contract.
Amendment 311 #
Proposal for a directive
Article 67 – paragraph 2 – subparagraph 1 – introductory part
Article 67 – paragraph 2 – subparagraph 1 – introductory part
Where contracting authorities assess the costs using a life-cycle costing approach, they shall indicate in the procurement documents the methodology used for the calculation of the life-cycle costs. The methodology used must be simplified in order to be accessible for SMEs and it must fulfil all of the following conditions:
Amendment 328 #
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 and national legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XI or, where not applicable, with other provisions ensuring an equivalent level of protection;
Amendment 331 #
Proposal for a directive
Article 69 – paragraph 4 – subparagraph 1
Article 69 – paragraph 4 – subparagraph 1
The contracting authority shall verify the information provided by consulting the tenderer. It may only reject the tender where the evidence does not justify the low level of price or costs charged, taking into account the elements referred to in paragraph 3, or when the received justification is not sufficient.
Amendment 333 #
Proposal for a directive
Article 69 – paragraph 4 – subparagraph 2
Article 69 – paragraph 4 – subparagraph 2
Contracting authorities shall reject the tender, where they have established that the tender is abnormally low because it does not comply with obligations established by Union and national legislation in the field of social and labour law or environmental law or by the international social and environmental law provisions listed in Annex XI.
Amendment 354 #
Proposal for a directive
Article 76 – paragraph 1
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, non-discrimination and equal treatment of economic operators and allowing contracting authorities to take into account the specificities of the services in question.
Amendment 355 #
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 a high level of quality, continuity, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantages and vulnerable groups, the necessity to promote the participation of SMEs, the involvement and empowerment of users and innovation. Member States may also 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.
Amendment 362 #
Proposal for a directive
Article 84 – paragraph 3 – subparagraph 1 – point f
Article 84 – paragraph 3 – subparagraph 1 – point f
(f) examining complaints from citizens and businesses and from professional associations or similar bodies on the application of public procurement rules in specific cases and transmitting the analysis to the competent contracting authorities, which shall have the obligation to take it into account in their decisions or, where the analysis is not followed, to explain the reasons for disregarding it;
Amendment 363 #
Proposal for a directive
Article 84 – paragraph 8 a (new)
Article 84 – paragraph 8 a (new)
8a. The annual report should also include an annual comparison between the prices submitted and the actual cost of contracts that have already been performed and the potential influence over the number of staff employed by suppliers.