Activities of Heide RÜHLE related to 2011/0438(COD)
Plenary speeches (1)
Award of concession contracts - Public procurement - Procurement by entities operating in the water, energy, transport and postal services sectors (debate)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on public procurement PDF (2 MB) DOC (3 MB)
Amendments (205)
Amendment 58 #
Proposal for a directive
Recital 1
Recital 1
(1) The award of public contracts by or on behalf of Member States authorities has to comply with the principles of the Treaty on the Functioningies of the European Union, and in particular the free movement of goods, freedom of establishment and the freedom to provide services as well as the principles deriving therefrom, such as equal treatment, non- discrimination, mutual recognition, proportionality and transparency and with the distribution of competencies as enshrined in Article 14 (1) TFEU and the Protocol No 26. The European regulation of public procurement should respect the wide discretion of public authorities in carrying out their public service tasks. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that these principles are given practical effect and public procurement is opened up to competition.
Amendment 68 #
Proposal for a directive
Recital 37
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 wheret the same time ensuring that contracting authorities may 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.
Amendment 77 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 1
Article 1 – paragraph 2 – subparagraph 1
Procurement within the meaning of this Directive is the purchase or other forms of acquisition of works, supplies or services via public contracts by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose.
Amendment 79 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 2
Article 1 – paragraph 2 – subparagraph 2
Amendment 92 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point b
Article 11 – paragraph 1 – subparagraph 1 – point b
(b) at least 980 % of the activities of that legal person, subject to the contract, are carried out for the controlling contracting authority or for other legal persons controlled by that contracting authority;
Amendment 94 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 2
Article 11 – paragraph 1 – subparagraph 2
Amendment 97 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point b
Article 11 – paragraph 3 – subparagraph 1 – point b
(b) at least 980 % of the activities of that legal person, subject to the contract, are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities;
Amendment 99 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2
Article 11 – paragraph 3 – subparagraph 2
Amendment 102 #
Proposal for a directive
Article 11 – paragraph 4 – point a
Article 11 – paragraph 4 – point a
(a) the agreement establishes a genuine cooperation between thepurpose of the partnership is the provision of a public-service task conferred on all participating contractingpublic authorities aimed at carrying out jointly, or the provision of an ancillary task necessary to deliver their public service tasks and involving mutual rights and obligations of the par conferred on all the public authorities;
Amendment 103 #
Proposal for a directive
Article 11 – paragraph 4 – point b
Article 11 – paragraph 4 – point b
Amendment 106 #
Proposal for a directive
Article 11 – paragraph 4 – point c
Article 11 – paragraph 4 – point c
(c) the participating contractingpublic authorities do not perform on the open market more than 120 % in terms of turnover of the activities which are relevant in the context of the agreemen, subject to the contract;
Amendment 107 #
Proposal for a directive
Article 11 – paragraph 4 – point d
Article 11 – paragraph 4 – point d
Amendment 109 #
Proposal for a directive
Article 11 – paragraph 4 – point e
Article 11 – paragraph 4 – point e
(e) there is no private participation in any of the contracting authorities invol task is carried out solely by the public authorities concerned, with no participation of a private party with the exception of contracting authorities participating in the cooperation as a public law body in the sense of Article 2(6) of this Directived.
Amendment 110 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1
Article 11 – paragraph 5 – subparagraph 1
Amendment 111 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 2
Article 11 – paragraph 5 – subparagraph 2
The exclusions provided for in paragraphs 1 to 4 shall cease to apply from the moment any private participation takes place, with the effect that ongoing contracts need to be opened to competition through regular procurement procedures, unless the private participation is legally enforced and/or the private participation was not foreseeable at the time of the initial contracting.
Amendment 112 #
Proposal for a directive
Article 11 – paragraph 5 a (new)
Article 11 – paragraph 5 a (new)
5a. However transferring tasks between public sector organisations is a matter for the Member States' internal administrative organisation and is not subject to procurement rules.
Amendment 115 #
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 and/or disadvantaged workerpersons. 'Disadvantaged persons' includes amongst others: the unemployed, people experiencing particular difficulty in achieving integration, people at risk of exclusion, members of vulnerable groups and members of disadvantaged minorities.
Amendment 125 #
Proposal for a directive
Article 31 – paragraph 1 – subparagraph 3
Article 31 – paragraph 1 – subparagraph 3
The term of a framework agreement shall not exceed foursix years, save in exceptional cases duly justified, in particular by the subject of the framework agreement. The term of a framework agreement regarding the maintenance is based on the lifecycle of the work or supply.
Amendment 126 #
Proposal for a directive
Article 33 – paragraph 1 – subparagraph 1
Article 33 – paragraph 1 – subparagraph 1
Amendment 139 #
Proposal for a directive
Article 54 – paragraph 2
Article 54 – paragraph 2
2. Contracting authorities may decide not to award a contract to the tenderer submitting the best tender where they haveit has been established that the tender does not comply, at least in an equivalent manner, with obligations established by Union or national legislation in the field of social and labour law or environmental law or of the collective agreements which apply in the place where the work, service or supply is performed or by the international social and environmental law provisions listed in Annex XI and provided they are linked to the subject matter of the contract.
Amendment 148 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point b
Article 66 – paragraph 1 – subparagraph 1 – point b
Amendment 149 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 2
Article 66 – paragraph 1 – subparagraph 2
Costs may be assessed, on the choice of the contracting authority, on the basis of the price only or using a cost- effectiveness approach, such as a life-cycle costing approach, under the conditions set out in Article 67.
Amendment 150 #
Proposal for a directive
Article 66 – paragraph 2 – introductory part
Article 66 – paragraph 2 – introductory part
2. The most economically advantageous tender referred to in point (a) of paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject-matter of the public contract in question. Those criteria shall include, in addition to the price or costs referred to in point (b) of paragraph 1, other criteria linked to the subject-matter of the public contract in question, such as:
Amendment 167 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 14, Article 53(1), Article 62 and Article 114 as well as Protocol No 26 thereof,
Amendment 169 #
Proposal for a directive
Recital 1
Recital 1
(1) The award of public contracts by or on behalf of Member States authorities has to comply with the principles of the Treaty on the Functioning of the European Unionies , and in particular the free movement of goods, freedom of establishment and the freedom to provide services as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency and with the distribution of competencies as enshrined in Article 14 of the Treaty on the Functioning of the European Union and Protocol No 26. The European regulation of public procurement should respect the wide discretion of public authorities in carrying out their public service tasks. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that these principles are given practical effect and public procurement is opened up to competition.
Amendment 172 #
Proposal for a directive
Article 71 – paragraph 2
Article 71 – paragraph 2
Amendment 173 #
Proposal for a directive
Recital 2
Recital 2
(2) Public procurement plays a key role in the Europe 2020 strategy12 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 sectors13 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 contracts14 have to be revised and modernised in order to enable procurer to make better use of public procurement in support of sustainable development and other common societal goals, thereby increaseing the efficiency of public spending, ensuring best value for money and 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. There is also a need to simplify the Directives and 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. This Directive provides legislation on how to buy. Contracting authorities may set demands that are stricter or go further than current Union legislation in order to reach the common objectives.
Amendment 174 #
Proposal for a directive
Article 71 – paragraph 3
Article 71 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability.
Amendment 176 #
Proposal for a directive
Article 73 – paragraph 1 – point c
Article 73 – paragraph 1 – point c
Amendment 177 #
Proposal for a directive
Recital 3
Recital 3
(3) The increasingly diverse forms of public action have made it necessary to define more clearly the notion of procurement itself. The Union rules on public procurement are not intended to cover all forms of disbursement of public money, but only those aimed at the acquisition of works, supplies or services for consideration. The notion of acquisition should be understood broadly in the sense of obtaining the benefits of the works, supplies or services in question, not necessarily requiring a transfer of ownership to the contracting authorities. Furthermore, the mere financing of an activity, which is frequently linked to the obligation to reimburse the amounts received where they are not used for the purposes intended, does not usually fall under the public procurement rules. Contracts awarded to controlled entities as well as cooperation for the joint execution of public service tasks of the participating contracting authorities are not subject of the public procurement rules if the conditions set out in this Directive are fulfilled.
Amendment 177 #
Proposal for a directive
Article 73 – paragraph 1 a (new)
Article 73 – paragraph 1 a (new)
Amendment 178 #
Proposal for a directive
Article 75 – paragraph 1
Article 75 – paragraph 1
Amendment 179 #
Proposal for a directive
Recital 4
Recital 4
(4) It has also proven necessary to clarify what should be understood as a single procurement, with the effect that the aggregate value of all contracts concluded for the purpose of this procurement has to be taken into account with regard to the thresholds of this directive, and that the procurement should be advertised as a whole, possibly split into lots. The concept of single procurement encompasses all supplies, works and services needed to carry out a particular project, for instance a works project or an entirety of works, supplies and/or services. Indications for the existence of one single project can for instance consist in overall prior planning and conception by the contracting authority, the fact that the different elements purchased fulfil a single economic and technical function or that they are otherwise logically interlinked and carried out in a narrow time frame.
Amendment 180 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 1
Article 75 – paragraph 3 – subparagraph 1
The notices referred to in paragraphs 1 and 2 shall contain the information referred to in Annexes VI Part H and I, in accordance with the standard formsI.
Amendment 182 #
Proposal for a directive
Recital 5
Recital 5
(5) Under Article 9, 10 and 11 of the Treaty on the Functioning of the European Union, environmental protection requirements and social considerations must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development. This Directive clarifies how the contracting authorities may contribute to the protection of the environment and the promotion of sustainable development, whilst ensuring that and how they can use their discretionary power to select technical specifications and award criteria with the aim of achieving sustainable public procurement, whilst ensuring the link to the subject matter of they contract and obtain theing best value for money for their contracts.
Amendment 182 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 2
Article 75 – paragraph 3 – subparagraph 2
Amendment 184 #
Proposal for a directive
Article 75 – paragraph 4
Article 75 – paragraph 4
4. The notices referred to in paragraphs 1 and 2 shall be published in accordance with Article 49.
Amendment 186 #
Proposal for a directive
Article 76 – paragraph 1
Article 76 – paragraph 1
Amendment 188 #
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 quality, continuity, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of users, 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 191 #
Proposal for a directive
Article 84
Article 84
Amendment 193 #
Proposal for a directive
Article 85 – paragraph 3
Article 85 – paragraph 3
The report, or its main elements, shall be communicated to the Commission or to the national oversight body where they so request.
Amendment 194 #
Proposal for a directive
Annex 16 a (new)
Annex 16 a (new)
The following legal services: 79112000-2 Legal representation services 79100000-5 Legal services 79110000-8 Legal advisory and representation services 79111000-5 Legal advisory services 79112100-3 Stakeholders representation services 79120000-1 Patent and copyright consultancy services 79121000-8 Copyright consultancy services 79121100-90 Software copyright consultancy services 79130000-4 Legal documentation and certification services 79131000-1 Documentation services 79132000-8 Certification services 79140000-7 Legal advisory and information services
Amendment 197 #
Proposal for a directive
Recital 10
Recital 10
Amendment 204 #
Proposal for a directive
Recital 11
Recital 11
(11) OtherSome 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. 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 Committee17 . 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. This Directive does not apply to tried and tested procedures in Member States that are based on the users free choice of service providers for services of general interest (i.e. voucher system, free choice model, triangular relationship) provided that account is taken of the general Treaty principles of equal treatment, transparency and non-discrimination.
Amendment 209 #
Proposal for a directive
Recital 14
Recital 14
Amendment 238 #
Proposal for a directive
Recital 25
Recital 25
(25) Electronic means of communication are particularly well suited to support centralised purchasing practices and tools because of the possibility they offer to re- use and automatically process data and to minimise information and transaction costs. The use of such electronic means of communication should therefore, as a first step, be rendered compulsory for central purchasing bodies, while also facilitating converging practices across the Union. This should be followed by a general obligation to use electronic means of communication in all procurement procedures after a transition period of two years.
Amendment 245 #
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 way 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. In order not to discriminate those tenderers who invest time and money for certificates or test reports, the burden for providing equivalence should be placed on the tenderer claiming equivalence.
Amendment 251 #
Proposal for a directive
Recital 30
Recital 30
(30) In order to foster the involvement of small and medium-sized enterprises (SMEs) in the public procurement market, contracting authorities should be encouraged to divide contracts into lots, and be obliged to state the reasons for not doing so. Where contracts are divided into lots, contracting authorities may, for instance in order to preserve competition or to ensure security of supply, limit the number of lots for which an economic operator may tender; they may also limit the number of lots that may be awarded to any one tenderer.
Amendment 256 #
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, labour or social obligations, including rules on working conditions, collective agreements and accessibility for disabled persons or other forms of grave professional misconduct, such as violations of competition rules or of intellectual property rights.
Amendment 261 #
Proposal for a directive
Recital 37
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 wheret the same time ensuring that contracting authorities may 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.
Amendment 273 #
Proposal for a directive
Recital 40
Recital 40
(40) These sector-specific measures must be complemented by an adaptation of the public procurement Directives empowering contracting authorities to pursue the objectives of the Europe 2020 Strategy in their purchasing strategies. It should hence be made clear that contracting authorities can determine the most economically advantageous tender and the lowest cost using a life-cycle costing approach, provided that the methodology to be used is established in an objective and non- discriminatory manner and accessible to all interested parties. The notion of life-cycle costing includes all costs over the life cycle of works, supplies or services, both their internal costs (such as development, production, use, maintenance and end-of- life disposal costs) and their external costs, provided they can be monetised and monitored. Common methodologies should be developed at the level of the Union for the calculation of life-cycle costs for specific categories of supplies or services; whenever such a methodology is developed its use should be made compulsory.
Amendment 280 #
Proposal for a directive
Recital 41
Recital 41
(41) Furthermore, in technical specifications and, in award criteria and in contract performance clauses, contracting authorities should be allowed to refer to a specific production process, a specific mode of provision of services, 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. 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 tender, characteristics related to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics may only concern among others the protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged persons or members of vulnerable groups 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 environmenbe linked to the subject matter of the contract. They should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services22 and in a way that does not discriminate directly or indirectly against economic operators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements to which the Union is party. For service contracts and for contracts involving the design of works, contracting authorities should also be allowed to use as an award criterion the organisation, qualification and experience of the staff assigned to performing the contract in question, as this may affect the quality of contract performance and, as a result, the economic value of the tender. Contracting authorities may include social considerations (i.e. ILO core conventions) in the technical specifications when this is relevant and linked to the subject matter of the contract.
Amendment 303 #
Proposal for a directive
Recital 49
Recital 49
Amendment 306 #
Proposal for a directive
Recital 50
Recital 50
Amendment 314 #
Proposal for a directive
Recital 53
Recital 53
(53) Effective cooperation is necessary to ensure consistent advice and practice within each Member State and across the Union. Bodies designated for monitoring, implementation, control and technical assistance should be able to share information and cooperate; in the same context, the national authority designated by each Member State should act as the preferred contact point with the Commission services for the purpose of collecting data, exchanging information and monitoring the implementation of Union public procurement law.
Amendment 317 #
Proposal for a directive
Recital 54
Recital 54
(54) In order to adapt to rapid technical, economic and regulatory developments, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of a number of non-essential elements of this Directive. In fact, due to the need to comply with international agreements, the Commission should be empowered to modify the technical procedures for the calculation methods concerning thresholds as well as to periodically revise the thresholds themselves and to adapt Annexes V and XI; the lists of central government authorities are subject to variations due to administrative changes at national level. These are notified to the Commission, which should be empowered to adapt the Annex I; references to the CPV nomenclature may undergo regulatory changes at EU level and it is necessary to reflect those changes into the text of this Directive; the technical details and characteristics of the devices for electronic receipt should be kept up to date with technological developments and administrative needs; it is also necessary to empower the Commission to make mandatory technical standards for electronic communication to ensure the interoperability of technical formats, processes and messaging in procurement procedures conducted using electronic means of communication taking into account technological developments and administrative needs; and the content of the European Procurement Passport to reflect administrative needs and regulatory changes at both national and EU level; the list of legislative acts of the Union establishing common methodologies for the calculation of life-cycle costs should be quickly adapted to incorporate the measures adopted on a sectoral basis. In order to satisfy these needs, the Commission should be empowered to keep the list of legislative acts including LCC methodologies up-to date.
Amendment 321 #
Proposal for a directive
Recital 56
Recital 56
(56) In order to ensure uniform conditions for the implementation of this Directive, as for the drawing up of the standard forms for the publication of notices, the standard form for the European Procurement Passport and the common template to be used by the oversight bodies for drawing up the implementation and statistical report, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No. 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers24 . The advisory procedure should be used for the adoption of these implementing acts, which do not have any impact either from the financial point of views or on the nature and scope of obligations stemming from this Directive. On the contrary, these acts are characterised by a mere administrative purpose and serve to facilitate the application of the rules set by this Directive.
Amendment 325 #
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 via public contracts by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose.
Amendment 331 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 2
Article 1 – paragraph 2 – subparagraph 2
Amendment 346 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 – point a
Article 2 – paragraph 1 – point 6 – point a
(a) they are established for or have the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; for that purpose, a body which operates in normal market conditions, aims to make a profit, and bears the losses resulting from the exercise of its activity does not have the purpose of meeting needs in the general interest, not having an industrial or commercial character;
Amendment 353 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – point a a (new)
Article 2 – paragraph 1 – point 8 – point a a (new)
(aa) or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority. A 'work' means the outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function.
Amendment 354 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – point b
Article 2 – paragraph 1 – point 8 – point b
Amendment 355 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – point c
Article 2 – paragraph 1 – point 8 – point c
Amendment 359 #
Proposal for a directive
Article 2 – paragraph 1 – point 15
Article 2 – paragraph 1 – point 15
(15) ‘procurement documents’ means allny documents produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure, including the contract notice, the prior information notice where it is used a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents.
Amendment 371 #
Proposal for a directive
Article 2 – paragraph 1 – point 23 a (new)
Article 2 – paragraph 1 – point 23 a (new)
(23a) Service concession' is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
Amendment 406 #
Proposal for a directive
Article 5 – paragraph 9
Article 5 – paragraph 9
Amendment 419 #
Proposal for a directive
Article 10 – paragraph 1 – point c
Article 10 – paragraph 1 – point c
Amendment 431 #
Proposal for a directive
Article 10 – paragraph 1 – point d
Article 10 – paragraph 1 – point d
(d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council27 , transactions by the contracting authorities to raise money or capital, central bank services and operations conducted with the European Financial Stability Facility;
Amendment 438 #
Proposal for a directive
Article 10 – paragraph 1 – point e
Article 10 – paragraph 1 – point e
(e) employment contracts including the secondment of temporary personnel;
Amendment 443 #
Proposal for a directive
Article 10 – paragraph 1 – point f a (new)
Article 10 – paragraph 1 – point f a (new)
(fa) civil protection, emergency preparedness and response and emergency medical services;
Amendment 452 #
Proposal for a directive
Article 10 a (new)
Article 10 a (new)
Amendment 453 #
Proposal for a directive
Article 10 b (new)
Article 10 b (new)
Article 10b Specific Regimes to deliver SGI This Directive shall not apply to tried and tested Member State procedures that are based on the user’s free choice of service providers (i.e. voucher system, free choice model, triangular relationship) as well as the principle that all providers which are able to comply with the conditions previously laid down by law should, irrespective of their legal form, be permitted to provide services, provided that account is taken of the general principles of equal treatment, transparency and non-discrimination.
Amendment 454 #
Proposal for a directive
Article 10 c (new)
Article 10 c (new)
Article 10c Service concession Without prejudice to the application of Article 10a , this Directive shall not apply to service concessions as defined in Article 2(23 a).
Amendment 459 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point b
Article 11 – paragraph 1 – subparagraph 1 – point b
(b) at least 980 % of the activities of that legal person, subject to the contract, are carried out for the controlling contracting authority or for other legal persons controlled by that contracting authority;
Amendment 476 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point c
Article 11 – paragraph 1 – subparagraph 1 – point c
(c) there is no private participation in the controlled legal person, with the exception of legally enforced forms of private participation.
Amendment 483 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 2
Article 11 – paragraph 1 – subparagraph 2
Amendment 493 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Paragraph 1 also applies where a controlled entity which is a contracting authority awards a contract to its controlling entity or entities, or to another legal person controlled by the same contracting authority, provided that there is no private participation in the legal person being awarded the public contract, with the exception of legally enforced forms of private participation.
Amendment 501 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – introductory part
Article 11 – paragraph 3 – subparagraph 1 – introductory part
3. A contracting authority, which does not exercise over a legal person control within the meaning of paragraph 1, may nevertheless award a public contract without applyingoutside the scope of this Directive to a legal person which it controls jointly with other contracting authorities, where the following conditions are fulfilled:
Amendment 507 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point b
Article 11 – paragraph 3 – subparagraph 1 – point b
(b) at least 980 % of the activities of that legal person, subject to the contract, are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities;
Amendment 520 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point c
Article 11 – paragraph 3 – subparagraph 1 – point c
(c) there is no private participation in the controlled legal person, with the exception of legally enforced forms of private participation.
Amendment 525 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2
Article 11 – paragraph 3 – subparagraph 2
Amendment 538 #
Proposal for a directive
Article 11 – paragraph 4 – introductory part
Article 11 – paragraph 4 – introductory part
4. An agreement concluded between two or more contracting authorities shall not be deemed to be a public contract within the meaning of Article 2(6)7) of this Directive and thus fall outside the scope of this Directive where the following cumulative conditions are fulfilled:
Amendment 540 #
Proposal for a directive
Article 11 – paragraph 4 – point a
Article 11 – paragraph 4 – point a
(a) the agreement establishes a genuine cooperation between thepurpose of the partnership is the provision of a public-service task conferred on all participating contractingpublic authorities aimed at carrying out jointly, or the provision of an ancillary task necessary to deliver their public service tasks and involving mutual rights and obligations of the par conferred on all the public authorities;
Amendment 546 #
Proposal for a directive
Article 11 – paragraph 4 – point b
Article 11 – paragraph 4 – point b
Amendment 558 #
Proposal for a directive
Article 11 – paragraph 4 – point c
Article 11 – paragraph 4 – point c
(c) the participating contractingpublic authorities do not perform on the open market more than 120 % in terms of turnover of the activities which are relevant in the context of the agreemen, subject to the contract;
Amendment 562 #
Proposal for a directive
Article 11 – paragraph 4 – point d
Article 11 – paragraph 4 – point d
Amendment 569 #
Proposal for a directive
Article 11 – paragraph 4 – point e
Article 11 – paragraph 4 – point e
(e) there is no private participation in any of the contracting authorities invol task is carried out solely by the public authorities concerned, with no participation of a private party with the exception of contracting authorities participating in the cooperation as a public law body in the sense of Article 2(6) of this Directived.
Amendment 574 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 1
Article 11 – paragraph 5 – subparagraph 1
Amendment 576 #
Proposal for a directive
Article 11 – paragraph 5 – subparagraph 2
Article 11 – paragraph 5 – subparagraph 2
The exclusions provided for in paragraphs 1 to 4 shall cease to apply from the moment any private participation takes place, with the effect that ongoing contracts need to be opened to competition through regular procurement procedures, unless the private participation is legally enforced and/or the private participation was not foreseeable at the time of the initial contracting.
Amendment 581 #
Proposal for a directive
Article 11 – paragraph 5 a (new)
Article 11 – paragraph 5 a (new)
5a. However transferring tasks between public sector organisations is a matter for the Member States' internal administrative organisation and is not subject to procurement rules.
Amendment 599 #
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 relevant professional qualification levels of the staff to be responsible for the performance of the contract in question.
Amendment 602 #
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 and/or disadvantaged workerpersons. 'Disadvantaged persons' includes amongst others: the unemployed, people experiencing particular difficulty in achieving integration, people at risk of exclusion, members of vulnerable groups and members of disadvantaged minorities.
Amendment 605 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Unless otherwiseNotwithstanding providedsions in this Directive or in the national law concerning access to information, and without prejudice to the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 48 and 53 of this Directive, the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.
Amendment 620 #
Proposal for a directive
Article 19 – paragraph 7 – subparagraph 1
Article 19 – paragraph 7 – subparagraph 1
7. Member States shall ensure that, at the latest 24 years after the date provided for in Article 92(1), all procurement procedures under this Directive are performed using electronic means of communication, in particular e-submission, in accordance with the requirements of this Article.
Amendment 634 #
Proposal for a directive
Article 21 – paragraph 2 – point b
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.
Amendment 635 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point b
Article 21 – paragraph 3 – subparagraph 1 – point b
(b) that candidates and tenderers, e.g. company directors or any other person having powers of decision, powers or control in respect of the candidate or tenderer, are required to submit at the beginning of the procurement procedure a declaration on the existence of any privileged links with the persons referred to in paragraph 2(b), which are likely to place those persons in a situation of conflict of interests; the contracting authority shall indicate in the individual report referred to in Article 85 whether any candidate or tenderer has submitted a declaration.
Amendment 637 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 3
Article 21 – paragraph 3 – subparagraph 3
Where privileged links are identified, the contracting authority shall immediately inform the oversight body designated in accordance with Article 84 and take appropriate measures to avoid any undue influence on the award process and ensure equal treatment of candid, document those measures adequatesly and tenderers. Where the conflict of interests cannot be effectively remedied by other means, the candidate or tenderer concerned shall be excluded from the procedureensure equal treatment of candidates and tenderers.
Amendment 640 #
Proposal for a directive
Article 21 – paragraph 4
Article 21 – paragraph 4
Amendment 717 #
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 2
Article 27 – paragraph 1 – subparagraph 2
In the contract notice or in the invitation to confirm interest contracting authorities shall describe the procurement and the minimum requirements to be met and specify the awardmain award criterion or criteria so as to enable economic operators to identify the nature and scope of the procurement and decide whether to request to participate in the negotiations. In the technical specifications, contracting authorities shall specify which parts thereof define the minimum requirements.
Amendment 723 #
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 3
Article 27 – paragraph 1 – subparagraph 3
The minimum time limit for receipt of requests to participate shall be 30 dayssufficient from the date on which the contract notice or, where a prior information notice is used as a means of calling for competition, the invitation to confirm interest is sent; the minimum time limit for the receipt of tenders shall be 30 dayssufficient from the date on which the invitation is sent. Article 26 (3) to (6) shall apply.
Amendment 727 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 1
Article 27 – paragraph 3 – subparagraph 1
3. Contracting authorities shall negotiate with tenderers the tenders submitted by them 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. The negotiation may focus on the legal, technical and financial components of the tender as well as on the variants and the correction of material errors.
Amendment 736 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 – point b
Article 27 – paragraph 3 – subparagraph 2 – point b
Amendment 741 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 – point c
Article 27 – paragraph 3 – subparagraph 2 – point c
(c) the awardmain award criterion or criteria.
Amendment 752 #
Proposal for a directive
Article 27 – paragraph 5
Article 27 – paragraph 5
5. Competitive procedures with negotiation may take place in successive stages in order to reduce the number of tenders to be negotiated by applying the awardselection criteria specified in the contract notice, in the invitation to confirm interest or in the procurement documents. In the contract notice, the invitation to confirm interest or the procurement documents, the contracting authority shall indicate whether it will use this option.
Amendment 758 #
Proposal for a directive
Article 28 – paragraph 2
Article 28 – paragraph 2
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 awardmain award criterion or criteria.
Amendment 767 #
Proposal for a directive
Article 28 – paragraph 5
Article 28 – paragraph 5
5. The contracting authority shallmay either set a limited timeframe for the dialogue, which figures in the contract notice or continue the dialogue until it can identify the solution or solutions which are capable of meeting its needs.
Amendment 770 #
Proposal for a directive
Article 28 – paragraph 7 – subparagraph 1 a (new)
Article 28 – paragraph 7 – subparagraph 1 a (new)
At the request of the contracting authority, the tenderer identified as having submitted the most economically advantageous tender may be asked to clarify aspects of the tender or confirm commitments contained in the tender provided this does not have the effect of modifying substantial aspects of the tender or of the call for tender and does not risk distorting competition or causing discrimination.
Amendment 792 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point a
Article 30 – paragraph 2 – subparagraph 1 – point a
(a) where no tenders or no suitable tenders or no requests to participate have been submitted in response to an open procedure or, a restricted procedure or a negotiated procedure with prior publication, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission or the national oversight body designated according to Article 84 where they so request.
Amendment 801 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
(i) the absence of competition for technical or legal reasons;
Amendment 808 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point d
Article 30 – paragraph 2 – subparagraph 1 – point d
(d) insofar as is strictly necessary where, for reasons of extreme urgency brought about by force majeureand which has not been foreseeable by the contracting authority, the time limits for the open, restricted or competitive procedures with negotiation cannot be complied with; the circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authority;
Amendment 813 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 2 – indent 1
Article 30 – paragraph 2 – subparagraph 2 – indent 1
– it is irregular or unacceptable, andor
Amendment 824 #
Proposal for a directive
Article 31 – paragraph 1 – subparagraph 3
Article 31 – paragraph 1 – subparagraph 3
The term of a framework agreement shall not exceed foursix years, save in exceptional cases duly justified, in particular by the subject of the framework agreement. The term of a framework agreement regarding the maintenance is based on the lifecycle of the work or supply.
Amendment 853 #
Proposal for a directive
Article 33 – paragraph 1 – subparagraph 1
Article 33 – paragraph 1 – subparagraph 1
Amendment 870 #
Proposal for a directive
Article 36
Article 36
Amendment 871 #
Proposal for a directive
Article 37 – paragraph 1
Article 37 – paragraph 1
1. OneTwo or more contracting authorities may agree to perform certain specific procurements jointly.
Amendment 872 #
Proposal for a directive
Article 37 – paragraph 2 – subparagraph 1
Article 37 – paragraph 2 – subparagraph 1
Where one contracting authority alonthe conducts the of a procurement procedures concerned in all its stages from the publication of the call for competition to the end of the performance of the ensuing contract or contracts, that contracting authority shall have sole responsibility for fulfilling the obligations pursuant to this Directive. in its entirety is carried out jointly by the contracting authorities concerned, they shall be jointly responsible for fulfilling the obligations pursuant to this Directive. Contracting authorities shall be deemed to conduct an award procedure jointly where one contracting authority manages the procedure on both its own behalf and on that of the other contracting authorities concerned.
Amendment 873 #
Proposal for a directive
Article 37 – paragraph 2 – subparagraph 2
Article 37 – paragraph 2 – subparagraph 2
However, where the conduct of the procurement procedures and the performance of the ensuing contracts is carried out by more than one of the participatingis not in its entirety carried out jointly by the contracting authorities, concerned each shall continue to be responsible for fulfilling its obligations pursuant to this Directive in respect of the stages it conducts.
Amendment 881 #
Proposal for a directive
Article 38 – paragraph 5 – point c
Article 38 – paragraph 5 – point c
Amendment 887 #
Proposal for a directive
Article 39 – paragraph 1 – subparagraph 1
Article 39 – paragraph 1 – subparagraph 1
1. Before launching a procurement procedure, contracting authorities may conduct market consultations in order to assess the structure, capability and capacity of the market and/or to inform economic operators of their procurement plans and requirements.
Amendment 889 #
Proposal for a directive
Article 39 – paragraph 1 – subparagraph 2
Article 39 – paragraph 1 – subparagraph 2
For this purpose, contracting authorities may seek or accept advice from administrative support structures or from third parties or market participants, provided that such advice does not have the effect of precluding competition and does not result in a violation of the principles of non-discrimination and transparency.
Amendment 895 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 1
Article 40 – paragraph 1 – subparagraph 1
The technical specifications as defined in point 1 of Annex VIII shall be set out in the procurement documents. They shall define the characteristics required of a works, service or supply and have to be linked to the subject matter of the contract.
Amendment 899 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 2
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 as referred to in point (22) of Article 2.
Amendment 908 #
Proposal for a directive
Article 40 – paragraph 1 – subparagraph 5
Article 40 – paragraph 1 – subparagraph 5
Where mandatory accessibility standards are adopted by a legislative act of the Union, technical specifications shall, as far as accessibility criteria for persons with disabilities or design for all users are concerned, be defined by reference thereto.
Amendment 913 #
Proposal for a directive
Article 40 – paragraph 3 – point a
Article 40 – paragraph 3 – point a
(a) in terms of performance or functional requirements, including environmental and social characteristics, provided that the parameters are sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting authorities to award the contract;
Amendment 917 #
Proposal for a directive
Article 40 – paragraph 3 – point b
Article 40 – paragraph 3 – point b
(b) by reference to technical specifications and, in order of preference, to national standards transposing European standards, European tTechnical approvalsAssessment, common technical specifications, international standards, other technical reference systems established by the European standardisation bodies or when any of those do not exist national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the supplies; each reference shall be accompanied by the words ‘or equivalent’;
Amendment 921 #
Proposal for a directive
Article 40 – paragraph 4
Article 40 – paragraph 4
4. UnlessWhen justified by the subject-matter of the contract, technical specifications shall notmay refer to a specific make or source, or a particular process which characterises the products or services, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraph 3 is not possible. Such reference shall be accompanied by the words ‘or equivalent’.
Amendment 926 #
Proposal for a directive
Article 40 – paragraph 5
Article 40 – paragraph 5
5. Where a contracting authority uses the option of referring to the specifications referred to in point (b) of paragraph 3, it shall not reject a tender on the grounds that the works, supplies and services tendered for do not comply with the specifications to which it has referred, once the tenderer proves in its tender by whatever appropriate means, including the means of proof referred to in Article 42, that the solutions it proposes satisfy in an equivalent manner the requirements defined by the technical specifications.
Amendment 928 #
Proposal for a directive
Article 40 – paragraph 6 – subparagraph 2
Article 40 – paragraph 6 – subparagraph 2
In its tender, the tenderer shall prove by any appropriate means, including those referred to in Article 42, that the work, supply or service in compliance with the standard meets the performance or functional requirements of the contracting authority.
Amendment 930 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 1 – introductory part
Article 41 – paragraph 1 – subparagraph 1 – introductory part
Where contracting authorities lay down environmentin the technical, social or other characteristics of pecifications, the award criteria works, service or supply in terms of performance or functional requirements as referred to in point (a) of Article 40(3) they may require that these works, services or supplies bear a specific label the contract performance clauses environmental, social or other requirements or criteria, they may require a specific label as means of proof that these works, services or supplies correspond to such requirements or criteria, provided that all of the following conditions are fulfilled:
Amendment 934 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 1 – point a
Article 41 – paragraph 1 – subparagraph 1 – point a
(a) the requirements forto be met in order to obtain the label only concern characteristicsriteria which are linked to the subject-matter of the contract and are appropriate to define characteristics of the works, supplies or services that are the subject-matter of the contract;
Amendment 939 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 1 – point b
Article 41 – paragraph 1 – subparagraph 1 – point b
(b) the requirements for the label are drawn up on the basis of scientific information orto be met in order to obtain the label are based on other objectively verifiable and non- discriminatory criteria;
Amendment 943 #
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 relevant stakeholders, including government bodies, consumers, manufacturers, trade unions, distributors and environmental and social organisations, may participate,have a substantial role. Government bodies may participate but are not obligatory.
Amendment 952 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 1 – point e
Article 41 – paragraph 1 – subparagraph 1 – point e
(e) the criteria ofrequirements to be met in order to obtain the label are set by a third party which is independent from the economic operator applying for the label.
Amendment 959 #
Proposal for a directive
Article 41 – paragraph 1 – subparagraph 2
Article 41 – paragraph 1 – subparagraph 2
Contracting authorities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the specific label indicated by the contracting authorities. For products that do not bear the label, contracting authorities shall also accept a technical dossier of the manufacturer or other appropriate means of proofContracting authorities shall accept other appropriate means of proving such requirements, which may include a technical dossier of the manufacturer where the economic operator concerned has no access to the label, or no possibility of obtaining it within the relevant time limits, provided that the lack of access is not attributable to the economic operator concerned. However in order not to discriminate those tenderers who invest time and money for certificates or test reports, the burden for approving equivalence should be placed on the tenderer claiming equivalence.
Amendment 968 #
Proposal for a directive
Article 42 – paragraph 1 – subparagraph 1
Article 42 – paragraph 1 – subparagraph 1
Contracting authorities may require that economic operators provide a test report from a recognised body or a certificate issued by such a body as means of proof of conformity with requirements or criteria set out in the technical specifications, the award criteria or the contract performance clauses.
Amendment 969 #
Proposal for a directive
Article 42 – paragraph 1 – subparagraph 2
Article 42 – paragraph 1 – subparagraph 2
Where contracting authorities require the submission of certificates drawn up by recognised bodies attesting conformity with a particular technical specificationa specific conformity assessment body, certificates from equivalent other recognised bodies shall also be accepted by the contracting authorities.
Amendment 971 #
Proposal for a directive
Article 42 – paragraph 2
Article 42 – paragraph 2
2. Contracting authorities shall accept other appropriate means of proof than those referred to in paragraph 1, such as a technical dossier of the manufacturer where the economic operator concerned has no access to the certificates or test reports referred to in paragraph 1, or no possibility of obtaining them within the relevant time limits, provided that the lack of access is not attributable to the economic operator concerned. However to limit the burden on Contracting Authorities and in order not to discriminate those tenderers who invest time and money for certificates or test reports, the burden for providing equivalence should be placed on the tenderer claiming equivalence.
Amendment 974 #
Proposal for a directive
Article 42 – paragraph 4
Article 42 – paragraph 4
4. Member States shall make available to other Member States, upon request, any information related to the evidence and documents submitted in accordance with Article 40(6), Article 41 and paragraphs 1, 2 and 3 of this Article to prove compliance with technical requirements. The competent authorities of the Member State of establishment of the economic operator shall provide this information in accordance with Article 88.
Amendment 975 #
Proposal for a directive
Article 43 – paragraph 1
Article 43 – paragraph 1
1. Contracting authorities mayshall authorise tenderers to submit variants. T as long as they are linked to the subject matter of the contract. If they do not authorise variants, they shall indicate this 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 authorisrejected without such indication.
Amendment 981 #
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 985 #
Proposal for a directive
Article 43 – paragraph 3 – subparagraph 1
Article 43 – paragraph 3 – subparagraph 1
Amendment 987 #
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 990 #
Proposal for a directive
Article 44 – paragraph 1 – subparagraph 1
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 provideMember States shall provide for provisions on the subdivision of contracts into lots at their national level. Contracting authorities shall indicate, in the contract notice or in the invitation to confirm interest a specific explanati, whether tenders are limited to one of its reasonsr more lots only.
Amendment 1012 #
Proposal for a directive
Article 44 – paragraph 3 – subparagraph 3
Article 44 – paragraph 3 – subparagraph 3
Amendment 1014 #
Proposal for a directive
Article 44 – paragraph 4
Article 44 – paragraph 4
Amendment 1022 #
Proposal for a directive
Article 50 – paragraph 1
Article 50 – paragraph 1
Amendment 1023 #
Proposal for a directive
Article 51 – paragraph 1
Article 51 – paragraph 1
1. Contracting authorities shall offer unrestricted and full direct access free of charge by electronic means to the procurement documents from the date of publication of the notice in accordance with Article 49 or the date on which the invitation to confirm interest is sent. Contracting authorities may ask under specific circumstances for name, address or other means to identify the tenderer. The text of the notice or the invitation to confirm interest shall specify the internet address at which this documentation is accessible.
Amendment 1029 #
Proposal for a directive
Article 54 – paragraph 2
Article 54 – paragraph 2
2. Contracting authorities may decide not to award a contract to the tenderer submitting the best tender where they haveit has been established that the tender does not comply, at least in an equivalent manner, with obligations established by Union or national legislation in the field of social and labour law or environmental law or ofcollective agreements which apply in the place where the work, service or supply is performed or by the international social and environmental law provisions listed in Annex XI and provided they are linked to the subject matter of the contract.
Amendment 1039 #
Proposal for a directive
Article 54 – paragraph 3
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 1-2 of this section.
Amendment 1041 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2
Article 55 – paragraph 1 – subparagraph 2
The obligation to exclude a candidate or tenderer from participation in a public contract shall also apply where the conviction by final judgment has condemned company directors or any other any persons having powers of representation, decision or control in respect of the candidate or tenderer.
Amendment 1069 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 2
Article 55 – paragraph 3 – subparagraph 2
Amendment 1080 #
Proposal for a directive
Article 56 – paragraph 1 – subparagraph 2
Article 56 – paragraph 1 – subparagraph 2
They are not obliged to impose all the conditions listed in paragraphs 2, 3 and 4, but they shall not provide requirements other than those listed, except in duly justified circumstances related to the special risks attached to the very nature of the works, services or supplies.
Amendment 1097 #
Proposal for a directive
Article 57 – paragraph 3 – subparagraph 2
Article 57 – paragraph 3 – subparagraph 2
Candidates and tenderers shall not be required to re-submit a certificate or other documentary evidence that has already been submitted to the same contracting authority within the past fourtwo years in an earlier procedure and is still valid. The contracting authority is however entitled to demand more recent evidence in case of questionable validity during the procedure.
Amendment 1098 #
Proposal for a directive
Article 58 – paragraph 2
Article 58 – paragraph 2
2. Recourse to e-Certis shall become obligatory and contracting authorities shall be obliged to require only such of types of certificates or forms of documentary evidence that are available in e-Certis at the latest 2 years after the date provided for in Article 92(1) except in duly justified circumstances related to the special risks attached to the very nature of the works, services or supplies.
Amendment 1103 #
Proposal for a directive
Article 59 – paragraph 4
Article 59 – paragraph 4
4. The European Procurement Passport shall be recognised by all contracting authorities as proof of fulfilment of the conditions for participation covered by it and shall not be questioned without justification. Such justification may be related to the very nature of the individual case or the fact that the passport was issued more than six months earlier. In such cases the Contracting Authority is entitled to demand more recent or divergent types of certificates.
Amendment 1108 #
Proposal for a directive
Article 60 – paragraph 3 a (new)
Article 60 – paragraph 3 a (new)
3a. A contracting authority shall request the tenderers or candidates to provide evidence that they have taken into account, when drawing up their tender, the obligations relating to employment protection provisions and the working conditions which are in force in the place where the works are to be carried out or the service is to be provided.
Amendment 1112 #
Proposal for a directive
Article 61 – paragraph 2
Article 61 – paragraph 2
2. Where contracting authorities require the production of certificates drawn up by independent bodies attesting that the economic operator complies with certain environmental management schemes or standards, they shall refer to the European Union Eco-Management and Audit Scheme (EMAS) or to other environmental management schemes as recognized in accordance with Article 45 of Regulation (EC) No 1221/2009 of the European Parliament and of the Council41 or other environmental management standards based on the relevant European or international standards by accredited bodies. They shall recognise equivalent certificates from bodies established in other Member States. They shall also accept other evidence of equivalent environmental management measures from economic operators that have no access to such certificates, or no possibility of obtaining them within the relevant time limits. In order not to discriminate those tenderers who invest time and money for certificates or test reports, the burden for providing equivalence should be placed on the tenderer claiming equivalence.
Amendment 1115 #
Proposal for a directive
Article 61 – paragraph 3
Article 61 – paragraph 3
3. Upon request, Member States shall make available to other Member States, in accordance with Article 88, any information relating to the documents produced as evidence of compliance with quality, social and environmental standards referred to in paragraphs 1 and 2 of this Article.
Amendment 1134 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point b
Article 66 – paragraph 1 – subparagraph 1 – point b
Amendment 1149 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 2
Article 66 – paragraph 1 – subparagraph 2
Costs may be assessed, on the choice of the contracting authority, on the basis of the price only or using a cost- effectiveness approach, such as a life-cycle costing approach, under the conditions set out in Article 67.
Amendment 1153 #
Proposal for a directive
Article 66 – paragraph 2 – introductory part
Article 66 – paragraph 2 – introductory part
2. The most economically advantageous tender referred to in point (a) of paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject-matter of the public contract in question. Those criteria shall include, in addition to the price or costs referred to in point (b) of paragraph 1, other criteria linked to the subject-matter of the public contract in question, such as:
Amendment 1164 #
Proposal for a directive
Article 66 – paragraph 2 – point a
Article 66 – paragraph 2 – point a
(a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, environmental characteristics, social and innovative characteristics;
Amendment 1180 #
Proposal for a directive
Article 66 – paragraph 2 – point b
Article 66 – paragraph 2 – point b
(b) for service contracts and contracts involving works and especially the design of works, the organisation, qualification and experience of the staff assigned to performing the contract in question may be taken into consideration, with the consequence that, following the award of the contract, such staff may only be replaced with the consent of the contracting authority, which must verify that replacements ensure equivalent organisation and quality;
Amendment 1189 #
Proposal for a directive
Article 66 – paragraph 2 – point d
Article 66 – paragraph 2 – point d
(d) 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, to the extent that those criteria are specified in accordance with paragraph 4 and they concern factors directly involved in these processes and characterise the specific process of production or provision of the requested works, supplies or services.
Amendment 1191 #
Proposal for a directive
Article 66 – paragraph 2 – point d a (new)
Article 66 – paragraph 2 – point d a (new)
(da) The contracting authority may also include the necessary price element within the criterion of the economically most advantageous tender by setting a fixed price or cost on the basis of which economic operators will compete on pure quality criteria.
Amendment 1201 #
Proposal for a directive
Article 66 – paragraph 4
Article 66 – paragraph 4
4. Award criteria shall not confer an unrestricted freedom of choice on the contracting authority. They shall ensure the possibility of effective competition and shall be accompanied by requirements that allow the information provided by the tenderers to be effectively verified. Contracting authorities shall verify effectively, on the basis of the information and proof provided by the tenderers, whether the tenders meet the award criteriabe accompanied by requirements that allow the information provided by the tenderers to be effectively verified.
Amendment 1217 #
Proposal for a directive
Article 67 – paragraph 1 – point b
Article 67 – paragraph 1 – point b
(b) external costs such as social and/or environmental costs, directly linked to the life cycle, provided their monetary value can be determined and verified, which may include the cost of emissions of greenhouse gases and of other pollutant emissions and other climate change mitigation costs.
Amendment 1220 #
Proposal for a directive
Article 67 – paragraph 2 – subparagraph 1 – introductory part
Article 67 – paragraph 2 – subparagraph 1 – introductory part
2. 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 ofdata to be provided by the tenderers and the method which the contracting authority will use to determine the life-cycle costs. The methodology used for the assessment of those life-cycle costs must fulfil all of the following conditions:
Amendment 1224 #
Proposal for a directive
Article 67 – paragraph 2 – subparagraph 1 – point a
Article 67 – paragraph 2 – subparagraph 1 – point a
(a) it has been drawn up on the basis of scientific information or is based on other objectively verifiable and non- discriminatory criteria;
Amendment 1226 #
Proposal for a directive
Article 67 – paragraph 2 – subparagraph 1 – point b
Article 67 – paragraph 2 – subparagraph 1 – point b
Amendment 1229 #
Proposal for a directive
Article 67 – paragraph 2 – subparagraph 1 – point c a (new)
Article 67 – paragraph 2 – subparagraph 1 – point c a (new)
(ca) the data required can be provided with reasonable effort by normally diligent economic operators, including operators from third countries.
Amendment 1236 #
Proposal for a directive
Article 67 – paragraph 3 – subparagraph 1
Article 67 – paragraph 3 – subparagraph 1
3. Whenever aAny common methodology for the calculation of life-cycle costs is adopted as part of a legislative act of the Union, including by delegated acts pursuant to sector specific legislation, it shall be applied where life-cycle costing isor as part of a European technical specification shall be deemed to meet the criteria as set out in Paragraph 2. and may be included in the award criteria referred to in Article 66(1).
Amendment 1245 #
Proposal for a directive
Article 69
Article 69
Amendment 1297 #
Proposal for a directive
Article 69 a (new)
Article 69 a (new)
Article 69a Abnormally low tenders 1. If, for a given contract, tenders appear to be abnormally low in relation to the goods, works or services, the contracting authority shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it consider relevant. Those details may relate in particular to: (a) the economics of the construction method, the manufacturing process or the services provided; (b) the technical solutions chosen and/or any exceptionally favourable conditions available to the tenderer for the execution of the work, for the supply of the goods or services; (c) the originality of the work, supplies or services proposed by the tenderer; (d) compliance with the provisions relating to employment protection and working conditions in force at the place where the work, service or supply is to be performed; (e) the possibility of the tenderer obtaining State aid. 2. The contracting authority shall verify those constituent elements by consulting the tenderer, taking account of the evidence supplied. 3. Where tenders appear to be abnormally low for other reasons, contracting authorities may also request such information. 4. Where a contracting authority establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender can be rejected on that ground alone only after consultation with the tenderer where the latter is unable to prove, within a sufficient time limit fixed by the contracting authority, that the aid in question was granted legally. Where the contracting authority rejects a tender in these circumstances, it shall inform the Commission of that fact.
Amendment 1305 #
Proposal for a directive
Article 70
Article 70
Contracting authorities may lay down special conditions linked to the subject matter and 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 considerations. 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 1320 #
Proposal for a directive
Article 71 – paragraph 1
Article 71 – paragraph 1
1. In the procurement documents, the contracting authority may ask or may 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. When there is need of a special know-how and/or equipment, subcontractors should be named in the procurements contract by the main contractor.
Amendment 1330 #
Proposal for a directive
Article 71 – paragraph 2
Article 71 – paragraph 2
Amendment 1340 #
Proposal for a directive
Article 71 – paragraph 3
Article 71 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability.
Amendment 1356 #
Proposal for a directive
Article 72 – paragraph 3 – subparagraph 2
Article 72 – paragraph 3 – subparagraph 2
However, the first subparagraph shall not apply in the event of universal or partial succession into the position of the initial contractor, following corporate restructuring operations or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive or in case of the take-over of the main contractors' signatory status by the contracting authority accordingly to the Member State provisions in line with Article 71.
Amendment 1360 #
Proposal for a directive
Article 72 – paragraph 4
Article 72 – paragraph 4
Amendment 1374 #
Proposal for a directive
Article 72 – paragraph 7
Article 72 – paragraph 7
7. Contracting authorities shall not have recourse to modifications of the contract in the following cases: (a) where the modification would aim at remedying deficiencies in the performance of the contractor or the consequences, which can be remedied through the enforcement of contractual obligations; (b) where the modification would aim at compensating risks of price increases that have been hedged by the contractor.
Amendment 1377 #
Proposal for a directive
Article 73 – paragraph 1 – introductory part
Article 73 – paragraph 1 – introductory part
1. Member States shall ensure that contracting authorities have the possibility, under the conditions determined by the applicable national contract law, to terminate a public contract during its term, where one of the following conditions is fulfilled:
Amendment 1381 #
Proposal for a directive
Article 73 – paragraph 1 – point c
Article 73 – paragraph 1 – point c
Amendment 1384 #
Proposal for a directive
Article 73 – paragraph 1 a (new)
Article 73 – paragraph 1 a (new)
Amendment 1399 #
Proposal for a directive
Article 75 – paragraph 1
Article 75 – paragraph 1
Amendment 1406 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 1
Article 75 – paragraph 3 – subparagraph 1
3. The notices referred to in paragraphs 1 and 2 shall contain the information referred to in Annexes VI Part H and I, in accordance with the standard formsI.
Amendment 1412 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 2
Article 75 – paragraph 3 – subparagraph 2
Amendment 1417 #
Proposal for a directive
Article 75 – paragraph 4
Article 75 – paragraph 4
4. The notices referred to in paragraphs 1 and 2 shall be published in accordance with Article 49.
Amendment 1427 #
Proposal for a directive
Article 76 – paragraph 1
Article 76 – paragraph 1
Amendment 1432 #
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 quality, continuity, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of users, 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 1460 #
Proposal for a directive
Article 84
Article 84
Amendment 1506 #
Proposal for a directive
Article 85 – paragraph 1 – introductory part
Article 85 – paragraph 1 – introductory part
For every above threshold procurement be it a contract or framework agreement, and or every time a dynamic purchasing system is established, contracting authorities shall draw up a written report which shall include at least the following:
Amendment 1511 #
Proposal for a directive
Article 85 – paragraph 1 – point f a (new)
Article 85 – paragraph 1 – point f a (new)
(fa) as far as the competitive dialogue is concerned, the circumstances as laid down in Article XX justifying the use of this procedure;
Amendment 1514 #
Proposal for a directive
Article 85 – paragraph 2
Article 85 – paragraph 2
The contracting authorities shall document the progress of all procurement procedures, whether or not those 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, stake appropriate steps to document the progress of award procedures conducted by electiron and award of the contractic means.
Amendment 1519 #
Proposal for a directive
Article 85 – paragraph 3
Article 85 – paragraph 3
The report, or its main elements, shall be communicated to the Commission or to the national oversight body where they so request.
Amendment 1523 #
Proposal for a directive
Article 86
Article 86
Amendment 1542 #
Proposal for a directive
Article 86 a (new)
Article 86 a (new)
Amendment 1547 #
Proposal for a directive
Article 87 – paragraph 1
Article 87 – paragraph 1
1. Member States shall make available technical support structures in order to provide legal and economic adviceinformation, guidance and assistance to contracting authorities in preparing and carrying out procurement procedures. Member States shall also ensure that each contracting authority can obtain competent assistance and adviceinformation on individual questions.
Amendment 1549 #
Proposal for a directive
Article 87 – paragraph 4
Article 87 – paragraph 4
Amendment 1551 #
Proposal for a directive
Article 88 – paragraph 3
Article 88 – paragraph 3
Amendment 1556 #
Proposal for a directive
Article 89 – paragraph 3
Article 89 – paragraph 3
3. The delegation of power referred to in Articles 6, 13, 19, 20, 23, 54, 59, 67 and 8659 may be revoked at any time by the European Parliament or by the Council. A revocation decision shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
Amendment 1560 #
Proposal for a directive
Annex 6 – part H
Annex 6 – part H
Amendment 1566 #
Proposal for a directive
Annex 8 – paragraph 1 – point 2 – introductory part
Annex 8 – paragraph 1 – point 2 – introductory part
(2) ‘"standard’" means a technical specification established by consensus and approved by a recognised standardising bodyation organisation for repeated or continuous application, compliance with whichuse, with which compliance is not compulsory and which falls into one of the following categories:
Amendment 1567 #
Proposal for a directive
Annex 8 – paragraph 1 – point 4
Annex 8 – paragraph 1 – point 4
(4) ‘'Common technical specification’' means a technical specification laid down in accordance with a procedure recognised by the Member States or, in the field of in formation and communication technologies, in accordance with Articles 9 and 10 of Parliament and Council Regulation [XXX] on European standardisation [and amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/105/EC and 2009/23/EC of the European Parliament and the Council] which has been published in the Official Journal of the European Union;
Amendment 1590 #
Proposal for a directive
Annex 16 – rows 7 a to 7 l (new)
Annex 16 – rows 7 a to 7 l (new)
79112000-2 Legal representation services 79100000-5 Legal services 79110000-8 Legal advisory and representation services 79111000-5 Legal advisory services 79112100-3 Stakeholders representation services 79120000-1 Patent and copyright consultancy services 79121000-8 Copyright consultancy services 79121100-90 Software copyright consultancy services 79130000-4 Legal documentation and certification services 79131000-1 Documentation services 79132000-8 Certification services 79140000-7 Legal advisory and information services