[ParlTrack]

Proposal for a directive
Recital 7

(7) Articles 30, 45, 46, 55 and 296 of the Treaty make provision for specific exceptions to the application of the principles set out in the Treaty and, consequently, to the application of law derived from these principles. It therefore follows that none of the provisions in this directive should prevent the imposition or application of any measures considered necessary to safeguard interests recognised as legitimate by these provisions of the Treaty. It is the sole responsibility of a Member State to determine whether a measure is necessary for its national security. Nevertheless, in accordance with ECJ case-law, the possibility of recourse to such exceptions should be interpreted in such a way that their effects do not extend beyond that which is strictly necessary for the protection of the legitimate interests that these Articles of the Treaty help safeguard. This means that non-application of the Directive should be proportionate to the aims pursued and cause as little disturbance as possible to the free movement of goods and/or the provision of services.

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 15 - paragraph 1

~~Provided that they are in conformity with Community law, the contracting authority may specify requirements to guarantee~~The contracting authority shall specify in the contract documents, in the descriptive document or in the additional documents requirements relating to its security of supply.

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 15 - paragraph 2- introductory wording

To this end, the contracting authority may require ~~of the tenderer that the tender submitted contain~~that the tender contain inter alia the following particulars:

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 15 - paragraph 2 - point a

a) ~~evidence that it will be able to honour its obligations~~documentation to support the basis of the tender regarding the export, transfer and transit of goods associated with the contract, including ~~by means of a commitment~~supporting documentation received from the Member State(s) concerned,

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 15 - paragraph 2 - point a a (new)

(aa) evidence that the products and services or any deliverable resulting from these products or services are not currently subject to restrictions regarding disclosure, transfer or use by the contracting authority resulting from export control or security arrangements,

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 15 - paragraph 2 - point d

d) a ~~commitment~~ny supporting documentation received from its national authorities ~~not to obstruct~~regarding the fulfilment of any additional needs required by the contracting authority as the result of an emergency, crisis or armed conflict,

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 15 - paragraph 3

The requirements shall be explained in the specifications or contract documents. A tenderer may not be required to obtain a commitment from a Member State that would restrict that Member State’s freedom to apply only its national export licensing criteria in the circumstances prevailing at the time of an export transfer or transit licensing decision.

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 20 - paragraph 3

3. For public service contracts and public supply contracts, the negotiated procedure without prior publication of a contract notice may be applied: a) for research and development services and for products manufactured purely for the purpose of research, experiment, study or development, with the exception of quantity production to establish commercial viability or to recover research and development costs. ; or b) for the combined development and production of equipment where either:, (i) the production phase immediately follows the development phase; or (ii) the contracted development and production phases overlap on one or more occasions in the process of finalising the design of the equipment, when in the opinion of the contracting authority the development and production must be combined for demonstrable reasons, provided that those contracts are intended to fulfil national defence requirements, either directly or through cooperative projects; or c) where a contract to produce or implement the results arising from an earlier research and development contract is required; when in the opinion of the contracting authority and for demonstrable reasons, the developing contractor should be appointed for this purpose, provided that the contract is intended to fulfil national defence requirements, either directly or through cooperative projects.

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 21 - paragraph 2 - subparagraph 4

The term of a framework agreement may not exceed ~~five~~ten years, save in exceptional cases duly justified, in particular, by the subject of the framework agreement.

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 30 - paragraph 2 - point d

d) has been guilty of grave professional misconduct proven by any means which the contracting authority can justify such as, for example, the breach of his obligations regarding security of information or security of supply during a previous public contract;

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive
Article 37 a (new)

Article 37a Use of electronic auctions 1. Member States may enable contracting authorities to use electronic auctions. 2. In open, restricted or negotiated procedures in the case referred to in Article 30(1)(a), the contracting authorities may decide that the award of a public contract shall be preceded by an electronic auction when the contract specifications can be established with precision. In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second indent of the second subparagraph of Article 32(4) and on the opening for competition of contracts to be awarded under the dynamic purchasing system referred to in Article 33. The electronic auction shall be based: - either solely on prices when the contract is awarded to the lowest price, - or on prices and/or on the new values of the features of the tenders indicated in the specification when the contract is awarded to the most economically advantageous tender. 3. Contracting authorities which decide to hold an electronic auction shall state that fact in the contract notice. The specifications shall include, inter alia, the followingdetails: (a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages; (b) any limits on the values which may be submitted, as they result from the specifications relating to the subject of the contract; (c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them; (d) the relevant information concerning the electronic auction process; (e) the conditions under which the tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding; (f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection. 4. Before proceeding with an electronic auction, contracting authorities shall make a full initial evaluation of the tenders in accordance with the award criterion/criteria set and with the weighting fixed for them. All tenderers who have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values. The invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out. 5. When the contract is to be awarded on the basis of the most economically advantageous tender, the invitation shall be accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in the first subparagraph of Article 53(2). The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic rerankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced beforehand to a specified value. Where variants are authorised, a separate formula shall be provided for each variant. 6. Throughout each phase of an electronic auction the contracting authorities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the specifications. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction. 7. Contracting authorities shall close an electronic auction in one or more of the following manners: (a) in the invitation to take part in the auction they shall indicate the date and time fixed in advance; (b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before they close the electronic auction; (c) when the number of phases in the auction, fixed in the invitation to take part in the auction, has been completed. When the contracting authorities have decided to close an electronic auction in accordance with subparagraph (c), possibly in combination with the arrangements laid down in subparagraph (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction. 8. After closing an electronic auction contracting authorities shall award the contract in accordance with Article 53 on the basis of the results of the electronic auction. Contracting authorities may not have improper recourse to electronic auctions nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the specification.

2008/08/29
Committee: IMCO

Malcolm HARBOUR

Proposal for a directive − amending act
Article 44

Directive 2004/18/EC
Article 10

Subject to Article 296 of the Treaty, Article 10 of Directive 2004/18/EC is amended as follows: "Article 10 "Article 10 Contracts in the fields of defence and security security This Directive shall apply to public contracts awarded in the fields of defence and security with the exception of contracts to which Directive XXXX/X/EC applies. It shall not apply to public contracts excluded from the scope of Directive XXXX/X/EC pursuant to Articles 8 and 9 thereof and Article 296 of the Treaty."

2008/08/29
Committee: IMCO

12 Amendments of Malcolm HARBOUR related to 2007/0280(COD)

ParlTrack - 2011-2024