Activities of Malcolm HARBOUR 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 (141)
Amendment 178 #
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. A body which operates in normal market conditions, aims to make a profit, and bears the losses resulting from the exercise of its activity should not be considered a body governed by public law for the purposes of this Directive.
Amendment 180 #
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 projeThe aggregate value of all contracts can for instance consist in overall prior planning and conception by the contracting authority, the factoncluded for the purpose of this procurement has to be taken into account with regard to thate the different elements purchased fulfil a single economic and technical function or that they are othresholds of this directive, and the procurement should be adverwtise logically interlinked and carried out in a narrow time framed as a whole, possibly split into lots.
Amendment 186 #
Proposal for a directive
Recital 5
Recital 5
(5) Under Article 11 of the Treaty on the Functioning of the European Union, environmental protection requirements 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 they can obtain the best value for money for their contracts.
Amendment 193 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9 a) The objectives of improving the access of Union economic operators to the public procurement markets of certain third countries protected by restrictive procurement measures and preserving equal conditions of competition within the Union Single Market require that the treatment of third-country goods and services not covered by the international commitments of the Union be harmonised throughout the Union. The Commission should assess whether to approve that contracting authorities exclude, for contracts with an estimated value equal or above EUR 5.000.000, from procedures for the award of contracts for supplies and services not covered by the international commitments which the Union is a party to.
Amendment 194 #
Proposal for a directive
Recital 9 b (new)
Recital 9 b (new)
(9 b) To ensure transparency, contracting authorities intending to make use of their power to exclude tenders comprising supplies and/or services originating from outside the European Union, for which the value of the non-covered supplies or services exceeds 50 % of the total value of these supplies or services from procedures for the award of contracts, should inform economic operators thereof in the contract notice published in the Official Journal of the European Union. The Commission should approve the intended exclusion if the international agreement concerning market access in the field of public procurement between the Union and the country where the supplies and/or services originate contains, for the supplies and/or services for which the exclusion is proposed, explicit market access reservations taken by the Union. Where such an agreement does not exist, the Commission should approve the exclusion where the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned for goods, services and economic operators.
Amendment 200 #
Proposal for a directive
Recital 10
Recital 10
Amendment 207 #
Proposal for a directive
Recital 11
Recital 11
(11) OtherThe results of the Evaluation on the Impact and Effectiveness of EU Public Procurement Legislation16 demonstrated that the exclusion of certain services from the full application of the Directive should be reviewed. Some categories of services continue by their very nature to have a limited cross- border dimension, namelyfor example 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 51 000 000. 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. __________________ 16 SEC(2011) 853 final, 27.6.2011
Amendment 208 #
Proposal for a directive
Recital 13
Recital 13
(13) Being addressed to Member States, this directive does not apply to procurement carried out by international organisations on their own behalf and for their own account. There is, however, a need to clarify to what extent this directive should be applied to procurement governed by specific international rules. The Union institutions should, in particular, take into account the changes effected by this Directive and adjust their own procurement rules accordingly to reflect these changes.
Amendment 215 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14 a) In order to make procedures faster and more efficient, time limits for participation in procurement procedures should be kept as short as possible without creating undue barriers to access for economic operators from across the Internal Market, in particular SMEs. When fixing the time limits for the receipt of tenders and requests to participate, contracting authorities should accordingly take into account the complexity of the contract and the time required for drawing up tenders in particular, even if this would entail setting time limits that are longer than the minima provided for under this Directive. Use of electronic means of information and communication, in particular full electronic availability of procurement documents and electronic transmission of communications does, on the other hand, lead to increased transparency and time savings. Therefore, provision should be made for reducing the minimum periods in line with the rules set by the WTO Government Procurement Agreement and subject to the condition that they are compatible with the specific mode of transmission envisaged at Union level. Furthermore, contracting authorities should have the opportunity to further shorten the time limits for receipt of requests to participate and tender submissions, in cases where a state of urgency renders the normal time limits impracticable, although running a procedure with publication is still possible. Only those situations where extreme urgency brought about by unforeseeable events - and which are not attributable to the contracting authority - should be considered as exceptional, and only these situations would make it impossible to conduct a regular procedure even with shortened time limits. In such cases, contracting authorities should, wherever possible, award contracts though use of the negotiated procedure without prior publication. This may be the case where natural or man-made disasters require immediate action.
Amendment 217 #
Proposal for a directive
Recital 15
Recital 15
(15) There is a widContracting authoritiesp read need forquire additional flexibility and in particular for wider access to ato choose procurement procedures which providinge for negotiations, as is explicitly foreseen in the Agreement, where. The Union rules on public procurement should align to the Government Procurement Agreement, which allows for negotiation is allowed in all procedures. Contracting authorities should, unless otherwise provided in the legislation of the Member State concerned, be able to use a competitive procedure with negotiA greater use of these procedures is also likely to increase cross- border trade, as the evaluation has provided for in this Directive, in various situations where open or restricshown that contracts awarded by negotiated procedures without negotiations are not likely to lead to satisfactory procurement outcomes. This procedure should be accompanied by adequate safeguards ensuring observance of the principles of equal treatment and transparency. This will give greater leeway to contracting authorities to buy works, supplies and services perfectly adapted to their specific needs. At the same time, it should also increase cross- border trade, as the evaluation has shown that contracts awarded by negotia prior publication have a particularly high success rate in attracting cross-border tenders. Member States should be able to provide for the use of the competitive procedure with negotiation or the competitive dialogue in various situations where the classic open or restricted procedures with prior publication have a particularly high success rate of cross- border tenderout negotiations are unlikely to deliver satisfactory outcomes.
Amendment 222 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15 a) For works contracts, such situations include works that are not standard buildings or where works include the design of an innovative solution. For services or supplies that require adaptation or design, the use of a competitive procedure with negotiation or competitive dialogue is likely to deliver added value. Such adaptation or design requirements are particularly beneficial in the case of complex purchases such as sophisticated products, intellectual services or major ICT projects. In these cases, negotiations may be necessary to guarantee that the supply or service in question corresponds to the needs of the contracting authority. In relation to "off- the shelf" services or supplies that can be provided by many different economic operators, the competitive procedure with negotiation and the competitive dialogue should not be used.
Amendment 224 #
Proposal for a directive
Recital 15 b (new)
Recital 15 b (new)
(15 b) The competitive procedure with negotiation should also be followed in cases where use of an open or restricted procedure delivered only invalid or unacceptable tenders. In particular tenders which do not comply with the procurement documents, which were received late, where there is evidence of collusion or corruption, or which have been found by the contracting authority to be abnormally low, should be considered invalid. Tenders submitted by tenderers that do not have the required qualifications, and tenders whose price exceeds the contracting authority's budget as communicated prior to the launching of the procurement procedure should also be considered as unacceptable.
Amendment 225 #
Proposal for a directive
Recital 15 c (new)
Recital 15 c (new)
Amendment 227 #
Proposal for a directive
Recital 17
Recital 17
(17) Research and innovation, including eco-innovation and social innovation, are among the main drivers of future growth and have been put at the centre of the Europe 2020 strategy for smart, sustainable and inclusive growth. Public authorities should make the best strategic use of public procurement to spurdrive innovation. Buying innovative goods and services plays a key role in improving the efficiency and quality of public services while addressing major societal challenges. It contributes to achieving best value for public money as well as wider economic, environmental and societal benefits in terms of generating new ideas, translating them into innovative products and services and thus promoting sustainable economic growth. An innovative procurement model is detailed in the Commission's communication on pre-commercial procurement 1. This model promotes the take up in the procurement of research and development services which do not fall within the scope of this Directive. This model, which has been written into this Directive, is recognised and will be available for all contracting authorities to consider. This dDirective should however contribute to facilitating the public procurement of innovation more generally, and help Member States in achieving the Innovation Union targets. A specific procurement procedure should therefore be provided for whichWhere a need for the development of an innovative product, service or works and the subsequent purchase of the resulting output cannot be met by solutions already available on the market, contracting authorities should have access to a specific procurement procedure in respect of contracts falling within the scope of this Directive. This new procedure should allows contracting authorities to establish a long-termn innovation partnership for the development and subsequent purchase of a new, innovative products, services or works, provided ithat these can be delivered to agreed performance levels and costs. The partnershiprocedure should be based on the rules applying to the competitive procedure with negotiations and contracts should be awarded on the sole basis of the most economically advantageous tender, which is the most suited to comparing tenders for innovative solutions. Whether the innovation partnership concerns a very large project or a smaller project, it should be structured in such as a way that it can provide the necessary ‘"market- pull’", incentivising the development of an innovative solutions without foreclosing the market. Contracting authorities should therefore not misuse innovation partnerships to prevent, restrict or distort competition. __________________ 1 COM (2007) 799 final: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Pre- commercial procurement: driving innovation to ensure sustainable high quality public services in Europe.
Amendment 231 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17 a) Such a procedure should support new ways of developing public services, for instance, where employee led organisations which had previously operated in the public sector, are tasked with developing an innovative public service not available on the Union market.
Amendment 247 #
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, standards and specifications in the marketplace 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 habitualcommonly offered by that economic operator, or that disadvantage economic operators on the basis of a business or development model or on the basis of specific standards or specifications implemented in a given solution or service. Drawing up the technical specifications in terms of functional and performance requirements generally allows this objective to be achieved in the best way possicircumvents these problems 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 equally by contracting authorities. To demonstrate equivalence, tenderers can be required to provide third- party verified evidence; h. However, other appropriate means of proof such as a manufacturers' technical dossier of the manufacturer should also be allowed where the economic operator concerned has no access to suchrelevant certificates or test reports, or no possibility of obtaining them within the relevant time limitapplicable time limits. Contracting authorities must be able to provide justification for not granting equivalence in all cases.
Amendment 252 #
Proposal for a directive
Recital 30
Recital 30
(30) Public procurement should be adapted to the needs of SMEs. Contracting authorities should make use of the Code of Best Practice providing guidance on how they may apply the public procurement framework in a way that facilitates SME participation. In order to foster the involvement of small and medium-sized enterprises (SMEs) in the public procurement market, contracting authorities should be encouragedin particular give consideration to divideing contracts into lots, and be obliged to stateensure transparency in access to information on their reasons for not doing so. Where contracts are divided into lots, contracting authorities may, for instance in order to preserve competition or choosing not to. Member States should introduce measures to promote the access of SMEs to public procurement, in particular through improved information and guidance orn 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 tendererendering and on the new opportunities offered by the modernised EU legal framework, and to foster the exchange of best practice and the organisation of training and events involving public procurers and SMEs.
Amendment 282 #
Proposal for a directive
Recital 41
Recital 41
(41) Furthermore, in technical specifications and in award criteria, contracting authorities should be allowed to refer to a specific production process, a specific mode of provision ofthe monetisation of the life cycle of the works, services, or a specific process for any other stage of the life cycle of a product or servicesupply and accordingly to social and environmental sustainability, provided that theyse characteristics 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 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 characteThe technical specifications and award criteria should be interpreted broadly. Contracting authorities may also use the technical specifications and award criteria to minimise damaging social or environmental effects or maximise positive social or environmental effects. As part of the award criteria, contracting authoristices should in any event remain limited to characteristics that have immediate conseqube able to consider the existences on staff members in their working environment. They should be applied f an embedded life-cycle approach aiming accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workerst minimising cost and maximising resource efficiency and which should be applied in the framework of the provision of works, services22 and or supplies in a way that does not discriminate directly or indirectly against economic operators from other Member States or from third countries which are parties to the WTO's Government Procurement Agreement, or to Free Trade Agreements to which the Union is party. For service contracts and for contracts involving the design of works, coperators from other third countries with whom the Union is party to a Free Trade Agreement. Contracting authorities should also be allowed to use as antechnical specifications and award criteriona the organisation, qualification and experience of the staff assigned to performing the contract in question, as this may affect the quality and social sustainability of contract performance and, as a result, the economic value of theidentification of the tender which offers the best value for money. Contracting authorities should include these considerations in the award criterion of the most economically advantageous tender.
Amendment 304 #
Proposal for a directive
Recital 49
Recital 49
(49) The evaluation has shown that Member States do not consistently and systematically monitor thethere is still considerable room for implrovementation and func in the applicationing of the Union public procurement rules. This has a negative impact on the correct implementation of provisions stemming from these directives, which is a major source of cost and uncertainty. Several Member States have appointed a national central body dealing with public procurement issues, but the tasks entrusted to such bodies vary considerably across Member States. Clearer, more consistent and authoIn view of a more efficient and consistent application of the rules, it is on the one hand essential to get a good overview on possible structural problems and general patterns in national procurement policies, in order to address possible problems in a more targeted way. This overview should be gained through appropritative monitoring and control mechanisms would increase knowledge of the functioning of procurement rules, improve legal certainty for businesses and, the results of which should be regularly published, in order to allow an informed debate on possible improvements of procurement rules and practice. On the other hand, better guidance and assistance to contracting authorities, and econtribute to establishing a level playing field. Such mechanisms could serve as tools for the detection and early resolution of problems, especially with regard to projects cofunded by the Union, and for the identification of structural deficiencies. There is in particular a strong need to coordinate these mechanisms to ensure consistent application, control and monitoring of public procurement policy, as well as systematic assessment of the outcomes of procurement policy across the Unionomic operators could also greatly contribute to enhancing the efficiency of public procurement, through better knowledge, increased legal certainty and professionalisation of procurement practices; such guidance should be made available to contracting authorities and economic operators wherever it appears necessary, to ensure correct application of the rules.
Amendment 307 #
Proposal for a directive
Recital 50
Recital 50
Amendment 311 #
Proposal for a directive
Recital 51
Recital 51
(51) Not all contracting authorities may have the internal expertise to deal with economicallyAny stakeholder should be empowered to signal violations orf technically complex contracts. Against this background, appropriate professional support would be an effective complement to monitoring and control activities. On the one hand, this objective can be achieved by knowledge sharing tools (knowledge centres) offering technical assistance to contracting authorities; on the other hand, business, not least SMEs, should benefit from administrative assistance, in particular when participating in procurement procedures on a cross- border basihis Directive to a competent authority or Court. Member States should be able to provide for recourse to monitoring authorities, sectoral oversight bodies, municipal, regional or national competition or auditing authorities, ombudsmen, and where these exist, national oversight authorities.
Amendment 312 #
Proposal for a directive
Recital 52
Recital 52
(52) Monitoring, oversight and support structures or mechanisms exist already at nationTraceability and transparency of decision-making in procurement procedures is essential for ensuring sound procedures, including effectively fighting corruption and fraud. Contracting authorities should keep copies of concluded contracts for high-value contracts to be able to provide access to these documents to interested parties in accordance with applicable rules on access to documentation. Furthermore, the essential elevel and can of course be used to ensure monitoring, implementation and control of public procurement and to provide the required support to contracting authorities and economic operators. ments and decisions of individual procurement procedures should be documented in a procurement report. To limit administrative burdens, the procurement report should refer to information already contained in the relevant contract award notices. The electronic systems for publication of these notices, managed by the Commission, should also be improved in view of facilitating data entry while making it easier to extract reports and exchange data between systems.
Amendment 313 #
Proposal for a directive
Recital 53
Recital 53
Amendment 319 #
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, such as the submission of three-dimensional digital representations in the case of the public procurement of works, 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 339 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. The application of this Directive is subject to Articles 36, 51, 52, 62 and 346 of the Treaty on the Functioning of the European Union.
Amendment 345 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 – introductory part
Article 2 – paragraph 1 – point 6 – introductory part
(6) ‘bodies governed by public law’ means bodies that have all of the following characteristics:
Amendment 347 #
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 which 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; these needs should not have an industrial or commercial character;
Amendment 349 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 – point b
Article 2 – paragraph 1 – point 6 – point b
(b) they havehaving legal personality;
Amendment 350 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 – point c
Article 2 – paragraph 1 – point 6 – point c
(c) they are financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointedwhich satisfy at least one of the following conditions: (i) The majority of the funding is from the State, regional or local authorities, or other bodies governed by public law; (ii) The majority of the administrative, managerial or supervisory board is appointed by the state, regional or local authorities, or other bodies governed by public law; (iii) Decisions are subject to management control by the State, regional or local authorities, or by other bodies governed by public law.
Amendment 362 #
Proposal for a directive
Article 2 – paragraph 1 – point 21
Article 2 – paragraph 1 – point 21
(21) ‘electronic means’ means electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; in the case of a works contract 'electronic means' shall also refer to the use of interoperable three-dimensional representations covering the design, execution and the operation of the building or infrastructure;
Amendment 364 #
Proposal for a directive
Article 2 – paragraph 1 – point 22
Article 2 – paragraph 1 – point 22
(22) ‘'life cycle’' means all consecutive and/or interlinked stages, including production, transport, use and maintenance, throughout the existence of a product or a works or the provision of a service, from raw material acquisition or generation of resources to disposal, clearance and finalisationmonetising, wherever possible, the full costs associated to the public procurement, including maintenance and resource (including energy) efficiency costs, end- of-life recycling costs, and social impact costs where these relate to performance of the contract. Efficient design, planning and use of electronic means can also be included in life cycle monetisation. For the purposes of public procurement, the life cycle runs from the point of purchase throughout the lifetime of the works, supplies or services and forms an integral and in-dissociable part of the calculation of what constitutes the Most Economically Advantageous Tender.
Amendment 372 #
Proposal for a directive
Article 2 – paragraph 1 – point 23 a (new)
Article 2 – paragraph 1 – point 23 a (new)
(23a) A 'public service mutual' is an organisation which has the following characteristics: a) It is principally made up of individuals who have left their position of employment within the public sector in order to deliver public services by way of that organisation; b) The majority of services provided by the organisation are provided to the public sector, and; c) Employee ownership or engagement has a significant impact on the governance of the organisation. A public service mutual can take a variety of forms in terms of business model and membership.
Amendment 376 #
Proposal for a directive
Article 2 – paragraph 1 – point 23 b (new)
Article 2 – paragraph 1 – point 23 b (new)
(23b) 'non-covered supplies or services' means a product or service originating in a country with which the Union has not concluded an international agreement in the field of public procurement including market access commitments or a product or service originating in a country with which the Union has concluded such an agreement, but in respect of which the relevant agreement does not apply.
Amendment 379 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
Amendment 381 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. In the case of contracts which have as their object procurement covered by this Directive as well as procurement or other elements covered by Directive 2009/81/EC, the contract shall be awarded in accordance with Directive 2009/81/EC provided that the award of a single contract is justified for objective reasons.
Amendment 382 #
Proposal for a directive
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
2b. In the case of contracts which have as their object procurement covered by this Directive and Directive 2009/81/EC as well as procurement or other elements not being subject to either Directive, the contract shall not be subject to this Directive provided that the award of a single contract is justified for objective reasons. The decision to award a single contract may not, however, be taken for the purpose of excluding contracts from the application of this Directive.
Amendment 399 #
Proposal for a directive
Article 4 – paragraph 1 – point d
Article 4 – paragraph 1 – point d
(d) EUR 51 000 000 for public contracts for social and other specific services listed in Annex XVI.
Amendment 426 #
Proposal for a directive
Article 10 – paragraph 1 – point c a (new)
Article 10 – paragraph 1 – point c a (new)
(ca) any of the following legal services: (i) legal representation of a client in judicial proceedings before the national courts, tribunals or public authorities of a Member State by a lawyer within the meaning of Article 1 of Directive 77/249/EEC; (ii) document certification services which must be provided by notaries; (iii) legal services provided by trustees, appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned; (iv) other legal services which in the Member State concerned are connected, even occasionally, with the exercise of official authority;
Amendment 445 #
Proposal for a directive
Article 10 – paragraph 1 – point f a (new)
Article 10 – paragraph 1 – point f a (new)
(f a) hotel and restaurant services with CPV reference numbers from 55100000-1 to 55524000-9, and from 98340000-8 to 98341100-6, provided that the services can be provided only by economic operators located in a specific region.
Amendment 464 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point b
Article 11 – paragraph 1 – subparagraph 1 – point b
(b) at least 90 80% of the activities of that legal person are carried out for the controlling contracting authority or for other legal persons controlled by that contracting authority;
Amendment 512 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point b
Article 11 – paragraph 3 – subparagraph 1 – point b
(b) at least 90 80% of the activities of that legal person are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities;
Amendment 555 #
Proposal for a directive
Article 11 – paragraph 4 – point c
Article 11 – paragraph 4 – point c
Amendment 585 #
Proposal for a directive
Article 14 – paragraph 1 – introductory part
Article 14 – paragraph 1 – introductory part
1. Subject to Article 346 of the Treaty on the Functioning of the European Union1(3), this Directive shall apply to the awarding of public contracts and to design contests organised in the fields of defence and security, with the exception of the following contracts:
Amendment 586 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. This Directive shall not apply to public contracts and design contests not other than those referred to in paragraph 1 to the extent thatwise exempted under paragraph 1 where: (a) the protection of the essential security interests of a Member State cannot be guaranteed in a procurement procedure as provided for in this Directive. ; (b) the application of this Directive would oblige the Member State to supply information the disclosure of which it considers contrary to its essential security interests; or (c) the procurement and performance of the contract or contest must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned.
Amendment 622 #
Proposal for a directive
Article 19 – paragraph 7 – subparagraph 1
Article 19 – paragraph 7 – subparagraph 1
7. Member States shall ensure that, atby the latest 2 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 Article1st January 2017, at least 70 % of procurement procedures under this Directive are performed using electronic means of communication, in particular e- submission, in accordance with the requirements of this Article. Member States shall ensure that, by the 1st January 2020, 100 % of procurement procedures under this Directive are performed using electronic means of communication, in particular e-submission, in accordance with the requirements of this Article. In relation to the public procurement of Works contracts, Member States shall furthermore encourage the systematic use of digital three-dimensional representations following the general timescales for the implementation of electronic procurement set out in the first and second sub paragraphs.
Amendment 648 #
Proposal for a directive
Title 1 – chapter 2 a (new)
Title 1 – chapter 2 a (new)
Amendment 652 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 3
Article 24 – paragraph 1 – subparagraph 3
Member States mayshall provide that contracting authorities may apply innovation partnerships as regulated in this Directive.
Amendment 656 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 4
Article 24 – paragraph 1 – subparagraph 4
Amendment 674 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 5
Article 24 – paragraph 1 – subparagraph 5
Amendment 680 #
Proposal for a directive
Article 24 – paragraph 2 – subparagraph 1 – introductory part
Article 24 – paragraph 2 – subparagraph 1 – introductory part
The call for competition mayshall be made by one of the following means:a contract notice pursuant to Article 47.
Amendment 681 #
Proposal for a directive
Article 24 – paragraph 2 – subparagraph 1 – point a
Article 24 – paragraph 2 – subparagraph 1 – point a
Amendment 682 #
Proposal for a directive
Article 24 – paragraph 2 – subparagraph 1 – point b
Article 24 – paragraph 2 – subparagraph 1 – point b
Amendment 684 #
Proposal for a directive
Article 24 – paragraph 2 – subparagraph 2
Article 24 – paragraph 2 – subparagraph 2
Amendment 685 #
Proposal for a directive
Article 24 – paragraph 3
Article 24 – paragraph 3
3. In the specific cases and circumstances referred to expressly in Article 30, Member States mayshall provide that contracting authorities may apply a negotiated procedure without prior publication only in the specific cases and circumstances. Member States shall not allow the use of this procedure in any other cases than those referred to expressly in Article 30.
Amendment 692 #
Proposal for a directive
Article 25 – paragraph 2 – introductory part
Article 25 – paragraph 2 – introductory part
2. Where contracting authorities have published a prior information notice which is not used as a means of calling for competition, the minimum time limit for the receipt of tenders, as laid down in the second subparagraph of paragraph 1 of this Article, may be shortened to 2015 days, provided that both of the following conditions are fulfilled:
Amendment 695 #
Proposal for a directive
Article 25 – paragraph 3
Article 25 – paragraph 3
3. Where a state of urgency duly substantiated by the contracting authorities renders impracticable the time limit laid down in the second subparagraph of paragraph 1, they may fix a time limit which shall be not less than 2015 days from the date on which the contract notice was sent.
Amendment 705 #
Proposal for a directive
Article 26 – paragraph 2 – subparagraph 2
Article 26 – paragraph 2 – subparagraph 2
The minimum time limit for the receipt of tenders shall be 350 days from the date on which the invitation to tender is sent.
Amendment 708 #
Proposal for a directive
Article 26 – paragraph 3 – introductory part
Article 26 – paragraph 3 – introductory part
3. Where contracting authorities have published a prior information notice which is not used as a means of calling for competition, the minimum time limit for the receipt of tenders as laid down in the second subparagraph of paragraph 2 of this Article may be shortened to 150 days, provided that all of the following conditions are fulfilled:
Amendment 711 #
Proposal for a directive
Article 26 – paragraph 4
Article 26 – paragraph 4
4. SMember States shall provide that all or specific categories of sub-central contracting authorities may set the time limit for the receipt of tenders by mutual agreement between the contracting authority and the selected candidates, provided that all candidates have the same time to prepare and submit their tenders. Where it is not possible to reachIn the absence of an agreement on the time limit for the receipt of tenders, the contracting authority shall fix a time limit which shall be at least 10 days from the date of the invitation to tender.
Amendment 716 #
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 1
Article 27 – paragraph 1 – subparagraph 1
1. In competitive procedures with negotiation, any economic operator may submit a request to participate in response to a call for competition by providing the requested information for qualitative selectioncontaining the information set out in Annex VI parts B and C by providing the information for qualitative selection that is requested by the contracting authority.
Amendment 718 #
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 interestprocurement documents, contracting authorities shall describe the procurement andindicate which elements define the minimum requirements to be met and specify the award criteria so. The indications shall be sufficiently precise as to enable economic operators to identify the precise 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 requirementsprocedure.
Amendment 726 #
Proposal for a directive
Article 27 – paragraph 2
Article 27 – paragraph 2
2. Only those economic operators invited by the contracting authority following their assessment of the requested information may submit a writtenn initial tender which shall be the basis for the subsequent negotiations. Contracting authorities may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 64.
Amendment 729 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 1
Article 27 – paragraph 3 – subparagraph 1
3. CUnless otherwise stipulated in the fourth subparagraph, contracting authorities shall negotiate with tenderers the tenders submitted by theminitial and all subsequent tenders submitted by them, except for the final tenders within the meaning of paragraph 6, to improve the content of the offers in order to better correspond toensure that the tenders better fulfil the award criteria anspecified minimum requirements referred to in the second subparagraph of paragraph 1 a procurement document.
Amendment 731 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 – introductory part
Article 27 – paragraph 3 – subparagraph 2 – introductory part
The following shall not be changed in the course of theminimum requirements and the award criteria shall not be subject to negotiations: .
Amendment 732 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 – point a
Article 27 – paragraph 3 – subparagraph 2 – point a
Amendment 737 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 – point b
Article 27 – paragraph 3 – subparagraph 2 – point b
Amendment 740 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 – point c
Article 27 – paragraph 3 – subparagraph 2 – point c
Amendment 745 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 a (new)
Article 27 – paragraph 3 – subparagraph 2 a (new)
Once the deadline for submitting tenders has expired, and before proceeding to their examination, contracting authorities may specify a weighting attached to the subheadings of an award criterion defined in advance in accordance with Article 66(5), provided that: (a) the contract award criteria set out in the contract documents or the contract notice are unaltered; (b) this does not include new elements which would have affected the preparation of the tenders; (c) this does not give rise to discrimination against any one of the tenderers.
Amendment 746 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 b (new)
Article 27 – paragraph 3 – subparagraph 2 b (new)
Contracting authorities may award contracts on the basis of initial tenders without negotiation where they have clearly indicated in the contract notice, the invitation to confirm interest or in any other procurement document, that they reserve the right to do so.
Amendment 748 #
Proposal for a directive
Article 27 – paragraph 4 – subparagraph 1
Article 27 – paragraph 4 – subparagraph 1
4. During the negotiations, contracting authorities shall ensure the equal treatment of all tenderers. To that end, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others. They shall take particular care to ensure that all tenderers, whose tenders have not been eliminated pursuant to paragraph 5, are informed in writing of any changes to the technical specifications or other procurement documents, other than those setting out the minimum requirements, in adequate time to allowproviding sufficient time for such tenderers to modify and re-submit amended tenders following these changes, as appropriate.
Amendment 749 #
Proposal for a directive
Article 27 – paragraph 4 – subparagraph 2
Article 27 – paragraph 4 – subparagraph 2
Amendment 753 #
Proposal for a directive
Article 27 – paragraph 6
Article 27 – paragraph 6
6. Where the contracting authority intends to conclude the negotiations, it shall inform the remaining tenderers and set a common deadline to submit any new or revised tenders. They shall assess the final tenders as negotiated on the basis of the initially indicated award criteria and award the contract in accordance with Articles 66 to 69.
Amendment 761 #
Proposal for a directive
Article 28 – paragraph 2 - subparagraph 1 a (new)
Article 28 – paragraph 2 - subparagraph 1 a (new)
Once the deadline for submitting tenders has expired, and before proceeding to their examination, contracting authorities may specify a weighting attached to the subheadings of an award criterion defined in advance in accordance with Article 66(5), provided that: (a) the contract award criteria set out in the contract documents or the contract notice are unaltered; (b) this does not include new elements which would have affected the preparation of the tenders; (c) this does not give rise to discrimination against any one of the tenderers.
Amendment 763 #
Proposal for a directive
Article 28 – paragraph 3 – subparagraph 3
Article 28 – paragraph 3 – subparagraph 3
Amendment 769 #
Proposal for a directive
Article 28 – paragraph 6 - subparagraph 1 a (new)
Article 28 – paragraph 6 - subparagraph 1 a (new)
These tenders may be clarified, specified and fine-tuned at the request of the contracting authority. However, such clarification, specification, fine-tuning or additional information may not involve changes to the essential aspects of the tender or of the public procurement, including the needs and requirements set out in the contract notice or in the descriptive document, where variations to those aspects, needs and requirements are likely to distort competition or have a discriminatory effect.
Amendment 777 #
Proposal for a directive
Article 29 – paragraph 1
Article 29 – paragraph 1
1. In innovation partnerships, any economic operator may submit a request to participate in response to a contract notice with a view to establishing a structured partnership for the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works, provided that they correspond to the agreed performance levels and costs. The contract setting up the innovation partnership shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 66(1)(a).
Amendment 779 #
Proposal for a directive
Article 29 – paragraph 2
Article 29 – paragraph 2
2. The partnership shall be structured in successive stages following the sequence of steps in the research and innovation process, possibly up towhich may include the manufacturing of the supply, or the provision of the services. It shall provide for or the completion of the works. The partnership shall set intermediate targets to be attained by the partner and provide for payment of the remuneration in appropriate instalments. Based on those targets, the contracting authority may decide after each stage to terminate the partnership and launch a new procurement procedure for the remaining phases, provided that it has acquired the relevant intellectual property rights. the contracting authority has indicated in the procurement documents under which conditions it may make use of this discretion to terminate the partnership.
Amendment 781 #
Proposal for a directive
Article 29 – paragraph 2 a (new9
Article 29 – paragraph 2 a (new9
Amendment 783 #
Proposal for a directive
Article 29 – paragraph 3 – subparagraph 2
Article 29 – paragraph 3 – subparagraph 2
In selecting candidates, contracting authorities shall pay particular attention to criteria concerning the tenderercandidates' capacity and experience in the field of research and development and of developing innovative solutions. They may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 64.
Amendment 784 #
Proposal for a directive
Article 29 – paragraph 3 – subparagraph 3
Article 29 – paragraph 3 – subparagraph 3
Only those economic operators invited by the contracting authority following its assessment of the requested information may submit research and innovation projects aimed at meeting the needs identified by the contracting authority that cannot be met by existing solutions. The contract shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 66(1)(a).
Amendment 785 #
Proposal for a directive
Article 29 – paragraph 4 – subparagraph 1
Article 29 – paragraph 4 – subparagraph 1
The contracting authority shall ensure that the structure of the partnership and, in particular, the duration and value of the different phases shall reflect the degree of innovation of the proposed solution and the sequence of the research and innovation activities required for the development of an innovative solution not yet available on the market. The value and duration of a contract for the purchase of the resulting supplyestimated value of supplies, services or works shall remain within appropriate limits, taking into account the need to recover the costs, including those incurred in developing an innovative solution, and to achieve an adequate profinot be disproportionate in relation to the investment required for their development.
Amendment 786 #
Proposal for a directive
Article 29 – paragraph 4 – subparagraph 2
Article 29 – paragraph 4 – subparagraph 2
Amendment 789 #
Proposal for a directive
Article 30 – paragraph 1
Article 30 – paragraph 1
1. In the specific cases and circumstances laid down in paragraphs (2) to (5), Member States may provide that contracting authorities may award public contracts by a negotiated procedure without prior publication only in . In any other cases laid down in paragraphs (2) to (5), the use of this procedure is not allowed.
Amendment 791 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – introductory part
Article 30 – paragraph 2 – subparagraph 1 – introductory part
The negotiated procedure without prior publication may be foreseenused for public works contracts, public supply contracts and public service contracts in any of the following cases:
Amendment 810 #
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 majeureevents unforeseeable 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 815 #
Proposal for a directive
Article 30 – paragraph 4
Article 30 – paragraph 4
4. The negotiated procedure without prior publication may be foreseenused for public service contracts, where the contract concerned follows a design contest organised in accordance with this Directive and is to be awarded, under the applicable rules, to the winner or one of the winners of the design contest; in the latter case, all winners must be invited to participate in the negotiations.
Amendment 816 #
Proposal for a directive
Article 30 – paragraph 5 – subparagraph 1
Article 30 – paragraph 5 – subparagraph 1
The negotiated procedure without prior publication may be foreseenused for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to which the same contracting authorities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded according to a procedure in accordance with Article 24(1). The basic project shall indicate the extent of possible additional works or services and the conditions under which they will be awarded.
Amendment 821 #
Proposal for a directive
Article 30 – paragraph 5 a (new)
Article 30 – paragraph 5 a (new)
5 a. The negotiated procedure without prior publication may be used where the contracting authority considers that the contract should be awarded to a public service mutual in order to facilitate: (i) the integration of public sector employees into the private sector; or, (ii) the diversity of suppliers in the market covered by that public contract. This exception only applies where the contract is awarded: (i) to an entity in anticipation that it will become a public service mutual, once the individuals concerned leave their positions of employment in the public sector and the entity begins to supply services; or, (ii) within the period of 3 years beginning with the date on which the public service mutual first begins to supply any services.
Amendment 834 #
Proposal for a directive
Article 31 – paragraph 4 – point a a (new)
Article 31 – paragraph 4 – point a a (new)
(aa) partly without reopening of competition in accordance with point (a) where the framework agreement sets out all the terms governing the provision of the works, services and supplies concerned; and partly with reopening of competition amongst the economic operators parties to the framework agreement in accordance with point (b), regardless of whether the framework agreement sets out all the terms governing the provision of the works, services and supplies concerned. A framework agreement may be performed in accordance with this point only where this possibility has been stipulated by the contracting authority in the procurement documents. Where all the terms governing their provision are set out in the framework agreement, the choice of whether specific works, supplies or services shall be acquired following a reopening of competition or directly on the terms set out in the framework agreement, shall be made pursuant to objective criteria, which shall be set out in the specifications of the framework agreement. The specifications of the framework agreement shall also specify which terms may be subject to reopening of competition.
Amendment 919 #
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, and without discrimination as to development method, to national standards transposing European standards, European technical approvals, common technical specifications, international standards, other technical reference systems established by the European standardisation bodies or when 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 923 #
Proposal for a directive
Article 40 – paragraph 4
Article 40 – paragraph 4
4. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process or development or business model or method, or to trade marks, patents, types or a specific origin or production withor location of production, as any such reference would have 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 systematically be accompanied by the words ‘"or equivalent’. ".
Amendment 995 #
Proposal for a directive
Article 44 – paragraph 1 – subparagraph 1
Article 44 – paragraph 1 – subparagraph 1
Amendment 1047 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – point a
Article 55 – paragraph 3 – subparagraph 1 – point a
(a) where it is aware of any violation of obligations established by Union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XI. Compliance with Union legislation or with international provisions also includes compliance in an equivalent manner. Only violations where the judgement has been administered by a judicial or competent authority in the Union or a signatory to the WTO GPA agreement can be used to exclude bids under this article.
Amendment 1155 #
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 and, wherever possible, on the basis of the monetisation of the life cycle as defined in Article 2, point 22. Those criteria shallmay 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 1187 #
Proposal for a directive
Article 66 – paragraph 2 – point d
Article 66 – paragraph 2 – point d
Amendment 1210 #
Proposal for a directive
Article 67 – paragraph 1 – point a
Article 67 – paragraph 1 – point a
(a) internal costs, including costs relating to acquisition, such as production costs, use, such as energy consumption, maintenance costs, and end of life, such as collection and recycling costs and relating to use, such as maintenance and resource efficiency costs (including energy efficiency), end-of-life recycling and collection costs, and social impact costs where these relate to performance of the contract. Internal costs also include considerations of efficient design, planning and process costs such as the use of electronic means.
Amendment 1296 #
Proposal for a directive
Article 69 – paragraph 6 a (new)
Article 69 – paragraph 6 a (new)
6a. Where the contracting authority intends, after verifying the explanations of the tenderer, to accept an abnormally low tender comprising supplies and/or services originating from outside the Union, in which the value of the non- covered supplies or services exceeds 50 % of the total value of the supplies or services constituting the tender, it shall inform the other tenderers of this in writing, including the reasons for the abnormally low character of the price or costs charged. A contracting authority may withhold any information if this would impede law enforcement, would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of economic operators, whether public or private, or might prejudice fair competition between them.
Amendment 1307 #
Proposal for a directive
Article 70
Article 70
Contracting authorities may lay down special conditions 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 andclude economic, innovative, environmental or social 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. However, none of those special conditions shall result in loosing the link to the subject matter of the contract.
Amendment 1329 #
Proposal for a directive
Article 71 – paragraph 2
Article 71 – paragraph 2
Amendment 1338 #
Proposal for a directive
Article 71 – paragraph 3
Article 71 – paragraph 3
Amendment 1347 #
Proposal for a directive
Article 71 – paragraph 3 a (new)
Article 71 – paragraph 3 a (new)
3a. Contracting authorities shall ensure that successful tenderers are contractually obliged to comply in the course of performance of the contract with mandatory legal, regulatory or administrative provisions in force in the Member State of contract performance. Furthermore, where the successful tenderer subcontracts a part of the works, supplies or services, and where, in the course of performance of the contract, the provisions referred to in the first subparagraph have been breached by any subcontractor as established by a Court or other competent authority, the successful tenderer shall take effective, proportionate and dissuasive contractual sanctions against the subcontractor(s) concerned; Where the successful tenderer has failed to comply with the obligations set out in the first and/or second subparagraphs within three months of the initial ruling of the Court or other competent authority, the contracting authority shall refer the matter to the Court or other competent authority for a decision on appropriate sanctions.
Amendment 1364 #
Proposal for a directive
Article 72 – paragraph 4
Article 72 – paragraph 4
4. Where the value of a modification can be expressed in monetary terms, the modification shall not be considered to be substantial within the meaning of paragraph 1, where its value does not exceed the thresholds set out in Article 4 and where it is below 520 % of the price of the initial contract, provided that the modification does not alter the overall nature of the contract. Where several successive modifications are made, the value shall be assessed on the basis of the cumulative value of the successive modifications.
Amendment 1392 #
Proposal for a directive
Article 74
Article 74
Amendment 1403 #
Proposal for a directive
Article 75 – paragraph 1
Article 75 – paragraph 1
1. Contracting authorities intending to award a public contract for the services referred to in Article 74 shall make known their intention by means of a contract notice. any of the following means: (a) by means of a contract notice, which shall contain the information referred to in Annexes VI Part H, in accordance with the standard forms; (b) by means of a prior information notice, which shall be published continuously according to Article 49 and contain the information set out in Annex VI part I. The prior information notice shall refer specifically to the services that will be the subject of the contracts to be awarded. It shall indicate that the contracts will be awarded without further publication and invite interested economic operators to express their interest in writing.
Amendment 1405 #
Proposal for a directive
Article 75 – paragraph 2
Article 75 – paragraph 2
2. Contracting authorities that have awarded a public contract for the services referred to in Article 74 shall make known the results of the procurement procedure by means of a contract award notice. , which shall contain the information referred to in Annexes VI Part J, in accordance with the standard forms.
Amendment 1408 #
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 formsCommission shall establish the standard forms referred to in paragraphs 1 and 2. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 91.
Amendment 1414 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 2
Article 75 – paragraph 3 – subparagraph 2
Amendment 1419 #
Proposal for a directive
Article 75 – paragraph 4
Article 75 – paragraph 4
4. The notices referred to in paragraphs 1 and 2this Article shall be published in accordance with Article 49.
Amendment 1429 #
Proposal for a directive
Article 76 – paragraph 1
Article 76 – paragraph 1
1. Member States shall put in place appropriate procedurnational rules for the award of contracts subject to this Chapter, ensuring full in order to ensure contracting authorities compliancey with the principles of transparency and equal treatment of economic operators and allowing. Member States are free to determine the procedural rules applicable as long as such rules allow contracting authorities to take into account the specificities of the services in question.
Amendment 1447 #
Proposal for a directive
Title 4 – title
Title 4 – title
Amendment 1451 #
Proposal for a directive
Article 83 – paragraph 1
Article 83 – paragraph 1
Amendment 1452 #
Proposal for a directive
Article 83 – paragraph 1 a (new)
Article 83 – paragraph 1 a (new)
1a. Member States shall ensure that the application of public procurement rules is monitored including the implementation of projects co-financed by the Union with a view to detecting threats to the financial interests of the Union. This monitoring shall be used to prevent, detect and adequately report possible instances of procurement fraud, corruption, conflict of interest and other serious irregularities. Where monitoring authorities or structures identify specific violations or systemic problems, they shall be empowered to refer those problems to national auditing authorities, courts or tribunals or other appropriate authorities or structures, such as the ombudsman, national Parliaments or committees thereof.
Amendment 1453 #
Proposal for a directive
Article 83 – paragraph 1 b (new)
Article 83 – paragraph 1 b (new)
1b. The results of the monitoring activities pursuant to paragraph 2 shall be made available to the public through appropriate means of information. In particular, Member States shall publish, at least biennially, an overview of the most frequent sources of wrong application or of legal uncertainty, including possible structural or recurring problems in the application of the rules, hereunder possible cases of fraud and other illegal behaviours. Member States shall transmit to the Commission on a biennial basis, a general overview of their national sustainable procurement policies, describing the relevant national action plans and initiatives and, where known, their practical implementation. They shall also indicate the success rate of SMEs in public procurement; where it is lower than 50 % in terms of values of contracts awarded to SMEs, Member States shall indicate whether any initiatives are in place to increase this success rate. On the basis of the data received, the Commission shall regularly issue a report on the implementation and best practices of such policies in the Internal Market.
Amendment 1454 #
Proposal for a directive
Article 83 – paragraph 1 c (new)
Article 83 – paragraph 1 c (new)
Amendment 1455 #
Proposal for a directive
Article 83 – paragraph 1 d (new)
Article 83 – paragraph 1 d (new)
1d. Member States shall ensure that guidance on the interpretation and application of the Union public procurement law is available free of charge to assist contracting authorities and economic operators in correctly applying the Union public procurement rules.
Amendment 1456 #
Proposal for a directive
Article 83 – paragraph 1 e (new)
Article 83 – paragraph 1 e (new)
1e. Member States shall, without prejudice to the general procedures and working methods established by the Commission for its communications and contacts with Member States, designate a contact point for cooperation with the Commission as regards the application of Union law and the implementation of the budget from the Union on the basis of Article 17 of the Treaty on the European Union and Article 317 of the Treaty on the Functioning of the European Union.
Amendment 1457 #
Proposal for a directive
Article 83 – paragraph 1 f (new)
Article 83 – paragraph 1 f (new)
1f. Contracting authorities shall, at least for the duration of the contract, keep copies of all concluded contracts with a value equal to or greater than (a) 1 000 000 EUR in the case of public supply contracts or public service contracts; (b) 10 000 000 EUR in the case of public works contracts. They shall grant access to these contracts in accordance with any applicable rules on access to documents and data protection.
Amendment 1461 #
Proposal for a directive
Article 84
Article 84
Amendment 1505 #
Proposal for a directive
Article 85 – title
Article 85 – title
Individual rReports on procedures for the award of contractsing
Amendment 1507 #
Proposal for a directive
Article 85 – paragraph 1 – point b
Article 85 – paragraph 1 – point b
(b) where applicable, the results of the qualitative selection and/or reduction of numbers pursuant to Article 64 and 65, namely: (i) the names of the selected candidates or tenderers and the reasons for their selection; (ii) the names of the successful candidates or tenderers rejected and the reasons for their selrejection;
Amendment 1508 #
Proposal for a directive
Article 85 – paragraph 1 – point c
Article 85 – paragraph 1 – point c
Amendment 1509 #
Proposal for a directive
Article 85 – paragraph 1 – point e
Article 85 – paragraph 1 – point e
(e) the name of the successful tenderer and the reasons why its tender was selected and, where known, the share of the contract or framework agreement which the successful tenderer intends to subcontract to third parties;
Amendment 1513 #
Proposal for a directive
Article 85 – paragraph 1 a (new)
Article 85 – paragraph 1 a (new)
To the extent that the contract award notice drawn up pursuant to Article 48 contains the information required in this paragraph, contracting authorities may refer to that notice.
Amendment 1515 #
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 documentensure that they dispose of sufficient documentation to justify decisions taken in all stages inof the procurement procedure, including allsuch as documentation on communications with economic operators and internal deliberations, preparation of the tenders, dialogue or negotiation if any, selection and award of the contract.
Amendment 1520 #
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 bodyauthorities or structures referred to in Article 83 where they so request.
Amendment 1528 #
Proposal for a directive
Article 86 – title
Article 86 – title
National reporting and lists of contracting authorities
Amendment 1529 #
Proposal for a directive
Article 86 – paragraph 1
Article 86 – paragraph 1
1. The bodies established or appointed in accordance with Article 84Member States shall forward to the Commission an implementation and statistical report on each year, based on a standard form, not later than 31 October of the following year.
Amendment 1532 #
Proposal for a directive
Article 86 – paragraph 2 – point a
Article 86 – paragraph 2 – point a
(a) a complete and up-to-date list of all central government authorities, sub-central contracting authorities and bodies governed by public law, including sub- central authorities and associations of contracting authoritieswhich have awardinged public contracts or concluded framework agreements during the year concerned, indicating for each authority the unique identification number where such number is provided for in national legislation; this list shall be grouped by type of authority;
Amendment 1534 #
Proposal for a directive
Article 86 – paragraph 2 – point b
Article 86 – paragraph 2 – point b
(b) a complete and up-to-date list of all central purchasing bodies which have awarded public contracts or concluded framework agreements during the year concerned;
Amendment 1535 #
Proposal for a directive
Article 86 – paragraph 2 – point c – introductory part
Article 86 – paragraph 2 – point c – introductory part
(c) for all contracts above the thresholds laid down in Article 4 of this Directive:, the estimated number and value of contracts awarded during the year concerned, broken down for each type of authority by procedure and by works, supplies and services.
Amendment 1536 #
Proposal for a directive
Article 86 – paragraph 2 – point c – point i
Article 86 – paragraph 2 – point c – point i
Amendment 1537 #
Proposal for a directive
Article 86 – paragraph 2 – point c – point ii
Article 86 – paragraph 2 – point c – point ii
Amendment 1538 #
Proposal for a directive
Article 86 – paragraph 2 – point d
Article 86 – paragraph 2 – point d
(d) for all contracts which fallprocurement below the thresholds laid down in Article 4 of this Directive, but which would be covered by this Directive if theirits value exceeded the threshold, the number and value of contracts awarded broken down by each type of authorityan estimation of the aggregated total value of the procurement during the year concerned. This estimation may in particular be based on data available under national publication requirements.
Amendment 1539 #
Proposal for a directive
Article 86 – paragraph 4
Article 86 – paragraph 4
Amendment 1541 #
Proposal for a directive
Article 86 – paragraph 5
Article 86 – paragraph 5
5. The Commission shall establish the standard form for the annual implementation and statistical report referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 91.
Amendment 1544 #
Proposal for a directive
Article 87
Article 87
Amendment 1552 #
Proposal for a directive
Article 88 – paragraph 3
Article 88 – paragraph 3
Amendment 1557 #
Proposal for a directive
Article 91 – paragraph 1
Article 91 – paragraph 1
1. The Commission shall be assisted by the Advisory Committee for Public Contracts established by Council Decision 71/306/EEC45 . Thatand by the Committee set up by Article 7 of Council Regulation (EC) No 3286/94 (Trade Barriers Regulation)46. These committees shall be a committees within the meaning of Article 3 of Regulation (EU) No 182/2011. __________________ 46 1 OJ L 349, 31.12.1994, p. 71
Amendment 1558 #
Proposal for a directive
Article 91 – paragraph 2
Article 91 – paragraph 2
2. Where reference is made to this Aarticle, Article 4 of Regulation (EU) No 182/2011 shall apply and the competent committee shall be the Committee established by Council Decision 71/306/EEC.
Amendment 1559 #
Proposal for a directive
Article 91 – paragraph 2 a (new)
Article 91 – paragraph 2 a (new)
2 a. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply and the competent committee shall be the Committee set up by the Trade Barriers regulation.
Amendment 1586 #
Proposal for a directive
Annex 16
Annex 16
CPV Code Description 79611000-0; 75200000-8; 75231200-6; Health, social and related services 75231240-8; from 85000000-9 to 85323000-9 (except 85321000-5 and 85322000-2); 98133100-5 and 98200000-5 75121000-0, 75122000-7, 75124000-1; Administrative educational, healthcare and from 79995000-5 to 79995200-7; from cultural services 80100000-5 to 80660000-8 (except 80533000-9, 80533100-0, 80533200-1); from 92000000-1 to 92700000-8 (except 92230000-2, 92231000-9, 92232000-6) 75300000-9 Compulsory social security services 75310000-2, 75311000-9, 75312000-6, Benefit services 75313000-3, 75313100-4, 75314000-0, 75320000-5, 75330000-8, 75340000-1 98000000-3; 55521100-9 Other community, social and personal services 98120000-0 Services furnished by trade unions 98131000-0 Religious services 98131000-0 Religious services from 61000000-5 to 61530000-9; from Transport by water 63370000-3 to 63372000-7 62400000-6, 62440000-8, 62441000-5, Supporting and auxiliary transport 62450000-1; from 63000000-9 to services 63600000-5 (except 63370000-3, 63371000-0, 63372000-7); 74322000-2, 93610000-7 from 74500000-4 to 74540000-6 (except Personnel placement and supply services 74511000-4); from 95000000-2 to 95140000-5 from 74600000-5 to 74620000-1 Investigation and security services, other than armoured car services from 74875000-3 to 74875200-5, and Recreational, cultural and sporting from 92000000-1 to 92622000-7 (except services 92230000-2)