Activities of Malcolm HARBOUR related to 2011/0439(COD)

Proposal for a directive
Recital 15 b (new)

(15b) To ensure transparency, contracting entities intending to make use of their power to exclude tenders comprising supplies and/or services originating from outside the European Union, in 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 supplies, services and economic operators.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 16

(16) The results of the Evaluation demonstrated that the exclusion of certain services from the full application of this directive should be reviewed. As a result, the full application of the Directive is extended to a number of services (such as hotel and legal services, which both showed a particularly high percentage of cross-border trade).deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 17

(17) ~~Other~~The results of the Evaluation on the Impact and Effectiveness of EU Public Procurement Legislation 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, ~~namely~~for example what are known as services to the person, such as certain social, health and educational services. Thoese 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 thoese services, with a higher threshold of EUR 1 000 000. ~~In the particular context of procurement in those sectors, s~~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 thoese 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 ~~ent~~authorities are able to apply specific quality criteria for the choice of service providers, such as the criteria set out in the voluntary European Quality Framework for Social Services of the European Union's Social Protection Committee. Member States and/or ~~contracting ent~~public authorities remain free to provide thoese 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 ~~ent~~authority, without any limits or quotas, provided such a system ensures sufficient advertising and complies with the principles of transparency and non- discrimination.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 18

(18) 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 European Institutions should, in particular, take into account the changes effected by this Directive and adjust their own procurement rules accordingly to reflect these changes.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 25

(25) 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. ~~Contracting ent~~Public authorities should make the best strategic use of public procurement to ~~spur~~drive 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 procurement1. 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 which~~Where 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 ~~ent~~authorities to establish a ~~long-term~~n 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 p~~artnership~~rocedure 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 solution s 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 35

(35) The technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To that end, it ~~should~~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 habitually offered by that economic operator, or that disadvantage economic operators on the basis of business or development model including with regard to 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 possible and favours innovation. Where reference is made to a European standard or, in the absence thereof, to a national standard, tenders based on ~~other~~ equivalent arrangements ~~which meet the requirements of the contracting entities and are equivalent in terms of safety must be considered by the~~must be considered equally by contracting ~~ent~~authorities. To demonstrate equivalence, tenderers can be required to provide third- party verified evidence; however, other appropriate means of proof such as a technical dossier of the manufacturer should also be allowed where the economic operator concerned has no access to such certificates or test reports, or no possibility of obtaining them within the relevant time limits. Contracting authorities must be able to provide a reason for any decision that equivalence does not exist in a given case.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 38

(38) ~~In order to encourage~~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, it should be provided explicitly that contracts may be divided into lots, whether homogenous or heterogeneous. Where contracts are divided into lots, contracting entities may, for instance in order to preserve competition or to ensure security of supply, limit the number of lots for which an economic operator may tender; they may also limit the number of lots that may be awarded to any one tenderer. contracting authorities should in particular give consideration to dividing contracts into lots and ensure transparency in access to information on their reasons for doing so 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 on tendering 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 41

(41) Where contracting entities are obliged or choose to apply the ~~just mentioned~~ exclusion criteria mentioned above, they should apply Directive [2004/18] concerning the possibility that economic operators adopt compliance measures aimed at remedying the consequences of any criminal offences or misconduct and at effectively preventing further occurrences of the misbehaviour.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 47

(47) Furthermore, in technical specifications and in award criteria, contracting ~~ent~~authorities should be allowed to refer to ~~a specific production process, a specific mode of provision of~~the 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 service~~supply and accordingly to social and environmental sustainability, provided that theyse characteristics are linked to the subject- matter of the 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 onlyThe 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 authorities should be able to concsidern the ~~protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged pers~~existence of an embedded life-cycle approach aiming at minimising cost and maximising resource efficiency and which should be applied in the framework of the provisions or members of vulnerable groups amongst the persons assigned to performing the contract, including accessibility for persons with disabilities. Any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment. They should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services32 and in a way that does not discriminate directly or indirectly against economf works, services 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 from other third countries with whom the Union is party to a Free Trade Agreement. Contracting authorities should also be allowed to use as technical specifications and award criteria 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 identification of the tender which o~~perators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements to which the Union is party~~ffers the best value for money. Contracting authorities should include these considerations in the award criterion of the most economically advantageous tender.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 57

(57) The evaluation has shown that ~~Member States do not consistently and systematically monitor the~~there is still considerable room for implrovement~~ation and the func~~ in the application~~ing~~ of the Union public procurement rules. This has a negative impact on the correct implementation of provisions stemming from those 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 functions that such bodies are empowered with 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, 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 ~~ent~~authorities, and econtribute to establish a level playing field. Such mechanisms could serve as tools for 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 coordinatomic 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 tsho~~se mechanisms to ensure consistent application, controls and monitoring of public procurement policy, as well as systematic assessment of the outcomes of procurement policy across the Union~~uld be made available to contracting authorities and economic operators wherever it appears necessary, to ensure correct application of the rules.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 58

(58) Member States should designate a single national authority in charge of monitoring, implementation and control of public procurement. Such a central body should have first hand and timely information particularly in relation to different problems affecting the implementation of public procurement law. It should be able to provide immediate feedback on the functioning of the policy, the potential weaknesses in national legislation and practice and contribute to the quick identification of solutions. In view of efficiently fighting corrupion and fraud, this central body and the general public should also have the possibility to inspect the texts of concluded contracts. High-value contracts should hence be transmitted to the oversight body with a possibility of interested persons to have access to these documents, to the extent that legitimate public or private interests are not jeopardized.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 59

(59) ~~Not all contracting entities may have the internal expertise to deal with economically~~Any 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 entities; 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 60

(60) Monitoring, oversight and support structures or mechanisms exist already at national level and can of course be used to ensure monitoring, implementation and control of public procurement and to provide the required support to contracting entities and economic operatorTraceability 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 elements 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 61

(61) Effective cooperation is necessary to ensure consistent advice and practice within each Member State and across the Union. Bodies designated for monitoring, implementation, control and technical assistance should be able to share information and cooperate; in the same context, the national authority designated by each Member State should act as the preferred contact point with the Commission services for the purpose of collecting data, exchanging information and monitoring the implementation of Union public procurement law.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 2 – point 4 – introductory part

(4) a ‘'body governed by public law’' means an~~y body that has all of the following characteristics~~ entity:

2012/09/03
Committee: IMCO

Proposal for a directive
Article 2 – point 4 – point a

(a) ~~It is~~ established for, or which has 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 and does not have an industrial or commercial character;

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Adam BIELAN, Jürgen CREUTZMANN

Proposal for a directive
Article 2 – point 4 – point b

(b) ~~it has~~having legal personality;

2012/09/03
Committee: IMCO

Proposal for a directive
Article 2 – point 4 – point c

(c) ~~it is financed, for the most part, by~~which 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; ~~or subject to management supervision by those bodies; or has an~~(ii) the majority of the administrative, managerial or supervisory board~~, more than half of whose members are appointed~~ 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;.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 2 – 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 finalisation;monetising, 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.

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Adam BIELAN, Jürgen CREUTZMANN

Proposal for a directive
Article 2 – point 23 a (new)

(23a) '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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 19 – paragraph 1 – point f a (new)

(fa) 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 21 – paragraph 1 – subparagraph 1 – point b

(b) at least 980 % 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;

2012/09/03
Committee: IMCO

Proposal for a directive
Article 21 – 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;

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Andreas SCHWAB, Jürgen CREUTZMANN

Proposal for a directive
Article 21 – paragraph 4 – point c

~~(c) the participating contracting authorities do not perform on the open market more than 10 % in terms of turnover of the activities which are relevant in the context of the agreement;~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 34 – paragraph 1

Member States shall ensure that, atby the ~~latest 2 years after the date provided for in Article 101(1), all~~1st 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.

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Title 1 – chapter 4 a (new)

Chapter IV a Treatment of non-covered supplies or services Article 37a Exclusion of tenders comprising non- covered supplies or services 1. Upon the request of contracting entities, the Commission shall assess whether to approve, for contracts with an estimated value equal or above EUR 5.000.000 exclusive of value-added tax (VAT) the exclusion from procedures for the award of contracts, tenders comprising supplies or services originating from outside the Union, if the value of the non-covered supplies or services exceeds 50 % of the total value of the supplies or services constituting the tender, under the following conditions. 2. Where contracting entities intend to request the exclusion from procedures for the award of contracts on the basis of paragraph 1 they shall indicate this in the contract notice they publish in accordance with Article 63. Contracting entities shall require tenderers to provide information on the origin of the supplies and/or services contained in the tender, and on their value. The Commission may adopt implementing acts establishing standard forms for declarations concerning the origin of supplies and services. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 100(2). Where contracting entities receive tenders that meet the conditions of paragraph 1 for which they intend to request the exclusion for that reason, they shall notify the Commission. During the notification procedure the contracting entity may continue its analysis of the tenders. The notification shall be sent by electronic means using a standard form. The Commission shall adopt implementing acts establishing the standard forms. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 100(2). That standard form shall contain the following information: (a) the name and contact details of the contracting entity; (b) a description of the object of the contract; (c) the name and contact details of the economic operator whose tender would be excluded; (d) information on the origin of the economic operator, the supplies and/or services and their value; The Commission may ask the contracting entity for additional information. That information shall be provided within eight working days, commencing on the first working day following the date on which it receives the request for additional information. If the Commission receives no information within this period, the period established in paragraph 3 shall be suspended until the Commission receives the requested information. 3. For contracts referred to in paragraph 1, the Commission shall adopt an implementing act concerning the approval of the intended exclusion within a period of two months commencing on the first working day following the date on which it receives the notification. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 100(2a). This period may be extended once by a maximum of two months in duly justified cases, in particular if the information contained in the notification or in the documents annexed thereto is incomplete or inexact or if the facts as reported undergo any substantive changes. If, at the end of this two-month period, or the extended period the Commission has not adopted a decision approving or disapproving the exclusion, the exclusion shall be deemed to have been rejected by the Commission. 4. When adopting implementing acts pursuant to paragraph 3, the Commission shall approve the intended exclusion in the following cases: (a) if the international agreement concerning market access in the field of public procurement between the Union and the country where the 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; (b) where an agreement referred to in point (a) does not exist and the third country maintains restrictive procurement measures leading to a lack of substantial reciprocity in market opening between the Union and the third country concerned. For the purposes of point (b), a lack of substantial reciprocity is presumed where restrictive procurement measures result in serious and recurring discriminations of Union economic operators, supplies and services. When adopting implementing acts pursuant to paragraph 3, the Commission shall not approve an intended exclusion where it would violate market access commitments entered into by the Union in its international agreements. 5. When assessing whether a lack of substantial reciprocity exists, the Commission shall examine the following: (a) to what degree public procurement laws of the country concerned ensure transparency in line with international standards in the field of public procurement and preclude any discrimination against Union supplies, services and economic operators; (b) to what degree public authorities and/or individual procuring entities maintain or adopt discriminatory practices against Union supplies, services and economic operators. 6. Before the Commission takes a decision pursuant to paragraph 3 it shall hear the tenderer or tenderers concerned. 7. Contracting entities which have excluded tenders pursuant to paragraph 1 shall indicate this in the contract award notice published pursuant to Article 64 of this Directive. Article 37b Rules of origin 1. The origin of a product shall be determined in accordance with Article 22 to 26 of Regulation (EC) No 2913/1992 of the European Parliament and of the Council of 12 October 1992 establishing the Community Customs Code1. 2. The origin of a service shall be determined on the basis of the origin of the natural or legal person providing it. 3. For the purpose of this Directive, supplies or services originating in the countries of the European Economic Area other than the Member States shall be treated equally to those originating in the Member States. Article 37c Implementation of the reciprocity conditions Contracts concluded with an economic operator in violation of Commission implementing acts adopted pursuant to Article 37a upon intended exclusion notified by contracting entities shall be declared ineffective within the meaning of Directive 2007/66/EC.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 1 – subparagraph 1

Member States ~~may~~shall provide that contracting entities may apply innovation partnerships as regulated in this Directive. ~~Member States may decide not to transpose into their national law innovation partnerships or to restrict the use of it to certain types of procurement.~~

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Article 43 – paragraph 1 – subparagraph 2

In innovation partnerships, any economic operator may submit a request to participate in response to a c~~all for competition in accordance with points (b) and (c) of Article 39(2)~~ontract 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 need for which cannot be met by solutions already available on the market, 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 76(1)(a).

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 2

2. The partnership shall be structured in successive stages following the sequence of steps in the research and innovation process, ~~possibly up to~~which 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 entity ~~can~~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 entity has indicated in the procurement documents under which conditions it may make use of this discretion to terminate the partnership.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 3 – subparagraph 1

The contract shall be awarded ~~in accordance with the rules for a negotiated procedure with prior call for compe~~according to the provisions laid down in subparagraphs 1(a) to 1(h) below: (a) In the procurement documents, contracting authorities shall indicate which elements define the minimum requirements to be met. The indications shall be sufficiently precise so as to enable economic operators to identify the nature and scope of the procurement and decide whether to request to participate in the procedure. (b) The minimum time limit for receipt of requests to participate shall be 30 days from the date on which the contract notice is sent, or where a prior information notice is used as a means of calling for competition, 30 days from the date on which the invitation to confirm interests is sent. The minimum time limit for the receipt of initial tenders shall be 30 days from the date on which the invitation is sent. (c) Contracting authorities shall negotiate with tenderers the initial and all subsequent tenders submitted, to improve the content to ensure that these tenders better fulfil the award criteria specified in the procurement documents. (d) 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, are informed in writing of any changes to the technical specifications of other procurement documents other than those setting out the minimum requirements, providing sufficient time to allow such tenderers to modify and re-submit amended tenders following these changes. (e) In accordance with Article 32, contracting authorities shall not reveal to the other participants confidential information communicated by a candidate participating in the negotiation ~~set out in Article 42.~~ s without its agreement. Such agreement shall not take the form of a general waiver but shall be given with reference to the intended communication of specific information. (f) The minimum requirements and the award criteria shall not be subject to negotiations. (g) 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 76(5), provided that: (i) the contract award criteria set out in the contract documents or the contract notice are unaltered; (ii) this does not include new elements which would have affected the preparation of the tenders; (iii) this does not give rise to discrimination against any one of the tenderers. (h) Innovation partnership procedures may take place in successive stages in order to reduce the number of tenders to be negotiated, by applying the award criteria specified in the contract notice, in the invitation to confirm interest or in the procurement documents. In the contract notice, the invitation to confirm interest or in the procurement documents, the contracting authority shall clearly indicate whether it will use this option.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 3 – subparagraph 2

In selecting candidates, contracting entities shall pay particular attention to criteria concerning the ~~tenderers‘ capacity and experience~~candidates' capacity in the field of research and development orand of developing innovative solutions. They may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 72(2).

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 3 – subparagraph 3

Only those economic operators invited by the contracting entity following its assessment of the requested information may submit research and innovation projects, aimed at meeting the needs identified by the contracting entity 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 76 (1)(a).~~

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 4 – subparagraph 1

The contracting entity 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 supply~~estimated 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 profi~~not be disproportionate in relation to the investment required for their development.

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Jürgen CREUTZMANN

Proposal for a directive
Article 43 – paragraph 4 – subparagraph 2

~~Contracting entities shall not use innovation partnerships in such a way as to prevent, restrict or distort competition.~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 54 – 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’';

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Jürgen CREUTZMANN

Proposal for a directive
Article 54 – paragraph 4

4. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or to a particular process or development or business model or method, or to trade marks, patents, types or a specific origin or production ~~with~~or 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’".

2012/09/03
Committee: IMCO

Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1

~~Contracts may be subdivided into homogenous or heterogeneous lots. Article 13(7) applies~~To facilitate greater access to public procurement by small and medium-sized enterprises, public contracts may be subdivided into homogenous or heterogeneous lots. Article 13(7) applies. For contracts with a value equal to and over EUR 1 000 000, contracting authorities shall provide a justification for not sub-dividing the contract into lots in the contract notice or in the invitation to confirm interest.

2012/09/03
Committee: IMCO

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

The most economically advantageous tender referred to in point (a) of paragraph 1)1 from the point of view of the contracting entity 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – introductory part

Those criteria ~~shall~~may 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 contract in question, such as:

2012/09/03
Committee: IMCO

Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point d

(d) the specific process of production or provision of the requested works, supplies or services or of any other stage of its life cycle, as referred to in point 22 of Article 2, to the extent that those criteria are specified in accordance with paragraph 4 and they concern factors directly involved in those processes and characterise the specific process of production or provision of the requested works, supplies or services.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 77 – 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 79 – paragraph 6 a (new)

6a. Where the contracting entity 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, in accordance with Article 37a, 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 entity 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 80 – paragraph 1

Contracting entities 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 and~~clude 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 81 – paragraph 2

2. Member States may provide that, at the request of the subcontractor and where the nature of the contract so allows, the contracting entity shall transfer due payments directly to the subcontractor for services, supplies or works provided to the main contractor. In such case, Member States shall put in place appropriate mechanisms permitting the main contractor to object to undue payments. The arrangements concerning that mode of payment shall be set out in the procurement documents.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 81 – paragraph 3

~~3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability.~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 81 – paragraph 3 a (new)

3a. Contracting entities 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 entity shall refer the matter to the Court or other competent authority for a decision on appropriate sanctions.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 82 – 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 12 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 82 – paragraph 4 a (new)

4a. Furthermore, where the scope of the contract might evolve pursuant to: - significant innovations or technological change; - a technical difficulty in operation or maintenance requiring the intervention of the initial contractor; - the necessary implementation of emergency and unforeseeable works, services or supplies which cannot be technically or economically separated from the main contract without causing major disruption to the contracting entity; the modification shall not be considered substantial within the meaning of paragraph 1.

2012/09/03
Committee: IMCO

Proposal for a directive
Title 4 – title

~~GOVERNANCE~~ENFORCEMENT, REPORTING AND ADMINISTRATIVE COOPERATION

2012/09/03
Committee: IMCO

Proposal for a directive
Article 92 – paragraph 1

In conformity with Council Directive 92/13/EEC, Member States shall ensure correct application of this Directive by effective, available and transparent mechanisms which complement the system in place for the review of decisions taken by con1. In order to effectively ensure correct and efficient implementation, Member States shall make sure that at least the tasks set out in this Article are performed by one or more authorities or structures. They shall indicate to the Commission all authorities or strauct~~ing entitie~~ures competent for these tasks.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 92 – paragraph 1 a (new)

2. 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 92 – paragraph 1 b (new)

3. 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 92 – paragraph 1 c (new)

4. Any person or body which does not have access to review procedures pursuant to Council Directive 92/13/EEC shall be given the possibility to indicate possible violations of this Directive to a competent authority or structure which shall duly consider any sufficiently substantiated complaint and take appropriate measures subject to powers and competences provided for in national law.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 92 – paragraph 1 d (new)

5. 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 92 – paragraph 1 e (new)

6. 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 92 – paragraph 1 f (new)

7. 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93

Article 93 Public oversight 1. Member States shall appoint a single independent body responsible for the oversight and coordination of implementation activities (hereinafter "the oversight body"). Member States shall inform the Commission of their designation. All contracting entities shall be subject to such oversight. 2. The competent authorities involved in the implementation activities shall be organised in such a manner that conflicts of interests are avoided. The system of public oversight shall be transparent. For this purpose, all guidance and opinion documents and an annual report illustrating the implementation and application of rules laid down in this Directive shall be published. The annual report shall include the following: (a) an indication of the success rate of small and medium-sized enterprises (SMEs) in procurement; where the percentage is lower than 50 % in terms of values of contracts awarded to SMEs, the report shall provide an analysis of the reasons therefore; (b) a global overview of the implementation of sustainable procurement policies, including on procedures taking into account considerations linked to the protection of the environment, social inclusion including accessibility for persons with disabilities or fostering innovation; (c) centralized data about reported cases of fraud, corruption, conflict of interests and other serious irregularities in the field of public procurement, including those affecting projects cofinanced by the budget of the Union. 3. The oversight body shall be responsible for the following tasks: (a) monitoring the application of public procurement rules and the related practice by contracting entities and in particular by central purchasing bodies; (b) providing legal advice to contracting entities on the interpretation of public procurement rules and principles and on the application of public procurement rules in specific cases; (c) issuing own initiative opinions and guidance on questions of general interest pertaining to the interpretation and application of public procurement rules, on recurring questions and on systemic difficulties related to the application of public procurement rules, in the light of the provisions of this Directive and of the relevant case-law of the Court of Justice of the European Union; (d) establishing and applying comprehensive, actionable 'red flag' indicator systems to prevent, detect and adequately report instances of procurement fraud, corruption, conflict of interest and other serious irregularities; (e) drawing the attention of the national competent institutions, including auditing authorities, to specific violations detected and to systemic problems; (f) examining complaints from citizens and businesses on the application of public procurement rules in specific cases and transmitting the analysis to the competent contracting entities, which shall have the obligation to take it into account in their decisions or, where the analysis is not followed, to explain the reasons for disregarding it; (g) monitoring the decisions taken by national courts and authorities following a ruling given by the Court of Justice of the European Union on the basis of Article 267 of the Treaty or findings of the European Court of Auditors establishing violations of Union public procurement rules related to projects cofinanced by the Union; the oversight body shall report to the European Anti-Fraud Office any infringement to Union procurement procedures where these were related to contracts directly or indirectly funded by the European Union. The tasks referred to in point (e) shall be without prejudice to the exercise of rights of appeal under national law or under the system established on the basis of directive 92/13/EEC. Member States shall empower the oversight body to seize the jurisdiction competent according to national law for the review of contracting entities' decisions where it has detected a violation in the course of its monitoring and legal advising activity. 4. Without prejudice to the general procedures and working methods established by the Commission for its communications and contacts with Member States, the oversight body shall act as a specific contact point for the Commission when it monitors 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. It shall report to the Commission any violation of this Directive in procurement procedures for the award of contracts directly or indirectly funded by the Union. The Commission may in particular refer to the oversight body the treatment of individual cases where the contract is not yet concluded or a review procedure can still be carried out. It may also entrust the oversight body with the monitoring activities necessary to ensure the implementation of the measures to which Member States are committed in order to remedy a violation of Union public procurement rules and principles identified by the Commission. The Commission may require the oversight body to analyse alleged breaches to Union public procurement rules affecting projects co-financed by the budget of the Union. The Commission may entrust the oversight body to follow- up certain cases and to ensure that the appropriate consequences of breaches to Union public procurement rules affecting projects co-financed are taken by the competent national authorities which will be obliged to follow its instructions. 5. The investigation and enforcement activities carried out by the oversight body to ensure that contracting entities' decisions comply with this Directive and the general principles of the Treaty on the Functioning of the European Union shall not replace or prejudge the institutional role of the Commission as guardian of the Treaty. When the Commission decides to refer the treatment of an individual case, it shall also retain the right to intervene in accordance with the powers conferred to it by the Treaty. 6. Contracting authorities shall transmit to the national oversight body the full text of all concluded contracts with a value equal to or greater than (a) 1 000 000 EUR in the case of supply contracts or service contracts; (b) 10 000 000 EUR in the case of works contracts. 7. Without prejudice to the national law concerning access to information, and in accordance with national and EU legislation on data protection, the oversight body shall, upon written request, give unrestricted and full direct access, free of charge, to the concluded contracts referred to in paragraph 6. Access to certain parts of the contracts may be refused where their disclosure would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them. Access to the parts that may be released shall be given within a reasonable delay and no later than 45 days from the date of the request. The applicants filing a request for access to a contract shall not need to show any direct or indirect interest related to that particular contract. The recipient of information should be allowed to make it public. 8. A summary of all the activities carried out by the oversight body in accordance with paragraphs 1 to 7 shall be included in the annual report mentioned in paragraph 2.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 94 – title

Individual rReport~~s on procedures for the award of contracts~~ing

2012/09/03
Committee: IMCO

Proposal for a directive
Article 94 – paragraph 1 – subparagraph 2

Contracting entities shall document the progress of all procurement procedures, whether or not th~~e procedures~~ose are conducted by electronic means. To that end, they shall ~~document~~ensure that they dispose of sufficient documentation to justify decisions taken in all stages inof the procurement procedure, ~~including all~~such 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 94 – paragraph 2

2. The information shall be kept for at least four years from the date of award of the contract so that the contracting entity will be able, during that period, to provide the necessary information to the Commission or to the national ~~oversight body~~authorities or structures referred to in Article 92 where they so request it.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 95 – paragraph 1

1. ~~The bodies established or appointed in accordance with Article 93~~Member States shall forward to the Commission a~~n implementation and~~ statistical report on each year, based on a standard form, not later than 31 October of the following year.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 95 – paragraph 2

2. The report referred to in paragraph 1 shall contain ~~at least the total value, broken down by category of activity to which Articles 5 to 11 refer, of the~~, for contracts awarded below the thresholds set out in Article 12 of this Directive, but which would be covered by this Directive if ~~their value exceeded the threshold~~its value exceeded the threshold, an 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 95 – paragraph 3

3. For all contracts above the thresholds of this Directive, Member States shall ensure that this report contains ~~at least the~~the estimated number and value of contracts awarded during the year concerned, broken down by categories of activity to which Articles 5 to 11 refer and any other information required to verify the proper application of the WTO Government Procurement Agreement. This shall include the estimated number and value of contracts awarded pursuant to a negotiated procedure without a call for competition, broken down according to the circumstances referred to in Article 44 and by categories of activity to which Articles 5 to 11 refer. It shall also specify the Member State or third country of the successful contractor.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 95 – paragraph 5

5. The Commission shall establish the standard form for the ~~drawing-up of the annual implementation and~~annual statistical report referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 100.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 96

Article 96deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 97 – paragraph 3

3. For the purposes of this Article, Member States shall designate one or more liaison points, the contact details of which shall be communicated to the other Member States, the oversight bodies and the Commission. Member States shall publish and regularly update the list of liaison points. The oversight body shall be in charge of the coordination of such liaison points.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 100 – paragraph 1

1. The Commission shall be assisted by the Advisory Committee for Public Contracts established by Council Decision 71/306/EEC53 and by the Committee set up by Article 7 of Council Regulation (EC) No 3286/94 (Trade Barriers Regulation)54. Thatese committees shall be a committees within the meaning of Article 3 of Regulation (EU) No 182/2011. __________________ 54 OJ L 349, 31.12.1994, p. 71

2012/09/03
Committee: IMCO

Proposal for a directive
Article 100 – 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 100 – paragraph 2 a (new)

2a. 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.

2012/09/03
Committee: IMCO