BETA

73 Amendments of Rafał TRZASKOWSKI related to 2011/0439(COD)

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Recital 22

(22) This Directive should apply neither to contracts intended to permit the performance of an activity referred to in Articles 5 to 11 nor to design contests organised for the pursuit of such an activity if, in the Member State in which this activity is carried out, in all or in part, even in relation to single sectors or segments of it, it is directly exposed to competition on markets to which access is not limited. It is therefore appropriate to maintain the procedure, applicable to all sectors covered by this Directive that will enable the effects of current or future opening up to competition to be taken into account. Such a procedure should provide legal certainty for the entities concerned, as well as an appropriate decision-making process, ensuring, within short time limits, uniform application of Union law in this area.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Recital 23

(23) Direct exposure to competition should be assessed on the basis of objective criteria, taking account of the specific characteristics of the sector concerned or of a part of it. This assessment is, however, limited by the applicable short deadlines and by having to be based on the information available to the Commission – either from already available sources or from the information obtained in the context of the application pursuant to Article 28 - which can not be supplemented by more time consuming methods, including notably public inquiries of economic operators concerned. The assessment of direct exposure to competition that can be carried out in the context of this directive is consequently without prejudice to the full-fledged application of competition law.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Recital 24

(24) The implementation and application of appropriate Union legislation opening a given sector, or a part of it, will be considered to provide sufficient grounds for assuming that there is free access to the market in question. Such appropriate legislation should be identified in an annex which can be updated by the Commission. It is appropriate that this annex should currently refer to Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC27 , Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC28 ~~and Directive 94/22/EC~~, Directive 94/22/EC and Directive 91/440/EC on the development of the Community's railways.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Recital 46

(46) Those sector-specific measures must be complemented by an adaptation of the public procurement Directives empowering contracting entities to pursue the objectives of the Europe 2020 Strategy in their purchasing strategies. It should hence be made clear that contracting entities can determine the most economically advantageous tender and the lowest cost using a life-cycle costing approach, provided that the methodology to be used is established in an objective and non- discriminatory manner and accessible to all interested parties. The notion of life-cycle costing includes all costs over the life- cycle of a works, supplies or services, both their internal costs (such as development, ~~production,~~ use, maintenance and end-of- life disposal costs) and their external costs, provided they can be monetised and monitored. Common methodologies should be developed at the level of the Union for the calculation of life-cycle costs for specific categories of supplies or services; adopted in close consultation with stakeholders, including industry; whenever such a methodology is developed its use should be made compulsory.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Recital 47

(47) Furthermore, in technical specifications and in award criteria, contracting entities should be allowed to refer to a specific production process, a specific mode of provision of services, or a specific process for any other stage of the life-cycle of a product or service, provided that they are linked to the subject-matter of the 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 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 economic operators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements to which the Union is party.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

2. Procurement within the meaning of this Directive is the purchase ~~or other forms of acquisition~~ of works, supplies or services via public contracts by one or more contracting entities from economic operators chosen by those contracting entities, provided that the works, supplies or services are intended for the pursuit of one of the activities referred to in Articles 5 to 11. Procurement within the meaning of this Directive is the acquisition of works, supplies or services by means of public contracts by one or more contracting entities from economic operators chosen by those contracting entities.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

An entirety of works, supplies and/or services, even if purchased through different contracts, constitutes a single procurement within the meaning of this Directive, if the contracts are part of one single project.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

(a) It is established for or 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 and engages in economic activities by offering goods and services on the market, aims to make a profit, and bears the losses resulting from the exercise of its activity does not have the purpose of meeting needs in the general interest, not having an industrial or commercial character;

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 2 – point 22

(22) ‘life cycle’ means all consecutive and/or interlinked stages, including ~~production~~research, development, transport, use and maintenance, throughout the existence of a product or a works or the provision of a service, fpro~~m raw material acquisition or generation of resources to disposal, clearance an~~vided data in relation to these are measurable and can be collated fin~~alisation;~~ a meaningful manner.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 19 – paragraph 1 – point b

b) arbitration and conciliation services, or the actions of a public official who is obliged to be independent and impartial;

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

(b) ~~at least 90 %~~essential part 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

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point b

(b) ~~at least 90 %~~essential part 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

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point b

(b) ~~at least 90 %~~essential part 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

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 27 – paragraph 1

1. Contracts intended to enable an activity mentioned in Articles 5 to 11 to be carried out shall not be subject to this Directive if the Member State or the contracting entities having introduced the request pursuant to Article 28 can demonstrate that, in the Member State in which it is performed, or in the related specific sectors or segments the activity is directly exposed to competition on markets to which access is not restricted; nor shall design contests that are organised for the pursuit of such an activity in that geographic area be subject to this Directive. Such competition assessment, which will be made in the light of the information available to the Commission and for the purposes of this Directive, is without prejudice to the application of competition law.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 27 – paragraph 2 – subparagraph 1

2. For the purposes of paragraph 1, the question of whether an activity is directly exposed to competition the relevant market, both in its product and geographic dimension, has to be defined. Definition of the relevant market shall be decided on the basis of criteria that are in conformity with the provisions on competition of the Treaty; those may include the characteristics of the goods or services concerned which are regarded as substitutable both on the demand and the supply side – for instance as far as inter- modality in the transport sector is concerned-, the existence of alternative goods or services, the prices and the actual or potential presence of more than one supplier of the goods or provider of the services in question.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 27 – paragraph 3 – subparagraph 1

3. For the purposes of paragraph 1, access to a market shall be deemed not to be restricted if the Member State has implemented and applied the Union legislation listed in Annex III, or if the Member State has extended to the concerned market the application of principles established by the mentioned legislation. If free access to a given market cannot be presumed on the basis of the first subparagraph, it must be demonstrated that access to the market in question is free de facto and de jure.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 28 – paragraph 1 – subparagraph 1

1. Where a Member State or, where the legislation of the Member State concerned provides for it, a contracting entity considers that, on the basis of the criteria set out in Article 27(2) and (3), a given activity is completely or partially, even with regard to single sectors or segments of it, directly exposed to competition on markets to which access is not restricted, it may submit a request to establish that this Directive does not apply to the award of contracts or the organisation of desing contests for the pursuit of that activity or of a single sector or segment of it.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2

Requests shall be accompanied by a reasoned and substantiated position adopted by an independent national authority that is competent in relation to the activity concerned~~. This position shall thoroughly analyse the conditions for the possible applicability of Article 27(1) to the activity concerned in accordance with its paragraphs 2 and 3~~ or of a single sector or segment of it.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 28 – paragraph 2 – subparagraph 1

Upon request submitted in accordance with paragraph 1 of this Article, the Commission may, by way of an implementing decision adopted within the periods set out in paragraph 4 of this Article, establish whether an activity, or of a single sector or segment of it, referred to in Articles 5 to 11 is directly exposed to competition on the basis of the criteria set out in Article 27. Those implementing decisions shall be adopted in accordance with the advisory procedure referred to in Article 100(2) .

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 28 – paragraph 2 – subparagraph 2 – introductory part

Contracts intended to enable the activity concerned, or of a single sector or segment of it, to be carried out and design contests that are organised for the pursuit of such an activity, or of a single sector or segment of it, shall cease to be subject to this Directive in any of the following cases:

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 36 – paragraph 1 – subparagraph 2

The notion of conflict of interests shall ~~at least~~ cover any situation where the categories of persons referred to in paragraph 2 have, directly or indirectly, a private interest in the outcome of the procurement procedure, which may be perceived to impair the impartial and objective performance of their duties.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 36 – paragraph 3 – subparagraph 3

Where privileged links are identified, the contracting authority shall immediately inform the oversight body designated in accordance with Article 93 and take appropriate measures to avoid any undue influence on the award process and ensure equal treatment of candidates and tenderers. If the conflict of interests cannot be effectively remedied by other means, the candidate or tenderer concerned shall be excluded from the procedure.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 44 – paragraph 1 – point c

(c) whe~~re the aim of the procurement is the creation or obtention of a work of art~~n for artistic reasons the contract may be awarded only to a particular economic operator;

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 44 – paragraph 1 – point e

(e) insofar as is strictly necessary where, for reasons of extreme urgency ~~brought about by force majeure~~, the time limits laid down for open procedures, restricted procedures and negotiated procedures with prior call for competition cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting entity;

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 44 – paragraph 1 – point f a (new)

(fa) for additional works or services which were not included in the project initially awarded or in the contract first concluded but have, through unforeseen circumstances, become necessary to the performance of the contract, on condition that the award is made to the contractor or service provider executing the original contract: (i) when such additional works or services cannot be technically or economically separated from the main contract without great inconvenience to the contracting entities, or (ii) when such additional works or services, although separable from the performance of the original contract, are strictly necessary to its later stages;

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 45 – paragraph 1 – subparagraph 2

A framework agreement means an agreement between one or more contracting entities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period~~, in particular with regard to price and, where appropriate, the quantities envisaged~~.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 45 – paragraph 1 – subparagraph 3

~~The term of a framework agreement shall not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.~~deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 45 – paragraph 2

2. Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in this paragraph and paragraphs 3 and 4. Those procedures may be applied only between those contracting entities clearly identified for this purpose in the call for competition, in the invitation to confirm interest or, where a notice on the existence of a qualification system is used as a means of calling for competition, in the invitation to tender and those economic operators originally party to the framework agreement. Contracts based on a framework agreement may under no circumstances make substantial modifications to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3. Contracting entities shall not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 45 – paragraph 3

3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement. For the award of those contracts, contracting entities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 45 – paragraph 4

4. Where a framework agreement is concluded with more than one economic operator, it may be performed in one of the two following ways: (a) following the terms and conditions of the framework agreement, without reopening competition, where it sets out all the terms governing the provision of the works, services and supplies concerned and the objective conditions for determining which of the economic operators, party to the framework agreement, shall perform them; the latter conditions shall be indicated in the procurement documents; (b) where not all the terms governing the provision of the works, services and supplies are laid down in the framework agreement, through reopening competition amongst the economic operators parties to the framework agreement.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 45 – paragraph 5

5. The competition referred to in paragraph (4)(b) shall be based on the same terms as applied for the award of the framework agreement and, where necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure: (a) for every contract to be awarded, contracting entities shall consult in writing the economic operators capable of performing the contract; (b) contracting entities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject- matter of the contract and the time needed to send in tenders; (c) tenders shall be submitted in writing, and their content shall not be opened until the stipulated time limit for reply has expired; (d) contracting entities shall award each contract to the tenderer that has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 45 – paragraph 5

5. The competition referred to in paragraph (4)(b) shall be based on the same terms as applied for the award of the framework agreement and, where necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure: (a) for every contract to be awarded, contracting entities shall consult in writing the economic operators capable of performing the contract; (b) contracting entities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject- matter of the contract and the time needed to send in tenders; (c) tenders shall be submitted in writing, and their content shall not be opened until the stipulated time limit for reply has expired; (d) contracting entities shall award each contract to the tenderer that has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 49 – paragraph 1

1. CMember States may stipulate that contracting entities may purchase works, supplies and/or services from or through a central purchasing body.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 49 – paragraph 2

2. Member States ~~shall~~may also provide for the possibility for contracting ~~ent~~authorities to have recourse to centralised purchasing activities offered by central purchasing bodies established in another Member State.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 52 – paragraph 1

1. Without prejudice to Title I, Chapter III, Section 2, Subsection 2: Special relations, ~~contracting entities from different~~Member States may stipulate that contracting entities may award public contracts jointly with contracting entities from other Member States ~~may~~if: (a) the jointly award ~~contracts by using one of the means described in this Articl~~of a public contract is justified due to cross-border nature of the contract or; (b) the public contract is co-financed by contracting authorities from different Member States or; (c) the public contract is of innovative nature.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 52 – paragraph 2

2. Several contracting entities may purchase works, supplies and/or services from or through a central purchasing body located in another Member State. In that case, the procurement procedure shall be conducted in accordance with the national provisions of the Member State where the central purchasing body is located.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 52 – paragraph 3 – subparagraph 1 – introductory part

~~Several contracting entities from different Member States may jointly award a contract. In that case~~In a case referred to in the paragraph 1, the participating contracting entities shall conclude an agreement that determines

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 52 – paragraph 5

5. In the absence of an agreement determining the applicable public procurement law, the national legislation governing the contract award shall be determined following the rules set out below: (a) where the procedure is conducted or managed by one participating contracting entity on behalf of the others, the national provisions of the Member State of that contracting entity shall apply; (b) where the procedure is not conducted or managed by one participating contracting entity on behalf of the others, and (i) concerns a works contract, contracting entities shall apply the national provisions of the Member State where most of the works are located; (ii) concerns a service or supply contract, contracting entities shall apply the national provisions of the Member State where the major part of the services or supplies is provided; (c) where it is not possible to determine the applicable national law pursuant to points (a) or (b), contracting entities shall apply the national provisions of the Member State of the contracting entity which bears the biggest share of the costs.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 52 – paragraph 6

6. In the absence of an agreement determining the applicable public procurement law under paragraph 4, the national legislation governing procurement procedures conducted by joint legal entities set up by several contracting entities from different Member States shall be determined following the following rules: (a) where the procedure is conducted or managed by the competent organ of the joint legal entity, the national provisions of the Member State where the legal entity has its registered office shall apply; (b) where the procedure is conducted or managed by a member of the legal entity on behalf of that legal entity, the rules set out in points (a) and (b)of paragraph 5 shall apply; (c) where it is not possible to determine the applicable national law pursuant to points (a) or (b) of paragraph 5, the contracting entities shall apply the national provisions of the Member State where the legal entity has its registered office.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 52 – paragraph 6 a (new)

6 a. Several contracting entities from different Member States may purchase works, supplies and/or services from or through a central purchasing body located in another Member State, if those Member States provided for the possibility referred to in Article 49 paragraph 2 and all the conditions referred to in the paragraph 1 are fulfilled. In that case, parties shall conclude an agreement that determines which national provisions shall apply to the procurement procedure.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 52 – paragraph 7

7. OMember States may stipulate that one or more contracting entities may award individual contracts under a framework agreement concluded by or jointly with a contracting entity located in another Member State, provided that the framework agreement contains specific provisions enabling the respective contracting entity or entities to award the individual contracts.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 52 – paragraph 9

9. In order to enable the effective operation of review mechanisms, Member States shall ensure that the decisions of review bodies within the meaning of Council Directive 92/13/EEC47 located in other Member States are fully executed in their domestic legal order, where such decisions involve contracting entities established on their territory participating in the relevant cross-border public procurement procedure.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI, Herbert DORFMANN

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

Contracts may be subdivided into ~~homogenous or heterogeneous~~ lots. Article 13 (7) applies.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI, Herbert DORFMANN

Proposal for a directive
Article 59 – paragraph 1 – subparagraph 2

CWhere the contracting entit~~ies~~y limits the possibility to tender to one or more lots it shall indicate, it in the contract notice, in the invitation to confirm interest, or, where the means of calling for competition is a notice on the existence of a qualification system, in the invitation to tender or to negotiate, ~~whether tenders are limited to one or more lots only.~~or in the procurement documents

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 59 – paragraph 3

3. Where more than one lot may be awarded to the same tenderer, contracting entities may provide that they will either award a contract per lot or one or more contracts, covering several or all lots. Contracting entities shall specify in the procurement documents whether they reserve the right to make such a choice and, if so, which lots may be grouped together under one contract. Contracting entities shall first determine the tenders fulfilling best the award criteria set out pursuant to Article 76 for each individual lot. They may award a contract for more than one lot to a tenderer that is not ranked first in respect of all individual lots covered by this contract, provided that the award criteria set out pursuant to Article 76 are better fulfilled with regard to all the lots covered by that contract. Contracting entities shall specify the methods they intend to use for such comparison in the procurement documents. Such methods shall be transparent, objective and non- discriminatory.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 70 – paragraph 5

5. Contracting entities may decide not to award a contract to the tenderer submitting the best tender where ~~they have~~it has been established that the tender does not comply~~, at least in an equivalent manner,~~ with obligations established by Union or national legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XIV.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

The most economically advantageous tender referred to in ~~point (a) of~~ paragraph 1) from the point of view of the contracting ~~ent~~authority shall be identified on the basis of criteria linked to the subject-matter of the public contract in question. Those criteria shall include, in addition to the price or costs, other criteria linked to the subject-matter of the public contract in question.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

~~Those criteria shall include~~ Costs shall be assessed using a~~ddition 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~~ cost- effectiveness approach, such as a life- cycle costing approach, under the conditions set out in Article 77. Price shall be the decisive award criterion in the case of highly standardised products and services. Other criteria may include:

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

(a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, environmental characteristics and innovative ~~character~~aspects, after-sales service and technical assistance, delivery conditions (delivery date, delivery process and delivery period or period of completion);

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

(b) ~~for service contracts and contracts involving the design of works, the~~ wherever the quality of the staff is of crucial importance for the performance of the contract ,organisation, qualification and experience of the staff assigned to performing the contract in question may be taken into consideration, with the consequence that , following the award of the contract, such staff may only be replaced with the consent of the contracting entity ~~which must verify that replacements ensure equivalent organisation and quality~~;

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 77 – paragraph 1 – point a

(a) internal costs, including costs relating to acquisition, ~~such as production costs,~~costs of use, such as energy consumption and use of other resources, maintenance costs, and end of life, such as collection and recycling costs and

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 77 – paragraph 1 – point b

(b) external environmental costs directly linked to the life cycle of the product, provided their monetary value can be determined and verified~~, which may include the cost of emissions of greenhouse gases and of other pollutant emissions and other climate change mitigation costs~~.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 77 – paragraph 2 – subparagraph 1 – point a

(a) it has been drawn up ~~on the basis~~in close consultation with stakeholders, including industry and is based ofn scientific information or is based on other objectively verifiable and non- discriminatory criteria;

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 77 – paragraph 2 – subparagraph 1 – point c a (new)

(ca) the data required can be provided with reasonable effort by normally diligent economic operators,

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 77 – paragraph 3 – subparagraph 1

3. Whenever a common methodology for the calculation of life-cycle costs ~~is adopted as part of a legislative act of the Union, including~~covering among others environmental externalities has been made mandatory by dea leg~~ated acts pursuant to sector specific legislat~~islative act of the Union, it shall be applied where life-cycle costing is included in the award criteria referred to in Article 76 (1).

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 77 – paragraph 3 – subparagraph 2

A list of such legislative ~~and delegated~~ acts is set out in Annex XV. The Commission, shall be empowered to adopt delegated acts in accordance with Article 98 concerning the update of this list, when on the basis of the adoption of new legislation, repeal or modification of such legislation, such amendments prove necessary.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 79 – paragraph 1 – introductory part

1. The contracting entity shall request economic operators to explain the price or costs charged, ~~where all~~if at least one of the following conditions are fulfilled:

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 79 – paragraph 1 – point a

(a) the price or cost ~~charged~~indicated in a tender is more than 50 % lower than the average price or costs of the remaining tenders;

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 79 – paragraph 1 – point a a (new)

(aa) the price or cost indicated in a tender is at least 40 % lower than the price or cost estimated with due diligence, by a contracting authority, taking into consideration due taxes;

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 79 – paragraph 1 – point b

(b) the price or cost ~~charged is more than~~indicated in a tender is at least 20 % lower than the price ~~or costs~~ of the second lowest tender;,

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 79 – paragraph 1 – point c

~~(c) at least five tenders have been submit~~deleted.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 79 – paragraph 2

2. ~~Where tenders appear to be abnormally low for other reasons, contracting entities may also request such explanations~~Contracting entities may also request explanations concerning price or costs indicated in a tender when other conditions, than those indicated in paragraph 1, are fulfilled for instance if the price or cost indicated in a tender is significantly lower than prices or costs indicated in other tenders or than a price or costs estimated by the contracting authority, and the probability that the price or cost is abnormally low is very high.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 79 – paragraph 4 – subparagraph 3

Contracting entities shall reject the tender, where they have established that the tender is abnormally low because the price or costs indicated in a tender does not cover costs of manufacturing a product, providing services or carrying out works which are subject matter of the public contract, taking into consideration economic conditions, and in particular if it does not comply with obligations established by Union legislation in the field of social and labour law or environmental law or by the international social and environmental law provisions listed in Annex XIV.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 81 – paragraph 2 a (new)

2a. Member States may decide that the contracting entity may exclude a subcontractor indicated by the tender if: (i) the subcontractor does not fulfil criteria for selection envisaged for a tender (ii)the subcontractor is not capable to properly fulfil its part of the contract Terms of participation in a procedure and capacity of a subcontractor to properly fulfil its part of the contract are assessed proportionally to the part of the contract awarded to the subcontractor, on the basis of contract award criteria indicated in Article 76.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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 515 % 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

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 86 – paragraph 1

1. Member States shall put in place ~~appropriate procedur~~rules for the award of contracts subject to this Chapter, ~~ensuring full compliance with the~~taking into account principles of transparency and equal treatment of economic operators ~~and allowing contracting entities to take into account~~. The rules shall take into consideration the specificities of the services in question.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 96

Article 96deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

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

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Article 97 – paragraph 4

4. The exchange of information shall take place via the Internal Market Information system established pursuant to Regulation (EU) N° XXX/XXXX of the European Parliament and Council52 [proposal for a Regulation of the European Parliament and Council on the administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) COM(2011)522]. Member States shall supply information requested by other Member States within the shortest possible period of time.deleted

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Annex 2 – paragraph 1 – point e a (new)

(ea) the procedures to allocate railway infrastructure capacity, railway licences or safety certifications in accordance with the Directives 95/18/EC, 2001/14/EC and 2004/49/EC.

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Annex 3 – point D – paragraph 1

Rail ~~Freight~~ transport

2012/09/03
Committee: IMCO

Małgorzata HANDZLIK, Rafał TRZASKOWSKI

Proposal for a directive
Annex 3 – point D – paragraph 3

~~Rail passenger transport None~~deleted

2012/09/03
Committee: IMCO