34 Amendments of Thomas HÄNDEL related to 2011/0439(COD)
Amendment 37 #
Proposal for a directive
Recital 2
Recital 2
(2) In order to guarantee the opening up to competition of procurement by entities operating in the water, energy, transport and postal services sectors, provisions should be drawn up coordinating procurement procedures in respect of contracts above a certain value. Such coordination is needed to ensure the effect of the principles of the Treaty on the Functioning of the European Union and in particular the free movement of goods, the freedom of establishment and the freedom to provide services as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. In view of the nature of the sectors affected by such coordination, the latter should, while safeguarding the application of those principles, establish a framework for sound commercial practice and should allow maximum flexibilityGiven the particular obligations incumbent on states in relation to public provision in the water, energy, transport and postal services sectors, single market criteria are applicable there to only a limited extent.
Amendment 39 #
Proposal for a directive
Recital 4
Recital 4
Amendment 44 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Article 9 TFEU stipulates that the Union must take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health when defining and implementing its policies and activities. This Directive contributes to attaining these objectives by encouraging sustainable public procurement, the integration of social criteria in all stages of the procurement procedure and the fulfilment of obligations relating to social and employment conditions, workplace health and safety, social security and working conditions, as set out by EU and national laws, regulations or administrative provisions, arbitration awards, collective agreements and contracts and the international labour law provisions listed in Annex XIV, that apply in the place where the work, service or supply is performed; these obligations shall also apply in cross-border situations, where workers from one Member State provide services in another Member State.
Amendment 45 #
Proposal for a directive
Recital 5 b (new)
Recital 5 b (new)
(5b) This Directive should not prevent Member States from complying with ILO Convention 94 on labour clauses in public contracts, and encourages the inclusion of labour clauses in public procurement.
Amendment 46 #
Proposal for a directive
Recital 7
Recital 7
(7) To ensure a real opening up of the market and a fair balance, in the application of procurement rules in the water, energy, transport and postal services sectors it is necessary for the entities covered to be identified on a basis other than their legal status. It should be ensured, th, that states are able to perefore, that the equal treatment of contracting entities operating in the public sector and those operating in the private sector is not prejudiced. It is also necessary to ensure, in keeping with Article 345 of the Treaty on the Functioning of the European Union, that the rules governing the system of property ownership in Member States are not prejudicedm their task of public provision, it is necessary that the entities covered should not be subject to uniform treatment to the same degree on the basis of their public remit.
Amendment 47 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) Under Article 14 of the TFEU in association with Protocol No 26 thereto, national, regional and local authorities enjoy wide discretion in decisions on procurement in the field of services of general interest.
Amendment 56 #
Proposal for a directive
Recital 43
Recital 43
(43) Contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment. Those criteria should guarantee that tenders are assessed in conditions of effective competition, also where contracting entities require high-quality works, supplies and services that are optimally suited to their needs. As a result, contracting entities should be allowed to adopt as an award criteria either ‘the moston ‘an economically advantageous tender’ or ‘the lowest cost’, taking into account that in the latter case they are free to set adequate quality standards by using technical specifications or contract performance conditions.
Amendment 57 #
Proposal for a directive
Recital 47
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, in addition to the protection of health of the staff involved in the production process or, compliance with national, European and international employment law and 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.
Amendment 58 #
Proposal for a directive
Recital 51
Recital 51
(51) The laws, regulations and collective agreements, at both national and Union level, that are in force in the areas of employment conditions and safety at work apply during the performance of a contract, provided that such rules, and their application, comply with Union law. In cross-border situations where workers from one Member State provide services in another Member State for the purpose of performing a contract, 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 services lays down the minimum conditions that must be observed by the host country in respect of such posted workersnationally, in the European Union and internationally apply during the performance of a contract. The principle of equal pay for equal work in a comparable job shall apply. Where national law contains provisions to this effect, non- compliance with those obligations may be considered to be grave misconduct on the part of the economic operator concerned, liable to lead to the exclusion of that economic operator from the procedure for the award of a public contract.
Amendment 59 #
Proposal for a directive
Recital 51 a (new)
Recital 51 a (new)
(51a) In the event of a change of contractor, the new contractor might take over workers from the former contractor. In such cases, the relevant provisions of Directive 2001/23/EC should be applied so as to ensure appropriate employment and working conditions for the workers concerned.
Amendment 66 #
Proposal for a directive
Article 12 – paragraph 1 – point a
Article 12 – paragraph 1 – point a
(a) EUR 4500 000 for supply and service contracts as well as for design contests;
Amendment 67 #
Proposal for a directive
Article 12 – paragraph 1 – point b
Article 12 – paragraph 1 – point b
(b) EUR 56 000 000 for works contracts;
Amendment 68 #
Proposal for a directive
Article 12 – paragraph 1 – point c
Article 12 – paragraph 1 – point c
Amendment 104 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – introductory part
Article 76 – paragraph 1 – subparagraph 1 – introductory part
Without prejudice to national laws, regulations or administrative provisions on the remuneration of certain services, the criteria on which, the contracting entities shall base the award of contracts shall be one ofon the following criterion:
Amendment 105 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point a
Article 76 – paragraph 1 – subparagraph 1 – point a
(a) the mostan economically advantageous tender;.
Amendment 106 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point b
Article 76 – paragraph 1 – subparagraph 1 – point b
Amendment 107 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 2
Article 76 – paragraph 1 – subparagraph 2
Amendment 108 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 1
Article 76 – paragraph 2 – subparagraph 1
Amendment 109 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – introductory part
Article 76 – paragraph 2 – subparagraph 2 – introductory part
Those criteria shall include, in addition to the price or costs referred to in point (b) of paragraph 1, other criteria linked to the subject-matter of the contract in question, such ascosts, other criteria:
Amendment 111 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point d a (new)
Article 76 – paragraph 2 – subparagraph 2 – point d a (new)
(da) the application of wage agreements and arbitration awards at national, local, sector and company level and of statutory provisions on health and safety and working conditions at national, European Union and international level.
Amendment 112 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point d b (new)
Article 76 – paragraph 2 – subparagraph 2 – point d b (new)
(db) If, in the event of a change of contractor, the new contractor takes over workers from the former contractor, the workers shall be covered by the relevant legal effects of Directive 2001/23/EC.
Amendment 113 #
Proposal for a directive
Article 76 – paragraph 3
Article 76 – paragraph 3
220. Member States may provide that the award of certain types of contracts shall be based on the mostan economically advantageous tender as referred to in point (a) of paragraph 1 and in paragraph 2.
Amendment 114 #
Proposal for a directive
Article 76 – paragraph 5 – subparagraph 4
Article 76 – paragraph 5 – subparagraph 4
The relative weighting or order of importance shall be specified, as appropriate, in the notice used as a means of calling for competition, in the invitation to confirm interest, in the invitation to tender or to negotiate, or in the specifications. Criterion (da) shall be mandatory.
Amendment 120 #
Proposal for a directive
Article 79 – paragraph 1 – introductory part
Article 79 – paragraph 1 – introductory part
226. The contracting entity shall request economic operators to explain the price or costs charged, where all of the following conditions are fulfilled:
Amendment 121 #
Proposal for a directive
Article 79 – paragraph 1 – point a
Article 79 – paragraph 1 – point a
(a) the price or cost charged is more than 530 % lower than the average price or costs of the remaining tenders;
Amendment 122 #
Proposal for a directive
Article 79 – paragraph 1 – point b
Article 79 – paragraph 1 – point b
(b) the price or cost charged is more than 20 % lower than the price or costs of the second lowest tender;
Amendment 123 #
Proposal for a directive
Article 79 – paragraph 1 – point c
Article 79 – paragraph 1 – point c
(c) at least fivthree tenders have been submitted.
Amendment 124 #
Proposal for a directive
Article 79 – paragraph 3 – point d
Article 79 – paragraph 3 – point d
(d) compliance, at least in an equivalent manner, with obligations established by Union legislation in the field ofnational, European Union and international social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XIV or, where not applicable, with other provisions ensuring an equivalent level of protection;
Amendment 126 #
Proposal for a directive
Article 79 – paragraph 4 – subparagraph 3
Article 79 – paragraph 4 – subparagraph 3
Contracting entities shall reject the tender, where they have established that the tender is abnormally low because it does not comply with obligations established by Union legislation in the field ofnational and European Union obligations established by social and labour law or environmental law or by the international social and environmental law provisions listed in Annex XIV.
Amendment 127 #
Proposal for a directive
Article 80 – paragraph 1
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, concernshall include compliance with obligations relating to social and environmploymental 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 contractditions, workplace health and safety, social security and working conditions, as set out in national, European Union and international legislation, arbitration awards and wage agreements. The principle of equal pay for equal work in a comparable job shall apply. These obligations shall also apply in cross- border situations, where workers from one Member State provide services in another Member State.
Amendment 128 #
Proposal for a directive
Article 81 – paragraph 1
Article 81 – paragraph 1
232. In the procurement documents, the contracting entity mayauthority shall ask, or mayshall be required by a Member State to ask, the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors and to give information on the subcontractors, including their names, contact details and legal representatives. Any change in the subcontracting chain and any new subcontractor shall be indicated without delay to the contracting authority, including the subcontractors’ names, contact details and legal representatives.
Amendment 129 #
Proposal for a directive
Article 81 – paragraph 2
Article 81 – paragraph 2
Amendment 130 #
Proposal for a directive
Article 81 – paragraph 3
Article 81 – paragraph 3
234. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability. The main contractor and any intermediate subcontractor can, in addition to or in place of a subcontractor, be directly held liable like a guarantor by employees and/or common funds or institutions of social partners for any liability which arises from the failure by a subcontractor to comply with provisions relating to social and employment conditions, such as workplace health and safety, social security and working conditions, as set out by EU and national laws, regulations or administrative provisions, arbitration awards, collective agreements and contracts and the international labour law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed; these obligations shall also apply in cross- border situations, where workers from one Member State provide services in another Member State. This shall apply without any further conditions, in particular without the employer being directly at fault.
Amendment 131 #
Proposal for a directive
Article 81 – paragraph 3 a (new)
Article 81 – paragraph 3 a (new)
3a. A maximum of three undertakings may be involved successively in the performance of a public contract as subcontractors.