Activities of Sergio Gaetano COFFERATI related to 2011/0439(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors
Amendments (94)
Amendment 16 #
Proposal for a directive
Recital 5
Recital 5
Amendment 17 #
Proposal for a directive
Recital 13
Recital 13
(13) Illicit conduct by participants in a procurement procedure, such as attempts to unduly influence the decision-making process or to enter into agreements with other candidates to manipulate the outcome of the said procedure, as well as failure to respect measures in the field of environmental protection and health, working conditions and social protection, as defined in the international legislation referred to in Annex XIV of this European and national directive and/or in collective agreements applicable in the place where the service, work or supply is undertaken, can result in violations of the basic principles of Union law and in serious distortions of competition. Economic operators should therefore be required to submit a declaration on honour that they do not engage in such illicit activities and be excluded if this declaration proves to be false.
Amendment 18 #
Proposal for a directive
Recital 26
Recital 26
(26) In view of the detrimental effects on competition, negotiated procedures without a call for competition should only be used in very exceptional circumstances. This exception should be limited to cases where publication is either not possible, for reasons of force majeure in line with the standing case-law of the Court of Justice of the European Union, or where it is clear from the outset that publication would not trigger more competition, not least because there is objectively only one economic operator that can perform the contract. Only situations of objective exclusivity can justify the use of the negotiated procedure without a call for competition, where the situation of exclusivity has not been created by the contracting entity itself with a view to the future procurement procedure, and where there are no adequate substitutes, the availability of which should be assessed thoroughly. It is appropriate for contracting authorities that resort to a negotiated procedure without prior publication, in the cases defined in this directive, to send the supervisory body a report justifying the reason for this decision. The supervisory body’s tasks should include that of analysing and evaluating such reports.
Amendment 20 #
Proposal for a directive
Recital 38 bis (new)
Recital 38 bis (new)
(38a) In order to facilitate access by SMEs to the public procurement market, groups of economic operators, which could take the form of business consortiums, should also be allowed to submit a bid for a contract jointly. In this event, the contracting authorities should allow the group of economic operators to combine the individual characteristics of the group members in order to satisfy the stated financial, technical and legal requirements as a single entity.
Amendment 21 #
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, to elements of the life cycle or socially sustainable production process, to 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 question. 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 social characteristics connected with the purpose of the tender in the conditions of implementation and in the award criteria. Social characteristics may refer, for example, 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, includingthe 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, gender equality, access to professional training in the workplace and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services1 aninvolvement of users. Any award criteria should be applied 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. For service contracts and contracts involving the planning of works, the contracting entities should use the organisation, qualification and experience of the staff engaged to undertake the contract in question as the awarding criteria, as these will affect the quality of the execution of the contract and, consequently, the economic value of the tender.
Amendment 22 #
Proposal for a directive
Recital 49
Recital 49
(49) Tenders that appear abnormally low in relation to the works, supplies or services might be based on technically, economically or legally unsound assumptions or practices or illegal practices and a failure to uphold work requirements or measures for environmental protection. In order to prevent possible disadvantages during contract performance, contracting entities should be obliged to ask for an explanation of the price charged where a tender significantly undercuts the prices demanded by other tenderers or in cases in which, for other reasons, a tender appears abnormally low. Where the tenderer cannot provide a sufficient explanation, the contracting entity should be entitled to reject the tender. Rejection should be also mandatory in cases where the contracting entity has established that the abnormally low price results from non- compliance with mandatory Union legislation in the fields of social, labour or environmental law or international labour law provisionsrequirements set out in international law, in Union or national legislation and/or in collective agreements that apply where the work, service or provision is undertaken, in the fields of social security, labour conditions or environmental protection.
Amendment 23 #
Proposal for a directive
Recital 50 bis (new)
Recital 50 bis (new)
(50a) In order to ensure the correct functioning of public procurement, subcontracting must be appropriately regulated. The contracting entity must be informed, in the tender document, of the parts of a contract that the tenderer intends to subcontract, as well as of the proposed subcontractors. Any change in the subcontracting chain that may occur during performance of the contract should ensure that the contract is undertaken to the same standard as defined in the submitted tender and should be agreed by the contracting entity. Where allowed by the nature of the contract, the contracting entity should pay the subcontractors directly. Finally, a system of ‘joint and several liability’ should be established in the subcontracting chain and the chain should be limited to a maximum of three consecutive vertical subcontracts.
Amendment 24 #
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 thand collective agreas 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 services1 lays down the minimum conditions that must be observed by the host country in respect of such posted workers. Where national law contains provisions to this effect, nements that apply to the place where the works, services or supplies are undertaken shall apply during the performance of a contract. 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 25 #
Proposal for a directive
Recital 56 a (new)
Recital 56 a (new)
(56 a) Contracting entities should respect the delay of payment as established in Directive 2011/7/EU.
Amendment 26 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
Amendment 27 #
Proposal for a directive
Article 2 – paragraph 1 – point 22 a (new)
Article 2 – paragraph 1 – point 22 a (new)
(22 a) 'Life cycle characteristics' means elements relating to any part of the life cycle of a product or works or the provision of a service, as defined in point 22 of this Article. Life cycle characteristics can be invisible characteristics that are embedded in a product as a result of choises made in the production or other non-use phases of the life cycle of the product, even if such characteristics are not apparent in the physical characteristics or functional qualities of the resulting product or service;
Amendment 28 #
Proposal for a directive
Article 2 – paragraph 1 – point 22 b (new)
Article 2 – paragraph 1 – point 22 b (new)
(22b) ‘Socially sustainable production process’ means a production process in which the provision of works, services and supplies conforms with health and safety regulations, social security and employment law, notably with regard to the principle of equal treatment in the workplace. The principle of equal treatment in the workplace refers to compliance with relevant work and employment conditions, including provisions on health and safety, social security and employment law as defined by the international laws listed in Annex XIV, in Union law and in Member State law as well as in collective agreements, which apply to the place where the works, services and supplies are undertaken;
Amendment 29 #
Proposal for a directive
Article 29 – paragraph 2 a (new)
Article 29 – paragraph 2 a (new)
Contracting entities shall aim for "best value" in procurement policy. This is achieved through the awarding of the public contract to the most economically advantageous tender.
Amendment 30 #
Proposal for a directive
Article 29 – paragraph 2 b (new)
Article 29 – paragraph 2 b (new)
Economic operators shall comply with obligations relating to social and employment protection and the working conditions which apply in the place where the work, service or supply is to be performed as set out by Union and national legislation and/or collective agreements or international labour law provisions listed in Annex XI.
Amendment 31 #
Proposal for a directive
Article 29 – paragraph 2 c (new)
Article 29 – paragraph 2 c (new)
The details of procurement contracts shall be made public.
Amendment 32 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1
Article 30 – paragraph 2 – subparagraph 1
Groups of economic operators may submit tenders or put themselves forward as candidates. Groups of economic operators, notably small and medium-sized enterprises (SMEs) may take the form of a consortium of enterprises. Contracting entities shall not establish specific conditions for participation of such groups in procurement procedures which are not imposed on individual candidates. In order to submit a tender or a request to participate, those groups shall not be required by the contracting entities to assume a specific legal form.
Amendment 33 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 a (new)
Article 30 – paragraph 2 – subparagraph 1 a (new)
Contracting entities shall give the possibility to a group of economic operators to fulfil all technical, legal and financial requirements as a single entity, summing up the individual characteristics of the components of the group.
Amendment 34 #
Proposal for a directive
Article 32 – paragraph 2 a (new)
Article 32 – paragraph 2 a (new)
2 a. Article 32 (1) and (2) shall not prevent the public disclosure of contracts once concluded including any subsequent changes.
Amendment 35 #
Proposal for a directive
Article 36 – paragraph 1 – subparagraph 3
Article 36 – paragraph 1 – subparagraph 3
For the purposes of this Article, ‘'private interests’' means any family, emotional life, economic, politicalconomic or other shared interests with the candidates or the tenderers or any subcontractor proposed in the tender in accordance with the provisions of Article 81, including conflicting professional interests.
Amendment 36 #
Proposal for a directive
Article 44 – paragraph 1 – point a
Article 44 – paragraph 1 – point a
where no tenders or no suitable tenders or no requests to participate have been submitted in response to a procedure with a prior call for competition, provided that the initial conditions of the contract are not substantially altered;
Amendment 37 #
Proposal for a directive
Recital 56 a (new)
Recital 56 a (new)
(56a) Contracting entities should respect the delay of payment as established in Directive 2011/7/EU.
Amendment 37 #
Proposal for a directive
Article 44 – paragraph 1 – point d – point i
Article 44 – paragraph 1 – point d – point i
Amendment 38 #
Proposal for a directive
Article 44 – paragraph 5 bis (new)
Article 44 – paragraph 5 bis (new)
If a contracting body decides, under the provisions of this Article, to make use of the negotiated procedure without prior publication, it must provide the supervisory body in Article 93 with a detailed report justifying this choice and containing the tender documents and related information, and, if it should choose to resort to a negotiated procedure without prior publication based on point (a), the tender documents from the previous call to tender.
Amendment 39 #
Proposal for a directive
Article 54 – paragraph 1 – subparagraph 2
Article 54 – paragraph 1 – subparagraph 2
These characteristics may also refer to the specific process of production or provision of the requested works, supplies or services or of any other stage of its life cycle and socially sustainable production process as referred to in points (22), (22a) and (22b) of Article 2.
Amendment 40 #
Proposal for a directive
Article 54 – paragraph 1 – subparagraph 5 a (new)
Article 54 – paragraph 1 – subparagraph 5 a (new)
Technical specifications may also include, as appropriate, requirements relating to: (a) performance, including levels of environmental and climate performance and performance in terms of socially sustainable production process; (b) life cycle characteristics; (c) socially sustainable production process; (d) the organisation, qualification and experience of the staff assigned to performing the contract in question; (e) safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions; (f) rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting entity is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve; (g) social characteristics, including social inclusion, gender balance, access to on- site vocational training.
Amendment 41 #
Proposal for a directive
Article 54 – paragraph 3 – point a
Article 54 – paragraph 3 – point a
(a) in terms of performance or functional requirements, including social and environmental characteristics, provided that the parameters are sufficiently precise to allow tenderers to determine the subject- matter of the contract and to allow contracting entities to award the contract. In accordance with paragraph 1, technical specifications may be formulated in terms of performance or functional requirements relating to life cycle or socially sustainable production process characteristics of the requested works, supplies or services, and not only to the performance or functional requirements of the works, supplies, or services in use;
Amendment 43 #
Proposal for a directive
Article 70 – paragraph 1 – point b
Article 70 – paragraph 1 – point b
(b) they shall select tenderers and candidates in accordance with the objective rules and criteria laid down pursuant to Articles 72, 74 and 7481;
Amendment 44 #
Proposal for a directive
Article 70 – paragraph 5
Article 70 – paragraph 5
5. Contracting entities may decideshall not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply, at least in an equivalent manner, with obligations established by Union legislation in the field of social and labour law or environmental law with obligations in the field of social and employment protection, working conditions and environmental legislation , as set out by Union and national legislation and/or collective agreements that apply in the place where the work, service or supply is to be performed or ofby the international social and environmental law provisions listed in Annex XIV.
Amendment 45 #
Proposal for a directive
Article 70 – paragraph 5 a (new)
Article 70 – paragraph 5 a (new)
5 a. Where such laws do not apply, not compliance of the tender with other laws which ensure an equivalent level of protection and apply in the place where the work, service or supply is to be performed shall also provide a basis for exclusion.
Amendment 46 #
Proposal for a directive
Article 70 – paragraph 7
Article 70 – paragraph 7
7. The Commission shall be empowered to adopcomplement delegated acts in accordance with Article 98 to amend the list in Annex XIV, where necessary due to the conclusion of new international agreements or modification of existing international agreements.
Amendment 48 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 1
Article 74 – paragraph 1 – subparagraph 1
The objective rules and criteria for the exclusion and selection of economic operators requesting qualification in a qualification system and the objective rules and criteria for the exclusion and selection of candidates and tenderers in open, restricted or negotiated procedures or in innovation partnerships mayshall include the exclusion grounds listed in Article 55 of Directive 2004/18[.../.../EU][on public procurement] on the terms and conditions set out therein.
Amendment 49 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 2
Article 74 – paragraph 1 – subparagraph 2
Amendment 50 #
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 criteriaon on which contracting entities shall base the award of contracts shall be one of the following:the most economically advantageous tender.
Amendment 51 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point a
Article 76 – paragraph 1 – subparagraph 1 – point a
Amendment 52 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point b
Article 76 – paragraph 1 – subparagraph 1 – point b
Amendment 53 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 2
Article 76 – paragraph 1 – subparagraph 2
Amendment 54 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point - a a (new)
Article 76 – paragraph 2 – subparagraph 2 – point - a a (new)
(- aa) decent working conditions, health and safety at the workplace and respect for the right to collective bargaining; (this amendment should be inserted before point (a) of this paragraph)
Amendment 55 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 1
Article 76 – paragraph 2 – subparagraph 1
Amendment 56 #
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) ofontracting entity shall identify the most economically advantageous tender in accordance with paragraph 1, otherbased on criteria linked to the subject-matter of the contract in question, such as. In addition to price and costs, evaluated with a cost- effectiveness approach only, including the determination of life cycle costs according to the conditions set out in Article 77, such criteria shall include:
Amendment 57 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point a a (new)
Article 76 – paragraph 2 – subparagraph 2 – point a a (new)
(a a) life cycle process and life cycle characteristics;
Amendment 58 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point a bis (new)
Article 76 – paragraph 2 – subparagraph 2 – point a bis (new)
(aa) the socially sustainable production process;
Amendment 59 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point b
Article 76 – paragraph 2 – subparagraph 2 – point b
(b) for service contracts and contracts involving the design of works, the organisation, qualification and experience of the staff assigned to performing the contract in question may bare 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;
Amendment 60 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point d bis (new)
Article 76 – paragraph 2 – subparagraph 2 – point d bis (new)
(da) social criteria such as, for example, decent working conditions, health and safety, respect for collective bargaining, gender equality, social inclusion, including work opportunities for disabled, disadvantaged or vulnerable workers, access to professional training in the workplace, consultation with and participation of users, economic accessibility, human rights and ethical trade;
Amendment 61 #
Proposal for a directive
Article 76 – paragraph 3
Article 76 – paragraph 3
Amendment 62 #
Proposal for a directive
Article 76 – paragraph 4
Article 76 – paragraph 4
4. Award criteria shall not confer an unrestricted freedom of choice on the contracting entity. They shall ensure the possibility ofensure effective competition and shall be accompanied by requirements which allow the information provided by the tenderers to be effectively verified. Contracting entities shall verify effectively, on the basis of the information and proof provided by the tenderers, whether the tenders meet the award criteria.
Amendment 63 #
Proposal for a directive
Article 76 – paragraph 5 – subparagraph 1
Article 76 – paragraph 5 – subparagraph 1
Amendment 64 #
Proposal for a directive
Article 76 – paragraph 5 – subparagraph 2
Article 76 – paragraph 5 – subparagraph 2
Amendment 65 #
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 appropriately, 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.
Amendment 66 #
Proposal for a directive
Article 77 – paragraph 3 – subparagraph 1
Article 77 – paragraph 3 – subparagraph 1
Whenever a common methodology for the calculation of life-cycle costs is adopted as part of a legislative act of the Union, including by delegated acts pursuant to sector specific legislation, it shall be applied where life-cycle costing is included inin accordance with the award criteria referred to in Article 76 (1).
Amendment 67 #
Proposal for a directive
Article 79 – paragraph 1 – introductory part
Article 79 – paragraph 1 – introductory part
1. The contracting entity shall request economic operators to explain the price or costs charged, where all of the following conditions are fulfilled:the price or the cost charged is more than 25 % less than the average price or average costs charged in the other tender documents.
Amendment 68 #
Proposal for a directive
Article 79 – paragraph 1 – point a
Article 79 – paragraph 1 – point a
Amendment 69 #
Proposal for a directive
Article 79 – paragraph 1 – point b
Article 79 – paragraph 1 – point b
Amendment 70 #
Proposal for a directive
Article 79 – paragraph 1 – point c
Article 79 – paragraph 1 – point c
Amendment 72 #
Proposal for a directive
Article 79 – paragraph 2
Article 79 – paragraph 2
2. Where tenders appear to be abnormally low for other reasons, contracting entities maywill also request such explanations.
Amendment 73 #
Proposal for a directive
Article 79 – paragraph 3 – introductory part
Article 79 – paragraph 3 – introductory part
3. The explanations referred to in paragraphs 1 and 2 mayrelate in particular relate to:
Amendment 74 #
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 of 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 75 #
Proposal for a directive
Article 79 a (new)
Article 79 a (new)
Amendment 76 #
Proposal for a directive
Article 81 – paragraph 1
Article 81 – paragraph 1
1. In the procurement documents, the contracting entity may ask, or may 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. shall 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, providing information regarding the subcontractor including names, contact details and legal representatives. Any changes in the subcontracting chain shall be proposed by the economic operator and agreed by the contracting entity. In the case the proposed change regards also the involvement of a new subcontractor, the main contractor shall indicate its name, contact details and legal representatives Any operators in the subcontracting chain shall ensure the respect of the provisions of this Directive and of the conditions established in the procurement documents and shall guarantee a performance of the duties connected to the contract equivalent to the one defined in the tender.
Amendment 77 #
Proposal for a directive
Article 81 – paragraph 1 a (new)
Article 81 – paragraph 1 a (new)
1 a. Member States shall limit the possibility for a tenderer to subcontract when executing a public contract to a maximum of three or less successive subcontractors. The contracting entities may establish further limitations to the use of subcontracting, with regard to the number of subcontractors or of successive subcontractors or to the possibility of changes in the subcontracting chain, or may establish that no parts of the contracts shall be subcontracted to third parties.
Amendment 79 #
Proposal for a directive
Article 81 – paragraph 2 a (new)
Article 81 – paragraph 2 a (new)
2 a. The reasons for the use of subcontractors shall be set out in the procurement documents, strictly motivated by technical considerations and not circumvent relevant legislation and obligations which apply where the provision of works, services and supplies takes place;
Amendment 80 #
Proposal for a directive
Article 81 – paragraph 3
Article 81 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability. main contractor's and subcontractors' liability. Member states shall provide for a system of joint and several liability down the sub- contracting chain. The principal economic operator and any subcontractor involved in doing work on a public contract shall be jointly and severally liable for any liability which arises from the failure by a subcontractor to comply with provisions relating to fundamental rights, health and safety requirements, social rules and standards, employment and working conditions, health and safety at workplace and social security, as set out by EU and national laws, regulations or administrative provisions, collective agreement and contracts, and international labour law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed. Member States may provide for more stringent liability rules under national law.
Amendment 81 #
Proposal for a directive
Article 81 – paragraph 3 a (new)
Article 81 – paragraph 3 a (new)
3 a. The main contractor and any intermediate subcontractor in their contracts with their subcontractors, shall stipulate that in the event that they have reason to believe that their immediate subcontractor is violating the rules referred to in Paragraph 3, the immediate subcontractor shall take immediate action to remedy the situation, and that, failing this, the contract concerned shall be terminated.
Amendment 82 #
Proposal for a directive
Article 86 – paragraph 2
Article 86 – paragraph 2
2. Member States shall ensure that contracting entities may take into account the need to ensure quality, continuity, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of users, the involvement and empowerment of users and innovation. Member States may also provide that the choice of the service provider shall not be made solely on the basis of the price for the provision of the service, as well as consumer protection and social inclusion.
Amendment 83 #
Proposal for a directive
Article 86 – paragraph 2 bis (new)
Article 86 – paragraph 2 bis (new)
2a. The general principles in Article 70, the reasons for exclusion in Article 74 and the subcontracting rules in Article 81 also apply for contracts defined in Article 84.
Amendment 85 #
Proposal for a directive
Article 93 – paragraph 3 – subparagraph 1 – point d
Article 93 – paragraph 3 – subparagraph 1 – point d
(d) establishing and applying comprehensive, actionable ‘'red flag’' indicator and monitoring systems to prevent, detect and adequately report instances of procurement fraud, corruption, conflict of interest and other serious irregularities as well as specific breaches of provisions contained in Articles 70, 74 and 81;
Amendment 86 #
Proposal for a directive
Article 93 – paragraph 3 – subparagraph 1 – point f bis (new)
Article 93 – paragraph 3 – subparagraph 1 – point f bis (new)
(fa) examining the reports issued by the contracting entities that intend to resort to a negotiated procedure without publication;
Amendment 87 #
Proposal for a directive
Article 93 – paragraph 3 – subparagraph 3
Article 93 – paragraph 3 – subparagraph 3
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 or during examination of the reports provided by the contracting entities, in accordance with Article 44.
Amendment 88 #
Proposal for a directive
Article 96 – paragraph 1
Article 96 – paragraph 1
1. Member States shall make available technical support structures in order to provide legal and economic advice, guidance and assistance to contracting entities in preparing and carrying out procurement procedures. Member States shall also ensure that each contracting entity can obtain competent assistance and advice on individual questions, in partcular in relation to provisions contained in Articles 70, 74 and 81.
Amendment 89 #
Proposal for a directive
Article 96 – paragraph 3 – subparagraph 2
Article 96 – paragraph 3 – subparagraph 2
Amendment 90 #
Proposal for a directive
Annex 14 – point 1 a (new)
Annex 14 – point 1 a (new)
- Convention 94 on Labour Clauses in Public Contracts;
Amendment 174 #
Proposal for a directive
Recital 26
Recital 26
(26) In view of the detrimental effects on competition, negotiated procedures without a call for competition should only be used in very exceptional circumstances. This exception should be limited to cases where publication is either not possible, for reasons of force majeure in line with the standing case-law of the Court of Justice of the European Union, or where it is clear from the outset that publication would not trigger more competition, not least because there is objectively only one economic operator that can perform the contract. Only situations of objective exclusivity can justify the use of the negotiated procedure without a call for competition, where the situation of exclusivity has not been created by the contracting entity itself with a view to the future procurement procedure, and where there are no adequate substitutes, the availability of which should be assessed thoroughly. It is appropriate that whenever contracting entities use, in the cases specified in this Directive, the negotiated procedure without publication, they send a report justifying their choice to the oversight body, whose tasks should include that of examining and assessing those reports.
Amendment 214 #
Proposal for a directive
Recital 50 a (new)
Recital 50 a (new)
Amendment 216 #
Proposal for a directive
Recital 56 a (new)
Recital 56 a (new)
(56a) Contracting entities should respect the delay of payment as established in Directive 2011/7/EU.
Amendment 448 #
Proposal for a directive
Article 29 – paragraph 2 a (new)
Article 29 – paragraph 2 a (new)
Contracting entities shall aim for "best value" in procurement policy. This is achieved through the awarding of the public contract to the most economically advantageous tender.
Amendment 449 #
Proposal for a directive
Article 29 – paragraph 2 b (new)
Article 29 – paragraph 2 b (new)
The details of procurement contracts shall be made public.
Amendment 450 #
Proposal for a directive
Article 29 – paragraph 2 c (new)
Article 29 – paragraph 2 c (new)
Economic operators shall comply with obligations relating to social and employment protection and the working conditions which apply in the place where the work, service or supply is to be performed as set out by Union and national legislation and/or collective agreements or international labour law provisions listed in Annex XIV.
Amendment 459 #
Proposal for a directive
Article 32 – paragraph 2 a (new)
Article 32 – paragraph 2 a (new)
2a. Article 32 (1) and (2) shall not prevent the public disclosure of contracts once concluded including any subsequent changes.
Amendment 515 #
Proposal for a directive
Article 44 – paragraph 1 – point a
Article 44 – paragraph 1 – point a
(a) where no tenders or no suitable tenders or no requests to participate have been submitted in response to a procedure with a prior call for competition, provided that the initial conditions of the contract are not substantially altered;
Amendment 517 #
Proposal for a directive
Article 44 – paragraph 1 – point d – point i
Article 44 – paragraph 1 – point d – point i
Amendment 532 #
Proposal for a directive
Article 44 – paragraph 5 a (new)
Article 44 – paragraph 5 a (new)
If a contracting body decides, under the provisions of this Article, to make use of the negotiated procedure without prior publication, it must provide the supervisory body in Article 93 with a detailed report justifying this choice and containing the tender documents and related information, and, if it should choose to resort to a negotiated procedure without prior publication based on point (a) of paragraph 1, the tender documents from the previous call to tender.
Amendment 692 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 1
Article 74 – paragraph 1 – subparagraph 1
The objective rules and criteria for the exclusion and selection of economic operators requesting qualification in a qualification system and the objective rules and criteria for the exclusion and selection of candidates and tenderers in open, restricted or negotiated procedures or in innovation partnerships mayshall include the exclusion grounds listed in Article 55 of Directive 2004/18[.../.../EU][replacing Directive 2004/18/EC on public procurement] on the terms and conditions set out therein.
Amendment 693 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 2
Article 74 – paragraph 1 – subparagraph 2
Amendment 732 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point a a (new)
Article 76 – paragraph 2 – subparagraph 2 – point a a (new)
Amendment 743 #
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) social criteria such as gender balance, social inclusion, including employment opportunities for disabled, disadvantaged or vulnerable workers, access to vocational training in the workplace, consultation and participation of users, economic accessibility;
Amendment 810 #
Proposal for a directive
Article 79 a (new)
Article 79 a (new)
Amendment 825 #
Proposal for a directive
Article 81 – paragraph 1
Article 81 – paragraph 1
1. In the procurement documents, the contracting entity may ask, or may 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. shall 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, providing information regarding the subcontractor including names, contact details and legal representatives. Any changes in the subcontracting chain shall be proposed by the economic operator and agreed by the contracting entity. In the case the proposed change regards also the involvement of a new subcontractor, the main contractor shall indicate its name, contact details and legal representatives Any operators in the subcontracting chain shall ensure the respect of the provisions of this Directive and of the conditions established in the procurement documents and shall guarantee a performance of the duties connected to the contract equivalent to the one defined in the tender.
Amendment 828 #
Proposal for a directive
Article 81 – paragraph 1 a (new)
Article 81 – paragraph 1 a (new)
1a. Member States shall limit the possibility for a tenderer to subcontract when executing a public contract to a maximum of three or less successive subcontractors. The contracting entities may establish further limitations to the use of subcontracting, with regard to the number of subcontractors or of successive subcontractors or to the possibility of changes in the subcontracting chain, or may establish that no parts of the contracts shall be subcontracted to third parties.
Amendment 830 #
Proposal for a directive
Article 81 – paragraph 1 b (new)
Article 81 – paragraph 1 b (new)
1b. The reasons for the use of subcontractors shall be set out in the procurement documents, strictly motivated by technical considerations and not circumvent relevant legislation and obligations which apply where the provision of works, services and supplies takes place;
Amendment 845 #
Proposal for a directive
Article 81 – paragraph 3
Article 81 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liabilitymain contractor's and subcontractors' liability. Member States shall provide for a system of joint and several liability down the sub- contracting chain. The principal economic operator and any subcontractor involved in doing work on a public contract shall be jointly and severally liable for any liability which arises from the failure by a subcontractor to comply with provisions relating to fundamental rights, health and safety requirements, social rules and standards, employment and working conditions, health and safety at workplace and social security, as set out by EU and national laws, regulations or administrative provisions, collective agreement and contracts, and international labour law provisions listed in Annex XIV, that apply in the place where the work, service or supply is performed. Member States may provide for more stringent liability rules under national law.
Amendment 892 #
Proposal for a directive
Article 83 a (new)
Article 83 a (new)
Article 83a Monitoring of contract performance and register of non-compliance 1. Contracting entities may monitor the performance of the contractor awarded the contract and, at appropriate stages during the contract term, carry out an assessment of performance using a method that is based on objective and measurable criteria and applied in a systematic, consistent and transparent way. Any performance assessment shall be communicated to the contractor in question, which shall be given the opportunity to object to the findings within a reasonable timeframe and to obtain judicial protection. 2. Where an assessment is carried out in accordance with paragraph 1 and an economic operator or a subcontractor appointed for that contract by the economic operator has been found to have shown significant or persistent deficiencies in the performance of any substantive requirement under the contract and the economic operator has not objected to the findings or the economic operator's objections have not been validated through seeking judicial protection, the contracting entity shall communicate the fact and the necessary detail of the such an assessment to the supervisory and administrative authorities as referred to in Articles 93 and 97. 3. In that case the economic operator shall be inscribed in an official register of non-compliance, managed by the supervisory and administrative authorities as referred to in Articles 93 and 97. 4. Member States shall ensure that contracting entities can easily consult the official registers of non-compliance and obtain information and assistance with regard to the application of this Article through the assistance provided by supervisory and administrative authorities as mentioned in Articles 93, 96 and 97.
Amendment 939 #
Proposal for a directive
Article 93 – paragraph 3 – subparagraph 1 – point f a (new)
Article 93 – paragraph 3 – subparagraph 1 – point f a (new)
(fa) examining the reports sent to them by the contracting entities that intend to resort to a negotiated procedure without publication;
Amendment 940 #
Proposal for a directive
Article 93 – paragraph 3 – subparagraph 1 – point g a (new)
Article 93 – paragraph 3 – subparagraph 1 – point g a (new)
(ga) management of the official register of non-compliance as laid down in Article 83a.
Amendment 941 #
Proposal for a directive
Article 93 – paragraph 3 – subparagraph 3
Article 93 – paragraph 3 – subparagraph 3
Amendment 974 #
Proposal for a directive
Article 97 – paragraph 1
Article 97 – paragraph 1
1. Member States shall provide mutual assistance to each other, and shall put in place measures for effective cooperation with one another, in order to ensure exchange of information on issues referred to in Articles 56, 75, 79 and 7983a. They shall ensure the confidentiality of the information which they exchange.