Activities of Carl SCHLYTER related to 2011/0438(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on public procurement
Amendments (31)
Amendment 62 #
Proposal for a directive
Recital 1
Recital 1
(1) The award of public contracts by or on behalf of Member States authorities has to comply with the principles of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU), and in particular the free movement of goods, 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 and with the distribution of competencies as enshrined in Article 14 TFEU and in Protocol No 26 on services of general interest. The Directive on public procurement should respect the wide discretion of public authorities in carrying out their public service tasks. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that these principles are given practical effect and public procurement is opened up to competition.
Amendment 63 #
Proposal for a directive
Recital 2
Recital 2
(2) Public procurement plays a key role in the Europe 2020 strategy as one of the market-based instruments to be used to achieve a smart, sustainable and inclusive growth while ensuring the most efficient use of public funds. For that purpose, the current public procurement rules adopted pursuant to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts have to be revised and modernised in order to enable procurers to make better use of public procurement in support of sustainable development and other common societal goals, thereby increaseing the efficiency of public spending, ensuring best value for money, and facilitating in particular the participation of small and medium-sized enterprises in public procurement and toencouraging local procurement. as well as enableing procurers to make better use of public procurement in support of common societal goals. There is also a need to simplify the Directives and to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well-established case-law of the Court of Justice of the European Union. This Directive provides legislation on how to buy, what to buy is up to the contracting authorities. Contracting authorities are encouraged to set demands that are stricter or go further than current EU legislation in specific areas, in order to reach the common objectives.
Amendment 65 #
Proposal for a directive
Recital 3
Recital 3
(3) The increasingly diverse forms of public action have made it necessary to define more clearly the notion of procurement itself. The Union rules on public procurement are not intended to cover all forms of disbursement of public money, but only those aimed at the acquisition of works, supplies or services for consideration. The notion of acquisition should be understood broadly in the sense of obtaining the benefits of the works, supplies or services in question, not necessarily requiring a transfer of ownership to the contracting authorities. Furthermore, the mere financing of an activity, which is frequently linked to the obligation to reimburse the amounts received where they are not used for the purposes intended, does not usually fall under the public procurement rules. Contracts awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities are not subject of the public procurement rules if the conditions set out in this Directive are fulfilled.
Amendment 68 #
Proposal for a directive
Recital 5
Recital 5
(5) Under Articles 9, 10 and 11 of the Treaty on the Functioning of the European Union, environmental protection requirements and social considerations must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development. This Directive clarifies how the contracting authorities may contribute to the protection of the environment and the promotion of sustainable development, whilst ensuring that and how they can use their discretionary power to select technical specifications and award criteria with the aim of achieving sustainable public procurement, whilst ensuring the link to the subject matter of they contract and obtaining the best value for money for their contracts.
Amendment 70 #
Proposal for a directive
Recital 5 b (new)
Recital 5 b (new)
(5b) Contracting authorities have broad discretion to choose the technical specifications that define the supplies, services, or works they seek to procure. Further, they have broad discretion to use both technical specifications and award criteria to achieve a contracting authority's objectives, including specifications and criteria designed to achieve more sustainable public procurement. Technical specifications and award criteria, including those relating to sustainability objectives, must be linked to the subject matter of the procurement contract. Provided that the link to the subject matter rule is satisfied, this Directive is not intended to further constrain the types of concerns that a contracting authority can address through technical specifications or award criteria.
Amendment 71 #
Proposal for a directive
Recital 5 c (new)
Recital 5 c (new)
(5c) Technical specifications, award criteria, and conditions for contract performance are distinguished by the role they play in the procurement process, and not by the content of the specifications or criteria. Through technical specifications, the contracting authority defines absolute requirements for the procurement; ability to meet the technical specifications is a prerequisite for being considered a candidate for the contract and only products or services meeting the specifications can be considered. In contrast, award criteria enable the contracting authority to compare the relative advantages of different combinations of criteria. The award criteria are weighted and each tender is scored on the extent of its satisfaction of each criterion, but ability to satisfy all the award criteria is not a prerequisite. Finally, contract performance clauses may be included in the contract to indicate how the contract must be performed. A contracting authority has broad discretion to incorporate its sustainability objectives into any stage of the procurement process – through technical specifications, award criteria, and contract performance conditions.
Amendment 79 #
Proposal for a directive
Recital 37
Recital 37
(37) Contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discriminaTo ensure the efficient use of public funds and enable contracting authorities to obtain best value for money, the award procedure should result in the procurement of high-quality works, supplies and services that are optimally suited to contracting authorities' functional and equal treatment. These criteriasustainability objectives. The award procedure should also guarantee that tenders are assessed in conditions of effective competition, also where contracting authorities require high- quality works, supplies and services that are optimally suited to their needs, for instance where the chosen award criteria include factors linked to the production process. As a resultwith contracts awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non- discrimination and equal treatment. Accordingly, contracting authorities should be allowed to adopt as award criteria either ‘the most economically advantageous tender’ or ‘the lowest cost’, taking into account that in the latter case they are free to set adequateformulated to assess the contracting authority's sustainability concerns including, for example, factors linked to the production process and other life cycle characteristics. It should also be noted that contracting authorities are also free to set adequate sustainability and other quality standards by using technical specifications or contract performance conditions.
Amendment 82 #
Proposal for a directive
Recital 38
Recital 38
(38) Where cContracting authorities choose to award a contract to the most economically advantageous tender, they must determine the award criteria on the basis of which they will assess tenders in order to identify which one offers the best value for money. The determination of these criteria depends on the subject- matter of the contract since they must allow the level of performance offered by each tender to be assessed in the light ofo identify the tender representing best value, contracting authorities should use objective criteria that are linked to the subject- matter of the contract, as defined in the technical specifications, and the value for money of each tender to be measured. Furthermore, the chosen award criteria should not confer an unrestricted freedom of choice on the contracting authority and they should ensure the possibility of effective competition and be accompanied by requirements that allow. The chosen award criteria should not confer an unrestricted freedom of choice on the contracting authority, however. Rather, the award procedure should guarantee effective competition through strict compliance with the principles of transparency, non-discrimination and equal treatment. These principles require, among other things, that the information provided by the tenderers to be effectively and transparently verified.
Amendment 84 #
Proposal for a directive
Recital 39
Recital 39
(39) It is of utmost importance to fully exploit the potential of public procurement to achieve the objectives of the Europe 2020 Strategy for sustainable growth. In view of the important differences between individual sectors and markets, it would however not be appropriate to set general mandatory requirements for environmental, social and innovation procurement. The Union legislature has already set mandatory procurement requirements for obtaining specific goals in the sectors of road transport vehicles (Directive 2009/33/EC of the European Parliament and the Council of 23 April 2009 on the promotion of clean and energy-efficient road transport vehicles) and office equipment (Regulation (EC) No 106/2008 of the European Parliament and the Council of 15 January 2008 on a Community energy-efficiency labelling programme for office equipment). In addition, the definition of common methodologies for life cycle costing hascontinues to advance significantly, advancnd sector-specific applications of life-cycle costing continue to be developed, tested, and refined. It therefore appears appropriate to continue on that path, leaving it toto use sector- specific legislation to set mandatory objectives and targets in functionthe context of the particular policies and conditions prevailing in the relevant sector and to promote the development and use of European approaches toto further the use of public procurement in support of sustainable growth. These efforts should incorporate sector-appropriate applications of sound methodologies for life- cycle costing as a further underpinning for the use of public procurement in support of sustainable growth. . In accordance with other provisions of this Directive, mandatory procurement criteria adopted through sector-specific legislation may also include technical specifications and award criteria that incorporate sustainability considerations relating to generalised social and environmental benefits or harms, even where these have not been or cannot be monetised, provided that they are linked with the subject matter of the contract and strictly adhere to the principles of transparency, non- discrimination, and equal protection.
Amendment 86 #
Proposal for a directive
Recital 40
Recital 40
(40) These sector-specific measures must be complemented by an adaptation of the public procurement Directives empowering contracting authorities to pursue the objectives of the Europe 2020 Strategy in their purchasing strategies. It should hence be made clear that contracting authorities can determinshall seek to achieve the mobest economically advantageous tender and the lowesvalue for money when awarding public contracts. Consideration of what const using a life-cycle costing approach, provided that the methodology to be used is established in an objective and non- discriminatory manner and accessibleitutes 'best value for money' should include sustainability considerations, in accordance with Article 11 of the Treaty on the Functioning of the European Union, which calls for environmental protection requirements to allbe interesgrated parties. The notion of life-cycle costing includes all costs over the life cycle of 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; whenever such a methodology is developed its use should be made compulsoryinto the definition and implementation of Union policies and activities, in particular with a view to promoting sustainable development. When using life cycle costing approaches to determine best value for money, such methodologies must be applied in an objective and non- discriminatory manner and accessible to all interested parties, in accordance with the general principles of transparency, non- discrimination, and equal protection affirmed herein.
Amendment 88 #
Proposal for a directive
Recital 41
Recital 41
(41) Furthermore, in technical specifications and in award criteria, contracting authorities should be allowed to refer to a specific production process, a specific mode of provision 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 public contract. In order to better integrate social considerations in public procurement, procurers may also be allowed to include, in the award criterion of the most economically advantageous tender, characteristics related to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics may only concern among others 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 services 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. For service contracts and for contracts involving the design of works, contracting authorities should also be allowed to use as an award criterion the organisation, qualification and experience of the staff assigned to performing the contract in question, as this may affect the quality of contract performance and, as a result, the economic value of the tender. Contracting authorities may include social considerations (i.a. ILO core conventions) in the technical specifications when this is relevant and linked to the subject matter of the contract.
Amendment 100 #
Proposal for a directive
Article 4 – paragraph 1 – point d
Article 4 – paragraph 1 – point d
(d) EUR 51 000 000 for public contracts for social and other specific services listed in Annex XVI.
Amendment 103 #
Proposal for a directive
Article 10 – paragraph 1 – introductory part
Article 10 – paragraph 1 – introductory part
This Directive shall not apply to public service contracts awarded by a contracting authority to another contracting authority or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a published law, regulation or administrative provision which is compatible with the Treaty. This Directive shall also not apply to public service contracts for:
Amendment 106 #
Proposal for a directive
Article 11 – paragraph 5 a (new)
Article 11 – paragraph 5 a (new)
5 a. However transferring tasks between public sector organisations is a matter for the Member States' internal administrative organisation and is not subject to procurement rules.
Amendment 107 #
Proposal for a directive
Article 11 – paragraph 5 b (new)
Article 11 – paragraph 5 b (new)
5b. This directive shall further not apply to contracts for the supply of goods or the provision services which are subject by law to a fixed price and in relation to which a public procurement procedure ipso facto holds no value.
Amendment 111 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 5
Article 24 – paragraph 1 – subparagraph 5
Amendment 112 #
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 2
Article 27 – paragraph 1 – subparagraph 2
In the contract notice or in the invitation to confirm interest contracting authorities shall describe the procurement and the minimum requirements to be met and specify the award criteria so as to enable economic operators to identify the nature and scope of the procurement and decide whether to request to participate in the negotiations. In the technical specifications, contracting authorities shall specify which parts thereof define the minimum requirements.
Amendment 113 #
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 3
Article 27 – paragraph 1 – subparagraph 3
The minimum time limit for receipt of requests to participate shall be 30 dayssufficient from the date on which the contract notice or, where a prior information notice is used as a means of calling for competition, the invitation to confirm interest is sent; the minimum time limit for the receipt of tenders shall be 30 dayssufficient from the date on which the invitation is sent. Article 26 (3) to (6) shall apply.
Amendment 114 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 1
Article 27 – paragraph 3 – subparagraph 1
Contracting authorities shall negotiate with tenderers the tenders submitted by them to improve the content of the offers in order to better correspond to the award criteria and minimum requirements referred to in the second subparagraph of paragraph 1. The negotiation may focus on the legal, technical and financial components of the tender as well as on the variants and the correction of material errors.
Amendment 115 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 – point b
Article 27 – paragraph 3 – subparagraph 2 – point b
Amendment 116 #
Proposal for a directive
Article 27 – paragraph 3 – subparagraph 2 – point c
Article 27 – paragraph 3 – subparagraph 2 – point c
(c) the main award criteria.
Amendment 128 #
Proposal for a directive
Article 40 – paragraph 4
Article 40 – paragraph 4
4. UnlessWhen justified by the subject-matter of the contract, technical specifications shall notmay refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraph 3 is not possible. Such reference shall be accompanied by the words ‘"or equivalent’".
Amendment 155 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – introductory part
Article 66 – paragraph 1 – subparagraph 1 – introductory part
Without prejudice to national laws, regulations or administrative provisions concerning the remuneration of certain services, the criteria on which contracting authorities shall base the award of public contracts shall be one of the following: the most economically, socially and environmentally advantageous tender. Or. en (If adopted, sub-paragraphs a) and b) as well as paragraph 3 of the same article will consequently fall.)
Amendment 162 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point b
Article 66 – paragraph 1 – subparagraph 1 – point b
Amendment 166 #
Proposal for a directive
Article 66 – paragraph 2 – introductory part
Article 66 – paragraph 2 – introductory part
2. The most economically, socially and environmentally advantageous tender referred to in point (a) of paragraph 1 from the point of view of the contracting authorityaragraph 1 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 referred to in point (b) of paragraph 1, other criteria linked to the subject-matter of the public contract in question, such as:
Amendment 168 #
Proposal for a directive
Article 66 – paragraph 2 – point a
Article 66 – paragraph 2 – point a
(a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, environmental characteristics, social and innovative characteristics, as well as proximity where relevant;
Amendment 171 #
Proposal for a directive
Article 66 – paragraph 4
Article 66 – paragraph 4
4. Award criteria shall not confer an unrestricted freedom of choice on the contracting authority. They shall ensure the possibility of effective competition and shall be accompanied by requirements that allow the information provided by the tenderers to be effectively verified. Contracting authorities shall verify effectively, on the basis of the information and proof provided by the tenderers, whether the tenders meet the award criteriabe accompanied by requirements that allow the information provided by the tenderers to be effectively verified.
Amendment 174 #
Proposal for a directive
Article 67 – paragraph 2 – subparagraph 1 – point b
Article 67 – paragraph 2 – subparagraph 1 – point b
Amendment 177 #
Proposal for a directive
Article 67 – paragraph 3 – subparagraph 1
Article 67 – paragraph 3 – subparagraph 1
Amendment 183 #
Proposal for a directive
Article 74 – paragraph 1
Article 74 – paragraph 1
Contracts for social and other specific services listed in Annex XVI shall be awarded in accordance with this Chapter, where thewith a value of the contracts is equal to or greater than the threshold indicated in Article 4 (d) shall be awarded in accordance with this Chapter, and subject solely to Articles 40, 48 and 49.
Amendment 199 #
Proposal for a directive
Annex XVI – row 2 – column 2
Annex XVI – row 2 – column 2
Health and social services, including ambulance services