59 Amendments of Andreas SCHWAB related to 2011/0439(COD)

Proposal for a directive
Recital 17

(17) Other categories of services continue by their very nature to have a limited cross-border dimension, namely what are known as services to the person such as certain social, health and educational services. Those services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A specific regime should therefore be established for contracts for those services, with a higher threshold of EUR 1 000 000. In the particular context of procurement in those sectors, services to the person with values below this threshold will typically not be of interest to providers from other Member States unless there are concrete indications to the contrary, such as Union financing for transborder projects. Contracts for services to the person above this threshold should be subject to Union- wide transparency. Given the importance of the cultural context and the sensitivity of those services, Member States should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate. The rules of this directive take account of that imperative, imposing only observance of basic principles of transparency and equal treatment and making sure that contracting entities are able to apply specific quality criteria for the choice of service providers, such as the criteria set out in the voluntary European Quality Framework for Social Services of the European Union's Social Protection Committee26 . Member States and/or contracting entities remain free to provide those services themselves or to organise social services in a way that does not entail the conclusion of public contracts, for example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting entity, without any limits or quotas, provided such a system ensures sufficient advertising and complies with the principles of transparency and non- discrimination.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 44

(44) Where contracting entities ~~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 those 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 of 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 entity and they should ensure the possibility of effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified.

2012/09/03
Committee: IMCO

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

An entirety of works, supplies ~~and/~~or services which are uniform in character by their economic and technical functions, 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 12 – point c

~~(c) EUR 1 000 000 for contracts for social and other specific services listed in Annex XVII.~~deleted

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Article 14 a (new)

Article 14a Arrangements for public service contracts Contracts which have as their object services listed in Annex XVIIa, part A, shall be awarded in accordance with Articles 38 to 79. Contracts which have as their object services listed in Annex XVIIa, part B, shall be subject solely to Article 54 and Article 64(1). Contracts which have as their object services listed both in Annex XVIIa, part A, and in Annex XVIIa, part B, shall be awarded in accordance with Articles 38 to 79 where the value of the services listed in Annex XVIIa, part A, is greater than the value of the services listed in Annex XVIIa, part B. In other cases, contracts shall be awarded in accordance with Article 54 and Article 64(1).

2012/09/03
Committee: IMCO

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

(b) that le~~ast 90 % 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~~gal person acts essentially for the controlling contracting authority or for other legal persons controlled by that contracting authority. That legal person shall be presumed to be acting essentially for the controlling contracting authority or for other legal persons controlled by that contracting authority if it carries out at least 90 % of its activities which are covered by the contract on behalf of that contracting authority or those legal persons;

2012/09/03
Committee: IMCO

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

(c) unless the laws of the Member States concerned provide otherwise, there is no private participation in any of the contr~~olled legal person~~acting authorities involved.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2

A contracting authority shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of point (a) of the first subparagraph where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. The above conditions shall apply mutatis mutandis if a contracting authority awards a public contract to a legal person it controls jointly with other contracting authorities.

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Article 21 – paragraph 2

2. Paragraph 1 also applies where a controlled entity which is a contracting authority awards a contract to its controlling entity or entities, or to another legal person controlled by the same contracting authority, provided that there is no private participation in the legal person being awarded the public contract.

2012/09/03
Committee: IMCO

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

(b) that le~~ast 90 % of the activities of that legal person are carried out~~gal person acts essentially for the controlling contracting authority or for other legal persons controlled by that contracting authority. That legal person shall be presumed to be acting essentially for the controlling contracting authorit~~ies~~y or for other legal persons controlled by th~~e same contracting authoritie~~at contracting authority if it carries out at least 90 % of its activities which are covered by the contract on behalf of that contracting authority or those legal persons;

2012/09/03
Committee: IMCO

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

(c) unless the laws of the Member States concerned provide otherwise, there is no private participation in any of the contr~~olled legal person~~acting authorities involved.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 21 – paragraph 3 – subparagraph 2 – point a

(a) the decision-making bodies of the controlled legal person are composed of representatives of ~~all~~the participating contracting authorities;

2012/09/03
Committee: IMCO

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

(a) the agreement establishes a genuine co- operation between the participating contracting authorities aimed at carrying out jointly their public service tasks ~~and involving mutual rights and obligations of the parties~~;

2012/09/03
Committee: IMCO

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

(b) the agreement is governed only by ~~considerations relating to~~public interest considerations; this principle shall also apply to auxiliary services essential to the provision of services in the public interest;

2012/09/03
Committee: IMCO

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

(d) the agreement does not primarily involve financial transfers between the participating contracting authorities, other than those corresponding to the reimbursement of actual costs of the works, services or supplies;

2012/09/03
Committee: IMCO

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

(e) unless the laws of the Member States concerned provide otherwise, there is no private participation in any of the contracting authorities involved.

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Andreas SCHWAB, Jürgen CREUTZMANN

Proposal for a directive
Article 21 – paragraph 5 – subparagraph 2

TFollowing the entry into force of this Directive, the exclusions provided for in paragraphs 1 to 4 shall cease to apply from the moment any private participation takes place, with the effect that ongoing contracts need to be opened to competition through regular procurement procedures.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 34 – paragraph 1

Member States shall ensure that, atby the ~~latest 2 years after the date provided for in Article 101(1), all~~1st January 2017, at least 70% of procurement procedures under this Directive are performed using electronic means of communication, in particular e- submission, in accordance with the requirements of this Article. Member States shall ensure that, by the 1st January 2020, 100% of procurement procedures under this Directive are performed using electronic means of communication, in particular e-submission, in accordance with the requirements of this Article.

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN, Jürgen CREUTZMANN

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

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

2012/09/03
Committee: IMCO

Proposal for a directive
Article 47 – paragraph 1 – subparagraph 1

CWhere fully standardised supplies and services are involved, contracting entities may use electronic auctions in which new prices, revised downwards, and/or new values concerning certain elements of tenders are presented.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 52 – paragraph 3 – subparagraph 2

When determining the applicable national law in accordance with point (a), contracting entities mayust choose the national provisions of any Member State in which at least one of the participating entities is located.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 58 – paragraph 1 – subparagraph 1

~~Contracting entities may take account of variants which are submitted by a tenderer and meet the minimum requirements specified by the contracting entities~~Tenderers may submit variants along with a basic proposal.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 58 – paragraph 1 – subparagraph 2

Contracting entities shall indicate in the specifications ~~whether or not they authorise variants and, if so,~~ the minimum requirements to be met by the variants and any specific requirements for their presentation. ~~Where variants are authorised, t~~They shall also ensure that the chosen award criteria can be usefully applied to variants meeting those minimum requirements as well as to conforming tenders which are not variants.

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN

Proposal for a directive
Article 58 – paragraph 2

2. In procedures for awarding supply or service contracts, contracting entities ~~that have authorised variants~~ shall not reject a variant on the sole ground that it would, where successful, lead either to a service contract rather than a supply contract or to a supply contract rather than a service contract.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 59 – paragraph 2

2. Contracting entities may, even where the possibility to tender for all lots has been indicated, limit the number of lots that may be awarded to a tenderer provided that the maximum number is stated in the contract notice or in the invitation to confirm interest. Contracting entities shall determine and indicate in the procurement documents the objective and non-discriminatory criteria or rules for awarding the different lots where the application of the chosen award criteria would result in the award to one tenderer of more lots than the maximum number.deleted

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN

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

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN

Proposal for a directive
Article 59 – paragraph 4

4. Contracting entities may require that all contractors coordinate under the direction of the economic operator to which a lot involving the coordination of the entire project or its relevant parts has been awarded.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 64 – paragraph 1 – subparagraph 1

~~Within two months of~~Not later than 14 days after the award of a contract or the conclusion of a framework agreement, contracting entities shall send a contract award notice on the results of the procurement procedure.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 64 – paragraph 1 – subparagraph 1 a (new)

In the case of public contracts for services listed in Annex XVII B, the contracting authorities shall indicate in the notice whether they agree to its publication. For such services contracts the Commission shall draw up the rules for establishing statistical reports on the basis of such notices and for the publication of such reports in accordance with the procedure laid down in Article 100.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 64 – paragraph 1 – subparagraph 2 a (new)

In case of an incomplete or incoherent contract award notice, the Commission will contact the Contracting Authority with the aim to receive completion or clarification of the contract award notice.

2012/09/03
Committee: IMCO

Proposal for a directive
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 ~~ent~~authorities shall base the award of public contracts shall be ~~one of the following:~~the most economically advantageous tender.

2012/09/03
Committee: IMCO

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

Costs may be assessed, at the choice of the contracting entity, on the basis of the price only or using a cost-effectiveness approach, such as a life-cycle costing approach, under the conditions set out in Article 77.deleted

2012/09/03
Committee: IMCO

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

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

Andreas SCHWAB, Birgit COLLIN-LANGEN, Sabine VERHEYEN

Proposal for a directive
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 as:~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
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 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;deleted

2012/09/03
Committee: IMCO

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

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

2012/09/03
Committee: IMCO

Andreas SCHWAB, Birgit COLLIN-LANGEN, Sabine VERHEYEN

Proposal for a directive
Article 76 – paragraph 3

~~3. Member States may provide that the award of certain types of contracts shall be based on the most economically advantageous tender referred to in point (a) of paragraph 1 and in paragraph 2.~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 77 – paragraph 3

3. 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 in the award criteria referred to in Article 76 (1). 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.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 80

Article 80 Conditions for performance of contracts Contracting entities may lay down special conditions relating to the performance of a contract, provided that they are indicated in the call for competition or in the specifications. Those conditions may, in particular, concern social and environmental considerations. They may also include the requirement that economic operators foresee compensations for risks of price increases that are the result of price fluctuations (hedging) and that could substantially impact the performance of a contract.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 81 – paragraph 2

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

2012/09/03
Committee: IMCO

Proposal for a directive
Article 81 – paragraph 3

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

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Article 82 – paragraph 7 – point a

~~(a) where the modification would aim at remedying deficiencies in the performance of the contractor or the consequences, which can be remedied through the enforcement of contractual obligations;~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 83 – paragraph 1 – point c

(c) the Court of Justice of the European Union finds, in a procedure under Article 258 of the Treaty, that a Member State has failed to fulfil its obligations under the Treaties due to the fact that a contracting entity belonging to that Member State has awarded the contract in question without complying with its obligations under the Treaties and this Directive. A contractor who was unaware of the contracting authority’s breach of the law may claim compensation for the losses suffered as a result of the termination of the contract.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 84

Article 84 Award of contracts for social and other specific services Contracts for social and other specific services listed in Annex XVII shall be awarded in accordance with this Chapter where the value of the contracts is equal to or greater than the threshold indicated in Article 12(c).deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 85

Article 85 Publication of notices 1. Contracting entities intending to award a contract for the services referred to in Article 84 shall make known their intention by means of a contract notice. 2. Contracting entities that have awarded a contract for the services referred to in Article 84 shall make known the results by means of contract award notice. 3. The notices referred to in paragraphs 1 and 2 shall contain the information referred to in Annex XVIII in accordance with the standard model notices. The Commission shall establish the standard forms. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 100. 4. The notices referred to in paragraphs 1 and 2 shall be published in accordance with Article 65.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 86

Article 86 Principles of awarding contracts 1. Member States shall put in place appropriate procedures for the award of contracts subject to this Chapter, ensuring full compliance with the principles of transparency and equal treatment of economic operators and allowing contracting entities to take into account the specificities of the services in question. 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.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 1 – subparagraph 1

1. Member States shall ~~appoint a single independent body responsible for~~ensure the oversight and coordination of implementation activities ~~(hereinafter ‘the oversight body’). Member States shall inform the Commission of their designation~~.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 3 – subparagraph 1 – introductory part

3. The ~~oversight body~~competent authorities shall be responsible for the following tasks:

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 3 – subparagraph 3

~~Member States shall empower the oversight body to~~The competent authorities may 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 4 – subparagraph 1

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~~competent authorities 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 4 – subparagraph 2

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.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 4 – subparagraph 3

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.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 5

5. The investigation and enforcement activities carried out by the ~~oversight body~~competent authorities 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.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 6

6. Contracting authorities shall transmit to the national oversight body the full text of all concluded contracts with a a value equal to or greater than (h) 1 000 000 EUR in the case of supply contracts or service contracts; (i) 10 000 000 EUR in the case of works contracts.deleted

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN, Jürgen CREUTZMANN

Proposal for a directive
Article 93 – paragraph 7

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.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 95

Article 95deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Annex 17

Annex ~~XVII~~deleted.

2012/09/03
Committee: IMCO