80 Amendments of Anja WEISGERBER related to 2011/0438(COD)
Amendment 81 #
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-discrimination and equal treatment. These criteria should 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 result, contracting authorities should be allowed to adopt as award criteria either ‘the most economically advantageous tender’ or ‘the lowest cost’, taking into acchoose ‘the most economically advantageous tender’. In duly substantiated exceptional cases, in particular involving highly standardised products, count that in the latter caseracting authorities should be able to apply the lowest price or the lowest cost as the sole criterion, taking into account that they are free to set adequate quality standards by using technical specifications or contract performance conditions.
Amendment 109 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 4 – introductory part
Article 24 – paragraph 1 – subparagraph 4 – introductory part
Amendment 110 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 5
Article 24 – paragraph 1 – subparagraph 5
Amendment 156 #
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:to the economically most advantageous tender.
Amendment 157 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point a
Article 66 – paragraph 1 – subparagraph 1 – point a
Amendment 160 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point b
Article 66 – paragraph 1 – subparagraph 1 – point b
Amendment 165 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 2
Article 66 – paragraph 1 – subparagraph 2
Amendment 167 #
Proposal for a directive
Article 66 – paragraph 2 – introductory part
Article 66 – paragraph 2 – introductory part
2. The most economically advantageous tender referred to in point (a) of paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject- matter of the public contract in question. Those criteria shall include, in addition to the price or costs referred to in point (b) of paragraph 1, other price or costs and other qualitative, environmental and social criteria linked to the subject-matter of the public contract in question, such as:
Amendment 205 #
Proposal for a directive
Recital 11
Recital 11
(11) 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. These 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 public contracts for these services, with a higher threshold of EUR 51 000 000. 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 these services, Member States should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate. In particular, such procedures should be recognised as an alternative to public procurement law which complies with primary law where they are based on the principle that all service providers able to comply with the conditions previously laid down by law should, irrespective of their legal form, be permitted to provide services, provided that account is taken of the general principles of equal treatment, transparency and non-discrimination. 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 authorities 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 Committee17. Member States and/or public authorities remain free to provide these 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 authority, without any limits or quotas, provided such a system ensures sufficient advertising and complies with the principles of transparency and non- discrimination.
Amendment 218 #
Proposal for a directive
Recital 15
Recital 15
(15) There is a widespread need for additional flexibility and in particular for wider access to a procurement procedure providing for negotiations, as is explicitly foreseen in the Agreement, where negotiation is allowed in all procedures. Contracting authorities should, unless otherwise provided in the legislation of the Member State concerned, be able to use a competitive procedure with negotiation as provided for in this Directive, in various situations where open or restricted procedures without negotiations are not likely to lead to satisfactory procurement outcomes. This procedure should be accompanied by adequate safeguards ensuring observance of the principles of equal treatment and transparency. This will give greater leeway to contracting authorities to buy works, supplies and services perfectly adapted to their specific needs. At the same time, it should also increase cross-border trade, as the evaluation has shown that contracts awarded by negotiated procedure with prior publication have a particularly high success rate of cross-border tenders.
Amendment 239 #
Proposal for a directive
Recital 25
Recital 25
(25) Electronic means of communication are particularly well suited to support centralised purchasing practices and tools because of the possibility they offer to re- use and automatically process data and to minimise information and transaction costs. The use of such electronic means of communication should therefore, as a first step, be rendered compulsory for central purchasing bodies, while also facilitating converging practices across the Union. This should be followed by a general obligation to use electronic means of communication in all procurement procedures after a transition period of twofour years.
Amendment 262 #
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-discrimination and equal treatment. These criteria should 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 result, contracting authorities should be allowed to adopt as award criteria either ‘the most economically advantageous tender’ or ‘the lowest cost’, taking into acchoose ‘the most economically advantageous tender’. In duly substantiated exceptional cases, in particular involving highly standardised products, count that in the latter caseracting authorities should be able to apply the lowest price or the lowest cost as the sole criterion, taking into account that they are free to set adequate quality standards by using technical specifications or contract performance conditions.
Amendment 326 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 1
Article 1 – paragraph 2 – subparagraph 1
2. Procurement within the meaning of this Directive is the purchase or other forms of acquisition of works, supplies or services via public contracts by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or no, provided that the works, suppliesy or services are intended for a public purpose directly benefits the contracting authority economically.
Amendment 327 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 1
Article 1 – paragraph 2 – subparagraph 1
2. Procurement within the meaning of this Directive is the purchase or other forms of acquisition of works, supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities, whether or not the works, supplies or services are intended for a public purpose.
Amendment 332 #
Proposal for a directive
Article 1 – paragraph 2 – subparagraph 2
Article 1 – paragraph 2 – subparagraph 2
Amendment 388 #
Proposal for a directive
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) EUR 2400 000 for public supply and service contracts awarded by sub-central contracting authorities and design contests organised by such authorities.
Amendment 395 #
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 427 #
Proposal for a directive
Article 10 – paragraph 1 – point c a (new)
Article 10 – paragraph 1 – point c a (new)
(ca) the following legal services: (i) legal representation of a client in legal proceedings before the courts or administrative bodies by a lawyer as referred to in Article 1 of Directive 77/249/EEC; (ii) certification and authentication of documents by notaries; (iii) legal services provided by proxies or officially appointed guardians or other legal services for which Member States provide before their courts; (iv) other legal services associated with the performance of public administration duties in the Member States, even if only occasionally.
Amendment 442 #
Proposal for a directive
Article 10 – paragraph 1 – point f a (new)
Article 10 – paragraph 1 – point f a (new)
(fa) civil protection, emergency response and everyday hazard prevention;
Amendment 444 #
Proposal for a directive
Article 10 – paragraph 1 – point f a (new)
Article 10 – paragraph 1 – point f a (new)
(fa) civil protection, emergency response and everyday hazard prevention;
Amendment 446 #
Proposal for a directive
Article 10 – paragraph 1 – point f b (new)
Article 10 – paragraph 1 – point f b (new)
(fb) public service contracts awarded by a contracting authority to a 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.
Amendment 447 #
Proposal for a directive
Article 10 – paragraph 1 a (new)
Article 10 – paragraph 1 a (new)
Only Articles 40, 41 and 48 of this Directive shall apply to public services contracts relating to the following: (a) supporting and auxiliary transport services; (b) legal advice; (c) building-cleaning services; (d) land transport, including cash transport and courier services; (e) investigation and security services.
Amendment 460 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point b
Article 11 – paragraph 1 – subparagraph 1 – point b
(b) at least 980 % of the activities of that legal person which are activities governed by the contract are carried out for the controlling contracting authority or for other legal persons controlled by that contracting authority;
Amendment 477 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point c
Article 11 – paragraph 1 – subparagraph 1 – point c
(c) there is nonly passive private participation, in.e. participation that does not allow any influence on the operational business of the controlled legal person.
Amendment 486 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 2
Article 11 – paragraph 1 – subparagraph 2
Amendment 495 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Paragraph 1 also applies where a controlled entity which is a contracting authority awards a contract to its controlling entity, 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.(Does not affect English version.)
Amendment 496 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Paragraph 1 also applies where a controlled entity which is a contracting authority awards a contract to its controlling entity or controlling entities, or to another legal person controlled by the same contracting authority, provided that there is nonly passive private participation in the legal person being awarded the public contract, i.e. participation that does not allow any influence on the operational business of the controlled legal person.
Amendment 503 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – introductory part
Article 11 – paragraph 3 – subparagraph 1 – introductory part
3. A contracting authority, which does not exercise over a legal person control within the meaning of paragraph 1, may nevertheless award a public contract without applyingoutside the scope of this Directive to a legal person which it controls jointly with other contracting authorities, where the following conditions are fulfilled:
Amendment 504 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point a
Article 11 – paragraph 3 – subparagraph 1 – point a
(a) the contracting authorities exercise jointly over the legal person a control which is similar to that which they exercise over theirpurpose of the legal person is the provision of a public-service task conferred own departmentall the public authorities;
Amendment 508 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point b
Article 11 – paragraph 3 – subparagraph 1 – point b
(b) at least 980 % of the activities of that legal person which are the subject of the contract are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities;
Amendment 521 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point c
Article 11 – paragraph 3 – subparagraph 1 – point c
(c) there is nonly passive private participation, in.e. participation that does not allow any influence on the operational business of the controlled legal person.
Amendment 526 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2
Article 11 – paragraph 3 – subparagraph 2
Amendment 541 #
Proposal for a directive
Article 11 – paragraph 4 – point a
Article 11 – paragraph 4 – point a
(a) the agreement establishes a genuine cooperation between the participating contracting authorities aimed at carpurpose of the partnership is the provision of a public service task in the public interest conferred on public authorities, or the carrying-out of ancillary purchasing activities within the meaning of Article 2(17), which is necessary ing out jointlyrder to perform their public service tasks and inv in the public interest. A poolving mutual rights and obligations of the parties; of tasks shall also be considered to exist where a municipality is merely obliged to make payment, provided that cooperation enables the municipality to carry out its own obligations more economically or more effectively;
Amendment 550 #
Proposal for a directive
Article 11 – paragraph 4 – point b
Article 11 – paragraph 4 – point b
(b) the agreement is governed only by considerations relating to the public interesttask is carried out solely by the public authorities concerned without the involvement of active private capital;
Amendment 556 #
Proposal for a directive
Article 11 – paragraph 4 – point c
Article 11 – paragraph 4 – point c
Amendment 563 #
Proposal for a directive
Article 11 – paragraph 4 – point d
Article 11 – paragraph 4 – point d
Amendment 568 #
Proposal for a directive
Article 11 – paragraph 4 – point e
Article 11 – paragraph 4 – point e
Amendment 573 #
Proposal for a directive
Article 11 – paragraph 5
Article 11 – paragraph 5
Amendment 607 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Unless otherwise provided in this Directive or in the national law concerning access to information, and without prejudice to the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 48 and 53 of this Directive, the contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.
Amendment 621 #
Proposal for a directive
Article 19 – paragraph 7 – subparagraph 1
Article 19 – paragraph 7 – subparagraph 1
7. Member States shall ensure that, at the latest 24 years after the date provided for in Article 92(1), all procurement procedures under this Directive are performed using electronic means of communication, in particular e-submission, in accordance with the requirements of this Article.
Amendment 657 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 4 – introductory part
Article 24 – paragraph 1 – subparagraph 4 – introductory part
They may also Member States shall provide that contracting authorities may use a competitive procedure with negotiation or a competitive dialogue in any of the following cases:
Amendment 670 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 4 – point e a (new)
Article 24 – paragraph 1 – subparagraph 4 – point e a (new)
(ea) where the specific procurement requirements of the contracting authority cannot be met without exclusive recourse to standardised solutions.
Amendment 675 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 5
Article 24 – paragraph 1 – subparagraph 5
Amendment 686 #
Proposal for a directive
Article 25 – paragraph 1 – subparagraph 2
Article 25 – paragraph 1 – subparagraph 2
The minimum time limit for the receipt of tenders shall be 4021 days from the date on which the contract notice was sent. That period may be extended to 40 days in particular exceptional cases.
Amendment 691 #
Proposal for a directive
Article 25 – paragraph 2
Article 25 – paragraph 2
Amendment 694 #
Proposal for a directive
Article 25 – paragraph 3
Article 25 – paragraph 3
Amendment 696 #
Proposal for a directive
Article 25 – paragraph 4
Article 25 – paragraph 4
Amendment 699 #
Proposal for a directive
Article 26 – paragraph 1 – subparagraph 2
Article 26 – paragraph 1 – subparagraph 2
The minimum time limit for receipt of requests to participate shall be 3021 days 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.
Amendment 704 #
Proposal for a directive
Article 26 – paragraph 2 – subparagraph 2
Article 26 – paragraph 2 – subparagraph 2
The minimum time limit for the receipt of tenders shall be 3521 days from the date on which the invitation to tender is sent.
Amendment 724 #
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 3
Article 27 – paragraph 1 – subparagraph 3
Amendment 793 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point a
Article 30 – paragraph 2 – subparagraph 1 – point a
(a) where no tenders or no suitable tenders or no requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission or the national oversight body designated according to Article 84 where they so requestaltered.
Amendment 803 #
Proposal for a directive
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
Article 30 – paragraph 2 – subparagraph 1 – point c – point i
i) the absence of competition for technical or legal reasons;
Amendment 820 #
Proposal for a directive
Article 30 – paragraph 5 a (new)
Article 30 – paragraph 5 a (new)
5a. Contracting authorities may combine elements of the open procedure with the negotiated procedure.
Amendment 888 #
Proposal for a directive
Article 39 – paragraph 1 – subparagraph 1
Article 39 – paragraph 1 – subparagraph 1
Before launchinitiating a procurement procedure, contracting authorities may conduct market consultationsurveys in order to assess the structure, capability and capacity of the market andor to inform economic operators of their procurement plans and requirements.
Amendment 890 #
Proposal for a directive
Article 39 – paragraph 1 – subparagraph 2
Article 39 – paragraph 1 – subparagraph 2
For this purpose, contracting authorities may seek or accept advice from administrative support structures or from third parties or market participants, provided that such advice does not have the effect of precluding competition and does not result in a violation of the principles of non-discrimination and transparency.
Amendment 992 #
Proposal for a directive
Article 44 – paragraph 1 – subparagraph 1
Article 44 – paragraph 1 – subparagraph 1
Public contracts may be subdivided into homogenous or heterogeneous lots. For contracts with a value equal to or greater than the thresholds provided for in Article 4 but not less than EUR 500 000, determined in accordance with Article 5, where the contracting authority does not deem it appropriate to split into lots, it shall provide in the contract notice or in the invitation to confirm interest a specific explanation of its reasons.
Amendment 1005 #
Proposal for a directive
Article 44 – paragraph 2
Article 44 – paragraph 2
Amendment 1007 #
Proposal for a directive
Article 44 – paragraph 3
Article 44 – paragraph 3
Amendment 1015 #
Proposal for a directive
Article 44 – paragraph 4
Article 44 – paragraph 4
Amendment 1024 #
Proposal for a directive
Article 51 – paragraph 1
Article 51 – paragraph 1
1. Contracting authorities shall offer unrestricted and full direct access free of charge by electronic means to the procurement documents from the date of publication of the notice in accordance with Article 49 or the date on which the invitation to confirm interest is sent. The text of the notice or the invitation to confirm interest shall specify the internet address at which this documentation is accessible. Contracting authorities may make access subject to prior submission by an applicant of his name, address, other details or appropriate documents enabling the applicant’s identity to be clearly established.
Amendment 1027 #
Proposal for a directive
Article 52 – paragraph 2
Article 52 – paragraph 2
2. The invitations referred to in paragraph 1 shall include a reference to the electronic address onat which the specifications or the descriptive document and any other supporting documents have been made directly available by electronic meanare accessible to tenderers. In addition, they shall include the information set out in Annex X.
Amendment 1095 #
Proposal for a directive
Article 57 – paragraph 2 a (new)
Article 57 – paragraph 2 a (new)
2a. An extension may be granted for the submission of declarations and proof requested by the contracting authority which were not provided by the deadline for submitting tenders.
Amendment 1124 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – introductory part
Article 66 – paragraph 1 – subparagraph 1 – introductory part
1. 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:to the most economically advantageous tender.
Amendment 1129 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point a
Article 66 – paragraph 1 – subparagraph 1 – point a
Amendment 1137 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 1 – point b
Article 66 – paragraph 1 – subparagraph 1 – point b
Amendment 1146 #
Proposal for a directive
Article 66 – paragraph 1 – subparagraph 2
Article 66 – paragraph 1 – subparagraph 2
Amendment 1154 #
Proposal for a directive
Article 66 – paragraph 2 – introductory part
Article 66 – paragraph 2 – introductory part
2. The most economically advantageous tender referred to in point (a) of paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject- matter of the public contract in question. Those criteria shall include, in addition to the price or costs referred to in point (b) of paragraph 1, other price or costs and other qualitative, environmental and social criteria linked to the subject-matter of the public contract in question, such as:
Amendment 1200 #
Proposal for a directive
Article 66 – paragraph 4
Article 66 – paragraph 4
Amendment 1233 #
Proposal for a directive
Article 67 – paragraph 3
Article 67 – paragraph 3
Amendment 1251 #
Proposal for a directive
Article 69 – paragraph 1 – point a
Article 69 – paragraph 1 – point a
(a) the price or cost charged is more than 530 % lower than the average price or costs of the remaining tenders
Amendment 1267 #
Proposal for a directive
Article 69 – paragraph 1 – point c
Article 69 – paragraph 1 – point c
(c) at least fivthree tenders have been submitted.
Amendment 1306 #
Proposal for a directive
Article 70
Article 70
Contracting authorities 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.
Amendment 1359 #
Proposal for a directive
Article 72 – paragraph 3 – subparagraph 2 a (new)
Article 72 – paragraph 3 – subparagraph 2 a (new)
Neither shall the first subparagraph apply in the event of a change of contracting authority before the end of the contract.
Amendment 1361 #
Proposal for a directive
Article 72 – paragraph 4
Article 72 – paragraph 4
4. Where the value of a modification can be expressed in monetary terms, the modification shall not in every case be considered to be substantial within the meaning of paragraph 1, where its value does not exceed the thresholds set out in Article 4 and where it is below 510 % of the price of the initial contract, provided that the modification does not alter the overall nature of the contract. Where several successive modifications are made, the value shall be assessed on the basis of the cumulative value of the successive modifications.
Amendment 1401 #
Proposal for a directive
Article 75 – paragraph 1
Article 75 – paragraph 1
Amendment 1410 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 1
Article 75 – paragraph 3 – subparagraph 1
3. The notices referred to in paragraphs 1 and 2 shall contain the information referred to in Annexes VI Part H and I, in accordance with the standard forms.
Amendment 1415 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 2
Article 75 – paragraph 3 – subparagraph 2
Amendment 1421 #
Proposal for a directive
Article 75 – paragraph 4
Article 75 – paragraph 4
4. The notices referred to in paragraphs 1 and 2 shall be published in accordance with Article 49.
Amendment 1425 #
Proposal for a directive
Article 76
Article 76
Amendment 1591 #
Proposal for a directive
Annex 16 - column 2
Annex 16 - column 2
Health, veterinary and social services Administrative educational, healthcare and cultural services Compulsory social security services Benefit services Other community, social and personal services Services furnished by trade unions Religious services Hotel and restaurant services Rail transport services Shipping Supporting and auxiliary transport services Personnel placement and supply services, apart from employment contracts Investigation and security services, except armoured car services Education and vocational education services Recreation, culture and sport, except contracts for the acquisition, development, production or co-production of programmes by broadcasting organisations and contracts for broadcasting time Other services apart from employment contracts and contracts for the acquisition, development, production or co-production of programmes by broadcasting organisations and contracts for broadcasting time