Activities of Edvard KOŽUŠNÍK related to 2011/0439(COD)
Shadow reports (1)
REPORT 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 PDF (1 MB) DOC (2 MB)
Amendments (62)
Amendment 157 #
Proposal for a directive
Recital 16
Recital 16
Amendment 161 #
Proposal for a directive
Recital 17
Recital 17
(17) OtherThe results of the Evaluation on the Impact and Effectiveness of EU Public Procurement Legislation demonstrated that the exclusion of certain services from the full application of the Directive should be reviewed. Some categories of services continue by their very nature to have a limited cross- border dimension, namelyfor example what are known as services to the person, such as certain social, health and educational services. Thoese 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 thoese services, with a higher threshold of EUR 1 000 000. In the particular context of procurement in those sectors, sServices 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 thoese 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 entauthorities 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 Committee. Member States and/or contracting entpublic authorities remain free to provide thoese 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 entauthority, without any limits or quotas, provided such a system ensures sufficient advertising and complies with the principles of transparency and non- discrimination.
Amendment 162 #
Proposal for a directive
Recital 18
Recital 18
(18) Being addressed to Member States, this directive does not apply to procurement carried out by international organisations on their own behalf and for their own account. There is, however, a need to clarify to what extent this directive should be applied to procurement governed by specific international rules. The European Institutions should, in particular, take into account the changes effected by this Directive and adjust their own procurement rules accordingly to reflect these changes.
Amendment 172 #
Proposal for a directive
Recital 25
Recital 25
(25) Research and innovation, including eco-innovation and social innovation, are among the main drivers of future growth and have been put at the centre of the Europe 2020 strategy for smart, sustainable and inclusive growth. Contracting entPublic authorities should make the best strategic use of public procurement to spurdrive innovation. Buying innovative goods and services plays a key role in improving the efficiency and quality of public services while addressing major societal challenges. It contributes to achieving best value for public money as well as wider economic, environmental and societal benefits in terms of generating new ideas, translating them into innovative products and services and thus promoting sustainable economic growth. An innovative procurement model is detailed in the Commission's communication on pre-commercial procurement1. This model promotes the take up in the procurement of research and development services which do not fall within the scope of this Directive. This model, which has been written into this Directive, is recognised and will be available for all contracting authorities to consider. This dDirective should however contribute to facilitating the public procurement of innovation more generally, and help Member States in achieving the Innovation Union targets. A specific procurement procedure should therefore be provided for whichWhere a need for the development of an innovative product, service or works and the subsequent purchase of the resulting output cannot be met by solutions already available on the market, contracting authorities should have access to a specific procurement procedure in respect of contracts falling within the scope of this Directive. This new procedure should allows contracting entauthorities to establish a long-termn innovation partnership for the development and subsequent purchase of a new, innovative products, services or works, provided ithat these can be delivered to agreed performance levels and costs. The partnershiprocedure should be based on the rules applying to the competitive procedure with negotiations and contracts should be awarded on the sole basis of the most economically advantageous tender, which is the most suited to comparing tenders for innovative solutions. Whether the innovation partnership concerns a very large project or a smaller project, it should be structured in such as a way that it can provide the necessary ‘"market- pull’", incentivising the development of an innovative solution s without foreclosing the market. Contracting authorities should therefore not misuse innovation partnerships to prevent, restrict or distort competition. __________________ 1 COM (2007) 799 final: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Pre- commercial procurement: driving innovation to ensure sustainable high quality public services in Europe.
Amendment 185 #
Proposal for a directive
Recital 35
Recital 35
(35) The technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To that end, it shouldmust be possible to submit tenders that reflect the diversity of technical solutions, standards and specifications in the marketplace so as to obtain a sufficient level of competition. Consequently, technical specifications should be drafted in such a way to avoid artificially narrowing down competition through requirements that favour a specific economic operator by mirroring key characteristics of the supplies, services or works habitually offered by that economic operator, or that disadvantage economic operators on the basis of business or development model including with regard to standards or specifications implemented in a given solution or service. Drawing up the technical specifications in terms of functional and performance requirements generally allows this objective to be achieved in the best way possible and favours innovation. Where reference is made to a European standard or, in the absence thereof, to a national standard, tenders based on other equivalent arrangements which meet the requirements of the contracting entities and are equivalent in terms of safety must be considered by themust be considered equally by contracting entauthorities. To demonstrate equivalence, tenderers can be required to provide third- party verified evidence; however, other appropriate means of proof such as a technical dossier of the manufacturer should also be allowed where the economic operator concerned has no access to such certificates or test reports, or no possibility of obtaining them within the relevant time limits. Contracting authorities must be able to provide a reason for any decision that equivalence does not exist in a given case.
Amendment 189 #
Proposal for a directive
Recital 38
Recital 38
(38) In order to encouragePublic procurement should be adapted to the needs of SMEs. Contracting authorities should make use of the Code of Best Practice providing guidance on how they may apply the public procurement framework in a way that facilitates SME participation. In order to foster the involvement of small and medium-sized enterprises (SMEs) in the public procurement market, it should be provided explicitly that contracts may be divided into lots, whether homogenous or heterogeneous. Where contracts are divided into lots, contracting entities may, for instance in order to preserve competition or to ensure security of supply, limit the number of lots for which an economic operator may tender; they may also limit the number of lots that may be awarded to any one tenderer. contracting authorities should in particular give consideration to dividing contracts into lots and ensure transparency in access to information on their reasons for doing so or choosing not to. Member States should introduce measures to promote the access of SMEs to public procurement, in particular through improved information and guidance on tendering and on the new opportunities offered by the modernised EU legal framework, and to foster the exchange of best practice and the organisation of training and events involving public procurers and SMEs.
Amendment 192 #
Proposal for a directive
Recital 41
Recital 41
(41) Where contracting entities are obliged or choose to apply the just mentioned exclusion criteria mentioned above, they should apply Directive [2004/18] concerning the possibility that economic operators adopt compliance measures aimed at remedying the consequences of any criminal offences or misconduct and at effectively preventing further occurrences of the misbehaviour.
Amendment 205 #
Proposal for a directive
Recital 47
Recital 47
(47) Furthermore, in technical specifications and in award criteria, contracting entauthorities should be allowed to refer to a specific production process, a specific mode of provision ofthe monetisation of the life cycle of the works, services, or a specific process for any other stage of the life-cycle of a product or servicesupply and accordingly to social and environmental sustainability, provided that theyse characteristics are linked to the subject- matter of the contract. In order to better integrate social considerations in public procurement, procurers may also be allowed to include, in the award criterion of the most economically advantageous tender characteristics related to the working conditions of the persons directly participating in the process of production or provision in question. Those characteristics may onlyThe technical specifications and award criteria should be interpreted broadly. Contracting authorities may also use the technical specifications and award criteria to minimise damaging social or environmental effects or maximise positive social or environmental effects. As part of the award criteria, contracting authorities should be able to concsidern the protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged persexistence of an embedded life-cycle approach aiming at minimising cost and maximising resource efficiency and which should be applied in the framework of the provisions or members of vulnerable groups amongst the persons assigned to performing the contract, including accessibility for persons with disabilities. Any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment. They should be applied in accordance with Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services32 and in a way that does not discriminate directly or indirectly against economf works, services or supplies in a way that does not discriminate directly or indirectly against economic operators from other Member States or from third countries which are parties to the WTO's Government Procurement Agreement, or from other third countries with whom the Union is party to a Free Trade Agreement. Contracting authorities should also be allowed to use as technical specifications and award criteria the organisation, qualification and experience of the staff assigned to performing the contract in question, as this may affect the quality and social sustainability of contract performance and, as a result, the identification of the tender which operators from other Member States or from third countries parties to the Agreement or to Free Trade Agreements to which the Union is partyffers the best value for money. Contracting authorities should include these considerations in the award criterion of the most economically advantageous tender.
Amendment 218 #
Proposal for a directive
Recital 57
Recital 57
(57) The evaluation has shown that Member States do not consistently and systematically monitor thethere is still considerable room for implrovementation and the func in the applicationing of the Union public procurement rules. This has a negative impact on the correct implementation of provisions stemming from those directives, which is a major source of cost and uncertainty. Several Member States have appointed a national central body dealing with public procurement issues, but the functions that such bodies are empowered with vary considerably across Member States. Clearer, more consistent and authoIn view of a more efficient and consistent application of the rules, it is on the one hand essential to get a good overview on possible structural problems and general patterns in national procurement policies, in order to address possible problems in a more targeted way. This overview should be gained through appropritative monitoring and control mechanisms would increase knowledge of the functioning of procurement rules, legal certainty for businesses and, the results of which should be regularly published, in order to allow an informed debate on possible improvements of procurement rules and practice. On the other hand, better guidance and assistance to contracting entauthorities, and econtribute to establish a level playing field. Such mechanisms could serve as tools for detection and early resolution of problems, especially with regard to projects cofunded by the Union, and for the identification of structural deficiencies. There is in particular a strong need to coordinatomic operators could also greatly contribute to enhancing the efficiency of public procurement, through better knowledge, increased legal certainty and professionalisation of procurement practices; such guidance tshose mechanisms to ensure consistent application, controls and monitoring of public procurement policy, as well as systematic assessment of the outcomes of procurement policy across the Unionuld be made available to contracting authorities and economic operators wherever it appears necessary, to ensure correct application of the rules.
Amendment 221 #
Proposal for a directive
Recital 58
Recital 58
Amendment 224 #
Proposal for a directive
Recital 59
Recital 59
(59) Not all contracting entities may have the internal expertise to deal with economicallyAny stakeholder should be empowered to signal violations orf technically complex contracts. Against this background, appropriate professional support would be an effective complement to monitoring and control activities. On the one hand, this objective can be achieved by knowledge sharing tools (knowledge centres) offering technical assistance to contracting entities; on the other hand, business, not least SMEs, should benefit from administrative assistance, in particular when participating in procurement procedures on a cross- border basihis Directive to a competent authority or Court. Member States should be able to provide for recourse to monitoring authorities, sectoral oversight bodies, municipal, regional or national competition or auditing authorities, ombudsmen, and where these exist, national oversight authorities.
Amendment 225 #
Proposal for a directive
Recital 60
Recital 60
(60) Monitoring, oversight and support structures or mechanisms exist already at national level and can of course be used to ensure monitoring, implementation and control of public procurement and to provide the required support to contracting entities and economic operatorTraceability and transparency of decision-making in procurement procedures is essential for ensuring sound procedures, including effectively fighting corruption and fraud. Contracting authorities should keep copies of concluded contracts for high-value contracts to be able to provide access to these documents to interested parties in accordance with applicable rules on access to documentation. Furthermore, the essential elements and decisions of individual procurement procedures should be documented in a procurement report. To limit administrative burdens, the procurement report should refer to information already contained in the relevant contract award notices. The electronic systems for publication of these notices, managed by the Commission, should also be improved in view of facilitating data entry while making it easier to extract reports and exchange data between systems.
Amendment 226 #
Proposal for a directive
Recital 61
Recital 61
Amendment 245 #
Proposal for a directive
Article 2 – point 4 – introductory part
Article 2 – point 4 – introductory part
(4) a ‘'body governed by public law’' means any body that has all of the following characteristics entity:
Amendment 247 #
Proposal for a directive
Article 2 – point 4 – point a
Article 2 – point 4 – point a
(a) It is established for, or which has the specific purpose of, meeting needs in the general interest, not having an industrial or commercial character; for that purpose, a body which operates in normal market conditions, aims to make a profit, and bears the losses resulting from the exercise of its activity does not have the purpose of meeting needs in the general interest, not having and does not have an industrial or commercial character;
Amendment 252 #
Proposal for a directive
Article 2 – point 4 – point b
Article 2 – point 4 – point b
(b) it hashaving legal personality;
Amendment 253 #
Proposal for a directive
Article 2 – point 4 – point c
Article 2 – point 4 – point c
(c) it is financed, for the most part, bywhich satisfy at least one of the following conditions: (i) the majority of the funding is from the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or has an(ii) the majority of the administrative, managerial or supervisory board, more than half of whose members are appointed is appointed by the state, regional or local authorities, or other bodies governed by public law; (iii) decisions are subject to management control by the State, regional or local authorities, or by other bodies governed by public law;.
Amendment 262 #
Proposal for a directive
Article 2 – point 22
Article 2 – point 22
(22) ‘'life cycle’' means all consecutive and/or interlinked stages, including production, transport, use and maintenance, throughout the existence of a product or a works or the provision of a service, from raw material acquisition or generation of resources to disposal, clearance and finalisation;monetising, wherever possible, the full costs associated to the public procurement, including maintenance and resource (including energy) efficiency costs, end- of-life recycling costs, and social impact costs where these relate to performance of the contract. Efficient design, planning and use of electronic means can also be included in life cycle monetisation. For the purposes of public procurement, the life cycle runs from the point of purchase throughout the lifetime of the works, supplies or services and forms an integral and in-dissociable part of the calculation of what constitutes the Most Economically Advantageous Tender.
Amendment 324 #
Proposal for a directive
Article 19 – paragraph 1 – point f a (new)
Article 19 – paragraph 1 – point f a (new)
(fa) any of the following legal services: (i) legal representation of a client in judicial proceedings before the national courts, tribunals or public authorities of a Member State by a lawyer within the meaning of Article 1 of Directive 77/249/EEC; (ii) document certification services which must be provided by notaries; (iii) legal services provided by trustees, appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned; (iv) other legal services which in the Member State concerned are connected, even occasionally, with the exercise of official authority.
Amendment 338 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 1 – point b
Article 21 – paragraph 1 – subparagraph 1 – point b
(b) at least 980 % 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;
Amendment 365 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point b
Article 21 – paragraph 3 – subparagraph 1 – point b
(b) at least 90 80% of the activities of that legal person are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities;
Amendment 393 #
Proposal for a directive
Article 21 – paragraph 4 – point c
Article 21 – paragraph 4 – point c
Amendment 465 #
Proposal for a directive
Article 34 – paragraph 1
Article 34 – paragraph 1
Member States shall ensure that, atby the latest 2 years after the date provided for in Article 101(1), all1st 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.
Amendment 505 #
Proposal for a directive
Article 43 – paragraph 1 – subparagraph 1
Article 43 – paragraph 1 – subparagraph 1
Member States mayshall 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.
Amendment 506 #
Proposal for a directive
Article 43 – paragraph 1 – subparagraph 2
Article 43 – paragraph 1 – subparagraph 2
In innovation partnerships, any economic operator may submit a request to participate in response to a call for competition in accordance with points (b) and (c) of Article 39(2)ontract notice with a view to establishing a structured partnership for the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works, provided that they correspond to the agreed performance levels and coststhe need for which cannot be met by solutions already available on the market, provided that they correspond to the agreed performance levels and costs. The contract setting up the innovation partnership shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 76(1)(a).
Amendment 508 #
Proposal for a directive
Article 43 – paragraph 2
Article 43 – paragraph 2
2. The partnership shall be structured in successive stages following the sequence of steps in the research and innovation process, possibly up towhich may include the manufacturing of the supply, or the provision of the services. It shall provide for or the completion of the works. The partnership shall set intermediate targets to be attained by the partner and provide for payment of the remuneration in appropriate instalments. Based on those targets, the contracting entity canmay decide after each stage to terminate the partnership and launch a new procurement procedure for the remaining phases, provided that it has acquired the relevant intellectual property rightsthe contracting entity has indicated in the procurement documents under which conditions it may make use of this discretion to terminate the partnership.
Amendment 509 #
Proposal for a directive
Article 43 – paragraph 3 – subparagraph 1
Article 43 – paragraph 3 – subparagraph 1
The contract shall be awarded in accordance with the rules for a negotiated procedure with prior call for compeaccording to the provisions laid down in subparagraphs 1(a) to 1(h) below: (a) In the procurement documents, contracting authorities shall indicate which elements define the minimum requirements to be met. The indications shall be sufficiently precise so as to enable economic operators to identify the nature and scope of the procurement and decide whether to request to participate in the procedure. (b) The minimum time limit for receipt of requests to participate shall be 30 days from the date on which the contract notice is sent, or where a prior information notice is used as a means of calling for competition, 30 days from the date on which the invitation to confirm interests is sent. The minimum time limit for the receipt of initial tenders shall be 30 days from the date on which the invitation is sent. (c) Contracting authorities shall negotiate with tenderers the initial and all subsequent tenders submitted, to improve the content to ensure that these tenders better fulfil the award criteria specified in the procurement documents. (d) During the negotiations, contracting authorities shall ensure the equal treatment of all tenderers. To that end, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others. They shall take particular care to ensure that all tenderers, whose tenders have not been eliminated, are informed in writing of any changes to the technical specifications of other procurement documents other than those setting out the minimum requirements, providing sufficient time to allow such tenderers to modify and re-submit amended tenders following these changes. (e) In accordance with Article 32, contracting authorities shall not reveal to the other participants confidential information communicated by a candidate participating in the negotiation set out in Article 42. s without its agreement. Such agreement shall not take the form of a general waiver but shall be given with reference to the intended communication of specific information. (f) The minimum requirements and the award criteria shall not be subject to negotiations. (g) Once the deadline for submitting tenders has expired, and before proceeding to their examination, contracting authorities may specify a weighting attached to the subheadings of an award criterion defined in advance in accordance with Article 76(5), provided that: (i) the contract award criteria set out in the contract documents or the contract notice are unaltered; (ii) this does not include new elements which would have affected the preparation of the tenders; (iii) this does not give rise to discrimination against any one of the tenderers. (h) Innovation partnership procedures may take place in successive stages in order to reduce the number of tenders to be negotiated, by applying the award criteria specified in the contract notice, in the invitation to confirm interest or in the procurement documents. In the contract notice, the invitation to confirm interest or in the procurement documents, the contracting authority shall clearly indicate whether it will use this option.
Amendment 510 #
Proposal for a directive
Article 43 – paragraph 3 – subparagraph 2
Article 43 – paragraph 3 – subparagraph 2
In selecting candidates, contracting entities shall pay particular attention to criteria concerning the tenderers‘ capacity and experiencecandidates' capacity in the field of research and development orand of developing innovative solutions. They may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 72(2).
Amendment 511 #
Proposal for a directive
Article 43 – paragraph 3 – subparagraph 3
Article 43 – paragraph 3 – subparagraph 3
Only those economic operators invited by the contracting entity following its assessment of the requested information may submit research and innovation projects, aimed at meeting the needs identified by the contracting entity that cannot be met by existing solutions. The contract shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 76 (1)(a).
Amendment 512 #
Proposal for a directive
Article 43 – paragraph 4 – subparagraph 1
Article 43 – paragraph 4 – subparagraph 1
The contracting entity shall ensure that the structure of the partnership and, in particular, the duration and value of the different phases shall reflect the degree of innovation of the proposed solution and the sequence of the research and innovation activities required for the development of an innovative solution not yet available on the market. The value and duration of a contract for the purchase of the resulting supplyestimated value of supplies, services or works shall remain within appropriate limits, taking into account the need to recover the costs, including those incurred in developing an innovative solution, and to achieve an adequate profinot be disproportionate in relation to the investment required for their development.
Amendment 513 #
Proposal for a directive
Article 43 – paragraph 4 – subparagraph 2
Article 43 – paragraph 4 – subparagraph 2
Amendment 605 #
Proposal for a directive
Article 54 – paragraph 3 – point b
Article 54 – paragraph 3 – point b
(b) by reference to technical specifications and, in order of preference, and without discrimination as to development method, to national standards transposing European standards, European technical approvals, common technical specifications, international standards, other technical reference systems established by the European standardisation bodies or - when those do not exist - national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the supplies; each reference shall be accompanied by the words ‘'or equivalent’';
Amendment 607 #
Proposal for a directive
Article 54 – paragraph 4
Article 54 – paragraph 4
4. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or to a particular process or development or business model or method, or to trade marks, patents, types or a specific origin or production withor location of production, as any such reference would have 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 systematically be accompanied by the words ‘"or equivalent’".
Amendment 648 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1
Article 59 – paragraph 1 – subparagraph 1
Amendment 720 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 1
Article 76 – paragraph 2 – subparagraph 1
The most economically advantageous tender referred to in point (a) of paragraph 1)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 public contract in question and, wherever possible, on the basis of the monetisation of the life cycle as defined in Article 2, point 22.
Amendment 724 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – introductory part
Article 76 – paragraph 2 – subparagraph 2 – introductory part
Those criteria shallmay 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:
Amendment 738 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – point d
Article 76 – paragraph 2 – subparagraph 2 – point d
Amendment 749 #
Proposal for a directive
Article 77 – paragraph 1 – point a
Article 77 – paragraph 1 – point a
(a) internal costs, including costs relating to acquisition, such as production costs, use, such as energy consumption, maintenance costs and end of life, such as collection and recycling costs and relating to use, such as maintenance and resource efficiency costs (including energy efficiency), end-of-life recycling and collection costs, and social impact costs where these relate to performance of the contract. Internal costs also include considerations of efficient design, planning and process costs such as the use of electronic means.
Amendment 818 #
Proposal for a directive
Article 80 – paragraph 1
Article 80 – paragraph 1
Contracting entities may lay down special conditions relating to the performance of a contract, provided that they are indicated in the call for competition or in the specifications. Those conditions may, in particular, concern social andclude economic, innovative, environmental or social 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. However, none of those special conditions shall result in loosing the link to the subject matter of the contract.
Amendment 833 #
Proposal for a directive
Article 81 – paragraph 2
Article 81 – paragraph 2
Amendment 839 #
Proposal for a directive
Article 81 – paragraph 3
Article 81 – paragraph 3
Amendment 847 #
Proposal for a directive
Article 81 – paragraph 3 a (new)
Article 81 – paragraph 3 a (new)
3a. Contracting entities shall ensure that successful tenderers are contractually obliged to comply in the course of performance of the contract with mandatory legal, regulatory or administrative provisions in force in the Member State of contract performance. Furthermore, where the successful tenderer subcontracts a part of the works, supplies or services, and where, in the course of performance of the contract, the provisions referred to in the first subparagraph have been breached by any subcontractor as established by a Court or other competent authority, the successful tenderer shall take effective, proportionate and dissuasive contractual sanctions against the subcontractor(s) concerned; Where the successful tenderer has failed to comply with the obligations set out in the first and/or second subparagraphs within three months of the initial ruling of the Court or other competent authority, the contracting entity shall refer the matter to the Court or other competent authority for a decision on appropriate sanctions.
Amendment 864 #
Proposal for a directive
Article 82 – paragraph 4
Article 82 – paragraph 4
4. Where the value of a modification can be expressed in monetary terms, the modification shall not be considered to be substantial within the meaning of paragraph 1, where its value does not exceed the thresholds set out in Article 12 and where it is below 520 % 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 874 #
Proposal for a directive
Article 82 – paragraph 4 a (new)
Article 82 – paragraph 4 a (new)
4a. Furthermore, where the scope of the contract might evolve pursuant to: - significant innovations or technological change; - a technical difficulty in operation or maintenance requiring the intervention of the initial contractor; - the necessary implementation of emergency and unforeseeable works, services or supplies which cannot be technically or economically separated from the main contract without causing major disruption to the contracting entity; the modification shall not be considered substantial within the meaning of paragraph 1.
Amendment 918 #
Proposal for a directive
Title 4 – title
Title 4 – title
Amendment 919 #
Proposal for a directive
Article 92 – paragraph 1
Article 92 – paragraph 1
Amendment 921 #
Proposal for a directive
Article 92 – paragraph 1 a (new)
Article 92 – paragraph 1 a (new)
2. Member States shall ensure that the application of public procurement rules is monitored including the implementation of projects co-financed by the Union with a view to detecting threats to the financial interests of the Union. This monitoring shall be used to prevent, detect and adequately report possible instances of procurement fraud, corruption, conflict of interest and other serious irregularities. Where monitoring authorities or structures identify specific violations or systemic problems, they shall be empowered to refer those problems to national auditing authorities, courts or tribunals or other appropriate authorities or structures, such as the ombudsman, national Parliaments or committees thereof.
Amendment 922 #
Proposal for a directive
Article 92 – paragraph 1 b (new)
Article 92 – paragraph 1 b (new)
3. The results of the monitoring activities pursuant to paragraph 2 shall be made available to the public through appropriate means of information. In particular, Member States shall publish, at least biennially, an overview of the most frequent sources of wrong application or of legal uncertainty, including possible structural or recurring problems in the application of the rules, hereunder possible cases of fraud and other illegal behaviours. Member States shall transmit to the Commission on a biennial basis, a general overview of their national sustainable procurement policies, describing the relevant national action plans and initiatives and, where known, their practical implementation. They shall also indicate the success rate of SMEs in public procurement; where it is lower than 50 % in terms of values of contracts awarded to SMEs, Member States shall indicate whether any initiatives are in place to increase this success rate. On the basis of the data received, the Commission shall regularly issue a report on the implementation and best practices of such policies in the Internal Market.
Amendment 923 #
Proposal for a directive
Article 92 – paragraph 1 c (new)
Article 92 – paragraph 1 c (new)
4. Any person or body which does not have access to review procedures pursuant to Council Directive 92/13/EEC shall be given the possibility to indicate possible violations of this Directive to a competent authority or structure which shall duly consider any sufficiently substantiated complaint and take appropriate measures subject to powers and competences provided for in national law.
Amendment 924 #
Proposal for a directive
Article 92 – paragraph 1 d (new)
Article 92 – paragraph 1 d (new)
5. Member States shall ensure that guidance on the interpretation and application of the Union public procurement law is available free of charge to assist contracting authorities and economic operators in correctly applying the Union public procurement rules.
Amendment 925 #
Proposal for a directive
Article 92 – paragraph 1 e (new)
Article 92 – paragraph 1 e (new)
6. Member States shall, without prejudice to the general procedures and working methods established by the Commission for its communications and contacts with Member States, designate a contact point for cooperation with the Commission as regards 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.
Amendment 926 #
Proposal for a directive
Article 92 – paragraph 1 f (new)
Article 92 – paragraph 1 f (new)
7. Contracting authorities shall, at least for the duration of the contract, keep copies of all concluded contracts with a value equal to or greater than: (a) 1 000 000 EUR in the case of public supply contracts or public service contracts; (b) 10 000 000 EUR in the case of public works contracts. They shall grant access to these contracts in accordance with any applicable rules on access to documents and data protection.
Amendment 932 #
Proposal for a directive
Article 93
Article 93
Amendment 951 #
Proposal for a directive
Article 94 – title
Article 94 – title
Individual rReports on procedures for the award of contractsing
Amendment 954 #
Proposal for a directive
Article 94 – paragraph 1 – subparagraph 2
Article 94 – paragraph 1 – subparagraph 2
Contracting entities shall document the progress of all procurement procedures, whether or not the proceduresose are conducted by electronic means. To that end, they shall documentensure that they dispose of sufficient documentation to justify decisions taken in all stages inof the procurement procedure, including allsuch as documentation on communications with economic operators and internal deliberations, preparation of the tenders, dialogue or negotiation if any, selection and award of the contract.
Amendment 958 #
Proposal for a directive
Article 94 – paragraph 2
Article 94 – paragraph 2
2. The information shall be kept for at least four years from the date of award of the contract so that the contracting entity will be able, during that period, to provide the necessary information to the Commission or to the national oversight bodyauthorities or structures referred to in Article 92 where they so request it.
Amendment 961 #
Proposal for a directive
Article 95 – paragraph 1
Article 95 – paragraph 1
1. The bodies established or appointed in accordance with Article 93Member States shall forward to the Commission an implementation and statistical report on each year, based on a standard form, not later than 31 October of the following year.
Amendment 963 #
Proposal for a directive
Article 95 – paragraph 2
Article 95 – paragraph 2
2. The report referred to in paragraph 1 shall contain at least the total value, broken down by category of activity to which Articles 5 to 11 refer, of the, for contracts awarded below the thresholds set out in Article 12 of this Directive, but which would be covered by this Directive if their value exceeded the thresholdits value exceeded the threshold, an estimation of the aggregated total value of the procurement during the year concerned. This estimation may in particular be based on data available under national publication requirements.
Amendment 964 #
Proposal for a directive
Article 95 – paragraph 3
Article 95 – paragraph 3
3. For all contracts above the thresholds of this Directive, Member States shall ensure that this report contains at least thethe estimated number and value of contracts awarded during the year concerned, broken down by categories of activity to which Articles 5 to 11 refer and any other information required to verify the proper application of the WTO Government Procurement Agreement. This shall include the estimated number and value of contracts awarded pursuant to a negotiated procedure without a call for competition, broken down according to the circumstances referred to in Article 44 and by categories of activity to which Articles 5 to 11 refer. It shall also specify the Member State or third country of the successful contractor.
Amendment 968 #
Proposal for a directive
Article 95 – paragraph 5
Article 95 – paragraph 5
5. The Commission shall establish the standard form for the drawing-up of the annual implementation andannual statistical report referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 100.
Amendment 970 #
Proposal for a directive
Article 96
Article 96
Article 96deleted
Amendment 976 #
Proposal for a directive
Article 97 – paragraph 3
Article 97 – paragraph 3