59 Amendments of Wim van de CAMP related to 2011/0438(COD)
Amendment 220 #
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 procedureoutcomes. In particular, contracting authorities should be able to use the competitive procedure with negotiation where negotiations are needed for example due to legal and financial makeup of the contract, for example in case of complex infrastructural projects or due to the complexity of the project, for example in case of the implementation of complex ICT-projects in organisations. The competitive procedure with negotiation 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 234 #
Proposal for a directive
Recital 20
Recital 20
(20) There is a strong trend emerging across Union public procurement markets towards the aggregation of demand by public purchasers, with a view to obtaining economies of scale, including lower prices and transaction costs, and to improving and professionalising procurement management. This can be achieved by concentrating purchases either by the number of contracting authorities involved or by volume and value over time. However, the aggregation and centralisation of purchases should be carefully monitored in order to avoid excessive concentration of purchasing power and collusion, and to preserve transparency and competition, as well as market access opportunities for small and medium-sized enterprises. The Commission should provide guidance to Member States and contracting authorities on the required monitoring of aggregated and centralised purchases to avoid excessive concentration of purchasing power and collusion. Such guidance should be provided by way of implementing act.
Amendment 246 #
Proposal for a directive
Recital 27
Recital 27
(27) The technical specifications drawn up by public purchasers need to allow public procurement to be opened up to competition. To that end, it must be possible to submit tenders that reflect the diversity of technical solutions, standards and specifications in the market place, 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 equivalent arrangements must be considered equally by contracting authorities. 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 274 #
Proposal for a directive
Recital 40
Recital 40
(40) These sector-specific measures must be complemented by an adaptation of the public procurement Directives empowering contracting authorities to pursue the objectives of the Europe 2020 Strategy in their purchasing strategies. It should hence be made clear that contracting authorities can determine the most economically advantageous tender and the lowest cost using a life-cycle costing approach, provided that the methodology to be used is established in an objective and non- discriminatory manner and accessible to all interested parties. The notion of life-cycle costing includes all costs over the life cycle of works, supplies or services, both their internal costs (such as research, development, production, use, maintenance and end-of- life disposal costs) and their external costs, provided they can be monetised and monitored. Common methodologies should be developed at the level of the Union for the calculation of life-cycle costs for specific categories of supplies or services; whenever such a methodology is developed its use should be made compulsory.
Amendment 345 #
Proposal for a directive
Article 71 a (new)
Article 71 a (new)
Article 71 a In the procurement documents, the contracting authority shall stipulate that the conditions and requirements which apply to the tenderer also apply to any third parties who perform part of the contract as subcontractors.
Amendment 346 #
Proposal for a directive
Article 71 b (new)
Article 71 b (new)
Article 71 b In the event of circumstances as referred to in Directive 2001/23/EC, this Directive shall also apply to 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, in the context of this Procurement Directive.
Amendment 363 #
Proposal for a directive
Article 2 – paragraph 1 – point 22
Article 2 – paragraph 1 – point 22
(22) ‘'life cycle’' means all consecutive and/or interlinked stages, including research, development, 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.
Amendment 369 #
Proposal for a directive
Annex XI – indent 3 a (new)
Annex XI – indent 3 a (new)
- Convention 94 on Labour Clauses in Public Contracts.
Amendment 386 #
Proposal for a directive
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) EUR 13260 000 for public supply and service contracts awarded by central government authorities and design contests organised by such authorities; where public supply contracts are awarded by contracting authorities operating in the field of defence, that threshold shall apply only to contracts concerning products covered by Annex III;
Amendment 390 #
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 398 #
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 413 #
Proposal for a directive
Article 7 a (new)
Article 7 a (new)
Article 7a Exclusion for goods falling under a fixed price regime This Directive shall not apply to contracts for the supply of goods or the provision of services which are subject by law to a fixed price.
Amendment 428 #
Proposal for a directive
Article 10 – paragraph 1 – point d
Article 10 – paragraph 1 – point d
(d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council27 , central bank services and operations conducted with the European Financial Stability Facility, or transactions by the contracting authorities to raise money or capital;
Amendment 462 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point b
Article 11 – paragraph 1 – subparagraph 1 – point b
(b) at least 90 %most 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 479 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 – point c
Article 11 – paragraph 1 – subparagraph 1 – point c
(c) there is no active private participation in the controlled legal person.
Amendment 484 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 2
Article 11 – paragraph 1 – subparagraph 2
Amendment 494 #
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 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.
Amendment 502 #
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 510 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point b
Article 11 – paragraph 3 – subparagraph 1 – point b
(b) at least 90 %the majority 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 522 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 1 – point c
Article 11 – paragraph 3 – subparagraph 1 – point c
(c) there is no active private participation in the controlled legal person.
Amendment 527 #
Proposal for a directive
Article 11 – paragraph 3 – subparagraph 2
Article 11 – paragraph 3 – subparagraph 2
Amendment 547 #
Proposal for a directive
Article 11 – paragraph 4 – point b
Article 11 – paragraph 4 – point b
Amendment 553 #
Proposal for a directive
Article 11 – paragraph 4 – point c
Article 11 – paragraph 4 – point c
Amendment 564 #
Proposal for a directive
Article 11 – paragraph 4 – point d
Article 11 – paragraph 4 – point d
Amendment 618 #
Proposal for a directive
Article 19 – paragraph 3 – subparagraph 3
Article 19 – paragraph 3 – subparagraph 3
To ensure the interoperability of technical formats as well as of process and messaging standards, especially in a cross- border context, the Commission shall be empowered to adopt delegated acts in accordance with Article 89 to establish the mandatoryould recommend use of specific technical standards, at least with regard to the use of e-submission, electronic catalogues and means for electronic authentication.
Amendment 628 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2
Article 21 – paragraph 1 – subparagraph 2
The notion of conflict of interests shall at least cover any situation where the categories of persons referred to in paragraph 2 have, directly or indirectly, a privatecommon interest in the outcome of the procurement procedure, which may be perceived to impair the impartial and objective performance of their duties.
Amendment 631 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 3
Article 21 – paragraph 1 – subparagraph 3
For the purposes of this Article, ‘private "common interests’' means any family, emotional life, economic, political or other shared interestseconomic interest or family ties, shared with the candidates or the tenderers, including conflicting professional interests.
Amendment 651 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 1 a (new)
Article 24 – paragraph 1 – subparagraph 1 a (new)
Contracting authorities need not publish a call for competition where they include in the competitive procedure with negotiation or competitive dialogue all of, and only, the tenderers which satisfy the criteria of Articles 55 to 65 and which, during the prior open or restricted procedure, have submitted tenders in accordance with the formal requirements of the tendering procedure.
Amendment 659 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 4 – introductory part
Article 24 – paragraph 1 – subparagraph 4 – introductory part
They mayshall also provide that contracting authorities may use a competitive procedure with negotiation or a competitive dialogue in any of the following cases:
Amendment 669 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 4 – point e
Article 24 – paragraph 1 – subparagraph 4 – point e
(e) where contracting authorities justify in the call for competition that due to specific circumstances related to the nature, the legal or financial makeup or the complexity of the works, supplies or services or the risks attaching thereto, the contract cannot be awarded without prior negotiations.
Amendment 677 #
Proposal for a directive
Article 24 – paragraph 1 – subparagraph 5
Article 24 – paragraph 1 – subparagraph 5
Amendment 846 #
Proposal for a directive
Article 32 – paragraph 6 – introductory part
Article 32 – paragraph 6 – introductory part
6. Contracting authorities shall indicate the duration of the dynamic purchasing system in the call for competition. They shall notify the Commission of any change in duration, using the following standard forms:
Amendment 848 #
Proposal for a directive
Article 32 – paragraph 6 – point a
Article 32 – paragraph 6 – point a
Amendment 850 #
Proposal for a directive
Article 32 – paragraph 6 – point b
Article 32 – paragraph 6 – point b
Amendment 918 #
Proposal for a directive
Article 40 – paragraph 3 – point b
Article 40 – 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 922 #
Proposal for a directive
Article 40 – paragraph 4
Article 40 – paragraph 4
4. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or development or business model or method, or to trade marks, patents, types or a specific origin or production or location of production, with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraph 3 is not possible. Such reference shall be accompanied by the words ‘or equivalent’.
Amendment 1046 #
Proposal for a directive
Article 55 – paragraph 3 – subparagraph 1 – point a
Article 55 – paragraph 3 – subparagraph 1 – point a
(a) where it is aware of any repeated violation of obligations established bywithin Union legislation in the field of social and labour law or environmental law or of the international social and environmentallabour law provisions listed in Annex XI. Compliance with Union legislation or with international provisions also includes compliance in an equivalent mann, but limited to the first tier of suppliers.
Amendment 1234 #
Proposal for a directive
Article 67 – paragraph 3 – subparagraph 1
Article 67 – paragraph 3 – subparagraph 1
Amendment 1239 #
Proposal for a directive
Article 67 – paragraph 3 – subparagraph 2
Article 67 – paragraph 3 – subparagraph 2
Amendment 1247 #
Proposal for a directive
Article 69 – paragraph 1 – introductory part
Article 69 – paragraph 1 – introductory part
1. Contracting authorities shall require economic operators to explain the price or costs charged, where all of the following conditions are fulfilled: If, for a given contract, tenders appear to be abnormally low in relation to the service to be provided, the contracting authority shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant. Those details may relate in particular to:
Amendment 1252 #
Proposal for a directive
Article 69 – paragraph 1 – point a
Article 69 – paragraph 1 – point a
(a) the preconomices or cost charged is more than 50 % lower than the averagef the construction method, the manufacturing prioce or costs ss ofr the remaining tendersservices provided;
Amendment 1261 #
Proposal for a directive
Article 69 – paragraph 1 – point b
Article 69 – paragraph 1 – point b
(b) the price ortechnical solutions chost charged is more than 20 % lower than the price or costs of the second lowest tenderen and/or any exceptionally favourable conditions available to the tenderer for the execution of the work or for the supply of the goods or services;
Amendment 1268 #
Proposal for a directive
Article 69 – paragraph 1 – point c
Article 69 – paragraph 1 – point c
(c) at least five tenders have been submitted.the originality of the design proposed by the tenderer;
Amendment 1271 #
Proposal for a directive
Article 69 – paragraph 1 – points c a and c b (new)
Article 69 – paragraph 1 – points c a and c b (new)
(ca) compliance with the provisions relating to employment protection and terms of employment in force at the place where the contract is to be performed; (cb) the possibility of the tenderer obtaining State aid.
Amendment 1274 #
Proposal for a directive
Article 69 – paragraph 2
Article 69 – paragraph 2
2. WThere tenders appear to be abnormally low for other reasons, contracting authorities may also request such contracting authority shall verify those constituent elements by consulting the tenderer, taking account of the explanations supplied.
Amendment 1277 #
Proposal for a directive
Article 69 – paragraph 3
Article 69 – paragraph 3
3. TWhe explanations referred to in paragraphs 1 and 2 may in particular relate to: (a) the economics of the construction method, the manufacturing process or the services provided; (b) the technical solutions chosen or any exceptionally favourable conditions available to the tenderer for the execution of the work or for the supply of the goods or services; (c) the originality of the work, supplies or services proposed by the tenderer; (d) compliance, at least re a contracting authority establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender can be rejected on that ground alone only after consultation with the tenderer where the latter is unable to prove, within a sufficient time- limit fixed by the contracting an equivalent manner, with obligations established by Union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in Annex XI or, where not applicable, with other provisions ensuring an equivalent level of protection; (e) the possibility of the tenderer obtaining State aiduthority, that the aid in question was granted legally. Where the contracting authority rejects a tender in those circumstances, it shall inform the Commission thereof.
Amendment 1299 #
Proposal for a directive
Article 69 a (new)
Article 69 a (new)
Article 69a Tenders comprising products originating in third countries 1. This Article shall apply to tenders covering products originating in third countries with which the Union has not concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for Union undertakings to the markets of those third countries. It shall be without prejudice to the obligations of the Union or its Member States in respect of third countries. 2. Any tender submitted for the award of a supply contract may be rejected where the proportion of the products originating in third countries, as determined in accordance with Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code[1], exceeds 50 % of the total value of the products constituting the tender. For the purposes of this Article, software used in telecommunications network equipment shall be regarded as products. 3. Subject to the second subparagraph, where two or more tenders are equivalent in the light of the contract award criteria defined in Article 66, preference shall be given to those tenders which may not be rejected pursuant to paragraph 2. The prices of those tenders shall be considered equivalent for the purposes of this Article, if the price difference does not exceed 3 %. However, a tender shall not be preferred to another pursuant to the first subparagraph where its acceptance would oblige the contracting entity to acquire equipment having technical characteristics different from those of existing equipment, resulting in incompatibility, technical difficulties in operation and maintenance, or disproportionate costs. 4. For the purposes of this Article, those third countries to which the benefit of the provisions of this Directive has been extended by a Council Decision in accordance with paragraph 1 shall not be taken into account for determining the proportion, referred to in paragraph 2, of products originating in third countries. 5. The Commission shall submit an annual report to the European Parliament and to the Council, commencing in the second half of the first year following the entry into force of this Directive, on progress made in multilateral or bilateral negotiations regarding access for Union undertakings to the markets of third countries in the fields covered by this Directive, on any result which such negotiations may have achieved, and on the implementation in practice of all the agreements which have been concluded. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may amend the provisions of this Article in the light of such developments. [1] OJ L 302, 19.10.1992, p. 1.
Amendment 1302 #
Proposal for a directive
Article 69 b (new)
Article 69 b (new)
Article 69b Relations with third countries as regards works, supplies and service contracts 1. Member States shall inform the Commission of any general difficulties, in law or in fact, encountered and reported by their undertakings in securing the award of service contracts in third countries. 2. The Commission shall report to the European Parliament and to the Council before 31 December 2014, and periodically thereafter, on the opening up of service contracts in third countries and on progress in negotiations with these countries on this subject, particularly within the framework of the WTO. 3. The Commission shall endeavour, by approaching the third country concerned, to remedy any situation whereby it finds, on the basis either of the reports referred to in paragraph 2 or of other information, that, in the context of the award of service contracts, a third country: (a) does not grant Union undertakings effective access comparable to that granted by the Union to undertakings from that country; or (b) does not grant Union undertakings national treatment or the same competitive opportunities as are available to national undertakings; or (c) grants undertakings from other third countries more favourable treatment than Union undertakings. 4. Member States shall inform the Commission of any difficulties, in law or in fact, encountered and reported by their undertakings and which are due to the non-observance of the international social and environmental law provisions listed in Annex XI when these undertakings have tried to secure the award of contracts in third countries. 5. In the circumstances referred to in paragraphs 3 and 4, the Commission may at any time propose that the Council decide to suspend or restrict, over a period to be laid down in the decision, the award of service contracts to: (a) undertakings governed by the law of the third country in question; (b) undertakings affiliated to the undertakings specified in point (a) and having their registered office in the Union but having no direct and effective link with the economy of a Member State; (c) undertakings submitting tenders which have as their subject-matter services originating in the third country in question. The Council shall act, by qualified majority, as soon as possible. The Commission may propose these measures on its own initiative or at the request of a Member State. 6. This Article shall be without prejudice to the commitments of the Union in relation to third countries ensuing from international agreements on public procurement, particularly within the framework of the WTO.
Amendment 1400 #
Proposal for a directive
Article 75 – paragraph 1
Article 75 – paragraph 1
Amendment 1404 #
Proposal for a directive
Article 75 – paragraph 2
Article 75 – paragraph 2
Amendment 1407 #
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 1413 #
Proposal for a directive
Article 75 – paragraph 3 – subparagraph 2
Article 75 – paragraph 3 – subparagraph 2
Amendment 1418 #
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 1424 #
Proposal for a directive
Article 76
Article 76
Amendment 1450 #
Proposal for a directive
Article 83 – paragraph 1
Article 83 – paragraph 1
Amendment 1462 #
Proposal for a directive
Article 84
Article 84
Amendment 1516 #
Proposal for a directive
Article 85 – paragraph 2
Article 85 – paragraph 2
Amendment 1525 #
Proposal for a directive
Article 86
Article 86
Amendment 1545 #
Proposal for a directive
Article 87
Article 87