46 Amendments of Raffaele BALDASSARRE related to 2011/0439(COD)
Amendment 50 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – introductory part
Article 76 – paragraph 1 – subparagraph 1 – introductory part
Without prejudice to national laws, regulations or administrative provisions on the remuneration of certain services, the criteriaon on which contracting entities shall base the award of contracts shall be one of the following:the most economically advantageous tender.
Amendment 51 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point a
Article 76 – paragraph 1 – subparagraph 1 – point a
Amendment 52 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – point b
Article 76 – paragraph 1 – subparagraph 1 – point b
Amendment 53 #
Proposal for a directive
Article 76 – paragraph 1 – subparagraph 2
Article 76 – paragraph 1 – subparagraph 2
Amendment 55 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 1
Article 76 – paragraph 2 – subparagraph 1
Amendment 56 #
Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – introductory part
Article 76 – paragraph 2 – subparagraph 2 – introductory part
Those criteria shall include in addition to the price or costs referred to in point (b) ofontracting entity shall identify the most economically advantageous tender in accordance with paragraph 1, otherbased on criteria linked to the subject-matter of the contract in question, such as. In addition to price and costs, evaluated with a cost- effectiveness approach only, including the determination of life cycle costs according to the conditions set out in Article 77, such criteria shall include:
Amendment 61 #
Proposal for a directive
Article 76 – paragraph 3
Article 76 – paragraph 3
Amendment 62 #
Proposal for a directive
Article 76 – paragraph 4
Article 76 – paragraph 4
4. Award criteria shall not confer an unrestricted freedom of choice on the contracting entity. They shall ensure the possibility ofensure effective competition and shall be accompanied by requirements which allow the information provided by the tenderers to be effectively verified. Contracting entities shall verify effectively, on the basis of the information and proof provided by the tenderers, whether the tenders meet the award criteria.
Amendment 63 #
Proposal for a directive
Article 76 – paragraph 5 – subparagraph 1
Article 76 – paragraph 5 – subparagraph 1
Amendment 64 #
Proposal for a directive
Article 76 – paragraph 5 – subparagraph 2
Article 76 – paragraph 5 – subparagraph 2
Amendment 65 #
Proposal for a directive
Article 76 – paragraph 5 – subparagraph 4
Article 76 – paragraph 5 – subparagraph 4
The relative weighting or order of importance shall be specified, as appropriately, in the notice used as a means of calling for competition, in the invitation to confirm interest, in the invitation to tender or to negotiate, or in the specifications.
Amendment 66 #
Proposal for a directive
Article 77 – paragraph 3 – subparagraph 1
Article 77 – paragraph 3 – subparagraph 1
Whenever a common methodology for the calculation of life-cycle costs is adopted as part of a legislative act of the Union, including by delegated acts pursuant to sector specific legislation, it shall be applied where life-cycle costing is included inin accordance with the award criteria referred to in Article 76 (1).
Amendment 67 #
Proposal for a directive
Article 79 – paragraph 1 – introductory part
Article 79 – paragraph 1 – introductory part
1. The contracting entity shall request economic operators to explain the price or costs charged, where all of the following conditions are fulfilled:the price or the cost charged is more than 25 % less than the average price or average costs charged in the other tender documents.
Amendment 68 #
Proposal for a directive
Article 79 – paragraph 1 – point a
Article 79 – paragraph 1 – point a
Amendment 69 #
Proposal for a directive
Article 79 – paragraph 1 – point b
Article 79 – paragraph 1 – point b
Amendment 70 #
Proposal for a directive
Article 79 – paragraph 1 – point c
Article 79 – paragraph 1 – point c
Amendment 72 #
Proposal for a directive
Article 79 – paragraph 2
Article 79 – paragraph 2
2. Where tenders appear to be abnormally low for other reasons, contracting entities maywill also request such explanations.
Amendment 73 #
Proposal for a directive
Article 79 – paragraph 3 – introductory part
Article 79 – paragraph 3 – introductory part
3. The explanations referred to in paragraphs 1 and 2 mayrelate in particular relate to:
Amendment 74 #
Proposal for a directive
Article 79 – paragraph 3 – point d
Article 79 – paragraph 3 – point d
(d) compliance, at least in 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 XIV or, where not applicable, with other provisions ensuring an equivalent level of protection;
Amendment 80 #
Proposal for a directive
Article 81 – paragraph 3
Article 81 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liability. main contractor's and subcontractors' liability. Member states shall provide for a system of joint and several liability down the sub- contracting chain. The principal economic operator and any subcontractor involved in doing work on a public contract shall be jointly and severally liable for any liability which arises from the failure by a subcontractor to comply with provisions relating to fundamental rights, health and safety requirements, social rules and standards, employment and working conditions, health and safety at workplace and social security, as set out by EU and national laws, regulations or administrative provisions, collective agreement and contracts, and international labour law provisions listed in Annex XI, that apply in the place where the work, service or supply is performed. Member States may provide for more stringent liability rules under national law.
Amendment 250 #
Proposal for a directive
Article 2 – point 4 – point a
Article 2 – point 4 – point a
(a) It is established for or 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 activitynd involves itself in economic activity, providing goods and services on the market, does not have the purpose of meeting needs in the general interest, not having an industrial or commercial character;
Amendment 254 #
Proposal for a directive
Article 2 – point 4 – point c
Article 2 – point 4 – point c
(c) it is financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law; For the purposes of this Directive, the definition of a ‘public body’ does not include companies listed on the stock market or companies which they control directly or indirectly or with which they are directly or indirectly linked;
Amendment 258 #
Proposal for a directive
Article 2 – point 10
Article 2 – point 10
(10) "supply contracts" means contracts having as their object the purchase, lease, rental or hire-purchase, with or without an option to buy, of products, including via agencies. A supply contract may include, as an incidental matter, siting and installation operations;
Amendment 270 #
Proposal for a directive
Article 4 – paragraph 2 – subparagraph 1
Article 4 – paragraph 2 – subparagraph 1
2. Rights which have been granted by means of a tender procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective and non-discriminatory award criteria shall not constitute "special or exclusive rights" within the meaning of point 6 of Article 2.
Amendment 308 #
Proposal for a directive
Article 19 – paragraph 1 – point b
Article 19 – paragraph 1 – point b
(b) legal and arbitration and conciliation services;
Amendment 370 #
Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point b
Article 21 – paragraph 3 – subparagraph 1 – point b
(b) at least 9100 % 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 432 #
Proposal for a directive
Article 27 – paragraph 1
Article 27 – paragraph 1
1. Contracts intended to enable an activity mentioned in Articles 5 to 11 to be carried out shall not be subject to this Directive if the Member State or the contracting entities having introduced the request pursuant to Article 28 can demonstrate that, in the Member State or relevant sectors or segments in which it is performed, the activity is directly exposed to competition on markets to which access is not restricted; nor shall design contests that are organised for the pursuit of such an activity in that geographic area be subject to this Directive. Such competition assessment, which will be made in the light of the information available to the Commission and for the purposes of this Directive, is without prejudice to the application of competition law.
Amendment 434 #
Proposal for a directive
Article 27 – paragraph 2 – subparagraph 1
Article 27 – paragraph 2 – subparagraph 1
2. For the purposes of paragraph 1, the question of whether an activity is directly exposed to competition requires that the relevant product market and the relevant geographic market be defined. The relevant product market shall be decided on the basis of criteria that are in conformity with the provisions on competition of the Treaty; those may include the characteristics of the goods or services concerned, the existence of alternative goods or services considered to be substitutable on the supply side or demand side, the prices and the actual or potential presence of more than one supplier of the goods or provider of the services in question. The relevant geographic market, on the basis of which exposure to competition is assessed, shall consist of the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because, in particular, conditions of competition are appreciably different in those areas.. This assessment shall take account in particular of the nature and characteristics of the products or services concerned, of the existence of entry barriers or of consumer preferences, of appreciable differences of the undertakings' market shares between the area concerned and neighbouring areas or of substantial price differences.
Amendment 437 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 1
Article 28 – paragraph 1 – subparagraph 1
1. Where a Member State or, where the legislation of the Member State concerned provides for it, a contracting entity considers that, on the basis of the criteria set out in Article 27(2) and (3), a given activity is directly exposed, in whole or in part, including as regards individual sectors or segments, to competition on markets to which access is not restricted, it may submit a request to establish that this Directive does not apply to the award of contracts or the organisation of design contests for the pursuit of that activity, or the individual sector or segment thereof.
Amendment 439 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2
Article 28 – paragraph 1 – subparagraph 2
Requests shall be accompanied by a reasoned and substantiated position adopted by an independent national authority that is competent in relation to the activity concerned, or the individual sector or segment thereof. This position shall thoroughly analyse the conditions for the possible applicability of Article 27(1) to the activity concerned in accordance with its paragraphs 2 and 3. Or.
Amendment 441 #
Proposal for a directive
Article 28 – paragraph 2 – subparagraph 1
Article 28 – paragraph 2 – subparagraph 1
Upon request submitted in accordance with paragraph 1 of this Article, the Commission may, by way of an implementing decision adopted within the periods set out in paragraph 4 of this Article, establish whether an activity referred to in Articles 5 to 11,or the individual sector or segment thereof, is directly exposed to competition on the basis of the criteria set out in Article 27. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 100(2).
Amendment 443 #
Proposal for a directive
Article 28 – paragraph 2 – subparagraph 2 – introductory part
Article 28 – paragraph 2 – subparagraph 2 – introductory part
Contracts intended to enable the activity concerned, or the individual sector or segment thereof, to be carried out and design contests that are organised for the pursuit of such an activity, or the individual sector or segment, shall cease to be subject to this Directive in any of the following cases:
Amendment 444 #
Proposal for a directive
Article 28 – paragraph 4
Article 28 – paragraph 4
4. Where an activity, or an individual sector or segment thereof, in a given Member State is already the subject of a procedure under paragraphs 1, 2 and 3, further requests concerning the same activity, or individual sector or segment thereof, in the same Member State before the expiry of the period opened in respect of the first request shall not be considered as new procedures and shall be treated in the context of the first request.
Amendment 566 #
Proposal for a directive
Article 48 – paragraph 1 – subparagraph 2
Article 48 – paragraph 1 – subparagraph 2
Member States may rendeprovide for the use of electronic catalogues mandatory in connection with certain types of procurementservice and supply contracts. This article does not apply to public works contracts.
Amendment 573 #
Proposal for a directive
Article 51 – paragraph 2 – subparagraph 2
Article 51 – paragraph 2 – subparagraph 2
However, where the conduct of the procurement procedures and the performance of the ensuing contracts is carried out by more than one of the participating contracting entities, each shall continue to be responsible for fulfilling its obligations pursuant to this Directive in respect of the stages it conducts. The Member States shall, in accordance with their own national law and in compliance with Community law, lay down the conditions governing the implementation of this article.
Amendment 625 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2
Article 55 – paragraph 1 – subparagraph 2
Contracting entities requiring a specific label shall accept all equivalent labels, i.e. those based on the same assessment criteria and measurement methods, that fulfil the requirements of the label indicated by the contracting entities. For products that do not bear the label, contracting entities shall also accept a technical dossier of the manufacturer or other appropriate means of proof.
Amendment 652 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1
Article 59 – paragraph 1 – subparagraph 1
Contracts may be subdivided into homogenous or heterogeneous lots. For contracts the value of which is equal to or exceeds the thresholds laid down in Article 12, the contracting entity shall provide, in the contract notice or in the invitation to confirm interest, specific clarification of its reasons relating to the decision on whether or not to divide the contract into lots. Article 13(7) applies.
Amendment 671 #
Proposal for a directive
Article 65 – paragraph 3
Article 65 – paragraph 3
3. Calls for competition within the meaning of Article 39(2) shall be published in full in an official language of the Union as chosen by the contracting entity. That language version shall constitute the sole authentic text. A summary of the important elements of each notice shall be published in the other official languagesEnglish.
Amendment 685 #
Proposal for a directive
Article 70 – paragraph 6
Article 70 – paragraph 6
Amendment 687 #
Proposal for a directive
Article 70 – paragraph 7
Article 70 – paragraph 7
Amendment 689 #
Proposal for a directive
Article 73 – paragraph 1 – subparagraph 1
Article 73 – paragraph 1 – subparagraph 1
Where the objective rules and criteria for the exclusion and selection of economic operators requesting qualification in a qualification system include requirements relating to the economic and financial capacity of the economic operator, or to its technical and professional abilities, the economic operator may where necessary rely on the capacity of other entities, whatever the legal nature of the link between itself and those entities. In this case the economic operator shall prove to the contracting entity that those resources will be available to it throughout the period of the validity of the qualification system, for example by producing an undertaking by those entities to that effect. In the case of economic and financial standing, cContracting entities may require that the economic operator and those entities are jointly liable for the execution of the contract.
Amendment 783 #
Proposal for a directive
Article 79 – paragraph 1 – point a
Article 79 – 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 785 #
Proposal for a directive
Article 79 – paragraph 1 – point b
Article 79 – paragraph 1 – point b
Amendment 822 #
Proposal for a directive
Article 80
Article 80
Contracting entities may lay down special conditions relating to the performance of a contract, provided that they are indicated in the call for competition or in the specifications. Those conditions may, in particular, concern social and environmental considerations. They may also include the requirement that economic operatMember States may provide fors foreseems of compensations fo to cover risks of price increases that are the result of price fluctuations (hedging)which are impossible to foresee when the tender is submitted and that could substantially impact the performance of a contract.
Amendment 836 #
Proposal for a directive
Article 81 – paragraph 2
Article 81 – paragraph 2
2. Member States mayshall provide that, at the request of the subcontractor, with the consent of the main contractor and where the nature of the contract so allows, the contracting entity shall transfer due payments directly to the subcontractor for services, supplies or works provided to the main contractor. In such case, Member States shall put in place appropriate mechanisms permitting the main contractor to object to undue payments. The arrangements concerning that mode of payment shall be set out in the procurement documents.
Amendment 845 #
Proposal for a directive
Article 81 – paragraph 3
Article 81 – paragraph 3
3. Paragraphs 1 and 2 shall be without prejudice to the question of the principal economic operator's liabilitymain contractor's and subcontractors' liability. Member States shall provide for a system of joint and several liability down the sub- contracting chain. The principal economic operator and any subcontractor involved in doing work on a public contract shall be jointly and severally liable for any liability which arises from the failure by a subcontractor to comply with provisions relating to fundamental rights, health and safety requirements, social rules and standards, employment and working conditions, health and safety at workplace and social security, as set out by EU and national laws, regulations or administrative provisions, collective agreement and contracts, and international labour law provisions listed in Annex XIV, that apply in the place where the work, service or supply is performed. Member States may provide for more stringent liability rules under national law.