In 1996, the European Commission published a Green
Paper entitled "Public Procurement in the European
Union: Exploring the Way Forward", which drew
almost 300 responses from various economic sectors,
the Member States and institutions.
The main theme to emerge from the Green Paper debate
is the need to simplify the legal framework and adapt
it to the new electronic age while maintaining the
stability of its basic structure. The Commission recognised
the need to simplify the existing legal framework
by clarifying provisions which were obscure or complex
and by amending legislation where the problems to
be addressed could not be solved through interpretation
of the provisions. In addition, it announced the consolidation
of the three "classic Directives" and then
their merger into a single text.
This proposal meets these objectives.
It was announced by the Commission in its Work Programme
for 2000. It falls within the exclusive competence
of the Community regarding the recasting of legislation
for completion of the internal market based on Article
95 of the EC Treaty. What is more, it is in line with
the conclusions of the Lisbon European Council calling
for economic reforms as a means of completing the
internal market and making it fully operational.
To facilitate the presentation of the proposal, the
amendments are grouped into two parts:
· simplification of the Directive; and
· amendments to the legal framework.
The Explanatory Memorandum is followed by analysis
of the recitals and of the Articles.
Simplification
- Restructuring and Clarification of the Directive
<Top>
Following the debate on the Green Paper entitled
"Public Procurement in the European Union: Exploring
the Way Forward", and in the exercise of its
responsibilities as "guardian of the Treaty",
the Commission found some inconsistencies between
the three public sector Directives, namely Directive
92/50/EEC relating to the coordination of procedures
on the award of public service contracts, Directive
93/36/EEC coordinating procedures for the award of
public supply contracts and Directive
93/37/EEC concerning the coordination of procedures
for the award of public works contracts. These inconsistencies
are not justified by the specific features of the
respective Directives and must be removed. This is
prompted by the same concern about clarification expressed
by the Commission in its Communication on Concessions
in Community law, which does not prejudge any legislative
proposal specifically on concessions.
By way of making the texts consistent, the proposal
also has the effect of sometimes rendering applicable
to all contracts provisions which, without any particular
justification, are currently applicable to some contracts
only (see, for example, Article 3). What is more,
the Directives will be understood and applied more
easily if the current Directives are restructured,
though without altering the legal obligations which
they impose.
The proposed simplification therefore consists in
eliminating inconsistencies and restructuring the
existing texts.
This proposal is presented in the form of a single
text for supply, works and service contracts. At the
same time, it provides a means of proposing that the
public sector Directives be amended, simplified and
combined in a single text. This approach will make
it easier to maintain consistency during the legislative
process, and also offers real advantages for users.
While it is true that Directives have to be transposed
into national legislation, economic operators and
contracting authorities often refer to the texts of
Directives, especially for the interpretation of national
texts. There will thus no longer be any need to refer
to different texts largely dealing with the same questions
and comprising, respectively, 35 (supplies),
37 (works) and 45 (services) Articles, as a single
text will be available which is more clearly structured
and comprises 82 Articles. This reduction in the number
of Articles reflects in particular the presence of
identical provisions in the three Directives.
Substantive
Amendments <Top>
The emergence of the information society, the gradual
withdrawal of the State from certain economic activities,
and increased budgetary austerity are leading the
Commission to propose amendments to the existing legal
framework. These have a threefold objective: modernisation,
simplification and flexibility; modernisation to take
account of new technologies and changes in the economic
environment, simplification to lighten rules which
are sometimes too detailed and complex, and flexibility
to respond better to the criticism of procedures which
are excessively rigid and do not meet the needs of
public purchasers.
The Commission has identified seven areas in which
this threefold objective has prompted it to propose
substantive amendments.
These are:
· the introduction of electronic purchasing
mechanisms, and their consequences in terms of reducing
the length of an award procedure;
· the introduction of a new case for the use
of the negotiated procedure, which - for particularly
complex contracts - permits a "dialogue"
between the contracting authority and the different
candidates, while ensuring that there is competition
and compliance with the principle of equality of treatment;
· the possibility for public purchasers of concluding
so-called "framework agreements", not all
of whose conditions are fixed, and on the basis of
which contracts can be awarded without applying all
the obligations of the Directive to each one;
· clarification of provisions relating to technical
specifications: this will encourage effective competition
through the participation of the greatest possible
number of tenderers and, in particular, innovative
businesses;
· a strengthening of the provisions relating
to award and selection criteria;
· a simplification of thresholds; and
· the introduction of a common procurement vocabulary.
Moreover, following the amendments proposed by the
Commission concerning the "Utilities Directive"
93/38/EEC coordinating the procurement procedures
of entities operating in the water, energy, transport
and telecommunications sectors, in particular the
amendments to its scope in the light of the gradual
liberalisation in those sectors, it is also necessary
to amend some provisions contained in the public sector
Directives.
What is more, the provisions of this Directive are
intended to facilitate the implementation of the rules
and principles of the Treaty. Failure to comply with
Directives may in some cases constitute a breach of
these rules and principles of the Treaty.
The
Introduction of Electronic Purchasing Mechanisms
<Top>
The emergence of the new Information and Communication
Technologies (ICTs) offers promising opportunities
as regards the efficiency, transparency and opening-up
of public procurement. In its "Communication
on Public Procurement in the European Union"
of 11 March 1998, the Commission set itself a very
ambitious target: 25% of all procurement transactions
should take place using electronic means by the year
2003. Against this background, it called on all the
players involved to develop such a system.
BiP GUIDANCE
19/2000
This approach was endorsed by a large number of contributions
and responses, particularly from the European Parliament
and the Committee of the Regions.
It also featured in the Presidency conclusions from
the Lisbon European Council of 23 and 24 March 2000,
in which the Commission, the Council and the Member
States were requested "to take the necessary
steps to ensure that it is possible by 2003 for Community
and government procurement to take place online".
Under current legislation on public procurement it
is possible, under certain conditions, to use electronic
means for the submission of tenders. However, there
are procedures for which the use of electronic means
has not been mentioned (i.e. transmission of notices)
or is not authorised (i.e. accelerated procedure).
As things stand, moreover, this possibility is left
to Member States, which are able to authorise the
use of means other than direct or postal delivery.
The proposal is aimed at enabling each entity to decide
in future to use electronic means to the exclusion
of all others.
While some fear that businesses lagging behind in
terms of computer equipment could thus be precluded
from public contracts which are awarded by electronic
means, this situation is set to change rapidly. It
would therefore not appear necessary to provide a
transitional period during which the parallel use
of traditional means would be compulsory, especially
as business will benefit
de facto from a transitional period by virtue
of the time-limits for adoption and transposition
put forward in this proposal.
Permitting the use of electronic means in the area
of public procurement requires
inter alia that their use for communication
and information exchange be put on an equal footing
with other, more traditional means with the aim of
encouraging greater recourse to electronic means in
the future.
Finally, electronic contract award systems should
yield a significant time saving in the course of a
procedure. Electronic transmission will make it possible
to reduce the time limit of 12 days which is necessary
at present, except in the case of accelerated procedures,
for transmission to the Publication Office and publication
in the Official Journal.
It will thus be possible to reduce the maximum time
limit for publication from 12 days to 5.
The introduction of electronic means has also highlighted
the difficulty which may result from laws freezing
the use of certain technical facilities, such as the
TED database.
Given the rapid development of the technologies used,
this explicit reference in the legislation means that
regular updating will be required. To lessen these
difficulties involved in the adaptation of the legislation,
this proposal no longer mentions specific means of
publication in the operative provisions of the Directive.
The provisions relating to more detailed technical
specifications concerning publication are grouped
together in a new Annex (Annex VIII).
In order to bring these provisions more quickly into
line with technological developments, it is proposed
to delegate to the Commission, assisted by the Committee
provided for in Article 76, powers to amend this Annex
so as to adapt it in step with technical progress.
The
Introduction of a New Flexibility Allowing a "Dialogue"
Between the Contracting Authority and Candidates
<Top>
In its aforementioned Communication, the Commission
records that "in the case of particularly complex
contracts in areas that are constantly changing, such
as high technology, purchasers are well aware of their
needs but do not know in advance what is the best
technical solution for satisfying those needs. Discussion
of the contract and dialogue between purchasers and
suppliers is therefore necessary in such cases. But
the standard procedures laid down by the public sector
Directives (Directives 93/36/EEC (supplies), 93/37/EEC
(works), and
92/50/EEC (services)) leave very little scope for
discussion during the award of contracts and are therefore
regarded as lacking in flexibility in situations of
this type".
It should be noted that, in the light of the case
law of the Court of Justice, such a dialogue is not
allowed under the current open and restricted procedures.
Furthermore, the current provisions on the use of
a negotiated procedure with prior publication are
limited to exceptional situations and must, in accordance
with the Court's established case law, be interpreted
restrictively. The present rules do not therefore
provide for this possibility.
However, certain purchases may be particularly complex:
the contracting authorities may be objectively unable
to define which technical, legal or financial means
would best meet their needs. The contracting authorities
may also want to allow innovative solutions or may
be unable, objectively, to assess what the market
has on offer in terms of technical or financial solutions.
A case in point is when a contracting authority is
unable, objectively, to assess in advance whether
the most economically advantageous solution would
involve public funding, a risk-sharing model or a
purely private sector solution.
The Committee of the Regions, in its opinion, also
cited the example of health sector contracts (surgical
equipment and medical imaging devices).
The contracting authorities do of course have certain
means at their disposal to deal with such situations:
under the current Directives, they are free to conduct
a "technical dialogue" followed by a "normal"
award procedure, or to award a service contract followed
by a contract for supplies, or to hold a design competition
followed by the award of a contract for services,
supplies or works. However, as pointed out during
the debate launched by the Green Paper and underlined
by the European Parliament during the adoption of
Directives
97/52/EC and 98/4/EC, these possibilities are not
always sufficient. In the case of a technical dialogue,
a company helping a contracting authority to define
its specifications by way of that dialogue cannot
participate in the subsequent award procedure based
on such specifications to the extent that this would
be to the detriment of fair competition, as expressed
in the 10th recital of Directive
97/52/EC. Nor is it permissible in the case of split
contracts (research contract or design contest) for
one and the same company to produce the design and
carry out the project.
Without calling the existing possibilities into question,
it would appear appropriate to introduce provisions
enabling a dialogue to take place in a single award
procedure which will result in the contract being
carried out; this should incorporate a phase during
which the specifications would be established on the
basis of negotiations with the selected participants,
followed by the submission of tenders by the participants
in the negotiations and then by the award of the contract
to the best tender.
As regards the choice of arrangements, the proposal
departs from the conclusions drawn by the Commission
in its Communication. The Commission had undertaken
to amend the current texts of the Directives "with
a view to making procedures more flexible and allowing
dialogue in the course of such procedures, and not
just in exceptional circumstances. It will propose
a new standard procedure, the 'competitive dialogue',
which would operate alongside open and restricted
procedures and would replace the existing negotiated
procedure with prior publication of a notice. The
conditions and the rules under which contracting authorities
would be allowed to use this new procedure and the
details of the procedure itself will have to be spelt
out and will be based inter alia on the principles
of transparency and equal treatment".
Following consultations, it was felt that it would
be more appropriate not to introduce an entirely new
procedure: the choice made was to extend the applicability
of the negotiated procedure with prior publication
to include these cases. This will avoid having a multiplicity
of procedures.
Given the risks of a particular candidate being favoured,
the general principles of equality of treatment and
transparency can be safeguarded only by way of appropriately
supervising the dialogue process through to the award
of the contract.
In this new case, the negotiated procedure will operate
as follows in practice:
The contracting authority publishes a notice inviting
interested parties to participate. In the notice,
the contracting authority defines the objectives it
wishes to obtain. It also states the qualitative selection
criteria and award criteria. These criteria remain
unchanged throughout the procedure.
The contracting authority thereafter has two options.
It may:
(a) decide that it wishes to receive only the normal
documentation concerning the candidate's personal
position and their technical, economic and financial
capacity. The qualitative selection criteria must
be appropriate and based on the object of the contract
concerned; or
(b) decide that this documentation must be accompanied
by an "outline solution",
i.e. a preliminary indication of the solution which
the candidate in question intends to propose to meet
the contracting authority's needs and requirements.
Candidates may also have to give an estimate of the
cost of preparing the outline solution.
The contracting authority has to announce its choice
between (a) and (b) in the notice.
After receiving the applications, the contracting
authority chooses the participants in the negotiations.
Selection is based on the previously established qualitative
selection criteria (economic, financial and technical
capacity, following the usual verification of the
information relating to the candidate's personal position).
A further, optional stage is possible, i.e. the contracting
authority, after having selected candidates in the
qualitative selection procedure on the basis of the
information referred to above at (a), may then request
these candidates to submit an "outline solution"
to form the basis for further negotiations.
In all cases, the contracting authority then consults
the selected participants to examine how its needs
can best be satisfied. In order to take into account
the legitimate concerns expressed by industry regarding
the appropriation of other people's ideas, it has
been laid down that, during such consultations, the
contracting authority shall not divulge to any candidate
the solutions proposed by, or any confidential information
relating to, other candidates.
At the end of the negotiations, the contracting authority
defines the final technical specifications, either
by retaining one of the solutions presented by one
of the participants or by combining more than one
of the solutions presented. Moreover, it goes without
saying that, in doing so, the contracting authority
must observe the law on the protection of intellectual
property.
Once this stage is completed, the contracting authority
invites the participants to submit a formal tender.
When the contracting authority invites the participants
in the negotiations to submit their tenders, it cannot
invite fewer than three to do so - provided a sufficient
number of candidates satisfy the qualitative selection
criteria. A possible limitation on this number is
set on the basis of the qualitative selection criteria.
The tenders will then be evaluated on the basis of
the award criteria, and the contract will be awarded,
there being no further scope for negotiation.
The
Introduction of More Flexible Purchasing Techniques
Using Framework Agreements <Top>
In its aforementioned Communication (point 2.1.2.3),
the Commission highlighted the need to revamp the
Directives with a view to permitting the use of flexible
purchasing techniques enabling purchasers to benefit
from product developments and price changes. It pointed
out that, on markets which are constantly changing,
such as the markets for information technology products
and services, it is not economically justifiable for
public purchasers to be tied to fixed prices and conditions.
Public purchasers therefore increasingly feel the
need to manage their procurement on a long-term basis.
The essential features of purchases of this nature
should consequently offer the necessary flexibility.
Framework agreements meet this requirement.
Framework agreements are not public contracts within
the meaning of the Directives; they are not contracts
to the extent that they do not lay down specific terms
and thus cannot give rise to performance as a contract
does.
By contrast, it is pointed out that contracts with
several economic operators (such as widely used purchase
order contracts) are public contracts within the meaning
of the Directives (see Article 1(2)). They must be
awarded in accordance with those provisions if the
thresholds are exceeded.
Framework agreements are used, in the case of repetitive
purchases, to choose certain economic operators who,
when the time comes, will be able to meet the purchaser's
needs.
This form of "agreement" between the contracting
authority and economic operators cannot, at present,
exempt the contracting authority from the obligation
to comply with the procedures as per the Directive
for each contract awarded
- following an order - if these contracts exceed the
thresholds. However, in view of the increasing use
being made of this arrangement, it appeared necessary
to the Commission, in its aforementioned Communication
on public contracts, to allow contracts based on such
agreements to be exempted, under certain conditions,
from the obligation to apply the normal procedures
under the Directive. Such agreements not only enable
purchases to be made under better conditions, in keeping
with the constant development of the market for certain
products and services, but also avoid repetition of
procedures each time in the case of repetitive purchases.
In this way, contracting authorities would no longer
be obliged to apply the normal procedures under the
Directive for each contract based on such an agreement.
However, this possibility is subject to a double
condition.
· The framework agreement must itself be awarded
in conformity with the Directive. In other words,
the contracting authority, if it wishes to avail itself
of this possibility, must publish a notice, apply
qualitative selection criteria in accordance with
the Directive and award the framework agreement -
to several service providers - applying objective
criteria announced in advance.
· Contracts based on a framework agreement must
be awarded in accordance with provisions aimed at
ensuring compliance with the principle of equality
of treatment when choosing the tenderer. These provisions
are the subject of a new Article (Article 32). The
choice shall be made after the reopening of competition
among the economic operators who are party to the
framework contract.
When a contracting authority has to make a purchase,
it consults those economic operators party to the
agreement who are likely to be able to meet its requirements.
The economic operators submit specific tenders, offering
scope to adjust the initial tender in line with market
developments, such as technical obsolescence or significant
price changes.
The arrangements are governed by provisions guaranteeing
equality of treatment of tenderers.
Such agreements do not foreclose the market to competition
and in particular to new entrants. Contracting authorities
are always free to start a new procedure for a public
contract if they wish to enjoy better conditions.
Moreover, it is worth emphasising that as things currently
stand, nothing prevents a contracting authority from
entering into a contract with a single economic operator
for several years.
Accordingly, it may be in the contracting authority's
interest to use a framework agreement for intellectual
services which it will need over a given period (for
example technical assistance) for which it is not
possible to know when the need will arise nor the
size of any task to be performed. When the need arises,
the authority will use a simplified procedure to consult
all the parties to the framework agreement and will
be able to award the contract to the best tenderer.
The proposal also contains a clause concerning anti-competitive
abuses (notably the risk of cartels) and to ensure
effective competition limits the duration of framework
agreements to three years in principle.
It goes without saying that the Treaty rules on competition
are not affected by this buying technique.
Technical
Specifications <Top>
The current provisions on technical specifications
are designed to require public purchasers to define
technical specifications by reference to an exhaustively
listed set of instruments so as to avoid conferring
any advantage on a given economic operator or giving
preference to national production. These instruments
are not only well known, transparent and publicly
available but also represent, as far as possible,
harmonisation of specifications at European or international
level. The most important of these instruments is
the standard - preferably European, international
or, failing that, national. Other instruments which
are more sector-specific (European Technical Approval
for building products, as provided for in Directive
89/106/EEC) have also been retained as possible references.
Application of the provisions of the Directives has
led in certain cases to a situation where standards
have been treated as de facto requirements;
these provisions can be construed as limiting the
buyer's choice to only those products which comply
with the standard.
Such an interpretation does not fit with the notion
of a "reference" according to which other
solutions can be compared to the solution provided
by the standard. In addition, it has also meant that
technical solutions where a standard exists have been
unduly preferred to the detriment of other solutions
and of new technologies. The rapid technological obsolescence
in certain sectors, coupled with the interpretation
that standards are de facto requirements, is
particularly harmful where, by the very nature of
things, the adoption of a standard lags some way behind
technological progress (as is the case in the information
technology field).
Accordingly, there is a need to simplify these provisions
(so as to clarify the extent of the "reference"
obligation and limit referral to provisions specific
to certain sectors, such as telecommunications and
construction), which add to the complexity of the
current texts. These changes will also encourage effective
competition through the participation of the greatest
possible number of tenderers and in particular innovative
businesses.
The proposed changes apply to all purchases of goods,
works and services under the public sector Directives
as well as purchases under the utilities Directives.
This means that the texts of the Directives will be
brought more into line with one another, adding to
the simplification process. These amendments will
enable public purchasers to specify their requirements
also in terms of performance levels, while at the
same time safeguarding what has been
achieved in terms of European standardisation, as
reference to the standards will still be an option.
Strengthening
of Provisions Relating to Award and Selection Criteria
<Top>
The current provisions concerning award criteria
(Article 36(2) of Directive
92/50/EEC, Article 26(2) of Directive 93/36/EEC and
Article 30(2) of Directive
93/37/EEC) stipulate that these criteria must be listed
in the contract notice or in the contract documents,
"where possible" in descending order of
the importance attached to them by the contracting
authority.
As this provision is far from binding as regards
the mention of a descending order of importance, it
is necessary to clarify the scope of the obligation
which flows from it.
What is more, the Commission has concluded from its
investigations of complaints that, even though the
contracting authorities have to establish and set
out a descending order of importance attached to the
award criteria, they still enjoy a considerable margin
of discretion when awarding contracts. In merely stating
a descending order of importance, the contracting
authority retains the option of attaching to the criteria,
at the time of evaluation, a specific weighting, and
hence a relative value, of which the tenderers are
not aware. A possible consequence of this lack of
transparency may be that some contracting authorities
attach an unexpected or unforeseeable importance to
one or more criteria, even after the opening of the
tenders, so as to favour one tenderer or another.
Thus, if there are two criteria, the order of preference
may equally result in 90% or 51% of the relative value
being attached to the first criterion. Also, in the
absence of a general rule making it compulsory to
state the relative weighting of the criteria from
the start of the procedure, it is difficult to keep
a check on the final choice of the contracting authority.
Therefore, it has to be recognised that, at the crucial
stage in the award of a contract, such absence renders
ineffective the rules governing the preceding stages
of the award procedure. All these rules are aimed
at the same objective of ensuring that the rights
of the tenderers are respected, and in particular
that the principles of equality of treatment and transparency
are upheld.
The Directive must therefore be amended so as to
make it compulsory to state the relative weighting
of each criterion at the contract notice stage or
in the contract documents. This weighting may take
different forms (in particular, it may be expressed
as a percentage or in terms of relative share compared
with another criterion) and to ensure a certain flexibility,
may be expressed as a range within which the value
attributed to each criterion shall be stated.
However, it is not always possible to state the relative
weighting of criteria as early as the contract notice
stage. This is liable to be particularly difficult
in the case of complex contracts.
The provisions must provide scope for waiving the
aforementioned obligation.
On the other hand, it has to be ensured that the
weighting is known to all tenderers when they draw
up their tenders.
An exemption is therefore provided for whereby the
relative weighting may be stated, at the latest, in
the invitation to tender (for restricted and negotiated
procedures) or in the invitation to participate in
the dialogue (for negotiated procedures in the case
of complex contracts). In other cases - open procedures
- failure to state the relative weighting right at
the start of the procedure may render the procedure
void.
As regards the selection of tenderers, the proposal
strengthens the legal framework in two respects:
· firstly, it strengthens the instruments for
combating organised crime, corruption and fraud by
introducing an obligation on the part of contracting
authorities to exclude tenderers who have been found
guilty in a definitive judgment of organised crime,
corruption offences or fraud against the financial
interest of the Community. This proposal follows on
from the conclusions of the Tampere summit, the action
plans to combat organised crime and the 1997 Communication
from the Commission on a Union Policy against Corruption;
and
· secondly, it introduces an obligation, in
restricted and negotiated procedures, to apply objective
criteria announced in advance so as not to limit the
number of candidates invited to tender; it thus fills
a gap in the existing operative provisions.
Thresholds
<Top>
The current Directives lay down different thresholds.
Often, it is not easy to establish which threshold
is applicable to a specific public contract.
As far as public contracts falling under Directive
92/50/EEC are concerned, the following thresholds
apply:
· 200 000 for contracts awarded by central and non-central authorities
and relating to the (research and development) services
listed in Annex I A, category 8, and to certain telecommunications
services such as listed in Annex I A, category 5,
with the CPC reference numbers 7524, 7525 or 7526.
In addition, this threshold is applicable to all contracts
relating to the services in Annex I B. It also applies,
finally, to all contracts covered by Article 3(3),
namely contracts financed to more than 50%;
· the equivalent in euro of SDR 130 000 (currently
139 312) is applicable to all contracts awarded by the government
authorities listed in Annex I of Directive 92/50/EEC,
where the contract in question falls under categories
in Annex I A other than those mentioned above (i.e.
category 8 (research and development) and category
5 where the CPC reference numbers are 7524, 7525 or
7526); and
· the equivalent in euro of SDR 200 000 (currently
214 326) is applicable to service contracts awarded by contracting
authorities which are not central authorities, if
the contracts relate to services listed in Annex I
A other than those listed above (i.e. excluding category
8 (R&D) and telecommunications services, with
the CPC numbers 7524, 7525 or 7526).
Two different thresholds apply to works contracts
subject to Directive
93/37/EEC. One is 5 000 000 ecu (now euro), applicable
to works concessions contracts falling under the scope
of Article 2(1), contracts subsidised by more than
50%. All other works contracts are subject to a threshold
of the equivalent in euro of SDR 5 000 000 (currently
5 358 153).
As far as public contracts under Directive 93/36/EEC
are concerned, thresholds are as follows:
· the equivalent in euro of SDR 130 000 (currently
139 312), applicable to supply contracts awarded by the central
government authorities listed in Annex I of the Directive.
In the field of defence, however, this applies only
to contracts relating to the products listed in Annex
II of the Directive; and
· the equivalent in euro of SDR 200 000 (currently
214 326), applicable to all supply contracts awarded by contracting
authorities which are not central government authorities
and to contracts awarded by central government authorities
in the field of defence for products not listed in
Annex II of the Directive.
It follows from the above that these thresholds are
anything but straightforward and user-friendly. There
is thus an urgent need to simplify these thresholds
by reducing the number of different thresholds, removing
all references to "the equivalent in euro of
SDR" and stating all thresholds in euro, up to
the full extent compatible with the Community's international
obligations under the Government Procurement Agreement
(GPA), concluded in the Uruguay Round multilateral
negotiations. As the thresholds will henceforth be
stated in euro, it is necessary to both:
· ensure compliance with our international obligations
through compliance with the GPA thresholds; and
· establish round-figure thresholds, which will
thus not be the straight equivalent of the SDR thresholds.
To this end, the thresholds in euro are rounded to
the nearest one hundred or
ten thousand euro below the thresholds set by the
GPA.
The proposed amendments feature the following thresholds:
· 93/37/EEC: a single threshold of 5 300 000 applicable to all contracts and concessions falling
under its scope; and
· 93/36/EEC and 92/50/EEC: two thresholds, of
130 000 or 200 000, depending on whether the contracting authority has the
status of a central or of a non-central authority;
applicable to all contracts and to design contests
falling under the respective scope of the Directives.
Common
Procurement Vocabulary <Top>
Use of the Common Procurement Vocabulary (CPV) was
the subject of a Commission Recommendation in 1996.
This nomenclature represents a further development
of and an improvement to the CPC and NACE nomenclatures,
in that it is better suited to the specific characteristics
of the public procurement sector. Since 1996, the
CPV has been used systematically in every notice published
in the Supplement to the Official Journal of the European
Communities pursuant to the Directives for identification
of the subject matter of the contracts concerned,
as well as for translation into the 11 official languages;
it has also become an indispensable research criterion
in the selection and identification of contract opportunities.
The use of the CPV alone will make it easier to disseminate
and access information, thus contributing
towards greater transparency and a greater openness
of public procurement in Europe. In parallel with
this revision of the Directives, the CPV will be the
subject of a proposal by the Council and the Parliament.
The latter will then formally adopt it as the Community
nomenclature applicable to public contracts and will
organise its maintenance (arrangements for revision).
Amendments
Due to the Exclusion of the Telecommunications Sector
From the Scope of Directive 93/38/EEC <Top>
Public authorities exercising an activity in the
telecommunications sector are currently subject to
the provisions of Directive 93/38/EEC; as a result,
their purchases for the pursuit of that activity are
excluded from the scope of the public sector Directives.
In parallel with this proposal, the Commission is
also proposing that Directive 93/38/EEC be recast,
one of the aspects concerned being the exclusion of
the telecommunications sector from its scope. If the
public sector Directives were not amended, the proposal
for a new Directive to replace Directive 93/38/EEC
would mean that public authorities would once again
be subject to the public sector Directives as regards
purchases relating to their activity in the telecommunications
sector. However, it would run counter to the logic
of the public procurement Directives if the public
authorities, who, as things stood (even in the absence
of effective competition in the telecommunications
sector), were subject to the more flexible provisions
of Directive 93/38/EEC, were to become subject to
the stricter rules of the public sector Directives,
although they have - on account of liberalisation
- the same profitability incentives as private sector
enterprises, because effective competition has now
been introduced in the sector. It is therefore proposed
that the public sector Directives be amended to ensure
that public authorities continue
to be excluded from the scope of these Directives
as regards purchases related to their activities in
the telecommunications sector (see Article 15 of this
proposal).
Analysis
of the Articles <Top>
Where the amendments made consist in renumbering
or in a renumbering of the Article to which reference
is made, the provisions are regarded as remaining
unchanged in terms of substance. The same applies
to changes in wording which have no effect on the
content and scope of a provision. Therefore, where
the amendments made are of this type, it is pointed
out that the provision is unchanged. As regards structure,
this proposal also includes a table of contents providing
an overview of the restructuring of the texts.
