Overly ambitious proposals may undermine the aims of the proposed revision of public procurement directives: simplification and legal certainty. This is the gist of the message MEPs delivered to rapporteur Marc Tarabella (S&D, Belgium), on 18 September, with the Committee on the Internal Market’s (IMCO) first review of amendments to the texts, presented by the European Commission in December 2011.
In the light of the 2,797 amendments to his reports on the two draft directives on public procurement (one on general services and the other on network services), the session focused on five issues in line with the Council’s method: 1. facilitation of procedures; 2. strategic use of public procurement; 3. reduction of red tape; 4. dematerialisation of procedures; and 5. SME access.
The most controversial subject was the rapporteur’s concept of a “socially sustainable production process” relative to the subject matter of the public contract, which should be present in public procurement procedures to guarantee respect for workers’ health and safety and social standards (4427). In his view, this would give contracting authorities the opportunity to set sustainability criteria for the organisation and experience of workers implementing the contract, safety and environmental performance. The rapporteur’s left-of-centre colleagues support this purpose but those from other groups are critical of it. Heide Rühle (Greens-EFA, Germany) warned against “the use of concepts not defined in law, which would increase legal uncertainty” and the ALDE Liberals pointed out that only social criteria set in national legislation should be used, not those found in International Labour Organisation (ILO) conventions.
Another point of disagreement is the report’s recommendation for evaluation of such sustainability criteria upon selection and award of a public contract solely on the principle of the most economically advantageous tender and not on the principle of the lowest price (mentioned in the Commission’s proposal). A number of amendments demand that both these principles be maintained, arguing that the latter is indispensable for standard contracts. For Malcom Harbour (ECR, UK), a definition of the most economically advantageous tender “must be based on strictly economic criteria”.
“must be based on strictly economic criteria”.
SUBCONTRACTING “LOCKED UP”
The rules for subcontracting in the report, stricter than those in the Commission’s proposal, also sparked opposition. The obligation for bidders to state in their tender the volume that may be subcontracted would lead to excessive bureaucracy and should be a matter for national legislation, argued the Liberals, while the Greens maintained that checking possible abuse should lie with the police, not with contracting authorities. Several MEPs said it would be impossible to enforce the introduction of a maximum of three consecutive subcontractors, as suggested by the rapporteur. “Such a restriction would not stand up in any court,” predicted Frank Engels (EPP, Luxembourg), who was far more critical of the report than the majority of his group.
MEPs were also divided on the idea of improving SME access to public procurement through the obligation to divide contracts worth more than €500,000 into lots. Some suggested that this should be a possibility for contract authorities, but that they should not be bound by excessively cumbersome procedures. According to the Commission, non-compliance with this rule should be justified (‘apply or explain’ principle).
The rapporteur pledged to “try to find compromise amendments in order to take forward the debate” – no small task. A second meeting on the other five subjects will be held on 5 November.
Written by Sophie Mosca on Europolitics.info