The EU's procurement regime sets out rules to achieve
transparency and equal treatment for all tenderers to ensure that
public contracts are awarded to the tender offering best value for
money.
The package of amendments was proposed by the Commission in May
2000, but the Commission, Parliament and Council of Ministers then
failed to reach agreement on the details.
Today, Internal Market Commissioner Frits Bolkestein praised
yesterday's consensus among key representatives of the Parliament
and Council of Ministers.
"Public procurement accounts for around 14% of the Union's GDP,"
said Bolkestein, "so modernising it and opening up procurement
markets across borders is crucial to Europe's competitiveness, to
giving taxpayers high quality and good value for money and to
creating new opportunities for EU businesses."
Bolkestein endorsed the agreement reached on the circumstances
in which contracting authorities could take social and
environmental criteria into account in attributing
contracts, which had been one of the major sticking points in
the original proposal.
He said yesterday's compromise managed to avoid giving scope for
"arbitrary and unfair contract awards based on issues unconnected
with the works or services to be provided."
Objectives
The legislative package, which was based on extensive
consultations with contracting authorities and businesses, has two
main objectives.
The first is to simplify and clarify the existing Directives.
The second is to adapt them to modern administrative needs, for
example by facilitating electronic procurement and, for complex
contracts, by introducing more scope for dialogue between
contracting authorities and tenderers in order to determine
contract conditions.
The package also excludes telecommunications from the scope of
the legislation, a sector it says is now subject to effective
competition.
With the objective of enhancing transparency in the award
process and of combating corruption and organised crime, the
legislative package also includes measures designed to make for
greater clarity in the criteria determining the award of the
contract and the selection of tenderers.
It was principally over some of these measures and in particular
the ways in which social and environmental criteria can be taken
into account, that the conciliation procedure was necessary.
Conciliation procedures take place when the European Parliament,
the Council and the Commission have been unable to reach full
agreement on a Commission proposal for legislation, but where
enough common ground exists to suggest that such agreement might be
achievable.
The agreement reached by the conciliation committee will now
need to be ratified by a plenary session of the Parliament and by
the Council.
Social and environmental criteria
The text agreed takes current law as interpreted by the Court of
Justice in a case known as the Finnish buses case as its starting
point.
In that case, the Court ruled that the contracting authority
must award a contract to the tenderer whose tender is the most
economically advantageous, but that it may nevertheless take
environmental criteria (in the Finnish buses case, exhaust
emissions and noise levels) into account when deciding which bids
to take into consideration (i.e. the award criteria).
However, those criteria must be expressly mentioned in the
contract documents or the tender notice, must be connected with the
subject-matter of the contract, must not give the contracting
authority an unrestricted freedom of choice, and must comply with
all the fundamental principles of Community law, in particular the
principle of non-discrimination.
The text would also allow contracting authorities to require
specific environmentally friendly production methods – such as
organic production for foodstuffs for schools.
Under the compromise text agreed, similar conditions would be
attached to the use of social criteria in practice, that would
mean, for example, that contracting authorities could take into
account, for the construction of a public building, accessibility
criteria for people with disabilities.
The text would allow companies who have not complied with EU
legislation in economic, social or environmental fields to be
excluded from tendering processes.
Electronic signatures
The text agreed also encourages the use of electronic signatures
and allows Member States to require that electronically transmitted
tenders be accompanied by the electronic equivalent of handwritten
signatures, that is, a "qualified electronic signature".
The integrity of data and the confidentiality of tenders are
provided for elsewhere in the Directives and do not depend on the
choice of whether to require electronic signatures and in which
form.
