Coordination of procedures for the award of public contracts in the fields of defence and security

This proposal for a Directive aims to introduce a new European legislative framework for the award of sensitive public supply, public works and public service contracts in the fields of defence and security. It presents mechanisms to increase the flexibility of the contracting authorities and to guarantee the security of information and supply.

PROPOSAL

Proposal for a Directive of the European Parliament and of the Council of 5 December 2007 on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security.

SUMMARY

The purpose of this Directive is to establish a new European legislative framework for the award of sensitive public supply, public works and public service contracts in the fields of defence and security.

In this field, the present Directive is rarely applied by the Member States, which claim that it allows exemptions for public defence contracts. Most defence equipment is purchased on the basis of uncoordinated national contract award procedures and rules. This lack of uniformity opens the door to non-compliance with the principles of the Treaty (transparency, non-discrimination and equal treatment) and impedes the establishment of a European defence equipment market.

On the basis of these facts, Parliament and the Council propose limiting the use of exemptions in the fields of defence and security to exceptional cases. More specifically, they wish to introduce a new legal instrument tailored to the specific nature of this sector, for which special precautions govern the award of contracts.

Scope

The Directive applies to public contracts for: the supply of arms, munitions and/or war material and parts, work, services, components or subassemblies of this type of equipment. It applies more precisely to public contracts with an estimated value excluding VAT equal to or exceeding EUR 137 000, EUR 211 000 and EUR 5 278 000 (according to specific cases).

On the other hand, the Directive does not apply to public contracts governed by different rules and awarded pursuant to an international agreement or a particular procedure of an international organisation, or those awarded in a third country for the deployment of military forces or to conduct or support a military operation outside the European Union (EU).

Proposed measures

The Directive presents measures to increase the flexibility for the contracting authorities and to guarantee the security of information and supply. To achieve this, it proposes three provisions: authorisation of the negotiated procedure with publication without need for justification, the possibility to use the restricted procedure and the competitive dialogue.

It also aims to lay down arrangements on the security of supply, putting in place special measures, contractual requirements and criteria for selecting candidates. Finally, it puts forward a provision to ensure security of information, by imposing safeguards applying to the award procedure itself, the criteria for selecting candidates and the contractual requirements imposed by the contracting authorities.

Procedures and competitive dialogue

In negotiated procedures with publication of a contract notice, the contracting authorities negotiate the tenders with the tenderers in order to adapt them to the requirements and to seek out the best tender. This procedure may be conducted in successive stages to reduce the number of tenders to be negotiated. Recourse to a negotiated procedure without publication is also possible in specific cases provided for by the Directive.

Any economic operator may participate in restricted procedures, if invited by the contracting authorities to present a tender.

If a framework agreement is concluded, the contracting authorities follow the rules of procedure for all phases up to the award of contracts based on that framework agreement.

Finally, where it considers that recourse to the procedures will not enable it to award the contract, the contracting authority may make use of competitive dialogue with the candidates with a view to determining the most economically advantageous tenders.

Security of supply and information

To ensure security of supply, the contracting authority may require the tenderer to include the following in its tender:

• evidence that it will be able to honour its obligations regarding the export, transfer and transit of goods associated with the contract;
• evidence that the organisation and location of its supply chain will allow it to comply with its requirements;
• a commitment to meet additional needs as a result of an emergency, crisis or armed conflict;
• a commitment from its national authorities not to obstruct the fulfilment of any additional needs as the result of an emergency, crisis or armed conflict;
• a commitment to carry out the modernisation or adaptation of the supplies covered by the contract;
• a commitment to notify any change in its organisation or its industrial strategy that may affect its obligations to the authority.

To ensure security of information, the contracting authority may require the tenderer to include the following in its tender:

• proof that the subcontractors are capable of protecting the sensitive information supplied;
• a commitment to provide the same proof for subcontractors employed during the performance of the contract;
• a commitment to keep all sensitive information confidential for the entire duration of the contract and after termination or conclusion of the contract.

The exchange of information is carried out in such a way as to ensure the integrity of data and the confidentiality of tenders.

Selection criteria

The contracting authorities indicate the objective and non-discriminatory criteria they intend to apply and the minimum number of candidates they intend to invite.

Candidates and tenderers convicted for participation in a criminal organisation, money laundering, terrorist financing, corruption, fraud or terrorism are excluded. The same applies for any economic operator who:

• is bankrupt or is being wound up, has suspended business activities, has his affairs administered by the court or has entered into an arrangement with creditors;
• has been convicted of any offence concerning his professional conduct;
• has been guilty of grave misconduct, such as the breach of his obligations regarding security of information during a previous public contract;
• has not fulfilled obligations (social security contributions and tax);
• is guilty of misrepresentation.

Terms and conditions

Contracting authorities make known their "buyer profile" by means of a prior information notice published by the Commission or by themselves.

Contracting authorities refer to quality assurance systems based on EU standards, the Community Eco-Management and Audit Scheme (EMAS) and European or international environmental management standards.

To assess the application of the Directive, Member States forward to the Commission, no later than 31 October each year, statistics relating to contracts awarded.

Last updated: 23.04.2008