8.5.2013   

EN

Official Journal of the European Union

CE 131/25

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having regard to Directives 2004/18/EC and 2004/17/EC on procedures for the award of public contracts (1) and Directive 2007/66/EC on review procedures concerning the award of public contracts (2),

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having regard to Council Decision 2010/48/EC on the Conclusion of the United Nations Convention on the Rights of Persons with Disabilities (3), which entered into force on 22 January 2011 and which identifies public procurement directives as ‘Community acts which refer to matters governed by the Convention’,

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having regard to the WTO Agreement on Government Procurement of 15 April 1994,

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having regard to the Charter of Fundamental Rights of the European Union and especially Article 26 thereof (integration of persons with disabilities),

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having regard to its resolution of 12 May 2011 on equal access to public sector markets in the EU and in third countries (4),

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having regard to the Commission Green Paper on the modernisation of EU public procurement policy (COM(2011)0015),

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having regard to the Commission Green Paper on expanding the use of e-procurement in the EU (COM(2010)0571),

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having regard to its resolution of 6 April 2011 on a single market for enterprises and growth (5),

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having regard to its resolution of 18 May 2010 on new developments in public procurement (6),

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having regard to its resolution of 3 February 2009 entitled ‘Pre-commercial procurement: driving innovation to ensure sustainable high-quality public services in Europe’ (7),

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having regard to the Commission Communication ‘Smart Regulation in the European Union’ (COM(2010)0543),

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having regard to the Commission Communication ‘Towards a Single Market Act. For a highly competitive social market economy. 50 proposals for improving our work, business and exchanges with one another’ (COM(2010)0608),

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having regard to Professor Mario Monti’s report of 9 May 2010 on ‘A new strategy for the single market’,

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having regard to Commission staff working document SEC(2010)1214,

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having regard to the report on ‘Evaluation of SMEs’ access to public procurement markets in the EU’ (8),

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having regard to the Commission Communication ‘Public procurement for a better environment’ (COM(2008)0400),

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having regard to the Commission Communication ‘Think Small First – a “Small Business Act” for Europe’ (COM(2008)0394),

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having regard to the Commission Communication ‘Europe 2020 Flagship Initiative. Innovation Union’ (COM(2010)0546),

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having regard to the opinion of the Committee of the Regions of 11-12 May 2011 on the Green Paper on ‘The modernisation of EU public procurement policy – towards a more efficient European market’,

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having regard to the opinion of the European Economic and Social Committee of 13 July 2011 on the Green Paper on ‘The modernisation of EU public procurement policy – towards a more efficient European market’,

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having regard to the opinion of the European Economic and Social Committee of 13 July 2011 on the Green Paper on expanding the use of e-procurement in the EU,

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having regard to Rule 48 of its Rules of Procedure,

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having regard to the report of the Committee on the Internal Market and Consumer Protection and the opinions of the Committee on International Trade, the Committee on Budgetary Control, the Committee on Employment and Social Affairs, the Committee on Environment, Public Health and Food Safety, the Committee on Industry, Research and Energy and the Committee on Regional Development (A7-0326/2011),

A.

whereas a properly functioning EU public procurement market is a key driver of growth and a cornerstone of the single market, and is, furthermore, fundamental to stimulating competition and innovation and to addressing fast-emerging environmental and social public-policy challenges, as well as quality-of-work issues including adequate pay, equality, social cohesion and inclusion, while achieving optimal value for citizens, businesses and taxpayers;

B.

whereas European public procurement rules have contributed substantially to increased transparency and equal treatment, to combating corruption and to professionalising the procurement process;

C.

whereas the current economic climate makes it more important than ever to ensure optimal efficiency in public spending, whilst limiting costs borne by businesses as much as possible, and a better functioning procurement market would help achieve these two objectives;

1.

Welcomes the Commission Green Paper and the broad consultation process as a starting point for the revision of the Public Procurement Directives, in compliance with the provisions of the Treaty of Lisbon and the case-law of the European Court of Justice (ECJ), and in line with the revised state aid rules;

2.

Points out that, although the revision of the EU procurement directives in 2004 led to useful further development of the single market for public procurement, there is a need –some years after the transposition of Directives 2004/17/EC and 2004/18/EC into national law – to assess whether optimisation and clarification of the directives will be necessary in order to address shortcomings that have become evident in practice; emphasises that many stakeholders see public procurement rules as highly complex, leading to costly and burdensome administrative compliance procedures; deplores the frequent cases of inadequate transposition of the rules into national legislation, and the insufficiency of training measures; calls on the Commission to propose a significant simplification and consolidation of the rules, while further clarifying them where necessary; stresses furthermore that the increased use of ICT must now play a major role in reducing administration and costs, and that the various European initiatives on e-procurement and e-commerce should accordingly be aligned with the reform of the procurement rules;

3.

Calls for an explicit statement in the directives that they do not prevent any country from complying with ILO Convention C94; calls on the Commission to encourage all Member States to comply with that Convention; stresses that the effective functioning of sustainable public procurement requires clear and unambiguous EU rules precisely defining the framework of Member States’ legislation and implementation;

4.

Asks for clarification of the scope of the directives; notes that the main purpose of public procurement is the purchase of goods, works and services by public authorities to accommodate the needs of their citizens and ensure effective use of public funds; points out that there must be a direct benefit for the contracting authority in order for a procedure to qualify as public procurement;

5.

Calls for clarification of the definitions in the directives – for example the definition of a ‘body governed by public law’ – in line with the case-law of the ECJ and without reducing the scope of EU public procurement rules;

6.

Recalls its resolution of May 2010 on recent developments in public procurement, which took note of the ECJ case-law and took the view that public-public cooperation was not subject to public procurement rules as long as the following criteria were met: that the purpose of the partnership was the provision of a public-service task conferred on all the public authorities concerned; that the task was carried out solely by the public authorities concerned, i.e. without the involvement of private capital; and the activity involved was essentially performed on behalf of the public authorities concerned; underlines the fact that transferring tasks between public sector organisations is a matter for the Member States’ internal administrative organisation and is not subject to procurement rules; takes the view that these clarifications should be codified in the procurement directives;

7.

Emphasises the exclusion of service concessions from the scope of European procurement rules; reiterates that due account must be taken both of the complexity of the procedures and of the differences between Member States in terms of legal culture and practice with regard to service concessions; takes the view that the process of defining the term ‘service concession’ and establishing the legal framework governing such concessions has evolved as a result of the 2004 public procurement directives and the CJEU’s supplementary case-law; insists that any proposal for a legal act dealing with service concessions would be justified only with a view to remedying distortions in the functioning of the internal market; points out that such distortions have not hitherto been identified, and that a legal act on service concessions is therefore unnecessary if it is not geared to an identifiable improvement in the functioning of the internal market;

8.

Emphasises that the current classification of A and B service categories should be maintained in so far as ‘lighter’ provisions for B services have their justification in the characteristics of that category as mainly locally or regionally provided services; calls on the Commission to develop tools that make it easier for local and regional authorities to decide to which category specific contract tasks belong;

9.

Observes, in this context, that the application of procurement law to the provision of personal social services is often not the best way of ensuring optimum results for the users of the services in question; calls for recognition under European law of tried and tested Member State procedures based on the principle that all providers able to comply with the conditions previously laid down by law should, irrespective of their legal form, be permitted to provide services, provided that account is taken of the general principles of equal treatment, transparency and non-discrimination;

10.

Emphasises that the introduction of new rules for public procurement markets below the EU thresholds should be avoided, as it may jeopardise legal certainty established at national level;

11.

Calls on the Commission to align the Remedies Directive with the new public procurement framework which will emerge following the current review, and to carry out this exercise in parallel to the main legislative proposal, in order to ensure consistency;

12.

Stresses the Commission’s responsibility for monitoring the correct transposition of EU directives in the Member States;

13.

Takes the view that, in order to develop the full potential of public procurement, the criterion of lowest price should no longer be the determining one for the award of contracts, and that it should, in general, be replaced by the criterion of most economically advantageous tender, in terms of economic, social and environmental benefits – taking into account the entire life-cycle costs of the relevant goods, services or works; stresses that this would not exclude the lowest price as a decisive criterion in the case of highly standardised goods or services; asks the Commission to develop, in close cooperation with the Member States, a methodology for the calculation of life-cycle costs on a broad and non-obligatory basis; stresses that supporting the criterion of ‘maximum economic benefit’ would foster innovation and efforts to achieve the best quality and value, i.e. to comply with the requirements of the Europe 2020 strategy; stresses that this is particularly relevant in relation to public procurement of goods that have an impact on consumers’ health – in the food sector, for example – where quality and production methods play an important role; emphasises that public procurement rules should be flexible enough to ensure that passive consumers, for example in hospitals, care facilities for the elderly, schools and kindergartens, have equal access to healthy, value-for-money food, rather than merely the cheapest available option;

14.

Recognises that public procurement, if used effectively, could be a real driver in promoting quality jobs, wages and conditions as well as equality, in developing skills and training, in promoting environmental policies, and in providing incentives for research and innovation; calls on the Commission to encourage governments and contracting authorities to increase the use of sustainable public procurement, supporting and promoting high-quality employment and providing quality services and goods in Europe; invites the Commission to scrutinise how public procurement has contributed to achieving the EU’s wider goals and to outline what should be done to improve these objectives in the future;

15.

Recalls that pre-commercial procurement is an underused tool, which can drive innovation in public procurement and make a significant contribution to identifying and establishing lead markets and improving SME access to public procurement; considers furthermore that the proposed model of risk and benefit (IPR) sharing in pre-commercial procurement requires both legal clarification and simplification in order to enable regular and effective use of this tool by procurement practitioners; accordingly, calls on the Commission to propose an adaptation of the relevant procurement or state aid rules as part of the overall revision exercise, in order to boost the take-up of pre-commercial procurement;

16.

Notes the importance of standards for public procurement, in that they can help public procurers to meet their policy objectives in an effective and transparent way; calls, in that regard, for the development of a regularly updated database of standards, especially in relation to environmental and social criteria, to be made available to public authorities, in order to ensure that procurers, when drawing up tenders, have access to appropriate guidance and a clear set of rules so that they can easily verify their compliance with relevant standards;

17.

Calls for increased reliance on non-discriminatory and open standards in public procurement, in the interests of the simplification and innovation objectives, particularly in the areas of accessibility, ICT, and the environment;

18.

Underlines the fact that whether or not a product or service has been sustainably produced is rightly considered to be a characteristic of the product, which can be used as a criterion for comparison with products or services that have not been sustainably produced, so as to enable contracting authorities to control the environmental and social impact of contracts awarded by them in a transparent way but at the same time not to weaken the necessary link to the subject matter of the contract; points out the need to clarify the scope for including requirements relating to the production process in the technical specifications for all types of contract, where relevant and proportionate; points to the Wienstrom case, which has become the classic example of how and why production characteristics can be categorised as technical specifications;

19.

Underlines the need to strengthen the sustainability dimension of public procurement by allowing it to be integrated at each stage of the procurement process (i.e. ability test, technical specifications, contract performance clauses);

20.

Points out that, in response to increased awareness of the environmental and climate impact of goods, works and services, procurement authorities should include environmental costs in their assessment of the ‘most economically advantageous offer’ and their calculation of life-cycle costs;

21.

Notes that the text of the directives needs to be more specific in terms of improving access for people with disabilities;

22.

Considers that the current provisions on subcontracting should be strengthened, as the use of several levels of subcontracting can cause problems in terms of compliance with collective agreements, working conditions and health and safety standards; suggests therefore that the public authorities be informed of all details relating to the use of subcontractors before a contract is concluded; asks the Commission to assess, with an eye to the future review of the directives, whether further rules on the award of subcontracts are needed, for example on the establishment of a chain of responsibility, specifically to avoid SME subcontractors being subject to conditions worse than those applicable to the main contractor awarded the public contract;

23.

Recognises the role the EU can play in facilitating the development of successful public-private partnerships (PPPs) by promoting fair competition and sharing best practice across Member States in relation to social and employment policies; notes, however, that major disparities exist between Member States in terms of the legal and procedural requirements applying in this area; calls, accordingly, on the Commission to clarify the concept of PPPs, in particular as regards how the parties will bear shared risks and meet their financial obligations;

24.

Calls on the Commission to reassess the appropriate level of thresholds for supply and services contracts, and if necessary raise them, so as facilitate access to public procurement by, amongst others, not-for-profit and social-economy operators and SMEs; asks that very careful consideration be given to the legally binding requirements of the WTO Agreement on Government Procurement; emphasises that, given the difficulties which already exist in negotiations on the issue of access to public procurement, it should also be borne in mind that raising thresholds in Europe could easily lead to further complications for EU trade policy;

25.

Emphasises that any extension of the EU procurement rules into the area of ‘what to buy’ would represent a significant change to the current regime and should be carefully assessed; doubts that this would contribute to simplifying and streamlining, and fears rather that it would lead to more complicated rules, with many exemptions, which would be difficult to administer in practice – procurement directives being procedural (‘how to buy’) guidelines that should not be supplemented with provisions on ‘what to buy’;

26.

Points out that the directives are often perceived as too detailed and that they have become increasingly technical and complex, while at the same time the legal risk of non-compliance has increased considerably for contracting authorities and suppliers alike; notes that the fear of challenge leads to a risk-averse approach, which stifles innovation and sustainable development, resulting far too often in contracting authorities opting for the cheapest price rather than the best value; asks for more space for negotiation and communication, combined with measures to assure transparency and to prevent abuse and discrimination, and urges that market consultation be explicitly allowed as a possible first step;

27.

Notes that public procurement policy should, in the first instance, ensure the effective use of funds by the Member States, achieve optimum results in terms of public procurement through the application of clear, transparent and flexible procedures, and allow European businesses to compete on an equal footing throughout the Union;

28.

Advocates, when European public procurement law is being revised, clear, simple and flexible rules, reducing the level of detail and making procurement procedures simpler, less cumbersome, cheaper, more open to SMEs and more conducive to investment; sees a need, therefore, for greater reliance on the general principles of transparency, equal treatment and non-discrimination; considers that simplification of the rules on public procurement would make it possible to reduce the risk of error and to pay greater heed to the needs of small contracting authorities;

29.

Advocates assessing whether wider use of the negotiated procedure with prior EU-wide publication might be allowed, beyond that provided for in the current directives, so that contracting authorities and economic operators can communicate better, and supply and demand can be coordinated effectively; takes the view that, if any extension of the scope of the negotiated procedure is envisaged, further safeguards against abuse should be introduced – e.g. an obligation on contracting authorities to establish, for any bidder at the outset, at least some minimum conditions regarding the performance of the procedure, in line with what is sound practice in private procurement – as well as requirements for written documentation;

30.

Calls on the Commission to review the current approaches to the qualification of suppliers (particularly framework agreements, dynamic purchasing systems and the use of qualification systems by utilities procurers), so that any new approaches to qualification reduce costs and timescales, are attractive for both contracting authorities and economic operators and lead to the best possible outcomes;

31.

Reiterates its insistence on the systematic admission of alternative bids (or variants), as they are crucial to promoting and disseminating innovative solutions; stresses that specifications referring to performance and functional requirements and the express admission of variants give tenderers the opportunity to propose innovative solutions, particularly in highly innovative sectors such as ICT; asks also that all avenues – both legislative and non-legislative – be explored to ensure that public procurement is more engaged in promoting innovation in Europe;

32.

Calls on the Commission to introduce clarifications into the regulatory framework on public procurement, particularly in relation to the contract execution phase (e.g. on ‘substantial modification’ of a contract in force, on changes concerning the contractor and on the termination of contracts);

33.

Considers it regrettable that tenderers have only limited opportunities to rectify omissions in their bids; asks the Commission, therefore, to elaborate on what omissions may be rectified by bidders, what additional adjustments are allowed and how to guarantee transparency and equal treatment;

34.

Points out the contracting authorities should be able to benefit from previous experience with a tenderer on the basis of an official evaluation report; recommends setting a time limit for exclusions, which should guarantee transparency and objectivity; points out the need for legislative clarification in Directives 2004/17/EC and 2004/18/EC stating that a bidder found guilty of a misconduct in a previous procurement procedure can regain reliability after having substantially proved that he has undergone an effective ‘self-cleaning’ procedure; considers that such a clarification would foster anti-corruption mechanisms by underpinning incentives to accelerate the elimination of corrupt practices, and would remove serious legal uncertainties;

35.

Regrets the Green Paper’s failure to mention shortcomings, the lack of expertise and knowledge about procurement and the inadequacy of public procurement strategies; stresses the importance of promoting professionalism and guaranteeing objectivity on the part of both contracting authorities and market operators, particularly by supporting the development of targeted training programmes; recommends setting up a network of centres of excellence within the existing national frameworks, and promoting exchanges of information and good practices between Member States; also encourages umbrella organisations, at both national and EU level, to take shared responsibility for making relevant information available and to facilitate exchanges of information between their members throughout Europe; stresses the importance of clear and readily comprehensible manuals for both contracting authorities and tenderers; finds it regrettable that the documents ‘Buying green! A handbook on environmental public procurement’ and ‘Buying Social: A Guide to Taking Account of Social Considerations in Public Procurement’, published in 2005 and 2010 respectively, are not sufficiently useful in this respect;

36.

Observes that only 1.4 % of contracts are awarded to undertakings from another Member State; stresses that professionalisation and better training of those who award contracts, and of tenderers, would foster EU-wide competition and exploit more fully the advantages of an internal market for public contracts;

37.

Emphasises that ready access to public procurement for SMEs, which are the driving force of the European economy, is crucial to maintaining employment and to sustainable development, innovation and growth; stresses that simplifying the procedures and administrative formalities, as well as creating SME-friendly strategies and implementing the code of good practice, will facilitate SMEs’ access to public contracts and enable them to participate on a more equal and fairer footing; believes that providing simplified, equal and fair access to public procurement for all economic operators would result in a better use of taxpayers’ money; points out that SMEs do not generally have significant specialised administrative capacity, and that it is thus essential to minimise the administrative burden imposed on them;

38.

Points out that selection criteria on financial standing, e.g. in relation to company turnover, should be proportional to the character of a given contract; warns the Commission and the Member States, when adopting flexible and user-friendly instruments, not to create any new barriers for SMEs and to take account of their interests as a matter of priority; asks the Commission, with the aim of improving access to public procurement procedures and improving their transparency, particularly for the benefit of smaller contracting authorities and tenderers, to modernise the Tenders Electronic Daily (TED) website to make it more accessible by improving its appeal and user-friendliness, with particular attention to search criteria and the quality and detail of the summary translations for each tender; recommends that TED should offer an alert service for users, to inform them when new tenders of interest are published;

39.

Asks the Commission to increase awareness of the importance of splitting contracts into lots, and to consider the implementation of the ‘apply or explain’ principle, whereby rules on matters such as division into lots must be complied with, or the failure to comply explained;

40.

Points out that contracting authorities should take greater advantage of the possibilities of dividing public contracts into lots, thus giving SMEs a better chance, in qualitative and quantitative terms, of participating in public procurement, and improving the level of competition; encourages SMEs to make use of joint procurement and contract pooling, which would allow them to make economies of scale in areas such as logistics and transport; encourages public authorities to be flexible when considering these modern and voluntary forms of arrangement; calls on the Commission to investigate all the possibilities for encouraging the temporary or permanent grouping of SMEs and small businesses in order to enable them to take part in invitations to tender that are not split into lots, without having to operate as subcontractors; asks the Commission, in this regard, to examine in particular the current practice of subcontracting to SMEs – often on conditions inferior to those applicable to the main contractor – of parts of contracts not split into lots, which are too big to enable SMEs to participate in the procurement procedure;

41.

Proposes that self-declarations be allowed where feasible, and that original documents be requested only from the shortlisted candidates or the successful tenderer, whilst avoiding any delays or market distortions caused by incorrect declarations; asks the Commission to promote the option of an ‘electronic procurement passport’ accepted by all Member States and proving that the economic operator fulfils the conditions required under EU legislation on public contracts; underlines the point that a European pre-qualification system should be a helpful instrument if it is kept simple, cheap and easily accessible for SMEs;

42.

Calls on the Commission, with a view to fighting corruption in public procurement, to promote more efficient reporting practices, including exchanges of information between Member States on the exclusion of unsound bidders; invites the Commission to provide for clear rules on protection of whistleblowers, following the recommendations in Resolution 1729(2010) of the Parliamentary Assembly of the Council of Europe (9), to enhance the transparency of contracts funded with EU money and to promote educational action both at institutional level and among the general public;

43.

Notes that certain Member States already apply efficient public procurement award procedures that ensure transparency and the proper use of taxpayers’ money; asks the Commission to study Member States’ good practices in this field and identify the most effective principles for public procurement in the EU;

44.

Points out that combating corruption and favouritism is one objective of the directives; underlines the fact that Member States face different challenges in this area and that a more elaborate European approach carries the risk of undermining efforts to streamline and simplify the rules, and of creating new bureaucracy; points out that the principles of transparency and competition are key in combating corruption; asks for a common approach on ‘self-cleaning’ measures to avoid market distortion and ensure legal certainty for economic operators and contracting authorities alike;

45.

Takes the view that, since public contracts concern public funds, they should be transparent and open to public scrutiny; asks the Commission for clarification with a view to ensuring legal certainty for local and other public authorities and enabling them to inform citizens of their contractual obligations;

46.

Calls on the Commission to assess the problems associated with exceptionally low bids and to propose appropriate solutions; recommends that contracting authorities provide, in the event of abnormally low bids being received, for early and sufficient information to other bidders, in order to allow them to assess whether there is ground for initiating a review procedure; asks for greater consistency between the EU’s common external trade policy and the practices in Member States where exceptionally low bids are accepted;

47.

Welcomes the Commission Green Paper on expanding the use of e-procurement; points out that the e-procurement action plan has failed to achieve its goal and that more political leadership at all levels of government – including EU level – is needed in order to maintain and accelerate the transition to e-procurement; wants to ensure that at least 50 % of both the EU institutions’ and the Member States’ public procurement operations are carried out electronically, in line with the commitment made by the Member State governments at the ministerial conference on e-government in Manchester in 2005;

48.

Underlines the fact that the Commission has a unique role to play in promoting progress on standardisation and infrastructure issues – e-signatures and time-stamps, for example, need a commonly agreed format for security purposes; asks the Commission to develop the common standards in question; emphasises that onerous technical requirements for bidder authentication can act as barriers to operators; stresses, in this context, the need to develop a standardised system for e-signature; calls on the Member States to make available a validation service for certificates issued by certification service providers under their supervision;

49.

Underlines the fact that, to ensure interoperability of different systems and avoid vendor lock-in, open standards and technology neutrality must be observed; asks the Commission to assure real interoperability between the different e-procurement platforms that already exist in Member States, making more use of results obtained by EU initiatives such as PEPPOL and e-CERTIS;

50.

Points out that any legislative proposals to expand and simplify the use of e-procurement should be integrated into the review of the main public procurement directives and should be in line with the scope and with general public procurement rules such as obligations linked to thresholds;

51.

Underlines the point that e-procurement can drive simplification of the entire procurement process, introducing efficiencies that will lead to significant cost and time savings for both businesses and public administrations, and increasing transparency and accessibility; notes that the electronic awarding of contracts, in particular, opens up new avenues for modernising administration in the field of public contracts; reiterates that e-procurement should be less costly, more expedient and more transparent than conventional public procurement procedures; believes, however, that there is still room for improvement and that more should be done in terms of access to reliable, comparable and objective information and statistical data; calls on the Commission and the Member States to encourage cross-border use of e-procurement;

52.

Points out that legislation is not the only key to promoting change; asks the Commission, therefore, to explore new ways to exchange experiences, share best practices and transfer knowledge across borders among local and regional actors; highlights the strong need to further enhance the capacity and understanding of staff dealing with e-procurement and – through national and/or EU incentives to secure a ‘level playing field’ between SMEs and large enterprises – to assist SMEs in building their knowledge and capacity; welcomes the Connecting Europe Facility as a new instrument to boost cross border e-procurement, thus allowing the digital single market to develop;

53.

Welcomes the announcement in the Commission’s ‘eGovernment Action Plan 2011-2015’ that the epractice.eu platform is to be developed into an effective tool for the exchange of experience and information among Member States and e-government practitioners, and urges that its scope be extended to local and regional practitioners;

54.

Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States.