A4-0014/96

Proposal for a European Parliament and Council Directive amending Directive 92/50/EEC relating to the coordination of procedures for 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 work contracts (COM(95)0107 - C4-0161/95 - 95/0079(COD))

The proposal was approved with the following amendments:

(Amendment 13)

Recital 5a (new)

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Whereas public authorities and public-law enterprises concerned are aware of the consequences of late payment on the financial well-being of economic operators, in particular small and medium-sized enterprises, and wish to be consistent with good and fair practice as well as similar in their practice of prompt payment to the main international actors;

(Amendment 14)

Recital 5b (new)

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Whereas a public service contract should specify the date on which payment is due, the period from the date of receipt of the invoice, if a specific date on which payment is due is not established by contract, and the interest penalty if by the required payment date complete settlement of debt is not made;

(Amendment 1)

Recitals 7 and 8

>Original text>

Whereas the application of these Directives must be simplified and the equilibrium, which has been reached in the current Community legislation in the field of public procurement must be maintained;

Whereas it is therefore necessary to extend the applicability of the adaptations of the Directive 92/50/EEC to all the services covered by this Directive;

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Whereas, in order to prevent distortions in competition between EU firms and those from third countries, only those changes introduced by the Agreement will be taken over; whereas wider-ranging adaptations to the Directives will not be made until a subsequent general review has been carried out;

Whereas the categories of services not covered by the Agreement are excluded from the scope of the adaptations to Directive 92/50/EEC;

(Amendment 2)

ARTICLE 1(1)

Article 7(1)(a), 2nd paragraph (new) (Directive 92/50/EEC)

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Where services fall under category 8 of Annex IA (research and development) and are not covered by the Agreement, this Directive shall apply only to public contracts for services, the estimated value of which, net of VAT, is not less than ECU 200 000.

(Amendment 3)

ARTICLE 1(3)

Article 12(1) (Directive 92/50/EEC)

>Original text>

1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests in writing of the reasons for rejection of his application or his tender, and, in the case of a tender, on the characteristics and relevant advantages of the tender selected as well as the name of the successful tenderer.

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1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests in writing of the reasons for rejection of his application or his tender, and, in the case of a tender, of the name of the successful tenderer.

>Original text>

However, contracting authorities may decide that certain information on the contract award, referred to in the first subparagraph of this paragraph, be withheld where release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interest of particular service providers, public or private, or might prejudice fair competition between service providers.

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With regard to information on the reasons for rejection of their applications and the advantages offered by the most favourable tenderer, candidates from third countries may not benefit from preferential treatment by comparison with candidates from Member States.

In accordance with the GATT Agreement, additional characteristics and relevant advantages offered by the successful tenderer may not be made known on request unless communication of that information has no adverse effect on law enforcement, the public interest, the commercial interests of particular firms, or competition.

(Amendment 16)

ARTICLE 1(5)

Article 14(7) (Directive 92/50/EEC)

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7. Contracting authorities shall not seek or accept, in a manner which would have the effect of precluding competition, advice which may be used in the preparation of specifications for a specific procurement from anyone that may have a commercial interest in the procurement.

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7. Contracting authorities may seek or accept advice which may be used in the preparation of specifications for a specific procurement provided that such advice does not have the effect of precluding competition.

(Amendment 5)

ARTICLE 2(2)

Article 7(1) (Directive 93/36/EEC)

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1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests of the reasons of rejection of his application or his tender, and, in the case of a tender, the characteristics and relevant advantages of the tender selected as well as the name of the successful tenderer.

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1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests of the reasons for rejection of his application or his tender, and, in the case of a tender, of the name of the successful tenderer.

>Original text>

However, contracting authorities may decide that certain information on the contract award, referred to in the first subparagraph of this paragraph, be withheld where release of such information would impede law enforcement or otherwise be contrary to the legitimate commercial interest of particular suppliers, public or private, or might prejudice fair competition between suppliers.

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With regard to information on the reasons for rejection of their applications and the advantages offered by the most favourable tenderer, candidates from third countries may not benefit from preferential treatment by comparison with candidates from EU Member States.

In accordance with the GATT Agreement, additional characteristics and relevant advantages offered by the successful tenderer may not be made known on request unless communication of that information has no adverse effect on law enforcement, the public interest, the commercial interests of particular firms, or competition.

(Amendment 17)

ARTICLE 2(3)

Article 8(7) (Directive 93/36/EEC)

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7. Contracting authorities shall not seek or accept, in a manner which would have the effect of precluding competition, advice which may be used in the preparation of specifications for a specific procurement from anyone that may have a commercial interest in the procurement.

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7. Contracting authorities may seek or accept advice which may be used in the preparation of specifications for a specific procurement provided that such advice does not have the effect of precluding competition.

(Amendment 8)

ARTICLE 3(2)

Article 8(1) (Directive 93/37/EEC)

>Original text>

1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests of the reasons for rejection of his application or his tender, and, in the case of a tender, the characteristics and relevant advantages of the tender selected as well as the name of the successful tenderer.

>Text following EP vote>

1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests of the reasons for rejection of his application or his tender, and, in the case of a tender, of the name of the successful tenderer.

>Original text>

However, contracting authorities may decide that certain information on the contract award, referred to in the first subparagraph of this paragraph, be withheld where release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interest of particular contractors, public or private, or might prejudice fair competition between contractors.

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With regard to information on the reasons for rejection of their applications and the advantages offered by the most favourable tenderer, candidates from third countries may not benefit from preferential treatment by comparison with candidates from EU Member States.

In accordance with the GATT Agreement, additional characteristics and relevant advantages offered by the successful tenderer may not be made known on request unless communication of that information has no adverse effect on law enforcement, the public interest, the commercial interests of particular firms, or competition.

(Amendment 18)

ARTICLE 3(3)

Article 10(7) (Directive 93/37/EEC)

>Original text>

7. Contracting authorities shall not seek or accept, in a manner which would have the effect of precluding competition, advice which may be used in the preparation of specifications for a specific procurement from anyone that may have a commercial interest in the procurement.

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7. Contracting authorities may seek or accept advice which may be used in the preparation of specifications for a specific procurement provided that such advice does not have the effect of precluding competition.

(Amendment 10)

ARTICLE 3(8)

Article 34(2) and (3) (Directive 93/37/EEC)

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2. The statistical reports shall detail at least:

(a) in the case of contracting authorities listed in Annex I to Directive 95/.../EC, a summary, for each contracting authority, of the value of contracts awarded below the threshold and details of the number and value of contracts awarded above the threshold, the latter being subdivided as far as possible by procedure, category of work according to the nomenclature referred to in Annex II and the nationality of the contractor to whom the contract has been awarded, and in the case of negotiated procedures, subdivided in accordance with Article 7, listing the number and value of the contracts awarded to each Member State and to third countries;

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2. (a) By way of minimum information, the statistical reports shall specify the number and value of contracts awarded above the threshold by individual contracting authorities or groups of contracting authorities. Contracts shall be subdivided by procedure, category of work, and the nationality of the contractor to whom the contract has been awarded. Where negotiated procedures have been followed, the number and value of contracts awarded to individual Member States or third countries shall be specified in accordance with Article 7.

>Original text>

(b) in the case of all other contracting authorities subject to this Directive, details, for each category of contracting authority, of the number and value of contracts awarded above the threshold, subdivided, as far as possible, by procedure, category of work according to the nomenclature referred to in Annex II and the nationality of the contractor to whom the contract has been awarded in accordance with Article 7, listing the number and value of the contracts awarded to each Member State and to third countries;

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(b) In the case of contracting authorities listed in Annex I to Directive 95/.../EC, the reports shall contain at least the following information: the total value of contract awards below the threshold, the number and value of contracts awarded below the threshold, the number and value of contracts awarded above the threshold, subdivided, as far as possible, by procedure, category of work according to the nomenclature referred to in Annex II, and the nationality of the contractor to whom the contract has been awarded; in the case of negotiated procedures, subdivided in accordance with Article 7, listing the number and value of contracts awarded to each Member State and to third countries.

>Original text>

(c) in the case of contracting authorities listed in Annex I to Directive 95/.../EC, details on the number and total value of contracts awarded by contracting authorities under derogation to the GATT Agreement; in the case of all other contracting authorities subject to this Directive, details, for each category of contracting authority, of the total value of contracts awarded under derogation to the Agreement;

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(c) In the case of contracting authorities listed in Annex I to Directive 95/.../EC, the reports shall contain details on the number and total value of contracts awarded by contracting authorities under derogation to the GATT Agreement;

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(d) any other statistical information, to be determined pursuant to the procedure provided for in Article 35(3), which is required in accordance with the GATT Agreement.

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(d) The reports shall likewise contain any other statistical information, to be determined pursuant to the procedure provided for in Article 35(3), which is required in accordance with the GATT Agreement.

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3. The Commission shall determine in accordance with the procedure laid down in Article 35(3) the nature of any additional statistical information, which is required under the Directive.'

(Amendment 15)

ARTICLE 3a (new)

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Article 3a

1. The contracting authority which acquires goods or services from a supplier shall

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(a) acknowledge the acceptance of goods and services within seven working days,

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(b) spell out the conditions under which an invoice can be deemed to have been received by the contracting authority,

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(c) fix a ten-day period after receipt of the invoice in which the supplier may be notified of any irregularities,

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(d) specify the date on which payment is due under the terms of the contract.

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2. If a specific date on which payment is due is not established by contract, given the provisions of paragraph 1, thirty days shall be allowed for the payment of the amount which is due.

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3. An interest penalty on amounts which are due shall be paid to the supplier for the period beginning on the day after the required payment day and ending on the date on which payment of the amount due is made.

Interest shall be computed at the official discount rate of the national central bank augmented by at least five percentage points.

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4. Any costs stemming from debt recovery or administrative handling or enforcement costs incurred by the supplier relating to each stage of the debt collection process shall be borne by the contracting authority.

(Amendment 11)

ANNEX I

Annex I (Directive 93/36/EEC)

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The appropriate departments of the new Member States, Austria, Finland, and Sweden, must be added to the list of central government authorities. Furthermore, central contracting authorities will need to be reviewed annually.

(Amendment 12)

ANNEX I

Annex I, Federal Republic of Germany, point 17a (new) (Directive 93/36/EEC)

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17a. Bundesministerium fuer Verkehr

Legislative resolution embodying Parliament's opinion on the proposal for a European Parliament and Council Directive amending Directive 92/50/EEC relating to the coordination of procedures for 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 work contracts (COM(95)0107 - C4-0161/95 - 95/0079(COD))

(Codecision procedure: first reading)

The European Parliament,

- having regard to the Commission proposal to Parliament and the Council, COM(95)0107 - 95/0079(COD) ((OJ C 138, 3.6.1995, p. 1.)),

- having regard to Articles 189b(2), 57(2), 66, and 100a of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C4-0161/95),

- having regard to Rule 58 of its Rules of Procedure,

- having regard to the report of the Committee on Economic and Monetary Affairs and Industrial Policy and the opinions of the Committee on Budgets, the Committee on External Economic Relations, and the Committee on Legal Affairs and Citizens' Rights (A4-0014/96),

1. Approves the Commission proposal, subject to Parliament's amendments;

2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 189a(2) of the EC Treaty;

3. Calls on the Council to incorporate Parliament's amendments in the common position that it adopts in accordance with Article 189b(2) of the EC Treaty;

4. Should the Council intend to depart from the text approved by Parliament, calls on the Council to notify Parliament and requests that the conciliation be initiated;

5. Points out that the Commission is required to submit to Parliament any modification that it may intend to make to its proposal as amended by Parliament;

6. Instructs its President to forward this opinion to the Council and Commission.