Brussels, 19/12/2012 (Agence Europe) - On Tuesday 18 December, the European Parliament's internal market committee adopted the draft report of Marc Tarabella (S&D, Belgium) on the revision of the traditional public markets directive (2004/18/EC), which advocates awarding contracts focusing on quality and not on prices, which are more respectful of social and environmental considerations. Shortly after the vote the rapporteur was pleased to announce that “we have been able to send out a clear message. We could have done it very simply by taking the lowest prices into account but without any other considerations and this would have been very simple. What we wanted to do was to provide tools for the adjudicating powers so that they can best use public money in their investments in the works they undertake, as well as for goods and services, and also to ensure that companies can participate in a better way, particularly small companies, in the public contracts market field”.
Tarabella's main objective is to ensure that social and environmental considerations are better taken into account, particularly with regard to subcontracting. MEPs support the principle according to which markets should always be allocated on the basis of what is the most economically advantageous consideration. Criteria for this kind of tender can include, in addition to prices and costs, qualitative considerations, such as those pertaining to the social and environmental arena. By taking into account the costs of the whole lifecycle of a product, merchandise or service, the adjudicating powers will be able to incorporate external costs, such as those involving social and environmental considerations. Tarabella would have liked to have gone further by bolstering the definition of the concept of costs over the entire life cycle but the other political groups did not follow his line in this connection. An indication of the social implications contained within the text led to European employers immediately criticising the position of MEPs on the strategic use of public contracts going beyond the framework proposed by the European Commission.
The EP has taken the Commission proposal and has submitted social service contracts to a lighter regime. In a similar way to the Council, it has increased the exemption threshold to €750,000.
Subcontracting. The parliamentary committee has enhanced the provisions on subcontracting. The public authorities will be obliged to request that a company that has won a contract says to what part of the market it intends to outsource. Member states will be obliged to ensure that subcontractors respect legislation in force in the country where the contract is carried out. They will be able to implement a system of liability throughout the subcontracting chain so that a company is liable in the event of infringing legislation or insolvency of the direct subcontractor. Tarabella would have preferred that this last provision be compulsory.
Public-public cooperation. MEPs introduced greater flexibility to the rules on public-public co-operation than the legislative proposal introduced on the basis of the Court's jurisprudence. According to MEPs, this kind of cooperation will not be contested when: - a public undertaking exercises similar control over another undertaking under contract as that exercised over its own services, particularly in terms of strategy and; - when at least 80% of turnover of the contracting party comes from the public authority; - and when there is no private participation in the contractual undertaking, with the exception of certain forms of private participation guaranteed by the law and which do not exercise any influence on the decisions of the public authority. This provision was not to the Commission's liking because it increases the number of cases where a contract is exempt from the scope of application for the directives.
It should be noted that an adjudicating body will be able to refuse the tender from a candidate when more than 50% of the value of a supply comes from a third country which has not signed an agreement with the EU on market access. Software and telecommunication networks are exempt from this provision.
On Monday, 24 January 2013, the Parliamentary committee will vote on another text from the public markets package, which targets “special sectors”. On the same day, it will adopt its position on the “concessions” directive. This will provide the Parliament with an opportunity to see whether the dossier can be concluded during the first reading with the Council. Member states recently reached a political agreement on these three texts (see EUROPE 10749). (MB/transl.fl)