Brussels, 09/05/2007 (Agence Europe) - On Tuesday 8 May, the committee on the internal market of the European Parliament adopted the report by French Socialist Jean-Claude Fruteau on the proposed directive aiming to improve recourse procedures available to companies which believe that they have been wrongly treated in the allocation of public procurement contracts (see EUROPE 9190). By lining up completely behind the position of the rapporteur, the Committee has given him a clear mandate to negotiate with the Council. Speaking to EUROPE after the vote, he declared that he was “satisfied” and welcomed the excellent collaboration with the other political groups. In order to maintain the objective of the German presidency to reach a political agreement before the end of June, the EP would have to vote at first reading, at the plenary session of May.
Between now and then, several points will be the subject of intense discussions between the co-legislating European institutions. Unlike certain member states, including the United Kingdom, the Parliamentary committee would like to include framework agreements on reopening the contract to competition within the scope of application of the “recourse” directives. The framework agreements, which are an innovation from two directives of 2004 on public procurement, allow companies to be selected upstream, which will then be consulted when services are required. “The conditions for derogations to the 'no effect' rule” are also problematic, Mr Fruteau explained. The Commission's proposal renders the illegal conclusion of a public contract, i.e. one agreed upon by mutual consent without having been opened up to competition, ineffective. According to the Parliamentary committee, only privately negotiated public procurement contracts related to overwhelming reasons of general interest of a non-economic nature should be allowed, in the case of a natural disaster, for example. The Council takes the view that this formula is too stringent.
All too frequent in the European Union, illegal privately negotiated contracts are considered by the European Court of Justice to represent the most serious violation of European rules on public procurement. In order to fight this phenomenon, the Commission suggested in its proposal that a minimum suspensive delay of 10 calendar days between the notification, by an adjudicating entity, of the allocation of the contract and the signature of the contract with the sub-contracting company, be brought in. The Parliamentary committee proposes a delay depending on the communication tools used: 12 calendar days if the notification of the contract allocation was made by fax or electronic means; 17 days if the notification was made by another means of communication. In many member states, such a time delay does not exist. In France it stands at 10 days, 14 days in Germany and in Austria, and 15 days in the Netherlands. (mb)