Brussels, 14/06/2007 (Agence Europe) - Ambassadors from EU member states (COREPER) unanimously agreed, on Wednesday 13 June, to the draft directive revising appeals procedures for companies that feel they have lost out in procedures for awarding contracts (EUROPE 9190). Estonia was alone in expressing a reservation on the matter. This Council agreement on the compromise between the German presidency, the report by Jean-Claude Fruteau (PES, France) and the Commission is still only informal but opens the way up to adoption of the legislative proposal in first reading. The EP is expected to vote on the draft compromise next week. In an effort to obtain an agreement, the EP agreed to postpone its plenary vote on the Fruteau report adopted in May by the parliamentary committee (EUROPE 9423).
The directive will introduce a “standstill” deadline during which the conclusion of a public procurement contract will not be allowed to go through. This deadline, which already exists in some member states, is expected to enable companies that feel they have not received fair treatment to submit an appeal to the competent authorities and obtain the launch of a new procedure if the contract in question is declared to have no effect. The compromise takes up the EP's internal market idea whereby the “standstill” is expected to form part of the means of communication used: ten calendar days at least - the parliamentary committee was proposing 12 days - if the decision to allocate a contract was sent by fax or e-mail, and two calendar weeks at least if the decision was sent by another means of communication.
Tenders for framework agreements as laid down in the draft directive were also the subject of intense discussions. Introduced by the “public procurement” contracts directive of 2004, these framework agreements allow for several companies involved in the recurrent provision of services to be selected, and then consulted when these provisions are put out to tender. According to the interinstitutional compromise, framework agreements that fall below European thresholds can be subject to appeal. Member states will not be able to apply the standstill deadline to these contracts.
The directive includes cases where public procurement contracts are recognised as not having effect, as well as possible derogations to this rule. These derogations involve reasons that imperatively pertain to the general interest and which are likely to maintain market validity. The rapporteur did not agree to non-economic imperative reasons pertaining to the general interest, such as natural disasters. The Council considered that this position was too demanding. The compromise text acknowledged that imperative reasons pertaining to the general interest of an economic variety could “in exceptional circumstances” be invoked to maintain the validity of a public contract and therefore avoid “disproportionate consequences”. Nonetheless, “the economic interest directly linked to the market concerned” will not be considered as an imperative reason pertaining to the general interest. The following are compromised by this notion: “costs from a delay in the execution of a contract, from the launch of a new procedure for awarding a contract and from a change in the economic operator carrying out the contract”.
Member states have two years to comply with the directive obligations revising directives 89/665/EEC and 92/13/EEC as from the date of its publication in the Official Journal of the EU. The Commission will have to produce a report on the efficiency of the new European rules, particularly the substitution sanctions and deadlines introduced, at the latest three years after entry into force of the directive. (mb)