19
FIEC
“European Single Procurement
Document” has to be accepted as
preliminary evidence to prove the
fulfilment of the selection criteria,
and contracting authorities
shall not require a document or
certificate which they can access
directly via national database in
any Member State.
COMPLICATED
The wording of the award criteria
(article 66) has become extremely
complicated, while in reality, little
has changed. The price and the
most economically advantageous
tender – which has become the
“best price:quality ratio” – remain
the two possible award criteria,
together with a third criterion,
the cost, which includes the life-
cycle costing concept.
It is doubtful that this provision
will be sufficient to turn
contracting authorities away
from their tendency to award
contracts to the cheapest offers,
to the detriment of quality.
Abnormally low tenders (ALT)
are covered in article 69. The
major problem of acceptance of
ALTs by contracting authorities
has
not
been
addressed
adequately, although this is faced
by the construction sector and
has been raised repeatedly in the
debates by FIEC.
Provisions on ALTs have also
not been made stricter. Neiither
mandatory identification criteria
nor global mandatory rejection
of ALTs is required.
As the idea of creating a
strong legal framework for
subcontractors has been the
priority of the Parliament’s
Rapporteur, the concepts of
direct payment – from the
client to the subcontractors
– and of chain liability have
been integrated in the directive
(article 71). However, these two
controversial provisions do in
fact remain voluntary for Member
States.
ce
CONSTRUCTION EUROPE
OCTOBER 2013
Discussing future of
public procurement
FIEC
Avenue Louise 225,
B - 1050 Brussels, Belgium.
Tel: +32 2 514 55 35;
e-mail:
With the “modernisation exercise” on public procurement directives
all but complete, FIEC assesses how successful this has been
T
he vote on Thursday 5
September in the Internal
Market
Committee
of the European Parliament
almost put a final full stop to the
“modernisation exercise” of the
EU public procurement directives,
which has run since the European
Commission adopted a package
of legislative proposals in October
2011.
The very final stages of plenary
vote by the European Parliament
and endorsement by the Council
are purely formal actions which
are expected to occur by the
end of the year. This means that
the revised legislations can be
published in the Official Journal
of the EU in early 2014, and
transposed into national law by
the beginning of 2016 – that
is, ten years after the deadline
for transposition of the current
directives.
Last month’s vote followed
a political agreement which
had been reached by the three
European institutions – European
Parliament, European Council
and European Commission – at
the end of June, after five months
of intensive negotiations known
as the trilogue.
The fact is, however, that these
negotiations – which belong to
informal procedures which EU
institutions can use to accelerate
the legislative process – are
organised behind closed doors.
is an obviously logical statement
on which the Parliament’s
Rapporteur strongly insisted.
With
e -procurement
(article 19), the new directive
requires
that
electronic
communication (e-submission)
becomes the rule. However,
a list of derogations remains
and, moreover, the specific
deadline for implementation
of e-procurement, as originally
proposed by the Commission,
has been deleted.
While
the
Commission
announced that the access of
SMEs to public procurement
markets would be rendered
easier, time limits allowing
entrepreneurs to respond to calls
for tenders have been shortened
considerably (articles 25 to 28).
This
is
counter-productive,
considering that the drawing up
of good quality tenders takes time
– especially for complex works
contracts above the thresholds.
This is likely to cause problems
for SME contractors in particular.
While innovation belonged to
the objectives of the Commission,
the acceptance of variants
remains constrained (article 43).
That is, it will remain subject to
the specific authorisation of the
contracting authority, rather than
being automatically accepted,
except when the contracting
authority specifically refuses
them, as was requested by FIEC.
With the division into lots
(article 44), the “apply or explain”
principle will apply here.
This means that contracting
authorities will have to divide
contracts into lots or explain in
advance why they prefer not
to. This provision belongs to
those expected to promote the
participation of SMEs in public
procurement.
Also relating to an improvement
in participation of SMEs to public
procurement, self-declaration
(article 57) in the form of a
FIEC’s work proved extremely
difficult because of this lack
of transparency, as well as the
overwhelming lobbying power of
the public sector. This included
cities, regions, public enterprises,
etc, but also, of course, Member
States in the Council, and MEPs in
the Parliament, as they often have
local mandates in parallel to their
European activities. In addition,
there was the high number of
private sector representatives
with diverging interests involved .
It has not been easy to make the
voice of the construction sector
heard in this cacophony and FIEC
is quite disappointed about the
outcomes, especially as from the
very beginning, FIEC stressed
that there was not sufficient
experience for a revision, due to
the late implementation of the
current directives into national
law.
CHANGES
In considering what will change
and what will not, it is worth
considering a few points focusing
on the “classical” directive.
With contracts between entities
within the public sector (article
11), the scope of “in-house” and
“public-public co-operation” has
been broadened considerably, so
that important market shares will
be awarded without transparent,
competitive procedures.
Furthermore, such a public
entity may undertake 20% of its
activities for others, besides the
controlling/awarding authorities,
including private clients. Both
these items provide unfair
advantages to public entities,
to the detriment of private
enterprises.
Ontheprinciplesofprocurement
(article 15), economic operators
must comply with environmental,
social and labour law, established
by union law, national law,
collective agreements or by a list
of international agreements. This
