A4-0309/97

Resolution on the Commission Green Paper on public procurement in the European Union: exploring the way forward (COM(96)0583 - C4-0009/97)

The European Parliament,

- having regard to the Commission Green Paper (COM(96)0583 - C4-0009/97),

- having regard to the deliberations from its hearing on the subject held on 22 May 1997,

- having regard to the Government Procurement Agreement (GPA) which came into force on 1 January 1996,

- having regard to its second reading decisions of 14 May 1997 on the common positions adopted by the Council

. adopting Directive 96/ /EC of the European Parliament and the Council amending Directives 92/50/EEC, 93/36/EEC, 93/37/EEC concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively ((OJ C 167, 2.6.1997, p. 52.)),

. adopting Directive 96/ /EC of the European Parliament and the Council amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors ((OJ C 167, 2.6.1997, p. 53.)),

- having regard to the report of the Committee on Economic and Monetary Affairs and Industrial Policy and the opinions of the Committee on Legal Affairs and Citizens' Rights and the Committee on Social Affairs and Employment (A4-0309/97),

A. whereas the public procurement market accounts for 11 % of EU Gross Domestic Product, i.e. about ECU 720 billion;

B. whereas only 3% of all public contracts in the EU go to companies from other EU Member States;

C. whereas sub-central government procurement expenditure on goods, services and construction may be twice that of central government expenditure ((Deloitte & Touche, June 1994, Study of Public Procurement Opportunities: European Union and Government of the United States.));

D. whereas an effective public procurement policy based on the principles of transparency and non-discrimination between bidders is fundamental for the Single Market,

E. whereas the Amsterdam draft Treaty makes sustainable development part of the key objectives of the EU and emphasises the need for integration of environmental protection requirements into the definition and implementation of all Community policies,

F. whereas the objective of opening the procurement market is greater competition and thus lower prices and higher quality of goods and services without disregarding the public interest, which is especially high in the fields of education, health, housing and basic utilities,

G. whereas environmental and social conditionality with regard to public procurement can contribute substantially to sustainable development;

H. whereas it is not noticeable that the European Commission's public contracts policy has led to price convergence or an increase in the number of tenderers in the single market,

I. whereas the lack of results in the single market can be put down, particularly in the construction industry, to the structure of the sector (overcapacity, minimizing costs and low admission thresholds) and not so much to the lack of training and information,

J. whereas the Community's legal framework for public procurement is in place but only transcribed into national law and applied by a small minority of Member States,

K. whereas the current legal framework of public procurement is too inflexible and too bureaucratic, and whereas the potential of the procurement market can therefore not be fully exploited,

L. whereas the Commission and the Member States have focused on the area from policy to implementation and neglected the problems from implementation to practice,

M. whereas participation of SMEs in public procurement is still relatively low and an improvement of information and training is therefore of vital importance,

N. whereas informal barriers such as delays of payment by contracting entities still render access to the procurement markets difficult for SMEs,

O. whereas a trend towards the remonopolisation of the public procurement market is apparent,

1. Welcomes the Commission's Green Paper as an overview of the current situation and the wide-ranging questions in the field of public procurement, while regretting the fact that there is no assessment underlying this Green Paper and therefore requests the Commission to draw up an analysis that takes account of the structure of the various sectors;

2. Calls on the Member States to adopt and implement national procurement legislation based on the European directives as soon as possible;

3. Calls on the Commission to provide as soon as possible a full timetable of revisions, negotiations and other actions touching the procurement directives in which it gives its views on the consequences of the directives for the markets that are being liberalised and on which - once it is established - the European Parliament must have full participation;

4. Shares the Commission's view that stability in the public sector is necessary, but points out that actions are needed to solve the most urgent problems in the field of information, clarification and implementation regarding procurement regulations;

5. Draws attention to the role of intermunicipal companies in ensuring efficient and effective services and calls on the Commission to ensure that the public procurement directives do not pose an obstacle to this pooling of resources of municipalities and other public bodies;

6. Is of the opinion that public procurement rules should not prevent municipalities from setting up joint intercommunity companies under private law; these companies should at least get a fair chance to become fully competitive, e.g. by granting them a transitional period (with a maximum of three years), before public procurement rules apply to them;

7. Calls on the Commission to clarify, as part of a review, definitions and terminology in the directives as at the moment they lead to considerable confusion due to the lack of definitions and duplication of terminology between the directives;

8. Asks the Commission in particular to give its view on the demarcation and definition of a 'service' in the directive;

9. Calls for the immediate publication of the Vade Mecums and interpretive texts by the Commission which have been promised for quite some time and which are supposed to serve as an essential tool to harmonise understanding across the Member States;

10. Calls on the Commission to give priority to clear and understandable drafting in all future revisions of the directives in order to avoid unnecessary confusion and costs;

11. Calls on the Commission to take into account, in all future revisions of the directives, the principles stipulated in the SLIM programme, and the need to present the directives in a manner which eliminates ambiguity and avoids problems of interpretation;

12. Calls on the Commission to encourage Member States to establish or identify (at least) one national procurement centre along with regional sub-centres, which will have to fulfill some basic mandatory requirements such as to disseminate information and materials on procurement, to promote and verify procurement training programmes, to clarify procurement rules and procedures, etc;

13. Acknowledges the Commission's view that the procurement directives are not the place to pursue environmental or social polices, but points out that they should not be an obstacle to the promotion of best practice and the maintenance of local (high) standards if this is the wish of the contracting entity;

14. Calls on the Commission to develop a policy to encourage public procurement which promotes sustainability;

15. Notes that contracting entities can already take into account, when stipulating the qualifications of suppliers or in the drawing up of specifications, compliance with social, environmental, quality, sustainability and health legislation, and draws attention to the fact that the lowest price is only one of the alternative criteria for the awarding of a contract, together with that of the financially most advantageous tender;

16. Calls on the Commission to encourage the awarding authorities to practise weighting of their awarding criteria in advance;

17. Encourages the Commission to continue to support the social clause in the WTO and to explore how ILO Convention 94 can be made an integral part of GPA;

18. Encourages the participation of the widest possible section of the market also in contracts below threshold levels but does not believe that this is to be achieved by a lowering of threshold levels, which it is on no account prepared to accept;

19. Is therefore of the opinion that the raising of threshold levels will have positive effects - in particular for SMEs -, due to the high costs involved in the preparation of tenders and in satisfying the requirements which are also imposed in the case of small contracts; therefore calls on the Commission to press for the raising of threshold levels in future negotiations with third countries, as the threshold levels are tied to the GPA;

20. Suggests that automatic compliance forms be incorporated into the submitted information to deal with recognition and respect of employment, the environment and health and safety laws, the principal contractor being responsible for compliance with all applicable laws on behalf of the sub- contractors engaged by him;

21. Is of the opinion that the Commission should be given the right to instigate an investigation and to act upon findings in line with the system of Articles 85-90 of the EC Treaty applied in the case of competition, in order to achieve effective enforcement;

22. Calls for more effective control and enforcement of the directives, with the uniform imposition of meaningful penalties for those who breach or seek to evade the provisions of the directives, as well as a more accessible level of judgement for the resolution of minor disputes or infringements;

23. Calls on the Commission and the Member States to ensure compliance with the recommendation on late payments;

24. Points out that there still does not exist a detailed analysis of the effect of procurement legislation on the maintenance and quality of services and calls on the Commission to carry out a study on this matter;

25. Urges the CEN and CENELEC to expedite the drawing up of standards for a European registration and qualification system;

26. Asks for common rules to be established as to the extent to which consultation is permitted if the consultancy firm concerned wishes to tender for the same contract;

27. Urges the Commission to ensure greater harmonisation of statistical feedback to allow comparisons between the Member States;

28. Draws attention to the fact that the definition of competition as adopted by the European Court of Justice (de jure and de facto competition) in relation to those operating under the utilities Directive can have the effect of giving third countries non-reciprocal access to EU markets, and urges the Commission to formulate a clear and precise definition which shall then serve as a basis for negotiations with third countries to ensure reciprocity;

29. Calls on the Commission as a matter of urgency to ensure reciprocity in the contract award procedures that apply in the European Union and in third countries that are signatories to the GPA;

30. Supports the Commission's view on the introduction of new technologies, including the change to the exclusive use of electronic publishing, to facilitate the opening up of the procurement markets and calls for the institution of full training and information programmes for SMEs, and the continued requirement that all tenders should be published in Community languages, to avoid their being put at a further disadvantage due to lack of knowledge;

31. Urges that the Commission should be open to more flexibility in the technical dialogue between procurement partners, even if amendment of the directives is required;

32. Calls on the Commission, with regard to enlargement, to ensure that acceding countries adopt existing standards etc. within a specific time frame;

33. Supports the Commission's Action Plan for the Single Market and urges the speediest possible implementation by Member States of the EU's tendering directives, as some of these are still not being implemented correctly in many Member States;

34. Calls on the Commission to play an active role in setting up a harmonised code of practice on openness, fairness, legal rules, reciprocity and transparency in procurement dealings at WTO level, and applicable to all member states;

35. Is of the opinion that the exclusion of tenderers not complying with their legal obligations from participation in procurement tenders, albeit on a temporary basis, is a more effective instrument and calls on the Commission to promote its mandatory application;

36. Demands that the four directives (92/50/EEC, 93/36/EEC, 93/37/EEC and 93/38/EEC) be retained as separate entities and in particular that public procurement in the utilities should continue to be subject to a specific directive (93/38/EEC); further demands that the directives be reviewed in depth and updated in line with the current timetable, particularly in view of developments in certain sectors such as telecommunications, where free competition will prevail in future;

37. Instructs its President to forward this resolution to the Commission, the Council and the parliaments of the Member States.