WRITTEN QUESTION E-2798/02 by Caroline Lucas (Verts/ALE) to the Commission. Public procurement: price renegotiation.
Date: 2002-10-07
Institutions: European Parliament, Provisional data
Subjects: EU law, award of contract, competition law, interpretation of the law, public contract, public sector, public service

C 52 E/216

Official Journal of the European Union

EN

6.3.2003

Will the Commission confirm that this failure to consult (cid:1) either with trade unions on site or with the
workforce (cid:1) is a clear breach of Community law?

Will the Commission also indicate if it will now be taking the appropriate legal steps?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(13 November 2002)

The Commission would like to make the point that several Community directives lay down procedures for
informing and consulting workers’
representatives which may apply in the event of closures of
undertakings. These include in particular Council Directive 98/59/EC of 20 July 1998 on the
approximation of the laws of the Member States relating to collective redundancies (1) and Council
Directive 94/45/EC of 22 September 1994 on the establishment of a European works council or a
procedure in Community-scale undertakings and Community-scale groups of undertakings for the
purposes of informing and consulting employees (2). Recently, Directive 2002/14/EC of the European
Parliament and of the Council of 11 March 2002 establishing a general framework for informing and
consulting employees in the European Community (3) has been adopted in order
to supplement
Community legislation in this area, but the deadline for transposal into national
law by the Member
States is not until 23 March 2005.

The first two directives mentioned above have been incorporated into the national law of the Member
States. It is the task of the competent national authorities to assess whether they have been applied
correctly and effectively in each individual case.

(1) OJ L 225, 12.8.1998.
(2) OJ L 254, 30.9.1994.
(3) OJ L 80, 23.3.2002.

(2003/C 52 E/239)

WRITTEN QUESTION E-2798/02

by Caroline Lucas (Verts/ALE) to the Commission

(7 October 2002)

Subject: Public procurement: price renegotiation

Could the Commission confirm that a utility, subject to the procurements rules set forth in Directive 93/
38/EEC (1) may not renegotiate prices or other fundamental aspects of a tender with only one bidder, after
it has terminated the competitive stage of the relevant procurement process, regardless of whether it is
employing the negotiated procedure or otherwise?

(1) OJ L 199, 9.8.1993, p. 84.

Answer given by Mr Bolkestein on behalf of the Commission

(29 October 2002)

A distinction must, first of all, be made between open and restricted procedures, on the one hand, and
negotiated procedures, on the other. In respect of the former two procedures, no real negotiations may
take place as this was explained in a joint Commission and Council declaration which was published
together with the first Utilities Directive, Council Directive 90/531/EEC of 17 September 1990 on the
procurement procedures of entities operating in the water, energy, transport and telecommunications
sectors (1). The declaration reads as follows:
‘The Council and the Commission state that in open and
restricted procedures all negotiation with candidates or tenderers on fundamental aspects of contracts,
variations in which are likely to distort competition, and in particular on prices, shall be ruled out;
however, discussions with candidates or tenderers may be held but only for the purpose of clarifying or
supplementing the content of their tenders or the requirements of the contracting entities and provided
this does not involve discrimination.’

6.3.2003

EN

Official Journal of the European Union

C 52 E/217

for competition,

this principle of

substantially
When using a negotiated procedure with a call
unchangeable tenders does not apply, precisely because the procedure allows for substantial changes to
tenders during the negotiations. As the Directive does not lay down any detailed provisions regarding the
conduct of a negotiated procedure, the determination of what is or is not possible must be based on an
evaluation of whether the underlying principles of equal treatment, non-discrimination and transparency
have been observed. This implies for instance that any modification or new element should respect the
parameters of the tender notice and the contract documents, as these have been defined by the contracting
authority.
In addition, tenderers should be treated equally; the contracting authority should not, for
example, discriminate by providing information which may give some tenderers an advantage over others
or to allow some tenderers more latitude when proposing modifications over others. Finally, the contract
to be signed should not present characteristics which are fundamentally different from those initially
published. To assess whether these principles were adhered to is therefore a matter to be evaluated taking
into account the specifics of each individual case. It is therefore not possible to determine in the abstract
whether each and any change to prices or other elements that are agreed with the preferred bidder in a
negotiated procedure constitute a violation of these principles.

(1) OJ L 297, 29.10.1990 subsequently replaced by the current Utilities Directive, Council Directive 93/38/EEC of

14 June 1993, OJ L 199, 9.8.1993, which is unchanged on this issue.

(2003/C 52 E/240)

WRITTEN QUESTION E-2799/02

by Caroline Lucas (Verts/ALE) to the Commission

(7 October 2002)

Subject: Public procurement: tender evaluation

Could the Commission confirm that a utility, subject to the procurements rules set forth in Directive 93/
38/EEC (1), and employing the negotiated procedure, is bound to evaluate tenders on an objective, non-
discriminatory basis and to select the lowest or most economically advantageous offer?

(1) OJ L 199, 9.8.1993, p. 84.

Answer given by Mr Bolkestein on behalf of the Commission

(4 November 2002)

Pursuant to Article 34 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement
procedures of entities operating in the water, energy, transport and telecommunications sectors, and
whichever award procedure has been chosen, the criteria on which the contracting entities shall base the
award of contracts shall be either the most economically advantageous tender or the lowest price only.
As with all other provisions of the Directive, application of this rule must be guided by the principles on
which the Directive is based: the principles of equality of treatment, of which the principle of non-
discrimination is no more than a specific expression, mutual recognition, proportionality, transparency and
the opening-up of public procurement to competition.

(2003/C 52 E/241)

WRITTEN QUESTION P-2805/02

by Christos Folias (PPE-DE) to the Commission

(30 September 2002)

Subject: Directive 2000/35/EC on combating late payment in commercial transactions

Article 6 of Directive 2000/35/EC (1) on combating late payment in commercial transactions states that
‘Member States shall bring into force the laws, regulations and administrative provisions necessary to
comply with this Directive before 8 August 2002.’