Source: EURLEX
Language: en
Format: md

16.5.2001 EN Official Journal of the European Communities C 144/23

**Opinion of the Committee of the Regions on:**

**—**
**the ‘Proposal for a Directive of the European Parliament and of the Council on the**
**coordination of procedures for the award of public supply contracts, public service contracts**
**and public works contracts’, and**

**—**
**the ‘Proposal for a Directive of the European Parliament and of the Council coordinating the**
**procurement procedures of entities operating in the water, energy and transport sectors’**

(2001/C 144/08)

THE COMMITTEE OF THE REGIONS,

having regard to Proposal for a Directive of the European Parliament and of the Council on the
coordination of procedures for the award of public supply contracts, public service contracts and public
works contracts and the Proposal for a Directive of the European Parliament and of the Council
coordinating the procurement procedures of entities operating in the water, energy and transport sectors

[COM(2000) 275 final — 2000/0115 (COD) and COM(2000) 276 final — 2000/0117 (COD)];

having regard to the decision of the Council on 8 September 2000, under the first paragraph of
Article 265 of the Treaty establishing the European Community, to consult it on this matter;

having regard to the decision taken by its Bureau on 2 June 1999, to draw up an opinion on this matter
and to instruct Commission 6 for Employment, Economic Policy, Single Market, Industry and SMEs to
undertake the preparatory work;

having regard to the Commission’s Communication on Public Procurement in the European Union
(COM(98) 143 final);

having regard to its opinion on the Commission’s Communication on Public Procurement in the
European Union (CdR 108/1998 fin)( [1] );

having regard to the Commission’s Green Paper on Public Procurement in the European Union: Exploring
the Way Forward (COM(96) 583 final);

having regard to its opinion on the Green Paper on public procurement in the European Union: Exploring
the way forward (CdR 81/1997 fin)( [2] );

having regard to the decision of its President of 26 October 2000 to appoint Ms Segersten-Larsson as
rapporteur general to draw up an opinion on this subject, in accordance with Rule 40.2 of the Rules of
Procedure of the Committee of the Regions;

having regard to a number of relevant European Court of Justice rulings, such as the judgment of the
Court of Justice of 26 September 2000 in case C-225/98, the Commission versus France, for failure to
fulfil its obligations under Council Directive 71/305/EEC of 26 July 1971, as amended by Council
Directive 89/440/EEC of 18 July 1989 and Council Directive 93/37/EEC of 14 June 1993, concerning
various procedures for the award of public works contracts for the construction and maintenance of
school buildings;

having regard to the draft opinion (CdR 312/2000 rev. 1), drawn up by the general rapporteur
Ms Segersten-Larsson, S-EPP,

adopted the following opinion at its 36th plenary session, held on 13 and 14 December 2000 (meeting
of 13 December).

( [1] ) OJ C 373, 2.12.1998, p. 13.
( [2] ) OJ C 244, 11.8.1997, p. 28.

C 144/24 EN Official Journal of the European Communities 16.5.2001

1. **Views of the Committee of the Regions** limits there are areas in which the COR wishes to see the
directive go further. The Committee feels that it is particularly
important to address all aspects of electronic procurement as
1.1. The Committee of the Regions (COR) welcomes the this is a fast changing field and the situation in 2002 when the
fact that the Commission has taken on board the criticism of directive is implemented will be very different to today.
the unnecessarily bureaucratic nature and application of
the procurement rules, and the Commission’s intentions to
emphasise increased flexibility, modernisation and simplification. 2.1.2. Specifically, the COR urges the Commission to
include provisions explaining how the placing of orders
through electronic catalogues (online ‘marketplaces’ or ‘shop1.2. The COR endorses the idea of merging the three ping malls’) should be treated under the directive. This should
standard directives into a single directive. The readability of be closely linked to the provisions on framework agreements,
the Directive has been simplified considerably by introducing which should be revised in accordance with the COR’s
contents pages and intermediate headings in the texts. This is suggestions below.
a positive development.

1.3. It is also positive that the proposal would increase
opportunities for electronic trade, and this is entirely in line 2.2. _New rules on particularly complex procurement contracts_
with what the COR has proposed in the past.

1.4. It quite rightly includes measures to discourage organ- 2.2.1. The COR earlier warmly welcomed the Commission’s
ised crime in public procurement.
proposal to introduce more flexible forms of procurement,
particularly procurement of complicated equipment and similar contracts. In its Opinion on the Green Paper (point 2.2.13)
1.5. The COR also welcomes the fact that the telecommuni- the COR said that ‘provisions on negotiated procedures
cations sector is exempted from the Utilities Directive. similar to those of those of the Utilities Directive should be
incorporated into other directives’.

1.6. However, the COR feels that the Commission has
sometimes lost its way in its proposals and that, as presented,
they lack certain elements. Unfortunately, the COR also thinks 2.2.2. The COR understands that the new procedure meets
that some of the proposals would be counter-productive. the specific requirements of some Member States whose
contracting authorities are engaged in public-private partnerships (PPP) projects on a large scale. However the COR takes
1.7. The COR considers that the Commission’s plans to the view that the Commission’s proposals are not sufficiently
address a number of important topics including environmental far reaching because the procedure is neither sufficiently
and social considerations in procurement in non-binding flexible nor generally accessible. Procurement of services is a
interpretative documents are not appropriate and wishes to field which generally requires much contact between buyers
see these important topics properly addressed in the directives. and sellers throughout the procurement process. This is not
an exceptional requirement, and the present rules are far too
rigid in this area.
1.8. The COR considers that the proposed Directive must
state explicitly that it is possible for contracting bodies to use
social or environmental considerations as award criteria, and
that these must be mentioned expressly in the invitation to 2.2.3. The term ‘objectively’ in the grounds for using the
tender. Purely economic criteria should not be the only ones procedure needs to be explained, and an additional ground
to determine the best and most advantageous tender. needs to be added to reflect the reality of PPPs, namely: ‘Cannot
effectively allocate risks and rewards under the contract
without negotiation with economic operators.’

2. **The Committee of the Regions’ recommendations on**
**the proposed directive**
2.2.4. The COR is particularly concerned about the provision concerning ‘outline solutions’. Economic operators will
consider that they have intellectual property rights in any such
2.1. _Electronic procurement_ outline solutions and may demand payment for such solutions
whether or not they are used. As local authorities will have no
budget to pay for outline solutions this will effectively prevent
2.1.1. While the COR generally welcomes the new pro- them using the new procedure. As an alternative the COR
visions on electronic procurement and the reduction in time proposes that the term ‘outline solution’ is substituted. This

16.5.2001 EN Official Journal of the European Communities C 144/25

would not represent a technical solution but describe the arrangements or agreements) that these are to be treated in the
economic operators’ approach to carrying out the contract same way as any other public contracts and not as framework
and would help the contracting authority to better define its agreements in the special sense of the draft directive.
requirements in the specifications which form the basis of the
subsequent negotiations.

2.3.5. The COR sets great store by this, so that doubts will
2.2.5. In its Opinion on the Green Paper, the COR said that not arise later as to whether agreements now regarded as
‘it cannot be considered necessary to suspend the procurement framework contracts are covered by the new rules or not. For
procedure because the price offered is higher than the con- example, this covers the customer choice models used in a
tracting entity can afford, when negotiation could have number of member countries, where a contracting authority
produced a lower price acceptable to both purchaser and enters into a contract with a number of suppliers, and the
seller’. This problem is not solved by the current proposals. individual citizen later chooses the supplier, along with the
municipal or regional contracting authority’s contract.

2.2.6. The COR urges the Commission to amend the
directive so that the contracting entity has the possibility to
use a negotiated procedure characterised by great flexibility, 2.3.6. Nor is the procedure which would apply to a
and to make it possible to hold a wide-ranging dialogue with framework agreement sufficiently flexible. This particularly
suppliers before, during and after the procurement process. applies to the fact that competition has to be reopened every
The Commission ought here to take the provisions of the time the agreement is used, which generates more work for
Utilities Directive as a model. the contracting entity and defeats the purpose of a framework
agreement. It also applies to the requirement for at least three
suppliers and the time-limit on the duration of the agreement.
This procedure may have a use but it is so different from the
2.3. _Framework agreements_ normal way in which framework agreements are used in some
Member States that it really should be called by another name.

2.3.1. In its earlier opinion, the COR expressed the view
that framework agreements ought to be expressly permitted in
all the directives, and it is to be welcomed that the Commission 2.3.7. The Commission seems to have assumed above all
proposes the regulation of framework agreements. However, that the provisions of the framework agreements will be used
the COR takes the view that the proposed regulations are mainly for procurement of computer equipment and similar
unsatisfactory and do not provide the necessary flexibility. procurement contracts. However, procurement under the
framework agreements is also used for other types of procurement in order to satisfy an individual requirement, for example
facilities for the handicapped: in that respect the proposed
2.3.2. In its explanatory statement, the Commission disting- method is not realistic.
uishes between framework contracts and framework agreements. Framework agreements are not regarded as contracts
within the meaning of the directive, since they do not include
all the necessary elements for them to be used as the basis for
2.3.8. If the Commission is intent on expressly covering
a delivery.
framework agreements in the classical directive, the COR takes
the view that the text proposed for the Utilities Directive
describes much better the wide range of different techniques
2.3.3. However, framework contracts are covered by the
which Member States regard as framework agreements and
directive’s definition of public contracts. The explanatory
provides the necessary flexibility.
statement gives a contract with an order form as an example
of such a contract. In some Member States ‘framework
contracts’ of this kind are considered non-binding and hence
referred to as ‘framework arrangements’ or ‘framework agreements’ in those Member States. By using the term ‘framework
agreement’ in the directive to describe what is essentially a new 2.4. _Modifications to threshold values_
procedure, the Commission is adding to the confusion rather
than bringing clarity.

2.4.1. The Commission proposes that the number of
2.3.4. The Commission’s proposals cover only framework threshold values be reduced and that they be given in euro. It
agreements in the special sense accorded to this term in the is good in itself for the number of threshold values to be
directive, but in the COR’s view this is not stated with sufficient reduced, but expressing them in euro must not mean in
clarity. The definition must be clearer. In particular, it should practice that any value is reduced from its present level.
be clear to those Member States who regularly award non- However, the proposal does in practice mean a reduction in
binding framework contracts (which they call framework most cases — something which the COR cannot accept.

C 144/26 EN Official Journal of the European Communities 16.5.2001

2.4.2. The COR has stated in earlier opinions that the comply with national social sector regulations in the Member
threshold values are set far too low and ought to be raised. State concerned. A contracting entity should not have to
The COR holds to this view and calls upon the Commission accept suppliers which, for instance, violate rules on job
to take steps to renegotiate the Government Procurement protection, the working environment, minimum pay or child
Agreement (GPA) on this point. labour. Such requirements should be clearly stated in the
invitation to tender, and not be discriminatory. These key
aspects are dealt with by the European Court of Justice in the
2.4.3. The low threshold values are particularly problematic ‘Beentjes’ case (31/87) and, most recently, in case C-225/98.
The COR feels that it is essential for the principles established
in the procurement of services, since transaction costs are
in case law to be spelt out clearly in the directive.
often relatively high in relation to the value of the contract, as
the COR has already pointed out at an earlier stage. Part of the
problem with the low threshold values could therefore be
solved if a provision were included in the directive to the effect
that negotiated procurement with prior announcement would 2.5.5. The COR feels strongly that contracting authorities
always be permitted for minor service procurement contracts,
should be able to ask for additional categories of information
e.g. for contracts below a value of EUR 400 000. This should
at the qualitative selection stage. Specifically, authorities should
enhance flexibility.
be permitted to seek information, e.g. on economic operators’
policy regarding environmental management.

2.5. _Criteria for quality selection_

2.5.1. The COR welcomes the fact that the Commission 2.6. _Contract award criteria_
proposes some tightening up with regard to breaches of law
by suppliers. It is the COR’s view that dishonest suppliers
should not be allowed to take part in public procurement.

2.6.1. The Commission proposes that the criteria for awarding contracts, where it is not just a matter of the lowest price,
2.5.2. However, the COR takes the view that the Com- should be directly linked with the nature of the contract:
mission must clarify which situations are covered by this is a new departure. The consequence of this is that
Article 46 (1) which states that an economic operator shall be environmental requirements cannot be imposed on production
excluded from a procurement contract if he has been convicted processes. The COR, in its Opinion on the Communication on
of corruption in the previous five years. In countries where a public procurement (point 3.1.2), stated: ‘The COR considers
legal person cannot be convicted of corruption, would the it crucial in public procurement to be able, in addition to
provision apply to all the supplier’s employees? In the affirm- laying down certain conditions with regard to a product’s
ative, are penalties to be imposed — and if so, which penalties properties (e.g. the PVC content of plastic), to impose objective
— if the economic operator has, for example, introduced requirements concerning the overall environmental impact of
appropriate preventive measures in his enterprise or has a product and of a company, including the production process’.
dismissed without notice the manager who committed the The COR reaffirms that view.
criminal offences without the knowledge of the economic
operator? What would then happen if such an employee were
to move to another employer or start a new firm? What
happens in a case where only a supplier who has been
convicted of corruption can deliver certain goods, or where it 2.6.2. However, the COR welcomes the fact that the
would be very costly to change supplier? The COR thinks that environment is mentioned among the criteria to be taken
these questions must be discussed further. It should also be into account in awarding contracts. Although this is not a
borne in mind here that the penalties would be imposed in substantive change — since the adjustment is only by way of
accordance with national practice since there is, as yet, no example — it is an important signal and a reminder to
European criminal law. contracting entities that it is right to consider environmental
impact in public procurement. However, the COR takes the
view that the word ‘environmental impact’ should be used in
the text of the directive instead of ‘environmental character2.5.3. The proposed wording would most definitely cause
istics’, since the latter wording reduces the scope to impose
problems for the contracting entities and for citizens in the
environmental requirements than exist at present.
area of pharmaceutical procurement, in cases involving a
unique, life-sustaining drug which cannot be obtained from
any other supplier. The Commission must consider a different
wording for this very special and unusual case.

2.6.3. The Commission also proposes that the contracting
authority should specify the relative weighting which it
2.5.4. The COR regards it as most important that the gives to each of the criteria chosen to determine the most
contracting entities should be able to require suppliers to economically advantageous tender.

16.5.2001 EN Official Journal of the European Communities C 144/27

2.6.4. The Commission’s intention is to ensure greater performance of the contract should not prejudice the conopenness in procurement procedures and equal treatment for tracting authorities’ right to decide themselves on what shall
suppliers. The COR does not think that the rule is likely to be procured; for example, this applies to the possibility of
have this effect. The rule is based on an unrealistic idea that imposing environmental requirements on production processthe value of each of the criteria can be determined when the es, and to social requirements which must of course be nonprocurement procedure begins. However, this presupposes discriminatory so that the requirement can be met by suppliers
that the contracting authorities have complete information at of all Member States.
their disposal in advance; this would probably only apply in
exceptional cases.

2.6.5. The Commission proposal implies that the scheme 2.8. _The common procurement vocabulary (CPV)_
would be set up when various parameters have been established and that, with the help of the weighting, it could later
be established with mathematical exactitude which tender is
2.8.1. The COR thinks there is a clear advantage in
economically most advantageous. In practice this is an almost
employing only one system. The problem is that the existing
impossible task and, if it also involves ‘soft’ parameters such as
CPV nomenclature gives rise to many problems because of its
aesthetic profile, it becomes meaningless.
heterogeneous structure and its ambiguity in many areas.

2.6.6. It would be completely impossible to weight the
criteria in procurement contracts where a large number of 2.8.2. The practitioners in this field point out that it is
different articles are bought in one and the same contract, e.g.
difficult to find one’s way in the CPV (for example, parking
foodstuffs, medical equipment or medicines. In procurement
meters are listed with medical apparatus and pharmaceutical
of medicines for hospital use, a county council in Sweden
products), that it is difficult to know which number is relevant
normally buys all the various medicines it needs in one
in an individual case (e.g. is a given implant surgical or
procurement contract. If the criteria were to be weighted, a
orthopaedic?); in addition, certain headings are missing in
different weighting would be needed for each group of
some groups (in the health and nursing services group, urban
products. The criteria of ‘taste’ naturally carries more weight
cleansing services are listed while child health care is missing).
when the medicines are for small children than when they are
The deficiencies in the nomenclature also cause problems for
for adults. This means that the procurement contracts would
suppliers. They say that it is difficult to find relevant notices
have to be divided up so that the same weighting applied
and that they lack basic data on procurement contracts because
within each group; this would lead to a situation where a large the nomenclature has misled them to think that the contract
procurement contract exceeding the threshold value would
concerned a certain product or service, whereas in reality
have to be divided up into many small procurement contracts,
something quite different is involved. These problems also
many of which would certainly fall below the threshold value. constitute an obstacle to the extension of electronic commerce.

2.6.7. Professional buyers who have seen the proposal do
not think it will work in practice. The COR does not think that 2.8.3. The COR therefore urges the Commission to improve
impracticable rules should be included in the directive. There the CPV nomenclature as soon as possible so as to make it an
is also a high risk that the rule might lead to a large number of effective instrument for the future.
unnecessary court cases relating to the weighting.

2.6.8. The contracting authorities should be able to include 2.8.4. An improved CPV could also be a tool enabling the
objective social criteria which are not discriminatory and Commission to obtain correct procurement statistics directly
which guarantee equality of treatment and free competition. from the Tenders Electronic Daily (TED), thereby reducing the
administrative burden on contracting entities.

2.7. _Special contract provisions_

2.9. _Exclusive rights_
2.7.1. The Commission proposes a new rule on the possibility of imposing special requirements on the execution of the
contract, the aim of which is to codify existing law on the
subject. However, the wording is restrictive in relation to the 2.9.1. The proposal on exclusive rights granted to a body
case law which it is intended to codify, since it introduces a other than a contracting authority (in Article 55) is unclear.
requirement for the condition to be related to the performance The wording is far too broad, as it could perhaps be interpreted
of the contract. as covering all the contracting authority’s contracts with
private suppliers: from a strictly logical viewpoint, any contract
can be said to contain an element of exclusive right. It ought
2.7.2. The COR thinks it important that the wording which to be made clear, too, that the provision concerns only
provides the possibility of imposing special conditions on contracts related to the exclusive right itself.

C 144/28 EN Official Journal of the European Communities 16.5.2001

2.10. _Deadlines in negotiated procurement_ that the transfer of tasks from e.g. a municipality to an
inter-municipal cooperative enterprise (e.g. a waste disposal
consortium) will not be covered by the directive.
2.10.1. The Commission proposes a tightening of the rules
on deadlines in negotiated procurement: a time-limit of 40 days
for receipt of a tender is proposed, whereas in the existing 3.2.3. These problems have also been dealt with by the
directive no deadline is laid down for this. Court of Justice in the Teckal case (Case C-107/98) and in the
Arnhem case (Case C-360/96) and by national courts.

2.10.2. The COR thinks that the proposal would mean less
flexibility, and that the proposed change should not be 3.2.4. The COR calls upon the Commission to clarify these
introduced. questions in the procurement directive.

3. **The Committee of the Regions’ recommendations on** 3.3. _Privatisation_
**questions not covered in the draft directives**

3.3.1. The COR has also drawn the Commission’s attention
in the past to the problems which can arise with the
3.1. _Procurement compatible with the environment_
privatisation of public enterprises and in cases where
employees are given the opportunity to set up their own
business which, under contract, takes over tasks from local
3.1.1. In its earlier opinions, the COR devoted special and regional authorities.
attention to the possibility of imposing environmental requirements on procurement contracts. The current proposals for
directives are unsatisfactory on this point, since some of the 3.3.2. The COR takes the view that the rules on service
proposals apparently tighten the rules. The COR takes the
procurement should not hinder these processes. On the
view that it is essential for regional and local authorities to
contrary, it should be possible, as a transitional solution and
have the right to decide for themselves what is to be procured.
for a limited period, to purchase without a procurement
The procurement directive should simply ensure openness and
procedure; this means that the competition would increase in
equal treatment in the procurement process. For example, a
the long run.
contracting entity which wishes to buy organic vegetables, or
hormone-free meat, should have the right to do so and to refer
to relevant environmental markings and certification systems.
These requirements are to be set out in the specifications. 3.4. _Definition of service contract and the division into ‘A’ and_
_‘B’ services_

3.1.2. Since the Commission, in its draft explanatory communication on environment-friendly procurement, and by
3.4.1. The Commission should consider moving certain
tightening up the draft directives, appears to some extent to
services from the ‘A’ to the ‘B’ category. Certain financial
question this right to buy what one wishes, the COR feels it
services, for example, are not suitable for procurement under
important for the Commission to include in the directive
the very formal rules in category ‘A’, since, among other things,
provisions making it possible to impose requirements for
the provisions on time-limits make it difficult to act in a
environmental marking and certification on production probusinesslike manner.
cesses and delivery of services.

3.4.2. Public service contracts are defined in the proposal
3.2. _Inter-municipal cooperation_ as mutually binding agreements between one or more service
providers and a contracting authority, which exclusively or
principally should cover the services listed in Annex 1. There
3.2.1. In its opinions on the Green Paper and on the has been some confusion as to the meaning of ‘exclusively or
Communication on public procurement, the COR referred to principally’, and the phrase ought to be replaced.
the problems which the procurement directive raises for intermunicipal cooperation.

3.5. _Qualification systems_
3.2.2. In the opinion on the Green Paper (point 2.4.3), the
COR stated that ‘it must be established that procurement by
regional and local authorities from their own independent 3.5.1. The COR urges the Commission to include prolegal entities does not fall within the scope of the directives visions concerning ‘qualification systems’ in the classic direcand must be regarded as production carried out under their tive which parallel those in the new Utilities Directive. Such
own management’. The Commission was also urged to clarify arrangements are used in several Member States and their use

16.5.2001 EN Official Journal of the European Communities C 144/29

is now severely constrained by the procurement directives. local and regional authorities in the application of procurement
The Committee does not see why the use of systems by rules, they are represented only to a very limited extent in the
the utilities concerned is considered to be consistent with bodies which the Commission regularly consults.
Community law while other contracting authorities are prevented from using them.
3.6.2. The COR therefore urges the Commission to ensure
3.6. _Representation of local and regional authorities_ that the local and regional levels are represented in these
bodies; this would enable the Commission to make better use
3.6.1. The COR wishes to draw the Commission’s attention of the experience accumulated by the local and regional
once again to the fact that, despite the central role played by contracting authorities.

Brussels, 13 December 2000.

_The President_

_of the Committee of the Regions_

Jos CHABERT