News

In December both the Internal Market Committee in the Parliament (IMCO) (see report) and the Council (see compromise text) voted their position on the public procurement directive. The Secretariat has made an analysis of both texts to see to what extent our demands are reflected in them.

As we pointed out in our article of two weeks ago, we are generally satisfied with the IMCO Committee report, as our main demands have been taken on board in the text, especially as regards the provisions related to social, health and other services to the person. However, the provisions concerning the scope and the use of social considerations could have been more progressive.

Concerning the procedures for the award of contracts for social, health and other services to the person, our main demand to abolish the lowest cost as award criterion and to make quality a mandatory element in the award criteria has been included in the Parliament’s text; while the Council’s text keeps the two award criteria proposed by the Commission: the lowest cost and the “most advantageous economically tender” (a set of criteria where cost is only one element to be assessed in a weighted way).

We also asked to explicitly recognise the alternatives to public procurement in the provision of social services: in the IMCO report a specific article – art. 1 – has been included to clarify that the directive does not put in question the right of public authorities to provide services themselves (in compliance with Protocol 26 and art. 14 TFEU); a recital – 3 b – has been added to state that the directive does not deal with the liberalisation of services of general economic interest, that member states are free to organise the provision of compulsory social services and other services as services of general economic interest or as non-economic services of general interest; non-economic services of general interest fall outside the scope of the directive. Also the Council’s text contains a very similar provision, but the IMCO Committee text clearly recognises that the directive should not apply to tried and tested procedures in member states that are based on the users' free choice of service providers for services of general interest (i.e. voucher system, free choice model, triangular relationship). Both texts also specify that the directive does not affect the way in which member states organise their social security legislation.

Another important demand from our side was to extend the possibility for contracting authorities to reserve markets for the provision of those services to non-profit organisations: unfortunately it has not been achieved in both texts.

We also advocated promoting public procurement as a tool to support social and other societal objectives.

We called on extending the possibility to include social considerations related to the production process of the product / work / service procured throughout the whole procedures and not only in some specific phases. Unfortunately both texts do not refer to this possibility and the scope of social considerations is mainly employment related.

Both texts keep the Commission’s proposal to promote reserved markets as a tool to support the social and professional integration of people with disabilities and disadvantaged people.

We finally suggested improving the provisions on abnormally low bids to ensure that working conditions of the workers involved in the production of goods / works / services procured are respected. The IMCO texts shows some progress; however the criteria suggested by the Commission to determine when a tender is considered “abnormally low” have been deleted in both texts.

Members can read the analysis provided by the Secretariat and can contact Valentina Caimi if they have a different assessment of some provisions.