Framework agreements
The Commission proposes a more general and less detailed provision on framework agreements, which entails that no detailed procedural rules apply to the award of contracts based on a framework agreement. The Commission proposes to maintain the restriction that the term of a framework agreement, as a general rule, cannot exceed four years. This restriction, however, does not apply to framework agreements on health and social services.
Modification of contracts
The Commission is of the opinion that the rules on modification of contracts in the new Public Procurement Directive to a great extent already follows from the general principles of equal treatment, transparency, etc. Thus, the Commission finds it useful to introduce the new provisions on modification of contracts in Part I of the Regulation. However, the majority of the Commission emphasizes that the assessment of whether a modification is substantial may, in line with the principle of proportionality, vary for the different parts of the Regulation. Therefore, a contracting authority has more room to make changes to a contract covered by Part II than to a contract covered by Part III. The minority of the Commission believes that the assessment of a modification should be the same, irrespective of whether it is covered by Part II or III. All members of the Commission, however, agrees that there will be a wider room to modify a contract on health and social services, due to the special nature of these services, when this is justified by the subject-matter of the contract and the needs of the individual user.
Division of contract into lots
The Commission does not see a need for specific provisions on the possibility to divide a contract into lots. A contracting authority wanting to make such a division, has the possibility to do so.
Subcontractors
The majority of the Commission does not propose any provisions on the use of subcontractors in Part II of the Regulation. Thus, contracting authorities are under no obligation to require certain information on subcontractors. A minority of the Commission proposes, however, to limit the number of subcontractors in the supply chain.
The Commission does not propose to introduce any provisions on direct payment to subcontractors.
For contracts covered by Part II of the Regulation, the current rules allow for contracting authorities to use three different procurement procedures: An open procedure without negotiation, a restricted procedure without negotiations, and a negotiated procedure. When the contracting authority has chosen an open or a restricted procedure, no negotiations are allowed. Consequently, it is not possible to make any changes to the tenders after the expiration of the time limit for submission of tenders. To a limited extent, some clarifications can be made. This distinction between permitted clarifications and non-permitted negotiations gives rise to a number of difficulties in practice and has lead to a number of complaints.
The majority of the Commission propose to replace the current procedures with two new procedures: An open procedure with the possibility to negotiate and a restricted procedure with the possibility to negotiate. The choice of whether to negotiate or not, will be postponed until the expiration of the time limit for the submission of the tenders. It is only when the contracting authority knows the content of the tenders, that it has the full basis to assess whether there is a need for negotiations. If the contracting authority decides to start negotiations, it is free to decide the scope and content of the negotiations. This could include everything from simple clarifications to full-fledged negotiations on all aspects of the tenders. This means that there is no need for separate provisions on clarifications.
The minority of the Commission does not see a need to introduce new procurement procedures. This is based on the fact that procedures without access to negotiation has been the most used procedures, and that such procedures in many cases will be the most effective. It can also be economically sound for contracting authorities to bind themselves not to negotiate, and this will also ensure predictability for the economic operators. Finally, the minority fears that the proposal from the majority will weaken the incentives for contracting authorities to properly prepare the procurement, and that it will lead to procurement documents of poor quality.
The Commission does not propose separate provisions on competitive dialogue or innovation partnerships for Part II of the Regulation.
The Commission proposes to continue the provision on selection of economic operators in a restricted procedure where the contracting authority has limited the number of suitable candidates it will invite to tender, with some adjustments.
Pursuant to the current provision in Article 8-6, the contracting authority is required to invite a sufficient number of economic operators to ensure genuine competition, and not less than three. The Commission proposes to repeal this condition, since the requirement to ensure genuine competition already follows from the objectives of the regulations.
Furthermore, the Commission proposes to repeal the second sentence of Article 8-6 paragraph 3, as this is self-evident.
Electronic means of communication can greatly simplify the public procurement procedures and increase the efficiency of the processes. Directive 2014/24/EU therefore requires that all communication, for contracts covered by the directive, is done by electronic means. The Commission proposes that this should also be a requirement for contracts covered by Part II of the Regulation. The Commission further calls on the Government to implement these new rules on communication as soon as possible and encourages it, in particular, to put in place rules and systems to facilitate the electronic submission of tenders by 1 January 2016.
Until such legislation is in place, the Commission proposes to leave it up to the contracting authority to decide the means of communication. A majority of the Commission proposes to allow for the submission of tenders by ordinary e-mail. A minority of the commission cannot support such a proposal, due to the lack of information security.
The Commission does not propose any specific provisions on dynamic purchasing systems or e-auctions in Part II of the Regulation.
The Commission proposes certain changes to the provisions on the procurement documents. These documents shall contain a description of the procurement, the conditions for performance of the contract and the procedural rules for the competition. It also proposes that the contracting authorities shall be allowed to make changes to the procurement documents at any stage, as long as the changes made after the publication of a notice are non-substantial.
Criteria for qualitative selection of economic operators
The Commission proposes to maintain the current provision that allows, but not requires, contracting authorities to set criteria for qualitative selection of economic operators. It does not see a need to clarify in the provision that such criteria must be linked to the subject-matter of the contract and that they must be proportionate and non-discriminatory, as this is already implied and follows from the general principles.