CoR disapointed with Commission’s proposals
By Sophie Mosca | Monday 25 June 2012
The EU Committee of the Regions (CoR) finds the draft directives on public procurement too complicated and too binding for contracting authorities. These are some of the criticisms formulated in a report by Catarina Segersten-Larsson (EPP, Sweden) adopted in the Commission for Economic and Social Policy (ECOS - 27 to two, with 14 abstentions), on 25 June.
The report concerns the legislative package presented by the European Commission, on 21 December 2011, aimed at clarifying and modernising the existing directives
Europolitics 4328 and 4333).
Firstly, according to the report, the texts fail to achieve the objective of legislative simplification, highlighted by the CoR in its May 2011 opinion on the green paper on public procurement. The report regrets that “the new proposals are also difficult to understand and extraordinarily detailed”. They are more like a regulation than a directive and even though provisions are included to facilitate public procurement, they entail new administrative burdens that are “unacceptable for contracting authorities, in particular at local and regional level,” states the rapporteur.
TOO MANY CONSTRAINTS
For Segersten-Larsson, the Commission tends to create too many restrictions for the contracting authorities. She explains that the draft directives introduce details on derogations from public procurement rules in favour of cooperation between public authorities, but that the authorities remain hamstrung. Another example: while the CoR suggested, as a means of simplifying rules and giving contracting authorities more leeway, that the provisions of the classic public procurement directive should be in line with those of the current directive on network services, and thus more flexible, the Commission proposes on the contrary to restrict this directive on network services.
Scrapping of the distinction between priority services (List A) and non-priority services (List B) – lighter procedural rules applied to the latter – is also disputed in the report. “Social and health services are not the only ones that should be given an exemption,” states the report, which mentions legal services, catering, cleaning and similar services provided to the elderly or people with disabilities.
Segersten-Larsson also takes a lukewarm view of measures to encourage SME participation: she supports the ‘European public procurement passport’ in the form of standardised electronic registration as a way to reduce paperwork, but she is opposed to an obligation to divide contracts over €500,000 into lots and having to justify non-application (‘comply or explain’ principle). She considers the use of e-procurement positive for simplifying procedures but the directives should not impose a deadline for making it compulsory, which could penalise SMEs, or lay down specific rules to impose it through group purchasing organisations; this must be the decision of contracting authorities.
LEGAL BASIS CHALLENGED
The rapporteur also challenges provisions that legally should not be included, such as those on changes to contracts during their period of validity, which come under national contract law, or those criticised sharply by the majority of the rapporteur’s fellow CoR members – with the exception of the Socialists – to limit subcontracting, seen as too complicated to organise.
Similarly, the directive should not contain measures on the national public procurement surveillance authority because this runs counter to member states’ right to organise their administration, according to the rapporteur. She adds that this measure was not the subject of prior consultation (not even in the green paper), in violation of the subsidiarity principle.
The text will be presented to the 9-10 October CoR plenary.(1) Directives 2004/18 on the coordination of procedures for the award of public works, supply and service contracts and 2004/17 for the water, energy, transport and postal services sectors