PROCUREMENT PROCEDURES IN THE WATER, ENERGY
AND TRANSPORT SECTORS
(21472)
10346/00
COM(00) 276
|
Draft Directive on the co-ordination of the procurement procedures of
entities operating in the water, energy and transport sectors
|
| Legal base:
| Articles 47(2), 55 and 59 EC; co-decision; qualified majority voting
|
| |
| Document originated:
| 10 May 2000 |
| Forwarded to the Council:
| 11 July 2000 |
| Deposited in Parliament:
| 27 July 2000 |
| Department: |
Trade and Industry |
| Basis of consideration:
| EM of 3 October 2000 |
| Previous Committee Report:
| None but see paragraph 21.1 below
|
| To be discussed in Council:
| 30 November 2000 |
| Committee's assessment:
| Politically important |
| Committee's decision:
| Cleared |
Background
21.1 On 29April 1998, we reported[53]
on a Commission Communication on public procurement in the European
Union. This followed an earlier Green Paper in 1997, Public
Procurement in the European Union: exploring the way forward.
That Communication included the Commission's intention to bring
forward amending directives on public procurement.
The document
21.2 This document is the Commission's proposal
for amending and replacing Directive 93/38/EEC, as amended by
Directive 98/04/EC, on procurement by contracting entities operating
in the water, energy, and transport and telecommunications sectors.
The purpose of the proposal is to simplify and clarify the existing
Directive and to bring it up to date, for example to take account
of market changes such as e-commerce and the gradual liberalisation
of the water, energy, transport and telecommunications sectors.
Additionally, the Commission proposes some re-drafting and re-structuring
in the interests of user-friendliness. In her Explanatory Memorandum
of 3 October 2000, the Minister for Energy and Competitiveness
in Europe at the Department for Trade and Industry (The Rt. Hon.
Helen Liddell) says that the main substantive amendments are:
"— a revised
definition of special or exclusive rights based on a decision
of the European Court of Justice;
"— exclusion of operators in the telecommunications
sector from the scope of the Directive on the basis that progress
towards the liberalisation of that sector is virtually complete
throughout the Member States;
"— the introduction of a general mechanism
under which the Commission can exclude other sectors from the
application of the Directive when it is established that, in the
area in which they operate, they are exposed directly to competition
in a market to which access is not limited;
"— extension of existing provisions
on the debriefing of candidates and tenderers to entities not
also subject to the World Trade Organisation (WTO) Government
Procurement Agreement;
"— retention of the existing exclusion
for deregulated bus operators in the UK and of the alternative
régime for oil and gas exploration and exploitation in
the UK; and
"as in the proposal for the public sector Directives
(10345/00):
"— more scope for electronic purchasing
methods, with commensurate reductions in minimum timescales for
responses when electronic communications are used;
"— modification of the rules on 'technical
specifications' to give greater emphasis to the principle of mutual
recognition and the need to consider offers of equivalent goods
or services, if they meet the user's needs;
"— a strengthening of the requirement
to make the relative weighting of 'award criteria' known in advance;
"— express provision for environmental
characteristics to be taken into account in assessing the economic
advantage of bids;
"— simplification of the financial
thresholds above which the Directive applies;
"— the introduction of a new EC nomenclature,
the Common Procurement Vocabulary (CPV) for classifying goods,
works and services; and
"the incorporation of provisions on the award
of designs contests, as presently found with public sector Directives."
21.3 We report separately on the Commission's
proposal for amending the public sector Directives, to which the
Minister refers (see paragraph 20 in this Report).
The Government's view
21.4 The Minister says: —
"The Government supports
the Commission's proposals to simplify and clarify the Directive
but will wish to ensure that unintended changes are not made.
The Government welcomes the proposal to exempt the telecommunications
sector from the scope of the Directive, and to cover the procurement
of telecommunications services instead in both the public and
utilities sectors.
"The Government supports the proposal for other
sectors to be exempted as liberalisation takes place over time.
The Government would, however, prefer a mechanism under which
the contracting entities and their Member States can themselves
apply the criteria for exclusion.
"The Government welcomes the proposal to put
electronic documents on a par with written documents and the proposed
provision for environmental characteristics to be included in
the criteria for establishing the economic advantage of offers.
It considers, however, that the proposals on disclosing the relative
weighting of contract award criteria are not yet as flexible as
they need to be to ensure that value for money can be secured
efficiently. Care will also be needed to ensure that accompanying
proposals for the adoption of the CPV nomenclature and for the
Commission to take decisions on the format of notices do not result
in unauthorised sub-delegation.
"Broadly speaking, however, the proposals are
consistent with the Government's policy of seeking measures which
are effective in opening markets without imposing unnecessary
burdens or constraints.
"A regulatory impact assessment is not required.
The proposals do not place any burdens directly on suppliers (including
service providers and contractors). On the contrary, increased
scope for electronic commerce, shorter time-scales, standard notices
and a Common Procurement Vocabulary should improve efficiency
for both purchasers and suppliers, including small and medium
sized enterprises for whom ready access to usable market data
and inexpensive communication systems are recognised as being
very important. The gradual exclusion of sectors, as market forces
come to bear on them as a result of liberalisation and exposure
to competition, will also ensure that the Directive does not apply
unnecessarily."
21.5 As regards progress, the Minister thinks
that a Common Position in the Council seems unlikely before the
Spring of 2001, with a view to adoption of the proposed directive
by the end of 2002, in line with the conclusions of the Lisbon
European Council in March of this year.
Conclusion
21.6 We note the Government's general support
for this proposal, and that it should facilitate and improve procurement
in the areas covered. The Government will, no doubt, pursue the
points of concern to it in Council discussions. We expect to see
an amended version in due course. Meanwhile we have no questions
to raise and clear the document accordingly.
53 (18975) 6927/98; see HC 155-xxvi (1997-98), paragraph
12. Back
| 
