cecop les marchés publics 16 decembre 2008 bruxelles considerations on the public procurements law...

CECOP Les Marchés PublCECOP Les Marchés Publics 16 decembre 2008 Bruxics 16 decembre 2008 Bruxelleselles

Considerations on the Considerations on the public procurements Law public procurements Law and its implementation in and its implementation in

worker cooperativesworker cooperatives


AIM OF THE PUBLIC PROCUREMENT LAW

•TRANSPOSITION OF THE DIRECTIVE 2004/18/CE OF PUBLIC SECTOR CONTRACTS ON AWARDING PROCEDURES OF PUBLIC WORKS CONTRACTS, PUBLIC SUPPLY AND PUBLIC SERVICE CONTRACTS

•ELABORATION OF THE LAW GIVES “NEW FLOOR”, REGULATORY OF THE PUBLIC CONTRACTS IN THE DIFFERENT PHASES AND ELEMENTS


DIRECTIVE 2004/18/CE

Update and unification of the classic directives:

•Directive 92/50 on Service Contracts •Directive 93/36 on Supply Contracts •Directive 93/37 on Works Contracts

Directive of Resources (Directive 89/665) and Jurisprudence Court of Justice


DIRECTIVE 2004/18

Historical Perspective

•The first Directives on public contracting in the 70s: 1971-Construction; 1977- Supplies.

•The Unique European record of 1986 (the common interior market by the ends of 1992):

•Directives of 1988 The First Directive of "excluded sectors" in 1990 and The First Directive of services in 1992

•Remixed and update of the existing Directives in 1992 and 1993


DIRECTIVE 2004/18 Historical Perspective(2)

•First Agreement on Government Procurement under the GATT in 1979.

•Agreement on Procurement 1994 (Uruguay Round). It is one of the agreements signed during the formation of the World Trade Organization (WTO).

• Model Law on the Procurement of Goods, Works and Services, UNCITRAL, 1994.


DIRECTIVE 2004/18 Historical Perspective(3)

•"Green Paper" of the Commission, 1996.•First text of the Commission, 2000.•Judgment-Concordia Bus Finland "of the Court of September 17, 2002.•Discussion and amendments to the States and other members of the Union, 2003.•Approval and Publication Directive, March / April 2004.•Deadline limit for transposition into domestic jurisdictions, 31 January 2006.


Directive 2004/18

• Introduction on TIC.

• Empowerment of new forms of public-private partnerships.

• Introduction on social and environmental issues in public.

• Systematic unification.


THE LAW OF CONTRACTS OF

THE PUBLIC SECTOR (Main Features)

•Regulating the contracts of the Public Sector as a whole, not just those covered by Community Directives, and not just in their preparation and adjudication.

•Identification of Contracts subject to full European standards ("contracts subject to regulation harmonized")

•Look for lower transaction costs•Favours the budgetary stability

•Mechanisms for Review of Prices

•Prices End Control

•Promotes transparency in public procurement



THE PUBLIC SECTOR

LAW APPLIES TO ALL THE SUBJECT OF PUBLIC SECTOR (and even some external to it)

1.GOVERNMENT

2.Other Public Sector Entities subject to the Directive 2004/18

3.Dealers, natural or legal persons in Aided + 50% from public funds.

4.Remaining Public Sector Entities


THE LAW OF CONTRACTS OF THE

PUBLIC SECTOR

•WORKS

•WARD FOR PUBLIC WORKS

•MANAGEMENT OF PUBLIC SERVICES

•SUPPLY

•SERVICES

•COLLABORATION BETWEEN THE PUBLIC SECTOR AND THE PRIVATE SECTOR

•MIXED CONTRACTS

•OTHER LINKED TO TURN THE ADMINISTRATION OF TRAFFIC OR CONTRACTOR

•PRIVATE CONTRACTS


AGREEMENT OF COLLABORATION BETWEEN THE PUBLIC SECTOR AND

THE PRIVATE SECTOR

•A Public Administration entrusted to a private entity conducting a comprehensive and integrated action.

•Evaluation Document prepared by a collegial member composed of experts

•Functional program, which will be included in the contract

• Contract Rules

• Adjudication provided by the procedure of "competitive dialogue"



THE PUBLIC SECTOR

(Harmonious Regulation)

UPRIGHT SUBMISSION TO COMMUNITY DIRECTIVE

• Works Contracts + 5.150.000 €

• Supply Contracts 206.000 €

• Service Contracts 206.000 €

• Public - Private Collaboration Contracts Made by:•A " Public Administration " •An entity created specifically to satisfy needs of general interest that does not have industrial or mercantile character and a subject belonging to the public sector finances and controls them for the most part.

Works and Services Works and Services ContractsContracts that overcome that overcome the seen thresholds and that are subsidized the seen thresholds and that are subsidized in more than 50 % by an entity of the public in more than 50 % by an entity of the public

sector.sector.


PREPARATION

• PROCESS OF CONTRACTING• ORDINARY PROCESSING (Minor Contracts), GIVE URGENCY AND OF EMERGENCY.• SHEETS OF ADMINISTRATIVE CLAUSES AND OF TECHNICAL PRESCRIPTIONS. - Special conditions of Enforcement of the agreement, of social or environmental kind. - Criteria Accessibility You Present Disabled persons.

• PERFORMANCES FOR THE PREPARATION OF THE DIFFERENT KINDS OF CONTRACTS OF THE PUBLIC SECTOR


THRESHOLDS CONTRACTS (€)

WORKSWORKSOTHEROTHER

CONTRACTSCONTRACTS

Minor Contracts (up to)Minor Contracts (up to) 50.00050.000 18.00018.000

Negotiated without Negotiated without advertising (up to) advertising (up to)

200.000200.000 60.00060.000

Negotiated with Negotiated with advertising (up to)advertising (up to)

1.000.0001.000.000 100.000100.000

Harmonious Harmonious RegulationRegulation

(from)(from)

5.150.0005.150.000

When it overcomes When it overcomes the limits foreseen the limits foreseen

by the EU every by the EU every yearyear


ADJUDICATION

•ACCORDING TO PRICE •TO ECONOMICALLY MORE PROFITABLE OFFER. •ELECTRONIC AUCTION (Possible in opened and restricted procedure) •PROVISIONAL AND DEFINITIVE ADJUDICATION•OFFERS WITH ANOMALOUS OR DISPROPORTIONATE VALUES


SKILLS OF RATIONALITION

• AGREEMENTS FRAMEWORKS

• DYNAMIC SYSTEM OF ACQUISITION

• HEAD PLANTS OF PURCHASES


EXECUTION• There are gathered, with regard to the payments to subcontractors and suppliers, the forecasts contained in the Law of measures of fight against the delinquency in commercial operations.

•It is considered to be the possibility of including special conditions of enforcement of the agreement, of social or environmental character.

•Reinforcement of the Administration opposite to breaches of the contractor. Punishment.

•Greater control of Subcontracting.

•Exceptionally, the possibility of concluding works in a closed price.

cecop les marchés publics 16 decembre 2008 bruxelles considerations on the public procurements law...

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