Exclusion, Qualitative Selection and Short-Listing in the 2011 Proposal for a New Public Sector Procurement Directive, as Amended by the 30 November 2012 Compromise Text

Exclusion and self-cleaning in Article 57: discretion at the expense of clarity and trade?

“…In terms of 'clarifying' the procurement directives, legal disputes are also likely on the Council's proposed derogation to the exclusion on the basis of non-payment of taxes and social security, largely because the notion of a 'minor amount' of non-payment will be contentious. 40 One can expect significant domestic case law about the definition of 'minor' in this contextand where there is substantial national differentiation, these national definitions may ultimately reach the CJEU. 41 The CJEU has offered some clarification in the Libor case, where it found that a national law that required exclusion of an economic operator with social security back payments that '[exceed] EUR 100 and [are] greater than 5% of the sums owed' was compatible with the 2004 Directive 42 ; but a single example of a 'non-minor' amount under the 2004 Directive does not preclude case law on a 'minor amount' under the 2014 Directive.…”

Public-Private partnerships and sustainable development in the European Union

“…This is in order to promote transparency of tender procedures and limit costs related to submissions of expressions of interest, which end up being not relevant after a deeper investigation. 166 However, given the improved flexibility and higher availability of other multi-phase procedures, 167 it is expected that the frequency with which the restricted procedure will be used -especially for the award of long term and complex contracts such as PPPs -will be low.…”

“…Thus, enhancing the possibility to use procurement to achieve social and environmental targets. 166 Specifically, contracting authorities may decide not to award a public contract to the economic operator submitting the MEAT if they establish that the tender does not comply with the relevant obligations in the field of environmental, social and labour law set by EU, domestic law and collective agreements. Additionally, this may happen if the tender does not comply with obligations arising out international environmental, social and labour law provisions indicated in Annex X, Directive 2014/24/EU.…”

“…However, if there are two or more candidates that obtain the same score after the qualitative selection, all of them are invited to tender unless an objective and non-discriminatory selective rule for such event was previously set out. Short time periods are also envisaged 166. However, this change was not explicitly acknowledged in the recitals to the Directives.…”