Projet de loi modifiant l'article 80 de la loi du 15 juin 2006 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services.
General information ¶
- Submitted by
- CD&V Leterme Ⅱ
- Submission date
- June 15, 2011
- Official page
- Visit
- Status
- Adopted
- Requirement
- Simple
- Subjects
- EC Directive delegation of power award of contract public procurement
Voting ¶
- Voted to adopt
- CD&V Vooruit LE PS | SP ∉ Open Vld N-VA LDD MR VB
- Abstained from voting
- Groen Ecolo
Contact form ¶
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Discussion ¶
July 7, 2011 | Plenary session (Chamber of representatives)
Full source
Rapporteur Steven Vandeput ⚙
Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of the procedures for the award of certain works, supplies and services contracts by contracting authorities and services into defence and security policy and amending Directives 2004/17/EC and 2004/18/EC. That conversion had to take place by 21 August 2011.
Having regard to the provisions contained in that Directive, it is appropriate to provide for specific legislation for public procurement and certain contracts for works, supplies and services in the fields of defence and security.
In this regard, the Bill No. 1592 on public procurement and certain contracts for works, supplies and services in the field of defence and security.
The application concerns in particular the supply of military equipment, the supply of sensitive material, works, supplies and services directly related to the aforementioned material and works and services for specific military purposes or for sensitive works and services.
In addition, the Act on public procurement and certain contracts for works, supplies and services of 15 June 2006 is also amended in the draft laws nrs. 1590 and 1591. This is necessary in order to bring it in line with the draft law no. 1592 and with a number of amendments to the Act of 24 December 1993 on public procurement.
It also aims to improve the legal basis for the implementation measures to be taken by the King and to make a number of clarifications in the text.
The three bills, including three amendments of N-VA and an amendment of Ecolo-Groen!, were adopted unanimously.
Mr. Speaker, if you allow me, I will now briefly summarize my presentation with regard to these draft laws.
The N-VA also supported this bill, but for the report I would like to return to the comments made by our group in the committee, concerning the extension of the negotiation procedure with publication for a number of services. A first consideration we had at this time is that this is not imposed by the directive but that this has clearly been a choice of the government of ongoing affairs.
A second consideration relates to the fact that the negotiation procedure should in fact remain the exception, but that in this law, as proposed by the Government of Current Affairs, a number of categories is sensibly expanded, which in fact gives the procedure a much wider scope of application, which, in our opinion, can generate a large degree of legal uncertainty in the short and medium term. We believe that for most of the supplies, works and services concerned, a pure procurement should be sufficient. We have great doubts about whether the contracting authorities, with all the conditions set out in the law, will always do the right thing. We therefore suspect that this part of the law will benefit only one sector, in particular the legal sector.
Muriel Gerkens Ecolo ⚙
Mr. Speaker, dear colleagues, these two bills contain positive elements relating to public procurement: the fact of facilitating the procedures negotiated with advertising after a hit in various markets, the fact of resolving the problem of competitive dialogue that blocked the realisation of several public procurement, in Eupen for example. In addition to these positive provisions, I asked the Secretary of State on two points in particular.
First, the decision to vote on a special law for defence and security equipment, which risks putting contracting entities in the face of the difficulty of having to constantly define the equipment or the use of that equipment. The Secretary of State replied that it is the sponsor who characterizes whether one is in an ordinary public procurement procedure or relating to defence or security equipment. I hope that these provisions will make things clear every time.
The second element relates to the provisions relating to the services of List B, as stated in the jargon of public procurement, in particular health services. We responded in part with an amendment that we drafted together and that colleagues accepted. In the normal provisions of a public procurement, it is said that tender calls provide for criteria for the selection of candidates and then, in the next phase, award criteria; at the time of reaching this phase, the elements taken into account for the award of the contract are limited in a precise manner.
In these award criteria, it is forbidden to take elements, such as the tenderer’s experience. However, it is well known that, in the healthcare sector, for example, if a surgeon is to be hired, the fact of taking into account his or her experience when awarding the contract is required by the provisions relating to the good management of a hospital.
We are aware of this difficulty because, when we transposed the European directives into Belgian legislation, we chose to leave these services in the ordinary provision of public procurement. However, European provisions allow them to be withdrawn and, therefore, to have different provisions with respect to these markets. For example, we can take into account the technical capabilities of the people from whom we will have to choose in order to award a contract.
The committee accepted an amendment that we had submitted. This means that, on the basis of modalities to be defined by the King, it will be possible, under the strict conditions of these services of List B, to incorporate criteria such as technical capabilities. I thank the Commission and the Secretary of State for accepting to introduce this provision. However, it remains that this remains imperfect because, every time, we will have to ask ourselves the question of whether we are, yes or not, in that disposition.
I therefore believe that Parliament must provide for an additional step, namely to ensure that these technical capabilities can be taken into account, in a general way, for those services of List B and, therefore, to remove them from a series of constraints that characterise the obligations of ordinary markets.
If I insist on this element, it is that at the European level we are facing a whole series of arrangements and positions. I am concerned with health, but other services or sectors are concerned. As a liberal profession, doctors for example, or society, is not one simply considered to be an economic actor? Do you have the right to advertise or compete? We all know that these discussions are currently ongoing at the European level and that questions are raised in Belgium. In France, the European Court of Justice has been questioned whether the use of advertising is permitted or not for doctors. Given the qualification of their economic status, health status, health benefits and patient preservation were dismissed as dominant criteria.
The answer was, “Yes, they can do advertising.” We have health devices that are special, but that are threatened in this context.
I will not submit an amendment today. If the project is discussed in the Senate, my colleague Jacky Morael will return to it. In any case, we must develop this reflection. We will submit a bill, as we will return to this "Public Procurement" directive next spring.
I would like to invite you to include in your reflection the question of the services of the list B which are the services of health, education, socio-sanitary, but also the business reviewers. The criteria they need when choosing the assignment are forbidden to them in ordinary procedures.