WS3 – Workshop “Transport service tendering: a key moment to Legal framework for change things” awarding and tendering: Almada, Portugal European and national 12 March 2013 (PT) laws Claudio Masi UITP Honorary Chairperson Organising Authorities Committee
Legal framework for awarding and tendering: European and national (PT) laws Why Former Regulation (CEE) n.1191/69 dated 1969 and continuous evolution of the PT market. Evolution of national legislation led to legal uncertanty on the rights of public service operators and obligations of the competent authorities. Need to update the EU regulatory framework to specify the procedures for the award of public service contracts. In principle, public service contracts, on the basis of the new Regulation, are to be awarded with transparency after an open tender procedure. Nevertheless, some derogations to this principle are foreseen.
Legal framework for awarding and tendering: European and national (PT) laws In general (1) The provisions of this Regulation shall not affect the obligations applicable to public authorities under Directives on public procurement, when public contracts fall within their scope (i.e. works concessions, paragraphs 2 to 6 of Art. 5 and paragraphs 2 to 4 of Art. 8 of new Regulation for public service contracts by bus or tram, not in the form of service concessions). Need to coordinate Art. 5 of the Regulation with Community and national public procurement procedures. It does not apply to deregulated passenger transport markets (no PSO, no exclusive rights), which maintain their way of functioning in so far as they are compatible with Treaty requirements.
Legal framework for awarding and tendering: European and national (PT) laws In general (2) It is still possible that the competent authority either provides services itself or direct award the service contract to a legally distinct operator, over which it exercises control. It is possible for competent authorities to make direct award of public transport service contracts regarding transport by rail, excluded metro and tramway. Direct award of public service contracts is possible when the contract relates to modest money amounts or distance entities.
Legal framework for awarding and tendering: European and national (PT) laws In general (3) In case of risk of disruption in the provision of public transport services, public authorities shall be able to adopt emergency measures in the short term pending the award of a new public service contract. The new Regulation does not impose PSOs as well as quality, social and environmental criterias and does not interphere with competent authorities’ decisions regarding the organisation of public transport services. Some tenders require the definition and description of complex systems. In such cases public authorities have the power to negotiate the details with all potential public service operators or some of them after the submission of tenders.
Legal framework for awarding and tendering: European and national (PT) laws Purpose and scope This Regulation shall apply to national and international public passenger transport services by rail and other track-based modes and by road, except services operated mainly because of their historical interest or tourist value. It defines that, when a competent authority decides to grant the operator an exclusive right and/or compensation, of whatever nature, in return from the discharge of PSOs, it shall do so in the framework of a public service contract. It shall not apply to “public works” concessions within the meaning of Article 1, paragraph 3, letter a) of the Directive 2004/17/EC or Article 1, paragraph 3, of Directive 2004/18/EC.
Legal framework for awarding and tendering: European and national (PT) laws Content of Public Service Contracts (1) Shall clearly define PSOs and the geographic areas concerned. Shall establish in advance, in an objective and transparent way: i) the parameters on the basis of which the compensation, if any, is to be calculated; ii) the nature and extent of any exclusive rights granted, in a way that prevents overcompensation. Determine the allocation of costs (personnel, energy, infrastructure charges, maintenance and repair of rolling stock, etc. as well as an adequate return on capital).
Legal framework for awarding and tendering: European and national (PT) laws Content of Public Service Contracts (2) Shall determine the arrangements for the allocation of the revenues from the sale of tickets to the operator or to the authority or to be shared between the two. Shall indicate in a transparent way whether and to what extent subcontracting may be considered; in this case the operator which has been awarded the contract shall perform a major part of the public passenger transport services itself. Limited duration
Legal framework for awarding and tendering: European and national (PT) laws Duration of public service contracts Shall not exceed 10 years for coach and bus services and 15 years for passenger transport services by rail or other track-based mode (or when these latter services represent more than 50% of total services). Possible extension of the contract‘s duration by a maximum of 50% in case of significant assets provided by the operator and linked to the service contract or in case of particular geographical situations. Longer duration justified by the amortisation of capital in relation to exceptional infrastructure, rolling stock investment and public service contract be awarded with a fair competitive tender (communication to be given to the Commission).
Legal framework for awarding and tendering: European and national (PT) laws Social clause Without prejudice to national and Community law, including collective agreements between the social partners, the competent authorities may require the selected public service operator to grant staff previously taken on to providing the services the rights they would have been entitled if there had been a transfer within the meaning of Directive 2001/23/EC. Should the operators be asked to comply with social standards, tender documents and contract shall list the staff concerned, with detail of contractual rights and conditions.
Legal framework for awarding and tendering: European and national (PT) laws Direct Contract Award of Public Service Contracts (1) Unless prohibited by the national law, a local authority can decide to provide public passenger transport itself or to award the contract to a legally distinct entity over which it excercise control same as over its own departments. The above under the condition that the internal operator perform the services within the territory of the competent local authority and do not take part in competitive tenders for public passenger transport services outside such territory (if not from 2 years before the end of contract in case of final decision taken by Authority to issue fair competitive tender). Unless prohibited by the national law, competent authorities may decide to make direct awards of public service contracts for transport by rail, with the exception of other track-based modes such as metro or tramways (contract max. duration: 10 years except when Art. 4.4 applies)
Legal framework for awarding and tendering: European and national (PT) laws Direct Contract Award of Public Service Contracts (2) Unless prohibited by national law, in case the average annual value of contract is estimated at less than EUR 1.000.000 or Km/year less than 300.000; such figures are increased to EUR 2.000.000 and 600.000 Km/year should the contract be awarded to a small or medium size company (operating not more than 23 vehicles). Unless prohibited by national law, in case of disruption of services or immediate risks of such a situation, local authorities can take emergency measures and direct award a contract or extend an existing one (max. 2 years’ contract duration).
Legal framework for awarding and tendering: European and national (PT) laws Coordination with public procurement procedures (1) Article 5 of the Regulation applies to: All train and metro contracts Any contract that takes the form of service concession contracts (where compensation consists in the right to provide the services or in such right plus a price) Community and national public procurement rules apply to: Service contracts or public service contracts as defined in Directives 2004/17/EC and 2004/18/EC for public transport by bus or trams (i.e. Euro/Km based); Works concession contracts
Legal framework for awarding and tendering: European and national (PT) laws Coordination with public procurement procedures (2) Service contracts covering at same time design, construction and operation of public passenger transport services It may allow full subcontracting for the operation of the services The public service contract shall, in accordance with Community and national law, determine the conditions applicable to subcontracting
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