ANALYSIS OF ART. 76 OF DIRECTIVE 2014/24/EU
Members who expressed interested in this article: Eurodiaconia, FEANTSA, Volonteurope
ARTICLE 76 “Principles of awarding contracts”1. Member States shall put in place national rules for the award of contracts subject to this Chapter in order to ensure contracting authorities comply with the principles of transparency and equal treatment of economic operators. Member States are free to determine the procedural rules applicable as long as such rules allow contracting authorities to take into account the specificities of the services in question.
2. Member States shall ensure that contracting authorities may take into account the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantaged and vulnerable groups, the involvement and empowerment of users and innovation. Member States may also provide that the choice of the service provider shall be made on the basis of the tender presenting the best price- quality ratio, taking into account quality and sustainability criteria for social services.
For Member States / Are member states bound to transpose this article / recital into national law or not?
CompulsoryX Non-compulsory □
The transposition of this article is mandatory on member states. However, they can provide that contracting authorities use the best-quality ratio (previously MEAT) as the only award criterion for contracts for social and other specific services, but this is not compulsory.
If it is not compulsory, do we recommend to member states to transpose it?
If yes, why? Which arguments do we have?
We recommend member states to provide in the transposition that social and other specific services are awarded only on the basis of the best-quality ratio (previously MEAT) instead of the lowest cost.
The use of the best-quality ration gives the opportunity to include quality criteria that are essential in the delivery of social and other services provided to the person. Choices cannot be made only on the basis of the cost or price of a service, without taking into considerations quality criteria. Our members testify that especially in times of crisis contracting authorities have mostly used the lowest price criterion, in some cases by drastically decreasing the costs of services. This has had a detrimental effect on the quality of the service and very often on the working conditions of the social and health workforce.
If member states prefer to keep the lowest cost criterion for social, health and other specific services, they should make mandatory on contracting authorities the inclusion of quality criteria in the technical specifications.
If member states have a room for manoeuvre on how to transpose the directive, which recommendations can we give?
To make sure that quality becomes an essential component in the award of contracts for this kind of services, quality should be given a weight of at least 50´% compared to other criteria such as price.
For contracting authorities / Once member states have transposed this article into national law, how contracting authorities should implement this article?
Contracting authorities should make use of the best-quality ratio as much as possible and weight quality criteria at least 50´% compared to other criteria such as price.
However, if they decide to use the lowest cost award criterion, they should include quality criteria in the technical specifications.
In the definition of quality, whereas quality systems for social services do not exist, member states should draw inspiration from the voluntary European Quality Framework for social services.
Comment: Here we should define what we mean or how contracting authorities can implement: continuity (what is a reasonable duration of contracts?), affordability, availability and comprehensiveness of the service, the specific needs of the different users, including disadvantaged and vulnerable groups, the involvement and empowerment of users and innovation.
We could also draw some inspiration from the paper 9 principles to ensure meaningful social innovation (pp.2-3).
What is the added value for contracting authorities to use this article in tendering procedures? (for instance, when the article is not compulsory)
How could or should they use it? And when?
Problems of interpretation or implementation: please highlight when an article is problematic and why
How could the problem be overcome (if possible, of course)?
Not relevant
For member states and contracting authorities / Example of a good practice
Or / And
Example of a bad practice not to be repeated