Implementation don't match semantics of 2009/81/EC

[ColinMaudry]

Section V.2.5 contains 3 checkboxes, and we must reimplement n°2 and 3 to match the semantics described in 2009/81/EC:

• paragraph (40) of the foreword
• article 21, clause 4

[ColinMaudry]

Semantics of "All or certain subcontracts will be awarded through a competitive procedure" (AWARDED_SUBCONTRACTING element):

(40) [...] In the context of defence and security, it can be appropriate for contracting authorities/entities to oblige the successful tenderer to organise a transparent and non-discriminatory competition when awarding subcontracts to third parties. This obligation may apply to all subcontracts or only to specific subcontracts chosen by the contracting authority/entity.

Semantics of "A share of the contract will be subcontracted though a competitive procedure" (PCT_RANGE_SHARE_SUBCONTRACTING element):

(40) [...] subcontracts representing at least a certain share of the value of the contract be awarded to third parties on the understanding that related undertakings are not to be regarded as third parties. When such a share is required, the successful tenderer should award subcontracts following a transparent and non-discriminatory competition, so that all interested undertakings have the same opportunity to benefit from the advantages of subcontracting.

Source 2009/81/EC.

[ColinMaudry]

About the share of the contract to be subcontracted, Article 21, clause 4:

4. Member States may provide that the contracting authority/entity may ask or be required to ask the successful tenderer to subcontract to third parties a share of the contract. The contracting authority/entity that imposes such subcontracting shall express this minimal percentage in the form of a range of values, comprising a minimum and maximum percentage. The maximum percentage may not exceed 30 % of the value of the contract. Such a range shall be proportionate to the object and value of the contract and the nature of the industry sector involved, including the level of competition in that market and the relevant technical capabilities of the industrial base.

Any percentage of subcontracting falling within the range of values indicated by the contracting authority/entity shall be considered to fulfil the subcontracting requirement set out in this paragraph.

Tenderers may propose to subcontract a share of the total value which is above the range required by the contracting authority/entity.

The contracting authority/entity shall ask tenderers to specify in their tender which part or parts of their offer they intend to subcontract to fulfil the requirement referred to in the first subparagraph.

The contracting authority/entity may ask or may be required by a Member State to ask tenderers also to specify which part or parts of their offer they intend to subcontract beyond the required percentage, as well as the subcontractors they have already identified.

The successful tenderer shall award subcontracts corresponding to the percentage which the contracting authority/entity requires it to subcontract in accordance with the provisions of Title III.