Application
<Top>
Article 1.
For the purpose of this Directive 'public works contracts'
are contracts for pecuniary interest concluded in writing
between a contractor and a contracting public authority
as defined below, or the execution, by whatever means,
of a work corresponding to the requirements specified
by the contracting authority.
(a) A 'work' means the outcome of building or civil
engineering works taken as a whole that is sufficient
of itself to fulfill an economic and technical function;
(b) 'public works concession' is a contract of the
same type as that indicated in (a) except for the fact
that the consideration for the works to be carried out
consists either solely in the right to exploit the construction
or in this right together with payment.
Procedures
available: <Top>
'Open Procedures' are those national procedures
whereby all interested contractors may submit tenders;
'Restricted Procedures' are those national procedures
whereby only those contractors invited by the contracting
authority may submit tenders; 'Negotiated Procedures'
are those national procedures whereby contracting authorities
consult contractors of their choice and negotiate the
terms of the contract with one or more of them;
Article 2.
Member States are required to take the necessary measures
to ensure that the contracting authorities comply or
ensure compliance with the Directive where they subsidize
directly by more than 50% a works contract awarded by
an entity other than themselves.
Article 3.
1. Should contracting authorities conclude a public
works concession contract, the advertising rules will
apply to that contract when its value is not less than
£3,611,395.
2. The contracting authority may:
· either require the concessionaire to award contracts
representing a minimum of 30% of the total value of
the work for which the concession contract is to be
awarded, to third parties, at the same time providing
the option for candidates to increase this percentage.
This minimum percentage must be specified in the concession
contract,
· or request the candidates for concession contracts
to specify in their tenders the percentage, if any,
of the total value of the work for which the concession
contract is to be awarded which they intend to assign
to third parties.
3. When the concessionaire is itself a contracting
authority, it must comply with the provisions of the
Directive in the case of works to be carried out by
third parties.
Article 4.
This Directive does not apply to:
(a) contracts below the stated thresholds;
(b) works contracts which are declared secret or the
execution of which must be accompanied by special security
measures in accordance with the laws, regulations or
administrative provisions in force in the Member State
concerned or when the protection of the basic interests
of the Member State's security so requires.
Article 5
1. This Directive does not apply to public contracts
governed by different procedural rules and awarded:
(a) in pursuance of an international agreement, concluded
in conformity with the Treaty, between a Member State
and one or more non-member countries and covering works
intended for the joint implementation or exploitation
of a project by the signatory States;
(b) to undertakings in a Member State or a nonmember
country in pursuance of an international agreement relating
to the stationing of troops;
(c) pursuant to the particular procedure of an international
organization.
Valuation
<Top>
Article 6.
The Directive will apply to:
(a) Public Works Contracts whose estimated value net
of value-added tax (VAT) is not less than the equivalent
in ECUs of 5,000,000 Special Drawing Rights (SDRs);
(b) public works contracts referred to in Article 2
(1) whose estimated value net of VAT is not less than
ECU 5,358,153.
Where a work is subdivided into several lots, each
one the subject of a contract, the value of each lot
must be taken into account for the purpose of calculating
the amounts referred to above. Where the aggregate value
of the lots is not less than the amount referred to,
the provisions shall apply to all lots. Contracting
authorities shall be permitted to depart from this provision
for lots whose estimated value net of VAT is less than
£674,000, provided that the total estimated value
of all the lots exempted does not, in consequence, exceed
20% of the total estimated value of all lots.
No work or contract may be split up with the intention
of avoiding the application of the Directive.
When calculating the value, account must be taken not
only of the amount of the public works contracts but
also of the estimated value of the supplies needed to
carry out the works.
Contracting authorities shall ensure that there is
no discrimination between the various contractors.
Award
Procedures <Top>
Article 7.
1. The contracting authorities may award their public
works contracts by Negotiated Procedure, with prior
publication of a contract notice and after having selected
the candidates according to publicly known qualitative
criteria, in the following cases:
(a) in the event of irregular tenders in response to
an Open or Restricted Procedure or in
the case of tenders which are unacceptable under national
provisions insofar as the original terms of the contract
are not substantially altered. The contracting authorities
must not, in these cases, publish a contract notice
where they include in such Negotiated Procedure all
the enterprises satisfying the criteria of Articles
24 to 29 which, during the prior Open or Restricted
Procedure, have submitted tenders in accordance
with the formal requirements of the tendering procedure;
(b) when the works involved are carried out purely
for the purpose of research, experiment or development,
and not to establish commercial viability or to recover
research and development costs;
(c) in exceptional cases, when the nature of the works
or the risks attaching thereto do not permit prior overall
pricing.
2. The contracting authorities may award their public
works contracts by Negotiated Procedure without prior
publication of a contract notice, in the following cases:
(a) in the absence of tenders or of appropriate tenders
in response to an Open or Restricted Procedure
insofar as the original terms of the contract are not
substantially altered and provided that a report is
communicated to the Commission at its request;
(b) when, for technical or artistic reasons or for
reasons connected with the protection of exclusive rights,
the works may only be carried out by a particular contractor;
(c) insofar as is strictly necessary when, for reasons
of extreme urgency brought about by events unforeseen
by the contracting authorities in question, the time
limit laid down for the Open, Restricted or Negotiated
Procedures cannot be kept (Articles 11-14). The
circumstances invoked to justify extreme urgency must
not in any event be attributable to the contracting
authorities;
(d) for additional works not included in the project
initially considered or in the contract first concluded
but which have, through unforeseen circumstances, become
necessary for the carrying out of the work described
therein, on condition that the award is made to the
contractor carrying out such work:
· when such works cannot be technically or economically
separated from the main contract without great inconvenience
to the contracting authorities, or
· when such works, although separable from the
execution of the original contract, are strictly necessary
to its later stages.
However, the aggregate amount of contracts awarded
for additional works may not exceed 50% of the amount
of the main contract;
(e) for new works consisting of the repetition of similar
works entrusted to the undertaking to which the same
contracting authorities awarded on earlier contact,
provided that such works conform to a basic project
for which a first contract was awarded according to
the procedures referred to above.
As soon as the first project is put up for tender,
notice must be given that this procedure might be adopted
and the total estimated cost of subsequent works shall
be taken into consideration by the contracting authorities
when they apply the provision of Article 6. This procedure
may only be adopted during the three years following
the inclusion of the original contract.
3. In all other cases, the contracting authorities
shall award their public works contracts by the Open
Procedure or by the Restricted Procedure.
Rights
to Information <Top>
Article 8.
1. The contracting authority shall, within 15 days
of the date on which a written request is received,
inform any eliminated candidate or tenderer of the reasons
for rejection of this application or his tender, and
, any tenderer who has made an admissible tender of
the characteristics and relative advantages of the tender
selected as well as the name of the successful tenderer.
However, contracting authorities may decide that certain
information on the contract award, referred to in the
preceding subparagraph, be withheld where release of
such information would impede law enforcement or otherwise
be contrary to the public interest or would prejudice
the legitimate commercial interests of particular undertakings,
public or private, or might prejudice fair competition
between contractors.
2. Contracting authorities shall promptly inform candidates
and tenderers of the decisions taken on contract awards,
including the reasons why they have decided not to award
a contract for which there has been an invitation to
tender or to start the procedure again, and shall do
so in writing if requested. They shall also inform the
Office for Official Publications of the European Communities
of such decisions.
Technical
Specifications <Top>
Article 10.
1. The technical specifications must be given in the
general or contractual documents relating to each contract.
2. Without prejudice to the legally binding national
technical rules and insofar as these are compatible
with Community law, the technical specifications must
be defined by the contracting authorities by reference
to national standards implementing European standards,
or by reference to European technical approvals or by
reference to common technical specifications.
3. In the absence of European standards or European
technical approvals or common technical specifications,
the technical specifications:
(a) must be defined by reference to the national technical
specifications recognized as complying with the basic
requirements listed in the Community directives on technical
harmonization, in accordance with the procedures laid
down in those directives, and in particular in accordance
with the procedures laid down in Council Directive 89/106/EEC
of 21 December, 1989 on the approximation of laws, regulations
and administrative provisions of the Member States relating
to construction products;
(b) may be defined by reference to national technical
specifications relating to design and method of calculation
and execution of works and use of materials;
(c) may be defined by reference to other documents.
In this case, it is appropriate to make reference in
order of preference to:
(i) national standards implementing international standards
accepted by the country of the contracting authority;
(ii) other national standards and national technical
approvals of the country of the contracting authority;
(iii) any other standard.
Common
Advertising Rules <Top>
Article 11.
1. Contracting authorities must make known, by means
of an indicative notice, the essential characteristics
of the works contracts which they intend to award and
the estimated value of which is not less than the threshold
laid down.
2. Contracting authorities who wish to award a public
works contract by Open, Restricted or Negotiated Procedure
must make known their intention by means of a notice.
3. Contracting authorities who wish to award a works
concession contract shall make known their intention
by means of a notice.
4. Works concessionaries, other than a contracting
authority, who wish to award works contracts to a third
party must also make known their intention by means
of a notice.
Time
Limits <Top>
Article 12.
1. In Open Procedures the time limit for the
receipt of tenders, fixed by the contracting authorities
must be not less than 52 days from the date of
dispatch of the notice.
2. The time limit for receipt of tenders laid
down in paragraph 1 may be replaced by a period sufficiently
long to permit responsive tendering, which, as a general
rule, shall be not less than 36 days and in any
case not less than 22 days, from the date on
which the contract notice was dispatched, if the contracting
authorities have sent the indicative notice provided
for in Article 11 (1), drafted in accordance with the
model in Annex IV A (Prior Information), to the Official
Journal of the European Communities within a minimum
of 52 days and a maximum of 12 months before the date
of which the contract notice provided for in Article
11 (2) was dispatched to the Official Journal of the
European Communities within a minimum of 52 days and
a maximum of 12 months before the date on which the
contract notice provided for in Article 11 (2) was dispatched
to the Official Journal of the European Communities,
provided that the indicative notice contained, in addition,
at least as much of the information referred to in the
model notice in Annex IV B (Open Procedure) as was available
at the time of publication of the notice.
3. Provided requested in good time, the contract
documents and supporting documents must be sent
to the contractors by the contracting authorities or
competent departments within six days of receiving
their application.
4. Provided requested in good time, additional information
relating to the contract documents shall be supplied
by the contracting authorities not later than six
days before the final date fixed for receipt of
tenders.
5. Where the contract documents, supporting documents
or additional information are too bulky to be supplied
within the time limits stated or where tenders can only
be made after a visit to the site or after on-the-spot
inspection of the documents supporting the contract
documents, the time limits laid down in paragraphs 1
and 2 shall be extended accordingly.
Article 13.
1. In Restricted Procedures and Negotiated
Procedures (Article 7), the time limit for receipt
of requests to participate fixed by the contracting
authorities must be not less than 37 days from
the date of dispatch of the notice.
2. The contracting authorities must simultaneously
and in writing invite the selected candidates to submit
their tenders. The letter of invitation should be accompanied
by the contract documents and supporting documents.
It must include at least the following information:
(a) where appropriate, the address of the service from
which the contract documents and supporting documents
can be requested and the final date for making such
a request; also the amount and terms of any sum to be
paid for such documents;
(b) the final date for receipt of tenders, the address
to which they must be sent and the language or languages
in which they must be drawn up;
(c) a reference to the contract notice published;
(d) an indication of any documents to be annexed, either
to support the verifiable statements furnished by the
candidate, or to supplement the information provided;
(e) the criteria for the award of the contract if these
are not given in the notice.
3. In Restricted Procedures, the time limit
for receipt of tenders fixed by the contracting authorities
may not be less than 40 days from the date of
dispatch of the written invitation.
4. The time limit for receipt of tenders laid
down in paragraph 3 may be reduced to 26 days
if the contracting authorities have sent the indicative
notice provided for in Article 11 (1) drafted in accordance
with the model in Annex IVa (Prior Information) to the
Official Journal of the European Communities within
a minimum of 52 days and a maximum of 12 months before
the date on which the contract notice provided for in
Article 11 (2) was dispatched to the Official Journal
of the European Communities, provided that the indicative
notice contained, in addition, at least as much of the
information referred to in the model notice in Annex
IV C (Restricted Procedure), or, where applicable, Annex
IV D (Negotiated Procedure) as was available at the
time of publication of the notice.
5. Requests to participate in procedures for the award
of contracts may be made by letter, by telegram, telex,
telefax or by telephone. If by one of the last four,
they must be confirmed by letter dispatched before the
end of the period laid down.
6. Provided it has been requested in good time, additional
information relating to the contract documents must
be supplied by the contracting authorities not later
than six days before the final date fixed for the
receipt of tenders.
7. Where tenders can be made only after a visit to
the site or after on-the-spot inspection of the documents
supporting the contract documents, the time limit laid
down must be extended accordingly.
Urgency
<Top>
Article 14.
1. In cases where urgency renders impracticable the
time limits laid down in Article 13, the contracting
authorities may fix the following time limits:
(a) a time limit for receipt of requests to participate
which shall be not less than 15 days from the
date of dispatch of the notice;
(b) a time limit for the receipt of tenders which shall
be not less than 10 days from the date of the
invitation to tender.
2. Provided it has been requested in good time, additional
information relating to the contract documents must
be supplied by the contracting authorities not later
than four days before the final date fixed for the
receipt of tenders.
3. Requests for participation in contracts and invitations
to tender must be made by the most rapid means of communications
possible. When requests to participate are made by telegram,
telex, telefax or telephone, they must be confirmed
by letter dispatched before the expiry of the time limit
referred to in paragraph 1.
Concession
Contract <Top>
Article 15.
Contracting authorities who wish to award a works concession
contract are required to fix a time limit for receipt
of candidatures for the concession, which shall be
not less than 52 days from the date of dispatch
of the notice.
Article 16.
In works contracts awarded by a works concessionaire
other than a contracting authority, the time limit for
the receipt of requests to participate, fixed by the
concessionaire, must be not less than 37 days
from the date of dispatch of the notice, and the time
limit for the receipt of tenders not less than 40
days from the date of dispatch of the notice or
the invitation to tender.
Article 18.
Contracts are required to be awarded on the basis of
the criteria stated in the directive, taking into account
Article 19, after the suitability of the contractors
not excluded under Article 24 has been checked by contracting
authorities in accordance with the criteria of economic
and financial standing and of technical knowledge or
ability referred to in Articles 26 to 29.
Tenders shall be submitted in writing, directly or
by mail. Member States may authorise the submission
of tenders by any other means making it possible to
ensure:
(a) that each tender contains all the information necessary
for its evaluation,
(b) that the confidentiality of tenders is maintained
pending their evaluation,
(c) that, where necessary, for reasons of legal proof,
such tenders are confirmed as soon as possible in writing
or by dispatch of a certified copy,
(d) that tenders are opened after the time limit for
their submission has expired.
Variants
<Top>
Article 19.
Where the criterion for the award of the contract is
that of the most economically advantageous tender, contracting
authorities may take account of variants which are submitted
by a tenderer and meet the minimum specifications required
by the contracting authorities.
The contracting authorities should state in the contract
documents the minimumspecifications to be respected
by the variants and any specific requirements for their
presentation. They must indicate in the tender notice
if variants are not permitted.
Contracting authorities may not reject the submission
of a variant on the sole grounds that it has been drawn
up with technical specifications defined by reference
to national standards transposing European standards,
to European technical approvals or to common technical
specifications, or national technical specifications.
Article 20.
In the contract documents, the contracting authority
may ask the tenderer to indicate in his tender any share
of the contract he may intend to subcontract to third
parties.
This indication shall be without prejudice to the question
of the principal contractor's liability.
Group
Bids <Top>
Article 21.
Tenders may be submitted by groups of contractors.
These groups cannot be required to assume a specific
legal form in order to submit the tender; however, the
group selected may be required to do so when it has
been awarded the contract.
Tenders
Invited <Top>
Article 22.
1. In Restricted and Negotiated Procedures
the contracting authorities must, on the basis of information
given relating to the contractor's personal position
as well as to the information and formalities necessary
for the evaluation of the minimum conditions of an economic
and technical nature to be fulfilled by him, select
from among the candidates with the qualifications required
by Articles 24 to 29 those whom they will invite to
submit a tender or to negotiate.
2. Where the contracting authorities award a contract
by RestrictedProcedure, they may prescribe the
range within which the number of undertakings which
they intend to invite will fall. In this case the range
must be indicated in the contract notice. The range
must number at least 5 undertakings and may be up to
20.
In any event, the number of candidates invited to tender
shall be sufficient to ensure genuine competition.
3. Where the contracting authorities award a contract
by NegotiatedProcedure as referred to in Article
7(2), the number of candidates admitted to negotiate
may not be less than three provided that there is a
sufficient number of suitable candidates.
4. Each Member State must ensure that contracting authorities
issue invitations without discriminations to those nationals
of other Member States who satisfy the necessary requirements
and under the same conditions as to its own nationals.
Article 23.
1. The contracting authority may state in the contract
documents, or be obliged by a Member State to do so,
the authority or authorities from which a tenderer may
obtain the appropriate information on the obligations
relating to the employment protection provisions and
the working conditions which are in force in the Member
State, region or locality in which the works are to
be executed and which shall be applicable to the works
carried out on site during the performance of the contract.
2. The contracting authority which supplies the information
referred to in paragraph 1 should request the tenderers
or those participating in the contract procedure to
indicate that they have taken account, when drawing
up their tender, of the obligations relating to employment
protection provisions and the working conditions which
are in force in the place where the work is to be carried
out. This to be without prejudice to the application
concerning the examination of abnormally low tenders.
Selection
Criteria <Top>
Article 24.
Any contractor may be excluded from participation in
the contract who:
(a) is bankrupt or is being wound up, whose affairs
are being administered by the court, who has entered
into an arrangement with creditors, who has suspended
business activities or who is in any analogous situation
arising from a similar procedure under national laws
and regulations;
(b) is the subject to proceedings for a declaration
of bankruptcy, for an order for compulsory winding up
or administration by the court or for an arrangement
with creditors or of any other similar proceedings under
national laws or regulation;
(c) has been convicted of an offence concerning his
professional conduct by a judgment which has the force
of res judicata;
(d) has been guilty of grave professional misconduct
proved by any means which the contracting authorities
can justify;
(e) has not fulfilled obligations relating to the payment
of social security contributions in accordance with
the legal provisions of the country in which he is established
or with those of the country of the contracting authority;
(f) has not fulfilled obligations relating to the payment
of taxes in accordance with the legal provisions of
the country in which he is established or those of the
country of the contracting authority;
(g) is guilty of serious misrepresentation in supplying
the information required under this Chapter.
Where the contracting authority requires of the contractor
proof that none of the cases quoted in (a), (b), (c),
(e) or (f) applies to him, it shall accept as sufficient
evidence:
· for points (a), (b) or (c), the production of
an extract from the 'judicial record' or, failing, this,
of an equivalent document issued by a competent judicial
or administrative authority in the country of origin
in the country whence that person comes showing that
these requirements have been met;
· for points (e) or (f), a certificate issued
by the competent authority in the Member State concerned.
Where the country concerned does not issue such documents
or certificates, they may be replaced [by] a declaration
on oath or, in Member States where there is not provision
for declarations on oath, by a solemn declaration made
by the person concerned before a judicial or administrative
authority, a notary or a competent professional or trade
body, in the country of origin or in the country whence
that person comes. Member States shall designate the
authorities and bodies competent to issue these documents.
Professional
Standing <Top>
Article 25.
Any contractor wishing to take part in a public works
contract may be requested to prove his enrolment in
the professional or trade register under the conditions
laid down by the laws of the Member State in which he
is established. In the UK and Ireland, the contractor
may be requested to provide a certificate from the Registrar
of Companies or the Registrar of Friendly Societies
or, if this is not the case, a certificate stating that
the person concerned has declared on oath that he is
engaged in the profession in question in the country
in which he is established, in a specific place and
under a given business name.
Financial
Standing <Top>
Article 26.
1. Evidence of the contractor's financial and economic
standing may, as a general rule, be furnished by one
or more of the following references:
(a) appropriate statements from bankers;
(b) the presentation of the firm's balance sheets or
extracts from the balance sheets, where publication
of the balance sheet is required under the law of the
country in which the contractor is established;
(c) a statement of the firm's overall turnover and
the turnover on construction works for the three previous
financial years.
2. The contracting authorities shall specify in the
notice or in the invitation to tender which reference
or references they have chosen and what references other
than those mentioned under paragraph 1(a), (b), or (c)
are to be produced.
3. If, for any valid reason, the contractor is unable
to supply the reference requested by the contracting
authorities, he may prove his economic and financial
standing by any other document which the contracting
authorities consider appropriate.
Technical
Capacity <Top>
Article 27.
1. Evidence of the contractor's technical capability
may be furnished by:
(a) the contractor's educational and professional qualifications
and/or those of the firm's managerial staff and, in
particular, those of the person or persons responsible
for carrying out the works;
(b) a list of the works carried out over the past five
years, accompanied by certificates of satisfactory execution
for the most important works. These certificates should
indicate the value, date and site of the works and specify
whether they were carried out according to the rules
of the trade and properly completed;
(c) a statement of the tools, plant and technical equipment
available to the contractor for carrying out the work;
(d) a statement of the firm's average annual manpower
and the number of managerial staff for the last three
years;
(e) a statement of the technicians or technical bodies
which the contract can call upon for carrying out the
work, whether or not they belong to the firm.
2. The contracting authorities are required to specify
in the invitation to tender which of these references
are to be produced.
Article 28.
Within the limits of Articles 24 to 27, the contracting
authority may request thecontractor to supplement the
certificates and documents submitted or to clarify them.
Official
Lists <Top>
Article 29.
1. Member States who have official lists of recognized
contractors must adapt them to the provisions of Article
24(a) to (d) and (g) and of Article 25, 26 and 27.
2. Contractors registered in the official lists may,
for each contract, submit to the contracting authority
a certificate or registration issued by the competent
authority. This certificate shall state the reference
which enabled them to be registered in the list and
the classification given in this list.
3. Certified registration in the official lists by
the competent bodies shall, for the contracting authorities
of other Member States, constitute a presumption of
suitability for works corresponding to the contractor's
classification only as regards Articles 24(a) to (d)
and (g), 25, 26(b) and (c) and 27(b) and (d).
Information which can be deduced from registration
in official lists may not be questioned. However, with
regard to the payment of social security contributions,
an additional certificate may be required of any registered
contractor whenever a contract is offered.
The contracting authorities of other Member States
shall apply the above provisions only in favour of contractors
who are established in the country holding the official
list.
4. For the registration of contractors of other Member
States in an official list, no further proofs and statements
may be required other than those requested of nationals
and, in any event, only those provided for under Article
24 to 27.
5. Member States holding an official list shall communicate
to other MemberStatesthe address of the body to which
requests for registration may be made.
Award
Criteria <Top>
Article 30.
1. The criteria on which the contracting authorities
shall base the award of contracts shall be:
(a) either the lowest price only;
(b) or, when the award is made to the most economically
advantageous tender, various criteria according to the
contract: e.g. price, period for completion, running
costs, profitability, technical merit.
2. In the case referred to in paragraph
1(b), the contracting authority shall state in the contract
documents or in the contract notice all the criteria
it intends to apply to the award, where possible in
descending order of importance.
All information in this guidance
is checked and believed to be correct, but cannot be
so guaranteed and the publishers shall not be liable
for any loss suffered directly or indirectly as a result
of its use.
