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COUNCIL DIRECTIVE
93/38/EEC of 14 June 1993
coordinating the procurement procedures of entities operating
in the water, energy, transport and telecommunications sectors
THE COUNCIL
OF THE EUROPEAN COMMUNITIES,
Having regard
to the Treaty establishing the European Economic Community, and in particular
the last sentence of Articles 57 (2), 66, 100a and 113 thereof,
Having regard
to the proposal from the Commission (1),
In cooperation
with the European Parliament (2),
Having regard
of the opinion of the Economic and Social Committee (3),
1. Whereas
the measures aimed at progressively establishing the internal market during
the period up to 31 December 1992 need to be taken; whereas the internal
market consists of an area without internal frontiers in which free movement
of goods, persons, services and capital is guaranteed;
2. Whereas
restrictions on the free movement of goods and on freeedom to provide
services in respect of supply and service contracts awarded in the water,
energy, transport and telecommunications sectors are prohibited by the
terms of Articles 30 and 59 of the EEC Treaty;
3. Whereas
Article 97 of the Euratom Treaty prohibits any restrictions based on nationality
as regards companies under the jurisdiction of a Member State where they
desire to participate in the construction of nuclear installations of
a scientific or industrial nature in the Community or to provide the relevant
service in the Community;
4. Whereas
these objectives also require the coordination of the procurement procedures
applied by the entities operating in these sectors;
5. Whereas
the White Paper on the completion of the internal market contains an action
programme and a (1) OJ No C 337, 31. 12. 1991, p. 1.
(2) OJ No
C 176, 13. 7. 1992, p. 136 and OJ No C 150, 31. 5. 1993.
(3) OJ C 106,
27. 4. 1992, p. 6.
timetable
for opening up public procurement markets in sectors which are currently
excluded from Council Directive 71/305/EEC of 26 July 1971 concerning
the coordination of procedures for the award of public works contracts
(4), and Council Directive 77/62/EEC of 21 December 1976 coordinating
procedure for the award of public supply contracts (5);
6. Whereas
the White Paper on the completion of the internal market also contains
an action programme and a timetable for opening up service contracts;
7. Whereas
among such excluded sectors are those concerning the provision of water,
energy and transport services and, as far as Directive 77/62/EEC is concerned,
the telecommunications sector;
8. Whereas
the main reason for their exclusion was that entities providing such services
are in some cases governed by public law, in others by private law;
9. Whereas
the need to ensure a real opening-up of the market and a fair balance
in the application of procurement rules in these sectors requires that
the entities to be covered must be identified on a different basis than
by reference to their legal status;
10. Whereas,
in the four sectors concerned, the procurement problems to be solved are
of a similar nature, thus permitting them to be addressed in one instrument;
11. Whereas,
among the main reasons why entities operating in these sectors do not
purchase on the basis of Community-wide competition is the closed nature
of the markets in which they operate, due to the existence of special
or exclusive rights granted by the national authorities, concerning the
supply to, (4) OJ No L 185, 16. 8. 1971, p. 5. Directive as last amended
by Directive 89/440/EEC (OJ No L 210, 21. 7. 1989, p. 1).
(5) OJ No
L 13, 15. 1. 1977, p. 1. Directive as last amended by Directive 88/295/EEC
(OJ No L 127, 20. 5. 1988, p. 1).
provision
or operation of, networks for providing the service concerned, the exploitation
of a given geographical area for a particular purpose, the provision or
operation of public telecommunications networks or the provision of public
telecommunications services;
12. Whereas
the other main reason for the absence of Community-wide competition in
these areas results from various ways in which national authorities can
influence the behaviour of these entities, including participations in
their capital and representation in the entities administrative, managerial
or supervisory bodies;
13. Whereas
this Directive should not extend to activities of those entities which
either fall outside the sectors of water, energy and transport services
or outside the telecommunications sector, or which fall within those sectors
but are nevertheless directly exposed to competitive forces in markets
to which entry is unrestricted;
14. Whereas
it is appropriate that these entities apply common procurement procedures
in respect of their activities relating to water; whereas certain entities
have been covered up to now by Directives 71/305/EEC and 77/62/EEC in
respect of their activities in the field of hydraulic engineering projects,
irrigation, land drainage or the disposal and treatment of sewage;
15. Whereas,
however, procurement rules of the type proposed for supplies of goods
are inappropriate for purchases of water, given the need to procure water
from sources near the area it will be used;
16. Whereas,
when specific conditions are fulfilled, exploitation of a geographical
area with the aim of exploring for or extracting oil, gas, coal or other
solid fuels may be made subject to alternative arrangements which will
enable the same objective of opening up contracts to be achieved; whereas
the Commission must ensure that these conditions are complied with by
the Member States who implement these alternative arrangements;
17. Whereas
the Commission has announced that it will propose measures to remove obstacles
to cross-frontier exchanges of electricity by 1992; whereas procurement
rules of the type proposed for supplies of goods would not make it possible
to overcome existing obstacles to the purchases of energy and fuels in
the energy sector; whereas, as a result, it is not appropriate to include
such purchases in the scope of this Directive, although it should be borne
in mind that this exemption will be re-examined by the Council on the
basis of a Commission report and Commission proposals;
18. Whereas
Regulations (EEC) No 3975/87 (1) and (EEC) No 3976/87 (2), Directive 87/601/EEC
(3) and Decision 87/602/EEC (4) are designed to introduce more competition
between the entities offering air transport services to the public and
it is therefore not appropriate for the time being to include such entities
in the scope of this Directive although the situation ought to be reviewed
at a later stage in the light of progress made as regards competition;
19. Whereas,
in view of the competitive position of Community shipping, it would be
inappropriate for the greater part of the contracts in this sector to
be subject to detailed procedures; whereas the situation of shippers operating
sea-going ferries should be kept under review; whereas certain inshore
and river ferry services operated by public authorities should no longer
be excluded from the scope of Directives 71/305/EEC and 77/62/EEC;
20. Whereas
it is appropriate to facilitate compliance with provisions relating to
activities not covered by this Directive;
21. Whereas
the rules on the award of service contracts should be as close as possible
to the rules on the works and supply contracts referred to in this Directive;
22. Whereas
obstacles to the free movement of services need to be avoided; whereas,
therefore, service providers may be either natural or legal persons; whereas
this Directive shall not, however, prejudice the application, at national
level, of rules concerning the conditions for the pursuit of an activity
or a profession provided that they are compatible with Community law;
23. Whereas
the field of services is best described, for the purpose of application
of procedural rules and for monitoring purposes, by subdividing the services
into categories corresponding to particular positions of a common classification;
whereas Annexes XVI A and XVI B to this Directive refer to the United
Nations CPC (Central Product Classification) nomenclature; whereas that
nomenclature is likely to be replaced by a Community nomenclature in the
future; whereas it is (1) OJ No L 374, 31. 12. 1987, p. 1.
(2) OJ No
L 374, 31. 12. 1987, p. 9.
(3) OJ No
L 374, 31. 12. 1987, p. 12.
(4) OJ No
L 374, 31. 12. 1987, p. 19.
necessary
to make provision for the possibility of adapting the reference made to
the CPC nomenclature in Annexes XVI A and XVI B accordingly;
24. Whereas
the provision of services is covered by this Directive only in so far
as it is based on contracts; whereas the provision of services on other
bases, such as law, regulations or administrative provisions or employment
contracts, is not covered;
25. Whereas,
in accordance with Article 103f of the EEC Treaty, the encouragement of
research and development is a means of strengthening the scientific and
technological basis of European industry and the opening-up of public
contracts will contribute to this end; whereas contributions to the financing
of research programmes should not be subject to this Directive; whereas
research and development service contracts other than those where the
benefits accrue exclusively to the contracting authority for its use in
the conduct of its own affairs, on condition that the service provided
is wholly remunerated by the contracting authority, are not therefore
covered by this Directive;
26. Whereas
contracts for the acquisition or rental of land, existing buildings or
other immovable property have particular characteristics, which make the
application of procurement rules inappropriate;
27. Whereas
arbitration and conciliation services are usually provided by bodies or
individuals which are agreed on, or selected, in a manner which cannot
be governed by procurement rules;
28. Whereas
the service contracts covered by this Directive do not include contracts
for the issue, purchase sale or transfer of securities or other financial
instruments;
29. Whereas
this Directive should not apply to procurement contracts which are declared
secret or may affect basic State security interests or are concluded according
to other rules set up by existing international agreements or international
organizations;
30. Whereas
contracts with a designated single source of supply may, under certain
conditions, be fully or partly exempted from this Directive;
31. Whereas
the Community's or the Member States' existing international obligations
must not be affected by the rules of this Directive;
32. Whereas
it is appropriate to exclude certain service contracts awarded to an affiliated
undertaking having as its principal activity, with respect to services,
the provision of such services to the group of which it is part, rather
than the offering of its services on the market;
33. Whereas
full application of this Directive must be limited, for a transitional
period, to contracts for those services where its provisions will enable
the full potential for increased cross-frontier trade to be realized;
whereas contracts for other services need to be monitored for a certain
period before taking a decision on the full application of the said Directive;
whereas the mechanism for such monitoring needs to be set up by this Directive
and whereas it should at the same time enable those interested to share
the relevant information;
34. Whereas
the relevant Community rules on mutual recognition of diplomas, certificates
or other evidence of formal qualifications apply when evidence of a particular
qualification is required for participation in an award procedure or a
design contest;
35. Whereas
products, works or services must be described by reference to European
specifications; whereas, in order to ensure that a product, work or service
fulfils the use for which it is intended by the contracting entity, such
reference may be complemented by specifications which do not change the
nature of the technical solution or solutions set out in the European
specification;
36. Whereas
the principles of equivalence and of mutual recognition of national standards,
technical specifications and manufacturing methods are applicable in the
field of application of this Directive;
37. Whereas
Community undertakings should be granted access to the award of service
contracts in third countries; whereas the Community should endeavour to
remedy any situation whereby such access, in law or in fact, is found
to be restricted and whereas it should be possible, under certain conditions,
to take measures as regards access to service contracts covered by this
Directive for undertakings of the third country concerned or for tenders
originating in that country;
38. Whereas,
when the contracting entities define by common accord with tenderers the
deadlines for receiving tenders, they shall comply with the principles
of non-discrimination, and whereas, if there is no such agreement, it
is necessary to lay down suitable provisions;
39. Whereas
it could prove useful to provide for greater transparency as to the requirements
regarding the protection and conditions of employment applicable in the
Member State in which the works are to be carried out;
40. Whereas
it is appropriate that national provisions for regional development requirements
to be taken into consideration in the award of public contracts should
be made to conform to the objectives of the Community and be in keeping
with the principles of the EEC Treaty;
41. Whereas
contracting entities must not be able to reject abnormally low tenders
before having requested in writing explanations as to the constituent
elements of the tender;
42. Whereas,
within certain limits, preference should be given to an offer of Community
origin where there are equivalent offers of third-country origin;
43. Whereas
this Directive should not prejudice the position of the Community in any
current or future international negotiations;
44. Whereas,
based on the results of such international negotiations, this Directive
should be extendable to offers of third-country origin, pursuant to a
Council Decision;
45. Whereas
the rules to be applied by the entities concerned should establish a framework
for sound commercial practice and should leave a maximum of flexibility;
46. Whereas,
as a counterpart for such flexibility and in the interest of mutual confidence,
a minimum level of transparency must be ensured and appropriate methods
adopted for monitoring the application of this Directive;
47. Whereas
it is necessary to adapt Directives 71/305/EEC and 77/62/EEC to establish
well-defined fields of application; whereas the scope of Directive 71/305/EEC
should not be reduced, except as regards contracts in the water and telecommunications
sectors; whereas the scope of Directive 77/62/EEC should not be reduced,
except as regards certain contracts in the water sector; whereas the scope
of Directives 71/305/EEC and 77/62/EEC should not, however, be extended
to contracts awarded by carriers by land, air, sea, inshore or inland
waterway which, although carrying out economic activities of an industrial
or commercial nature, belong to the State administration; whereas, nevertheless,
certain contracts awarded by carriers by land, air, sea, inshore or inland
waterway which belong to the State administration and are carried out
only for reasons of public service should be covered by those Directives;
48. Whereas
this Directive should be re-examined in the light of experience;
49. Whereas
the opening-up of contracts in the sectors covered by this Directive might
have an adverse effect upon the economy of the Kingdom of Spain; whereas
the economies of the Hellenic Republic and the Portuguese Republic will
have to sustain even greater efforts; whereas it is appropriate that these
Member States be granted adequate additional periods to implement this
Directive,
HAS ADOPTED
THIS DIRECTIVE:
TITLE I
General provisions
Article 1
For the purpose
of this Directive:
1. 'public
authorities' shall mean the State, regional or local authorities, bodies
governed by public law, or associations formed by one or more of such
authorities or bodies governed by public law.
A body is
considered to be governed by public law where it:
- is established
for the specific purpose of meeting needs in the general interest, not
being of an industrial or commercial nature,
- has legal
personality, and
- is financed
for the most part by the State, or regional or local authorities, or other
bodies governed by public law, or is subject to management supervision
by those bodies, or has an administrative, managerial or supervisory board
more than half of whose members are appointed by the State, regional or
local authorities, or other bodies governed by public law;
2. 'public
undertaking' shall mean any undertaking over which the public authorities
may exercise directly or indirectly a dominant influence by virtue of
their ownership of it, their financial participation therein, or the rules
which govern it. A dominant influence on the part of the public authorities
shall be presumed when these authorities, directly or indirectly, in relation
to an undertaking:
- hold the
majority of the undertaking's subscribed capital, or
- control
the majority of the votes attaching to shares issued by the undertaking,
or
- can appoint
more than half of the members of the undertaking's administrative, managerial
or supervisory body;
3. 'affiliated
undertaking' shall mean any undertaking the annual accounts of which are
consolidated with those of the contracting entity in accordance with the
requirements of the seventh Council Directive 83/349/EEC of 13 June 1983,
based on Article 54 (3) (g) of the EEC Treaty on consolidated accounts
(1) or, in the case of entities not subject to that Directive, any undertaking
over which the contracting entity may exercise, directly or indirectly,
a dominant influence within the meaning of paragraph 2, or which may exercise
a dominant influence over the contracting entity or which, in common with
the contracting entity, is subject to the dominant influence of another
undertaking by virtue of ownership, financial participation, or the rules
which govern it;
4. 'supply,
works and service contracts' shall mean contracts for pecuniary interest
concluded in writing between one of the contracting entities referred
to in Article 2, and a supplier, a contractor or a service provider, having
as their object:
(a) in the
case of supply contracts, the purchase, lease, rental or hire-purchase,
with or without options to buy, of products;
(b) in the
case of works contracts either the execution, or both the execution and
design or the realization, by whatever means, of building or civil engineering
activities referred to in Annex XI. These contracts may, in addition,
cover supplies and services necessary for their execution;
(c) in the
case of service contracts, any object other than those referred to in
(a) and (b) and to the exclusion of:
(i) contracts
for the acquisition or rental, by whatever financial means, of land, existing
buildings, or other immovable property or concerning rights thereon; nevertheless,
financial service contracts concluded at the (1) OJ No L 193, 18. 7. 1983,
p. 1. Directive as last amended by Directive 90/605/EEC (OJ No L 317,
16. 11. 1990, p. 60).
same time
as, before or after the contract of acquisition or rental, in whatever
form, shall be subject to this Directive;
(ii) contracts
for voice telephony, telex, radiotelephony, paging and satellite services;
(iii) contracts
for arbitration and conciliation services;
(iv) contracts
for the issue, sale, purchase or transfer of securities or other financial
instruments;
(v) employment
contracts;
(vi) research
and development service contracts other than those where the benefits
accrue exclusively to the contracting entity for its use in the conduct
of its own affairs, on condition that the service provided is wholly remunerated
by the contracting entity.
Contracts
which include the provision of services and supplies shall be regarded
as supply contracts if the total value of supplies is greater than the
value of the services covered by the contract;
5. 'framework
agreement' shall mean an agreement between one of the contracting entities
defined in Article 2 and one or more suppliers, contractors or service
providers the purpose of which is to establish the terms, in particular
with regard to the prices and, where appropriate, the quantity envisaged,
governing the contracts to be awarded during a given period;
6. 'tenderer'
shall mean a supplier, contractor or service provider who submits a tender
and 'candidate' shall mean a person who has sought an invitation to take
part in a restricted or negotiated procedure; service providers may be
either natural or legal persons, including contracting entities within
the meaning of Article 2;
7. 'open,
restricted and negotiated procedures' shall mean the award procedures
applied by contracting entities whereby:
(a) in the
case of open procedures, all interested suppliers, contractors or service
providers may submit tenders;
(b) in the
case of the restricted procedures, only candidates invited by the contracting
entity may submit tenders;
(c) in the
case of negotiated procedures, the contracting entity consults suppliers,
contractors or service providers of its choice and negotiates the terms
of the contract with one or more of them;
8. 'technical
specifications' shall mean the technical requirements contained in particular
in the tender documents, defining the characteristics of a set of works,
material, product, supply or service, and enabling a piece of work, a
material, a product, a supply or a service to be objectively described
in a manner such that it fulfils the use for which it is intended by the
contracting entity. These technical specifications may include quality,
performance, safety or dimensions, as well as requirements applicable
to the material, product, supply or service as regards quality assurance,
terminology, symbols, testing and test methods, packaging, marking or
labelling. In the case of works contracts, they may also include rules
for the design and costing, the test, inspection and acceptance conditions
for works and techniques or methods of construction and all other technical
conditions which the contracting entity is in a position to prescribe
under general or specific regulations, in relation to the finished works
and to the materials or parts which they involve;
9. 'standard'
shall mean a technical specification approved by a recognized standardizing
body for repeated or continuous application, compliance with which is
in principle not compulsory;
10. 'European
standard' shall mean a standard approved by the European Committee for
Standardization (CEN) or by the European Committee for Electrotechnical
Standardization (Cenelec) as a 'European Standard (EN)' or 'Harmonization
Document (HD)', according to the common rules of those organizations,
or by the European Telecommunications Standards Institute (ETSI) according
to its own rules as a 'European Telecommunications Standard (ETS)';
11. 'common
technical specification' shall mean a technical specification drawn up
in accordance with a procedure recognized by the Member States with a
view to uniform application in all Member States and published in the
Official Journal of the European Communities;
12. 'European
technical approval' shall mean a favourable technical assessment of the
fitness for use of a product for a particular purpose, based on fulfilment
of the essential requirements for building works, by means of the inherent
characteristics of the product and the defined conditions of application
and use, as provided for in Council Directive 89/106/EEC of 21 December
1988 on the approximation of laws, regulations and administrative provisions
of the Member States relating to construction products (1). European(1)
OJ No L 40, 11. 2. 1989, p. 12.
technical
approval shall be issued by an approval body designated for this purpose
by the Member State;
13. 'European
specification' shall mean a common technical specification, a European
technical approval or a national standard implementing a European standard;
14. 'public
telecommunications network' shall mean the public telecommunications infrastructure
which enables signals to be conveyed between defined network termination
points by wire, by microwave, by optical means or by other electromagnetic
means;
'network termination
point' shall mean all physical connections and their technical access
specification which form part of the public telecommunications network
and are necessary for access to, and efficient communication through,
that public network;
15. 'public
telecommunications services' shall mean telecommunications services the
provision of which the Member States have specifically assigned notably
to one or more telecommunications entities;
'Telecommunications
services' shall mean services the provision of which consists wholly or
partly in the transmission and routing of signals on the public telecommunications
network by means of telecommunications processes, with the exception of
radio-broadcasting and television;
16. 'design
contests' shall mean the national procedures which enable the contracting
entity to acquire, mainly in the fields of architecture, engineering or
data processing, a plan or design selected by a jury after having been
put out to competition with or without the award of prizes.
Article 2
1. This Directive
shall apply to contracting entities which:
(a) are public
authorities or public undertakings and exercise one of the activities
referred to in paragraph 2;
(b) when they
are not public authorities or public undertakings, have as one of their
activities any of those referred to in paragraph 2 or any combination
thereof and operate on the basis of special or exclusive rights granted
by a competent authority of a Member State.
2. Relevant
activities for the purposes of this Directive shall be:
(a) the provision
or operation of fixed networks intended to provide a service to the public
in connection with the production, transport or distribution of:
(i) drinking
water; or
(ii) electricity;
or
(iii) gas
or heat;
or the supply
of drinking water, electricity, gas or heat to such networks;
(b) the exploitation
of a geographical area for the purpose of:
(i) exploring
for or extracting oil, gas, coal or other solid fuels, or
(ii) the provision
of airport, maritime or inland port or other terminal facilities to carriers
by air, sea or inland waterway;
(c) the operation
of networks providing a service to the public in the field of transport
by railway, automated systems, tramway, trolley bus, bus or cable.
As regards
transport services, a network shall be considered to exist where the service
is provided under operating conditions laid down by a competent authority
of a Member State, such as conditions on the routes to be served, the
capacity to be made available or the frequency of the service;
(d) the provision
or operation of public telecommunications networks or the provision of
one or more public telecommunications services.
3. For the
purpose of applying paragraph 1 (b), special or exclusive rights shall
mean rights deriving from authorizations granted by a competent authority
of the Member State concerned, by law, regulation or administrative action,
having as their result the reservation for one or more entities of the
exploitation of an activity defined in paragraph 2.
A contracting
entity shall be considered to enjoy special or exclusive rights in particular
where:
(a) for the
purpose of constructing the networks or the facilities referred to in
paragraph 2, it may take advantage of a procedure for the expropriation
or use of property or may place network equipment on, under or over the
public highway;
(b) in the
case of paragraph 2 (a), the entity supplies with drinking water, electricity,
gas or heat a network which is itself operated by an entity enjoying special
or exclusive rights granted by a competent authority of the Member State
concerned.
4. The provision
of bus transport services to the public shall not be considered to be
a relevant activity within the meaning of paragraph 2 (c) where other
entities are free to provide those services, either in general or in a
particular geographical area, under the same condition as the contracting
entities.
5. The supply
of drinking water, electricity, gas or heat to networks which provide
a service to the public by a contracting entity other than a public authority
shall not be considered as a relevant activity within the meaning of paragraph
2 (a) where:
(a) in the
case of drinking water or electricity:
- the production
of drinking water or electricity by the entity concerned takes place because
its consumption is necessary for carrying out an activity other than that
referred to in paragraph 2, and
- supply to
the public network depends only on the entity's own consumption and has
not exceeded 30% of the entity's total production of drinking water or
energy, having regard to the average for the preceding three years, including
the current year;
(b) in the
case of gas or heat:
- the production
of gas or heat by the entity concerned is the unavoidable consequence
of carrying on an activity other than that referred to in paragraph 2,
and
- supply to
the public network is aimed only at the economic exploitation of such
production and amounts to not more than 20% of the entity's turnover having
regard to the average for the preceding three years, including the current
year.
6. The contracting
entities listed in Annexes I to X shall fulfil the criteria set out above.
In order to ensure that the lists are as exhaustive as possible, Member
States shall notify the Commission of amendments to their lists. The Commission
shall revise Annexes I to X in accordance with the procedure in Article
40.
Article 3
1. Member
States may request the Commission to provide that exploitation of geographical
areas for the purpose of exploring for or extracting oil, gas, coal or
other solid fuels shall not be considered to be an activity defined in
Article 2 (2) (b) (i) and that entities shall not be considered as operating
under special or exclusive rights within the meaning of Article 2 (3)
(b) by virtue of carrying on one or more of these activities, provided
that all the following conditions are satisfied with respect to the relevant
national provisions concerning such activities:
(a) at the
time when authorization to exploit such a geographical area is requested,
other entities shall be free to seek authorization for that purpose under
the same conditions as the contracting entities;
(b) the technical
and financial capacity of entities to engage in particular activities
shall be established prior to any evaluation of the merits of competing
applications for authorization;
(c) authorization
to engage in those activities shall be granted on the basis of objective
criteria concerning the way in which it is intended to carry out exploitation
or extraction, which shall be established and published prior to the requests
and applied in a non-discriminatory manner;
(d) all conditions
and requirements concerning the carrying out or termination of the activity,
including provisions on operating obligations, royalties, and participation
in the capital or revenue of the entities, shall be established and made
available prior to the requests for authorization being made and then
applied in a non-discriminatory manner; every change concerning these
conditions and requirements shall be applied to all the entities concerned,
or else amendments must be made in a non-discriminatory manner; however,
operating obligations need not be established until immediately before
the authorization is granted; and
(e) contracting
entities shall not be required by any law, regulation, administrative
requirement, agreement or understanding to provide information on a contracting
entity's intended or actual sources of procurement, except at the request
of national authorities with a view to the objectives mentioned in Article
36 of the EEC Treaty.
2. Member
States which apply the provisions of paragraph 1 shall ensure, through
the conditions of the authorization or other appropriate measures, that
any entity:
(a) observes
the principles of non-discrimination and competitive procurement in respect
of the award of supplies, works and service contracts, in particular as
regards the information which the entity makes available to undertakings
concerning its procurement intentions;
(b) communicates
to the Commission, under conditions to be defined by the latter in accordance
with Article 40, information relating to the award of contracts.
3. As regards
individual concessions or authorizations granted before the date on which
Member States apply this Directive in accordance with Article 45, paragraph
1 (a), (b) and (c) shall not apply, provided that at that date other entities
are free to seek authorization for the exploitation of geographical areas
for the purpose of exploring for or extracting oil, gas, coal or other
solid fuels, on a non-discriminatory basis and in the light of objective
criteria. Paragraph 1 (d) shall not apply as regards conditions or requirements
established, applied or amended before the date referred to above.
4. A Member
State which wishes to apply paragraph 1 shall inform the Commission accordingly.
In so doing, it shall inform the Commission of any law, regulation or
administrative provision, agreement or understanding relating to compliance
with the conditions referred to in paragraphs 1 and 2.
The Commission
shall take a decision in accordance with the procedure laid down in Article
40 (5) to (8). It shall publish its decision, giving its reasons, in the
Official Journal of the European Communities.
It shall forward
to the Council each year a report on the implementation of this Article
and review its application in the framework of the report provided for
in Article 44.
Article 4
1. When awarding
supply, works or service contracts, or organizing design contests, the
contracting entities shall apply procedures which are adapted to the provisions
of this Directive.
2. Contracting
entities shall ensure that there is no discrimination between different
suppliers, contractors or service providers.
3. In the
context of provision of technical specifications to interested suppliers,
contractors or service providers, of qualification and selection of suppliers,
contractors or service providers and of award of contracts, contracting
entities may impose requirements with a view to protecting the confidential
nature of information which they make available.
4. This Directive
shall not limit the right of suppliers, contractors or service providers
to require a contracting entity, in conformity with national law, to respect
the confidential nature of information which they make available.
Article 5
1. Contracting
entities may regard a framework agreement as a contract within a meaning
of Article 1 (4) and award it in accordance with this Directive.
2. Where contracting
entities have awarded a framework agreement in accordance with this Directive,
they may avail themselves of Article 20 (2) (i) when awarding contracts
based on that agreement.
3. Where a
framework agreement has not been awarded in accordance with this Directive,
contracting entities may not avail themselves of Article 20 (2) (i).
4. Contracting
entities may not misuse framework agreements in order to hinder, limit
or distort competition.
Article 6
1. This Directive
shall not apply to contracts or design contests which the contracting
entities award or organize for purposes other than the pursuit of their
activities as described in Article 2 (2) or for the pursuit of such activities
in a non-member country, in conditions not involving the physical use
of a network or geographical area within the Community.
2. However,
this Directive shall apply to contracts or design contests awarded or
organized by the entities which exercise an activity referred to in Article
2 (2) (a) (i) and which:
(a) are connected
whith hydraulic engineering projects, irrigation or land drainage, provided
that the volume of water intended for the supply of drinking water represents
more than 20% of the total volume of water made available by these projects
or irrigation or drainage installations, or
(b) are connected
with the disposal or treatment of sewage.
3. The contracting
entities shall notify the Commission at its request of any activities
they regard as excluded under paragraph 1. The Commission may periodically
publish lists of the categories of activities which it considers to be
covered by this exclusion for information in the Official Journal of the
European Communities. In so doing, the Commission shall respect any sensitive
commercial aspects the contracting entities may point out when forwarding
this information.
Article 7
1. This Directive
shall not apply to contracts awarded for purposes of resale or hire to
third parties, provided that the contracting entity enjoys no special
or exclusive right to sell or hire the subject of such contracts and other
entities are free to sell or hire it under the same conditions as the
contracting entity.
2. The contracting
entities shall notify the Commission at its request of all the categories
of products or activities which they regard as excluded under paragraph
1. The Commission may periodically publish lists of the categories of
products of activities which it considers to be covered by this exclusion
for information in the Official Journal of the European Communities. In
so doing, the Commission shall respect any sensitive commercial aspects
which the contracting entities may point out when forwarding this information.
Article 8
1. This Directive
shall not apply to contracts which contracting entities exercising an
activity described in Article 2 (2) (d) award for purchases intended exclusively
to enable them to provide one or more telecommunications services where
other entities are free to offer the same services in the same geographical
area and under substantially the same conditions.
2. The contracting
entities shall notify the Commission at its request of any services which
they regard as excluded under paragraph 1. The Commission may periodically
publish the list of services which it considers to be covered by this
exclusion for information in the Official Journal of the European Communities.
In so doing, the Commission shall respect any sensitive commercial aspects
the contracting entities may point out when forwarding this information.
Article 9
1. This Directive
shall not apply to:
(a) contracts
which the contracting entities listed in Annex I award for the purchase
of water;
(b) contracts
which the contracting entities listed in Annexes II to V award for the
supply of energy or of fuels for the production of energy.
2. The Council
shall re-examine the provisions of paragraph 1 when it has before it a
report from the Commission together with appropriate proposals.
Article 10
This Directive
shall not apply to contracts when they are declared to be secret by Member
States, when their execution 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
security interests of that State so requires.
Article 11
This Directive
shall not apply to service contracts awarded to an entity which is itself
a contracting authority within the meaning of Article 1 (b) of Council
Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures
for the award of public service contracts (1) on the basis of an exclusive
right which it enjoys pursuant to a published law, regulation or administrative
provision which is compatible with the EEC Treaty.
Article 12
This Directive
shall not apply to contracts governed by different procedural rules and
awarded:
1. pursuant
to an international agreement concluded in conformity with the Treaty
between a Member State and one or more third countries and covering supplies,
works, services or design contests intended for the joint implementation
or exploitation of a project by the signatory States; every agreement
shall be communicated to the Commission, which may consult the Advisory
Committee for Public Contracts set up by Council Decision 71/306/EEC (2)
or, in the case of agreements governing contracts awarded by entities
exercising an activity defined in Article 2 (2) (d), the Advisory Committee
on Telecommunications Procurement referred to in Article 39;
2. to undertakings
in a Member State or a third country in pursuance of an international
agreement relating to the stationing of troops;
3. pursuant
to the particular procedure of an international organization.
Article 13
1. This Directive
shall not apply to service contracts which:
(a) a contracting
entity awards to an affiliated undertaking;
(b) are awarded
by a joint venture formed by a number of contracting entities for the
purpose of carrying out a relevant activity within the meaning of Article
2 (2) to one of those contracting entities or to an undertaking which
is affiliated with one of these contracting entities,
provided that
at least 80% of the average turnover of that undertaking with respect
to services arising within the Community for the preceding three years
derives from the provision of such services to undertakings with which
it is affiliated.
(1) OJ No
L 209, 24. 7. 1992, p. 1.
(2) OJ No
L 185, 16. 8. 1971, p. 15. Decision as last amended by Decision 77/63/EEC
(OJ No L 13, 15. 1. 1977, p. 15).
Where more
than one undertaking affiliated with the contracting entity provides the
same service or similar services, the total turnover deriving from the
provision of services by those undertakings shall be taken into account.
2. The contracting
entities shall notify to the Commission, at its request, the following
information regarding the application of the provisions of paragraph 1:
- the names
of the undertakings concerned,
- the nature
and value of the service contracts involved,
- such proof
as may be deemed necessary by the Commission that the relationship between
the undertaking to which the contracts are awarded and the contracting
entity is in conformity with the requirements of this Article.
Article 14
1. This Directive
shall apply to contracts the estimated value, not of VAT, for which is
not less than:
(a) ECU 400%000
in the case of supply and service contracts awarded by entities exercising
an activity defined in Article 2 (2) (a), (b) and (c);
(b) ECU 600%000
in the case of supply and service contracts awarded by entities carrying
out an activity defined in Article 2 (2) (d);
(c) ECU 5%000%000
in the case of works contracts.
2. For the
purposes of calculating the estimated amount of a service contract, the
contracting entity shall include the total remuneration of the service
provider, taking account of the elements specified in paragraphs 3 to
13.
3. For the
purposes of calculating the estimated contract amount of financial services,
the following amounts shall be taken into account:
- as regards
insurance services, the premium payable,
- as regards
banking and other financial services, fees, commissions, interest and
other types of remuneration,
- as regards
contracts which involve design, the fee or commission payable.
4. In the
case of supply contracts for lease, rental or hire-purchase, the basis
for calculating the contract value shall be:
(a) in the
case of fixed-term contracts, where their term is 12 months or less, the
estimated total value for the contract's duration, or, where their term
exceeds 12 months, the contract's total value including the estimated
residual value;
(b) in the
case of contracts for an indefinite period or in cases where there is
doubt as to the duration of the contracts, the anticipated total instalments
to be paid in the first four years.
5. In the
case of service contracts which do not indicate a total cost, the basis
for calculating the estimated contract value shall be:
- for fixed-term
contracts, where their term is 48 months or less, the total value for
their whole duration,
- for contracts
without a fixed term or for a term exceeding 48 months, the monthly value
multiplied by 48.
6. Where a
proposed supply or service contract expressly specifies option clauses,
the basis for calculating the contract value shall be the highest possible
total purchase, lease, rental or hire-purchase permissible, inclusive
of the option clauses.
7. In the
case of a procurement of supplies or services over a given period by means
of a series of contracts to be awarded to one or more suppliers or service
providers or of contracts which are to be renewed, the contract value
shall be calculated on the basis of:
(a) the total
value of contracts with similar characteristics which were awarded over
the previous financial year or 12 months, adjusted where possible for
anticipated changes in quantity or value over the subsequent twelve months;
or
(b) the aggregate
value of contracts to be awarded during the 12 months following the first
award or during the whole term of the contract, where this is longer than
12 months.
8. The basis
for calculating the estimated value of a contract including both supplies
and services shall be the total value of the supplies and services, regardless
of their respective values. The calculation shall include the value of
the siting and installation operations.
9. The basis
for calculating the value of a framework agreement shall be the estimated
maximum value of all the contracts envisaged for the period in question.
10. The basis
for calculating the value of a works contract for the purposes of paragraph
1 shall be the total value of the work. 'Work' shall mean the result of
building and civil engineering activities, taken as a whole, which are
intended to fulfil an economic and technical function by themselves.
In particular,
where a supply, work or service is the subject of several lots, the value
of each lot shall be taken into account when assessing the value referred
to in paragraph 1. Where the aggregate value of the lots equals or exceeds
the value laid down in paragraph 1, that paragraph shall apply to all
the lots. However, in the case of works contracts, contracting entities
may derogate from paragraph 1 in respect of lots the estimated value net
of VAT for which is less than ECU 1 million, provided that the aggregate
value of those lots does not exceed 20% of the overall value of the lots.
11. For the
purposes of paragraph 1, contracting entities shall include in the estimated
value of a works contract the value of any supplies or services necessary
for the execution of the contracts which they make available to the contractor.
12. The value
of supplies or services which are not necessary for the execution of a
particular works contract may not be added to that of the works contract
with the result of avoiding application of this Directive to the procurement
of those supplies or services.
13. Contracting
entities may not circumvent this Directive by splitting contracts or using
special methods of calculating the value of contracts.
TITLE II
Two-tier application
Article 15
Supply and
works contracts and contracts which have as their object services listed
in Annex XVI A shall be awarded in accordance with the provisions of Titles
III, IV and V.
Article 16
Contracts
which have as their object services listed in Annex XVI B shall be awarded
in accordance with Articles 18 and 24.
Article 17
Contracts
which have as their object services listed in both Annexes XVI A and XVI
B shall be awarded in accordance with the provisions of Titles III, IV
and V where the value of the services listed in Annex XVI A is greater
than the value of the services listed in Annex XVI B. Where this is not
the case, they shall be awarded in accordance with Articles 18 and 24.
TITLE III
Technical
specifications and standards
Article 18
1. Contracting
entities shall include the technical specifications in the general documents
or the contract documents relating to each contract.
2. The technical
specifications shall be defined by reference to European specifications,
where these exist.
3. In the
absence of European specifications, the technical specifications should
as far as possible be defined by reference to other standards having currency
within the Community.
4. Contracting
entities shall define such further requirements as are necessary to complete
European specifications or other standards. In so doing, they shall prefer
specifications which indicate performance requirements rather than design
or description characteristics, unless the contracting entity has objective
reasons for considering that such specifications are inadequate for the
purposes of the contract.
5. Technical
specifications which mention goods of a specific make or source or of
a particular process, and which have the effect of favouring or eliminating
certain undertakings, shall not be used unless such specifications are
indispensable for the subject of the contract. In particular, the indication
of trade marks, patents, types, of specific origin or production shall
be prohibited; however, such an indication accompanied by the works 'or
equivalent' shall be authorized where the subject of the contract cannot
otherwise be described by specifications which are sufficiently precise
and fully intelligible to all concerned.
6. Contracting
entities may derogate from paragraph 2 if:
(a) it is
technically impossible to establish satisfactorily that a product conforms
to the European specifications;
(b) the application
of paragraph 2 would prejudice the application of Council Directive 86/361/EEC
of 24 July 1986 on the initial stage of the mutual recognition of type
approval for telecommunications terminal equipment (1), or of Council
Decision 87/95/EEC of 22 December 1986 on standardization in the field
of information technology and telecommunications (2);
(c) in the
context of adapting existing practice to take account of European specifications,
use of those specifications would oblige the contracting entity to acquire
supplies incompatible with equipment already in use or would entail disproportionate
cost or disproportionate technical difficulty. Contracting entities which
have recourse to this derogation shall do so only as part of clearly-defined
and recorded strategy with a view to a changeover to European specifications;
(d) the relevant
European specification is inappropriate for the particular application
or does not take account of technical developments which have come about
since its adoption. Contracting entities which have recourse to this derogation
shall inform the appropriate standardizing organization, or any other
body empowered to review the European specification, of the reasons why
they consider the European specification to be inappropriate and shall
request its revision;
(e) the project
is of a genuinely innovative nature for which use of European specifications
would not be appropriate.
7. Notices
published pursuant to Article 21 (1) (a) or Article 21 (2) (a) shall indicate
any recourse to the derogations referred to in paragraph 6.
8. This Article
shall be without prejudice to compulsory technical rules in so far as
these are compatible with Community law.
Article 19
1. Contracting
entities shall make available on request to suppliers, contractors or
service providers interested in obtaining a contract the technical specifications
regularly referred to in their supply, works or service contracts or the
technical specifications which they intend to apply to contracts covered
by periodic information notices within the meaning of Article 22.
2. Where such
technical specifications are based on documents available to interested
suppliers, contractors or service providers, a reference to those documents
shall be sufficient.
(1) OJ No
L 217, 5. 8. 1986, p. 21.
(2) OJ No
L 36, 7. 2. 1987, p. 31.
TITLE IV
Procedures
for the award of contracts
Article 20
1. Contracting
entities may choose any of the procedures described in Article 1 (7),
provided that, subject to paragraph 2, a call for competition has been
made in accordance with Article 21.
2. Contracting
entities may use a procedure without prior call for competition in the
following cases:
(a) in the
absence of tenders or suitable tenders in response to a procedure with
a prior call for competition, provided that the original contract conditions
have not been substantially changed;
(b) where
a contract is purely for the purpose of research, experiment, study or
development and not for the purpose of ensuring profit or of recovering
research and development costs and in so far as the award of such contract
does not prejudice the competitive award of subsequent contracts which
have in particular these purposes;
(c) when,
for technical or artistic reasons or for reasons connected with protection
of exclusive rights, the contract may be executed only by a particular
supplier, contractor or service provider;
(d) in so
far as is strictly necessary when, for reasons of extreme urgency brought
about by events unforeseeable by the contracting entities, the time limits
laid down for open and restricted procedures cannot be adhered to;
(e) in the
case of supply contracts for additional deliveries by the original supplier
which are intended either as a partial replacement of normal supplies
or installations or as the extension of existing supplies or installations,
where a change of supplier would oblige the contracting entity to acquire
material having different technical characteristics which would result
in incompatibility or disproportionate technical difficulties in operation
and maintenance;
(f) for additional
works or services not included in the project initially awarded or in
the contract first concluded but which have, through unforeseen circumstances,
become necessary for the execution of the contract, on condition that
the award is made to the contractor or service provider executing the
original contract:
- when such
additional works or services cannot be technically or economically separated
from the main contract without great inconvenience to the contracting
entities,
- or when
such additional works or services, although separable from the execution
of the original contract, are strictly necessary to its later stages;
(g) in the
case of works contracts, for new works consisting of the repetition of
similar works entrusted to the contractor to which the same contracting
entities awarded an earlier contract, provided that such works conform
to a basic project for which a first contract was awarded after a call
for competition. 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
entities when they apply the provisions of Article 14;
(h) for supplies
quoted and purchased on a commodity market;
(i) for contracts
to be awarded on the basis of a framework agreement, provided that the
condition referred to in Article 5 (2) is fulfilled;
(j) for bargain
purchases, where it is possible to procure supplies taking advantage of
a particularly advantageous opportunity available for a very short space
of time at a price considerably lower than normal market prices;
(k) for purchases
of goods under particularly advantageous conditions from either a supplier
definitively winding up his business activities or the receivers or liquidators
of a bankruptcy, an arrangement with creditors or a similar procedure
under national laws or regulations;
(l) when the
service contract concerned is part of the follow-up a design contest organized
in conformity with the provisions of this Directive and must, in accordance
with the relevant rules, be awarded to the winner or to one of the winners
of that contest. In the latter case, all the winners must be invited to
participate in the negotiations.
Article 21
1. In the
case of supplies, works or service contracts, the call for competition
may be made:
(a) by means
of a notice drawn up in accordance with Annex XII A, B or C; or
(b) by means
of a periodic indicative notice drawn up in accordance with Annex XIV;
or
(c) by means
of a notice on the existence of a qualification system drawn up in accordance
with Annex XIII.
2. When a
call for competition is made by means of a periodic indicative notice:
(a) the notice
must refer specifically to the supplies, works or services which will
be the subject of the contract to be awarded;
(b) the notice
must indicate that the contract will be awarded by restricted or negotiated
procedure without further publication of a notice of a call for competition
and invite interested undertakings to express their interest in writing;
(c) contracting
entities shall subsequently invite all candidates to confirm their interest
on the basis of detailed information on the contract concerned before
beginning the selection of tenderers or participants in negotiations.
2. When a
call for competition is made by means of a notice on the existence of
a qualification system, tenderers in a restricted procedure or participants
in a negotiated prcedure shall be selected from the qualified candidates
in accordance with such a system.
4. In the
case of design contests, the call for competition shall be made by means
of a notice drawn up in accordance with Annex XVII.
5. The notices
referred to in this Article shall be published in the Official Journal
of the European Communities.
Article 22
1. Contracting
entities shall make known, at least once a year, by means of a periodic
indicative notice:
(a) in the
case of supply contracts, the total of the contracts for each product
area of which the estimated value, taking into account the provisions
of Article 14, is equal to or greater than ECU 750%000, and which
they intend to award over the following twelve months;
(b) in the
case of works contracts, the essential characteristics of the works contracts
which the contracting entities intend to award, the estimated value of
which is not less than the threshold laid down in Article 14 (1).
(c) in the
case of service contracts, the estimated total value of the service contracts
in each of the categories of services listed in Annex XVI A which they
intend to award over the following 12 months, where such estimated total
value, taking into account the provisions of Article 14, is equal to or
greater than ECU 750%000.
2. The notice
shall be drawn up in accordance with Annex XIV and published in the Official
Journal of the European Communities.
3. Where the
notice is used as a means of calling for competition in accordance with
Article 21 (1) (b), it must have been published not more than 12 months
prior to the date on which the invitation referred to in Article 21 (2)
(c) is sent. Moreover, the contracting entity shall meet the deadlines
laid down in Article 26 (2).
4. Contracting
entities may, in particular, publish periodic indicative notices relating
to major projects without repeating information previously included in
a periodic indicative notice, provided that it is clearly stated that
such notices are additional notices.
Article 23
1. This Article
shall apply to design contests organized as part of a procedure leading
to the award of a service contract the estimated value net of VAT for
which is not less than the value referred to in Article 14 (1).
2. This Article
shall apply to all design contests where the total amount of contest prizes
and payments to participants is not less than ECU 400%000 for design
contests organized by entities exercising an activity referred to in Article
2 (2) (a), (b) and (c) and ECU 600%000 for design contests organized
by entities exercising an activity referred to in Article 2 (2) (d).
3. The rules
for the organization of a design contest shall be in conformity with the
requirements of this Article and shall be communicated to those interested
in participating in the contest.
4. The admission
of participants to design contests shall not be limited:
- by reference
to the territory or part of the territory of a Member State,
- on the grounds
that, under the law of the Member State in which the contest is organized,
they would have been required to be either natural or legal persons.
5. Where design
contests are restricted to a limited number of participants, the contracting
authorities shall lay down clear and non-discriminatory selection criteria.
In any event, the number of candidates invited to participate shall be
sufficient to ensure genuine competition.
6. The jury
shall be composed exclusively of natural persons who are independent of
participants in the contest. Where a particular professional qualification
is required from participants in a contest, at least a third of its members
must have the same qualification or its equivalent.
The jury shall
be autonomous in its decisions or opinions. These shall be reached on
the basis of projects submitted anonymously and solely on the grounds
of the criteria indicated in the notice provided for in Annex XVII.
Article 24
1. Contracting
entities which have awarded a contract or organized a design contest shall
communicate to the Commission, within two months of the award of the contract
and under conditions to be laid down by the Commission in accordance with
the procedure laid down in Article 40, the results of the awarding procedure
by means of a notice drawn up in accordance with Annex XV or Annex XVIII.
2. Information
provided under Section I of Annex XV or under Annex XVIII shall be published
in the Official Journal of the European Communities. In this connection
the Commission shall respect any sensitive commercial aspects which the
contracting entities may point out when forwarding this information in
connection with points 6 and 9 of Annex XV.
3. Contracting
entities awarding service contracts within category No 8 of Annex XVI
A to which Article 20 (2) (b) applies need mention, concerning point 3
of Annex XV, only the main title thereof within the meaning of the classification
of Annex XVI. Contracting entities awarding service contracts within category
No 8 of Annex XVI A to which Article 20 (2) (b) does not apply may, on
the grounds of commercial confidentiality, limit the information provided
for in point 3 of Annex XV. However, they must ensure that any information
published under this point is no less detailed than that contained in
the notice of the call for competition published in accordance with Article
20 (1) or, where a qualification system is used, no less detailed than
the category referred to in Article 30 (7). In the case listed in Annex
XVI B, the contracting entites shall indicate in the notice whether they
agree on its publication.
4. Information
provided under Section II of Annex XV must not be published, except in
aggregated form, for statistical purposes.
Article 25
1. The contracting
entities must be able to supply proof of the date of dispatch of the notices
referred to in Articles 20 to 24.
2. The notices
shall be published in full in their original language in the Official
Journal of the European Communities and in the TED data bank. A summary
of the important elements of each notice shall be published in the other
official languages of the Community, the original text alone being authentic.
3. The Office
for Official Publications of the European Communities shall publish the
notices not later than 12 days after their dispatch. In exceptional cases
it shall endeavour to publish the notice referred to in Article 21 (1)
(a) within five days in response to a request by the contracting entity
and provided that the notice has been sent to the Office by electronic
mail, telex or telefax. Each edition of the Official Journal of the European
Communities which contains one or more notices shall reproduce the model
notice or notices on which the published notice or notices is/are based.
4. The cost
of publication of the notices in the Official Journal of the European
Communities shall be borne by the Communities.
5. Contracts
or design contests in respect of which a notice is published in the Official
Journal of the European Communities pursuant to Article 21 (1) or (4)
shall not be published in any other way before that notice has been dispatched
to the Office for Official Publications of the European Communities. Such
publication shall not contain information other than that published in
the Official Journal of the European Communities.
Article 26
1. In open
procedures the time limit for the receipt of tenders shall be fixed by
contracting entities at not less than 52 days from the date of dispatch
of the notice. This time limit may be shortened to 36 days where contracting
entities have published a notice in accordance with Article 22 (1).
2. In restricted
procedures and in negotiated procedures with a prior call for competition,
the following arrangements shall apply:
(a) the time
limit for receipt of requests to participate, in response to a notice
published in accordance with Article 21 (1) (a) or in response to an invitation
from a contracting entity in accordance with Artice 21 (2) (c), shall,
as a general rule, be at least five weeks from the date of dispatch of
the notice or invitation and shall in any case not be less than the time
limit for publication laid down in Article 25 (3), plus 10 days;
(b) the time
limit for receipt of tenders may be fixed by mutual agreement between
the contracting entity and the selected candidates, provided that all
tenderers are given equal time to prepare and submit tenders;
(c) where
it is not possible to reach agreement on the time limit for the receipt
of tenders, the contracting entity shall fix a time limit which shall,
as a general rule, be at least three weeks and shall in any case not be
less than 10 days from the date of the invitation to tender; the time
allowed shall be sufficiently long to take account in particular of the
factors mentioned in Article 28 (3).
Article 27
In the contract
documents, the contracting entity may ask the tenderer to indicate in
his tender any share of the contract which he may intend to subcontract
to third parties.
This indication
shall be without prejudice to the question of the principal contractor's
responsibility.
Article 28
1. Provided
that they have been requested in good time, the contract documents and
supporting documents must be sent to the suppliers, contractors or service
providers by the contracting entities as a general rule within six days
of receipt of the application.
2. Provided
that it has been requested in good time, additional information relating
to the contract documents shall be supplied by the contracting entities
not later than six days before the final date fixed for receipt of tenders.
3. Where tenders
require the examination of voluminous documentation such as lengthy technical
specifications, a visit to the site or an on-the-spot inspection of the
documents supporting the contract documents, this shall be taken into
account when the appropriate time limits are fixed.
4. Contracting
entities shall invite the selected candidates simultaneously and in writing.
The letter of invitation shall be accompanied by the contract documents
and supporting documents. It shall include at least the following information:
(a) the address
from which any additional documents can be requested, the final date for
such requests and the amount and methods of payment 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 any tender notice published;
(d) an indication
of any document to be annexed;
(e) the criteria
for the award of the contract if these are not given in the notice;
(f) any other
special condition for participation in the contract.
5. Requests
for participation in contracts and invitations to tender must be made
by the most rapid means of communication possible. When requests to participate
are made by telegram, telex, telephone or any electronic means, they must
be confirmed by letter dispatched before the expiry of the time limit
referred to in Article 26 (1) or of the time limit set by contracting
entities pursuant to Article 26 (2).
Article 29
1. The contracting
entity may state in the contract documents, or be obliged by a Member
State so to do, 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 or
services are to be executed or performed and which shall be applicable
to the works carried out or the services performed on site during the
performance of the contract.
2. A contracting
entity which supplies the information referred to in paragraph 1 shall
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 or the
service is to be carried out or performed. This shall be without prejudice
to the application of Article 34 (5) concerning the examination of abnormally
low tenders.
TITLE V
Qualification,
selection and award
Article 30
1. Contracting
entities which so wish may establish and operate a system of qualification
of suppliers, contractors or service providers.
2. The system,
which may involve different qualification stages, shall operate on the
basis of objective criteria and rules to be established by the contracting
entity. The contracting entity shall use European standards as a reference
where they are appropriate. The criteria and rules may be updated as required.
3. The criteria
and rules for qualification shall be made available on request to interested
suppliers, contractors or service providers. The updating of these criteria
and rules shall be communicated to the interested suppliers, contractors
and service providers. Where a contracting entity considers that the qualification
system of certain third entities or bodies meets its requirements, it
shall communicate to interested suppliers, contractors and service providers
the names of such third entities or bodies.
4. Contracting
entities shall inform applicants of their decision as to qualification
within a reasonable period. If the decision will take longer than six
months from the presentation of an application, the contracting entity
shall inform the applicant, within two months of the application, of the
reasons justifying a longer period and of the date by which its application
will be accepted or refused.
5. In reaching
their decision as to qualification or when the criteria and rules are
being updated, contracting entities may not:
- impose conditions
of an administrative, technical or financial nature on some suppliers,
contractors or service providers which are not imposed on others,
- require
tests or proof which duplicate objective evidence already available.
6. Applicants
whose qualification is refused shall be informed of this decision and
the reasons for refusal. The reasons must be based on the criteria for
qualification referred to in paragraph 2.
7. A written
record of qualified suppliers, contractors or service providers shall
be kept and it may be divided into categories, according to the type of
contract for which the qualification is valid.
8. Contracting
entities may bring the qualification of a supplier, contractor or service
provider to an end only for reasons based on the criteria referred to
in paragraph 2. The intention to bring qualification to an end must be
notified in writing to the supplier, contractor or service provider beforehand,
together with the reason or reasons justifying the proposed action.
9. The qualification
system shall be the subject of a notice drawn up in accordance with Annex
XIII and published in the Official Journal of the European Communities,
indicating the purpose of the qualification system and the availability
of the rules concerning its operation. Where the system is of a duration
greater than three years, the notice shall be published annually. Where
the system is of a shorter duration, an initial notice shall suffice.
Article 31
1. Contracting
entities which select candidates to tender in restricted procedures or
to participate in negotiated procedures shall do so according to objective
criteria and rules which they lay down and which they shall make available
to interested suppliers, contractors or service providers.
2. The criteria
used may include the criteria for exclusion specified in Article 23 of
Directive 71/305/EEC and in Article 20 of Directive 77/62/EEC.
3. The criteria
may be based on the objective need of the contracting entity to reduce
the number of candidates to a level which is justified by the need to
balance the particular characteristics of the contract award procedure
and the resources required to complete it. The number of candidates selected
must, however, take account of the need to ensure adequate competition.
Article 32
Should contracting
entities require the production of certificates drawn up by independent
bodies for attesting conformity of the service provider to certain quality
assurance standards, they shall refer to quality assurance systems based
on the relevant EN 29%000 European standards series certified by
bodies conforming to the EN 45%000 European standards series.
Entities shall
recognize equivalent certificates from bodies established in other Member
States. They shall also accept other evidence of equivalent quality assurance
measures from service providers who have no access to such certificates
or no possibility of obtaining them within the relevant time limits.
Article 33
1. Groupings of suppliers, contractors or service providers shall be permitted
to tender or negotiate. The conversion of such groupings into a specific
legal form shall not be required in order to submit a tender or to negotiate,
but the grouping selected may be required so to convert itself once it
has been awarded the contract where such conversion is necessary for the
proper performance of the contract.
2. Candidates
or tenderers who, under the law of the Member State in which they are
established, are entitled to carry out the relevant service activity shall
not be rejected on the sole ground that under the law of the Member State
in which the contract is awarded they would have been required to be either
a natural or a legal person.
3. However,
legal persons may be required to indicate, in the tender or the request
for participation, the names and relevant professional qualifications
of the staff to be responsible for the performance of the service.
Article 34
1. Without
prejudice to national laws, regulations or administrative provisions on
the remuneration of certain services, the criteria on which the contracting
entities shall base the award of contracts shall be:
(a) the most
economically advantageous tender, involving various criteria depending
on the contract in question, such as: delivery or completion date, running
costs, cost-effectiveness, quality, aesthetic and functional characteristics,
technical merit, after-sales service and technical assistance, commitments
with regard to spare parts, security of supplies and price; or
(b) the lowest
price only.
2. In the
case referred to in paragraph 1 (a), contracting entities shall state
in the contract documents or in the tender notice all the criteria which
they intend to apply to the award, where possible in descending order
of importance.
3. Where the
criterion for the award of the contract is that of the most economically
advantageous tender, contracting entities may take account of variants
which are submitted by a tenderer and meet the minimum specifications
required by the contracting entities. Contracting entities shall state
in the contract documents the minimum specifications to be respected by
the variants and specific requirements for their presentation. Where variants
are not permitted, they shall so indicate in the contract documents.
4. Contracting
entities may not reject the presentation of a variant on the sole ground
that it was drawn up on the basis of technical specifications defined
with reference to European specifications or to national technical specifications
recognized as complying with the essential requirements within the meaning
of Directive 89/106/EEC.
5. If, for
a given contract, tenders appear abnormally low in relation to the provision
of services, the contracting entity shall, before it may reject those
tenders, request in writing details of the constituent elements of the
tender which it considers relevant and shall verify those constituent
elements taking account of the explanations received. It may set a reasonable
period within which to reply.
The contracting
entity may take into consideration explanations which are justified on
objective grounds relating to the economy of the construction or production
method, or the technical solutions chosen, or the exceptionally favourable
conditions available to the tenderer for the execution of the contract,
or the originality of the product or the work proposed by the tenderer.
Contracting
entities may reject tenders which are abnormally low owing to the receipt
of State aid only if they have consulted the tenderer and if the tenderer
has been unable to show that the aid in question has been notified to
the Commission pursuant to Article 93 (3) of the EEC Treaty or has received
the Commission's approval. Contracting entities which reject a tender
under these circumstances shall inform the Commission thereof.
Article 35
1. Article
27 (1) shall not apply where a Member State bases the award of contracts
on other criteria, within the framework of rules in force at the time
of adoption of this Directive, the aim of which is to give preference
to certain tenderers, provided that the rules invoked are compatible with
the Treaty.
2. Without
prejudice to paragraph 1, this Directive shall not prevent, until 31 December
1992, the application of national provisions in force on the award of
supply or works contracts which have as their objective the reduction
of regional disparities and the promotion of job creation in disadvantaged
regions or those suffering from industrial decline, provided that the
provisions concerned are compatible with the EEC Treaty and with the Community's
international obligations.
Article 36
1. This Article
shall apply to tenders comprising products originating in third countries
with which the Community has not concluded, multilaterally or bilaterally,
an agreement ensuring comparable and effective access for Community undertakings
to the markets of those third countries. It shall be without prejudice
to the obligations of the Community or its Member States in respect of
third countries.
2. Any tender
made for the award of a supply contract may be rejected where the proportion
of the products originating in third countries, as determined in accordance
with Council Regulation (EEC) No 802/68 of 27 June 1968 on the common
definition of the concept of the origin of goods (1), exceeds 50% of the
total value of the products constituting the tender.
For the purposes
of this Article, software used in telecommunications network equipment
shall be considered as products.
3. Subject
to paragraph 4, where two or more tenders are equivalent in the light
of the award criteria defined in Article 34, preference shall be given
to the tenders which may not be rejected pursuant to paragraph 2. The
prices of these tenders shall be considered equivalent for the purposes
of this Article, if the price difference does not exceed 3%.
4. However,
a tender shall not be preferred to another pursuant to paragraph 3 where
its acceptance would oblige the contracting entity to acquire material
having technical characteristics different from those of existing material,
resulting in incompatibility or technical difficulties in operation and
maintenance or disproportionate costs.
5. For the
purpose of this Article, those t |