THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in
particular Article 47(2) and Article 55 and Article 95 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the Economic and Social Committee(2),
Having regard to the opinion of the Committee of the Regions(3),
Acting in accordance with the procedure laid down in Article 251 of the
Treaty(4), in the light of the joint text approved by the Conciliation Committee
on 9 December 2003,
Whereas:
(1) On the occasion of new amendments being made to Council Directives 92/50/EEC
of 18 June 1992 relating to the coordination of procedures for the award of
public service contracts(5), 93/36/EEC of 14 June 1993 coordinating procedures
for the award of public supply contracts(6) and 93/37/EEC of 14 June 1993
concerning the coordination of procedures for the award of public works
contracts(7), which are necessary to meet requests for simplification and
modernisation made by contracting authorities and economic operators alike in
their responses to the Green Paper adopted by the Commission on 27 November
1996, the Directives should, in the interests of clarity, be recast. This
Directive is based on Court of Justice case-law, in particular case-law on award
criteria, which clarifies the possibilities for the contracting authorities to
meet the needs of the public concerned, including in the environmental and/or
social area, provided that such criteria are linked to the subject-matter of the
contract, do not confer an unrestricted freedom of choice on the contracting
authority, are expressly mentioned and comply with the fundamental principles
mentioned in recital 2.
(2) The award of contracts concluded in the Member States on behalf of the
State, regional or local authorities and other bodies governed by public law
entities, is subject to the respect of the principles of the Treaty and in
particular to the principle of freedom of movement of goods, the principle of
freedom of establishment and the principle of freedom to provide services and to
the principles deriving therefrom, such as the principle of equal treatment, the
principle of non-discrimination, the principle of mutual recognition, the
principle of proportionality and the principle of transparency. However, for
public contracts above a certain value, it is advisable to draw up provisions of
Community coordination of national procedures for the award of such contracts
which are based on these principles so as to ensure the effects of them and to
guarantee the opening-up of public procurement to competition. These
coordinating provisions should therefore be interpreted in accordance with both
the aforementioned rules and principles and other rules of the Treaty.
(3) Such coordinating provisions should comply as far as possible with current
procedures and practices in each of the Member States.
(4) Member States should ensure that the participation of a body governed by
public law as a tenderer in a procedure for the award of a public contract does
not cause any distortion of competition in relation to private tenderers.
(5) Under Article 6 of the Treaty, environmental protection requirements are to
be integrated into the definition and implementation of the Community policies
and activities referred to in Article 3 of that Treaty, in particular with a
view to promoting sustainable development. This Directive therefore clarifies
how the contracting authorities may contribute to the protection of the
environment and the promotion of sustainable development, whilst ensuring the
possibility of obtaining the best value for money for their contracts.
(6) Nothing in this Directive should prevent the imposition or enforcement of
measures necessary to protect public policy, public morality, public security,
health, human and animal life or the preservation of plant life, in particular
with a view to sustainable development, provided that these measures are in
conformity with the Treaty.
(7) Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on
behalf of the European Community, as regards matters within its competence, of
the Agreements reached in the Uruguay Round multilateral negotiations (1986 to
1994)(8), approved in particular the WTO Agreement on Government Procurement,
hereinafter referred to as the "Agreement", the aim of which is to establish a
multilateral framework of balanced rights and obligations relating to public
contracts with a view to achieving the liberalisation and expansion of world
trade.
In view of the international rights and commitments devolving on the Community
as a result of the acceptance of the Agreement, the arrangements to be applied
to tenderers and products from signatory third countries are those defined by
the Agreement. This Agreement does not have direct effect. The contracting
authorities covered by the Agreement which comply with this Directive and which
apply the latter to economic operators of third countries which are signatories
to the Agreement should therefore be in conformity with the Agreement. It is
also appropriate that those coordinating provisions should guarantee for
Community economic operators conditions for participation in public procurement
which are just as favourable as those reserved for economic operators of third
countries which are signatories to the Agreement.
(8) Before launching a procedure for the award of a contract, contracting
authorities may, using a technical dialogue, seek or accept advice which may be
used in the preparation of the specifications provided, however, that such
advice does not have the effect of precluding competition.
(9) In view of the diversity of public works contracts, contracting authorities
should be able to make provision for contracts for the design and execution of
work to be awarded either separately or jointly. It is not the intention of this
Directive to prescribe either joint or separate contract awards. The decision to
award contracts separately or jointly must be determined by qualitative and
economic criteria, which may be defined by national law.
(10) A contract shall be deemed to be a public works contract only if its
subject matter specifically covers the execution of activities listed in Annex
I, even if the contract covers the provision of other services necessary for the
execution of such activities. Public service contracts, in particular in the
sphere of property management services, may, in certain circumstances, include
works. However, insofar as such works are incidental to the principal
subject-matter of the contract, and are a possible consequence thereof or a
complement thereto, the fact that such works are included in the contract does
not justify the qualification of the contract as a public works contract.
(11) A Community definition of framework agreements, together with specific
rules on framework agreements concluded for contracts falling within the scope
of this Directive, should be provided. Under these rules, when a contracting
authority enters into a framework agreement in accordance with the provisions of
this Directive relating, in particular, to advertising, time limits and
conditions for the submission of tenders, it may enter into contracts based on
such a framework agreement during its term of validity either by applying the
terms set forth in the framework agreement or, if all terms have not been fixed
in advance in the framework agreement, by reopening competition between the
parties to the framework agreement in relation to those terms. The reopening of
competition should comply with certain rules the aim of which is to guarantee
the required flexibility and to guarantee respect for the general principles, in
particular the principle of equal treatment. For the same reasons, the term of
the framework agreements should not exceed four years, except in cases duly
justified by the contracting authorities.
(12) Certain new electronic purchasing techniques are continually being
developed. Such techniques help to increase competition and streamline public
purchasing, particularly in terms of the savings in time and money which their
use will allow. Contracting authorities may make use of electronic purchasing
techniques, providing such use complies with the rules drawn up under this
Directive and the principles of equal treatment, non-discrimination and
transparency. To that extent, a tender submitted by a tenderer, in particular
where competition has been reopened under a framework agreement or where a
dynamic purchasing system is being used, may take the form of that tenderer's
electronic catalogue if the latter uses the means of communication chosen by the
contracting authority in accordance with Article 42.
(13) In view of the rapid expansion of electronic purchasing systems,
appropriate rules should now be introduced to enable contracting authorities to
take full advantage of the possibilities afforded by these systems. Against this
background, it is necessary to define a completely electronic dynamic purchasing
system for commonly used purchases, and lay down specific rules for setting up
and operating such a system in order to ensure the fair treatment of any
economic operator who wishes to take part therein. Any economic operator which
submits an indicative tender in accordance with the specification and meets the
selection criteria should be allowed to join such a system. This purchasing
technique allows the contracting authority, through the establishment of a list
of tenderers already selected and the opportunity given to new tenderers to take
part, to have a particularly broad range of tenders as a result of the
electronic facilities available, and hence to ensure optimum use of public funds
through broad competition.
(14) Since use of the technique of electronic auctions is likely to increase,
such auctions should be given a Community definition and governed by specific
rules in order to ensure that they operate in full accordance with the
principles of equal treatment, non-discrimination and transparency. To that end,
provision should be made for such electronic auctions to deal only with
contracts for works, supplies or services for which the specifications can be
determined with precision. Such may in particular be the case for recurring
supplies, works and service contracts. With the same objective, it must also to
be possible to establish the respective ranking of the tenderers at any stage of
the electronic auction. Recourse to electronic auctions enables contracting
authorities to ask tenderers to submit new prices, revised downwards, and when
the contract is awarded to the most economically advantageous tender, also to
improve elements of the tenders other than prices. In order to guarantee
compliance with the principle of transparency, only the elements suitable for
automatic evaluation by electronic means, without any intervention and/or
appreciation by the contracting authority, may be the object of electronic
auctions, that is, only the elements which are quantifiable so that they can be
expressed in figures or percentages. On the other hand, those aspects of the
tenders which imply an appreciation of non-quantifiable elements should not be
the object of electronic auctions. Consequently, certain works contracts and
certain service contracts having as their subject-matter intellectual
performances, such as the design of works, should not be the object of
electronic auctions.
(15) Certain centralised purchasing techniques have been developed in Member
States. Several contracting authorities are responsible for making acquisitions
or awarding public contracts/framework agreements for other contracting
authorities. In view of the large volumes purchased, those techniques help
increase competition and streamline public purchasing. Provision should
therefore be made for a Community definition of central purchasing bodies
dedicated to contracting authorities. A definition should also be given of the
conditions under which, in accordance with the principles of non-discrimination
and equal treatment, contracting authorities purchasing works, supplies and/or
services through a central purchasing body may be deemed to have complied with
this Directive.
(16) In order to take account of the different circumstances obtaining in Member
States, Member States should be allowed to choose whether contracting
authorities may use framework agreements, central purchasing bodies, dynamic
purchasing systems, electronic auctions or the competitive dialogue procedure,
as defined and regulated by this Directive.
(17) Multiplying the number of thresholds for applying the coordinating
provisions complicates matters for contracting authorities. Furthermore, in the
context of monetary union such thresholds should be established in euro.
Accordingly, thresholds should be set, in euro, in such a way as to simplify the
application of such provisions, while at the same time ensuring compliance with
the thresholds provided for by the Agreement which are expressed in special
drawing rights. In this context, provision should also be made for periodic
reviews of the thresholds expressed in euro so as to adjust them, where
necessary, in line with possible variations in the value of the euro in relation
to the special drawing right.
(18) The field of services is best delineated, for the purpose of applying the
procedural rules of this Directive and for monitoring purposes, by subdividing
it into categories corresponding to particular headings of a common
classification and by bringing them together in two Annexes, II A and II B,
according to the regime to which they are subject. As regards services in Annex
II B, the relevant provisions of this Directive should be without prejudice to
the application of Community rules specific to the services in question.
(19) As regards public service contracts, full application of this Directive
should be limited, for a transitional period, to contracts where its provisions
will permit the full potential for increased cross-frontier trade to be realised.
Contracts for other services need to be monitored during this transitional
period before a decision is taken on the full application of this Directive. In
this respect, the mechanism for such monitoring needs to be defined. This
mechanism should, at the same time, enable interested parties to have access to
the relevant information.
(20) Public contracts which are awarded by the contracting authorities operating
in the water, energy, transport and postal services sectors and which fall
within the scope of those activities are covered by Directive 2004/17/EC of the
European Parliament and of the Council of 31 March 2004 coordinating the
procurement procedures of entities operating in the water, energy, transport and
postal services sectors(9). However, contracts awarded by the contracting
authorities in the context of their service activities for maritime, coastal or
river transport must fall within the scope of this Directive.
(21) In view of the situation of effective market competition in the
telecommunications sector following the implementation of the Community rules
aimed at liberalising that sector, public contracts in that area should be
excluded from the scope of this Directive insofar as they are intended primarily
to allow the contracting authorities to exercise certain activities in the
telecommunications sector. Those activities are defined in accordance with the
definitions used in Articles 1, 2 and 8 of Council Directive 93/38/EEC of 14
June 1993 coordinating the procurement procedures of entities operating in the
water, energy, transport and telecommunications sector(10), such that this
Directive does not apply to contracts which have been excluded from the scope of
Directive 93/38/EEC pursuant to Article 8 thereof.
(22) Provision should be made for cases in which it is possible to refrain from
applying the measures for coordinating procedures on grounds relating to State
security or secrecy, or because specific rules on the awarding of contracts
which derive from international agreements, relating to the stationing of
troops, or which are specific to international organisations are applicable.
(23) Pursuant to Article 163 of the Treaty, the encouragement of research and
technological development is a means of strengthening the scientific and
technological basis of Community industry, and the opening-up of public service
contracts contributes to this end. This Directive should not cover the
cofinancing of research and development programmes: research and development
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.
(24) In the context of services, contracts for the acquisition or rental of
immovable property or rights to such property have particular characteristics
which make the application of public procurement rules inappropriate.
(25) The awarding of public contracts for certain audiovisual services in the
field of broadcasting should allow aspects of cultural or social significance to
be taken into account which render application of procurement rules
inappropriate. For these reasons, an exception must therefore be made for public
service contracts for the purchase, development, production or co-production of
off-the-shelf programmes and other preparatory services, such as those relating
to scripts or artistic performances necessary for the production of the
programme and contracts concerning broadcasting times. However, this exclusion
should not apply to the supply of technical equipment necessary for the
production, co-production and broadcasting of such programmes. A broadcast
should be defined as transmission and distribution using any form of electronic
network.
(26) Arbitration and conciliation services are usually provided by bodies or
individuals designated or selected in a manner which cannot be governed by
procurement rules.
(27) In accordance with the Agreement, the financial services covered by this
Directive do not include instruments of monetary policy, exchange rates, public
debt, reserve management or other policies involving transactions in securities
or other financial instruments, in particular transactions by the contracting
authorities to raise money or capital. Accordingly, contracts relating to the
issue, purchase, sale or transfer of securities or other financial instruments
are not covered. Central bank services are also excluded.
(28) Employment and occupation are key elements in guaranteeing equal
opportunities for all and contribute to integration in society. In this context,
sheltered workshops and sheltered employment programmes contribute efficiently
towards the integration or reintegration of people with disabilities in the
labour market. However, such workshops might not be able to obtain contracts
under normal conditions of competition. Consequently, it is appropriate to
provide that Member States may reserve the right to participate in award
procedures for public contracts to such workshops or reserve performance of
contracts to the context of sheltered employment programmes.
(29) The technical specifications drawn up by public purchasers need to allow
public procurement to be opened up to competition. To this end, it must be
possible to submit tenders which reflect the diversity of technical solutions.
Accordingly, it must be possible to draw up the technical specifications in
terms of functional performance and requirements, and, where reference is made
to the European standard or, in the absence thereof, to the national standard,
tenders based on equivalent arrangements must be considered by contracting
authorities. To demonstrate equivalence, tenderers should be permitted to use
any form of evidence. Contracting authorities must be able to provide a reason
for any decision that equivalence does not exist in a given case. Contracting
authorities that wish to define environmental requirements for the technical
specifications of a given contract may lay down the environmental
characteristics, such as a given production method, and/or specific
environmental effects of product groups or services. They can use, but are not
obliged to use appropriate specifications that are defined in eco-labels, such
as the European Eco-label, (multi-)national eco-labels or any other eco-label
providing the requirements for the label are drawn up and adopted on the basis
of scientific information using a procedure in which stakeholders, such as
government bodies, consumers, manufacturers, distributors and environmental
organisations can participate, and providing the label is accessible and
available to all interested parties. Contracting authorities should, whenever
possible, lay down technical specifications so as to take into account
accessibility criteria for people with disabilities or design for all users. The
technical specifications should be clearly indicated, so that all tenderers know
what the requirements established by the contracting authority cover.
(30) Additional information concerning contracts must, as is customary in Member
States, be given in the contract documents for each contract or else in an
equivalent document.
(31) Contracting authorities which carry out particularly complex projects may,
without this being due to any fault on their part, find it objectively
impossible to define the means of satisfying their needs or of assessing what
the market can offer in the way of technical solutions and/or financial/legal
solutions. This situation may arise in particular with the implementation of
important integrated transport infrastructure projects, large computer networks
or projects involving complex and structured financing the financial and legal
make-up of which cannot be defined in advance. To the extent that use of open or
restricted procedures does not allow the award of such contracts, a flexible
procedure should be provided which preserves not only competition between
economic operators but also the need for the contracting authorities to discuss
all aspects of the contract with each candidate. However, this procedure must
not be used in such a way as to restrict or distort competition, particularly by
altering any fundamental aspects of the offers, or by imposing substantial new
requirements on the successful tenderer, or by involving any tenderer other than
the one selected as the most economically advantageous.
(32) In order to encourage the involvement of small and medium-sized
undertakings in the public contracts procurement market, it is advisable to
include provisions on subcontracting.
(33) Contract performance conditions are compatible with this Directive provided
that they are not directly or indirectly discriminatory and are indicated in the
contract notice or in the contract documents. They may, in particular, be
intended to favour on-site vocational training, the employment of people
experiencing particular difficulty in achieving integration, the fight against
unemployment or the protection of the environment. For instance, mention may be
made, amongst other things, of the requirements - applicable during performance
of the contract - to recruit long-term job-seekers or to implement training
measures for the unemployed or young persons, to comply in substance with the
provisions of the basic International Labour Organisation (ILO) Conventions,
assuming that such provisions have not been implemented in national law, and to
recruit more handicapped persons than are required under national legislation.
(34) The laws, regulations and collective agreements, at both national and
Community level, which are in force in the areas of employment conditions and
safety at work apply during performance of a public contract, providing that
such rules, and their application, comply with Community law. In cross-border
situations, where workers from one Member State provide services in another
Member State for the purpose of performing a public contract, Directive 96/71/EC
of the European Parliament and of the Council of 16 December 1996 concerning the
posting of workers in the framework of the provision of services(11) lays down
the minimum conditions which must be observed by the host country in respect of
such posted workers. If national law contains provisions to this effect,
non-compliance with those obligations may be considered to be grave misconduct
or an offence concerning the professional conduct of the economic operator
concerned, liable to lead to the exclusion of that economic operator from the
procedure for the award of a public contract.
(35) In view of new developments in information and communications technology,
and the simplifications these can bring in terms of publicising contracts and
the efficiency and transparency of procurement processes, electronic means
should be put on a par with traditional means of communication and information
exchange. As far as possible, the means and technology chosen should be
compatible with the technologies used in other Member States.
(36) To ensure development of effective competition in the field of public
contracts, it is necessary that contract notices drawn up by the contracting
authorities of Member States be advertised throughout the Community. The
information contained in these notices must enable economic operators in the
Community to determine whether the proposed contracts are of interest to them.
For this purpose, it is appropriate to give them adequate information on the
object of the contract and the conditions attached thereto. Improved visibility
should therefore be ensured for public notices by means of appropriate
instruments, such as standard contract notice forms and the Common Procurement
Vocabulary (CPV) provided for in Regulation (EC) No 2195/2002 of the European
Parliament and of the Council(12) as the reference nomenclature for public
contracts. In restricted procedures, advertisement is, more particularly,
intended to enable contractors of Member States to express their interest in
contracts by seeking from the contracting authorities invitations to tender
under the required conditions.
(37) Directive 1999/93/EC of the European Parliament and of the Council of 13
December 1999 on a Community framework for electronic signatures(13) and
Directive 2000/31/EC of the European Parliament and of the Council of 8 June
2000 on certain legal aspects of information society services, in particular
electronic commerce, in the internal market ("Directive on electronic
commerce")(14) should, in the context of this Directive, apply to the
transmission of information by electronic means. The public procurement
procedures and the rules applicable to service contests require a level of
security and confidentiality higher than that required by these Directives.
Accordingly, the devices for the electronic receipt of offers, requests to
participate and plans and projects should comply with specific additional
requirements. To this end, use of electronic signatures, in particular advanced
electronic signatures, should, as far as possible, be encouraged. Moreover, the
existence of voluntary accreditation schemes could constitute a favourable
framework for enhancing the level of certification service provision for these
devices.
(38) The use of electronic means leads to savings in time. As a result,
provision should be made for reducing the minimum periods where electronic means
are used, subject, however, to the condition that they are compatible with the
specific mode of transmission envisaged at Community level.
(39) Verification of the suitability of tenderers, in open procedures, and of
candidates, in restricted and negotiated procedures with publication of a
contract notice and in the competitive dialogue, and the selection thereof,
should be carried out in transparent conditions. For this purpose,
non-discriminatory criteria should be indicated which the contracting
authorities may use when selecting competitors and the means which economic
operators may use to prove they have satisfied those criteria. In the same
spirit of transparency, the contracting authority should be required, as soon as
a contract is put out to competition, to indicate the selection criteria it will
use and the level of specific competence it may or may not demand of the
economic operators before admitting them to the procurement procedure.
(40) A contracting authority may limit the number of candidates in the
restricted and negotiated procedures with publication of a contract notice, and
in the competitive dialogue. Such a reduction of candidates should be performed
on the basis of objective criteria indicated in the contract notice. These
objective criteria do not necessarily imply weightings. For criteria relating to
the personal situation of economic operators, a general reference in the
contract notice to the situations set out in Article 45 may suffice.
(41) In the competitive dialogue and negotiated procedures with publication of a
contract notice, in view of the flexibility which may be required and the high
level of costs associated with such methods of procurement, contracting
authorities should be entitled to make provision for the procedure to be
conducted in successive stages in order gradually to reduce, on the basis of
previously indicated contract award criteria, the number of tenders which they
will go on to discuss or negotiate. This reduction should, insofar as the number
of appropriate solutions or candidates allows, ensure that there is genuine
competition.
(42) 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 a procurement
procedure or a design contest.
(43) The award of public contracts to economic operators who have participated
in a criminal organisation or who have been found guilty of corruption or of
fraud to the detriment of the financial interests of the European Communities or
of money laundering should be avoided. Where appropriate, the contracting
authorities should ask candidates or tenderers to supply relevant documents and,
where they have doubts concerning the personal situation of a candidate or
tenderer, they may seek the cooperation of the competent authorities of the
Member State concerned. The exclusion of such economic operators should take
place as soon as the contracting authority has knowledge of a judgment
concerning such offences rendered in accordance with national law that has the
force of res judicata. If national law contains provisions to this effect,
non-compliance with environmental legislation or legislation on unlawful
agreements in public contracts which has been the subject of a final judgment or
a decision having equivalent effect may be considered an offence concerning the
professional conduct of the economic operator concerned or grave misconduct.
Non-observance of national provisions implementing the Council Directives
2000/78/EC(15) and 76/207/EEC(16) concerning equal treatment of workers, which
has been the subject of a final judgment or a decision having equivalent effect
may be considered an offence concerning the professional conduct of the economic
operator concerned or grave misconduct.
(44) In appropriate cases, in which the nature of the works and/or services
justifies applying environmental management measures or schemes during the
performance of a public contract, the application of such measures or schemes
may be required. Environmental management schemes, whether or not they are
registered under Community instruments such as Regulation (EC) No 761/2001(17) (EMAS),
can demonstrate that the economic operator has the technical capability to
perform the contract. Moreover, a description of the measures implemented by the
economic operator to ensure the same level of environmental protection should be
accepted as an alternative to environmental management registration schemes as a
form of evidence.
(45) This Directive allows Member States to establish official lists of
contractors, suppliers or service providers or a system of certification by
public or private bodies, and makes provision for the effects of such
registration or such certification in a contract award procedure in another
Member State. As regards official lists of approved economic operators, it is
important to take into account Court of Justice case-law in cases where an
economic operator belonging to a group claims the economic, financial or
technical capabilities of other companies in the group in support of its
application for registration. In this case, it is for the economic operator to
prove that those resources will actually be available to it throughout the
period of validity of the registration. For the purposes of that registration, a
Member State may therefore determine the level of requirements to be met and in
particular, for example where the operator lays claim to the financial standing
of another company in the group, it may require that that company be held
liable, if necessary jointly and severally.
(46) Contracts should be awarded on the basis of objective criteria which ensure
compliance with the principles of transparency, non-discrimination and equal
treatment and which guarantee that tenders are assessed in conditions of
effective competition. As a result, it is appropriate to allow the application
of two award criteria only: "the lowest price" and "the most economically
advantageous tender".
To ensure compliance with the principle of equal treatment in the award of
contracts, it is appropriate to lay down an obligation - established by case-law
- to ensure the necessary transparency to enable all tenderers to be reasonably
informed of the criteria and arrangements which will be applied to identify the
most economically advantageous tender. It is therefore the responsibility of
contracting authorities to indicate the criteria for the award of the contract
and the relative weighting given to each of those criteria in sufficient time
for tenderers to be aware of them when preparing their tenders. Contracting
authorities may derogate from indicating the weighting of the criteria for the
award in duly justified cases for which they must be able to give reasons, where
the weighting cannot be established in advance, in particular on account of the
complexity of the contract. In such cases, they must indicate the descending
order of importance of the criteria.
Where the contracting authorities choose to award a contract to the most
economically advantageous tender, they shall assess the tenders in order to
determine which one offers the best value for money. In order to do this, they
shall determine the economic and quality criteria which, taken as a whole, must
make it possible to determine the most economically advantageous tender for the
contracting authority. The determination of these criteria depends on the object
of the contract since they must allow the level of performance offered by each
tender to be assessed in the light of the object of the contract, as defined in
the technical specifications, and the value for money of each tender to be
measured.
In order to guarantee equal treatment, the criteria for the award of the
contract should enable tenders to be compared and assessed objectively. If these
conditions are fulfilled, economic and qualitative criteria for the award of the
contract, such as meeting environmental requirements, may enable the contracting
authority to meet the needs of the public concerned, as expressed in the
specifications of the contract. Under the same conditions, a contracting
authority may use criteria aiming to meet social requirements, in response in
particular to the needs - defined in the specifications of the contract - of
particularly disadvantaged groups of people to which those receiving/using the
works, supplies or services which are the object of the contract belong.
(47) In the case of public service contracts, the award criteria must not affect
the application of national provisions on the remuneration of certain services,
such as, for example, the services performed by architects, engineers or lawyers
and, where public supply contracts are concerned, the application of national
provisions setting out fixed prices for school books.
(48) Certain technical conditions, and in particular those concerning notices
and statistical reports, as well as the nomenclature used and the conditions of
reference to that nomenclature, will need to be adopted and amended in the light
of changing technical requirements. The lists of contracting authorities in the
Annexes will also need to be updated. It is therefore appropriate to put in
place a flexible and rapid adoption procedure for this purpose.
(49) The measures necessary for the implementation of this Directive should be
adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing powers conferred on the
Commission(18).
(50) It is appropriate that Council Regulation (EEC, Euratom) No 1182/71 of 3
June 1971 determining the rules applicable to periods, dates and time limits(19)
should apply to the calculation of the time limits contained in this Directive.
(51) This Directive should not prejudice the time limits set out in Annex XI,
within which Member States are required to transpose and apply Directives
92/50/EEC, 93/36/EEC and 93/37/EEC,
HAVE ADOPTED THIS DIRECTIVE:
1. For the purposes of this Directive, the definitions set out in paragraphs 2
to 15 shall apply.
2. (a) "Public contracts" are contracts for pecuniary interest concluded in
writing between one or more economic operators and one or more contracting
authorities and having as their object the execution of works, the supply of
products or the provision of services within the meaning of this Directive.
(b) "Public works contracts" are public contracts having as their object either
the execution, or both the design and execution, of works related to one of the
activities within the meaning of Annex I or a work, or the realisation, by
whatever means, of a work corresponding to the requirements specified by the
contracting authority. A "work" means the outcome of building or civil
engineering works taken as a whole which is sufficient of itself to fulfil an
economic or technical function.
(c) "Public supply contracts" are public contracts other than those referred to
in (b) having as their object the purchase, lease, rental or hire purchase, with
or without option to buy, of products.
A public contract having as its object the supply of products and which also
covers, as an incidental matter, siting and installation operations shall be
considered to be a "public supply contract".
(d) "Public service contracts" are public contracts other than public works or
supply contracts having as their object the provision of services referred to in
Annex II.
A public contract having as its object both products and services within the
meaning of Annex II shall be considered to be a "public service contract" if the
value of the services in question exceeds that of the products covered by the
contract.
A public contract having as its object services within the meaning of Annex II
and including activities within the meaning of Annex I that are only incidental
to the principal object of the contract shall be considered to be a public
service contract.
3. "Public works concession" is a contract of the same type as a public works
contract except for the fact that the consideration for the works to be carried
out consists either solely in the right to exploit the work or in this right
together with payment.
4. "Service concession" is a contract of the same type as a public service
contract except for the fact that the consideration for the provision of
services consists either solely in the right to exploit the service or in this
right together with payment.
5. A "framework agreement" is an agreement between one or more contracting
authorities and one or more economic operators, the purpose of which is to
establish the terms governing contracts to be awarded during a given period, in
particular with regard to price and, where appropriate, the quantity envisaged.
6. A "dynamic purchasing system" is a completely electronic process for making
commonly used purchases, the characteristics of which, as generally available on
the market, meet the requirements of the contracting authority, which is limited
in duration and open throughout its validity to any economic operator which
satisfies the selection criteria and has submitted an indicative tender that
complies with the specification.
7. An "electronic auction" is a repetitive process involving an electronic
device for the presentation of new prices, revised downwards, and/or new values
concerning certain elements of tenders, which occurs after an initial full
evaluation of the tenders, enabling them to be ranked using automatic evaluation
methods.
Consequently, certain service contracts and certain works contracts having as
their subject-matter intellectual performances, such as the design of works, may
not be the object of electronic auctions.
8. The terms "contractor", "supplier" and "service provider" mean any natural or
legal person or public entity or group of such persons and/or bodies which
offers on the market, respectively, the execution of works and/or a work,
products or services.
The term "economic operator" shall cover equally the concepts of contractor,
supplier and service provider. It is used merely in the interest of
simplification.
An economic operator who has submitted a tender shall be designated a "tenderer".
One which has sought an invitation to take part in a restricted or negotiated
procedure or a competitive dialogue shall be designated a "candidate".
9. "Contracting authorities" means the State, regional or local authorities,
bodies governed by public law, associations formed by one or several of such
authorities or one or several of such bodies governed by public law.
A "body governed by public law" means any body:
(a) established for the specific purpose of meeting needs in the general
interest, not having an industrial or commercial character;
(b) having legal personality; and
(c) financed, for the most part, by the State, regional or local authorities, or
other bodies governed by public law; or subject to management supervision by
those bodies; or having an administrative, managerial or supervisory board, more
than half of whose members are appointed by the State, regional or local
authorities, or by other bodies governed by public law.
Non-exhaustive lists of bodies and categories of bodies governed by public law
which fulfil the criteria referred to in (a), (b) and (c) of the second
subparagraph are set out in Annex III. Member States shall periodically notify
the Commission of any changes to their lists of bodies and categories of bodies.
10. A "central purchasing body" is a contracting authority which:
- acquires supplies and/or services intended for contracting authorities, or
- awards public contracts or concludes framework agreements for works, supplies
or services intended for contracting authorities.
11. (a) "Open procedures" means those procedures whereby any interested economic
operator may submit a tender.
(b) "Restricted procedures" means those procedures in which any economic
operator may request to participate and whereby only those economic operators
invited by the contracting authority may submit a tender.
(c) "Competitive dialogue" is a procedure in which any economic operator may
request to participate and whereby the contracting authority conducts a dialogue
with the candidates admitted to that procedure, with the aim of developing one
or more suitable alternatives capable of meeting its requirements, and on the
basis of which the candidates chosen are invited to tender.
For the purpose of recourse to the procedure mentioned in the first
subparagraph, a public contract is considered to be "particularly complex" where
the contracting authorities:
- are not objectively able to define the technical means in accordance with
Article 23(3)(b), (c) or (d), capable of satisfying their needs or objectives,
and/or
- are not objectively able to specify the legal and/or financial make-up of a
project.
(d) "Negotiated procedures" means those procedures whereby the contracting
authorities consult the economic operators of their choice and negotiate the
terms of contract with one or more of these.
(e) "Design contests" means those procedures which enable the contracting
authority to acquire, mainly in the fields of town and country planning,
architecture and engineering or data processing, a plan or design selected by a
jury after being put out to competition with or without the award of prizes.
12. "Written" or "in writing" means any expression consisting of words or
figures which can be read, reproduced and subsequently communicated. It may
include information which is transmitted and stored by electronic means.
13. "Electronic means" means using electronic equipment for the processing
(including digital compression) and storage of data which is transmitted,
conveyed and received by wire, by radio, by optical means or by other
electromagnetic means.
14. The "Common Procurement Vocabulary (CPV)" shall designate the reference
nomenclature applicable to public contracts as adopted by Regulation (EC) No
2195/2002, while ensuring equivalence with the other existing nomenclatures.
In the event of varying interpretations of the scope of this Directive, owing to
possible differences between the CPV and NACE nomenclatures listed in Annex I,
or between the CPV and CPC (provisional version) nomenclatures listed in Annex
II, the NACE or the CPC nomenclature respectively shall take precedence.
15. For the purposes of Article 13, Article 57(a) and Article 68(b), the
following phrases shall have the following meanings:
(a) "public telecommunications network" means 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;
(b) a "network termination point" means all physical connections and their
technical access specifications which form part of the public telecommunications
network and are necessary for access to, and efficient communication through,
that public network;
(c) "public telecommunications services" means telecommunications services the
provision of which the Member States have specifically assigned, in particular,
to one or more telecommunications entities;
(d) "telecommunications services" means 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 broadcasting and television.
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and
non-discriminatorily and shall act in a transparent way.
Article 3
Granting of special or exclusive rights: non-discrimination clause
Where a contracting authority grants special or exclusive rights to carry out a
public service activity to an entity other than such a contracting authority,
the act by which that right is granted shall provide that, in respect of the
supply contracts which it awards to third parties as part of its activities, the
entity concerned must comply with the principle of non-discrimination on the
basis of nationality.
Economic operators
1. Candidates or tenderers who, under the law of the Member State in which they
are established, are entitled to provide the relevant service, shall not be
rejected solely on the ground that, under the law of the Member State in which
the contract is awarded, they would be required to be either natural or legal
persons.
However, in the case of public service and public works contracts as well as
public supply contracts covering in addition services and/or siting and
installation operations, legal persons may be required to indicate in the tender
or the request to participate, the names and relevant professional
qualifications of the staff to be responsible for the performance of the
contract in question.
2. Groups of economic operators may submit tenders or put themselves forward as
candidates. In order to submit a tender or a request to participate, these
groups may not be required by the contracting authorities to assume a specific
legal form; however, the group selected may be required to do so when it has
been awarded the contract, to the extent that this change is necessary for the
satisfactory performance of the contract.
Article 5
Conditions relating to agreements concluded within the World Trade Organisation
For the purposes of the award of contracts by contracting authorities, Member
States shall apply in their relations conditions as favourable as those which
they grant to economic operators of third countries in implementation of the
Agreement on Government Procurement (hereinafter referred to as "the
Agreement"), concluded in the framework of the Uruguay Round multilateral
negotiations. Member States shall, to this end, consult one another within the
Advisory Committee for Public Contracts referred to in Article 77 on the
measures to be taken pursuant to the Agreement.
Article 6
Confidentiality
Without prejudice to the provisions of this Directive, in particular those
concerning the obligations relating to the advertising of awarded contracts and
to the information to candidates and tenderers set out in Articles 35(4) and 41,
and in accordance with the national law to which the contracting authority is
subject, the contracting authority shall not disclose information forwarded to
it by economic operators which they have designated as confidential; such
information includes, in particular, technical or trade secrets and the
confidential aspects of tenders.
Scope
Section 1
Thresholds
Article 7
Threshold amounts for public contracts
This Directive shall apply to public contracts which are not excluded in
accordance with the exceptions provided for in Articles 10 and 11 and Articles
12 to 18 and which have a value exclusive of value-added tax (VAT) estimated to
be equal to or greater than the following thresholds:
(a) EUR 162000 for public supply and service contracts others than those covered
by point (b), third indent, awarded by contracting authorities which are listed
as central government authorities in Annex IV; in the case of public supply
contracts awarded by contracting authorities operating in the field of defence,
this shall apply only to contracts involving products covered by Annex V;
(b) EUR 249000
- for public supply and service contracts awarded by contracting authorities
other than those listed in Annex IV,
- for public supply contracts awarded by contracting authorities which are
listed in Annex IV and operate in the field of defence, where these contracts
involve products not covered by Annex V,
- for public service contracts awarded by any contracting authority in respect
of the services listed in Category 8 of Annex IIA, Category 5 telecommunications
services the positions of which in the CPV are equivalent to CPC reference Nos
7524, 7525 and 7526 and/or the services listed in Annex II B;
(c) EUR 6242000 for public works contracts.
Article 8
Contracts subsidised by more than 50 % by contracting authorities
This Directive shall apply to the awarding of:
(a) contracts which are subsidised directly by contracting authorities by more
than 50 % and the estimated value of which, net of VAT, is equal to or greater
than EUR 6242000,
- where those contracts involve civil engineering activities within the meaning
of Annex I,
- where those contracts involve building work for hospitals, facilities intended
for sports, recreation and leisure, school and university buildings and
buildings used for administrative purposes;
(b) service contracts which are subsidised directly by contracting authorities
by more than 50 % and the estimated value of which, net of VAT, is equal to or
greater than EUR 249000 and which are connected with a works contract within the
meaning of point (a).
Member States shall take the necessary measures to ensure that the contracting
authorities awarding such subsidies ensure compliance with this Directive where
that contract is awarded by one or more entities other than themselves or comply
with this Directive where they themselves award that contract for and on behalf
of those other entities.
Article 9
Methods for calculating the estimated value of public contracts, framework
agreements and dynamic purchasing systems
1. The calculation of the estimated value of a public contract shall be based on
the total amount payable, net of VAT, as estimated by the contracting authority.
This calculation shall take account of the estimated total amount, including any
form of option and any renewals of the contract.
Where the contracting authority provides for prizes or payments to candidates or
tenderers it shall take them into account when calculating the estimated value
of the contract.
2. This estimate must be valid at the moment at which the contract notice is
sent, as provided for in Article 35(2), or, in cases where such notice is not
required, at the moment at which the contracting authority commences the
contract awarding procedure.
3. No works project or proposed purchase of a certain quantity of supplies
and/or services may be subdivided to prevent its coming within the scope of this
Directive.
4. With regard to public works contracts, calculation of the estimated value
shall take account of both the cost of the works and the total estimated value
of the supplies necessary for executing the works and placed at the contractor's
disposal by the contracting authorities.
5. (a) Where a proposed work or purchase of services may result in contracts
being awarded at the same time in the form of separate lots, account shall be
taken of the total estimated value of all such lots.
Where the aggregate value of the lots is equal to or exceeds the threshold laid
down in Article 7, this Directive shall apply to the awarding of each lot.
However, the contracting authorities may waive such application in respect of
lots the estimated value of which net of VAT is less than EUR 80000 for services
or EUR 1 million for works, provided that the aggregate value of those lots does
not exceed 20 % of the aggregate value of the lots as a whole.
(b) Where a proposal for the acquisition of similar supplies may result in
contracts being awarded at the same time in the form of separate lots, account
shall be taken of the total estimated value of all such lots when applying
Article 7(a) and (b).
Where the aggregate value of the lots is equal to or exceeds the threshold laid
down in Article 7, this Directive shall apply to the awarding of each lot.
However, the contracting authorities may waive such application in respect of
lots, the estimated value of which, net of VAT, is less than EUR 80000, provided
that the aggregate cost of those lots does not exceed 20 % of the aggregate
value of the lots as a whole.
6. With regard to public supply contracts relating to the leasing, hire, rental
or hire purchase of products, the value to be taken as a basis for calculating
the estimated contract value shall be as follows:
(a) in the case of fixed-term public contracts, if that term is less than or
equal to 12 months, the total estimated value for the term of the contract or,
if the term of the contract is greater than 12 months, the total value including
the estimated residual value;
(b) in the case of public contracts without a fixed term or the term of which
cannot be defined, the monthly value multiplied by 48.
7. In the case of public supply or service contracts which are regular in nature
or which are intended to be renewed within a given period, the calculation of
the estimated contract value shall be based on the following:
(a) either the total actual value of the successive contracts of the same type
awarded during the preceding 12 months or financial year adjusted, if possible,
to take account of the changes in quantity or value which would occur in the
course of the 12 months following the initial contract;
(b) or the total estimated value of the successive contracts awarded during the
12 months following the first delivery, or during the financial year if that is
longer than 12 months.
The choice of method used to calculate the estimated value of a public contract
may not be made with the intention of excluding it from the scope of this
Directive.
8. With regard to public service contracts, the value to be taken as a basis for
calculating the estimated contract value shall, where appropriate, be the
following:
(a) for the following types of services:
(i) insurance services: the premium payable and other forms of remuneration;
(ii) banking and other financial services: the fees, commissions, interest and
other forms of remuneration;
(iii) design contracts: fees, commission payable and other forms of
remuneration;
(b) for service contracts which do not indicate a total price:
(i) in the case of fixed-term contracts, if that term is less than or equal to
48 months: the total value for their full term;
(ii) in the case of contracts without a fixed term or with a term greater than
48 months: the monthly value multiplied by 48.
9. With regard to framework agreements and dynamic purchasing systems, the value
to be taken into consideration shall be the maximum estimated value net of VAT
of all the contracts envisaged for the total term of the framework agreement or
the dynamic purchasing system.
Section 2
Specific situations
Article 10
Defence procurement
This Directive shall apply to public contracts awarded by contracting
authorities in the field of defence, subject to Article 296 of the Treaty.
Article 11
Public contracts and framework agreements awarded by central purchasing bodies
1. Member States may stipulate that contracting authorities may purchase works,
supplies and/or services from or through a central purchasing body.
2. Contracting authorities which purchase works, supplies and/or services from
or through a central purchasing body in the cases set out in Article 1(10) shall
be deemed to have complied with this Directive insofar as the central purchasing
body has complied with it.
Section 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive
2004/17/EC, are awarded by contracting authorities exercising one or more of the
activities referred to in Articles 3 to 7 of that Directive and are awarded for
the pursuit of those activities, or to public contracts excluded from the scope
of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
However, this Directive shall continue to apply to public contracts awarded by
contracting authorities carrying out one or more of the activities referred to
in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar
as the Member State concerned takes advantage of the option referred to in the
second subparagraph of Article 71 thereof to defer its application.
Article 13
Specific exclusions in the field of telecommunications
This Directive shall not apply to public contracts for the principal purpose of
permitting the contracting authorities to provide or exploit public
telecommunications networks or to provide to the public one or more
telecommunications services.
Article 14
Secret contracts and contracts requiring special security measures
This Directive shall not apply to public contracts when they are declared to be
secret, when their performance 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 essential interests
of that Member State so requires.
Article 15
Contracts awarded pursuant to international rules
This Directive shall not apply to public contracts governed by different
procedural rules and awarded:
(a) pursuant to an international agreement concluded in conformity with the
Treaty between a Member State and one or more third countries and covering
supplies or works intended for the joint implementation or exploitation of a
work by the signatory States or services intended for the joint implementation
or exploitation of a project by the signatory States; all agreements shall be
communicated to the Commission, which may consult the Advisory Committee for
Public Contracts referred to in Article 77;
(b) pursuant to a concluded international agreement relating to the stationing
of troops and concerning the undertakings of a Member State or a third country;
(c) pursuant to the particular procedure of an international organisation.
Article 16
Specific exclusions
This Directive shall not apply to public service contracts for:
(a) 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 same time as, before
or after the contract of acquisition or rental, in whatever form, shall be
subject to this Directive;
(b) the acquisition, development, production or co-production of programme
material intended for broadcasting by broadcasters and contracts for
broadcasting time;
(c) arbitration and conciliation services;
(d) financial services in connection with the issue, sale, purchase or transfer
of securities or other financial instruments, in particular transactions by the
contracting authorities to raise money or capital, and central bank services;
(e) employment contracts;
(f) research and development services 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.
Article 17
Service concessions
Without prejudice to the application of Article 3, this Directive shall not
apply to service concessions as defined in Article 1(4).
Article 18
Service contracts awarded on the basis of an exclusive right
This Directive shall not apply to public service contracts awarded by a
contracting authority to another contracting authority or to an association of
contracting authorities on the basis of an exclusive right which they enjoy
pursuant to a published law, regulation or administrative provision which is
compatible with the Treaty.
Section 4
Special arrangement
Article 19
Reserved contracts
Member States may reserve the right to participate in public contract award
procedures to sheltered workshops or provide for such contracts to be performed
in the context of sheltered employment programmes where most of the employees
concerned are handicapped persons who, by reason of the nature or the
seriousness of their disabilities, cannot carry on occupations under normal
conditions.
The contract notice shall make reference to this provision.
Article 20
Service contracts listed in Annex II A
Contracts which have as their object services listed in Annex II A shall be
awarded in accordance with Articles 23 to 55.
Article 21
Service contracts listed in Annex II B
Contracts which have as their object services listed in Annex II B shall be
subject solely to Article 23 and Article 35(4).
Article 22
Mixed contracts including services listed in Annex II A and services listed in
Annex II B
Contracts which have as their object services listed both in Annex II A and in
Annex II B shall be awarded in accordance with Articles 23 to 55 where the value
of the services listed in Annex II A is greater than the value of the services
listed in Annex II B. In other cases, contracts shall be awarded in accordance
with Article 23 and Article 35(4).
Article 23
Technical specifications
1. The technical specifications as defined in point 1 of Annex VI shall be set
out in the contract documentation, such as contract notices, contract documents
or additional documents. Whenever possible these technical specifications should
be defined so as to take into account accessibility criteria for people with
disabilities or design for all users.
2. Technical specifications shall afford equal access for tenderers and not have
the effect of creating unjustified obstacles to the opening up of public
procurement to competition.
3. Without prejudice to mandatory national technical rules, to the extent that
they are compatible with Community law, the technical specifications shall be
formulated:
(a) either by reference to technical specifications defined in Annex VI and, in
order of preference, to national standards transposing European standards,
European technical approvals, common technical specifications, international
standards, other technical reference systems established by the European
standardisation bodies or - when these do not exist - to national standards,
national technical approvals or national technical specifications relating to
the design, calculation and execution of the works and use of the products. Each
reference shall be accompanied by the words "or equivalent";
(b) or in terms of performance or functional requirements; the latter may
include environmental characteristics. However, such parameters must be
sufficiently precise to allow tenderers to determine the subject-matter of the
contract and to allow contracting authorities to award the contract;
(c) or in terms of performance or functional requirements as mentioned in
subparagraph (b), with reference to the specifications mentioned in subparagraph
(a) as a means of presuming conformity with such performance or functional
requirements;
(d) or by referring to the specifications mentioned in subparagraph (a) for
certain characteristics, and by referring to the performance or functional
requirements mentioned in subparagraph (b) for other characteristics.
4. Where a contracting authority makes use of the option of referring to the
specifications mentioned in paragraph 3(a), it cannot reject a tender on the
grounds that the products and services tendered for do not comply with the
specifications to which it has referred, once the tenderer proves in his tender
to the satisfaction of the contracting authority, by whatever appropriate means,
that the solutions which he proposes satisfy in an equivalent manner the
requirements defined by the technical specifications.
An appropriate means might be constituted by a technical dossier of the
manufacturer or a test report from a recognised body.
5. Where a contracting authority uses the option laid down in paragraph 3 to
prescribe in terms of performance or functional requirements, it may not reject
a tender for works, products or services which comply with a national standard
transposing a European standard, with a European technical approval, a common
technical specification, an international standard or a technical reference
system established by a European standardisation body, if these specifications
address the performance or functional requirements which it has laid down.
In his tender, the tenderer must prove to the satisfaction of the contracting
authority and by any appropriate means that the work, product or service in
compliance with the standard meets the performance or functional requirements of
the contracting authority.
An appropriate means might be constituted by a technical dossier of the
manufacturer or a test report from a recognised body.
6. Where contracting authorities lay down environmental characteristics in terms
of performance or functional requirements as referred to in paragraph 3(b) they
may use the detailed specifications, or, if necessary, parts thereof, as defined
by European or (multi-) national eco-labels, or by and any other eco-label,
provided that:
- those specifications are appropriate to define the characteristics of the
supplies or services that are the object of the contract,
- the requirements for the label are drawn up on the basis of scientific
information,
- the eco-labels are adopted using a procedure in which all stakeholders, such
as government bodies, consumers, manufacturers, distributors and environmental
organisations can participate, and
- they are accessible to all interested parties.
Contracting authorities may indicate that the products and services bearing the
eco-label are presumed to comply with the technical specifications laid down in
the contract documents; they must accept any other appropriate means of proof,
such as a technical dossier of the manufacturer or a test report from a
recognised body.
7. "Recognised bodies", within the meaning of this Article, are test and
calibration laboratories and certification and inspection bodies which comply
with applicable European standards.
Contracting authorities shall accept certificates from recognised bodies
established in other Member States.
8. Unless justified by the subject-matter of the contract, technical
specifications shall not refer to a specific make or source, or a particular
process, or to trade marks, patents, types or a specific origin or production
with the effect of favouring or eliminating certain undertakings or certain
products. Such reference shall be permitted on an exceptional basis, where a
sufficiently precise and intelligible description of the subject-matter of the
contract pursuant to paragraphs 3 and 4 is not possible; such reference shall be
accompanied by the words "or equivalent".
Article 24
Variants
1. Where the criterion for award is that of the most economically advantageous
tender, contracting authorities may authorise tenderers to submit variants.
2. Contracting authorities shall indicate in the contract notice whether or not
they authorise variants: variants shall not be authorised without this
indication.
3. Contracting authorities authorising variants shall state in the contract
documents the minimum requirements to be met by the variants and any specific
requirements for their presentation.
4. Only variants meeting the minimum requirements laid down by these contracting
authorities shall be taken into consideration.
In procedures for awarding public supply or service contracts, contracting
authorities which have authorised variants may not reject a variant on the sole
ground that it would, if successful, lead to either a service contract rather
than a public supply contract or a supply contract rather than a public service
contract.
Article 25
Subcontracting
In the contract documents, the contracting authority may ask or may be required
by a Member State to ask the tenderer to indicate in his tender any share of the
contract he may intend to subcontract to third parties and any proposed
subcontractors.
This indication shall be without prejudice to the question of the principal
economic operator's liability.
Article 26
Conditions for performance of contracts
Contracting authorities may lay down special conditions relating to the
performance of a contract, provided that these are compatible with Community law
and are indicated in the contract notice or in the specifications. The
conditions governing the performance of a contract may, in particular, concern
social and environmental considerations.
Article 27
Obligations relating to taxes, environmental protection, employment protection
provisions and working conditions
1. A contracting authority may state in the contract documents, or be obliged by
a Member State so to state, the body or bodies from which a candidate or
tenderer may obtain the appropriate information on the obligations relating to
taxes, to environmental protection, to the employment protection provisions and
to the working conditions which are in force in the Member State, region or
locality in which the works are to be carried out or services are to be provided
and which shall be applicable to the works carried out on site or to the
services provided during the performance of the contract.
2. A contracting authority which supplies the information referred to in
paragraph 1 shall request the tenderers or candidates in the contract award
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 works are to be
carried out or the service is to be provided.
The first subparagraph shall be without prejudice to the application of the
provisions of Article 55 concerning the examination of abnormally low tenders.
Article 28
Use of open, restricted and negotiated procedures and of competitive dialogue
In awarding their public contracts, contracting authorities shall apply the
national procedures adjusted for the purposes of this Directive.
They shall award these public contracts by applying the open or restricted
procedure. In the specific circumstances expressly provided for in Article 29,
contracting authorities may award their public contracts by means of the
competitive dialogue. In the specific cases and circumstances referred to
expressly in Articles 30 and 31, they may apply a negotiated procedure, with or
without publication of the contract notice.
Article 29
Competitive dialogue
1. In the case of particularly complex contracts, Member States may provide that
where contracting authorities consider that the use of the open or restricted
procedure will not allow the award of the contract, the latter may make use of
the competitive dialogue in accordance with this Article.
A public contract shall be awarded on the sole basis of the award criterion for
the most economically advantageous tender.
2. Contracting authorities shall publish a contract notice setting out their
needs and requirements, which they shall define in that notice and/or in a
descriptive document.
3. Contracting authorities shall open, with the candidates selected in
accordance with the relevant provisions of Articles 44 to 52, a dialogue the aim
of which shall be to identify and define the means best suited to satisfying
their needs. They may discuss all aspects of the contract with the chosen
candidates during this dialogue.
During the dialogue, contracting authorities shall ensure equality of treatment
among all tenderers. In particular, they shall not provide information in a
discriminatory manner which may give some tenderers an advantage over others.
Contracting authorities may not reveal to the other participants solutions
proposed or other confidential information communicated by a candidate
participating in the dialogue without his/her agreement.
4. Contracting authorities may provide for the procedure to take place in
successive stages in order to reduce the number of solutions to be discussed
during the dialogue stage by applying the award criteria in the contract notice
or the descriptive document. The contract notice or the descriptive document
shall indicate that recourse may be had to this option.
5. The contracting authority shall continue such dialogue until it can idenm commitments contained in the tender provided
this does not have the effect of modifying substantial aspects of the tender or
of the call for tender and does not risk distorting competition or causing
discrimination.
8. The contracting authorities may specify prices or payments to the
participants in the dialogue.
Article 30
Cases justifying use of the negotiated procedure with prior publication of a
contract notice
1. Contracting authorities may award their public contracts by negotiated
procedure, after publication of a contract notice, in the following cases:
(a) in the event of irregular tenders or the submission of tenders which are
unacceptable under national provisions compatible with Articles 4, 24, 25, 27
and Chapter VII, in response to an open or restricted procedure or a competitive
dialogue insofar as the original terms of the contract are not substantially
altered.
Contracting authorities need not publish a contract notice where they include in
the negotiated procedure all of, and only, the tenderers which satisfy the
criteria of Articles 45 to 52 and which, during the prior open or restricted
procedure or competitive dialogue, have submitted tenders in accordance with the
formal requirements of the tendering procedure;
(b) in exceptional cases, when the nature of the works, supplies, or services or
the risks attaching thereto do not permit prior overall pricing;
(c) in the case of services, inter alia services within category 6 of Annex II
A, and intellectual services such as services involving the design of works,
insofar as the nature of the services to be provided is such that contract
specifications cannot be established with sufficient precision to permit the
award of the contract by selection of the best tender according to the rules
governing open or restricted procedures;
(d) in respect of public works contracts, for works which are performed solely
for purposes of research, testing or development and not with the aim of
ensuring profitability or recovering research and development costs.
2. In the cases referred to in paragraph 1, contracting authorities shall
negotiate with tenderers the tenders submitted by them in order to adapt them to
the requirements which they have set in the contract notice, the specifications
and additional documents, if any, and to seek out the best tender in accordance
with Article 53(1).
3. During the negotiations, contracting authorities shall ensure the equal
treatment of all tenderers. In particular, they shall not provide information in
a discriminatory manner which may give some tenderers an advantage over others.
4. Contracting authorities may provide for the negotiated procedure to take
place in successive stages in order to reduce the number of tenders to be
negotiated by applying the award criteria in the contract notice or the
specifications. The contract notice or the specifications shall indicate whether
recourse has been had to this option.
Article 31
Cases justifying use of the negotiated procedure without publication of a
contract notice
Contracting authorities may award public contracts by a negotiated procedure
without prior publication of a contract notice in the following cases:
(1) for public works contracts, public supply contracts and public service
contracts:
(a) when no tenders or no suitable tenders or no applications have been
submitted in response to an open procedure or a restricted procedure, provided
that the initial conditions of contract are not substantially altered and on
condition that a report is sent to the Commission if it so requests;
(b) when, for technical or artistic reasons, or for reasons connected with the
protection of exclusive rights, the contract may be awarded only to a particular
economic operator;
(c) insofar as is strictly necessary when, for reasons of extreme urgency
brought about by events unforeseeable by the contracting authorities in
question, the time limit for the open, restricted or negotiated procedures with
publication of a contract notice as referred to in Article 30 cannot be complied
with. The circumstances invoked to justify extreme urgency must not in any event
be attributable to the contracting authority;
(2) for public supply contracts:
(a) when the products involved are manufactured purely for the purpose of
research, experimentation, study or development; this provision does not extend
to quantity production to establish commercial viability or to recover research
and development costs;
(b) 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 authority to acquire material having different technical
characteristics which would result in incompatibility or disproportionate
technical difficulties in operation and maintenance; the length of such
contracts as well as that of recurrent contracts may not, as a general rule,
exceed three years;
(c) for supplies quoted and purchased on a commodity market;
(d) for the purchase of supplies on particularly advantageous terms, from either
a supplier which is definitively winding up its business activities, or the
receivers or liquidators of a bankruptcy, an arrangement with creditors, or a
similar procedure under national laws or regulations;
(3) for public service contracts, when the contract concerned follows a design
contest and must, under the applicable rules, be awarded to the successful
candidate or to one of the successful candidates, in the latter case, all
successful candidates must be invited to participate in the negotiations;
(4) for public works contracts and public service contracts:
(a) for additional works or services not included in the project initially
considered or in the original contract but which have, through unforeseen
circumstances, become necessary for the performance of the works or services
described therein, on condition that the award is made to the economic operator
performing such works or services:
- when such additional works or services cannot be technically or economically
separated from the original contract without major inconvenience to the
contracting authorities,
or
- when such works or services, although separable from the performance of the
original contract, are strictly necessary for its completion.
However, the aggregate value of contracts awarded for additional works or
services may not exceed 50 % of the amount of the original contract;
(b) for new works or services consisting in the repetition of similar works or
services entrusted to the economic operator to whom the same contracting
authorities awarded an original contract, provided that such works or services
are in conformity with a basic project for which the original contract was
awarded according to the open or restricted procedure.
As soon as the first project is put up for tender, the possible use of this
procedure shall be disclosed and the total estimated cost of subsequent works or
services shall be taken into consideration by the contracting authorities when
they apply the provisions of Article 7.
This procedure may be used only during the three years following the conclusion
of the original contract.
Article 32
Framework agreements
1. Member States may provide that contracting authorities may conclude framework
agreements.
2. For the purpose of concluding a framework agreement, contracting authorities
shall follow the rules of procedure referred to in this Directive for all phases
up to the award of contracts based on that framework agreement. The parties to
the framework agreement shall be chosen by applying the award criteria set in
accordance with Article 53.
Contracts based on a framework agreement shall be awarded in accordance with the
procedures laid down in paragraphs 3 and 4. Those procedures may be applied only
between the contracting authorities and the economic operators originally party
to the framework agreement.
When awarding contracts based on a framework agreement, the parties may under no
circumstances make substantial amendments to the terms laid down in that
framework agreement, in particular in the case referred to in paragraph 3.
The term of a framework agreement may not exceed four years, save in exceptional
cases duly justified, in particular by the subject of the framework agreement.
Contracting authorities may not use framework agreements improperly or in such a
way as to prevent, restrict or distort competition.
3. Where a framework agreement is concluded with a single economic operator,
contracts based on that agreement shall be awarded within the limits of the
terms laid down in the framework agreement.
For the award of those contracts, contracting authorities may consult the
operator party to the framework agreement in writing, requesting it to
supplement its tender as necessary.
4. Where a framework agreement is concluded with several economic operators, the
latter must be at least three in number, insofar as there is a sufficient number
of economic operators to satisfy the selection criteria and/or of admissible
tenders which meet the award criteria.
Contracts based on framework agreements concluded with several economic
operators may be awarded either:
- by application of the terms laid down in the framework agreement without
reopening competition, or
- where not all the terms are laid down in the framework agreement, when the
parties are again in competition on the basis of the same and, if necessary,
more precisely formulated terms, and, where appropriate, other terms referred to
in the specifications of the framework agreement, in accordance with the
following procedure:
(a) for every contract to be awarded, contracting authorities shall consult in
writing the economic operators capable of performing the contract;
(b) contracting authorities shall fix a time limit which is sufficiently long to
allow tenders for each specific contract to be submitted, taking into account
factors such as the complexity of the subject-matter of the contract and the
time needed to send in tenders;
(c) tenders shall be submitted in writing, and their content shall remain
confidential until the stipulated time limit for reply has expired;
(d) contracting authorities shall award each contract to the tenderer who has
submitted the best tender on the basis of the award criteria set out in the
specifications of the framework agreement.
Article 33
Dynamic purchasing systems
1. Member States may provide that contracting authorities may use dynamic
purchasing systems.
2. In order to set up a dynamic purchasing system, contracting authorities shall
follow the rules of the open procedure in all its phases up to the award of the
contracts to be concluded under this system. All the tenderers satisfying the
selection criteria and having submitted an indicative tender which complies with
the specification and any possible additional documents shall be admitted to the
system; indicative tenders may be improved at any time provided that they
continue to comply with the specification. With a view to setting up the system
and to the award of contracts under that system, contracting authorities shall
use solely electronic means in accordance with Article 42(2) to (5).
3. For the purposes of setting up the dynamic purchasing system, contracting
authorities shall:
(a) publish a contract notice making it clear that a dynamic purchasing system
is involved;
(b) indicate in the specification, amongst other matters, the nature of the
purchases envisaged under that system, as well as all the necessary information
concerning the purchasing system, the electronic equipment used and the
technical connection arrangements and specifications;
(c) offer by electronic means, on publication of the notice and up to the expiry
of the system, unrestricted, direct and full access to the specification and to
any additional documents and shall indicate in the notice the internet address
at which such documents may be consulted.
4. Contracting authorities shall give any economic operator, throughout the
entire period of the dynamic purchasing system, the possibility of submitting an
indicative tender and of being admitted to the system under the conditions
referred to in paragraph 2. They shall complete evaluation within a maximum of
15 days from the date of submission of the indicative tender. However, they may
extend the evaluation period provided that no invitation to tender is issued in
the meantime.
The contracting authority shall inform the tenderer referred to in the first
subparagraph at the earliest possible opportunity of its admittance to the
dynamic purchasing system or of the rejection of its indicative tender.
5. Each specific contract must be the subject of an invitation to tender. Before
issuing the invitation to tender, contracting authorities shall publish a
simplified contract notice inviting all interested economic operators to submit
an indicative tender, in accordance with paragraph 4, within a time limit that
may not be less than 15 days from the date on which the simplified notice was
sent. Contracting authorities may not proceed with tendering until they have
completed evaluation of all the indicative tenders received by that deadline.
6. Contracting authorities shall invite all tenderers admitted to the system to
submit a tender for each specific contract to be awarded under the system. To
that end they shall set a time limit for the submission of tenders.
They shall award the contract to the tenderer which submitted the best tender on
the basis of the award criteria set out in the contract notice for the
establishment of the dynamic purchasing system. Those criteria may, if
appropriate, be formulated more precisely in the invitation referred to in the
first subparagraph.
7. A dynamic purchasing system may not last for more than four years, except in
duly justified exceptional cases.
Contracting authorities may not resort to this system to prevent, restrict or
distort competition.
No charges may be billed to the interested economic operators or to parties to
the system.
Article 34
Public works contracts: particular rules on subsidised housing schemes
In the case of public contracts relating to the design and construction of a
subsidised housing scheme the size and complexity of which, and the estimated
duration of the work involved require that planning be based from the outset on
close collaboration within a team comprising representatives of the contracting
authorities, experts and the contractor to be responsible for carrying out the
works, a special award procedure may be adopted for selecting the contractor
most suitable for integration into the team.
In particular, contracting authorities shall include in the contract notice as
accurate as possible a description of the works to be carried out so as to
enable interested contractors to form a valid idea of the project. Furthermore,
contracting authorities shall, in accordance with the qualitative selection
criteria referred to in Articles 45 to 52, set out in such a contract notice the
personal, technical, economic and financial conditions to be fulfilled by
candidates.
Where such a procedure is adopted, contracting authorities shall apply Articles
2, 35, 36, 38, 39, 41, 42, 43 and 45 to 52.
Article 35
Notices
1. Contracting authorities shall make known, by means of a prior information
notice published by the Commission or by themselves on their "buyer profile", as
described in point 2(b) of Annex VIII:
(a) where supplies are concerned, the estimated total value of the contracts or
the framework agreements by product area which they intend to award over the
following 12 months, where the total estimated value, taking into account
Articles 7 and 9, is equal to or greater than EUR 750000.
The product area shall be established by the contracting authorities by
reference to the CPV nomenclature;
(b) where services are concerned, the estimated total value of the contracts or
the framework agreements in each of the categories of services listed in Annex
II A which they intend to award over the following 12 months, where such
estimated total value, taking into account the provisions of Articles 7 and 9,
is equal to or greater than EUR 750000;
(c) where works are concerned, the essential characteristics of the contracts or
the framework agreements which they intend to award, the estimated value of
which is equal to or greater than the threshold specified in Article 7, taking
into account Article 9.
The notices referred to in subparagraphs (a) and (b) shall be sent to the
Commission or published on the buyer profile as soon as possible after the
beginning of the budgetary year.
The notice referred to in subparagraph (c) shall be sent to the Commission or
published on the buyer profile as soon as possible after the decision approving
the planning of the works contracts or the framework agreements that the
contracting authorities intend to award.
Contracting authorities who publish a prior information notice on their buyer
profiles shall send the Commission, electronically, a notice of the publication
of the prior information notice on a buyer profile, in accordance with the
format and detailed procedures for sending notices indicated in point 3 of Annex
VIII.
Publication of the notices referred to in subparagraphs (a), (b) and (c) shall
be compulsory only where the contracting authorities take the option of
shortening the time limits for the receipt of tenders as laid down in Article
38(4).
This paragraph shall not apply to negotiated procedures without the prior
publication of a contract notice.
2. Contracting authorities which wish to award a public contract or a framework
agreement by open, restricted or, under the conditions laid down in Article 30,
negotiated procedure with the publication of a contract notice or, under the
conditions laid down in Article 29, a competitive dialogue, shall make known
their intention by means of a contract notice.
3. Contracting authorities which wish to set up a dynamic purchasing system
shall make known their intention by means of a contract notice.
Contracting authorities which wish to award a contract based on a dynamic
purchasing system shall make known their intention by means of a simplified
contract notice.
4. Contracting authorities which have awarded a public contract or concluded a
framework agreement shall send a notice of the results of the award procedure no
later than 48 days after the award of the contract or the conclusion of the
framework agreement.
In the case of framework agreements concluded in accordance with Article 32 the
contracting authorities are not bound to send a notice of the results of the
award procedure for each contract based on that agreement.
Contracting authorities shall send a notice of the result of the award of
contracts based on a dynamic purchasing system within 48 days of the award of
each contract. They may, however, group such notices on a quarterly basis. In
that case, they shall send the grouped notices within 48 days of the end of each
quarter.
In the case of public contracts for services listed in Annex II B, the
contracting authorities shall indicate in the notice whether they agree to its
publication. For such services contracts the Commission shall draw up the rules
for establishing statistical reports on the basis of such notices and for the
publication of such reports in accordance with the procedure laid down in
Article 77(2).
Certain information on the contract award or the conclusion of the framework
agreement may be withheld from publication where release of such information
would impede law enforcement or otherwise be contrary to the public interest,
would harm the legitimate commercial interests of economic operators, public or
private, or might prejudice fair competition between them.
Article 36
Form and manner of publication of notices
1. Notices shall include the information mentioned in Annex VII A and, where
appropriate, any other information deemed useful by the contracting authority in
the format of standard forms adopted by the Commission in accordance with the
procedure referred to in Article 77(2).
2. Notices sent by contracting authorities to the Commission shall be sent
either by electronic means in accordance with the format and procedures for
transmission indicated in Annex VIII, paragraph 3, or by other means. In the
event of recourse to the accelerated procedure set out in Article 38(8), notices
must be sent either by telefax or by electronic means, in accordance with the
format and procedures for transmission indicated in point 3 of Annex VIII.
Notices shall be published in accordance with the technical characteristics for
publication set out in point 1(a) and (b) of Annex VIII.
3. Notices drawn up and transmitted by electronic means in accordance with the
format and procedures for transmission indicated in point 3 of Annex VIII, shall
be published no later than five days after they are sent.
Notices which are not transmitted by electronic means in accordance with the
format and procedures for transmission indicated in point 3 of Annex VIII, shall
be published not later than 12 days after they are sent, or in the case of
accelerated procedure referred to in Article 38(8), not later than five days
after they are sent.
4. Contract notices shall be published in full in an official language of the
Community as chosen by the contracting authority, this original language version
constituting the sole authentic text. A summary of the important elements of
each notice shall be published in the other official languages.
The costs of publication of such notices by the Commission shall be borne by the
Community.
5. Notices and their contents may not be published at national level before the
date on which they are sent to the Commission.
Notices published at national level shall not contain information other than
that contained in the notices dispatched to the Commission or published on a
buyer profile in accordance with the first subparagraph of Article 35(1), but
shall mention the date of dispatch of the notice to the Commission or its
publication on the buyer profile.
Prior information notices may not be published on a buyer profile before the
dispatch to the Commission of the notice of their publication in that form; they
shall mention the date of that dispatch.
6. The content of notices not sent by electronic means in accordance with the
format and procedures for transmission indicated in point 3 of Annex VIII, shall
be limited to approximately 650 words.
7. Contracting authorities must be able to supply proof of the dates on which
notices are dispatched.
8. The Commission shall give the contracting authority confirmation of the
publication of the information sent, mentioning the date of that publication.
Such confirmation shall constitute proof of publication.
Article 37
Non-mandatory publication
Contracting authorities may publish in accordance with Article 36 notices of
public contracts which are not subject to the publication requirement laid down
in this Directive.
Article 38
Time limits for receipt of requests to participate and for receipt of tenders
1. When fixing the time limits for the receipt of tenders and requests to
participate, contracting authorities shall take account in particular of the
complexity of the contract and the time required for drawing up tenders, without
prejudice to the minimum time limits set by this Article.
2. In the case of open procedures, the minimum time limit for the receipt of
tenders shall be 52 days from the date on which the contract notice was sent.
3. In the case of restricted procedures, negotiated procedures with publication
of a contract notice referred to in Article 30 and the competitive dialogue:
(a) the minimum time limit for receipt of requests to participate shall be 37
days from the date on which the contract notice is sent;
(b) in the case of restricted procedures, the minimum time limit for the receipt
of tenders shall be 40 days from the date on which the invitation is sent.
4. When contracting authorities have published a prior information notice, the
minimum time limit for the receipt of tenders under paragraphs 2 and 3(b) may,
as a general rule, be shortened to 36 days, but under no circumstances to less
than 22 days.
The time limit shall run from the date on which the contract notice was sent in
open procedures, and from the date on which the invitation to tender was sent in
restricted procedures.
The shortened time limits referred to in the first subparagraph shall be
permitted, provided that the prior information notice has included all the
information required for the contract notice in Annex VII A, insofar as that
information is available at the time the notice is published and that the prior
information notice was sent for publication between 52 days and 12 months before
the date on which the contract notice was sent.
5. Where notices are drawn up and transmitted by electronic means in accordance
with the format and procedures for transmission indicated in point 3 of Annex
VIII, the time limits for the receipt of tenders referred to in paragraphs 2 and
4 in open procedures, and the time limit for the receipt of the requests to
participate referred to in paragraph 3(a), in restricted and negotiated
procedures and the competitive dialogue, may be shortened by seven days.
6. The time limits for receipt of tenders referred to in paragraphs 2 and 3(b)
may be reduced by five days where the contracting authority offers unrestricted
and full direct access by electronic means to the contract documents and any
supplementary documents from the date of publication of the notice in accordance
with Annex VIII, specifying in the text of the notice the internet address at
which this documentation is accessible.
This reduction may be added to that referred to in paragraph 5.
7. If, for whatever reason, the specifications and the supporting documents or
additional information, although requested in good time, are not supplied within
the time limits set in Articles 39 and 40, or 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 limits for the receipt of tenders
shall be extended so that all economic operators concerned may be aware of all
the information needed to produce tenders.
8. In the case of restricted procedures and negotiated procedures with
publication of a contract notice referred to in Article 30, where urgency
renders impracticable the time limits laid down in this Article, contracting
authorities may fix:
(a) a time limit for the receipt of requests to participate which may not be
less than 15 days from the date on which the contract notice was sent, or less
than 10 days if the notice was sent by electronic means, in accordance with the
format and procedure for sending notices indicated in point 3 of Annex VIII;
(b) and, in the case of restricted procedures, a time limit for the receipt of
tenders which shall be not less than 10 days from the date of the invitation to
tender.
Article 39
Open procedures: Specifications, additional documents and information
1. In open procedures, where contracting authorities do not offer unrestricted
and full direct access by electronic means in accordance with Article 38(6) to
the specifications and any supporting documents, the specifications and
supplementary documents shall be sent to economic operators within six days of
receipt of the request to participate, provided that the request was made in
good time before the deadline for the submission of tenders.
2. Provided that it has been requested in good time, additional information
relating to the specifications and any supporting documents shall be supplied by
the contracting authorities or competent departments not later than six days
before the deadline fixed for the receipt of tenders.
Article 40
Invitations to submit a tender, participate in the dialogue or negotiate
1. In restricted procedures, competitive dialogue procedures and negotiated
procedures with publication of a contract notice within the meaning of Article
30, contracting authorities shall simultaneously and in writing invite the
selected candidates to submit their tenders or to negotiate or, in the case of a
competitive dialogue, to take part in the dialogue.
2. The invitation to the candidates shall include either:
- a copy of the specifications or of the descriptive document and any supporting
documents, or
- a reference to accessing the specifications and the other documents indicated
in the first indent, when they are made directly available by electronic means
in accordance with Article 38(6).
3. Where an entity other than the contracting authority responsible for the
award procedure has the specifications, the descriptive document and/or any
supporting documents, the invitation shall state the address from which those
specifications, that descriptive document and those documents may be requested
and, if appropriate, the deadline for requesting such documents, and the sum
payable for obtaining them and any payment procedures. The competent department
shall send that documentation to the economic operator without delay upon
receipt of a request.
4. The additional information on the specifications, the descriptive document or
the supporting documents shall be sent by the contracting authority or the
competent department not less than six days before the deadline fixed for the
receipt of tenders, provided that it is requested in good time. In the event of
a restricted or an accelerated procedure, that period shall be four days.
5. In addition, the invitation to submit a tender, to participate in the
dialogue or to negotiate must contain at least:
(a) a reference to the contract notice published;
(b) the deadline for the receipt of the tenders, the address to which the
tenders must be sent and the language or languages in which the tenders must be
drawn up;
(c) in the case of competitive dialogue the date and the address set for the
start of consultation and the language or languages used;
(d) a reference to any possible adjoining documents to be submitted, either in
support of verifiable declarations by the tenderer in accordance with Article
44, or to supplement the information referred to in that Article, and under the
conditions laid down in Articles 47 and 48;
(e) the relative weighting of criteria for the award of the contract or, where
appropriate, the descending order of importance for such criteria, if they are
not given in the contract notice, the specifications or the descriptive
document.
However, in the case of contracts awarded in accordance with the rules laid down
in Article 29, the information referred to in (b) above shall not appear in the
invitation to participate in the dialogue but it shall appear in the invitation
to submit a tender.
Article 41
Informing candidates and tenderers
1. Contracting authorities shall as soon as possible inform candidates and
tenderers of decisions reached concerning the conclusion of a framework
agreement, the award of the contract or admittance to a dynamic purchasing
system, including the grounds for any decision not to conclude a framework
agreement or award a contract for which there has been a call for competition or
to recommence the procedure or implement a dynamic purchasing system; that
information shall be given in writing upon request to the contracting
authorities.
2. On request from the party concerned, the contracting authority shall as
quickly as possible inform:
- any unsuccessful candidate of the reasons for the rejection of his
application,
- any unsuccessful tenderer of the reasons for the rejection of his tender,
including, for the cases referred to in Article 23, paragraphs 4 and 5, the
reasons for its decision of non-equivalence or its decision that the works,
supplies or services do not meet the performance or functional requirements,
- 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 or the parties to the framework agreement.
The time taken may in no circumstances exceed 15 days from receipt of the
written request.
3. However, contracting authorities may decide to withhold certain information
referred to in paragraph 1, regarding the contract award, the conclusion of
framework agreements or admittance to a dynamic purchasing system where the
release of such information would impede law enforcement, would otherwise be
contrary to the public interest, would prejudice the legitimate commercial
interests of economic operators, whether public or private, or might prejudice
fair competition between them.
Article 42
Rules applicable to communication
1. All communication and information exchange referred to in this Title may be
by post, by fax, by electronic means in accordance with paragraphs 4 and 5, by
telephone in the cases and circumstances referred to in paragraph 6, or by a
combination of those means, according to the choice of the contracting
authority.
2. The means of communication chosen must be generally available and thus not
restrict economic operators' access to the tendering procedure.
3. Communication and the exchange and storage of information shall be carried
out in such a way as to ensure that the integrity of data and the
confidentiality of tenders and requests to participate are preserved, and that
the contracting authorities examine the content of tenders and requests to
participate only after the time limit set for submitting them has expired.
4. The tools to be used for communicating by electronic means, as well as their
technical characteristics, must be non-discriminatory, generally available and
interoperable with the information and communication technology products in
general use.
5. The following rules are applicable to devices for the electronic transmission
and receipt of tenders and to devices for the electronic receipt of requests to
participate:
(a) information regarding the specifications necessary for the electronic
submission of tenders and requests to participate, including encryption, shall
be available to interested parties. Moreover, the devices for the electronic
receipt of tenders and requests to participate shall conform to the requirements
of Annex X;
(b) Member States may, in compliance with Article 5 of Directive 1999/93/EC,
require that electronic tenders be accompanied by an advanced electronic
signature in conformity with paragraph 1 thereof;
(c) Member States may introduce or maintain voluntary accreditation schemes
aiming at enhanced levels of certification service provision for these devices;
(d) tenderers or candidates shall undertake to submit, before expiry of the time
limit laid down for submission of tenders or requests to participate, the
documents, certificates and declarations referred to in Articles 45 to 50 and
Article 52 if they do not exist in electronic format.
6. The following rules shall apply to the transmission of requests to
participate:
(a) requests to participate in procedures for the award of public contracts may
be made in writing or by telephone;
(b) where requests to participate are made by telephone, a written confirmation
must be sent before expiry of the time limit set for their receipt;
(c) contracting authorities may require that requests for participation made by
fax must be confirmed by post or by electronic means, where this is necessary
for the purposes of legal proof. Any such requirement, together with the time
limit for sending confirmation by post or electronic means, must be stated by
the contracting authority in the contract notice.
Article 43
Content of reports
For every contract, framework agreement, and every establishment of a dynamic
purchasing system, the contracting authorities shall draw up a written report
which shall include at least the following:
(a) the name and address of the contracting authority, the subject-matter and
value of the contract, framework agreement or dynamic purchasing system;
(b) the names of the successful candidates or tenderers and the reasons for
their selection;
(c) the names of the candidates or tenderers rejected and the reasons for their
rejection;
(d) the reasons for the rejection of tenders found to be abnormally low;
(e) the name of the successful tenderer and the reasons why his tender was
selected and, if known, the share of the contract or framework agreement which
the successful tenderer intends to subcontract to third parties;
(f) for negotiated procedures, the circumstances referred to in Articles 30 and
31 which justify the use of these procedures;
(g) as far as the competitive dialogue is concerned, the circumstances as laid
down in Article 29 justifying the use of this procedure;
(h) if necessary, the reasons why the contracting authority has decided not to
award a contract or framework agreement or to establish a dynamic purchasing
system.
The contracting authorities shall take appropriate steps to document the
progress of award procedures conducted by electronic means.
The report, or the main features of it, shall be communicated to the Commission
if it so requests.
Article 44
Verification of the suitability and choice of participants and award of
contracts
1. Contracts shall be awarded on the basis of the criteria laid down in Articles
53 and 55, taking into account Article 24, after the suitability of the economic
operators not excluded under Articles 45 and 46 has been checked by contracting
authorities in accordance with the criteria of economic and financial standing,
of professional and technical knowledge or ability referred to in Articles 47 to
52, and, where appropriate, with the non-discriminatory rules and criteria
referred to in paragraph 3.
2. The contracting authorities may require candidates and tenderers to meet
minimum capacity levels in accordance with Articles 47 and 48.
The extent of the information referred to in Articles 47 and 48 and the minimum
levels of ability required for a specific contract must be related and
proportionate to the subject-matter of the contract.
These minimum levels shall be indicated in the contract notice.
3. In restricted procedures, negotiated procedures with publication of a
contract notice and in the competitive dialogue procedure, contracting
authorities may limit the number of suitable candidates they will invite to
tender, to negotiate or to conduct a dialogue with, provided a sufficient number
of suitable candidates is available. The contracting authorities shall indicate
in the contract notice the objective and non-discriminatory criteria or rules
they intend to apply, the minimum number of candidates they intend to invite
and, where appropriate, the maximum number.
In the restricted procedure the minimum shall be five. In the negotiated
procedure with publication of a contract notice and the competitive dialogue
procedure the minimum shall be three. In any event the number of candidates
invited shall be sufficient to ensure genuine competition.
The contracting authorities shall invite a number of candidates at least equal
to the minimum number set in advance. Where the number of candidates meeting the
selection criteria and the minimum levels of ability is below the minimum
number, the contracting authority may continue the procedure by inviting the
candidate(s) with the required capabilities. In the context of this same
procedure, the contracting authority may not include other economic operators
who did not request to participate, or candidates who do not have the required
capabilities.
4. Where the contracting authorities exercise the option of reducing the number
of solutions to be discussed or of tenders to be negotiated, as provided for in
Articles 29(4) and 30(4), they shall do so by applying the award criteria stated
in the contract notice, in the specifications or in the descriptive document. In
the final stage, the number arrived at shall make for genuine competition
insofar as there are enough solutions or suitable candidates.
Article 45
Personal situation of the candidate or tenderer
1. Any candidate or tenderer who has been the subject of a conviction by final
judgment of which the contracting authority is aware for one or more of the
reasons listed below shall be excluded from participation in a public contract:
(a) participation in a criminal organisation, as defined in Article 2(1) of
Council Joint Action 98/733/JHA(20);
(b) corruption, as defined in Article 3 of the Council Act of 26 May 1997(21)
and Article 3(1) of Council Joint Action 98/742/JHA(22) respectively;
(c) fraud within the meaning of Article 1 of the Convention relating to the
protection of the financial interests of the European Communities(23);
(d) money laundering, as defined in Article 1 of Council Directive 91/308/EEC of
10 June 1991 on prevention of the use of the financial system for the purpose of
money laundering(24).
Member States shall specify, in accordance with their national law and having
regard for Community law, the implementing conditions for this paragraph.
They may provide for a derogation from the requirement referred to in the first
subparagraph for overriding requirements in the general interest.
For the purposes of this paragraph, the contracting authorities shall, where
appropriate, ask candidates or tenderers to supply the documents referred to in
paragraph 3 and may, where they have doubts concerning the personal situation of
such candidates or tenderers, also apply to the competent authorities to obtain
any information they consider necessary on the personal situation of the
candidates or tenderers concerned. Where the information concerns a candidate or
tenderer established in a State other than that of the contracting authority,
the contracting authority may seek the cooperation of the competent authorities.
Having regard for the national laws of the Member State where the candidates or
tenderers are established, such requests shall relate to legal and/or natural
persons, including, if appropriate, company directors and any person having
powers of representation, decision or control in respect of the candidate or
tenderer.
2. Any economic operator may be excluded from participation in a contract where
that economic operator:
(a) is bankrupt or is being wound up, where his affairs are being administered
by the court, where he has entered into an arrangement with creditors, where he
has suspended business activities or is in any analogous situation arising from
a similar procedure under national laws and regulations;
(b) is the subject of proceedings for a declaration of bankruptcy, for an order
for compulsory winding up or administration by the court or of an arrangement
with creditors or of any other similar proceedings under national laws and
regulations;
(c) has been convicted by a judgment which has the force of res judicata in
accordance with the legal provisions of the country of any offence concerning
his professional conduct;
(d) has been guilty of grave professional misconduct proven by any means which
the contracting authorities can demonstrate;
(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 with
those of the country of the contracting authority;
(g) is guilty of serious misrepresentation in supplying the information required
under this Section or has not supplied such information.
Member States shall specify, in accordance with their national law and having
regard for Community law, the implementing conditions for this paragraph.
3. Contracting authorities shall accept the following as sufficient evidence
that none of the cases specified in paragraphs 1 or 2(a), (b), (c), (e) or (f)
applies to the economic operator:
(a) as regards paragraphs 1 and 2(a), (b) and (c), the production of an extract
from the "judicial record" or, failing that, of an equivalent document issued by
a competent judicial or administrative authority in the country of origin or the
country whence that person comes showing that these requirements have been met;
(b) as regards paragraph 2(e) and (f), a certificate issued by the competent
authority in the Member State concerned.
Where the country in question does not issue such documents or certificates, or
where these do not cover all the cases specified in paragraphs 1 and 2(a), (b)
and (c), they may be replaced by a declaration on oath or, in Member States
where there is no provision for declarations on oath, by a solemn declaration
made by the person concerned before a competent 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.
4. Member States shall designate the authorities and bodies competent to issue
the documents, certificates or declarations referred to in paragraph 3 and shall
inform the Commission thereof. Such notification shall be without prejudice to
data protection law.
Article 46
Suitability to pursue the professional activity
Any economic operator wishing to take part in a public contract may be requested
to prove its enrolment, as prescribed in his Member State of establishment, on
one of the professional or trade registers or to provide a declaration on oath
or a certificate as described in Annex IX A for public works contracts, in Annex
IX B for public supply contracts and in Annex IX C for public service contracts.
In procedures for the award of public service contracts, insofar as candidates
or tenderers have to possess a particular authorisation or