### there is a need to introduce an effective instrument to establish harmonised technical standards in financial services to ensure , also through a single rulebook , a level playing field and an adequate protection of depositors , investors and consumers across europe . as a body with highly specialised expertise , it is efficient and appropriate to entrust the authority , in areas defined by community law , with the elaboration of draft technical standards , which do not involve policy choices . the commission should endorse those draft technical standards in accordance with community law in order to give them binding legal effect . the draft technical standards have to be adopted by the commission . they would be subject to amendment if , for example , the draft technical standards were incompatible with community law , would not respect the principle of proportionality or would run counter to the fundamental principles of the internal market for financial services as reflected in the acquis of community financial services legislation . to ensure a smooth and expedited adoption process for those standards , the commission should be subject to a time limit for its decision on the endorsement . ### there is a need to introduce an effective instrument to establish harmonised technical standards in financial services to ensure , also through a single rulebook , a level playing field and an adequate protection of depositors , investors and consumers across europe . as a body with highly specialised expertise , it is efficient and appropriate to entrust the authority , in areas defined by eu law , with the elaboration of draft technical standards , which do not involve policy choices . the commission should be empowered to adopt delegated acts in accordance with the procedure referred to in article 290 of the treaty on the functioning of the european union concerning technical standards in financial services .


### where the commission has adopted a decision pursuant to paragraph 1 , the authority may adopt individual decisions requiring competent authorities to take the necessary action in accordance with the legislation referred to in article 1 to address any risks that may jeopardise the orderly functioning and integrity of financial markets or the stability of the whole or part of the financial system by ensuring that financial institutions and competent authorities satisfy the requirements laid down in that legislation . ### where the existence of an emergency situation is declared pursuant to paragraph 1 , the authority shall adopt individual decisions necessary to ensure that competent authorities take the necessary action in accordance with the legislation referred to in article 1 to address any risks that may jeopardise the orderly functioning and integrity of financial markets or the stability of the whole or part of the financial system by ensuring that financial institutions and competent authorities satisfy the requirements laid down in that legislation .


### the process for the development of technical standards in this regulation is without prejudice to the commission ' s powers to adopt on its own initiative implementing measures under comitology procedures at level 2 of the lamfalussy structure as laid out in the relevant community legislation . the matters concerned by the technical standards do not involve policy decisions , and their content is framed by the community acts adopted at level 1 . development of the draft standards by the authority ensures that they fully benefit from the specialised expertise of national supervisory authorities . ### the commission should endorse those draft technical standards in order to give them binding legal effect . they will be subject to amendment if , for example , they are incompatible with eu law , do not respect the principle of proportionality or run counter to the fundamental principles of the internal market for financial services as reflected in the acquis of european union financial services legislation . to ensure a smooth and expeditious adoption process for those standards , the commission should be subject to a time limit for its decision on the endorsement .


### the delegation of tasks and responsibilities can be a useful instrument in the functioning of the network of supervisors in order to reduce the duplication of supervisory tasks , foster cooperation and thereby streamline the supervisory process as well as reduce the burden imposed on financial institutions . the regulation should therefore provide a clear legal basis for such delegation . delegation of tasks means that tasks are carried out by another supervisory authority instead of the responsible authority , while the responsibility for supervisory decisions remains with the delegating authority . by delegation of responsibilities one national supervisory authority , the delegatee , shall be able to decide upon a certain supervisory matter in its name in lieu of another national supervisory authority . delegations should be governed by the principle of allocating supervisory competence to a supervisor which is well placed to take action in the subject matter . a reallocation of responsibilities can be appropriate for example for reasons of economies of scale or scope , of coherence in group supervision , and of optimal use of technical expertise among national supervisory authorities . relevant community legislation may further specify the principles for reallocation of responsibilities upon agreement . the authority should facilitate delegation agreements between national supervisory authorities by all appropriate means . it should be informed in advance of intended delegation agreements to be able to express an opinion where appropriate . it should centralise the publication of such agreements to ensure timely , transparent and easily accessible information about agreements for all parties concerned . ### the delegation of tasks and responsibilities can be a useful instrument in the functioning of the network of supervisors in order to reduce the duplication of supervisory tasks , foster cooperation and thereby streamline the supervisory process as well as reduce the burden imposed on financial institutions . the regulation should therefore provide a clear legal basis for such delegation . delegation of tasks means that tasks are carried out by another supervisory authority instead of the responsible authority , while the responsibility for supervisory decisions remains with the delegating authority . by delegation of responsibilities one national supervisory authority , the delegatee , shall be able to decide upon a certain supervisory matter in its name in lieu of another national supervisory authority . delegations should be governed by the principle of allocating supervisory competence to a supervisor which is well placed to take action in the subject matter . a reallocation of responsibilities can be appropriate for example for reasons of economies of scale or scope , of coherence in group supervision , and of optimal use of technical expertise among national supervisory authorities . relevant eu legislation may further specify the principles for reallocation of responsibilities upon agreement . the authority should facilitate and monitor delegation agreements between national supervisory authorities by all appropriate means . it should be informed in advance of intended delegation agreements to be able to express an opinion where appropriate . it should centralise the publication of such agreements to ensure timely , transparent and easily accessible information about agreements for all parties concerned . it should identify and promulgate best practices regarding delegation and delegation agreements .


### the european system of financial supervisors should be a network of national and community supervisory authorities , leaving day - to - day supervision of financial institutions at the national level , and according a central role in the supervision of cross - border groups to colleges of supervisors . greater harmonisation and the coherent application of rules for financial institutions and markets across the community should also be achieved . a european banking authority should be established , along with a european insurance and occupational pensions authority and a european securities and markets authority . ### the european system of financial supervisors should be a network of national and community supervisory authorities , leaving day - to - day supervision of financial institutions that do not have an eu dimension to the national level . colleges of supervisors should exert supervision over cross - border institutions that do not have an eu dimension . the authority should gradually take over supervision of institutions with an eu dimension . greater harmonisation and the coherent application of rules for financial institutions and markets across the community should also be achieved . a european banking authority should be established , along with a european supervisory authority and a european supervisory authority as well as a european supervisory authority . the european systemic risk board shall form part of a european system of financial supervision .


### in areas not covered by technical standards , the authority should have the power to issue non - binding guidelines and recommendations on the application of community legislation . in order to ensure transparency and strengthen compliance by national supervisory authorities with those guidelines and recommendations , national authorities should be obliged to state their reasons where they do not comply with those guidelines and recommendations . ### in areas not covered by technical standards , the authority should have the power to issue guidelines and recommendations on the application of eu legislation . in order to ensure transparency and strengthen compliance by national supervisory authorities with those guidelines and recommendations , national authorities should be obliged to state their reasons where they do not comply with those guidelines and recommendations publicly in order to be fully transparent with market participants . in areas not covered by technical standards , the authority should establish and promulgate best practices .


### without prejudice to the powers laid down in article 9 , where a competent authority disagrees on the procedure or content of an action or inaction by another competent authority in areas where the legislation referred to in article 1 requires cooperation , coordination or joint decision making by competent authorities from more than one member state , the authority , at the request of one or more of the competent authorities concerned , may assist the authorities in reaching an agreement in accordance with the procedure set out in paragraph 2 . ### without prejudice to the powers laid down in article 9 , where a competent authority disagrees on the procedure or content of an action or inaction by another competent authority in areas where the legislation referred to in article 1 requires cooperation , coordination or joint decision making by competent authorities from more than one member state , the authority , on its own initiative or at the request of one or more of the competent authorities concerned , shall take the lead in assisting the authorities in reaching an agreement in accordance with the procedure set out in paragraphs 2 to 4 .


### the standards shall be adopted by the commission by means of regulations or decisions and published in the official journal of the european union . ### the commission shall adopt technical standards in accordance with articles 7a to 7d , in the form of regulations or decisions .


### in the case of adverse developments which may seriously jeopardise the orderly functioning and integrity of financial markets or the stability of the whole or part of the financial system in the community , the commission , upon its own initiative or following a request by the authority , the council , or the esrb , may adopt a decision addressed to the authority , determining the existence of an emergency situation for the purposes of this regulation . ### in the case of adverse developments which may seriously jeopardise the orderly functioning and integrity of financial markets or the stability of the whole or part of the financial system in the community , the esrb , upon its own initiative or following a request by the authority , the council , the european parliament or the commission , may issue a warning declaring the existence of an emergency situation in order to enable the authority without further requirements to adopt the individual decisions referred to in paragraph 3 .


### without prejudice to the powers of the commission under article 226 of the treaty , where a competent authority does not comply with the decision referred to in paragraph 4 of this article within the period of time specified therein , and where it is necessary to remedy in a timely manner the non compliance by the competent authority in order to maintain or restore neutral conditions of competition in the market or ensure the orderly functioning and integrity of the financial system , the authority may , where the relevant requirements of the legislation referred to in article 1 are directly applicable to financial institutions , adopt an individual decision addressed to a financial institution requiring the necessary action to comply with its obligations under community law including the cessation of any practice . ### without prejudice to the powers of the commission under article 258 of the treaty , where a competent authority does not comply with the decision referred to in paragraph 4 of this article within the period of time specified therein , and where it is necessary to remedy in a timely manner the non compliance by the competent authority in order to maintain or restore neutral conditions of competition in the market or ensure the orderly functioning and integrity of the financial system , the authority shall , pursuant to the legislation referred to in article 1 , adopt an individual decision addressed to a financial institution requiring the necessary action to comply with its obligations under union law including the cessation of any practice .


### public contracts may be subdivided into homogenous or heterogeneous lots . for contracts with a value equal to or greater than the thresholds provided for in article 4 but not less than eur 500 000 , determined in accordance with article 5 , where the contracting authority does not deem it appropriate to split into lots , it shall provide in the contract notice or in the invitation to confirm interest a specific explanation of its reasons . ### public contracts may be subdivided into homogenous or heterogeneous lots .


### the european procurement passport shall be recognised by all contracting authorities as proof of fulfilment of the conditions for participation covered by it and shall not be questioned without justification . such justification may be related to the fact that the passport was issued more than six months earlier . ### the european procurement passport shall be recognised by all contracting authorities as proof of fulfilment of the conditions for participation covered by it and shall not be questioned without justification . such justification may be related to the fact that the passport was issued more than one year earlier .


### at least five tenders have been submitted . ### at least three tenders have been submitted .


### where a label fulfils the conditions provided in points , , and of paragraph 1 but also sets out requirements not linked to the subject - matter of the contract , contracting authorities may define the technical specification by reference to those of the detailed specifications of that label , or , where necessary , parts thereof , that are linked to the subject - matter of the contract and are appropriate to define characteristics of this subject - matter . ### where a label , certificate and other assurance scheme fulfils the conditions provided in points , , and of paragraph 1 but also sets out requirements not linked to the subject - matter of the contract , contracting authorities may define the technical specification by reference to those of the detailed specifications of that label , certificate and other assurance scheme , or , where necessary , parts thereof , that are linked to the subject - matter of the contract and are appropriate to define characteristics of this subject - matter .


### the most economically advantageous tender ; ### the most economically , socially and environmentally advantageous tender ;


### where the value of a modification can be expressed in monetary terms , the modification shall not be considered to be substantial within the meaning of paragraph 1 , where its value does not exceed the thresholds set out in article 4 and where it is below 5 % of the price of the initial contract , provided that the modification does not alter the overall nature of the contract . where several successive modifications are made , the value shall be assessed on the basis of the cumulative value of the successive modifications . ### where the value of a modification can be expressed in monetary terms , the modification shall not be considered to be substantial within the meaning of paragraph 1 , where its value does not exceed the thresholds set out in article 4 and where it is below 10 % of the price of the initial contract , provided that the modification does not alter the overall nature of the contract . where several successive modifications are made , the value shall be assessed on the basis of the cumulative value of the successive modifications .


### procurement within the meaning of this directive is the purchase or other forms of acquisition of works , supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities , whether or not the works , supplies or services are intended for a public purpose . ### procurement within the meaning of this directive is the purchase of works , supplies or services via public contracts by one or more contracting authorities from economic operators chosen by those contracting authorities .


### the price or cost charged is more than 50 % lower than the average price or costs of the remaining tenders ### the economics of the construction method , the manufacturing process or the services provided ;


### contracting authorities may use electronic auctions , in which new prices , revised downwards , and / or new values concerning certain elements of tenders are presented . ### for fully standardised supplies and services , contracting authorities may use electronic auctions , in which new prices , revised downwards , and / or new values concerning certain elements of tenders are presented .


### tenders that appear abnormally low in relation to the works , supplies or services might be based on technically , economically or legally unsound assumptions or practices . in order to prevent possible disadvantages during contract performance , contracting authorities should be obliged to ask for an explanation of the price charged where a tender significantly undercuts the prices demanded by other tenderers . where the tenderer cannot provide a sufficient explanation , the contracting authority should be entitled to reject the tender . rejection should be mandatory in cases where the contracting authority has established that the abnormally low price charged results from non - compliance with mandatory union legislation in the fields of social , labour or environmental law or international labour law provisions . ### tenders that appear abnormally low in relation to the works , supplies or services might be based on technically , economically or legally unsound assumptions or practices . in order to prevent possible disadvantages during contract performance , contracting authorities should be obliged to ask for an explanation of the price charged where a tender significantly undercuts the prices demanded by other tenders . where the tender cannot provide a sufficient explanation , the contracting authority should reject the tender . rejection should be mandatory also in cases where the contracting authority has established that abnormally low price charged results from non - compliance with national , international and european union legislation , in particular in the fields of social , labour or environmental law .


### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to 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 and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to increase the efficiency of public spending , facilitating in particular the participation of small and medium - sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals . there is also a need to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union . ### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to 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 and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to increase the efficiency of public spending , ensure value for money , facilitate equal access and fair participation of small and medium - sized enterprises and craftsmen in public procurement , both at local and eu - wide level , and enable procurers to make better use of public procurement in support of sustainable production and consumption . there is also a need to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union .


### where no tenders or no suitable tenders or no requests to participate have been submitted in response to an open procedure or a restricted procedure , provided that the initial conditions of the contract are not substantially altered and that a report is sent to the commission or the national oversight body designated according to article 84 where they so request . ### where no tenders or no suitable tenders or no requests to participate have been submitted in response to an open procedure or a restricted procedure , provided that the initial conditions of the contract are not altered .


### where the economic operator has shown significant or persistent deficiencies in the performance of any substantive requirement under a prior contract or contracts of a similar nature with the same contracting authority . ### where the economic operator has shown significant or persistent deficiencies in the performance of any substantive requirement under a prior contract or contracts of a similar nature .


### ‘ life cycle’ means all consecutive and / or interlinked stages , including production , transport , use and maintenance , throughout the existence of a product or a works or the provision of a service , from raw material acquisition or generation of resources to disposal , clearance and finalisation . ### ' life cycle ' means all consecutive and / or interlinked stages , including research , development , transport , use and maintenance , throughout the existence of a product or a works or the provision of a service , provided data in relation to these are measurable and can be collated in a meaningful manner .


### contracting authorities shall require economic operators to explain the price or costs charged , where all of the following conditions are fulfilled : ### if , for a given contract , tenders appear to be abnormally low in relation to the service to be provided , the contracting authority shall , before it may reject those tenders , request in writing details of the constituent elements of the tender which it considers relevant . those details may relate in particular to :


### where contracting authorities choose to award a contract to the most economically advantageous tender , they must determine the award criteria on the basis of which they will assess tenders in order to identify which one offers the best value for money . the determination of these criteria depends on the subject - matter of the contract since they must allow the level of performance offered by each tender to be assessed in the light of the subject - matter of the contract , as defined in the technical specifications , and the value for money of each tender to be measured . furthermore , the chosen award criteria should not confer an unrestricted freedom of choice on the contracting authority and they should ensure the possibility of effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified . ### where contracting authorities award a contract to the most economically advantageous tender , they must determine the award criteria on the basis of which they will assess tenders in order to identify which one offers the best value for money . the determination of these criteria depends on the subject - matter of the contract since they must allow the level of performance offered by each tender to be assessed in the light of the subject - matter of the contract , as defined in the technical specifications , and the value for money of each tender to be measured . furthermore , the chosen award criteria should not confer an unrestricted freedom of choice on the contracting authority and they should ensure the possibility of effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified .


### without prejudice to national laws , regulations or administrative provisions concerning the remuneration of certain services , the criteria on which contracting authorities shall base the award of public contracts shall be one of the following : ### without prejudice to national laws , regulations or administrative provisions concerning the remuneration of certain services , the criterion on which contracting authorities shall base the award of public contracts shall be the most economically advantageous and sustainable tender .


### however , in the case of public service and public works contracts as well as public supply contracts covering in addition services 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 . ### however , in the case of public service and public works contracts as well as public supply contracts covering in addition services or siting and installation operations , legal persons may be required to indicate , in the tender or the request to participate , relevant professional qualification levels of the staff to be responsible for the performance of the contract in question .


### arbitration and conciliation services ; ### arbitration and conciliation services and the work of public office - holders , who are required by law to be independent and impartial , particularly notaries ;


### the contracting authorities may specify prizes or payments to the participants in the dialogue . ### the contracting authorities shall specify prizes or payments to the participants in the dialogue on terms laid down by the contract .


### they may also provide that contracting authorities may use a competitive procedure with negotiation or a competitive dialogue in any of the following cases : ### member states shall provide that contracting authorities may apply a competitive procedure with negotiation or a competitive dialogue as regulated in this directive in any of the following cases :


### member states shall ensure that contracting authorities may take into account the need to ensure quality , continuity , accessibility , availability and comprehensiveness of the services , the specific needs of different categories of users , the involvement and empowerment of users and innovation . member states may also provide that the choice of the service provider shall not be made solely on the basis of the price for the provision of the service . ### member states shall ensure that contracting authorities take into account the need to ensure a high level of quality , continuity , accessibility , affordability , availability and comprehensiveness of the services , the specific needs of different categories of users , including disadvantaged and vulnerable groups , users ' satisfaction , social inclusion , the involvement and empowerment of users and , where relevant , innovation . member states shall provide that the choice of the service provider is not made solely on the basis of the price for the provision of the service . when drawing up quality criteria , contracting authorities may refer to the criteria set out in the voluntary european quality framework for social services . 2a . contracting authorities may choose to limit the participation in a tender procedure for the provision of social and health services to non profit organisations , provided that a national law that is compatible with european law provides for restricted access to certain services for the benefit on non profit organisations , in line with the ecj ' s jurisprudence . the call for competition shall make reference to this provision . the basic principles of transparency and equal treatment should be respected .


### the notices referred to in paragraphs 1 and 2 shall contain the information referred to in annexes vi part h and i , in accordance with the standard forms . ### the notices referred to in paragraph 2 shall contain the information referred to in annex vi part i .


### a contracting authority , which does not exercise over a legal person control within the meaning of paragraph 1 , may nevertheless award a public contract without applying this directive to a legal person which it controls jointly with other contracting authorities , where the following conditions are fulfilled : ### a contracting authority , which does not exercise over a legal person control within the meaning of paragraph 1 , may nevertheless award a public contract outside the scope of this directive to a legal person which it controls jointly with other contracting authorities , where the following conditions are fulfilled :


### contracting authorities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the label indicated by the contracting authorities . for products that do not bear the label , contracting authorities shall also accept a technical dossier of the manufacturer or other appropriate means of proof . ### contracting authorities requiring a specific label , certificate and other assurance scheme shall accept all equivalent labels that fulfil the requirements of the label , certificate and other assurance scheme indicated by the contracting authorities . for products that do not bear the label , certificate and other assurance scheme , contracting authorities shall also accept a technical dossier of the manufacturer or other appropriate means of proof .


### the requirements for the label only concern characteristics which are linked to the subject - matter of the contract and are appropriate to define characteristics of the works , supplies or services that are the subject - matter of the contract ; ### the requirements for the label , certificate or other assurance scheme , only concern characteristics which are linked to the subject - matter of the contract and are appropriate to define characteristics of the works , supplies or services that are the subject - matter of the contract ;


### contracting authorities may decide not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply , at least in an equivalent manner , with obligations established by union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in annex xi . ### contracting authorities may decide not to award a contract to the tenderer submitting the best tender where the tender does not comply with obligations established by union or national legislation , regulations and other binding provisions in the field of social and labour law or environmental law or collective agreements which apply in the place where the work , service or supply is performed or by the international social and environmental law provisions listed in annex xi and provided they are linked to the subject matter of the contract .


### public contracts may be subdivided into homogenous or heterogeneous lots . for contracts with a value equal to or greater than the thresholds provided for in article 4 but not less than eur 500 000 , determined in accordance with article 5 , where the contracting authority does not deem it appropriate to split into lots , it shall provide in the contract notice or in the invitation to confirm interest a specific explanation of its reasons . ### with a view to maximizing competition and access of smes to public procurement , public contracts may be subdivided into lots . for contracts with a value equal to or greater than eur 500 000 , determined in accordance with article 5 , where the contracting authority does not deem it appropriate to split into lots , it shall provide in the contract notice or in the invitation to confirm interest a specific explanation of its reasons .


### contracting authorities authorising variants shall state in the procurement documents the minimum requirements to be met by the variants and any specific requirements for their presentation . they shall also ensure that the chosen award criteria can be usefully applied to variants meeting those minimum requirements as well as to conforming tenders which are not variants . ### where variants are not prohibited , contracting authorities shall state in the procurement documents the minimum requirements to be met by the variants and any specific requirements for their presentation . they shall also ensure that the chosen award criteria can be usefully applied to variants meeting those minimum requirements as well as to conforming tenders which are not variants .


### quality , including technical merit , aesthetic and functional characteristics , accessibility , design for all users , environmental characteristics and innovative character ; ### quality , including technical merit , aesthetic and functional characteristics , accessibility , energy efficiency performance , design for all users , environmental characteristics and innovative character including inter alia additional innovative solutions that are in addition to minimum requirements laid down in the contract notice , the descriptive document or the invitation to confirm interest ;


### financial services in connection with the issue , sale , purchase or transfer of securities or other financial instruments within the meaning of directive 2004 / 39 / ec of the european parliament and of the council27 , central bank services and operations conducted with the european financial stability facility ; ### financial services in connection with the issue , sale , purchase or transfer of securities or other financial instruments within the meaning of directive 2004 / 39 / ec of the european parliament and of the council27 , central bank services and operations conducted with the european financial stability facility , or transactions by the contracting authorities to raise money or capital ;


### ‘ standard’ means a technical specification approved by a recognised standardising body for repeated or continuous application , compliance with which is not compulsory and which falls into one of the following categories : ### ' standard ' means a technical specification established by consensus and approved by a recognised standardisation organisation for repeated or continuous use , with which compliance is not compulsory , and which falls into one of the following categories :


### quality , including technical merit , aesthetic and functional characteristics , accessibility , design for all users , environmental characteristics and innovative character ; ### quality , including technical merit , aesthetic and functional characteristics , accessibility , design for all users , environmental characteristics , innovative character and short cycles ;


### the most economically advantageous tender referred to in point of paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject - matter of the public contract in question . those criteria shall include , in addition to the price or costs referred to in point of paragraph 1 , other criteria linked to the subject - matter of the public contract in question , such as : ### the most economically advantageous tender referred to in paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject - matter of the public contract in question . those criteria shall include , in addition to the price or costs , other criteria linked to the subject - matter of the public contract in question , such as :


### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to 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 and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to increase the efficiency of public spending , facilitating in particular the participation of small and medium - sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals . there is also a need to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union . ### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to 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 and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to increase the efficiency of public spending , ensure value for money , facilitate equal access and fair participation of small and medium - sized enterprises and craftsmen in public procurement , both at local and eu - wide level , and enable procurers to make better use of public procurement in support of sustainable production and consumption . there is also a need to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union .


### there is considerable legal uncertainty as to how far cooperation between public authorities should be covered by public procurement rules . the relevant case - law of the court of justice of the european union is interpreted divergently between member states and even between contracting authorities . it is therefore necessary to clarify in what cases contracts concluded between contracting authorities are not subject to the application of public procurement rules . such clarification should be guided by the principles set out in the relevant case - law of the court of justice . the sole fact that both parties to an agreement are themselves contracting authorities does not as such rule out the application of procurement rules . however , the application of public procurement rules should not interfere with the freedom of public authorities to decide how to organise the way they carry out their public service tasks . contracts awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled . this directive should aim to ensure that any exempted public - public cooperation does not cause a distortion of competition in relation to private economic operators . neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition . ### there is considerable legal uncertainty as to how far cooperation between public authorities should be covered by public procurement rules . the relevant case - law of the court of justice of the european union is interpreted divergently between member states and even between contracting authorities . it is therefore necessary to clarify in what cases contracts concluded between contracting authorities are not subject to the application of public procurement rules . such clarification should be guided by the principles set out in the relevant case - law of the court of justice . the sole fact that both parties to an agreement are themselves contracting authorities does not as such rule out the application of procurement rules . however , the application of public procurement rules should not interfere with the freedom of public authorities to decide how to organise the way they carry out their public service tasks . contracts awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled . this directive should aim to ensure that any exempted public - public cooperation does not cause a distortion of competition in relation to private economic operators . neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition . to achieve this , the conditions for the exclusion of contracts from the scope of this directive should be narrowly construed . in case any of the cumulative conditions for an exemption from the scope is not fulfilled any more during the term of a contract or cooperation that has been excluded from the procurement rules , that ongoing contract or cooperation has to be opened to competition through regular procurement procedures .


### the agreement is governed only by considerations relating to the public interest ; ### the agreement is governed only by public interest considerations ; this includes subordinate ancillary services which are necessary in order to perform the services in the public interest ;


### contracting authorities shall accept other appropriate means of proof than those referred to in paragraph 1 , such as a technical dossier of the manufacturer where the economic operator concerned has no access to the certificates or test reports referred to in paragraph 1 , or no possibility of obtaining them within the relevant time limits . ### contracting authorities shall accept other appropriate means of proof than those referred to in paragraph 1 , such as a technical dossier of the manufacturer where the economic operator concerned has no access to the certificates or test reports referred to in paragraph 1 , or no possibility of obtaining them within the relevant time limits . the means of proof must be supported by non - discriminatory verifiable scientific information .


### the criteria of the label are set by a third party which is independent from the economic operator applying for the label . ### the criteria of the label , certificate or other assurance scheme are set by a third party which is independent from the economic operator applying for the label , certificate or other assurance scheme in question .


### contracting authorities shall not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue without its agreement . such agreement shall not take the form of a general waiver but shall be given with reference to the intended communication of specific solutions or other specific confidential information . ### contracting authorities shall behave with utmost good faith and shall not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue without its agreement , which cannot be imposed as a condition for participating in the competitive dialogue procedure .


### ‘ common technical specification’ means a technical specification laid down in accordance with a procedure recognised by the member states or in accordance with articles 9 and 10 of parliament and council regulation [ xxx ] on european standardisation [ and amending council directives 89 / 686 / eec and 93 / 15 / eec and directives 94 / 9 / ec , 94 / 25 / ec , 95 / 16 / ec , 97 / 23 / ec , 98 / 34 / ec , 2004 / 22 / ec , 2007 / 23 / ec , 2009 / 105 / ec and 2009 / 23 / ec of the european parliament and the council ] which has been published in the official journal of the european union ; ### ' common technical specification ' means a technical specification laid down in accordance with a procedure recognised by the member states or , in the field of information and communication technologies , in accordance with articles 9 and 10 of parliament and council regulation [ xxx ] on european standardisation [ and amending council directives 89 / 686 / eec and 93 / 15 / eec and directives 94 / 9 / ec , 94 / 25 / ec , 95 / 16 / ec , 97 / 23 / ec , 98 / 34 / ec , 2004 / 22 / ec , 2007 / 23 / ec , 2009 / 105 / ec and 2009 / 23 / ec of the european parliament and the council ] which has been published in the official journal of the european union ;


### the acquisition , development , production or co - production of programme material intended for audiovisual media services , that are awarded by broadcasters , or contracts for broadcasting time that are awarded to audiovisual media service providers ; ### the acquisition , development , production or co - production of programme material and related preparatory services intended for media services , or contracts for broadcasting or distribution and transmission ;


### the controlled legal person does not pursue any interests which are distinct from that of the public authorities affiliated to it ; ### the controlled legal person does not pursue any interests which are in conflict with that of the public authorities affiliated to it ;


### for service contracts and contracts involving the design of works , the organisation , qualification and experience of the staff assigned to performing the contract in question may be taken into consideration , with the consequence that , following the award of the contract , such staff may only be replaced with the consent of the contracting authority , which must verify that replacements ensure equivalent organisation and quality ; ### wherever the quality of the staff is of crucial importance for the performance of the contract , organisation , qualification and experience of the staff assigned to performing the contract in question may be taken into consideration , with the consequence that , following the award of the contract , such staff may only be replaced with the consent of the contracting authority ;


### procurement within the meaning of this directive is the purchase or other forms of acquisition of works , supplies or services by one or more contracting authorities from economic operators chosen by those contracting authorities , whether or not the works , supplies or services are intended for a public purpose . ### procurement within the meaning of this directive is the purchase of works , supplies or services via public contracts by one or more contracting authorities from economic operators chosen by those contracting authorities .


### sub - central contracting authorities may set the time limit for the receipt of tenders by mutual agreement between the contracting authority and the selected candidates , provided that all candidates have the same time to prepare and submit their tenders . where it is not possible to reach agreement on the time limit for the receipt of tenders , the contracting authority shall fix a time limit which shall be at least 10 days from the date of the invitation to tender . ### sub - central contracting authorities may set the time limit for the receipt of tenders by mutual agreement between the contracting authority and the selected candidates , provided that all candidates have the same time to prepare and submit their tenders . where it is not possible to reach agreement on the time limit for the receipt of tenders , the contracting authority shall fix a time limit which shall be at least 15 days from the date of the invitation to tender .


### the requirements for the label only concern characteristics which are linked to the subject - matter of the contract and are appropriate to define characteristics of the works , supplies or services that are the subject - matter of the contract ; ### the requirements for the label only concern characteristics which are directly linked to the subject - matter of the contract and are appropriate to define characteristics of the works , supplies or services that are the subject - matter of the contract ;


### they are established for or have the specific purpose of meeting needs in the general interest , not having an industrial or commercial character ; for that purpose , a body which operates in normal market conditions , aims to make a profit , and bears the losses resulting from the exercise of its activity does not have the purpose of meeting needs in the general interest , not having an industrial or commercial character ; ### it is established for the specific purpose of meeting needs in the general interest , not having a merely industrial and commercial character ;


### the agreement establishes a genuine cooperation between the participating contracting authorities aimed at carrying out jointly their public service tasks and involving mutual rights and obligations of the parties ; ### the agreement establishes a genuine cooperation between the participating contracting authorities aimed at carrying out jointly their public service tasks ;


### member states shall ensure that contracting authorities have the possibility , under the conditions determined by the applicable national contract law , to terminate a public contract during its term , where one of the following conditions is fulfilled : ### member states shall ensure that the national contract law is followed when terminating a public procurement contract . member states may , when giving contracting authorities the possibility under the conditions determined by the applicable national contract law to terminate a public contract during its term , require that one of the following conditions is fulfilled :


### public procurement plays a key role in the europe 2020 strategy as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to 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 and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to increase the efficiency of public spending , facilitating in particular the participation of small and medium - sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals . there is also a need to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union . ### public procurement plays a key role in the europe 2020 strategy16 as one of the market - based instruments to be used to achieve a smart , sustainable and inclusive growth while ensuring the most efficient use of public funds . for that purpose , the current public procurement rules adopted pursuant to 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 sectors17 and directive 2004 / 18 / ec of the european parliament and of the council of 31 march 2004 on the coordination of procedures for the award of public works contracts , public supply contracts and public service contracts have to be revised and modernised in order to enable public procurers to make better use of public procurement in support of sustainable development and other common societal goals , thereby increasing the efficiency of public spending by ensuring the best possible outcome in cost - benefit ratio terms , by reducing costs for both public authorities and enterprises alike and by facilitating in particular the participation of small and medium - sized enterprises in public procurement and to enable procurers to make better use of public procurement in support of common societal goals . there is also a need to simplify the eu rules , particularly with regard to how sustainability objectives can be incorporated into public procurement , and to clarify basic notions and concepts to ensure better legal certainty and to incorporate certain aspects of related well - established case - law of the court of justice of the european union .


### contracting authorities may authorise tenderers to submit variants . they shall indicate in the contract notice or , where a prior information notice is used as a means of calling for competition , in the invitation to confirm interest whether or not they authorise variants . variants shall not be authorised without such indication . ### contracting authorities may authorise tenderers to submit variants which do not exceed 1 / 6 of the total agreed price . they shall indicate in the contract notice or , where a prior information notice is used as a means of calling for competition , in the invitation to confirm interest whether or not they authorise variants . variants shall not be authorised without such indication .


### where tenders appear to be abnormally low for other reasons , contracting authorities may also request such explanations . ### contracting authorities may also request explanations concerning price or costs indicated in a tender when other conditions , than those indicated in paragraph 1 , are fulfilled for instance if the price or cost indicated in a tender is significantly lower than prices or costs indicated in other tenders or than a price or costs estimated by the contracting authority , and the probability that the price or cost is abnormally low is very high .


### electronic means of communication are particularly well suited to support centralised purchasing practices and tools because of the possibility they offer to re - use and automatically process data and to minimise information and transaction costs . the use of such electronic means of communication should therefore , as a first step , be rendered compulsory for central purchasing bodies , while also facilitating converging practices across the union . this should be followed by a general obligation to use electronic means of communication in all procurement procedures after a transition period of two years . ### electronic means of communication are particularly well suited to support centralised purchasing practices and tools because of the possibility they offer to re - use and automatically process data and to minimise information and transaction costs . the use of such electronic means of communication should therefore , as a first step , be rendered compulsory for central purchasing bodies , while also facilitating converging practices across the union . this should be followed by a general obligation to use electronic means of communication in all procurement procedures after a transition period of four years .


### the price or cost charged is more than 20 % lower than the price or costs of the second lowest tender ; ### the price or cost indicated in a tender is at least 20 % lower than the price or costs of the second lowest tender ;


### contracting authorities may decide not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply , at least in an equivalent manner , with obligations established by union legislation in the field of social and labour law or environmental law or of the international social and environmental law provisions listed in annex xi . ### contracting authorities shall not award a contract to the tenderer submitting the best tender where they have established that the tender does not comply with obligations in the field of social and labour law or environmental law established by union or national legislation or collective agreements which apply in the place where the work , service or supply is performed , or by the international social and environmental law provisions listed in annex xi .


### the most economically advantageous tender referred to in point of paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject - matter of the public contract in question . those criteria shall include , in addition to the price or costs referred to in point of paragraph 1 , other criteria linked to the subject - matter of the public contract in question , such as : ### the most economically advantageous tender referred to in paragraph 1 from the point of view of the contracting authority shall be identified on the basis of criteria linked to the subject - matter of the public contract in question . those criteria shall include , in addition to the price or costs , other criteria linked to the subject - matter of the public contract in question . costs shall be assessed using a cost - effectiveness approach , such as a life - cycle costing approach , under the conditions set out in article 67 . price shall be the decisive award criterion in the case of highly standardised products and services . other criteria may include :


### there is a widespread need for additional flexibility and in particular for wider access to a procurement procedure providing for negotiations , as is explicitly foreseen in the agreement , where negotiation is allowed in all procedures . contracting authorities should , unless otherwise provided in the legislation of the member state concerned , be able to use a competitive procedure with negotiation as provided for in this directive , in various situations where open or restricted procedures without negotiations are not likely to lead to satisfactory procurement outcomes . this procedure should be accompanied by adequate safeguards ensuring observance of the principles of equal treatment and transparency . this will give greater leeway to contracting authorities to buy works , supplies and services perfectly adapted to their specific needs . at the same time , it should also increase cross - border trade , as the evaluation has shown that contracts awarded by negotiated procedure with prior publication have a particularly high success rate of cross - border tenders . ### there is a widespread need for additional flexibility and in particular for wider access to a procurement procedure providing for negotiations , as is explicitly foreseen in the agreement , where negotiation is allowed in all procedures . contracting authorities should be able to use a competitive procedure with negotiation as provided for in this directive , in various situations where open or restricted procedures without negotiations are not likely to lead to satisfactory procurement outcomes . this procedure should be accompanied by adequate safeguards ensuring observance of the principles of equal treatment and transparency . this will give greater leeway to contracting authorities to buy works , supplies and services perfectly adapted to their specific needs . at the same time , it should also increase cross - border trade , as the evaluation has shown that contracts awarded by negotiated procedure with prior publication have a particularly high success rate of cross - border tenders .


### in procedures for awarding public supply or service contracts , contracting authorities that have authorised variants shall not reject a variant on the sole ground that it would , where successful , lead to either a service contract rather than a public supply contract or a supply contract rather than a public service contract . ### in procedures for awarding public supply or service contracts , contracting authorities shall not reject a variant on the sole ground that it would , where successful , lead to either a service contract rather than a public supply contract or a supply contract rather than a public service contract .


### research and innovation , including eco - innovation and social innovation , are among the main drivers of future growth and have been put at the centre of the europe 2020 strategy for smart , sustainable and inclusive growth . public authorities should make the best strategic use of public procurement to spur innovation . buying innovative goods and services plays a key role in improving the efficiency and quality of public services while addressing major societal challenges . it contributes to achieving best value for public money as well as wider economic , environmental and societal benefits in terms of generating new ideas , translating them into innovative products and services and thus promoting sustainable economic growth . this directive should contribute to facilitating public procurement of innovation and help member states in achieving the innovation union targets . a specific procurement procedure should therefore be provided for which allows contracting authorities to establish a long - term innovation partnership for the development and subsequent purchase of a new , innovative product , service or works provided it can be delivered to agreed performance levels and costs . the partnership should be structured in such a way that it can provide the necessary ‘ market - pull’ , incentivising the development of an innovative solution without foreclosing the market . ### research and innovation , including eco - innovation and social innovation , are among the main drivers of future growth and have been put at the centre of the europe 2020 strategy for smart , sustainable and inclusive growth . public authorities should make the best strategic use of public procurement to drive innovation . buying innovative goods and services plays a key role in improving the efficiency and quality of public services while addressing major societal challenges . it contributes to achieving best value for public money as well as wider economic , environmental and societal benefits in terms of generating new ideas , translating them into innovative products and services and promoting sustainable economic growth . an innovative procurement model is detailed in the commission ' s communication on pre - commercial procurement 1 . this model promotes the take up in the procurement of research and development services which do not fall within the scope of this directive . this model , which has been written into this directive , is recognised and will be available for all contracting authorities to consider . this directive should however contribute to facilitating the public procurement of innovation more generally , and help member states in achieving the innovation union targets . where a need for the development of an innovative product , service or works and the subsequent purchase of the resulting output cannot be met by solutions already available on the market , contracting authorities should have access to a specific procurement procedure in respect of contracts falling within the scope of this directive . this new procedure should allow contracting authorities to establish an innovation partnership for the development and subsequent purchase of new , innovative products , services or works , provided that these can be delivered to agreed performance levels and costs . the procedure should be based on the rules applying to the competitive procedure with negotiations and contracts should be awarded on the sole basis of the most economically advantageous tender , which is the most suited to comparing tenders for innovative solutions . whether the innovation partnership concerns a very large project or a smaller project , it should be structured in such as a way that it can provide the necessary ' market pull ' , incentivising the development of innovative solutions without foreclosing the market . contracting authorities should therefore not misuse innovation partnerships to prevent , restrict or distort competition . __________________ 1 com 799 final : communication from the commission to the european parliament , the council , the european economic and social committee and the committee of the regions on pre - commercial procurement : driving innovation to ensure sustainable high quality public services in europe .


### the contracting authorities shall document the progress of all procurement procedures , whether or not those are conducted by electronic means . to that end , they shall document all stages in the procurement procedure , including all communications with economic operators and internal deliberations , preparation of the tenders , dialogue or negotiation if any , selection and award of the contract . ### the contracting authorities shall document the progress of all procurement procedures , whether or not those are conducted by electronic means . to that end , they shall document all stages in the procurement procedure , including all communications with economic operators , preparation of the tenders , dialogue or negotiation if any , selection and award of the contract .


### indication of the period of validity of the passport , which shall be not less than 6 months . ### indication of the period of validity of the passport , which shall be not less than 12 months .


### member states shall put in place appropriate procedures for the award of contracts subject to this chapter , ensuring full compliance with the principles of transparency and equal treatment of economic operators and allowing contracting authorities to take into account the specificities of the services in question . ### member states shall put in place appropriate procedures for the award of contracts subject to this chapter , ensuring full compliance with the principles of transparency , non - discrimination and equal treatment of economic operators and allowing contracting authorities to take into account the specificities of the services in question .


### ‘ common technical specification’ means a technical specification laid down in accordance with a procedure recognised by the member states or in accordance with articles 9 and 10 of parliament and council regulation [ xxx ] on european standardisation [ and amending council directives 89 / 686 / eec and 93 / 15 / eec and directives 94 / 9 / ec , 94 / 25 / ec , 95 / 16 / ec , 97 / 23 / ec , 98 / 34 / ec , 2004 / 22 / ec , 2007 / 23 / ec , 2009 / 105 / ec and 2009 / 23 / ec of the european parliament and the council ] which has been published in the official journal of the european union ; ### ' common technical specification ' means a technical specification laid down in accordance with a procedure recognised by the member states or , in the field of in formation and communication technologies , in accordance with articles 9 and 10 of parliament and council regulation [ xxx ] on european standardisation [ and amending council directives 89 / 686 / eec and 93 / 15 / eec and directives 94 / 9 / ec , 94 / 25 / ec , 95 / 16 / ec , 97 / 23 / ec , 98 / 34 / ec , 2004 / 22 / ec , 2007 / 23 / ec , 2009 / 105 / ec and 2009 / 23 / ec of the european parliament and the council ] which has been published in the official journal of the european union ;


### public contracts may be subdivided into homogenous or heterogeneous lots . for contracts with a value equal to or greater than the thresholds provided for in article 4 but not less than eur 500 000 , determined in accordance with article 5 , where the contracting authority does not deem it appropriate to split into lots , it shall provide in the contract notice or in the invitation to confirm interest a specific explanation of its reasons . ### public contracts may be subdivided into lots .


### the contracting authorities shall document the progress of all procurement procedures , whether or not those are conducted by electronic means . to that end , they shall document all stages in the procurement procedure , including all communications with economic operators and internal deliberations , preparation of the tenders , dialogue or negotiation if any , selection and award of the contract . ### the contracting authorities shall take appropriate steps to document the progress of award procedures conducted by electronic means .


### where contracting authorities lay down environmental , social or other characteristics of a works , service or supply in terms of performance or functional requirements as referred to in point of article 40 they may require that these works , services or supplies bear a specific label , provided that all of the following conditions are fulfilled : the requirements for the label only concern characteristics which are linked to the subject - matter of the contract and are appropriate to define characteristics of the works , supplies or services that are the subject - matter of the contract ; the requirements for the label are drawn up on the basis of scientific information or based on other objectively verifiable and non - discriminatory criteria ; the labels are established in an open and transparent procedure in which all stakeholders , including government bodies , consumers , manufacturers , distributors and environmental organisations , may participate , the labels are accessible to all interested parties ; the criteria of the label are set by a third party which is independent from the economic operator applying for the label . contracting authorities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the label indicated by the contracting authorities . for products that do not bear the label , contracting authorities shall also accept a technical dossier of the manufacturer or other appropriate means of proof . ### where contracting authorities lay down environmental , social or other characteristics of a works , service or supply in terms of performance or functional requirements as referred to in point of article 40 they may require that these works , services or supplies bear labels , provided that all of the following conditions are fulfilled : the requirements for the label only concern characteristics which are linked to the subject - matter of the contract or the production of the subject - matter of the contract and are appropriate to define characteristics of the works , supplies or services that are the subject - matter of the contract ; the requirements for the label are drawn up on the basis of scientific information or based on other objectively verifiable and non - discriminatory criteria ; the labels are established in an open and transparent procedure in which all stakeholders , including government bodies , consumers , manufacturers , distributors , social partners , environmental and social organisations may participate , the labels are accessible to all interested parties ; the attribution and verification of the label are undertaken by a third party which is independent from the economic operator applying for the label . contracting authorities requiring a label shall accept all equivalent labels that fulfil the requirements of the label indicated by the contracting authorities . for products that do not bear the label , contracting authorities may also accept a technical dossier of the manufacturer or other appropriate means of proof of equivalence . the burden for providing proof of equivalence with a specific label should be placed on the tenderer claiming equivalence .


### where contracting authorities lay down environmental , social or other characteristics of a works , service or supply in terms of performance or functional requirements as referred to in point of article 40 they may require that these works , services or supplies bear a specific label , provided that all of the following conditions are fulfilled : ### where contracting authorities lay down environmental , social or other characteristics of a works , service or supply in terms of performance or functional requirements as referred to in point of article 40 they may require that these works , services or supplies bear a specific label , certificate or other assurance scheme , provided that all of the following conditions are fulfilled :


### public contracts should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption , fraud to the detriment of the union ' s financial interests or money laundering . non - payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the union . furthermore , contracting authorities should be given the possibility to exclude candidates or tenderers for violations of environmental or social obligations , including rules on accessibility for disabled persons or other forms of grave professional misconduct , such as violations of competition rules or of intellectual property rights . ### public contracts should not be awarded to economic operators that have participated in a criminal organisation or have been found guilty of corruption , fraud to the detriment of the union ' s financial interests or money laundering . non - payment of taxes or social security contributions should also be sanctioned by mandatory exclusion at the level of the union . furthermore , contracting authorities should be given the possibility to exclude candidates or tenderers for violations of environmental or social obligations , animal welfare , including rules on accessibility for disabled persons or other forms of grave professional misconduct , such as violations of competition rules or of intellectual property rights .


### the award criteria . ### the main award criteria .


### member states shall ensure that contracting authorities may take into account the need to ensure quality , continuity , accessibility , availability and comprehensiveness of the services , the specific needs of different categories of users , the involvement and empowerment of users and innovation . member states may also provide that the choice of the service provider shall not be made solely on the basis of the price for the provision of the service . ### member states shall ensure that contracting authorities take into account the need to ensure high quality , continuity , accessibility , affordability , availability and comprehensiveness of the services , the specific needs of different categories of users , including disadvantaged and vulnerable groups , the involvement and empowerment of users and innovation . member states shall ensure that the choice of the service provider is not made solely on the basis of the price for the provision of the service but takes into account quality and sustainability criteria for social services as set out above .


### due to specific circumstances related to the nature or the complexity of the works , supplies or services or the risks attaching thereto , the contract cannot be awarded without prior negotiations . ### where contracting authorities justify in the call for competition that due to specific circumstances related to the nature , the legal or financial makeup or the complexity of the works , supplies or services or the risks attaching thereto , the contract cannot be awarded without prior negotiations .


### by reference to technical specifications 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 those do not exist ‐ national standards , national technical approvals or national technical specifications relating to the design , calculation and execution of the works and use of the supplies ; each reference shall be accompanied by the words ‘ or equivalent’ ; ### by reference to technical specifications and , in order of preference , and without discrimination as to development method , 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 those do not exist ‐ national standards , national technical approvals or national technical specifications relating to the design , calculation and execution of the works and use of the supplies ; each reference shall be accompanied by the words ' or equivalent ' ;


### furthermore , in technical specifications and in award criteria , contracting authorities should be allowed to refer to a specific production process , a specific mode of provision of services , or a specific process for any other stage of the life cycle of a product or service , provided that they are linked to the subject - matter of the public contract . in order to better integrate social considerations in public procurement , procurers may also be allowed to include , in the award criterion of the most economically advantageous tender , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . those characteristics may only concern the protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract , including accessibility for persons with disabilities . any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment . they should be applied in accordance with 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 and in a way that does not discriminate directly or indirectly against economic operators from other member states or from third countries parties to the agreement or to free trade agreements to which the union is party . for service contracts and for contracts involving the design of works , contracting authorities should also be allowed to use as an award criterion the organisation , qualification and experience of the staff assigned to performing the contract in question , as this may affect the quality of contract performance and , as a result , the economic value of the tender . ### in order to better integrate social considerations in public procurement , procurers may also be allowed to include optionally , in the award criterion of the most economically advantageous tender , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . those characteristics may only concern the protection of health of the staff involved in the production process or the favouring of social integration of disadvantaged persons or members of vulnerable groups amongst the persons assigned to performing the contract , including accessibility for persons with disabilities . any award criteria which include those characteristics should in any event remain limited to characteristics that have immediate consequences on staff members in their working environment . they should be applied in accordance with 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 and in a way that does not discriminate directly or indirectly against economic operators from other member states or from third countries parties to the agreement or to free trade agreements to which the union is party . for service contracts and for contracts involving the design of works , contracting authorities should also be allowed to use as an award criterion the organisation , qualification and experience of the staff assigned to performing the contract in question , as this may affect the quality of contract performance and , as a result , the economic value of the tender .


### ‘ common technical specification’ means a technical specification laid down in accordance with a procedure recognised by the member states or in accordance with articles 9 and 10 of parliament and council regulation [ xxx ] on european standardisation [ and amending council directives 89 / 686 / eec and 93 / 15 / eec and directives 94 / 9 / ec , 94 / 25 / ec , 95 / 16 / ec , 97 / 23 / ec , 98 / 34 / ec , 2004 / 22 / ec , 2007 / 23 / ec , 2009 / 105 / ec and 2009 / 23 / ec of the european parliament and the council ] which has been published in the official journal of the european union ; ### ' common technical specification ' means a technical specification laid down in accordance with a procedure recognised by the member states or , in the field of information and communication technologies , in accordance with articles 9 and 10 of parliament and council regulation [ xxx ] on european standardisation [ and amending council directives 89 / 686 / eec and 93 / 15 / eec and directives 94 / 9 / ec , 94 / 25 / ec , 95 / 16 / ec , 97 / 23 / ec , 98 / 34 / ec , 2004 / 22 / ec , 2007 / 23 / ec , 2009 / 105 / ec and 2009 / 23 / ec of the european parliament and the council ] which has been published in the official journal of the european union ;


### member states may provide that contracting authorities may apply innovation partnerships as regulated in this directive . ### member states shall provide that contracting authorities may apply innovation partnerships as regulated in this directive .


### external environmental costs directly linked to the life cycle , provided their monetary value can be determined and verified , which may include the cost of emissions of greenhouse gases and of other pollutant emissions and other climate change mitigation costs . ### external environmental costs directly linked to the life cycle of the product , provided their monetary value can be determined and verified .


### the notices referred to in paragraphs 1 and 2 shall contain the information referred to in annexes vi part h and i , in accordance with the standard forms . ### the notices referred to in paragraph 1 shall contain the information referred to in annexes vi part i , in accordance with the standard forms .


### contracting authorities may lay down special conditions relating to the performance of a contract , provided that they are indicated in the call for competition or in the specifications . those conditions may , in particular , concern social and environmental considerations . they may also include the requirement that economic operators foresee compensations for risks of price increases that are the result of price fluctuations and that could substantially impact the performance of a contract . ### contracting authorities may lay down special conditions relating to the performance of a contract , provided that they are indicated in the call for competition or in the specifications . 2 . those conditions may , in particular , concern social and environmental considerations . 3 . member states may provide for economic operators to receive compensation in the event of price increases that could not be foreseen when the tender was submitted .


### there is considerable legal uncertainty as to how far cooperation between public authorities should be covered by public procurement rules . the relevant case - law of the court of justice of the european union is interpreted divergently between member states and even between contracting authorities . it is therefore necessary to clarify in what cases contracts concluded between contracting authorities are not subject to the application of public procurement rules . such clarification should be guided by the principles set out in the relevant case - law of the court of justice . the sole fact that both parties to an agreement are themselves contracting authorities does not as such rule out the application of procurement rules . however , the application of public procurement rules should not interfere with the freedom of public authorities to decide how to organise the way they carry out their public service tasks . contracts awarded to controlled entities or cooperation for the joint execution of the public service tasks of the participating contracting authorities should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled . this directive should aim to ensure that any exempted public - public cooperation does not cause a distortion of competition in relation to private economic operators . neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition . ### there is considerable legal uncertainty as to how far cooperation between public authorities should be covered by public procurement rules . the relevant case - law of the court of justice of the european union is interpreted divergently between member states and even between contracting authorities . it is therefore necessary to clarify in what cases contracts concluded between contracting authorities are not subject to the application of public procurement rules . such clarification should be guided by the principles set out in the relevant case - law of the court of justice . the sole fact that both parties to an agreement are themselves contracting authorities does not as such rule out the application of procurement rules . the application of public procurement rules must not interfere with the right of public authorities to decide freely how to organise the way they carry out their public service tasks . contracts awarded to controlled entities should therefore be exempted from the application of the rules if the conditions set out in this directive are fulfilled . this directive should aim to ensure that any exempted public - public cooperation does not cause a distortion of competition in relation to private economic operators . neither should the participation of a contracting authority as a tenderer in a procedure for the award of a public contract cause any distortion of competition .


### research and innovation , including eco - innovation and social innovation , are among the main drivers of future growth and have been put at the centre of the europe 2020 strategy for smart , sustainable and inclusive growth . public authorities should make the best strategic use of public procurement to spur innovation . buying innovative goods and services plays a key role in improving the efficiency and quality of public services while addressing major societal challenges . it contributes to achieving best value for public money as well as wider economic , environmental and societal benefits in terms of generating new ideas , translating them into innovative products and services and thus promoting sustainable economic growth . this directive should contribute to facilitating public procurement of innovation and help member states in achieving the innovation union targets . a specific procurement procedure should therefore be provided for which allows contracting authorities to establish a long - term innovation partnership for the development and subsequent purchase of a new , innovative product , service or works provided it can be delivered to agreed performance levels and costs . the partnership should be structured in such a way that it can provide the necessary ‘ market - pull’ , incentivising the development of an innovative solution without foreclosing the market . ### research and innovation , including eco - innovation and social innovation , are among the main drivers of future growth and have been put at the centre of the europe 2020 strategy for smart , sustainable and inclusive growth . public authorities should make the best strategic use of public procurement to drive innovation . buying innovative goods and services plays a key role in improving the efficiency and quality of public services while addressing major societal challenges . it contributes to achieving best value for public money as well as wider economic , environmental and societal benefits in terms of generating new ideas , translating them into innovative products and services and promoting sustainable economic growth . an innovative procurement model is detailed in the commission ' s communication on pre - commercial procurement 1 . this model promotes the take up in the procurement of research and development services which do not fall within the scope of this directive . this model , which has been written into this directive , is recognised and will be available for all contracting authorities to consider . this directive should however contribute to facilitating the public procurement of innovation more generally , and help member states in achieving the innovation union targets . where a need for the development of an innovative product , service or works and the subsequent purchase of the resulting output cannot be met by solutions already available on the market , contracting authorities should have access to a specific procurement procedure in respect of contracts falling within the scope of this directive . this new procedure should allow contracting authorities to establish an innovation partnership for the development and subsequent purchase of new , innovative products , services or works , provided that these can be delivered to agreed performance levels and costs . the procedure should be based on the rules applying to the competitive procedure with negotiations and contracts should be awarded on the sole basis of the most economically advantageous tender , which is the most suited to comparing tenders for innovative solutions . whether the innovation partnership concerns a very large project or a smaller project , it should be structured in such as a way that it can provide the necessary ' market pull ' , incentivising the development of innovative solutions without foreclosing the market . contracting authorities should therefore not misuse innovation partnerships to prevent , restrict or distort competition . __________________ 1 com 799 final : communication from the commission to the european parliament , the council , the european economic and social committee and the committee of the regions on pre - commercial procurement : driving innovation to ensure sustainable high quality public services in europe .


### other categories of services continue by their very nature to have a limited cross - border dimension , namely what are known as services to the person , such as certain social , health and educational services . these services are provided within a particular context that varies widely amongst member states , due to different cultural traditions . a specific regime should therefore be established for public contracts for these services , with a higher threshold of eur 500 000 . services to the person with values below this threshold will typically not be of interest to providers from other member states , unless there are concrete indications to the contrary , such as union financing for transborder projects . contracts for services to the person above this threshold should be subject to union - wide transparency . given the importance of the cultural context and the sensitivity of these services , member states should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate . the rules of this directive take account of that imperative , imposing only observance of basic principles of transparency and equal treatment and making sure that contracting authorities are able to apply specific quality criteria for the choice of service providers , such as the criteria set out in the voluntary european quality framework for social services of the european union ' s social protection committee . member states and / or public authorities remain free to provide these services themselves or to organise social services in a way that does not entail the conclusion of public contracts , for example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting authority , without any limits or quotas , provided such a system ensures sufficient advertising and complies with the principles of transparency and non - discrimination . ### certain categories of services continue by their very nature to have a limited cross - border dimension , for example what are known as services to the person , such as certain social , health and educational services . these services are provided within a particular context that varies widely amongst member states , due to different cultural traditions . a specific regime should therefore be established for public contracts for these services , with a higher threshold of eur 1 000 000 . services to the person with values below this threshold will typically not be of interest to providers from other member states , unless there are concrete indications to the contrary , such as union financing for transborder projects . contracts for services to the person above this threshold should be subject to union - wide transparency . given the importance of the cultural context and the sensitivity of these services , member states should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate . the rules of this directive take account of that imperative , imposing only observance of basic principles of transparency and equal treatment and making sure that contracting authorities are able to apply specific quality criteria for the choice of service providers , such as the criteria set out in the voluntary european quality framework for social services of the european union ' s social protection committee . member states and / or public authorities remain free to provide these services themselves or to organise social services in a way that does not entail the conclusion of public contracts , for example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting authority , without any limits or quotas , provided such a system ensures sufficient advertising and complies with the principles of transparency and non - discrimination .


### the minimum yearly turnover shall not exceed three times the estimated contract value , except in duly justified circumstances relating to the special risks attached to the nature of the works , services or supplies . the contracting authority shall indicate such exceptional circumstances in the procurement documents . ### the minimum yearly turnover shall not exceed two times the estimated contract value , except in duly justified circumstances relating to the special risks attached to the nature of the works , services or supplies . the contracting authority shall indicate such exceptional circumstances in the procurement documents .