### furthermore , in technical specifications and in award criteria , contracting entities 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 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 . ### furthermore , in technical specifications and in award criteria , contracting authorities should be allowed to refer to life cycle characteristics , such as a specific production process , including , for example , social and environmental aspects , a specific mode of provision of services , functional or performance requirements aimed at minimising or maximising environmental or social impacts , 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 . the rule concerning the link to the subject - matter should be interpreted broadly . accordingly , in order to better integrate social considerations in public procurement , procurers may also be allowed to include , in the technical specifications and award criteria , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . those characteristics may , for example , concern the protection of health of the staff involved in the production process , gender equality , access to vocational training , user involvement and consultation , affordability , human rights , ethical trade 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 free to use as technical specifications or award criteria the organisation , qualifications and experience of the staff assigned to performing the contract in question , as this may affect the quality and sustainability of contract performance and , as a result , the economic value of the tender . contracting authorities may also integrate into technical specifications or award criteria social considerations relating to external social costs directly linked to the life cycle , such as the impact of production on the surrounding environment and adjacent communities . contracting authorities should lay down in the technical specifications obligations relating to social and employment conditions , health and safety at the workplace , social security and working conditions , as laid down in eu and national laws , regulations or administrative provisions , arbitration rulings , collective agreements and contracts and the international labour law provisions listed in annex xiv , which apply in the place where the work , service or supply is performed ; these obligations should also apply in cross - border situations , where workers from one member state provide services in another member state .


### under article 11 of the treaty on the functioning of the european union , environmental protection requirements must be integrated into the definition and implementation of the union policies and activities , in particular with a view to promoting sustainable development . this directive clarifies how the contracting entities may contribute to the protection of the environment and the promotion of sustainable development , whilst ensuring that they can obtain the best value for money for their contracts . ### under article 9 , 10 and 11 of the treaty on the functioning of the european union , environmental protection requirements and key social principles must be integrated into the definition and implementation of the union policies and activities . under article 3 of the treaty on the european union , the union is also committed to contributing to sustainable development . accordingly it is important to consider such principles when making procurement decisions , and in relation to all stages in the supply chain . this directive clarifies how the contracting entities have broad discretion to use technical specifications , award criteria and contract performance clauses to contribute to the protection of the environment and the promotion of sustainable development , whilst guaranteeing a link with the subject - matter of the contract and ensuring that they can obtain the best value for money for their contracts .


### an agreement concluded between two or more contracting authorities shall not be deemed to be a “works , supply or service contract” within the meaning of point 7 of article 2 of this directive , where the following cumulative conditions are met : the agreement establishes a genuine co - operation 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 is governed only by considerations relating to the public interest ; the participating contracting authorities do not perform on the open market more than 10% in terms of turnover of the activities which are relevant in the context of the agreement ; the agreement does not involve financial transfers between the participating contracting authorities , other than those corresponding to the reimbursement of actual costs of the works , services or supplies ; there is no private participation in any of the contracting authorities involved . ### an agreement concluded between two or more contracting authorities shall not be deemed to be a “works , supply or service contract” within the meaning of point 7 of article 2 of this directive , where the following cumulative conditions are met : the agreement establishes cooperation between the participating contracting authorities for the purpose of carrying out a shared public service task or of pooling resources to enable them to carry out their specific tasks ; the agreement does not provide for , and is without prejudice to , such procurement procedures as might be necessary in order to carry out the public service task referred to in point ; the agreement is concluded solely by public authorities , without the involvement of any private party , except in cases where the private participation of the contracting authorities participating in the cooperation is specific to their status as bodies established under public law and they have been instructed by a member state to carry out a public service task , in keeping with the concept of social enterprise .


### 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 costs such as social and / or 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 .


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


### contracting entities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the label indicated by the contracting entities . for products that do not bear the label , contracting entities shall also accept a technical dossier of the manufacturer or other appropriate means of proof . ### contracting entities requiring a specific label shall accept all equivalent labels that fulfil the requirements of the label indicated by the contracting entities . for products that do not bear the label , contracting entities shall also accept a technical dossier of the manufacturer or other appropriate means of proof . precedence shall be given to labels , technical dossiers or other means of proof which have been developed , certified or verified with the involvement of governmental bodies , or environmental or social organisations .


### member states may provide that contracting entities may apply innovation partnerships as regulated in this directive . member states may decide not to transpose into their national law innovation partnerships or to restrict the use of it to certain types of procurement . ### member states shall provide that contracting entities may apply innovation partnerships as regulated in this directive .


### contracting entities 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 xiv . ### contracting entities 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 xiv or with obligations in the field of intellectual property law .


### without prejudice to national laws , regulations or administrative provisions on the remuneration of certain services , the criteria on which contracting entities shall base the award of contracts shall be one of the following : the most economically advantageous tender ; the lowest cost . ### without prejudice to national laws , regulations or administrative provisions on the remuneration of certain services , the criteria on which contracting entities shall base the award of contracts shall be the most economically advantageous tender .


### at least 90 % of the activities of that legal person are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities ; ### at least 80 % of the activities of that legal person , subject to the contract , are carried out for the controlling contracting authorities or other legal persons controlled by the same contracting authorities ;


### 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 contract in question , such as : ### those criteria shall include other criteria linked to the subject - matter of the public contract in question , such as :


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


### 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 established in an open and transparent procedure in which all stakeholders , including government bodies , consumers , manufacturers , distributors , and environmental and social organisations may participate ;


### 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 council 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 council , operations conducted with the european financial stability facility and transactions to enable contracting authorities to raise money or capital ;


### contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency , non - discrimination and equal treatment . those criteria should guarantee that tenders are assessed in conditions of effective competition , also where contracting entities require high - quality works , supplies and services that are optimally suited to their needs . as a result , contracting entities should be allowed to adopt as award criteria either ' the most economically advantageous tender ' or ' the lowest cost ' , taking into account that in the latter case they are free to set adequate quality standards by using technical specifications or contract performance conditions . ### contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency , non - discrimination and equal treatment . these criteria should guarantee that tenders are assessed in conditions of effective competition , at the same time ensuring that contracting authorities require high - quality works , supplies and services that are optimally suited to their needs and which include factors linked to socially - sustainable production process criteria and involve disadvantaged persons . as a result , contracting entities should be allowed to adopt as award criteria ‘ the most economically advantageous tender’ , taking into account the fact that they must make reference to adequate quality standards by using technical specifications or contract performance conditions .


### in the procurement documents , the contracting entity may ask , or may be required by a member state to ask , the tenderer to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractors . ### in the procurement documents , the contracting entity must ask the tenderer to indicate in its tender the share of the contract it wishes to subcontract to third parties and any proposed subcontractors , providing information regarding the subcontractor , including names , contact details and legal representatives . the contracting entity must be informed without delay of any change in the subcontracting chain .


### 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 entities 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 entity should be entitled to reject the tender . rejection should be mandatory in cases where the contracting entity has established that the abnormally low price 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 tenderers . where the tenderer cannot provide a sufficient explanation , the contracting authority should reject the tender . rejection should be mandatory in cases where the contracting authority has established that the abnormally low price indicated results from non - compliance with union environmental law or with obligations relating to social and employment conditions , health and safety at the workplace , social security and working conditions , as laid down in eu and national laws , regulations or administrative provisions , arbitration rulings , collective agreements and contracts and the international labour law provisions listed in annex xiv , which apply in the place where the work , service or supply is performed ; these obligations should also apply in cross - border situations , where workers from one member state provide services in another member state .


### the notion of conflict of interests shall at least cover any situation where the categories of persons referred to in paragraph 2 have , directly or indirectly , a private interest in the outcome of the procurement procedure , which may be perceived to impair the impartial and objective performance of their duties . ### the notion of conflict of interests shall cover any situation where the categories of persons referred to in paragraph 2 have , directly or indirectly , a private interest in the outcome of the procurement procedure , which may be perceived to impair the impartial and objective performance of their duties .


### 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 established in an open and transparent procedure in which all relevant stakeholders , including government bodies , consumers , manufacturers , trade unions , distributors , social and environmental organisations may participate , .


### member states shall ensure that contracting entities 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 entities 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 as well as consumer protection and social inclusion . 2a . contracting entities shall ensure that , for the choice of the service provider , due account is given to social standards and considerations in accordance with point 22b of article 2 and articles 54 , 70 , 72 , 74 and 81 . 2b . when choosing the service provider , contracting entities shall consider using reserved contracts as provided for in article 31 .


### there is no private participation in any of the contracting authorities involved . ### the task is carried out solely by the public authorities concerned , with no participation of a private party with the exception of contracting authorities participating in the cooperation as a public law body in the sense of article 2


### member states shall ensure that contracting entities 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 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 , but shall take into account the quality and sustainability criteria for social services set out above .


### the technical specifications drawn up by purchasers need to allow public procurement to be opened up to competition . to that end , it must be possible to submit tenders that reflect the diversity of technical solutions so as to obtain a sufficient level of competition . consequently , technical specifications should be drafted in such a way to avoid artificially narrowing down competition through requirements that favour a specific economic operator by mirroring key characteristics of the supplies , services or works habitually offered by that economic operator . drawing up the technical specifications in terms of functional and performance requirements generally allows this objective to be achieved in the best way possible and favours innovation . where reference is made to a european standard or , in the absence thereof , to a national standard , tenders based on other equivalent arrangements which meet the requirements of the contracting entities and are equivalent in terms of safety must be considered by the contracting entities . to demonstrate equivalence , tenderers can be required to provide third - party verified evidence ; however , other appropriate means of proof such as a technical dossier of the manufacturer should also be allowed where the economic operator concerned has no access to such certificates or test reports , or no possibility of obtaining them within the relevant time limits . ### the technical specifications drawn up by purchasers should allow the objectives of sustainability and the opening up of procurement to competition to be achieved . to that end , tenders that reflect the diversity of technical solutions should be specified on the basis of performance linked to the life - cycle and socially - sustainable production process of the works , supplies and services so as to ensure a balance between functional and sustainable objectives and obtain a sufficient level of competition . consequently , technical specifications should be drafted and applied in conformity with the principles of transparency , non - discrimination and equality of opportunity . these principles should not only protect the interests of tenderers but also safeguard effective competition , enabling more efficient spending targeting contracts providing the best cost - benefit ratio . drawing up the technical specifications in terms of functional and performance requirements generally allows this objective to be achieved in the best way possible and favours innovation . where reference is made to a european standard or , in the absence thereof , to a national standard , tenders based on other equivalent arrangements which meet the requirements of the contracting entities and are equivalent in terms of safety should be considered by the contracting entities . to demonstrate equivalence , tenderers can be required to provide third - party verified evidence ; however , other appropriate means of proof such as a technical dossier of the manufacturer should also be allowed where the economic operator concerned has no access to such certificates or test reports , or no possibility of obtaining them within the relevant time limits .


### 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 contract in question , such as : ### those criteria shall include in addition to the price or costs – assessed , at the choice of the contracting entity , on the basis of price only or using a cost - effectiveness approach , such as a life - cycle costing approach , under the conditions set out in article 77 - other criteria linked to the subject - matter of the contract in question , such as :


### 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 . contracting entities 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 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 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 entities 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 . contracting entities 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 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 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 entities to develop and then purchase a new , innovative product , service or works provided it can be delivered to agreed performance levels and costs .


### the price or cost charged is more than 50 % lower than the average price or costs of the remaining tenders ### the price or cost charged is more than 30 % lower than the average price or costs of the remaining tenders


### furthermore , in technical specifications and in award criteria , contracting entities 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 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 . ### furthermore , in technical specifications and in award criteria , contracting authorities should be allowed to refer to life cycle characteristics , such as a specific production process , including , for example , social and environmental aspects , a specific mode of provision of services , functional or performance requirements aimed at minimising or maximising environmental or social impacts , 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 . the rule concerning the link to the subject - matter should be interpreted broadly . accordingly , in order to better integrate social considerations in public procurement , procurers may also be allowed to include , in the technical specifications and award criteria , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . those characteristics may , for example , concern the protection of health of the staff involved in the production process , gender equality , access to vocational training , user involvement and consultation , affordability , human rights , ethical trade 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 free to use as technical specifications or award criteria the organisation , qualifications and experience of the staff assigned to performing the contract in question , as this may affect the quality and sustainability of contract performance and , as a result , the economic value of the tender . contracting authorities may also integrate into technical specifications or award criteria social considerations relating to external social costs directly linked to the life cycle , such as the impact of production on the surrounding environment and adjacent communities . contracting authorities should lay down in the technical specifications obligations relating to social and employment conditions , health and safety at the workplace , social security and working conditions , as laid down in eu and national laws , regulations or administrative provisions , arbitration rulings , collective agreements and contracts and the international labour law provisions listed in annex xiv , which apply in the place where the work , service or supply is performed ; these obligations should also apply in cross - border situations , where workers from one member state provide services in another member state .


### under article 11 of the treaty on the functioning of the european union , environmental protection requirements must be integrated into the definition and implementation of the union policies and activities , in particular with a view to promoting sustainable development . this directive clarifies how the contracting entities may contribute to the protection of the environment and the promotion of sustainable development , whilst ensuring that they can obtain the best value for money for their contracts . ### under article 9 , 10 and 11 of the treaty on the functioning of the european union , environmental protection requirements and social considerations must be integrated into the definition and implementation of the union policies and activities , in particular with a view to promoting sustainable development . this directive clarifies how the contracting entities may contribute to the protection of the environment and the promotion of sustainable development and how they can use their discretionary power to select technical specifications and award criteria with the aim of achieving sustainable public procurement , whilst ensuring the link to the subject matter of the contract and obtaining the best value for money for their contracts .


### the exclusions provided for in paragraphs 1 to 4 shall cease to apply from the moment any private participation takes place , with the effect that ongoing contracts need to be opened to competition through regular procurement procedures . ### the exclusions provided for in paragraphs 1 to 4 shall cease to apply from the moment any private participation takes place , with the effect that ongoing contracts need to be opened to competition through regular procurement procedures , except in cases where the private participation of the participating contracting authorities carrying out a public service task assigned by a member state is specific to their status as bodies established under public law and is therefore governed solely by considerations relating to the public interest or to social utility , without pursuing aims of a different nature , in keeping with the concept of social enterprise .


### member states shall make available technical support structures in order to provide legal and economic advice , guidance and assistance to contracting entities in preparing and carrying out procurement procedures . member states shall also ensure that each contracting entity can obtain competent assistance and advice on individual questions . ### member states shall make available technical support structures in order to provide legal and economic advice , guidance and assistance to contracting entities in preparing and carrying out procurement procedures . member states shall also ensure that each contracting entity can obtain competent assistance and advice on individual questions , in particular in relation to provisions contained in articles 70 , 74 and 81 .


### the most economically advantageous tender referred to in point of paragraph 1 ) from the point of view of the contracting entity shall be identified on the basis of criteria linked to the subject - matter of the contract in question . ### the most economically advantageous tender referred to in paragraph 1 from the point of view of the contracting entity shall be identified on the basis of criteria linked to the subject - matter of the contract in question . those criteria may include , in addition to the price or costs , other criteria linked to the subject - matter of the 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 77 . price shall be the decisive award criterion in the case of highly standardised products and services . other criteria may include :


### compliance , 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 xiv or , where not applicable , with other provisions ensuring an equivalent level of protection ; ### compliance 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 xiv or , where not applicable , with other provisions ensuring an equivalent level of protection ;


### contract performance conditions are compatible with this directive provided that they are not directly or indirectly discriminatory , are linked to the subject - matter of the contract and are indicated in the notice used to make the call for competition , or in the procurement documents . they may , in particular , be intended to favour on - site vocational training , the employment of people experiencing particular difficulty in achieving integration , the fight against unemployment , protection of the environment or animal welfare . for instance , mention may be made , amongst other things , of the requirements — applicable during performance of the contract — to recruit long - term job - seekers or to implement training measures for the unemployed or young persons , to comply in substance with fundamental international labour organisation conventions , even where such conventions have not been implemented in national law , and to recruit more disadvantaged persons than are required under national legislation . ### contract performance conditions are compatible with this directive provided that they are not directly or indirectly discriminatory , are linked to the subject - matter of the contract and are indicated in the notice used to make the call for competition , or in the procurement documents . they may , in particular , be intended to favour on - site vocational training , the employment of people experiencing particular difficulty in achieving integration , the fight against unemployment , protection of the environment or animal welfare . for instance , mention may be made , amongst other things , of the requirements — applicable during performance of the contract — to implement training measures for the unemployed or young persons , to comply in substance with fundamental international labour organisation conventions , even where such conventions have not been implemented in national law , and to recruit more disadvantaged persons than are required under national legislation .


### the technical specifications as defined in point 1 of annex viii shall be set out in the procurement documents . they shall define the characteristics required of a works , service or supply . ### the technical specifications shall be set out in the procurement documents . they shall define the characteristics required of a works , service or supply in order to achieve both the use and sustainability objectives of the contracting entity .


### 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 entities 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 entity should be entitled to reject the tender . rejection should be mandatory in cases where the contracting entity has established that the abnormally low price 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 entities should be obliged to ask for an explanation of the price charged where a tender significantly undercuts the prices demanded by other tenderers . rejection of the tender should be mandatory in cases where the contracting entity has established that the abnormally low price results from non - compliance with mandatory union legislation in the fields of social , labour or environmental law or international labour law provisions or , if the contractor cannot give a satisfactory explanation of the abnormally low price of his tender , it should be rejected by the contracting entity .


### contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency , non - discrimination and equal treatment . those criteria should guarantee that tenders are assessed in conditions of effective competition , also where contracting entities require high - quality works , supplies and services that are optimally suited to their needs . as a result , contracting entities should be allowed to adopt as award criteria either ' the most economically advantageous tender ' or ' the lowest cost ' , taking into account that in the latter case they are free to set adequate quality standards by using technical specifications or contract performance conditions . ### contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency , non - discrimination and equal treatment . these criteria should guarantee that tenders are assessed in conditions of effective competition , at the same time ensuring that contracting authorities require high - quality works , supplies and services that are optimally suited to their needs and which include factors linked to socially - sustainable production process criteria and involve disadvantaged persons . as a result , contracting entities should be allowed to adopt as award criteria ‘ the most economically advantageous tender’ , taking into account the fact that they must make reference to adequate quality standards by using technical specifications or contract performance conditions .


### where contracting entities 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 entity 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 entities 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 entity 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 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 12 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 12 or 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 .


### contracting entities 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 xiv . ### contracting entities 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 xiv or with obligations in the field of intellectual property law .


### furthermore , in technical specifications and in award criteria , contracting entities 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 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 . ### furthermore , in technical specifications and in award criteria , contracting entities should be allowed to refer to life - cycle characteristics and a socially - sustainable production process , provided that these characteristics or this process are linked to the subject - matter of the contract . the technical specifications and award criteria should be understood in a broad sense . they should therefore make reference to the life - cycle and socially - sustainable production process , including the social and environmental aspects of the production process or the provision of products or services . the contracting authorities may also use the technical specifications or award criteria in order to minimise the detrimental social or environmental impact or maximise the positive social or environmental impact . in order to better integrate social considerations in public procurement , procurers should also be allowed to include , in the technical specifications and the award criteria , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . they should be applied 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 .


### the most economically advantageous tender referred to in point of paragraph 1 ) from the point of view of the contracting entity shall be identified on the basis of criteria linked to the subject - matter of the contract in question . ### the most economically advantageous tender 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 .


### contracting entities may take account of variants which are submitted by a tenderer and meet the minimum requirements specified by the contracting entities . ### a variant shall be an alternative method of design , execution or funding of the contract . contracting entities may take account of variants which are submitted by a tenderer and meet the minimum requirements specified by the contracting entities .


### an agreement concluded between two or more contracting authorities shall not be deemed to be a “works , supply or service contract” within the meaning of point 7 of article 2 of this directive , where the following cumulative conditions are met : the agreement establishes a genuine co - operation 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 is governed only by considerations relating to the public interest ; the participating contracting authorities do not perform on the open market more than 10% in terms of turnover of the activities which are relevant in the context of the agreement ; the agreement does not involve financial transfers between the participating contracting authorities , other than those corresponding to the reimbursement of actual costs of the works , services or supplies ; there is no private participation in any of the contracting authorities involved . ### an agreement concluded between two or more contracting authorities shall not be deemed to be a “works , supply or service contract” within the meaning of point 7 of article 2 of this directive , where the following cumulative conditions are met : the agreement establishes cooperation between the participating contracting authorities for the purpose of carrying out a shared public service task or of pooling resources to enable them to carry out their specific tasks ; the agreement does not provide for , and is without prejudice to , such procurement procedures as might be necessary in order to carry out the public service task referred to in point ; the agreement is concluded solely by public authorities , without the involvement of any private party , except in cases where the private participation of the contracting authorities participating in the cooperation is specific to their status as bodies established under public law and they have been instructed by a member state to carry out a public service task , in keeping with the concept of social enterprise .


### 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 12 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 is below 10% of the price of the initial contract , provided that the modification does not alter the overall nature of the contract .


### furthermore , in technical specifications and in award criteria , contracting entities 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 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 . ### furthermore , in technical specifications and in award criteria , contracting authorities should be allowed to refer to life cycle characteristics , such as a specific production process , including , for example , social and environmental aspects , a specific mode of provision of services , functional or performance requirements aimed at minimising or maximising environmental or social impacts , 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 . the rule concerning the link to the subject - matter should be interpreted broadly . accordingly , in order to better integrate social considerations in public procurement , procurers may also be allowed to include , in the technical specifications and award criteria , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . those characteristics may , for example , concern the protection of health of the staff involved in the production process , gender equality , access to vocational training , user involvement and consultation , affordability , human rights , ethical trade 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 free to use as technical specifications or award criteria the organisation , qualifications and experience of the staff assigned to performing the contract in question , as this may affect the quality and sustainability of contract performance and , as a result , the economic value of the tender . contracting authorities may also integrate into technical specifications or award criteria social considerations relating to external social costs directly linked to the life cycle , such as the impact of production on the surrounding environment and adjacent communities . contracting authorities should lay down in the technical specifications obligations relating to social and employment conditions , health and safety at the workplace , social security and working conditions , as laid down in eu and national laws , regulations or administrative provisions , arbitration rulings , collective agreements and contracts and the international labour law provisions listed in annex xiv , which apply in the place where the work , service or supply is performed ; these obligations should also apply in cross - border situations , where workers from one member state provide services in another member state .


### this exception only applies when no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement ; ### this exception only applies when the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement ;


### compliance , 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 xiv or , where not applicable , with other provisions ensuring an equivalent level of protection ; ### compliance with obligations established by union legislation in the field of environmental law or with obligations relating to social and employment conditions , such as health and safety at the workplace , social security and working conditions , as laid down in eu and national laws , regulations or administrative provisions , arbitration rulings , collective agreements and contracts and the international labour law provisions listed in annex xiv , which apply in the place where the work , service or supply is performed , or , where not applicable , with other provisions ensuring an equivalent level of protection ;


### where contracting entities assess the costs using a life - cycle costing approach , they shall indicate in the procurement documents the methodology used for the calculation of the life - cycle costs . the methodology used must fulfil all of the following conditions : ### where contracting entities assess the costs using a life - cycle costing approach , they shall indicate in the procurement documents the data to be provided by the tenderers and the method which the contracting authority will use to determine the life - cycle costs . the method used for the assessment of those life - cycle costs must fulfil all of the following conditions :


### member states shall ensure that contracting entities 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 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 , but shall take into account the quality and sustainability criteria for social services set out above .


### the delegation of power referred to in articles 4 , 35 , 33 , 38 , 25 , 65 , 70 , 77 , 85 and 95 shall be conferred on the commission for an indeterminate period of time from the [ date of entry into force of this directive ] . ### the delegation of power referred to in articles 4 , 35 , 33 , 38 , 25 , 65 , 70 , 77 , 85 and 95 shall be conferred on the commission for a period of five years from the [ date of entry into force of the present directive ] . the commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five - year period . the delegation of power shall be tacitly extended for periods of an identical duration , unless the european parliament or the council opposes such extension not later than three months before the end of each period .


### texte proposé par la commission ### amendement article 11 a derogation from application of this directive with a view to protecting a commercial strategy whenever a procurement procedure is likely to reveal a commercial strategy which it would be detrimental to bring to the attention of the competition , the contracting entity may refer the matter to the control body referred to in article 93 in order to obtain a derogation from application of this directive . to this end , the contracting entity making the application shall present a duly motivated request to the control body mentioned in article 93 , in accordance with point b of the first subparagraph of article 93 . if the control body authorises the derogation in accordance with the first subparagraph , this directive shall not apply to the procurement procedure in question .


### without prejudice to national laws , regulations or administrative provisions on the remuneration of certain services , the criteria on which contracting entities shall base the award of contracts shall be one of the following : the most economically advantageous tender ; b ) the lowest cost . ### without prejudice to national laws , regulations or administrative provisions on the remuneration of certain services , the criteria on which contracting authorities shall base the award of public contracts shall be : the most economically , socially and environmentally advantageous tender ; b ) the lowest cost . the criterion referred to in point takes in general precedence over the criterion referred to in point ;


### insofar as is strictly necessary where , for reasons of extreme urgency brought about by force majeure , the time limits laid down for open procedures , restricted procedures and negotiated procedures with prior call for competition cannot be complied with . the circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting entity ; ### insofar as is strictly necessary where , for reasons of extreme urgency brought about by events which the contracting authority could not have foreseen , the time limits laid down for open procedures , restricted procedures and negotiated procedures with prior call for competition cannot be complied with . the circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting entity ;


### the technical specifications drawn up by purchasers need to allow public procurement to be opened up to competition . to that end , it must be possible to submit tenders that reflect the diversity of technical solutions so as to obtain a sufficient level of competition . consequently , technical specifications should be drafted in such a way to avoid artificially narrowing down competition through requirements that favour a specific economic operator by mirroring key characteristics of the supplies , services or works habitually offered by that economic operator . drawing up the technical specifications in terms of functional and performance requirements generally allows this objective to be achieved in the best way possible and favours innovation . where reference is made to a european standard or , in the absence thereof , to a national standard , tenders based on other equivalent arrangements which meet the requirements of the contracting entities and are equivalent in terms of safety must be considered by the contracting entities . to demonstrate equivalence , tenderers can be required to provide third - party verified evidence ; however , other appropriate means of proof such as a technical dossier of the manufacturer should also be allowed where the economic operator concerned has no access to such certificates or test reports , or no possibility of obtaining them within the relevant time limits . ### the technical specifications drawn up by purchasers should allow the objectives of sustainability and the opening up of procurement to competition to be achieved . to that end , tenders that reflect the diversity of technical solutions should be specified on the basis of performance linked to the life - cycle and socially - sustainable production process of the works , supplies and services so as to ensure a balance between functional and sustainable objectives and obtain a sufficient level of competition . consequently , technical specifications should be drafted and applied in conformity with the principles of transparency , non - discrimination and equality of opportunity . these principles should not only protect the interests of tenderers but also safeguard effective competition , enabling more efficient spending targeting contracts providing the best cost - benefit ratio . drawing up the technical specifications in terms of functional and performance requirements generally allows this objective to be achieved in the best way possible and favours innovation . where reference is made to a european standard or , in the absence thereof , to a national standard , tenders based on other equivalent arrangements which meet the requirements of the contracting entities and are equivalent in terms of safety should be considered by the contracting entities . to demonstrate equivalence , tenderers can be required to provide third - party verified evidence ; however , other appropriate means of proof such as a technical dossier of the manufacturer should also be allowed where the economic operator concerned has no access to such certificates or test reports , or no possibility of obtaining them within the relevant time limits .


### the delegation of power referred to in articles 4 , 35 , 33 , 38 , 25 , 65 , 70 , 77 , 85 and 95 shall be conferred on the commission for an indeterminate period of time from the [ date of entry into force of this directive ] . ### the delegation of power referred to in articles 4 , 35 , 33 , 38 , 25 , 65 , 70 , 77 , 85 and 95 shall be conferred on the commission for a period of five years from . . . * . the commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five - year period . the delegation shall be tacitly extended for periods of an identical duration , unless the european parliament or the council opposes such extension not later than three months before the end of each period .


### 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 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 , ensuring the best possible outcome in cost - benefit ratio terms and facilitating in particular the participation of small and medium - sized enterprises in public procurement . there is also a need to simplify eu rules on public procurement , particularly with regard to the method used to achieve the sustainability objectives which should be included in public procurement policy , 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 .


### 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 . given that contracting entities , which are not contracting authorities , might not have access to indisputable proof on the matter , it is appropriate to leave the choice of whether or not to apply the exclusion criteria listed in directive [ 2004 / 18 ] to such contracting entities . the obligation to apply article 55 and of directive [ 2004 / 18 ] should therefore be limited to contracting entities that are contracting authorities . furthermore , contracting entities 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 and violations of environmental or social obligations , including rules on accessibility for disabled persons , should also be sanctioned by mandatory exclusion at the level of the union . given that contracting entities , which are not contracting authorities , might not have access to indisputable proof on the matter , it is appropriate to leave the choice of whether or not to apply the exclusion criteria listed in directive [ 2004 / 18 ] to such contracting entities . the obligation to apply article 55 and of directive [ 2004 / 18 ] should therefore be limited to contracting entities that are contracting authorities . furthermore , contracting entities should be given the possibility to exclude candidates or tenderers for forms of grave professional misconduct , such as violations of competition rules or of intellectual property rights .


### the technical specifications as defined in point 1 of annex viii shall be set out in the procurement documents . they shall define the characteristics required of a works , service or supply . ### the technical specifications shall be set out in the procurement documents . they shall define the characteristics required of a works , service or supply in order to achieve both the use and sustainability objectives of the contracting entity .


### without prejudice to national laws , regulations or administrative provisions on the remuneration of certain services , the criteria on which contracting entities shall base the award of contracts shall be one of the following : the most economically advantageous tender ; the lowest cost . ### without prejudice to national laws , regulations or administrative provisions on the remuneration of certain services , the criteria on which contracting entities shall base the award of contracts shall be the most economically advantageous tender .


### those sector - specific measures must be complemented by an adaptation of the public procurement directives empowering contracting entities to pursue the objectives of the europe 2020 strategy in their purchasing strategies . it should hence be made clear that contracting entities can determine the most economically advantageous tender and the lowest cost using a life - cycle costing approach , provided that the methodology to be used is established in an objective and non - discriminatory manner and accessible to all interested parties . the notion of life - cycle costing includes all costs over the life - cycle of a works , supplies or services , both their internal costs and their external costs , provided they can be monetised and monitored . common methodologies should be developed at the level of the union for the calculation of life - cycle costs for specific categories of supplies or services ; whenever such a methodology is developed its use should be made compulsory . ### those sector - specific measures should be complemented by an adaptation of the public procurement directives empowering contracting entities to pursue the objectives of the europe 2020 strategy in their purchasing strategies . it should hence be made clear that contracting entities should determine the most economically - advantageous tender using a costing approach based on life - cycle and sustainable production processes , in accordance with articles 9 , 10 and 11 of the treaty on the functioning of the european union which lay down the social and environmental protection conditions to be taken into account when determining and implementing eu policy . the notion of life - cycle costing includes all costs over the life - cycle of a works , supplies or services , both their internal costs and their external costs , provided they can be monetised and monitored . common methodologies should be developed at the level of the union for the calculation of life - cycle costs for specific categories of supplies or services ; whenever such a methodology is developed its use should be made compulsory .


### the most economically advantageous tender referred to in point of paragraph 1 ) from the point of view of the contracting entity shall be identified on the basis of criteria linked to the subject - matter of the contract in question . ### the most economically advantageous tender 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 .


### a contracting authority , which does not exercise over a legal person control within the meaning of paragraph 1 , may nevertheless award a 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 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 :


### where contracting entities 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 those 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 entity 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 . ### with a view to awarding a contract to the most economically advantageous tender , contracting entities 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 those 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 entity 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 .


### member states may provide that contracting entities may apply innovation partnerships as regulated in this directive . member states may decide not to transpose into their national law innovation partnerships or to restrict the use of it to certain types of procurement . ### member states shall provide that contracting entities may apply innovation partnerships as regulated in this directive .


### a modification of a contract during its term shall be considered substantial within the meaning of paragraph 1 , where it renders the contract substantially different from the one initially concluded . in any case , without prejudice to paragraph 3 and 4 , a modification shall be considered substantial where one of the following conditions is met : ### in any case , without prejudice to paragraph 3 and 4 , a modification shall be considered substantial where one of the following conditions is met :


### furthermore , in technical specifications and in award criteria , contracting entities 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 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 . ### furthermore , in technical specifications and in award criteria , contracting entities should be allowed to refer to life - cycle characteristics and a socially - sustainable production process , provided that these characteristics or this process are linked to the subject - matter of the contract . the technical specifications and award criteria should be understood in a broad sense . they should therefore make reference to the life - cycle and socially - sustainable production process , including the social and environmental aspects of the production process or the provision of products or services . the contracting authorities may also use the technical specifications or award criteria in order to minimise the detrimental social or environmental impact or maximise the positive social or environmental impact . in order to better integrate social considerations in public procurement , procurers should also be allowed to include , in the technical specifications and the award criteria , characteristics related to the working conditions of the persons directly participating in the process of production or provision in question . they should be applied 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 .


### there is no private participation in the controlled legal person . ### there is no private participation in the controlled legal person , except where the private participation of the controlling contracting authority or the controlled legal person is specific to its status as a body established under public law , in keeping with the concept of social enterprise .


### where contracting entities assess the costs using a life - cycle costing approach , they shall indicate in the procurement documents the methodology used for the calculation of the life - cycle costs . the methodology used must fulfil all of the following conditions : ### where contracting entities assess the costs using a life - cycle costing approach , they shall indicate in the procurement documents the data to be provided by the tenderers and the method which the contracting authority will use to determine the life - cycle costs . the method used for the assessment of those life - cycle costs must fulfil all of the following conditions :


### an agreement concluded between two or more contracting authorities shall not be deemed to be a “works , supply or service contract” within the meaning of point 7 of article 2 of this directive , where the following cumulative conditions are met : the agreement establishes a genuine co - operation 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 is governed only by considerations relating to the public interest ; the participating contracting authorities do not perform on the open market more than 10% in terms of turnover of the activities which are relevant in the context of the agreement ; the agreement does not involve financial transfers between the participating contracting authorities , other than those corresponding to the reimbursement of actual costs of the works , services or supplies ; there is no private participation in any of the contracting authorities involved . ### an agreement concluded between two or more contracting authorities shall not be deemed to be a “works , supply or service contract” within the meaning of point 7 of article 2 of this directive , where the following cumulative conditions are met : the agreement establishes cooperation between the participating contracting authorities for the purpose of carrying out a shared public service task or of pooling resources to enable them to carry out their specific tasks ; the agreement does not provide for , and is without prejudice to , such procurement procedures as might be necessary in order to carry out the public service task referred to in point ; the agreement is concluded solely by public authorities , without the involvement of any private party , except in cases where the private participation of the contracting authorities participating in the cooperation is specific to their status as bodies established under public law and they have been instructed by a member state to carry out a public service task , in keeping with the concept of social enterprise .


### 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 entities from economic operators chosen by those contracting entities , provided that the works , supplies or services are intended for the pursuit of one of the activities referred to in articles 5 to 11 . ### procurement within the meaning of this directive is the purchase of works , supplies or services in the context of public procurement by one or more contracting entities from economic operators chosen by those contracting entities , provided that the works , supplies or services are intended for the pursuit of one of the activities referred to in articles 5 to 11 .


### ‘ 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 production and location of production , transport , use and maintenance , throughout the existence of a product or works or the provision of a service , from raw material acquisition or generation of resources to disposal , clearance and finalisation ;


### contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency , non - discrimination and equal treatment . those criteria should guarantee that tenders are assessed in conditions of effective competition , also where contracting entities require high - quality works , supplies and services that are optimally suited to their needs . as a result , contracting entities should be allowed to adopt as award criteria either ' the most economically advantageous tender ' or ' the lowest cost ' , taking into account that in the latter case they are free to set adequate quality standards by using technical specifications or contract performance conditions . ### contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency , non - discrimination and equal treatment . those criteria should guarantee that tenders are assessed in conditions of effective competition , also where contracting entities require high - quality works , supplies and services that are optimally suited to their needs . as a result , contracting entities should be allowed to adopt as the award criterion ' the most economically advantageous tender ' .


### under article 11 of the treaty on the functioning of the european union , environmental protection requirements must be integrated into the definition and implementation of the union policies and activities , in particular with a view to promoting sustainable development . this directive clarifies how the contracting entities may contribute to the protection of the environment and the promotion of sustainable development , whilst ensuring that they can obtain the best value for money for their contracts . ### under articles 9 , 10 and 11 of the treaty on the functioning of the european union , environmental protection requirements and the concept of the socially - sustainable production process must be integrated into the definition and implementation of the union policies and activities , in particular with a view to promoting sustainable development and ensuring , throughout the supply chain , compliance with health , public safety and social norms and national and eu labour legislation . this directive clarifies how the contracting agencies should contribute to the protection of the environment and the promotion of sustainable development and how they can use the discretionary power assigned to them to select technical specifications and award criteria with the aim of achieving socially - sustainable public procurement policy whilst ensuring the link with the subject - matter of the contract and that they can obtain the best value for money for their contracts .


### under article 11 of the treaty on the functioning of the european union , environmental protection requirements must be integrated into the definition and implementation of the union policies and activities , in particular with a view to promoting sustainable development . this directive clarifies how the contracting entities may contribute to the protection of the environment and the promotion of sustainable development , whilst ensuring that they can obtain the best value for money for their contracts . ### under article 9 , 10 and 11 of the treaty on the functioning of the european union , environmental protection requirements and social considerations must be integrated into the definition and implementation of the union policies and activities , in particular with a view to promoting sustainable development . this directive clarifies how the contracting entities may contribute to the protection of the environment and the promotion of sustainable development and how they can use their discretionary power to select technical specifications and award criteria with the aim of achieving sustainable public procurement , whilst ensuring the link to the subject matter of the contract and obtaining the best value for money for their contracts .


### the criteria of the label are set by a third party which is independent from the economic operator applying for the label . ### the requirements to be met in order to obtain the label are set by a third party which is independent from the economic operator applying for the label .


### it is of particular importance that the commission carry out appropriate consultations during its preparatory work , including at expert level . when preparing and drawing up delegated acts , the commission should ensure simultaneous , timely and appropriate transmission of relevant documents to the european parliament and the council . ### it is of particular importance that the commission carries out appropriate consultations during its preparatory work , including at expert level . when preparing and drawing up delegated acts , the commission should ensure simultaneous , timely and appropriate transmission of relevant documents to the european parliament and the council . the commission should provide full information and documentation on its meetings with national experts within the framework of the preparation and implementation of delegated acts . in this respect , the commission should ensure that the european parliament is duly involved , drawing on best practices from previous experience in other policy areas in order to create the best possible conditions for future scrutiny of delegated acts by the european parliament .


### requests to participate in procedures for the award of contracts may be made in writing or by telephone ; in the latter case , a written confirmation must be sent before expiry of the time limit set for their receipt ; ### requests to participate in procedures for the award of contracts may be made in writing ;


### 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 entities 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 entity should be entitled to reject the tender . rejection should be mandatory in cases where the contracting entity has established that the abnormally low price 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 entities should have the option of excluding tenders that significantly undercut the prices demanded by other tenderers and 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 entity should be entitled to reject the tender . rejection should be mandatory in cases where the contracting entity has established that the abnormally low price results from non - compliance with mandatory union legislation in the fields of social , labour or environmental law or international labour law provisions .


### there is no private participation in any of the contracting authorities involved . ### the task is carried out solely by the public authorities concerned , with no participation of a private party with the exception of contracting authorities participating in the cooperation as a public law body in the sense of article 2


### 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 costs such as social and / or 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 .


### contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency , non - discrimination and equal treatment . those criteria should guarantee that tenders are assessed in conditions of effective competition , also where contracting entities require high - quality works , supplies and services that are optimally suited to their needs . as a result , contracting entities should be allowed to adopt as award criteria either ' the most economically advantageous tender ' or ' the lowest cost ' , taking into account that in the latter case they are free to set adequate quality standards by using technical specifications or contract performance conditions . ### contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency , non - discrimination and equal treatment . these criteria should guarantee that tenders are assessed in conditions of effective competition , at the same time ensuring that contracting authorities require high - quality works , supplies and services that are optimally suited to their needs and which include factors linked to socially - sustainable production process criteria and involve disadvantaged persons . as a result , contracting entities should be allowed to adopt as award criteria ‘ the most economically advantageous tender’ , taking into account the fact that they must make reference to adequate quality standards by using technical specifications or contract performance conditions .