# EUR-Lex - 52014PC0358 - EN

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# 52014PC0358

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU, EURATOM) No 966/2012 on the financial rules applicable to the general budget of the Union /* COM/2014/0358 final - 2014/0180 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Following the adoption of Directive 2014/24/EU
of the European Parliament and of the Council of 26 February 2014 on public procurement
and repealing Directive 2004/18/EC[1]
(“the Directive”) and of Directive 2014/23/EU of the European Parliament and of
the Council of 26 February 2014 on the award of concession contracts[2], provision should be
made for the rules contained in these Directives to apply to contracts awarded
by the European institutions on their own account.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

As the present proposal merely implements
the new directives on public procurement and on award of concession contracts,
no public consultation was carried out.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

The modifications brought about to the text
of the Financial Regulation (FR) can be classified into three main groups.

A first series of changes is linked to the
alignment with the Directive. New provisions are introduced, such as market
consultation, the new innovation partnership as a procedure, the introduction
of compliance with environmental, social and labour law as a key requirement, evaluation
of criteria in no particular order, award methodology based on the most economically
advantageous tender. In addition, concessions for works and services are
introduced for the first time in the FR and are subject to the same types of
procedures as public contracts.

A second group of changes concern
the articles on exclusion. The grounds for exclusion are clarified and aligned
with the Directive as well as the possibility for the economic operator
concerned to take remedial measures. Exclusion is clearly separated from the
rejection from a given procedure to avoid confusion. A single system is set up
for increasing the protection of the Union financial interests which takes into
account the existing Central Exclusion Database. The aim of the system is to
ensure the early detection and prevention of risk as well as the publication of
information related to excluded economic operators. An exclusion panel is set
up to take exclusion decisions after the analysis of the case and it guarantees
the right of defence of economic operators.

A third group
of changes is linked to clarifications of the text and simplifications. Within
the limits of the Directive and below the thresholds where the Directive
applies, provisions concerning procurement
are reviewed in order to ensure consistency of the vocabulary used throughout
the Title and to clarify certain rules. These clarifications and
simplifications concern publicity measures above and below thresholds, requirements
for opening and evaluation, rejection of non-compliant tenders, bank guarantees
for works and complex services contracts, the fact that Union institutions are
considered central contracting authorities according to the Directive, the
reference to applicable Directive thresholds, electronic procedures and the
opening up of procurement by institutions to international organisations.

2014/0180 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Regulation (EU, EURATOM) No
966/2012 on the financial rules applicable to the general budget of the Union

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 322 thereof, in
conjunction with the Treaty establishing the European Atomic Energy Community,
and in particular Article 106a thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the Court
of Auditors[3],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Regulation (EU, Euratom)
No 966/2012 of the European Parliament and of the Council[4] lays down the rules for
the establishment and the implementation of the general budget of the European
Union. In particular, it also contains rules on public procurement. On 26
February 2014 Directive 2014/24/EU of the European Parliament and of the
Council[5]
on public procurement and Directive 2014/23/EU of the European Parliament and
of the Council[6]
on the award of concession contracts have been adopted. It is therefore
necessary to adapt Regulation (EU, Euratom) No 966/2012 in order to take into
account those Directives for contracts awarded by the Union institutions on
their own account.

(2)       Some definitions should be
added and certain technical clarifications should be made to ensure that the
terminology of Regulation (EU, Euratom) No 966/2012 is in line with that of
Directives 2014/24/EU and 2014/23/EU.

(3)       The ex-ante and ex-post
publicity measures necessary to launch a procurement procedure should be
clarified in the cases of contracts above and below the thresholds set out in
Directive 2014/24/EU.

(4)       The Regulation (EU,
Euratom) No 966/2012 should include an exhaustive list of all the procurement
procedures available to the Union institutions regardless of threshold.

(5)       In line with Directive
2014/24/EU, Regulation (EU, Euratom) No 966/2012 should allow for market
consultation prior to the launch of a procurement procedure.

(6)       A single system should be
set up for increasing the protection of the Union financial interests that
takes into account the existing Central Exclusion Database. The aim of the
system should be to ensure the early detection of risk as well as the
centralisation of excluded economic operators.

(7)       While the operation of the
early detection and exclusion system is the responsibility of the Commission
other institutions and bodies should participate directly in the early
detection of risks.

(8)       The rules for exclusion
from participation in procurement procedures should be improved in order to
strengthen the protection of the Union's financial interests.

(9)       The decision of exclusion
of an economic operator from, in particular, participation in procurement
procedures, and the imposition of financial penalty should be taken by a newly
created centralised panel, set up by the Commission. It should be composed of
the main concerned actors of the Commission and the institutions, bodies or Union
offices involved.

(10)     In line with Directive
2014/24/EU, Regulation (EU, Euratom) No 966/2012 should specify the list of
illegal activities which constitute ground for exclusion concerning in
particular child labour or other forms of trafficking
in human beings. It should be clarified that serious breach of a contract
is a ground for exclusion.

(11)     The economic operator should
not be subject to a decision of exclusion when it can demonstrate its
reliability by taking remedial measures. This possibility should not apply in
case of most severe criminal activities.

(12)     The newly created panel
should exclude the economic operator in case of grave professional misconduct,
fraud, corruption, participation in a criminal organisation, money laundering,
terrorist financing, terrorist related offences, child labour or other forms of
trafficking in human beings, and serious breach of contract on the basis of
evidence.

(13)     The panel should guarantee
the right of defence of economic operators. In the cases of fraud, corruption
or any other illegal activity affecting the financial interest of the Union which are not yet subject to a final judgement, the panel should be given the
possibility to defer the opportunity given to the economic operator to submit
its observations. This deferral should only be justified where there are
compelling legitimate grounds to preserve the confidentiality of the
investigation.

(14)     The economic operator
should also be excluded by the contracting authority when a final
administrative decision or a final judgment has been taken in case of grave
professional misconduct, non-compliance with the obligations related to the
payment of social security contributions or the payments of taxes, fraud,
corruption, participation in a criminal organisation, money laundering,
terrorist financing, terrorist related offences, child labour or other forms of
trafficking in human beings.

(15)     The criteria for exclusion should
be clearly separated from the criteria leading to a possible rejection from a
given procedure.

(16)     Any entity involved in the
implementation of the budget should share information about an economic
operator when they take a decision of exclusion under their own responsibility
in order to protect the Union’s financial interests.

(17)     The duration of exclusion
should be limited in time, in line with Directive 2014/24/EU.

(18)     In order to improve
deterrence of the exclusion and financial penalty rules, information related to
economic operators in exclusion situation should be published on the internet
site of the Commission in line with data protection requirements set out in
Regulation No 45/2001of the European Parliament and of the Council[7] and in Directive
95/46/EC of the European Parliament and of the Council[8].

(19)     In line with Directive
2014/24/EU, Regulation (EU, Euratom) No 966/2012 should allow to verify exclusion,
apply selection and award criteria, as well as to verify compliance with the procurement
documents in any order. As a result, it should be possible to reject tenders on
the basis of award criteria without prior check on exclusion or selection
criteria of the corresponding tenderer.

(20)     The award of contracts
should be carried out on the basis of the most economically advantageous tender
in line with Directive 2014/24/EU.

(21)     It should be clarified that
all tenders should be opened and evaluated for any procedure and regardless of
whether a specific opening committee or evaluation committee has been
appointed. An award decision should always be the outcome of an evaluation.

(22)     Given that criteria are applied
in no particular order, it is necessary to provide for the possibility for the rejected
tenderers who submitted compliant tenders to receive the characteristics and
relative advantages of the successful tender if they so request.

(23)     The possibility to require
contractual guarantees in the case of works, supplies and complex services should
be provided in order to guarantee compliance with substantial contractual obligations
in line with customary practice in these sectors to ensure proper contract
implementation throughout its duration.

(24)     It is necessary to provide
for the possibility to suspend performance of a contract in order to ascertain
whether errors, irregularities or fraud have occurred.

(25)     In order to determine which
thresholds and procedures are applicable to Union institutions, it is necessary
to clarify that Union institutions are to be considered as central contracting
authorities as defined in Directive 2014/24/EU.

(26)     It is appropriate to
include a reference to the two thresholds provided for in Directive 2014/24/EU applicable
to works and to supplies and services. These thresholds should also be applicable
to concession contracts for reasons of simplification as well as sound
financial management, considering the specificities of the Union institutions'
contracting needs. The update of these thresholds as provided for in Directive 2014/24/EU
would therefore be directly applicable to procurement by the Union institutions.

(27)     It is necessary to clarify
the conditions of application of the standstill period.

(28)     It is necessary to clarify
which economic operators have access to procurement by Union institutions depending
on their place of establishment and to provide explicitly for the possibility
of such access also to international organisations.

(29)     The application of
exclusion grounds should be extended to other instruments of execution of the
budget such as grants, prizes, financial instruments and remunerated experts as
well as in the case of indirect management.

(30)     Regulation (EU, Euratom) No
966/2012 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EU, Euratom) No 966/2012 is
amended as follows:

(1) 
In the first subparagraph of Article 60(2), point
(d) is replaced by the following:

“(d) apply appropriate rules and procedures for
providing financing from Union funds through procurement, grants, prizes and
financial instruments including the obligations set out in Article 108(5);”;

(2) 
The heading of title V of Part One is replaced
by the following:

“TITLE V

PUBLIC PROCUREMENT AND CONCESSIONS”;

(3) 
In Chapter 1 of Title V of Part One, the
sections 1, 2 and 3 are replaced by the following:

“Section 1

Scope and award principles

Article 101

Definitions for the purpose of this Title

1. ‘Procurement’ means the acquisition by means
of a contract of buildings, works, supplies or services by one or more
contracting authorities from economic operators chosen by those contracting
authorities.

2. ‘Public contract’ means a contract for
pecuniary interest concluded in writing between one or more economic operators
and one or more contracting authorities within the meaning of Articles 117 and
190, in order to obtain, against payment of a price paid in whole or in part
from the budget, the supply of movable or immovable assets, the execution of
works or the provision of services.

Public contracts comprise:

(a) building contracts;

(b) supply contracts;

(c) works contracts;

(d) service contracts.

3. ‘Concession contract’ means a contract for
pecuniary interest concluded in writing between one or more economic operators
and one or more contracting authorities within the meaning of Articles 117 and
190, in order to entrust the execution of works or the management of services
to an economic operator. The remuneration shall consist either solely in the
right to exploit the works or services or in that right together with payment. The
award of a works or services concession shall involve the transfer to the
concessionaire of an operating risk in exploiting those works or services
encompassing demand or supply risk or both. The concessionaire shall be deemed
to assume operating risk where, under normal operating conditions, it is not
guaranteed to recoup the investments made or the costs incurred in operating
the works or the services at stake.

4. ‘Contract’ means a public contract or a
concession contract.

5. ‘Framework contract’ means a public contract
concluded between one or more economic operators and one or more contracting
authorities, the purpose of which is to establish the terms governing contracts
to be awarded during a given period, in particular with regard to price and,
where appropriate, the quantity envisaged.

6. ‘Economic operator’ means any natural or
legal person or public entity which offers to supply products, execute works or
provide services.

7. ‘Procurement document’ means any document
produced or referred to by the contracting authority to describe or determine
elements of the procedure including the publicity measures set out in Article
103, tender specifications or descriptive document, draft contract and
invitation to tender.

8. Except for Articles 106 to 108, this Title
shall not apply to grants, or to contracts for technical assistance as defined
in accordance with Article 125(8) concluded with the EIB or the European
Investment Fund.

9. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
definition and scope of public and concession contracts, as well as framework
contracts and specific contracts.

Article 102

Principles applicable to procurement
procedures and contracts

1. All procurement procedures and contracts
shall respect the principles of transparency, proportionality, equal treatment
and non-discrimination.

2. All contracts shall be put out to
competition on the broadest possible basis, except when use is made of the
negotiated procedure referred to in point (d) of Article 104(1).

Contracting authorities shall not use framework
contracts improperly or in such a way that their purpose or effect is to
prevent, restrict or distort competition.

Section 2

Publicity

Article 103

Publicity measures

1. For procedures equal to or greater than the
thresholds under Article 118(1) or Article 190, the contracting authority shall
publish in the Official Journal of the European Union:

(a) a contract notice to launch a procedure,
except in the case of the procedure under Article 104(1)(d).

(b) a contract award notice on the results of
the procedure.

2. Procedures with a value below the thresholds
set out in Article 118 or Article 190 shall be advertised by appropriate means.

3. Publication of certain information on
contract award may be withheld where its release would impede law enforcement,
or otherwise be contrary to the public interest, would harm the legitimate
commercial interests of economic operators or might prejudice fair competition
between them.

4. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
requirements for the advertising of procedures and publication of notices.

Section 3

Procurement procedures

Article 104

Procurement procedures

1. Procurement procedures for awarding
concession or public contracts including framework contracts shall take one of
the following forms:

(a) open procedure;

(b) restricted procedure including through a
dynamic purchasing system;

(c) design contests;

(d) negotiated procedure;

(e) competitive dialogue;

(f) competitive procedure with negotiation;

(g) innovation partnership;

(h) procedures involving a call for expression
of interest.

2. Where a contract or a framework contract is
of interest to two or more institutions, executive agencies or bodies referred
to in Article 208 and 209, and whenever there is a possibility for realising
efficiency gains, the contracting authorities concerned may carry out the
procedure and the management of the subsequent direct or framework contract on
an interinstitutional basis under the lead of one of the contracting
authorities.

The bodies established by the Council under the
CFSP pursuant to Title V of the TEU may also participate in interinstitutional
procedures.

The terms of a framework contract may only
apply between those contracting authorities that are identified for this
purpose from the launch of the procurement procedure and those economic
operators party to the framework contract.

3. Where a contract or framework contract is
necessary for the implementation of a joint action between an institution and
one or more contracting authorities from Member States, the procurement procedure
may be carried out jointly by the institution and the contracting authorities,
in certain situations, which are to be specified in the delegated acts adopted
pursuant to this Regulation.

Joint procurement may be conducted with EFTA
states, and Union candidate countries, if this possibility has been
specifically provided for in a bilateral or multilateral treaty.

4. The contracting authority may use the
negotiated procedure only in cases provided for in the delegated acts adopted
pursuant to this Regulation.

5. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
types of procurement procedures, dynamic purchasing system, joint procurement,
low value contracts and payment against invoices.

Article 105

Preparation of a procedure

1. Before launching a procedure, the
contracting authority may conduct a preliminary market consultation with a view
to preparing the procurement.

2. In the procurement documents, the
contracting authority shall identify the subject matter of the procurement by
providing a description of its needs and the characteristics required of the
works, supplies or services to be bought and specify the applicable criteria.
It shall also indicate which elements define the minimum requirements to be met
by all tenders.

3. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
content of procurement documents and on the preliminary market consultation.

Article 106

Exclusion criteria

1. An economic operator shall be excluded from
participation in procurement procedures in cases of:

(a) bankruptcy, insolvency or winding-up
proceedings, assets being administered by the courts or a liquidator, arrangement
with creditors, suspension of business activities, or any analogous situation
arising from a similar procedure provided for in national laws or regulations;

(b) grave professional misconduct on the basis
of evidence as established by a decision of the panel referred to in Article
108 or by a final judgement or administrative decision;

(c) non-compliance with the obligations
relating to the payment of social security contributions or the payment of
taxes in accordance with the legal provisions of the country in which it is
established or with those of the country of the contracting authority or those
of the country where the contract is to be performed as established by a final
judgement or administrative decision;

(d) fraud, corruption, participation in a
criminal organisation, money laundering, terrorist financing, terrorist-related
offences, child labour or other forms of trafficking in human beings on the
basis of evidence established by the panel referred to in Article 108 or as
established by a final judgement;

(e) serious breach of a contract financed by
the Union’s budget following a decision of the panel referred to in Article 108;

(f) irregularity on the basis of evidence
established by a decision of the panel referred to in Article 108 or by a final
judgement or administrative decision.

2. The economic operator shall be excluded
where a person who is a member of the administrative, management or supervisory
body of that economic operator or has powers of representation, decision or
control is in a situation listed in paragraph 1.

3. Except for cases provided for in point (d)
of paragraph 1, the contracting authority may decide not to exclude the
economic operator concerned where it has taken remedial measures to demonstrate its reliability.

For a limited duration and pending the adoption
of remedial measures referred to in the first subparagraph, the contracting
authority may decide not to exclude the economic operator concerned where it is
indispensable to ensure the continuity of service. In
such cases, the contracting authority shall justify its decision.

4. Point (a) of paragraph 1 shall not apply in
the case of the purchase of supplies on particularly advantageous terms from
either a supplier which is definitively winding up its business activities or
the liquidators in an insolvency procedure, an arrangement with creditors, or a
similar procedure under national law.

5. The
economic operator shall declare that it is not in one of the situations of
exclusion listed in paragraph 1 of this Article or
that it is in one of the cases referred to in paragraph 3 of this Article. Where appropriate, the economic operator shall
provide the same declaration for an entity on whose
capacity it intends to rely. However,
the contracting authority may waive these requirements for very low value
contracts.

6. Whenever requested by the contracting
authority, the economic operator shall provide appropriate evidence that it is
not in one of the situations of exclusion listed in paragraph 1.

Whenever the contracting authority has doubts
that paragraph 2 is complied with, the economic operator shall upon request provide
information on persons that are members of its administrative, management or
supervisory body or that have powers of representation, decision or control. It
shall also provide upon request appropriate evidence that one or several of
those persons are not in one of the situations of exclusion listed in
paragraph 1.

7. The contracting authority may also verify whether a subcontractor is not in a situation of exclusion
listed in paragraph 1 of this Article or is in one of the cases referred
to in paragraph 3 of this Article.

8. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
definition of the situations of exclusion, remedial measures and on declaration
and evidence that an economic operator is not in one of the situations of
exclusion listed in paragraph 1 of this Article.

Article 107

Rejection from a given procedure

1. A contract shall not be awarded for a given
procedure to an economic operator who:

(a) is in one of the situations of exclusion
referred to in Article 106(1) and (2);

(b) has misrepresented the information required
as a condition of participation in the procedure;

(c) was previously involved in the preparation
of procurement documents where this entails a distortion of competition that
cannot be remedied otherwise.

2. The Commission shall be
empowered to adopt delegated acts in accordance with Article 210 concerning
detailed rules on the measures to avoid distortion of competition and on
declaration and evidence that an economic operator is
not in one of the situations of exclusion listed in paragraph 1 of this Article.

Article 108

The early detection and exclusion system

1. The
Commission shall set up and operate a system to protect the Union’s financial
interests. This system includes the early detection of risks threatening the
Union’s financial interests, the exclusion of economic operators which are in
one of the situations of exclusion listed in Article 106(1) and the imposition
of a financial penalty to an economic operator who is in one of the situations
of exclusion listed in points (b), (d), (e) and (f) of Article 106(1).

2. The early detection of risks threatening the
 Union’s financial interests is based on the transmission of information by any
of the following:

(a) by OLAF in accordance with Regulation (EU,
Euratom) No 883/2013 of the European Parliament and of the Council* where an OLAF
investigation in progress shows that it might be appropriate to take
precautionary measures to protect the financial interests of the Union;

(b) by an authorising officer of the Commission
or of an executive agency in case of presumed grave professional misconduct, irregularity,
fraud or serious breach of contract;

(c) by another institution, body or a European
office in case of presumed grave professional misconduct, irregularity, fraud
or serious breach of contract.

The information referred to in points (a), (b)
and (c) of the first subparagraph shall be transmitted without delay through the accounting system of the
Commission to the authorising officers of the
Commission and of its executive agencies, all other institutions, bodies and European offices in order to allow them to take preventive temporary and conservatory
measures in the implementation of the budget. Those measures shall not go
beyond what is foreseen in the
terms and conditions of the procurement documents.

3. For
the situations referred to in points (b), (d), (e) and (f) of Article 106(1), a
panel shall be set up by the Commission at the request of an authorising
officer of the Commission or of an executive agency or a joint panel at the
request of another institution, body or European office. The panel, on behalf of the Commission and its
executive agencies, other institutions, bodies or
European offices, shall apply the following
procedure:

(a) the
requester shall refer the case to the panel with the necessary information and
the situation of exclusion;

(b) the panel shall notify without delay the
economic operator about the facts in question and their preliminary
classification in law, which may qualify as a situation of exclusion listed in
Article 106(1) and/or may lead to the imposition of a financial penalty;

(c) where the request of the authorising
officer is based, inter alia, on the information provided by OLAF, the Office
shall cooperate with the panel in accordance with Regulation (EU, Euratom) No 883/2013;

(d) the panel may decide to exclude the
economic operator provisionally for a period of up to 6 months;

(e) before taking a provisional or final
decision, the panel shall give the economic operator the opportunity to submit
its observations;

(f) the
panel may take an exclusion decision including as regards the duration of the
exclusion and/or may impose a financial penalty on the basis of evidence and information
received taking into account the principle of proportionality;

(g) the panel may revise
its decision during the exclusion period on request from an excluded economic
operator where this operator has taken remedial measures sufficient to
demonstrate its reliability or provides new elements demonstrating that the situation
of exclusion as referred to in Article 106(1) no longer exists;

(h) in order to improve deterrence of the
exclusion or financial penalty, the Commission shall publish the information
related to the decision of the panel on its internet site;

(i) the decision of the panel shall be
communicated to the economic operator.

In the cases set out in points (d) and (f) of Article
106(1) the notification referred to in point (b) of the first subparagraph of
this paragraph and the opportunity referred to in point (e) of the first
subparagraph of this paragraph may be exceptionally deferred where there are
compelling legitimate grounds to preserve the confidentiality of the
investigation or of national judicial proceedings.

In exceptional cases, including where natural
persons are concerned or where it is necessary to preserve the confidentiality
of the investigation or of a national judicial proceeding, the panel may decide
not to publish the exclusion or financial penalty as set out in point (h) of
the first subparagraph of this paragraph with due consideration to the right to
privacy and with due observance of the rights provided for in Regulation (EC)
No 45/2001.

The economic operator excluded by decision of
the panel or subject to a financial penalty may complain to the European
Ombudsman and seek judicial review.

4. The duration of exclusion shall not exceed
any of the following:

(a) the duration if any set by the final
judgement;

(b) five years for the case referred to in point
(d) of Article 106(1);

(c) three years for the cases referred to in
points (b), (e) and (f) of Article 106(1).

An economic operator shall be excluded as long
as it is in one of the situations referred to in points (a) and (c) of Article
106(1)

The first subparagraph of this paragraph shall
not apply where the exclusion is communicated by authorities and entities
referred to in paragraph 5 that are not subject to Directive 2014/24/EU of the
European Parliament and of the Council**.

5. The authorities of the Member States and third countries as well as the ECB, the EIB, the European Investment Fund and the
entities participating in the implementation of the budget in accordance with
Articles 58 and 61 shall:

(a) communicate without delay to the Commission
information on economic operators, only for final judgement or administrative
decisions taken under their own responsibility, that are in one of the
situations referred to in points (a), (b), (c), (d) or (f) of Article 106(1)
including the duration of exclusion;

(b) verify whether there is an exclusion in the
system and take it into account when awarding contracts associated with the
implementation of the budget.

As part of the measures referred to under point
(c) of Article 60(1), the Commission may also exclude an economic operator
and/or impose financial penalties under the conditions laid down in paragraph 3
of this Article.

6. The Commission shall
publish information related to the exclusion of economic operators, as received
from the authorities referred to in paragraph 5, on its internet site. The
Commission may publish exclusions received from other sources.

7. The Commission shall inform annually the
European Parliament and the Council of the total number of ongoing exclusions
and of new decisions.

8. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the Union’s
system for the protection of the Union's financial interests, including its standardised
procedures and the details subject to publication, the time limits to exclude,
the organisation of the panel, the duration of exclusion and financial
penalties.

Article 110

Award of contracts

1. Contracts shall be awarded on the basis of
award criteria provided that the contracting authority has verified the
following cumulative conditions:

(a) the tender complies with the minimum requirements
specified in the procurement documents;

(b) the candidate or tenderer is not excluded
under Article 106 or rejected under Article 107;

(c) the candidate or tenderer meets the
selection criteria specified in the procurement documents.

2. The contracting authority shall base the
award of contracts on the most economically advantageous tender.

3. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning details on the
selection criteria, the award criteria and the most economically advantageous
tender. Furthermore, the Commission shall be empowered to adopt delegated acts
in accordance with Article 210 concerning the documents that give evidence of legal
capacity, economic and financial capacity and the evidence of technical and
professional capacity and detailed rules on electronic auctions and abnormally
low tenders.

Article 111

Submission and evaluation

1. The arrangements for submitting tenders
shall be such as to ensure that there is genuine competition and that the
contents of tenders remain confidential until they are all opened
simultaneously.

2. The Commission shall ensure by appropriate
means and in application of Article 95 that tenderers may enter the contents of
the tenders and any supporting evidence in an electronic format
("e-procurement").

The Commission shall report regularly to the
European Parliament and the Council on the progress of the implementation of
this provision.

3. If deemed appropriate and proportionate, the
contracting authority may require tenderers to submit a guarantee in advance to
make sure that the tenders submitted will not be withdrawn.

4. The contracting authority shall open all
requests to participate and tenders. It shall reject:

(a) 
requests to participate which do not comply with
the time-limit for receipt;

(b) 
tenders which do not comply with the time-limit
for receipt or which were received already open by the contracting authority.

5. The contracting authority shall evaluate all
requests to participate or tenders not rejected during the opening phase laid
down in paragraph 4 on the basis of the criteria specified in the procurement
documents with a view to award the contract or to proceed with an electronic
auction.

6. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
time limits for receipt of tenders and requests to participate, access to
procurement documents, the time limits to provide additional information, the
time limits in urgent cases as well as on the arrangements for submission of
tenders and electronic catalogues. Furthermore, the Commission shall be
empowered to adopt delegated acts in accordance with Article 210 concerning the
possibility of requesting a tender guarantee, the opening and evaluation of
tenders and requests to participate and the establishment of opening and evaluation
committees.

Article 112

Contacts during the procedure

1. While the procurement procedure is under
way, all contacts between the contracting authority and candidates or tenderers
shall satisfy conditions ensuring transparency and equal treatment. After the
time limit for receipt of tenders, these contacts shall not lead to changes to
the procurement documents or to substantial changes to the terms of the
submitted tender, except where a procedure set out in Article 104(1)
specifically allows for these possibilities.

2. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning contacts that are
allowed between the contracting authority and candidates or tenderers during
the procurement procedure.

Article 113

Award decision and information of candidates
and tenderers

1. The authorising officer responsible shall
decide to whom the contract is to be awarded, in compliance with the selection
and award criteria specified in the procurement documents.

2. The contracting authority shall notify all
candidates or tenderers whose requests to participate or tenders are rejected
of the grounds on which the decision was taken, as well as the duration of the
standstill period referred to in Article 118(2).

For the award of specific contracts under a framework
contract with reopening of competition, the contracting authority shall inform
the tenderers of the result of the evaluation.

3. The contracting authority shall inform each
tenderer who is not in a situation of exclusion, whose tender is compliant with
the procurement documents and who makes a request in writing of any of the
following:

(a) the characteristics and relative advantages
of the successful tender and the name of the tenderer to whom the contract is
awarded, except in the case of a specific contract under a framework contract with
reopening of competition;

(b) the progress of negotiation and dialogue
with tenderers.

However, the contracting authority may decide
to withhold certain information where its release would impede law enforcement,
would be contrary to the public interest or would prejudice the legitimate
commercial interests of economic operators or might prejudice fair competition
between them.

4. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the evaluation
report, the award decision and information of candidates and tenderers.

Article 114

Cancellation of the procurement procedure

The contracting authority may, before the
contract is signed, cancel the procedure without the candidates or tenderers
being entitled to claim any compensation.

The decision shall be justified and be brought
to the attention of the candidates or tenderers as soon as possible.

__________________

- Regulation (EU,
Euratom) No 883/2013 of the European Parliament and of the Council of 11
September 2013 concerning investigations conducted by the European Anti-Fraud
Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European
Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ
L 248, 18.9.2013, p. 1).

** Directive
2014/24/EU of the European Parliament and of the Council of 26 February 2014 on
public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.03.2014,
p.65).“;

(4) 
In chapter 1 of Title V of Part One, Section 4
is replaced by the following:

“Section 4

Performance of the contract, guarantees and
corrective actions

Article 114a

Performance and modifications of the
contract

1. Performance of the contract may not start
before the contract is signed.

2. The contracting authority may modify a
contract or framework contract substantially without a procurement procedure
only in cases provided for in the delegated acts adopted pursuant to this
Regulation and provided the substantial modification does not alter the subject
matter of the contract or framework contract.

3. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
signature and modifications of contracts.

Article 115

Guarantees

1. Other than in the case of low value
contracts, the contracting authority may, if it deems it appropriate and
proportionate on a case-by-case basis and subject to a risk-analysis, require
contractors to submit a guarantee in order to do any of the following:

(a) limit the financial risks connected with
payment of pre-financing;

(b)
ensure compliance with substantial contractual obligations in the case of works,
supplies or complex services;

(c) ensure full performance of the contract
after payment of the balance.

2. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules,
including criteria for risk analysis, on the guarantees that are required from
contractors.

Article 116

Substantial errors, irregularities or fraud

1. Where the procedure proves to have been
subject to substantial errors, irregularities or fraud, the contracting
authority shall suspend it and may take whatever measures necessary, including its
cancellation.

2. Where, after the signature of the contract,
the procedure or the performance of the contract prove to have been subject to
substantial errors, irregularities or fraud, the contracting authority may
suspend performance of the contract or, where appropriate, terminate it.

Performance of contracts may also be suspended
in order to verify whether presumed substantial errors, irregularities or fraud
have occurred.

Where substantial errors, irregularities or
fraud are attributable to the contractor, the contracting authority may, in
addition, refuse to make payments or recover amounts unduly paid, in proportion
to the seriousness of the substantial errors, irregularities or fraud.

3. OLAF shall exercise
the power conferred on the Commission by Council Regulation (Euratom, EC) No
2185/96 of 11 November 1996 concerning on-the-spot checks and inspections
carried out by the Commission in order to protect the European Communities'
financial interests against fraud and other irregularities (1) to carry out on-the-spot
inspections and checks in the Member States and, in accordance with the
cooperation and mutual assistance agreements in force, in third countries and
on the premises of international organisations.

4. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
suspension of a contract in the event of substantial errors, irregularities or fraud
and the definition of substantial error or irregularity.

__________________

(5) 
(1) OJ L 292, 15.11.1996, p. 2. ”;Articles 117 and 118 are amended as follows:

“Article 117

The contracting authority

1. The institutions shall be deemed to be
central contracting authorities in the meaning of point (2) of Article 2(1) of Directive
2014/24/EU in the case of contracts awarded on their own account. They shall
delegate, in accordance with Article 65 of this Regulation, the necessary
powers for the exercise of the function of contracting authority.

2. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
delegation of the function of contracting authority.

Article 118

Thresholds applicable and standstill period

1. To award public and concession contracts, the
contracting authority shall take into account the thresholds laid down in points
(a) and (b) of Article 4 of Directive 2014/24/EU when selecting a procedure set
out in Article 104(1) of this Regulation. These thresholds shall determine the
publication arrangements set out in paragraphs (1) and (2) of Article 103 of
this Regulation.

2. Subject to exceptions and conditions to be
specified in the delegated acts adopted pursuant to this Regulation, in the
case of contracts above the thresholds set out in paragraph 1, the contracting
authority shall not sign the contract or framework contract with the successful
tenderer until a standstill period has elapsed.

3. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on
separate contracts and contracts with lots, estimating the value of public and
concession contracts and the standstill period before the signature of the
contract.”;

(6) 
Article 119 and 120 are replaced by the
following:

“Article 119

Rules on access to procurement

Participation in procurement procedures shall
be open on equal terms to all natural and legal persons within the scope of the
Treaties and to all natural and legal persons established in a third country
which has a special agreement with the Union in the field of public procurement
under the conditions laid down in that agreement. It shall also be open to
international organisations.

The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
evidence to be provided in relation to access to procurement.

Article 120

Procurement rules of the World Trade
Organisation

Where the Plurilateral Agreement on Government
Procurement concluded within the World Trade Organisation applies, the
procurement procedure shall also be open to economic operators established in
the States which have ratified that agreement, under the conditions laid down
therein.”;

(7) 
in Article 131, paragraph 4 is replaced by the following:

“4. Paragraphs 1, 2, 3 and 6 of Article 106 and
Articles 107 and 108 shall also apply to grant applicants. Applicants shall declare
that they are not in one of the situations referred to in Article 106(1) and Article
107 or that they are in one of the cases referred to in Article 106(3). Article 108 shall also apply to beneficiaries.”;

(8) 
in Article 131, paragraph 5 is deleted.

(9) 
in Article 131, paragraph 6 is replaced by the
following:

“6. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
arrangements for grant applications, evidence of not falling within an
exclusion situation, applicants without legal personality, legal persons
forming one applicant, exclusion decisions and financial penalties, eligibility
criteria and low value grants.”;

(10) 
in paragraph 2 of Article 138 the third
subparagraph is replaced by the following:

“The rules of the contest shall at least lay
down the conditions for participation including the exclusion criteria provided
for in paragraphs 1, 2 and 3 of Article 106 and Article 107, the award
criteria, the amount of the prize, the payment arrangements and the right to take
exclusion decisions and to impose financial penalties.”;

(11) 
in Article 139, the following paragraph 5a is inserted:

“5a. No financial support shall be granted to
dedicated investment vehicles, to financial intermediaries and to final
recipients which are in one of the situations referred to in points (a), (b)
and (d) of Article 106(1) and points (b) and (c) of Article 107(1).”;

(12) 
in Article 183 paragraph 4 is replaced by the
following:

“4. When participating in grant or procurement
procedures in accordance with paragraph 1 of this Article, the JRC shall not be
subject to the conditions laid down in Article 106, points (a) and (b) of
Article 107(1), Article 108 and Article 131(4) regarding provisions on
exclusion and penalties in relation to procurement and grants.”;

(13) 
Articles 190 and 191 are replaced by the
following:

“Article 190

External action procurement

1. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on
external action procurement.

2. The provisions of Chapter 1 of Title V of
Part One relating to the general provisions on procurement shall be applicable
to contracts covered by this Title subject to the special provisions relating
to thresholds and the arrangements for awarding external contracts to be laid
down in the delegated acts adopted pursuant to this Regulation. Articles 117 to
120 shall not be applicable to the procurement set out in this Chapter.

This Chapter shall apply to:

(a) procurement where the Commission does not
award contracts for its own account;

(b) procurement by entities or persons
entrusted pursuant to point (c) of Article 58(1) where provided for in the
financing agreement referred to in Article 189.

3. The procurement procedures shall be laid
down in the financing agreements provided for in Article 189.

4. This Chapter shall not apply to actions
under sector-specific basic acts relating to humanitarian crisis management
aid, to civil protection operations and to humanitarian aid operations.

Article 191

Rules on access to procurement

1. Participation in procurement procedures
shall be open on equal terms to all persons within the scope of the Treaties
and to any other natural or legal person in accordance with the specific
provisions in the basic instruments governing the cooperation sector concerned.
It shall also be open to international organisations.

2. In the cases referred to in Article 54(2),
it may be decided, under exceptional circumstances duly justified by the
authorising officer responsible, to allow third-country nationals other than
those referred to in paragraph 1 of this Article to tender for contracts.

3. Where an agreement on widening the market
for procurement of goods or services to which the Union is party applies, the
contracts for procurement financed by the budget shall also be open to natural
and legal persons established in a third country other than those referred to
in paragraphs 1 and 2, under the conditions laid down in that agreement.

4. The Commission shall be empowered to adopt
delegated acts in accordance with Article 210 concerning detailed rules on the
access to procurement procedures.”;

(14) 
in Article 204 the following paragraph is added:

“Experts shall be subject to paragraphs 1, 3
and 5 of Article 106, the first subparagraph of Article 106(6), Article 106(7),
and Articles 107 and 108.”.

Article 2

This Regulation shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.

This Regulation shall be binding
in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament                        For
the Council

The President                                                 The
President

[1]               Directive 2014/24/EU of the European Parliament and
of the Council of 26 February 2014 on public procurement and repealing
Directive 2004/18/EC (OJ L 94, 28.03.2014, p.65)

[2]               Directive 2014/23/EU of the European Parliament and
of the Council of 26 February 2014 on the award of concession contracts (OJ L
94, 28.03.2014, p.1)

[3]               OJ C , , p. .

[4]               Regulation (EU, EURATOM) No
966/2012 of the European Parliament and of the Council of 25 October 2012 on
the financial rules applicable to the general budget of the Union and repealing
Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298. 26.10.2012, p- 1).

[5]               Directive 2014/24/EU of the European Parliament and
of the Council of 26 February 2014 on public procurement and repealing
Directive 2004/18/EC (OJ L 94, 28.03.2014, p.65).

[6]               Directive 2014/23/EU of the European Parliament and
of the Council of 26 February 2014 on the award of concession contracts (OJ L
94, 28.03.2014, p.1).

[7]               Regulation (EC) No 45/2001 of 18 December 2000 of the
European Parliament and of the Council on the protection of individuals with
regard to the processing of personal data by the Community institutions and
bodies and on the free movement of such data (OJ L 8, 12.1.2001, p.1).

[8]               Directive 95/46/EC of the European Parliament and of
the Council of
24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free movement of such data (OJ L 281, 23/11/1995 p. 31)