COUNCIL REGULATION (EEC) No 1461/93 of 8 June 1993 concerning access to public contracts for tenderers from the United States of America
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas on 25 May 1993 the European Economic Community and the United States of America signed an Agreement in the form of a Memorandum of Understanding on Government Procurement, hereinafter referred to as 'the Agreement', the purpose of which is to establish a framework of balanced rights and obligations to open up parts of their respective procurement markets with a view to achieving liberalization and expansion of trade;
Whereas the Community and the United States have also agreed to continue negotiations with a view to reaching a balanced, comprehensive agreement on procurement, with a high level of coverage concerning central government entities, sub-central government entities and other governmental entities, and a self-contained agreement on telecommunications procurement;
Whereas the United States, notwithstanding the important progress made in liberalizing procurement, has imposed sanctions under Title VII of its 1988 Trade Act which would prevent Community tenderers from competing for United States Federal procurement contracts which would not be covered by the Agreement; whereas the Community considers that such sanctions are unfair and unjustified;
Whereas it is therefore necessary for the Community to take appropriate measures to similarly restrict access for United States tenderers in respect of certain contracts awarded by certain public authorities; whereas such measures should not infringe the obligations of the Community and its Member States in respect of the Agreement and of the GATT Government Procurement Agreement;
Whereas provision must be made for exceptional cases where measures restricting access to Community public contracts for United States tenderers should not be applied for reasons of public interest and public security,
HAS ADOPTED THIS REGULATION:
Article 1
Without prejudice to the obligations of the Community and its Member States towards third countries, the public authorities listed in Annex I shall reject tenders made by suppliers, contractors and service providers established in and operating from the United States for:
(a) the award of a public supply contract within the meaning of Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts(1) the estimated value of which, net of VAT, is less than the threshold applicable to the GATT Government Procurement Agreement, currently ECU 125 576;
(b) the award of a public service contract within the meaning of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of the procedures for the award of public service contracts(2) the estimated value of which, net of VAT, is less than ECU 200 000 and for all contracts for services which appear on the list in Annex II;
(c) the award of a public works contract within the meaning of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts(3) , the estimated value of which, net of VAT, is less than ECU 5 000 000.
Article 2
A Member State may, nevertheless, permit its authorities referred to in Article 1 to accept such tenders when it makes a reasoned determination, on a case by case basis, that the admission of such tenders is necessary to:
(a) avoidlimiting competition to a single supplier, contractor or service provider,
(b) ensure continuity of supply or service provision;
(c) obtain goods or services with special characteristics which are not otherwise available;
(d) avoid disproportionate cost the public authority concerned;
(e) protect the security of that Member State.
Any such determinations shall be promptly communicated to the Commission by the Member State concerned. The Commission may consult the Advisory Committee for Public Contracts set up by Decision 71/306/EEC(4) .
Article 3
The Commission may raise such determinations as referred to in Article 2 hereof with the Committee set up under Article 113 of the Treaty with a view to ensuring, through appropriate measures, the coordinated application of the provisions of
Article 2
hereof throughout the Community.
Article 4
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 8 June 1993.