COMMISSION REGULATION (EC) No 1150/2009
of 10 November 2009
amending Regulation (EC) No 1564/2005 as regards the standard forms for the publication of notices in the framework of public procurement in accordance with Council Directives 89/665/EEC and 92/13/EEC
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (1), and in particular Article 3a thereof,
Having regard to Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (2), and in particular Article 3a thereof,
Having regard 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 (3), and in particular Article 44(1) thereof,
Having regard to 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 (4), and in particular Article 36(1) thereof,
After consulting the Advisory Committee for Public Contracts,
Whereas:
(1)
Directives 89/665/EEC and 92/13/EEC as amended by Directive 2007/66/EC of the European Parliament and of the Council (5), allow Member States to provide for a reduction of the time limit for applying for ineffectiveness of a public contract where the contracting entity or contracting authority has published a contract award notice in accordance with Directive 2004/17/EC or Directive 2004/18/EC, respectively, without prior publication of a contract notice, provided that the contract award notice includes justification of the decision to award the contract without prior publication of a contract notice in the Official Journal of the European Union.
(2)
The standard forms for contract award notices are set out in Annexes III and VI to Commission Regulation (EC) No 1564/2005 of 7 September 2005 establishing standard forms for the publication of notices in the framework of public procurement procedures pursuant to Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council (6). In order to ensure the full effectiveness of Directives 89/665/EEC and 92/13/EEC as amended by Directive 2007/66/EC, the standard forms of those notices should be adapted so that contracting entities and contracting authorities could include the justification referred to in Article 2f of Directives 89/665/EEC and 92/13/EEC in those notices.
(3)
Directives 89/665/EEC and 92/13/EEC provide for a notice for voluntary ex ante transparency to be used in order to ensure pre-contractual transparency on a voluntary basis. It is necessary to establish a standard form for that notice.
(4)
Regulation (EC) No 1564/2005 should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 1564/2005 is amended as follows:
1.
The title is replaced by the following:
2.
after the first citation, the following legal bases are inserted:
‘Having regard to Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (7), and in particular Article 3a thereof,
Having regard to Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (8), and in particular Article 3a thereof,
3.
the following Article 2a is inserted:
‘Article 2a
Contracting authorities and contracting entities shall, from the date of entry into force of the respective national measures transposing Directive 2007/66/EC of the European Parliament and of the Council (9) and from 21 December 2009 at the latest, use, for the publication of the notice referred to in Article 3a of Directives 89/665/EEC and 92/13/EEC in the Official Journal of the European Union, the standard form set out in Annex XIV to this Regulation.
4.
Annex III is replaced by the text set out in Annex I to this Regulation;
5.
Annex VI is replaced by the text set out in Annex II to this Regulation;
6.
The text set out in Annex III to this Regulation is added as Annex XIV.
Article 2
This Regulation shall enter into force on the third day following 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, 10 November 2009.