COUNCIL DIRECTIVE 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 100a thereof,
Having regard to the proposal from the Commission(1) ,
In cooperation with the European Parliament(2) ,
Having regard of the opinion of the Economic and Social Committee(3) ,
Whereas Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts(4) has been amended on a number of occasions; whereas, on the occasion of further amendments, the said Directive should, for reasons of clarity be recast;
Whereas it seems important in particular to align the drafting of the present Directive, as far as possible, on the provisions on public procurement as contained in Council Directive 93/37/EEC concerning the coordination of procedures for the award of public works contracts(5) and Council Directive 92/50/EEC of 18 June 1992, relating to the coordination of procedures on the award of public service contracts(6) ;
Whereas the alignments to be introduced relate, in particular, to the introduction of the functional definition of contracting authorities, the option of recourse to the open or restricted procedure, the requirement to justify the refusal of candidates or tenderers, the rules for drawing up reports on the execution of the different award procedures, the conditions for referring to the common rules in the technical field, publication and participation, clarifications concerning award criteria and the introduction of the Advisory Committee procedure;
Whereas it is also necessary to introduce some drafting changes aimed at improving the clarity of existing provisions;
Whereas the attainment of freedom of movement of goods in respect of public supply contracts awarded in Member States on behalf of the State, or regional or local authorities or other bodies governed by public law entails not only the abolition of restrictions but also the coordination of national procedures for the award of public supply contracts;
Whereas such coordination should take into account as far as possible the procedures and administrative practices in force in each Member State;
Whereas the Community is a Party to the Agreement on government procurement(7) , hereinafter referred to as 'the GATT Agreement';
Whereas Annex I to this Directive sets out the lists of contracting authorities subject to the GATT Agreement; whereas it is necessary to update this Annex in accordance with amendments submitted by the Member States;
Whereas this Directive does not apply to certain supply contracts which are awarded in the water, energy, transport and telecommunication sectors covered by Directive 90/531/EEC(8) ;
Whereas, without prejudice to the application of the threshold set out for supply contracts subject to the GATT Agreement, supply contracts of less than ECU 200 000 may be exempted from competition as provided under this Directive and it is appropriate to provide for their exemption from coordination measures;
Whereas provision must be made for exceptional cases where measures concerning the coordination of procedures may not necessarily be applied, but whereas such cases must be expressly limited;
Whereas the negotiated procedure should be considered to be exceptional and therefore applicable only in limited cases;
Whereas it is necessary to provide common rules in the technical field which take account of the Community policy on standards and specifications;
Whereas, to ensure development of effective competition in the field of public contracts, it is necessary that contract notices drawn up by the contracting authorities of Member States be advertised throughout the Community; whereas the information contained in these notices must enable suppliers established in the Community to determine whether the proposed contracts are of interest to them; whereas, for this purpose, it is appropriate to give them adequate information about the goods to be supplied and the conditions attached to their supply; whereas, more particularly, in restricted procedures advertisement is intended to enable suppliers of Member States to express their interest in contracts by seeking from the contracting authorities invitations to tender under the required conditions;
Whereas additional information concerning contracts must, as is customary in Member States, be given in the contract documents for each contract or else in an equivalent document;
Whereas it is necessary to provide common rules for participation in public supply contracts, including both qualitative selection criteria and criteria for the award of the contracts;
Whereas it would be appropriate to enable certain technical conditions concerning notices and statistical reports required by this Directive to be adapted in the light of changing technical requirements; whereas Annex II to this Directive refers to a nomenclature, whereas the Community may, as required, revise or replace its common nomenclature and whereas it is necessary to make provision for the possibility of adapting the reference made to the nomenclature accordingly;
Whereas this Directive should not affect the obligations of the Member States concerning the deadlines for transposition into national law and for application indicated in Annex V,
HAS ADOPTED THIS DIRECTIVE:
TITLE I GENERAL PROVISIONS
Article 1
For the purpose of this Directive:
(a) 'public supply contracts' are contracts for pecuniary interest concluded in writing involving the purchase, lease rental or hire purchase, with or without option to buy, of products between a supplier (a natural or legal person) and one of the contracting authorities defined in (b) below. The delivery of such products may in addition include siting and installation operations;
(b) 'contracting authorities' shall be the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or bodies governed by public law;
'a body governed by public law' means any body:
- established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character, and
- having legal personality, and
- financed, for the most part, by the State, or regional or local authorities, or other bodies governed by public law, or subject to management supervision by those bodies, or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law;
the lists of bodies or of categories of such bodies governed by public law which fulfil the criteria referred to in the second subparagraph are set out in Annex I to Directive 93/37/EEC. These lists shall be as exhaustive as possible and may be reviewed in accordance with the procedure laid down in Article 35 of Directive 93/37/EEC;
(c) a supplier who submits a tender shall be designated by the term 'tenderer', and one who has sought an invitation to take part in a restricted procedure by the term 'candidate';
(d) 'open procedures' are those national procedures whereby all interested suppliers may submit tenders;
(e) 'restricted procedures' are those national procedures whereby only those suppliers invited by the contracting authorities may submit tenders;
(e) 'negotiated procedures' are those national procedures whereby contracting authorities consult suppliers of their choice and negotiate the terms of the contract with one or more of them.
Article 2
1. This Directive shall not apply to:
(a) contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Directive 90/531/EEC or fulfilling the conditions in Article 6 (2) of that Directive;
(b) supply contracts which are declared secret or the execution of which must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member States concerned or when the protection of the basic interests of the Member State's security so requires.
2. When a contracting authority within the meaning of Article 1 (b) grants to a body other than a contracting authority - regardless of its legal status - special or exclusive rights to engage in a public service activity, the instrument granting this right shall stipulate that the body in question must observe the principle of non-discrimination by nationality when awarding public supply contracts to third parties.
Article 3
Without prejudice to Articles 2, 4 and 5 (1), this Directive shall apply to all products to which Article 1 (a) relates, including those covered by contracts awarded by contracting authorities in the field of defence, except for the products to which Article 223 (1) (b) of the EEC Treaty applies.
Article 4
This Directive shall not apply to public supply contracts governed by different procedural rules and awarded:
(a) in pursuance of an international agreement concluded in conformity with the Treaty, between a Member State and one or more non-member countries and covering supplies intended for the joint implementation or exploitation of a project by the signatory States; all agreements shall be communicated to the Commission, which may consult the Advisory Committee for Public Contracts set up by Decision 71/306/EEC(9) ;
(b) to undertakings in a Member State or a non-member country in pursuance of an international agreement relating to the stationing of troops;
(c) pursuant to the particular procedure of an international organization.
Article 5
1. (a) Titles II, III and IV and Articles 6 and 7 shall apply to public supply contracts:
- awarded by the contracting authorities referred to in Article 1 (b), including contracts awarded by the contracting authorities listed in Annex I in the field of defence in so far as the products not covered by Annex II are concerned, provided that the estimated value net of VAT is not less than ECU 200 000,
- awarded by the contracting authorities listed in Annex I and whose estimated value net of VAT is not less than the threshold fixed pursuant to the GATT Agreement; in the case of contracting authorities in the field of defence, this shall apply only to contracts involving products covered by Annex II;
(b) this Directive shall apply to public supply contracts for which the estimated value equals or exceeds the threshold concerned at the time of publication of the notice in accordance with Article 9 (2);
(c) the value of the thresholds in national currencies and the threshold of the GATT Agreement expressed in ecus shall in principle be revised every two years with effect from 1 January 1988. The calculation of these values shall be based on the average daily values of these currencies expressed in ecus and of the ecu expressed in SDRs over the 24 months terminating on the last day of August immediately preceding the 1 January revision;
the method of calculation laid down in the present subparagraph shall be reviewed, on the Commission's, initiative, by the Advisory Committee for Public Contracts, in principle two years after its initial application;
(d) the threshold laid down in subparagraph (c) and the value of the thresholds in national currencies and, as regards the threshold fixed by the GATT Agreement, its threshold expressed in ecus shall be published in the Official Journal of the European Communities at the beginning of the month of November which follows the revision laid down in the first part of subparagraph (c).
2. In the case of contracts for the lease, rental or hire purchase of products, the basis for calculating the estimated contract value shall be:
- in the case of fixed-term contracts, where their term is 12 months or less the total contract value for its duration, or, where their term exceeds 12 months, its total value including the estimated residual value;
- in the case of contracts for an indefinite period or in cases where there is doubt as to the duration of the contracts the monthly value multiplied by 48.
3. In the case of regular contracts or of contracts which are to be renewed within a given time, the estimated contract value shall be established on the basis of:
- either the actual aggregate value of similar contracts concluded over the previous fiscal year or 12 months, adjusted where possible, for anticipated changes in quantity or value over the 12 months following the initial contract;
- or the estimated aggregate value during the 12 months following the first delivery or during the term of the contract, where this is greater than 12 months.
The selection of the valuation method shall not be used with the intention of avoiding the application of this Directive.
4. If a proposed procurement of supplies of the same type may lead to contracts being awarded at the same time in separate parts, the estimated value of the total sum of these parts must be taken as the basis for the application of paragraphs 1 and 2.
5. In the case where a proposed procurement specifies option clauses, the basis for calculating the estimated contract value shall be the highest possible total of the purchase, lease, rental, or hire-purchase permissible, inclusive of the option clauses.
6. No procurement requirement for a given quantity of supplies may be split up with the intention of avoiding the application of this Directive.
Article 6
1. In awarding public supply contracts the contracting authorities shall apply the procedures defined in Article 1 (d), (e) and (f), in the cases set out below.
2. The contracting authorities may award their supply contracts by negotiated procedure in the case of irregular tenders in response to an open or restricted procedure or in the case of tenders which are unacceptable under national provisions that are in accordance with provisions of Title IV, in so far as the original terms for the contract are not substantially altered. The contracting authorities shall in these cases publish a tender notice unless they include in such negotiated procedures all the enterprises satisfying the criteria of Articles 20 to 24 which, during the prior open or restricted procedure, have submitted tenders in accordance with the formal requirements of the tendering procedure.
3. The contracting authorities may award their supply contracts by negotiated procedure without prior publication of a tender notice, in the following cases:
(a) in the absence of tenders or appropriate tenders in response to an open or restricted procedure insofar as the original terms of the contract are not substantially altered and provided that a report is communicated to the Commission;
(b) when the products involved are manufactured purely for the purpose of research, experiment, study or development, this provision does not extend to quantity production to establish commercial viability or to recover research and development costs;
(c) when, for technical or artistic reasons, or for reasons connected with protection of exclusive rights, the products supplied may be manufactured or delivered only by a particular supplier;
(d) in so far as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities in question, the time limit laid down for the open, restricted or negotiated procedures referred to in paragraph 2 cannot be kept. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authorities;
(e) for additional deliverers by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance. The length of such contracts as well as that of recurrent contracts may, as a general rule, not exceed three years.
4. In all other cases, the contracting authorities shall award their supply contracts by the open procedure or by the restricted procedure.
Article 7
1. The contracting authority shall, within 15 days of the date on which the request is received, inform any eliminated candidate or tenderer who so requests of the reasons of rejection of his application or his tender, and, in the case of a tender, the name of the successful tenderer.
2. The contracting authority shall inform candidates or tenderers who so request of the grounds on which it decided not to award a contract in respect of which a prior call for competition was made, or to recommence the procedure. It shall also inform the Office for Official Publications of the European Communities of that decision.
3. For each contract awarded the contracting authorities shall draw up a written report which shall include at least the following:
- the name and address of the contracting authority, the subject and value of the contract,
- the names of the candidates or tenderers admitted and the reasons for their selection,
- the names of the candidates or tenderers rejected and the reasons for their rejection,
- the name of the successful tenderer and the reasons for his tender having been selected and, if known, any share of the contract the successful tenderer may intend to subcontract to a third party,
- for negotiated procedures, the circumstances referred to in Article 6 which justify the use of these procedures.
This report, or the main features of it, shall be communicated to the Commission at its request.
TITLE II COMMON RULES IN THE TECHNICAL FIELD
Article 8
1. The technical specifications defined in Annex III shall be given in the general or contractual documents relating to each contract.
2. Without prejudice to the legally binding national technical rules, in so far as these are compatible with Community law, the technical specifications mentioned in paragraph 1 shall be defined by the contracting authorities by reference to national standards implementing European standards, or by reference to European technical approvals or by reference to common technical specifications.
3. A contracting authority may depart from paragraph 2 if:
(a) the standards, European technical approvals or common technical specifications do not include any provision for establishing conformity or technical means do not exist for establishing satisfactorily the conformity of a product to these standards, European technical approvals or common technical specifications;
(b) the application of paragraph 2 would prejudice the application of Council Directive 86/361/EEC of 24 July 1986 on the initial stage of the mutual recognition of type approval for telecommunications terminal equipment(10) or Council Decision 87/95/EEC of 22 December 1986 on standardization in the field of information technology and telecommunications(11) or other Community instruments in specific service or product areas;
(c) use of these standards, European technical approvals or common technical specifications would oblige the contracting authority to acquire supplies incompatible with equipment already in use or would entail disproportionate costs or disproportionate technical difficulties, but only as part of a clearly defined and recorded strategy with a view to change-over, within a given period, to European standards, European technical approvals or common technical specifications;
(d) the project concerned is of a genuinely innovative nature for which use of existing European standards, European technical approvals or common technical specifications would not be appropriate.
4. Contracting authorities invoking paragraph 3 shall record, wherever possible, the reasons for doing so in the tender notice published in the Official Journal of the European Communities or in the contract documents and in all cases shall record these reasons in their internal documentation and shall supply such information on request to Member States and to the Commission.
5. In the absence of European standards, European technical approvals or common technical specifications, the technical specifications:
(a) shall be defined by reference to the national technical specifications recognized as complying with the basic requirements listed in the Community directives on technical harmonization, in accordance with the procedures laid down in those directives, and in particular in accordance with the procedures laid down in Directive 89/106/EEC(12) ;
(b) may be defined by reference to national technical specifications relating to design and method of calculation and execution of works and use of materials;
(c) may be defined by reference to other documents. In this case, it is appropriate to make reference in order of preference to:
(i) national standards implementing international standards accepted by the country of the contracting authority;
(ii) other national standards and national technical approvals of the country of the contracting authority;
(iii) any other standard.
6. Unless such specifications are justified by the subject of the contract, Member States shall prohibit the introduction into the contractual clauses relating to a given contract of technical specifications which mention goods of specific make or source or of a particular process and which therefore favour or eliminate certain suppliers or products. In particular, the indication of trade marks, patents, types or of a specific origin or production shall be prohibited. However, if such indication is accompanied by the works 'or equivalent' it shall be authorized in cases where the contracting authorities are unable to give a description of the subject of the contract using specifications which are sufficiently precise and fully intelligible to all parties concerned.
TITLE III COMMON ADVERTISING RULES
Article 9
1. The contracting authorities shall make known, as soon as possible after the beginning of their budgetary year, by means of an indicative notice, the total procurement by product area which they envisage awarding during the subsequent 12 months where the total estimated value, taking into account the provisions of Article 5, is equal to or greater than ECU 750 000.
The product area shall be established by the contracting authorities by means of reference to the nomenclature 'Classification of Products According to Activities (CPA)'. The Commission shall determine the conditions of reference in the notice to particular positions of the nomenclature in accordance with the procedure laid down in Article 32 (2).
2. Contracting authorities who wish to award a public supply contract by open, restricted or negotiated procedure in the cases referred to in Article 6 (2), shall make known their intention by means of a notice.
3. Contracting authorities who have awarded a contract shall make known the result by means of a notice. However, certain information on the contract award may, in certain cases, not be published where release of such information would impede law enforcement or otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of particular enterprises, public or private, or might prejudice fair competition between suppliers.
4. The notices shall be drawn up in accordance with the models given in Annex IV and shall specify the information requested in those models. The contracting authorities may not require any conditions other than those specified in Article 22 and 23 when requesting information concerning the economic and technical standards which they require of suppliers for their selection (Section 11 of Annex IV B, Section 9 of Annex IV C and Section 8 of Annex IV D).
5. The contracting authorities shall send the notices as rapidly as possible and by the most appropriate channels to the Office for Official Publications of the European Communities. In the case of the accelerated procedure referred to in Article 12, the notice shall be sent by telex, telegram or telefax.
The notice referred to in paragraph 1 shall be sent as soon as possible after the beginning of each budgetary year.
The notice referred to in paragraph 3 shall be sent at the latest 48 days after the award of the contract in question.
6. The notices referred to in paragraphs 1 and 3 shall be published in full in the Official Journal of the European Communities and in the TED data bank in the official languages of the Communities, the text in the original language alone being authentic.
7. The notice referred to in paragraph 2 shall be published in full in the Official Journal of the European Communities and in the TED data bank in their original language. A summary of the important elements of each notice shall be published in the official languages of the Communities, the text in the original language alone being authentic.
8. The Office for Official Publications of the European Communities shall publish the notices not later than 12 days after their dispatch. In the case of the accelerated procedure referred to in Article 12, this period shall be reduced to five days.
9. The notices shall not be published in the Official Journals or in the press of the country of the contracting authority before the date of dispatch to the Office for Official Publications of the European Communities; they shall mention that date. They shall not contain information other than that published in the Official Journal of the European Communities.
10. The contracting authorities must be able to supply proof of the date of dispatch.
11. The cost of publication of the notices in the Official Journal of the European Communities shall be borne by the Communities. The length of the notice shall not be greater than one page of the Journal, or approximately 650 words. Each edition of the Journal containing one or more notices shall reproduce the model notice or notices on which the published notice or notices are based.
Article 10
1. In open procedures the time limit for the receipt of tenders, fixed by the contracting authorities, shall not be less than 52 days from the date of dispatch of the notice.
2. Provided they have been requested in good time, the contract documents and supporting documents must be sent to the suppliers by the contracting authorities or competent departments within six days of receiving their application.
3. Provided it has been requested in good time, additional information relating to the contract documents shall be supplied by the contracting not later than six days before the final date fixed for receipt of tenders.
4. Where the contract documents, supporting documents or additional information are too bulky to be supplied within the time limits laid down in paragraph 2 or 3 or where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the contract documents, the time limit laid down in paragraph 1 shall be extended accordingly.
Article 11
1. In restricted procedures and negotiated procedures as described in Article 6 (2), the time limit for receipt of requests to participate fixed by the contracting authorities shall not be less than 37 days from the date of dispatch of the notice.
2. The contracting authorities shall simultaneously and in writing invite the selected candidates to submit their tenders. The letter of invitation shall be accompanied by the contract documents and supporting documents. It shall include at least the following information:
(a) where appropriate, the address of the service from which the contract documents and supporting documents can be requested and the final date for making such a request; also the amount and terms of payment of any sum to be paid for such documents;
(b) the final date for receipt of tenders, the address to which they must be sent and the language or languages in which they must be drawn up;
(c) a reference to the contract notice published;
(d) an indication of any documents to be annexed, either to support the verifiable statements furnished by the candidate in accordance with Article 9 (4), or to supplement the information provided for in that Article under the same conditions as those laid down in Articles 22 and 23;
(e) the criteria for the award of the contract if these are not given in the notice.
3. In restricted procedures, the time limit receipt of tenders fixed by the contracting authorities may not be less than 40 days from the date of dispatch of the written invitation.
4. Requests to participate in procedures for the award of contracts may be made by letter, by telegram, telex, telefax or by telephone. If by one of the last four, they must be confirmed by letter dispatched before the end of the period laid down in paragraph 1.
5. Provided it has been requested in good time, additional information relating to the contract documents must be supplied by the contracting authorities not later than six days before the final date fixed for receipt of tenders.
6. Where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the contract documents, the time limit laid down in paragraph 3 shall be extended accordingly.
Article 12
1. In cases where urgency renders impracticable the time limits laid down in Article 11, the contracting authorities may fix the following time limits:
(a) a time limit for the receipt of requests to participate which shall not be less than 15 days from the date of dispatch of the notice;
(b) a time limit for the receipt of tenders which shall not be less than 10 days from the date of the invitation to tender.
2. Provided it has been requested in good time, additional information relating to the contract documents must be supplied by the contracting authorities not less than four days before the final date fixed for the receipt of tenders.
3. Requests for participation in contracts and invitations to tender must be made by the most rapid means of communication possible. When requests to participate are made by telegram, telex, telefax or telephone, they must be confirmed by letter dispatched before the expiry of the time limit referred to in paragraph 1.
Article 13
Contracting authorities may arrange for the publication in the Official Journal of the European Communities of notices announcing public supply contracts which are not subject to the publication requirement laid down in this Directive.
Article 14
The conditions for the drawing up, transmission, receipt, translation, collection and distribution of the notices referred to in Article 9 and of the statistical reports provided for in Article 31 as well as the nomenclature provided for in
Article 9
and in Annexes II and IV may be modified in accordance with the procedure laid down in Article 32 (2). The conditions for referring in the notices to particular positions in the nomenclature may be determined pursuant to the same procedure.
TITLE IV Chapter 1
Common rules on participation
Article 15
1. Contracts shall be awarded on the basis for the criteria laid down in Chapter 3 of this Title, taking into account Article 16, after the suitability of the suppliers not excluded under Article 20 has been checked by the contracting authorities in accordance with the criteria of economic and financial standing and of technical capacity referred to in Articles 22, 23 and 24.
2. The contracting authorities shall respect fully the confidential nature of any information furnished by the suppliers.
Article 16
1. Where the criterion for the award of the contract is that of the most economically advantageous tender, contracting authorities may take account of variants which are submitted by a tenderer and meet the minimum specifications required by the contracting authorities.
The contracting authorities shall state in the contract documents the minimum specifications to be respected by the variants and any specific requirements for their presentation. They shall indicate in the tender notice if variants are not permitted.
Contracting authorities may not reject the submission of a variant of the sole grounds that it has been drawn up with technical specifications defined by reference to national standards transposing European standards, to European technical approvals or to common technical specifications referred to in Article 8 (2), or again by reference to national technical specifications to in Article 8 (5) (a) and (b).
2. Contracting authorities which have admitted variants pursuant to paragraph 1 may not reject a variant on the sole grounds that it would lead, if successful, to a service contract rather than a public supply contract within the meaning of this Directive.
Article 17
In the contract documents, the contracting authority may ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties.
This indication shall be without prejudice to the question of the principal supplier's liability.
Article 18
Tenders may be submitted by groups of suppliers. These groups may not be required to assume a specific legal form in order to submit the tender; however, the group selected may be required to do so when it has been awarded the contract, to the extent that this change is necessary for the satisfactory performance of the contract.
Article 19
1. In restricted and negotiated procedures the contracting authorities shall, on the basis of information given relating to the supplier's personal position as well as to the information and formalities necessary for the evaluation of the minimum conditions of an economic and technical nature to be fulfilled by him, select from among the candidates with the qualifications required by Articles 20 to 24 those whom they will invite to submit a tender or to negotiate.
2. Where the contracting authorities award a contact by restricted procedure, they may prescribe the range within which the number of suppliers which they intend to invite will fall. In this case the range shall be indicated in the contract notice. The range shall be determined in the light of the nature of the goods to be supplied. The range must number at least five suppliers and may be up to 20.
In any event, the number of candidates invited to tender shall be sufficient to ensure genuine competition.
3. Where the contracting authorities award a contract by negotiated procedure as referred to in Article 6 (2), the number of candidates admitted to negotiate may not be less than three provided that there is a sufficient number of suitable candidates.
4. Each Member State shall ensure that contracting authorities issue invitations without discrimination to those nationals of other Member States who satisfy the necessary requirements and under the same conditions as to its own nationals.
Chapter 2
Criteria for qualitative selection
Article 20
1. Any supplier may be excluded from participation in the contract who:
(a) is bankrupt or is being wound up, whose affairs are being administered by the court, who has entered into an arrangement with creditors, who has suspended business activities or who is any analogous situation arising from a similar procedure under national laws and regulations;
(b) is the subject of proceedings for a declaration of bankruptcy, for an order for compulsory winding up or administration by the court or for an arrangement with creditors or of any other similar proceedings under national laws and regulations;
(c) has been convicted of an offence concerning his professional conduct by a judgment which has the force of res judicata;
(d) has been guilty of grave professional misconduct proven by any means which the contracting authorities can justify;
(e) has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority;
(f) has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country in which he is established or those of the country of the contracting authority;
(g) is guilty of serious misrepresentation in supplying the information required under this Chapter.
2. Where the contracting authority requires to the supplier proof that none of the cases quoted in (a), (b), (c), (e) or (f) of paragraph 1 applies to him, it shall accept as sufficient evidence:
- for points (a), (b) or (c), the production of an extract from the 'judicial record' or, failing this, of an equivalent document issued by a competent judicial or administrative authority in the country of origin in the country whence that person comes showing that these requirements have been met,
- for points (e) or (f), a certificate issued by the competent authority in the Member State concerned.
3. Where the country in question does not issue the documents or certificates referred to in paragraph 2 or where these do not cover all the cases quoted in (a), (b) or (c) of paragraph 1, they may be replaced by a declaration on oath or, in Member States where there is no provision for declarations on oath, by a solemn declaration made by the person concerned before a competent judicial or administrative authority, a notary or a competent professional or trade body, in the country of origin in the country whence that person comes.
4. Member States shall designate the authorities and bodies competent to issue the documents, certificates or declarations referred to in paragraphs 2 and 3 and shall forthwith inform the other Member States and the Commission thereof.
Article 21
1. Any supplier wishing to take part in a public supply contract may be requested to prove his enrolment, as prescribed in his country of establishment, in one of the professional or trade registers or to provide a declaration on oath or certificate as described in paragraph 2 below.
2. The relevant professional and trade registers or declarations or certificates are:
- in Belgium: 'Registre du commerce/Handelsregister',
- in Denmark: 'Aktieselskabsregistret', 'Foreningsregistret' and 'Handelsregistret',
- in Germany: 'Handelsregister' and 'Handwerksrolle',
- in Greece: 'Viotechniko i Viomichaniko i Emporiko Epimelitirio',
- in Spain: 'Registro Mercantil' or, in the case of non-registered individuals, a certificate stating that the person concerned has declared on oath that he is engaged in the profession in question,
- in France: 'Registre du commerce' and 'répertoire des métiers',
- in Italy: 'Registro della Camera di commercio, industria, agricoltura e artigianato', and 'Registro delle Commissioni provinciali per l'artigianato',
- in Luxembourg: 'Registre aux firmes' and 'Rôle de la chambre des métiers',
- in the Netherlands: 'Handelsregister',
- in Portugal: 'Registo Nacional das Pessoas Colectivas',
- in the United Kingdom and Ireland, the supplier may be requested to provide a certificate from the Registrar of Companies or the Registrar of Friendly Societies, that he is certified as incorporated or registered or, if he is not so certified, a certificate stating that the person concerned has declared on oath that he is engaged in the profession in question in the country in which he is established in a specific place under a given business name and under a specific trading name.
Article 22
1. Evidence of the supplier's financial and economic standing may, as a general rule, be furnished by one or more of the following references:
(a) appropriate statements from bankers;
(b) the presentation of the supplier's balance-sheets or extracts from the balance-sheets, where publication of the balance-sheet is required under the law of the country in which the supplier is established;
(c) a statement of the supplier's overall turnover and its turnover in respect of the products to which the contract relates for the three previous financial years.
2. The contracting authorities shall specify in the notice or in the invitation to tender which reference or references mentioned in paragraph 1 they have chosen and which references other than those mentioned under paragraph 1 are to be produced.
3. If, for any valid reason, the supplier is unable to provide the references requested by the contracting authority, he may prove his economic and financial standing by any other document which the contracting authority considers appropriate.
Article 23
1. Evidence of the supplier's technical capacity may be furnished by one or more of the following means according to the nature, quantity and purpose of the products to be supplied:
(a) a list of the principal deliveries effected in the past three years, with the sums, dates and recipients, public or private, involved:
- where effected to public authorities, evidence to be in the form of certificates issued or countersigned by the competent authority;
- where effected to private purchasers, delivery to be certified by the purchaser or, failing this, simply declared by the supplier to have been effected;
(b) a description of the supplier's technical facilities, its measures for ensuring quality and its study and research facilities;
(c) indication of the technicians or technical bodies involved, whether or not belonging directly to the supplier, especially those responsible for quality control;
(d) samples, description and/or photographs of the products to be supplied, the authenticity of which must be certified if the contracting authority so requests;
(e) certificates drawn up by official quality control institutes or agencies of recognized competence attesting conformity to certain specifications or standards of products clearly identified by references to specifications or standards;
(f) where the products to be supplied are complex or, exceptionally, are required for a special purpose, a check carried out by the contracting authorities or on their behalf by a competent official body of the country in which the supplier is established, subject to that body's agreement, on the production capacities of the supplier and if necessary on his study and research facilities and quality control measures.
2. The contracting authority shall specify, in the notice or in the invitation to tender, which references it wishes to receive.
3. The extent of the information referred to in Article 22 and in paragraph 1 and 2 of this Article must be confined to the subject of the contract; the contracting authority shall take into consideration the legitimate interests of the suppliers as regards the protection of their technical or trade secrets.
Article 24
Within the limits of Articles 20 to 23 the contracting authority may invite the suppliers to supplement the certificates and documents submitted or to clarify them.
Article 25
1. Member States who have official lists of recognized suppliers must adapt them to the provisions of points (a) to (d) and (g) of Article 20 (1) and of Articles 21, 22 and 23.
2. Suppliers registered in the official lists may, for each contract, submit to the contracting authority a certificate of registration issued by the competent authority. This certificate shall state the reference which enabled them to be registered in the list and the classification given in that list.
3. Certified registration in official lists of suppliers by the competent bodies shall, for the contracting authorities of other Member States, constitute a presumption of suitability corresponding to the suppliers classification only as regards
Article 20
(1) (a) to (d) and (g), Article 21, Article 22 (1) (b) (e) Article 23 (1) (a).
Information which can be deduced from registration in official lists may not be questioned. However, with regard to the payment of social security contributions, an additional certificate may be required of any registered suppliers whenever a contract is offered.
The contracting authorities of other Member States shall apply the first and second subparagraph only in favour of suppliers established in the Member States holding the official list.
4. For the registration of suppliers of other Member States in an official list, no further proof or statements can be required other than those requested of national suppliers and, in any event, only those provided for under Articles 20 to 23.
5. Member States holding an official list shall communicate the address of the body to which requests for registration may be made to other Member States and to the Commission which shall ensure distribution.
Chapter 3
Criteria for the award of contracts
Article 26
1. The criteria on which the contracting authority shall base the award of contracts shall be:
(a) either the lowest price only;
(b) or, when award is made to the most economically advantageous tender, various criteria according to the contract in question: e. g. price, delivery date, running costs, cost-effectiveness, quality, aesthetic and functional characteristics, technical merit, after-sales service and technical assistance.
2. In the case referred to in point (b) of paragraph 1, the contracting authority shall state in the contract documents or in the contract notice all the criteria they intend to apply to the award, where possible in descending order of importance.
Article 27
If, for a given contract, tenders appear to be abnormally low in relation to the goods to be supplied, the contracting authority shall, before it may reject those tenders, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements taking account of the explanations received.
The contracting authority may take into consideration explanations relating to the economics of the manufacturing process, or to the technical solutions chosen, or to the exceptionally favourable conditions available to the tenderer for the supply of the goods, or to the originality of the suppliers proposed by the tenderer.
If the documents relating to the contract provide for its award at the lowest price tendered, the contracting authority must communicate to the Commission the rejection of tenders which it considers to be too low.
TITLE V FINAL PROVISIONS
Article 28
For the purposes of the award of public contracts by the contracting authorities referred to in Annex I, and, to the extent that rectifications, modifications or amendments have been made thereto, by their successor authorities, Member States shall apply in their relations conditions as favourable as those which they grant to third countries in implementation of the GATT Agreement, in particular those in Articles V and VI of that Agreement, on the restricted procedure, information and review. The Member States shall to this end consult each other within the Advisory Committee for Public Contracts on the measures to be taken pursuant to the Agreement.
Article 29
1. The Commission shall examine the application of this Directive in consultation with the Advisory Committee for Public Contracts and where appropriate shall submit new proposals to the Council with the aim in particular of harmonizing the measures taken by the Member States for the implementation of this Directive.
2. The Commission shall review this Directive and any new measures which may be adopted by virtue of paragraph 1, having regard to the results of the further negotiations provided for in Article IX (6) of the GATT Agreement and shall, if necessary, submit appropriate proposals to the Council.
3. The Commission shall update Annex I on the basis of any rectifications, modifications or amendments referred to in Article 28 and shall have the updated version published in the Official Journal of the European Communities.
Article 30
The calculation of time limits shall be made in accordance with Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits(13) .
Article 31
1. In order to permit assessment of the results of applying this Directive, Member States shall forward to the Commission a statistical report relative to supply contract awards:
(a) not later than 31 October of each year for the preceding year in respect of the contracting authorities listed in Annex I;
(b) not later than 31 October 1991 and for the Hellenic Republic, the Kingdom of Spain and the Portuguese Republic 31 October 1995 and thereafter 31 October of each second year for the preceding year in respect of the other contracting authorities within the meaning of Article 1.
2. The statistical report shall detail at least:
(a) the number and value of contracts awarded by each contracting authority above the threshold and, in the case of contracting authorities mentioned in Annex I, the value below the threshold;
(b) the number and value of contracts awarded by each contracting authority above the threshold, subdivided by procedure, product and the nationality of the supplier to whom the contract has been awarded, and in the case of negotiated procedures, subdivided in accordance with Article 6, listing the number and value of the contracts awarded to each Member State and to third countries, and in the case of contracting authorities referred to in Annex I, the number and value of the contracts awarded to each signatory to the GATT Agreement.
3. The Commission shall determine in accordance with the procedure laid down in Article 32 (2) the nature of any additional statistical information, which is required in accordance with this Directive.
Article 32
1. The Commission shall be assisted by the Advisory Committee for Public Contracts set up by Decision 71/306/EEC.
2. Where reference is made to the procedure laid down in this paragraph, the representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter, if necessary by taking a vote.
The opinion shall be recorded in the minutes; in addition, each Member State shall have the right to ask to have its position recorded in the minutes.
The Commission shall take the utmost account to the opinion delivered by the Committee. It shall inform the Committee of the manner in which its opinion has been taken into account.
3. The Committee mentioned in paragraph 1 shall examine, on the initiative of the Commission or at the request of a Member State, any question relating to the application of this Directive.
Article 33
Directive 77/62/EEC(14) is hereby repealed, without prejudice to the obligation of the Member States concerning the deadlines for transposition into national law and for application indicated in Annex V.
References to the repealed Directives shall be construed as reference to this Directive and should be read in accordance with the correlation table set out in Annex VI.
Article 34
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 14 June 1994. They shall immediately inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods for making such a reference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive.
Article 35
This Directive is addressed to the Member States.
Done at Luxembourg, 14 June 1993.