2009L0081 — EN — 01.01.2010 — 001.001

This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents

►B DIRECTIVE 2009/81/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (Text with EEA relevance) (OJ L 216, 20.8.2009, p.76)

Amended by:









▼B

DIRECTIVE 2009/81/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 13 July 2009

on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC

(Text with EEA relevance)







THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 47(2) and Articles 55 and 95 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Economic and Social Committee ( 1 ), Acting in accordance with the procedure laid down in Article 251 of the Treaty ( 2 ), Whereas: (1) National security remains the sole responsibility of each Member State, in the fields of both defence and security. (2) The gradual establishment of a European defence equipment market is essential for strengthening the European Defence Technological and Industrial Base and developing the military capabilities required to implement the European Security and Defence Policy. (3) Member States agree on the need to foster, develop and sustain a European Defence Technological and Industrial Base that is capability driven, competent and competitive. In order to achieve this objective, Member States may use different tools, in conformity with Community law, aiming at a truly European defence equipment market and a level playing field at both European and global levels. They should also contribute to the in-depth development of the diversity of the European defence-related supplier base, in particular by supporting the involvement of small and medium-sized enterprises (SMEs) and non-traditional suppliers in the European Defence Technological and Industrial Base, fostering industrial cooperation and promoting efficient and responsive lower tier suppliers. In this context, they should take into account the Commission’s Interpretative Communication of 7 December 2006 on the application of Article 296 of the Treaty in the field of defence procurement and the Commission Communication of 5 December 2007 on a Strategy for a stronger and more competitive European defence industry. (4) One prerequisite for the creation of a European defence equipment market is the establishment of an appropriate legislative framework. In the field of procurement, this involves the coordination of procedures for the award of contracts to meet the security requirements of Member States and the obligations arising from the Treaty. (5) To achieve this objective, in its resolution of 17 November 2005 on the Green Paper on defence procurement ( 3 ), the European Parliament called on the Commission to draft a directive taking particular account of the security interests of Member States, further developing the common foreign and security policy, promoting greater European cohesion and preserving the role of the Union as a ‘civil power’. (6) Better coordination of award procedures, for instance for contracts regarding logistics services, transportation and warehousing, also have the potential to reduce costs in the defence sector and significantly lower the sector’s environmental impact. (7) These procedures should reflect the Union’s overall approach to security, which responds to changes in the strategic environment. The emergence of asymmetrical transnational threats has increasingly blurred the boundary between external and internal and military and non-military security. (8) Defence and security equipment is vital for both the security and the sovereignty of Member States and for the autonomy of the Union. As a result, purchases of goods and services in the defence and security sectors are often of a sensitive nature. (9) This results in specific requirements, particularly in the fields of security of supply and security of information. These requirements relate especially to purchases of arms, munitions and war material for the armed forces, as well as services and works directly relating thereto, but also to certain particularly sensitive purchases in the field of non-military security. In these fields, the absence of Union-wide regimes hampers the openness of defence and security markets between Member States. This situation requires rapid improvement. An Union-wide regime on security of information, including the mutual recognition of national security clearances and allowing the exchange of classified information between contracting authorities/entities and European companies, would be particularly useful. At the same time, Member States should take concrete measures to improve security of supply between them aiming at the progressive establishment of a system of appropriate guarantees. (10) For the purposes of this Directive, military equipment should be understood in particular as the product types included in the list of arms, munitions and war material adopted by the Council in its Decision 255/58 of 15 April 1958 ( 4 ), and Member States may limit themselves to this list only when transposing this Directive. This list includes only equipment which is designed, developed and produced for specifically military purposes. However, the list is generic and is to be interpreted in a broad way in the light of the evolving character of technology, procurement policies and military requirements which lead to the development of new types of equipment, for instance on the basis of the Common Military List of the Union. For the purposes of this Directive, military equipment should also cover products which, although initially designed for civilian use, are later adapted to military purposes to be used as arms, munitions or war material. (11) In the specific field of non-military security, this Directive should apply to procurements which have features similar to those of defence procurements and are equally sensitive. This can be the case in particular in areas where military and non-military forces cooperate to fulfil the same missions and/or where the purpose of the procurement is to protect the security of the Union and/or the Member States, on their own territory or beyond it, against serious threats from non-military and/or non-governmental actors. This may involve, for example, border protection, police activities and crisis management missions. (12) This Directive should take account of the needs of the contracting authority/entity throughout the whole life cycle of the product, i.e., research and development, industrial development, production, repair, modernisation, modification, maintenance, logistics, training, testing, withdrawal and disposal. These stages include, for example, studies, evaluation, storage, transport, integration, servicing, dismantling, destruction and all other services following the initial design. Some contracts may include the supply of parts, components and/or subassemblies to be incorporated in or affixed to products, and/or the supply of specific tools, test facilities or support. (13) For the purposes of this Directive, research and development should cover fundamental research, applied research and experimental development. Fundamental research consists in experimental or theoretical work undertaken mainly with a view to acquiring new knowledge regarding the underlying foundation of phenomena and observable facts, without any particular application or use in view. Applied research also consists of original work undertaken with a view to acquiring new knowledge. However, it is directed primarily towards a particular practical end or objective. Experimental development consists in work based on existing knowledge obtained from research and/or practical experience with a view to initiating the manufacture of new materials, products or devices, establishing new processes, systems and services or considerably improving those that already exist. Experimental development may include the realisation of technological demonstrators, i.e. devices demonstrating the performance of a new concept or a new technology in a relevant or representative environment. Research and development does not include the making and qualification of pre-production prototypes, tools and industrial engineering, industrial design or manufacture. (14) This Directive should take account of the needs of the contracting authority/entity for works and services which, although not directly linked to the supply of military equipment or sensitive equipment, are necessary to fulfil certain military or security requirements. (15) The award of contracts concluded in the Member States by contracting entities as referred to in 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 ( 5 ) and by contracting authorities as referred to in 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 ( 6 ) is subject to compliance with the principles of the Treaty and in particular the free movement of goods, the freedom of establishment and the freedom to provide services, and with the principles deriving therefrom, such as the principles of equal treatment, non-discrimination, mutual recognition, proportionality and transparency. Transparency and competition obligations for contracts below the application thresholds for this Directive should be determined by Member States in compliance with those principles and taking account, in particular, of situations where there is a cross-border interest. In particular, it is for Member States to determine the most suitable arrangements for awarding such contracts. For contracts above a certain value, it is advisable to draw up provisions for the Community coordination of national procedures for the award of such contracts which are based on these principles so as to guarantee their effects and an effective opening-up of procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the above-mentioned rules and principles and with other rules of the Treaty. (16) Articles 30, 45, 46, 55 and 296 of the Treaty make provision for specific exceptions to the application of the principles set out in the Treaty and, consequently, to the application of law derived therefrom. It therefore follows that none of the provisions of this Directive should prevent the imposition or application of any measures considered necessary to safeguard interests recognised as legitimate by these provisions of the Treaty. This means in particular that the award of contracts which fall within the field of application of this Directive can be exempted from the latter where this is justified on grounds of public security or necessary for the protection of essential security interests of a Member State. This can be the case for contracts in the fields of both defence and security which necessitate such extremely demanding security of supply requirements or which are so confidential and/or important for national sovereignty that even the specific provisions of this Directive are not sufficient to safeguard Member States’ essential security interests, the definition of which is the sole responsibility of Member States. (17) Nevertheless, in accordance with the case-law of the Court of Justice of the European Communities, the possibility of recourse to such exceptions should be interpreted in such a way that their effects do not extend beyond that which is strictly necessary for the protection of the legitimate interests that those Articles help to safeguard. Thus, the non-application of this Directive must be proportionate to the aims pursued and cause as little disturbance as possible to the free movement of goods and the freedom to provide services. (18) Contracts relating to arms, munitions and war material awarded by contracting authorities/entities operating in the field of defence are excluded from the scope of the Government Procurement Agreement (GPA) concluded at the World Trade Organization. The other contracts covered by this Directive are also exempted from the application of the GPA by virtue of Article XXIII thereof. Article 296 of the Treaty and Article XXIII(1) of the GPA have a different scope and are subject to different standards of judicial review. Member States may still rely on Article XXIII(1) of the GPA in situations where Article 296 of the Treaty cannot be invoked. The two provisions have therefore to meet different conditions for application. This exclusion means also that in the specific context of defence and security markets, Member States retain the power to decide whether or not their contracting authority/entity may allow economic operators from third countries to participate in contract award procedures. They should take that decision on grounds of value for money, recognizing the need for a globally competitive European Defence Technological and Industrial Base, the importance of open and fair markets and the obtaining of mutual benefits. Member States should press for increasingly open markets. Their partners should also demonstrate openness, on the basis of internationally-agreed rules, in particular as concerns open and fair competition. (19) A contract shall be deemed to be a works contract only if its subject-matter specifically covers the execution of activities under Division 45 of the ‘Common Procurement Vocabulary’ laid down by Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV) ( 7 ) (hereinafter the ‘CPV), even if the contract covers the provision of other services necessary for the execution of such activities. Service contracts may, in some cases, include works. However, insofar as such works are incidental to the principal subject-matter of the contract, and are only a possible consequence thereof or a complement thereto, the fact that such works are included in the contract does not justify the qualification of the contract as a works contract. (20) Defence and security contracts often contain classified information which the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. In the military field, the Member States have systems for classifying this information for military purposes. However, when it comes to non-military security matters, there is more diversity in Member States’ practice, where other information must similarly be protected. Therefore, it is appropriate to make use of a concept which takes into account the diversity of practices in Member States and can encompass both the military and non-military fields. At any rate, procurement in these fields should not, where appropriate, affect the obligations arising from Commission Decision 2001/844/EC, ECSC, Euratom of 29 November 2001 amending its internal Rules of Procedure ( 8 ) or Council Decision 2001/264/EC of 19 March 2001 adopting the Council’s security regulations ( 9 ). Moreover, Article 296(1)(a) of the Treaty gives Member States the possibility to exempt contracts in the fields of both defence and security from the rules of this Directive if the application of this Directive would oblige them to supply information, the disclosure of which they consider contrary to the essential interests of their security. This can be the case in particular where contracts are so sensitive that their very existence must be kept secret. (21) The contracting authorities/entities should be allowed to use framework agreements, which makes it necessary to provide a definition of framework agreements and specific rules. Under these rules, when a contracting authority/entity enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time-limits and conditions for the submission of tenders, it may enter into contracts based on this framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if not all terms have been fixed in advance, by reopening competition between the parties to the framework agreement. The reopening of competition should comply with certain rules, the aim of which is to guarantee the required flexibility and compliance with the general principles, in particular the principle of equal treatment. For the same reasons, the term of framework agreements should be limited and should not exceed seven years, except in cases that are duly justified by the contracting authorities/entities. (22) Contracting authorities/entities may make use of electronic purchasing techniques, providing such use complies with the rules drawn up under this Directive and with the principles of equal treatment, non-discrimination and transparency. Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with those principles. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities/entities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority/entity, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions. (23) Centralised purchasing techniques help to increase competition and streamline purchasing. Consequently, Member States should be allowed to provide that contracting authorities/entities may purchase goods, works and/or services through a central purchasing body. Provision should therefore be made for a Community definition of central purchasing bodies and of the conditions under which, in accordance with the principles of non-discrimination and equal treatment, contracting authorities/entities purchasing works, supplies and/or services through a central purchasing body may be deemed to have complied with this Directive. A contracting authority/entity which is bound to apply this Directive should in any event be eligible to act as a central purchasing body. At the same time, Member States should also be free to designate European public bodies not subject to this Directive, such as the European Defence Agency, as central purchasing bodies, provided that such bodies apply procurement rules compliant with all the provisions of this Directive to those purchases. (24) Contracting authorities/entities may find themselves obliged to award a single contract for acquisitions which is covered partially by this Directive, with the remaining part either falling within the scope of Directive 2004/17/EC or Directive 2004/18/EC or not being subject to this Directive, Directive 2004/17/EC or Directive 2004/18/EC. This applies when the relevant procurements cannot, for objective reasons, be separated and awarded through separate contracts. In such cases the contracting authorities/entities should be able to award a single contract, provided that their decision is not taken for the purpose of excluding contracts from the application of this Directive or of Directive 2004/17/EC or Directive 2004/18/EC. (25) Multiplying the number of thresholds for applying coordinated provisions complicates matters for contracting authorities/entities. Given the average value of contracts in the fields of defence and security, it is appropriate to align the application thresholds of this Directive to the thresholds that already have to be met by contracting entities in applying Directive 2004/17/EC. The thresholds of this Directive should also be revised together with those of Directive 2004/17/EC when the latter thresholds are revised. (26) In addition, provision should be made for cases where this Directive does not apply because specific rules on the awarding of contracts which derive from international agreements or arrangements between Member States and third countries apply. The rules under certain agreements relating to the stationing of troops from a Member State in another Member State or a third country, or the stationing of troops from a third country in a Member State, should also preclude the use of award procedures under this Directive. This Directive should not apply either to contracts awarded by international organisations for their purposes or to contracts which must be awarded by a Member State in accordance with rules that are specific to such organisations. (27) In the fields of defence and security, some contracts are so sensitive that it would be inappropriate to apply this Directive, despite its specificity. That is the case for procurements provided by intelligence services, or procurements for all types of intelligence activities, including counter-intelligence activities, as defined by Member States. It is also the case for other particularly sensitive purchases which require an extremely high level of confidentiality, such as, for example, certain purchases intended for border protection or combating terrorism or organised crime, purchases related to encryption or purchases intended specifically for covert activities or other equally sensitive activities carried out by police and security forces. (28) Member States often conduct cooperative programmes to develop new defence equipment together. Such programmes are particularly important because they help to develop new technologies and bear the high research and development costs of complex weapon systems. Some of these programmes are managed by international organisations, namely the Organisation conjointe de coopération en matière d’armement (OCCAR) and NATO (via specific agencies), or by agencies of the Union, such as the European Defence Agency, which then award contracts on behalf of Member States. This Directive should not apply to such contracts. For other such cooperative programmes, contracts are awarded by contracting authorities/entities of one Member State also on behalf of one or more other Member States. In these cases too, this Directive should not apply. (29) In the event that armed forces or security forces from Member States conduct operations beyond the borders of the Union, and when imposed by operational requirements, authorisation should be given to contracting authorities/entities deployed in the field of operations not to apply the rules of this Directive when they award contracts to economic operators located in the area of operations, including with respect to civilian purchases directly connected to the conduct of those operations. (30) Given the specificity of the defence and security sector, purchases of equipment as well as works and services by one government from another should be excluded from the scope of this Directive. (31) In the context of services, contracts for the acquisition or rental of immovable property or rights to such property have particular characteristics which make the application of procurement rules inappropriate. (32) Arbitration and conciliation services are usually provided by bodies or individuals designated or selected in a manner which cannot be governed by procurement rules. (33) Financial services are also entrusted to persons or bodies under conditions that are not compatible with the application of procurement rules. (34) Pursuant to Article 163 of the Treaty, the encouragement of research and technological development is a means of strengthening the scientific and technological basis of Community industry, and the opening-up of service contracts contributes to this end. This Directive should not cover the co-financing of research and development programmes. Research and development contracts other than those where the benefits accrue exclusively to the contracting authority/entity for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority/entity, are therefore not covered by this Directive. (35) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute to integration in society. In this context, sheltered workshops and sheltered employment programmes contribute efficiently towards the integration or reintegration of people with disabilities in the labour market. However, such workshops might not be able to obtain contracts under normal conditions of competition. Consequently, it is appropriate to provide that Member States may reserve the right to participate in award procedures for contracts to such workshops or reserve performance of contracts to the context of sheltered employment programmes. (36) For the purpose of applying this Directive to the service contracts falling within its scope and for monitoring purposes, services should be subdivided into categories that correspond to particular headings of the CPV classification and brought together in two Annexes according to the regime to which they are subject. As regards services in Annex II, the relevant provisions of this Directive should be without prejudice to the application of Community rules specific to the services in question. However, in order to apply the provisions of this Directive instead of those of Directive 2004/17/EC or Directive 2004/18/EC, it has to be established that the relevant service contracts come within the scope of application of this Directive. (37) As regards service contracts, full application of this Directive should be limited, for a transitional period, to contracts where its provisions will permit the full potential for increased cross-border trade to be realised. It is necessary to monitor contracts for other services during this transitional period before a decision is taken on the full application of this Directive. (38) The technical specifications drawn up by contracting authorities/entities need to allow procurement to be opened up to competition. To this end, it must be possible to submit tenders which reflect the diversity of technical solutions. To do so, technical specifications should, on the one hand, be established on the basis of performance and functional requirements. On the other hand, where reference is made to the European standard or to international or national standards, including those specific to the field of defence, tenders based on other equivalent arrangements must be considered by the contracting authorities/entities. This equivalence can be assessed in particular with regard to interoperability and operational efficiency requirements. To demonstrate equivalence, tenderers should be permitted to use any form of evidence. Contracting authorities/entities must be able to provide a reason for any decision that equivalence does not exist in a given case. There are also international agreements on standardisation which aim to ensure the interoperability of the armed forces and which can have the force of law in Member States. Should one of these agreements apply, the contracting authorities/entities may demand that tenders comply with the standards described in that agreement. The technical specifications should be clearly indicated, so that all tenderers know what the requirements established by the contracting authority/entity cover. (39) The detailed technical specifications and additional information concerning contracts must, as is customary in the Member States, be given in the contract documents for each contract, or in an equivalent document. (40) Potential subcontractors should not be discriminated against on grounds of nationality. In the context of defence and security, it can be appropriate for contracting authorities/entities to oblige the successful tenderer to organise a transparent and non-discriminatory competition when awarding subcontracts to third parties. This obligation may apply to all subcontracts or only to specific subcontracts chosen by the contracting authority/entity. In addition, it seems appropriate to complement the tenderer’s right to subcontract with the option offered to the Member State to allow or to require its contracting authorities/entities to ask that subcontracts representing at least a certain share of the value of the contract be awarded to third parties on the understanding that related undertakings are not to be regarded as third parties. When such a share is required, the successful tenderer should award subcontracts following a transparent and non-discriminatory competition, so that all interested undertakings have the same opportunity to benefit from the advantages of subcontracting. At the same time, the proper functioning of the successful tenderer’s supply chain should not be jeopardised. Therefore, the percentage that can be subcontracted to third parties at the request of the contracting authority/entity should appropriately reflect the object and value of the contract. During a negotiated procedure or competitive dialogue with subcontracting requirements, the contracting authority/entity and the tenderers may discuss subcontracting requirements or recommendations with a view to ensuring that the contracting authority/entity is fully informed of the impact of different subcontracting options on, in particular, cost, quality or risk. In any event, subcontractors initially proposed by the successful tenderer should be free to participate in competitions organised for the award of subcontracts. In the context of defence and security markets, the Member States and the Commission should also encourage the development and dissemination of best practices between Member States and European industry with a view to promoting free movement and competitiveness in Union subcontracting markets, as well as the effective management of suppliers and SMEs, in order to achieve the best value for money. Member States should communicate to all successful tenderers the benefits of transparent and competitive tendering and supplier diversity for subcontracts, and develop and disseminate best practice on supply-chain management in the defence and security markets. (41) Contract performance conditions are compatible with this Directive provided that they are not directly or indirectly discriminatory and are indicated in the contract notice or the contract documents. (42) In particular, the conditions of performance may contain requirements by the contracting authorities/entities as regards security of information and security of supply. These requirements are particularly important given the sensitive nature of the equipment covered by this Directive, and concern the whole of the supply chain. (43) In order to ensure security of information, contracting authorities/entities may require in particular commitments from both contractors and subcontractors to protect classified information against unauthorised access, as well as sufficient information regarding their capacity to do so. In the absence of a Community regime on security of information, it is for the contracting authorities/entities or Member States to define these requirements in accordance with their national laws and regulations, and to determine whether they consider security clearances issued in accordance with the national law of another Member State as equivalent to those issued by their own competent authorities. (44) Security of supply can imply a great variety of requirements, including, for example, internal rules between subsidiaries and the parent company with respect to intellectual property rights, or the provision of critical service, maintenance and overhaul capacities to ensure support for purchased equipment throughout its life-cycle. (45) In any case, no performance conditions may pertain to requirements other than those relating to the performance of the contract itself. (46) The laws, regulations and collective agreements, at both national and Community levels, which are in force in the areas of employment conditions and safety at work apply during performance of a contract, provided that such rules, and their application, comply with Community law. In cross-border situations, where workers from one Member State provide services in another Member State for the purpose of performing a contract, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services ( 10 ) lays down the minimum conditions which must be observed by the host country in respect of such posted workers. If national law contains provisions to this effect, non-compliance with those obligations may be considered to be grave misconduct or an offence concerning the professional conduct of the economic operator concerned liable to lead to the exclusion of that economic operator from the procedure for the award of a contract. (47) The contracts covered by this Directive are characterised by specific requirements in terms of complexity, security of information or security of supply. Extensive negotiation is often required to satisfy these requirements when awarding contracts. As a result, the contracting authorities/entities may use the negotiated procedure with the publication of a contract notice, as well as the restricted procedure, for contracts covered by this Directive. (48) Contracting authorities/entities which carry out particularly complex projects may, without any fault on their part, find it objectively impossible to define the means of satisfying their needs or to assess what the market can offer in the way of technical solutions and/or financial or legal solutions. This situation may arise in particular in the case of projects requiring the integration or combination of several technological or operational capabilities, or projects involving complex and structured financing, the financial and legal make-up of which cannot be defined in advance. In this case, use of the restricted procedure and the negotiated procedure with the publication of a contract notice would not be feasible, as it would not be possible to define the contract with enough precision to allow candidates to draw up their offers. It is therefore necessary to provide for a flexible procedure ensuring competition between economic operators and allowing the contracting authorities/entities to discuss all aspects of the contract with each candidate. However, this procedure must not be used in such a way as to restrict or distort competition, particularly by altering any fundamental aspect of the tender, by imposing substantial new requirements on the successful tenderer or by involving any tenderer other than the one selected as the most economically advantageous. (49) Before launching a procedure for the award of a contract, contracting authorities/entities may, using a technical dialogue, seek or accept advice which may be used in the preparation of specifications, provided, however, that such advice does not have the effect of precluding competition. (50) Use of the negotiated procedure with publication of a contract notice could be impossible or entirely inappropriate in certain exceptional circumstances. The contracting authorities/entities should thus, in certain very specific cases and circumstances, be able to use the negotiated procedure without publication of a contract notice. (51) Certain circumstances should be partly the same as those provided for in Directive 2004/18/EC. In this respect, consideration should be given in particular to the fact that defence and security equipment is often technically complex. Consequently, incompatibility or disproportionate technical difficulties in operation and maintenance justifying the use of the negotiated procedure without publication of a contract notice in the case of supply contracts for additional deliveries should be assessed in the light of this complexity and the associated requirements for interoperability and standardisation of equipment. This is the case, for example, for the integration of new components into existing systems or for the modernisation of such systems. (52) It may be the case for certain purchases within the scope of this Directive that only one economic operator is able to execute the contract because it holds exclusive rights, or for technical reasons. In such cases, the contracting authority/entity should be allowed to award contracts or framework agreements directly to that economic operator. However, technical reasons for only one economic operator being able to execute a contract should be rigorously defined and justified on a case-by-case basis. They could include, for instance, strict technical impracticability for a candidate other than the chosen economic operator to achieve the required goals, or the necessity to use specific know-how, tools or means which only one operator has at its disposal. This may be the case, for example, for the modification or retrofitting of particularly complex equipment. Technical reasons may also derive from specific interoperability or safety requirements which must be fulfilled in order to ensure the functioning of the armed forces or security forces. (53) The specific nature of the contracts subject to this Directive also demonstrates the need to provide for new circumstances which may arise in the fields covered by it. (54) The armed forces of Member States may, for example, be called on to intervene in crisis situations abroad, for instance as part of peace-keeping operations. At the launch, or during the course, of such an intervention, the security of Member States and their armed forces may necessitate the award of certain contracts at a speed which is incompatible with the usual deadlines imposed by the award procedures laid down by this Directive. Such emergencies could also arise for the security forces, for example in the case of a terrorist attack on the territory of the Union. (55) Stimulating research and development is a key way of strengthening the European Defence Technological and Industrial Base, and the opening-up of procurement helps to achieve this objective. The importance of research and development in this specific field justifies maximum flexibility in the award of contracts for research supplies and services. At the same time, however, this flexibility should not preclude fair competition in the later phases of the life cycle of a product. Research and development contracts should therefore cover activities only up to the stage where the maturity of new technologies can be reasonably assessed and de-risked. Research and development contracts should not be used beyond that stage as means of avoiding the provisions of this Directive, including by predetermining the choice of tenderer for the later phases. On the other hand, the contracting authority/entity should not have to organise a separate tender for the later phases if the contract which covers the research activities already includes an option for those phases and was awarded through a restricted procedure or a negotiated procedure with the publication of a contract notice, or, where applicable, a competitive dialogue. (56) In order to ensure transparency, provision should be made for rules on publication by the contracting authorities/entities of appropriate information prior to, and at the end of, the award procedure. In addition, further specific information should be provided to candidates and tenderers regarding the results of that procedure. However, contracting authorities/entities should be allowed to withhold some of the information so required when and insofar as its release would impede law enforcement or otherwise be contrary to the public interest, harm the legitimate commercial interests of economic operators or might prejudice fair competition between them. In the light of the nature and the features of the works, supplies and services covered by this Directive, grounds of public interest relating to compliance with national mandatory provisions falling within the scope of national public policy, notably with regard to defence and security, are of particular relevance in this regard. (57) In view of new developments in information and communications technology, and the simplifications these can bring, electronic means should be put on a par with traditional means of communication and information exchange. As far as possible, the means and technology chosen should be compatible with the technologies used in other Member States. (58) To ensure the development of effective competition in the field of procurement covered by this Directive, it is necessary that contract notices drawn up by the contracting authorities/entities of Member States be advertised throughout the Community. The information contained in these notices must enable economic operators in the Community to determine whether the proposed contracts are of interest to them. For this purpose, they must be given adequate information as regards the subject-matter of the contract and the conditions attached thereto. Improved visibility should therefore be ensured for public notices by means of appropriate instruments, such as standard contract notice forms and the CPV, which is the reference nomenclature for contracts. (59) Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures ( 11 ) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) ( 12 ) should, in the context of this Directive, apply to the transmission of information by electronic means. Procurement procedures require a level of security and confidentiality higher than that required by those Directives. Accordingly, devices for the electronic receipt of offers and requests to participate should comply with specific additional requirements. To this end, the use of electronic signatures, in particular advanced electronic signatures, should be encouraged to as great an extent as possible. Moreover, the existence of voluntary accreditation schemes could constitute a favourable framework for enhancing the level of certification service provision for these devices. (60) The use of electronic means leads to savings in time. As a result, provision should be made for reducing the minimum time-limits for receipt of offers and requests to participate where electronic means are used, subject however to the condition that they are compatible with the specific modes of transmission envisaged at Community level. (61) Verification of the suitability of candidates and the selection thereof should be carried out in transparent conditions. For this purpose, non-discriminatory criteria should be indicated which the contracting authorities/entities may use when selecting competitors and the means which economic operators may use to prove they have satisfied those criteria. In the same spirit of transparency, the contracting authority/entity should be required, as soon as a contract is put out to competition, to indicate the selection criteria it will use and the level of specific competence it may, where appropriate, demand of economic operators before admitting them to the procurement procedure. (62) A contracting authority/entity may limit the number of candidates in the restricted and negotiated procedures with publication of a contract notice and in a competitive dialogue. Any reduction in the number of candidates should be performed on the basis of objective criteria indicated in the contract notice. For criteria relating to the personal situation of economic operators, a general reference in the contract notice to the situations set out in this Directive may suffice. (63) In the competitive dialogue and negotiated procedures with publication of a contract notice, in view of the flexibility which may be required and the high level of costs associated with such methods of procurement, contracting authorities/entities should be entitled to make provision for the procedure to be conducted in successive stages in order gradually to reduce, on the basis of previously indicated contract award criteria, the number of tenders which they will go on to discuss or negotiate. This reduction should, insofar as the number of appropriate solutions or candidates allows it, ensure that there is genuine competition. (64) The relevant Community rules on the mutual recognition of diplomas, certificates or other evidence of formal qualifications apply when evidence of a particular qualification is required for participation in a procurement procedure. (65) The award of contracts to economic operators which have participated in a criminal organisation or which have been found guilty of corruption or fraud to the detriment of the financial interests of the European Communities, money laundering, the financing of terrorism or terrorist and terrorism-related offences, should be avoided. Where appropriate, the contracting authorities/entities should ask candidates or tenderers to supply relevant documents and, where they have doubts concerning the personal situation of a candidate or tenderer, may seek the cooperation of the competent authorities of the Member State concerned. Such economic operators should be excluded as soon as the contracting authority/entity has knowledge of a judgment concerning such offences rendered in accordance with national law that has the force of res judicata. If national law contains provisions to this effect, non-compliance with procurement legislation on unlawful agreements which has been the subject of a final judgment or a decision having equivalent effect may be considered an offence concerning the professional conduct of the economic operator concerned or grave misconduct. It should also be possible to exclude economic operators if the contracting authority/entity has information, where applicable provided by protected sources, establishing that they are not sufficiently reliable so as to exclude risks to the security of the Member State. Such risks could derive from certain features of the products supplied by the candidate, or from the shareholding structure of the candidate. (66) Non-compliance with national provisions implementing Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ( 13 ) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions ( 14 ) which has been the subject of a final judgment or a decision having equivalent effect may be considered an offence concerning the professional conduct of the economic operator concerned or grave misconduct. (67) Given the sensitive nature of the defence and security sectors, the reliability of economic operators to which contracts are awarded is vital. This reliability depends, in particular, on their ability to respond to requirements imposed by the contracting authority/entity with respect to security of supply and security of information. In addition, nothing in this Directive should prevent a contracting authority/entity from excluding an economic operator at any point in the process for the award of a contract if the contracting authority/entity has information that to award all or any part of the contract to that economic operator could cause a risk to the essential security interests of that Member State. (68) In the absence of a Community regime as regards the security of information, it is for the contracting authorities/entities or Member States to define the level of technical capacity which is required in this regard for participation in an award procedure and to assess whether candidates have achieved the required security level. In many cases, Member States have bilateral security agreements with rules on the mutual recognition of national security clearances. Even where such agreements exist, the capacities of economic operators from other Member States as regards security of information can be verified, and such verification should be carried out in accordance with the principles of non-discrimination, equal treatment and proportionality. (69) Contracts should be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which guarantee that tenders are assessed in a transparent and objective manner under conditions of effective competition. As a result, it is appropriate to allow the application of two award criteria only: ‘the lowest price’ and ‘the most economically advantageous tender’. (70) To ensure compliance with the principle of equal treatment in the award of contracts, it is appropriate to lay down an obligation, which has been established by case-law, to ensure the necessary transparency to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied to identify the most economically advantageous tender. It is therefore the responsibility of contracting authorities/entities to indicate the criteria for the award of the contract and the relative weighting given to each of those criteria, in sufficient time for tenderers to be aware of them when preparing their tenders. Contracting authorities/entities may derogate from indicating the weighting of the criteria for the award in duly justified cases for which they must be able to give reasons where the weighting cannot be established in advance, in particular on account of the complexity of the contract. In such cases, they must indicate the descending order of importance of the criteria. (71) Where the contracting authorities/entities choose to award a contract to the most economically advantageous tender, they shall assess the tenders in order to determine which one offers the best value for money. In order to do this, they shall determine the economic and quality criteria which, taken as a whole, must make it possible to determine the most economically advantageous tender for the contracting authority/entity. The determination of these criteria depends on the object of the contract, since they must allow the level of performance offered by each tender to be assessed in the light of the object of the contract, as defined in the technical specifications, and the value for money of each tender to be measured. (72) Compliance with transparency and competition obligations should be ensured by an efficient review system, based on the system which Council Directives 89/665/EEC ( 15 ) and 92/13/EEC ( 16 ), as amended by Directive 2007/66/EC of the European Parliament and of the Council ( 17 ), provide for contracts covered by Directives 2004/17/EC and 2004/18/EC. In particular, the possibility of challenging the award procedure before the contract is signed should be provided for, as should the guarantees necessary for the efficiency of the review, such as the standstill period. The possibility of challenging illegal direct awards or contracts concluded in violation of this Directive should also be provided for. (73) However, review procedures should take into account the protection of defence and security interests as regards the procedures of review bodies, the choice of interim measures or penalties for infringements of obligations relating to transparency and competition. In particular, Member States should be able to provide that the review body independent of the contracting authority/entity, may not consider a contract ineffective, even though it has been awarded illegally on the grounds referred to in this Directive, where it finds, after having examined all relevant aspects, that the exceptional circumstances of the case concerned require certain overriding reasons relating to a general interest to be respected. In the light of the nature and features of the works, supplies and services covered by this Directive, such overriding reasons should be first and foremost related to the general interests of defence and security of Member States. This can be the case, for example, when the ineffectiveness of a contract would seriously endanger not only the fulfilment of the specific project aimed at by it, but the very existence of a wider defence and/or security programme of which the project is a part. (74) Certain technical conditions, and in particular those concerning notices and statistical reports, as well as the nomenclature used and the conditions of reference to that nomenclature, need to be adopted and amended in the light of changing technical requirements. It is therefore appropriate to put in place a flexible and rapid adoption procedure for this purpose. (75) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ( 18 ). (76) In particular, the Commission should be empowered to revise the threshold amounts for contracts by aligning them to the thresholds laid down in Directive 2004/17/EC and to amend certain reference numbers in the CPV nomenclature and the procedures for reference in notices to certain headings in the CPV, as well as the technical details and characteristics of devices for electronic receipt. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC. (77) When, on imperative grounds of urgency, the normal time-limits for the regulatory procedure with scrutiny cannot be complied with, the Commission should be able to apply the urgency procedure provided for in Article 5a(6) of Decision 1999/468/EC for the adoption of these measures. (78) In accordance with point 34 of the Interinstitutional agreement on better law-making ( 19 ), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public. (79) The Commission should carry out a periodic assessment to examine whether the defence equipment market is functioning in an open, transparent and competitive way, including the impact of this Directive on the market, for example on involvement of SMEs, Whereas: HAVE ADOPTED THIS DIRECTIVE:







CONTENTS TITLE I DEFINITIONS, SCOPE AND GENERAL PRINCIPLES Article 1. Definitions Article 2. Scope Article 3. Mixed contracts Article 4. Procurement principles TITLE II RULES ON CONTRACTS CHAPTER I General provisions Article 5. Economic operators Article 6. Confidentiality obligations of contracting authorities/entities Article 7. Protection of classified information CHAPTER II Thresholds, central purchasing bodies and exclusion provisions Section 1. Thresholds Article 8. Threshold amounts for contracts Article 9. Methods for calculating the estimated value of contracts and of framework agreements Section 2. Central purchasing bodies Article 10. Contracts and framework agreements awarded by central purchasing bodies Section 3. Excluded contracts Article 11. Use of exclusions Article 12. Contracts awarded pursuant to international rules Article 13. Specific exclusions Section 4. Special arrangements Article 14. Reserved contracts CHAPTER III Arrangements for service contracts Article 15. Service contracts listed in Annex I Article 16. Service contracts listed in Annex II Article 17. Mixed contracts including services listed in Annexes I and II CHAPTER IV Specific rules governing contract documentation Article 18. Technical specifications Article 19. Variants Article 20. Conditions for performance of contracts Article 21. Subcontracting Article 22. Security of information Article 23. Security of supply Article 24. Obligations relating to taxes, environmental protection, employment protection provisions and working conditions CHAPTER V Procedures Article 25. Procedures to be applied Article 26. Negotiated procedure with publication of a contract notice Article 27. Competitive dialogue Article 28. Cases justifying use of the negotiated procedure without publication of a contract notice Article 29. Framework agreements CHAPTER VI Rules on advertising and transparency Section 1. Publication of notices Article 30. Notices Article 31. Non-mandatory publication Article 32. Form and manner of publication of notices Section 2. Time-limits Article 33. Time-limits for receipt of requests to participate and for receipt of tenders Section 3. Information content and means of transmission Article 34. Invitations to tender, negotiate or participate in a dialogue Article 35. Information for candidates and tenderers Section 4. Communication Article 36. Rules applying to communication Section 5. Reports Article 37. Content of reports CHAPTER VII Conduct of the procedure Section 1. General provisions Article 38. Verification of the suitability and choice of participants and award of contracts Section 2. Criteria for qualitative selection Article 39. Personal situation of the candidate or tenderer Article 40. Suitability to pursue the professional activity Article 41. Economic and financial standing Article 42. Technical and/or professional ability Article 43. Quality management systems standards Article 44. Environmental management standards Article 45. Additional documentation and information Article 46. Official lists of approved economic operators and certification by bodies established under public or private law Section 3. Award of the contract Article 47. Contract award criteria Article 48. Use of electronic auctions Article 49. Abnormally low tenders TITLE III RULES APPLICABLE TO SUBCONTRACTING CHAPTER I Subcontracts awarded by successful tenderers which are not contracting authorities/entities Article 50. Scope Article 51. Principles Article 52. Thresholds and rules on advertising Article 53. Criteria for qualitative selection of subcontractors CHAPTER II Subcontracts awarded by successful tenderers which are contracting authorities/entities Article 54. Rules to be applied TITLE IV RULES TO BE APPLIED TO REVIEWS Article 55. Scope and availability of review procedures Article 56. Requirements for review procedures Article 57. Standstill period Article 58. Derogations from the standstill period Article 59. Time-limits for applying for review Article 60. Ineffectiveness Article 61. Infringements of this Title and alternative penalties Article 62. Time-limits Article 63. Corrective mechanism Article 64. Content of a notice for voluntary ex ante transparency TITLE V STATISTICAL OBLIGATIONS, EXECUTORY POWERS AND FINAL PROVISIONS Article 65. Statistical obligations Article 66. Content of the statistical report Article 67. Committee procedure Article 68. Revision of thresholds Article 69. Amendments Article 70. Amendment to Directive 2004/17/EC Article 71. Amendment to Directive 2004/18/EC Article 72. Transposition Article 73. Review and reporting Article 74. Entry into force Article 75. Addressees ANNEXES Annex I Services referred to in Articles 2 and 15 Annex II Services referred to in Articles 2 and 16 Annex III Definition of certain technical specifications referred to in Article 18 Annex IV Information to be included in the notices referred to in Article 30 Annex V Information to be included in the subcontract notices referred to in Article 52 Annex VI Features concerning publication Annex VII Registers Annex VIII Requirements relating to devices for the electronic receipt of requests to participate and tenders







TITLE I

DEFINITIONS, SCOPE AND GENERAL PRINCIPLES

Article 1

Definitions

For the purposes of this Directive, the following definitions shall apply:

1. ‘Common Procurement Vocabulary (CPV)’ means the reference nomenclature applicable to contracts awarded by contracting authorities/entities, as adopted by Regulation (EC) No 2195/2002;

2. ‘Contracts’ means contracts for pecuniary interest concluded in writing as referred to in Article 1(2)(a) of Directive 2004/17/EC and Article 1(2)(a) of Directive 2004/18/EC;

3. ‘Works contracts’ means contracts having as their object either the execution, or both the design and execution, of works related to one of the activities mentioned in Division 45 of the CPV, or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority/entity. A ‘work’ means the outcome of building or civil engineering works taken as a whole that is sufficient of itself to fulfil an economic or technical function;

4. ‘Supply contracts’ means contracts other than works contracts having as their object the purchase, lease, rental or hire-purchase, with or without the option to buy, of products. A contract having as its object the supply of products and which also covers, as an incidental matter, siting and installation operations shall be considered to be a ‘supply contract’;

5. ‘Service contracts’ means contracts other than works or supply contracts having as their object the provision of services. A contract having as its object both products and services shall be considered to be a ‘service contract’ if the value of the services in question exceeds that of the products covered by the contract. A contract having as its object services and including activities mentioned in Division 45 of the CPV that are only incidental to the principal object of the contract shall be considered to be a service contract;

6. ‘Military equipment’ means equipment specifically designed or adapted for military purposes and intended for use as an arm, munitions or war material;

7. ‘Sensitive equipment’, ‘sensitive works’ and ‘sensitive services’ means equipment, works and services for security purposes, involving, requiring and/or containing classified information;

8. ‘Classified information’ means any information or material, regardless of the form, nature or mode of transmission thereof, to which a certain level of security classification or protection has been attributed, and which, in the interests of national security and in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, requires protection against any misappropriation, destruction, removal, disclosure, loss or access by any unauthorised individual, or any other type of compromise;

9. ‘Government’ means the State, regional or local government of a Member State or third country;

10. ‘Crisis’ means any situation in a Member State or third country in which a harmful event has occurred which clearly exceeds the dimensions of harmful events in everyday life and which substantially endangers or restricts the life and health of people, or has a substantial impact on property values, or requires measures in order to supply the population with necessities; a crisis shall also be deemed to have arisen if the occurrence of such a harmful event is deemed to be impending; armed conflicts and wars shall be regarded as crises for the purposes of this Directive;

11. ‘Framework agreement’ means an agreement between one or more contracting authorities/entities and one or more economic operators, 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;

12. ‘Electronic auction’ means a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods. Consequently, certain service contracts and certain works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions;

13. ‘Contractor’, ‘supplier’ and ‘service provider’ means any natural or legal person or public entity or consortium of such persons and/or bodies which offers on the market to execute works, supply products and provide services, respectively;

14. ‘Economic operator’ means a contractor, supplier or service provider. It is used merely in the interests of simplification;

15. ‘Candidate’ means an economic operator which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue;

16. ‘Tenderer’ means an economic operator which has submitted a tender under a restricted or negotiated procedure or a competitive dialogue;

17. ‘Contracting authorities/entities’ means contracting authorities as referred to in Article 1(9) of Directive 2004/18/EC and contracting entities as referred to in Article 2 of Directive 2004/17/EC;

18. ‘Central purchasing body’ means a contracting authority/entity as referred to in Article 1(9) of Directive 2004/18/EC and Article 2(1)(a) of Directive 2004/17/EC, or a European public body, which: — acquires supplies and/or services intended for contracting authorities/entities, or, — awards contracts or concludes framework agreements for works, supplies or services intended for contracting authorities/entities,

19. ‘Restricted procedures’ means procedures in which any economic operator may ask to participate and whereby only those economic operators invited by the contracting authority/entity may submit a tender;

20. ‘Negotiated procedures’ means procedures in which the contracting authority/entity invites the economic operators of its choice and negotiates the terms of the contract with one or more of these;

21. ‘Competitive dialogue’ means a procedure in which any economic operator may ask to participate and whereby the contracting authority/entity conducts a dialogue with the candidates admitted to that procedure with the aim of developing one or more suitable alternatives capable of meeting its requirements, and on the basis of which the candidates chosen are invited to tender. For the purposes of recourse to the procedure referred to in the first subparagraph, a contract is considered to be ‘particularly complex’ where the contracting authority/entity is not objectively able: — to define the technical means in accordance with Article 18(3)(b), (c) or (d), capable of satisfying its needs or objectives, and/or, — to specify the legal and/or financial make-up of a project,

22. ‘Subcontract’ means a contract for pecuniary interest concluded in writing between a successful tenderer for a contract and one or more economic operators for the purposes of carrying out that contract and having as its object works, supplies of products or the performance of services;

23. ‘Related undertaking’ means any undertaking over which the successful tenderer can exert a dominant influence, whether directly or indirectly, or any undertaking which can exert a dominant influence on the successful tenderer or which, as the successful tenderer, is subject to the dominant influence of another undertaking as a result of ownership, financial participation or the rules which govern it. A dominant influence on the part of the undertaking is presumed when, directly or indirectly in relation to another undertaking, it: — holds a majority of the undertaking’s subscribed capital, — controls a majority of the votes attached to the shares issued by the undertaking, or, — is entitled to appoint more than half of the undertaking’s administrative, management or supervisory bodies,

24. ‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means;

25. ‘Electronic means’ means any means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

26. ‘Life cycle’ means all the possible successive stages of a product, i.e. research and development, industrial development, production, repair, modernisation, modification, maintenance, logistics, training, testing, withdrawal and disposal;

27. ‘Research and development’ means all activities comprising fundamental research, applied research and experimental development, where the latter may include the realisation of technological demonstrators, i.e., devices that demonstrate the performance of a new concept or a new technology in a relevant or representative environment;

28. ‘Civil purchases’ means contracts not subject to Article 2 covering the procurement of non-military products, works or services for logistical purposes and concluded in accordance with the conditions specified in Article 17.

Article 2

Scope

Subject to Articles 30, 45, 46, 55 and 296 of the Treaty, this Directive shall apply to contracts awarded in the fields of defence and security for:

(a) the supply of military equipment, including any parts, components and/or subassemblies thereof;

(b) the supply of sensitive equipment, including any parts, components and/or subassemblies thereof;

(c) works, supplies and services directly related to the equipment referred to in points (a) and (b) for any and all elements of its life cycle;

(d) works and services for specifically military purposes or sensitive works and sensitive services.

Article 3

Mixed contracts

1. A contract having as its object works, supplies or services falling within the scope of this Directive and partly within the scope of Directive 2004/17/EC or Directive 2004/18/EC shall be awarded in accordance with this Directive, provided that the award of a single contract is justified for objective reasons.

2. The award of a contract having as its object works, supplies or services falling partly within the scope of this Directive, with the other part not being subject to either this Directive, or to Directive 2004/17/EC or Directive 2004/18/EC, shall not be subject to this Directive, provided that the award of a single contract is justified for objective reasons.

3. The decision to award a single contract may not, however, be taken for the purpose of excluding contracts from the application of this Directive or of Directive 2004/17/EC or Directive 2004/18/EC.

Article 4

Procurement principles

Contracting authorities/entities shall treat economic operators equally and in a non-discriminatory manner and shall act in a transparent way.







TITLE II

RULES ON CONTRACTS







CHAPTER I

General provisions

Article 5

Economic operators

1. Candidates or tenderers which, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natural or legal persons.

1. However, in the case of service and works contracts as well as supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate the names and relevant professional qualifications of the staff to be responsible for the performance of the contract in question.

2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities/entities to assume a specific legal form; 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 6

Confidentiality obligations of contracting authorities/entities

Without prejudice to the provisions of this Directive, in particular those concerning the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers as set out in Article 30(3) and Article 35, and in accordance with the national law to which the contracting authority/entity is subject, in particular legislation regarding access to information, the contracting authority/entity, subject to contractually acquired rights, shall not disclose information forwarded to it by economic operators which such operators have designated as confidential; such information includes, in particular, technical or trade secrets and the confidential aspects of tenders.

Article 7

Protection of classified information

Contracting authorities/entities may impose on economic operators requirements aimed at protecting the classified information they communicate throughout the tendering and contracting procedure. They may also request these economic operators to ensure compliance with such requirements by their subcontractors.







CHAPTER II

Thresholds, central purchasing bodies and exclusion provisions







Section 1

Thresholds

Article 8

Threshold amounts for contracts

This Directive shall apply to contracts which have a value excluding value-added tax (VAT) estimated to be no less than the following thresholds:

(a) ►M1 EUR 387 000 ◄ for supply and service contracts;

(b) ►M1 EUR 4 845 000 ◄ for works contracts.

Article 9

Methods for calculating the estimated value of contracts and of framework agreements

1. The calculation of the estimated value of a contract shall be based on the total amount payable, net of VAT, as estimated by the contracting authority/entity. This calculation shall take account of the estimated total amount, including any form of option and any renewals of the contract.

1. Where the contracting authority/entity provides for prizes or payments to candidates or tenderers, it shall take them into account when calculating the estimated value of the contract.

2. This estimate must be valid at the moment at which the contract notice is sent, as provided for in Article 32(2), or, in cases where such notice is not required, at the moment at which the contracting authority/entity commences the contract award procedure.

3. No works project or proposed purchase of a certain quantity of supplies and/or services may be partitioned to create essentially identical separate partial contracts or otherwise subdivided to prevent its coming within the scope of this Directive.

4. With regard to works contracts, the calculation of the estimated value shall take account of both the cost of the works and the total estimated value of the supplies necessary for executing the works and placed at the contractor’s disposal by the contracting authorities/entities.

(a) Where a proposed work or purchase of services may result in contracts being awarded at the same time in the form of separate lots, account shall be taken of the total estimated value of all such lots. Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 8, this Directive shall apply to the awarding of each lot. However, the contracting authorities/entities may waive such application in respect of lots the estimated value of which, net of VAT, is less than EUR 80 000 for services or EUR 1 000 000 for works, provided that the aggregate value of those lots does not exceed 20 % of the aggregate value of the lots as a whole;

(b) Where a proposal for the acquisition of similar supplies may result in contracts being awarded at the same time in the form of separate lots, account shall be taken of the total estimated value of all such lots when applying Article 8(a) and (b). Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 8, this Directive shall apply to the awarding of each lot. However, the contracting authorities/entities may waive such application in respect of lots the estimated value of which, net of VAT, is less than EUR 80 000, provided that the aggregate cost of those lots does not exceed 20 % of the aggregate value of the lots as a whole.

6. With regard to supply contracts relating to the leasing, hire, rental or hire-purchase of products, the value to be taken as a basis for calculating the estimated contract value shall be as follows:

(a) in the case of fixed-term contracts, where that term is less than or equal to 12 months, the total estimated value for the term of the contract or, where the term of the contract is greater than 12 months, the total value, including the estimated residual value;

(b) in the case of contracts without a fixed term or the term of which cannot be defined, the monthly value multiplied by 48.

7. In the case of supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation of the estimated contract value shall be based on the following:

(a) either the total actual value of the successive contracts of the same type awarded during the preceding 12 months or financial year, adjusted, if possible, to take account of the changes in quantity or value which could occur in the course of the 12 months following the initial contract; or

(b) the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year if that is longer than 12 months.

7. The choice of method used to calculate the estimated value of a contract may not be made with the intention of excluding it from the scope of this Directive.

8. With regard to service contracts, the value to be taken as a basis for calculating the estimated contract value shall, where appropriate, be the following:

(a) for the following services: (i) insurance services: the premium payable and other forms of remuneration; (ii) design contracts: fees, commission payable and other forms of remuneration;

(b) for service contracts which do not indicate a total price: (i) in the case of fixed-term contracts, where that term is less than or equal to 48 months: the total value for their full term; (ii) in the case of contracts without a fixed term or with a term greater than 48 months: the monthly value multiplied by 48.

9. With regard to framework agreements, the estimated value to be taken into consideration shall be the maximum estimated value, net of VAT, of all the contracts envisaged for the total term of the agreement.







Section 2

Central purchasing bodies

Article 10

Contracts and framework agreements awarded by central purchasing bodies

1. Member States may stipulate that contracting authorities/entities may purchase works, supplies and/or services from or through a central purchasing body.

2. Contracting authorities/entities which purchase works, supplies and/or services from or through a central purchasing body in the cases set out in Article 1(18) shall be deemed to have complied with this Directive insofar as:

— the central purchasing body has complied with it, or,

— when the central purchasing body is not a contracting authority/entity, the contract award rules applied by it are compliant with all the provisions of this Directive and the contracts awarded can be subject to efficient remedies comparable to those provided for in Title IV.







Section 3

Excluded contracts

Article 11

Use of exclusions

None of the rules, procedures, programmes, agreements, arrangements or contracts referred to in this section may be used for the purpose of circumventing the provisions of this Directive.

Article 12

Contracts awarded pursuant to international rules

This Directive shall not apply to contracts governed by:

(a) specific procedural rules pursuant to an international agreement or arrangement concluded between one or more Member States and one or more third countries;

(b) specific procedural rules pursuant to a concluded international agreement or arrangement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;

(c) specific procedural rules of an international organisation purchasing for its purposes, or to contracts which must be awarded by a Member State in accordance with those rules.

Article 13

Specific exclusions

This Directive shall not apply to the following:

(a) contracts for which the application of the rules of this Directive would oblige a Member State to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b) contracts for the purposes of intelligence activities;

(c) contracts awarded in the framework of a cooperative programme based on research and development, conducted jointly by at least two Member States for the development of a new product and, where applicable, the later phases of all or part of the life-cycle of this product. Upon the conclusion of such a cooperative programme between Member States only, Member States shall indicate to the Commission the share of research and development expenditure relative to the overall cost of the programme, the cost-sharing agreement as well as the intended share of purchases per Member State, if any;

(d) contracts awarded in a third country, including for civil purchases, carried out when forces are deployed outside the territory of the Union where operational needs require them to be concluded with economic operators located in the area of operations;

(e) service contracts for the acquisition or rental, under whatever financial arrangements, of land, existing buildings or other immovable property, or concerning rights in respect thereof;

(f) contracts awarded by a government to another government relating to: (i) the supply of military equipment or sensitive equipment, (ii) works and services directly linked to such equipment, or (iii) works and services specifically for military purposes, or sensitive works and sensitive services;

(g) arbitration and conciliation services;

(h) financial services, with the exception of insurance services;

(i) employment contracts;

(j) research and development services other than those where the benefits accrue exclusively to the contracting authority/entity for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority/entity.







Section 4

Special arrangements

Article 14

Reserved contracts

Member States may reserve the right to participate in contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes where most of the employees concerned are handicapped persons who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions.

The contract notice shall make reference to this provision.







CHAPTER III

Arrangements for service contracts

Article 15

Service contracts listed in Annex I

Contracts which have as their object services covered by Article 2 that are listed in Annex I shall be awarded in accordance with Articles 18 to 54.

Article 16

Service contracts listed in Annex II

Contracts which have as their object services covered by Article 2 that are listed in Annex II shall be subject solely to Article 18 and Article 30(3).

Article 17

Mixed contracts including services listed in Annexes I and II

Contracts which have as their object services covered by Article 2 that are listed both in Annex I and in Annex II shall be awarded in accordance with Articles 18 to 54 where the value of the services listed in Annex I is greater than the value of the services listed in Annex II. In other cases, contracts shall be awarded in accordance with Article 18 and Article 30(3).







CHAPTER IV

Specific rules governing contract documentation

Article 18

Technical specifications

1. The technical specifications as defined in point 1 of Annex III shall be set out in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents).

2. Technical specifications shall afford equal access for tenderers and shall not have the effect of creating unjustified obstacles to the opening up of procurement to competition.

3. Without prejudice to either compulsory national technical rules (including those related to product safety) or the technical requirements to be met by the Member State under international standardisation agreements in order to guarantee the interoperability required by those agreements, and provided they are compatible with Community law, technical specifications shall be drawn up:

(a) either by reference to technical specifications defined in Annex III and, in order of preference, to: — national civil standards transposing European standards, — European technical approvals, — common civil technical specifications, — national civil standards transposing international standards, — other international civil standards, — other technical reference systems established by the European standardisation bodies, or, where these do not exist, other national civil standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products, — civil technical specifications stemming from industry and widely recognised by it, or, — the national ‘defence standards’ defined in point 3 of Annex III and defence materiel specifications similar to those standards, Every reference shall be followed by the expression ‘or equivalent’;

(b) or in terms of performance or functional requirements; the latter may include environmental characteristics. However, such parameters must be sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting authorities/entities to award the contract;

(c) or in terms of performance or functional requirements as mentioned in point (b), with reference to the specifications mentioned in point (a) as a means of presuming conformity with such performance or functional requirements;

(d) or by referring to the specifications mentioned in point (a) for certain characteristics, and by referring to the performance or functional requirements mentioned in point (b) for other characteristics.

4. Where a contracting authority/entity makes use of the option of referring to the specifications mentioned in paragraph 3(a), it can not reject a tender on the grounds that the products and services tendered for do not comply with the specifications to which it has referred, once the tenderer proves in its tender to the satisfaction of the contracting authority/entity, by whatever appropriate means, that the solutions which it proposes satisfy in an equivalent manner the requirements defined by the technical specifications.

4. An appropriate means might be constituted by a technical dossier from the manufacturer or a test report from a recognised body.

5. Where a contracting authority/entity uses the option laid down in paragraph 3 to prescribe performance-related or functional requirements, it may not reject a tender for works, products or services which comply with a national standard transposing a European standard, with a European technical approval, a common technical specification, an international standard or a technical reference system established by a European standardisation body, if these specifications address the performance or functional requirements which it has laid down.

5. In its tender, the tenderer must prove to the satisfaction of the contracting authority/entity and by any appropriate means that the work, product or service in compliance with the standard meets the performance or functional requirements of the contracting authority/entity.

5. An appropriate means might be constituted by a technical dossier from the manufacturer or a test report from a recognised body.

6. Where contracting authorities/entities lay down environmental characteristics in terms of performance or functional requirements as referred to in paragraph 3(b), they may use the detailed specifications, or, if necessary, parts thereof, as defined by European or (multi-) national eco-labels, or by any other eco-label, provided that:

— those specifications are appropriate as a means of defining the characteristics of the supplies or services that are the object of the contract,

— the requirements for the label are drawn up on the basis of scientific information,

— the eco-labels are adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations, can participate, and,

— they are accessible to all interested parties,

6. Contracting authorities/entities may indicate that the products and services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents; they must accept any other appropriate means of proof, such as a technical dossier from the manufacturer or a test report from a recognised body.

7. ‘Recognised bodies’, within the meaning of this Article, are test and calibration laboratories, and certification and inspection bodies which comply with applicable European standards.

7. Contracting authorities/entities shall accept certificates from recognised bodies established in other Member States.

8. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraphs 3 and 4 is not possible; such reference shall be accompanied by the words ‘or equivalent’.

Article 19

Variants

1. Where the criterion for award is that of the most economically advantageous tender, contracting authorities/entities may authorise tenderers to submit variants.

2. Contracting authorities/entities shall indicate in the contract notice whether or not they authorise variants. Variants shall not be authorised without this indication.

3. Contracting authorities/entities authorising variants shall state in the tender specifications the minimum requirements to be met by the variants and any specific requirements for their presentation.

3. Only variants meeting the minimum requirements laid down by the contracting authorities/entities shall be taken into consideration.

4. In procedures for awarding supply or service contracts, contracting authorities/entities which have authorised variants may not reject a variant on the sole ground that it would, if successful, lead either to a service contract rather than a supply contract, or to a supply contract rather than a service contract.

Article 20

Conditions for performance of contracts

Contracting authorities/entities may lay down special conditions relating to the performance of a contract, provided that these are compatible with Community law and are indicated in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents). These conditions may, in particular, concern subcontracting or seek to ensure the security of classified information and the security of supply required by the contracting authority/entity, in accordance with Articles 21, 22 and 23, or take environmental or social considerations into account.

Article 21

Subcontracting

1. The successful tenderer shall be free to select its subcontractors for all subcontracts that are not covered by the requirement referred to in paragraphs 3 and 4, and shall in particular not be required to discriminate against potential subcontractors on grounds of nationality.

2. The contracting authority/entity may ask or may be required by a Member State to ask the tenderer:

— to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractor, as well as the subject-matter of the subcontracts for which they are proposed; and/or,

— to indicate any change occurring at the level of subcontractors during the execution of the contract,

3. The contracting authority/entity may oblige or may be required by a Member State to oblige the successful tenderer to apply the provisions set out in Title III to all or certain subcontracts which the successful tenderer intends to award to third parties.

4. Member States may provide that the contracting authority/entity may ask or be required to ask the successful tenderer to subcontract to third parties a share of the contract. The contracting authority/entity that imposes such subcontracting shall express this minimal percentage in the form of a range of values, comprising a minimum and maximum percentage. The maximum percentage may not exceed 30 % of the value of the contract. Such a range shall be proportionate to the object and value of the contract and the nature of the industry sector involved, including the level of competition in that market and the relevant technical capabilities of the industrial base.

4. Any percentage of subcontracting falling within the range of values indicated by the contracting authority/entity shall be considered to fulfil the subcontracting requirement set out in this paragraph.

4. Tenderers may propose to subcontract a share of the total value which is above the range required by the contracting authority/entity.

4. The contracting authority/entity shall ask tenderers to specify in their tender which part or parts of their offer they intend to subcontract to fulfil the requirement referred to in the first subparagraph.

4. The contracting authority/entity may ask or may be required by a Member State to ask tenderers also to specify which part or parts of their offer they intend to subcontract beyond the required percentage, as well as the subcontractors they have already identified.

4. The successful tenderer shall award subcontracts corresponding to the percentage which the contracting authority/entity requires it to subcontract in accordance with the provisions of Title III.

5. In all cases, where a Member State provides that contracting authorities/entities may reject the subcontractors selected by the tenderer at the stage of the award procedure of the main contract or by the successful tenderer during the performance of the contract, such rejection may only be based on criteria applied for the selection of the tenderers for the main contract. If the contracting authority/entity rejects a subcontractor, it must produce a written justification to the tenderer or the successful tenderer, setting out why it considers that the subcontractor does not meet the criteria.

6. Requirements referred to in paragraphs 2 to 5 shall be indicated in the contract notices.

7. Paragraphs 1 to 5 shall be without prejudice to the question of the principal economic operator’s liability.

Article 22

Security of information

When contracts involve, require and/or contain classified information, the contracting authority/entity shall specify in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents) the measures and requirements necessary to ensure the security of such information at the requisite level.

To this end, the contracting authority/entity may require that the tender contain, inter alia, the following particulars:

(a) a commitment from the tenderer and the subcontractors already identified to appropriately safeguard the confidentiality of all classified information in their possession or coming to their notice throughout the duration of the contract and after termination or conclusion of the contract, in accordance with the relevant laws, regulations and administrative provisions;

(b) a commitment from the tenderer to obtain the commitment provided in point (a) from other subcontractors to which it will subcontract during the execution of the contract;

(c) sufficient information on subcontractors already identified to enable the contracting authority/entity to determine that each of them possesses the capabilities required to appropriately safeguard the confidentiality of the classified information to which they have access or which they are required to produce when carrying out their subcontracting activities;

(d) a commitment from the tenderer to provide the information required under point (c) on any new subcontractor before awarding a subcontract.

In the absence of harmonisation at Community level of national security clearance systems, Member States may provide that the measures and requirements referred to in the second subparagraph have to comply with their national provisions on security clearance. Member States shall recognise the security clearances which they consider equivalent to those issued in accordance with their national law, notwithstanding the possibility to conduct and take into account further investigations of their own, if considered necessary.

Article 23

Security of supply

The contracting authority/entity shall specify in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents) its security of supply requirements.

To this end, the contracting authority/entity may require that the tender contain, inter alia, the following particulars:

(a) certification or documentation demonstrating to the satisfaction of the contracting authority/entity that the tenderer will be able to honour