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This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCILDIRECTIVE92/50/EEC
of18June1992
relatingtothecoordinationofproceduresfortheawardofpublicservice contracts
(OJ L 209, 24.7.1992, p. 1)
Amended by:
Official Journal
No page date
►M1Council Directive 93/36/EEC of 14 June 1993 L 199 1 9.8.1993
►M2European Parliament and Council Directive 97/52/EC of 13 October
1997L 328 1 28.11.1997
►M3Commission Directive 2001/78/EC of 13 September 2001 L 285 1 29.10.2001
Amended by:
►A1Act of Accession of Austria, Sweden and Finland C241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
►A2Act concerning the conditions of accession of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia,the Republic of Lithuania, the Republic of Hungary, the Republic of
Malta, the Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the EuropeanUnion is foundedL 236 33 23.9.2003
Corrected by:
►C1Corrigendum, OJ L 214, 9.8.2002, p. 1 (2001/78/EC)
NB: This consolidated version contains references to the European unit of account and/or the ecu, which from 1 January 1999
should be understood as references to the euro — Council Regulation (EEC) No 3308/80 (OJ L 345, 20.12.1980, p. 1) andCouncil Regulation (EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).
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COUNCILDIRECTIVE92/50/EEC
of18June1992
relating to the coordination of procedures for the award of public
service contracts
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European EconomicCommunity, and in particular the last sentence of Article 57 (2) andArticle 66 thereof,
Having regard to the proposal from the Commission(
1),
In cooperation with the European Parliament(2),
Having regard to the opinion of the Economic and Social
Committee(3),
Whereas the European Council has drawn conclusions on the need to
complete the internal market;
Whereas measures aimed at progressively establishing the internal
market during the period up to 31 December 1992 need to be taken;whereas the internal market is an area without internal frontiers inwhich the free movement of goods, persons, services and capital isensured;
Whereas these objectives require the coordination of the procurement
procedures for the award of public service contracts;
Whereas the White Paper on the completion of the internal market
contains an action programme and a timetable for opening up public
procurement, including in the field of services insofar as this is not
already covered by Council Directive 71/305/EEC of 26 July 1971concerning the coordination of procedures for the award of publicworks contracts(
4) and Council Directive 77/62/EEC of 21 december
1976 coordinating procedures for the award of public supply
contracts(5);
Whereas this Directive should be applied by all contracting authorities
within the meaning of Directive 71/305/EEC;
Whereas obstacles to the free movement of services need to be
avoided; whereas, therefore, service providers may be either natural or
legal persons; whereas this Directive shall not, however, prejudice theapplication, at national level, of rules concerning the conditions for thepursuit of an activity or a profession provided that they are compatiblewith Community law;
Whereas the field of services is best described, for the purpose of
application of procedural rules and for monitoring purposes, by subdi-viding it into categories corresponding to particular positions of a
common classification; whereas Annexes I A and I B of this Directive
refer to the CPC nomenclature (common product classification) of theUnited Nations; whereas that nomenclature is likely to be replaced inthe future by Community nomenclature; whereas provision should bemade for adapting the CPC nomenclature in Annexes I A and B inconsequence;
Whereas the provision of services is covered by this Directive only in
so far as it is based on contracts; whereas the provision of services on1992L0050 — EN — 01.05.2004 — 005.001 — 2
(1) OJ No C 23, 31. 1. 1991, p. 1, and
OJ No C 250, 25. 9. 1991, p. 4.
(2) OJ No C 158, 17. 6. 1991, p. 90, and
OJ No C 150, 15. 6. 1992.
(3) OJ No C 191, 22. 7. 1991, p. 41.
(4) OJ No L 185, 16. 8. 1971, p. 5. Directive last amended by Directive 90/531/
EEC (OJ No L 297, 29. 10. 1990, p. 1).
(5) OJ No L 13, 15. 1. 1977, p. 1. Directive last amended by Directive 90/531/
EEC (OJ No L 297, 29. 10. 1990, p. 1).
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other bases, such as law or regulations, or employment contracts, is not
covered;
Whereas, in accordance with Article 130f of the Treaty, the encourage-
ment of research and development is a means to strengthen thescientific and technological basis of European industry and the openingupof p ublic contracts will contribute to this end; whereas contributions
to the financing of research programmes should not be subject to this
Directive; whereas research and development service contracts otherthan those where the benefits accrue exclusively to the contractingauthority for its use in the conduct of its own affairs, on conditionthat the service provided is wholly remunerated by the contractingauthority, are not therefore covered by this Directive;
Whereas contracts relating to the acquisition or rental of immovable
property or to rights thereon have particular characteristics, whichmake the application of procurement rules inappropriate;
Whereas the award of contracts for certain audiovisual services in the
broadcasting field is governed by considerations which make the appli-cation of procurement rules inappropriate;
Whereas arbitration and conciliation services are usually provided by
bodies or individuals which are agreed on, or selected, in a mannerwhich cannot be governed by procurement rules;
Whereas for the purposes of this Directive financial services do not
include the instruments of monetary, exchange rate, public debt,reserve management, and other policies involving transactions in secu-rities and other financial instruments; whereas, therefore, contracts inconnection with the issue, sale, purchase or transfer of securities and
other financial instruments are not covered by this Directive; whereas
central bank services are also excluded;
Whereas, in the field of services, the same derogations as in Directives
71/305/EEC and 77/62/EEC should apply as regards State security or
secrecy and the priority of other procurement rules such as those
pursuant to international agreements, those concerning the stationingof troops, or the rules of international organizations;
Whereas this Directive does not prejudice the application of, in parti-
cular, Articles 55, 56 and 66 of the Treaty;
Whereas public service contracts, particularly in the field of property
management, may from time to time include some works; whereas it
results from Directive 71/305/EEC that, for a contract to be a public
works contract, its object must be the achievement of a work; whereas,in so far as these works are incidental rather than the object of thecontract, they do not justify treating the contract as a public workscontract;
Whereas the rules concerning service contracts as contained in Council
Directive 90/531/EEC of 17 September 1990 on the procurementprocedures of entities operating in the water, energy, transport and tele-communications sectors(
1) should remain unaffected by this Directive;
Whereas contracts with a designated single source of supply may,
under certain conditions, be fully or partly exempted from this Direc-tive;
Whereas this Directive should not apply to small contracts below a
certain threshold in order to avoid unnecessary formalities; whereasthis threshold may in principle be the same as that for public supplycontracts; whereas the calculation of the contract value, the publication
and the method of adaptation of the thresholds should be the same as in
the other Community procurement directives;
Whereas, to eliminate practices that restrict competition in general and
participation in contracts by other Member States' nationals in parti-1992L0050 — EN — 01.05.2004 — 005.001 — 3
(1) OJ No L 297, 29. 10. 1990, p. 1.
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cular, it is necessary to improve the access of service providers to
procedures for the award of contracts;
Whereas full application of this Directive must be limited, for a transi-
tional period, to contracts for those services where its provisions willenable the full potential for increased cross-frontier trade to be
realized; whereas contracts for other services need to be monitored for
a certain period before a decision is taken on the full application of thisDirective; whereas the mechanism for such monitoring needs to bedefined; whereas this mechanism should at the same time enable thoseinterested to share the relevant information;
Whereas the rules for the award of public service contracts should be
as close as possible to those concerning public supply contracts and
public works contracts;
Whereas the procurement rules contained in Directives 71/305/EEC
and 77/62/EEC can be appropriate, with necessary adaptations so as to
take into account special aspects of procurement of services such as thechoice of the negotiated procedure, design contests, variants, the legalform under which the service providers operate, the reservation ofcertain activities to certain professions, registration and quality assur-ance;
Whereas use may be made of the negotiated procedure with prior
publication of a notice when the service to be provided cannot be
specified with sufficient precision, particularly in the field of intellec-
tual services, with the result that such a contract cannot be awarded byselection of the best tender in accordance with the rules governing theopen and restricted procedures;
Whereas the relevant Community rules on mutual recognition of
diplomas, certificates or other evidence of formal qualifications applywhen evidence of a particular qualification is required for participation
in an award procedure or a design contest;
Whereas the objectives of this Directive do not require any changes in
the current situation at national level as regards price competition
between service providers of certain services;
Whereas the operation of this Directive should be reviewed at the latest
three years after the date set for procurement rules to be transposedinto national law; whereas the review should extend in particular tothe possibility of making the Directive fully applicable to a wider rangeof service contracts,
HAS ADOPTED THIS DIRECTIVE:
TITLE I
General provisions
Article 1
For the purposes of this Directive:
(a)public service contracts shall mean contracts for pecuniary interest
concluded in writing between a service provider and a contractingauthority, to the exclusion of:
(i) public supply contracts within the meaning of Article 1 (a) of
Directive 77/62/EEC or public works contracts within themeaning of Article 1 (a) of Directive 71/305/EEC;
(ii) contracts awarded in the fields referred to in Articles 2, 7, 8
and 9 of Directive 90/531/EEC or fulfilling the conditions inArticle 6 (2) of the same Directive;
(iii) contracts for the acquisition or rental, by whatever financial
means, of land, existing buildings, or other immovable prop-erty or concerning rights thereon; nevertheless, financialservice contracts concluded at the same time as, before orafter the contract of acquisition or rental, in whatever form,shall be subject to this Directive;1992L0050 — EN — 01.05.2004 — 005.001 — 4
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(iv) contracts for the acquisition, development, production or co-
production of programme material by broadcasters andcontracts for broadcasting time;
(v) contracts for voice telephony, telex, radiotelephony, paging
and satellite services;
(vi) contracts for arbitration and conciliation services;
(vii) contracts for financial services in connection with the issue,
sale, purchase or transfer of securities or other financialinstruments, and central bank services;
(viii) employment contracts;
(ix) research and development service contracts other than those
where the benefits accrue exclusively to the contracting
authority for its use in the conduct of its own affairs, oncondition that the service provided is wholly remunerated bythe contracting authority;
(b)contracting authorities shall mean the State, regional or local
authorities, bodies governed by public law, associations formed byone or more of such authorities or bodies governed by public law.
Body governed by public law means any body:
— established for the specific purpose of meeting needs in the
general interest, not having an industrial or commercial char-acter, and
— having legal personality and— financed, for the most part, by the State, or regional or local
authorities, or other bodies governed by public law; or subjectto management supervision by those bodies; or having an
administrative, managerial or supervisory board, more than
half of whose members are appointed by the State, regional orlocal authorities or by other bodies governed by public law.
The lists of bodies or of categories of such bodies governed by
public law which fulfil the criteria referred to in the second subpar-agraph of this point are set out in Annex I to Directive 71/305/EEC. These lists shall be as exhaustive as possible and may bereviewed in accordance with the procedure laid down in Article
30b of that Directive;
(c)service provider shall mean any natural or legal person, including a
public body, which offers services. A service provider who submits
a tender shall be designated by the term tendererand one who has
sought an invitation to take part in a restricted or negotiated proce-dure by the term candidate;
(d)open procedures shall mean those national procedures whereby all
interested service providers may submit a tender;
(e)restricted procedures shall mean those national procedures whereby
only those service providers invited by the authority may submit a
tender;
(f)negotiated procedures shall mean those national procedures
whereby authorities consult service providers of their choice andnegotiate the terms of the contract with one or more of them;
(g)design contests shall mean those national procedures which enable
the contracting authority to acquire, mainly in the fields of areaplanning, town planning, architecture and civil engineering, ordata processing, a plan or design selected by a jury after being putout to competition with or without the award of prizes.
Article 2
If a public contract is intended to cover both products within the
meaning of Directive 77/62/EEC and services within the meaning ofAnnexes I A and I B to this Directive, it shall fall within the scope ofthis Directive if the value of the services in question exceeds that of theproducts covered by the contract.1992L0050 — EN — 01.05.2004 — 005.001 — 5
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Article 3
1. In awarding public service contracts or in organizing design
contests, contracting authorities shall apply procedures adapted to theprovisions of this Directive.
2. Contracting authorities shall ensure that there is no discrimination
between different service providers.
3. Member States shall take the necessary measures to ensure that
the contracting authorities comply or ensure compliance with thisDirective where they subsidize directly by more than 50 % a servicecontract awarded by an entity other than themselves in connection
with a works contract within the meaning of Article 1a (2) of Directive
71/305/EEC.
Article 4
1. This Directive shall apply to public service contracts awarded by
contracting authorities in the field of defence, except for contracts to
which the provisions of Article 223 of the Treaty apply.
2. This Directive shall not apply to services which are declared
secret or the execution of which must be accompanied by special
security measures in accordance with the laws, regulations or adminis-
trative provisions in force in the Member State concerned or when theprotection of the basic interests of that State's security so requires.
Article 5
This Directive shall not apply to public contracts governed by different
procedural rules and awarded:
(a) in pursuance of an international agreement concluded between a
Member State and one or more third countries and covering
services intended for the joint implementation or exploitation of a
project by the signatory States; any agreement shall be communi-cated to the Commission, which may consult the AdvisoryCommittee for Public Contracts set upby Council Decision 71/306/EEC(
1);
(b) to undertakings in a Member State or a third country in pursuance
of an international agreement relating to the stationing of troops;
(c) pursuant to the particular procedure of an international organiza-
tion.
Article 6
This Directive shall not apply to public service contracts awarded to an
entity which is itself a contracting authority within the meaning ofArticle 1 (b) on the basis of an exclusive right which it enjoys pursuantto a published law, regulation or administrative provision which is
compatible with the Treaty.
Article 7
1. (a) This Directive shall apply to:
— public service contracts referred to in Article 3 (3), public
service contracts concerning the services referred to inAnnex I B, the services in category 8 in Annex I A and thetelecommunications services in category 5 of Annex I Aunder CPC references 7524, 7525 and 7526, awarded by the
contracting authorities referred to in Article 1 (b), where the
estimated net value of value-added tax (VAT) is not lessthan ECU 200000,1992L0050 — EN — 01.05.2004 — 005.001 — 6
(1) OJ No L 185, 16. 8. 1971, p. 15. Decision amended by Decision 77/63/EEC
(OJ No L 13, 15. 1. 1977, p. 15).▼M2
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— public service contracts concerning the services referred to in
Annex I A with the exception of the services in category 8and the telecommunications services in category 5 under
CPC references 7524, 7525 and 7526:
(i) awarded by the contracting authorities listed in Annex I
to Directive 93/36/EEC where the estimated value net ofVAT is not less than the equivalent in ecus of 130000special drawing rights (SDRs);
(ii) awarded by the contracting authorities listed in Article 1
(b) other than those referred to in Annex I to Directive93/36/EEC and where the estimated value net of VATis not less than the equivalent in ecus of 200000 SDRs.
(b) The value in ecus and in national currencies of the thresholds
laid down in subparagraph (a) shall, in principle, be revisedevery two years with effect from 1 January 1996. The calcula-
tion of these values shall be based on the average daily values
of these currencies expressed in ecus and of the ecus expressedin SDRs over the 24 months terminating on the last day ofAugust preceding the 1 January revision.
The method of calculation laid down in this subparagraph shall
be reviewed, on a proposal from the Commission, by the advi-sory Committee for Public Procurement, in principle two years
after its initial application.
(c) The thresholds laid down in subparagraph (a) and the values of
the thresholds expressed in ecus and in national currencies shallbe published in the Official Journal of the European Commu-
nitiesat the beginning of the month of November which
follows the revision laid down in the first paragraph of subpara-
graph (b).
2. For the purposes of calculating the estimated value of the
contract, the contracting authority shall include the estimated totalremuneration of the service provider, taking account of the provisions
of paragraphs 3 to 7.
3. The selection of the valuation method shall not be used with the
intention of avoiding the application of this Directive, nor shall anyprocurement requirement for a given amount of services be split up
with the intention of avoiding the application of this Article.
4. For the purposes of calculating the estimated contract value for
the following types of services, account shall be taken, where appro-priate:
— as regards insurance services, of the premium payable,
— as regards banking and other financial services, of fees, commis-
sions and interest as well as other types of remuneration,
— as regards contracts which involve design, of the fee or commission
payable.
Where the services are subdivided into several lots, each one the
subject of a contract, the value of each lot must be taken into accountfor the purpose of calculating the amount referred to above.
Where the value of the lots is not less than this amount, the provisions
of this Directive shall apply to all lots. Contracting authorities maywaive application of paragraph 1 for any lot which has an estimated
value net of VAT of less than ECU 80 000, provided that the total
value of such lots does not exceed 20 % of the total value of all thelots.
5. In the case of contracts which do not specify a total price, the
basis for calculating the estimated contract value shall be:
— in the case of fixed-term contracts, where their term is 48 months or
less, the total contract value for its duration;
— in the case of contracts of indefinite duration or with a term of
more than 48 months, the monthly instalment multiplied by 48.1992L0050 — EN — 01.05.2004 — 005.001 — 7
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6. In the case of regular contracts or of contracts which are to be
renewed within a given time, the contract value may be established onthe basis of:
— either the actual aggregate cost of similar contracts for the same
categories of services awarded over the previous fiscal year or 12months, adjusted, where possible, for anticipated changes in quan-tity or value over the twelve months following the initial contract,
— or the estimated aggregate cost during the twelve months following
the first service performed or during the term of the contract, wherethis is greater than 12 months.
7. Where a proposed contract provides for options, the basis for
calculating the contract value shall be the maximum permitted totalincluding use of the option clauses.
TITLE II
Two-tierapplication
Article 8
Contracts which have as their object services listed in Annex I A shall
be awarded in accordance with the provisions of Titles III to VI.
Article 9
Contracts which have as their object services listed in Annex I B shall
be awarded in accordance with Articles 14 and 16.
Article 10
Contracts which have as their object services listed in both Annexes I
A and I B shall be awarded in accordance with the provisions of Titles
III to VI where the value of the services listed in Annex I A is greater
than the value of the services listed in Annex I B. Where this is not thecase, they shall be awarded in accordance with Articles 14 and 16.
TITLE III
Choiceofawardproceduresandrulesgoverningdesigncontests
Article 11
1. In awarding public service contracts, contracting authorities shall
apply the procedures defined in Article 1 (d), (e) and (f), adapted forthe purposes of this Directive.
2. Contracting authorities may award their public service contracts
by negotiated procedure, with prior publication of a contract notice inthe following cases:
(a) in the event of irregular tenders in response to an open or restricted
procedure or in the event of tenders which are unacceptable undernational provisions that are in accordance with Articles 23 to 28,insofar as the original terms of the contract are not substantially
altered. Contracting authorities may in such cases refrain from
publishing a contract notice where they include in the negotiatedprocedure all the tenderers who satisfy the criteria of Articles 29to 35 and who, during the prior open or restricted procedure, havesubmitted tenders in accordance with the formal requirements ofthe tendering procedure;
(b) in exceptional cases, when the nature of the services or the risks
involved do not permit prior overall pricing;
(c) when the nature of the services to be procured, in particular in the
case of intellectual services and services falling within category 6of Annex I A, is such that contract specifications cannot be estab-lished with sufficient precision to permit the award of the contract1992L0050 — EN — 01.05.2004 — 005.001 — 8
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by selecting the best tender according to the rules governing open
or restricted procedures.
3. Contracting authorities may award public service contracts by
negotiated procedure without prior publication of a contract notice inthe following cases:
(a) in the absence of tenders or of appropriate tenders in response to an
open or restricted procedure provided that the original terms of thecontract are not substantially altered and that a report is communi-cated to the Commission at its request;
(b) when, for technical or artistic reasons, or for reasons connected
with the protection of exclusive rights, the services may beprovided only by a particular service provider;
(c) where the contract concerned follows a design contest and must,
under the rules applying, be awarded to the successful candidate
or to one of the successful candidates. In the latter case, allsuccessful candidates shall be invited to participate in the negotia-tions;
(d) in so far as is strictly necessary when, for reasons of extreme
urgency brought about by events unforeseeable by the contractingauthorities in question, the time limit for the open, restricted or
negotiated procedures referred to in Articles 17 to 20 cannot be
kept. The circumstances invoked to justify extreme urgency mustnot in any event be attributable to the contracting authorities;
(e) for additional services not included in the project initially consid-
ered or in the contract first concluded but which have, throughunforeseen circumstances, become necessary for the performanceof the service described therein, on condition that the award ismade to the service provider carrying out such service:
— when such additional services cannot be technically or econom-
ically separated from the main contract without great
inconvenience to the contracting authorities, or
— when such services, although separable from the performance of
the original contract, are strictly necessary for its completion.
However, the aggregate estimated value of contracts awarded for
additional services may not exceed 50 % of the amount of themain contract;
(f) for new services consisting in the repetition of similar services
entrusted to the service provider to which the same contracting
authorities awarded an earlier contract, provided that such servicesconform to a basic project for which a first contract was awardedaccording to the procedures referred to in paragraph 4. As soon asthe first project is put up for tender, notice must be given that thenegotiated procedure might be adopted and the total estimated cost
of subsequent services shall be taken into consideration by the
contracting authorities when they apply the provisions of Article7. This procedure may be applied solely during the three yearsfollowing the conclusion of the original contract.
4. In all other cases, the contracting authorities shall award their
public service contracts by the open procedure or by the restrictedprocedure.
Article 12
1. The contracting authority shall, within 15 days of the date on
which a written request is received, inform any eliminated candidate
or tenderer of the reasons for rejection of his application or his tender,and any tenderer who has made an admissible tender of the character-istics and relative advantages of the tender selected as well as the nameof the successful tenderer.
However, contracting authorities may decide that certain information
on the contract award, referred to in the first subparagraph be withheldwhere release of such information would impede law enforcement orotherwise be contrary to the public interest or would prejudice the1992L0050 — EN — 01.05.2004 — 005.001 — 9
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legitimate commercial interests of particular undertakings, public or
private, or might prejudice fair competition between service providers.
2. Contracting authorities shall promptly inform candidates and
tenderers of the decisions taken on contract awards, including thereasons why they have decided not to award to a contract for whichthere has been an invitation to tender or to start the procedure again
and, shall do so in writing if required. They shall also inform the
Office for Official Publications of the European Communities of suchdecisions.
3. For each contract awarded, the contracting authorities shall draw
upa written rep ort which shall include at least the following:
— the name and address of the contracting authority, the subject and
value of the contract,
— the names of the candidates or tenderers admitted and the reasons
for their selection,
— the names of the candidates or tenderers rejected and the reasons
for their rejection,
— the name of the successful tenderer and the reasons why his tender
was selected and, if known, the part of the contract which the
successful tenderer intends to subcontract to third parties,
— for negotiated procedures, the circumstances referred to in Article
11 which justify the use of these procedures.
This report, or the main features of it, shall be communicated to the
Commission at its request.
Article 13
1. This Article shall apply to design contests organized as part of a
procedure leading to the award of a service contract whose estimatedvalue net of VAT is not less than:
— the threshold laid down in the first indent of Article 7 (1) (a), as
regards the services referred to in Annex I B, the services in cate-
gory 8 in Annex I A and the telecommunications services in
category 5 of Annex I A under CPC references 7524, 7525 and7526, awarded by the contracting authorities referred to in Article1 (b), or
— the threshold laid down in (i) of the second indent of Article 7 (1)
(a), as regards the services referred to in Annex I A with the excep-
tion of the services in category 8 and the telecommunicationsservices in category 5 under CPC refernces 7524, 7525 and 7526,awarded by the contracting authorities listed in Annex I to Directive93/36/EEC, or
— the threshold laid down in (ii) of the second indent of Article 7 (1)
(a), as regards the services referred to in Annex I A with the excep-tion of the services in category 8 and the telecommunicationsservices in category 5 under CPC references 7524, 7525 and 7526,awarded by the contracting authorities listed in Article 1 (b) other
than those referred to in Annex I to Directive 93/36/EEC.
2. This Article shall apply to all design contests where the total
amount of contest prizes and payments to participants is not less than:
— the threshold laid down in Article 7 (1) (a), first indent, as regards
the services referred to in Annex I B, the services in category 8 in
Annex I A and the telecommunications services in category 5 ofAnnex I A under CPC references 7524, 7525 and 7526, awardedby the contracting authorities referred to in Article 1 (b), or
— the threshold laid down in (i) of the second indent of Article 7 (1)
(a), as regards the services referred to in Annex I A with the excep-tion of the services in category 8 and the telecommunicationsservices in category 5 under CPC references 7524, 7525 and 7526,awarded by the contracting authorities listed in Annex I to Directive93/36/EEC, or1992L0050 — EN — 01.05.2004 — 005.001 — 10
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— the threshold laid down in (ii) of the second indent of Article 7 (1)
(a), as regards the services referred to in Annex I A with the excep-tion of the services in category 8 and the telecommunications
services in category 5 under CPC references 7524, 7525 and 7526,
awarded by the contracting authorities listed in Article 1 (b) otherthan those referred to in Annex I to Directive 93/36/EEC.
3. The rules for the organization of a design contest shall be in
conformity with the requirements of this Article and shall be commu-nicated to those interested in participating in the contest.
4. The admission of participants to design contests shall not be
limited:
— by reference to the territory or part of the territory of a Member
State,
— on the grounds that, under the law of the Member State in which
the contest is organized, they would have been required to be eithernatural or legal persons.
5. Where design contests are restricted to a limited number of parti-
cipants, the contracting authorities shall lay down clear and non-
discriminatory selection criteria. In any event, the number of candidatesinvited to participate shall be sufficient to ensure genuine competition.
6. The jury shall be composed exclusively of natural persons who
are independent of participants in the contest. Where a particular
professional qualification is required from participants in a contest, at
least a third of its members must have the same qualification or itsequivalent.
The jury shall be autonomous in its decisions or opinions. These shall
be reached on the basis of projects submitted anonymously and solelyon the grounds of the criteria indicated in the notice within the
meaning of Article 15 (3).
TITLE IV
Commonrulesinthetechnical field
Article 14
1. The technical specifications defined in Annex II shall be given in
the general documents or the contractual documents relating to each
contract.
2. Without prejudice to the legally binding national technical rules
and insofar as these are compatible with Community law, such tech-nical specifications shall be defined by the contracting authorities byreference to national standards implementing European standards or
by reference to European technical approvals or by reference to
common technical specifications.
3. A contracting authority may depart from paragraph 2 if:
(a) the standards, European technical approvals or common technical
specifications do not include any provisions for establishing confor-mity, or technical means do not exist for establishing satisfactorily
the conformity of a product with these standards, European tech-
nical approvals or common technical specifications;
(b) the application of paragraph 2 would prejudice the application of
Council Directive 86/361/EEC of 24 July 1986 on the initial stage
of the mutual recognition of type approval for telecommunicationsterminal equipment(
1), or Council Decision 87/95/EEC of 22
December 1986 on standardization in the field of information tech-nology and telecommunications(
2) or other Community instruments
in specific service or product areas;1992L0050 — EN — 01.05.2004 — 005.001 — 11
(1) OJ No L 217, 5. 8. 1986, p. 21. Amended by Directive 91/263/EEC (OJ No
L 128, 23. 5. 1991, p. 1).
(2) OJ No L 36, 7. 2. 1987, p. 31.▼B
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(c) these standards, European technical approvals or common technical
specifications would oblige the contracting authority to useproducts or materials incompatible with equipment already in use
or would entail disproportionate costs or disproportionate technical
difficulties, but only as part of a clearly defined and recordedstrategy with a view to the transition, with a given period, toEuropean standards, European technical approvals or common tech-nical specifications;
(d) the project concerned is of a genuinely innovative nature for which
use of existing European standards, European technical approvals
or common technical specifications would not be appropriate.
4. Contracting authorities invoking paragraph 3 shall record, wher-
ever possible, the reasons for doing so in the contract notice publishedin theOfficial Journal of the European Communities or in the contract
documents and in all cases shall record these reasons in their internal
documentation and shall supply such information on request to Member
States and to the Commission.
5. In the absence of European standards or European technical
approvals or common technical specifications, the technical specifica-
tions:
(a) shall be defined by reference to the national technical specifications
recognized as complying with the basic requirements listed in theCommunity directives on technical harmonization, in accordancewith the procedures laid down in those directives, and in particular
in accordance with the procedures laid down in Directive 89/106/
EEC(
1);
(b) may be defined by reference to national technical specifications
relating to design and method of calculation and execution ofworks and use of materials;
(c) may be defined by reference to other documents.
In this case, it is appropriate to make reference in order of prefer-
ence to:
(i) national standards implementing international standards
accepted by the country of the contracting authority;
(ii) other national standards and national technical approvals of the
country of the contracting authority;
(iii) any other standard.
6. Unless it is justified by the subject of the contract, Member States
shall prohibit the introduction into the contractual clauses relating to a
given contract of technical specifications which mention products of aspecific make or source or of a particular process and which thereforefavour or eliminate certain service providers. In particular, the indica-tion of trade marks, patents, types, or of specific origin or production
shall be prohibited. However, if such indication is accompanied by the
words ‘or equivalent’, it shall be authorized in cases where thecontracting authorities are unable to give a description of the subjectof the contract using specifications which are sufficiently precise andintelligible to all parties concerned.
TITLE V
Commonadvertisingrules
Article 15
1. Contracting authorities shall make known, by means of an indica-
tive notice to be published as soon as possible after the beginning oftheir budgetary year, the intended total procurement in each of theservice categories listed in Annex I A which they envisage awardingduring the subsequent 12 months where the total estimated value,1992L0050 — EN — 01.05.2004 — 005.001 — 12
(1) OJ No L 40, 11. 2. 1989, p. 12.
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taking account of the provisions of Article 7, is not less than
ECU 750000.
2. Contracting authorities who wish to award a public service
contract by open, restricted or, under the conditions laid down inArticle 11, negotiated procedure, shall make known their intention bymeans of a notice.
3. Contracting authorities who wish to carry out a design contest
shall make known their intention by means of a notice.
Article 16
1. Contracting authorities who have awarded a public contract or
have held a design contest shall send a notice of the results of theresults of the award procedure to the Office for Official Publication ofthe European Communities.
2. The notices shall be published:
— in the case of public contracts for services listed in Annex I A, in
accordance with Articles 17 to 20,
— in the case of design contests, in accordance with Article 17.
3. In the case of public contracts for services listed in Annex I B,
the contracting authorities shall indicate in the notice whether they
agree on its publication.
4. The Commission shall draw upthe rules for establishing regular
reports on the basis of the notices referred to in paragraph 3, and forthe publication of such reports in accordance with the procedure laiddown in Article 40 (3).
5. Where the release of information on the contract award would
impede law enforcement or otherwise be contrary to the public interestor would prejudice the legitimate commercial interests of a particularenterprise, public or private, or might prejudice fair competitionbetween service providers, such information need not be published.
Article 17
1. The notices shall be drawn upin accordance with the models set
out in Annexes III and IV and shall specify the information requested
in those models. The contracting authorities may not require any condi-tions other than those specified in Articles 31 and 32 when requestinginformation concerning the economic and technical standards whichthey require of service providers for their selection (section 13 of
Annex III B, section 13 of Annex III C, and section 12 of Annex III
D).
2. The contracting authorities shall send the notices as rapidly as
possible and by the most appropriate channels to the Office for OfficialPublications of the European Communities. In the case of the acceler-ated procedure referred to in Article 20, the notice shall be sent by
telex, telegram or fax.
The notice referred to in Article 15 (1) shall be sent as soon as possible
after the beginning of each budgetary year.
The notice referred to in Article 16 (1) shall be sent at the latest forty-
eight days after the award of the contract in question or the closure of
the design contest in question.
3. The notices referred to in Articles 15 (1) and 16 (1) shall be
published in full in the Official Journal of the European Communities
and in the TED data bank in the official languages of the Communities,the text in the original language alone being authentic.
4. The notices referred to in Article 15 (2) and (3) shall be published
in full in the Official Journal of the European Communities and in the
TED data bank in their original language. A summary of the importantelements of each notice shall be published in the official languages ofthe Communities, the text in the original language alone beingauthentic.1992L0050 — EN — 01.05.2004 — 005.001 — 13
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5. The Office for Official Publications of the European Commu-
nities shall publish the notices not later than 12 days after theirdispatch. In the case of the accelerated procedure referred to in Article
20, this period shall be reduced to five days.
6. The notices shall not be published in the official journals or in the
press of the country of the contracting authority before the date ofdispatch to the Office for Official Publications of the European
Communities; they shall mention that date. They shall not contain
information other than that published in the Official Journal of the
European Communities .
7. The contracting authorities must be able to supply proof of the
date of dispatch.
8. The cost of publication of the notices in the Official Journal of
the European Communities shall be borne by the Communities. The
length of the notice shall not be greater than one page of the Official
Journal, or approximately 650 words. Each edition of the Official
Journal containing one or more notices shall reproduce the modelnotice or notices on which the published notice or notices are based.
Article 18
1. In open procedures the time limit for the receipt of tenders shall
be fixed by the contracting authorities at not less than 52 days from thedate of dispatch of the notice.
2. The time limit for receipt of tenders laid down in paragraph 1
may be replaced by a period sufficiently long to permit responsive
tendering, which, as a general rule, shall be not less than 36 days and
in any case not less than 22 days, from the date on which the contractnotice was dispatched, if the contracting authorities have sent the indi-cative notice provided for in Article 15 (1) drafted in accordance withthe model in Annex III A (Prior information) to the Official Journal of
the European Communities within a minimum of 52 days and a
maximum of 12 months before the date on which the contract notice
provided for in Article 15 (2) was dispatched to the Official Journal
of the European Communities , provided that the indicative notice
contained, in addition, at least as much of the information referred toin the model notice in Annex III B (Open procedure) as was available
at the time of publication of the notice.
3. Provided that they have been requested in good time, the contract
documents and supporting documents shall be sent to the service provi-ders by the contracting authorities or competent departments within sixdays of receipt of their application.
4. Provided that it has been requested in good time, additional infor-
mation relating to the contract documents shall be supplied by thecontracting authorities not later than six days before the final date fixedfor receipt of tenders.
5. Where the contract documents, supporting documents or addi-
tional information are too bulky to be supplied within the time limitslaid down in paragraph 3 or 4 or where the tenders can be made onlyafter a visit to the site or after on-the-spot inspection of the documentssupporting the contract documents, the time limits laid down in para-
graph 1 and 2 shall be extended accordingly.
Article 19
1. In restricted procedures and negotiated procedures within the
meaning of Article 11 (2), the time limit for receipt of requests to parti-
cipate fixed by the contracting authorities shall be not less than 37 days
from the date of dispatch of the notice.
2. The contracting authorities shall simultaneously and in writing
invite the selected candidates to submit their tenders. The letter of invi-1992L0050 — EN — 01.05.2004 — 005.001 — 14
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tation shall be accompanied by the contract documents and supporting
documents. It shall include at least the following information:
(a) where appropriate, the address of the service from which the
contract documents and supporting documents can be requested
and the final date for making such a request; also the amount and
terms of payment of any sum to be paid for such documents;
(b) the final date for receipt of tenders, the address to which they must
be sent and the language or languages in which they must be drawnup;
(c) a reference to the contract notice published;
(d) an indication of any documents to be annexed, either to support the
verifiable statements furnished by the candidate in accordance withArticle 17 (1), or to supplement the information provided for inthat Article under the same conditions as those laid down in Arti-
cles 31 and 32;
(e) the criteria for the award of the contract if these are not given in
the notice.
3. In restricted procedures, the time limit for receipt of tenders fixed
by the contracting authorities may not be less than forty days from thedate of dispatch of the written invitation.
4. The time limit for receipt of tenders laid down in paragraph 3
may be reduced to 26 days if the contracting authorities have sent the
indicative notice provided for in Article 15 (1) drafted in accordance
with the model in Annex III A (Prior information) to the Official
Journal of the European Communities within a minimum of 52 days
and a maximum of 12 months before the date on which the contractnotice provided for in Article 15 (2) was dispatched to the Official
Journal of the European Communities , provided that the indicative
notice contained, in addition, at least as much of the informationreferred to in the model in Annex III C (Restricted procedure) or,where applicable, Annex III D (Negotiated procedure) as was availableat the time of publication of the notice.
5. Requests to participate in procedures for the award of contracts
may be made by letter, telegram, telex, fax or telephone. If by one of
the last four, they must be confirmed by letter dispatched before the
end of the period laid down in paragraph 1.
6. Provided it has been requested in good time, additional informa-
tion relating to the contract documents must be supplied by thecontracting authorities not later than six days before the final date fixedfor the receipt of tenders.
7. Where tenders can be made only after a visit to the site or after
on-the-spot inspection of the documents supporting the contract docu-ments, the time limit laid down in paragraphs 3 and 4 shall be
extended accordingly.
Article 20
1. In cases where urgency renders impracticable the time limits laid
down in Article 19, the contracting authorities may fix the followingtime limits:
(a) a time limit for receipt of requests to participate which shall be not
less than 15 days from the date of dispatch of the notice;
(b) a time limit for the receipt of tenders which shall be not less than
10 days from the date of the invitation to tender.
2. Provided it has been requested in good time, additional informa-
tion relating to the contract documents must be supplied by thecontracting authorities not later than four days before the final datefixed for the receipt of tenders.
3. Requests for participation in contracts and invitations to tender
must be made by the most rapid means of communication possible.1992L0050 — EN — 01.05.2004 — 005.001 — 15
▼M2
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When requests to participate are made by telegram, telex, fax or tele-
phone, they must be confirmed by letter dispatched before the expiry ofthe time limit referred to in paragraph 1.
Article 21
Contracting authorities may arrange for the publication in the Official
Journal of the European Communities of notices announcing public
service contracts which are not subject to the publication requirementlaid down in this Directive.
Article 22
The conditions for the drawing up, transmission, receipt, translation,
collection and distribution of the notices referred to in Articles 15, 16and 17 and of the statistical reports provided for in Articles 16 (4) and39 and the nomenclature provided for in Annexes I A and B together
with the reference in the notices to particular positions of the nomen-
clature within the categories of services listed in those Annexes may bemodified in accordance with the procedure laid down in Article 40 (3).
TITLE VI
CHAPTER1
Commonrulesonparticipation
Article 23
►M21.◄Contracts shall be awarded on the basis of the criteria
laid down in Chapter 3, taking into account Article 24, after the suit-
ability of the service providers not excluded under Article 29 has beenchecked by the contracting authorities in accordance with the criteriareferred to in Articles 31 and 32.
2. Tenders shall be submitted in writing, directly or by mail.
Member States may authorize the submission of tenders by any othermeans making it possible to ensure:
— that each tender contains all the information necessary for its
evaluation,
— that the confidentiality of tenders is maintained pending their
evaluation,
— that, where necessary, for reasons of legal proof, such tenders are
confirmed as soon as possible in writing or by dispatch of a certi-
fied copy,
— that tenders are opened after the time limit for their submission has
expired.
Article 24
1. Where the criterion for the award of the contract is that of the
economically most advantageous tender, contracting authorities maytake account of variants which are submitted by a tenderer and meetthe minimum specifications required by such contracting authorities.
The contracting authorities shall state in the contract documents the
minimum specifications to be respected by the variants and anyspecific requirements for their presentation. They shall indicate in thecontract notice if variants are not authorized.
Contracting authorities may not reject the submission of a variant on
the sole grounds that it has been drawn upwith technical sp ecifications
defined by reference to national standards transposing European stan-dards, to European technical approvals or to common technicalspecifications referred to in Article 14 (2) or even by reference tonational technical specifications referred to in Article 14 (5) (a) and(b).1992L0050 — EN — 01.05.2004 — 005.001 — 16
▼M2
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2. Contracting authorities which have admitted variants pursuant to
paragraph 1 may not reject a variant on the sole grounds that it wouldlead, if successful, to a supply contract rather than a public service
contract within the meaning of this Directive.
Article 25
In the contract documents, the contracting authority may ask the
tenderer to indicate in his tender any share of the contract he may
intend to subcontract to third parties.
This indication shall be without prejudice to the question of the prin-
cipal service provider's liability.
Article 26
1. Tenders may be submitted by groups of service providers. These
groups may not be required to assume a specific legal form in order to
submit the tender; however, the groupselected may be required to doso when it has been awarded the contract.
2. Candidates or tenderers who, under the law of the Member State
in which they are established, are entitled to carry out the relevantservice activity, shall not be rejected solely on the grounds that, underthe law of the Member State in which the contract is awarded, they
would have been required to be either natural or legal persons.
3. Legal persons may be required to indicate in the tender or the
request for participation the names and relevant professional qualifica-
tions of the staff to be responsible for the performance of the service.
Article 27
1. In restricted and negotiated procedures the contracting authorities
shall, on the basis of information given relating to the service provi-
der's position as well as to the information and formalities necessaryfor the evaluation of the minimum conditions of an economic and tech-nical nature to be fulfilled by him, select from among the candidateswith the qualifications required by Articles 29 to 35 those whom they
will invite to submit a tender or to negotiate.
2. Where the contracting authorities award a contract by restricted
procedure, they may prescribe the range within which the number of
service providers which they intend to invite will fall. In this case therange shall be indicated in the contract notice. The range shall be deter-mined in the light of the nature of the service to be provided. Therange must number at least five service providers and may be up to
twenty.
In any event, the number of candidates invited to tender shall be suffi-
cient to ensure genuine competition.
3. Where the contracting authorities award a contract by negotiated
procedure as referred to in Article 11 (2), the number of candidatesadmitted to negotiate may not be less than three, provided that thereis a sufficient number of suitable candidates.
4. Each Member State shall ensure that contracting authorities issue
invitations without discrimination to those nationals of other MemberStates who satisfy the necessary requirements and under the same
conditions as to its own nationals.
Article 28
1. The contracting authority may state in the contract documents, or
be obliged by a Member State to do so, the authority or authorities
from which a tenderer may obtain the appropriate information on the
obligations relating to the employment protection provisions and theworking conditions which are in force in the Member State, region orlocality in which the services are to be performed and which shall beapplicable to the services provided on site during the performance ofthe contract.1992L0050 — EN — 01.05.2004 — 005.001 — 17
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2. The contracting authority which supplies the information referred
to in paragraph 1 shall request the tenderers or those participating inthe contract award procedure to indicate that they have taken account,
when drawing uptheir tender, of the obligations relating to emp loy-
ment protection provisions and the working conditions which are inforce in the place where the service is to be carried out. This shall bewithout prejudice to the application of the provisions of Article 37concerning the examination of abnormally low tenders.
CHAPTER2
Criteria forqualitativeselection
Article 29
Any service provider may be excluded from participation in a contract
who:
(a) is bankrupt or is being wound up, whose affairs are being adminis-
tered by the court, who has entered into an arrangement withcreditors, who has suspended business activities or who is in anyanalogous situation arising from a similar procedure under nationallaws and regulations;
(b) is the subject of proceedings for a declaration of bankruptcy, for an
order for compulsory winding-up or administration by the court orfor an arrangement with creditors or of any other similar proceed-ings under national laws or regulations;
(c) has been convicted of an offence concerning his professional
conduct by a judgement which has the force of res judicata;
(d) has been guilty of grave professional misconduct proven by any
means which the contracting authorities can justify;
(e) has not fulfilled obligations relating to the payment of social
security contributions in accordance with the legal provisions ofthe country in which he is established or with those of the countryof the contracting authority;
(f) has not fulfilled obligations relating to the payment of taxes in
accordance with the legal provisions of the country of thecontracting authority;
(g) is guilty of serious misrepresentation in supplying or failing to
supply the information that may be required under this Chapter.
Where the contracting authority requires of the service provider proof
that none of the cases quoted in (a), (b), (c), (e), or (f) applies to him, itshall accept as sufficient evidence:
— for (a), (b) or (c), the production of an extract from the ‘judicial
record’ or, failing this, of an equivalent document issued by a
competent judicial or administrative authority in the country of
origin or in the country whence that person comes showing thatthese requirements have been met,
— for (e) or (f), a certificate issued by the competent authority in the
Member State concerned.
Where the country concerned does not issue such documents or certifi-
cates, they may be replaced by a declaration on oath made by theperson concerned before a judicial or administrative authority, a notaryor a competent professional or trade body, in the country of origin or in
the country whence that person comes.
Member States shall, within the time limit referred to in Article 44,
designate the authorities and bodies competent to issue such documentsor certificates and shall forthwith inform the other Member States andthe Commission thereof.
Article 30
1. In so far as candidates for a public contract or tenderers have to
possess a particular authorization or to be members of a particularorganization in their home country in order to be able to perform the1992L0050 — EN — 01.05.2004 — 005.001 — 18
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service concerned, the contracting authority may require them to prove
that they hold such authorization or membership.
2. Any candidate or tenderer may be requested to prove his enrol-
ment, as prescribed in his country of establishment, in one of the
professional or trade registers or to provide a declaration or certificateas described in paragraph 3 below.
3. The relevant professional and trade registers or declarations or
certificates are:
— in Belgium, the ‘registre du commerce — Handelsregister’ and the
‘ordres professionels — Beroepsorden’,
— in Denmark, the ‘Erhvervs- og Selskabstyrelsen’,— in Germany, the ‘Handelsregister’, the ‘Handwerksrolle’ and the
‘Vereinsregister’,
— in Greece, the service provider may be asked to provide a declara-
tion on the exercise of the profession concerned made on oathbefore a notary; in the cases provided for by existing national legis-lation, for the provision of research services as mentioned in AnnexI A, the professional register ‘ Μητρώο Μελετητών ’ανδ
‘Μητρώο Γραφείων Μελετών ’,
— in Spain, the ‘Registro Central de Empresas Consultoras y de Servi-
cios del Ministerio de Economía y Hacienda’,
— in France, the ‘registre du commerce’ and the ‘répertoire des
métiers’,
— in Italy, the ‘Registro della Camera di commercio, industria, agri-
coltura e artigianato’, the ‘Registro delle commissioni provincialiper l'artigianato’ or the ‘Consiglio nazionale degli ordini professio-nali’,
— in Luxembourg, the ‘registre aux firmes’ and the ‘rôle de la
Chambre des métiers’,
— in the Netherlands, the ‘Handelsregister’,— in Portugal, the ‘Registro nacional das Pessoas Colectivas’,— in the United Kingdom and Ireland, the service provider may be
requested to provide a certificate from the Registrar of Companiesor the Registrar of Friendly Societies or, if he is not so certified, acertificate stating that the person concerned has declared on oaththat he is engaged in the profession in question in the country in
which he is established in a specific place under a given business
name,
— in Austria, the ‘Firmenbuch’, the ‘Gewerberegister’, the ‘Mitglie-
derverzeichnisse der Landeskammern’,
— in Finland, ‘Kaupparekisteri’/‘Handelsregistret’,— in Sweden, ‘Aktiebolags’-, ‘Handels- eller föreningsregistren’,
— in the Czech Republic, the ‘obchodní rejst řík’,
— in Estonia, the ‘Keskäriregister’,— in Cyprus, the service provider may be requested to provide a certi-
ficate from the Registrar of Companies and Official Receiver(Έφορος Εταιρειών και Επίσηµος Παραλήπτης ), that he is
certified as incorporated or registered or, if he is not so certified, acertificate stating that the person concerned has declared on oath
that he is engaged in the profession in question in the country in
which he is established, in a specific place and under a given busi-ness name.
— in Latvia, the ‘Uz ņēmumu re ģistrs’ (‘Enterprise Register’),
— in Lithuania, the ‘Juridini ųasmen ųregistras’,
— in Hungary, the ‘Cégnyilvántartás’, the ‘egyéni vállalkozók jegyz ői
nyilvántartása’, certain ‘szakmai kamarák nyilvántartása’ or in thecase of certain activities, a certificate stating that the personconcerned is entitled to be engaged in the business activity orprofession in question,
— in Malta, a tenderer (or supplier) shall quote his ‘numru ta'
reġistrazzjoni tat- Taxxa tal- Valur Mi żjud (VAT) u n- numru tal-1992L0050 — EN — 01.05.2004 — 005.001 — 19
▼A1
▼A2
▼A2
liċenzja ta' kummer ċ’, and, if in a partnership or company, the rele-
vant registration number as issued by the Malta Financial ServicesAuthority,
— in Poland, ‘Krajowy Rejestr S ądowy’ (National Court Registry),
— in Slovenia, the ‘Sodni register’ and the ‘obrtni register’,— in Slovakia, the ‘Obchodný register’.
Article 31
1. Proof of the service provider's financial and economic standing
may, as a general rule, be furnished by one or more of the following
references:
(a) appropriate statements from banks or evidence of relevant profes-
sional risk indemnity insurance;
(b) the presentation of the service provider's balance sheets or extracts
therefrom, where publication of the balance sheets is requiredunder company law in the country in which the service provider isestablished;
(c) a statement of the undertaking's overall turnover and its turnover in
respect of the services to which the contract relates for the previousthree financial years.
2. The contracting authorities shall specify in the contract notice or
in the invitation to tender which reference or references mentioned inparagraph 1 they have chosen and which other references are to beproduced.
3. If, for any valid reason, the service provider is unable to provide
the references requested by the contracting authority, he may prove hiseconomic and financial standing by any other document which thecontracting authority considers appropriate.
Article 32
1. The ability of service providers to perform services may be eval-
uated in particular with regard to their skills, efficiency, experience andreliability.
2. Evidence of the service provider's technical capability may be
furnished by one or more of the following means according to the
nature, quantity and purpose of the services to be provided:
(a) the service provider's educational and professional qualifications
and/or those of the firm's managerial staff and, in particular, thoseof the person or persons responsible for providing the services;
(b) a list of the principal services provided in the past three years, with
the sums, dates and recipients, public or private, of the servicesprovided;
— where provided to contracting authorities, evidence to be in the
form of certificates issued or countersigned by the competentauthority,
— where provided to private purchasers, delivery to be certified by
the purchaser or, failing this, simply declared by the serviceprovider to have been effected;
(c) an indication of the technicians or technical bodies involved,
whether or not belonging directly to the service provider, especiallythose responsible for quality control;
(d) a statement of the service provider's average annual manpower and
the number of managerial staff for the last three years;
(e) a statement of the tool, plant or technical equipment available to
the service provider for carrying out the services;
(f) a description of the service provider's measures for ensuring quality
and his study and research facilities;
(g) where the services to be provided are complex or, exceptionally,
are required for a special purpose, a check carried out by the1992L0050 — EN — 01.05.2004 — 005.001 — 20
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contracting authority or on its behalf by a competent official body
of the country in which the service provider is established, subjectto that body's agreement, on the technical capacities of the service
provider and, if necessary, on his study and research facilities and
quality control measures;
(h) an indication of the proportion of the contract which the service
provider may intend to sub-contract.
3. The contracting authority shall specify, in the notice or in the
invitation to tender, which references it wishes to receive.
4. The extent of the information referred to in Article 31 and in
paragraphs 1, 2 and 3 of this Article must be confined to the subject
of the contract; contracting authorities shall take into consideration thelegitimate interests of the service providers as regards the protection oftheir technical or trade secrets.
Article 33
Where contracting authorities require the production of certificates
drawn upby indep endent bodies for attesting conformity of the servicewith certain quality assurance standards, they shall refer to qualityassurance systems based on the relevant EN 29 000 European standards
series certified by bodies conforming to the EN 45 000 European stan-
dards series. They shall recognize equivalent certificates from bodiesestablished in other Member States. They shall also accept otherevidence of equivalent quality assurance measures from service provi-ders who have no access to such certificates, or no possibility ofobtaining them within the relevant time limits.
Article 34
Within the limits of Articles 29 to 32, contracting authorities may
invite the service providers to supplement the certificates and docu-
ments submitted or to clarify them.
Article 35
1. Member States who have official lists of recognized service
providers must adapt them to the provisions of Articles 29 (a) to (d)
and (g) and of Articles 30, 31 and 32.
2. Service providers registered in the official lists may, for each
contract, submit to the contracting authority a certificate of registrationissued by the competent authority. This certificate shall state the refer-ence which enabled them to be registered in the list and theclassification given in this list.
3. Certified registration in official lists of service providers by the
competent bodies shall, for the contracting authorities of other Member
States, constitute a presumption of suitability corresponding to the
service provider's classification only as regards Article 29 (a) to (d)and (g), Article 30, Article 31 (b) and (c) and Article 32 (a).
Information which can be deduced from registration in official lists
may not be questioned. However, with regard to the payment of socialsecurity contributions, an additional certificate may be required of anyregistered service provider whenever a contract is offered.
The contracting authorities of other Member States shall apply the
above provisions only in favour of service providers established in the
Member State holding the official list.
4. When registering service providers from other Member States in
an official list, no proof or statement can be required in addition tothose required of national service providers and, in any case, none inaddition to those required in Articles 29 to 33.
5. Member States which have official lists shall be obliged to inform
the other Member States of the address of the body to which applica-tions for registration should be sent.1992L0050 — EN — 01.05.2004 — 005.001 — 21
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CHAPTER3
Criteria fortheawardofcontracts
Article 36
1. Without prejudice to national laws, regulations or administrative
provisions on the remuneration of certain services, the criteria onwhich the contracting authority shall base the award of contracts maybe:
(a) where the award is made to the economically most advantageous
tender, various criteria relating to the contract: for example,quality, technical merit, aesthetic and functional characteristics,technical assistance and after-sales service, delivery date, deliveryperiod or period of completion, price; or
(b) the lowest price only.
2. Where the contract is to be awarded to the economically most
advantageous tender, the contracting authority shall state in the contract
documents or in the tender notice the award criteria which it intends to
apply, where possible in descending order of importance.
Article 37
If, for a given contract, tenders appear to be abnormally low in relation
to the service to be provided, the contracting authority shall, before it
may reject those tenders, request in writing details of the constituent
elements of the tender which it considers relevant and shall verifythose constituent elements taking account of the explanations received.
The contracting authority may take into consideration explanations
which are justified on objective grounds including the economy of the
method by which the service is provided, or the technical solutions
chosen, or the exceptionally favourable conditions available to thetenderer for the provision of the service, or the originality of theservice proposed by the tenderer.
If the documents relating to the contract provide for its award at the
lowest price tendered, the contracting authority must communicate to
the Commission the rejection of tenders which it considers to be toolow.
TITLE VII
Finalprovisions
Article 38
The calculation of time limits shall be made in accordance with
Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 deter-mining the rules applicable to periods, dates and time limits(
1)
Article 38a
For the purposes of the award of public contracts by contracting autho-
rities, Member States shall apply in their relations conditions as
favourable as those which they grant to third countries in implementa-
tion of the Agreement on government procurement, concluded in theframework of the Uruguay Round multilatertal negotiations(
2), herein-
after referred to as ‘the Agreement’. Member States shall to this endconsult each other within the Advisory Committee for Public Contractson the measures to be taken pursuant to the Agreement.1992L0050 — EN — 01.05.2004 — 005.001 — 22
(1) OJ No L 124, 8. 6. 1971, p. 1.
(2) Council Decision 94/800/EC of 22 December 1994 concerning the conclu-
sion on behalf of the European Community, as regards matters within its
competence, of the Agreements reached in the Uruguay Round multilateral
negotiations (1986 to 1994) (OJ L 336, 23. 12. 1994, p. 1).▼M2
▼M2
Article 39
1. In order to permit assessment of the results of applying this
Directive, Member States shall forward to the Commission a statisticalreport on the service contracts awarded by contracting authoritiesduring the preceding year not later than 31 October 1997 and thereafter
not later than 31 October each year.
2. This report shall detail at least:
(a) in the case of contracting authorities listed in Annex I to Directive
93/36/EEC:
— the estimated overall value of contracts awarded below the
threshold by each contracting authority,
— the number and value of contracts awarded above the threshold
by each contracting authority, subdivided as far as possible by
procedure, category of service according to the nomenclatureused in Annex I and the nationality of the service provider towhom the contract has been awarded and, in the case of nego-tiated procedures, subdivided in accordance with Article 11,listing the number and value of contracts awarded to each
Member State and to third countries;
(b) in the case of all other contracting authorities subject to this Direc-
tive, for each category of contracting authority, the number andvalue of contracts awarded above the threshold, subdivided, as faras possible, by procedure, category of service according to the
nomenclature used in Annex I and the nationality of the service
provider to whom the contract has been awarded and, in the caseof negotiated procedures, subdivided in accordance with Article11, listing the number and value of contracts awarded to eachMember State and to third countries;
(c) in the case of contracting authorities listed in Annex I to Directive
93/36/EEC, the number and total value of contracts awarded by
each contracting authority pursuant to derogations to the Agree-ment; in the case of all other contracting authorities subject to thisDirective, the total value of contracts awarded by each category ofcontracting authority pursuant to derogations to the Agreement;
(d) any other statistical information, to be determined pursuant to the
procedure provided for in Article 40 (3), which is required inaccordance with the Agreement.
The statistical information required pursuant to this paragraph shall not
concern contracts having as their object services listed in category 8 ofAnnex I A, the telecommunications services in category 5 of Annex IA, under CPC references 7524, 7525 and 7526, or the services listed inAnnex I B, provided that their estimated value, net of VAT, is less than
ECU 200000.
3. The Commission shall determine, in accordance with the proce-
dure laid down in Article 40 (3), the nature of any statistical
information required pursuant to this Directive.
Article 40
1. The Commission shall be assisted by the Advisory Committee for
Public Contracts set upby Decision 71/306/EEC.
2. As regards telecommunications services falling within category 5
of Annex I A, the Commission shall also be assisted by the Advisory
Committee on Telecommunications Procurement set upby Directive
90/531/EEC.
3. Where reference is made to the procedure laid down in this para-
graph, the representative of the Commission shall submit to theCommittee a draft of the measures to be taken. The Committee shalldeliver its opinion on the draft within a time limit which the chairmanmay lay down according to the urgency of the matter, if necessary bytaking a vote.1992L0050 — EN — 01.05.2004 — 005.001 — 23
▼B
▼B
The opinion shall be recorded in the minutes; in addition, each Member
State shall have the right to ask to have its position recorded in theminutes.
The Commission shall take the utmost account of the opinion delivered
by the Committee. It shall inform the Committee of the manner inwhich its opinion has been taken into account.
4. The Committees mentioned in paragraphs 1 and 2 shall examine,
on the initiative of the Commission or at the request of a MemberState, any question relating to the application of the Directive.
Article 41
Article 1 (1) of Council Directive 89/665/EEC of 21 December 1989
on the coordination of the laws, regulations and administrative provi-
sions relating to the application of review procedures to the award ofpublic supply and public works contracts(
1) shall be replaced by the
following:
‘1. The Member States shall take the measures necessary to
ensure that, as regards contract award procedures falling withinthe scope of Directives 71/305/EEC, 77/62/EE, and 92/50/EEC (
+),
decisions taken by the contracting authorities may be reviewedeffectively and, in particular, as rapidly as possible in accordance
with the conditions set out in the following Articles and, in parti-
cular, Article 2 (7) on the grounds that such decisions haveinfringed Community law in the field of public procurement ornation rules implementing that law. (*)OJ No L 209, 24. 7. 1992, p. 1.’
Article 42
2. Article 4a (2) of Directive 71/305/EEC shall be replaced by the
following:
‘2. (a) The value of the threshold in national currencies shall
normally be revised every two years with effect from 1
January 1992. The calculation of this value shall be basedon the average daily values of these currencies expressedin ecus over the 24 months terminating on the last day ofAugust immediately preceding the 1 January revision.These values shall be published in the Official Journal of
the European Communities at the beginning of November.
(b) The method of calculation laid down in subparagraph (a)
shall be reviewed, on a proposal from the Commission, bythe Advisory Committee for Public Contracts in principle
two years after its initial application.’
Article 43
Not later than three years after the time limit for compliance with this
Directive, the Commission, acting in close cooperation with theCommittees referred to in Article 40 (1) and (2), shall review the manin which this Directive has operated, including the effects of the appli-cation of the Directive to procurement of the services listed in Annex I
A and the provisions concerning technical standards. It shall evaluate,
in particular, the prospects for the full application of the Directive toprocurement of the other services listed in Annex I B, and the effectsof in-house performance of services on the effective opening-up ofprocurement in this area. It shall make the necessary proposals to adaptthe Directive accordingly.1992L0050 — EN — 01.05.2004 — 005.001 — 24
(1) OJ No L 395, 30. 12. 1989, p. 33.▼M1
▼B
▼B
Article 44
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive
before 1 July 1993. They shall forthwith inform the Commission
thereof.
When Member States adopt these provisions, they shall contain a refer-
ence to this Directive or shall be accompanied by such reference on theoccasion of their official publication. The methods of making such areference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the texts of
the main provisions of national law which they adopt in the field
governed by this Directive.
Article 45
This Directive is addressed to the Member States.1992L0050 — EN — 01.05.2004 — 005.001 — 25
▼B
ANNEX I A
ServiceswithinthemeaningofArticle8
Category No Subject CPC Reference No
1. Maintenance and repair services 6112, 6122, 633, 886
2. Land transport services (1), including armoured car
services, and courier services, except transport of mail712 (except 71235), 7512,
87304
3. Air transport services of passengers and freight, except
transport of mail73 (except 7321)
4. Transport of mail by land (1) and by air 71235, 7321
5. Telecommunications services (2) 752
6. Financial services
(a) Insurance services
(b) Banking and investment services (3)ex 81
812, 814
7. Computer and related services 84
8. R&D services (4)8 5
9. Accounting, auditing and book-keeping services 862
10. Market research and public opinion polling services 86411. Management consultant services (
5) and related
services865, 866
12. Architectural services; engineering services and inte-
grated engineering services; urban planning and land-
scape architectural services; related scientific and
technical consulting services; technical testing and
analysis services867
13. Advertising services 871
14. Building-cleaning services and property management
services874
82201 to 82206
15. Publishing and printing services on a fee or contract
basis88442
16. Sewage and refuse disposal services; sanitation and
similar services94
(1) Except for rail transport services covered by Category 18.
(2) Except voice telephony, telex, radiotelephony, paging and satellite services.
(3) Except contracts for financial services in connection with the issue, sale, purchase or transfer of securities or
other financial instruments, and central bank services.
(4) Except research and development service contracts other than those where the benefits accrue exclusively to the
contracting authority for its use in the conduct of its own affairs on condition that the service provided is whollyremunerated by the contracting authority.
(
5) Except arbitration and conciliation services.1992L0050 — EN — 01.05.2004 — 005.001 — 26
▼B
ANNEX I B
ServiceswithinthemeaningofArticle9
Category No Subject CPC Reference No
17. Hotel and restaurant services 64
18. Rail transport services 71119. Water transport services 7220. Supporting and auxiliary transport services 74
21. Legal services 861
22. Personnel placement and supply services 87223. Investigation and security services, except armoured
car services873 (except 87304)
24. Education and vocational education services 92
25. Health and social services 9326. Recreational, cultural and sporting services 9627. Other services1992L0050 — EN — 01.05.2004 — 005.001 — 27
▼B
ANNEX II
Definitionofcertaintechnical specifications
For the purpose of this Directive the following terms shall be defined as
follows:
1.Technical specifications: the totality of the technical prescriptions contained
in particular in the tender documents, defining the characteristics required of
a work, material, product or supply, which permits a work, a material, a
product or a supply to be described in a manner such that it fulfils the use
for which it is intended by the contracting authority. These technical
prescriptions shall include levels of quality, performance, safety or dimen-
sions, including the requirements applicable to the material, the product or
to the supply as regards quality assurance, terminology, symbols, testing and
test methods, packaging, marking or labelling. They shall also include rules
relating to design and costing, the test, inspection and acceptance conditions
for works and methods or techniques of construction and all other technical
conditions which the contracting authority is in a position to prescribe, under
general or specific regulations, in relation to the finished works and to the
materials or parts which they involve.
2.Standard: a technical specification approved by a recognized standardizing
body for repeated and continuous application, compliance with which is inprinciple not compulsory.
3.European standard: a standard approved by the European Committee for
Standardization (CEN) or by the European Committee for Electrotechnical
Standardization (Cenelec) as ‘European Standards (EN)’ or ‘Harmonization
documents (HD)’ according to the common rules of these organizations or
by the European Telecommunications Standards Institute (ETSI) as a
‘European Telecommunication Standard’ (ETS).
4.European technical approval: a favourable technical assessment of the
fitness for use of a product, based on fulfilment of the essential requirements
for building works, by means of the inherent characteristics of the product
and the defined conditions of applications and use. European approval shall
be issued by an approval body designated for this purpose by the Member
State;
5.Common technical specification: a technical specification laid down in accor-
dance with a procedure recognized by the Member States to ensure uniform
application in all Member States which has been published in the Official
Journal of the European Communities .
6.Essential requirements: requirements regarding safety, health and certain
other aspects in the general interest, that the construction works can meet.1992L0050 — EN — 01.05.2004 — 005.001 — 28
▼M2
ANNEX III
MODELNOTICEOFSERVICESCONTRACTS
1992L0050 — EN — 01.05.2004 — 005.001 — 29
▼M3
▼C1
▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼B
ANNEX IV
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▼M3
▼C1
▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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▼C1
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