COMMON POSITION (EC) No 12/97 adopted by the Council on 20 December 1996 with a view to adopting European Parliament and Council Directive 97/. . ./EC of . . ., amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (97/C 111/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community and in particular Articles 57 (2), 66 and 100a thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure referred to in Article 189b of the Treaty (3),

(1) Whereas the Council, by its Decision 94/800/EC of 22 December 1994 concerning the conclusion 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) (4), approved on behalf of the Community, inter alia, the Agreement on government procurement, hereinafter referred to as 'the Agreement`, the purpose of which is to establish a multilateral framework of balanced rights and obligations with respect to government procurement with a view to achieving liberalization and expansion of world trade; whereas the Agreement has no direct effect;

(2) Whereas Directive 93/38/EEC (5) coordinated the national procedures relating to the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, in order to introduce equal conditions of competition for such contracts in all the Member States;

(3) Whereas the contracting entities covered by the Agreement which comply with Directive 93/38/EEC, as amended by this Directive, and which apply the same provisions as regards contractors, suppliers and providers of services of third countries signatory to the Agreement are therefore in conformity with the Agreement;

(4) Whereas, in view of the international rights and commitments devolving on the Community as a result of the acceptance of the Agreement, the arrangements to be applied to tenderers and products from signatory third countries are those defined by the Agreement, the scope of which does not include contracts awarded by contracting entities referred to in Article 2 (1) (b) of Directive 93/38/EEC, contracts awarded by contracting entities carrying out activities referred to in Annexes III, IV, V, VI and X of that Directive, service contracts listed in Annex XVI B thereto, R& D service contracts mentioned in category 8 of Annex XVI A thereto, telecommunications service contracts mentioned in category 5 of Annex XVI A thereto, whose common products classification (CPC) numbers are 7524, 7525 and 7526 and financial service contracts mentioned in category 6 of Annex XVI A thereto, in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services;

(5) Whereas certain provisions of the Agreement introduce more favourable conditions for tenderers than those laid down in Directive 93/38/EEC;

(6) Whereas, when contracts are awarded by contracting entities within the meaning of the Agreement, the opportunities for access to public service, public supply and public works contracts available pursuant to the Treaty to undertakings and products from the Member States must be at least as favourable as the conditions of access to public contracts within the Community accorded pursuant to the arrangements contained in the Agreement to undertakings and products from third countries which are signatories to the Agreement;

(7) Whereas it is therefore necessary to adapt and supplement the provisions of Directive 93/38/EEC;

(8) Whereas the need to ensure a real opening-up of the market and a fair balance in the application of procurement rules in these sectors continues to require that the entities to be covered must be identified on a basis other than by reference to their legal status;

(9) Whereas the amendments made to Directive 93/38/EEC should not prejudice the equal treatment of contracting entities operating in the public sector and in the private sector;

(10) Whereas it must be ensured, in keeping with Article 222 of the Treaty, that the rules in Member States governing the system of property ownership are not to be prejudiced;

(11) Whereas the application of Directive 93/38/EEC must be simplified and the balance which has been reached in the current Community legislation in the field of public procurement in these sectors must be maintained as far as possible;

(12) Whereas it is therefore necessary to extend the applicability of certain of the adaptations of Directive 93/38/EEC to all the contracting entities and sectors covered by this Directive;

(13) Whereas the rules contained in Article VI (4) of the Agreement, whereby contracting entities shall not seek or accept, in a manner which would have the effect of precluding competition, advice which may be used in the preparation of specifications for a specific procurement from a firm that may have a commercial interest in the procurement, are implicit in Article 4 (2) of Directive 93/38/EEC; whereas, therefore, an amendment to the Directive to that effect is superfluous;

(14) Whereas the opening-up of contracts in the sectors covered by this Directive might have adverse effects on the economies of the Hellenic Republic and the Portuguese Republic, which will have to endure considerable strain; whereas it is appropriate that these Member States be granted adequate additional periods to implement this Directive,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Without prejudice to the international rights and commitments devolving on the Community as a result of the acceptance of the Agreement, which defines the arrangements to be applied to tenderers and products from third countries which are signatories to the Agreement, the current scope of which does not include contracts awarded by contracting entities referred to in Article 2 (1) (b) of Directive 93/38/EEC, contracts awarded by contracting entities carrying out activities referred to in Annexes III, IV, V, VI and X of that Directive, service contracts listed in Annex XVI B thereto, development service contracts mentioned in category 8 of Annex XVI A thereto, telecommunications service contracts mentioned in category 5 of Annex XVI A thereto, whose common product classification (CPC) numbers are 7524, 7525 and 7526, and financial service contracts mentioned in category 6 of Annex XVI A thereto in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services, Directive 93/38/EEC is hereby amended as follows:

1. in Article 14:

(a) paragraph 1 shall be replaced by the following:

'1. This Directive shall apply to:

(a) contracts awarded by contracting entities carrying out activities referred to in Annex X (*), provided that the estimated value, net of value-added tax (VAT), is not less than:

(i) ECU 600 000 in the case of supply and service contracts;

(ii) ECU 5 000 000 in the case of works contracts;

(b) contracts awarded by contracting entities carrying out activities referred to in Annexes I, II, VII, VIII and IX (**), provided that the estimated value, net of VAT, is not less than:

(i) the equivalent in ecus of 400 000 special drawing rights (SDR) for supply contracts and for the service contracts listed in Annex XVI A, except for the R& D services mentioned in category 8 and category 5 telecommunications services, the CPC reference numbers of which are 7524, 7525 and 7526;

(ii) ECU 400 000 in the case of service contracts other than those mentioned in (i);

(iii) the equivalent in ecus of 5 000 000 SDR for works contracts;

(c) contracts awarded by contracting entities carrying out activities referred to in Annexes III, IV, V, and VI (***), provided that the estimated value, net of VAT, is not less than:

(i) ECU 400 000 in the case of supply and service contracts;

(ii) ECU 5 000 000 in the case of works contracts.

(*) Annex X: Contracting entities in the telecommunications sector.

(**) Annex I: Entities in the sectors covering the production, transport or distribution of drinking water.

Annex II: Entities in the sectors covering the production, transport or distribution of electricity.

Annex VII: Entities in the field of urban railway, tramway, trolleybus or bus services.

Annex VIII: Entities in the field of airport facilities.

Annex IX: Entities in the field of maritime or inland port or other terminal facilities.

(***) Annex III: Entities in the sectors covering the transport or distribution of gas or heat.

Annex IV: Entities in the sectors covering the exploration for and extraction of oil or gas.

Annex V: Entities in the sectors covering the exploration for and extraction of coal or other solid fuels.

Annex VI: Entities in the field of railway services.`

(b) The following paragraphs shall be added:

'14. The value in national currencies of the thresholds laid down specified in paragraph 1 shall, in principle, be revised every two years with effect from 1 January 1996. The calculation of such value shall be based on the average daily values of those currencies expressed in ecus over the 24 months terminating on the last day of August preceding the revision with effect from 1 January. These values shall be published in the Official Journal of the European Communities at the beginning of November.

15. The values of the thresholds of the Agreement on government procurement, concluded in the framework of the Uruguay Round multilateral negotiations (*), hereinafter referred to as 'the Agreement`, expressed in ecus shall in principle be revised every two years with effect from 1 January 1996. The calculation of these values shall be based on the average daily value of the ecu expressed in SDR over the 24 months terminating on the last day of August preceding the 1 January revision. These values shall be published as provided for in paragraph 14.

16. The methods of calculation laid down in paragraphs 14 and 15 shall be examined pursuant to the second subparagraph of Article 5 (1) (c) of Directive 93/36/EEC.

(*) Council Decision 94/800/EC of 22 December 1994 concerning the conclusion 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 No L 336, 23. 12. 1994, p. 1).`

2. Article 21 (2) (c) shall be replaced by the following:

'(c) contracting entities shall subsequently invite all candidates to confirm their interest on the basis of detailed information on the contract concerned before beginning the selection of tenderers or participants in negotiations. The information must include at least the following:

(i) the nature and quantity, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised; in the case of recurring contracts the nature and quantity and, if possible, an estimate of the timing of the subsequent calls for competition for the works, supplies or services to be procured;

(ii) whether the procedure is restricted or negotiated;

(iii) any date for starting or completing the delivery of supplies or for performing works or services;

(iv) the address and final date for submitting an application to be invited to tender, as well as the language or languages in which it must be submitted;

(v) the address of the entity awarding the contract and providing any information necessary for obtaining specifications and other documents;

(vi) any economic and technical requirements, financial guarantees and information required from suppliers, undertakings or providers of services;

(vii) the amount and terms of payment of any sum payable for the documentation relating to the procurement procedure;

(viii) whether the entity is inviting offers for purchase, lease, rental or hire purchase, or more than one of these methods.`

3. Article 22 (1) (b) shall be replaced by the following:

'(b) in the case of works contracts, the essential characteristics of the works contracts which the contracting entities intend to award, the estimated value of which is not less than:

- the threshold laid down in Article 14 (1) (a) (ii) as regards contracts intended to be awarded by entities carrying out an activity referred to at Annex X,

- the threshold laid down in Article 14 (1) (b) (iii) as regards contracts intended to be awarded by entities carrying out an activity referred to at Annexes I, II, VII, VIII and IX, or

- the threshold laid down in Article 14 (1) (c) (ii) as regards contracts intended to be awarded by entities carrying out an activity referred to at Annexes III, IV, V and VI.`

4. Article 23 (1) and (2) shall be replaced by the following:

'1. This Article shall apply to design contests organized as part of a procedure leading to the award of a service contract whose estimated value net of VAT is not less than:

- the threshold laid down in Article 14 (1) (a) (i) as regards contracts intended to be awarded by entities carrying out an activity referred to at Annex X,

- the threshold laid down in Article 14 (1) (b) (i) or (ii) as regards contracts intended to be awarded by entities carrying out an activity referred to at Annexes I, II, VII, VIII and IX, or

- the threshold laid down in Article 14 (1) (c) (i) as regards contracts intended to be awarded by entities carrying out an activity referred to at Annexes III, IV, V and VI.

2. This Article shall apply to all design competitions where the total amount of competition prizes and payments to participants is not less than:

- the threshold laid down in Article 14 (1) (a) (i) as regards contracts intended to be awarded by entities carrying out an activity referred to at Annex X,

- the threshold laid down in Article 14 (1) (b) (i) or (ii) as regards contracts intended to be awarded by entities carrying out an activity referred to at Annexes I, II, VII, VIII and IX, or

- the threshold laid down in Article 14 (1) (c) (i) as regards contracts intended to be awarded by entities carrying out an activity referred to at Annexes III, IV, V, and VI.`

5. Article 24 (2) shall be replaced by the following:

'2. Information provided under Section I of Annex XV or under Annex XVIII shall be published in the Official Journal of the European Communities. In this connection the Commission shall respect any sensitive commercial aspects which the contracting entities may point out when forwarding this information in connection with points 6, 9 and 11 of Annex XV.`

6. Article 26 shall be replaced by the following:

'Article 26

1. In open procedures the time limit for the receipt of tenders shall be fixed by contracting entities at not less than 52 days from the date of dispatch of the notice. This time limit may be replaced by one which is sufficiently long to allow those concerned to submit valid tenders and which, as a general rule, shall not be less than 36 days and in any case not less than 22 days from the date on which the contract notice was dispatched, if the contracting entities have sent the Official Journal of the European Communities a periodic indicative notice in accordance with Article 22 (1), provided that this notice contains the information required in Parts II and III of Annex XIV, in so far as that information is available at the time of publication of the notice referred to in Article 22 (1).

This periodic indicative notice must furthermore have been dispatched 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 21 (1) (a) is dispatched to the Official Journal of the European Communities.

2. In restricted procedures and in negotiated procedures with a prior call for competition, the following shall apply:

(a) the time limit for receipt of requests to participate, in response to a notice published in accordance with Article 21 (1) (a) or in response to an invitation from a contracting entity in accordance with Article 21 (2) (c), shall, as a general rule, be at least 37 days from the date of dispatch of the notice or invitation and shall in any case not be less than the time limit for publication laid down in Article 25 (3), plus 10 days;

(b) the time limit for receipt of tenders may be fixed by mutual agreement between the contracting entity and the selected candidates, provided that all tenderers are given equal time to prepare and submit tenders;

(c) where it is not possible to reach agreement on the time limit for the receipt of tenders, the contracting entity shall fix a time limit which shall, as a general rule, be at least 24 days and shall in any case not be less than 10 days from the date of the invitation to tender; the time allowed shall be sufficiently long to take account in particular of the factors mentioned in Article 28 (3).`

7. In Article 28:

(a) paragraph 5 shall be replaced by the following:

'5. Requests for participation in contracts and invitations to tender must be made by the most rapid means of communication possible. When requests to participate are made by telegram, telex, fax, telephone or any other electronic means, Member States may require them to be confirmed by letter dispatched before the expiry of the time limit referred to in Article 26 (2).`

(b) The following paragraph shall be added:

'6. Tenders shall be submitted in writing, directly or by mail. Member States may authorize the submission of tenders by any other means 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 certified copy,

- that tenders are opened after the time-limit for their submission has expired.`

8. Article 30 (1) shall be replaced by the following:

'1. Contracting entities which so wish may establish and operate a system of qualification of suppliers, contractors or service providers.

Entities establishing or operating a qualification system shall ensure that suppliers, contractors and service providers may apply for qualification at any time.`

9. Article 35 (1) shall be replaced by the following:

'1. Article 34 (1) shall not apply where a Member State bases the award of contracts on other criteria, within the framework of rules in force at the time of adoption of this Directive, which are intended to give preference to certain tenderers, provided that the rules invoked are compatible with the Treaty.`

10. Article 38 shall be repealed.

11. Article 41 shall be replaced by the following:

'Article 41

1. Contracting entities shall keep appropriate information on each contract which shall be sufficient to permit them at a later date to justify decisions taken in connection with:

(a) the qualification and selection of contractors, suppliers or service providers and award of contracts;

(b) recourse to derogations from the use of European specifications in accordance with Article 18 (6);

(c) use of procedures without prior call for competition in accordance with Article 20 (2);

(d) non-application of Titles II, III and IV in accordance with the derogations provided for in Title I.

2. The information shall be kept for at least four years from the date of award of the contract so that the contracting entity will be able, during that period, to supply the necessary information to the Commission if the latter so requests.

3. Entities carrying out one of the activities mentioned in Annexes I, II, VII, VIII and IX shall inform participating suppliers, contractors or service providers of decisions on contract awards promptly and, on request, in writing.

4. The contracting entities carrying out one of the activities mentioned in Annexes I, II, VII, VIII and IX shall, promptly after 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 characteristics and relative advantages of the tender selected as well as the name of the successful tenderer.

However, contracting entities may decide that certain information on the contract award, referred to in the first subparagraph of this paragraph, be withheld where release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private, or might prejudice fair competition between suppliers, contractors or service providers.`

12. The following paragraphs shall be inserted in Article 42:

'1a. With respect to the activities to which Annexes I, II, VII, VIII and IX refer, Member States shall, in accordance with the arrangements to be laid down pursuant to the procedure provided for in Article 40 (4) to (8), ensure that, by 31 October 1997 at the latest for the preceding year and thereafter by 31 October of every year, the Commission receives a statistical report on the contracts awarded. This report shall contain the information necessary to verify the proper application of the Agreement.

The information required under this paragraph shall not include information concerning contracts for the services listed in category 8 of Annex XVI A, telecommunications services listed in category 5, the CPC reference numbers of which are 7524, 7525 and 7526, or the services listed in Annex XVI B.`

13. The following Article shall be inserted:

'Article 42a

For the purposes of the award of contracts by the contracting entities, Member States shall apply in their relations conditions as favourable as those which they grant to third countries in implementation of the Agreement. The Member States shall to this end consult each other within the Advisory Committee for Public Contracts on the measures to be taken pursuant to the Agreement.`

14. Annexes XII, XIII, XIV and XV shall be replaced by the corresponding texts appearing in the Annex to this Directive.

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by . . . (6*). They shall forthwith inform the Commission thereof.

2. However, the Hellenic Republic and the Portuguese Republic may provide that the measures referred to in paragraph 1 shall apply not later than . . . (7**).

3. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

4. Member States shall communicate to the Commission the main provisions of national law which they adopt in the field covered by this Directive together with a correlation table between this Directive and the national measures adopted.

Article 3

This Directive is addressed to the Member States.

Done at Brussels, . . ..

For the European Parliament

The President

For the Council

The President

(1) OJ No C 138, 3. 6. 1995, p. 49.

(2) OJ No C 256, 2. 10. 1995, p. 4 and OJ No C 212, 22. 7. 1996, p. 13.

(3) Opinion of the European Parliament of 22 October 1996 (not yet published in the Official Journal), Council common position of 20 December 1996 (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ No L 336, 23. 12. 1994, p. 1.

(5) OJ No L 199, 9. 8. 1993, p. 84. Directive as last amended by the 1994 Act of Accession.

(6*) Twelve months after the date of its adoption.

(7**) Twenty-four months after the date of adoption of this Directive.

ANNEX

'ANNEX XII

A. OPEN PROCEDURES

1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity.

2. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement).

Category of service within the meaning of Annex XVI A or Annex XVI B and description (CPC classification).

Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combination of these.

3. Place of delivery, site or place of performance of service.

4. For supplies and works:

(a) nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the goods to be procured or the nature and extent of the services to be provided and general nature of the work.

(b) Indication of whether suppliers can tender for some and/or all of the goods required. If, for works contracts, the work or the contract is subdivided into several lots, the order of magnitude of the different lots and the possibility of tendering for one, for several or for all of the lots.

(c) For works contracts: information concerning the purpose of the work or the contract where the latter also involves the drawing-up of projects.

5. For services:

(a) nature and quantity of the services to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the services to be procured.

(b) Indication whether the execution of the service is by law, regulation, or administrative provision reserved to a particular profession.

(c) Reference of the law, regulation or administrative provision.

(d) Indication whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the services.

(e) Indication whether suppliers can tender for a part of the services concerned.

6. Authorization to submit variants.

7. Derogation from the use of European specifications, in accordance with Article 18 (6).

8. Time limits for delivery or completion or duration of service contract and, as far as possible, the starting date.

9. (a) Address from which the contract documents and additional documents may be requested.

(b) Where appropriate, the amount and terms of payment of the sum to be paid to obtain such documents.

10. (a) Final date for receipt of tenders.

(b) Address to which they must be sent.

(c) Language or languages in which they must be drawn up.

11. (a) Where appropriate, the persons authorized to be present at the opening of tenders.

(b) Date, time and place of such opening.

12. Where appropriate, any deposits and guarantees required.

13. Main terms concerning financing and payment and/or references to the relevant provisions.

14. Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or service providers to whom the contract is awarded.

15. Minimum economic and technical conditions required of the supplier, contractor or provider to whom the contract is awarded.

16. Period during which the tenderer is bound to keep open his tender.

17. Criteria for the award of the contract. Criteria other than that of the lowest price shall be mentioned where they do not appear in the contract documents.

18. Other information.

19. Where appropriate, the reference to publication of the periodic information notice in the Official Journal of the European Communities to which the contract refers.

20. Date of dispatch of the notice by the contracting entity.

21. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office).

B. RESTRICTED PROCEDURES

1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity.

2. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement).

Category of service within the meaning of Annex XVI A or Annex XVI B and description (CPC classification).

Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combination of these.

3. Place of delivery, site or place of performance of service.

4. For supplies and works:

(a) nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the goods to be procured or the nature and extent of the services to be provided and general nature of the work.

(b) Indication of whether suppliers can tender for some and/or all of the goods required.

If, for works contracts, the work or the contract is subdivided into several lots, the order of magnitude of the different lots and possibility of tendering for one, for several or for all of the lots.

(c) For works contracts: information concerning the purpose of the work or the contract where the latter also involves the drawing-up of projects.

5. For services:

(a) nature and quantity of the services to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the services to be procured.

(b) Indication whether the execution of the service is by law, regulation, or administrative provision reserved to a particular profession.

(c) Reference of the law, regulation or administrative provision.

(d) Indication whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the services.

(e) Indication whether suppliers can tender for a part of the services concerned.

6. Authorization to submit variants.

7. Derogation from the use of European specifications, in accordance with Article 18 (6).

8. Time limits for delivery or completion or duration of service contract and, as far as possible, for starting.

9. Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or providers to whom the contract is awarded.

10. (a) Final date for receipt of requests to participate.

(b) Address to which they must be sent.

(c) Language or languages in which they must be drawn up.

11. Final date for dispatch of invitations to tender.

12. Where appropriate, any deposits and guarantees required.

13. Main terms concerning financing and payment and/or references to the texts in which these are contained.

14. Information concerning the supplier's, contractor's or provider's position and minimum economic and technical conditions required of him.

15. Criteria for the award of the contract where they are not mentioned in the invitation to tender.

16. Other information.

17. Where appropriate, the reference to publication of the periodic information notice in the Official Journal of the European Communities to which the contract refers.

18. Date of dispatch of the notice by the contracting entities.

19. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office).

C. NEGOTIATED PROCEDURES

1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity.

2. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement).

Category of service within the meaning of Annex XVI A or XVI B and description (CPC classification).

Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combination of these.

3. Place of delivery, site or place of performance of service.

4. For supplies and works:

(a) nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the goods to be procured or the nature and extent of the services to be provided and general nature of the work.

(b) Indication of whether suppliers can tender for some and/or all of the goods required.

If, for works contracts, the work or the contract is subdivided into several lots, the order of size of the different lots and the possibility of tendering for one, for several or for all of the lots.

(c) For works contracts: information concerning the purpose of the work or the contract where the latter also involves the drawing-up of projects.

5. For services:

(a) nature and quantity of the services to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the services to be procured.

(b) Indication whether the execution of the service is by law, regulation, or administrative provision reserved to a particular profession.

(c) Reference of the law, regulation or administrative provision.

(d) Indication whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the services.

(e) Indication whether suppliers can tender for a part of the services concerned.

6. Authorization to submit variants.

7. Derogation from the use of European specifications, in accordance with Article 18 (6).

8. Time limits for delivery or completion or duration of service contract and, as far as possible, for starting.

9. Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or providers to whom the contract is awarded.

10. (a) Final date for receipt of requests to participate.

(b) Address to which they must be sent.

(c) Language or languages in which they must be drawn up.

11. Where appropriate, any deposits and guarantees required.

12. Main terms concerning financing and payment and/or references to the texts in which these are contained.

13. Information concerning the supplier's, contractor's or service provider's position and minimum economic and technical conditions required of him.

14. Criteria for the award of the contract where they are not mentioned in the invitation to tender or the contract documents.

15. Where appropriate, the names and addresses of suppliers, contractors or service providers already selected by the contracting entity.

16. Where applicable, date(s) of previous publications in the Official Journal of the European Communities.

17. Other information.

18. Where appropriate, the reference to publication of the periodic information notice in the Official Journal of the European Communities to which the contract refers.

19. Date of dispatch of the notice by the contracting entity.

20. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office).

ANNEX XIII

NOTICE ON THE EXISTENCE OF A QUALIFICATION SYSTEM

1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity.

2. Purpose of the qualification system (description of the goods, services or works or categories thereof to be procured through the system).

3. Conditions to be fulfilled by suppliers, contractors and service providers in view of their qualification pursuant to the system and the methods according to which each of those conditions will be verified. Where the description of such conditions and verification methods is voluminous and based on documents available to interested suppliers, contractors and service providers, a summary of the main conditions and methods and a reference to those documents shall be sufficient.

4. Period of validity of the qualification system and the formalities for its renewal.

5. Reference to the fact that the notice acts as the call for competition.

6. Address where further information and documentation concerning the qualification system can be obtained (if different from the address mentioned unter 1).

7. Any other relevant information.

ANNEX XIV

PERIODIC INFORMATION NOTICE

I. HEADINGS TO BE COMPLETED IN ANY CASE

1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity or the service from which additional information may be obtained.

2. (a) For supply contracts: nature and quantity or value of the services or products to be supplied.

(b) For works contracts: nature and extent of the services to be provided, the general characteristics of the work or of the lots by reference to the work.

(c) For service contracts: intended total procurement in each of the service categories listed in Annex XVI A.

3. Date of dispatch of the notice by the contracting entity.

4. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office).

5. Any other relevant information.

II. INFORMATION WHICH MUST BE SUPPLIED WHERE THE NOTICE IS USED AS A MEANS OF CALLING FOR COMPETITION OR PERMITS REDUCTION OF THE DEADLINES FOR THE RECEIPT OF CANDIDATURES OR TENDERS

6. A reference to the fact that interested suppliers must advise the entity of their interest in the contract or contracts.

7. Deadline for the receipt of applications for an invitation to tender.

III. INFORMATION TO BE SUPPLIED, IN SO FAR AS SUCH INFORMATION IS AVAILABLE, WHERE THE NOTICE IS USED AS A MEANS OF CALLING FOR COMPETITION OR PERMITS REDUCTION OF THE DEADLINES FOR THE RECEIPT OF CANDIDATURES OR TENDERS

8. Nature and quantity of the goods to be supplied or general nature of the work or category of service within the meaning of Annex XVI A and description (CPC classification), stating if framework agreement(s) are envisaged, including any options for further procurement and an estimate of the timing when such options may be exercised. In the case of recurring contracts, also, an estimate of the timing of the subsequent calls for competition.

9. State whether tenders are requested for purchase, lease, rental or hire-purchase or any combination of these.

10. Time limits for delivery or completion or duration of service contract and, as far as possible, for starting.

11. Address to which interested undertakings should send their expressions of interest in writing.

Final date for receipt of expressions of interest.

Language or languages authorized for the presentation of candidatures or tenders.

12. Economic and technical conditions, and financial and technical guarantees required of suppliers.

13. (a) Provisional date, if known, for commencing the procedures for awarding the contract or contracts.

(b) Type of award procedure (restricted or negotiated).

(c) The amount of and payment details for any sum to be paid to obtain documents concerning the consultation.

ANNEX XV

NOTICE ON THE CONTRACTS AWARDED

I. INFORMATION OR PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES (*)

1. Name and address of the contracting entity.

2. Nature of the contract (supplies, works or services; where appropriate state if it is a framework agreement).

3. At least a summary indication of the nature and quantity of the products, works or services provided.

4. (a) Form of the call for competition (notice on the existence of a qualification procedure; periodic information notice; call for tenders).

(b) Reference of publication of the notice in the Official Journal of the European Communities.

(c) In the case of contracts awarded without a prior call for competition, indication of the relevant provision of Article 20 (2), or Article 16.

5. Award procedure (open, restricted or negotiated).

6. Number of tenders received.

7. Date of award of the contract.

8. Price paid for bargain purchases pursuant to Article 20 (2) (j).

9. Name and address of supplier(s), contractor(s) or service provider(s).

10. State, where appropriate, whether the contract has been, or may be, subcontracted.

11. Price paid or the prices of the highest and lowest offers taken into account in the award of the contract.

12. Optional information:

- value and share of the contract which may be subcontracted to third parties;

- award criteria.

II. INFORMATION NOT INTENDED FOR PUBLICATION

13. Number of contracts awarded (where an award has been split between more than one supplier).

14. Value of each contract awarded.

15. Country of origin of the product or service (Community origin or non-Community origin; if the latter, broken down by third country).

16. Was recourse made to the exceptions to the use of European specifications provided for pursuant to Article 18 (6). If so, which?

17. Which award criteria were used (most economically advantageous; lowest price; criteria permitted pursuant to Article 35)?

(*) Information in headings 6, 9 and 11 is deemed information not intended for publication where the awarding entity considers that publication thereof might be detrimental to a sensitive commercial interest.

18. Was the contract awarded to a bidder who submitted a variant, in accordance with Article 34 (3)?

19. Were any tenders excluded on the grounds that they were abnormally low, in accordance with Article 34 (5)?

20. Date of transmission of the notice by the contracting entity.

21. In the case of contracts for services listed in Annex XVI B, agreement by the contracting entity to publication of the notice (Article 24 (3)).`

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 27 April 1995 the Commission submitted a proposal for a Directive based on Article 57 (2), Article 66 and Article 100a of the EC Treaty amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors.

The Economic and Social Committee delivered its opinion on 5 July 1995. The European Parliament delivered its opinion on 22 October 1995. That opinion rejected the Commission proposal.

Further to the opinion the Commission submitted an amended proposal in a letter dated 25 November 1996.

II. COMMON POSITION

In its opinion on first reading of the proposal the European Parliament proposed no amendments but asked the Commission to withdraw its proposal and replace it with a new proposal designed to transpose the Agreement by means of a specific (additional) Directive.

The Commission did not agree to the idea of a separate Directive and submitted its amended proposal. The Council considered the Commission's approach to be the most appropriate since the preparation of a separate Directive would lead to a considerable delay in the adoption of the amendments needed to comply with the Agreement and would run counter to the general aim of improving and simplifying legislative texts.

The Council therefore adopted its common position on the amended Commission proposal pursuant to Article 189b of the Treaty on 20 December 1996.

III. OBJECTIVE

The objective of the Directive is to amend Directive 93/38/EEC to take account of the provisions of the Agreement on government procurement (hereinafter 'the Agreement`) contained in Annex 4 to the Agreement establishing the World Trade Organization. It should be noted that the Agreement entered into force on 1 January 1996.

In general the Council endeavoured to restrict amendments to the Directive to those strictly necessary for compliance with the Agreement. It should be borne in mind that the Agreement is not directly applicable within the Community and that it is therefore necessary to transpose its provisions. In similar vein, the Council made a distinction between the activities covered by the Agreement and those which, while subject to the Directive, are not covered by the Agreement. However, the Council was keen to ensure that the amendments made to Directive 93/38/EEC did not affect the equal treatment of contracting entities in the public and private sectors.

IV. ANALYSIS OF THE COMMON POSITION

1. Recitals

The Council considered it useful to amend the first recital to make it clear that the Agreement was not directly applicable within the Community.

A new third recital was included by the Council to emphasize that the contracting entities which complied with Directive 93/38/EEC, as amended by this Directive, were in conformity with the Agreement.

The fourth recital was amended by adding some clarification designed to draw attention to cases that did not fall within the scope of the Agreement but did fall within that of Directive 93/38/EEC.

The Council made slight adjustments to the texts of recitals 9 and 10 to make them clearer without changing the substance in any way.

The 12th recital was amended to take account of the fact that, further to the amended proposal, the Council introduced certain distinctions between the sectors subject to the Agreement and those excluded from the Agreement but subject to the Directive.

A new 13th recital was included further to the Commission's amended proposal, replacing the proposed amendment to Article 18 to add a new paragraph containing Article VI (4) of the Agreement in order to prevent contracting entities from accepting technical assistance where this would have the effect of precluding competition. It was not necessary to include Article VI (4) in the Directives as it was implicit in the principles of Community law on public contracts. It was therefore sufficient to refer to those principles in the recitals.

The 14th recital was amended by deleting the reference to the Kingdom of Spain since that Member State had waived the additional period for implementing the Directive on its territory.

2. Scope (Article 1 of this Directive and Article 14 (1) and (2), Article 22 (1) (b) and Article 23 (1) and (2) of Directive 93/38/EEC)

The Council deemed it appropriate to amend Article 1 in accordance with the Commission's amended proposal. This Article, which introduces the amendments made to Directive 93/38/EEC, was amended in line with the fourth recital to draw attention to contracts not falling within the scope of the Agreement. Both the recital and Article 1 were intended as clear signals to third countries that contracting entities were under no obligation to extend the advantages of the Directive to tenderers from third countries in respect of contracts not covered by the Agreement.

In Article 14 (1) and (2) differentiated thresholds have been laid down for contracts covered by the Agreement (expressed in SDRs) and contracts not covered by the Agreement (expressed in ecus). The thresholds laid down in Article 13 for competitions and in Article 22 (1) (b) for the publication of periodic indicative notices in respect of works contracts were amended in parallel with those in Article 14.

3. Technical specifications (new Article 18 (2) of Directive 93/38/EEC)

The Council followed the Commission's amended proposal in considering it unnecessary to incorporate the proposed amendment on technical specifications in order to comply with Article VI (4) of the Agreement for the reasons regarding the 13th recital set out in part 1 above.

4. Information to be supplied where periodic indicative notices are used as a means of creating competition (Article 21 (2) (c) of Directive 93/38/EEC)

The Council deemed it necessary to amend this provision in accordance with the Commission's amended proposal. Article 21 (2) (c) was aligned on the text of Article IX (4) and (6) of the Agreement. The current text of Directive 93/38/EEC referred to 'detailed information on the contract concerned` while the text of the Agreement lists the detailed information to be supplied in periodic indicative notices without however changing the essence of the provision in Directive 93/38/EEC. The amended text applies to all contracts covered by the Directive, whether or not subject to the Agreement.

5. Confidentiality of some of the information on the award of contracts (Article 24 (2))

The Council deemed it helpful to include the concept of price in the commercially sensitive information to be protected by the Commission (Annex XV, point 11).

6. Time limits for the receipt of tenders (Article 26 (1) and (2) of Directive 93/38/EEC)

The Council followed the amended proposal in easing the time limits for the receipt of tenders in cases where a periodic indicative notice has been published earlier. Moreover, the time limits have been amended very slightly in order to be calculated as from the date of dispatch of the notice and not that of publication, which is a date over which the contracting authority has no control.

7. Transmission of requests for participation and tenders (Article 28 (5) and (6) of Directive 93/38/EEC)

With regard to paragraph 5 on the transmission of requests for participation the Council wanted, as in the Commission's amended proposal, to allow Member States to decide whether confirmation by letter of requests made by electronic means was necessary. The Council simplified the provision on tenders in paragraph 6 in accordance with the Commission's amended proposal to enable Member States to authorize the submission of tenders by means which might prove more appropriate in the light of technical progress in the transmission of documents. However, guarantees as to the content, confidentiality, proof and opening of the tender are required.

In addition, the Council deemed it appropriate to accompany the provision by a statement pointing out that, when tenders are submitted, the confidentiality of the data which they contained must clearly be guaranteed up to the date set for the opening of tenders. That guarantee clearly exists when tenders are submitted in writing directly or by mail and the same applies in the case of tenders presented on computer diskette or on any other medium and submitted under cover directly or by mail. The statement also points out that it is technically possible to ensure at least an equivalent level of confidentiality using electronic means, in particular electronic mail, for the submission of tenders, but that tenders submitted by telephone are not permitted.

8. Information to be forwarded to eliminated candidates and tenderers (Article 41 of Directive 93/38/EEC)

The Council followed the Commission's amended proposal in considering it useful, firstly, to amend the general structure of the Article to make it easier to read and, secondly, to restrict the obligation to supply information to eliminated candidates and tenderers on the contracting entities operating in the sectors covered by the Agreement.

9. Statistical requirements (Article 42 of Directive 93/38/EEC)

The Council deemed it appropriate to amend this provision by no longer detailing all the information to be contained in annual statistics but leaving it to the Commission, in consultation with the Advisory Committee for Public Contracts, to determine the content of the statistics.

Public service contracts not covered by the Agreement are exempted from the obligation to keep statistics and have been enumerated in an exhaustive list.

10. Entry into force (Article 2 of this Directive)

The Council considered it useful to set the date of entry into force at 12 months after the date of adoption of the Directive.

11. Annexes XII to XV (model notices of contracts)

The Council introduced a few minor or purely drafting amendments merely to simplify the notices or to bring them into line with the amendments made to the Articles.

V. CONCLUSION

The amendments made by the Council followed very closely the Commission's amended proposal and are intended mainly to incorporate only the amendments needed to comply with the Agreement, while giving a signal to third countries that the Community is very clearly aware of its obligations pursuant to the Agreement and of the limits of those obligations.