COMMISSION OF THE EUROPEAN COMMUNITIES 
COM(91) 347 final - SYN 361 
Brussels, 6 november 1991 
Proposal for a 
COUNCIL DIRECTIVE 
amending Directive 90/531/EEC on the procurement procedures 
of entities operating in the water, energy, transport and 
telecommunications sectors 
(presented by the Commission) 
TABLE OF CONTENTS 
pages 
EXPLANATORY MEMORANDUM 3 
I. I nt roduc t i on 3 
II. Scope 4 
III. Definition of service contracts 6 
Definition of contracts 6 
Definition of service contracts 6 
Definition of service categories 7 
Design contests 8 
Reasearch and development contracts 9 
Contracts covered 10 
IV. Procedural obi i gat ions 10 
V. Specific points concerning services in the four sectors in question 11 
Intra-group transactions 11 
Confidential i ty 14 
VI. Adoption of a consolidated text 17 
VII. Detailed analysis of Articles 17 
Annex I: Correlation table 32 
PROPOSAL FOR A COUNCIL DIRECTIVE 35 

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EXPLANATORY MEMORANDUM 
INTRODUCTION 
1. In its communication to the Council on the public procurement in 
the excluded sectoral-1-), the Commission analyzed the industrial 
and economic aspects of procurement by the utilities in the water, 
energy, transport and telecommunications sectors. It was concluded 
that considerable gains could be expected from opening up the 
procurement of the utilities to Community-wide competition and that 
the benefits brought about by more transparent, non-discriminatory 
procurement in the four sectors concerned would spread throughout 
the economy, bringing sizeable budget savings to the utilities, 
along with better quality and a more efficient structure of the 
supply side. The opening up of public procurement in those sectors 
will thereby enhance the competitiveness of Community industry as a 
whole. 
2. The procurement of services by the utilities, which can be 
estimated to be of the order of ECU 45 billions, is an important 
part of this picture, accounting for between 15 and 20 % of the 
utilities' total procurement. The importance of such large scale 
purchases for the service sectors concerned, which cover the whole 
range from relatively simple labour intensive services through to 
highly skilled capital-intensive services, is evident, even if it 
is somewhat less in value than the procurement of services by the 
public authorities. (This is the subject of the Commisssion's 
proposal for a Public services Directive^) ). 
(1) COM (88) 376, 11.10.1988, published as Supplement 6/88 to the 
Bulletin of the European Communities. 
(2) COM (91) 322, 30.8.1991. 
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3. The adoption of Directive 90/531 aimed to achieve the benefits of 
the internal market for the utilities' purchases of supplies and 
works. The present proposal aims to extend the provisions of that 
Directive to the utilities' purchases of services. In doing so, it 
takes account of the particular characteristics of service 
procurement, as was also the case in the proposal for a Public 
Services Directive. A correlation table indicating the parallels 
between the provisions of this proposal, the public services 
proposal and Directive 90/531/EEC is attached to this explanatory 
memorandum (Annex I). 
4. With this proposal, the Commission has completed its legislative 
programme on public procurement under the White Paper on Completing 
the Internal Market(*). 
II. SCOPE 
5. The aim of this proposal is to extend, wherever possible, the 
procedural rules laid down in Directive 90/531/EEC to services. 
The scope is identical to that of Directive 90/531/EEC as regards 
the contracting entities and activities concerned in the four 
sectors (Article 2). 
6. In line with the ultimate objective, which is to require 
contracting entities throughout the Community to operate a 
procurement system that is tailored to their particular 
characteristics and as consistent as possible, this proposal makes 
amendments to Directive 90/531/EEC only where: 
(1) COM (85) 310 final, 14.6.1985. 
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(a) the specific nature of services or of design contests so 
requires; 
(b) the existing provisions need to be extended to services and 
design contests. 
7. Certain provisions can be applied to all three types of contract. 
Where Directive 90/531/EEC does not confine them to supply and 
works contracts, it has not been deemed necessary here to propose 
that they be amended. Consequently, once this proposal is adopted, 
many provisions of Directive 90/531/EEC will apply to services 
without requiring the slightest amendment. 
8. These provisions relate to the following in particular: 
- scope (Article 2); 
- non-discrimination (Article 4(2) and (4)); 
- framework agreements (Article 5); 
- contracts linked to telecommunications activities carried on 
under conditions of competition (Article 8); 
contracts declared to be secret (Article 10); 
- contracts awarded pursuant to an international agreement 
(Article 11(2) and (3)); 
technical specifications (Article 13); 
procedural obligations (Articles 19 to 22); 
- qualification system (Article 24); 
- selection criteria (Article 25); 
- award criteria (Article 27(2) to (5)); 
- consultation of the Advisory Committee on Telecommunications 
Procurement (Article 31(2)(a) to (e)); 
- statistical reporting (Article 34). 
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III. DEFINITION OF SERVICE CONTRACTS 
Definition of contracts 
9. This proposal covers only services which are acquired under a 
contract for pecuniary interest concluded between two different 
legal persons. 
On the other hand, services provided in house within a contracting 
entity that constitutes a single legal person are not regarded as 
service contracts and lie outside the scope of this proposal. 
Definition of service contracts 
10. Since the aim of the proposal is to supplement the existing rules, 
service contracts are defined in Article 1 so as to catch 
purchases made by contracting entities in the sectors concerned 
which are not covered by Directive 90/531/EEC. This proposal thus 
extends the coverage of the existing Directive, which, in addition 
to works contracts, already takes in certain service contracts. 
The services concerned are firstly those regarded by 
Directive 90/531/EEC as supplies, i.e.: 
(i) certain software services procured by entities operating in 
the telecommunications sector; 
(ii) services whose purpose is to make equipment available to the 
contracting entity (lease, rental or hire-purchase contracts). 
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The other services already covered by Directive 90/531/EEC are 
those which are included in a supply or works contract, and in 
particular: 
(i) siting and installation services for equipment covered by a 
supply contract; 
(ii) design services covered by a works contract whereby the 
contractor takes responsibility for both design and execution 
of the works; 
(iii) services included in a "turnkey" works contract. 
11. Where services involving the design of works or siting and 
installation operations are the subject of a call for competition 
that is separate from the associated works or supply contract, 
they are regarded as services falling within the scope of this 
proposal. 
Nevertheless, since this proposal lays down different rules only in 
so far as the specific nature of the services not covered by the 
existing rules so requires, classification of a contract in one 
category or the other will not face contracting entities with 
difficulties in applying the provisions. 
Definition of service categories 
12. The potential for cross-border trade in services is not uniform 
throughout the economy. The approach adopted in this proposal is 
consequently to distinguish between "priority" and other services. 
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Priority services are services to which it is desirable to apply 
immediately rules introducing Community-wide competition in order 
to reap the benefits of a larger market (greater cross-border 
trade, economies of scale, etc.); these are listed in Annex XVI A 
and are subject to rules similar to those laid down in 
Directive 90/531/EEC. For non-priority services, on the other 
hand, not enough is known about the transactions involved to 
conclude with certainty at this stage that Community rules are 
desirable. These services, which are listed in Annex XVI B, are 
therefore subject to transparency requirements only. 
13. Services are defined here and classified in either Annex XVI A or 
Annex XVI B in exactly the same way as the public services 
proposal: their classification as priority or other services has 
more to do with their inherent characteristics than the status of 
the contracting entities purchasing them. Services are defined in 
Annexes XVI A and XVI B by reference to the United Nations' 
Central Product Classification, which offers the advantage of 
being an international nomenclature. 
Design contests 
14. This proposal also covers design contests, the purpose of which is 
to weigh up competing ideas rather than tenders in the 
conventional sense. Specific procedural rules are thus laid down 
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in Article 17a to ensure that such contests are held on a 
transparent and non-discriminatory basis. 
Research and development contracts 
15. Only transactions which are intended to provide the contracting 
entity with a result and are linked to the activities concerned 
are regarded as R&D service contracts for the purposes of this 
proposal. On the other hand, the financing of R&D by a 
contracting entity, e.g. for the benefit of society as a whole, is 
not regarded as a service contract. This approach is in line with 
that adopted in the public services proposal. 
16. As in the case of R&D contracts which also involve the supply of 
products or the execution of works already covered by 
Directive 90/531/EEC, this proposal likewise affords contracting 
entities the option of not calling for Community-wide competition 
(Article 15(2)(b)). Nevertheless, the introduction of service 
contracts increases the scope of that possibility considerably. 
If particular firms are not to be given an unfair advantage as a 
result, steps need to be taken to ensure that reliance on this 
Article does not prejudice competitive tendering for subsequent 
contracts, and particularly those relating to series production. 
Specific provisions are also included for protecting the 
confidentiality of R&D contracts (see points 25 to 28 below). 
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Contracts covered 
17. The rules of Directive 90/531/EEC apply to supplies and works 
contracts awarded by covered entities only in the context of 
activities which are listed in Article 2 of that Directive. Thus 
contracts awarded by covered entities in the context of other 
activities are not subject to these rules. In the same way, the 
present proposal only concerns service contracts awarded by a 
covered entity in the context of a relevant activity. 
IV. PROCEDURAL OBLIGATIONS 
18. The procedural rules laid down in Titles IV and V of this proposal 
in respect of the services listed in Annex XVI A (see point 47 
below) are based on those established by Directive 90/531/EEC for 
works and supply contracts. 
In line with the approach described in points 12 and 13 above, 
services listed in Annex XVI B will be subject to only minimum 
requirements (Article 12b). 
19. The procedural rules applicable to design contests are more 
specific. They relate to the call for competition (Article 16(4) 
and Annex XVII), the composition and decisions of the jury 
(Article 17a), the notice on the results of a design contest 
(Article 18 and Annex XVIII) and contracts awarded following a 
design contest (Article 15(2)(1)). 
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V. SPECIFIC POINTS CONCERNING SERVICES IN THE FOUR SECTORS IN QUESTION 
Intra-group transactions (Article 11a) 
20. Article 11a provides for the exclusion of certain service 
contracts awarded to a service provider which is affiliated to the 
contracting entity, or to a service provider which is affiliated 
to a contracting entity participating in a joint venture formed 
for the purpose of carrying on an activity covered by the 
Directive. 
The service contracts excluded are those which are awarded to an 
affiliate whose essential purpose is to act as a central service 
provider to the group to which it belongs, rather than to sell its 
services commercially on the open market. In this way, the 
Directive seeks to recognize the particular role of certain service 
activities in establishing the commercial advantage and common 
character of undertakings. At the same times, it accepts the 
reality of the group structure under which many entities, both 
public and private, carry on their activities. 
21. The provision relates, in particular, to three types of service 
provision within groups. These categories are not necessarily 
distinct: 
- the provision of common services such as accounting, 
recruitment and management; 
- the provision of specialized services embodying the know-how 
of the group; 
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- the provision of a specialized service to a joint venture. 
The provision of such services is often concentrated in an 
affiliated company within the economic group. This is done for 
the same reasons which lead economic groups to establish separate 
affiliates for their different activities. These include 
limitation of liability, tax efficiency, separate cost control and 
efficient management in a general sense. However, the process of 
affiliation does not negate the unique character of the economic 
group. 
Thus the provision of common services to affiliated entities is a 
matter of organizational convenience which there is no reason to 
undermine. 
Further, the concentration of specialized know-how reflects the 
commercial and competitive advantage of the group. Particularly 
(but not exclusively) for private entities, direct access to such 
services is indispensable. 
22. Finally, joint ventures for the carrying-on of a particular 
operation are frequently established in order that the particular 
project may benefit from the specialized knowledge of the groups 
forming the joint venture. To deprive them of this access would 
be to eliminate the reason for establishing the joint venture in 
the first place. 
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The provision of services within the group can differ from the 
provision of supplies in important respects. It is the 
availability of services which establishes the character of the 
group (common management, staffing, accounting) and its 
competitiveness (know-how to which the group has access and which 
it does not make available to others except through the activities 
of the group as a whole). It is in respect of these 
characteristics that exceptional treatment is justified. 
The acquisition, on the other hand, by group affiliates of a 
service which is freely marketed is no different from the 
obtaining of supplies from a group affiliate. The obligation to 
procure either of these in an open, competitive context would not 
undermine the character and competitive advantage of the group. 
23. The provision for exclusion of service contracts is therefore 
limited in two important respects, in that it is only available to 
affiliates : 
with which the contracting entity's accounts are consolidated 
under the provisions of the Seventh Directive on Company 
Law^1) or, in the case of entities which are not subject to 
that Directive, to situations where dominant influence, in 
the sense of competition law, is present; and 
which exist essentially to provide their services to the 
group and do not market them. In order to allow for some 
activity with minority affiliates (which would not be covered 
by the 
(1) Council Directive 83/349/EEC, 13.6.1983, OJ No L 193, 18.7.1983 
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exception) and for marginal commercial activities, the minimum 
intra-group provision has been set at 85% of turnover. 
24. The Directive accordingly permits entities to award such contracts 
without their being subject to the rules of the Directive. 
However, it provides for the monitoring of such exceptions as 
required by the Commission and for the provision of such proofs as 
the Commission may consider necessary. Such proof may consist of 
consolidated accounts drawn up by parent undertakings pursuant to 
Directive 83/349/EEC. It could also include the verification by 
public audit bodies of shareholdings and of the share of turnover 
being generated in intra-group activity. (The Commission has been 
assured that, in the case of private entities subject to an 
independent audit, the group auditor would be in a position to 
verify compliance with these requirements.) 
Confidentiality 
25. In view of the industrial nature of the activities carried on by 
entities operating in the four sectors concerned, measures need to 
be taken to protect confidential or commercially sensitive 
information without doing away with the obligation to put 
contracts or design contests up for competition. The provisions 
of Directive 90/531/EEC concerning confidentiality are extended to 
services. 
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These relate tot 
(a) the protection of information in the transmission of technical 
specifications, in the qualification and selection of service 
providers and in the award of contracts (Article 4); 
(b) the free choice between contract award procedures (Article 15) 
and methods of calling for competition (Article 16), enabling 
the contracting entity to avoid publishing a notice on the 
service contract in question in the Official Journal and thus 
limit the dissemination of information thereon; 
(c) the obligation to publish, in the periodic indicative notice 
(Article 17 and Annex XIV), only the categories of services 
concerned and their respective total value (without 
necessarily having to disclose the ultimate objective of the 
service); 
(d) subdivision of the contract award notice (Annex XV) into two 
sections, only one of which is for publication in the Official 
Journal; 
(e) the possibility of withholding, in the contract award notice, 
information on the price paid, the award criteria and the 
value of the share of the contract to be subcontracted 
(point 11 of Annex XV); 
(f) the possibility of pointing out any sensitive commercial 
aspects of the information to be supplied in connection with 
points 6 and 9 (number of tenders received and name of 
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successful provider) of the contract award notice 
(Article 18(2)). 
26. In the case of contracts for certain services listed in 
Annex XVI B or R&D or study contracts, the above provisions could 
prove insufficient in so far as publication of Section I of the 
contract award notice within two months of award of the contract 
could disseminate information that the contracting authority does 
not wish to disclose; the very outcome of a contract award 
procedure could reveal the internal strategy of the contracting 
entity or service provider and should be able to be kept 
confidential. 
27. Article 18(3) thus provides that the description of service 
contracts listed in Annex XVI B and of contracts awarded without a 
prior call for competition in accordance with Article 15(2)(b) may 
be limited to an indication of the service category concerned 
according to the classification given in Annex XVI (R&D services, 
management consulting services and related services, etc.). 
28. The other contracts for which the outcome of the award procedure 
should also remain confidential are above all contracts that fall 
outside the scope of the Directive, since although they are 
awarded by contracting entities, they are linked to activities 
other than those caught by the Directive or are excluded in 
pursuance of specific provisions such as Article 7. 
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VI. ADOPTION OF A CONSOLIDATED TEXT 
29. Article 2 of this proposal stipulates that, when adopting this 
Directive, the Commission shall adopt a text which consolidates 
all the provisions relating to supplies, works and services. 
There are many advantages to a single instrument being made 
available within a very brief period, the main one being that it 
would make it possible at national level to refer to a single 
Community instrument whatever the type of contract. It would also 
be easier for the interested parties to use a single document, 
particularly since, as explained in point 7 above, the provisions 
relating to supplies and works are also relevant to services and 
are not necessarily contained in this proposal. 
VII. DETAILED ANALYSIS OF ARTICLES 
30. The comments presented below relate to the amended or new 
provisions set out in Article 1 of this proposal. 
Article 1(3) 
31. The introduction of a definition for "affiliated undertaking" is 
necessary for the purposes of granting, pursuant to Article 11a, 
the exemption of certain service contracts which are the subject 
of transactions within a group (see points 20 to 24 above). In 
this definition reference is made to the Seventh Directive on 
Company Law (83/349/EEC) on consolidated accounts. 
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For undertakings not subject to that Directive, the exercise of 
dominant influence in the sense of point 2 of this Article is the 
decisive critérium. 
Article 1(4) 
32. Article 1(4) incorporates the definition of service contracts into 
that for the other types of contract. In accordance with this 
proposal's aim, which is to complete the existing rules, service 
contracts are defined in such as way as to cover all services 
purchased in the sectors in question which do not fall within the 
definition of supply and works contracts already covered by 
Directive 90/531/EEC. 
33. However, some contracts should not be made subject to Community 
rules owing either to their specific characteristics or to the 
absence of any likelihood of competition existing in their respect 
in the near future. These are identified in points (i), (ii) and 
(iii), i.e. telecommunications services which, under Directive 
90/388/EEC, will not be liberalized, contracts for arbitration and 
conciliation services, the suppliers of which are normally 
appointed by common agreement between the parties concerned, and 
contracts for the acquisition of immovable property which are 
neither supply nor works contracts. Services linked to such 
acquisition are, however, covered by this Directive. 
Article 1(5), (6), (7) and (8) 
34. Each of these definitions is amended to include the notion of 
"services" or "service provider". In addition, paragraph 6 makes 
it clear that service providers may not be rejected on the grounds 
of their legal form (see point 63 below). 
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Article 1(16) 
35. This provision introduces a definition of design contests. These 
differ from service contracts in that they are not concerned with 
the supply of a service per se but are intended as a means of 
exploring the possibilities for a future project which might 
ultimately be the subject of a service, works or supply contract: 
contests may be held, for example, in the fields of data 
processing (project to computerize the organization of an 
authority), civil engineering or architecture (project for the 
construction of headquarters). 
Article 3(2)(a) 
36. The alternative rules of Directive 90/531/EEC are extended in 
their entirety to service contracts; where a Member State is 
authorized, following a decision by the Commission, to apply the 
alternative rules for the award of supply and works contracts by 
entities operating in the oil and gas sectors in question, it is 
vital that the latter also comply with these rules. Only 
paragraph 2(a) has had to be amended to include "service 
contracts". 
Article 4 
37. The amendments to Article 4 take account of the extension of the 
scope of Directive 90/531/EEC to service contracts and design 
contests and of the principle of non-discrimination between 
service providers. 
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Article 6(1) and (2) 
38. Only the award of contracts or the organization of design contests 
in the areas covered by the Directive should be referred to by the 
Directive. The new version of Article 6(1) and (2) extends this 
principle, which already exists in Directive 90/531/EEC, to 
services and design contests. 
Article 7 
39. Directive 90/531/EEC excludes purchases of supplies which are to 
be re-sold or hired to third parties under competitive conditions. 
The new version of Article 7 thus excludes service contracts 
awarded for the purposes of such re-sale or hire activities. This 
is because, when a contracting entity awards service contracts in 
order to pursue such activities, any associated services (e.g. 
advertising) should not be made subject to the Directive's 
procedural rules: the pressure of competition on the price at 
which the product is sold or hired should force the contracting 
entity to obtain all the elements of which this price is composed 
on the best possible terms. 
Article 10a 
40. Some Member States' laws reserve the right to provide certain 
services for public authorities. The new Article 10a excludes 
such contracts under certain conditions. The Article does not, 
however, aim to exclude contracts which a contracting entity 
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reserved by contractual means for one or more suppliers, on the 
basis, for example, of a framework agreement. 
Article 11 
41. The new version of this Article extends the exemption already 
provided for by Directive 90/531/EEC to services and design 
contests where contracts in their respect are awarded pursuant to 
an international agreement. 
Article 11a 
42. This new Article applies solely to service contracts 
between the contracting entity and "affiliated undertakings", 
as defined in Article 1(3), or 
awarded by a joint venture formed by a contracting entity and 
its "affiliated undertakings". 
It offers an exemption from application of the Directive where the 
contracting entity awards service contracts among its subsidiaries 
(see points 20 to 24 above). 
Article 12 
43. The new version of Article 12 incorporates the thresholds 
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applicable to services (paragraph 1) and adapts the provisions for 
calculating the estimated value of a contract to the specific 
characteristics of services (paragraphs 2 and 3). 
44. The thresholds are fixed at the same levels laid down for supply 
contracts in Directive 90/531/EEC, i.e. ECU 400 000 for contracts 
awarded by entities operating in the water, energy and transport 
sectors, and ECU 600 000 for contracts awarded by entities 
operating in the telecommunications sector. 
Fixing a common threshold avoids any difficulty linked to the 
classification of contracts within one category or another and 
thus prevents entities from circumventing application of the 
Directive by artificially classifying a contract within a category 
to which a higher threshold applies* 
Since many contracts include both services and supplies, it is 
also important that the contracting entity should, when estimating 
the contract value, add the respective parts together to determine 
whether the total value of the contract is greater than the 
threshold (paragraph 7), 
45. These levels also allow a not insubstantial proportion, in terms 
of value, of contracts to be covered and to eliminate many 
low-value contracts which are unlikely to be the subject of 
cross-border transactions* 
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Articles 12a, 12b and 12c 
46. These Articles introduce the application of different procedural 
rules depending on whether the services concerned are priority 
(listed in Annex XVI A) or other (listed in Annex XVI B) services. 
47. Priority services are subject to the full procedure set out by the 
proposal (Article 12a) in the same way as works and supplies 
contracts. These rules correspond to those of Directive 
90/531/EEC. 
48.-Other services will be subject to minimum rules (Article 12b). 
These relate on the one hand to technical specifications, which 
must be as transparent as possible so as not to obstruct trade. 
Contracting entities are also required to draw up a contract award 
notice (see also point 57). These notices will enable the 
Commission to establish a solid basis of information on 
transactions involving the services in question and to examine 
whether it would be appropriate subsequently to extend the full 
procedure to them (see also point 12). 
Article 14 
49. The new version of this Article merely extends to services the 
provisions on the communication of technical specifications 
regularly referred to by the contracting entities. 
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Article 15 
50. Paragraph 2(b) stipulates that the award of research, experiment, 
study or development contracts without prior call for competition 
must not prejudice the competitive award of subsequent contracts, 
in particular where the latter are aimed, for example, at the 
series production of the result of the research, experiment, study 
or development work in question. 
51. Paragraph 2(f) extends the existing provisions for works contracts 
to services. 
52. Paragraph 2(1) authorizes entities not to issue a call for 
competition when contracts must, under national law, be awarded to 
the winner of a design contest. This does not apply, however, 
where the contest in question has not been organized according to 
the rules of this Directive (prizes lower than the threshold, for 
example). 
Article 16 
53. Article 16 deals with the methods by which a call for competition 
may be made. The new version takes account of the inclusion of 
services. 
54. In the case of design contests (paragraph 4), the publication of a 
notice in the Official Journal is required. The very nature of 
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this method of opening a contract up to competition separates it 
from the other methods of calling for competition provided for. 
Article 17 
55. The new paragraph 1(c) introduces the necessary provisions to 
ensure that entities, when publishing the periodic indicative 
notice, indicate their intentions as far as the purchase of 
services is concerned. The amount above which they are required 
to make such an indication is identical to that laid down for 
supplies, irrespective of the type of services in question. 
Article 17a 
56. This new Article deals solely with design contests. 
Where they are organized as part of the procedure for awarding 
supply, works or service contracts, contracting entities are 
required to comply with the rules on non-discrimination 
(paragraphs 2 and 3) and the organization of juries (paragraph 4) 
irrespective of the amount of prizes or payments to participants, 
including where no payment is to be made. 
In contrast, when design contests are held as a separate 
procedure, it seems appropriate to require that they be held on a 
European scale and that publication take place only in cases where 
prizes amount to more than ECU 200 000, thereby limiting the 
administrative workload of the contracting entities. Paragraph 5 
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allows the Member States, by dint of national rules, to oblige 
contracting entities to award subsequent contracts to the winners 
of a design contest. 
Article 18 
57. The new version of Article 18 applies to all award notices, 
whether they relate to supply, works or service contracts, or a 
design contest. 
The provisions of Directive 90/531/EEC have thus been extended to 
services and design contests. 
However, for reasons of confidentiality, it is also stipulated 
that the contracting entities applying Article 15(2)(b) in order 
to award certain contracts for the purpose of research, 
experiment, study or development without prior call for 
competition may decide not to supply a description of the content 
of the contract, as referred to in point 3 of Annex XV, but merely 
to mention the main title thereof within the meaning of the 
classification of Annex XVI. 
Article 19(5) 
58. Paragraph 5 is adapted to take account of the introduction of the 
new design contest notice. 
Article 22(1) 
59. The provisions of Article 22 apply in their entirety to services; 
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the new version of paragraph 1 merely introduces the notion of 
"service provider". 
Article 23 
60. The new version of Article 23 merely extends its provisions to 
services. 
Articles 24 and 25 
61. Articles 24 and 25 are applicable in their entirety to service 
contracts; the amendments which have been introduced merely add 
the notion of "service provider". 
Article 25a 
62. It is in some cases necessary in the area of services to demand 
proof from service providers of their capacity as such on the 
basis of certificates drawn up by independent bodies. 
Article 25a acknowledges the existence of quality assurance 
systems and invites contracting entities to refer to the EN 29000 
and EN 45000 European Standards series. 
To prevent such proof from obstructing trade, and in compliance 
with the judgment of the Court of Justice in the "Dundalk" 
Case,(i) Article 25a also stipulates that the contracting 
(1) Case 45/87 - R, 13.3.1987. 
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entities must recognize equivalent certificates issued in other 
Member States, unless they are able to indicate the reasons why 
such certificates are unsuitable for the purposes of the contract 
in question. 
Article 26 
63. Some national laws prohibit legal persons from providing services 
or impose restrictive conditions on such persons (either regarding 
the establishment itself or the activities pursued). The new 
provisions of Article 26(2) and (3) correspond to those of the 
public services proposal. In line with the case law of the Court 
of Justice, in particular its judgment in the "Webb" Case,1 they 
require contracting authorities to take account also of tenders 
submitted by legal persons provided they comply with the rules of 
the country in which they are established. This does not prevent 
the contracting entity from demanding a given level of training on 
the part of service providers or from assessing the content of 
each offer. 
Article 27 
64. This Article is concerned with award criteria. The two main 
criteria already adopted for works and supply contracts, i.e. the 
lowest price or the most economically advantageous tender, are 
applied to services. 
1 Case 279/80, [1981] ECR 3304. 
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Although price is not normally the most determining factor in the 
area of services, it has proved necessary to ensure (in paragraph 
1) that these provisions do not prejudice national regulations 
which impose compulsory scales of remuneration. Even if price 
competition cannot operate fully in all the Member States, these 
differences do not apparently constitute an obstacle to 
cross-border trade. 
65. Some suppliers in the area of services are public authorities or 
public undertakings. These might therefore exploit the 
competitive advantages accruing from their status. The purpose of 
paragraph 6 is not to have contracting entities check the conduct 
of public authorities or undertakings, but rather to guarantee 
that the contracting entity is fully informed of the importance of 
public funds in a tender submitted by a public supplier. 
Article 29a 
66. Opening the contracts covered by this Directive up to competition 
will make it easier for non-Community firms to gain access to the 
European market. However, in the absence of specific 
international rules governing trade in services, there is no 
guarantee that third countries will grant Community firms 
comparable access to their markets. 
- 30 -
It should be remembered that, although there is a risk that trade 
will be distorted to the Community's detriment, this risk is less 
great in the case of services than in that of supply contracts 
since a sizeable proportion of the services concerned will often 
have to be provided on the Community's actual territory. 
For this reason, and because of the absence of Community rules 
defining the origin of all services, it does not seem warranted to 
extend the provisions of Article 29 of Directive 90/531/EEC to the 
service contracts covered by this Directive. However, in order to 
avoid opening up service contracts unilaterally to the Community's 
detriment, Article 29a introduces arrangements applicable solely 
to the services covered by this Directive which enable the 
Commission to attempt to solve by negotiation any problems of 
access to third-country markets which may arise. Paragraph 4 also 
allows the Commission, acting in consultation with the Advisory 
Committee, to take measures to limit access by third-country firms 
where it is established that the countries in question prevent 
Community firms from entering their markets. The Council may, by 
a qualified majority, decide to amend these measures. 
Article 30(1) 
67. Deletion of the word "software" does not alter the scope of the 
provisions of Article 30 applicable to the contracts covered by 
Directive 90/531/EEC, but allows them to be extended to service 
contracts. 
- 31 -
Article 33(1)(a) 
68. The provisions of Article 33 are applicable in their entirety to 
services; point (a) simply incorporates the notion of "providers 
of services". 
Article 37 
69. These Articles set out the deadlines for implementation of this 
Directive. In view of the transitional periods retained in 
Directive 90/531/EEC for 3 Member States, it would clearly be 
impractical for the present Directive to enter into force any 
earlier and the time limits have been adapted accordingly. 
- 32 -
Correlation table 
EXCLUDED SECTORS SERVICES DIRECTIVE 
SERVICES DIRECTIVE COM (90) 372 DIRECTIVE 90/531/EEC 
— , ; ; T_ 
Article 1 
(3) affiliated undertaking 
(4) service contracts 1(a) 
(5) framework agreements adaptation of Article 1(4) 
(6) tenderer adaptation of Article 1(5) 
(7) procedures adaptation of Article 1(6) 
(8) specifications adaptation of Article 1(7) 
(16) design contests 1(9) adaptation of Article 1(6) 
Article 3 (2) (a) 
alternative arrangements adapt, of Article 3(2)(a) 
applicable to oil/gas/coal 
Article 4 
application of the non- adaptation of Article 4 
discrimination procedures 
Article 6 
contracts & design contests adaptation of Article 6 
linked to the activity 
mentioned 
Article 7 
(a) exclusion of services adaptation of Article 7 (1) 
linked to competing 
products 
(b) exclusion of contracts 
intended for competing 
services 
Article 10 a 
single source of supply 7 
Article 11 
special procurement rules adaptation of Article 11 
Article 11 a 
intra-group transactions 
Article 12 
(1) thresholds adapt, of Article 12 (1) 
(2) calculation of the 
value of contracts 8(2) 
(3) services 8(4) 
(4.12) calculation of the adaptation of Article 
value of contracts 12(2 to 9) 
Articles 12 a , 12 b and 
12 c 
two-tier application 9, 10 and 11 
Article 14 
communication of technical adaptation of Article 14 
specifications 
- 33 -
Article 15 
(2) procedures without call 
for competition 
(b) R&D contracts adaptation of Art 15(2)(b) 
(c) contracts with techni- adaptation of Article 
cal specifications 15 (2) (c) 
(f) additional service adaptation of Article 
contracts 15 (2) (f) 
(1) contract following a 12 (3) (c) 
design contest 
Article 16 
(1) means of making calls adaptation of Article 16 
for competition 
(4) calls for competition 16 (4) 
of design contests 
Article 17 (1) (c) 
periodic notice adaptation of Article 17(1) 
Article 17 (a) 
design contests 14 
Article 18 
(1) notice on contracts adaptation of Article 18 
awarded 
(3) publication of information 
Article 19 (5) 
publication adapt, of Article 19 (5) 
Article 22 (1) 
request for contract adapt, of Article 22 (1) 
documents 
Article 23 (1) 
social clause adapt, of Article 23 (1) 
Article 24 
qualification system adaptation of Article 24 
Article 25 
selection of candidates adaptation of Article 25 
Article 25 a 
certification / quality 29 
assurance 
Article 26 
(2-3) natural/legal persons 22(2-3) 
Article 27 
(1) award criteria 32(1) 
(6) tenders submitted by 33(2) 
public authorities/ 
public undertakings 
- 34 -
Article 29 a 
tenders originating in third 37 
countries (services) 
Article 30 (1) 
value in national currencies adaptation of Article 30 
Article 33 (1) 
keeping of information adapt, of Article 33 (1) 
Article 37 
Date of application adapt, of Article 37 (1) 
Article 37 a 
reference to the directive 
ARTICLE 2 
Consolidated Directive 
ARTICLES 3, 4 and 5 
entry into force 
Annex XII 
open, restricted and adaptation of Annex XII 
negotiated procedure notices 
Annex XIV 
periodic information notice adaptation of Annex XIV 
Annex XV 
notice on contracts awarded adaptation of Annex XV 
Annex XVI 
A. services in the sense of Annex I 
article 12a A. 
B. services in the sense of B. 
article 12b 
Annex XVII 
design contest notices Annex IV A 
Annex XVIII 
results of design contests Annex IV B 
- 35 -
Proposal for a 
COUNCIL DIRECTIVE 
amending Directive 90/531/EEC 
on the procurement procedures of entities 
operating in the water, energy, transport 
and telecommunications sectors 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European Economic 
Community and in particular the last sentence of Article 57(2), 
Article 66, Article 100a and Article 113 thereof, 
Having regard to the proposal from the Commission^), 
In cooperation with the European Parliament(2)t 
Having regard to the opinion of the Economic and Social Committee^), 
Whereas restrictions on the free movement of goods and on the freedom 
to provide services in respect of supply and service contracts awarded 
in the water, energy, transport and telecommunications sectors are 
prohibited by the terms of Articles 30 and 59 of the Treaty; 
(1) OJ No C 
(2) OJ No C 
(3) OJ No C 
- 36 -
Whereas Article 97 of the Euratom Treaty prohibits any restrictions 
based on nationality as regards companies under the jurisdiction of a 
Member State where they desire to participate in the construction of 
nuclear installations of a scientific or industrial nature or provide 
the relevant services in the Community; 
Whereas the White Paper on the completion of the internal market 
contains an action programme and a time-table for opening up 
procurement markets in services; 
Whereas the awarding procedures of service contracts should be as 
similar as possible to the procedures applicable to the works and 
supply contracts covered by Council Directive"* 90/531/EECfà) ; 
Whereas service providers may be natural or legal persons without 
prejudice to the national rules of their country of establishement 
that are compatible with the Treaty; 
Whereas the field of services is best described, for the purpose of 
application of procurement rules, and for monitoring purposes, by 
subdividing it into categories corresponding to particular positions 
of the Central Product Classification (CPC); 
Whereas the provision of services is covered by Directive 90/531/EEC 
only in so far as it is based on contracts; whereas the provision of 
services on other bases, such as law or regulations, or employment 
contracts, is not covered; 
Whereas as far as research and development (R&D) is concerned, 
Directive 90/531/EEC only covers R&D services whose results accrue 
exclusively to the contracting entity; 
(1) OJ No L 297, 29.10.1990, p. 1. 
- 37 -
Whereas contracts relating to the acquisition or rental of immovable 
property have particular characteristics, which make the application 
of procurement rules inappropriate; 
Whereas arbitration and conciliation services are usually provided by 
bodies or individuals which are agreed on, or selected, in a manner 
which cannot be governed by procurement rules; 
Whereas contracts with a designated single source of supply may under 
certain conditions be fully or partly exempted from Directive 
90/531/EEC; 
Whereas full application of Directive 90/531/EEC must be limited, for 
a transitional period, to contracts for those services where its 
provisions will enable the full potential for increased cross-frontier 
trade to be realised; whereas contracts for other services need to be 
monitored for a certain period before taking a decision on the full 
application of the said Directive; whereas the mechanism for such 
monitoring needs to be set up by the said Directive; whereas it 
should at the same time enable those interested to share the relevant 
information; 
Whereas the relevant Community rules on mutual recognition of 
diplomas, certificates or other evidence of formal qualifications 
apply when evidence of a particular qualification is required for 
participation in an award procedure or a design contest; 
Whereas Community undertakings should be granted access to the award 
of service contracts in non-member countries; whereas negotiations 
may be initiated to that effect when such access, in law or in fact, 
is found to be restricted; whereas the possibility should exist under 
certain conditions to take measures as regards access to service 
contracts subject to Directive 90/531/EEC by undertakings of the non-
member country concerned or by tenders originating in that country; 
HAS ADOPTED THIS DIRECTIVE : 
- 38 -
Article 1 
Directive 90/531/EEC is hereby amended as follows: 
1. In Article 1, point 3 is replaced by the following: 
"3) "affiliated undertaking" shall mean any undertaking whose 
annual accounts are consolidated with those of the 
contracting entity in accordance with the requirements of 
Council Directive 83/349/EEC* or, in case of contracting 
entities not subject to that Directive, any undertaking over 
which the contracting entity may exercise, directly or 
indirectly, a dominant influence within the meaning of point 
2, or which may exercise a dominant influence over the 
contracting entity or which, in common with the contracting 
entity, is subject to the dominant influence of another 
undertaking by virtue of ownership, financial participation, 
or the rules which govern it. 
*OJ No L 193, 18.7.1983, p. 1." 
2. In Article 1, former points 3 to 7 are replaced by the 
following: 
"4) "supply, works and service contracts" shall mean contracts 
for pecuniary interest concluded in writing between a 
supplier, a contractor or a service provider and one of the 
contracting entities defined in Article 2, to the exclusion 
of 
- 39 -
i) contracts for the acquisition or rental, by whatever 
financial means, of land, existing buildings, or other 
immovable property or concerning rights therein; 
ii) contracts for voice telephony, telex, radiotelephony, 
paging and satellite services ; 
iii) contracts for arbitration and conciliation services. 
These contracts have as their object : 
a) in the case of supply contracts, the purchase, lease, 
rental or hire purchase, with or without options to buy, 
of products; 
b) in the case of works contracts, either the execution, or 
both the execution and design or the realization, by 
whatever means, of building or civil engineering 
activities referred to in Annex XI. These contracts may, 
in addition, cover supplies and services necessary for 
their execution; 
c) in the case of service contracts, any other provision. 
Contracts which include the provision of services and 
supplies shall be regarded as supply contracts if the total 
value of supplies is greater than the value of the services 
covered by the contract; 
5) "framework agreement" shall mean an agreement between one of 
the contracting entities defined in Article 2 and one or more 
suppliers, contractors or service providers the purpose of 
- 40 -
which is to establish the terms, in particular with regard to 
the prices and, where appropriate, the quantity envisaged, 
governing the contracts to be awarded during a given period; 
6) "tenderer" shall mean a supplier, contractor or service 
provider who submits a tender and "candidate" shall mean a 
person who has sought an invitation to take part in a 
restricted or negotiated procedure ; service providers may be 
either natural or legal persons, including contracting 
entities within the meaning of Article 2; 
7) "open, restricted and negotiated procedures" shall mean the 
award procedures applied by contracting entities whereby: 
a) in the case of open procedures, all interested 
suppliers, contractors or service providers may submit 
tenders; 
b) in the case of the restricted procedures, only 
candidates invited by the contracting entity may submit 
tenders; 
c) in the case of negotiated procedures, the contracting 
entity consults suppliers, contractors or service 
providers of its choice and negotiates the terms of the 
contract with one or more of them; 
8) "technical specifications" shall mean the technical 
requirements contained in particular in the tender documents, 
defining the characteristics of a set of works, material, 
product, supply or a service, and enabling a piece of work, a 
material, a product, a supply or a service to be objectively 
described in a manner such that it fulfils the use for which 
- 41 -
it is intended by the contracting entity. These technical 
prescriptions may include quality, performance, safety or 
dimensions, as well as requirements applicable to the 
material, product, supply or a service as regards quality 
assurance, terminology, symbols, testing and test methods, 
packaging, marking or labelling. In the case of works 
contracts, they may also include rules for the 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 entity 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;" 
3. In Article 1, points 8 to 14 become points 9 to 15. 
4. The following paragraph is added to Article 1: 
"16) "design contests" shall mean the procedures which aim at 
providing the contracting entity with a plan or design, 
mainly in the fields of architecture, civil engineering or 
data processing, and which are selected by a jury on the 
basis of competition with or without the award of prizes." 
5. Article 3(2)(a) is replaced by the following: 
"a) observes the principles of non-discrimination and 
competitive procurement in respect of the award of supplies, 
works and service contracts, in particular as regards the 
information that the entity makes available to undertakings 
concerning its procurement intentions;" 
- 42 -
6. Article 4 is replaced by the following: 
"Article 4 
1) When awarding supply, works or service contracts, or 
organizing design contests, the contracting entities shall 
apply procedures which are adapted to the provisions of this 
Directive. 
2) Contracting entities shall ensure that there is no 
discrimination between different suppliers, contractors or 
service providers. 
3) In the context of provision of technical specifications to 
interested suppliers, contractors or service providers of 
qualification and selection of suppliers, contractors or 
service providers and of award of contracts, contracting 
entities may impose requirements with a view to protecting 
the confidential nature of information which they make 
available. 
4) The provisions of this Directive shall not limit the right of 
suppliers, contractors or service providers to require a 
contracting entity, in conformity with national law, to 
respect the confidential nature of information which they 
make available." 
7. Article 6(1) and (2) are replaced by the following: 
"1) This Directive shall not apply to contracts or design 
contests which the contracting entities award or organize 
for purposes other than the pursuit of their activities as 
- 43 -
described in Article 2(2) or for the pursuit of such 
activities in a non-member country, in conditions not 
involving the physical use of a network or geographical area 
within the Community. 
2) However, this Directive shall apply to contracts or design 
contests awarded or organized on behalf of the entities 
which exercise an activity referred to in Article 2(2)(a)(i) 
and which : 
(a) are connected with hydraulic engineering projects, 
irrigation or land drainage, provided that the volume 
of water intended for the supply of drinking water 
represents more than 20% of the total volume of water 
made available by these projects or irrigation or 
drainage installations; or 
(b) are connected with the disposal or treatment of 
sewage." 
8. Article 7(1) is replaced by the following: 
"1) The provisions of this Directive shall not apply to : 
a) contracts awarded for purposes of re-sale or hire to 
third parties, provided that the contracting entity 
enjoys no special or exclusive right to sell or hire 
the subject of such contracts and other entities are 
free to sell or hire it under the same conditions as 
the contracting entity; 
b) service contracts directly relating to the re-sale or 
hire mentioned under a)." 
- 44 -
9. The following Article 10a is inserted: 
"Article 10a 
The provisions of this Directive shall not apply to the award of 
service contracts which contracting entities have to award to an 
entity which is itself a contracting entity within the meaning 
of Article 1(b) of Directive ../.../EEC(*) pursuant to an 
exclusive right established by a published law, regulation or 
administrative provision which is compatible with the Treaty. 
(*) OJ No C 23, 31.1.1991, p. 1." 
10. Point 1 of Article 11 is replaced by the following: 
"1. pursuant to an international agreement concluded in 
conformity with the Treaty between a Member State and one or 
more third countries and covering supplies, works, services 
or design contests intended for the joint implementation or 
exploitation of a project by the signatory States; every 
agreement shall be communicated to the Commission, which may 
consult the Advisory Committee for Public Contracts set up 
by Council Decision 71/306/EEC(*), as last amended by 
Decision 77/63/EEc(2)t or, in the case of agreements 
governing contracts awarded by entities exercising an 
activity defined in Article 2(2)(d), the Advisory Committee 
on Telecommunications Procurement referred to in Article 31; 
(1) OJ No L 185, 16.8.1971, p. 15. 
(2) OJ No L 13, 15.1.1977, p. 15." 
- 45 -
11. The following Article 11a is inserted: 
"Article 11a 
1. This Directive shall not apply to contracts for services 
which 
a) a contracting entity awards to an affiliated undertaking; 
b) are awarded by a joint venture formed by a number of 
contracting entities for the purpose of carrying out a 
relevant activity within the meaning of Article 2(2) to an 
undertaking which is affiliated with one of these 
contracting entities; 
provided that at least 85% of the average turnover of that 
undertaking arising within the Community for the preceding 
three years derives from the provision of such services to 
undertakings with which it is affiliated. 
2. The contracting entities notify the Commission, at its 
request, the following information regarding the application 
of the provisions of paragraph 1 : 
the names of the undertakings concerned; 
- the nature and value of the service contracts involved; 
- such proof as may be deemed necessary by the Commission 
that the relationship between the undertaking to which the 
contracts are awarded and the contracting entity is in 
conformity with the requirements of this Article." 
- 46 -
12. Article 12 is replaced by the following: 
"Article 12 
1) This Directive shall apply to contracts whose estimated 
value, net of VAT, is not less than : 
a) ECU 400 000 in the case of supply and service contracts 
awarded by entities carrying out an activity defined in 
Article 2(2)(a), (b) and (c); 
b) ECU 600 000 in the case of supply and service contracts 
awarded by entities carrying out an activity defined in 
Article 2(2)(d); 
c) ECU 5 000 000 in the case of works contracts. 
2) The estimated value of a service contract shall include the 
total remuneration of the service provider.taking account of 
the elements specified in paragraphs 3 to 12. 
3) In assessing the estimated contract value of financial 
services, the following amounts shall be taken into account: 
as regards insurance services, the premium payable; 
- as regards banking and other financial services, fees, 
commissions, interest and other types of remuneration. 
4) In the case of supply contracts for lease, rental or hire-
purchase, or of service contracts not indicating the total 
cost, the basis for calculating the contract value shall be: 
- 47 -
a) in the case of fixed-term contracts, where their term is 
twelve months or less, the estimated total value for the 
contract's duration, or, where their term exceeds twelve 
months, the contract's total value including the estimated 
residual value; 
b) in the case of contracts for an indefinite period or in 
cases where there is doubt as to the duration of the 
contracts, the anticipated total instalments to be paid in 
the first four years. 
5) Where a proposed supply or service contract expressly 
specifies option clauses, the basis for calculating the 
contract value shall be the highest possible total purchase, 
lease, rental or hire-purchase permissible, inclusive of the 
option clauses. 
6) In the case of a procurement of supplies or services over a 
given period by means of a series of contracts to be awarded 
to one or more suppliers or of contracts which are to be 
renewed, the contract value shall be calculated on the basis 
of: 
a) the total value of contracts which had similar 
characteristics awarded over the previous fiscal year or 
twelve months, adjusted where possible for anticipated 
changes in quantity or value over the subsequent twelve 
months; 
b) or the aggregate value of contracts to be awarded during 
the twelve months following the first award or during the 
whole term of the contract, where this is longer than 
twelve months. 
- 48 -
7) The basis for calculating the estimated value of a contract 
including both supplies and services, shall be the total 
value of the supplies and services regardless of their 
respective values. 
8) The basis for calculating the value of a framework agreement 
shall be the estimated maximum value of all the contracts 
envisaged for the period in question. 
9) The basis for calculating the value of a works contract for 
the purposes of paragraph 1 shall be the total value of the 
work. "Work" shall mean the building and engineering 
activities taken as a whole that are intended to fulfil an 
economic function by themselves. 
In particular, where a supply, work or service is the subject 
of several lots, the value of each lot shall be taken into 
account when assessing the value referred to in paragraph 1. 
Where the aggregate value of the lots equals or exceeds the 
value laid down in paragraph 1, that paragraph shall apply to 
all the lots. However, in the case of works contracts, 
contracting entities may derogate from paragraph 1 in respect 
of lots whose estimated value net of VAT is less than 
ECU 1 million, provided that the aggregate value of those 
lots does not exceed 20% of the overall value of the lots. 
10) For the purposes of paragraph 1, contracting entities shall 
include in the estimated value of a works contract the value 
of any supplies or services necessary for the execution of 
the works which they make available to the contractor. 
- 49 -
11) The value of supplies or services which are not necessary for 
the execution of a particular works contract may not be added 
to that of the contract with the result of avoiding 
application of this Directive to the procurement of those 
supplies. 
12) Contracting entities may not circumvent this Directive by 
splitting contracts or using special methods of calculating 
the value of contracts." 
13. The following Title la is inserted: 
"Title la 
TWO-TIER APPLICATION 
Article 12a 
Supply and works contracts and contracts which have as their 
object services listed in Annex XVIA shall be awarded in 
accordance with the provisions of Titles II, III and IV. 
Article 12b 
Contracts which have as their object services listed in 
Annex XVIB shall be awarded in accordance with Articles 13 and 
18. 
- 50 -
Article 12c 
Contracts which have as their object services listed in both 
Annexes XVIA and XVIB shall be awarded in accordance with the 
provisions of Titles II, III and IV where the value of the 
services listed in Annex XVIA is greater than the value of the 
services listed in Annex XVIB. 
Where this is not the case, they shall be awarded in accordance 
with Articles 13 and 18." 
14. Article 14 is replaced by the following: 
"Article 14 
1) Contracting entities shall make available on demand to 
suppliers, contractors or service providers interested in 
obtaining a contract the technical specifications regularly 
referred to in their supply, works or service contracts or 
the technical specifications which they intend to apply to 
contracts covered by periodic information notices within the 
meaning of Article 17. 
2) Where such technical specifications are based on documents 
available to interested suppliers, contractors or service 
providers a reference to those documents shall be 
sufficient". 
15. Article 15(2)(b) is replaced by the following: 
"b) where a contract is purely for the purpose of research, 
experiment, study or development and not for the purpose of 
ensuring profit or of recovering research and development 
costs and insofar as the award of such contract does not 
prejudice the competitive award of subsequent contracts 
which have in particular these purposes;" 
- 51 -
16. Article 15(2)(c) is replaced by the following: 
"c) when, for technical or artistic reasons, or for reasons 
connected with protection of exclusive rights, the contract 
may be executed only by a particular supplier, contractor or 
service provider;" 
17. Article 15(2)(f) is replaced by the following: 
"f) for additional works or services not included in the project 
initially awarded or in the contract first concluded but 
which have, through unforeseen circumstances, become 
necessary for the execution of the contract, on condition 
that the award is made to the contractor executing the 
original contract: 
- when such additional works or services cannot be 
technically or economically separated from the main 
contract without great inconvenience to the contracting 
entities; 
- or when such additional works or services, although 
separable from the execution of the original contract, are 
strictly necessary to its later stages;" 
18. The following point is added to Article 15(2): 
"1) when the service contract concerned is part of the follow-up 
to a design contest organized in conformity with the 
provisions of this Directive and must, in accordance with 
the relevant rules, be awarded to one of the winners of that 
contest, provided that all the winners are included in the 
procedure." 
- 52 -
19. Article 16(1) is replaced by the following: 
"1) In the case of supply, works or service contracts, the call 
for competition may be made: 
a) by means of a notice drawn up in accordance with 
Annex XII A, B or C; or 
b) by means of a periodic indicative notice drawn up in 
accordance with Annex XIV; or 
c) by means of a notice on the existence of a qualification 
system drawn up in accordance with Annex XIII." 
20. Article 16(2)(a) is replaced by the following: 
"a) the notice must refer specifically to the supplies, works or 
services which will be the subject of the contract to be 
awarded;" 
21. In Article 16, paragraph 4 is replaced by the following: 
"4) in the case of design contests, the call for competition 
shall be made by means of a notice drawn up in accordance 
with Annex XVII." 
22. In Article 16, former paragraph 4 becomes paragraph 5. 
23. The following paragraph (c) is added to Article 17(1): 
"c) in the case of service contracts, the estimated total value 
of the service contracts in each of the categories of 
services listed in Annex XVIA which they intend to award 
- 53 -
over the following 12 months, where such estimated total 
value, taking into account the provisions of Article 12, is 
equal to or greater than ECU 750 000." 
24. The following Article 17a is inserted: 
"Article 17a 
1) Design contests shall be subject to the rules set out below. 
However, when design contests are held as a separate 
procedure, these rules are applicable only when the total 
amount of contest prizes and payments to participants is not 
less than ECU 200 000. 
2) 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. 
3) In the case of design contests with a limited number of 
participants, contracting entities shall apply the rules of 
Article 25. 
4) The jury shall be composed only of persons who have no 
financial connections or special relationships with 
participants in the contest. Whenever a particular 
professional qualification is required from participants in a 
contest, the majority of the jury members shall have the same 
qualifications. The jury shall be autonomous in its 
decisions. It shall take its decisions based on projects 
presented in an anonymous way, and solely on the grounds of 
the criteria indicated in the invitation for projects within 
the meaning of Annex XVII. 
- 54 -
5) Member States may oblige contracting entities to award 
subsequent contracts to one of the winners of a design 
contest." 
25. Article 18 is replaced by the following: 
"Article 18 
1) Contracting entities which have awarded a contract or 
organised a design contest shall communicate to the 
Commission, within two months of the award of the contract 
and under conditions to be laid down by the Commission in 
accordance with the procedure laid down in Article 32, the 
results of the awarding procedure by means of a notice drawn 
up in accordance with Annex XV or Annex XVIII. 
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 the contracting 
entities may point out when forwarding this information in 
connection with points 6 and 9 of Annex XV. 
3) The contracting entities applying the provisions of Article 
15(2)(b) or awarding service contracts listed in Annex XVIB, 
may, concerning point 3 of Annex XV, only mention the main 
title thereof within the meaning of the classification of 
Annex XVI. 
4) Information provided under Section II of Annex XV must not be 
published or mentioned in the periodic reports except, in 
aggregated form, for statistical purposes." 
- 55 -
26. Article 19(5) is replaced by the following: 
"5) Contracts or design contests in respect of which a notice is 
published in the Official Journal of the European 
Communities pursuant to Article 16(1) or Article 16(4) shall 
not be published in any other way before that notice has 
been dispatched to the Office for Official Publications of 
the European Communities. Such publication shall not 
contain information other than that published in the 
Official Journal of the European Communities." 
27. Article 22(1) is replaced by the following: 
"1. Provided they have been requested in good time, the contract 
documents and supporting documents must be sent to the 
suppliers, contractors or service providers by the 
contracting entities as a general rule within six days of 
receipt of the application." 
28. Article 23 is replaced by the following: 
"Article 23 
1. The contracting entity may state in the contract documents, 
or be obliged by a Member State so to do, the authority or 
authorities from which a tenderer may obtain the appropriate 
information on the obligations relating to the employment 
protection provisions and the working conditions which are in 
force in the Member State, region or locality in which the 
works or services are to be executed or performed and which 
shall be applicable to the works carried out or the services 
performed on site during the performance of the contract. 
2) A contracting entity which supplies the information referred 
to in paragraph 1 shall request the tenderers or those 
- 56 
participating in the contract procedure to indicate that 
they have taken account, when drawing up their tender, of 
the obligations relating to employment protection provisions 
and the working conditions which are in force in the place 
where the work or the service is to be carried out or 
performed. This shall be without prejudice to the 
application of the provisions of Article 27 (5) concerning 
the examination of abnormally low tenders". 
29. In Article 24, paragraphs (1), (3), (5), (7) and (8) are 
replaced by the following: 
"1) Contracting entities which so wish may establish and operate 
a system of qualification of suppliers, contractors or 
service providers." 
"3) The rules and criteria for qualification shall be made 
available on request to interested suppliers, contractors or 
service providers. The updating of these criteria and rules 
shall be communicated to the interested suppliers, 
contractors and service providers. Where a contracting 
entity considers that the qualification system of certain 
third entities or bodies meet its requirements, it shall 
communicate to interested suppliers, contractors and service 
providers the names of such third entities or bodies." 
"5) In reaching their decision as to qualification or when the 
criteria and rules are being updated, contracting entities 
may not: 
impose conditions of an administrative, technical or 
financial nature on some suppliers, contractors or service 
providers that are not imposed on others; 
- require tests or proof that duplicate objective evidence 
already available." 
- 57 -
"7) A written record of qualified suppliers, contractors or 
service providers shall be kept, and it may be divided into 
categories according to the type of contract for which the 
qualification is valid. 
8) Contracting entities may bring the qualification of a 
supplier, contractor or service provider to an end only for 
reasons based on the criteria referred to in paragraph 2. 
The intention to bring qualification to an end must be 
notified in writing to the supplier, contractor or service 
provider beforehand, together with the reason or reasons 
justifying the proposed action." 
30. Article 25(1) is replaced by the following: 
"1) Contracting entities which select candidates to tender in 
restricted procedures or to participate in negotiated 
procedures shall do so according to objective criteria and 
rules which they lay down and which they shall make 
available to interested suppliers, contractors or service 
providers." 
31. The following Article 25a is inserted: 
"Article 25a 
Should entities require the production of certificates drawn up 
by independent bodies for attesting conformity of the service 
provider to certain quality assurance standards, they shall 
refer to quality assurance systems based on the relevant EN 
29000 European standards series certified by bodies conforming 
to the EN 45000 European standards series. Entities shall 
recognise equivalent certificates from bodies established in 
other Member States. 
- 58 -
They shall also accept other evidence of equivalent quality 
assurance measures from service providers who have no access to 
such certificates, or no possibility of obtaining them within 
the relevant time limits." 
32. Article 26 is replaced by the following: 
"Article 26 
1) Groupings of suppliers, contractors or service providers 
shall be permitted to tender or negotiate. The conversion of 
such groupings into a specific legal form shall not be 
required in order to submit a tender or to negotiate, but the 
grouping selected may be required so to convert itself once 
it has been awarded the contract where such conversion is 
necessary for the proper performance of 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 relevant service activity, shall not be rejected on 
the sole grounds that under the law of the Member State in 
which the contract is awarded they would have been required 
to be either a natural or a legal person. 
3) Legal persons may be required to indicate in the tender or 
the request for participation, the names and relevant 
professional qualifications of the staff to be responsible 
for the performance of the service." 
33. Article 27(1) is replaced by the following: 
"1) Without prejudice to national laws, regulations or 
administrative provisions on the remuneration of certain 
services, the criteria on which the contracting entities 
shall base the award of contracts shall be: 
- 59 -
a) the most economically advantageous tender, involving 
various criteria depending on the contract in question, 
such as: delivery or completion date, running costs, cost-
effectiveness, quality, aesthetic and functional 
characteristics, technical merit, after-sales service and 
technical assistance, commitments with regard to spare 
parts, security of supplies and price; or 
b) the lowest price only." 
34. The following paragraph 6 is added to Article 27: 
"6) In the case of a tender for the award of a service contract 
submitted by a public authority or a public undertaking, the 
contracting entity shall in particular enquire whether the 
tender is influenced by public funds allocated for 
a) the setting-off of operating losses; 
b) the provision of capital; 
c) non-refundable grants, or loans on privileged terms; 
d) the granting of financial advantages by foregoing 
profits or the recovery of sums due; 
e) the foregoing of a normal return on public funds used; 
f) compensation for financial burdens imposed by the 
public authorities. 
It shall inform the Commission if it intends to award a 
contract to a tenderer whose tender is influenced by any of 
these characteristics." 
- 60 -
35. The following Article 29a is inserted: 
"Article 29a 
1) The Member States shall inform the Commission of any general 
difficulties encountered, in law or in fact, by their 
undertakings in securing the award of service contracts in 
third countries. 
2) The Commission shall report to the Council before 
31 December 1992 and periodically thereafter on the 
opening-up of service contracts in third countries and on the 
state of negotiations with these countries on this subject, 
particularly within the GATT framework. 
3) Whenever the Commission establishes, either on the basis of 
the reports referred to in paragraph 2, or on the basis of 
other information, that a third country as regards the award 
of service contracts, 
a) does not grant Community undertakings effective access 
comparable to that granted by the Community to 
undertakings from that country, 
b) does not grant Community undertakings national treatment 
or the same competitive opportunities as are available to 
national undertakings, or 
c) grants undertakings from other third countries more 
favorable treatment than Community undertakings, 
the Commission may initiate negotiations in order to remedy 
the situation. 
- 61 -
4) Under the conditions referred to in paragraph 3, the 
Commission may decide, in addition to action taken pursuant 
to that paragraph, that the award of service contracts to 
a) undertakings governed by the law of the third country in 
question, 
b) undertakings affiliated to the undertakings specified in 
(a) and having their registered office in the Community 
but having no effective and continuous link with the 
economy of a Member State, 
c) undertakings submitting tenders which have as their object 
services originating in the third country in question, 
may be suspended or restricted during a period to be 
determined in the decision. The Commission may decide on the 
appropriate measures either on its own initiative or at the 
request of a Member State, after consulting the Member States 
in accordance with the procedure laid down in Article 32(5), 
(6) and (7). Where the Commission is asked to take action by 
a Member State, it shall take a decision within a maximum 
period of three months of receipt of the request. 
It shall notify the Council and the Member States of the 
decisions taken. 
Any Member State may refer the Commission's decision to the 
Council within a maximum period of four weeks from the date 
of the decision. 
- 62 -
The Council, acting by qualified majority, may take a 
different decision within a maximum period of three months of 
such referral. 
5) This Article is without prejudice to the obligations of the 
Community in relation to non-member countries." 
36. In Article 30(1) the word "software" is deleted. 
37. Article 33(1)(a) is replaced by the following: 
"a) the qualification and selection of contractors, suppliers or 
of providers of services and award of contracts" 
38. Article 37 is replaced by the following: 
"Article 37 
1) Member States shall adopt the measures necessary to comply 
with the provisions relating to works and supply contracts of 
this Directive by 1 July 1992. They shall forthwith inform 
the Commission thereof. 
Member States may stipulate that the measures referred to 
shall apply only from 1 January 1993. 
2) The Member States shall apply the measures relating to 
service contracts by 1 January 1993. 
3) Nevertheless, in the case of the Kingdom of Spain, 1 January 
1993 shall be replaced by 1 January 1996. As regards the 
Hellenic Republic and the Portuguese Republic, 1 January 1993 
shall be replaced by 1 January 1998. 
- 63 -
4) Council Recommendation 84/550/EEC of 12 November 1984 
concerning the first phase of opening up access to public 
telecommunications contracts(1) shall cease to have effect 
as from the date on which this Directive is applied by the 
Member States. 
(1) OJ No L 298, 16.11.1984, p. 51. 
39. The following Article 37a is inserted : 
"Article 37a 
When Member States adopt the provisions referred to in 
Article 37, these shall contain a reference to this Directive or 
shall be accompanied by such reference at the time of their 
official publication. The procedure for such reference shall be 
adopted by the Member States." 
40. The list of Annexes and Annexes XII, XIV and XV are replaced by 
the list of Annexes and Annexes XII, XIV and XV of this 
Directive. 
41. Annexes XVI, XVII and XVIII hereto are added. 
Article 2 
The Commission shall adopt before 1 January 1993, a Directive which 
consolidates the provisions of Directive 90/531/EEC and of this 
Directive in conformity with the procedure referred to in 
Article 32(4) to (7) . 
- 64 -
Article 3 
1) Member States shall adopt the measures necessary to comply with 
this Directive by 1 January 1993. They shall forthwith inform the 
Commission thereof. 
2) Nevertheless, the Kingdom of Spain may stipulate that the measures 
referred to in paragraph 1 shall apply only from 1 January 1996. 
The Hellenic Republic and the Portuguese Republic may stipulate 
that the measures referred to in paragraph 1 shall apply only from 
1 January 1998. 
3) When Member States adopt these provisions, these shall contain a 
reference to this Directive or shall be accompanied by such 
reference at the time of their official publication. The procedure 
for such reference shall be adopted by Member States. 
Article 4 
Member States shall communicate to the Commission the text of the main 
provisions of national law, whether laws, regulations or 
administrative provisions, which they adopt in the field governed by 
this Directive. 
Article 5 
This Directive is addressed to the Member States. 
Done at Brussels, 
For the Council 
The President 
65 -
ANNEXES 
Annex I 
Annex 11 
Annex 111 
Annex IV 
Annex V 
Annex VI 
Annex VII 
Annex VIII 
Annex IX 
Annex X 
Annex XI 
Annex XII 
Annex XIII 
Annex XIV 
Annex XV 
Annex XVI 
Annex XVII 
Annex XVIII production, transport or distribution of drinking water 
production, transport or distribution of electricity 
transport or distribution of gas or heat 
exploration for and extraction of oil or gas 
exploration for and extraction of coal or other solid fuels 
Contracting entities in the field of railway services 
Contracting entities in the field of urban railway, tramway, trolley bus or bus 
services 
Contracting entities in the field of airport facilities 
Contracting entities in the field of maritime or inland port or other terminal 
faciIities 
Operation of telecommunications networks or provision of telecommunications 
services 
List of professional activities as set out in the general industrial 
classification of economic activities within the European Communities 
A. open procedures 
B. restricted procedures 
C. negotiated procedures 
Notice on the existence of a qualification system 
Periodic information notice 
A. For supply contracts 
B. For works contracts 
C. For service contracts 
Notice on contracts awarded 
I. Information for publication in the Official Journal of the European 
Communities 
11.Information not intended for publication 
A. Services in the sense of Article 12a 
B. Services in the sense of Article 12b 
Design contest notices 
Results of design contests 
- 66 -
ANNEX XII 
A. OPEN PROCEDURES 
1. The name, address, telephone number, telegraphic address, telex and telecopier number of the 
contracting entity. 
2. Nature of the contract (supply, works or service, where appropriate, state if it is a 
framework agreement). 
Category of service within the sense of annex XVIA or XVIB and description (CPC 
classification). 
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; 
or 
the nature and extent of the services to be provided and general nature of the work. 
(b) Indication of whether the suppliers can tender for some and/or all 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 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) Indication whether the execution of the service is by law, regulation, or 
administrative provision reserved to a particular profession; 
(b) Reference of the law, regulation or administrative provison; 
(O Indication whether legal persons should indicate the names and professional 
qualification of the staff to be reponsible for the execution of the services; 
(d) 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 13 (6). 
8. Time limits for delivery or completion or duration of service contract. 
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) The final date for receipt of tenders. 
(b) The address to which they must be sent. 
(c) The 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) The date, hour 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 provisions in which are 
contained. 
- 67 -
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. The 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 to which the contract refers. 
20. Date of dispatch of the notice by the contacting entities. 
21. Date of receipt of the notice by the Office for Official Publications of the European 
Communities (to be supplied by the said Office). 
- 68 -
ANNEX XII 
B. RESTRICTED PROCEDURES 
1. The name, address, telephone number, telegraphic address, telex and telecopier number of the 
contracting entity. 
2. Nature of the contract (supply, works or service, where appropriate, state if it is a 
framework agreement). 
Category of service within the sense of annex XVIA or XVIB and description (CPC 
classification). 
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; 
or 
the nature and extent of the services to be provided and general nature of the work. 
(b) Indication of whether the suppliers can tender for some and/or all 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 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) Indication whether the execution of the service is by law, regulation, or 
administrative provision reserved to a particular profession; 
(b) Reference of the law, regulation or administrative provison; 
(c) Indication whether legal persons should indicate the names and professional 
qualification of the staff to be reponsible for the execution of the services; 
(d) Indication whether suppliers can tender for a partof the services concerned; 
6. Authorization to submit variants. 
7. Derogation from the use of European Specifications, in accordance with Article 13 (6). 
8. Time limits for delivery or completion or duration of service contract. 
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) The final date for receipt of requests to participate. 
(b) The address to which they must be sent. 
(c) The language or languages in which they must be drawn up. 
11. The 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. The criteria for the award of the contract where they are not mentioned in the invitation to 
tender. t 
- 69 -
16. Other information. 
17. Where appropriate, the reference to publication of the periodic information notice in the 
Official Journal 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 the said Office). 
- 70 -
ANNEX XII 
C. NEGOCIATED PROCEDURES 
1. The name, address, telephone number, telegraphic address, telex and telecopier number of the 
contracting entity. 
2. Nature of the contract (supply, works or service, where appropriate, state if it is a 
framework agreement). 
Category of service within the sense of annex XVIA or XVIB and description (CPC 
classification). 
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; 
or 
the nature and extent of the services to be provided and general nature of the work. 
(b) Indication of whether the suppliers can tender for some and/or all 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 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) Indication whether the execution of the service is by law, regulation, or 
administrative provision reserved to a particular profession; 
(b) Reference of the law, regulation or administrative provison; 
(c) Indication whether legal persons should indicate the names and professional 
qualification of the staff to be reponsible for the execution of the services; 
(d) Indication whether suppliers can tender for a part of the services concerned; 
6. Derogation from the use of European specifications, in accordance with article 13 (6). 
7. Time limits for delivery or completion or duration of service contract. 
8. (a) The final date for receipt of tenders. 
(b) The address to which they must be sent. 
(c) The language or languages in which they must be drawn up. 
9. Where appropriate, any deposits and guarantees required. 
10. Main terms concerning financing and payment and/or references to the texts in which these 
are contained. 
11. Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or 
providers to whom the contract is awarded. 
12. Information concerning the supplier's, contractor's or provider's position and minimum 
economic and technical conditions required of him. 
13. Where appropriate, the names and addresses of suppliers, contractors or providers already 
selected by the contracting entity. 
14. Where applicable, date(s) of previous publications in the Official Journal of the European 
Communities. 
15. Other information. 
- 71 -
16. Where appropriate, the reference to publication of the periodic information notice in the 
Official Journal to which the contract refers. 
17. Date of dispatch of the notice by the contracting entities. 
18. Date of receipt of the notice by the Office for Official Publications of the European 
Communities (to be supplied by the said Office). 
- 72 -
ANNEX XIV 
Periodic Information Notice 
C. For service contracts. 
1. Name, address, telephone number, telegraphic address, telex and telecopier number of the 
contracting entity or the service from which additional information may be obtained. 
2. Intended total procurement in each of the service categories listed in Annex XVIA; 
3. (a) Estimated date of the commencement of the procedures of the award of the contract(s) 
(if known). 
(b) Type of award procedure to be used. 
4. Other information (for example, indicate if a call for competition will be published later), 
5. Date of dispatch of the notice by the contracting entities. 
6. Date of receipt of the notice by the Office for Official Publications of the European 
Communities (to be supplied by the said Office). 
- 73 -
ANNEX XV 
Notice on contracts awarded 
I. INFORMATION FOR 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 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 15(2), or Article 12b. 
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 under Article 15(2)(j) 
9. Name and address of successful supplier(s), contractor(s) or service provider(s) 
10. State, where appropriate, whether the contract has been, or may be, sub-contracted. 
11. Optional information: 
value and share of the contract which may be sub-contracted to third parties; 
- award criteria; 
- price paid (or range of prices). 
11. INFORMATION NOT INTENDED FOR PUBLICATION 
12. Number of contracts awarded (where an award has been split between more than one supplier) 
13. Value of each contract awarded 
14. Country of origin of the product or service (EEC origin or non-Community origin; if the 
latter, broken down by third country) 
15. Was recourse made to the exceptions to the use of European specifications provided for under 
Article 13(6). If so, which? 
16. Which award criteria was used (most economically advantageous: lowest price: criteria 
permitted under Article 28)? 
17. Was the contract awarded to a bidder who submitted a variant, in 
accordance with Article 27(3)? 
18. Were any tenders excluded on the grounds that they were abnormally low, in accordance with 
Article 27(5)? 
19. Date of transmission of the notice by the contracting entities. 
- 74 -
ANNEX XVI A 
Services in the sense of Article 12a 
Maintenance and repair services 6112, 6122, 633, 886 
Land transport services, including 
armoured car services, and courier 
services, except transport of mail 712 (except 71235) 7512 
87304 
Air transport services of passengers 
and freight, except transport of 
ma i I 73 (except 7321) 
Transport of mail by land, except 
raiI, and by air 71235, 7321 
Telecommunications services 752* 
Financial services 
a) Insurance services 
b) Banking and investment services ex 81 
812, 814 
Computer and related services 84 
R&D services** 85 
Accounting, auditing and book­
keeping services 862 
10 Market research and public 
opinion polling services 864 
11 Management consulting services 
and related services 865, 866*** 
12 Architectural services; 
Engineering services and inte­
grated engineering services; 
Urban planning and landscape 
architectural services; 
Related scientific and tech­
nical consulting services; 
Technical testing and analysis 
services 867 
13 
Ï4~ Advertising services 871 
Building-cleaning services 
and property management services 874 
82201, 82202 
15 Publishing and printing services 
on a fee or contract basis 88442 
16 Sewage and refuse disposal; 
sanitation and similar services 94 
* except voice telephony, telex, radiotelephony, paging and satellite services 
** as defined in the eighth recital 
*** except arbitration and conciliation services 
- 75 -
ANNEX XVI B 
Services in the sense of Article 12b 
CPC Division, Group, 
Cat. Title Class or Sub-Class 
17 Hotel and restaurant services 64 
18 Transport services by rail 711 
19 Water transport services 72 
20 Supporting and auxiliary transport 
services 74 
21 Legal services 861 
22 Placement and supply services of 
personnel 872 
23 Investigation and security services 
(except armoured car services) 873 (except 87304) 
24 Education and vocational educational 
services 92 
25 Health and social services 93 
26 Recreational, cultural and sporting 
services 96 
27 Other services 
- 76 -
ANNEX XVII 
Design Contest Notices 
1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the 
authority and of the service from which the relevant documents may be obtained; 
2. Project description; 
3. Nature of the contest: open or restricted; 
4. In the case of open contests: final date for receipt of projects; 
i 
5. In the case of restricted contests: 
a) the envisaged number of participants, or range; 
b) where applicable, names of already selected participants; 
c) the criteria to be applied in the selection of participants; 
d) final date for receipt of requests to participate; 
6. Where applicable, indication whether participation is reserved to a particular profession; 
7. The criteria to be applied in the evaluation of projects; 
8. Where applicable, names of selected members of the jury; 
9. Indication whether the decision of the jury is binding for the authority; 
10 Where applicable, the number and value of the prizes to be awarded; 
11 Where applicable, details on payments to all participants; 
12 Indication whether the prize-winners are entitled to be awarded any follow-up contracts; 
13 Other information; 
14 Date of dispatch of the notice, 
15 Date of receipt of the notice by the office for Official Publications of the European 
Communities. 
- 77 -
ANNEX XVIII 
Results of Design contests 
1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the 
authority; 
2. Project description; 
3. Total number of participants; 
4. Number of foreign participants; 
5. Winner(s) of the contest; 
6. Where applicable, the prize(s); 
7. Other information; 
8. Reference of the design contest notice; 
9. Date of dispatch of the notice; 
10. Date of receipt of the notice by the Office for Official Publications of the European 
Communities. 
- 78 -
WORKING DOCUMENT 
OF THE SERVICES OF THE COMMISSION 
Consolidated text integrating the provisions of the 
proposal for a Directive COM (91)... 
(service contracts) into Directive 90/531/EEC 
(supply and works contracts) 
(9) 
- 79 -
NOTE 
The attached consolidated text aims at facilitating the reading and 
understanding of the proposal for a Directive concerning service 
contracts awarded in the water, energy, transport and 
telecommunications sectors(*). 
This text integrates all the modifications relating to contracts for 
services into Directive 90/531/EEC which is applicable only to supply 
and works contracts. 
The underlined text corresponds to the modified or new provisions 
which are to be found in the formal proposal; where the provisions do 
not specify that they only apply to supply or works contracts, it 
means that the provison concerned also applies to service contracts. 
(1) COM (91)...of ...1991; proposal for a Council Directive amending 
Directive 90/531/EEC on the procurement procedures of entities 
operating in the water, energy, transport and telecommunications 
sectors. 
- 80 -
/ANNEX CONSOLIDATED TEXT 
TITLE I 
GENERAL PROVISIONS 
Article 1 
For the purposes of this Directive: 
1) "public authorities" shall mean the State, regional or local 
authorities, bodies governed by public law, or associations 
formed by one or more of such authorities or bodies governed by 
public law. 
A body is considered to be governed by public law where it: 
- is established for the specific purpose of meeting needs in 
the general interest, not being of a commercial or industrial 
nature, and 
- 81 -
has legal personality, and 
is financed for the most part by the State, or regional or 
local authorities, or other bodies governed by public law, or 
is subject to management supervision by those bodies, or has 
an administrative, managerial or supervisory board more than 
half of whose members are appointed by the State, regional or 
local authorities, or other bodies governed by public law; 
2) "public undertaking" shall mean any undertaking over which the 
public authorities may exercise directly or indirectly a 
dominant influence by virtue of their ownership of it, their 
financial participation therein, or the rules which govern it. 
A dominant influence on the part of the public authorities shall 
be presumed when these authorities, directly or indirectly, in 
relation to an undertaking: 
hold the major part of the undertaking's subscribed capital, 
or 
- control the majority of the votes attaching to shares issued 
by the undertaking, or 
can appoint more than half of the members of the 
undertaking's administrative, managerial or supervisory body; 
3) "affiliated undertaking" shall mean any undertaking whose annual 
accounts are consolidated with those of the contracting entity 
in accordance with the requirements of Directive 83/349/EEC of 
13 June 1983(^) or, in case of contracting entities not subject 
to that Directive, any undertaking over which the contracting 
(1) OJ No L 193, 18.7.1983, p. 1. 
- 82 -
entity may exercise, directly or indirectly, a dominant 
influence within the meaning of point 2, or which may exercise a 
dominant influence over the contracting entity or which, in 
common with the contracting entity, is subject to the dominant 
influence of another undertaking by virtue of ownership, 
financial participation, or the rules which govern it. 
4) "supply, works and service contracts" shall mean contracts for 
' pecuniary interest concluded in writing between a supplier, a 
contractor or a service provider and one of the contracting 
entities defined in Article 2, to the exclusion of 
i) contracts for the acquisition or rental by whatever financial 
means, of land, existing buildings, or other immovable 
property or concerning rights therein; 
ii) contracts for voice telephony, telex, radiotelephony, paging 
and satellite services ; 
iii) contracts for arbitration and conciliation services. 
These contracts have as their object : 
a) in the case of supply contracts, the purchase, lease, rental 
or hire purchase, with or without options to buy, of 
products; 
b) in the case of works contracts, either the execution, or both 
the execution and design or the realization, by whatever 
means, of building or civil engineering activities referred 
to in Annex XI. These contracts may, in addition, cover 
supplies and services necessary for their execution; 
- 83 -
c) in the case of service contracts, any other provision. 
Contracts which include the provision of services and supplies 
shall be regarded as supply contracts if the total value of 
supplies is greater than the value of the services covered by 
the contract; 
5) "framework agreement" shall mean an agreement between one of the 
contracting entities defined in Article 2 and one or more 
suppliers, contractors or service providers the purpose of which 
is to establish the terms, in particular with regard to the 
prices and, where appropriate, the quantity envisaged, governing 
the contracts to be awarded during a given period; 
6) "tenderer" shall mean a supplier, contractor or service provider 
who submits a tender and "candidate" shall mean a person who has 
sought an invitation to take part in a restricted or negotiated 
procedure ; service providers may be either natural or legal 
persons, including contracting entities within the meaning of 
Article 2; 
7) "open, restricted and negotiated procedures" shall mean the 
award procedures applied by contracting entities whereby: 
a) in the case of open procedures, all interested suppliers, 
contractors or service providers may submit tenders; 
b) in the case of the restricted procedures, only candidates 
invited by the contracting entity may submit tenders; 
- 84 -
c) in the case of negotiated procedures, the contracting entity 
consults suppliers, contractors or service providers of its 
choice and negotiates the terms of the contract with one or 
more of them; 
8) "technical specifications" shall mean the technical requirements 
contained in particular in the tender documents, defining the 
characteristics of a set of works, material, product, supply or 
* a service, and enabling a piece of work, a material, a product, 
a supply or a service to be objectively described in a manner 
such that it fulfils the use for which it is intended by the 
contracting entity. These technical prescriptions may include 
quality, performance, safety or dimensions, as well as 
requirements applicable to the material, product, supply or a 
service as regards quality assurance, terminology, symbols, 
testing and test methods, packaging, marking or labelling. In 
the case of works contracts, they may also include rules for the 
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 entity 
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; 
9) "standard" shall mean a technical specification approved by a 
recognized standardizing body for repeated and continuous 
application, compliance with which is in principle not 
compulsory; 
10) "European standard" shall mean a standard approved by the 
European Committee for Standardization (CEN) or by the European 
Committee for Electrotechnical Standardization (CENELEC) as a 
- 85 -
"European Standard (EN)" or "Harmonization Document (HD)", 
according to the common rules of those organizations, or by the 
European Telecommunications Standards Institute (ETSI) according 
to its own rules as a "European Telecommunications 
Standard (ETS)"; 
11) "common technical specification" shall mean a technical 
specification drawn up in accordance with a procedure recognized 
by the Member States with a view to uniform application in all 
Member States and published in the Official Journal of the 
European Communities; 
12) "European technical approval" shall mean a favourable technical 
assessment of the fitness for use of a product for a particular 
purpose, based on fulfilment of the essential requirements for 
building works, by means of the inherent characteristics of the 
product and the defined conditions of application and use, as 
provided for in Council Directive 89/106/EEC of 21 December 1988 
on the approximation of laws, regulations and administrative 
provisions of the Member States relating to construction 
products (1). European technical approval shall be issued by 
an approval body designated for this purpose by the Member 
State; 
13) "European specification" shall mean a common technical 
specification, a European technical approval or a national 
standard implementing a European standard; 
14) "public telecommunications network" shall mean the public 
telecommunications infrastructure which enables signals to be 
conveyed between defined network termination points by wire, by 
microwave, by optical means or by other electromagnetic means. 
(1) OJ No L 40, 11.2.1989, p. 12. 
- 86 -
"Network termination point" shall mean all physical connections 
and their technical access specifications which form part of the 
public telecommunications network and are necessary for access 
to, and efficient communication through, that public network; 
15) "public telecommunications services" shall mean 
telecommunications services the provision of which the Member 
States have specifically assigned notably to one or more 
telecommunications entities. 
"Telecommunications services" shall mean services the provision 
of which consists wholly or partly in the transmission and 
routing of signals on the public telecommunications network by 
means of telecommunications processes, with the exception of 
radio-broadcasting and television. 
16) "design contests" shall mean the procedures which aim at 
providing the contracting entity with a plan or design, mainly 
in the fields of architecture, civil engineering or data 
processing, and which are selected by a jury on the basis of 
competition with or without the award of prizes. 
Article 2 
1) This Directive shall apply to contracting entities which: 
a) are public authorities or public undertakings and exercise one 
of the activities referred to in paragraph 2; 
b) or, when they are not public authorities or public undertakings, 
have as one of their activities any of those referred to in 
(8) 
- 87 -
paragraph 2 or any combination thereof and operate on the basis 
of special or exclusive rights granted by a competent authority 
of a Member State. 
2) Relevant activities for the purposes of this Directive shall be: 
a) the provision or operation of fixed networks intended to provide 
a service to the public in connection with the production, 
transport or distribution of: 
(i) drinking water; or 
(ii) electricity; or 
(iii) gas or heat; 
or the supply of drinking water, electricity, gas or heat to 
such networks; 
b) the exploitation of a geographical area for the purpose of: 
(i) exploring for or extracting oil, gas, coal or other solid 
fuels, or 
(ii) the provision of airport, maritime or inland port or other 
terminal facilities to carriers by air, sea or inland 
waterway; 
c) the operation of networks providing a service to the public in 
the field of transport by railway, automated systems, tramway, 
trolley bus, bus or cable. 
- 88 -
As regards transport services, a network shall be considered to 
exist where the service is provided under operating conditions 
laid down by a competent authority of a Member State, such as 
conditions on the routes to be served, the capacity to be made 
available or the frequency of the service; 
d) the provision or operation of public telecommunications networks 
or the provision of one or more public telecommunications 
services. 
3) For the purpose of applying paragraph 1(b), special or exclusive 
rights shall mean rights deriving from authorizations granted by a 
competent authority of the Member State concerned, by law, 
regulation or administrative action, having as their result the 
reservation for one or more entities of the exploitation of an 
activity defined in paragraph 2. 
A contracting entity shall be considered to enjoy special or 
exclusive rights in particular where: 
a) for the purpose of constructing the networks or facilities 
referred to in paragraph 2, it may take advantage of a procedure 
for the expropriation or use of property or may place network 
equipment on, under or over the public highway; 
b) in the case of paragraph 2(a), the entity supplies with drinking 
water, electricity, gas or heat a network which is itself 
operated by an entity enjoying special or exclusive rights 
granted by a competent authority of the Member State concerned. 
4) The provision of bus transport services to the public shall not be 
considered to be a relevant activity within the meaning of 
- 89 -
paragraph 2(c) where other entities are free to provide those 
services, either in general or in a particular geographical area, 
under the same conditions as the contracting entities. 
5) The supply of drinking water, electricity, gas or heat to networks 
which provide a service to the public by a contracting entity other 
than a public authority shall not be considered as a relevant 
activity within the meaning of paragraph 2(a) where: 
a) in the case of drinking water or electricity: 
the production of drinking water or electricity by the entity 
concerned takes place because its consumption is necessary 
for carrying out an activity other than that referred to in 
paragraph 2, and 
- supply to the public network depends only on the entity's own 
consumption and has not exceeded 30% of the entity's total 
production of drinking water or energy, having regard to the 
average for the preceding three years, including the current 
year; 
b) in the case of gas or heat: 
- the production of gas or heat by the entity concerned is the 
unavoidable consequence of carrying on an activity other than 
that referred to in paragraph 2, and 
supply to the public network is aimed only at the economic 
exploitation of such production and amounts to not more than 
20% of the entity's turnover having regard to the average for 
the preceding 3 years, including the current year. 
- 90 -
6) The contracting entities listed in Annexes I to X shall fulfil the 
criteria set out above. In order to ensure that the lists are as 
exhaustive as possible, Member States shall notify the Commission 
of amendments to their lists. The Commission shall revise 
Annexes I to X in accordance with the procedure in Article 32. 
Article 3 
1) Member States may request the Commission to provide that 
exploitation of geographical areas for the purpose of exploring 
for, or extracting, oil, gas, coal or other solid fuels shall not 
be considered to be an activity defined in Article 2(2)(b)(i) and 
that entities shall not be considered as operating under special or 
exclusive rights within the meaning of Article 2(3)(b) by virtue of 
carrying on one or more of these activities, provided that all the 
following conditions are satisfied with respect to the relevant 
national provisions concerning such activities: 
a) at the time when authorization to exploit such a geographical 
area is requested, other entities shall be free to seek 
authorization for that purpose under the same conditions as the 
contracting entities; 
b) the technical and financial capacity of entities to engage in 
particular activities shall be established prior to any 
evaluation of the merits of competing applications for 
authorization; 
c) authorization to engage in those activities shall be granted on 
the basis of objective criteria concerning the way in which it 
is intended to carry out the exploitation or extraction, which 
shall be established and published prior to the requests and 
applied in a non-discriminatory manner; 
- 91 -
d) all conditions and requirements concerning the carrying out or 
termination of the activity, including, provisions on operating 
obligations, royalties, and participation in the capital or 
revenue of the entities, shall be established and made available 
prior to the requests for authorization being made and then 
applied in a non-discriminatory manner; every change concerning 
these conditions and requirements shall be applied to all the 
entities concerned, or else amendments must be made in a non­
discriminatory manner; however, operating obligations need not 
be established until immediately before the authorization is 
granted; and 
e) contracting entities shall not be required by any law, 
regulation, administrative requirement, agreement or 
understanding to provide information on a contracting entity's 
intended or actual sources of procurement, except at the request 
of national authorities and exclusively with a view to the 
objectives mentioned in Article 36 of the Treaty. 
2) Member States which apply the provisions of paragraph 1 shall 
ensure, through the conditions of the authorization or other 
appropriate measures, that any entity: 
a) observes the principles of non-discrimination and competitive 
procurement in respect of the award of supplies, works and 
service contracts, in particular as regards the information that 
the entity makes available to undertakings concerning its 
procurement intent ions; 
b) communicates to the Commission, under conditions to be defined 
by the latter in accordance with Article 32, information 
relating to the award of contracts. 
- 92 -
3) As regards individual concessions or authorizations granted before 
the date on which Member States apply this Directive in accordance 
with Article 37, paragraphs 1(a),. (b) and (c) shall not apply, 
provided that at that date other entities are free to seek 
authorization for the exploitation of geographical areas for the 
purpose of exploring for or extracting oil, gas, coal or other 
solid fuels, on a non-discriminatory basis and in the light of 
objective criteria. Paragraph 1(d) shall not apply as regards 
conditions or requirements established, applied or amended before 
the date referred to above. 
4) A Member State which wishes to apply paragraph 1 shall inform the 
Commission accordingly. In doing so, it shall inform the 
Commission of any law, regulation or administrative provision, 
agreement or understanding relating to compliance with the 
conditions referred to in paragraphs 1 and 2. 
The Commission shall take a decision in accordance with the 
procedure laid down in Article 32(4) to (7). It shall publish its 
decision, giving its reasons, in the Official Journal of the 
European Communities. 
It shall forward to the Council each year a report on the 
implementation of this Article and review its applicaiton in the 
framework of the report provided for in Article 36. 
Article 4 
1) When awarding supply, works or service contracts, or organizing 
design contests, the contracting entities shall apply procedures 
which are adapted to the provisions of this Directive. 
- 93 -
2) Contracting entities shall ensure that there is no discrimination 
between different suppliers, contractors or service providers. 
3) In the context of provision of technical specifications to 
interested suppliers, contractors or service providers of 
qualification and selection of suppliers, contractors or service 
providers and of award of contracts, contracting entities may 
impose requirements with a view to protecting the confidential 
nature of information which they make available. 
4) The provisions of this Directive shall not limit the right of 
suppliers, contractores or service providers to require a 
contracting entity, in conformity with national law, to respect the 
confidential nature of information which they make available. 
Article 5 
1) Contracting entities may regard a framework agreement as a contract 
within the meaning of Article 1(3) and award it in accordance with 
this Directive. 
2) Where contracting entities have awarded a framework agreement 
in accordance with this Directive, they may avail themselves of 
Article 15(2)(i) when awarding contracts based on that agreement. 
3) Where a framework agreement has not been awarded in accordance with 
this Directive, contracting entities may not avail themselves of 
Article 15(2)(i). 
4) Contracting entities may not misuse framework agreements in order 
to hinder, limit or distort competition. 
- 94 -
Article 6 
1) This Directive shall not apply to contracts or design contests 
which the contracting entities award or organize for purposes other 
than the pursuit of their activities as described in Article 2(2) 
or for the pursuit of such activities in a non-member country, in 
conditions not involving the physical use of a network or 
geographical area within the Community. 
2) However, this Directive shall apply to contracts or design contests 
awarded or organized on behalf of the entities which exercise an 
activity referred to in Article 2(2)(a)(i) and which: 
a) are connected with hydraulic engineering projects, irrigation or 
land drainage, provided that the volume of water intended for 
the supply of drinking water represents more than 20% of the 
total volume of water made available by these projects or 
irrigation or drainage installations, or 
b) are connected with the disposal or treatment of sewage. 
3) The contracting entities shall notify the Commission at its request 
of any activities they regard as excluded under paragraph 1. The 
Commission may periodically publish lists of the categories of 
activities which it considers to be covered by this exclusion, for 
information in the Official Journal of the European Communities. 
In so doing, the Commission shall respect any sensitive commercial 
aspects the contracting entities may point out when forwarding this 
information. 
(7) 
- 95 -
Article 7 
1) The provisions of this Directive shall not apply to : 
a) contracts awarded for purposes of re-sale or hire to third 
parties, provided that the contracting entity enjoys no special 
or exclusive right to sell or hire the subject of such contracts 
and other entities are free to sell or hire it under the same 
conditions as the contracting entity; 
b) service contracts directly relating to the re-sale or hire 
mentioned under a). 
2) The contracting entities shall notify the Commission at its request 
of all the categories of products they regard as excluded under 
paragraph 1. The Commission may periodically publish lists of the 
categories of activities which it considers to be covered by this 
exclusion, for information in the Official Journal of the European 
Communities. In so doing, the Commission shall respect any 
sensitive commercial aspects the contracting entities may point out 
when forwarding this information. 
Article 8 
1) This Directive shall not apply to contracts which contracting 
entities exercising an activity described in Article 2(2)(d) award 
for purchases intended exclusively to enable them to provide one or 
more telecommunications services where other entities are free to 
offer the same services in the same geographical area and under 
substantially the same conditions. 
- 96 -
2) The contracting entities shall notify the Commission at its request 
of any services they regard as covered by the exclusion referred to 
in paragraph 1. The Commission may periodically publish the list 
of services which it considers to be covered by this exclusion, for 
information in the Official Journal of the European Communities. 
In so doing, the Commission shall respect any sensitive commercial 
aspects the contracting entities may point out when forwarding this 
information. 
Article 9 
1) This Directive shall not apply to: 
a) contracts which the contracting entities listed in Annex I award 
for the purchase of water; 
b) contracts which the contracting entities specified in 
Annexes II, III, IV and V award for the supply of energy or of 
fuels for the production of energy. 
2) The Council shall re-examine the provisions of paragraph 1 when it 
has before it a report from the Commission together with 
appropriate proposals. 
Article 10 
This Directive shall not apply to contracts when they are declared to 
be secret by the Member State, when their execution must be 
accompanied by special security measures in accordance with the laws, 
regulations or administrative provisions in force in the Member State 
concerned or when the protection of the basic security interests of 
that State so requires. 
- 97 -
Article 10a 
The provisions of this Directive shall not apply to the award of 
service contracts which contracting entities have to award to an 
entity which is itself a contracting entity within the meaning of 
Article 1(b) of Directive ../.../EEC (*) pursuant to an exclusive 
right established by a published law, regulation or administrative 
provision which is compatible with the Treaty. 
*) OJ No C 23, 31.1.1991, p. 1. 
Article 11 
This Directive shall not apply to contracts governed by different 
procedural rules and awarded: 
1) pursuant to an international agreement concluded in conformity with 
the Treaty between a Member State and one or more third countries 
and covering supplies, works, services or design contests intended 
for the joint implementation or exploitation of a project by the 
signatory States; every agreement shall be communicated to the 
Commission, which may consult the Advisory Committee for Public 
Contracts set up by Council Decision 71/306/EEC (*), as last 
amended by Decision 77/63/EEC (2)# or, in the case of agreements 
governing contracts awarded by entities exercising an activity 
defined in Article 2(2)(d), the Advisory Committee on 
Telecommunications Procurement referred to in Article 31; 
2 ) to undertakings in a Member State or a third country in pursuance 
of an international agreement relating to the stationing of troops; 
3) pursuant to the particular procedure of an international 
organization 
(1) OJ No L 185, 16.8.1971, p. 15. 
(2) OJ No L 13, 15.1.1977, p. 15. 
- 98 -
Article lia 
1. This Directive shall not apply to contracts for services which 
a) a contracting entity awards to affiliated undertaking; 
b) are awarded by a joint venture formed by a number of contracting 
entities for the purpose of carrying out a relevant activity 
* within the meaning of Article 2(2) to an undertaking which is 
affiliated with one of these contracting entities; 
provided that at least 85 % of the average turnover of that 
undertaking arising within the Community for the preceding three 
years derives from the provision of such services to undertakings 
with which it is affiliated. 
2. The contracting entities notify the Commission, at its request, the 
following information regarding the application of the provisions 
of paragraph 1 : 
- the names of the undertakings concerned; 
- the nature and value of the service contracts involved; 
- such proof as may be deemed necessary by the Commission that the 
relationship between the undertaking to which the contracts are 
awarded and the contracting entity is in conformity with the 
requirements of this Article. 
Article 12 
1) This Directive shall apply to contracts whose estimated value, 
net of VAT, is not less than : 
- 99 -
a) ECU 400 000 in the case of supply and service contracts 
awarded by entities carrying out an activity defined in 
Article 2(2)(a), (b) and (c); 
b) ECU 600 000 in the case of supply and service contracts 
awarded by entities carrying out an activity defined in 
Article 2(2)(d); 
c) ECU 5 000 000 in the case of works contracts 
2) The estimated value of a service contract shall include the 
total remuneration of the service provider taking account of the 
elements specified in paragraphs 3 to 12. 
3) In assessing the estimated contract value of financial services, 
the following amounts shall be taken into account: 
- as regards insurance services, the premium payable; 
- as regards banking and other financial services, fees, 
commissions, interest and other types of remuneration. 
4) In the case of supply contracts for lease, rental or hire-
purchase, or of service contracts not indicating the total cost, 
the basis for calculating the contract value shall be: 
a) in the case of fixed-term contracts, where their term is 
twelve months or less, the estimated total value for the 
contract's duration, or, where their term exceeds twelve 
months, the contract's total value including the estimated 
residual value; 
- 100 -
b) in the case of contracts for an indefinite period or in cases 
where there is doubt as to the duration of the contracts, the 
anticipated total instalments to be paid in the first four 
years. 
5) Where a proposed supply or service contract expressly specifies 
option clauses, the basis for calculating the contract value 
shall be the highest possible total purchase, lease, rental or 
'hire-purchase permissible, inclusive of the option clauses. 
6) In the case of a procurement of supplies or services over a 
given period by means of a series of contracts to be awarded to 
one or more suppliers or of contracts which are to be renewed, 
the contract value shall be calculated on the basis of: 
a) the total value of contracts which had similar 
characteristics awarded over the previous fiscal year or 
twelve months, adjusted where possible for anticipated 
changes in quantity or value over the subsequent twelve 
months; 
b) or the aggregate value of contracts to be awarded during the 
twelve months following the first award or during the whole 
term of the contract, where this is longer than 
twelve months. 
7) The basis for calculating the estimated value of a contract 
including both supplies and services, shall be the total value 
of the supplies and services regardless of their respective 
values. 
- 101 -
8) The basis for calculating the value of a framework agreement 
shall be the estimated maximum value of all the contracts 
envisaged for the period in question. 
9) The basis for calculating the value of a works contract for the 
purposes of paragraph 1 shall be the total value of the work. 
"Work" shall mean the building and engineering activities taken 
as a whole that are intended to fulfil an economic function by 
themselves. 
In particular, where a supply, work or service is the subject of 
several lots, the value of each lot shall be taken into account 
when assessing the value referred to in paragraph 1. Where the 
aggregate value of the lots equals or exceeds the value laid 
down in paragraph 1, that paragraph shall apply to all the lots. 
However, in the case of works contracts, contracting entities 
may derogate from paragraph 1 in respect of lots whose estimated 
value net of VAT is less than ECU 1 million, provided that the 
aggregate value of those lots does not exceed 20% of the overall 
value of the lots. 
10) For the purposes of paragraph 1, contracting entities shall 
include in the estimated value of a works contract the value of 
any supplies or services necessary for the execution of the 
works which they make available to the contractor. 
11) The value of supplies or services which are not necessary for 
the execution of a particular works contract may not be added to 
that of the contract with the result of avoiding application of 
this Directive to the procurement of those supplies. 
- 102 -
12) Contracting entities may not circumvent this Directive by 
splitting contracts or using special methods of calculating the 
value of contracts. 
Title la 
TWO-TIER APPLICATION 
Article 12a 
Supply and works contracts and contracts which have as their object 
services listed in Annex XVIA shall be awarded in accordance with the 
provisions of Titles II, III and IV. 
Article 12b 
Contracts which have as their object services listed in Annex XVIB 
shall be awarded in accordance with Articles 13 and 18. 
Article 12c 
Contracts which have as their object services listed in both Annexes 
XVIA and XVIB shall be awarded in accordance with the provisions of 
Titles II, III and IV where the value of the services listed in Annex 
XVIA is greater than the value of the services listed in Annex XVIB. 
Where this is not the case, they shall be awarded in accordance with 
Articles 13 and 18. 
(6) 
- 103 -
TITLE II 
TECHNICAL SPECIFICATIONS AND STANDARDS 
Article 13 
1) Contracting entities shall include the technical specifications in 
the general documents or the contract documents relating to each 
contract. 
2) The technical specifications shall be defined by reference to 
European specifications where these exist. 
3) In the absence of European specifications, the technical 
specifications should as far as possible be defined by reference to 
other standards having currency within the Community. 
4) Contracting entities shall define such further requirements as are 
necessary to complement European specifications or other standards. 
In doing so, they shall prefer specifications that indicate 
performance requirements rather than design or description 
characteristics unless the contracting entity has objective reasons 
for considering that such specifications are inadequate for the 
purposes of the contract. 
5) Technical specifications which mention goods of a specific make or 
source or of a particular process, and which have the effect of 
favouring or eliminating certain undertakings, shall not be used 
unless such specifications are indispensable for the subject of the 
contract. In particular, the indication of trade marks, patents, 
- 104 -
types, or specific origin or production shall be prohibited; 
however, such an indication accompanied by the words "or 
equivalent" shall be authorized where the subject of the contract 
cannot otherwise be described by specifications which are 
sufficiently precise and fully intelligible to all concerned. 
6) Contracting entities may derogate from paragraph 2 if: 
a) it is technically impossible to establish satisfactorily that a 
product conforms to the European specifications; 
b) the application of paragraph 2 would prejudice the application 
of Council Directive 86/361/EEC of 24 July 1986 on the initial 
stage of the .mutual recognition of type approval for 
telecommunications terminal equipment(*), or of Council 
Decision 87/95/EEC of 22 December 1986 on standardization in the 
field of information technology and telecommunications(2); 
c) in the context of adapting existing practice to take account of 
European specifications, use of these specifications would 
oblige the contracting entity to acquire supplies incompatible 
with equipment already in use or would entail disproportionate 
cost or disproportionate technical difficulty. Contracting 
entities which have recourse to this derogation shall do so only 
as part of a clearly defined and recorded strategy with a view 
to a change-over to European specifications; 
d) the relevant European specification is inappropriate for the 
particular application or does not take account of technical 
developments which have come about since its adoption. 
(1) OJ No L 217, 5.8.1986, p. 21. 
(2) OJ No L 36, 7.2.1987, p.„_3^. 
- 105 -
Contracting entities which have recourse to this derogation 
shall inform the appropriate standardizing organization, or any 
other body empowered to review the European specification, of 
the reasons why they consider the European specification to be 
inappropriate and shall request its revision; 
e) the project is of a genuinely innovative nature for which use of 
European specifications would not be appropriate. 
7) Notices published pursuant to Article 16(1)(a) shall indicate any 
recourse to the derogations referred to in paragraph 6. 
8) This Article shall be without prejudice to compulsory technical 
rules insofar as these are compatible with Community law. 
Article 14 
1) Contracting entities shall make available on demand to suppliers, 
contractors or service providers interested in obtaining a contract 
the technical specifications regularly referred to in their supply, 
works or service contracts or the technical specifications which 
they intend to apply to contracts covered by periodic information 
notices within the meaning of Article 17. 
2) Where such technical specifications are based on documents 
available to interested suppliers, contractors or service providers 
a reference to those documents shall be sufficient. 
- 106 -
TITLE III 
PROCEDURES FOR THE AWARD OF CONTRACTS 
Article 15 
1) Contracting entities may choose any of the procedures described in 
Article 1(6), provided, subject to paragraph 2, a call for 
competition has been made in accordance with Article 16. 
2) Contracting entities may use a procedure without prior call for 
competition in the following cases: 
a) in the absence of tenders or suitable tenders in response to a 
procedure with a prior call for competition, provided that the 
original contract conditions have not been substantially 
changed; 
b) where a contract is purely for the purpose of research, 
experiment, study or development and not for the purpose of 
ensuring profit or of recovering research and development costs 
and insofar as the award of such contract does not prejudice the 
competitive award of subsequent contracts which have in 
particular these purposes; 
c) when, for technical or artistic reasons, or for reasons 
connected with protection of exclusive rights, the contract may 
be executed only by a particular supplier, contractor or service 
provider; 
- 107 -
d) insofar as is strictly necessary when, for reasons of extreme 
urgency brought about by events unforeseeable by the contracting 
entities, the time limits laid down for open and restricted 
procedures cannot be adhered to; 
e) in the case of supply contracts for additional deliveries by the 
original supplier which are intended either as a partial 
replacement of normal supplies or installations or as the 
extension of existing supplies or installations, where a change 
of supplier would oblige the contracting entity to acquire 
material having different technical characteristics which would 
result in incompatibility or disproportionate technical 
difficulties in operation and maintenance; 
f) for additional works or services not included in the project 
initially awarded or in the contract first concluded but which 
have, through unforeseen circumstances, become necessary for the 
execution of the contract, on condition that the award is made 
to the contractor executing the original contract: 
- when such additional works or services cannot be technically 
or economically separated from the main contract without 
great inconvenience to the contracting entities; 
or when such additional works or services, although separable 
from the execution of the original contract, are strictly 
necessary to its later stages; 
g) in the case of works contracts, for new works consisting of the 
repetition of similar works entrusted to the contractor to which 
the same contracting entities awarded an earlier contract, 
provided that such works conform to a basic project for which a 
- 108 -
first contract was awarded after a call for competition. As 
soon as the first project is put up for tender, notice must be 
given that this procedure might be adopted and the total 
estimated cost of subsequent works shall be taken into 
consideration by the contracting entities when they apply the 
provisions of Article 12; 
h) for supplies quoted and purchased on a commodity market; 
i) for contracts to be awarded on the basis of a framework 
agreement, provided that the condition referred to in 
Article 5(2) is fulfilled; 
j) for bargain purchases, where it is possible to procure supplies 
taking advantage of a particularly advantageous opportunity 
available for a very short space of time at a price considerably 
lower than normal market prices; 
k) for purchases of goods under particularly advantageous 
conditions either from a supplier definitively winding up his 
business activities or from the receivers or liquidators of a 
bankruptcy, an arrangement with creditors or a similar procedure 
under national laws or regulations. 
1) when the service contract concerned is part of the follow-up to 
a design contest organized in conformity with the provisions of 
this Directive and must, in accordance with the relevant rules, 
be awarded to one of the winners of that contest, provided that 
all the winners are included in the procedure. 
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Article 16 
1) In the case of supply, works or service contracts, the call for 
competition may be made: 
a) by means of a notice drawn up in accordance with Annex XII A, B 
or C; or 
b) by means of a periodic indicative notice drawn up in accordance 
with Annex XIV; or 
c) by means of a notice on the existence of a qualification system 
drawn up in accordance with Annex XIII. 
2) When a call for competition is made by means of a periodic 
indicative notice: 
a) the notice must refer specifically to the supplies, works or 
services which will be the subject of the contract to be 
awarded; 
b) the notice must indicate that the contract will be awarded by 
restricted or negotiated procedure without further publication 
of a notice of a call for competition and invite interested 
undertakings to express their interest in writing; 
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. 
- 110 -
3) When a call for competition is made by means of a notice on the 
existence of a qualification system, tenderers in a restricted 
procedure or participants in a negotiated procedure shall be 
selected from the qualified candidates in accordance with such a 
system. 
4) in the case of design contests, the call for competition shall be 
made by means of a notice drawn up in accordance with Annex XVII. 
5) The notices referred to in this Article shall be published in the 
Official Journal of the European Communities. 
Article 17 
1) Contracting entities shall make known at least once a year,by means 
of a periodic indicative notice: 
a) in the case of supply contracts, the total of the contracts for 
each product area of which the estimated value, taking into 
account the provisions of Article 12, is equal to or greater 
than ECU 750 000, and which they intend to award over the 
following twelve months; 
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 12(1). 
c) in the case of service contracts, the estimated total value of 
the service contracts in each of the categories of services 
listed in Annex XVI A which they intend to award over the 
(5) 
- Ill -
following 12 months, where such estimated total value, taking 
into account the provisions of Article 12, is equal to or 
greater than ECU 750 000. 
2) The notice shall be drawn up in accordance with Annex XIV and 
published in the Official Journal of the European Communities. 
3) Where the notice is used as a means of calling for competition in 
accordance with Article 16(1)(b), it must have been published not 
more than 12 months prior to the date on which the invitation 
referred to in Article 16(2)(c) is sent. Moreover the contracting 
entity shall meet the deadlines laid down in Article 20(2). 
4) Contracting entities may, in particular, publish periodic 
indicative notices relating to major projects without repeating 
information previously included in a periodic indicative notice, 
provided it is clearly stated that such notices are additional 
notices. 
Article 17a 
1) Design contests shall be subject to the rules set out below. 
However, when design contests are held as a separate procedure, 
these rules are applicable only when the total amount of prizes and 
payments to participants is not less than ECU 200 000. 
2) 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. 
3) In the case of design contests with a limited number of 
participants, contracting entities shall apply the rules of 
Article 25. 
- 112 -
4) The jury shall be composed only of persons who have no financial 
connections or special relationships with participants in the 
contest. Whenever a particular professional qualification is 
required from participants in a contest, the majority of the jury 
members shall have the same qualifications. The jury shall be 
autonomous in its decisions. It shall take its decisions based on 
projects presented in an anonymous way, and solely on the grounds 
of the criteria indicated in the invitation for projects within the 
meaning of Annex XVII. 
5) Member States may oblige contracting entities to award subsequent 
contracts to one of the winners of a design contest. 
Article 18 
1) Contracting entities which have awarded a contract or organised a 
design contest shall communicate to the Commission, within two 
months of the award of the contract and under conditions to be laid 
down by the Commission in accordance with the procedure laid down 
in Article 32, the results of the awarding procedure by means of a 
notice drawn up in accordance with Annex XV or Annex XVIII. 
2) Except where paragraph 4 is applied, 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 the contracting entities may point out when forwarding this 
information in connection with points 6 and 9 of Annex XV. 
3 ) The contracting entities applying the provisions of 
Article 15(2)(b) or awarding service contracts listed in 
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Annex XVI B, may, concerning point 3 of Annex XV, only mention the 
main title thereof within the meaning of the classification of 
Annex XVI A. 
4) Information provided under Section II of Annex XV must not be 
published or mentioned in the periodic reports except, in 
aggregated form, for statistical purposes. 
Article 19 
1) The contracting entities must be able to supply proof of the date 
of dispatch of the notices referred to in Articles 15 to 18. 
2) The notices shall be published in full in their original language 
in the Official Journal of the European Communities and in the TED 
data bank. A summary of the important elements of each notice 
shall be published in the other official languages of the 
Community, the original text alone being authentic. 
3) The Office for Official Publications of the European Communities 
shall publish the notices not later than twelve days after their 
dispatch. In exceptional cases it shall endeavour to publish the 
notice referred to in Article 16(1)(a) within five days in response 
to a request by the contracting entity and provided the notice has 
been sent to the Office by electronic mail, telex or telefax. Each 
edition of the Official Journal of the European Communities which 
contains one or more notices shall reproduce the model notice or 
notices on which the published notice or notices are based. 
4) The cost of publication of the notices in the Official Journal of 
the European Communities shall be borne by the Communities. 
5) Contracts or design contests in respect of which a notice is 
- 114 -
published in the Official Journal of the European Communities 
pursuant to Article 16(1) or Article 16(4) shall not be published 
in any other way before that notice has been dispatched to the 
Office for Official Publications of the European Communities. Such 
publication shall not contain information other than that published 
in the Official Journal of the European Communities. 
Article 20 
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 shortened 
to 36 days where contracting entities have published a notice in 
accordance with Article 17(1). 
2) In restricted procedures and in negotiated procedures with a prior 
call for competition, the following arrangements shall apply: 
a) the time limit for receipt of requests to participate, in 
response to a notice published in accordance with 
Article 16(1)(a) or in response to an invitation from a 
contracting entity in accordance with Article 16(2)(c), shall, 
as a general rule, be at least five weeks from the date of 
dispatch of the notice and shall in any case not be less than 
the time limit for publication laid down in Article 19(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; 
- 115 -
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 
three weeks 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 22(3). 
Article 21 
In the contract documents, the contracting entity may ask the tenderer 
to indicate in his tender any share of the contract he may intend to 
subcontract to third parties. 
This indication shall be without prejudice to the question of the 
principal contractor's responsibility. 
Article 22 
1) Provided they have been requested in good time, the contract 
documents and supporting documents must be sent to the suppliers, 
contractors or service providers by the contracting entities as a 
general rule within six days of receipt of the application. 
2) Provided it has been requested in good time, additional information 
relating to the contract documents shall be supplied by the 
contracting entities not later than six days before the final date 
fixed for receipt of tenders. 
3) Where tenders require the examination of voluminous documentation 
such as lengthy technical specifications, a visit to the site or an 
- 116 -
on-the-spot inspection of the documents supporting the contract 
documents, this shall be taken into account in fixing the 
appropriate time limits. 
4) Contracting entities shall invite the selected candidates 
simultaneously and in writing. The letter of invitation shall be 
accompanied by the contract documents and supporting documents. It 
shall include at least the following information: 
a) the address from which any additional documents can be 
requested, the final date for such requests and the amount and 
methods of payment of any sum to be paid for such documents; 
b) the final date for receipt of tenders, the address to which they 
must be sent and the language or languages in which they must be 
drawn up; 
c) a reference to any tender notice published; 
d) an indication of any document to be annexed; 
e) the criteria for the award of the contract if these are not 
given in the notice; 
f) any other special condition for participation in the contract-
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, telefax, 
telephone or any electronic means, they must be confirmed by letter 
dispatched before the expiry of the time limit referred to in 
Article 20(1) or of the time limit set by contracting entities 
pursuant to Article 20(2). 
- 117 -
Article 23 
1) The contracting entity may state in the contract documents, or be 
obliged by a Member State so to do, the authority or authorities 
from which a tenderer may obtain the appropriate information on the 
obligations relating to the employment protection provisions and 
the working conditions which are in force in the Member State, 
region or locality in which the works or services are to be 
executed or performed and which shall be applicable to the works 
carried out or the services performed on site during the 
performance of the contract. 
2) A contracting entity which supplies the information referred to in 
paragraph 1 shall request the tenderers or those participating in 
the contract procedure to indicate that they have taken account, 
when drawing up their tender, of the obligations relating to 
employment protection provisions and the working conditions which 
are in force in the place where the work or the service is to be 
carried out or performed. This shall be without prejudice to the 
application of the provisions of Article 27(5) concerning the 
examination of abnormally low tenders. 
TITLE IV 
QUALIFICATION, SELECTION AND AWARD 
Article 24 
1) Contracting entities which so wish may establish and operate a 
system of qualification of suppliers, contractors or service 
providers. 
- 118 -
2) The system, which may involve different qualification stages, shall 
operate on the basis of objective rules and criteria to be 
established by the contracting entity. The contracting entity 
shall use European standards as a reference where they are 
appropriate. The rules and criteria may be updated as required. 
3) The rules and criteria for qualification shall be made available on 
request to interested suppliers, contractors or service providers. 
The updating of these criteria and rules shall be communicated to 
the interested suppliers, contractors and service providers. Where 
a contracting entity considers that the qualification system of 
certain third entities or bodies meet its requirements, it shall 
communicate to interested suppliers, contractors and service 
providers the names of such third entities or bodies. 
4) Contracting entities shall inform applicants of their decision as 
to qualification within a reasonable period. If the decision will 
take longer than six months from the presentation of an 
application, the contracting entity shall inform the applicant, 
within two months of the application, of the reasons justifying a 
longer period and of the date by which its application will be 
accepted or refused. 
5) In reaching their decision as to qualification or when the criteria 
and rules are being updated, contracting entities may not: 
impose conditions of an administrative, technical or financial 
nature on some suppliers, contractors or service providers that 
are not imposed on others; 
require tests or proof that duplicate objective evidence already 
available. 
(4) 
- 119 -
6) Applicants whose qualification is refused shall be informed of this 
decision and the reasons for refusal. The reasons must be based on 
the criteria for qualification referred to in paragraph 2. 
7) A written record of qualified suppliers, contractors or service 
providers shall be kept, and it may be divided into categories 
according to the type of contract for which the qualification is 
valid. 
8) Contracting entities may bring the qualification of a supplier, 
contractor or service provider to an end only for reasons based on 
the criteria referred to in paragraph 2. The intention to bring 
qualification to an end must be notified in writing to the 
supplier, contractor or service provider beforehand, together with 
the reason or reasons justifying the proposed action. 
9) The qualification system shall be the subject of a notice drawn up 
in accordance with Annex XIII and published in the Official Journal 
of the European Communities, indicating the purpose of the 
qualification system and the availability of the rules concerning 
its operation. Where the system is of a duration greater than 
three years, the notice shall be published annually. Where the 
system is of a shorter duration, an initial notice shall suffice. 
Article 25 
1) Contracting entities which select candidates to tender in 
restricted procedures or to participate in negotiated procedures 
shall do so according to objective criteria and rules which they 
lay down and which they shall make available to interested 
suppliers, contractors or service providers. 
- 120 -
2) The criteria used may include the criteria for exclusion specified 
in Article 23 of Directive 71/305/EEC and in Article 20 of 
Directive 77/62/EEC. 
3) The criteria may be based on the objective need of the contracting 
entity to reduce the number of candidates to a level which is 
justified by the need to balance the particular characteristics of 
the contract award procedure and the resources required to complete 
it. The number of candidates selected must, however, take account 
of the need to ensure adequate competition. 
Article 25a 
Should entities require the production of certificates drawn up by 
independent bodies for attesting conformity of the service provider to 
certain quality assurance standards, they shall refer to quality 
assurance systems based on the relevant EN 29000 European standards 
series certified by bodies conforming to the EN 45000 European 
Standards series. Entities shall recognise equivalent certificates 
from bodies established in other Member States. 
They shall also accept other evidence of equivalent quality assurance 
measures from service providers who have no access to such 
certificates, or no possibility of obtaining them within the relevant 
time limits. 
Article 26 
1) Groupings of suppliers, contractors or service providers shall be 
permitted to tender or negotiate. The conversion of such groupings 
into a specific legal form shall not be required in order to submit 
- 121 -
a tender or to negotiate, but the grouping selected may be required 
so to convert itself once it has been awarded the contract where 
such conversion is necessary for the proper performance of 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 relevant 
service activity, shall not be rejected on the sole grounds that 
under the law of the Member State in which the contract is awarded 
they would have been required to be either a natural or a legal 
person. 
3) Legal persons may be required to indicate in the tender or the 
request for participation, the names and relevant professional 
qualifications of the staff to be responsible for the performance 
of the service. 
Article 27 
1) Without prejudice to national laws, regulations or administrative 
provisions on the remuneration of certain services, the criteria on 
which the contracting entities shall base the award of contracts 
shall be: 
a) the most economically advantageous tender, involving various 
criteria depending on the contract in question, such as: 
delivery or completion date, running costs, cost-effectiveness, 
quality, aesthetic and functional characteristics, technical 
merit, after-sales service and technical assistance, commitments 
with regard to spare parts, security of supplies and price; or 
b) the lowest price only. 
- 122 -
2) the case referred to in paragraph 1(a), contracting entities shall 
state in the contract documents or in the tender notice all the 
criteria they intend to apply to the award, where possible in 
descending order of importance. 
3) Where the criterion for the award of the contract is that of the 
most economically advantageous tender, contracting entities may 
take account of variants which are submitted by a tenderer and meet 
the minimum specifications required by the contracting entities. 
Contracting entities shall state in the contract documents the 
minimum specifications to be respected by the variants and any 
specific requirements for their presentation. Where variants are 
not permitted, they shall so indicate in the contract documents. 
4) Contracting entities may not reject the presentation of a variant 
on the sole ground that it was drawn up on the basis of technical 
specifications defined with reference to European specifications or 
to national technical specifications recognized as complying with 
the essential requirements within the meaning of 
Directive 89/106/EEC. 
5) If, for a given contract, tenders appear abnormally low in relation 
to the services, the contracting entity shall, before it may reject 
those tenders, request in writing details of the constituent 
elements of the tender which it considers relevant and shall verify 
those constituent elements taking account of the explanations 
received. It may set a reasonable period within which to reply. 
The contracting entity may take into consideration explanations 
which are justified on objective grounds relating to the economy of 
the construction or production method, or the technical solutions 
- 123 -
chosen, or the exceptionally favourable conditions available to the 
tenderer for the execution of the contract, or the originality of 
the product or the work proposed by the tenderer. 
Contracting entities may reject tenders which are abnormally low 
owing to the receipt of State aid only if they have consulted the 
tenderer and if the tenderer has not been able to show that the aid 
in question has been notified to the Commission pursuant to 
Article 93(3) of the Treaty or has received the Commission's 
approval. Contracting entities which reject a tender under these 
circumstances shall inform the Commission thereof. 
6) In the case of a tender for the award of a service contract 
submitted by a public authority or a public undertaking, the 
contracting entity shall in particular enquire whether the tender 
is influenced by public funds allocated for 
a) the setting-off of operating losses ; 
b) the provision of capital ; 
c) non-refundable grants, or loans on privileged terms; 
d) the granting of financial advantages by foregoing profits or the 
recovery of sums due ; 
e) the foregoing of a normal return on public funds used ; 
f) compensation for financial burdens imposed by the public 
authorities. 
It shall inform the Commission if it intends to award a contract to 
a tenderer whose tender is influenced by any of these 
characteristics. 
- 124 -
Article 28 
1) Article 27(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 whose aim is to 
give preference to certain tenderers, provided the rules invoked 
are compatible with the Treaty. 
2) Without prejudice to paragraph 1, this Directive shall not prevent, 
until 31 December 1992, the application of national provisions in 
force on the award of supply or works contracts which have as their 
objective the reduction of regional disparities and the promotion 
of job creation in disadvantaged regions or those suffering from 
industrial decline, provided that the provisions concerned are 
compatible with the Treaty and with the Community's international 
obligations. 
Article 29 
1) This Article shall apply to tenders comprising products originating 
in third countries with which the Community has not concluded, 
multilaterally or bilaterally, an agreement ensuring comparable and 
effective access for Commumnity undertakings to the markets of 
those third countries. It shall be without prejudice to the 
obligations of the Community or its Member States in respect of 
third countries. 
2) Any tender made for the award of a supply contract may be rejected 
where the proportion of the products originating in third 
countries, as determined in accordance with Council Regulation 
(EEC) No 802/68 of 27 June 1968 on the common definition of the 
concept of the origin of goods (*), as last amended by 
(1) OJ No L 148, 28. 6.1968, p. 1. 
- 125 -
Regulation (EEC) No 3860/87 (*) exceeds 50% of the total value of 
the products constituting the tender. For the purposes of this 
Article, software used in the equipment of telecommunications 
networks shall be considered as products. 
3) Subject to paragraph 4, where two or more tenders are equivalent in 
the light of the award criteria defined in Article 27, preference 
shall be given to the tenders which may not be rejected pursuant to 
paragraph 2. The prices of these tenders shall be considered 
equivalent for the purposes of this Article, if the price 
difference does not exceed 3%. 
4) However, a tender shall not be preferred to another pursuant to 
paragraph 3 where its acceptance would oblige the contracting 
entity to acquire material having technical characteristics 
different from those of existing material, resulting in 
incompatibility or technical difficulties in operation and 
maintenance or disproportionate costs. 
5) For the purposes in this Article, of determining the proportion 
referred to in paragraph 2 of products originating in third 
countries, those third countries to which the benefit of the 
provisions of this Directive has been extended by a Council 
Decision in accordance with paragraph 1 shall not be taken into 
account. 
6) The Commission shall submit an annual report to the Council (for 
the first time in the second half of 1991) on progress made in 
multilateral or bilateral negotiations regarding access for 
Community undertakings to the markets of third countries in the 
fields covered by this Directive, on any result which such 
negotiations may have achieved, and on the implementation in 
practice of all the agreements which have been concluded. 
(1) OJ No L 363, 23.12.1987, p. 30. 
- 126 -
The Council, acting by a qualified majority on a proposal from the 
Commission, may amend the provisions of this Article in the light 
of such developments. 
Article 29a 
1) The Member States shall inform the Commission of any general 
difficulties encountered, in law or in fact, by their undertakings 
in securing the award of service contracts in third countries. 
2) The Commission shall report to the Council before 31 December 1992 
and periodically thereafter on the opening-up of service contracts 
in third countries and on the state of negotiations with these 
countries on this subject, particularly within the GATT framework. 
3) Whenever the Commission establishes, either on the basis of the 
reports referred to in paragraph 2, or on the basis of other 
information, that a third country as regards the award of service 
contracts, 
a) does not grant Community undertakings effective access 
comparable to that granted by the Community to undertakings from 
that country, 
b) does not grant Community undertakings national treatment or the 
same competitive opportunities as are available to national 
undertakings, or 
c) grants undertakings from other third countries more favorable 
treatment than Community undertakings, 
(3) 
- 127 -
the Commission may initiate negotiations in order to remedy the 
situation. 
4) Under the conditions referred to in paragraph 3, the Commission may 
decide, in addition to action taken pursuant to that paragraph, 
that the award of service contracts to 
a) undertakings governed by the law of the third country in 
question, 
b) undertakings affiliated to the undertakings specified in (a) and 
having their registered office in the Community but having no 
effective and continuous link with the economy of a 
Member State, 
c) undertakings submitting tenders which have as their object 
services originating in the third country in question, 
may be suspended or restricted during a period to be determined in 
the decision. The Commission may decide on the appropriate 
measures either on its own initiative or at the request of a 
Member State, after consulting the Member States in accordance with 
the procedure laid down in Article 32(5), (6) and (7). Where the 
Commission is asked to take action by a Member State, it shall take 
a decision within a maximum period of three months of receipt of 
the request. 
It shall notify the Council and the Member States of the decisions 
taken. 
Any Member State may refer the Commission's decision to the Council 
within a maximum period of four weeks from the date of the 
decision. 
- 128 -
The Council, acting by qualified majority, may take a different 
decision within a maximum period of three months of such referral. 
5) This Article is without prejudice to the obligations of the 
Community in relation to non-member countries. 
TITLE V 
FINAL PROVISIONS 
Article 30 
1) The value in national currencies of the thresholds specified in 
Article 12 shall in principle be revised every two years with 
effect from the date provided for in Directive 77/62/EEC as far as 
the thresholds for supply and service contracts are concerned and 
from the date provided for in Directive 71/305/EEC as far as the 
thresholds for works contracts are concerned. The calculation of 
such value shall be based on the average daily values of those 
currencies expressed in ECU over the 24 months terminating on the 
last day of October preceding the revision with effect from 
1 January. The values shall be published in the Official Journal 
of the European Communities at the beginning of November. 
2) The method of calculation laid down in paragraph 1 shall be 
examined pursuant to the provisions of Directive 77/62/EEC. 
Article 31 
1) The Commission shall be assisted, as regards procurement by the 
contracting entities exercising an activity defined in Article 
2(2)(d), by a Committee of an advisory nature which shall be the 
- 129 -
Advisory Committee on Telecommunications Procurement. The 
Committee shall be composed of representatives of the Member States 
and chaired by a representative of the Commission. 
2) The Commission shall consult this Committee on: 
a) amendments to Annex X; 
b) revision of the currency values of the thresholds; 
c) the rules concerning contracts awarded under international 
agreements; 
d) the review of the application of this Directive; 
e) the procedures described in Article 32(2) relating to notices 
and statistical accounts; 
Article 32 
1) Annexes I to X shall be revised in accordance with the procedure 
laid down in paragraphs 3 to 7 with a view to ensuring that they 
fulfill the criteria of Article 2. 
2) The conditions for the presentation, dispatch, reception, 
translation, keeping and distribution of the notices referred to in 
Articles 16, 17, and 18 and of the statistical reports provided for 
in Article 34, shall be established, for the purposes of 
simplification, in accordance with the procedure laid down in 
paragraphs 3 to 7. 
3) The revised Annexes and the conditions referred to in paragraphs 1 
and 2 shall be published in the Official Journal of the European 
Communities. 
- 130 -
4) The Commission shall be assisted by the Advisory Committee for 
Public Contracts and, in the case of the revision of Annex X, by 
the Advisory Committee on Telecommunications Procurement provided 
for in Article 31 of this Directive. 
5) The Commission representative shall submit to the Committee a draft 
of the decisions to be taken. The Committee shall deliver its 
opinion on the draft within a time limit which the Chairman may lay 
down according to the urgency of the matter, if necessary by taking 
a vote. 
6) The opinion shall be recorded in the minutes; in addition, each 
Member State shall have the right to ask for its position to be 
recorded in the minutes. 
7) The Commission shall take the utmost account of the opinion 
delivered by the Committee. It shall inform the Committee of the 
manner in which its opinion has been taken into account. 
Article 33 
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 of 
providers of services and award of contracts; 
b) recourse to derogations from the use of European specifications 
in accordance with Article 13(6); 
c) use of procedures without prior call for competition in 
accordance with Article 15(2); 
- 131 -
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 4 years from the date of 
award of the contract so that the contracting entity will be able, 
during that period, to provide the necessary information to the 
Commission if it so requests. 
Article 34 
1) The Member States shall ensure that each year, in accordance with 
the arrangements to be laid down under the procedure provided for 
in Article 32(3) to (7), the Commission receives a statistical 
report concerning the total value, broken down by Member State and 
each category of activity to which Annexes I to X refer, of the 
contracts awarded below the thresholds defined in Article 12 which 
would, if they were not below those thresholds, be covered by this 
Directive. 
2) Arrangements shall be fixed in accordance with the procedure 
referred to in Article 32 to ensure that: 
a) in the interests of administrative simplification, contracts of 
lesser value may be excluded, provided that the usefulness of 
the statistics is not jeopardized; 
b) the confidential nature of the information provided is 
respected. 
Article 35 
1) Article 2(2) of Directive 77/62/EEC is hereby replaced by the 
following: 
- 132 -
"2.This Directive shall not apply to: 
a) contracts awarded in the fields referred to in Articles 2, 7, 
8 and 9 of Council Directive 90/531/EEC of 17 September 1990 
on the procurement procedures of entities operating in the 
water, energy, transport and telecommunications sectors(*) or 
fulfilling the conditions in Article 6(2) of the said 
Directive; 
b) supplies which are declared secret or when their delivery 
must be accompanied by special security measures in 
accordance with the laws, regulations or administrative 
provisions in force in the Member State concerned or when the 
protection of the basic interests of that State's security so 
requires. 
(*) OJ No L 297, 29.10.1990, p.l." 
2) Article 3(4) and (5) of Directive 71/305/EEC is hereby replaced by 
the following: 
"4.This Directive shall not apply to contracts awarded in the 
fields referred to in Articles 2, 7, 8 and 9 of Council Directive 
90/531/EEC of 17 September 1990 on the procurement procedures of 
entities operating in the water, energy, transport and 
telecommunications sectors (*) or fulfilling the conditions in 
Article 6(2) of the said Directive. 
(*) OJ No L 297, 29.10.1990, p.l." 
- 133 -
Article 36 
Not later than four years after the application of this Directive, the 
Commission, acting in close cooperation with the Advisory Committee 
for Public Contracts, shall review the manner in which this Directive 
has operated and its field of application and if necessary, it shall 
make further proposals to adapt it, in the light of developments and 
the level of competition. In the case of entities exercising an 
activity defined in Article 2(2)(d), the Commission shall act in close 
cooperation with the Advisory Committee on Telecommunications 
Procurement. 
Article 37 
1) Member States shall adopt the measures necessary to comply with the 
provisions relating to works and supply contracts of this Directive 
by 1 July 1992. They shall forthwith inform the Commission 
thereof. 
Member States may stipulate that the measures referred to shall 
apply only from 1 January 1993. 
2) Member States shall apply the measures relating to service 
contracts by 1 January 1993. 
3) Nevertheless, in the case of the Kingdom of Spain, 1 January 1993 
shall be replaced by 1 January 1996. As regards the Hellenic 
Republic and the Portuguese Republic, 1 January 1993 shall be 
replaced by 1 January 1998. 
- 134 -
4) Council Recommendation 84/550/EEC of 12 November 1984 concerning 
the first phase of opening up access to public telecommunications 
contracts (1) shall cease to have effect as from the date on which 
this Directive is applied by the Member States. 
Article 37a 
When Member States adopt the provisions referred to in Article 37 
these shall contain a reference to this Directive or shall be 
accompanied by such reference at the time of their official 
publication. The procedure for such reference shall be adopted by the 
Member States. 
Article 38 
Member States shall communicate to the Commission the text of the main 
provisions of national law, whether laws, regulations or 
administrative provisions, which they adopt in the field governed by 
this Directive. 
Article 39 
This Directive is addressed to the Member States. 
Done at Brussels, 
For the Council 
The President 
(1) OJ No L 298, 16.11.1984, p. 51. 
- 135 -
FINANCIAL STATEMENT 
1. Title of opérât ion 
Proposal for a Council Directive amending Directive 90/531/EEC on the 
procurement procedures of entities operating in the water, energy, 
transport and telecommunications sectors. 
2. Budget heading involved: B5-304 
3. Legal basis 
Articles 52, 57(2), 66, 100a and 113 of the EEC Treaty. 
4. Description of operation 
4.1 Specific oblectives of operation 
Opening up of public procurement in services through the 
harmonization of national rules for the award of contracts; 
transparency of procedures as regards the preparation of contracts, 
advertising of tenders and the results of the award procedures. 
4.2 Durât ion 
Indefinite, although decisions are taken specifically every year. 
4.3 Target population 
Operators inside and outside the Community. 
5. Classification of expenditure 
Non-compulsory. 
Non-di fferent iated appropr iat ions. 
6. Type of expenditure 
See point 7.1. 
7. Financial impact 
7.1 Method of calculation 
The figures mentioned below show the cost of approximately 1 500 
notices in 1993, especially notices on the existence of a 
qualification system and notices on contracts awarded (tender 
notices to a lesser extent) 
- 136 
and approximately 10 000 notices in 1994 (increase in the number of 
periodic information notices and notices on contracts awarded). 
In the Supplement to the Official Journal of the European 
Communities (Series S), each page will contain two notices. The 
Directive will therefore mean an extra 750 pages in 1993 and 5 000 
in 1994. Since each page costs ECU 160.48, the expenditure 
entailed by the Directive will be: 
ECU in 1993, and 
ECU in 1994. 
However, it is difficult to quantify the additional expenditure 
resulting from the implementation of the Directive. The programme 
for opening up public procurement comprises several measures which 
will enter into force progressively and which involve additional 
expenditure. Moreover, contracting authorities covered by the 
directives already in force are tending increasingly to fulfil 
their advertising obligations. Compliance with the advertising 
rules will also be improved in the years ahead by the 
implementation in all Member States of Community rules ensuring a 
minimum of legal protection for firms which believe they have been 
discriminated against by contracting authorities' decisions. 
In addition, the Commission is in the process of launching 
important measures to reduce further the costs of the Supplement, 
e.g. by introducing fully standardized notices. 
The additional expenditure described above will be taken into 
account in the budget forecasts submitted under the annual budget 
procedure. 
7.2 Proportion of mini-budget in total cost of operation 
No mini-budget. 
7.3 Indicative schedule (commitment appropriations) 
Not applicable (specific measure). 
8. Anti-fraud provisions planned in the proposal for the operation 
The usual general provisions laid down by Financial Control. 
9. Elements of cost-effectiveness analysis 
9.1 Assessment and analysis of objectives 
Public supply, works and services contract notices communicated by 
the Member States pursuant to Community directives or by certain 
- 137 -
non-member countries (in particular, Japan, the United States and 
the EFTA countries) under the protocol concluded within the GATT 
are published in the S series of the OJ (Supplement) after 
adaptation and translation. 
The Supplement will be considerably expanded in the years ahead, 
since public procurement is an essential part of the large single 
market (1992). The Community directives will be improved and 
extended to new sectors. 
Because of the large single market, the Supplement will expand 
faster than the other series of the Official Journal. It therefore 
seemed appropriate to enter the appropriations for the Supplement 
in Part B of the budget (Chapter 5-30, which is devoted to the 
internal market). 
9.2 Grounds for the operation 
Explicit consequence of Council directives. 
9.3 Evaluât ion 
See point 7.1. 
- 138 -
FICHE D'IMPACT SUR LA COMPETITIVE ET L'EMPLOI 
i. Titre de la proposition 
Proposition de Directive modifiant la Directive 90/531/CEE relative aux 
procédures de passation des marchés dans les secteurs de l'eau, de 
l'énergie, des transports et des télécommunications. 
II. Quelle est la lust IfIcatIon principale de la mesure? 
La proposition de directive étend le régime de la directive 90/531/CEE aux 
services et vise à ce que les procédures de passation de marchés de 
services soient transparantes, et que les soumissionnaires de tous les 
Etats membres soient traités d'une manière non-dlscrimlnatoire. 
III. Caractéristiques des entreprises concernées 
En oartlcul1er: 
Y-a-t-ll un grand nombre de PME? 
Les prestataires de certains services sont dans de nombreux cas des PME. 
Certains marchés couverts par la directive visent des services qui sont 
réservés, dans certains Etats membres, à des professions libérales comme 
les architectes. 
Note-t-on des concentrations dans des réglons 
- éllglbles aux aides régionales des E.M.? 
Non 
- élIglbles au Feder? 
Non 
IV. Quelles sont les obligations Imposées directement aux entreprises? 
Aucune obligation n'est Imposée aux prestataires de services. 
V. Quelles sont les obligations susceptibles d'être Imposées Indirectement 
aux entreprises via les autorités locales? 
Néant 
VI. Y-a-t-tl des mesures spéciales pour les PME? Lesquelles? 
La proposition contient des éléments Importants visant à: 
- encourager la sous-traitance par une clause permettant aux entités 
adjudlcatrIces de tenir compte de la sous-traitance prévue par les 
soumissionnaires (Article 21) 
139 -
- restreindre la concurrence de la part des grandes entreprises, en ce qui 
concerne la prestation de services réservés à des professions 
déterminées (Article 26 paragraphe 2), et en ce qui concerne la prise en 
compte de variantes (Article 27 paragraphe 3). 
En ce qui concerne les critères de sélection, la directive prévoit, en 
outre les dispositions également prévues pour les travaux et les 
fournitures, des critères particulièrement favorables aux PME et aux 
professions libérales: le savoir faire Intellectuel, l'efficacité, 
l'expérience et la fiabilité. 
VII. Quel est l'effet prévisible 
a) sur la compétitivité des entréprises? 
La mesure vise a renforcer la compétitivité des prestataires de services 
de l'ensemble des Etats membres. 
b) sur I'emploi? 
Les conséquences sur l'emploi, sont susceptibles de varier d'un secteur 
de services à l'autre, mais peuvent toutefois être considérées comme 
I Imitées. 
VIII. Les partenaires sociaux ont-Ils été consultés? Quels sont leurs avis? 
Les consultations ont lieu par la vole du Comité consultatif pour 
l'ouverture des marchés publics, au sein duquel sont représentés et 
l'Industrie et la Confédération Européenne des Syndicats. Les avis énoncés 
par les membres du Comité sont largement favorables. 


ISSN 02S4-1475 
C0M(91) 347 final 
DOCUMENTS 
EN 06 
Catalogue number : CB-CO-91-481-EN-C 
ISBN 92-77-76914-9 
Office for Official Publications of the European Comrrmmties 
Lr2985 Luxembourg