Keywords

Summary



Keywords

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1. Approximation of laws ° Procedures for award of public works and supply contracts ° Directives 71/305 and 77/62 ° Field of application ° Recourse to procedure for privately negotiated contracts ° Proof of capacity of tenderers ° Security to be provided by tenderers ° Technical specifications

(Council Directives 71/305 and 77/62)

2. Approximation of laws ° Procedures for award of public works contracts ° Directive 71/305 ° Field of application ° Reference to Article 2 of Directive 71/304

(Council Directives 71/304, Art. 2(2), and 71/305, Art. 1(a))

Summary

1. A Member State which

° excludes from the field of application of national rules on public procurement the transactions effected by the administrative authorities with individuals as regards goods or rights, dealings in which are governed by legal provisions, or products which are controlled, subject to monopoly or prohibited, when the exclusion of such transactions is not included amongst the exceptions exhaustively and expressly authorized by Directive 77/62 and when the specific nature of the supplies involved is not in any event of such a kind as to place the contracts to which they give rise entirely outside the scope of the rules on public procurement;

° excludes from the field of application of the national rules on public procurement the contracts for which a law expressly lays down an exception, when the said directives list exhaustively and expressly the exceptions which they authorize and when the transposition of directives must comply with requirements of clarity and precision which cannot be met by wording which conveys the impression that other exceptions may be made, in addition to those authorized by the directives and incorporated in national legislation;

° permits the award of privately negotiated contracts in cases other than those exhaustively envisaged by the directives or makes recourse to the procedure for privately negotiated contracts subject to conditions less strict than those which the directives lay down;

° prescribes certain methods of furnishing proof of tenderers' legal capacity which do not appear amongst those which the directives make it permissible to require;

° subjects undertakings from other Member States which choose certain means of attesting their capacity, as envisaged by Directive 71/305, to conditions not provided for therein;

° provides that, for the purposes of the classification of undertakings, preference is to be given to an assessment of the personal, material and financial means available to them on the national territory, when Directive 71/305 does not authorize the introduction of such criteria;

° does not recognize, as required by the directives, the value of certificates, issued by the authorities of other Member States, attesting the capacity of undertakings;

° exempts from the obligation to provide security only undertakings whose capacity is attested by their registration in its own classification lists;

° does not have regard, in the case of technical specifications defined in supply contracts, to the order of preference of the standards set out in Directive 77/62;

fails to comply with its obligations under Directives 71/305 and 77/62 coordinating procedures for the award of public works and supply contracts respectively.

2. It follows from the reference in Article 1(a) of Directive 71/305, defining the public works contracts to which it applies, to Article 2 of Directive 71/304 concerning the abolition of restrictions on freedom to provide services in respect of public works contracts and on the award of public works contracts to contractors acting through agencies or branches, that the directive does not apply to contracts concerning industrial installations of the mechanical, electrical or energy-producing variety, with the exception of any part of such installations as comes within the sphere of building or civil engineering or to those concerning excavation, shaft-sinking, dredging and waste disposal works carried out in connection with the extraction of minerals (mining and quarrying industries).