AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE RELATING TO THE COORDINATION OF PROCEDURES ON THE AWARD OF PUBLIC SERVICE CONTRACTS
Date: 1991-08-30
Institutions: European Commission
Subjects: award of contract, provision of services, public contract, single market, works contract

COMMISSION  OF  THE  EUROPEAN  COMMUNITIES 

C O M ( 9 1 ) 3 22  final  - S YN 2 93 

B r u s s e l s,  30  August 1991 

A m e n d ed  proposal  for a 

C O U N C IL  D I R E CT IVE 

r e l a t i ng  to the c o o r d i n a t i on  of p r o c e d u r es  on t he award 

of  public  s e r v i ce  c o n t r a c ts 

(presented  by the C o m m i s s i on  pursuant  to A r t i c le  1 4 9 ( 3) 

of  the E EC T r e a t y) 

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Table of  contents 

I. 

State of  procedure 

p. 

3 

I I. 

Comments on  the major  EP amendments not 

retained  in the amended  proposal 

p. 

3 

III. 

The amended  proposal 

.p. 

4 

(a)  Changes which  do not  alter  the 

substance of  the proposal 

(b)  Definition  of  public  service 

contracts 

(c) 

Concessions 

(d)  Thresholds 

(e) 

Pr ior i ty and 

residual  services 

(f)  Contents of  indicative notices 

(g)  Nature of  tenderers 

(natural  or  legal  persons) 

(h)  Abnormally  low tenders 

(I)  Preference  schemes. 

(J)  Statistical  reports 

(k)  Non-EC  tenders 

AMENDED  PROPOSAL 

Preamble 

Articles 

Annexes 

p. 

p. 

p. 

13 

17 

44 

-  3 -

I. 

STATE OF  PROCEDURE 

1. 

In June  1990,  the Commission  presented  its  initial  proposal  for 

this Directive  d ). 

2. 

The  Economic  and  Social  Committee  adopted  its opinion  on  29 May 

1991<2>. 

3. 

On  15 May  1991, Parliament  adopted  its opinion  on  the  proposal, 

Including  a  number 

of  amendments^3).  The  majority  of 

Parliament's  amendments  aim  at  clarifying  the  proposal,  inter 

alia  as  regards  its  scope,  as  well  as  simplifying  certain 

provisions  of  the  Directive.  Parliament's  amendments  also 

concern  a  number  of  Important  issues  such  as  exclusions  of 

contracts  for  certain  services  and  the  coverage  of  others; 

thresholds;  concessions;  variants;  the  nature  of  bidders 

(natural  or  legal  persons);  statistics; or  the  treatment  of  non-

EC tenders, 

4. 

The  Commission  has  accepted  the  majority  of  Parliament's 

amendments,  in particular  those  that  aim  at  a  higher  degree  of 

clarity  and  simplicity,  although  in  certain  cases  modifying 

them  as  appropriate  In  the  context  of  the  Directive.  In 

particular  as  regards  the  provisions  on  concessions,  further 

changes were necessary  in the  Interests of  clarity. 

I I.  Comments  on  Parliament's  amendments  not  retained  In  the  amended 

proposal 

5. 

As  regards  the  indicative  notices  provided  for  in  Article  16, 

the Commission  Is of  the opinion  that more  flexibility  is needed 

than  Parliament's  amendment  would  allow.  Experience  with  the 

corresponding  requirements  under  the  other  Directives  suggests 

(1)  0J. No. C 23, 31.1.1991 

(2)  0J. No. C 

(3)  OJ. No. C 

-  4 -

that  contracting  authorities  should  be  allowed  to  choose  the 

descriptive  headings  which  correspond  to  their  own  practice  and 

that  an  exhaustive  listing  would  not  be  helpful.  However,  the 

Commission  will  continue  to  reflect  on  this  proposal  in  the 

light  of  experience  being  gained  with  the  Supplies  and  Public 

Works Direct Ives. 

6. 

As regards  the provision on abnormally  low offers  the  Commission 

considers  that  this  should  be  aligned  on  the  provisions  of  the 

other  Directives which  relate  to public  authorities, notably  the 

Public  Works  Directive  (71/305/EEC)<4),  and  not  on  that  of  the 

"Utilities 

Directive" 

(90/531/EEC)(5) 

which 

relates 

to 

dlfferent  entItles. 

7. 

The  Commission  has  not  retained  a  number  of  amendments  which 

were  adopted  by  Parliament  and  which  seek  to  ensure  a  closer 

supervision  of  the  respect  by  bidders  of  their  obligations 

under  social  and  environmental  legislation.  In  the  Commission's 

view  the  supervision  of  such  obligations  is better  carried  out 

in  the  context  of  the  relevant  social  or  environmental 

legislation.  To  use 

EC  procurement  rules  for  this  purpose 

would  reduce  their  effectiveness  In meeting  their  principal  goal 

of ensuring  the non-discriminatory  award of public contracts. 

III. THE AMENDED  PROPOSAL 

8. 

Changes  compared  to  the  initial  proposal  are  underlined.  The 

following  explanations  take  the Articles  in their  order. 

(a)  Changes which  do not  alter  the substance of  the proposal 

9. 

Following  the  opinion  of  the  Parliament,  the  Commission,  In  its 

amended  proposal,  has  replaced  the  term  "supplier"  by  "service 

provider".  It  has  also,  at  a  number  of  places,  inserted 

(4)  OJ. No. L 185, 16.8.1971 

(5)  OJ. No. L 297, 29.10.1990 

-  5 -

texts  where  previously  there  had  been  a  cross  reference  to  a 

text  In  the  Public  Works  Directive.  This  applies  to  Art  1(b) 

(contracting  authorities); Art 8(8) (calculation of  thresholds); 

Art  20  (variants); Art  31  (lists of  recognized  suppliers). While 

constituting  no change of substance, the  Commission  accepts  the 

Parliament's  view  that  this will  assist  understanding  by  making 

the  text  more  readable.  It further  has  introduced  minor  changes 

In  the  Articles  1,  2,  13, 14, 15, 18, 19, 22, 26, 27, 29, 30, 

33,  39,  40,  and  In  Annexes  IA,  IB,  1 M B,  C,  D,  E.  It  had  to 

renumber  the Articles because of  the deletion of Articles as 

a consequence of explained modifications. 

(b)  Definition of public service  contracts 

10. 

The  provisions  of  Article  1(a)  have  been  changed  in  two 

respects: 

the  text  alms  to  make  it  clear  that  contracts  for 

financial 

services  are  covered  by  the  Directive, 

Irrespective  of  the  fact  that  they  may  be  awarded  in 

connection  with  contracts  In  connection  with  land, 

buildings,  or  immovable,  property  (subparagraph  (ii)), 

which  are themselves excluded; 

the  exclusion  of  contracts  awarded  by  the  "utilities", 

which  was  included  in the  initial  proposal  as  Article  6, 

has been  inserted  in  Article  1(a)  (viii). 

-  6 -

(c)  Concessions 

11. 

The amended  proposal  brings  together  all  the provisions  relating 

to the award of  public service  concessions  In 

Article  1(h) (definition), and 

Article  4  (award  of  concessions;  rules  applicable  to  the 

award of  contracts  by  concessionaires). 

12. 

The definition  in Article  1(h) aims to distinguish,  in the  field 

of  concessions  which  are  intended  to  ensure  that  a  service  is 

made  available  to  the  public,  between  "public  service 

concessions"  which  are  covered  In Article  4  of  this  Directive 

and  "public  works  concessions",  which  are  covered  by  the 

provisions  of  the  Public  Works  Directive. The  principle  Is that 

any  concession  which  includes  provision  for  works  to  be  carried 

out  should  be  considered  to  be  a  public  works  concession.  All 

others should  be public  services concessions. 

13. 

Article  4  provides  the  conditions  under  which  public  service 

concessions  should  be  awarded  (paragraph  1  and  2 );  the 

conditions  under  which  a  concessionaire  which  Is  a  public 

authority  should  award  its own  contracts  (paragraph  3 ); and  the 

conditions  under  which  their  concessionaires  should  award  their 

own contracts  (paragraph  4 ). 

14. 

The  principle  which  is  applied  to  the  award  of  public  service 

concessions  is one  of  publicity  where  the  turnover  Involved  Is 

ECU 200.000 or more  per  year. This provision, which  is the same, 

apart  from  the  threshold,  as that  applied  to the award of  public 

works  concessions  In  the  Public  Works  Directive,  ensures  that 

-  7  -

Interested  service  providers  will  be  made  aware  that  a 

concession  is  being  awarded.  However,  It  also,  implicitly, 

recognizes  the  differences  between  concessions  and  public 

service  contracts. 

15. 

A  public  service  concession  concerns  the  provision  of  a  service 

to  the  public,  while  a  public  service  contract  Involves  the 

provision  of  a  service  to  the  public  authority.  A  concessionaire 

accepts  the  financial  risk  In  providing  a  public  service,  in 

return  for  the  chance  of  profit  while  a  contractor  seeks  his 

profit  in  the  more  limited  context  of  the  price  for  delivering 

of  a  particular  service. 

16. 

For  this  reason,  the  award  of  public  service  concessions  (like 

public  works  concessions  under  the  Public  Works  Directive)  is 

not  subject  to  the  detailed  requirements  which  are  considered 

appropriate  for  public  service  contracts.  The  rules  of  the 

Treaty  do,  of  cause,  apply.  Nevertheless,  in  parallel  with  the 

Public  Works  Directive,  provision  Is  made  for  contracting 

authorities  to  Impose,  should  they  so wish,  certain  requirements 

concerning  the  extent  to  which  concessionaires  award  contracts 

to  third  part les. 

17. 

Public  authorities  which  are  concessionaires  do  not,  thereby, 

escape  from  their  obligations  under  the  Directives  on  the  award 

of  public  supply  contracts,  public  works  contracts  or  public 

service  contracts. 

In  order  to  ensure  that  the  use  of  concessions  does  not  limit 

the  scope 

for 

the  development 

of  the 

Internal 

market 

concessionaires  which  are  not  public  authorities  or  which  are 

not  covered  by  the  Utilities  Directive  are  to  be  required  to 

publicize  their  supplies,  works  and  services  contracts.  This 

(2) 

-  8 -

requirement  Is, however, set  aside when  the conditions  for  award 

without  publicity  laid  down  in  the  relevant  Directives  apply 

and  when  the  contract  Is  awarded  to  an  undertaking  which  is a 

member  of  the group  to which  the concession  has been awarded, or 

to one of  Its affiliates. 

18. 

In  presenting  the  provisions  relating  to  the  award  of  public 

service concessions  in this way, the Commission  has  followed  the 

substance of  the  relevant  amendments of  the European Parliament. 

It  has,  however,  gone  somewhat  further  in bringing  together  all 

the  texts  relating  to concessions.  In this way  It has  sought  to 

meet  the Parliament's  desire  for  the clearest  possible  text. 

(d) 

Thresholds 

19. 

The  Commission  also  follows  Parliament  on  the  provisions  of 

Article  8.  This  article  should  be  considered  also  in  the  light 

of  Article  2,  which  provides  for  a  distinction  on  the  basis  of 

majority  content  between  supplies  contracts  and  services 

contracts.  Contracts  In  practice  often  contain  a  mixture  of 

supplies  and  services.  Further,  the  distinction  between  many 

supplies  (for  example  In  cases  of  rental)  and  services  can  be 

rather  fine.  For  this  reason,  and  in order  to  avoid  creating  a 

potential  source of  conflict  as  to the correct  classification of 

contracts,  It  Is proposed  to apply  the same  threshold  to service 

contracts  as  to  supplies  contracts  awarded  by  the  same  entity. 

To  this  effect,  the  threshold  is  ECU  200.000  except  for  those 

authorities which  are subject  to the GATT Government  Procurement 

Agreement,  for  which  the  threshold  Is  ECU  130.000  .  Special 

thresholds  for  particular  types of  services, as  the  discussions 

in  Parliament  have  shown,  risk  creating  uncertainties  and 

disputes.  Given  that  the  way  in  which  service  providers  are 

remunerated  may  vary, additional  provisions are made  relating  to 

calculation  of  the contract  value. 

- 9 -

(e) 

Priority  and  residual  services 

20. 

The  amended  proposal  maintains  the  concept  of  two-tier-

application  of  the  Directive,  as  laid  down  In Articles  9  to  11. 

However,  following  the Parliament's  opinion  and  In the  light  of 

discussion  with  the  sectors  concerned,  all  types  of  financial 

services  covered  by  the  Directive  are  now  listed  In  category  6 

of  Annex  IA  including  those  which  were  previously  listed  in 

category  21 of  Annex  IB. 

(f) 

Contents of  Indicative notices 

21. 

Article  16  has  been  amended  In  consequence  of  the  modification 

to  Article  8  (thresholds).  Contracting  authorities  have  to 

publish  the  Intended  total  procurement  in  each  of  the  service 

categories  listed  in  Annex  IA  which  they  envisage  awarding 

during  the  next  twelve  months  where  the  estimated  value  reaches 

ECU 750.000. 

(g) 

The  nature of  tenderers  (natural  or  legal  persons) 

22. 

In accordance  with  the amendment  of  the  European  Parliament,  the 

Commission  has  amended  and  rearranged  its proposal  on  the  nature 

of  tenderers with  a view  to  its clarification  (Article 22). 

23. 

In  certain  service  sectors  national  regulations  prohibit  the 

establishment  of  service  operators  as  legal  persons,  only  allow 

particular  forms  of  legal  persons,  or  require  the  owners  to  be 

members  of  a particular  profession.  Such  requirements, which  are 

of  general  application,  could  constitute  a major  obstacle  to  the 

liberalization of  public procurement  of  services,  for  example  If 

contracting  authorities  could  reject  tenderers  from  other  Member 

States  for  the  sole  reason  that  they  are  legal  persons. 

- 10 -

24. 

The  European  Court  of  Justice  has  repeatedly  stated,  notably  in 
its  Judgement  of  17.  December  1981  (Webb))<6>,  that  the 

provisions  of  the  Treaty  on  the  freedom  to  provide  services 

Imply  that  the  rules  of  the  country  where  the  service  Is 

provided  can  only  be  applied  to  the  provision  of  services 

across  frontiers  Insofar  as  they  are  Justified  In  the  public 

Interest,  and  the  subject  matter  Is  not  covered  by  equivalent 

rules  In the  country  of  establishment.  Further,  the  rules of  the 

country  where  the  service  Is  performed  may  only  be  applied  to 

cross 

frontier 

service 

activities 

Insofar 

as 

they 

are 

proportionate,  necessary  and  appropriate  to  solve  the  subject 

matter. 

25. 

In order  to  Implement  these  principles  for  public  procurement  of 

services,  the  proposal  contains  two  provisions: 

In  accordance 

with 

the 

principle 

of 

home-country 

regulation,  status  as  a  natural  or  a  legal  person  is  not, 

of  itself,  to be  a ground  for  rejection  of  a bidders; 

the  contracting  authority  is,  however,  permitted  to 

establish  the  names  and  qualifications  of  those  who  will 

work  on  a  project. 

(h) 

Abnormally  low  tenders 

26. 

In  accordance  with  the  general  approach  of  the  Parliament,  the 

Commission  has  aligned  Its provision  on  abnormally  low offers  as 

far  as  possible  on  the  Public Works  Direct Ive. 

(6) 

Case  279/80, Webb,  [1981] ECR  3304. 

-  11  -

( I ) 

Preference  schemes 

27. 

The  modified  proposal  no  longer  contains  provisions  covering 

preferential  award  criteria  (Arts  33(3)  and  35  of  the  initial 

proposal).  These  deletions  are  in  line  with  Parliament's 

amendments,  recent 
Justice^7) 

and 

decisions  of  the  European  Court 

of 

the 

Commission's 

views 

regarding 

the 

compatibility  of  preference  systems  with  Article  30  of  the 

Treaty.  Further,  It  Is  now  clear  that  the  directive  will  not 

enter  with  force  before  31  December  1992,  the  date  on  which  the 

provisions of  Art  35 would  have  ceased  to apply. 

(J) 

Statistical  reports 

28. 

Pursuing  the  objectives  of  the  European  Parliament,  the  amended 

proposal  aligns  the  provisions  of  Article  35  on  those  of  the 

Public  Works  Directive  In  order  to  provide  a  coherent  set  of 

rules  for  all  types of  contracts. 

(k) 

Non-EC  tenders 

29. 

The  provisions  of  the  Directive  regarding  third  countries 

provide  for  a  combination  of  erga  omnes  opening  of  contracts 

with  a  problem-solving  mechanism  to  deal  with  any  trade 

problems  that  may  arise. 

Thus  Article  37  provides,  In  its  paragraphs  1  and  2,  for  the 

exchange  of  information  between  Member  States,  Commission  and 

Council  regarding  relations  with  third  countries  in  the  field 

of  public  service  contracts. 

(7) 

Case  21/88,  Du  Pont  de  Nemours,  Judgement  of  20.3.1990,  not  yet 

reported  in ECR. 

-  12 -

Paragraph  3  provides  for  the  Commission  to  seek  to  resolve,  by 

negotiation,  situations  where  Community  undertakings  do  not 

receive  effective  access,  national  treatment  or  most  favoured 

natIon status. 

Paragraph  4  provides  for  corrective  measures  to  be  taken,  as 

rapidly  as may  be  necessary,  where  one  of  the  problems  referred 

to  In paragraph  3 arises. 

- 13 -

Amended Proposal  for a 

COUNCIL  DIRECTIVE 

relating to the coordination of procedures 
on the award of public service  contracts 

THE COUNCIL OF THE EUROPEAN COMMUNITIES, 

Having  regard  to the Treaty  establishing  the European  Economic Community, 
and  in particular  Articles  57(2), 66, 100a and 113 thereof, 

Having  regard  to the proposal  from the Commission, 

In cooperation with the European Par Iiament^1), 

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

Whereas  the European  Council  has concluded  In successive  meetings on the 
need to complete the internal  market; 

Whereas measures  aimed  at progressively  establishing  the  Internal  market 
during  the period  up to 31 December  1992 need  to be taken;  whereas the 
internal  market  is an area  without  Internal  frontiers  in which  the free 
movement of goods, persons, services and capital  Is ensured; 

Whereas  these  objectives  require  the  coordination  of  the  procurement 
procedures on thé award of public service contracts; 

Whereas the White Paper on the completion of the internal  market  contains 
an  action  programme  and  a  timetable  for opening  up  public  procurement 
markets,  including  in the field of services  Insofar as this  Is not already 
covered  by  Council  Directive  71/305/EEC  of  26 July  1971  concerning  the 
coordination of procedures for the award of public works contracts^), as 
last  amended  by Directive  90/531/EEC(4>, and Council  Directive  77/62/EEC 
of 21 December  1986 coordinating procedures for the award of public supply 
contracts(5), as  last amended by Directive  88/295/EEC(6); 

Whereas this Directive should be applied by all contracting authorities in 
the sense of the aforementioned  Directives; 

Whereas  service  providers  may  be  natural  or  legal  persons,  without 
prejudice to the national  rules of their  country of establishment  that are 
compatible with  the Treaty; 

(1) 
(2) 
(3) 
(4) 
(5) 
(6) 

OJ No c 
OJ No c 
OJ No L 185, 16.08.1971. p. 5 
OJ No L 297, 29.10.1990. p. 1 
OJ No L 13. 15.1.1977, p. 1 
OJ No L 127, 20.5.1988. p.  \ 

- 14 -

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  this Directive only  Insofar 
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,  this 
Directive  only  covers  R&D  services  whose  results  accrue  exclusively  to  the 
contracting  authority; 

Whereas,  in  order  to  ensure  coherent  award  procedures,  public  service 
concessions  should  be  covered  by  this  Directive; 

Whereas  contracts  relating  to  the  acquisition  or  rental  of  Immovable 
property  have  particular  characteristics,  which  make  the  application  of 
procurement  rules  inappropriate; 

Whereas  the  award  of  contracts  for  certain  audio-visual  services  in  the 
broadcasting 
the 
application of  procurement  rules  Inappropriate; 

by  considerations  which  make 

is  governed 

field 

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  the  financial  services  sector  includes  activities  in  connection 
with  the  application  of  Instruments  of  monetary  policy;  the  particular 
characteristics of  this  area  require  their  exclusion  from  this  Directive; 

Whereas  In  the  field  of  services  the  same  derogations  as  In  the 
aforementioned  Directives  should  apply,  as  regards  State  security  or 
secrecy  and  the priority  of  other  procurement  rules  such  as  those  pursuant 
to  international  agreements,  the  stationing  of  troops,  or  the  rules  of 
international  organisations; 

Whereas  this  Directive  does  not  prejudice  the  application  of,  in 
particular,  Articles  55, 56  and  66 of  the  Treaty; 

Whereas  the  rules  concerning  service  contracts  as  contained  In  Council 
Directive  90/531/EEC  of  17  September  1990 on  the  procurement  procedures  of 
entities  operating  In  the  water,  energy,  transport  and  telecommunications 
sectors  should  remain  unaffected  by  this  Directive; 

Whereas  contracts  with  a  designated  single  source  of  supply  may  under 
certain  conditions  be  fully  or  partly  exempted  from  this  Directive; 

15 -

in  order 

Whereas  this  Directive  should  not  apply  to  small  contracts  below  a  certain 
threshold, 
the 
threshold  may  in principle  be  the  same  as  that  for  public  supply  contracts; 
whereas  the  calculation  of  contract  value,  the  publication  and  the  method 
of  adaptation  of  the  thresholds  should  be  the  same  as  in  the  other 
Community  procurement  directives; 

to  avoid  unnecessary 

formalities;  whereas 

Whereas,  to  eliminate  practices  that  restrict  competition  In  general  and 
participation  in contracts  by  other  Member  States'  nationals  in  particular, 
it  is  necessary  to  improve  the  access  of  service  providers  to  procedures 
for  the  award  of  contracts; 

Whereas  full  application  of  the  Directive  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 
Directive;  whereas  the  mechanism  for  such  monitoring  needs  to  be  set  up  by 
the  Directive;  whereas  it  should  at  the  same  time  enable  those  interested 
to  share  the  relevant  information; 

Whereas  the  rules  for  the  award  of  public  service  contracts  should  be  as 
close  as  possible  to  those  concerning  public  supply  contracts  and  public 
works  contracts; 

procurement  rules  contained  in  Directives  71/305/EEC  and 
Whereas  the 
77/62/EEC  can  be  applied,  with  necessary  adaptations  so  as  to  take  into 
account  special  aspects  of  procurement  of  services  such  as  the  choice  of 
the  negotiated  procedure,  design  contests,  variants,  the  legal  form  under 
which  the  service  providers  operate,  the  reservation  of  certain  activities 
to  certain  professions,  registration  and  quality  assurance  matters; 

Whereas  use  may  be  made  of  the  negotiated  procedure  with  prior  publication 
of  a  notice  when  the  service  to  be  provided  cannot  be  specified  with 
sufficient  precision,  particularly  In  the  field  of  Intellectual  services, 
with  the  result  that  the  contract  cannot  be  awarded  by  selection  of  the 
best  tender  in  accordance  with  the  rules  governing  the  open  and  restricted 
procedures; 

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  the  objectives  of  this  Directive  do  not  require  any  changes  in  the 
current  state  at  national  level,  as  regards  the  admission,  or  regulation, 
of  price  competition  between  service  providers  of  certain  services; 

Whereas  contracting  authorities  must  be  able  to  reject  tenders  which, 
because  they  are  based  on  State  aids,  are  unreliable;  whereas  tenders 

(3) 

- 16 -

create  the  risk  of  distortions 
which  are  submitted  by  public  bodies  may 
of  competition  when  they  are  influenced  by  the  availability  of  public 
financing;  whereas 
particular 
conditions,  inform  the  Commission  of  their  attitude  towards  such  tenders; 
whereas  this  Directive  does  not  prejudice  the  application  of  Articles  92 et 
seq.  of  the  Treaty; 

shall,  under 

contracting 

authorities 

Whereas  Community  undertakings  should  be  granted  access  to  the  award  of 
public  service  contracts  and  concessions  In  non-Community  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,by 
untertakings  originating  In  the  non-Community  country  concerned,  to  public 
service  contracts  and  concessions  awarded  by  the  contracting  authorities 
who  are  subject  to  this  Directive; 

Whereas  the  operation  of  this  Directive  should  be  reviewed  at  the  latest 
three  years  after  the  date  for  compliance  of  national  procurement  rules; 
whereas  the  review  should  extend  In particular  to  the  possibility  of  making 
the  Direct Ive  fully  applicable  to  a wider  range  of  service  contracts; 

HAS  ADOPTED  THIS  DIRECTIVE: 

17 -

TITLE 1 

General  provisions 

Article 1 

For  the purpose of  this Directive: 

(a)  "public  service  contracts"  are  contracts  for  pecuniary  interest 
concluded  in  writing  between  a  service  provider  and  a  contracting 
authority, which  are not 

(i) 

(ii) 

public  supply  contracts within  the meaning of Article  1(a) of 
Directive  77/62/EEC  or  public  works  contracts  within  the 
meaning of Article  1(a) of Directive 71/305/EEC; 

property 

contracts  for  the  acquis it Ion  or  rental,  by  whatever 
financial  means,  of  land,  existing  buildings,  or  other 
immovable 
thereon-, 
nevertheless,  financial  service  contracts  (leasing,  loans, 
leasing or  hire purchase contracts, with or without  option  to 
buy)  concluded  at  the  same  time  as,  before  or  after,  the 
contract  of  acquisition or  rental,  In whatever  form, shall  be 
subject  to this  Directive-, 

concerning 

rights 

or 

( M i) 

contracts  for  the  acquisition  of  programme  material  by 
broadcasters  within  the  meaning  of  Council  Directive 
89/552/EEC  (7), and contracts  for broadcasting  time; 

(iv) 

contracts  for  voice  telephony,  telex,  radiotelephony,  paging 
and satellite  services; 

(v) 

contracts  for arbitration  and conciliation services; 

(vi) 

public service concessions  in the sense of point (h); 

(vii) 

contracts  concerning  primary  issues  of  government  bonds  and 
other  activities  In the area of public debt management; 

(vill)  contracts awarded  by contracting  entities within  the 

meaning  of  Article  2(1)  of  Directive  90/531/EEC  which 
correspond  at  the  same  time  to  the definition  of  contracting 
authorities pursuant  to article  K b)  of  this Directive; 

(b)  "contracting  authorities"  (hereafter  "authorities")  shall  be  the 
State,  regional  or  local  authorities, bodies  governed  by  public  law, 
associations  formed  by  one  or  several  of  such  authorities  or  bodies 
governed  by  public  law  and  all  other  bodies  listed  In  Annex  I  to 
Directive 80/767/EEC. 

A body governed  by public  law means any body: 

-  established  for  the  specific  purpose  of  meeting  needs  in  the 
general  Interest, not  having  an  Industrial  or  commercial  character, 
and 

(7) 

0J No L 298. 17.10.1989. p. 23 

- 18 -

-  having  legal  personality, and 

-  financed,  for  the  most  part,  by  the  State,  or  regional  or  local 
authorities,  or  other  bodies  governed  by  the  public  law;  or 
subject  to  management  supervision  by  those  bodies;  or  having  an 
administrative,  managerial  or  supervisory  board,  more  than  half 
of  whose  members  are  appointed  by  the  State,  regional  or  local 
authorities or  by other  bodies governed  by public  law. 

The  lists of  bodies or  of  categories  of  such  bodies governed  by  public  law 
which  fulfil  the  criteria  referred  to  In  the  second  subparagraph  are  set 
out  In Annex  I to Directive  71/305/EEC. 

(c)  "Service  providers"  are  natural  or  legal  persons,  Including  public 
bodies  which  offer  services.  A  service  provider  who  submits  a  tender 
shall  be  designated  by  the  term  "tenderer",  and  one  who  has  sought 
an  invitation  to  take  part  in a  restricted  or  negotiated  procedure  by 
the term  "candidate"; 

(d)  "open procedures" are  those national  procedures whereby  all  Interested 

service providers may  submit  a tender; 

(e)  "restricted  procedures"  are  those  national  procedures  whereby  only 
those service  providers  invited  by  the authority may  submit  a tender-, 

(f)  "negotiated  procedures"  are  those  national  procedures  whereby 
authorities  consult  service  providers  of  their  choice  and  negotiate 
the terms of  the contract  with one or more of  them; 

(g)  "design  contests" are  those national  procedures which  aim  at  providing 
the  authority  with  a  plan  or  design,  mainly  in  the  fields  of  area 
planning,  town  planning,  architecture  and  civil  engineering,  or  data 
processing,  and  which  are  selected  by  a  jury  on  the  basis  of 
competition  with or without  the award of prizes; 

(h)  a  "public  service  concession"  is a contract  other  than  a public  works 
concession  within  the  meaning  of  Article  1(d)  of  Directive 
71/305/EEC,  concluded  between  an  authority  and  another  entity  of  Its 
choice  whereby  the  former  transfers  the execution  of  a service  to  the 
public  lying  within  its  responsibility  to  the  latter  and  the  latter 
agrees  to provide  the activity  in return  for  the  right  to exploit  the 
service  or  this  right  together  with  payment,  if  the  concession 
contract  covers  even  partially  either  the  Implementation  or  the  joint 
Implementation  and  design  of  works  in  connection  with  one  of  the 
activities  referred  to  In Annex  II of Directive 71/305/EEC or  the  type 
of  work  defined  in  Article  1(c)  of  Directive  71/305/EEC  or  the 
carrying  out,  by  whatever  means, of  work  in accordance  with  precise 
specifications  laid  down  by  the  contracting  authority,  only  Directive 
71/305/EEC  shall  apply,  even  If  the  contract  falls  partly  within  the 
definition  of  a  public  service  concession.Contracts  for  the  award  of 
rights  to  perform  broadcasting  activities  are  excluded  from  this 
defInition. 

- 19 

Article  2 

If  a  public  contract  is  intended  to  cover  both  products  within  the  meaning  of 
Directive  77/62/EEC  and  services  within  the  meaning  of  Annexes  IA  and  IB  of 
this  Directive,  it  shall  fall  within  the  scope  of  this  Directive  If  the  value 
of  the  services  In  question  exceeds  that  of  the  products  covered  by  the 
contract. 

Article  3 

1. 

2. 

3. 

1. 

Member  States  shall  take  the  necessary  measures  to  ensure  that 
authorities  comply  with  this  Directive  when  they  award  public  service 
contracts  or  public  service  concessions, or  hold  design  contests. 

Authorities  shall  ensure  that  there  Is  no  discrimination  between 
different  service  providers. 

Member  States  shall  take  the  necessary  measures  to  ensure  that  the 
authorities  comply  or  ensure  compliance  with  this  Directive  where  they 
subsidize  directly  by  more  than  50%  service  contracts  awarded  by  an 
entity  other  than  themselves  in  connection  with  works  contracts  to 
which  Article  1a(2) of  Directive  71/305/EEC  relates. 

Article  4 

Where  the  authorities  Intend  to  award  a  public  service  concession,  the 
advertising  rules  set  out  In  Article  16(3),  Article  17  (1)  and  (2)  and 
Article  18  shall  apply  when  the  value  of  the  concession,  defined  as  the 
concessionaire's  turnover  In  carrying  out  the  contract,  equals  or 
exceeds  ECU  200.000  a  year,  excluding  VAT. 

2. 

Where  authorities  intend  to  award  a  concession,  they  may 

-  either  require  the  concessionaire  to  award  contracts  representing  a 
minimum  of  30%  of  the  total  value  of  the  services  for  which  the 
concession  is  to  be  awarded,  to  third  parties,  at  the  same  time 
providing  the  option  for  candidates  to  Increase  this  percentage.  This 
minimum  percentage  shall  be  specified  In  the  concession  contract, 

-  or  request  the  candidates  for  a  concession  to  specify  in  their 
tenders  the  percentage,  if  any,  of  the  total  value  of  the  concession 
which  they  intend  to  assign  to  third  parties. 

3. 

a  concessionaire 

When 
of 
Article  K b ),  it  shall  comply,  inc  the  award  of  contracts  to  third 
parties,  with  the  provisions  of: 

is  an  authority  within 

the  meaning 

-  this  Directive  in  the  case  of  service  contracts; 
-  Directive  77/62/EEC  In  the  case  of  supply  contracts; 
-  Directive  71/305/EEC  In  the  case  of  works  contracts. 

- 20 -

4.  When  a  concessionaire  Is  not  an  authority  within  the  meaning  of 
Article  K b ), or  a contracting  entity  within  tfie meaning  of  Article  2 
of  Directive 90/531/EEC, Member  States shall  take  the necessary  steps 
to  ensure  that  It  shall  comply,  In  the  award  of  contracts  to  third 
parties, with  the provisions of: 

-  the advertising  rules as set out  in Articles  17, 18 and  19  of  this 
DirectIve  In the case of service contracts  listed  in Annex  IA, when 
the  value  of  the  contract  exceeds  the  thresholds  fixed  In Article 
8(1),  and unless  the conditions of Article  12(3) apply; 

-  the  advertising  rules  as  set  out  In Articles  9  to  16 of  Directive 
77/62/EEC  In  the  case  of  supply  contracts, when  the  value  of  the 
contract  exceeds  the  thresholds  fixed  in  Article  5(1)  (a)  and 
unless  the conditions of Article 6(4) of  that Directive apply; 

-  the  advertising  rules  as  set  out  in  Articles  12  to  19  of 
Directives  71/305/EEC  In  the  case  of  works  contracts,  when  the 
value  of  the  contract  exceeds  the  thresholds  fixed  In Article  4a 
and unless  the conditions of Article 5(3) of  that  Directive  apply. 

Undertakings  which  have  formed  a  group  in  order  to  obtain  the 
concession, or  undertakings  affiliated  to them, shall  not  be  regarded 
as  third  parties  within  the  meaning  of  paragraph  4  under  the 
conditions specified  in Article  1b(4) of Directive 71/305/EEC. 

Article 5 

1.  This  Directive  shall  apply  to  service  contracts  awarded  by 
authorities  In the field of defence, except  for contracts  to which  the 
provisions of Article  223 of  the Treaty  apply. 

2.  This  Directive  shall  not  apply  to  services  which  are  declared  secret 
or  the  execution  of  which  must  be  accompanied  by  special  security 
measures  In  accordance  with  the  laws,  regulations  or  administrative 
provisions  in  force  in  the  Member  State  concerned  or  when  the 
protection  of  the  basic  interests  of  that  State's  security  so 
requires 

Article 6 

This  Directive  shall  not  apply  to  contracts  governed  by  different 
procedural  rules and  awarded: 

(a)  pursuant  to  an  International  agreement  concluded  between  a  Member 
State  and  one  or  more  non-member  countries  and  covering  services 
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(8); 

(b)  to undertakings  in a Member  State or a non-member  country  in pursuance 
of an  international  agreement  relating  to the stationing of troops; 

(c)  pursuant  to the particular  procedure of an  international  organisation. 

(8) 

0J No L 185, 16.8.1971. p. 15 

- 21 -

Article  7 

The  provisions  of  this  Directive  shall  not  apply  to  the  award  of  public  service 
contracts  which  authorities  have  to  award  to  an  entity  which  is  Itself  a 
contracting  authority  within  the  meaning  of  Article  K b)  pursuant  to  an 
exclusive  right  established  by  a  published  law,  regulation  or  administrative 
provision  which  is compatible  with  the  Treaty. 

Article  8 

1. 

2. 

3. 

The  provisions  of  this  Directive  shall  apply  to  service  contracts  whose 
estimated  value  net  of  VAT  Is not  less  than  ECU  200.000  or,  in  the  case 
I  to  Council 
of  the  contracting  authorities 
Directive  80/767/EEClM),  ECU  130.000. 

In  Annex 

Included 

For  the  purposes  of  calculating  the  estimated  value  of  the  contract,  the 
authority  shall  Include  the  estimated  total  remuneration  of  the  service 
provider,  taking  account  of  the  provisions  of  paragraphs  3  to  8. 

The  selection  of  the  valuation  method  shall  not  be  used  with  the 
intention  of  avoiding  the  application  of  this  Directive,  nor  shall  any 
procurement  requirement  for  a  given  amount  of  services  be  split  up  with 
the  intention  of  avoiding  the  application  of  this  Article. 

4. 

In  assessing  the  estimated  contract  value  for  the  following  types  of 
services  account  shall  be  taken  of,  where  appropriate: 

-  as  regards  Insurance  services,  the  premium  payable-, 

-  as  regards  banking  and  other  financial  services,  fees,  commissions 

and  Interests  as  well  as  other  types  of  remuneration; 

-  as  regards  contracts  which  Involve  design,  the  fee  or  commission 

payable. 

Where  the  services  are  subdivided  into  several  lots,  each  one  the  subject  of  a 
contract,  the  value  of  each  lot  must  be  taken  into  account  for  the  purpose  of 
calculating  the  amount  referred  to  above.  Where  the  value  of  the  lots  is  not 
less  than  the  amount  referred  to  above,  the  provisions  of  this  Directive  shall 
apply  to  all  lots. Authorities  shall  be  permitted  to  depart  from  the  provisions 
of  paragraph  1  for  lots  which  have  an  estimated  value  net  of  VAT  of  less  than 
ECU  80.000,  provided  that  the  total  estimated  value  of  all  the  lots  exempted 
does  not,  in consequence,  exceed  20% of  the  total  estimated  value  of  all  lots. 

5. 

In  the  case  of  contracts  which  do  not  specify  a  total  price,  the  basis 
for  calculating  the  estimated  contract  value  shall  be: 

in  the  case  of  fixed  term  contracts,  the  total  contract  value  for  its 
durât Ion; 

in  the  case  of  the  contracts  for  an  indefinite  period  or  in  cases 
where  there  is doubt  as  to  the  duration  of  the  contracts,  the  monthly 
instalment  multiplied  by  48. 

(9) 

0J  No L 215.  18.8.1980. p. 1 

- 22 -

6. 

In  the  case  of  regular  contracts  or  of  contracts  which  are  to  be 
renewed  within  a given  time,  the contract  value may  be  established  on 
the basis of: 

7. 

8. 

-  either  the  aggregate  cost  of  similar  contracts  for  the  same 
categories  of  services  awarded  over  the  previous  fiscal  year  or 
12 months,  adjusted,  where  possible,  for  anticipated  changes  in 
quantity or  value over  the subsequent  12 months-, 

-  or  the  estimated  aggregate  cost  during  the  12  months  following 
first  performance or  during  the term of  the contract, where  this  is 
greater  than  12 months. 

In cases where a proposed  contract  specifies option  clauses, the basis 
for calculating  the contract  value shall  be the highest  possible  total 
inclusive of  the option clauses. 

The  value  of  the  thresholds  In  national  currencies  shall  be  revised 
every  two  years  with  effect  from  1  January  1994. The  calculation  of 
these  values  shall  be  based  on  the  average  dally  values  of  these 
currencies  In  terms  of  the  ecu  over  the  24 months  terminating  on  the 
last  day  of October  immediately  preceding  the  1 January  revision. The 
values  shall  be  published  In  the  Official  Journal  of  the  European 
Communities  at  the beginning of  November. 

The  method  of  calculation  referred  to  In  the  preceding  subparagraph 
shall  be examined, on  the Commission's  Initiative, within  the Advisory 
Committee  for  Public  Contracts  In  principle  two  years  after  its 
initial  applicat ion. 

- 23 -

TITLE  1 1 

Two-tier  application 

Article 9 

Contracts  which  have  as  their  object  services  listed  In  Annex  IA  shall  be 
awarded  in accordance with  the provisions of Titles  III  to VI. 

Contracts  which  have  as  their  object  services  listed  in  Annex  IB  shall  be 
awarded  in accordance with Articles  16 and 18. 

Article 10 

Article 11 

Contracts which  have as their  object  services  listed  In both  Annexes  IA and  IB 
shall  be  awarded  in accordance  with  the  provisions  of  Titles  III  to VI  where 
the  value  of  the  services  listed  in Annex  IA  Is greater  than  the  value  of  the 
services  listed  In Annex  IB. Where  this  is not  the case,  they  shall  be  awarded 
in accordance with Articles  16 and 18. 

TITLE  III 

Choice of  award  procedures; and  rules on design  contests 

Article 12 

In  awarding  public  service  contracts  the  authorities  shall  apply  the 
procedures  defined  In  Article  1  (d),  (e)  and  (f),  adapted  to  this 
Direct ive. 

The  authorities  may  award  their  public  service  contracts  by  negotiated 
procedure,  with  prior  publication  of  a  tender  notice  in  the  following 
cases: 

(a) 

in  the  event  of  irregular  tenders  in  response  to  an  open  or 
restricted  procedure  or  in  the  event  of  tenders  which  are 
unacceptable  under  national  provisions  that  are  in accordance with 
the  provisions  of  Articles  19  to  24,  Insofar  as  the  original 
terms of  the contract  are not  substantially  altered. The  authority 
need  not  publish  a  tender  notice  where  it  includes  in  such 
negotiated  procedure  all  the tenderers satisfying  the criteria of 
Articles  25  to  31  which,  during  the  prior  open  or  restricted 
procedure,  have  submitted  tenders  in  accordance  with  the  formal 
requirements of  the tendering  procedure; 

(b) 

in exceptional  cases, when  the nature of  the services or  the risks 
attaching  thereto do not  permit  overall  pricing-, 

(4) 

- 24 -

(c) 

when  the  nature  of  the  services  to be  procured,  in particular  In 
the  case  of  Intellectual  services  and  services  falling  within 
category  6  of  Annex  IA,  Is  such  that  contract  specifications 
cannot  be  established  with  sufficient  precision  to  permit  the 
award  of  the  contract  by  selecting  the  best  tender  according  to 
the  rules  governing  open  or  restricted  procedures. 

3. 

The  authorities  may  award  public  service  contracts  by  negotiated 
procedure  without  prior  publication  of  a  tender  notice,  in  the 
fol lowing  cases: 

(a) 

(b) 

(c) 

(d) 

(e) 

in  the  absence  of  tenders  or  of  appropriate  tenders  in  response 
to an open  or  restricted  procedure  Insofar  as  the original  terms 
of  the  contract  are  not  substantially  altered  and  provided  that 
a  report  is communicated  to  the Commission  at  its  request; 

when,  for  technical  or  artistic  reasons,  or  for  reasons 
connected  with  the  protection  of  exclusive  rights,  the  services 
may  only  be  provided  by  a particular  service  provider. 

when  the  contract  concerned  is part  of  the  follow-up  to a  design 
contest  and  must,  according  to  the  relevant  national  rules,  be 
awarded  to  one  of  the  winners  of  that  contest  provided  that  al 1 
the winners  are  Included  In the  procedure; 

brought 

Insofar  as  Is  strictly  necessary  when,  for  reasons  of  extreme 
urgency 
the 
authorities  In question,  the  time-limit  for  the open,  restricted 
or  negotiated  procedures  referred  to  in  Article  18  cannot  be 
kept.  The  circumstances  Invoked  to  Justify  extreme  urgency  must 
not  in any  event  be  attributable  to  the  authorities; 

unforeseeable 

events 

about 

by 

by 

for  additional  services  not  Included  in  the  project  initially 
considered  or  In  the  contract  first  concluded  but  which  have, 
through  unforeseen  circumstances,  become  necessary  for  the 
carrying  out  of  the  service  described  therein,  on  condition  that 
the  award  is  made  to  the  service  provider  carrying  out  such 
service; 

-  when  such  services  cannot  be  technically  or  economically 
separated  from  the  main  contract  without  great  inconvenience 
to  the  author it les; 

-  or  when  such  services,  although  separable  from  the  execution 
of  the  original  contract,  are  strictly  necessary  for  Its 
later  stages. 

However,  the  aggregate  estimated  value  of  contracts  awarded  for 
additional  services  may  not  exceed  50% of  the  amount  of  the  main 
contract ; 

- 25 -

(f) 

for  new  services  consisting  of  the  repetition  of  similar 
services  entrusted  to  the  service  provider  to  which  the  same 
authorities  awarded  an  earlier  contract,  provided  that  such 
services  conform  to  a  basic  project  for  which  a  first  contract 
was awarded  according  to the procedures  referred  to  In paragraph 
4.  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  services  shall  be  taken  Into 
consideration  by  the  authorities  when  they  apply  the  provisions 
of  Article  8.  This  procedure  may  be  applied  solely  during  the 
three years  following  the conclusion of  the original  contract. 

4. 

In  all  other  cases,  the  authorities  shall  award  their  public  service 
contracts  by  the open  procedure or  by  the  restricted  procedure. 

Article  13 

1. 

2. 

The  authority  shall, within  15  days  of  the  date  on  which  the  request 
is  received,  Inform  any  eliminated  candidate  or  tenderer  who  so 
requests  in writing  of  the  reasons  for  rejection of  his application or 
his  tender,  and,  In  the  case  of  a  tender,  the  name  of  the  successful 
tenderer. 

The  authority  shall  inform  candidates  or  tenderers  who  so  request  In 
writing  of  the grounds  on which  it decided  not  to award  a  contract  In 
respect  of  which  a  prior  call  for  competition  was  made,  or  to 
recommence  the  procedure.  It  shall  also  Inform  the  Office  for 
Official  Publications of  the European Communities of  that  decision. 

3. 

For  each  contract  awarded  the  authorities  shall  draw  up  a  written 
report  which  shall  Include at  least  the  following: 

its name  and  address, the subject  and  value of  the contract; 

-  the  names  of  the  candidates  or  tenderers  admitted  and  the  reasons 

for  their  selection; 

-  the  names  of  the  candidates  or  tenderers  rejected  and  the  reasons 

for  their  rejection-, 

-  the  name of  the  successful  tenderer  and  the  reasons  for  his  tender 
having  been  selected  and,  if  known,  any  share  of  the  contract  the 
successful  tenderer  may  intend  to subcontract  to a  third  party; 

-  for  negotiated  procedures, the circumstances  referred  to  In Article 

12 which  justify  the use of  these procedures. 

This  report, or  the main  features  of  it, shall  be  communicated  to  the 
Commission  at  its request. 

26 -

Article  14 

Design  contests  shall  be  subject  to  the  rules  set  out  below.  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. 

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. 

In the case of  design  contests with  a  limited number  of  participants, 
authorities shall  apply  the rules  laid down  in Article 23. 

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  in the sense of Annex  IV. 

Member  States may  oblige  authorities  to award  subsequent  contracts  to 
one of  the winners of  a design contest. 

TITLE  iV - Common rules  In the technical  field 

Article 15 

The  technical  specifications  defined  in Annex  II  shall  be  given  in 
the  general  documents  or  the  contractual  documents  relating  to  each 
contract. 

Without  prejudice  to  the  legally  binding  national  technical  rules  and 
insofar  as  these  are  compatible  with  Community  law,  such  technical 
specifications  shall  be  defined  by  the  authorities  by  reference  to 
national  standards  implementing  European  standards or  by  reference  to 
European  technical  approvals  or  by  reference  to  common  technical 
specif I cat Ions. 

An authority may depart  from paragraph  2  if: 

a) the  standards,  European  technical  approvals  or  common  technical 
specifications  do  not  include  any  provisions  for  establishing 
conformity,  or  technical  means  do  not  exist  for  establishing 
satisfactorily  the  conformity  of  a  product  to  these  standards, 
European  technical  approvals or common  technical  specifications; 

- 27 -

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^10),  or  Council  Decision  87/95/EEC  of  22 
December  1986  on  standardisation  In  the  field  of  Information 
telecommunlcations^11 )  or 
Community 
technology 
Instruments  in specific  service or  product  areas; 

other 

and 

c) use  of  these  standards,  European  technical  approvals  or  common 
technical  specifications  would  oblige  the  authority  to  acquire 
products or materials  incompatible  with equipment  already  in use or 
would  entail  disproportionate  costs  or  disproportionate  technical 
difficulties,  but  only  as  part  of  a  clearly  defined  and  recorded 
strategy  with  a  view  to  change-over,  within  a  given  period,  to 
European  standards,  European  technical  approvals  or  common 
technical  specifications; 

d) the project  concerned  Is of  a genuinely  innovative  nature  for which 
use of existing  European  standards, European  technical  approvals or 
common  technical  specifications would  not  be appropriate. 

4. 

Authorities  invoking  paragraph  3 shall  record,  wherever  possible,  the 
reasons  for  doing  so  in  the  tender  notice  published  In  the  Official 
Journal  of  the  European  Communities  or  in  the  contract  documents  and 
in  all  cases  shall  record  these  reasons  in  their 
Internal 
documentation  and  shall  supply  such  information  on  request  to  Member 
States and  to the  Commission. 

5. 

In  the  absence  of  European  standards  or  European  technical  approvals 
or  common  technical  specifications, the  technical  specifications: 

(a)  shall  be  defined  by  reference  to  the  national  technical 
specifications 
the  basic 
requirements  listed  In  the  Community  directives  on  technical 
harmonisation,  In  accordance  with  the  procedures  laid  down  In 
those  directives,  and  In  particular  In  accordance  with  the 
procedures  laid down  In Council  Directive  89/106/EEC(12); 

as  complying 

recognised 

with 

(b)  may  be defined  by  reference  to national  technical  specifications 
relating  to  design  and  method  of  calculation  and  execution  of 
works  and use of materials; 

(c)  may  be defined  by  reference  to other  documents. 

In  this  case,  it  Is appropriate  to  make  reference  in  order  of 
preference  to: 

(I) national  standards  Implementing  international  standards 

accepted  by  the country  of  the authority-, 

(10)  OJ No L 217. 5.8.1986. p. 21 
(11)  OJ No L  36. 7.2.1987. p.31 
(12)  OJ No L 40. 11.2.1989. p. 12 

-  28 -

(il) other  national  standards  and  national  technical  approvals 

of  the  country  of  the  authority; 

(ill) any  other  standard. 

Unless  it  is  Justified  by  the  subject  of  the  contract,  Member  States 
shall  prohibit  the  introduction  into  the  contractual  clauses  relating 
to  a  given  contract  of  technical  specifications  which  mention  products 
of  a  specific  make  or  source  or  of  a  particular  process  and  which 
therefore  favour  or  eliminate  certain  undertakings.  In  particular, 
the  Indication  of  trade  marks,  patents,  types,  or  of  specific  origin 
or  production  shall  be  prohibited.  However,  If  such  indication  is 
accompanied  by  the  words  "or  equivalent",  it  shall  be  authorised  in 
cases  where  the  authorities  are  unable  to  give  a  description  of  the 
subject  of  the  contract  using  specifications  which  are  sufficiently 
precise  and  intelligible  to  all  parties  concerned. 

-  29  -

TiTLE V 

Common  Advertising  rules 

Article  16 

1. 

2. 

3. 

4. 

1. 

2. 

3. 

4. 

5. 

Authorities  shall  make  known, by  means  of  an  Indicative  notice  to  be 
published  as  soon  as  possible  after  the  beginning  of  their  budgetary 
year,  the  Intended  total  procurement  In each of  the service  categories 
listed  In Annex  IA which  they  envisage  awarding  during  the  coming  12 
months  where  the  total  estimated  value,  taking  account  of  the 
provisions of Article  8,  is equal  to or  greater  than ECU 750 000. 

Authorities  who  wish  to  award  a  public  service  contract  by  open, 
restricted  or,  under  the  conditions  laid  down  In  Article  12, 
negotiated  procedure,  shall  make  known  their  intention  by  means  of  a 
not ice. 

Authorities  who  wish  to  award  a  public  service  concession  shall  make 
known  their  intention by means of  a notice. 

Authorities  who  wish  to  carry  out  a  design  contest  shall  make  known 
their  intention by means of  a notice. 

Article  17 

Authorities  who  have  awarded  a  contract  or  a  public  service 
concession, or  which  have  held  a  design  contest  shall  send  a  notice 
of  the  results  of  the  award  procedure  to  the  Office  for  Official 
Publication of  the European  Communities. 

In cases of  public  service  contracts  for  services  listed  in Annex  IA, 
public  service  concessions  and  design  contests,  the  notice  shall  be 
published  In accordance with  the provisions  referred  to  in Article 18. 

In  the  case  of  public  service  contracts  for  services  listed  In Annex 
IB, the authorities  shall  indicate  In the notice whether  they agree on 
Its publ(cat ion. 

The  Commission  shall  draw  up  the  rules  for  establishing  regular 
reports  on  the  basis  of  the  notices  referred  to  in  paragraph  3,  and 
for  the  publication  of  such  reports  in  accordance  with  the  procedure 
laid down  in Article  36(3). 

Insofar  as  release  of  information  on  the  contract  award  would  Impede 
law  enforcement  or  otherwise  be  contrary  to  the  public  interest  or 
would  prejudice  the  legitimate  commercial  Interests  of  a  particular 
enterprise,  public  or  private,  or  might  prejudice  fair  competition 
between  service  providers, such  Information may  not  be published. 

- 30 -

Article  18 

The notices shall  be drawn up  In accordance with  the models set out  In 
Annexes  III,  IV  and V, and shall  specify  the  Information  requested  In 
those  models.  The  authorities  may  not  require  any  conditions  but 
those  specified  In  Articles  27  and  28  when  requesting  information 
concerning  the economic  and  technical  standards which  they  require of 
service  providers  for  their  selection  (Point  13 of Annex  1 M B,  point 
12 of Annex  I M C,  and point  11 of Annex  III D ). 

The following provisions of Directive 71/305/EEC shall  apply: 

(I) Article  12(6) and  (8) to (13) concerning publication of notices; 

(II) Articles  13 to  15 concerning  minimum  tlme-llmlts  for  the  phases 
of  award  procedures  and  communications  between  authorities  and 
candidates; 

(III) Articles  15a  and  15b  concerning  minimum  time-limits  for  the 
award  of  public  service  concessions  and  contracts  to be  awarded 
by concessionnaires; 

(iv) Article  19  concerning  voluntary  publication  of  notices  in  the 

Official  Journal  of  the European Communities. 

The  conditions  for  the  establishment,  transmission,  reception, 
translation, accumulation  and  distribution  of  the notices  referred  to 
in  paragraphs  1  and  2  and  in  Articles  16  and  17,  and  of  the 
statistical  reports  provided  for  In  Articles  17(4)  and  35  and  the 
reference  in  the  notices  to  particular  CPC  positions  within  the 
categories of  services  listed  In Annexes  IA and  IB may  be modified  in 
accordance with  the procedure  laid down  in Article  36(3). 

- 31 -

TITLE VI 

Chapter 1 

Common  rules on participation 

Article 19 

Contracts  shall  be  awarded  on  the  basis  of  the  criteria  laid  down  in 
Chapter  3,  taking  into  account  Article  20, after  the  suitability  of  the 
service  providers  not  excluded  under  Article  25  has  been  checked  by  the 
authorities  in accordance  with  the criteria  referred  to  In Articles  27 and 
28. 

Article 20 

1.  Where  the  criterion  for  the  award  of  the  contract  Is  that  of  the 
economically  most  advantageous  tender,  authorities  may  take  account 
of  variants  which  are  submitted  by  a  tenderer  and  meet  the  minimum 
specifications  required  by  the  authorities.  The  author It les  shal I 
state  in  the  contract  documents  the  minimum  specifications  to  be 
respected  by  the  variants  and  any  specific  requirements  for  their 
presentation.  They  shall  Indicate  In  the  tender  notice  whether 
variants will  be  considered. 

Authorities  may  not  reject  the  submission  of  a  variant  on  the  sole 
grounds  that  It  has  been  drawn  up  with  technical  specifications 
defined  by  reference  to  national  standards  transposing  European 
standards,  to  European  technical  approvals  or  to  common  technical 
specifications  referred  to  In Article  15(2) or  again  by  reference  to 
national  technical  specifications referred  to  in Article  15(5) (a) and 
(b). 

Authorities  which  have  admitted  variants  pursuant  to  paragraph  1 may 
not  reject  a  variant  on  the  sole  grounds  that  it  would  lead,  if 
successful, to a supply  contract  rather  than a public service  contract 
within  the meaning of  this Directive. 

Article 21 

In  the  contract  documents,  the  authority  may  ask  the  tenderer  to 
indicate  in his tender  any share of  the contract  he may  intend  to sub 
contract  to third parties. 

This  indication  shall  be  without  prejudice  to  the  question  of  the 
principal  service  provider's  liability. 

- 32 -

Article  22 

1. 

2. 

Tenders may  be submitted  by groups of  service providers.  These groups 
may  not be required  to assume a specific  legal  form  In order  to submit 
the tender;  however, the group selected may  be required  to do so when 
It has been awarded  the contract. 

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  23 

1. 

2. 

In restricted  and  negotiated  procedures  the  authorities  shall, on  the 
basis of  information given relating  to the service provider's  position 
as  well  as  to  the  information  and  formalities  necessary  for  the 
evaluation  of  the  minimum  conditions  of  an  economic  and  technical 
nature  to be  fulfilled  by  him, select  from  among  the  candidates  with 
the  qualifications  required  by  Article  25  to  31  those  whom  they  will 
invite to submit  a tender or  to negotiate. 

Where  the  authorities  award  a  contract  by  restricted  procedure,  they 
may  prescribe  the  range  within  which  the  number  of  providers  of 
services  which  they  Intend  to  invite  will  fall.  In  this  case  the 
range  shall  be  indicated  In  the  contract  notice.  The  range  shall  be 
determined  in  the  light  of  the  nature  of  the  service  to  be  provided. 
The  range must  number  at  least  five service  providers and may be up to 
twenty. 

In  any  event,  the  number  of  candidates  invited  to  tender  shall  be 
sufficient  to ensure genuine  competition. 

3.  Where  the  authorities  award  a  contract  by  negotiated  procedure  as 
referred  to  In  Article  12,  the  number  of  candidates  admitted  to 
negotiate  may  not  be  less  than  three,  provided  that  there  is  a 
sufficient  number  of  suitable candidates. 

4. 

Each  Member  State  shall  ensure  that  authorities  issue  invitations 
without  discrimination  to  those  nationals  of  other  Member  States  who 
satisfy  the necessary  requirements and under  the same conditions as to 
its own nat ionais. 

- 33 -

Article  24 

The  authority  may  state  In the contract  documents, or  be obliged  by a 
Member  State  to  do  so,  the  authority  or  authorities  from  which  a 
candidate  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  services  are  to  be  performed  and  which  shall  be 
applicable  to  the services  provided  on  site  during  the performance  of 
the contract. 

The  authority  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  service  is  to  be  carried  out.  This  shall  be  without 
prejudice  to  the  application  of  the  provisions  of  Article  33 
concerning  the examination of  abnormally  low tenders. 

CHAPTER  2 

Criteria  for qualitative  selection 

Article  25 

Any  service  provider  may  be  excluded  from  participation  In  the  contract 
who: 

(a)  is bankrupt or  Is being wound up, whose affairs are being  administered 
by  the court, who  has entered  into an arrangement  w[th  creditors, who 
has suspended  business activities or who  is  In any  analogous  situation 
arising  from a similar  procedure under  national  laws and  regulations; 

(b)  is the subject of  proceedings  for  a declaration of bankruptcy,  for an 
order  for  compulsory  winding  up or  administration by  the court  or  for 
an  arrangement  with  creditors  or  of  any  other  similar  proceedings 
under  national  laws or  regulations-, 

(c)  has  been  convicted  of  an  offence  concerning  his  professional  conduct 

by a  Judgement  which  has the force of  res Judicata; 

(d)  who  has  been  guilty  of  grave  professional  misconduct  proven  by  any 

means which  the authorities can Justify-, 

(e)  has  not  fulfilled  obligations  relating  to  the  payment  of  social 
security  contributions  In accordance  with  the  legal  provisions  of  the 
country  in which  he  Is established  or with  those of  the country of  the 
author ity; 

(f)  has  not  fulfilled  obligations  relating  to  the  payment  of  taxes  In 

accordance with  the  legal  provisions of  the country of  the authority; 

(g)  is  guilty  of  serious  misrepresentation  In  supplying  or  failing  to 
supply  the  information  that may  be  required under  this chapter. 

- 34 -

Where  the authority  requires of  the service provider  proof  that  none of  the 
cases quoted  in  (a), (b), (c), (e), or  (f) appiles  to him;  It shall  accept 
as sufficient  evidence: 

for  (a), (b), or  (c), the production  of  an extract  from  the  'judicial 
record'  or,  failing  this,  of  an  equivalent  document  Issued  by  a 
competent  judicial  or  administrative  authority  in  the  country  of 
origin  or  In  the  country  whence  that  person  comes  showing  that  these 
requirements  have been met, 

for  (e)  or  (f),  a  certificate  Issued  by  the  competent  authority  in 
the Member  State  concerned. 

Where  the  country  concerned  does  not  issue  such  documents  or  certificates, 
they  may  be  replaced  by  a declaration  on oath  made  by  the  person  concerned 
before  a  Judicial  or  administrative  authority,  a  notary  or  a  competent 
professional  or  trade  body,  in  the  country  of  origin  or  in  the  country 
whence  that  person comes. 

Member  states  shall,  within  the  time-limit  referred  to 
in  Article  40, 
designate  the authorities  and bodies competent  to  issue  these documents and 
shall  forthwith  inform  the other  Member  States and  the Commission  thereof. 

Article 26 

1. 

2. 

Insofar  as  candidates  for  a  public  contract  have  to  possess  a 
particular  authorisation or  to be members of a particular  organisation 
in  their  home  country  in  order  to  be  able  to  perform  the  service 
concerned,  the  authority  may  require  them  to prove  that  authorisation 
or  membership. 

Any  candidate or  tenderer  may  be requested  to prove his enrollment, as 
prescribed  in his country of establishment,  In one of  the  professional 
or  trade  registers  or  to  provide  a  declaration  or  certificate  as 
described  in paragraph  3 below. 

3.  The  relevant  professional  and  trade  registers  or  declarations  or 

cert IfIcates are: 

in Belgium,  the  "registre  du commerce  - Handelsreglster" ; 

in Denmark,  the  "Erhvervs- og Selskabsstyrelsen",  (the  "Aktiesel-
skabsregistret";  "Forenings-Registret", or  "Handelsregistret") ; 

in Germany,  the  "Handelsregister"  and  the  "Handwerksrolle"; 

in  Greece,  a  declaration  on  the  exercise  of  the  profession 
concerned made on oath  before a notary may  be  required; 

-  in  Spain,  the  "Registro  Oficial  de  Contratlstas  del  Minlsterio  de 

Industrla y Energla" ; 

in  France,  the  "registre  du  commerce",  and  the  "répertoire  des 
metlers"; 

- 35 -

-  In  Italy,  the  "Reglstro  della  Camera  dl  commerclo,  Industrla, 
agricoltura  e  artigianato"  or  the  "Reglstro  del le  commlsslonl 
provincial I per  l'art Igianato" -, 

-  In  Luxembourg,  the  "registre  aux  firmes"  and  the  "rôle  de  la 

Chambre  des métiers"; 

-  in The Netherlands,  the  "Handelsregister"; 

-  in  Portugal,  the  "Commlssâo  de  Alvarâs  de  Empresas  de  Obras 
Pûbllcas  e  PartIculares"  (CAEOPP)  or  the  "Reglstro  naclonal  das 
Pessoas Colectivas"; 

-  in  the  United  Kingdom  and  Ireland,  the  service  provider  may  be 
requested  to  provide  a  certificate  from  the  "Registrar  of 
Companies"  or  the  "Registrar  of  Friendly  Societies"  or,  if  he  is 
not  so  certified,  a  certificate  stating  that  the  person  concerned 
has  declared  on  oath  that  he  is  engaged  in  the  profession  in 
question  in  the  country  in which  he  is  established  in  a  specific 
place under  a given  business name. 

Article  27 

1. 

Proof  of  the  service  provider's  financial  and  economic  standing  may, 
as  a  general  rule,  be  furnished  by  one  or  more  of  the  following 
references: 

(a)  appropriate  statements  from  banks  or  evidence  of  relevant 

professional  risk  Indemnity  Insurance, 

(b) 

the  presentation  of  the  service  provider's  balance  sheets  or 
extracts  therefrom,  where  publication  of  the  balance  sheets  Is 
required  under  company  law  in  the  country  in which  the  service 
provider  is established, 

(c)  a  statement  of  the  undertaking's  overall  turnover  and  Its 
turnover  In  respect  of  the  services  to  which  the  contract 
relates  for  the  three previous  financial  years. 

The  authorities  shall  specify  in  the  notice  or  In  the  Invitation  to 
tender  which  reference  or  references  they  have  chosen  and  which 
references  other  than  those  mentioned  under  paragraph  1  are  to  be 
produced. 

If,  for  any  valid  reason,  the  service  provider  is unable  to  provide 
the  references  requested  by  the  authority,  he  may  prove  his  economic 
and  financial  standing  by  any  other  document  which  the  authority 
considers  appropriate. 

Article  28 

The  ability  of  service  providers  to perform  services  may  be  evaluated 
In particular  with  regard  to their  skills, efficiency,  experience  and 
reliablIity. 

Evidence  of  the  service  provider's  technical  capability  may  be 
furnished  by  one  or  more  of  the  following  means  according  to  the 
nature, quantity and  purpose of  the services  to be provided: 

2. 

3. 

1. 

2. 

- 36 -

(a) 

service 

professional 
the 
qualifications  and/or  those  of  the  firm's managerial  staff,  and 
in  particular,  those  of  the  person  or  persons  responsible  for 
performing  the services; 

educational 

provider's 

and 

(b)  a  list  of  the  principal  services  provided  In  the  past  three 
years,  with  the  sums,  dates  and  recipients,  public  or  private, 
of  the services  performed; 

*  where  provided  to authorities, evidence  to be  In the  form of 
certificates  Issued  or  countersigned  by  the  competent 
author ity; 

*  where  provided  to  private  purchasers,  delivery  to  be 
certified  by  the  purchaser  or,  failing  this, simply  declared 
by  the service provider  to have been  effected; 

(c) 

indication  of  the  technicians  or  technical  bodies  involved, 
whether  or  not  belonging  directly  to  the  service  provider, 
especially  those  responsible  for quailty control ; 

(d)  a  statement  of  the  service  provider's  average  annual  manpower 

and  the number  of managerial  staff  for  the  last  three years; 

(e)  a statement  of  the  tool, plant  or  technical  equipment  available 

to the service  provider  for carrying out  the services; 

(f)  a  description  of  the  service  provider's  measures  for  ensuring 

quality, and  his study  and  research  facilities; 

(g)  where  the services  to be provided  are complex  or, exceptionally, 
are  required  for  a  special  purpose,  a check  carried  out  by  the 
authority  or  on  its behalf  by  a competent  official  body  of  the 
country  In which  the service provider  Is established,  subject  to 
that  body's  agreement,  on  the  technical  capacities  of  the 
service  provider  and,  If  necessary,  on  his  study  and  research 
facilities and  quality  control  measures; 

(h) 

indication  of  the  share  of  the  contract  which  the  service 
provider  may  intend  to sub-contract; 

3.  The  authority  shall  specify,  in  the  notice  or  in  the  Invitation  to 

tender, which  references  It wishes  to receive. 

4. 

The extent  of  the  Information  referred  to  In Article  27 and  paragraphs 
1  to  3  of  this  Article  must  be  confined  to  the  subject  of  the 
contract.  Authorities  shall  take  Into  consideration  the  legitimate 
Interests  of  the  service  providers  as  regards  the  protection  of  their 
technical  or  trade-related  secrets. 

Article 29 

Should  authorities  require  the  production  of  certificates  drawn  up  by 
independent  bodies  for  attesting  conformity  of  the provider  of  services  to 
certain  quality  assurance  standards,  they  shalI  refer  to  quaMty  assurance 
systems  based  on  the  relevant  EN  29000 European  standards  series  certified 

- 37 

by  bodies  conforming  to  the  EN  45000  European  Standards  series. 
bodies 
equivalent 
Authorities  shall 
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. 

certificates 

recognise 

from 

Article  30 

Within  the  limits  of  Articles  25  to  28,  the  authority  may  Invite  the 
service providers  to supplement  the certificates  and documents submitted or 
to clar ify them. 

Article 31 

1.  Member  States who have official  lists of  recognised  service  providers 
must  adapt  them  to the provisions of Articles  25(a) to (d) and  (g) and 
of Articles  26 to 28. 

2. 

3. 

Service  providers  registered  in  these  lists  may,  for  each  contract, 
submit  to  the  authority  a  certificate  of  registration  issued  by  the 
competent  authority.  This  certificate  shall  state  the  references 
which  enabled  them  to be  registered  In the  list and  the classification 
given  in this  list. 

Certified  registration  in  such  lists  by  the  competent  bodies  shall, 
for  the  authorities  of  other  Member  States, constitute  a  presumption 
of  suitability  corresponding  to  the  service  provider's  classification 
only  as  regards  Articles  25(a)  to  (d) and  (g), 26, 27(b) and  (c) and 
28(a). 

Information  which  can  be  deduced  from  registration  In official  lists 
may  not  be questioned.  However, with  regard  to the payment  of  social 
security  contributions,  an  additional  certificate  may  be  required  of 
any  registered  service provider  whenever  a contract  is offered. 

The  authorities  of  other  Member  States  shall  apply  the  above 
provisions  only  In favour  of  service  providers who  are  established  In 
the country  holding  the official  list. 

4.  When  registering  providers  of  services  from  other  Member  States  on 
such  a  list,  no  proof  or  statement  can  be  required  In  addition  to 
those  required  of  national  providers  of  services  and,  in  any  case, 
none  in addition  to those  required  in Articles 25 to 29. 

5. 

Those  Member  States  that  have  official  lists  shall  be  obliged  to 
Inform  the  other  Member  States  of  the  address  of  the  body  to  which 
applications for  registration  should  be sent. 

CHAPTER  3 

Criteria  for  the award of  contracts 

Article  32 

1.  Without  prejudice  to  national  law,  regulation  or  administrative 
provision  on  the  remuneration  of  certain  services,  the  criteria  on 
which  the authority  shall  base the award of contracts may be: 

- 38 -

(a)  when  the  award  Is  made  to  the  economically  most  advantageous 
tender, various  criteria  relating  to  the  contract:  for  example, 
quality, 
functional 
characteristics,  technical  assistance  and  service,  delivery 
date, delivery  period or  period of completion, price, or 

aesthetic 

technical 

merit, 

and 

(b) 

the  lowest price only. 

Where  the  contract  is  to  be  awarded  to  the  economically  most 
advantageous  offer, authorities  shall  state  in the  contract  documents 
or  In the  tender  notice  the  award  criteria  which  they  intend  to  apply 
and,  If possible, the  intended  ranking  or weighting  which  they  intend 
to use. 

Article  33 

If,  for  a  given  contract,  tenders  appear 
to  be  abnormally  low  in 
reject  those  tenders  the 
relation  to  the  transaction,  before  it  may 
authority  shall  request,  In  writing,  details  of 
the  constitutent 
elements  of  the  tender  which  It  considers  relevant 
and  shal I ver ify 
those  constituent  elements  taking  account  of  the  explanations 
received. 

const I tuent 

The  authority  may  take  Into  consideration  explanations  which  are 
Justified  on  objective  grounds  Including  the  economy  of  the  service 
method,  or  the  technical  solutions  chosen,  or  the  exceptionally 
favourable  conditions  available  to  the  tenderer  for  the  provision  of 
the  service,  or  the  originality  of  the  service  proposed  by  the 
tenderer. 

If the documents  relating  to the contract  provide  for  its award at  the 
lowest  price  tendered,  the  authority  must  communicate  to  the 
Commission  the rejection of  tenders which  it considers  to be  too  low. 

In the case of  a  tender  submitted  by a  public  authority  or  a public 
enterprise,  the  authority  shall  In  particular  enquire  whether  the 
tender  is  influenced  by public  funds a-l located 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 

author It les. 

It shall  Inform  the Commission  if  it  intends  to award  a contract  to a 
tenderer  whose  tender  is  influenced  by any of  these characteristics. 

- 39 -

3. 

Authorities  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.  Authorities  which 
reject  a  tender  under  these  circumstances  shall  inform  the  Commission 
thereof. 

-  40  -

TiTLE Vil 

Final  Provisions 

Article  34 

The  calculation  of  tlme-llmlts  shall  be  made  In  accordance  with  Council 
Regulation  (EEC, EURATOM) No  1182/71  of  3 June  1971, determining  the  rules 
applicable  to periods, dates and  time  limits^13). 

Article 35 

1. 

2- 

In  order  to  permit  assessment  of  the  results  of  applying  the 
Directive  ,  Member  States  shall  forward  to  the  Commission  a 
statistical  report  on  the  service  contracts  awarded  by  authorities  by 
31  October  1995  at  the  latest  for  the  preceding  year  and  there  after 
by  31 October  of every  second  year. 

This  report  shall  detail  at  least  the  number  and  value  of  contracts 
awarded  by  each  authority  or  category  of  authority  above  the 
threshold,  subdivided  as  far  as  possible  by  procedure,  category  of 
service  and  the  nationality  of  the  service  provider  to  whom  the 
contract  has  been  awarded,  and  in  the  case  of  negotiated  procedures, 
subdivided  In accordance with Article  12, listing  the number  and  value 
of  the contracts  awarded  to each Member  State and  to third  countries. 

3. 

The  Commission  shall  determine  the  nature  of  any  additional 
statistical  information,  which  is  required  In  accordance  with  this 
Directive,  In  accordance  with  the  procedure  laid  down  in  Article 
36(3). 

Article  36 

1. 

2. 

3. 

The  Commission  shall  be  assisted  by  the Advisory  Committee  for  Public 
Contracts  set up by Decision  71/306/EEC. 

As  regards  procurement  of  telecommunications  services  falling  within 
category  5 of  Annex  IA,  the  Commission  shall  also  be  assisted  by  the 
Advisory  Committee  on  Telecommunications  Procurement  set  up  by 
Directive  90/531/EEC. 

Where  reference  Is made  to  the  procedure  laid  down  in  this  paragraph, 
the  representative  of  the  Commission  shall  submit  to  the  Committee  a 
draft  of  the  measures  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. 

The opinion  shall  be  recorded  in the minutes;  in addition, each  Member 
State shall  have  the  right  to ask  to have  Its position  recorded  in the 
minutes. 

(13) 

0J  No L  124, 8.6.1971, p.1 

- 41 -

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. 

4. 

The  Committees  shall  examine, on  the  initiative  of  the  Commission  or 
at  the  request  of  a  Member  State,  any  question  relating  to  the 
application of  this Directive. 

Article  37 

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  public  service  contracts  or  public  service 
concessions  In third countries. 

2. 

3. 

The  Commission  shall  report  to  the  Council,  before  31  December  1992 
and  then  periodically,  on  the  opening  up  of  public  service  contracts 
and  concessions  in  third  countries  and  on  the  state  of  negotiations 
with  these  countries  on  this  subject,  part icularly  in  the  GATT 
framework. 

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  public 
service contracts or  concessions, 

(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  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 
situât Ion. 

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 public  service contracts or  concessions  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  concerning  services  originating 

In the  third  country  In question. 

- 42 -

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  36(3).  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. 
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. 

Article 38 

Article  1(1) of  Council  Directive  89/665/EEC(14>  is  replaced  by  the 
fol lowing: 

"1.  The Member  States shall  take the measures necessary  to ensure  that, as 
regards  contract  award  procedures  falling  within  the  scope  of 
Directives  71/305/EEC,  77/62/EEC,  and  .../.../EEÇ<15>,  decisions 
taken by the contracting  authorities may be reviewed  effectively and, 
in  particular,  as  rapidly  as  possible  in  accordance  with  the 
conditions  set  out  in  the  following  Articles,  and,  in  particular, 
Article  2(7) on  the  grounds  that  such  decisions  have  Infringed 
Community  law  In the  field  of  public  procurement  or  national  rules 
implementing  that law." 

Article 39 

Not  later  than  three  years  after  the time  limit  for compliance  with  this 
Directive  the Commission,  acting  in close  cooperation  with  the Committees 
referred  to In Article  36, shall  review the manner  In which  this  Directive 
has  operated  Including,  In  particular,  the effects of  the application of 
the  Directive  to  procurement  of  services  listed  In  Annex  IA  and  the 
provisions  concerning 
evaluate,  In 
particular,  the  prospects  for  the  full  application  of  the  Directive  to 
procurement  of other  services  listed  In Annex  IB, and the effects  of  In-
house  performance of services on the effective openlng-up of the market  In 
this  area. 
It shall  make  the necessary  proposals  to adapt  the Directive 
accordingly. 

standards.  It  shall 

technical 

(14)  0J No L 395. 30.12.1989. p. 33. 
(15)  OJ No L 

- 43 -

Article  40 

Member  States  shall  implement  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  1 March  1992.  They 
shall  forthwith  Inform  the Commission  thereof. 

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  41 

Member  States  shall  ensure  that  the  texts  of  the  basic  provisions  of 
domestic  law, whether  laws, regulations or  administrative provisions, which 
they  adopt  to  implement  this Direct Ive, are communicated  to the Commission. 

This Directive  is addressed  to  the Member  States. 

Article  42 

Done  at Brussels 

For  the Council 
The  President 

- 44 -

ANNEX I A 

Services in the sense of Article 

Cat.No.:  Subject 

: 

CPC Reference No. 

Maintenance and repair services 

6112, 6122, 633. 886 

1 

2 

3 

:  Land transport services, including 
armoured car services, and courier 
services, except transport of mail 

:  Air transport services of passengers 
and freight, except transport of 
mail 

4 

Transport of mail by land, except 

5 

6 

7 

8 

9 

:  rail, and by air 

Telecommunications services 

:  Financial services 

a) Insurance services 

b) Banking and investment services** 

:  Computer and related services 

:  R&D services*** 

:  Accounting, auditing and book- 

keeping services 

10 

11 

:  Market research and public 
opinion polling services 
Management consulting services 
and related services 

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 

13 

:  Advertising services 

14 

:  Building-cleaning services 

and property management services 

15 

:  Publishing and printing services 

on a fee or contract basis 

16 

:  Sewage and refuse disposal; 

sanitation and similar services 

: 

: 

: 

: 

: 

: 

: 

: 

: 
: 
: 
: 
: 
: 

~: 
: 

: 
: 
: 

: 

: 
: 

: 
: 

: 
: 

712 (except 71235) 7512 
87304 

73 (except 7321) 

71235. 7321 

752* 

ex 81 
812. 814 

84 

85 

862 

864 

865. 866**** 

867 

871 

~~ 

874 
82201, 82202 

88442 

94 

except voice telephony, telex, radiotelephony, paging and satellite services 
except  activities  involving  primary  government  bonds  and  activities  involving  public debt 
management 
as defined in the ninth recital 
except arbitration and conciliation services 

• *• 
**•* 

- 45 -

ANNEX  I B 

Services  in the sense of Article 10 

Cat.No. 

Subject 

: CPC  Reference No. 

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 
: Investigation and security services 
:  (except armoured car services) 

872 

873 (except 87304 

23 

24 

: Education and vocational  educational  : 
: 
: services 

25 

: Health and social  services 

26 

: Recreational, cultural  and sporting  : 
: services 

27 

: Other services 

92 

93 

96 

-  46  -

ANNEX  II 

DEFINITION OF CERTAIN TECHNICAL  SPECIFICATIONS 

For  the purpose  of  this Directive  the  following  terms shall  be defined  as  follows: 

1. Technical  specifications:  the  totality  of  the  technical  prescriptions  contained  in 
particular  In  the  tender  documents,  defining  the  characteristics  required  of  a  work, 
material, product  or  supply, which permits  a work, a material, a product  or  a  supply  to be 
described  in  a  manner  such  that  it  fulfils  the  use  for  which  it  is  intended  by  the 
contracting  authority.  These  technical  prescriptions  shall  include  levels  of  quality, 
performance,  safety  or  dimensions,  including  the  requirements  applicable  to, the  material, 
the  product  or  to  the  supply  as  regards  quality  assurance,  terminology,  symbols,  testing 
and  test  methods, packaging,  marking  or  labelling.  They  shall  also  include  rules  relating 
to  design  and  costing,  the  test,  inspection  and  acceptances  for  works  and  methods  or 
techniques  of  construction  and  all  other  technical  conditions  which  the  contracting 
authority  is  in a position  to prescribe,  under general  or  specific  regulations,  in  relation 
to the  finished works  and  to  the materials  or parts which  they  involve. 

2. Standard:  a  technical  specification  approved  by  a  recognised  standardising  body  for 
repeated  and  continuous  application,  compliance  with which  is  in principle  not  compulsory. 

3. European  standard:  a  standard  approved  by  the European  Committee  for Standardisation  (CEN) 
or  by  the  European  Committee  for  Electrotechnlcal  Standardisation  (Cenelec)  as  "European 
Standards  (EN)" or  "Harmonisation  documents  (HD)"  according  to  the  common  rules  of  these 
organisations  or  by  the  European  Telecommunications  Standards  Institute  (ETSI)  as  a 
"European Telecommunication  Standard"  (ETS). 

4. European  technical  approval:  a  favourable  technical  assessment  of  the  fitness  for  use  of  a 
product,  based  on  fulfillment  of  the essential  requirements  for building works, by means of 
the  inherent  characteristics  of  the product  and  the defined  conditions  of  applications  and 
use.  The European  agreement  shall  be  issue by an approval  body  designated  for  this purpose 
by  the Member  State. 

5. Common  technical  specification:  a  technical  specification  laid  down  in  accordance  with  a 
procedure  recognised  by  the  Member  States  to  ensure  uniform  application  in  all  Member 
States which  has been published  in the Official  Journal  of  the European  Communities. 

6. Essential  requirements:  requirements  regarding  safety,  health  and  certain  other  aspects  in 

the general  interest,  that  the construction  works can meet. 

-  47  -

ANNEX  III 

Model  controct  notices 

A. Prior  Information 

1. The  name,  address,  telegraphic  address,  telephone,  telex  and  facsimile  numbers  of  the 
authority,  and,  if  different,  of  the  service  from  which  additional  information  may  be 
obtained; 

2.  Intended  total  procurement  in each  of  the  service  categories  listed  in Annex  IA; 

3. Estimated  date  for  initiating  the award  procedures, per  category; 

4. Other  information; 

5. Date  of  dispatch  of  the notice; 

6. Date  of  receipt  of  the  notice  by  the  Office  for  Official  Publications  of  the  European 

Communities 

-  48  -

B.  Open  Procedure 

1. The  name,  address,  telegraphic  address,  telephone,  telex  and  facsimile  numbers  of  the 

authority; 

2. Category  of  service and  description; 

CPC  reference  number; 

3. Place  of  delivery; 

4.  (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  provision; 

(c)  Indication  whether  legal  persons  should  indicate  the  names  and  professional 
qualifications of  the staff  to be  responsible  for  the execution  of  the service; 

5.  Indication whether  suppliers  can  tender  for a part  of  the services  concerned; 

6. Variants 

a) Where  opplicable.  minimum  specifications, 

b) Where  applicable.  desirable  elements; 

7. Duration  of contract  or  time  limit  for completion  of  the service; 

8.  (a)  Name and address  of  the  service  from which  the  relevant  documents may  be  requested: 

(b)  Final  date  for making  such  requests: 
(c)  Where  applicable,  the  amount  and  terms  of  payment  of  any  sum  payable  for  such 

documents; 

9.  (a)  Persons  authorised  to be present  at  the opening  of  tenders: 

(b)  Date,  time and place  of  the opening; 

10. 

Where  applicable,  any  deposits  and  guarantees  required. 

11. 

The  main  terms  concerning  financing  and  payment  and/or  references  to  the  relevant 
provisions. 

12. 

Where  applicable,  the  legal  form  to  be  taken  by  the  grouping  of  suppliers  winning  the 
contract. 

13. 

Information  concerning  the  suppliers'  own  position,  and  information  and  formalities 
necessary  for  an  appraisal  of  the minimum  economic  and  technical  standards  required  of 
the  supplier. 

14. 

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

15. 

Criteria  for  the  award  of  the  contract  and  their  ranking.  Criteria  other  than  that  of 
the  lowest  price  shall  be mentioned  if they do not  appear  in the contract  documents. 

16. 

Other  information. 

17. 

Date of  dispatch  of  the notice. 

18. 

Date  of  receipt  of  the  notice  by  the  Office  of  Official  Publications  of  the  European 
Communi t ies. 

-  49  -

C. Restricted  Procedure 

1. 

2. 

The  name,  address,  telegraphic  address,  telephone,  telex  and  facsimile  number  of  the 
authority; 

Category  of  service  and  description; 
CPC  reference  number; 

3. 

Place  of  delivery; 

4. 

(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  provision; 

(c) Indication  whether  legal  persons  should  indicate  the  names  and  professional 
qualifications  of  the  staff  to be  responsible  for  the execution  of  the  service; 

5. 

Indication  of whether  the supplier  can  tender  for a part  of  the  services  concerned; 

6. 

Envisaged  number  of  suppliers,  or  range, which will  be  invited  to  tender; 

7. 

Variants 

a) Where  applicable, minimum  specifications. 
b) Where  applicable,  desirable  elements; 

8. 

Duration  of  contract,  or  time  limit  for completion  of  the  service; 

9. 

Where  applicable,  the  legal  form  to be  assumed  by  the  grouping  of  suppliers winning  the 
Acontract; 

10. 

(a) Where  applicable,  justification  for  the  use of  the accelerated  procedure, 
(b) Final  date  for  the  receipt  of  requests  to participate, 
(c) Address  to which  they must  be  sent, 
(d) Language(s)  in which  they must  be drawn  up; 

11. 

Final  date  for  the dispatch  of  invitations  to  tender; 

12. 

Where  applicable,  any  deposits  and  guarantees  required; 

13. 

Information  concerning  the  supplier's  own  position,  and  the  information  and  formalities 
necessary  for  an  appraisal  of  the minimum  economic  and  technical  standards  required  of 
him; 

14. 

Criteria  for  the  award  of  the  contract  and  their  ranking  if  these  are  not  stated  in  the 
invitation  to  tender; 

15. 

Other  information; 

16. 

Date  of  dispatch  of  the  notice; 

17. 

Date  of  receipt  of  the  notice  by  the  Office  for  Official  Publications  of  the  European 
Communities. 

-  50  -

D. Negotloted  Procedure 

1. 

2. 

The  name,  address,  telegraphic  address,  telephone,  telex  and  facsimile  number  of  the 
authority; 

Category  of  service  and  description; 
CPC  reference  number; 

3. 

Place  of  delivery; 

4. 

(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  provision; 

(c)  Indication  whether  legal  persons  should  indicate  the  names  and  professional 
qualifications of  the  staff  to be  responsible  for  the execution  of  the  service; 

5. 

Indication  of whether  the  supplier  can  tender  for a part  of  the  services  concerned; 

6. 

Envisaged  number  of  suppliers,  or  range, which will  be  invited  to  tender; 

7. 

Variants 

a) Where  applIcable, minimum  specifications, 
b) Where  applicable, desirable elements; 

8. 

Duration  of  contract,  or  time  limit  for completion  of  the  service; 

9. 

Where  applicable,  the  legal  form  to be assumed  by  the grouping  of  suppliers  winning  the 
contract; 

10. 

(a) Where  applicable,  justification  for  the use of  the accelerated  procedure. 
(b) Final  date  for  the  receipt  of  requests  to participate, 
(c) Address  to which  they must  be  sent, 
(d) Language(s)  in which  they must  be drawn  up; 

11. 

Where  applicable,  any  deposits  and  guarantees  required; 

12. 

Information  concerning  the  supplier's  own  position,  and  the  information  and  formalities 
necessary  for  an  appraisal  of  the minimum  economic  and  technical  standards  required  of 
him; 

13. 

Where  applicable,  the  names  and  addresses  of  suppliers  already  selected  by  the  awarding 
authority; 

14. 

Other  information; 

15. 

Date  of  dispatch  of  notice; 

16. 

Date  of  receipt  of  the  notice  by  the  Office  for  Official  Publications  of  the  European 
Communities; 

17. 

Date(s) of previous publications  in the Official  Journal  of  the European  Communities. 

-  51  -

E. Controct  Awords 

1. 

Name and  address of  the authority; 

2. 

Award  procedure  chosen;  in case  of  negotiated  procedure  without  prior  publication  of a 
tender notice,  justification  (Article  13(3)); 
CPC  reference  number; 

3. 

Category  of  service  and  description; 

4. 

Date of award  of  contract; 

5. 

Criteria  for award  of  contract; 

6. 

Number  of  tenders  received; 

7. 

Name and  address of  supplier(s); 

8. 

Price or  range of prices  (minimum/maximum) paid; 

9. 

Where  appropriate,  value  and  proportion  of  contract  likely  to be  subcontracted  to  third 
parties; 

10. 

Other  information; 

11. 

Date  of  publication  of  the  tender  notice  in  the  Official  Journal  of  the  European 
Communities; 

12. 

Date of  dispatch  of  the notice; 

13. 

Date  of  receipt  of  the  notice  by  the  Office  for  Official  Publications  of  the  European 
Communities; 

14. 

In  the case  of  contracts  for  services  listed  in Annex  IB, agreement,  by  the  contracting 
authority, on publication  of  the notice  (Article  18(3)). 

-  52  -

ANNEX  IV 

Design  Contest  Notices 

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; 

Project  description; 

Nature  of  the contest:  open  or  restricted; 

In  the case  of  open  contests:  final  date  for  receipt  of projects; 

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; 

Where  applicable,  indication  whether  participation  is  reserved  to a particular  profession; 

The  criteria  to be applied  in  the evaluation  of projects; 

Where  applicable,  names  of  selected members  of  the  jury; 

Indication  whether  the decision  of  the  jury  is binding  for  the  authority; 

Where  applicable,  the number  and  value  of  the prizes  to be  awarded; 

Where  applicable,  details  on payments  to all  participants; 

Indication  whether  the prize-winners are  entitled  to be awarded  any  follow-up  contracts; 

Other  information; 

Date  of  dispatch  of  the  notice. 

Date  of  receipt  of  the  notice  by  the  office  for  Official  Publications  of  the  European 
Communities. 

B. Results  of Design  contests 

The  name,  address,  telegraphic  address,  telephone,  telex  and  facsimile  numbers  of  the 
authority; 

Project  description; 

Total  number  of  participants; 

Number  of  foreign  participants; 

Winner(s)  of  the  contest; 

Where  applicable,  the  prize(s); 

Other  information; 

Reference  of  the design  contest  notice; 

Date  of  dispatch  of  the notice; 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10 

11 

12 

13 

14 

15 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

Date  of  receipt  of  the  notice  by  the  Office  for  Official  Publications  of  the  European 
Communities. 

-  53 -

ANNEX  V 

A. Model  Notice  on Public Service  Concessions 

1. The  name,  address,  telegraphic  address,  telephone,  telex  and  facsimile  numbers  of  the 

authority; 

2.  (a)  The place  of  delivery: 

(b)  The  subject  of  the concession,  nature  and extent  of  the services  to be provided: 
(c)  Duration  of  contract; 

3.  (a)  Final  date  for  receipt  of  candidatures: 
(b)  The address  to which  they must  be  sent: 
(c)  The  language or  languages  in which  they must  be drawn  up; 

4. Personal,  technical  and  financial  conditions  to be  fulfilled  by  the candidates; 

5. The criteria  for  the award  of  the  contract; 

6. Where  applicable,  the minimum  percentage  of  the  total  value  of  the  concession  contract  to 

be awarded  to third parties; 

7. Other  information; 

8. Date  of  dispatch  of  the notice; 

B. Concession  awards 

1. The  name,  address,  telegraphic  address,  telephone,  telex  and  facsimile  numbers  of  the 

authority; 

2. The  subject  of  the concession, nature  and  extent  of  the services  to be provided; 

3. Date  of  award  of  the  concession; 

4. Number  of  tenders  received; 

5. Name  and address  of  the concessionnaire; 

6. Other  information; 

7. Date  of  publication  of  the  tender  notice  in  the  Official  Journal  of  the  European 

Communities; 

8. Date of  dispatch  of  the notice; 

9. Date  of  receipt  of  the  notice  by  the  Office  for  Official  Publications  of  the  European 

Communities; 

ISSN 0254-1475 

COM(91) 322 final 

DOCUMENTS 

EN 

06  08 

Catalogue number : CB-CO-91-363-EN-C 

ISBN 92-77-75071-5 

Office for Official Publications of the European Communities 
1^2985 Luxembourg