Proposal for a COUNCIL DIRECTIVE amending Directive 90/531/EEC on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
Date: 1991-11-06
Institutions: European Commission
Subjects: energy distribution, energy production, energy transport, means of public conveyance, public contract, telecommunications

COMMISSION  OF  THE  EUROPEAN  COMMUNITIES 

COM(91) 347 final - SYN 361 

Brussels, 6 november 1991 

Proposal for a 

COUNCIL DIRECTIVE 

amending Directive 90/531/EEC on the procurement procedures 

of entities operating in the water, energy, transport and 

telecommunications sectors 

(presented by the Commission) 

TABLE  OF  CONTENTS 

EXPLANATORY  MEMORANDUM 

I. 

I nt roduc t i on 

II.  Scope 

III. Definition  of  service  contracts 

Definition  of  contracts 
Definition  of  service  contracts 
Definition  of  service  categories 
Design  contests 
Reasearch  and  development  contracts 
Contracts  covered 

IV.  Procedural  obi i gat ions 

V. 

Specific  points  concerning  services  in the  four  sectors  in question 
Intra-group  transactions 
Confidential i ty 

VI.  Adoption  of  a consolidated  text 

VII. Detailed  analysis  of Articles 

Annex  I: Correlation  table 

PROPOSAL  FOR  A COUNCIL  DIRECTIVE 

pages 

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4 

6 

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7 
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EXPLANATORY  MEMORANDUM 

INTRODUCTION 

1. In  its  communication  to the  Council  on the public  procurement  in 
the  excluded  sectoral-1-),  the  Commission  analyzed  the  industrial 

and economic aspects of procurement by the utilities in the water, 

energy, transport and telecommunications sectors.  It was concluded 

that  considerable  gains  could  be  expected  from  opening  up  the 

procurement of the utilities to Community-wide competition and that 

the benefits brought about by more transparent, non-discriminatory 

procurement  in the  four sectors concerned  would  spread  throughout 

the  economy,  bringing  sizeable  budget  savings  to  the  utilities, 

along  with  better  quality  and  a  more  efficient  structure  of  the 

supply side.  The opening up of public procurement in those sectors 

will thereby enhance the competitiveness of Community industry as a 

whole. 

2. The  procurement  of  services  by  the  utilities,  which  can  be 

estimated  to be of the order of ECU  45 billions, is an  important 

part  of  this  picture, accounting  for between  15  and  20  %  of  the 

utilities'  total procurement.  The  importance  of  such  large  scale 

purchases for the service sectors concerned, which cover the whole 

range  from  relatively  simple  labour  intensive  services through to 

highly  skilled  capital-intensive  services, is evident, even  if it 

is somewhat  less in value than the procurement of services by the 

public  authorities.  (This  is  the  subject  of  the  Commisssion's 

proposal for a Public services Directive^) ). 

(1) 

COM  (88)  376,  11.10.1988,  published  as  Supplement  6/88  to  the 

Bulletin of the European Communities. 

(2) 

COM  (91) 322, 30.8.1991. 

- 4 -

3. The adoption of Directive 90/531 aimed to achieve the benefits of 

the  internal  market  for the  utilities'  purchases  of  supplies  and 

works.  The present proposal aims to extend the provisions of that 

Directive to the utilities' purchases of services.  In doing so, it 

takes  account  of  the  particular  characteristics  of  service 

procurement,  as  was  also  the  case  in  the  proposal  for  a  Public 

Services  Directive.  A  correlation  table  indicating  the  parallels 

between  the  provisions  of  this  proposal,  the  public  services 

proposal  and  Directive  90/531/EEC  is attached  to this explanatory 

memorandum  (Annex I). 

4. With  this  proposal, the  Commission  has  completed  its  legislative 

programme on public procurement under the White Paper on Completing 

the Internal Market(*). 

II.  SCOPE 

5. The  aim  of  this  proposal  is  to  extend,  wherever  possible,  the 

procedural  rules  laid  down  in  Directive 90/531/EEC  to  services. 

The  scope  is identical to that of Directive 90/531/EEC  as regards 

the  contracting  entities  and  activities  concerned  in  the  four 

sectors (Article 2 ). 

6. In  line  with  the  ultimate  objective,  which  is  to  require 

contracting  entities  throughout  the  Community  to  operate  a 

procurement  system  that  is  tailored  to  their  particular 

characteristics and as consistent as possible, this proposal makes 

amendments to Directive 90/531/EEC only where: 

(1) 

COM  (85) 310 final, 14.6.1985. 

- 5 -

(a)  the  specific  nature  of  services  or  of  design  contests  so 

requires; 

(b)  the  existing  provisions  need  to  be  extended  to  services  and 

design contests. 

7. Certain provisions can be applied to all three types of contract. 

Where  Directive 90/531/EEC  does  not  confine  them  to  supply  and 

works contracts, it has not been deemed  necessary  here to propose 

that they be amended.  Consequently, once this proposal is adopted, 

many  provisions  of  Directive 90/531/EEC  will  apply  to  services 

without requiring the slightest amendment. 

8. These provisions relate to the following in particular: 

- 

- 

- 

- 

scope (Article 2); 

non-discrimination  (Article 4(2) and (4)); 

framework agreements (Article 5); 

contracts  linked  to telecommunications  activities  carried  on 

under conditions of competition  (Article 8 ); 

contracts declared to be secret  (Article 10); 

- 

contracts  awarded  pursuant  to  an  international  agreement 

(Article 11(2) and (3)); 

technical specifications (Article 13); 

procedural obligations  (Articles 19 to 22); 

qualification system  (Article 24); 

selection criteria (Article 25); 

award criteria  (Article 27(2) to (5)); 

consultation  of  the Advisory  Committee  on  Telecommunications 

- 

- 

- 

- 

Procurement  (Article 31(2)(a) to (e)); 

- 

statistical reporting  (Article 34). 

-  6 -

III.  DEFINITION OF SERVICE  CONTRACTS 

Definition of  contracts 

9. This  proposal  covers  only  services  which  are  acquired  under  a 

contract  for  pecuniary  interest  concluded  between  two  different 

legal persons. 

On  the  other  hand,  services  provided  in house within  a  contracting 

entity  that  constitutes  a  single  legal  person  are  not  regarded  as 

service contracts  and  lie outside the scope of this proposal. 

Definition of  service  contracts 

10.  Since the aim of the proposal  is to  supplement  the existing rules, 

service  contracts  are  defined  in  Article  1  so  as  to  catch 

purchases  made  by  contracting  entities  in  the  sectors  concerned 

which  are not covered by Directive  90/531/EEC.  This proposal  thus 

extends the coverage of the existing Directive, which, in  addition 

to  works  contracts,  already  takes  in  certain  service  contracts. 

The 

services 

concerned 

are 

firstly 

those 

regarded 

by 

Directive  90/531/EEC  as supplies, i.e.: 

(i) certain  software  services  procured  by  entities  operating  in 

the telecommunications  sector; 

(ii) services  whose  purpose  is  to  make  equipment  available  to  the 

contracting  entity  (lease, rental or hire-purchase  contracts). 

- 7 -

The  other  services  already  covered  by  Directive 90/531/EEC  are 

those  which  are  included  in  a  supply  or  works  contract,  and  in 

particular: 

(i) siting  and  installation  services  for  equipment  covered  by  a 

supply contract; 

(ii) design  services  covered  by  a  works  contract  whereby  the 

contractor takes responsibility  for both design and execution 

of the works; 

(iii) services included in a "turnkey" works contract. 

11. Where  services  involving  the  design  of  works  or  siting  and 

installation operations are the subject of a call for competition 

that  is  separate  from  the  associated  works  or  supply  contract, 

they  are  regarded  as  services  falling  within  the  scope  of  this 

proposal. 

Nevertheless, since this proposal lays down different rules only in 

so  far  as the  specific  nature of the  services  not  covered  by the 

existing  rules  so  requires,  classification  of  a  contract  in  one 

category  or  the  other  will  not  face  contracting  entities  with 

difficulties in applying the provisions. 

Definition of service categories 

12. The  potential  for  cross-border  trade  in  services  is  not  uniform 

throughout the economy.  The approach adopted in this proposal is 

consequently to distinguish between "priority" and other services. 

- 8 -

Priority  services are services to which  it is desirable to apply 

immediately  rules introducing  Community-wide competition  in order 

to  reap  the  benefits  of  a  larger  market  (greater  cross-border 

trade, economies of scale, etc.);  these are listed in Annex XVI A 

and  are  subject  to  rules  similar  to  those  laid  down  in 

Directive 90/531/EEC.  For  non-priority  services,  on  the  other 

hand,  not  enough  is  known  about  the  transactions  involved  to 

conclude  with  certainty  at  this  stage  that  Community  rules  are 

desirable.  These  services, which  are  listed  in Annex XVI B, are 

therefore subject to transparency requirements only. 

13. Services are defined here and classified  in either Annex XVI A or 

Annex XVI B  in  exactly  the  same  way  as  the  public  services 

proposal:  their classification as priority or other services has 

more to do with their inherent characteristics than the status of 

the contracting entities purchasing them.  Services are defined in 

Annexes XVI A  and  XVI B  by  reference  to  the  United Nations' 

Central  Product  Classification,  which  offers  the  advantage  of 

being an international nomenclature. 

Design contests 

14. This proposal also covers design contests, the purpose of which is 

to  weigh  up  competing  ideas  rather  than  tenders  in  the 

conventional  sense.  Specific procedural rules are thus laid down 

- 9 -

in  Article 17a  to  ensure  that  such  contests  are  held  on  a 

transparent and non-discriminatory basis. 

Research and development contracts 

15. Only  transactions  which  are  intended  to  provide  the  contracting 

entity  with  a  result  and  are  linked  to the  activities  concerned 

are  regarded  as  R&D  service  contracts  for  the  purposes  of  this 

proposal.  On  the  other  hand,  the  financing  of  R&D  by  a 

contracting entity, e.g. for the benefit of society as a whole, is 

not regarded as a service contract.  This approach is in line with 

that adopted in the public services proposal. 

16. As  in the case of R&D contracts which also  involve the supply of 

products  or  the  execution  of  works  already  covered  by 

Directive 90/531/EEC, this  proposal  likewise  affords  contracting 

entities the option of not calling for Community-wide competition 

(Article 15(2)(b)).  Nevertheless,  the  introduction  of  service 

contracts  increases  the  scope  of  that  possibility  considerably. 

If particular  firms are not to be given an unfair advantage as a 

result,  steps  need  to  be taken  to  ensure  that  reliance  on  this 

Article  does  not  prejudice  competitive  tendering  for  subsequent 

contracts, and particularly those relating to series production. 

Specific  provisions  are  also  included  for  protecting  the 

confidentiality of R&D contracts (see points 25 to 28 below). 

- 10 -

Contracts covered 

17. The  rules  of  Directive  90/531/EEC  apply  to  supplies  and  works 

contracts  awarded  by  covered  entities  only  in  the  context  of 

activities which are listed in Article 2 of that Directive.  Thus 

contracts  awarded  by  covered  entities  in  the  context  of  other 

activities are not subject to these rules.  In the same way, the 

present  proposal  only  concerns  service  contracts  awarded  by  a 

covered entity in the context of a relevant activity. 

IV.  PROCEDURAL OBLIGATIONS 

18. The procedural rules laid down in Titles IV and V of this proposal 

in  respect  of  the  services  listed  in  Annex XVI A  (see  point 47 

below) are based on those established by Directive 90/531/EEC for 

works and supply contracts. 

In  line  with  the  approach  described  in  points 12  and  13 above, 

services  listed  in  Annex XVI B  will  be  subject  to  only  minimum 

requirements  (Article 12b). 

19. The  procedural  rules  applicable  to  design  contests  are  more 

specific.  They relate to the call  for competition  (Article 16(4) 

and  Annex XVII),  the  composition  and  decisions  of  the  jury 

(Article 17a),  the  notice  on  the  results  of  a  design  contest 

(Article 18  and  Annex  XVIII)  and  contracts  awarded  following  a 

design contest  (Article 15(2)(1)). 

- 11 

V. SPECIFIC POINTS CONCERNING SERVICES IN THE FOUR SECTORS IN QUESTION 

Intra-group transactions  (Article 11a) 

20. Article  11a  provides  for  the  exclusion  of  certain  service 

contracts awarded to a service provider which is affiliated to the 

contracting  entity, or to a service provider which  is affiliated 

to  a  contracting  entity  participating  in  a  joint  venture  formed 

for  the  purpose  of  carrying  on  an  activity  covered  by  the 

Directive. 

The  service  contracts  excluded  are  those which  are awarded  to an 

affiliate  whose  essential  purpose  is to  act  as  a  central  service 

provider to the group to which it belongs, rather than to sell its 

services  commercially  on  the  open  market.  In  this  way,  the 

Directive seeks to recognize the particular role of certain service 

activities  in  establishing  the  commercial  advantage  and  common 

character  of  undertakings.  At  the  same  times,  it  accepts  the 

reality  of  the  group  structure  under  which  many  entities,  both 

public and private, carry on their activities. 

21. The provision  relates, in particular,  to  three  types  of  service 

provision  within  groups.  These  categories  are  not  necessarily 

distinct: 

-  the  provision  of  common  services  such  as  accounting, 

recruitment and management; 

-  the provision  of  specialized  services embodying  the  know-how 

of the group; 

- 12 -

-  the provision of a specialized service to a joint venture. 

The  provision  of  such  services  is  often  concentrated  in  an 

affiliated  company  within  the  economic  group.  This  is done  for 

the same reasons which lead economic groups to establish separate 

affiliates  for  their  different  activities.  These  include 

limitation of liability, tax efficiency, separate cost control and 

efficient management  in a general sense.  However, the process of 

affiliation  does not negate the unique character of the economic 

group. 

Thus the provision of common services to affiliated entities is a 

matter  of organizational  convenience which there  is no reason to 

undermine. 

Further,  the  concentration  of  specialized  know-how  reflects  the 

commercial  and  competitive  advantage  of  the  group.  Particularly 

(but not exclusively) for private entities, direct access to such 

services is indispensable. 

22. Finally,  joint  ventures  for  the  carrying-on  of  a  particular 

operation are frequently established  in order that the particular 

project may benefit  from the specialized  knowledge of the groups 

forming  the  joint venture.  To deprive them of this access would 

be to eliminate the reason  for establishing  the  joint venture in 

the first place. 

- 13 -

The  provision  of  services  within  the  group  can  differ  from  the 

provision  of  supplies  in  important  respects.  It  is  the 

availability  of  services  which  establishes  the  character  of  the 

group  (common  management,  staffing,  accounting)  and  its 

competitiveness  (know-how to which the group has access and which 

it does not make available to others except through the activities 

of  the  group  as  a  whole).  It  is  in  respect  of  these 

characteristics that exceptional treatment is justified. 

The  acquisition,  on  the  other  hand,  by  group  affiliates  of  a 

service  which  is  freely  marketed  is  no  different  from  the 

obtaining  of  supplies  from  a group  affiliate.  The obligation to 

procure either of these in an open, competitive context would not 

undermine the character and competitive advantage of the group. 

23. The  provision  for  exclusion  of  service  contracts  is  therefore 

limited in two important respects, in that it is only available to 

affiliates : 

with which the contracting entity's accounts are consolidated 

under  the  provisions  of  the  Seventh  Directive  on  Company 
Law^1) or,  in the case of  entities which  are not  subject  to 

that  Directive,  to  situations  where  dominant  influence,  in 

the sense of competition law, is present; and 

which  exist  essentially  to  provide  their  services  to  the 

group  and  do  not  market  them.  In  order  to  allow  for  some 

activity with minority affiliates  (which would not be covered 

by the 

(1) 

Council Directive 83/349/EEC, 13.6.1983, OJ No L 193, 18.7.1983 

- 14 -

exception) and for marginal commercial activities, the minimum 

intra-group provision has been set at 85% of turnover. 

24. The Directive accordingly permits entities to award such contracts 

without  their  being  subject  to  the  rules  of  the  Directive. 

However,  it  provides  for  the  monitoring  of  such  exceptions  as 

required by the Commission and for the provision of such proofs as 

the Commission may consider necessary.  Such proof may consist of 

consolidated  accounts drawn up by parent undertakings pursuant to 

Directive  83/349/EEC.  It could  also  include  the  verification by 

public audit bodies of shareholdings and of the share of turnover 

being generated in intra-group activity.  (The Commission has been 

assured  that,  in  the  case  of  private  entities  subject  to  an 

independent  audit, the  group  auditor  would  be  in  a  position  to 

verify compliance with these requirements.) 

Confidentiality 

25. In view of the industrial  nature of the activities  carried on by 

entities operating in the four sectors concerned, measures need to 

be  taken  to  protect  confidential  or  commercially  sensitive 

information  without  doing  away  with  the  obligation  to  put 

contracts  or  design  contests up  for  competition.  The provisions 

of Directive 90/531/EEC concerning confidentiality are extended to 

services. 

- 15 -

These relate tot 

(a) the protection of information in the transmission of technical 

specifications,  in the qualification and selection of service 

providers and in the award of contracts  (Article 4); 

(b) the free choice between contract award procedures  (Article 15) 

and methods of calling  for competition  (Article 16),  enabling 

the  contracting  entity  to  avoid  publishing  a  notice  on  the 

service contract  in question in the Official Journal and thus 

limit the dissemination of information thereon; 

(c) the obligation  to publish,  in the periodic  indicative  notice 

(Article 17  and  Annex XIV),  only  the  categories  of  services 

concerned  and  their  respective  total  value  (without 

necessarily  having  to disclose the ultimate objective  of the 

service); 

(d) subdivision  of  the contract  award  notice  (Annex XV)  into two 

sections, only one of which is for publication in the Official 

Journal; 

(e) the possibility  of withholding,  in the contract  award notice, 

information  on  the  price  paid,  the  award  criteria  and  the 

value  of  the  share  of  the  contract  to  be  subcontracted 

(point 11 of Annex XV); 

(f)  the  possibility  of  pointing  out  any  sensitive  commercial 

aspects of the  information to be supplied  in connection with 

points 6  and  9  (number  of  tenders  received  and  name  of 

- 16 -

successful  provider)  of  the  contract 

award 

notice 

(Article 18(2)). 

26. In  the  case  of  contracts  for  certain  services  listed  in 

Annex XVI B or R&D or study contracts, the above provisions could 

prove  insufficient  in  so  far  as publication  of  Section I of  the 

contract  award notice within two months of award  of the contract 

could disseminate  information that the contracting  authority does 

not  wish  to  disclose;  the  very  outcome  of  a  contract  award 

procedure  could  reveal  the  internal  strategy  of  the  contracting 

entity  or  service  provider  and  should  be  able  to  be  kept 

confidential. 

27. Article 18(3)  thus  provides  that  the  description  of  service 

contracts listed in Annex XVI B and of contracts awarded without a 

prior call for competition in accordance with Article 15(2)(b) may 

be  limited  to  an  indication  of  the  service  category  concerned 

according to the classification given in Annex XVI  (R&D services, 

management consulting services and related services, etc.). 

28. The other  contracts  for which the outcome of the award procedure 

should also remain confidential are above all contracts that fall 

outside  the  scope  of  the  Directive,  since  although  they  are 

awarded  by  contracting  entities,  they  are  linked  to  activities 

other  than  those  caught  by  the  Directive  or  are  excluded  in 

pursuance of specific provisions such as Article 7. 

- 17 -

VI. 

ADOPTION OF A CONSOLIDATED TEXT 

29. Article  2  of  this  proposal  stipulates  that,  when  adopting  this 

Directive,  the  Commission  shall  adopt  a  text  which  consolidates 

all the provisions relating to supplies, works and services. 

There  are  many  advantages  to  a  single  instrument  being  made 

available within  a very  brief  period, the main one being  that it 

would  make  it  possible  at  national  level  to  refer  to  a  single 

Community  instrument whatever the type of contract.  It would also 

be  easier  for  the  interested  parties  to  use  a  single  document, 

particularly  since, as explained  in point 7 above, the provisions 

relating  to  supplies  and works  are also  relevant  to  services and 

are not necessarily contained in this proposal. 

VII. 

DETAILED ANALYSIS OF ARTICLES 

30. The  comments  presented  below  relate  to  the  amended  or  new 

provisions set out in Article 1 of this proposal. 

Article 1(3) 

31. The  introduction  of a definition  for  "affiliated  undertaking"  is 

necessary  for the purposes of granting, pursuant to Article 11a, 

the exemption of certain service  contracts which are the subject 

of  transactions within  a group  (see points  20 to  24  above).  In 

this  definition  reference  is  made  to  the  Seventh  Directive  on 

Company Law (83/349/EEC) on consolidated accounts. 

- 18 -

For  undertakings  not  subject  to  that  Directive, the  exercise of 

dominant influence in the sense of point 2 of this Article is the 

decisive critérium. 

Article 1(4) 

32. Article 1(4) incorporates the definition of service contracts into 

that  for  the  other  types  of  contract.  In  accordance  with  this 

proposal's  aim, which  is to complete the existing  rules, service 

contracts  are  defined  in  such  as  way  as  to  cover  all  services 

purchased  in the sectors in question which do not fall within the 

definition  of  supply  and  works  contracts  already  covered  by 

Directive 90/531/EEC. 

33. However,  some  contracts  should  not  be made  subject  to  Community 

rules  owing  either  to  their  specific  characteristics  or  to  the 

absence of any likelihood of competition existing in their respect 

in the near future.  These are identified in points  (i), (ii) and 

(iii),  i.e.  telecommunications  services  which,  under  Directive 

90/388/EEC, will not be liberalized, contracts for arbitration and 

conciliation  services,  the  suppliers  of  which  are  normally 

appointed  by  common agreement between the parties  concerned, and 

contracts  for  the  acquisition  of  immovable  property  which  are 

neither  supply  nor  works  contracts.  Services  linked  to  such 

acquisition are, however, covered by this Directive. 

Article 1(5),  (6), (7) and (8) 

34. Each  of  these  definitions  is  amended  to  include  the  notion  of 

"services" or "service provider".  In addition, paragraph 6 makes 

it clear that service providers may not be rejected on the grounds 

of their legal form (see point 63 below). 

- 19 -

Article 1(16) 

35. This provision  introduces a definition of design contests.  These 

differ  from service contracts in that they are not concerned with 

the  supply  of  a  service  per  se but  are  intended  as  a  means  of 

exploring  the  possibilities  for  a  future  project  which  might 

ultimately be the subject of a service, works or supply contract: 

contests  may  be  held,  for  example,  in  the  fields  of  data 

processing  (project  to  computerize  the  organization  of  an 

authority),  civil  engineering  or  architecture  (project  for  the 

construction of headquarters). 

Article 3(2)(a) 

36. The  alternative  rules  of  Directive  90/531/EEC  are  extended  in 

their  entirety  to  service  contracts;  where  a  Member  State  is 

authorized,  following  a decision by the Commission, to apply the 

alternative  rules  for the award of supply  and works contracts by 

entities operating  in the oil and gas sectors  in question, it is 

vital  that  the  latter  also  comply  with  these  rules.  Only 

paragraph  2(a)  has  had  to  be  amended  to  include  "service 

contracts". 

Article 4 

37. The amendments to Article 4 take account of the extension of the 

scope  of  Directive  90/531/EEC  to  service  contracts  and  design 

contests  and  of  the  principle  of  non-discrimination  between 

service providers. 

- 20 -

Article 6(1) and (2) 

38. Only the award of contracts or the organization of design contests 

in the areas covered by the Directive should be referred to by the 

Directive.  The new version of Article 6(1) and  (2) extends this 

principle,  which  already  exists  in  Directive  90/531/EEC,  to 

services and design contests. 

Article 7 

39. Directive  90/531/EEC  excludes purchases of  supplies which  are to 

be re-sold or hired to third parties under competitive conditions. 

The  new  version  of  Article  7  thus  excludes  service  contracts 

awarded for the purposes of such re-sale or hire activities.  This 

is because, when a contracting entity awards service contracts in 

order  to  pursue  such  activities,  any  associated  services  (e.g. 

advertising)  should  not  be  made  subject  to  the  Directive's 

procedural  rules:  the  pressure  of  competition  on  the  price  at 

which  the product  is sold  or hired  should  force  the  contracting 

entity to obtain all the elements of which this price is composed 

on the best possible terms. 

Article 10a 

40. Some  Member  States'  laws  reserve  the  right  to  provide  certain 

services  for  public  authorities.  The  new  Article  10a  excludes 

such  contracts  under  certain  conditions.  The  Article  does  not, 

however,  aim  to  exclude  contracts  which  a  contracting  entity 

- 21 -

reserved  by  contractual  means  for one or more  suppliers,  on the 

basis, for example, of a framework agreement. 

Article 11 

41. The  new  version  of  this  Article  extends  the  exemption  already 

provided  for  by  Directive  90/531/EEC  to  services  and  design 

contests where contracts in their respect are awarded pursuant to 

an international agreement. 

Article 11a 

42. This new Article applies solely to service contracts 

between the contracting entity and  "affiliated undertakings", 

as defined in Article 1(3), or 

awarded by a joint venture  formed by a contracting entity and 

its "affiliated undertakings". 

It offers an exemption from application of the Directive where the 

contracting entity awards service contracts among its subsidiaries 

(see points 20 to 24 above). 

Article 12 

43. The  new  version  of  Article  12  incorporates  the  thresholds 

- 22 -

applicable to services (paragraph 1) and adapts the provisions for 

calculating  the  estimated  value  of  a  contract  to  the  specific 

characteristics of services (paragraphs 2 and 3). 

44. The thresholds are fixed at the same levels laid down  for supply 

contracts  in Directive 90/531/EEC, i.e. ECU 400 000 for contracts 

awarded  by entities operating  in the water, energy  and transport 

sectors,  and  ECU 600 000  for  contracts  awarded  by  entities 

operating in the telecommunications sector. 

Fixing  a  common  threshold  avoids  any  difficulty  linked  to  the 

classification  of  contracts  within  one  category  or  another  and 

thus  prevents  entities  from  circumventing  application  of  the 

Directive by artificially classifying a contract within a category 

to which a higher threshold applies* 

Since  many  contracts  include  both  services  and  supplies,  it  is 

also important that the contracting entity should, when estimating 

the contract value, add the respective parts together to determine 

whether  the  total  value  of  the  contract  is  greater  than  the 

threshold  (paragraph  7), 

45. These  levels also allow a not  insubstantial  proportion,  in terms 

of  value,  of  contracts  to  be  covered  and  to  eliminate  many 

low-value  contracts  which  are  unlikely  to  be  the  subject  of 

cross-border transactions* 

- 23 -

Articles 12a, 12b and 12c 

46. These Articles  introduce  the  application  of  different  procedural 

rules  depending  on  whether  the  services  concerned  are  priority 

(listed in Annex XVI A) or other  (listed in Annex XVI B) services. 

47. Priority services are subject to the full procedure set out by the 

proposal  (Article  12a)  in  the  same  way  as  works  and  supplies 

contracts.  These  rules  correspond  to  those  of  Directive 

90/531/EEC. 

48.-Other  services  will  be  subject  to  minimum  rules  (Article 12b). 

These  relate  on  the  one  hand  to  technical  specifications,  which 

must  be  as transparent  as possible  so as not  to obstruct  trade. 

Contracting entities are also required to draw up a contract award 

notice  (see  also  point 57).  These  notices  will  enable  the 

Commission  to  establish  a  solid  basis  of  information  on 

transactions  involving  the  services  in  question  and  to  examine 

whether  it would  be  appropriate  subsequently  to  extend  the  full 

procedure to them  (see also point 12). 

Article 14 

49. The  new  version  of  this  Article  merely  extends  to  services  the 

provisions  on  the  communication  of  technical  specifications 

regularly referred to by the contracting entities. 

- 24 -

Article 15 

50. Paragraph 2(b) stipulates that the award of research, experiment, 

study or development contracts without prior call for competition 

must not prejudice the competitive award of subsequent contracts, 

in  particular  where  the  latter  are  aimed,  for  example,  at  the 

series production of the result of the research, experiment, study 

or development work in question. 

51. Paragraph 2(f) extends the existing provisions for works contracts 

to services. 

52. Paragraph  2(1)  authorizes  entities  not  to  issue  a  call  for 

competition when contracts must, under national law, be awarded to 

the  winner  of  a  design  contest.  This  does  not  apply,  however, 

where the contest  in question has not been organized according to 

the rules of this Directive  (prizes lower than the threshold, for 

example). 

Article 16 

53. Article  16 deals with the methods by which a call for competition 

may  be made.  The  new version  takes  account  of  the  inclusion of 

services. 

54. In the case of design contests  (paragraph  4), the publication of a 

notice  in  the Official  Journal  is required.  The  very  nature of 

- 25 -

this method  of opening  a contract  up to competition  separates it 

from the other methods of calling for competition provided for. 

Article 17 

55. The  new  paragraph  1(c)  introduces  the  necessary  provisions  to 

ensure  that  entities,  when  publishing  the  periodic  indicative 

notice,  indicate  their  intentions  as  far  as  the  purchase  of 

services  is concerned.  The amount  above which  they  are required 

to  make  such  an  indication  is  identical  to  that  laid  down  for 

supplies, irrespective of the type of services in question. 

Article 17a 

56. This new Article deals solely with design contests. 

Where  they  are  organized  as  part  of  the  procedure  for  awarding 

supply,  works  or  service  contracts,  contracting  entities  are 

required  to  comply  with  the  rules  on  non-discrimination 

(paragraphs 2 and 3) and the organization of juries  (paragraph 4) 

irrespective of the amount of prizes or payments to participants, 

including where no payment  is to be made. 

In  contrast,  when  design  contests  are  held  as  a  separate 

procedure,  it seems appropriate to require that they be held on a 

European scale and that publication take place only in cases where 

prizes  amount  to  more  than  ECU 200 000,  thereby  limiting  the 

administrative workload  of the contracting  entities.  Paragraph 5 

- 26 -

allows  the  Member  States, by  dint  of  national  rules, to  oblige 

contracting entities to award subsequent contracts to the winners 

of a design contest. 

Article 18 

57. The  new  version  of  Article  18  applies  to  all  award  notices, 

whether  they  relate to supply, works or  service contracts, or a 

design contest. 

The provisions of Directive 90/531/EEC have thus been extended to 

services and design contests. 

However,  for  reasons  of  confidentiality,  it  is  also  stipulated 

that the  contracting  entities applying Article  15(2)(b) in order 

to  award  certain  contracts  for  the  purpose  of  research, 

experiment,  study  or  development  without  prior  call  for 

competition may decide not to supply a description of the content 

of the contract, as referred to in point 3 of Annex XV, but merely 

to  mention  the  main  title  thereof  within  the  meaning  of  the 

classification of Annex XVI. 

Article 19(5) 

58. Paragraph  5 is adapted to take account of the introduction of the 

new design contest notice. 

Article 22(1) 

59. The provisions of Article 22 apply in their entirety to services; 

- 27 -

the  new  version  of  paragraph  1 merely  introduces  the  notion  of 

"service provider". 

Article 23 

60. The  new  version  of  Article  23  merely  extends  its  provisions  to 

services. 

Articles 24 and 25 

61. Articles  24  and  25  are  applicable  in  their  entirety  to  service 

contracts;  the  amendments  which  have  been  introduced  merely  add 

the notion of "service provider". 

Article 25a 

62. It  is  in  some cases necessary  in the  area of  services to demand 

proof  from  service  providers  of  their  capacity  as  such  on  the 

basis of certificates drawn up by independent bodies. 

Article  25a  acknowledges  the  existence  of  quality  assurance 

systems and  invites contracting entities to refer to the EN 29000 

and EN 45000 European Standards series. 

To  prevent  such  proof  from  obstructing  trade,  and  in  compliance 

with  the  judgment  of  the  Court  of  Justice  in  the  "Dundalk" 

Case,(i)  Article  25a  also  stipulates  that  the  contracting 

(1) 

Case 45/87 - R, 13.3.1987. 

- 28 -

entities  must  recognize  equivalent  certificates  issued  in  other 

Member  States, unless  they  are  able to  indicate  the  reasons why 

such certificates are unsuitable for the purposes of the contract 

in question. 

Article 26 

63. Some national  laws prohibit  legal persons from providing services 

or impose restrictive conditions on such persons  (either regarding 

the  establishment  itself  or  the  activities  pursued).  The  new 

provisions  of  Article  26(2)  and  (3)  correspond  to  those  of  the 

public services proposal.  In line with the case law of the Court 
of Justice,  in particular  its judgment  in the  "Webb" Case,1 they 

require  contracting  authorities  to  take  account  also  of  tenders 

submitted by legal persons provided they comply with the rules of 

the country  in which they are established.  This does not prevent 

the contracting entity from demanding a given level of training on 

the  part  of  service  providers  or  from  assessing  the  content  of 

each offer. 

Article 27 

64. This  Article  is  concerned  with  award  criteria.  The  two  main 

criteria already adopted  for works and supply contracts, i.e. the 

lowest  price  or  the  most  economically  advantageous  tender,  are 

applied to services. 

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

- 29 -

Although price is not normally the most determining factor in the 

area of services, it has proved necessary to ensure  (in paragraph 

1)  that  these  provisions  do  not  prejudice  national  regulations 

which  impose  compulsory  scales  of  remuneration.  Even  if  price 

competition  cannot operate  fully  in all the Member  States, these 

differences  do  not  apparently  constitute  an  obstacle  to 

cross-border trade. 

65. Some  suppliers  in the area of services are public authorities or 

public 

undertakings.  These  might  therefore 

exploit 

the 

competitive advantages accruing from their status.  The purpose of 

paragraph 6 is not to have contracting entities check the conduct 

of  public  authorities  or  undertakings,  but  rather  to  guarantee 

that the contracting entity is fully informed of the importance of 

public funds in a tender submitted by a public supplier. 

Article 29a 

66. Opening the contracts covered by this Directive up to competition 

will make it easier for non-Community firms to gain access to the 

European  market.  However,  in  the  absence  of 

specific 

international  rules  governing  trade  in  services,  there  is  no 

guarantee  that  third  countries  will  grant  Community  firms 

comparable access to their markets. 

- 30 -

It should be remembered that, although there is a risk that trade 

will be distorted to the Community's detriment, this risk is less 

great  in  the  case  of  services  than  in  that  of  supply  contracts 

since a sizeable proportion of the services concerned  will often 

have to be provided on the Community's actual territory. 

For  this  reason,  and  because  of  the  absence  of  Community  rules 

defining the origin of all services, it does not seem warranted to 

extend the provisions of Article 29 of Directive 90/531/EEC to the 

service contracts covered by this Directive.  However, in order to 

avoid opening up service contracts unilaterally to the Community's 

detriment,  Article  29a  introduces  arrangements  applicable  solely 

to  the  services  covered  by  this  Directive  which  enable  the 

Commission  to  attempt  to  solve  by  negotiation  any  problems  of 

access to third-country markets which may arise.  Paragraph 4 also 

allows  the  Commission,  acting  in  consultation  with  the  Advisory 

Committee, to take measures to limit access by third-country firms 

where  it  is  established  that  the  countries  in  question  prevent 

Community  firms from entering their markets.  The Council may, by 

a qualified majority, decide to amend these measures. 

Article 30(1) 

67. Deletion  of  the word  "software" does  not  alter  the  scope of the 

provisions  of  Article  30  applicable  to the  contracts  covered  by 

Directive  90/531/EEC,  but  allows  them  to be  extended  to  service 

contracts. 

- 31 -

Article 33(1)(a) 

68. The provisions of Article 33 are applicable  in their entirety to 

services; point  (a) simply  incorporates the  notion  of  "providers 

of services". 

Article 37 

69. These  Articles  set  out  the  deadlines  for  implementation  of  this 

Directive.  In  view  of  the  transitional  periods  retained  in 

Directive  90/531/EEC  for  3  Member  States,  it  would  clearly  be 

impractical  for  the  present  Directive  to  enter  into  force  any 

earlier and the time limits have been adapted accordingly. 

- 32 -

Correlation table 

SERVICES DIRECTIVE 

COM  (90) 372 
; 

; 

1(a) 

1(9) 

EXCLUDED SECTORS 
SERVICES DIRECTIVE 

— 

, 
Article 1 
(3)  affiliated  undertaking 
(4)  service contracts 
(5)  framework agreements 
(6)  tenderer 
(7)  procedures 
(8)  specifications 
(16) design contests 

Article 3  (2) (a) 
alternative arrangements 
applicable to oil/gas/coal 

Article 4 
application of the non- 
discrimination  procedures 

Article 6 
contracts & design contests 
linked to the activity 
mentioned 

Article 7 
(a) exclusion of services 

linked to competing 
products 

(b) exclusion of contracts 
intended  for competing 
services 

Article 10 a 
single source of supply 

7 

Article 11 
special procurement rules 

Article 11 a 
intra-group transactions 

Article 12 
(1)  thresholds 
(2)  calculation of the 
value of contracts 

(3)  services 
(4.12) calculation of the 

value of contracts 

Articles  12 a  , 12 b  and 
12 c 
two-tier application 

Article 14 
communication of technical 
specifications 

8(2) 
8(4) 

9, 10 and 11 

DIRECTIVE 90/531/EEC 

T_ 

adaptation of Article 1(4) 
adaptation of Article 1(5) 
adaptation of Article 1(6) 
adaptation of Article 1(7) 
adaptation of Article 1(6) 

adapt, of Article 3(2)(a) 

adaptation of  Article 4 

adaptation of Article 6 

adaptation of Article 7 (1) 

adaptation of Article 11 

adapt, of Article 12  (1) 

adaptation of Article 
12(2 to 9) 

adaptation of Article 14 

- 33 -

Article 15 
(2) procedures without call 

for competition 
(b) R &D  contracts 
(c) contracts with techni- 
cal specifications 
(f) additional  service 

contracts 

(1) contract  following a 

12  (3) (c) 

design contest 

Article 16 
(1)  means of making calls 
for competition 
(4)  calls for competition 

of design contests 

Article 17  (1) (c) 
periodic notice 

Article 17  (a) 
design contests 

Article 18 
(1) notice on contracts 

awarded 

(3) publication of  information 

16 (4) 

14 

Article 19  (5) 
publication 

Article 22  (1) 
request  for contract 
documents 

Article 23  (1) 
social clause 

Article 24 
qualification system 

Article 25 
selection of candidates 

Article 25 a 
certification / quality 
assurance 

29 

Article 26 
(2-3) natural/legal persons 

22(2-3) 

Article 27 
(1)  award criteria 
(6)  tenders submitted by 

public authorities/ 
public undertakings 

32(1) 
33(2) 

adaptation of Art  15(2)(b) 
adaptation of Article 
15  (2) (c) 
adaptation of Article 
15  (2) (f) 

adaptation of Article 16 

adaptation of Article 17(1) 

adaptation of Article 18 

adapt, of Article 19 (5) 

adapt, of Article 22  (1) 

adapt, of Article 23  (1) 

adaptation of Article 24 

adaptation of Article 25 

- 34 -

Article 29 a 
tenders originating  in third 
countries  (services) 

37 

Article 30  (1) 
value in national currencies 

Article 33  (1) 
keeping of information 

Article 37 
Date of application 

Article 37 a 
reference to the directive 

ARTICLE 2 
Consolidated  Directive 

ARTICLES 3, 4 and 5 
entry  into force 

Annex XII 
open, restricted and 
negotiated procedure notices 

Annex XIV 
periodic  information notice 

Annex XV 
notice on contracts awarded 

Annex XVI 
A. services in the sense of 

article 12a 

B. services in the sense of 

article 12b 

Annex I 
A. 
B. 

Annex XVII 
design contest notices 

Annex IV A 

Annex XVIII 
results of design contests 

Annex IV B 

adaptation of Article 30 

adapt, of Article 33  (1) 

adapt, of Article 37  (1) 

adaptation of Annex XII 

adaptation of Annex XIV 

adaptation of Annex XV 

- 35 -

Proposal for a 

COUNCIL DIRECTIVE 

amending Directive 90/531/EEC 

on the procurement procedures of entities 

operating in the water, energy, transport 

and telecommunications sectors 

THE COUNCIL OF THE EUROPEAN COMMUNITIES, 

Having  regard  to  the  Treaty  establishing  the  European  Economic 

Community  and  in  particular  the  last  sentence  of  Article 57(2), 

Article 66, Article 100a and Article 113 thereof, 

Having regard to the proposal from the Commission^), 

In cooperation with the European Parliament(2)t 

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

Whereas restrictions on the free movement of goods and on the freedom 

to provide services in respect of supply and service contracts awarded 

in  the  water,  energy,  transport  and  telecommunications  sectors  are 

prohibited by the terms of Articles 30 and 59 of the Treaty; 

(1)  OJ No C 

(2)  OJ No C 

(3)  OJ No C 

- 36 -

Whereas  Article 97  of  the  Euratom  Treaty  prohibits  any  restrictions 

based on nationality as regards companies under the jurisdiction of a 

Member  State where they desire to participate  in the construction of 

nuclear  installations of a scientific or industrial nature or provide 

the relevant services in the Community; 

Whereas  the  White  Paper  on  the  completion  of  the  internal  market 

contains  an  action  programme  and  a  time-table  for  opening  up 

procurement markets in services; 

Whereas  the  awarding  procedures  of  service  contracts  should  be  as 

similar  as  possible  to  the  procedures  applicable  to  the  works  and 

supply contracts covered by Council Directive"* 90/531/EECfà) ; 

Whereas  service  providers  may  be  natural  or  legal  persons  without 

prejudice  to  the  national  rules  of  their  country  of  establishement 

that are compatible with the Treaty; 

Whereas  the  field  of  services  is best described,  for the purpose of 

application  of  procurement  rules,  and  for  monitoring  purposes,  by 

subdividing  it  into categories  corresponding  to particular  positions 

of the Central Product Classification (CPC); 

Whereas the provision of services is covered by Directive 90/531/EEC 

only in so far as it is based on contracts;  whereas the provision of 

services  on  other  bases,  such  as  law  or  regulations, or  employment 

contracts, is not covered; 

Whereas  as  far  as  research  and  development  (R&D)  is  concerned, 

Directive  90/531/EEC  only  covers  R&D  services  whose  results  accrue 

exclusively to the contracting entity; 

(1)  OJ No L 297, 29.10.1990, p. 1. 

- 37 -

Whereas  contracts relating  to the acquisition or rental of  immovable 

property  have particular  characteristics, which make  the  application 

of procurement rules inappropriate; 

Whereas arbitration  and conciliation services are usually provided by 

bodies  or  individuals which  are agreed  on, or  selected,  in a manner 

which cannot be governed by procurement rules; 

Whereas contracts with a designated  single source of supply may under 

certain  conditions  be  fully  or  partly  exempted  from  Directive 

90/531/EEC; 

Whereas  full application of Directive 90/531/EEC must be limited, for 

a  transitional  period,  to  contracts  for  those  services  where  its 

provisions will enable the full potential for increased cross-frontier 

trade to be realised;  whereas contracts for other services need to be 

monitored  for  a certain  period  before  taking  a decision  on  the  full 

application  of  the  said  Directive;  whereas  the  mechanism  for  such 

monitoring  needs  to  be  set  up  by  the  said  Directive;  whereas  it 

should at the same time enable those interested to share the relevant 

information; 

Whereas  the  relevant  Community  rules  on  mutual  recognition  of 

diplomas,  certificates  or  other  evidence  of  formal  qualifications 

apply  when  evidence  of  a  particular  qualification  is  required  for 

participation in an award procedure or a design contest; 

Whereas  Community  undertakings  should be granted  access to the award 

of  service  contracts  in  non-member  countries;  whereas  negotiations 

may be initiated  to that effect when such access, in law or  in fact, 

is found to be restricted;  whereas the possibility should exist under 

certain  conditions  to  take  measures  as  regards  access  to  service 

contracts subject to Directive 90/531/EEC by undertakings of the non-

member country concerned or by tenders originating in that country; 

HAS ADOPTED THIS DIRECTIVE : 

- 38 -

Article 1 

Directive 90/531/EEC is hereby amended as follows: 

1. 

In Article 1, point 3 is replaced by the following: 

"3) "affiliated  undertaking"  shall  mean  any  undertaking  whose 

annual  accounts  are  consolidated  with  those  of  the 

contracting  entity  in  accordance  with  the  requirements  of 

Council  Directive  83/349/EEC*  or,  in  case  of  contracting 

entities not subject to that Directive, any undertaking over 

which  the  contracting  entity  may  exercise,  directly  or 

indirectly, a dominant influence within the meaning of point 

2,  or  which  may  exercise  a  dominant  influence  over  the 

contracting entity or which, in common with the contracting 

entity,  is  subject  to  the  dominant  influence  of  another 

undertaking by virtue of ownership, financial participation, 

or the rules which govern it. 

*OJ No L 193, 18.7.1983, p. 1." 

2. 

In  Article  1,  former  points  3  to  7  are  replaced  by  the 

following: 

"4) "supply, works  and  service  contracts"  shall mean  contracts 

for  pecuniary  interest  concluded  in  writing  between  a 

supplier, a contractor or a service provider and one of the 

contracting entities defined  in Article 2, to the exclusion 

of 

- 39 -

i)  contracts  for  the  acquisition  or  rental, by  whatever 

financial means, of land, existing buildings, or other 

immovable property or concerning rights therein; 

ii)  contracts  for  voice  telephony,  telex,  radiotelephony, 

paging and satellite services ; 

iii)  contracts for arbitration and conciliation services. 

These contracts have as their object : 

a) in  the  case  of  supply  contracts,  the  purchase,  lease, 

rental or hire purchase, with or without  options to buy, 

of products; 

b) in the case of works contracts, either the execution, or 

both  the  execution  and  design  or  the  realization,  by 

whatever  means,  of  building  or  civil  engineering 

activities referred to in Annex XI.  These contracts may, 

in  addition,  cover  supplies  and  services  necessary  for 

their execution; 

c) in the case of service contracts, any other provision. 

Contracts  which  include  the  provision  of  services  and 

supplies  shall be regarded  as supply  contracts  if the total 

value of  supplies  is greater than the value of the services 

covered by the contract; 

5) "framework agreement" shall mean an agreement between one of 

the contracting entities defined in Article 2 and one or more 

suppliers,  contractors  or  service  providers  the  purpose  of 

- 40 -

which is to establish the terms, in particular with regard to 

the  prices  and, where  appropriate,  the  quantity  envisaged, 

governing the contracts to be awarded during a given period; 

6) "tenderer"  shall  mean  a  supplier,  contractor  or  service 

provider  who  submits  a tender  and  "candidate"  shall  mean a 

person  who  has  sought  an  invitation  to  take  part  in  a 

restricted or negotiated procedure ; service providers may be 

either  natural  or  legal  persons,  including  contracting 

entities within the meaning of Article 2; 

7) "open, restricted  and  negotiated  procedures"  shall mean the 

award procedures applied by contracting entities whereby: 

a)  in  the  case  of  open  procedures,  all  interested 

suppliers, contractors or service providers may submit 

tenders; 

b)  in  the  case  of  the  restricted  procedures,  only 

candidates invited by the contracting entity may submit 

tenders; 

c)  in the  case of negotiated  procedures, the  contracting 

entity  consults  suppliers,  contractors  or  service 

providers of its choice and negotiates the terms of the 

contract with one or more of them; 

8) "technical  specifications"  shall  mean  the  technical 

requirements contained in particular in the tender documents, 

defining  the  characteristics  of  a  set  of  works, material, 

product, supply or a service, and enabling a piece of work, a 

material, a product, a supply or a service to be objectively 

described  in a manner such that it fulfils the use for which 

- 41 -

it  is  intended  by  the  contracting  entity.  These  technical 

prescriptions  may  include  quality,  performance,  safety  or 

dimensions,  as  well  as  requirements  applicable  to  the 

material,  product,  supply  or  a  service  as  regards  quality 

assurance,  terminology,  symbols,  testing  and  test  methods, 

packaging,  marking  or  labelling.  In  the  case  of  works 

contracts,  they  may  also  include  rules  for  the  design  and 

costing, the test, inspection  and  acceptance  conditions  for 

works and methods or techniques of construction and all other 

technical  conditions  which  the  contracting  entity  is  in  a 

position to prescribe under general or specific regulations, 

in  relation  to  the  finished  works  and  to  the  materials  or 

parts which they involve;" 

3. 

In Article 1, points 8 to 14 become points 9 to 15. 

4. 

The following paragraph is added to Article 1: 

"16)  "design contests" shall mean the procedures which  aim at 

providing  the  contracting  entity  with  a plan  or  design, 

mainly in the fields of architecture, civil engineering or 

data processing, and which are selected  by a jury on the 

basis of competition with or without the award of prizes." 

5. 

Article 3(2)(a) is replaced by the following: 

"a) observes  the  principles  of  non-discrimination 

and 

competitive procurement in respect of the award of supplies, 

works  and  service  contracts,  in particular  as  regards  the 

information that the entity makes available to undertakings 

concerning its procurement intentions;" 

- 42 -

6. 

Article 4 is replaced by the following: 

"Article 4 

1) When  awarding  supply,  works  or  service  contracts,  or 

organizing  design  contests,  the  contracting  entities  shall 

apply procedures which are adapted to the provisions of this 

Directive. 

2) Contracting  entities  shall  ensure  that  there  is  no 

discrimination  between  different  suppliers,  contractors  or 

service providers. 

3) In  the  context  of  provision  of  technical  specifications to 

interested  suppliers,  contractors  or  service  providers  of 

qualification  and  selection  of  suppliers,  contractors  or 

service  providers  and  of  award  of  contracts,  contracting 

entities  may  impose  requirements  with  a  view  to  protecting 

the  confidential  nature  of  information  which  they  make 

available. 

4) The provisions of this Directive shall not limit the right of 

suppliers,  contractors  or  service  providers  to  require  a 

contracting  entity,  in  conformity  with  national  law,  to 

respect  the  confidential  nature  of  information  which  they 

make available." 

7. 

Article 6(1) and (2) are replaced by the following: 

"1) This  Directive  shall  not  apply  to  contracts  or  design 

contests  which  the  contracting  entities  award  or  organize 

for purposes other than the pursuit of their activities as 

-  43 -

described  in  Article  2(2)  or  for  the  pursuit  of  such 

activities  in  a  non-member  country,  in  conditions  not 

involving  the physical use of a network or geographical  area 

within the  Community. 

2) However,  this  Directive  shall  apply  to  contracts  or  design 

contests  awarded  or  organized  on  behalf  of  the  entities 

which exercise  an activity  referred  to  in Article  2(2)(a)(i) 

and which  : 

(a)  are  connected  with  hydraulic  engineering  projects, 

irrigation  or  land  drainage,  provided  that  the  volume 

of  water  intended  for  the  supply  of  drinking  water 

represents  more  than  20%  of  the  total  volume  of  water 

made  available  by  these  projects  or  irrigation  or 

drainage  installations; or 

(b)  are  connected  with  the  disposal  or  treatment  of 

sewage." 

8. 

Article 7(1) is replaced by the  following: 

"1) The provisions of this Directive  shall not  apply to : 

a) 

contracts  awarded  for  purposes  of  re-sale  or  hire  to 

third  parties,  provided  that  the  contracting  entity 

enjoys  no  special  or  exclusive  right  to  sell  or  hire 

the  subject  of  such  contracts  and  other  entities  are 

free  to  sell  or  hire  it  under  the  same  conditions  as 

the contracting  entity; 

b) 

service  contracts  directly  relating  to  the  re-sale  or 

hire mentioned  under a ) ." 

- 44 -

9.  The following Article 10a is inserted: 

"Article 10a 

The provisions of this Directive shall not apply to the award of 

service contracts which contracting entities have to award to an 

entity which  is itself a contracting entity within the meaning 

of  Article  1(b)  of  Directive  ../.../EEC(*)  pursuant  to  an 

exclusive  right  established  by  a published  law, regulation  or 

administrative provision which is compatible with the Treaty. 

(*) OJ No C 23, 31.1.1991, p. 1." 

10.  Point 1 of Article 11  is replaced by the following: 

"1. pursuant  to  an  international  agreement  concluded  in 

conformity with the Treaty between a Member State and one or 

more third countries and covering supplies, works, services 

or design contests intended  for the joint  implementation or 

exploitation  of  a  project  by  the  signatory  States; every 

agreement shall be communicated to the Commission, which may 

consult the Advisory  Committee  for Public  Contracts  set up 

by  Council  Decision 71/306/EEC(*),  as  last  amended  by 

Decision 77/63/EEc(2)t  or,  in  the  case  of  agreements 

governing  contracts  awarded  by  entities  exercising  an 

activity defined  in Article 2(2)(d), the Advisory Committee 

on Telecommunications Procurement referred to in Article 31; 

(1)  OJ No L 185, 16.8.1971, p. 15. 

(2)  OJ No L 13, 15.1.1977, p. 15." 

- 45 -

11.  The following Article 11a is inserted: 

"Article 11a 

1. This  Directive  shall  not  apply  to  contracts  for  services 

which 

a) a contracting entity awards to an affiliated undertaking; 

b) are  awarded  by  a  joint  venture  formed  by  a  number  of 

contracting  entities  for  the  purpose  of  carrying  out  a 

relevant activity within the meaning of Article 2(2) to an 

undertaking  which  is  affiliated  with  one  of  these 

contracting entities; 

provided  that  at  least  85% of the  average turnover  of that 

undertaking  arising  within  the  Community  for  the  preceding 

three  years  derives  from  the  provision  of  such  services to 

undertakings with which it is affiliated. 

2. The  contracting  entities  notify  the  Commission,  at  its 

request, the following  information regarding the application 

of the provisions of paragraph 1 : 

the names of the undertakings concerned; 

-  the nature and value of the service contracts involved; 

-  such  proof  as may  be  deemed  necessary  by  the  Commission 

that the relationship between the undertaking to which the 

contracts  are  awarded  and  the  contracting  entity  is  in 

conformity with the requirements of this Article." 

- 46 -

12.  Article 12 is replaced by the following: 

"Article 12 

1) This  Directive  shall  apply  to  contracts  whose  estimated 

value, net of VAT, is not less than : 

a) ECU  400 000  in the  case of  supply  and  service  contracts 

awarded  by  entities  carrying  out  an  activity  defined  in 

Article 2(2)(a), (b) and (c); 

b) ECU  600 000  in the  case of  supply  and  service  contracts 

awarded  by  entities  carrying  out  an  activity  defined  in 

Article 2(2)(d); 

c) ECU 5 000 000 in the case of works contracts. 

2) The estimated  value of a service contract  shall  include the 

total remuneration of the service provider.taking account of 

the elements specified in paragraphs 3 to 12. 

3) In  assessing  the  estimated  contract  value  of  financial 

services, the following amounts shall be taken into account: 

as regards insurance services, the premium payable; 

-  as  regards  banking  and  other  financial  services,  fees, 

commissions, interest and other types of remuneration. 

4) In the  case  of  supply  contracts  for  lease, rental  or hire-

purchase,  or  of  service  contracts  not  indicating  the  total 

cost, the basis for calculating the contract value shall be: 

-  47 -

a) in  the  case  of  fixed-term  contracts, where  their  term  is 

twelve  months  or  less,  the  estimated  total  value  for  the 

contract's  duration,  or,  where  their  term  exceeds  twelve 

months, the contract's total value  including the  estimated 

residual value; 

b) in  the  case  of  contracts  for  an  indefinite  period  or  in 

cases  where  there  is  doubt  as  to  the  duration  of  the 

contracts, the anticipated  total  instalments to be paid  in 

the  first  four years. 

5) Where  a  proposed  supply  or  service  contract  expressly 

specifies  option  clauses,  the  basis  for  calculating  the 

contract  value  shall  be  the highest  possible  total  purchase, 

lease,  rental  or  hire-purchase  permissible,  inclusive  of  the 

option clauses. 

6) In  the  case  of  a  procurement  of  supplies  or  services  over  a 

given  period  by means of  a series of  contracts  to  be  awarded 

to  one  or  more  suppliers  or  of  contracts  which  are  to  be 

renewed,  the  contract  value  shall  be  calculated  on  the  basis 

of: 

a) the  total  value  of  contracts  which  had 

similar 

characteristics  awarded  over  the  previous  fiscal  year  or 

twelve  months,  adjusted  where  possible  for  anticipated 

changes  in  quantity  or  value  over  the  subsequent  twelve 

months; 

b) or  the  aggregate  value  of  contracts  to  be  awarded  during 

the  twelve months  following  the  first  award  or  during  the 

whole  term  of  the  contract,  where  this  is  longer  than 

twelve months. 

- 48 -

7) The basis for calculating the estimated value of  a contract 

including  both  supplies  and  services,  shall  be  the  total 

value  of  the  supplies  and  services  regardless  of  their 

respective values. 

8) The basis for calculating the value of a framework agreement 

shall  be  the  estimated  maximum  value  of  all  the  contracts 

envisaged for the period in question. 

9) The basis for calculating the value of a works contract  for 

the purposes of paragraph 1 shall be the total value of the 

work.  "Work"  shall  mean  the  building  and  engineering 

activities  taken  as  a whole that  are  intended  to  fulfil an 

economic function by themselves. 

In particular, where a supply, work or service is the subject 

of  several  lots, the value of  each  lot shall be taken  into 

account when assessing the value referred to in paragraph 1. 

Where the aggregate value of the lots equals or exceeds the 

value laid down in paragraph 1, that paragraph shall apply to 

all  the  lots.  However,  in  the  case  of  works  contracts, 

contracting entities may derogate from paragraph 1 in respect 

of  lots  whose  estimated  value  net  of  VAT  is  less  than 

ECU 1 million,  provided  that  the  aggregate  value  of  those 

lots does not exceed 20% of the overall value of the lots. 

10) For the purposes of paragraph 1, contracting  entities  shall 

include in the estimated value of a works contract the value 

of  any  supplies  or  services  necessary  for the  execution of 

the works which they make available to the contractor. 

- 49 -

11) The value of supplies or services which are not necessary for 

the execution of a particular works contract may not be added 

to  that  of  the  contract  with  the  result  of  avoiding 

application  of  this  Directive  to  the  procurement  of  those 

supplies. 

12) Contracting  entities  may  not  circumvent  this  Directive  by 

splitting  contracts  or using  special methods  of  calculating 

the value of contracts." 

13.  The following Title la is inserted: 

"Title la 

TWO-TIER APPLICATION 

Article 12a 

Supply  and  works  contracts  and  contracts  which  have  as  their 

object  services  listed  in  Annex XVIA  shall  be  awarded  in 

accordance with the provisions of Titles II, III and IV. 

Article 12b 

Contracts  which  have  as  their  object  services  listed  in 

Annex XVIB  shall be awarded  in accordance with Articles  13 and 

18. 

- 50 -

Article 12c 

Contracts  which  have  as  their  object  services  listed  in  both 

Annexes  XVIA  and  XVIB  shall be  awarded  in  accordance  with the 

provisions  of  Titles  II,  III  and  IV  where  the  value  of  the 

services  listed  in Annex XVIA  is greater than the value of the 

services listed in Annex XVIB. 

Where this is not the case, they shall be awarded  in accordance 

with Articles 13 and 18." 

14.  Article 14 is replaced by the following: 

"Article 14 

1) Contracting  entities  shall  make  available  on  demand  to 

suppliers,  contractors  or  service  providers  interested  in 

obtaining  a  contract  the  technical  specifications  regularly 

referred  to  in their  supply,  works  or  service  contracts  or 

the  technical  specifications which  they  intend  to  apply  to 

contracts covered by periodic  information notices within the 

meaning of Article 17. 

2) Where  such  technical  specifications  are  based  on  documents 

available  to  interested  suppliers,  contractors  or  service 

providers  a  reference  to  those  documents  shall  be 

sufficient". 

15.  Article 15(2)(b) is replaced by the following: 

"b) where  a  contract  is  purely  for  the  purpose  of  research, 

experiment,  study or development and not for the purpose of 

ensuring  profit  or  of  recovering  research  and  development 

costs  and  insofar  as  the  award  of  such  contract  does  not 

prejudice  the  competitive  award  of  subsequent  contracts 

which have in particular these purposes;" 

- 51 -

16.  Article 15(2)(c) is replaced by the following: 

"c) when,  for  technical  or  artistic  reasons,  or  for  reasons 

connected with protection of exclusive rights, the contract 

may be executed only by a particular supplier, contractor or 

service provider;" 

17.  Article 15(2)(f) is replaced by the following: 

"f) for additional works or services not included in the project 

initially  awarded  or  in  the  contract  first  concluded  but 

which  have,  through  unforeseen  circumstances,  become 

necessary  for the  execution  of  the  contract, on  condition 

that  the  award  is  made  to  the  contractor  executing  the 

original contract: 

- when  such  additional  works  or  services  cannot  be 

technically  or  economically  separated  from  the  main 

contract  without  great  inconvenience  to  the  contracting 

entities; 

- or  when  such  additional  works  or  services,  although 

separable from the execution of the original contract, are 

strictly necessary to its later stages;" 

18.  The following point is added to Article 15(2): 

"1) when the service contract concerned is part of the follow-up 

to  a  design  contest  organized  in  conformity  with  the 

provisions  of  this  Directive  and  must,  in  accordance  with 

the relevant rules, be awarded to one of the winners of that 

contest, provided that all the winners are included  in the 

procedure." 

- 52 -

19.  Article 16(1) is replaced by the following: 

"1) In the case of supply, works or service contracts, the call 

for competition may be made: 

a) by  means  of  a  notice  drawn  up  in  accordance  with 

Annex XII A, B or C; or 

b) by  means  of  a  periodic  indicative  notice  drawn  up  in 

accordance with Annex XIV; or 

c) by means of a notice on the existence of a qualification 

system drawn up in accordance with Annex XIII." 

20.  Article 16(2)(a) is replaced by the following: 

"a) the notice must refer specifically to the supplies, works or 

services  which  will  be  the  subject  of  the  contract  to  be 

awarded;" 

21.  In Article 16, paragraph 4 is replaced by the following: 

"4) in  the  case  of  design  contests, the  call  for  competition 

shall be made  by means of  a notice drawn up  in accordance 

with Annex XVII." 

22.  In Article 16, former paragraph 4 becomes paragraph 5. 

23.  The following paragraph (c) is added to Article 17(1): 

"c) in the case of service contracts, the estimated total value 

of  the  service  contracts  in  each  of  the  categories  of 

services  listed  in Annex  XVIA  which  they  intend  to  award 

- 53 -

over  the  following  12  months, where  such  estimated  total 

value, taking into account the provisions of Article 12, is 

equal to or greater than ECU 750 000." 

24.  The following Article 17a is inserted: 

"Article 17a 

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

However,  when  design  contests  are  held  as  a  separate 

procedure,  these  rules  are  applicable  only  when  the  total 

amount of contest prizes and payments to participants  is not 

less than ECU 200 000. 

2) The admission of participants to design contests shall not be 

limited  by  reference  to  the  territory  or  part  of  the 

territory of a Member State. 

3) In  the  case  of  design  contests  with  a  limited  number  of 

participants, contracting  entities  shall  apply  the  rules of 

Article 25. 

4) The  jury  shall  be  composed  only  of  persons  who  have  no 

financial  connections  or  special  relationships  with 

participants  in  the  contest.  Whenever  a  particular 

professional qualification is required from participants in a 

contest, the majority of the jury members shall have the same 

qualifications.  The  jury  shall  be  autonomous  in  its 

decisions.  It  shall  take  its  decisions  based  on  projects 

presented  in an anonymous way, and  solely on the grounds of 

the criteria  indicated  in the invitation  for projects within 

the meaning of Annex XVII. 

- 54 -

5) Member  States  may  oblige  contracting  entities  to  award 

subsequent  contracts  to  one  of  the  winners  of  a  design 

contest." 

25.  Article 18 is replaced by the following: 

"Article 18 

1) Contracting  entities  which  have  awarded  a  contract  or 

organised  a  design  contest  shall  communicate  to  the 

Commission, within  two months  of  the  award  of  the  contract 

and  under  conditions  to  be  laid  down  by  the  Commission  in 

accordance  with  the procedure  laid  down  in Article  32, the 

results of the awarding procedure by means of a notice drawn 

up in accordance with Annex XV or Annex XVIII. 

2) Information  provided  under  Section I  of  Annex XV  or  under 

Annex XVIII shall be published in the Official Journal of the 

European Communities. In this connection the Commission shall 

respect  any  sensitive  commercial  aspects  the  contracting 

entities  may  point  out  when  forwarding  this  information  in 

connection with points 6 and 9 of Annex XV. 

3) The  contracting  entities  applying  the provisions  of Article 

15(2)(b) or awarding service contracts listed in Annex XVIB, 

may,  concerning  point  3 of Annex  XV, only mention  the main 

title  thereof  within  the  meaning  of  the  classification  of 

Annex XVI. 

4) Information provided under Section II of Annex XV must not be 

published  or  mentioned  in  the  periodic  reports  except,  in 

aggregated form, for statistical purposes." 

- 55 -

26.  Article 19(5) is replaced by the following: 

"5) Contracts or design contests in respect of which a notice is 

published  in  the  Official  Journal  of  the  European 

Communities pursuant to Article 16(1) or Article 16(4) shall 

not  be  published  in  any  other  way  before  that  notice  has 

been dispatched  to the Office  for Official  Publications of 

the  European  Communities.  Such  publication  shall  not 

contain  information  other  than  that  published  in  the 

Official Journal of the European Communities." 

27.  Article 22(1) is replaced by the following: 

"1. Provided they have been requested in good time, the contract 

documents  and  supporting  documents  must  be  sent  to  the 

suppliers,  contractors  or  service  providers  by  the 

contracting  entities  as  a general  rule within  six  days of 

receipt of the application." 

28.  Article 23 is replaced by the following: 

"Article 23 

1. The contracting  entity may  state  in the contract documents, 

or be obliged  by  a Member State  so to do, the authority  or 

authorities from which a tenderer may obtain the appropriate 

information  on  the  obligations  relating  to  the  employment 

protection provisions and the working conditions which are in 

force  in the Member  State, region or  locality  in which the 

works or services are to be executed  or performed  and which 

shall be applicable to the works carried out or the services 

performed on site during the performance of the contract. 

2) A contracting entity which supplies the information referred 

to  in  paragraph  1  shall  request  the  tenderers  or  those 

- 56 

participating  in  the  contract  procedure  to  indicate  that 

they  have  taken  account, when  drawing  up their  tender, of 

the obligations relating to employment protection provisions 

and the working conditions which are in force in the place 

where  the  work  or  the  service  is  to  be  carried  out  or 

performed.  This  shall  be  without  prejudice  to  the 

application of the provisions of Article  27  (5) concerning 

the examination of abnormally low tenders". 

29.  In  Article  24,  paragraphs  (1),  (3),  (5),  (7)  and  (8)  are 

replaced by the following: 

"1) Contracting entities which so wish may establish and operate 

a  system  of  qualification  of  suppliers,  contractors  or 

service providers." 

"3) The  rules  and  criteria  for  qualification  shall  be  made 

available on request to interested suppliers, contractors or 

service providers.  The updating of these criteria and rules 

shall  be  communicated  to  the  interested  suppliers, 

contractors  and  service  providers.  Where  a  contracting 

entity  considers  that  the  qualification  system  of  certain 

third  entities  or  bodies  meet  its  requirements,  it  shall 

communicate to interested suppliers, contractors and service 

providers the names of such third entities or bodies." 

"5) In reaching their decision as to qualification or when the 

criteria  and  rules  are being  updated,  contracting  entities 

may not: 

impose  conditions  of  an  administrative,  technical  or 

financial  nature  on  some  suppliers, contractors  or  service 

providers that are not imposed on others; 

-  require  tests  or  proof  that  duplicate  objective  evidence 

already available." 

- 57 -

"7) A  written  record  of  qualified  suppliers,  contractors  or 

service providers shall be kept, and it may be divided into 

categories  according to the type of contract  for which the 

qualification is valid. 

8) Contracting  entities  may  bring  the  qualification  of  a 

supplier, contractor or service provider to an end only for 

reasons  based  on  the  criteria  referred  to  in  paragraph 2. 

The  intention  to  bring  qualification  to  an  end  must  be 

notified  in writing to the supplier, contractor  or  service 

provider  beforehand,  together  with  the  reason  or  reasons 

justifying the proposed action." 

30.  Article 25(1) is replaced by the following: 

"1) Contracting  entities  which  select  candidates  to  tender  in 

restricted  procedures  or  to  participate  in  negotiated 

procedures  shall do so according  to objective  criteria and 

rules  which  they  lay  down  and  which  they  shall  make 

available  to  interested  suppliers,  contractors  or  service 

providers." 

31.  The following Article 25a is inserted: 

"Article 25a 

Should entities require the production of certificates drawn up 

by  independent  bodies  for  attesting  conformity  of  the  service 

provider  to  certain  quality  assurance  standards,  they  shall 

refer  to  quality  assurance  systems  based  on  the  relevant  EN 

29000 European  standards  series certified  by  bodies conforming 

to  the  EN  45000  European  standards  series.  Entities  shall 

recognise  equivalent  certificates  from  bodies  established  in 

other Member States. 

- 58 -

They  shall  also  accept  other  evidence  of  equivalent  quality 

assurance measures from service providers who have no access to 

such  certificates,  or  no  possibility  of  obtaining  them  within 

the relevant time limits." 

32.  Article 26 is replaced by the following: 

"Article 26 

1) Groupings  of  suppliers,  contractors  or  service  providers 

shall be permitted to tender or negotiate. The conversion of 

such  groupings  into  a  specific  legal  form  shall  not  be 

required in order to submit a tender or to negotiate, but the 

grouping  selected may be required  so to convert  itself once 

it  has  been  awarded  the  contract  where  such  conversion  is 

necessary for the proper performance of the contract. 

2) Candidates  or  tenderers  who,  under  the  law  of  the  Member 

State  in which  they  are  established,  are  entitled  to  carry 

out  the relevant  service activity,  shall not be rejected  on 

the  sole grounds that  under  the  law of the Member  State  in 

which the contract  is awarded  they would  have been  required 

to be either a natural or a legal person. 

3) Legal  persons may  be  required  to  indicate  in the  tender or 

the  request  for  participation,  the  names  and  relevant 

professional  qualifications  of  the  staff  to  be  responsible 

for the performance of the service." 

33.  Article 27(1) is replaced by the following: 

"1) Without  prejudice  to  national  laws,  regulations  or 

administrative  provisions  on  the  remuneration  of  certain 

services,  the  criteria  on  which  the  contracting  entities 

shall base the award of contracts shall be: 

- 59 -

a) the  most  economically  advantageous  tender,  involving 

various  criteria  depending  on  the  contract  in question, 

such as: delivery or completion date, running costs, cost-

effectiveness, 

quality, 

aesthetic 

and 

functional 

characteristics, technical merit, after-sales  service and 

technical  assistance,  commitments  with  regard  to  spare 

parts, security of supplies and price; or 

b) the lowest price only." 

34.  The following paragraph 6 is added to Article 27: 

"6) In the case of a tender for the award of a service contract 

submitted by a public authority or a public undertaking, the 

contracting  entity  shall  in particular  enquire whether  the 

tender is influenced by public funds allocated for 

a)  the setting-off of operating losses; 

b)  the provision of capital; 

c)  non-refundable grants, or loans on privileged terms; 

d)  the  granting  of  financial  advantages  by  foregoing 

profits or the recovery of sums due; 

e)  the foregoing of a normal return on public funds used; 

f)  compensation  for  financial  burdens  imposed  by  the 

public authorities. 

It  shall  inform  the  Commission  if  it  intends  to  award  a 

contract to a tenderer whose tender is influenced by any of 

these characteristics." 

- 60 -

35.  The following Article 29a is inserted: 

"Article 29a 

1) The Member States shall inform the Commission of any general 

difficulties  encountered,  in  law  or  in  fact,  by  their 

undertakings  in  securing  the  award  of  service  contracts  in 

third countries. 

2) The  Commission  shall  report  to  the  Council  before 

31 December 1992  and  periodically  thereafter  on  the 

opening-up of service contracts in third countries and on the 

state of  negotiations with these countries  on this subject, 

particularly within the GATT framework. 

3) Whenever  the Commission  establishes, either  on the basis of 

the  reports  referred  to  in paragraph 2, or  on the basis of 

other  information, that a third country as regards the award 

of service contracts, 

a) does  not  grant  Community  undertakings  effective  access 

comparable  to  that  granted  by  the  Community  to 

undertakings from that country, 

b) does  not  grant  Community  undertakings  national  treatment 

or the same competitive opportunities as are available to 

national undertakings, or 

c) grants  undertakings  from  other  third  countries  more 

favorable treatment than Community undertakings, 

the Commission may  initiate negotiations  in order to remedy 

the situation. 

- 61 -

4) Under  the  conditions  referred  to  in  paragraph 3,  the 

Commission may  decide, in addition to  action taken pursuant 

to that paragraph, that the award of service contracts to 

a) undertakings governed  by the law of the third  country  in 

question, 

b) undertakings  affiliated  to the undertakings  specified  in 

(a) and  having  their  registered  office  in the  Community 

but  having  no  effective  and  continuous  link  with  the 

economy of a Member State, 

c) undertakings submitting tenders which have as their object 

services originating in the third country in question, 

may  be  suspended  or  restricted  during  a  period  to  be 

determined in the decision.  The Commission may decide on the 

appropriate measures either on its own  initiative or at the 

request of a Member State, after consulting the Member States 

in accordance with the procedure laid down in Article 32(5), 

(6) and  (7).  Where the Commission is asked to take action by 

a  Member State,  it  shall  take  a  decision  within  a  maximum 

period of three months of receipt of the request. 

It  shall  notify  the  Council  and  the  Member States  of  the 

decisions taken. 

Any Member State may  refer the Commission's  decision to the 

Council within a maximum period  of  four weeks  from the date 

of the decision. 

- 62 -

The  Council,  acting  by  qualified  majority,  may  take  a 

different decision within a maximum period of three months of 

such referral. 

5) This Article  is without prejudice to the obligations of the 

Community in relation to non-member countries." 

36.  In Article 30(1) the word "software" is deleted. 

37.  Article 33(1)(a) is replaced by the following: 

"a) the qualification and selection of contractors, suppliers or 

of providers of services and award of contracts" 

38.  Article 37 is replaced by the following: 

"Article 37 

1) Member  States  shall  adopt  the measures  necessary  to  comply 

with the provisions relating to works and supply contracts of 

this Directive by  1 July  1992.  They  shall  forthwith  inform 

the Commission thereof. 

Member  States  may  stipulate  that  the  measures  referred  to 

shall apply only from 1 January 1993. 

2) The  Member  States  shall  apply  the  measures  relating  to 

service contracts by 1 January 1993. 

3) Nevertheless, in the case of the Kingdom of Spain, 1 January 

1993  shall  be  replaced  by  1  January  1996.  As  regards  the 

Hellenic Republic and the Portuguese Republic, 1 January 1993 

shall be replaced by 1 January 1998. 

- 63 -

4) Council  Recommendation  84/550/EEC  of  12  November  1984 

concerning  the  first  phase  of  opening  up  access  to  public 

telecommunications  contracts(1)  shall  cease  to  have  effect 

as  from the date on which this Directive  is applied  by the 

Member States. 

(1) OJ No L 298, 16.11.1984, p. 51. 

39.  The following Article 37a is inserted : 

"Article 37a 

When  Member  States  adopt  the  provisions  referred  to  in 

Article 37, these shall contain a reference to this Directive or 

shall  be  accompanied  by  such  reference  at  the  time  of  their 

official publication.  The procedure for such reference shall be 

adopted by the Member States." 

40.  The list of Annexes and Annexes XII, XIV and XV are replaced by 

the  list  of  Annexes  and  Annexes  XII,  XIV  and  XV  of  this 

Directive. 

41.  Annexes XVI, XVII and XVIII hereto are added. 

Article 2 

The  Commission  shall  adopt before  1 January  1993, a Directive which 

consolidates  the  provisions  of  Directive  90/531/EEC  and  of  this 

Directive  in  conformity  with  the  procedure  referred  to  in 

Article 32(4) to (7) . 

- 64 -

Article 3 

1) Member  States  shall  adopt  the  measures  necessary  to  comply  with 

this Directive by 1 January 1993.  They shall forthwith inform the 

Commission thereof. 

2) Nevertheless, the Kingdom of Spain may stipulate that the measures 

referred  to  in paragraph  1 shall apply  only  from  1 January 1996. 

The  Hellenic  Republic  and  the  Portuguese Republic  may  stipulate 

that the measures referred to in paragraph 1 shall apply only from 

1 January 1998. 

3) When Member  States  adopt  these  provisions, these  shall  contain  a 

reference  to  this  Directive  or  shall  be  accompanied  by  such 

reference at the time of their official publication.  The procedure 

for such reference shall be adopted by Member States. 

Article 4 

Member States shall communicate to the Commission the text of the main 

provisions  of  national  law,  whether 

laws,  regulations  or 

administrative  provisions, which they adopt  in the field  governed by 

this Directive. 

Article 5 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the Council 

The President 

65  -

ANNEXES 

Annex I 

production, transport  or distribution of drinking  water 

Annex  11 

production, transport  or distribution of  electricity 

Annex  111 

transport  or distribution of gas or heat 

Annex  IV 

exploration  for and extraction of oil  or gas 

Annex V 

exploration  for and extraction of coal  or other solid  fuels 

Annex VI 

Contracting  entities  in the field of  railway  services 

Annex VII 

Contracting  entities  in the field of urban  railway, tramway, trolley bus or bus 
services 

Annex VIII 

Contracting  entities  in the field of airport  facilities 

Annex IX 

Annex X 

Annex XI 

Annex XII 

Contracting  entities  in the field of maritime or  inland port  or other  terminal 
faciIities 

Operation  of  telecommunications networks or provision  of  telecommunications 
services 

List  of professional  activities as set  out  in the general  industrial 
classification of economic  activities within  the European  Communities 

A. open  procedures 
B.  restricted  procedures 
C. negotiated  procedures 

Annex XIII 

Notice on the existence of a qualification  system 

Annex XIV 

Periodic  information  notice 
A.  For supply  contracts 
B.  For works contracts 
C.  For service contracts 

Annex XV 

Notice on contracts  awarded 
I. Information  for publication  in the Official  Journal  of  the European 

Communities 

11.Information not  intended  for publication 

Annex XVI 

A. Services  in the sense of Article 12a 

B. Services  in the sense of Article  12b 

Annex XVII 

Annex XVIII 

Design contest  notices 

Results of design contests 

-  66  -

ANNEX  XII 

A. OPEN PROCEDURES 

1.  The name, address, telephone number, telegraphic address, telex and telecopier number of the 

contracting entity. 

2.  Nature of the contract (supply, works or service, where appropriate, state if it is a 

framework agreement). 
Category of service within the sense of annex XVIA or XVIB and description (CPC 
classification). 

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

4.  For supplies and works : 

(a)  Nature and quantity of the goods to be supplied; 

or 
the nature and extent of the services to be provided and general nature of the work. 

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

(c)  For works contracts : 

Information concerning the purpose of the work or the contract where the latter also 
involves the drawing up of projects. 

5.  For services : 

(a)  Indication whether the execution of the service is by law, regulation, or 

administrative provision reserved to a particular profession; 

(b)  Reference of the law, regulation or administrative provison; 

(O 

Indication whether legal persons should indicate the names and professional 

qualification of the staff to be reponsible for the execution of the services; 

(d)  Indication whether suppliers can tender for a part of the services concerned; 

6.  Authorization to submit variants. 

7.  Derogation from the use of European Specifications, in accordance with Article 13 (6). 

8.  Time limits for delivery or completion or duration of service contract. 

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

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

such documents. 

10.  (a)  The final date for receipt of tenders. 

(b)  The address to which they must be sent. 

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

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

(b)  The date, hour and place of such opening. 

12.  Where appropriate, any deposits and guarantees required. 

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

contained. 

-  67  -

14.  Where  appropriate,  the  legal  form  to be taken by the grouping  of suppliers, contractors or 

service providers  to whom  the contract  is awarded. 

15.  Minimum  economic  and  technical  conditions  required  of  the supplier, contractor  or provider 

to whom  the contract  is awarded. 

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

17.  The criteria  for  the award of  the contract.  Criteria other  than  that  of  the  lowest  price 

shall  be mentioned  where  they do not  appear  in the contract  documents. 

18.  Other  information. 

19.  Where  appropriate,  the reference  to publication of  the periodic  information notice  in the 

Official  Journal  to which  the contract  refers. 

20.  Date of dispatch  of  the notice by the contacting entities. 

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

Communities  (to be supplied by the said  Office). 

-  68  -

ANNEX XII 

B. RESTRICTED PROCEDURES 

1.  The name, address, telephone number, telegraphic address, telex and telecopier number of the 

contracting entity. 

2.  Nature of the contract (supply, works or service, where appropriate, state if it is a 

framework agreement). 
Category of service within the sense of annex XVIA or XVIB and description (CPC 
classification). 

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

4.  For supplies and works : 

(a)  Nature and quantity of the goods to be supplied; 

or 
the nature and extent of the services to be provided and general nature of the work. 

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

(c)  For works contracts : 

Information concerning the purpose of the work or the contract where the latter also 
involves the drawing up of projects. 

5.  For services : 

(a)  Indication whether the execution of the service is by law, regulation, or 

administrative provision reserved to a particular profession; 

(b)  Reference of the law, regulation or administrative provison; 

(c)  Indication whether legal persons should indicate the names and professional 

qualification of the staff to be reponsible for the execution of the services; 

(d)  Indication whether suppliers can tender for a partof the services concerned; 

6.  Authorization to submit variants. 

7.  Derogation from the use of European Specifications, in accordance with Article 13 (6). 

8.  Time limits for delivery or completion or duration of service contract. 

9.  Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or-

providers to whom the contract  is awarded. 

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

(b)  The address to which they must be sent. 

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

11.  The final date for dispatch of invitations to tender. 

12.  Where appropriate, any deposits and guarantees required. 

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

are contained. 

14.  Information concerning the supplier's, contractor's or provider's position and minimum 

economic and technical conditions required of him. 

15.  The criteria for the award of the contract where they are not mentioned in the invitation to 

tender. 

t 

-  69 

-

16.  Other  information. 

17.  Where  appropriate,  the  reference  to publication  of  the periodic  information notice  in the 

Official  Journal  to which  the contract  refers. 

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

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

Communities  (to be supplied  by  the said  Office). 

-  70  -

ANNEX XII 

C. NEGOCIATED PROCEDURES 

1.  The name, address, telephone number, telegraphic address, telex and telecopier number of the 

contracting entity. 

2.  Nature of the contract (supply, works or service, where appropriate, state if it is a 

framework agreement). 
Category of service within the sense of annex XVIA or XVIB and description (CPC 
classification). 

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

4.  For supplies and works : 

(a)  Nature and quantity of the goods to be supplied; 

or 
the nature and extent of the services to be provided and general nature of the work. 

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

(c)  For works contracts : 

Information concerning the purpose of the work or the contract where the latter also 
involves the drawing up of projects. 

5.  For services : 

(a)  Indication whether the execution of the service is by law, regulation, or 

administrative provision reserved to a particular profession; 

(b)  Reference of the law, regulation or administrative provison; 

(c)  Indication whether legal persons should indicate the names and professional 

qualification of the staff to be reponsible for the execution of the services; 

(d)  Indication whether suppliers can tender for a part of the services concerned; 

6.  Derogation from the use of European specifications, in accordance with article 13 (6). 

7.  Time limits for delivery or completion or duration of service contract. 

8.  (a)  The final date for receipt of tenders. 

(b)  The address to which they must be sent. 

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

9.  Where appropriate, any deposits and guarantees required. 

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

are contained. 

11.  Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or 

providers to whom the contract is awarded. 

12.  Information concerning the supplier's, contractor's or provider's position and minimum 

economic and technical conditions required of him. 

13.  Where appropriate, the names and addresses of suppliers, contractors or providers already 

selected by the contracting entity. 

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

Communities. 

15.  Other information. 

-  71  -

16.  Where  appropriate,  the  reference  to publication  of  the periodic  information  notice  in the 

Official  Journal  to which  the contract  refers. 

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

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

Communities  (to be supplied  by  the said  Office). 

-  72  -

ANNEX XIV 

Periodic Information Notice 

C. For service contracts. 

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

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

3.  (a)  Estimated date of the commencement of the procedures of the award of the contract(s) 

(if known). 

(b)  Type of award procedure to be used. 

4.  Other information (for example, indicate if a call for competition will be published  later), 

5.  Date of dispatch of the notice by the contracting entities. 
6.  Date of receipt of the notice by the Office for Official Publications of the European 

Communities (to be supplied by the said Office). 

-  73  -

ANNEX XV 

Notice on contracts awarded 

I.  INFORMATION FOR PUBLICATION  IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES 

1.  Name and address of the contracting entity 

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

framework agreement) 

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

4.  (a)  Form of the call for competition (notice on the existence of a qualification 

procedure; periodic information notice; call for tenders) 

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

Communities 

(c)  In the case of contracts awarded without a prior call for competition, indication of 

the relevant provision of Article 15(2), or Article 12b. 

5.  Award procedure (open, restricted or negotiated) 

6.  Number of tenders received 

7.  Date of award of the contract 

8.  Price paid for bargain purchases under Article 15(2)(j) 

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

10.  State, where appropriate, whether the contract has been, or may be, sub-contracted. 

11.  Optional information: 

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

- award criteria; 

- price paid (or range of  prices). 

11. INFORMATION NOT INTENDED FOR PUBLICATION 

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

13.  Value of each contract awarded 

14.  Country of origin of the product or service (EEC origin or non-Community origin; if the 

latter, broken down by third country) 

15.  Was recourse made to the exceptions to the use of European specifications provided for under 

Article 13(6).  If so, which? 

16.  Which award criteria was used (most economically advantageous: lowest price: criteria 

permitted under Article 28)? 

17.  Was the contract awarded to a bidder who submitted a variant, in 

accordance with Article 27(3)? 

18.  Were any tenders excluded on the grounds that they were abnormally low, in accordance with 

Article 27(5)? 

19.  Date of transmission of the notice by the contracting entities. 

-  74  -

ANNEX XVI A 

Services in the sense of Article 12a 

Maintenance and repair services 

6112, 6122, 633, 886 

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

Air transport services of passengers 
and freight, except transport of 
ma i I 

Transport of mail by land, except 
raiI, 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 

Market research and public 
opinion polling services 

Management consulting services 
and related services 

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 

Advertising services 

Building-cleaning services 
and property management services 

Publishing and printing services 
on a fee or contract basis 

Sewage and refuse disposal; 
sanitation and similar services 

10 

11 

12 

13 

Ï4~ 

15 

16 

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 

* 
**  as defined in the eighth recital 
***  except arbitration and conciliation services 

-  75  -

ANNEX XVI B 

Services in the sense of Article 12b 

Cat. 

Title 

CPC Division, Group, 
Class or Sub-Class 

17 

Hotel and restaurant services 

64 

18 

Transport services by rail 

711 

19 

Water transport services 

72 

20 

Supporting and auxiliary transport 
services 

74 

21 

Legal services 

861 

22 

Placement and supply services of 
personnel 

872 

23 

Investigation and security services 
(except armoured car services) 

873 (except 87304) 

24 

Education and vocational educational 
services 

92 

25 

Health and social services 

93 

26 

Recreational, cultural and sporting 
services 

96 

27 

Other services 

-  76  -

ANNEX XVII 

Design Contest Notices 

1.  The name, address, telegraphic address, telephone, telex and facsimile numbers of the 
authority and of the service from which the relevant documents may be obtained; 

2.  Project description; 

3.  Nature of the contest:  open or restricted; 

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

i 

5.  In the case of restricted contests: 

a) the envisaged number of participants, or range; 
b) where applicable, names of already selected participants; 
c) the criteria to be applied in the selection of participants; 
d) final date for receipt of requests to participate; 

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

7.  The criteria to be applied in the evaluation of projects; 

8.  Where applicable, names of selected members of the jury; 

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

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

11  Where applicable, details on payments to all participants; 

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

13  Other information; 

14  Date of dispatch of the notice, 

15  Date of receipt of the notice by the office for Official Publications of the European 

Communities. 

-  77  -

ANNEX XVIII 

Results of Design contests 

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

authority; 

2.  Project description; 

3.  Total number of participants; 

4.  Number of foreign participants; 

5.  Winner(s) of the contest; 

6.  Where applicable, the prize(s); 

7.  Other information; 

8.  Reference of the design contest notice; 

9.  Date of dispatch of the notice; 

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

Communities. 

- 78 -

WORKING DOCUMENT 

OF THE SERVICES OF THE COMMISSION 

Consolidated text integrating the provisions of the 

proposal for a Directive COM  (91)... 

(service contracts) into Directive 90/531/EEC 

(supply and works contracts) 

(9) 

- 79 -

NOTE 

The  attached  consolidated  text  aims  at  facilitating  the  reading  and 

understanding  of  the  proposal  for  a  Directive  concerning  service 

contracts 

awarded 

in 

the 

water, 

energy, 

transport 

and 

telecommunications sectors(*). 

This text  integrates all the modifications relating to contracts for 

services into Directive 90/531/EEC which is applicable only to supply 

and works contracts. 

The  underlined  text  corresponds  to  the  modified  or  new  provisions 

which are to be found in the formal proposal; where the provisions do 

not  specify  that  they  only  apply  to  supply  or  works  contracts,  it 

means that the provison concerned also applies to service contracts. 

(1)  COM  (91)...of ...1991; proposal for a Council Directive amending 

Directive 90/531/EEC on the procurement procedures of entities 

operating in the water, energy, transport and telecommunications 

sectors. 

-  80 

-

/ANNEX  CONSOLIDATED  TEXT 

TITLE  I 

GENERAL PROVISIONS 

Article 1 

For the purposes of this Directive: 

1)  "public  authorities"  shall  mean  the  State,  regional  or  local 

authorities,  bodies  governed  by  public  law,  or  associations 

formed by one or more of such authorities or bodies governed by 

public law. 

A body is considered to be governed by public law where it: 

-  is established  for the specific purpose of meeting  needs in 

the general interest, not being of a commercial or industrial 

nature, and 

- 81 -

has legal personality, and 

is  financed  for the most part by the State, or  regional or 

local authorities, or other bodies governed by public law, or 

is subject to management supervision by those bodies, or has 

an administrative, managerial or supervisory board more than 

half of whose members are appointed by the State, regional or 

local authorities, or other bodies governed by public law; 

2)  "public undertaking"  shall mean any undertaking  over which the 

public  authorities  may  exercise  directly  or  indirectly  a 

dominant  influence  by  virtue  of  their  ownership  of  it, their 

financial  participation  therein, or the rules which govern it. 

A dominant influence on the part of the public authorities shall 

be presumed  when these authorities, directly  or  indirectly, in 

relation to an undertaking: 

hold the major part of the undertaking's  subscribed capital, 

or 

-  control the majority of the votes attaching to shares issued 

by the undertaking, or 

can  appoint  more  than  half  of  the  members  of  the 

undertaking's administrative, managerial or supervisory body; 

3)  "affiliated undertaking" shall mean any undertaking whose annual 

accounts are  consolidated with those of  the contracting  entity 

in accordance with the requirements of Directive  83/349/EEC of 

13 June 1983(^) or, in case of contracting entities not subject 

to  that  Directive,  any  undertaking  over  which  the  contracting 

(1)  OJ No L 193, 18.7.1983, p. 1. 

-  82 -

entity  may  exercise,  directly  or  indirectly,  a  dominant 

influence within the meaning of point  2, or which may exercise a 

dominant  influence  over  the  contracting  entity  or  which,  in 

common  with  the  contracting  entity,  is  subject  to  the  dominant 

influence  of  another  undertaking  by  virtue  of  ownership, 

financial  participation,  or the rules which govern  it. 

4) 

"supply,  works  and  service  contracts"  shall  mean  contracts  for 

' pecuniary  interest  concluded  in  writing  between  a  supplier,  a 

contractor  or  a  service  provider  and  one  of  the  contracting 

entities defined  in Article 2, to the exclusion  of 

i) contracts  for the acquisition  or rental by whatever  financial 

means,  of  land,  existing  buildings,  or  other  immovable 

property  or concerning  rights therein; 

ii) contracts  for  voice  telephony,  telex,  radiotelephony,  paging 

and  satellite  services ; 

iii) contracts  for arbitration  and conciliation  services. 

These contracts have as their object  : 

a)  in  the  case  of  supply  contracts, the  purchase,  lease,  rental 

or  hire  purchase,  with  or  without  options  to  buy,  of 

products; 

b)  in the case of works contracts, either the execution, or both 

the  execution  and  design  or  the  realization,  by  whatever 

means,  of  building  or  civil  engineering  activities  referred 

to  in  Annex  XI.  These  contracts  may,  in  addition,  cover 

supplies and  services necessary  for their  execution; 

c) in the case of service contracts, any other  provision. 

-  83 -

Contracts  which  include  the  provision  of  services  and  supplies 

shall  be  regarded  as  supply  contracts  if  the  total  value  of 

supplies  is  greater  than  the  value  of  the  services  covered  by 

the  contract; 

5) 

"framework  agreement"  shall mean an agreement  between one of  the 

contracting  entities  defined  in  Article  2  and  one  or  more 

suppliers, contractors or service providers  the purpose of  which 

is  to  establish  the  terms,  in  particular  with  regard  to  the 

prices  and, where  appropriate,  the quantity  envisaged,  governing 

the contracts  to be awarded  during  a given  period; 

6) 

"tenderer"  shall mean a supplier,  contractor  or  service  provider 

who  submits  a tender  and  "candidate"  shall mean  a person who  has 

sought  an  invitation  to take  part  in  a restricted  or  negotiated 

procedure  ;  service  providers  may  be  either  natural  or  legal 

persons,  including  contracting  entities  within  the  meaning  of 

Article 2; 

7) 

"open,  restricted  and  negotiated  procedures"  shall  mean  the 

award  procedures  applied by contracting  entities  whereby: 

a)  in  the  case  of  open  procedures,  all  interested  suppliers, 

contractors  or service providers may  submit  tenders; 

b)  in  the  case  of  the  restricted  procedures,  only  candidates 

invited  by the contracting  entity may  submit  tenders; 

- 84 -

c) in the case of negotiated procedures, the contracting entity 

consults  suppliers, contractors or  service providers  of  its 

choice and negotiates the terms of the contract with one or 

more of them; 

8)  "technical specifications" shall mean the technical requirements 

contained  in particular  in the  tender  documents, defining  the 

characteristics of a set of works, material, product, supply or 

* a service, and enabling a piece of work, a material, a product, 

a  supply  or  a service to be objectively  described  in a manner 

such  that  it  fulfils the  use  for which  it  is  intended  by  the 

contracting  entity.  These  technical  prescriptions  may  include 

quality,  performance,  safety  or  dimensions,  as  well  as 

requirements  applicable  to  the material, product,  supply  or  a 

service  as  regards  quality  assurance,  terminology,  symbols, 

testing  and  test methods, packaging, marking  or  labelling.  In 

the case of works contracts, they may also include rules for the 

design  and  costing,  the  test,  inspection  and  acceptance 

conditions  for works and methods or techniques of  construction 

and all other technical conditions which the contracting entity 

is  in  a  position  to  prescribe  under  general  or  specific 

regulations,  in  relation  to  the  finished  works  and  to  the 

materials or parts which they involve; 

9)  "standard"  shall  mean  a  technical  specification  approved  by  a 

recognized  standardizing  body  for  repeated  and  continuous 

application,  compliance  with  which  is  in  principle  not 

compulsory; 

10)  "European  standard"  shall  mean  a  standard  approved  by  the 

European Committee for Standardization  (CEN) or by the European 

Committee  for  Electrotechnical  Standardization (CENELEC)  as  a 

- 85 -

"European  Standard  (EN)"  or  "Harmonization  Document  (HD)", 

according to the common rules of those organizations, or by the 

European Telecommunications Standards Institute  (ETSI) according 

to  its  own  rules  as  a  "European  Telecommunications 

Standard  (ETS)"; 

11)  "common  technical  specification"  shall  mean  a  technical 

specification drawn up in accordance with a procedure recognized 

by the Member States with a view to uniform application  in all 

Member  States  and  published  in  the  Official  Journal  of  the 

European Communities; 

12)  "European technical approval" shall mean a favourable technical 

assessment of the fitness for use of a product for a particular 

purpose, based  on  fulfilment  of the essential  requirements  for 

building works, by means of the inherent characteristics of the 

product  and  the defined  conditions  of  application  and  use, as 

provided for in Council Directive 89/106/EEC of 21 December 1988 

on  the  approximation  of  laws,  regulations  and  administrative 

provisions  of  the  Member  States  relating  to  construction 

products  (1).  European  technical  approval  shall  be  issued  by 

an  approval  body  designated  for  this  purpose  by  the  Member 

State; 

13)  "European  specification"  shall  mean  a  common  technical 

specification,  a  European  technical  approval  or  a  national 

standard implementing a European standard; 

14)  "public  telecommunications  network"  shall  mean  the  public 

telecommunications  infrastructure  which  enables  signals  to  be 

conveyed between defined network termination points by wire, by 

microwave, by optical means or by other electromagnetic means. 

(1)  OJ No L 40, 11.2.1989, p. 12. 

- 86 -

"Network termination point" shall mean all physical  connections 

and their technical access specifications which form part of the 

public  telecommunications  network  and  are  necessary  for  access 

to, and efficient communication through, that public network; 

15)  "public 

telecommunications 

services" 

shall 

mean 

telecommunications  services  the  provision  of  which  the  Member 

States  have  specifically  assigned  notably  to  one  or  more 

telecommunications entities. 

"Telecommunications  services" shall mean services the provision 

of  which  consists  wholly  or  partly  in  the  transmission  and 

routing  of  signals on the public  telecommunications  network by 

means  of  telecommunications  processes,  with  the  exception  of 

radio-broadcasting and television. 

16)  "design  contests"  shall  mean  the  procedures  which  aim  at 

providing  the contracting  entity with  a plan or design, mainly 

in  the  fields  of  architecture,  civil  engineering  or  data 

processing,  and  which  are  selected  by  a  jury  on  the  basis  of 

competition with or without the award of prizes. 

Article 2 

1) This Directive shall apply to contracting entities which: 

a) are public  authorities  or public  undertakings  and  exercise one 

of the activities referred to in paragraph 2; 

b) or, when they are not public authorities or public undertakings, 

have  as  one  of  their  activities  any  of  those  referred  to  in 

(8) 

-  87 -

paragraph  2 or  any  combination  thereof  and  operate  on  the  basis 

of  special  or  exclusive  rights  granted  by  a  competent  authority 

of  a Member  State. 

2) Relevant  activities  for the purposes of this Directive  shall be: 

a) the provision or operation of  fixed  networks  intended  to  provide 

a  service  to  the  public  in  connection  with  the  production, 

transport  or distribution  of: 

(i) 

drinking water; or 

(ii)  electricity;  or 

(iii) gas or heat; 

or  the  supply  of  drinking  water,  electricity,  gas  or  heat  to 

such networks; 

b) the exploitation  of a geographical area  for the purpose of: 

(i) 

exploring  for  or  extracting  oil,  gas,  coal  or  other  solid 

fuels, or 

(ii)  the provision of airport, maritime  or  inland port  or  other 

terminal  facilities  to  carriers  by  air,  sea  or  inland 

waterway; 

c) the  operation  of  networks  providing  a  service  to  the  public  in 

the  field  of  transport  by  railway,  automated  systems,  tramway, 

trolley  bus, bus or cable. 

- 88 -

As regards transport services, a network shall be considered to 

exist where the service is provided  under operating  conditions 

laid  down by  a competent  authority  of  a Member  State, such as 

conditions on the routes to be served, the capacity to be made 

available or the frequency of the service; 

d) the provision or operation of public telecommunications networks 

or  the  provision  of  one  or  more  public  telecommunications 

services. 

3) For  the  purpose  of  applying  paragraph  1(b), special  or  exclusive 

rights shall mean rights deriving from authorizations granted by a 

competent  authority  of  the  Member  State  concerned,  by  law, 

regulation  or  administrative  action,  having  as  their  result  the 

reservation  for  one  or  more  entities  of  the  exploitation  of  an 

activity defined in paragraph 2. 

A  contracting  entity  shall  be  considered  to  enjoy  special  or 

exclusive rights in particular where: 

a) for  the  purpose  of  constructing  the  networks  or  facilities 

referred to in paragraph 2, it may take advantage of a procedure 

for  the expropriation  or use of property  or may  place  network 

equipment on, under or over the public highway; 

b) in the case of paragraph 2(a), the entity supplies with drinking 

water,  electricity,  gas  or  heat  a  network  which  is  itself 

operated  by  an  entity  enjoying  special  or  exclusive  rights 

granted by a competent authority of the Member State concerned. 

4) The provision of bus transport services to the public shall not be 

considered  to  be  a  relevant  activity  within  the  meaning  of 

- 89 -

paragraph 2(c)  where  other  entities  are  free  to  provide  those 

services, either  in general or  in a particular  geographical area, 

under the same conditions as the contracting entities. 

5) The supply of drinking water, electricity, gas or heat to networks 

which provide a service to the public by a contracting entity other 

than  a  public  authority  shall  not  be  considered  as  a  relevant 

activity within the meaning of paragraph 2(a) where: 

a)  in the case of drinking water or electricity: 

the production of drinking water or electricity by the entity 

concerned  takes  place  because  its  consumption  is  necessary 

for carrying out an activity other than that referred  to in 

paragraph 2, and 

-  supply to the public network depends only on the entity's own 

consumption  and  has  not  exceeded  30% of  the  entity's  total 

production of drinking water or energy, having regard to the 

average for the preceding three years, including the current 

year; 

b)  in the case of gas or heat: 

-  the production of gas or heat by the entity concerned  is the 

unavoidable consequence of carrying on an activity other than 

that referred to in paragraph 2, and 

supply  to the  public  network  is aimed  only  at the  economic 

exploitation of such production and amounts to not more than 

20% of the entity's turnover having regard to the average for 

the preceding 3 years, including the current year. 

- 90 -

6) The contracting entities listed in Annexes I to X shall fulfil the 

criteria  set out above.  In order to ensure that the lists are as 

exhaustive  as possible, Member  States  shall  notify the  Commission 

of  amendments  to  their  lists.  The  Commission  shall  revise 

Annexes I to X in accordance with the procedure in Article 32. 

Article 3 

1) Member  States  may  request  the  Commission  to  provide  that 

exploitation  of  geographical  areas  for  the  purpose  of  exploring 

for, or extracting, oil, gas, coal or other solid  fuels shall not 

be considered  to be an activity defined  in Article 2(2)(b)(i) and 

that entities shall not be considered as operating under special or 

exclusive rights within the meaning of Article 2(3)(b) by virtue of 

carrying on one or more of these activities, provided that all the 

following  conditions  are  satisfied  with  respect  to  the  relevant 

national provisions concerning such activities: 

a)  at  the  time when  authorization  to  exploit  such  a geographical 

area  is  requested,  other  entities  shall  be  free  to  seek 

authorization  for that purpose under the same conditions as the 

contracting entities; 

b)  the  technical  and  financial  capacity  of  entities  to  engage  in 

particular  activities  shall  be  established  prior  to  any 

evaluation  of  the  merits  of  competing  applications  for 

authorization; 

c)  authorization to engage in those activities shall be granted on 

the basis of objective criteria concerning  the way  in which it 

is intended to carry out  the exploitation  or extraction, which 

shall  be  established  and  published  prior  to  the  requests  and 

applied in a non-discriminatory manner; 

- 91 -

d)  all conditions  and requirements  concerning  the  carrying  out or 

termination  of the activity,  including, provisions  on operating 

obligations,  royalties,  and  participation  in  the  capital  or 

revenue of the entities, shall be established and made available 

prior  to  the  requests  for  authorization  being  made  and  then 

applied  in a non-discriminatory manner; every change concerning 

these  conditions  and  requirements  shall  be  applied  to  all the 

entities  concerned,  or  else  amendments  must  be made  in  a non 

discriminatory  manner;  however,  operating  obligations  need  not 

be  established  until  immediately  before  the  authorization  is 

granted; and 

e)  contracting  entities  shall  not  be  required  by  any  law, 

regulation, 

administrative 

requirement, 

agreement 

or 

understanding  to provide  information  on  a  contracting  entity's 

intended or actual sources of procurement, except at the request 

of  national  authorities  and  exclusively  with  a  view  to  the 

objectives mentioned in Article 36 of the Treaty. 

2) Member  States  which  apply  the  provisions  of  paragraph 1  shall 

ensure,  through  the  conditions  of  the  authorization  or  other 

appropriate measures, that any entity: 

a) observes  the  principles  of  non-discrimination  and  competitive 

procurement  in  respect  of  the  award  of  supplies,  works  and 

service contracts, in particular as regards the information that 

the  entity  makes  available  to  undertakings  concerning  its 

procurement  intent ions; 

b) communicates  to the Commission,  under  conditions  to be defined 

by  the  latter  in  accordance  with  Article 32,  information 

relating to the award of contracts. 

-  92 -

3) As  regards  individual  concessions  or  authorizations  granted  before 

the  date on  which Member  States  apply  this  Directive  in  accordance 

with  Article  37,  paragraphs  1(a),. (b)  and  (c)  shall  not  apply, 

provided  that  at  that  date  other  entities  are  free  to  seek 

authorization  for  the  exploitation  of  geographical  areas  for  the 

purpose  of  exploring  for  or  extracting  oil,  gas,  coal  or  other 

solid  fuels,  on  a  non-discriminatory  basis  and  in  the  light  of 

objective  criteria.  Paragraph  1(d)  shall  not  apply  as  regards 

conditions  or  requirements  established,  applied  or  amended  before 

the date referred  to above. 

4) A  Member  State  which  wishes  to  apply  paragraph  1  shall  inform  the 

Commission  accordingly.  In  doing  so,  it  shall  inform  the 

Commission  of  any  law,  regulation  or  administrative  provision, 

agreement  or  understanding  relating  to  compliance  with  the 

conditions  referred  to  in paragraphs  1 and 2. 

The  Commission  shall  take  a  decision  in  accordance  with  the 

procedure  laid  down  in Article  32(4)  to  (7).  It  shall  publish  its 

decision,  giving  its  reasons,  in  the  Official  Journal  of  the 

European  Communities. 

It  shall  forward  to  the  Council  each  year  a  report  on  the 

implementation  of  this  Article  and  review  its  applicaiton  in  the 

framework of the report  provided  for in Article 36. 

Article 4 

1) When  awarding  supply,  works  or  service  contracts,  or  organizing 

design  contests,  the  contracting  entities  shall  apply  procedures 

which  are adapted  to the provisions of this Directive. 

2) Contracting  entities  shall ensure that there  is no discrimination 

between different suppliers, contractors or service providers. 

- 93 -

3) In  the  context  of  provision  of  technical  specifications  to 

interested  suppliers,  contractors  or  service  providers  of 

qualification  and  selection  of  suppliers, contractors  or  service 

providers  and  of  award  of  contracts,  contracting  entities  may 

impose  requirements  with  a  view  to  protecting  the  confidential 

nature of information which they make available. 

4) The  provisions  of  this  Directive  shall  not  limit  the  right  of 

suppliers,  contractores  or  service  providers  to  require  a 

contracting entity, in conformity with national law, to respect the 

confidential nature of information which  they make available. 

Article 5 

1) Contracting entities may regard a framework agreement as a contract 

within the meaning of Article 1(3) and award  it in accordance with 

this Directive. 

2) Where  contracting  entities  have  awarded  a  framework  agreement 

in accordance  with  this  Directive,  they  may  avail  themselves  of 

Article 15(2)(i) when awarding contracts based on that agreement. 

3) Where a framework agreement has not been awarded in accordance with 

this  Directive, contracting  entities  may  not  avail  themselves  of 

Article 15(2)(i). 

4) Contracting  entities may  not misuse  framework  agreements  in order 

to hinder, limit or distort competition. 

- 94 -

Article 6 

1) This  Directive  shall  not  apply  to  contracts  or  design  contests 

which the contracting entities award or organize for purposes other 

than the pursuit of their activities as described  in Article 2(2) 

or  for the pursuit of such activities  in a non-member country, in 

conditions  not  involving  the  physical  use  of  a  network  or 

geographical area within the Community. 

2) However, this Directive shall apply to contracts or design contests 

awarded  or organized  on behalf  of the  entities which  exercise an 

activity referred to in Article 2(2)(a)(i) and which: 

a) are connected with hydraulic engineering projects, irrigation or 

land  drainage, provided  that the  volume  of water  intended  for 

the  supply  of  drinking  water  represents  more  than  20% of  the 

total  volume  of  water  made  available  by  these  projects  or 

irrigation or drainage installations, or 

b) are connected with the disposal or treatment of sewage. 

3) The contracting entities shall notify the Commission at its request 

of any  activities they regard  as excluded  under paragraph 1.  The 

Commission  may  periodically  publish  lists  of  the  categories  of 

activities which it considers to be covered by this exclusion, for 

information  in  the Official  Journal  of  the  European  Communities. 

In so doing, the Commission shall respect any sensitive commercial 

aspects the contracting entities may point out when forwarding this 

information. 

(7) 

- 95 -

Article 7 

1) The provisions of this Directive shall not apply to : 

a)  contracts  awarded  for  purposes  of  re-sale  or  hire  to  third 

parties, provided that the contracting entity enjoys no special 

or exclusive right to sell or hire the subject of such contracts 

and other  entities are  free to  sell or hire  it under the same 

conditions as the contracting entity; 

b)  service  contracts  directly  relating  to  the  re-sale  or  hire 

mentioned under a). 

2) The contracting entities shall notify the Commission at its request 

of  all  the  categories  of  products  they  regard  as  excluded  under 

paragraph 1.  The Commission may periodically publish  lists of the 

categories of activities which  it considers to be covered by this 

exclusion, for information in the Official Journal of the European 

Communities.  In  so  doing,  the  Commission  shall  respect  any 

sensitive commercial aspects the contracting entities may point out 

when forwarding this information. 

Article 8 

1) This  Directive  shall  not  apply  to  contracts  which  contracting 

entities exercising  an activity described  in Article 2(2)(d) award 

for purchases intended exclusively to enable them to provide one or 

more telecommunications  services where other entities  are  free to 

offer  the  same  services  in  the  same  geographical  area  and  under 

substantially the same conditions. 

- 96 -

2) The contracting entities shall notify the Commission at its request 

of any services they regard as covered by the exclusion referred to 

in paragraph 1.  The Commission may  periodically  publish  the list 

of services which it considers to be covered by this exclusion, for 

information  in the  Official  Journal  of  the  European Communities. 

In so doing, the Commission shall respect any sensitive commercial 

aspects the contracting entities may point out when forwarding this 

information. 

Article 9 

1) This Directive shall not apply to: 

a) contracts which the contracting entities listed in Annex I award 

for the purchase of water; 

b) contracts  which  the  contracting  entities  specified  in 

Annexes II, III, IV and V award  for the supply of energy or of 

fuels for the production of energy. 

2) The Council shall re-examine the provisions of paragraph 1 when it 

has  before  it  a  report  from  the  Commission  together  with 

appropriate proposals. 

Article 10 

This Directive shall not apply to contracts when they are declared to 

be  secret  by  the  Member  State,  when  their  execution  must  be 

accompanied by special security measures in accordance with the laws, 

regulations or administrative provisions in force in the Member State 

concerned  or when  the protection  of the basic  security  interests of 

that State so requires. 

- 97 -

Article 10a 

The  provisions  of  this  Directive  shall  not  apply  to  the  award  of 

service  contracts  which  contracting  entities  have  to  award  to  an 

entity  which  is  itself  a  contracting  entity  within  the  meaning  of 

Article  1(b)  of  Directive  ../.../EEC  (*)  pursuant  to  an  exclusive 

right  established  by  a  published  law,  regulation  or  administrative 

provision which is compatible with the Treaty. 

*) OJ No C 23, 31.1.1991, p. 1. 

Article 11 

This  Directive  shall  not  apply  to  contracts  governed  by  different 

procedural rules and awarded: 

1) pursuant to an international agreement concluded in conformity with 

the Treaty between a Member State and one or more third  countries 

and covering  supplies, works, services or design contests intended 

for  the  joint  implementation  or  exploitation  of  a project  by the 

signatory  States;  every  agreement  shall  be  communicated  to  the 

Commission,  which  may  consult  the  Advisory  Committee  for  Public 

Contracts  set  up  by  Council  Decision 71/306/EEC (*),  as  last 

amended  by  Decision 77/63/EEC  (2)#  or,  in the  case  of  agreements 

governing  contracts  awarded  by  entities  exercising  an  activity 

defined 

in  Article 2(2)(d), 

the 

Advisory 

Committee 

on 

Telecommunications Procurement referred to in Article 31; 

2 ) to undertakings  in a Member State or a third  country  in pursuance 

of an international agreement relating to the stationing of troops; 

3) pursuant  to  the  particular  procedure  of  an  international 

organization 

(1)  OJ No L 185, 16.8.1971, p. 15. 

(2)  OJ No L  13, 15.1.1977, p. 15. 

- 98 -

Article lia 

1. This Directive shall not apply to contracts for services which 

a) a contracting entity awards to affiliated undertaking; 

b) are awarded by a joint venture formed by a number of contracting 

entities  for  the  purpose  of  carrying  out  a  relevant  activity 

* within  the meaning  of Article  2(2) to  an undertaking  which  is 

affiliated with one of these contracting entities; 

provided  that  at  least  85  %  of  the  average  turnover  of  that 

undertaking  arising  within  the  Community  for  the  preceding  three 

years derives  from the provision  of  such  services to undertakings 

with which it is affiliated. 

2. The contracting entities notify the Commission, at its request, the 

following  information  regarding  the  application  of  the  provisions 

of paragraph 1 : 

-  the names of the undertakings concerned; 

-  the nature and value of the service contracts involved; 

-  such proof as may be deemed necessary by the Commission that the 

relationship between the undertaking to which the contracts are 

awarded  and  the  contracting  entity  is  in  conformity  with  the 

requirements of this Article. 

Article 12 

1)  This Directive  shall  apply to contracts whose  estimated value, 

net of VAT, is not less than : 

- 99 -

a) ECU  400  000  in  the  case  of  supply  and  service  contracts 

awarded  by  entities  carrying  out  an  activity  defined  in 

Article 2(2)(a),  (b) and (c); 

b) ECU  600  000  in  the  case  of  supply  and  service  contracts 

awarded  by  entities  carrying  out  an  activity  defined  in 

Article 2(2)(d); 

c) ECU 5 000 000 in the case of works contracts 

2)  The  estimated  value  of  a  service  contract  shall  include  the 

total remuneration of the service provider taking account of the 

elements specified in paragraphs 3 to 12. 

3)  In assessing the estimated contract value of financial services, 

the following amounts shall be taken into account: 

-  as regards insurance services, the premium payable; 

-  as  regards  banking  and  other  financial  services,  fees, 

commissions, interest and other types of remuneration. 

4)  In  the  case  of  supply  contracts  for  lease,  rental  or  hire-

purchase, or of service contracts not indicating the total cost, 

the basis for calculating the contract value shall be: 

a) in  the  case  of  fixed-term  contracts,  where  their  term  is 

twelve  months  or  less,  the  estimated  total  value  for  the 

contract's  duration,  or,  where  their  term  exceeds  twelve 

months,  the  contract's  total  value  including  the  estimated 

residual value; 

-  100 -

b) in the case of contracts  for an  indefinite period or  in cases 

where there  is doubt  as to the duration of the contracts, the 

anticipated  total  instalments  to  be  paid  in  the  first  four 

years. 

5)  Where  a proposed  supply  or  service  contract  expressly  specifies 

option  clauses,  the  basis  for  calculating  the  contract  value 

shall  be  the  highest  possible  total  purchase,  lease,  rental  or 

'hire-purchase permissible,  inclusive of the option clauses. 

6) 

In  the  case  of  a  procurement  of  supplies  or  services  over  a 

given  period  by means  of  a  series of  contracts  to be  awarded  to 

one  or  more  suppliers  or  of  contracts  which  are  to  be  renewed, 

the contract  value  shall be calculated  on the basis of: 

a) the 

total 

value 

of 

contracts 

which 

had 

similar 

characteristics  awarded  over  the  previous  fiscal  year  or 

twelve  months,  adjusted  where  possible  for  anticipated 

changes  in  quantity  or  value  over  the  subsequent  twelve 

months; 

b) or  the  aggregate  value  of  contracts  to  be  awarded  during  the 

twelve  months  following  the  first  award  or  during  the  whole 

term  of  the  contract,  where  this 

is  longer 

than 

twelve months. 

7) 

The  basis  for  calculating  the  estimated  value  of  a  contract 

including  both  supplies  and  services,  shall  be  the  total  value 

of  the  supplies  and  services  regardless  of  their  respective 

values. 

- 101 -

8)  The  basis  for  calculating  the  value  of  a  framework  agreement 

shall  be  the  estimated  maximum  value  of  all  the  contracts 

envisaged for the period in question. 

9)  The basis for calculating the value of a works contract  for the 

purposes  of paragraph 1 shall be  the total  value of  the work. 

"Work" shall mean the building and engineering  activities taken 

as a whole that are intended to  fulfil an economic  function by 

themselves. 

In particular, where a supply, work or service is the subject of 

several  lots, the value of each lot shall be taken into account 

when assessing the value referred to in paragraph 1.  Where the 

aggregate  value  of  the  lots  equals  or  exceeds  the  value  laid 

down in paragraph 1, that paragraph shall apply to all the lots. 

However,  in the  case  of  works  contracts,  contracting  entities 

may derogate from paragraph 1 in respect of lots whose estimated 

value net of VAT  is less than ECU 1 million, provided  that the 

aggregate value of those lots does not exceed 20% of the overall 

value of the lots. 

10)  For  the  purposes  of  paragraph 1,  contracting  entities  shall 

include in the estimated value of a works contract the value of 

any  supplies  or  services  necessary  for  the  execution  of  the 

works which they make available to the contractor. 

11)  The  value  of  supplies  or  services which  are not  necessary  for 

the execution of a particular works contract may not be added to 

that of the contract with the result of avoiding application of 

this Directive to the procurement of those supplies. 

- 102 -

12)  Contracting  entities  may  not  circumvent  this  Directive  by 

splitting contracts or using special methods of calculating the 

value of contracts. 

Title la 

TWO-TIER APPLICATION 

Article 12a 

Supply  and works  contracts  and  contracts which  have  as their object 

services listed in Annex XVIA shall be awarded  in accordance with the 

provisions of Titles II, III and IV. 

Article 12b 

Contracts  which  have  as  their  object  services  listed  in  Annex XVIB 

shall be awarded in accordance with Articles 13 and 18. 

Article 12c 

Contracts which have as their object  services  listed  in both Annexes 

XVIA  and  XVIB  shall be awarded  in accordance with  the provisions of 

Titles II, III and IV where the value of the services listed in Annex 

XVIA is greater than the value of the services listed in Annex XVIB. 

Where this is not the case, they shall be awarded  in accordance with 

Articles 13 and 18. 

(6) 

- 103 -

TITLE II 

TECHNICAL SPECIFICATIONS AND STANDARDS 

Article 13 

1) Contracting entities shall include the technical specifications in 

the  general  documents  or  the  contract  documents  relating  to each 

contract. 

2) The  technical  specifications  shall  be  defined  by  reference  to 

European specifications where these exist. 

3) In  the  absence  of  European  specifications,  the  technical 

specifications should as far as possible be defined by reference to 

other standards having currency within the Community. 

4) Contracting entities shall define such further requirements  as are 

necessary to complement European specifications or other standards. 

In  doing  so,  they  shall  prefer  specifications  that  indicate 

performance  requirements  rather  than  design  or  description 

characteristics unless the contracting entity has objective reasons 

for considering that such specifications are inadequate for the 

purposes of the contract. 

5) Technical  specifications which mention goods of a specific make or 

source  or  of  a particular  process, and  which  have  the  effect  of 

favouring  or  eliminating  certain  undertakings,  shall  not  be  used 

unless such specifications are indispensable for the subject of the 

contract.  In  particular,  the  indication  of  trade  marks, patents, 

- 104 -

types,  or  specific  origin  or  production  shall  be  prohibited; 

however,  such  an  indication  accompanied  by  the  words  "or 

equivalent"  shall be authorized where the subject  of the contract 

cannot  otherwise  be  described  by  specifications  which  are 

sufficiently precise and fully intelligible to all concerned. 

6) Contracting entities may derogate from paragraph 2 if: 

a) it is technically  impossible to establish  satisfactorily  that a 

product conforms to the European specifications; 

b) the  application  of  paragraph 2 would  prejudice  the  application 

of  Council Directive 86/361/EEC of  24 July 1986 on  the  initial 

stage  of  the  .mutual  recognition  of  type  approval  for 

telecommunications  terminal  equipment(*),  or  of  Council 

Decision 87/95/EEC of 22 December 1986 on standardization in the 
field of information technology and telecommunications(2); 

c) in the context of adapting existing practice to take account of 

European  specifications,  use  of  these  specifications  would 

oblige  the  contracting  entity  to acquire  supplies  incompatible 

with equipment  already  in use or would  entail  disproportionate 

cost  or  disproportionate  technical  difficulty.  Contracting 

entities which have recourse to this derogation shall do so only 

as part  of a clearly defined  and recorded  strategy with a view 

to a change-over to European specifications; 

d) the  relevant  European  specification  is  inappropriate  for  the 

particular  application  or  does  not  take  account  of  technical 

developments  which  have  come  about  since  its  adoption. 

(1)  OJ No L 217, 5.8.1986, p. 21. 

(2)  OJ No L  36, 7.2.1987, p.„_3^. 

- 105 -

Contracting  entities  which  have  recourse  to  this  derogation 

shall inform the appropriate standardizing organization, or any 

other  body  empowered  to  review  the  European  specification, of 

the reasons why they consider the European specification to be 

inappropriate and shall request its revision; 

e) the project is of a genuinely innovative nature for which use of 

European specifications would not be appropriate. 

7) Notices published  pursuant  to Article 16(1)(a) shall  indicate any 

recourse to the derogations referred to in paragraph 6. 

8) This  Article  shall  be  without  prejudice  to  compulsory  technical 

rules insofar as these are compatible with Community law. 

Article 14 

1) Contracting  entities  shall make available on demand  to suppliers, 

contractors or service providers interested in obtaining a contract 

the technical specifications regularly referred to in their supply, 

works  or  service  contracts  or  the  technical  specifications which 

they  intend to apply to contracts covered by periodic  information 

notices within the meaning of Article 17. 

2) Where  such  technical  specifications  are  based  on  documents 

available to interested suppliers, contractors or service providers 

a reference to those documents shall be sufficient. 

- 106 -

TITLE III 

PROCEDURES FOR THE AWARD OF CONTRACTS 

Article 15 

1) Contracting entities may choose any of the procedures described in 

Article 1(6),  provided,  subject  to  paragraph 2,  a  call  for 

competition has been made in accordance with Article 16. 

2) Contracting  entities  may  use  a  procedure  without  prior  call  for 

competition in the following cases: 

a) in the absence of tenders or suitable tenders  in response to a 

procedure with a prior call  for competition, provided  that the 

original  contract  conditions  have  not  been  substantially 

changed; 

b) where  a  contract  is  purely  for  the  purpose  of  research, 

experiment,  study  or  development  and  not  for  the  purpose  of 

ensuring profit or of recovering research and development costs 

and insofar as the award of such contract does not prejudice the 

competitive  award  of  subsequent  contracts  which  have  in 

particular these purposes; 

c) when,  for  technical  or  artistic  reasons,  or  for  reasons 

connected with protection of exclusive rights, the contract may 

be executed only by a particular supplier, contractor or service 

provider; 

- 107 -

d) insofar  as  is  strictly  necessary  when,  for  reasons  of  extreme 

urgency brought about by events unforeseeable by the contracting 

entities,  the  time  limits  laid  down  for  open  and  restricted 

procedures cannot be adhered to; 

e) in the case of supply contracts for additional deliveries by the 

original  supplier  which  are  intended  either  as  a  partial 

replacement  of  normal  supplies  or  installations  or  as  the 

extension of existing supplies or installations, where a change 

of  supplier  would  oblige  the  contracting  entity  to  acquire 

material having different technical characteristics which would 

result  in  incompatibility  or  disproportionate  technical 

difficulties in operation and maintenance; 

f) for  additional  works  or  services  not  included  in  the  project 

initially  awarded or  in the contract  first concluded  but which 

have, through unforeseen circumstances, become necessary for the 

execution of the contract, on condition  that the award  is made 

to the contractor executing the original contract: 

-  when such additional works or services cannot be technically 

or  economically  separated  from  the  main  contract  without 

great inconvenience to the contracting entities; 

or when such additional works or services, although separable 

from  the  execution  of  the  original  contract,  are  strictly 

necessary to its later stages; 

g) in the case of works contracts, for new works consisting of the 

repetition of similar works entrusted to the contractor to which 

the  same  contracting  entities  awarded  an  earlier  contract, 

provided that such works conform to a basic project for which a 

- 108 -

first  contract  was  awarded  after  a  call  for  competition.  As 

soon as the first project  is put up for tender, notice must be 

given  that  this  procedure  might  be  adopted  and  the  total 

estimated  cost  of  subsequent  works  shall  be  taken  into 

consideration  by  the  contracting  entities  when  they  apply  the 

provisions of Article 12; 

h) for supplies quoted and purchased on a commodity market; 

i) for  contracts  to  be  awarded  on  the  basis  of  a  framework 

agreement,  provided  that  the  condition  referred  to  in 

Article 5(2) is fulfilled; 

j) for bargain purchases, where it is possible to procure supplies 

taking  advantage  of  a  particularly  advantageous  opportunity 

available for a very short space of time at a price considerably 

lower than normal market prices; 

k) for  purchases  of  goods  under  particularly  advantageous 

conditions  either  from  a  supplier  definitively  winding  up  his 

business  activities  or  from  the  receivers  or  liquidators  of a 

bankruptcy, an arrangement with creditors or a similar procedure 

under national laws or regulations. 

1) when the service contract concerned  is part of the follow-up to 

a design contest organized  in conformity with the provisions of 

this Directive and must, in accordance with the relevant rules, 

be awarded to one of the winners of that contest, provided that 

all the winners are included in the procedure. 

-  109 -

Article  16 

1) In  the  case  of  supply,  works  or  service  contracts,  the  call  for 

competition  may be made: 

a) by  means  of  a notice drawn  up  in  accordance  with  Annex XII A,  B 

or C; or 

b) by  means  of  a periodic  indicative  notice  drawn  up  in  accordance 

with Annex  XIV;  or 

c) by  means  of  a notice  on the  existence  of  a qualification  system 

drawn up  in accordance with Annex XIII. 

2) When  a  call  for  competition  is  made  by  means  of  a  periodic 

indicative  notice: 

a) the  notice  must  refer  specifically  to  the  supplies,  works  or 

services  which  will  be  the  subject  of  the  contract  to  be 

awarded; 

b) the  notice  must  indicate  that  the  contract  will  be  awarded  by 

restricted  or  negotiated  procedure  without  further  publication 

of  a  notice  of  a  call  for  competition  and  invite  interested 

undertakings  to express their  interest  in writing; 

c) contracting  entities  shall  subsequently  invite all candidates  to 

confirm  their  interest  on  the  basis  of  detailed  information  on 

the  contract  concerned  before  beginning  the  selection  of 

tenderers or participants  in negotiations. 

- 110 -

3) When  a  call  for competition  is made by means  of  a notice  on the 

existence  of  a  qualification  system,  tenderers  in  a  restricted 

procedure  or  participants  in  a  negotiated  procedure  shall  be 

selected  from  the qualified  candidates  in accordance  with  such a 

system. 

4) in the case of design contests, the call for competition  shall be 

made by means of a notice drawn up in accordance with Annex XVII. 

5) The notices referred  to in this Article shall be published  in the 

Official Journal of the European Communities. 

Article 17 

1) Contracting entities shall make known at least once a year,by means 

of a periodic indicative notice: 

a) in the case of supply contracts, the total of the contracts for 

each  product  area  of  which  the  estimated  value,  taking  into 

account  the  provisions  of  Article 12, is  equal  to  or  greater 

than  ECU 750 000,  and  which  they  intend  to  award  over  the 

following twelve months; 

b) in the case of works contracts, the essential characteristics of 

the  works  contracts  which  the  contracting  entities  intend  to 

award,  the  estimated  value  of  which  is  not  less  than  the 

threshold laid down in Article 12(1). 

c) in the case of service contracts, the estimated  total value of 

the  service  contracts  in  each  of  the  categories  of  services 

listed  in  Annex  XVI  A  which  they  intend  to  award  over  the 

(5) 

- Ill -

following  12 months, where  such  estimated  total  value, taking 

into  account  the  provisions  of  Article  12,  is  equal  to  or 

greater than ECU 750 000. 

2) The  notice  shall  be  drawn  up  in  accordance  with  Annex  XIV  and 

published in the Official Journal of the European Communities. 

3) Where the notice  is used as a means of calling  for competition in 

accordance with Article 16(1)(b),  it must  have been published  not 

more  than  12  months  prior  to  the  date  on  which  the  invitation 

referred  to  in Article  16(2)(c) is sent. Moreover  the contracting 

entity shall meet the deadlines laid down in Article 20(2). 

4) Contracting  entities  may,  in  particular,  publish  periodic 

indicative  notices  relating  to  major  projects  without  repeating 

information  previously  included  in  a  periodic  indicative  notice, 

provided  it  is  clearly  stated  that  such  notices  are  additional 

notices. 

Article 17a 

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

However,  when  design  contests  are  held  as  a  separate  procedure, 

these rules are applicable only when the total amount of prizes and 

payments to participants is not less than ECU 200 000. 

2) The  admission  of  participants  to  design  contests  shall  not  be 

limited by reference to the territory or part of the territory of a 

Member State. 

3) In  the  case  of  design  contests  with  a  limited  number  of 

participants,  contracting  entities  shall  apply  the  rules  of 

Article 25. 

- 112 -

4) The  jury  shall be composed  only  of persons who  have  no  financial 

connections  or  special  relationships  with  participants  in  the 

contest.  Whenever  a  particular  professional  qualification  is 

required  from participants  in a contest, the majority of the jury 

members  shall  have  the  same  qualifications.  The  jury  shall  be 

autonomous in its decisions.  It shall take its decisions based on 

projects presented  in an anonymous way, and  solely on the grounds 

of the criteria indicated in the invitation for projects within the 

meaning of Annex XVII. 

5) Member  States may oblige contracting  entities to award  subsequent 

contracts to one of the winners of a design contest. 

Article 18 

1) Contracting entities which have awarded a contract  or organised a 

design  contest  shall  communicate  to  the  Commission,  within  two 

months of the award of the contract and under conditions to be laid 

down by the Commission  in accordance with the procedure  laid down 

in Article 32, the results of the awarding procedure by means of a 

notice drawn up in accordance with Annex XV or Annex XVIII. 

2) Except  where  paragraph  4  is  applied,  information  provided  under 

Section I of Annex XV  or under Annex  XVIII  shall be published  in 

the  Official  Journal  of  the  European  Communities.  In  this 

connection  the  Commission  shall  respect  any  sensitive  commercial 

aspects the contracting entities may point out when forwarding this 

information in connection with points 6 and 9 of Annex XV. 

3 ) The 

contracting 

entities 

applying 

the 

provisions 

of 

Article 15(2)(b)  or  awarding  service  contracts  listed  in 

- 113 -

Annex XVI B, may, concerning point 3 of Annex XV, only mention the 

main  title  thereof  within  the  meaning  of  the  classification  of 

Annex XVI A. 

4) Information  provided  under  Section II  of  Annex XV  must  not  be 

published  or  mentioned  in  the  periodic  reports  except,  in 

aggregated form, for statistical purposes. 

Article 19 

1) The contracting entities must be able to supply proof of the date 

of dispatch of the notices referred to in Articles 15 to 18. 

2) The notices  shall be published  in full  in their original  language 

in the Official Journal of the European Communities and in the TED 

data  bank.  A  summary  of  the  important  elements  of  each  notice 

shall  be  published  in  the  other  official  languages  of  the 

Community, the original text alone being authentic. 

3) The  Office  for Official  Publications  of  the  European  Communities 

shall  publish  the  notices  not  later  than  twelve  days  after their 

dispatch.  In exceptional  cases  it shall endeavour  to publish the 

notice referred to in Article 16(1)(a) within five days in response 

to a request by the contracting entity and provided the notice has 

been sent to the Office by electronic mail, telex or telefax.  Each 

edition of the Official Journal of the European Communities which 

contains  one or more notices  shall  reproduce  the model  notice or 

notices on which the published notice or notices are based. 

4) The cost of publication of the notices  in the Official Journal of 

the European Communities shall be borne by the Communities. 

5) Contracts  or  design  contests  in  respect  of  which  a  notice  is 

-  114 -

published  in  the  Official  Journal  of  the  European  Communities 

pursuant  to  Article 16(1)  or  Article  16(4)  shall  not  be  published 

in  any  other  way  before  that  notice  has  been  dispatched  to  the 

Office  for Official Publications of the European Communities.  Such 

publication  shall not contain  information other than that  published 

in the Official Journal of the European Communities. 

Article  20 

1) In open  procedures the time  limit  for the  receipt  of  tenders  shall 

be  fixed  by  contracting  entities  at not  less than  52 days  from  the 

date  of  dispatch  of  the  notice.  This  time  limit  may  be  shortened 

to  36 days  where  contracting  entities  have  published  a  notice  in 

accordance with Article  17(1). 

2) In  restricted  procedures  and  in negotiated  procedures  with  a  prior 

call  for competition, the following  arrangements  shall  apply: 

a) the  time  limit  for  receipt  of  requests  to  participate,  in 

response 

to 

a 

notice 

published 

in 

accordance 

with 

Article  16(1)(a)  or  in  response  to  an  invitation  from  a 

contracting  entity  in  accordance  with  Article  16(2)(c),  shall, 

as  a  general  rule,  be  at  least  five  weeks  from  the  date  of 

dispatch  of  the  notice  and  shall  in  any  case  not  be  less  than 

the  time  limit  for  publication  laid  down  in  Article  19(3)  plus 

10 days; 

b) the  time  limit  for  receipt  of  tenders  may  be  fixed  by  mutual 

agreement  between  the  contracting  entity  and  the  selected 

candidates,  provided  that  all tenderers  are given  equal  time  to 

prepare  and  submit tenders; 

- 115 -

c) where  it  is not possible to reach  agreement  on the time  limit 

for the receipt of tenders, the contracting entity  shall fix a 

time  limit  which  shall,  as  a  general  rule,  be  at  least 

three weeks and shall in any case not be less than 10 days from 

the date of the invitation to tender; the time allowed shall be 

sufficiently  long to take account  in particular of the  factors 

mentioned in Article 22(3). 

Article 21 

In the contract documents, the contracting entity may ask the tenderer 

to indicate  in his tender any share of the contract he may  intend to 

subcontract to third parties. 

This  indication  shall  be  without  prejudice  to  the  question  of  the 

principal contractor's responsibility. 

Article 22 

1) Provided  they  have  been  requested  in  good  time,  the  contract 

documents  and  supporting  documents must  be sent to the suppliers, 

contractors or service providers by the contracting  entities  as a 

general rule within six days of receipt of the application. 

2) Provided it has been requested in good time, additional information 

relating  to  the  contract  documents  shall  be  supplied  by  the 

contracting entities not later than six days before the final date 

fixed for receipt of tenders. 

3) Where  tenders  require the examination  of  voluminous  documentation 

such as lengthy technical specifications, a visit to the site or an 

- 116 -

on-the-spot  inspection  of  the  documents  supporting  the  contract 

documents,  this  shall  be  taken  into  account  in  fixing  the 

appropriate time limits. 

4) Contracting  entities  shall  invite  the  selected  candidates 

simultaneously  and  in writing.  The  letter of  invitation  shall be 

accompanied by the contract documents and supporting documents.  It 

shall include at least the following information: 

a) the  address  from  which  any  additional  documents  can  be 

requested, the final date for such requests and the amount and 

methods of payment of any sum to be paid for such documents; 

b) the final date for receipt of tenders, the address to which they 

must be sent and the language or languages in which they must be 

drawn up; 

c) a reference to any tender notice published; 

d) an indication of any document to be annexed; 

e) the  criteria  for  the  award  of  the  contract  if  these  are  not 

given in the notice; 

f) any other special condition for participation in the contract-

5) requests  for participation  in contracts  and  invitations to tender 

must  be  made  by  the  most  rapid  means  of  communication  possible. 

When requests to participate are made by telegram, telex, telefax, 

telephone or any electronic means, they must be confirmed by letter 

dispatched  before  the  expiry  of  the  time  limit  referred  to  in 

Article 20(1)  or  of  the  time  limit  set  by  contracting  entities 

pursuant to Article 20(2). 

- 117 -

Article 23 

1) The contracting  entity may  state in the contract  documents, or be 

obliged  by  a Member State  so to do, the authority  or  authorities 

from which a tenderer may obtain the appropriate information on the 

obligations  relating  to  the  employment  protection  provisions  and 

the  working  conditions  which  are  in  force  in  the  Member  State, 

region  or  locality  in  which  the  works  or  services  are  to  be 

executed  or  performed  and which  shall  be  applicable  to  the works 

carried  out  or  the  services  performed  on  site  during  the 

performance of the contract. 

2) A contracting entity which supplies the information referred to in 

paragraph 1 shall  request the tenderers or those participating  in 

the  contract  procedure  to  indicate  that  they  have  taken account, 

when  drawing  up  their  tender,  of  the  obligations  relating  to 

employment  protection  provisions  and  the working  conditions which 

are  in  force  in the place where the work or the  service  is to be 

carried  out or performed.  This shall be without  prejudice  to the 

application  of  the  provisions  of  Article 27(5)  concerning  the 

examination of abnormally low tenders. 

TITLE IV 

QUALIFICATION, SELECTION AND AWARD 

Article 24 

1) Contracting  entities  which  so  wish  may  establish  and  operate  a 

system  of  qualification  of  suppliers,  contractors  or  service 

providers. 

- 118 -

2) The system, which may involve different qualification stages, shall 

operate  on  the  basis  of  objective  rules  and  criteria  to  be 

established  by  the  contracting  entity.  The  contracting  entity 

shall  use  European  standards  as  a  reference  where  they  are 

appropriate.  The rules and criteria may be updated as required. 

3) The rules and criteria for qualification shall be made available on 

request to interested  suppliers, contractors or service providers. 

The updating of these criteria and rules shall be communicated  to 

the interested suppliers, contractors and service providers.  Where 

a  contracting  entity  considers  that  the  qualification  system  of 

certain  third  entities  or  bodies  meet  its  requirements,  it  shall 

communicate  to  interested  suppliers,  contractors  and  service 

providers the names of such third entities or bodies. 

4) Contracting  entities  shall  inform  applicants of  their decision as 

to qualification within a reasonable period.  If the decision will 

take  longer  than  six months  from  the  presentation  of  an 

application,  the  contracting  entity  shall  inform  the  applicant, 

within two months of the application, of the reasons  justifying a 

longer  period  and  of  the  date  by  which  its  application  will  be 

accepted or refused. 

5) In reaching their decision as to qualification or when the criteria 

and rules are being updated, contracting entities may not: 

impose  conditions of  an administrative, technical  or  financial 

nature on some suppliers, contractors or service providers that 

are not imposed on others; 

require tests or proof that duplicate objective evidence already 

available. 

(4) 

- 119 -

6) Applicants whose qualification is refused shall be informed of this 

decision and the reasons for refusal.  The reasons must be based on 

the criteria for qualification referred to in paragraph 2. 

7) A  written  record  of  qualified  suppliers,  contractors  or  service 

providers  shall  be  kept,  and  it  may  be  divided  into  categories 

according  to the type of  contract  for which  the  qualification is 

valid. 

8) Contracting  entities  may  bring  the  qualification  of  a  supplier, 

contractor or service provider to an end only  for reasons based on 

the  criteria  referred  to  in paragraph 2.  The  intention  to  bring 

qualification  to  an  end  must  be  notified  in  writing  to  the 

supplier, contractor or service provider beforehand, together with 

the reason or reasons justifying the proposed action. 

9) The qualification system shall be the subject of a notice drawn up 

in accordance with Annex XIII and published in the Official Journal 

of  the  European  Communities,  indicating  the  purpose  of  the 

qualification  system  and the availability  of the rules concerning 

its  operation.  Where  the  system  is  of  a  duration  greater  than 

three  years,  the  notice  shall  be  published  annually.  Where  the 

system is of a shorter duration, an initial notice shall suffice. 

Article 25 

1) Contracting  entities  which  select  candidates  to  tender  in 

restricted  procedures  or  to  participate  in  negotiated  procedures 

shall  do  so  according  to  objective  criteria  and  rules which they 

lay  down  and  which  they  shall  make  available  to  interested 

suppliers, contractors or service providers. 

- 120 -

2) The criteria used may include the criteria for exclusion specified 

in  Article 23  of  Directive 71/305/EEC  and  in  Article 20  of 

Directive 77/62/EEC. 

3) The criteria may be based on the objective need of the contracting 

entity  to  reduce  the  number  of  candidates  to  a  level  which  is 

justified by the need to balance the particular characteristics of 

the contract award procedure and the resources required to complete 

it.  The number of candidates selected must, however, take account 

of the need to ensure adequate competition. 

Article 25a 

Should  entities  require  the  production  of  certificates  drawn  up  by 

independent bodies for attesting conformity of the service provider to 

certain  quality  assurance  standards,  they  shall  refer  to  quality 

assurance  systems  based  on the  relevant  EN  29000  European  standards 

series  certified  by  bodies  conforming  to  the  EN  45000  European 

Standards  series.  Entities  shall  recognise  equivalent  certificates 

from bodies established in other Member States. 

They shall also accept other evidence of equivalent quality assurance 

measures  from  service  providers  who  have  no  access  to  such 

certificates, or no possibility of obtaining them within the relevant 

time limits. 

Article 26 

1) Groupings of  suppliers, contractors  or  service providers  shall be 

permitted to tender or negotiate.  The conversion of such groupings 

into a specific legal form shall not be required in order to submit 

- 121 -

a tender or to negotiate, but the grouping selected may be required 

so to  convert  itself  once it has been awarded  the  contract where 

such  conversion  is  necessary  for  the  proper  performance  of  the 

contract. 

2) Candidates  or tenderers who under the  law of the Member  State in 

which they are established, are entitled to carry out the relevant 

service  activity,  shall  not be  rejected  on the  sole grounds that 

under the law of the Member State in which the contract is awarded 

they  would  have been  required  to be  either  a  natural  or  a  legal 

person. 

3) Legal  persons  may  be  required  to  indicate  in  the  tender  or  the 

request  for  participation,  the  names  and  relevant  professional 

qualifications of the staff to be responsible  for the performance 

of the service. 

Article 27 

1) Without  prejudice  to national  laws, regulations  or  administrative 

provisions on the remuneration of certain services, the criteria on 

which  the  contracting  entities  shall  base the  award  of  contracts 

shall be: 

a) the  most  economically  advantageous  tender,  involving  various 

criteria  depending  on  the  contract  in  question,  such  as: 

delivery or completion date, running costs, cost-effectiveness, 

quality,  aesthetic  and  functional  characteristics,  technical 

merit, after-sales service and technical assistance, commitments 

with regard to spare parts, security of supplies and price; or 

b) the lowest price only. 

- 122 -

2) the case referred to in paragraph  1(a), contracting entities shall 

state  in  the  contract  documents  or  in the  tender  notice  all  the 

criteria  they  intend  to  apply  to  the  award,  where  possible  in 

descending order of importance. 

3) Where the  criterion  for the award of the contract  is that of the 

most  economically  advantageous  tender,  contracting  entities  may 

take account of variants which are submitted by a tenderer and meet 

the  minimum  specifications  required  by  the  contracting  entities. 

Contracting  entities  shall  state  in  the  contract  documents  the 

minimum  specifications  to  be  respected  by  the  variants  and  any 

specific  requirements  for their  presentation.  Where  variants  are 

not permitted, they shall so indicate in the contract documents. 

4) Contracting  entities may  not reject the presentation of  a variant 

on the sole ground that it was drawn up on the basis of technical 

specifications defined with reference to European specifications or 

to  national  technical  specifications recognized  as  complying  with 

the 

essential 

requirements 

within 

the 

meaning 

of 

Directive 89/106/EEC. 

5) If, for a given contract, tenders appear abnormally low in relation 

to the services, the contracting entity shall, before it may reject 

those  tenders,  request  in  writing  details  of  the  constituent 

elements of the tender which it considers relevant and shall verify 

those  constituent  elements  taking  account  of  the  explanations 

received.  It may set a reasonable period within which to reply. 

The  contracting  entity  may  take  into  consideration  explanations 

which are justified on objective grounds relating to the economy of 

the construction  or production method, or the technical  solutions 

- 123 -

chosen, or the exceptionally favourable conditions available to the 

tenderer  for the execution of the contract, or the originality of 

the product or the work proposed by the tenderer. 

Contracting  entities  may  reject  tenders  which  are  abnormally  low 

owing to the receipt of State aid only  if they have consulted the 

tenderer and if the tenderer has not been able to show that the aid 

in  question  has  been  notified  to  the  Commission  pursuant  to 

Article 93(3)  of  the  Treaty  or  has  received  the  Commission's 

approval.  Contracting  entities which  reject  a tender  under these 

circumstances shall inform the Commission thereof. 

6) In  the  case  of  a  tender  for  the  award  of  a  service  contract 

submitted  by  a  public  authority  or  a  public  undertaking,  the 

contracting  entity  shall  in particular  enquire whether  the tender 

is influenced by public funds allocated for 

a) the setting-off of operating losses ; 

b) the provision of capital ; 

c) non-refundable grants, or loans on privileged terms; 

d) the granting of financial advantages by foregoing profits or the 

recovery of sums due ; 

e) the foregoing of a normal return on public funds used ; 

f) compensation  for  financial  burdens  imposed  by  the  public 

authorities. 

It shall inform the Commission if it intends to award a contract to 

a  tenderer  whose  tender  is  influenced  by  any  of  these 

characteristics. 

- 124 -

Article 28 

1) Article 27(1) shall not apply where a Member State bases the award 

of  contracts  on  other  criteria  within  the  framework  of  rules  in 

force  at  the time of  adoption  of  this  Directive whose  aim  is to 

give  preference  to  certain  tenderers, provided  the  rules  invoked 

are compatible with the Treaty. 

2) Without prejudice to paragraph 1, this Directive shall not prevent, 

until  31 December 1992, the application  of  national  provisions  in 

force on the award of supply or works contracts which have as their 

objective the  reduction of  regional  disparities  and the promotion 

of  job  creation  in disadvantaged  regions  or those  suffering  from 

industrial  decline,  provided  that  the  provisions  concerned  are 

compatible with  the Treaty  and with  the Community's  international 

obligations. 

Article 29 

1) This Article shall apply to tenders comprising products originating 

in  third  countries  with  which  the  Community  has  not  concluded, 

multilaterally or bilaterally, an agreement ensuring comparable and 

effective  access  for  Commumnity  undertakings  to  the  markets  of 

those  third  countries.  It  shall  be  without  prejudice  to  the 

obligations  of  the  Community  or  its Member  States  in  respect  of 

third countries. 

2) Any tender made for the award of a supply contract may be rejected 

where  the  proportion  of  the  products  originating  in  third 

countries,  as  determined  in  accordance  with  Council  Regulation 

(EEC) No  802/68 of  27 June 1968  on  the  common  definition  of  the 

concept  of  the  origin  of  goods (*),  as  last  amended  by 

(1)  OJ No L 148, 28. 6.1968, p.  1. 

- 125 -

Regulation  (EEC) No 3860/87 (*) exceeds  50% of the total value of 

the  products  constituting  the  tender.  For  the  purposes  of  this 

Article,  software  used  in  the  equipment  of  telecommunications 

networks shall be considered as products. 

3) Subject to paragraph 4, where two or more tenders are equivalent in 

the  light of the award  criteria defined  in Article 27, preference 

shall be given to the tenders which may not be rejected pursuant to 

paragraph 2.  The  prices  of  these  tenders  shall  be  considered 

equivalent  for  the  purposes  of  this  Article,  if  the  price 

difference does not exceed 3%. 

4) However,  a  tender  shall  not  be  preferred  to  another  pursuant  to 

paragraph  3  where  its  acceptance  would  oblige  the  contracting 

entity  to  acquire  material  having  technical  characteristics 

different  from  those  of  existing  material,  resulting  in 

incompatibility  or  technical  difficulties  in  operation  and 

maintenance or disproportionate costs. 

5) For  the  purposes  in  this  Article,  of  determining  the  proportion 

referred  to  in  paragraph  2  of  products  originating  in  third 

countries,  those  third  countries  to  which  the  benefit  of  the 

provisions  of  this  Directive  has  been  extended  by  a  Council 

Decision  in  accordance  with  paragraph  1  shall  not  be  taken  into 

account. 

6) The  Commission  shall  submit  an  annual  report  to the  Council  (for 

the  first  time  in  the  second  half  of  1991)  on  progress  made  in 

multilateral  or  bilateral  negotiations  regarding  access  for 

Community  undertakings  to  the  markets  of  third  countries  in  the 

fields  covered  by  this  Directive,  on  any  result  which  such 

negotiations  may  have  achieved,  and  on  the  implementation  in 

practice of all the agreements which have been concluded. 

(1)  OJ No L 363, 23.12.1987, p. 30. 

- 126 -

The Council, acting by a qualified majority on a proposal from the 

Commission, may  amend the provisions of this Article  in the light 

of such developments. 

Article 29a 

1) The  Member  States  shall  inform  the  Commission  of  any  general 

difficulties encountered, in law or in fact, by their undertakings 

in securing the award of service contracts in third countries. 

2) The Commission shall report to the Council before 31 December 1992 

and periodically thereafter on the opening-up of  service contracts 

in  third  countries  and  on  the  state  of  negotiations  with  these 

countries on this subject, particularly within the GATT framework. 

3) Whenever  the  Commission  establishes,  either  on  the  basis  of  the 

reports  referred  to  in  paragraph 2,  or  on  the  basis  of  other 

information, that  a third  country  as regards the award of service 

contracts, 

a) does  not  grant  Community  undertakings  effective  access 

comparable to that granted by the Community to undertakings from 

that country, 

b) does not grant Community undertakings national treatment or the 

same  competitive  opportunities  as  are  available  to  national 

undertakings, or 

c) grants  undertakings  from  other  third  countries  more  favorable 

treatment than Community undertakings, 

(3) 

- 127 -

the  Commission  may  initiate  negotiations  in  order  to  remedy  the 

situation. 

4) Under the conditions referred to in paragraph 3, the Commission may 

decide,  in  addition  to  action  taken  pursuant  to  that  paragraph, 

that the award of service contracts to 

a) undertakings  governed  by  the  law  of  the  third  country  in 

question, 

b) undertakings affiliated to the undertakings specified in (a) and 

having  their  registered  office  in the  Community  but  having  no 

effective  and  continuous  link  with  the  economy  of  a 

Member State, 

c) undertakings  submitting  tenders  which  have  as  their  object 

services originating in the third country in question, 

may be suspended or restricted during a period to be determined in 

the  decision.  The  Commission  may  decide  on  the  appropriate 

measures  either  on  its  own  initiative  or  at  the  request  of  a 

Member State, after consulting the Member States in accordance with 

the procedure  laid down  in Article 32(5),  (6) and  (7).  Where the 

Commission is asked to take action by a Member State, it shall take 

a  decision  within  a maximum  period  of  three months  of  receipt of 

the request. 

It shall notify the Council and the Member States of the decisions 

taken. 

Any Member State may refer the Commission's decision to the Council 

within  a  maximum  period  of  four weeks  from  the  date  of  the 

decision. 

- 128 -

The  Council,  acting  by  qualified  majority,  may  take  a  different 

decision within a maximum period of three months of such referral. 

5) This  Article  is  without  prejudice  to  the  obligations  of  the 

Community  in relation to non-member countries. 

TITLE V 

FINAL PROVISIONS 

Article 30 

1) The  value  in  national  currencies  of  the  thresholds  specified  in 

Article 12  shall  in  principle  be  revised  every  two  years  with 

effect  from the date provided  for in Directive 77/62/EEC as far as 

the thresholds  for  supply  and  service contracts  are  concerned  and 

from  the  date  provided  for  in Directive 71/305/EEC  as  far  as the 

thresholds  for works  contracts  are  concerned.  The  calculation  of 

such  value  shall  be  based  on  the  average  daily  values  of  those 

currencies  expressed  in ECU over the 24 months terminating  on the 

last  day  of  October  preceding  the  revision  with  effect  from 

1 January.  The values  shall be published  in the Official  Journal 

of the European Communities at the beginning of November. 

2) The  method  of  calculation  laid  down  in  paragraph  1  shall  be 

examined pursuant to the provisions of Directive 77/62/EEC. 

Article 31 

1) The  Commission  shall  be  assisted,  as  regards  procurement  by  the 

contracting  entities  exercising  an  activity  defined  in  Article 

2(2)(d),  by  a Committee  of  an  advisory  nature which  shall  be the 

-  129 -

Advisory 

Committee 

on 

Telecommunications 

Procurement.  The 

Committee  shall be composed  of representatives  of the Member  States 

and  chaired  by a representative  of the  Commission. 

2) The Commission  shall consult  this Committee  on: 

a) amendments  to Annex X; 

b) revision  of the currency  values of the thresholds; 

c) the  rules  concerning  contracts  awarded  under  international 

agreements; 

d) the  review of the application  of this Directive; 

e) the  procedures  described  in  Article  32(2)  relating  to  notices 

and  statistical  accounts; 

Article  32 

1) Annexes  I  to  X  shall  be  revised  in  accordance  with  the  procedure 

laid  down  in  paragraphs  3  to 7  with  a  view  to  ensuring  that  they 

fulfill  the criteria of Article 2. 

2) The  conditions  for  the  presentation,  dispatch, 

reception, 

translation,  keeping  and distribution  of the notices  referred  to in 

Articles  16, 17, and  18 and of the  statistical  reports provided  for 

in  Article  34,  shall  be  established,  for  the  purposes  of 

simplification,  in  accordance  with  the  procedure  laid  down  in 

paragraphs  3 to 7. 

3) The  revised  Annexes  and  the  conditions  referred  to  in paragraphs  1 

and  2  shall  be  published  in  the  Official  Journal  of  the  European 

Communities. 

- 130 -

4) The  Commission  shall  be  assisted  by  the  Advisory  Committee  for 

Public  Contracts  and,  in the case of the revision  of Annex X, by 

the  Advisory  Committee  on Telecommunications  Procurement  provided 

for in Article 31 of this Directive. 

5) The Commission representative shall submit to the Committee a draft 

of  the  decisions  to  be  taken.  The  Committee  shall  deliver  its 

opinion on the draft within a time limit which the Chairman may lay 

down according to the urgency of the matter, if necessary by taking 

a vote. 

6) The  opinion  shall  be  recorded  in  the  minutes;  in  addition, each 

Member  State  shall  have  the  right  to  ask  for  its position  to be 

recorded in the minutes. 

7) The  Commission  shall  take  the  utmost  account  of  the  opinion 

delivered  by the Committee.  It shall  inform the Committee of the 

manner in which its opinion has been taken into account. 

Article 33 

1) Contracting  entities  shall  keep  appropriate  information  on  each 

contract which shall be sufficient  to permit them at a later date 

to justify decisions taken in connection with: 

a) the qualification and selection of contractors, suppliers or of 

providers of services and award of contracts; 

b) recourse to derogations from the use of European specifications 

in accordance with Article 13(6); 

c) use  of  procedures  without  prior  call  for  competition  in 

accordance with Article 15(2); 

- 131 -

d) non-application of Titles II, III and IV in accordance with the 

derogations provided for in Title I. 

2) The information shall be kept for at least 4 years from the date of 

award of the contract so that the contracting entity will be able, 

during  that  period,  to  provide  the  necessary  information  to  the 

Commission if it so requests. 

Article 34 

1) The Member  States shall ensure that each year, in accordance with 

the arrangements to be  laid down under the procedure provided  for 

in  Article 32(3)  to (7), the  Commission  receives  a  statistical 

report concerning the total value, broken down by Member State and 

each  category  of  activity  to which  Annexes I to  X  refer, of  the 

contracts awarded below the thresholds defined  in Article 12 which 

would, if they were not below those thresholds, be covered by this 

Directive. 

2) Arrangements  shall  be  fixed  in  accordance  with  the  procedure 

referred to in Article 32 to ensure that: 

a) in the interests of administrative  simplification, contracts of 

lesser  value  may  be  excluded,  provided  that  the  usefulness of 

the statistics is not jeopardized; 

b) the  confidential  nature  of  the  information  provided  is 

respected. 

Article 35 

1) Article  2(2)  of  Directive  77/62/EEC  is  hereby  replaced  by  the 

following: 

"2.This Directive shall not apply to: 

- 132 -

a) contracts awarded in the fields referred to in Articles 2, 7, 

8  and 9 of Council Directive 90/531/EEC of 17 September 1990 

on  the  procurement  procedures  of  entities  operating  in the 

water, energy, transport and telecommunications sectors(*) or 

fulfilling  the  conditions  in  Article  6(2)  of  the  said 

Directive; 

b) supplies  which  are  declared  secret  or  when  their  delivery 

must  be  accompanied  by  special  security  measures  in 

accordance  with  the  laws,  regulations  or  administrative 

provisions in force in the Member State concerned or when the 

protection of the basic interests of that State's security so 

requires. 

(*) OJ No L 297, 29.10.1990, p.l." 

2) Article 3(4) and  (5) of Directive 71/305/EEC is hereby replaced by 

the following: 

"4.This  Directive  shall  not  apply  to  contracts  awarded  in  the 

fields referred to in Articles 2, 7, 8 and 9 of Council Directive 

90/531/EEC  of  17 September  1990 on  the procurement  procedures of 

entities  operating  in  the  water,  energy,  transport  and 

telecommunications  sectors (*)  or  fulfilling  the  conditions  in 

Article 6(2) of the said Directive. 

(*) OJ No L 297, 29.10.1990, p.l." 

- 133 -

Article 36 

Not later than four years after the application of this Directive, the 

Commission,  acting  in  close  cooperation  with  the  Advisory  Committee 

for Public Contracts, shall review the manner in which this Directive 

has operated  and  its field of application  and if necessary, it shall 

make  further proposals to adapt  it, in the light of developments and 

the  level  of  competition.  In  the  case  of  entities  exercising  an 

activity defined in Article 2(2)(d), the Commission shall act in close 

cooperation  with  the  Advisory  Committee  on  Telecommunications 

Procurement. 

Article 37 

1) Member States shall adopt the measures necessary to comply with the 

provisions relating to works and supply contracts of this Directive 

by  1  July  1992.  They  shall  forthwith  inform  the  Commission 

thereof. 

Member  States  may  stipulate  that  the  measures  referred  to  shall 

apply only from 1 January 1993. 

2) Member  States  shall  apply  the  measures  relating  to  service 

contracts by 1 January 1993. 

3) Nevertheless, in the case of the Kingdom of Spain, 1 January  1993 

shall  be  replaced  by  1  January  1996.  As  regards  the  Hellenic 

Republic  and  the  Portuguese  Republic,  1  January  1993  shall  be 

replaced by 1 January 1998. 

- 134 -

4) Council  Recommendation  84/550/EEC  of  12  November  1984  concerning 

the  first phase of opening up access to public  telecommunications 

contracts (1)  shall cease to have effect as from the date on which 

this Directive is applied by the Member States. 

Article 37a 

When  Member  States  adopt  the  provisions  referred  to  in  Article  37 

these  shall  contain  a  reference  to  this  Directive  or  shall  be 

accompanied  by  such  reference  at  the  time  of  their  official 

publication. The procedure for such reference shall be adopted by the 

Member States. 

Article 38 

Member States shall communicate to the Commission the text of the main 

provisions  of  national  law,  whether 

laws,  regulations  or 

administrative  provisions, which they adopt  in the field governed by 

this Directive. 

Article 39 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the Council 

The President 

(1)  OJ No L 298, 16.11.1984, p. 51. 

-  135 -

FINANCIAL  STATEMENT 

1.  Title of opérât ion 

Proposal  for  a  Council  Directive  amending  Directive  90/531/EEC  on  the 
procurement  procedures  of  entities  operating  in  the  water,  energy, 
transport  and  telecommunications  sectors. 

2.  Budget  heading  involved:  B5-304 

3.  Legal  basis 

Articles  52, 57(2),  66, 100a  and  113 of  the EEC  Treaty. 

4.  Description of  operation 

4.1  Specific  oblectives of  operation 

Opening  up  of  public  procurement 
in  services  through  the 
harmonization  of  national  rules  for  the  award  of  contracts; 
transparency  of  procedures  as regards  the preparation of  contracts, 
advertising  of  tenders  and  the  results of  the award  procedures. 

4.2  Durât ion 

Indefinite, although  decisions  are  taken  specifically  every  year. 

4.3  Target  population 

Operators  inside and outside  the  Community. 

5.  Classification of  expenditure 

Non-compulsory. 

Non-di fferent iated  appropr iat ions. 

6.  Type of  expenditure 

See point  7.1. 

7.  Financial  impact 

7.1  Method  of  calculation 

The  figures  mentioned  below  show  the  cost  of  approximately  1 500 
notices  in  1993,  especially  notices  on  the  existence  of  a 
qualification  system  and  notices  on  contracts  awarded  (tender 
notices  to a  lesser  extent) 

-  136 

and  approximately  10 000 notices  in 1994  (increase  in the  number  of 
periodic  information  notices and  notices on  contracts  awarded). 
In  the  Supplement  to  the  Official  Journal  of  the  European 
Communities  (Series  S ), each  page  will  contain  two  notices.  The 
Directive  will  therefore  mean  an extra  750  pages  in  1993  and  5 000 
in  1994.  Since  each  page  costs  ECU  160.48,  the  expenditure 
entailed  by  the Directive will  be: 

ECU 
ECU 

in 1993, and 
in 1994. 

However,  it  is  difficult  to  quantify  the  additional  expenditure 
resulting  from  the  implementation  of  the  Directive.  The  programme 
for  opening  up  public  procurement  comprises  several  measures  which 
will  enter  into  force  progressively  and  which  involve  additional 
expenditure.  Moreover,  contracting  authorities  covered  by  the 
directives  already  in  force  are  tending  increasingly  to  fulfil 
their  advertising  obligations.  Compliance  with  the  advertising 
rules  will  also  be  improved 
in  the  years  ahead  by  the 
implementation  in  all  Member  States  of  Community  rules  ensuring  a 
minimum  of  legal  protection  for  firms which  believe  they  have  been 
discriminated  against  by contracting  authorities' decisions. 

In  addition,  the  Commission  is  in  the  process  of  launching 
important  measures  to  reduce  further  the  costs  of  the  Supplement, 
e.g.  by  introducing  fully  standardized  notices. 

The  additional  expenditure  described  above  will  be  taken  into 
account  in  the  budget  forecasts  submitted  under  the  annual  budget 
procedure. 

7.2  Proportion  of mini-budget  in total  cost  of  operation 

No mini-budget. 

7.3  Indicative  schedule  (commitment  appropriations) 

Not  applicable  (specific  measure). 

8.  Anti-fraud  provisions  planned  in the proposal  for  the operation 

The usual  general  provisions  laid down  by  Financial  Control. 

9.  Elements of  cost-effectiveness  analysis 

9.1 Assessment  and  analysis of objectives 

Public  supply,  works  and  services  contract  notices  communicated  by 
the Member  States pursuant  to Community  directives or  by  certain 

-  137 -

non-member  countries  (in  particular,  Japan,  the  United  States  and 
the  EFTA  countries)  under  the  protocol  concluded  within  the  GATT 
are  published  in  the  S  series  of  the  OJ  (Supplement)  after 
adaptation  and  translation. 

The  Supplement  will  be  considerably  expanded  in  the  years  ahead, 
since  public  procurement  is an  essential  part  of  the  large  single 
market  (1992).  The  Community  directives  will  be  improved  and 
extended  to new sectors. 

Because  of  the  large  single  market,  the  Supplement  will  expand 
faster  than  the other  series of  the Official  Journal.  It  therefore 
seemed  appropriate  to  enter  the  appropriations  for  the  Supplement 
in  Part  B  of  the  budget  (Chapter  5-30,  which  is  devoted  to  the 
internal  market). 

9.2  Grounds  for  the  operation 

Explicit  consequence  of Council  directives. 

9.3  Evaluât ion 

See  point  7.1. 

- 138 -

FICHE D'IMPACT SUR LA COMPETITIVE ET L'EMPLOI 

i. Titre de la proposition 

Proposition  de  Directive  modifiant  la  Directive  90/531/CEE  relative  aux 
procédures  de  passation  des  marchés  dans  les  secteurs  de  l'eau,  de 
l'énergie,  des transports et des télécommunications. 

II. Quelle est  la  lust IfIcatIon principale de la mesure? 

La  proposition  de directive  étend  le régime  de  la directive  90/531/CEE aux 
services  et  vise  à  ce  que  les  procédures  de  passation  de  marchés  de 
services  soient  transparantes,  et  que  les  soumissionnaires  de  tous  les 
Etats  membres  soient  traités  d'une  manière  non-dlscrimlnatoire. 

III. Caractéristiques des entreprises  concernées 

En  oartlcul1er: 

Y-a-t-ll  un grand  nombre de PME? 

Les  prestataires  de  certains  services  sont  dans  de  nombreux  cas des PME. 
Certains  marchés  couverts  par  la  directive  visent  des  services  qui  sont 
réservés,  dans  certains  Etats  membres,  à  des professions  libérales  comme 
les architectes. 

Note-t-on des concentrations dans des réglons 

-  éllglbles aux aides  régionales des E.M.? 

Non 

-  élIglbles au Feder? 

Non 

IV. Quelles  sont  les obligations  Imposées  directement  aux entreprises? 

Aucune  obligation  n'est  Imposée aux prestataires de services. 

V. Quelles  sont  les obligations  susceptibles  d'être  Imposées  Indirectement 

aux  entreprises  via  les autorités  locales? 

Néant 

VI.  Y-a-t-tl  des mesures  spéciales  pour  les PME?  Lesquelles? 

La  proposition  contient  des éléments  Importants  visant à: 

-  encourager  la  sous-traitance  par  une  clause  permettant  aux  entités 
adjudlcatrIces  de  tenir  compte  de  la  sous-traitance  prévue  par  les 
soumissionnaires  (Article 21) 

139 -

-  restreindre  la concurrence  de  la part  des grandes  entreprises, en  ce qui 
concerne 
la  prestation  de  services  réservés  à  des  professions 
déterminées  (Article  26 paragraphe  2 ), et  en  ce qui  concerne  la prise  en 
compte  de  variantes  (Article  27 paragraphe 3 ). 

En  ce  qui  concerne  les  critères  de  sélection,  la  directive  prévoit,  en 
outre  les  dispositions  également  prévues  pour  les  travaux  et  les 
fournitures,  des  critères  particulièrement  favorables  aux  PME  et  aux 
professions 
l'efficacité, 
l'expérience  et  la  fiabilité. 

libérales:  le  savoir 

Intellectuel, 

faire 

V I I.  Quel  est  l'effet  prévisible 

a) sur  la compétitivité  des entréprises? 

La mesure  vise  a  renforcer  la compétitivité  des prestataires  de  services 
de  l'ensemble  des  Etats membres. 

b) sur  I'emploi? 

Les  conséquences  sur  l'emploi,  sont  susceptibles  de  varier  d'un  secteur 
de  services  à  l'autre,  mais  peuvent  toutefois  être  considérées  comme 
I Imitées. 

VIII.  Les  partenaires  sociaux  ont-Ils  été  consultés?  Quels  sont  leurs  avis? 

Les  consultations  ont  lieu  par  la  vole  du  Comité  consultatif  pour 
l'ouverture  des  marchés  publics,  au  sein  duquel  sont  représentés  et 
l'Industrie  et  la Confédération  Européenne  des  Syndicats.  Les  avis  énoncés 
par  les membres  du Comité  sont  largement  favorables. 

ISSN 02S4-1475 

C0M(91) 347 final 

DOCUMENTS 

EN 

06 

Catalogue number : CB-CO-91-481-EN-C 

ISBN 92-77-76914-9 

Office for Official Publications of the European Comrrmmties 
Lr2985 Luxembourg