Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
Date: 1996-11-20
Institutions: European Commission
Subjects: application of EU law, directive (EU), public contract, telecommunications

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

•it 
•it 
à 

<r 
<i 
it 

Brussels,  20.11.1996 
COM(96)  598  final 

95/  0080  (COD) 

Amended  proposal  for  a 

EUROPEAN  PARLIAMENT  AND COUNCIL  DIRECTIVE 

amending 

Directive 93/38/EEC coordinating the procurement procedures of entities 
operating in the water, energy, transport and telecommunications sectors 

(presented  by  the Commission  pursuant  to Article  189 a (2) 
of the  EC-Treaty) 

List of contents 

EXPLANATORY  MEMORANDUM 
Introduction 
I 
Detailed analysis of Articles 
II 

PROPOSAL FOR A PARLIAMENT AND COUNCIL DIRECTIVE 
Preamble 
Article 1: Amendments to Directive 93/38/EEC 
Articles 2 - 5: Final provisions 
Annex 

Annex XII A 
Annex XII B 
Annex XII C 
Annex XIII 
Annex XIV 
Annex XV 

I 

1. 

2. 

Explanatory Memorandum 

Introduction 

The  Government  Procurement  Agreement  (GPA  or,  in  French,  AMP) 
forms  an 
integral  part  of  the  legal  order  of  the  Community  through  Council  Decision 
94/800/EEC of  22  December  1994, which  approves  the  agreements  reached  in  the 
Uruguay  Round  multilateral  negotiations.  TTiis  does,  however,  not  entail  that  its 
provisions can be directly invoked before the jurisdictions of the Community  and the 
Member States (last recital of Decision 94/800/EEC). Consequently, the GPA entered 
into force in the Community on  1  January  1996 as stipulated in its Article XXIV. Its 
implementation by the Community does not therefore, per se, require any transposing 
measures. 

b) 

The  Commission  has,  nevertheless  proposed  a  series  of  modifications 
to  the 
Directive, aimed at inserting  some provisions of the GPA in the Directives in order 
to: 
a) 

avoid discrimination against Community companies and give them  the same 
advantages that third country companies enjoy pursuant to the GPA; and 
ensure  coherence  between  the  two  legal  regimes.  This  way  contracting 
authorities, which are subject to both the directives and the GPA, will be able 
to conform  to the GPA by applying the provisions of the amended Directives. 
They  would  otherwise  be  obliged  to  know  both  legal  regimes  perfectly,  to 
highlight the differences between them and to draw the correct consequences of 
these differences. That would seem to be a difficult  process which could lead to 
significant  differences  in  the  application  of  Community  law  in  the  different 
Member States. 

This does not in any way constitute a unilateral opening of the  Community  markets 
to companies from  third countries. The GPA and the Community  Directives are two 
distinct legal realities. The former regulates the relations between the Community and 
third countries having  signed the GPA with regard to the contracts covered  therein. 
The  rights  for  companies  from  third  countries  to  access  to  contracts  awarded  by 
contracting  authorities  and  contracting  entities  in  the  Community  are  therefore 
governed by the GPA. The Directives, whether amended or not, only deals with the 
intra-Community  relations,  that  is  the  relations  between  the  European  contracting 
entities  and  authorities  and  the  European  companies.  It  does  not  create  rights  for 
companies  from  third  countries,  whose rights exclusively  derive  from  the  GPA  or 
other international agreements. 

The Commission is, in other words, trying to ensure that European  companies 
are given  a level  playing field by proposing to amend  the directives. With  few 
minor  and  strictly  technical  exceptions,  which  are  necessary  for  reasons  of 
legislative  technique,  the  Commission  intends  to  limit  itself  to  amending  the 
directives  only  insofar  as  this  is  strictly  necessary 
in  order  to  avoid 
discrimination against Community companies. 

3.  On 30 March  1995, the Commission  sent the Council  and  the  European  Parliament 
two proposals  for  a  Directive  of  the  Council  and  of  the  European  Parliament,  one 
amending  Directives  92/50/EEC,  93/36/EEC  and  93/37/EEC  (regarding 
the 
procurement of,  respectively, services, supplies and works by public authorities), and 
the other amending  Council Directive  93/38/EEC  of  14 June  1993 coordinating  the 
procurement  procedures  of  entities  operating  in  the  water,  energy,  transport  and 
telecommunications  sectors.  Only  the  latter  will  be  examined  in  the  following 
paragraph. 

4. 

In  July  1995,  the  Economic  and  Social  Committee  adopted  its  Opinion  on  the 
proposals,  in  which  certain  aspects  of the  proposal  amending  Directive  93/38/EEC 
were criticized, notably with regard to the scope of the proposal, the provision on the 
so-called "technical dialogue" and the amendments to the model notices (annexes XII 
- XV of the Directive). 

5.  A  hearing  organized  by  the  European  Parliament  on  31  October  1995  as  well  as 
numerous  contacts with different  sectors of industry made it clear that the proposal 
amending Directive 93/38/EEC (hereafter  referred  to as the Directive or the "utilities 
directive")  was the  subject  of  some misunderstandings,  in particular  with  regard  to 
the effects  of the proposal for companies of third countries. In fact, many considered 
that  the  proposals  were  aimed  at  implementing  the  GPA  and  that  third  country 
companies  would  have  access  to  all  award  procedures  covered  by  the  proposal, 
regardless of whether the sector, contract or entity is subject to the GPA. See however 
point 2 above. 

It  also  became  clear  that  some  of  the  proposed  amendments,  particularly  those 
concerning the "technical dialogue", the amendments to the annexes (model notices) 
and the obligation to inform  rejected participants of the reasons for the rejection  of a 
tender  or request  to  participate,  raised  numerous  concerns  among  the, organisations 
represented. 

6. 

In October  19% the  European  Parliament  adopted  its  legislative  resolution,  which 
rejects  the  Commission's  proposal  and  invites  it  to  take  appropriate  measures  in 
cooperation with the European  Parliament  in order to present a new proposal  which 
provides  for  the  implementation  of  the  GPA  by  means  of  a  specific  (separate) 
directive. 

7.  While the Commission has not accepted the idea of a separate directive, as it presents 
a series of major drawbacks, it has nevertheless examined together with the European 
Parliament  the  possibilities  of  improving  its  proposal.  All  in  all,  the  Commission 
considers  that  there 
is  room  to  improve  its  proposal  through  appropriate 
modifications  and clarifications,  the more so as a revision of the proposal  aimed  at 
clarifying  and simplifying  the proposal is in full  line with the Commission's  general 
policy on better law-making  . 

The principal amendments introduced in the revised proposal consist in: 

-  a clarification  of the fields of application of the GPA and the directives as well as 
a clear statement as to the legal regime applicable to third country companies; 

- 

- 

- 

- 

the earlier provision on "technical dialogue" has been replaced by a  recital; 

the changes to the thresholds have been limited to the contracts and  sectors, which 
are subject to the GPA; 

the obligation to inform eliminated candidates or tenderers of the  reasons for their 
rejection  and  eliminated  tenderers  of  the  characteristics  and  advantages  of  the 
tender selected has been limited to the sectors covered by the GPA; 

the amendments to the model notices, and in particular the notice on  the existence 
of a qualification  system (Annex XIII) and the periodic information notice (Ajinex 
XIV), have been limited to what is explicitly required by the GPA as is the case 
regarding the information  to be provided by contracting entities when they  invite 

^"'.'Better Law-Making: Commission Report to the European 
Council on the application of the subsidiarity and 
proportionality principles, on simplification and on 
consolidation", CSE  (95) 580. 

candidates to confirm  their interest following  publication  of a periodic  indicative 
notice used as a means of calling for competition; and 

- 

the introduction of an obligation on the Commission to respect the  commercially 
sensitive nature of information communicated by contracting entities in notices on 
contracts awarded and concerning prices. 

II  Analysis of the recitals and articles. 

The following paragraphs explain the modifications which have been introduced. 

8.  Recitals. 

The third  recital has been amended to make it clear that the rights of third- country  firms 
depend  only  on the GPA and not on the amended  Directives. It is also aimed  at giving a 
clear  picture  of  what  is  not  covered  by  the  GPA  but  does  fall  within  the  scope  of  the 
Directive and it likewise stresses that the amendment of the Directive cannot have anything 
to do with reciprocity or non-reciprocity vis-à-vis firms in non-member signatory countries. 
The Directive deals only with intra-Community relations, i.e. relations between contracting 
entities and firms within the Community, and does not create any rights which benefit firms 
in third countries; such rights can only flow from the GPA.  This should also help to make 
it  understood  that  the  Directive  can be  amended  in respect  of  private  entities  (in  sectors 
covered by the GPA or not) without granting third-country firms access to contracts put up 
for tender by these contracting entities. 

A  new  twelfth  recital  has  been  inserted  instead  of  the  earlier  proposed  amendment  to 
Article  18. The purpose of the recital is to give an explicit reminder of what already  follows 
from  current  Community  law  as  applied  to  technical  advice.  In  fact,  while  nothing  in 
current Community  Law prevents entities seeking or accepting advice which may be used 
in the preparation of specifications  for a particular procurement from a firm that could take 
part  in  the  tender  procedure,  such  is  not  the  case  pursuant  to  current  Community  Law 
where  so  doing  would  this  prejudice  the  principle  of  equal  treatment,  in  particular  by 
precluding competition. This being the case* there is no need to amend the provisions of the 
Directive in order to take into account Article VI(4) of the GPA. 

The wording of recitals  10 and  11 have been changed to take into account the amendments 
of the articles. 

9.  Article 1 

Article  1 has been amended in parallel with the third recital and for the same purpose (see 
point 7 above). 

10.  Article 14 (1) - thresholds. 

This amendment limits the changes to the thresholds so that these are amended  exclusively 
with  regard  to  the  sectors  and  contracts,  which  are  subject  to  the  GPA.  In  line  with  the 
general approach of the Directive, the applicability of which does not depend on the public 
or  private  statute  of  contracting  entities,  the  amended  thresholds  continue  to  apply  to all 
contracting entities operating  in any given sector, whether these are public undertakings or 
private undertakings operating on the basis of special or exclusive  rights. 
Letter  a  establishes  the  thresholds  applicable  to  the  telecommunications  sector.  These 
thresholds are unchanged as compared to the currently applicable ones. 
Letter  b  introduces  the  new thresholds, which  are applicable  to  the  sectors  subject  to the 
GPA  (i.  e.  the  drinking  water,  electricity,  (urban)  transport,  airport  and  port  sectors). 
Regarding service contracts in particular, two thres holds are provided for as subparagraph i 
applies to the types  of  service  contracts, which  are  subject  to the  GPA  (i. e. the  services 
listed 
the  exception  of  R&D-services  and  certain 
telecommunications  services),  whereas  subparagraph  ii  applies  to  all  other  service 
contracts  subject  to the Directive  (i. e. the two just  mentioned  categories and the types of 
services listed in Annex XVI B). 

in  Annex  XVI  A  with 

-6 

Letter c provides the thresholds  applicable  to the remaining  sectors  not  subject  to the  GPA. 
These thresholds are  unchanged. 

The Commission  originally  introduced  Iwo paragraphs  on  thresholds.  It  is now  proposed  to 
simplify  the proposal  by  gathering these provisions  in a single  paragraph. 

11.  Article  14 (14) to (16) Calculation  of the value in national  currencies  and in ecus 

of the thresholds. 

As  a  result  of  the just  mentioned  simplification,  these  paragraphs  have  been  renumbered, 
but are otherwise  unchanged. 

12.  Article  21  (2)  (c)  Information  requirements  in  relation  to  periodic  indicative 

notices used as a means of calling for  competition. 

This  provision  has  been  amended  so  that  the  information  required  is  limited  to  what  is 
explicitly required pursuant to Article IX (4) and (6) of the  GPA. 
Currently, the  Directive requires contracting  entities to invite all candidates to confirm  their 
interest  on  the  basis  of  "detailed  information  on  the  contract  concerned".  In  order  to 
maintain  the  proposal  simple  and  to  avoid  speculations  as  to  whether  and  if  so  how 
"detailed  information"  differs  from  the  explicitly  listed  information,  the  amendments 
continue  to  be  applicable  to  all  contracting  entities,  sectors  and  contracts,  whether  or  not 
covered  by the  GPA. 

13.  Article  22  (1)  (b)  thresholds  for  the  publication  of  periodic  indicative  notices 

regarding works  contracts. 

In  line  with  the  changes  to  Article  14(1),  the  thresholds  for  the  publication  of  periodic 
indicative  notice  regarding  works  contracts  have  been  amended  so  that  they  remain 
unchanged  for the sectors not covered by the GPA. 

14.  Article 23 (1) and (2) thresholds applicable to design  contests. 

These  thresholds  have  been  amended  in  the  same  way  that  the  general  provision  on 
thresholds  in  Article  14  (1)  has  been  amended.  This  means  that  the  thresholds  remain 
unaltered  compared  to  those  currently  applicable  with  regard  to  the  contracts  and  sectors, 
which  are  not  subject  to  the  GPA.  For  the  reasons  explained  above,  the  thresholds  are 
amended  in respect  of all the  contracting  entities  - both public  and private, operating  in  the 
sectors  covered  by  the  GPA,  when  organising  design  contests  concerning  a  service,  which 
is also covered  by the GPA  (i. e. an Annex XVI A service except  R&D  services and  certain 
telecommunications  services). 

15.  Article  24  (2)  confidentiality  of  certain  aspects  of  the  information  to  be 

communicated  on the award of contracts. 

This  amendment,  which  is  in part  a  simple  consequence  of the  amendments  to  Annex  XV 
(model  notice  on  contract  awards),  aims  at  ensuring  that  the  Commission  respects  the 
sensitive  commercial  aspects,  in  particular  regarding  the  price,  of  the  information  on 
contract awards, which contracting entities must transmit to the  Commission. 

16.  Article  26  (1)  Shortened  deadlines  in  open  procedures  following  publication  of 

an indicative  notice. 

The  amendments  are  aimed  at  rendering  the  deadlines  more  flexible  and  at  clarifying  the 
information  requirements  in accordance with the amendments to Annex XIV. The  deadlines 
have  also  been  changed  so  as  to  be  calculated  in  all  cases  from  the  date  of  dispatch  of 
notice. 

17.  Article 26 (2) Deadlines  under restricted or negotiated  procedures. 

- 7-

This  provision  has  been  simplified  as  compared  to  the  Commission's  original  proposal, 
notably  as regards the deadlines  for the receipt  of tenders.  Given,  in fact,  the  unconditional 
possibilities  of agreeing  the deadline  or shorten  it, the introduction  of the general  minimal 
deadline  and  the  possibility  of  shortening  the  deadline  following  the  publication  of  a 
periodic  indicative  notice  have  been  seen  as bringing  about  little  change  in practice  and as 
rendering  a  complex  text  necessary.  With  the  exception  of  the  slight  lengthening  of  the 
deadline  for  the  receipt  of  requests  to  participate  (from  5  weeks  to  37  days  as  a  general 
rule),  which  was introduced  in the Commission's  original  proposal,  the text  now  proposed 
is identical to the currently  applicable text. 

18.  Article 28 (5) Transmission  of requests to participate by electronic  means. 

This  provision  has been  rendered  more  flexible,  as it has been  left  with the Member  States 
to  decide  whether  to  require  written  confirmation  in  case  of  transmission  of  requests  to 
participate by electronic means. 

19.  Article 28 (6) Submission of tenders by electronic  means. 

This  provision  has been  simplified  so that  it now limits  itself to the essential  conditions  to 
be  met  where  Member  States  authorize  the  submission  of  tenders  by  other  means  of 
transmission  than  by  mail  or  by  direct  delivery  of  a  written  tender.  Other  means  of 
transmission  may, in  fact,  be  authorized  where  the means  of transmission  offer  sufficient 
guarantees  of ensuring  confidentiality  and where  the it can be ensured  that  the opening  of 
tenders  take  place  after  expiration  of the relevant  deadline.  Where  necessary  for reasons of 
legal proof, it may also be required that such tenders be confirmed  in writing or by dispatch 
of a certified  copy. 

The  Commission  considers  that  the necessary  confidentiality  can be guaranteed  in case  of 
tenders presented on diskette or on any other medium and submitted  under cover directly  or 
by mail. In line with its original  proposal, the Commission  also continues to consider that it 
is  technically  possible  to  ensure  at  least  an  equivalent  level  of  confidentiality  using 
electronic means, in particular electronic mail, for the submission of tenders. 

The  explicit  provision  of the  original  proposal  that  tenders  submitted  by telephone  are not 
permitted  has  been  deleted  because  the  economy  of  the  text  now  proposed  renders  it 
superfluous.  Such means of transmission continues, of course, to be unacceptable. 

20. 
Article 41 Information  to rejected candidates and tenderers. 
Besides  a  new  structure,  which  is  easier  to  read,  the  major  change  has  been  to  limit  the 
obligations of paragraphs  3 and 4 to contracting  entities operating  in the sectors covered by 
the  GPA. Within these  sectors, the obligations  apply, however,  in respect  of all  contracting 
entities,  whether  public  or private.  Paragraph  3 has furthermore  been  formulated  so  as  to 
correspond  more  clearly  to  Article  XVIII  (3)  of  the  GPA.  Information  regarding  other 
tenderers  has furthermore  been  restricted  to tenderers  having  made  an  "admissible  tender" 
in order to avoid abuses. 

21. 

Article 42 Statistical  obligations. 

This  provision  has been  changed  in the sense  that  the  information  to be con tained  in the 
annual  report  is  no  longer  listed  in  the  provision  itself.  Instead,  the  provision  now 
establishes  that  the  report  shall  "contain  the  information  necessary  to  verify  the  proper 
application  of  the  GPA".  The  precise  content  of  the  report  and  the  modalities  for  its 
transmission  etc.  will  be  laid  down  in  the  Advisory  Committee  in  accordance  with  the 
procedure  provided  for in Article 40 (4) to (8), also  in view of the  fact  that  negotiations  on 
the  details  of the  statistical  obligations  are ongoing  within  the WTO. The  other  change  to 
this Article  consists in an exhaustive  listing of the  categories  of service  contracts  which are 
not subject to the statistical  obligations of this provision. 

22. 

Article 42a 

The terminology  of this Article  has been corrected,  in that reference  is made to the  GPA 
instead of to the G ATT-Agreement. 

- 8-

23. 

Annexes XII to XV (model notices). 

The changes to Annex XII are purely redactional. 

Annex  XIII  has been greatly  simplified  and the few changes as compared  to the currently 
applicable Annex XIII are undisputably  limited to what follows explicitly from  the relevant 
parts of Article IX of the GPA. 

Annex  XIV has been  restructured  and simplified  and the few  changes  as compared  to the 
currently  applicable  Annex  XIV  arc  undisputably  limited  to  what  follows  explicitly  from 
the relevant parts of Article IX of the GPA. 

Finally, the changes to Annex XV are purely redactional, with the exception of the footnote 
echoing the amendments to Article 24 (2) (see also point 14 above). 

Other provisions. 

24. 
Article 30 (1) (Access to qualification  systems), Article 35 (1) (other award criteria) and the 
deletion  of  Article  38  have  not  been  changes  as  compared  to  the  Commission's  original 
proposal. 

25. 

Other changes. 

A  certain  number  of  provisions,  which  it  was  proposed  to  amend  in  the  Commission's 
original proposal, have been deleted  from  this revised proposal as a direct consequence  of 
the amendments now introduced.  Such is, for instance, the case regarding the amendments 
to Article  14(10) and (11), which are no longer necessary since the thresholds are no longer 
contained  in  two  different  paragraphs  of  that  Article.  Another  example  is  given  by  the 
amendments  to  Article  22  (3),  which  are  no  longer  necessary,  given  the  now  proposed 
amendments to Article 26 (2). 

The  amendment  of  Article  20  (2)  (f),  which  was  proposed  in  the  Commission's  original 
proposal,  has  also  been  deleted,  as  it  is  not  indispensable,  in  practice,  in  order  to  avoid 
discrimination  against  European  companies,  given  that  contracting  entities,  which  are 
subject  to  the  GPA, will  in  any  case  be  obliged  to  apply  the  corresponding  provision  of 
Article XV (1) (f)  of the GPA, which provides that contracts concerning additional  works 
may  be awarded  by negotiated  procedure  without  prior publication  only  in respect  of an 
aggregate  50% of the value of the original contract. Consequently, where the value  of the 
additional  works  is  above  an  aggregate  50%  of  the  value  of  the  original  contract,  such 
contracting entities must, in any case, publish a notice in the O.J.E.C, which will also serve 
to alert European companies to the coming award procedure. 

26. 

Article 2 Dates of entry into force. 

The date for implementation mentioned in paragraph  1  is provisional. Paragraph 2 has been 
changed  in order  to make  it clear that, pursuant to point  9 of the  Community's  "General 
Notes and  Derogations  from  the provisions of Article  III", the derogation  accorded  to the 
Kingdom of Spain only concerns service contracts. 

Amended  Proposal for a 
DIREC TIVE OF THE  EUROPEAN  PARLIAMENT  AND OF THE  COUNCIL 
amending 
Directive 93/38/EEC  coordinating  the procurement  procedures  of entities  opcniting 
in the water, energy, transport  and  telecommunications  sectors 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN 
UNION 

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

Having regard to the proposal from the Commission  , 

Having regard to the opinion of the Economic and Social Committee 

Acting in accordance with the procedure referred to in Article  189b of the Treaty4 

1.  Whereas  by  its  Decision  94/800/EC  concerning  the  conclusion  on  behalf  of  the 
European  Community,  as regards  matters  within  its  competence,  of  the  agreements 
reached  in  the  Uruguay  Round  multilateral  negotiations  (1986-1994)  ,  the  Council 
approved  on behalf  of the European  Union  inter  alia the Agreement  on  Government 
Procurement,  hereinafter  referred  to  as  "the  Agreement",  the  purpose  of  which  is to 
establish  an  international  framework  of balanced  rights  and  obligations  with  respect 
to government  procurement  with a view to achieving  liberalization  and expansion  of 
world trade; 

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

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

service  contracts  mentioned 

4.  Whereas, certain provisions of the Agreement  introduce more  favourable  conditions 

for tenderers than those laid down in Directive 93/38/EEC; 

5.  Whereas, when  contracts  are awarded  by contracting  entities  within  the meaning  of 
the  agreement,  the  opportunities  for  access  to  public  supplies,  works  and  service 
contracts  available  under  the  Treaty  to undertakings  and  products  from  the  Member 
States  must  be  at  least  as  favourable  as the  conditions  of  access  to  public  contracts 
within  the  Union  accorded  under  the  arrangements  contained  in  the  Agreement  to 

2OJ  N  C 
3OJ  N  C 
4OJ  N  C 
5 
OJ  N  L  3 3 6, 

2 3 . 1 2 . 1 9 9 4, 

p 

- 1 0-

undertakings  and  products  from 
Agreement; 

third  countries  which  are  signatories 

to 

the 

6.  Whereas  it  is therefore  necessary  to  adapt  and  supplement  the  provisions  of  Directive 

93/38/EI'X'; 

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

8.  Whereas  the  extension  of  the  benefits  of  the  provisions  of  Council  Directive 
93/38/EEC  to  third  countries  must  be  granted  in  such  a  way  that  equal  treatment 
between  private  and public entities  is  ensured; 

9.  Whereas  it must  be  ensured  that the  rules  in Member  States  governing  the  system  of 

property  ownership  shall  not be prejudiced  (Art. 222 of the Treaty); 

10. Whereas  the  application  of  the  Directive  must  be  simplified  and  the  equilibrium, 
which  has  been  reached  in  the  current  Community  legislation  in  the  field  of  public 
procurement  in these  sectors, must be maintained  as far  as possible; 

11.  Whereas  it  is  therefore  necessary  to  extend  the  applicability  of  certain 

of  the 
adaptations  of  the  Directive  to  all  the  contracting  entities  and  sectors  covered  by 
Directive  93/38/EEC; 

. 

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

13. Whereas  the  opening-up  of  contracts  in  the  sectors  covered  by  this  Directive  might 
have  an  adverse  effect  upon  the  economy  of  the  Kingdom  of  Spain;  whereas  the 
economies  of the  Hellenic  Republic  and  the  Portuguese  Republic  will  have  to  sustain 
even  greater  efforts;  whereas  it  is  appropriate  that  these  Member  States  be  granted 
adequate  additional  periods to implement  this  Directive, 

HAS  ADOPTED  THIS  DIRECTIVE: 

Article  1 
Council  Directive  93/38/EEC  of  14 June  1993  coordinating  the  procurement  procedures 
of  entities  operating  in  the  water,  energy,  transport  and  telecommunications  sectors  is 
hereby  amended  as  follows  without prejudice  to the  international  rights and  commitments 
devolving  on  the  Community  as a result  of the  acceptance  of the  GPA, which  defines  the 
arrangements  to  be  applied  to  tenderers  and  products  from  signatory  third  countries  and 
the  current  scope  of  which  does  not  include  contracts  awarded  by  contracting  entities 
referred  to  in  Article  2(1 )(b),  contracts  awarded  by  contracting  entities  carrying  out 
activities  referred  to  in  Annexes  III,  IV,  V,  VI  and  X,  service  contracts  listed  in  Annex 
in  Category  8  of  Annex  XVI  A, 
XVI  B, 
telecommunications  service  contracts  mentioned  in  Category  5  of  Annex  XVI  A  whose 
CPC  numbers  are  7524,  7525  and  7526  and  financial  service  contracts  mentioned  in 
Category  6  of  Annex  XVI  A  in  connection  with  the  issue,  sale,  purchase  or  transfer  of 
securities or other  financial  instruments, and central bank  services: 

R&D  service  contracts  mentioned 

1.  Article  14(1) shall  be  replaced  by the  following: 

" 1. This  Directive  shall  apply to: 

- 1 1-

Ca) contracts awarded by contracting entities carrying out  activities referred to in 
Annex X  , provided that the estimated value, net of VAT, is not less than: 
(i)  ECU 600 000 in the case of supply and service  contracts; 
(ii) ECU 5 000 000 in the case of works contracts. 

(b) contracts awarded by contracting entities carrying out  activities referred to in 
Annexes  I,  II,  VII,  VIII  and  IX  ,  provided  that  the  estimated  value,  net  of 
VAT, is not less than: 
(i)  the equivalent  in ECU of 400  000  SDR for  supply  contracts and for the 
service  contracts  listed  in  Annex  XVI  A,  except  for  the  R&D  services 
mentioned in Category 8 and Category 5 telecommunications services, the 
CPC reference numbers of which are 7524, 7525 and 7526; 

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

in(i); 

(iii) the equivalent in ECU of 5 000 000 SDR for  works contracts. 

(c)  contracts awarded by contracting entities carrying out  activities referred to in 
Annexes III, IV, V, and VI  , provided that the estimated value, net of VAT, is 
not less than: 
(i)  ECU 400 000 in the case of supply and service  contracts; 
(ii) ECU 5 000 000 in the case of works contracts." 

I 
I 
{... 
| 
|, 
1 
H 

2.  The following paragraphs shall be added to Article 14: 

"14.The value in national currencies of the thresholds  specified  in  paragraph  1 shall, 
in principle, be revised  every two years with effect  from  the date provided  for  in 
Directive  93/36/EEC  as far  as the thresholds  for  supply  and  service  contracts  are 
concerned  and  from  the  date  provided  for  in  Directive  93/37/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  ecus  over 
the  24 months terminating  on the last day of August  preceding  the revision  with 
effect  from  1 January.  These values  shall be published  in the Official  Journal  of 
the European Communities at the beginning of November. 

15. The thresholds  of the  GPA expressed  in ecus  shall  in principle  be revised  even/ 
two  years with  effect  from  1 January  1996. The calculation  of these  values  shall 
be  based  on  the  average  daily  value  of  the  ecu  expressed  in  SDRs  over  the  24 
months  terminating  on the  last  day  of August  preceding  the  revision  with  effect 
from  1  January.  These values shall be published as provided for in paragraph  14. 
16. The methods of calculation laid down in paragraphs  14 and  15  shall be examined 
pursuant to the second subparagraph of Article 5(1 )(c) of Directive 93/36/EEC." 

6Annex X: contracting entities in the  telecommunications 
sector. 
7Annex I  : Entities  in the sectors covering the production, 
transport or distribution of drinking water. 

Annex  II. entities  in the sectors covering the 
production, transport or distribution of electricity. 
Annex VII: entities  in the field of urban railway, 

tramway, trolleybus or bus services. 

Annex VIII: entities in the field of airport facilities. 
Annex  IX: entities  in the field of maritime or inland 

port or other terminal facilities. 
8Annex III: Entities in the sectors covering the transport 
or distribution of gas or heat. 

Annex  IV: Entities  in the sectors covering the 

exploration  for and extraction of oil or gas. 

Annex V: entities in the sectors covering the 

exploration  for and extraction of coal and other solid 
fuels. 

Annex VI: entities in the filed of railway services. 

- 1 2-

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

interest  on 

the  basis  of  detailed 

"(c)contracting  entities  shall  subsequently  invite  all  candidates  to  confirm 
their 
information  on  the  contract 
concerned  before  beginning  the  selection  of  tenderers  or  participants  in 
negotiations.  The information  must  include  at least the  following: 
(a)  the nature  and  quantity,  including  any  options  for  further  procurement 
and,  if  possible,  an  estimate  of  the  timing  when  such  options  may  be 
exercised; 
in  the  case  of  recurring  contracts  the  nature  and  quantity 
and,  if  possible,  an  estimate  of  the  timing  of  the  subsequent  calls  for 
competition  for the works, supplies or services to be  procured; 

(b)  whether  the procedure  is restricted  or  negotiated; 
(c)  any  date  for  starting  or  completing  the  delivery  of  supplies  or  for 

performing  works or  services; 

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

(e)  the  address  of  the  entity  awarding  the  contract  and  providing  any 
and  other 
for  obtaining 

specifications 

information  necessary 
documents; 

(f)  any  economic  and  technical  requirements, 

financial  guarantees  and 
information  required  from  suppliers,  undertakings  or  providers  of 
services; 

(g)  the  amount  and  terms  of  payment  of  any  sum 

payable  for  the 

documentation  relating to the procurement  procedure;  and 

(h)  whether  the  entity  is  inviting  offers  for  purchase,  lease,  rental  or  hire 

purchase,  or more than one of these  methods." 

4.  Article  22(l)(b)  shall  be  replaced  by  the  following: 

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

regards  contracts 
the  threshold  laid  down  in  Article  14(l)(a)(ii)  as 
intended  to  be  awarded  by  entities  carrying  out  an  activity  referred  to 
in Annex  X; 
the  threshold  laid  down  in  Article  14(l)(b)(iii)  as 
regards  contracts 
intended  to  be  awarded  by  entities  carrying  out  an  activity  referred  to 
in Annexes  I, II, VII, VIII  and IX, or 
the  threshold  laid  down  in  Article  14(l)(c)(ii)  as 
regards  contracts 
intended  to  be  awarded  by  entities  carrying  out  an  activity  referred  to 
in  Annexes  III, IV, V and VI." 

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

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

the  threshold  laid  down  in Article  14(l)(a)(i)  as regards  contracts  intended  to 
be  awarded  by  entities carrying  out an activity  referred  to in Annex  X; 
the  threshold  laid  down  in  Article  14(l)(b)(i)  or  (ii)  as 
regards  contracts 
intended  to  be  awarded  by  entities  carrying  out  an  activity  referred  to  in 
Annexes  I, II, VII, VIII  and  IX, or 
the  threshold  laid  down  in Article  14(l)(c)(i)  as regards  contracts  intended  to 
be  awarded  by  entities  carrying  out  an  activity  referred  to  in  Annexes  III,  IV, 
V  and  VI. 

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

total  amount  of 

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

- 1 3-

- 

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

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

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

7.  Article  26(1)  shall  be replaced  by the  following: 

" 1.  In  open  procedures  the  time  limit  for  the  receipt  of  tenders  shall  be  fixed  by 
contracting  entities  at not  less than  52 days  from  the date of dispatch  of the  notice. 
This  time  limit  may  be  replaced  by  one  which  is  sufficiently  long  to  allow  those 
concerned  to  submit  valid  tenders  and  which  shall  as  a  general  rule  not  be  less 
than  36 days  and  in any  case not  less than  22 days from  the  date  of dispatch  of  the 
notice,  where  contracting  entities  have  sent  the  OJEC  a periodic  indicative  notice 
in  accordance  with  Article  22(1), provided  that  this  notice  contains,  in  addition  to 
the  information  required  in  Part  I of Annex  XIV, the  information  required  in  parts 
II  and  III  of  Annex  XIV,  insofar  as  that  information  is  available  at  the  time  of 
publication  of the notice  referred  to in Article  22(1). 
This  periodic  indicative  notice  must  furthermore  have  been  dispatched  to  the 
OJEC  within  a minimum  of  52 days  and  a maximum  of  twelve  months  before  the 
date  on  which  the  contract  notice  provided  for  in  Article  21(l)(a)  is  dispatched  to 
the  OJEC." 

8.  Article  26(2)  is hereby  replaced  by  the  following: 

"2.  In  restricted  procedures  and  in  negotiated  procedures  with  a  prior  call  for 

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

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

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

9.  Article  28(5)  shall  be  replaced  by  the  following: 

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

10. The  following  paragraph  6 shall  be  added  to Article  28: 

"6.  Tenders  shall  be  submitted  in  writing  directly  or  by  mail.  Member  States  may 
authorize  the  submission  of  tenders  by  any  other  means  making  it  possible  to 
ensure: 

that  each  tender  contains  all  the  information  necessary  for  the  evaluation  of 
the  tender; 
that tenders  remain  confidential  pending  their  evaluation;  and 

- 1 4-

- 

that, where  necessary  for  reasons  of legal proof,  such  tenders  are  confirmed 
as soon as possible in writing or by dispatch or a certified  copy; 
that tenders are opened after the time-limit for their  submission has expired." 

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

"1.  Contracting  entities  which  so  wish  may  establish  and  operate  a 

system  of 

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

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

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

13. Article 38 shall be deleted. 

14. Article 41 shall be replaced by the following: 

"1.  Contracting  entities  shall  keep  appropriate  information  on  each  contract  which 
shall  be  sufficient  to  permit  them  at  a  later  date  to  justify  decisions  taken  in 
connection with: 
(a)  the  qualification  and  selection  of  contractors,  suppliers  or  service  providers 

(b)  recourse  to  derogations  from  the  use  of  European 

specifications 

in 

(c)  use  of  procedures  without  prior  call  for  competition  in  accordance  with 

(d) non-application  of  Titles  II,  III  and  IV  in  accordance  with  the  derogations 

and award of contracts; 

accordance with Article 18(6); 

Article 20(2); 

provided for in Title I. 

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

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

4.  Contracting  entities  carrying out activities referred  to in  Annexes I, II, VII, VIII 
and  IX  shall,  promptly  after  the  date  on  which  a  written  request  is  received, 
inform  any  eliminated  candidate  or  tenderer  of  the  reasons  for  rejection  of  his 
application  or his tender  and any tenderer who has made an admissible tender of 
the  characteristics  and  relative  advantages  of  the  tender  selected  as  well  as  the 
name of the successful  tenderer. 
However, contracting entities may decide that certain  information  on the contract 
award,  referred  to  in the first subparagraph  of this paragraph,  be withheld  where 
release  of  such  information  would  impede  law  enforcement  or  otherwise  be 
contrary  to  the  public  interest  or  would  prejudice  the  legitimate  commercial 
interests  of  particular  enterprises,  public  or  private,  or  might  prejudice  fair 
competition between suppliers, contractors or service providers." 

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

"2.  With  respect  to  the  activities  to  which  Annexes  I,  II,  VII,  VIII  and  IX  refer, 
Member  States shall, in accordance with the arrangements  to be laid  down under 
the procedure provided for in Article 40(4) to (8), ensure that, by 31 October  1997 
at the latest for the preceding year and thereafter  by 31 October of every year, the 
Commission  receives  a  statistical  report  on  the  contracts  awarded.  This  report 
shall  contain  the  information  necessary  to  verify  the  proper  application  of  the 
GPA. 
The  statistical  information  required  under  this  provision  shall  not 
include 
information  concerning  contracts  for  the  services  listed  in  category  8 of  Annex 
XVI  A,  telecommunications  services  listed  in  category  5,  the  CPC  reference 

- 1 5-

numbers  of  which  are  7524,  7525  and  7526,  or  the  services  listed  in  Annex 
XVI.B." 

16.  The current  paragraph  2 shall  be  renumbered  as  paragraph  3. 

17. The  following  Article  shall  be  inserted: 

"Article  42a 
For  the  purposes  of  the  award  of  contracts  by  the  contracting  entities,  Member 
States  shall  apply  in  their  relations  conditions  as  favourable  as  those  which  they 
grant  to  third  countries  in  implementation  of the  GPA.  The  Member  States  shall 
to  this  end  consult  each  other  within  the  Advisory  Committee  for  Public 
Contracts on the measures to be taken pursuant to the  GPA." 

18. Annexes  XII,  XIII,  XIV  and  XV  to  Directive  93/38/EEC  are  hereby  replaced  by 

the  Annex  to  this  Directive. 

Article  2 
1.  Member  States  shall  bring  into  force  the  laws,  regulations  and 

administrative 
provisions  necessary  to comply  with this Directive  before  1 January  1997.  They  shall 
forthwith  inform  the  Commission  thereof. 

2.  Nevertheless,  the  Kingdom  of  Spain  may,  regarding  services  contracts  only,  provide 
that the measures  referred  to in paragraph  1 shall  apply  from  1 January  1997 only  and 
the  Hellenic  Republic  and  the  Portuguese  Republic  may  provide  that  the  measures 
referred  to in paragraph  1 shall apply  from  1 January  1998 only. 

Article  3 
When  Member  States  adopt  the  provisions  referred  to  in  Article  2,  they  shall  contain  a 
reference  to  this  Directive  or  be  accompanied  by  such  reference  on  the  occasion  of  their 
official  publication.  The  methods  of  making  such  a  reference  shall  be  laid  down  by  the 
Member  States. 

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

Article  5 
This Directive  is addressed  to the Member States. 

-16-

ANNEX 

ANNEX XII 

A. OPEN PROCEDURES 

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

contracting entity. 

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

framework  agreement). 
Category  of service within the meaning  of Annex  XVI  A or XVI  B and  description 
(CPC  classification). 
Where appropriate,  state whether tenders are requested  for  purchase,  lease, rental  or 
hire purchase or any combination of these. 

3.  Place of delivery, site or place of performance  of service. 
4.  For supplies and works: 

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

(b)  Indication  of  whether  suppliers  can  tender  for  some  and/or  all  of 

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

(c)  For  works  contracts:  information  concerning  the  purpose  of  the  work  or  the 

contract where the latter also involves the drawing- up of projects. 

5.  For services: 

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

(b)  Indication  whether  the  execution  of  the  service  is  by  law, 
administrative provision reserved to a particular  profession. 
(c)  Reference  of the law, regulation or administrative provision. 
(d)  Indication  whether  legal  persons  should  indicate  the  names  and  professional 
qualifications  of the staff to be responsible for the execution of the services. 
(e)  Indication whether suppliers can tender for a part of the  services concerned. 

regulation,  or 

6.  Authorization to submit variants. 
7.  Derogation  from  the' use  of  European  specifications,  in  accordance  with  Article 

1 8(6)-

possible, for starting. 

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

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

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

obtain such documents. 
10. (a) Final date for receipt of tenders. 

(b)  Address to which they must be sent. 
(c)  Language or languages in which they must be drawn up. 

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

(b)  Date, 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 they are contained. 

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 teclinical  conditions  required  of the  supplier,  contractor  or 

service provider to whom the contract is awarded. 

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

- 1 7-

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

iowes"  price 

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

the  Official  Journal  of the European  Communities  to which the contract  refers. 

20.  Date of dispatch  of the notice by the contracting  entity. 
21.  Date  of  receipt  of  the  notice  by  the  Office  for  Official  Publications  of  the  European 

Communities  (to be  supplied  by that  Office). 

B. RESTRICTED  PROCEDURES 

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

contracting  entity. 

2.  Nature  of the  contract  (supplies,  works  or  services;  where  appropriate,  state  if  it  is  a 
framework  agreement).  Category  of  service  within  the  meaning  of  Annex  XVI  A  or 
XVI  B and description  (CPC  classification). 
Where  appropriate,  state  whether  tenders  are  requested  for  purchase,  lease,  rental  or 
hire purchase  or any  combination  of these. 

3.  Place of delivery,  site or place of performance  of  service. 
4.  For  supplies  and  works: 

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

(b)  Indication  of  whether  suppliers  can  tender  for  some  and/or  all  of 

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

(c)  For  works  contracts:  information  concerning  the  purpose  of  the  work  or  the 

contract  where the  latter also involves the drawing- up of  projects. 

5.  For  services: 

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

(b)  Indication  whether  the  execution  of  the  service  is  by  law, 
administrative  provision reserved  to a particular  profession. 
(c)  Reference  of the law, regulation  or administrative  provision. 
(d)  Indication  whether  legal  persons  should  indicate  the  names  and  professional 

regulation,  or 

qualifications  of the  staff  to be responsible  for  the execution  of the  services. 
(e)  Indication  whether  suppliers  can tender  for  a part of the  services  concerned. 

6.  Authorization  to submit  variants. 
7.  Derogation  from  the  use  of  European  specifications,  in  accordance  with  Article 

18(6). 

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

possible, for  starting. 

9.  Where  appropriate,  the  legal  form  to  be  taken  by  the  grouping  of 

suppliers, 

contractors  or providers to whom  the contract  is awarded. 

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

(b)  Address to which they  must be  sent. 
(c)  Language  or languages  in which they  must be drawn  up. 

11.  Final  date  for  dispatch  of invitations to  tender. 
12. Where  appropriate, any  deposits and guarantees  required. 
13. Main  terms concerning  financing  and payment  and/or references  to  the texts  in  which 

these are  contained. 

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

minimum  economic  and  technical  conditions required  of him. 

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

to  tender. 

- 1 8-

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

the Official  Journal of the European Communities to which the contract refers. 

18. Date of dispatch of the notice by the contracting entities. 
19. Date of receipt  of the notice by the Office  for  Official  Publications  of  the  European 

Communities (to be supplied by that  Office). 

C. NEGOTIATED  PROCEDURES 

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

contracting entity 

2.  Nature of the contract  (supplies, works or services; where  appropriate, state if it is a 
framework  agreement).  Category of service within the meaning of Annex XVI A or 
XVI B and description (CPC  classification). 
Where appropriate, state whether tenders are requested  for purchase,  lease, rental  or 
hire purchase or any combination of these. 

3.  Place of delivery, site or place of performance  of service. 
4.  For supplies and works: 

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

(b)  Indication  of  whether  suppliers  can  tender  for  some  and/or  all  of 

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

(c)  For  works  contracts:  Information  concerning  the  purpose  of  the  work  or  the 

contract where the latter also involves the drawing- up of projects. 

5.  For services: 

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

(b)  Indication  whether  the  execution  of  the  service  is  by  law, 
administrative provision reserved to a particular profession. 
(c)  Reference  of the law, regulation or administrative provision. 
(d)  Indication  whether  legal  persons  should  indicate  the  names  and  professional 

regulation,  or 

qualifications  of the staff to be responsible for the execution of the services. 
(e)  Indication whether suppliers can tender for a part of the  services concerned. 

6.  Authorization to submit variants. 
7.  Derogation  from  the  use  of  European  specifications,  in  accordance  with  Article 

18(6). 

possible, for starting. 

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

9.  Where  appropriate,  the  legal  form  to  be  taken  by  the  grouping  of 

suppliers, 

contractors or providers to whom the contract is awarded. 

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

(b)  Address to which they must be sent. 
(c)  Language or languages in which they must be drawn up. 

11. Where appropriate, any deposits and guarantees required. 
12. Main terms concerning financing and payment and/or references  to  the texts in which 

these are contained. 

13. Information  concerning the supplier's, contractor's or service  provider's position  and 

minimum economic and technical conditions required of him. 

14. Criteria  for the award of the contract where they are not mentioned  in  the invitation 

to tender or the contract documents. 

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

already selected by the contracting entity. 

- 1 9-

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

Journal  of  the 

European  Communities. 

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

the Official  Journal  of the  European  Communities  to which  the contract  refers. 

19. Date of dispatch  of the notice by the contracting  entity. 
20. Date  of  receipt  of  the  notice  by  the  Office  for  Official  Publications  of  the  European 

Communities  (to be supplied  by that  Office). 

ANNEX XIII 

- 2 0-

NOTICE ON THE EXISTENCE OF A QUALIFICATION  SYSTEM 

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

contracting entity. 

2.  Purpose  of  the  qualification  system  (description  of the  goods,  services  or  works  or 

categories thereof to be procured through the system). 

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

4.  Period of validity of the qualification  system and the formalities  for its  renewal. 
5.  Reference  to the fact that the notice acts as the call for competition. 
6.  Address  where  further  information  and  documentation  concerning  the  qualification 

system can be obtained (if different  from the address mentioned under 1). 

7.  Any other relevant  information. 

- 2 1-

ANNEX XIV 

PERIODIC  INFORMATION  NOTICE 

I.  HEADINGS TO BE COMPLETED IN ANY CASE 

1.  Name, address, telegraphic  address, telephone  number,  telex  and  fax  number  of the 
contracting entity or the service from which additional information  may be obtained. 
2.  (a) For  supply  contracts: nature  and  quantity  or value  of the  services  or products  to 

be supplied. 
(b)  For  works  contracts: nature  and  extent  of the  services  to  be  provided,  the  main 

characteristics of the work or of the lots by reference to the work. 

(c)  For service contracts: intended total procurement in each of the  service categories 

listed in Annex XVI A. 

3.  Date of dispatch of the notice by the contracting entity. 
4.  Date of receipt  of the notice by the Office  for  Official  Publications  of  the  European 

Communities (to be supplied by that  Office). 

5.  Any other relevant  information. 

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

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

in the contract or contracts. 

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

III. INFORMATION  TO  BE  SUPPLIED,  INSOFAR  AS  SUCH  INFORMATION 
IS  AVAILABLE,  WHERE  THE  NOTICE  IS  USED  AS  A  MEANS  OF 
CALLING  FOR  COMPETITION  OR  JUSTIFIES  REDUCING  THE 
DEADLINES FOR THE RECEIPT  OF CANDIDATURES  OR TENDERS 

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

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

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

combination of these. 

possible, for starting. 

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

writing. 
Final date  for recepit of expressions of interest. 
Language or languages authorized  for the presentation of candidatures  or tenders, 

12. Economic and technical conditions required of suppliers. 
13. (a)  Provisional  date,  if  known,  for  commencing  the  procedures  for  awarding  the 

contract or contracts. 
(b)  Type of award procedure (restricted or negotiated). 
(c)  The amount of and payment  details for  any sum to be paid to  obtain  documents 

concerning the consultation. 

- 2 2-

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 

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

framework  agreement). 

services provided. 

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

procedure; periodic information  notice; call for tenders). 
(b)  Reference  of  publication  of  the  notice  in  the  Official  Journal  of  the  European 

Communities. 

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

of the relevant provision of Article 20(2), or Article 16. 

5.  Award procedure (open, restricted or negotiated). 
6.  Number of tenders received. 
7.  Date of award of the contract. 
8.  Price paid for bargain purchases pursuant to Article 20(2)(j). 
9.  Name and address of successful  supplicr(s), contractor(s) or service  providcr(s). 
10. State, where appropriate, whether the contract has been, or may be,  subcontracted. 
11. Price  paid  or  the  prices  of  the  highest  and  lowest  offers  taken  into  account  in  the 

award of the contract. 
12. Optional  information: 

value and share of the contract which may be subcontracted to  third parties; 
award criteria. 

II. information  not intended for publication 

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

supplier). 

14. Value of each contract awarded. 
15. Country  of  origin  of the  product  or  service  (Community  origin  or  non-  Community 

origin; if the latter, broken down by third country). 

16. Was recourse made to the exceptions to the use of European  specifications  provided 

17. Which  award  criteria  were  used  (most  economically  advantageous; 

lowest  price; 

for under Article  18(6).  If so, which? 

criteria permitted pursuant to Article 35)? 

18. Was  the  contract  awarded  to  a bidder  who  submitted  a variant,  in  accordance  with 

19. Were  any  tenders  excluded  on  the  grounds  that  they  were  abnormally 

low,  in 

Article 34(3)? 

accordance with Article 34(5)? 

20. Date of transmission  of the notice by the contracting entity. 
21.  In  the  case  of  contracts  for  services  listed  in  Annex  XVI  B,  agreement  by  the 

contracting entity to publication of the notice (Article 24(3)). 

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

COMPETITIVENESS AND EMPLOYMENT IMPACT STATEMENT 

I. 

Titit oftfcf  proptMri 

Amended  Proposal  for a Parliament and Council  Directive  amending  Directive 
93/38/EEC  coordinating the procurement procedures of entities operating in the 
water, energy, transport and telecommunications sectors. 

H.  What is the main reason for introducing the measures? 

The  taking  into  account  in  the  above-mentioned  Directive  of  the  international 
the  new  WTO  Agreement  on  Government 
obligations  deriving  from 
Procurment (GPA). 

III. 

Features of the businesses concerned 

1. 

2. 

In particular, are many SMEs involved? 
Public  supply,  public  works  and  public  service  contracts  are  in  many 
cases likely to interest SMEs, either directly or indirectly. 

Are they concentrated in regions of the Community which are: 
eligible for national regional aid schemes? No. 
eligible for ERDF assistance? No. 

IV.  What direct obligations do these measures impose on businesses? 

All  the  obligations  flowing  from  the proposed  measures  would  be  imposed  on 
businesses  if  the  undertaking  in  question  is  itself  a  contracting  entity  (i.  e.  a 
private undertaking having special or exclusive rights or a public undertaking). 

If the undertaking in question  isnoi  itself a contracting entity, then these 
measures impose few direct obligations.!! businesses decide to participate  in an 
award procedure, which is subject to the Directives, then they will be obliged, 
for instance, to submit the documentation required by the contracting authority 
and to submit tenders in writing . Where an undertaking avails itself of the 
possibility of submitting tenders by telex, telegram or telefax, then it may be 
obliged to confirm this by letter. 

I I 

V.  What indirect obligations are local authorities likely to impose on 

businesses? 

Local authorities are likely to impose few indirect obligations on businesses. As 
certain  deadlines  have  been rendered  slightly  longer,  contracting  authorities  are 
likely  to  require  that  businesses  prolong  the  period  of  validity  of  their  tender 
correspondingly. 

VI.  Do any special measures apply in respect of SMEs. 

This proposal does not contain any new measures applicable to SMEs. 

VII.  What is the likely effect on: 

1. 

2. 

Business  competitiveness? 
The abovementioned  Directives are aimed at boosting  business  competitiveness 
across the Community. The amendments pursue the same aim. 

Employment? 
The impact on employment  can be regarded as limited. 

VIII.  Have both sides of industry been consulted? Please indicate their opinions. 

Both sides of industry have commented  largely on the original proposal, directly 
to  the  Commission,  in  a  hearing  organised  by  the  European  Parliament  and 
through the consultation of the Economic and Social Committee. 

»v 

ISSN 0254-1475 

COM(96) 598  final 

DOCUMENTS 

EN 

10  12  07  15 

Catalogue  number  :  CB-CO-96-609-EN-C 

ISBN 92-78-11848-6 

Office  for Official  Publications of the European Communities 

L-2985 Luxembourg