Amended proposal for a European Parliament and Council Directive concerning the coordination of procedures for the award of public supply contracts, public service contracts and public works contracts (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)
Date: 2002-05-06
Institutions: European Commission
Subjects: liberalisation of the market, market access, public contract, purchase, services contract

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Amended proposal for a European Parliament and Council Directive concerning the coordination
of procedures for the award of public supply contracts, public service contracts and public works
contracts (1)

(2002/C 203 E/31)

(Text with EEA relevance)

COM(2002) 236 final — 2000/0115(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 6 May 2002)

1. Background

3. Commission opinion on Parliament's amendments

Proposals
Parliament
pursuant to Article 175(1) of the Treaty: 12 July 2000

submitted to the Council
and the European
(COM(2000) 275 final — 2000/0115(COD))

The Commission has accepted, either in their entirety, in part,
in spirit or with reformulation, 63 of the 103 amendments
adopted by the European Parliament.

Economic and Social Committee Opinion: 26 April 2001

Committee of the Regions Opinion: 13 December 2000

Opinion of the European Parliament at first reading: 17 January
2002

2. Objective of the Commission proposal

3.1. Amendments accepted by the Commission in their entirety or
reformulated for purely formal reasons (Amendments 1, 141, 4,
13, 125, 17, 50, 85, 88, 97 and 112)

Amendment 1 proposes a new recital which recognises that
the participation of a body governed by public law as a
tenderer in a procedure for the award of a public contract is
liable to distort competition; it therefore provides that Member
States may lay down rules relating to the methods to be used
for calculating the price/real cost of a tender.

The proposal is aimed at recasting Community legislation on
public procurement, the objective being to create a genuine
internal European market
in this area. This legislation is
intended not to replace national law but to ensure compliance
with the principles of equality of treatment, non-discrimination
and transparency in the award of public contracts in all
Member States.

Amendment 141 introduces a new recital stating that nothing
in this Directive shall prevent any contracting authority from
imposing or enforcing measures necessary to protect public
morality, public policy, public security or human, animal or
plant life or health. The Commission accepts this amendment,
while stressing that it needs to be framed in such a way as to
reflect the provisions of the Treaty (Article 30):

This proposal, which follows on from the debate launched by
the Green Paper on Public Procurement, pursues a threefold
objective of modernising, simplifying and rendering more
flexible the existing legal framework in this field: modernisation
is required in order to take account of new technologies and
changes in the economic environment; the purpose of simplifi-
cation is to make the current texts more easily comprehensible
for users, so that contracts are awarded in complete conformity
with the standards and principles governing this area and the
companies involved are in a better position to know their
rights; and procedures need to be rendered more flexible in
order to meet the needs of public purchasers and economic
operators.

Moreover, the recasting of the three Directives in force will
make available to economic operators, contracting authorities
and European citizens a single, clear and transparent text.

‘(6)

Recital:
Nothing in this Directive shall prevent any
contracting authority from imposing or enforcing measures
necessary to protect public morality, public policy, public
security or human, animal or plant life or health, in particular
with a view to sustainable development, provided that these
measures are not discriminatory and do not conflict either with
the objective of opening up markets in the sector of public
contracts or with the Treaty.’

Amendment 4 introduces a new recital linked to Amendment
40. It aims to clarify, in line with the case law of the European
judgment (2)) the conditions under
Court of Justice (‘Teckal’
which a contracting authority may award a public contract
directly to an entity which is formally a separate legal entity
but over which it exercises a control analogous to that which it
exercises over its own departments.

(2) Judgment of 18 November 1999 in case C-107/98, [1999] ECR

(1) OJ C 29 E, 30.1.2001, p. 11.

I-8121.

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Amendment 13 introduces a new recital which stresses the
obligation on the part of Member States
the
necessary measures for the enforcement and operation of the
Directive and to examine whether it is necessary to create an
independent public procurement agency.

to adopt

Amendment 125 modifies recital 31. It adds engineers' services
to the examples of services whose remuneration is governed by
national laws which must not be affected.

contracts are not reserved for holders of certain certificates
only. This amendment broadly takes over the provisions of
Article 50 concerning quality assurance certificates.

in
Amendment 112 introduces the additional requirement
Annex VII A, Contract notices, point 1,
(a) —
concerning the name and address of the service from which
contract documents and additional documents can be requested
— to include the telephone number, fax number and e-mail
address.

indent

Amendment 17 introduces
Commission to examine
proposal
and project financing.

asking
the
adopting a
for a Directive to regulate the concessions sector

a new recital
the possibility of

This amendment is accepted with slight changes for institu-
tional reasons:

3.2. Amendments accepted by the Commission with reformulation,
in part or in substance (Amendments 2, 5, 168, 126-172,
21, 175, 7, 142, 171-145, 9, 137, 138, 45, 46, 47-123,
109, 10, 127, 11, 51, 15, 100, 170, 23, 54, 65, 24, 30,
93, 95, 31, 147, 34, 35, 36, 121, 38, 40, 5, 150, 70, 74,
77-132, 80, 86, 87, 89, 153, 104, 110, 113, 114)

The Commission is asked to examine the possibility of
‘(46)
reinforcing legal certainty in the concessions sector and in
public/private partnerships,
legislative
proposal if it feels this is necessary.’

to adopt

and

a

that

to ensure

tenderers have

Amendment 50 modifies Article 27 — title and paragraph 1
the necessary
— so as
information on environmental, tax and social
legislation in
force at the place of performance and to oblige contracting
authorities to state in the contract documents the body or
bodies from which the appropriate information on this legis-
lation can be obtained.

Amendment 85 modifies Article 46(2)(c) — regarding the
possibility of excluding a candidate or a tenderer for having
committed an offence concerning professional conduct — to
the effect that exclusion will only occur after a final judgment
pursuant to the law of the Member State in question.

Amendment 88 deletes from point (h) of Article 46(2) the
‘possibility’ of excluding a candidate or a tenderer who has
been convicted by a judgment of fraud or any other illegal
activity within the meaning of Article 280 of
the Treaty,
other than those referred to in the first paragraph (mandatory
exclusion).

EMAS

accept

certificates

certificates,

Amendment 97 introduces a new Article 50a which provides
that, should a contracting authority require the production of a
certificate relating to an environmental management system, it
to
must
compliance with international standards, as well as any other
equivalent means of proof. This amendment must be read in
conjunction with Amendment 93 relating to technical capacity;
in some appropriate cases — e.g. where the ability to comply
with an eco-management scheme during the realisation of a
public work is concerned — an environmental management
system may attest to technical capacity. For such cases, it is
appropriate to make provision for the possible means of proof
and for the recognition of equivalence so as to ensure that

attesting

of

into

policy

integration

Amendment 2 introduces a new recital designed to emphasise
the
public
environmental
procurement policy. Article 6 stipulates that environmental
protection requirements must be
integrated into other
the respective policies on the
policies:
environment and public contracts must be reconciled. The
Commission therefore considers that public purchasers must
be enabled to procure ‘green’ products/services at
the best
value for money. It therefore takes up the amendment and
reformulates it as follows:

this means

that

Recital: ‘(5)
In accordance with Article 6 of the Treaty estab-
lishing the European Community, environmental requirements
are integrated into the definition and implementation of the
policies and activities of the Community referred to in Article 3
of
in particular with a view to promoting
sustainable development.

that Treaty,

contribute

This Directive therefore clarifies how the contracting auth-
orities may
the
towards
environment and the promotion of sustainable development,
whilst ensuring that
the contracting authorities are in a
position to obtain the best value for money when awarding
their contracts.’

the protection of

Amendment 5 is linked to Amendments 168, 126-172 and 21:
in essence, these amendments introduce provisions enabling
contracting authorities to make their purchases via purchasing
groups.

Amendment 5 provides for a new recital explaining the need to
establish a Community definition of purchasing groups and to
define the procedures applicable to them and the manner in
which contracting authorities may have recourse to purchasing
groups, provided that
the latter are themselves contracting
authorities.

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Amendment 168 introduces a new recital aimed at justifying
purchases of supplies and services from or through purchasing
groups provided that these groups have complied with the
procedural rules of the Directive. The Commission takes the
view that recourse to such purchasing groups must also be
possible for works.

these
The Commission therefore takes up the spirit of
amendments by defining a purchasing group and including
in accordance with the principle of subsi-
an article which,
diarity, gives Member States the right
to use purchasing
groups and, where appropriate, to limit such use to certain
contracts.

The Commission accepts
combined in a single recital, as follows:

the amendments, modified and

‘Article 1

Definitions

‘(13)
Certain techniques for centralising purchases have been
developed in Member States. Several contracting authorities are
charged with the task of making purchases or awarding public
contacts on behalf of other contracting authorities. Given the
scale of the volumes purchased, these techniques make for
competition and improved efficiency of public
broader
procurement.
to establish a
Community definition for purchasing groups dedicated to
contracting authorities.
is also necessary to define the
conditions, subject to observance of the principles of equal
treatment, non-discrimination and transparency, under which
contracting authorities which acquire works, supplies and/or
services from or through a purchasing group can be deemed
to have complied with the provisions of this Directive.’

is necessary,

therefore,

It

It

For the purpose of this Directive, the definitions set out

1.
in paragraphs 2 to 12 shall apply.

. . .

7a

A purchasing group is a contracting authority which:

— procures supplies and/or services intended for contracting

authorities and/or

Amendments 126-172, 21 and 175 introduce
provisions governing purchasing groups.

specific

— awards

public

contracts

or

agreements
relating
intended for contracting authorities.’

to works,

concludes
supplies or

framework
services

Amendments 126-172 includes among contracting authorities
within the meaning of the Directive purchasing groups set up
by contracting authorities.

‘Article 7a

Amendment 21 introduces a definition of a purchasing group
and stipulates that purchasing groups meeting that definition
must be notified to the Commission.

as

groups

purchasing

The objective pursued by Amendments 126-172 and 21 is
towards
legitimate,
economies of scale, reinforce competition at European level
given the size of the contracts involved and assist local auth-
orities. It is nevertheless necessary to provide for the broadest
possible arrangements for the configurations already in place in
Member States.

contribute

Amendment 175 obliges purchasing groups to comply fully
to
with the Directive and enables contracting authorities
acquire supplies or services directly from a purchasing group
or
third party without
subsequent application of the Directive on their part.

intermediary of a

through the

The amendment can be accepted as regards the principle
concerning recourse to a purchasing group, with this possi-
bility being extended to include works in order to facilitate
agreement between the co-legislators.

Public contracts awarded and framework agreements
concluded by purchasing groups

1. Member States may provide
contracting authorities procuring works,
services by having recourse to purchasing groups.

for

the possibility of
and/or

supplies

Contracting authorities which procure works, supplies
2.
and/or services by having recourse to a purchasing group in
the cases referred to in Article 1(7a), shall be deemed to have
complied with the provisions of this Directive provided that
the purchasing group has complied with them.’

Amendments
142
‘services/works contracts’.

7,

and

171-145

concern mixed

Amendment 7 is linked to Amendments 171-145. It introduces
a new recital stipulating that the choice between awarding a
joint contract covering both the design and execution of works
or separate contracts is for contracting authorities to make and
is not to be prescribed by the Directive. It specifies that the
choice made by a contracting authority must be determined by
qualitative and economic criteria, and that the award of a joint
contract must be duly justified by the contracting authority.

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The Commission acknowledges that it is appropriate to state
that the free choice made between awarding joint or separate
contracts must be based on qualitative and economic criteria.
However, it does not share the view that there should be an
obligation to justify the choice of a design and execution
contract. As such an obligation would in effect apply only in
the case of a ‘joint’ contract being opted for, it would actually
encourage the award of separate contracts, which would be
presumed to be an award method that automatically satisfies
the qualitative and economic criteria. This presumption is not
accepted; moreover, it contradicts the freedom of choice which
is an expression of the subsidiarity principle. Finally, it would
not appear appropriate to penalise the award of joint contracts,
as joint award makes it easy to reach the trigger level for
the Directive by
application of
grouping together design services and execution works.

the procedural

rules of

should be based on qualitative and
or a joint contract
economic criteria which may be laid down by national laws.

A contract may be deemed to be a public works contract only
if
the
its object specifically relates to the performance of
activities referred to in Annex I, although the contract may
include other services necessary for the performance of those
activities. Public service contracts, particularly in the area of
real estate management, may include works in certain cases;
however, these works, where they are of an ancillary nature
and are thus merely consecutive or complementary to the main
object of the contract, cannot justify the categorisation of the
contract as a public works contract.’

linked to Amendments 171-145;

Amendment 142 is
it
introduces a new recital clarifying the distinction between
public works contracts and public service contracts (contracts
in the real estate management sector including consecutive or
complementary works and works contracts providing for the
provision of services which are necessary in order to carry out
works). This amendment is in line with the case law of the
European Court of Justice (‘Gestión Hotelera’ judgment) (1).

Amendments 9 and 137 concern competitive dialogue, while
Amendment 138 relates to a new possibility of exclusive
dialogue.

Amendment 9 modifies Recital 18 so as to specify that, in a
competitive dialogue, negotiations end once the consultation
stage has been completed, without
the definitive contract
documents (necessarily) having been drawn up.

Amendments 171-145 modify Article 1 in order to specifically
mention mixed works/services and services/works contracts. It
explains, in particular, the conditions under which a real estate
management service contract that includes works has to be
deemed to be a public works contract.
It also contains a
provision concerning the separate or joint award of contracts
for works or services (criteria for choice of award method and
obligation to justify joint award) referred to in Amendment 7.
The situations in which a contract includes both services and
works are settled by applying the criterion of the principal
indicated in the Commission's
object of
proposal. The amendment also clarifies
rule in the
this
specific case of real estate management services involving
works. Its substance would thus be better located in a recital.
Moreover, it should be noted that the limitation to ‘execution’
works only is not justified.

the contract as

As a result, the Commission reformulates Amendments 7, 142
and 171-145 in a single recital:

Amendment 137 is chiefly intended to:

1. make the submission of an outline solution compulsory.
Having consulted the groups concerned, the Commission
takes the view that an obligation to submit an outline
legislative complications
solution would be a source of
‘theft’ against
and risks of
the
which there could be no protection). As a result,
Commission does not accept this obligation.

‘cherry picking’

(intellectual

2. reinforce the confidentiality of data provided by economic
operators.
In order to facilitate agreement between the
co-legislators, contracting authorities should continue to
have
communicating to the other
participants the data provided by one participant, with
this possibility being reserved solely for cases where the
participant concerned has given its consent to communi-
cation.

the possibility of

In view of

‘(10)
the diversity shown by public works
contracts, contracting authorities must be able to award
separate or joint contracts for works and design services. It is
not the intention of the Directive to prescribe separate or joint
award. The decision as to whether to award separate contracts

(1) Judgment of 19 April 1994 in case C-331/92, [1994] ECR I-1329.

3.

limit negotiations during the dialogue phase to aspects other
than economic ones. To the extent that the amendment
effectively aims to limit the subjects that could be dealt
with during the dialogue phase to non-economic aspects
only, that part of the amendment is not acceptable. The
approach taken by the Commission is that the procedure,
if it is to serve a useful purpose, must enable all aspects of
the project to be discussed during the dialogue phase.

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for contracting authorities

4. expand the possibilities already provided for or introduce
new possibilities
to amend
contract specifications, award criteria and their weighting;
(concerning this last aspect, the amendment is inconsistent,
explicitly referring both to weighting and a straightforward
order of importance of these criteria). The Commission's
initial proposal provided for the possibility of amending
the award criteria in the event of their no longer being
the solution adopted in the definitive
appropriate for
in
contract documents. However,
order to take widespread fears of
into
account and to facilitate adoption by the co-legislators, it
is necessary to abandon the
contract
documents could be definitively established at the end of
the dialogue phase, possibly on the basis of a mix of several
solutions. Therefore, the possibility of amending the award
criteria during the course of the procedure would create
serious risks of manipulation.

is recognised that,
‘cherry picking’

idea

that

the

it

5.

introduce an obligatory monetary payment to participants
(not exceeding in the aggregate 15 % of the estimated value
of the contract). The principle of an obligatory monetary
payment to participants may be accepted, especially as the
costs
linked to the conduct of a dialogue may lead
contracting authorities to reserve this new procedure for
particularly complex contracts. By contrast, it is not appro-
priate, for reasons of subsidiarity, to lay down the amounts
to be paid.

Amendment 138 introduces a new Article 30a providing, in
the case of contracts ‘whose objective is the creation of a
public-private partnership’, that the contracting authority may
conduct an ‘exclusive dialogue’ with the tenderer that has
submitted
tender,
economically
provided that this dialogue does not substantially alter funda-
mental aspects of the tender or distort competition. Although
ambiguous on this point, the amendment would appear to
introduce this possibility irrespective of the award procedure
chosen.

advantageous

the most

If part of the amendment relates to all procedures and not just
to the final phase of a competitive dialogue,
is not
acceptable. The new competitive-dialogue procedure was
introduced precisely to take into account, amongst other
things, flexibility requirements, which may arise in connection
with projects involving the creation of public-private part-
nerships.

it

are

ensuring

safeguards,

appropriate

in
provided there
particular that this will not have the effect of altering funda-
mental aspects of the tender or of the contract as put up for
tender, falsifying competition or result in discrimination. It is
also appropriate to ensure that clarifications do not involve any
tenderer other than the one who submitted the most econ-
omically advantageous tender. To this extent, the idea of the
amendment can be accepted, using formulations in line with
recital (18) and Article 30 itself.

The Commission takes into account Amendments 9, 137 and
138 by reformulating them as follows:

‘(27)

legal

carrying

authorities

Contracting

integrated transport

Recital:
out
particularly complex projects may find it objectively impossible
to define the tools likely to meet their needs or assess what the
contract can offer in terms of
technical or financial/legal
solutions, without
their being open to criticism in this
regard. This situation may arise in particular in the setting-up
infrastructures, of major
of major
computer networks or of projects involving complex and
and financial package
structured financing, whose
Inasmuch as recourse to
cannot be stipulated in advance.
open or
such
contracts to be awarded, a flexible procedure needs to be
provided for which safeguards both competition between
economic operators and the need on the part of contracting
authorities to discuss all the aspects of the contract with each
candidate. However, this procedure must not be used in such a
way as to restrict or falsify competition,
in particular by
altering fundamental elements of the tender or imposing on
the selected tenderer substantial new elements, or by involving
any tenderer other than the one who has submitted the most
economically advantageous bid.’

restricted procedures would not

enable

‘Article 1

Definitions

For the purpose of this Directive, the definitions set out

1.
in paragraphs 2 to 12 shall apply.

8.

. . .

is a procedure in which any
The “competitive dialogue”
economic operator may ask to participate and in which the
contracting authority conducts a dialogue with the candidates
invited to this procedure, with a view to developing one or
more solutions likely to meet its requirements and on the basis
of which the selected candidates are invited to submit a tender.

By contrast, the idea underlying this amendment, namely that
it may prove necessary to clarify certain aspects of the tender
identified as being the most economically advantageous one or
to confirm commitments featuring in it, can be accepted,

. . .’

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‘Article 30

Competitive dialogue

1. Member States may provide that a contracting authority
which believes
restricted
procedure would not enable a contract to be awarded may
have recourse to a competitive dialogue in accordance with
the provisions of this article.

to the open or

recourse

that

after having compared them if necessary, which is/are likely
to meet its needs.

After announcing the end of the dialogue and informing
6.
the participants thereof, contracting authorities shall
invite
them to submit their final tender on the basis of the solution
or solutions presented and specified in the course of
the
the elements
dialogue. These tenders must comprise all
required and necessary for the implementation of the project.

(a) where it is objectively unable to define, in accordance with
Article 24(3)(b), (c) or (d), the technical means likely to
meet its needs and/or

(b) where it is objectively unable to establish the legal and/or

financial package for a project.

At the request of the contracting authority, these tenders may
be clarified and explained. However, these explanations, clarifi-
cations or items of supplementary information shall not have
the effect of altering the fundamental elements of the tender or
of the invitation to tender, the variation of which is liable to
falsify competition or have a discriminatory effect.

The public contract is to be awarded solely on the basis of the
award criterion of the most economically advantageous tender.

7.
Contracting authorities shall assess tenders on the basis of
the criteria established in the contract notice and shall select
the most economically advantageous tender in accordance with
Article 53.

2.
Contracting authorities shall publish a contract notice
setting out their needs and requirements, which they shall
define either
in a descriptive
document.

in the same notice and/or

3.
Contracting authorities shall open a dialogue with the
candidates selected in accordance with the relevant provisions
of Articles 43a to 52, the objective being to identify and define
the means likely best to meet their needs. In the course of this
dialogue, they may discuss all aspects of the contract with the
selected candidates.

During the course of the dialogue, contracting authorities must
ensure equality of treatment for all tenderers. In particular, they
shall not provide, in a discriminatory manner, information that
is likely to place certain candidates at an advantage over others.

the request of

the contracting authority,

At
the tenderer
identified as having submitted the most economically advan-
tageous tender may have to clarify aspects of its tender or
confirm commitments featuring therein, provided that
this
will not have the effect of altering fundamental elements of
the tender or of
falsifying
competition or of leading to discrimination.

the invitation to tender, of

The contracting authorities

8.
payments to the participants in the dialogue.’

shall

specify prices and

Amendments 45, 46, 47-123 and 109 relate to Article 24
to be used for
concerning the
defining works,
sought by the
contracting authority.

technical
supplies and/or

specifications

services

Contracting authorities may not disclose
to the other
participants the solutions proposed or any other confidential
information given by a candidate participating in the dialogue
without the latter's consent.

Amendment 45 introduces a reference to European eco-labels
as being an obligatory reference. This cannot be accepted, as
Community policy on eco-labels does not introduce a hierarchy
between European, plurinational and national eco-labels.

Contracting authorities may arrange for the procedure to
4.
take place in successive phases so as to reduce the number of
solutions to be discussed during the dialogue phase, applying
the award criteria set out
the
descriptive document. This option shall be pointed out in the
contract notice or in the descriptive document.

in the contract notice or

it provides that

technical specifications may be
Moreover,
formulated in terms of
requirements with regard to the
environmental impact of the product throughout its lifetime.
The Commission shares this approach.

5.
The contracting authority shall continue the dialogue
until such time as it can identify the solution or solutions,

On the other hand, it introduces a new definition, namely the
‘equivalent standard’, at a place where, on the contrary, a
tender ensuring an equivalent solution is what is meant.

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Amendment 46 modifies Article 24 in order to clarify that a
contracting authority may not
reject a tender where the
tenderer has proved that it satisfies the requirements of the
contract in an equivalent manner, to ensure the widest range
of means of proof, and to guarantee that the tenderer is given
the necessary information on the non-conformity of its tender.
This last point is taken into account in general terms in Article
41(2).

Amendments 47-123 are aimed at avoiding discrimination
through
producers,
referring
specifications
suppliers or operators.

specific

to

Amendment 109 introduces into the definition of technical
environmental
specifications
performance/compatibility
or
processes.

production methods

in Annex VI

referred

and

to

This part of the amendment clarifies the text in line with the
Commission Communication (1) on public contracts and the
environment and is thus acceptable with reformulation.

Environmental performance, by contrast, is not a specification
as such; however, it may give rise to the definition of technical
specifications in terms of environmental performance. The
same applies for environmental compatibility.

It also brings in design for all requirements, including accessi-
bility for disabled people.

The Commission takes up Amendments 45, 46, 47-123 and
109 in recital 25 (ex 17), Article 24, Article 41 (restructured)
and Annex VI, reformulated as follows:

‘(25)

The technical

in terms of

specifications drawn up by
Recital:
to be
public purchasers need to allow public procurement
opened up to competition. To this end,
it must be possible
to submit bids which reflect the diversity of technical solutions.
it must be possible to draw up the technical
Accordingly,
specifications
and
requirements, and, where reference is made to the European
standard or, in the absence thereof, to the national standard,
tenders based on other equivalent arrangements must be taken
into account by the contracting authorities. To demonstrate
equivalence, tenderers should be permitted to use any form
of evidence. The contracting authority must be able to justify
any decision drawing the conclusion of non-equivalence.

functional performance

(1) ‘Interpretative

communication of

the Commission on the
Community law applicable to public procurement and the possi-
bilities for integrating environmental considerations into public
procurement’ (OJ C 333, 28.11.2001, p. 13).

to define

environmental
Contracting authorities wishing
requirements in the technical specifications of a particular
contract may prescribe specific environmental characteristics
and/or effects of groups of products or services. They can,
but are not obliged to, use the detailed specifications, or
parts thereof which are suitable, to specify the supplies or
services
the
European eco-label, the (pluri)national eco-label or any other
eco-label if the requirements for the label are drawn up on the
basis of scientific information and adopted using a procedure
in which all
such as government bodies,
consumers, manufacturers, retail and environmental organi-
sations can participate, and providing that
is
accessible to all interested parties.’

as defined by eco-labels

stakeholders,

the label

such as

sought,

‘Article 24

Technical specifications

The technical specifications as defined in point 1 of
1.
in the contract documentation,
Annex VI shall be set out
such as contract notices, contract documents or additional
documents.

Technical

for
2.
tenderers and not have the effect of creating unjustified
obstacles to the opening of public procurement to competition.

shall afford equal access

specifications

3. Without prejudice to legally binding technical
insofar as they are compatible with Community law,
technical specifications must be formulated:

rules,
the

(a) by referring to specifications defined in Annex VI and, by
order of preference,
to national standards implementing
European
European
standards,
approvals,
technical
international standards,
common technical specifications,
other technical reference material produced by European
standardisation bodies or, where these do not exist,
standards,
national
or
technical specifications relating to design and
national
method of calculation and execution of works and use of
material. Each reference shall be accompanied by the words
“or equivalent”.

approvals

technical

national

(b) or

in terms either of performance or of

functional
requirements;
these may include environmental charac-
teristics. They shall, however, be sufficiently precise to
the
allow tenderers to determine the subject-matter of
contract and to allow contracting authorities to award
the contract.

(c) or in terms of performance or functional requirements as
referred to in point
a means of
(b),
presumption of conformity with these requirements or
performance capabilities
to the specifications cited in
point (a);

referring as

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(d) or by referring to the specifications in point (a) for certain
characteristics, and to the performance capabilities or func-
tional requirements in point (b) for other characteristics.

specifications defined in the contract documents. They must
accept any other appropriate means of proof, such as a
technical dossier of the manufacturer or a test report from a
recognised body.

themselves of

4. Where contracting authorities avail
the
possibility of referring to the specifications referred to in
paragraph 3(a), they may not reject a bid on the grounds
that the products and services offered are not in conformity
with the specifications to which they have made reference,
provided that the tenderer proves in its tender to the satis-
faction of
the contracting authority, by any appropriate
means, that the solutions it proposes meet the requirements
defined by the technical specifications in an equivalent fashion.

An appropriate means may be constituted by a technical
dossier of the manufacturer or a test report from a recognised
body.

it may not

5. Where a contracting authority uses the option provided
in the second subparagraph of paragraph 3 to prescribe in
terms of performance,
for
products, services or works which comply with a national
standard transposing a European standard, with a European
technical approval, a common technical specification, an inter-
national standard or a technical
reference produced by a
European standardisation body if these specifications address
the same functional and performance requirements which it
required.

reject a tender

In its tender, the tenderer must prove to the satisfaction of the
contracting authority, by any appropriate means,
the
products, services and works in compliance with the standard
meets the functional or performance requirements of
the
contracting authority.

that

An appropriate means may be constituted by a technical
dossier of the manufacturer or a test report from a recognised
body.

or

in terms

of performance

5a Where a contracting authority prescribes environmental
characteristics
functional
requirements, such as those referred to in paragraph 3(b), it
may use detailed specifications or, if necessary, parts thereof, as
defined by eco-labels such as the European eco-label,
the
(pluri)national eco-label or any other eco-label, provided they
are suitable for defining the characteristics of the supplies or
services forming the object of
the
requirements for the label are drawn up on the basis of
scientific information, that the eco-labels are adopted using a
procedure in which all stakeholders, such as government
bodies, consumers, manufacturers, retail and environmental
organisations can take part, and that they are accessible to
all interested parties.

the contract and that

Contracting authorities may indicate that products or services
carrying the eco-label are presumed to satisfy the technical

6.
“Recognised bodies” within the meaning of the present
article shall be understood to mean test and calibration labo-
ratories, and inspection and certification bodies which are in
compliance with the applicable European standards.

Contracting authorities shall accept certificates issued by bodies
recognised in other Member States.

7.
Unless justified by the object of the contract, the technical
specifications shall not refer to a specific make or source, or to
a particular process, or to a trade mark, patent, type or specific
origin or production which would have the effect of favouring
or eliminating certain enterprises or certain products. Such
reference shall be permitted on an exceptional basis, where a
sufficiently precise and intelligible description of the subject-
matter of the contract pursuant to paragraphs 3 and 4 is not
possible; such reference shall be accompanied by the words “or
equivalent”.’

‘Article 41

Informing candidates and tenderers

of

and

The contracting authorities shall as soon as possible
1.
inform candidates
reached
tenderers
concerning the conclusion of a framework agreement or the
award of the contract, including the grounds for any decision
not to conclude a framework agreement or not to award a
contract for which there has been a call for competition or
to recommence the procedure, and shall do so in writing if
requested.

decisions

2.
The contracting authority shall, upon request, inform any
unsuccessful candidate or tenderer as soon as possible of the
reasons for the rejection of his application or his tender, and
shall inform 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 or
the parties to the framework agreement. Under no circum-
stances may the time taken to provide such information
exceed fifteen days, counting from receipt of
the written
request.

agreement,

However, contracting authorities may decide to withhold
certain information on the contract award or conclusion of a
preceding
referred
framework
the
to
subparagraph, where
such information would
release of
impede law enforcement or otherwise be contrary to the
public interest or would prejudice the legitimate commercial
interests of economic operators, public or private, or might
prejudice fair competition between them.’

in

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‘ANNEX VI

DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS

For the purposes of this Directive:

requirements

1. (a) “technical specification”, in the case of public service or
supply contracts, means a specification in a document
defining the required characteristics of a product, such
as quality levels, environmental performance, design for
(including accessibility for disabled
all
people), safety or dimensions,
including requirements
to the product as regards the name under
relevant
which the product
symbols,
sold,
testing and test methods, packaging, marking and
instructions, production methods and
labelling, user
procedures,
assessments
conformity
procedures.

terminology,

as well

as

is

(b) “technical specifications”,
the

in the case of public works
the
technical
totality
contracts, means
of
prescriptions contained in particular
in the tender
documents, defining the characteristics required of a
material, product or supply, which permits them to be
described in a manner such that they fulfil the use for
which they are intended by the contracting authority.
These characteristics include environmental performance
levels, design for all requirements (including accessibility
for disabled people) and conformity assessment levels,
use of
including
the product, safety or dimensions,
procedures relating to quality assurance, terminology,
symbols, testing and test methods, packaging, marking
and labelling and production procedures and methods.
They also include rules relating to 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 authority is
in a position to prescribe, under general or specific
regulations,
in relation to the finished works and to
the materials or parts which they involve;

2. “standard” means a technical specification approved by a
recognised standardisation body for repeated or continuous
application, compliance with which is not compulsory and
which falls into one of the following categories:

— international standard: a standard adopted by an inter-
national standards organisation and made available to
the general public,

— national standard: a standard adopted by a national
to the

standards organisation and made available
general public;

the fitness for use of a product

3. “European technical approval” means a favourable technical
assessment of
for a
particular purpose, based on fulfilment of
the essential
requirements
the
the product and the defined
inherent characteristics of
conditions of application and use. A European technical
approval is issued by an approval body designated for this
purpose by the Member State;

for building works, by means of

4. “common technical specification” means a technical specifi-
cation drawn up according to a procedure recognised by the
Member States and published in the Official Journal of the
European Communities;

5. “technical

reference” means any product produced by
than official
European standardisation bodies, other
standards, according to procedures adapted in line with
market developments.’

Amendments 10 and 127 relate to contract performance
conditions.

Amendment 10 comprises changes to recital 22 designed to
clarify further that contract performance conditions must not
constitute discrimination and that they may be intended to
achieve, amongst other things, specific environmental goals.

the wording
The first part of
the amendment modifies
they are not
proposed by the Commission (‘provided that
directly or
indirectly discriminatory’). The Commission's
wording is based on the case-law of the European Court of
judgment (1)) and therefore should not be
Justice (‘Beentjes’
amended, especially as it does not have any restrictive effect
the environmental considerations
on taking into account
referred to in the second part of
the
principle of which is fully accepted.

the amendment,

Amendment 127 aims to further reinforce compliance with the
principles of equal treatment, non-discrimination and trans-
parency, where
impose particular
contracting authorities
conditions concerning performance of public contracts. This
amendment actually clarifies in a specific provision what is
already contained in the generally valid provision set out in
Article 2.

The Commission therefore incorporates Amendments 10 and
127 in the following texts, which also take into account the
the
appropriateness
co-legislators.

facilitating

agreement

between

of

— European standard: a standard adopted by a European
standards organisation and made available to the general
public,

(1) Judgment of 20 September 1988 in case C-31/87, [1988] ECR

p. 4635.

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‘(29)

conditions

performance

are
Contract
Recital:
compatible with the Directive provided that
they are not
directly or indirectly discriminatory and provided that they
are indicated in the contract notice and in the contract
documents. They may be aimed at promoting on-the-job
training and the employment of people who are facing
particular difficulties in finding work, at combating unem-
ployment or at protecting the environment, and may give
rise to obligations — applicable to contract performance —
long-term unemployed or
the
to,
implement training schemes for the unemployed and young
persons, or to comply with the substance of the provisions
in the event that these have
of the ILO core conventions,
not been implemented in national
law, to recruit a number
of handicapped persons above that required under national
legislation.’

in particular,

recruit

country of establishment and, where appropriate, at the place
where a service is rendered (cf. Commission communication of
15 October 2001 on the social aspects of public contracts).
This reminder of applicable legislation could be the subject of a
feature in the substantive provisions,
recital;
however, as the objective of the public contracts Directives is
to coordinate procedures for the award of public contracts and
not to impose on companies specific obligations concerning
social or other legislation.

it should not

The Commission takes the view that the concerns underlying
this amendment are sufficiently taken into account by recital
29 mentioned above and by recital 30 below.

‘Article 26a

As a result, the Commission incorporates Amendments 11 and
51 by adding the following recital:

Contract performance conditions

Contracting authorities may impose particular
conditions
concerning performance of the contract, provided that those
conditions are compatible with Community law and provided
that they are stated in the contract notice or in the contract
documents. Contract performance conditions may relate in
particular to social and environmental considerations.’

Amendments 11 and 51 relate to compliance with social
protection provisions.

Amendment 11 introduces a new recital serving as a reminder
of the applicability of the Directive on the posting of workers
(96/71/EC), which sets out the minimum labour protection
conditions which must be observed in which services are
provided by such posted workers. This amendment is akin to
what the Commission itself reiterated in its communication of
15 October 2001 on the social aspect of public contracts (1). It
contributes to the information available to the tenders and thus
creates added value.

Amendment 51 obliges tenderers to comply with social legis-
lation, including collective as well as individual rights, judicial
decisions and collective decisions which are deemed to be
generally binding. These obligations must not prejudice the
application of more favourable employment protections rules
and working conditions.

It is indisputable that companies tendering for public contracts
legislation applicable in the
must comply with the social

(1) ‘Interpretative

communication of

the Commission on the
Community law applicable to public procurement and the possi-
bilities
public
procurement’ (OJ C 333, 28.11.2001, p. 27).

considerations

integrating

social

into

for

shall

apply

during

protection

In cross-border

situations, where workers

‘(30)
The laws, regulations and collective agreements in
force at both national and Community level in the social and
employment
the
fields
performance of a public contract provided that such rules, as
well as their application, are in conformity with Community
law.
from one
Member State provide services in another Member State in
respect of a public procurement contract, European Parliament
and Council Directive 96/71/EC of 6 December 1996
concerning the posting of workers in the framework of a trans-
national provision of services (2) sets out conditions which
should be observed in the host country in respect of such
posted workers. Non-observance of these obligations may be
law applicable, to be
considered, depending on the national
grave misconduct or an offence concerning the professional
conduct of the economic operator concerned.’

Amendments 15 and 100 relate to abnormally low tenders.

Amendment 15, linked to Amendment 100, introduces a new
recital 31a specifying that contracting authorities may reject
tenders which are abnormally low owing to non-compliance
with social legislation. As this possibility already exists under
current law, if suffices to clarify it in an appropriate way.

Amendment 100 removes in its first part the words specifying
that, to be rejected, tenders must be abnormally low in relation
to the goods, works or services. The removal of the words ‘in
relation to the goods, works or services’, which are contained
in the Directives in force, would eliminate a key element of the
provision. Consequently, this part of the amendment cannot be
accepted.

(2) OJ L 18, 21.1.1997, p. 1.

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The second part of Amendment 100 adds to the list of expla-
nations (of the apparently too low price) which have to be
taken into account by the contracting authority in order to
determine whether a tender is abnormally low the fulfilment
of obligations relating to health and safety at work and
working conditions by the tenderer and subcontractors in
performance of the contract, including, in the case of supply
of products and services originating from third countries,
the
compliance
international
production with
IXb proposed by
referred to in an Annex
standards
Amendment 116.

during

Contracting authorities may be interested in verifying that the
price is not too low on account of the non-application of
labour
the Commission takes up this
amendment by clarifying in the text that the list of expla-
nations is not exhaustive.

to this end,

law;

As regards the internationally agreed core labour standards, it
should be noted that compliance with these standards is not
the object of
the ‘public contracts’ directive. Where these
standards have been transposed into national law, compliance
with them can be verified when selecting candidates or
tenderers.

The Commission incorporates Amendments 15 and 100 as
follows:

‘Article 54

Abnormally low tenders

If, for a given contract, tenders appear to be abnormally
1.
low in relation to the goods, works or services, the contracting
authority shall, before it may reject those tenders, request in
writing details of the constituent elements of the tender which
it considers relevant.

Those details may relate in particular to:

(a)

the economics of
services provided and of the construction method;

the manufacturing process, of

the

(b)

the technical solutions chosen and/or the exceptionally
favourable conditions available to the tenderer for the
supply of the goods or services or for the execution of
the work;

(c)

the originality of the supplies, services or work proposed
by the tenderer;

(ca) compliance with the provisions on health and safety at
work and working conditions in force at the place of
performance.

(d)

the possibility of the tenderer obtaining State aid.

The contracting authority shall verify those constituent
2.
elements by consulting the tenderer, taking account of the
evidence supplied.

3. Where a contracting authority establishes that a tender is
abnormally low on the grounds that the tenderer has obtained
a State aid, the tender can be rejected on such grounds alone
only after consultation with the tenderer where the latter is
unable to prove, within an adequate timeframe fixed by the
contracting authority, that the aid in question was lawfully
granted. Where the contracting authority rejects a tender in
these circumstances,
inform the Commission of that
fact.’

it shall

Amendment 170 introduces a new recital 33(a) which provides
for the mandatory exclusion of tenderers found guilty of the
offences of participation in a criminal organisation, fraud and
corruption, as well as of violations of environmental law and of
non-compliance with social legislation. It also states that any
conviction relating to unlawful agreements should be taken
into account, and that a conviction in respect of grave
professional misconduct would also justify exclusion.

This amendment makes it possible to justify by way of a recital
the cases referred to in Article 46(1) (mandatory exclusions) as
proposed by the Commission; however, it adds other elements
which are better accommodated among the cases referred to in
Article 46(2), in that they are already implicitly covered by that
paragraph.

The Commission incorporates the amendment as follows:

‘(39)
The award of public contracts to economic operators
who have participated in a criminal organisation or who have
been found guilty of corruption or of fraud to the detriment of
the financial
interests of the European Communities, or of
money laundering, must be avoided. The exclusion of such
the
economic operators
judgment
contracting authority has knowledge of a final
concerning
rendered in accordance with
national law.

should take place

such offences

soon as

as

To this end, contracting authorities may require candidates/
tenderers to provide appropriate documentation; where they
have any doubts as
these
to the personal
candidates/tenderers,
they may seek the cooperation of the
competent authorities in the Member State concerned.

situations of

to

national

provisions

law contains

If
effect,
non-compliance with environmental legislation sanctioned by
a judgment having the force of res judicata or a conviction or
in connection with public
sanction for unlawful agreement
an offence
contracts may be
regarded as,
concerning
economic
conduct of
the professional
operator concerned or as grave misconduct.’

respectively,

this

the

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Amendments 23, 54 and 65 relate to electronic auctions.

Amendment 23 provides a definition of a reverse auction for
electronic tendering. This definition limits the use of such
auctions solely to award procedures which result
in the
contract being awarded on the basis of
the lowest price
tendered.

It is appropriate to accept the introduction of such auctions
with a view to electronic public purchasing. A definition must
therefore be inserted and reformulated in order to bring it
more closely into line with the Council's approach, where
the auctions has been widened to include
the scope of
variables other than price.

Amendment 54 proposes the possibility of awarding a contract
by electronic auction. However, the introduction of electronic
auctions requires a reformulation so as to provide for the
possibility of also holding an auction when a contract
is
awarded to the tenderer submitting the most economically
advantageous tender and to introduce procedural guarantees
and the necessary techniques.

Amendment 65 proposes the possibility of awarding a contract
by electronic auction. However, it organises this possibility as a
separate procedure, which runs counter to the aim of simplifi-
cation and flexibility pursued in the Commission's proposal.

In open, restricted or negotiated procedures in the case
2.
referred to in Article 29(1)(a), the contracting authorities may
decide that the award of a public contract shall be preceded by
an electronic auction when the contract concerns works,
supplies or services the specifications of which can be estab-
lished with sufficient precision. An electronic auction may take
place in several successive stages.

In the same circumstances, an electronic auction may be held
on the reopening of competition among the parties to a
framework agreement, as provided for in the second indent
of the second subparagraph of Article 32(3).

3.
Contracting authorities which decide to hold an elec-
tronic auction shall state that fact in the contract notice. The
contract documents shall comprise,
inter alia, the following
information:

(a) the elements whose values will be the subject of the elec-
these elements are quan-
they can be expressed in

tronic auction, provided that
tifiable in such a way that
figures or percentages;

(b) the limits for the values which may be presented, as
the

the specifications of

deriving from the entirety of
subject of the contract;

Consequently, the Commission incorporates Amendments 23,
54 and 65, modifying them in the following texts.

(c)

the information which will be made available to tenderers
in the course of the electronic auction, and when it will be
made available to them;

‘Article 1

Definitions

For the purpose of this Directive, the definitions set out

1.
in paragraphs 2 to 12 shall apply.

(d) the relevant information concerning the electronic auction

process;

(e)

the conditions under which the tenderers will be able to
bid and, in particular, the minimum differences which will
be required;

. . .

(f)

relevant

information

the
electronic
equipment used and the arrangements and technical spec-
ifications for connection.

concerning

the

5b
An “electronic auction” is a repetitive process involving
an electronic device for the presentation of new prices, revised
downwards, and of new values relating to certain elements of
tenders which occurs after the first complete evaluation of the
tenders and which enables them to be evaluated automatically.

. . .’

4.
Before holding an electronic auction, contracting auth-
orities shall evaluate tenders in accordance with the chosen
award criterion or criteria.

An electronic auction shall concern

‘Article 53a

the lowest price;

(a) prices only, where the contact is awarded on the basis of

Use of electronic auctions

1. Member States may provide
contracting authorities using electronic auctions.

for

the possibility of

(b) or prices and/or the new values of the elements of the
tenders set out
in the contract documents where the
contract is awarded to the tenderer submitting the most
economically advantageous tender.

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All tenderers who have submitted admissible tenders shall be
invited simultaneously by electronic means to submit new
prices and/or new values;
the invitation shall contain all
relevant information concerning individual connection to the
electronic equipment being used and shall state the date and
time of
the electronic auction. The electronic
auction may not start sooner than two working days after
the date on which invitations are sent out.

the start of

possibly in combination with the arrangements laid down in
subparagraph (b), the invitation to take part in the auction shall
indicate the timetable for each phase of the auction.

8. When they have
closed an electronic auction the
contracting authorities shall award the contract in accordance
with Article 53 on the basis of the results of the electronic
auction.

5. When the contract is to be awarded on the basis of the
most economically advantageous offer, the invitation shall be
accompanied by the outcome of the full evaluation of the
recipient's offer, carried out in accordance with the weighting
provided for in the first subparagraph of Article 53(2).

The invitation shall also state the mathematical formula to be
used in the electronic auction to determine the automatic
rankings on the basis of the new prices and/or new values
submitted. That formula shall express the relative weighting
of each of the criteria chosen to determine the most econ-
omically advantageous offer, as
indicated in the contract
notice or in the specifications; any brackets shall, however,
be reduced to a specified value.

Where variants are authorised, a separate formula shall be
provided for each variant.

6.
the
Throughout each phase of an electronic auction,
contracting authorities shall continually and instantaneously
communicate to all tenderers at least sufficient information
to enable them to ascertain their relative rankings at any
information
moment;
concerning other prices
is
that
they may also at any time
stated in the specifications;
announce the number of participants in that phase of the
auction; in no case, however, may they disclose the identities
of the tenderers during any phase of an electronic auction.

they may also communicate other

submitted, provided that

7.
The contracting authorities
auction in one of the following manners:

shall close an electronic

Contracting authorities may not use electronic auctions
9.
improperly or
to restrict or distort
competition or as to alter the subject of the contract as put
up for tender by publication of the contract notice and defined
in the contract documents.’

in such a way as

Amendment 24 aims to align the definition of a framework
contract with that contained in the ‘Utilities Directive’ 93/38.
The definitions contained in the amendment can be accepted,
but have to be reformulated so as to enable several contracting
authorities to conclude the same framework agreement at the
same time.

The amendment is therefore incorporated as follows:

‘Article 1

Definitions

For the purpose of this Directive, the definitions set out

1.
in paragraphs 2 to 12 shall apply.

. . .

A “framework agreement” is an agreement between one
5.
or more contracting authorities and one or more economic
operators,
the purpose of which is to establish the terms
governing contracts to be awarded during a given period, in
particular with regard to price and, where appropriate, the
quantity envisaged.

(a)

in the invitation to take part in the auction they shall
indicate the date and time fixed in advance;

. . .’

(b) when they receive no more new prices which meet the
requirements
concerning minimum differences or no
more new values. In that event, the contracting authorities
shall state in the invitation to take part in the auction the
time which they will allow to elapse after receiving the last
bid before they close the electronic auction;

(c) when the number of phases in the auction, fixed in the

invitation to take part, has been completed.

When the contracting authorities have decided to close an
auction in accordance with subparagraph (c),
electronic

Amendments 30, 93 and 95 concern economic and financial
capacity, as well as technical and/or professional capability.

Amendment 30 is designed to enable economic operators
tendering as a group to bring their collective capacities to
bear for selection purposes, as regards suitability to pursue
the professional activity concerned, economic and financial
capacity
capability.
and/or
However, the length of any professional experience required
may not be accumulated. Moreover, the amendment provides
that there may be a requirement for minimum criteria to be
met by the head of the group.

professional

technical

and

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in a

activity’

to each participant

it must be
The amendment is line with case-law. However,
possible to apply the requirement ‘suitability to pursue the
professional
group,
depending on the activity which the participant concerned
will be called upon to carry out in the performance of the
contract. As
the minimum criteria which the
contracting authority may require the head of the group to
meet, it has to be ensured that the word ‘minimum’ is inter-
preted in such a way as to guarantee to the contracting
authority that at least one participant in the group has the
skills required for the performance of the contract.

regards

The Commission feels that the spirit of the amendment should
be incorporated into Articles 48 and 49, which relate more
particularly to economic and financial capacity and technical
and/or professional capability.

Amendment 93 adds to the means of proof of
technical/
professional capability for the provision of services an indi-
cation of the technicians or technical bodies responsible for
environmental management or
the health and safety of
workers.

Amendment 95 proposes for works the same addition as
Amendment 93 proposes for services.

Amendments 93 and 95 are designed to provide a way of
judging the technical capability of an economic operator to
deliver services or carry out works which are both environ-
mentally friendly and geared to the health and safety of
workers. These aspects are covered either by the description
of the service specifications or by the requirement,
in other
phases in the award procedure, of compliance with social or
environmental
‘environmental
management measures’ may testify,
in appropriate cases, to
an ‘environmental’ technical capability.

legislation.

However,

The Commission therefore incorporates Amendments 30, 93
and 95 into Articles 48 and 49, modified as follows:

‘Article 48

Economic and financial standing

(c) a statement of

the undertaking's overall

turnover and,
where appropriate, of
turnover in the area covered by
the contract for a maximum of the last three financial
years available, depending on the date on which the under-
taking was set up or the economic operator started trading,
insofar as the references of this turnover are available.

2.
An economic operator may, where appropriate and for a
particular contract, rely on the capacities of other entities,
regardless of the legal nature of the links which it has with
them. It must in that case prove to the contracting authority
that it will have at its disposal the resources necessary, for
example, by producing the undertaking of those entities to
that effect.

Under

2a
the same conditions, a group of economic
operators, such as referred to in Article 3, may bring to bear
the capacities of the group participants or of other entities.

Contracting authorities

in the contract
3.
notice or in the invitation to tender, which reference or
references mentioned in paragraph 1 they have chosen and
which other references must be provided.

specify,

shall

the

If, for any valid reason, the economic operator is unable
4.
to provide
contracting
authority, he may prove his economic and financial standing
by any other document which the contracting authority
considers appropriate.’

requested by the

references

‘(40)

In appropriate cases, where the nature of the
Recital:
works and/or the services justifies the application of environ-
mental management systems during the execution of a public
contract, the application of such measures or systems may be
required. Irrespective of their registration in accordance with
Community instruments (EMAS Regulation), environmental
management systems may demonstrate the technical capability
of the economic operator to execute the contract. Moreover, a
description of the measures applied by the economic operator
in order to ensure the same level of environmental protection
must be accepted as an alternative means of proof to registered
environmental management systems.’

1.
Proof of the economic operator's economic and financial
standing may, as a general rule, be furnished by one or more of
the following references:

‘Article 49

Technical and/or professional capability

(a) appropriate statements from banks or, where appropriate,
evidence of relevant professional risk indemnity insurance;

The technical and/or professional capabilities of

the
shall be assessed and examined in

1.
economic operators
accordance with paragraphs 2 and 3.

(b) the presentation of balance-sheets or extracts from the
balance-sheets, where publication of the balance-sheet is
required under
the country in which the
economic operator is established;

the law of

2.
Evidence of the economic operators' technical capability
may be furnished by one or more of the following means
according to the nature, quantity or scale, and purpose of
the supplies, services or works:

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1.

2.

3.

4.

(a) a list of the works carried out over the past five years,
accompanied by certificates of satisfactory execution
for the most important works. These certificates shall
indicate the value, date and site of the works and shall
specify whether they were carried out according to
the trade and properly completed.
the rules of
Where necessary,
authority shall
submit these certificates to the contracting authority
direct;

competent

the

(b) a list of the principal deliveries effected or the main
services provided in the past three years, with the
sums, dates
and recipients, public or private,
involved. Evidence of delivery and services provided
shall be given:

person or persons responsible for providing the services
or managing the work;

for public works and service contracts, and in appropriate
cases only,
the environmental management measures
which the economic operator will be able to take
during performance of the contract;

a statement of
the
service provider or contractor and the number of mana-
gerial staff for the last three years;

the average annual manpower of

a statement of the tools, plant or technical equipment
for
available
carrying out the services;

to the service provider or contractor

5a

6.

7.

— where the recipient was a contracting authority, in
the form of certificates issued or countersigned by
the competent authority;

8.

an indication of the proportion of the contract which the
services provider intends possibly to subcontract;

— where the recipient was a private purchaser, by
the purchaser's
this,
simply by a declaration by the economic operator;

certification or,

failing

indication of the technicians or technical bodies involved,
whether or not belonging directly to the economic
operator, especially those responsible for quality control
and,
in the case of public works contracts, which the
contractor can call upon for carrying out the work;

a description of the technical facilities and measures used
by the supplier or service provider for ensuring quality,
and of his undertaking's study and research facilities;

a

services

check carried out by

where the products or
to be provided are
complex or, exceptionally, are required for a special
purpose,
contracting
authority or on its behalf by a competent official body
of the country in which the supplier or service provider is
to that body's agreement, on the
established, subject
production capacities of
the supplier or the technical
capacity of the service provider and, if necessary, on his
study and research facilities and quality control measures;

the

9.

with regard to the products to be supplied:

(a) samples, descriptions and/or photographs, the auth-
enticity of which must be certified if the contracting
authority so requests;

(b) certificates drawn up by official quality control
institutes or
recognised competence
attesting the conformity of products clearly identified
by references to specifications or standards.

agencies of

3.
An economic operator may, where appropriate and for a
particular contract, rely on the capacities of other entities,
regardless of the legal nature of the links which it has with
them. It must in that case prove to the contracting authority
that it will have at its disposal the resources necessary for the
execution of
for example, by producing the
undertaking of those entities to place the necessary resources
at the disposal of the economic operator.

the contract,

Under

the same conditions, a group of economic
3a
operators, such as referred to in Article 3, may bring to bear
the capacities of the group participants or of other entities.

5.

the educational and professional qualifications of
the
service provider or contractor and/or those of the under-
taking's managerial staff and, in particular, those of the

4.
In the procedures for awarding public contracts having as
their object the provision of services and/or the execution of
works,
the ability of economic operators to perform this
service or to execute this work may be evaluated in particular
with regard to their skills, efficiency, experience and reliability.

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The contracting authority shall specify, in the notice or in
5.
the invitation to tender, which references under paragraph 2 it
wishes to receive.’

Amendment 31 adds to contracting authorities' obligations
concerning compliance with confidentiality requirements in
relation to data submitted by economic operators, particularly
by giving the list of information or documents concerned and
by specifying that these obligations must be met both during
and after the award procedures.

The listing of the information and documents concerned, as
envisaged by the amendment, would appear to be excessive,
but can be taken over in the form of examples. As regards the
solutions proposed in the competitive dialogue,
technical
third
Article 30 already governs this aspect
subparagraph). By contrast,
the
provision ‘both throughout and after the award procedure’
could have the effect of impeding competition: an enterprise
which had designed a project within the framework of a
service contract would subsequently be the only one able to
carry out that project, as the plans could not be divulged to
any other candidate or tenderer. What is more, a contradiction
could arise between transparency obligations, e.g. vis-à-vis
control bodies, and confidentiality obligations.

the absolute character of

(paragraph 3,

right of

economic operators

Taking due account of Amendment 31, which has recognised
the
the
in
information which they provide be treated confidentially,
accordance with the
the
Commission amends Article 5 as follows:

applicable national

to demand that

legislation,

‘Article 5

Confidentiality

This Directive shall not limit the right of economic operators
to require a contracting authority, in accordance with national
law, to respect the confidential nature of information which
in
include
they make
particular technical or commercial secrets and the tenders.’

such information shall

available;

falling below the Directive's

Amendment 147 introduces a new provision recalling that the
principles of the Treaty are applicable to all public contracts,
including those
application
threshold. As regards the principle of non-discrimination, this
provision stipulates that this implies an obligation of trans-
parency and that this transparency consists of ensuring an
adequate level of publicity in order to open up public service
contracts to competition and ensure impartiality in the award
procedures. In order to guarantee compliance with this obli-
gation, Member States would have to refer to the relevant
provisions of the Directive.

A reminder of the obligation to comply with the rules of the
Treaty when awarding public contracts below the thresholds

for application of the Directive is in line with Community law
and with the case-law of
Justice.
However, it would in no way be justified to limit the trans-
parency principle's
service
contracts as proposed in the amendment.

the European Court of

solely to public

implications

the obligation of

in order to
Nor would it be appropriate to provide that,
transparency, Member States
implement
should refer
this Directive’,
to the ‘relevant provisions of
which would both create legal uncertainty and go beyond
compliance with the rules of the Treaty. Those principles do
not imply publicity and procedural obligations as specific as
those provided for by the Directive, and it would appear
neither
to subject contracts of
whatever value to those rules.

justified nor appropriate

The Commission incorporates the amendment by reformu-
lating recital 2 of its proposal as follows:

such as

The principles of

‘(2)
freedom of movement of goods,
freedom of establishment and freedom of services, and the
principles deriving therefrom,
the principles of
equality of treatment, of which the principle of non-discrimi-
nation is no more than a specific expression, mutual recog-
nition, proportionality and transparency, apply to contracts
concluded by entities subject to the Treaty or in the name or
shall apply
on behalf of
those entities. These principles
in order to
whatever the value of the contracts. However,
facilitate their application in the case of high-value contracts,
it is appropriate to coordinate national award procedures under
this Directive. These coordination provisions must be inter-
preted in accordance both with the aforementioned rules and
principles and in conformity with the other Treaty rules.’

Amendments 34 and 35 relate to the methods for estimating
the value of service contracts.

Amendment 34, which concerns the calculation of the value of
is designed to take into account
insurance service contracts,
other
remuneration comparable with insurance
premiums.

forms of

This amendment is justified by the type of services concerned
and the mode of remuneration.

Amendment 35 specifically regulates the calculation of the
value of contracts of indefinite duration with a tacit renewal
clause.

The amendment is aimed at avoiding improper fragmentation
designed to evade the obligations imposed by the Directive —
it
to
competition-reducing renewal clauses should be avoided.

aim. However,

thus pursues

recourse

laudable

a

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The Commission incorporates Amendments 34 and 35 by
means of a reformulation also aimed at simplifying the text
by merging the four articles concerning calculation methods —
Article 10 for framework agreements, Article 11 for supplies,
Article 12 for services and Article 13 for works, as follows:

(ii) banking

and other

financial

services:

commissions,
eration;

interest and other

forms of

the

fees,
remun-

‘Article 10

(iii) design contracts: fees, commission payable and other

forms of remuneration;

Methods for calculating the estimated value of public
contracts and of framework agreements

(b) for service contracts which do not indicate a total price:

The calculation of

1.
the estimated value of a public
contract shall be based on the total amount net of VAT
payable as estimated by the contracting authority. This calcu-
lation shall
the estimated total amount,
including any form of option and any tacit contract renewal
clauses.

take account of

(i) in the case of fixed-term contracts, if that term is less
than or equal to forty-eight months: the total value for
their full term;

(ii) in the case of contracts without a fixed term or with a
the monthly

than forty-eight months:

term greater
value multiplied by 48.

the contracting authority provides

for prizes or
Where
payments to candidates or tenderers,
it shall take them into
account when calculating the estimated value of the contract.

2.
This estimate must be valid at the moment at which the
contract notice is sent, as provided for in Article 34(2), or, in
cases where such notice is not required, at the moment at
which the contracting authority commences
the contract
awarding procedure.

No works project or proposed purchase of a certain
3.
quantity of supplies and/or services may be subdivided to
prevent its coming within the scope of this Directive.

4. With regard to public supply contracts relating to the
leasing, hire, rental or hire purchase of products, the value to
be taken as a basis for calculating the estimated contract value
shall be as follows:

(a)

in the case of fixed-term public contracts, if that term is
less than or equal to twelve months, the total estimated
value for the term of the contract or, if the term of the
contract
is greater than twelve months, the total value
including the estimated residual value;

(b) in the case of public contracts without a fixed term or the
the monthly value

term of which cannot be defined,
multiplied by 48.

5. With regard to public service contracts, the value to be
taken as a basis for calculating the estimated contract value
shall be as follows:

6. With regard to public works contracts, calculation of the
estimated value must take account of both the cost of the
works and the total estimated value of the supplies necessary
for executing the works and placed at the contractor's disposal
by the contracting authorities.

7. (a) Where a proposed work or purchase of services may
result in contracts being awarded at the same time in
the form of separate lots, account must be taken of the
total estimated value of all such lots.

Where the aggregate value of the lots is equal to or
the
exceeds
Directive shall apply to the awarding of each lot.

the threshold laid down in Article 8,

However, the contracting authorities may waive such
lots the estimated value of
application in respect of
which net of VAT is
than EUR 80 000 for
less
services or EUR 1 million for works, provided that the
aggregate cost of those lots does not exceed 20 % of the
aggregate value of the lots as a whole.

(b) Where a proposal for the acquisition of similar supplies
may result in contracts being awarded at the same time
in the form of separate lots, account must be taken of
the total estimated value of all such lots when applying
Article 8(a) and (b).

Where the aggregate value of the lots is equal to or
exceeds
the
Directive shall apply to the awarding of each lot.

the threshold laid down in Article 8,

(a)

for the following types of services:

(i) insurance services:

the premium payable and other

forms of remuneration;

8.
In the case of public supply or service contracts which
are regular in nature or which are intended to be renewed
within a given period,
the estimated
the calculation of
contract value shall be based on the following:

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(a) either

the actual aggregate value of similar successive
contracts awarded over the previous fiscal year or 12
months, adjusted, where possible, for anticipated changes
in quantity or value over the 12 months following the
initial contract;

‘Article 18

Specific exclusions

This Directive shall not apply to public service contracts for:

(b) or the estimated aggregate value of successive contracts
awarded during the 12 months
first
delivery or during the term of the contract, where this is
greater than 12 months.

following the

. . .

The choice of method used to calculate the estimated value of a
public contract may not be made with the intention of
excluding it from the scope of this Directive.

(b) the acquisition, development, production or co-production
of programmes by broadcasters and contracts for broad-
casting time. This exclusion shall not apply to supplies of
technical
production,
needed
co-production and transmission of these programmes;

equipment

the

for

The calculation of the value of a framework agreement
9.
shall be based on the maximum estimated value net of VAT of
all the contracts envisaged for the total term of the agreement.’

. . .’

Amendment 36 provides for the possibility of Member States
reserving contracts
schemes or
sheltered workshops.

sheltered employment

for

This amendment can be accepted if modified in order further
to clarify that reservation does not imply exemption from the
application of all other provisions of the Directive applicable to
public contracts.

The Commission incorporates this amendment as follows:

‘Article 19b

Reserved contracts

Amendment 38 extends to supply and works contracts an
contracts only. This
exclusion which relates
extension is unacceptable, as it would call into question the
acquis communautaire without valid justification by excluding
from the scope of the Directive contracts which are currently
covered by it.

to service

On the other hand, the amendment clarifies the notion of an
‘entity which is itself a contracting authority’:
is
acceptable, as it does not call the acquis communautaire into
question; on the contrary, it clarifies the provision.

this part

The Commission therefore incorporates Amendment 38 as
follows:

‘Article 19

their execution in the context of

The Member States may reserve the right to participate in
public contract award procedures to sheltered workshops or
sheltered
provide for
the employees
employment programmes where most of
concerned are handicapped persons who, by reason of the
nature or the seriousness of their disabilities, cannot carry on
occupations under normal conditions.

The contract notice shall make reference to this provision.’

Amendment 121 modifies Article 18(b); its origin lies in the
different language versions of the ‘services’ Directive 92/50/EEC
and highlights the need for better harmonisation of language
versions. This would be useful but would require the reformu-
lation of the text of the amendment for it to be interpreted in
conformity with the principle of the freedom of movement of
goods.

The Commission incorporates this amendment, modified as
follows:

Service contracts awarded on the basis of an exclusive
right

This Directive shall not apply to public service contracts
awarded by a contracting authority to another contracting
authority or to an association of contracting authorities on
the basis of an exclusive right which they enjoy pursuant to
a published law, regulation or administrative provision which
is compatible with the Treaty.’

Amendment 40 introduces a new article designed to exclude
from the scope of
the Directive contracts concluded by a
contracting authority with an entity completely dependent on
it, or with a joint venture formed by that contracting authority
with other contracting authorities.

This amendment incorporates the spirit of current case law
(‘Teckel’ judgment). Reformulation is necessary so as take up
the elements covered by the judgment, adapt them to the
situation of a group of contracting authorities and accom-
modate them in the appropriate place in the Directive.

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‘Article 19a

. . .

Contracts awarded to entities owned by a contracting
authority

1.
This Directive shall not apply to public contracts awarded
by a contracting authority to a legally distinct entity owned
exclusively by that contracting authority, if:

(c) in the case of services, inter alia services within category 6
of Annex IIA, and intellectual services such as services
involving the design of works,
insofar as the nature of
the services to be procured is such that contract specifi-
cations cannot be established with sufficient precision to
permit the award of the contract by selection of the best
tender according to the rules governing open or restricted
procedures;

— the entity concerned does not have autonomous decision-
making powers in relation to the contracting authority on
account of the latter exercising over that entity a control
which is similar to that which it exercises over its own
departments;

. . .’

— the entity carries out all its activities with the contracting

authority which owns it.

2. Where such an entity is itself a contracting authority, it
shall, when meeting its own needs, comply with the contract
award rules provided for in this Directive.

3. Where such an entity is not a contracting authority,
Member States shall take the measures necessary to ensure
that, when meeting its own needs,
it applies the contract
award rules provided for in this Directive.’

Amendment 57 is intended to:

It should be noted that the Commission feels it would be useful
to change the ‘supplies, services and works’
into ‘works,
supplies and services’, so as to bring it into line with the
order used at the time of the adoption of the initial Directives.
Annex IA has consequently become Annex IIA.

Amendment 150 is designed to ensure that contracting auth-
orities are able to use the negotiated procedure without publi-
cation of a contract notice in order to award directly to the
contractor additional works not included in the initial project
through unforeseen circumstances, become
which have,
the work, when such
the performance of
necessary for
additional works
economically
cannot be
separated from the main work without major inconvenience
or when such works, though separable from the performance
of the main work, are strictly necessary for its completion.

technically or

1.

introduce a new possibility of using a negotiated procedure
with prior publicity for supply contracts

This amendment can be accepted in this form:

2. and clarify the applicability of
regards ‘intellectual’ services.

the current provision as

Part 1 of the amendment is unacceptable, as it would call into
question the acquis communautaire by extending without valid
justification the scope for the negotiation of tenders to include
supply contracts. It should be emphasised that, by virtue of the
possibilities opened up by the definition of the technical spec-
in terms of performance and by the variants,
ifications
contracting authorities can find it
impossible to adequately
define the supplies they are looking for only in the cases
covered by the competitive dialogue procedure.

Part 2 of the amendment, by contrast, is accepted, reformulated
as follows:

‘Article 29

‘Article 73a

Cases justifying the direct award of additional contracts to
the concessionnaire

Contracting authorities may award directly to the conces-
sionnaire public contracts relating to additional works not
the
included either
in the project
concession or
in the original contract but which have,
through unforeseen circumstances, become necessary for the
performance of the work described therein, on condition that
the award is made to the economic operator performing the
service or work:

initially considered for

— when such additional

cannot be
technically or economically separated from the original
contract without major inconvenience to the contracting
authorities,

services or works

Cases justifying use of the negotiated procedure with
publication of a contract notice

or

Contracting authorities may award their public contracts by
negotiated procedure, after publication of a contract notice,
in the following cases:

— when such services or works, although separable from the
performance of the original contract, are strictly necessary
for its completion.

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the aggregate value of contracts awarded for
However,
additional works may not exceed 50 % of the amount of the
value of the initial work forming the subject of the concession.’

(a) the minimum time-limit

to
for
participate shall be 40 days from the date on which the
contract notice was sent;

receipt of

requests

Amendment 70 is intended to:

(b) In the

case of

time-limit
from the date on which the invitation was sent.

for the receipt of

restricted procedures,

the minimum
tenders shall be 40 days

1. simplify the provisions concerning the time-limits applicable

to the various stages of contract award procedures;

2. remove the provision shortening the time-limits in the case

of the publication of a periodic indicative notice;

3. remove any possibility of shortening these time-limits where

electronic means are used.

Re point 1: in order to avoid a legal vacuum regarding the
time-limits for the receipt of tenders in restricted procedures, it
is necessary to reformulate the amendment, acceptance of
which means some time-limits being extended by three days.

Re point 2: the amendment is not justified, as it poses a
twofold problem: firstly,
it constitutes reverse discrimination
against European contracting authorities compared with their
counterparts in non-EU countries which have acceded to the
WTO Agreement on Public Procurement; secondly, it threatens
to deprive companies of information concerning the intentions
of contracting authorities.

Re point 3: removal of time-limit reduction possibilities which
in no way penalise companies; this would run counter to the
objective of encouraging purchasers to use electronic means as
called for by the Lisbon Council.

The Commission incorporates Amendment 70 as follows:

‘Article 37

Time-limits for requests to participate and receipt of
tenders

to participate,

1. When fixing the time-limits for the receipt of tenders and
requests
take
account in particular of the complexity of the contract and
the time required for drawing up tenders, without prejudice
to the minimum time limits set by this Article.

contracting authorities

shall

2.
In the case of open procedures, the minimum time-limit
for the receipt of tenders is 52 days from the date on which
the contract notice was sent.

In

the

case

3.
negotiated
restricted
procedures with publication of a contract notice referred to
in Article 29 and the competitive dialogue

procedures,

of

4. When contracting authorities have published a prior
information notice, the minimum time-limit for the receipt
of tenders under paragraphs 2 and 3(b) may, as a general
rule, be shortened to 36 days, but under no circumstances to
less than 22 days.

The period shall run from the date on which the contract
notice was sent in open procedures, and from the date on
which the invitation to submit a tender was sent in restricted
procedures.

The shortened time-limits referred to in the first subparagraph
shall be permitted, provided that the prior information notice
has included all the information required in the model contract
notice in Annex VIIA, insofar as that information is available at
the time the notice is published and was sent for publication
between no less than 52 days and no more than twelve months
before the date on which the contract notice was sent.

5. Where notices are drawn up and transmitted by elec-
tronic means in accordance with the format and procedure
for transmission indicated in Annex VIII, paragraph 3,
the
time-limits for the receipt of tenders referred to in paragraphs
2 and 4 in open procedures, and the time-limit for the receipt
of
(a) of
paragraph 3, in restricted and negotiated procedures and the
competitive dialogue, may be shortened by seven days.

the requests to participate referred to in point

for

The

tenders

set out

time-limits

receipt of

6.
in
paragraphs 2 and 3(b) above may be reduced by five days
where the contracting authority offers free and full direct
access by electronic means to the contract documents and
any supporting documents from the date of publication of
the notice in accordance with Annex VIII, specifying in the
text of the notice the Internet address at which this documen-
tation is accessible.

This reduction may be aggregated with the reduction referred
to in paragraph 5.

If,

reason,

for whatever

the specifications and the
7.
supporting documents or additional
information, although
requested in good time, have not been supplied within the
time-limits set in Article 38, or where tenders can be drawn
up only after a visit to the site or after on-the-spot inspection
of the documents supporting the contract documents, the time-
limits for the receipt of tenders shall be extended so that all
economic operators concerned may be aware of all
the
information needed to produce a tender.

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In the case of

restricted procedures and negotiated
8.
procedures with publication of a contract notice referred to
in Article 29, where urgency renders impracticable the time-
limits laid down in the present Article, contracting authorities
may fix:

(a) a time-limit for the receipt of requests to participate which
may not be less than 15 days from the date on which the
contract notice was sent, or less than 10 days if the notice
was sent by electronic means,
in accordance with the
format and procedure for sending notices indicated in
Annex VIII, paragraph 3;

The following rules are applicable to devices for the elec-

5.
tronic receipt of offers and requests to participate:

(a)

information regarding the specifications necessary for the
electronic submission of offers and requests to participate,
including encryption, must be available to interested
parties. Moreover, the devices for the electronic receipt of
offers and requests to participate must conform to the
requirements of Annex X;

(b) the Member States may introduce or maintain voluntary
accreditation schemes aiming at enhanced levels of certifi-
cation service provision for these devices;

(b) and, in the case of restricted procedures, a time-limit for
the receipt of tenders which shall be not less than 10 days
from the date of the invitation to tender.’

(c)

Amendment 74 specifies that the obligation on the part of the
purchaser to preserve the confidentiality and integrity of the
data submitted to it covers the entire operational cycle of the
procedure: storage, processing and holding.

The clarifications proposed will be taken over in the relevant
provisions of the text, but reformulated to take into account
the requirements of the various types of electronic submission.

The Commission incorporates Amendment 74 by modifying
Article 42 of its proposal as follows:

‘Article 42

Rules applicable to communication

1.
All communication and information exchange referred to
in this Title may be performed by letter, by fax, by electronic
means in accordance with paragraphs 4 and 5, by telephone in
the cases and circumstances referred to in paragraph 6, or by a
combination of those means, according to the choice of the
contracting authority.

2.
The means of communication chosen must be generally
available and thus not restrict economic operators' access to
the tendering procedure.

exchange

Communication and the

3.
and storage of
information shall be carried out in such a way as to ensure
that the integrity of data and the confidentiality of tenders and
requests to participate are preserved, and that the contracting
authorities examine the content of tenders and requests to
participate only after the time-limit set for submitting these
has expired.

the time-limit
requests

tenderers or candidates shall undertake to submit, before
laid down for submission of
expiry of
documents,
the
tenders or
certificates, attestations and declarations referred to in
Articles 46 to 50 and Article 52 if they do not exist in
electronic format.

to participate,

Rules applicable to the transmission of

6.
participate:

requests

to

(a) requests to participate in procedures for the award of
public contracts may be made in writing or by telephone;

(b) where requests to participate are made by telephone, a
written confirmation must be sent before expiry of the
time-limit set for their receipt;

that

(c) contracting authorities may require

for
participation made by fax must be confirmed by post or
by electronic means, where this
the
purposes of legal proof. Any such requirement, together
with the deadline for sending confirmation by post or elec-
tronic means, must be stated by the contracting authority
in the contract notice.’

is necessary for

requests

Amendments 77-132 are designed to:

1. clarify that

requirements

selection of
participants must be proportional to the subject matter of
the contract.

relating to the

2.

increase the obligations of
the contracting authority as
regards the confidential treatment of information supplied
by economic operators.

As far as the first aspect is concerned, the amendments are
consistent with the proposal and can be accepted in spirit. By
contrast,
is already
covered by Amendment 31 concerning Article 5.

is superfluous, as it

the second aspect

The tools to be used for communicating by electronic
4.
means, as well as their
technical characteristics, must be
non-discriminatory, reasonably available to the public and
interoperable with the information and communication tech-
nology products in general use.

The Commission takes over amendments 77-132 as follows,
reformulating them and merging Articles 44 and 45 in such a
way as to simplify the text and facilitate agreement between the
co-legislators:

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‘Article 43a

Verification of aptitude and choice of participants, award
of contracts

1.
Contracts shall be awarded on the basis of the criteria laid
down in Articles 53 and 54, taking into account Article 25,
after the suitability of the economic operators not excluded
under Articles 46 and 47 has been checked by contracting
authorities in accordance with the criteria of economic and
financial
technical
knowledge or ability referred to in Articles 48 to 52 and,
where appropriate, with the non-discriminatory rules and
criteria referred to in paragraph 3.

professional

standing

and

and

of

The contracting authorities shall specify in the contract
2.
notice the minimum levels of ability in accordance with
Articles 48, 49 and 50 which candidates and tenderers must
meet.

The extent of the information referred to in Articles 48 and 49
and the minimum capacity levels required for a specific
contract shall be linked to and proportionate to the subject
matter of the contract.

3.
In restricted procedures, negotiated procedures with
publication of a contract notice and in the competitive
dialogue, contracting authorities may restrict the number of
suitable candidates they will invite to tender, to negotiate or
suitable
to participate, provided a sufficient number of
shall
candidates
indicate in the contract notice the objective and non-discrimi-
natory criteria or rules they intend to apply, the minimum
number of candidates they intend to invite and, where appro-
priate, the maximum number.

contracting authorities

available. The

is

4.
In the restricted procedure the minimum shall be five. In
the negotiated procedure with publication of a contract notice
and the competitive dialogue the minimum shall be three. In
any event the number of candidates invited shall be sufficient
to ensure genuine competition.

The contracting authorities shall invite a number of candidates
at least equal to the minimum number set in advance. Where
the number of candidates meeting the selection criteria and the
the
minimum levels
contracting authority may continue the procedure by inviting
the candidate(s) with the required capabilities. In the context of
this same procedure, the contracting authority may not include
other economic operators who did not request to participate,
or candidates who do not have the required capabilities.

is below the minimum number,

to be negotiated, as provided for in Articles 30(4) and 29(4),
they shall do so by applying the award criteria stated in the
in the specifications or in the descriptive
contract notice,
document.
the number arrived at shall
make for genuine competition insofar as there are enough
solutions or suitable candidates.’

In the final stage,

Amendment 80 supplements
compulsory exclusions
referred to in Article 46(1) by adding the offence of money
laundering within the meaning of Article 1 of Council
Directive 91/308/EEC of 10 June 1991.

the

In order to facilitate agreement between the co-legislators, the
Commission takes over the amendment as follows:

‘Article 46

Personal situation of the candidate or tenderer

1.
Any candidate or tenderer shall be excluded from partici-
pation in a public contract who, to the knowledge of the
contracting
authority, has been convicted by definitive
judgment for one or more of the reasons set out below:

(a) participation in a criminal organisation, as defined in
Article 2(1) of the Joint Action of 21 December 1998;

(b) corruption, as defined in Article 3 of the Council Act of
the Joint Action of

26 May 1997 and Article 3(1) of
22 December 1998 respectively;

(c)

fraud within the meaning of Article 1 of the Convention
relating to the protection of the financial interests of the
European Communities established by the Council Act of
26 July 1995.

(d) money laundering as defined in Article 1 of Council
Directive 91/308/EEC of 10 June 1991on prevention of
the use of the financial system for the purpose of money
laundering (1), as amended by Directive 2001/97/EC of the
European Parliament and of the Council of 4 December
2001 (2).

. . .’

Amendments 86, 87 and 89 modify Article 46(2).

Amendment 86 modifies Article 46(2)(d) by providing for the
possibility of excluding on the grounds of grave professional
conduct any economic operator who has been guilty of
violating international core labour standards or infringement
of ‘fundamental’ European legislation relating to employment
protection and working conditions.

5. Where the contracting authorities exercise the option of
reducing the number of solutions to be discussed or of tenders

(1) OJ L 166, 28.6.1991, p. 77.
(2) OJ L 344, 28.12.2001, p. 76.

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Non-compliance with labour law may constitute grounds for
exclusion under the provisions proposed by the Commission
without it being necessary to refer explicitly to this case in the
it may also constitute grounds for
substantive provisions;
‘grave professional misconduct’
exclusion on account of
within the meaning of Article 46(2) as proposed.
In its
Communication of 15 October 2001 concerning the inte-
gration of social considerations into public procurement, the
Commission explained the extent to which these cases were
already covered by existing legislation. This also applies to this
proposal;
the Commission has therefore explained this in
recital 30 cited in Amendment 51 above.

Amendment 87 introduces the possibility of excluding any
operator who has not fulfilled his employment-protection obli-
gations towards workers or labour-law obligations towards
their representatives in accordance with the applicable legal
force:
provisions
non-compliance must have been established by a court
judgment.

agreements

collective

the

or

in

This amendment clarifies the possibility, already offered by
Article 46(2)(c) of
the proposal, of excluding any tenderer
who has been convicted by a judgment of any offence
concerning his professional
explanation is
conduct;
provided by recital 30 referred to above.

this

Amendment 89 introduces the possibility of exclusion for
failure to comply with social
legislation, as established by
judgment or any other means.

As in the case of Amendments 86 and 87, the Commission has
taken this amendment into account in recital 30 referred to
above.

Amendment 153 is designed to enable Member States to
entrust private-law certification bodies with the task of
checking the requirements referred to in Articles 46, 47, 48,
49, 50 and 50a.

In order to facilitate verification of the exclusion and selection
criteria, Member States are allowed to assign this task to
private- or public-law certification bodies. However, this must
not have the effect of making certification solely by national
bodies a condition for participation in invitations to tender in a
Member State.

The Commission incorporates this amendment, reformulated as
follows:

‘Article 52

Official lists of approved economic operators and certifi-
cation by public- or private-law bodies

1. Member States may draw up either official
approved contractors,

lists of
service providers or

suppliers or

introduce a system of certification by public or private certifi-
cation bodies.

They shall adapt the conditions for inclusion in these lists and
for the issue of certificates by certification bodies to the
provisions of Article 46(1) and (2)(a) to (d) and (g), Articles
47, 48(1),
(4) and (5), and
Articles 52 and 50a.

(3) and (4), Article 49(1),

(2),

They shall also adapt them to Articles 48(2) and 49(3) as
regards applications for registration submitted by economic
operators belonging to a group and claiming resources made
available to them by the other companies in the group. In such
case, these operators must prove to the authority establishing
the official
list that they will have these resources at their
disposal throughout the period of validity of the certificate
attesting to their being registered in the official list.

Economic operators registered in the official

lists or in
2.
possession of a certificate may, for each contract, submit to the
contracting authority a certificate of registration issued by the
competent authority or the certificate issued by the competent
certification body. These certificates shall state the reference
which enabled them to be registered in the list/certified and
the classification given in that list.

Certified registration in official

3.
lists by the competent
bodies or the certificate issued by the certification body shall
not, for the purposes of the contracting authorities of other
Member States, constitute a presumption of suitability except
as regards Articles 46(1) and (2)(a) to (d) and (g), 47, 48(1)(b)
in the case of
and (c) and 49(2)(1)(a),
(5),
in the case of
contractors,
suppliers and 2(1)(b), and (3) to (8)
in the case of service
providers.

(4) and (9)

(6) and (7)

(2)(1)(b),

(2),

(2),

(3),

lists or

Information which can be deduced from registration in
4.
official
from certification may not be questioned
without justification. With regard to the payment of social
security contributions and taxes, an additional certificate may
be required of any registered economic operator whenever a
contract is offered.

The contracting authorities of other Member States shall apply
paragraph 3 and the first subparagraph of this paragraph only
in favour of economic operators established in the country
holding the official list.

For any registration of economic operators of other
5.
Member States in an official
list or for their certification by
the bodies referred to paragraph 1, no further proof or
statements can be required other than those requested of
national economic operators and,
in any event, only those
provided for under Articles 46 to 50a.

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However, such registration or certification cannot be stipulated
as a requirement which economic operators
from other
in order to tender for a public
Member States must fulfil
contract. Contracting authorities
recognise equivalent
certificates from bodies established in other Member States.
They shall also accept other equivalent means of proof.

shall

6.
The certification bodies referred to in paragraph 1 shall
be bodies which comply with European certification standards.

7. Member States which have official
lists or certification
bodies as referred to in paragraph 1 shall be obliged to
inform the other Member States of the address of the body
to which applications should be sent.’

Amendment 104 specifies that the obligation on the part of
the purchaser to preserve the confidentiality and integrity of
the information submitted to it covers part of the operational
cycle of the procedure: storage, processing and holding.

their

the preparation of

the elements
Economic operators must have knowledge of
necessary for
tenders. Where a
works or service contract is to be performed in the contracting
authority's country, some elements will relate to national legis-
It is therefore legitimate that contracting auth-
lation there.
orities should be obliged to state where they can obtain such
information. However, it would be more appropriate for this
information to be featured in the contract notice.

Amendment 113 imposes on contracting authorities an obli-
gation to state in contract notices the names and addresses of
bodies responsible for appeals relating to the award of public
contracts.

Increased transparency in this domain is desirable.

The Commission therefore incorporates Amendments 110 and
113 as follows:

‘CONTRACT NOTICES

In order to take into account the requirements of the various
types of electronic submission, the clarifications proposed are
reformulated and taken over as follows:

OPEN AND RESTRICTED PROCEDURES, COMPETITIVE DIALOGUES,
NEGOTIATED PROCEDURES:

‘Article 61

Means of communication

Article 42(1),

1.
cations relating to contests.

(2) and (4) shall apply to all communi-

and

Communications,

2.
of
exchanges
information shall be such as to ensure that the integrity and
information communicated by the
the confidentiality of all
participants in a contest are preserved and that
the jury
ascertains the contents of plans and projects only after the
expiry of the time-limit for their submission.

storage

the

The following rules shall apply to the devices for the

3.
electronic receipt of plans and projects:

(a) the information relating to the specifications which is
necessary for the presentation of plans and projects by
electronic means,
including encryption, shall be available
to the parties concerned. In addition, the devices for the
electronic receipt of plans and projects shall comply with
the requirements of Annex X;

1.

Name, address,
tronic address of the contracting authority.

telephone and telefax numbers, elec-

telefax

numbers,

1a Where public works and supply contracts involve siting
telephone
and installation operations: name, address,
the
address
and
departments from which information can be obtained
concerning the rules and regulations on taxes, environ-
mental protection, health and safety at work and
working conditions applicable in the place where the
contract is to be performed.

electronic

of

. . .

23a Name and address of the body responsible for appeal
and, where appropriate, mediation procedures. Precise
information concerning deadlines for lodging appeals.

. . .’

Amendment 114 imposes on contracting authorities an obli-
gation to provide in notices on contracts awarded the names
and addresses of bodies responsible for appeals relating to the
award of public contracts.

(b) the Member States may introduce or maintain voluntary
accreditation schemes aiming at enhanced levels of certifi-
cation service provision for these devices.’

Increased transparency in this domain is desirable. The
Commission therefore incorporates this amendment as follows

‘NOTICES ON CONTRACTS AWARDED

Amendments 110 and 113 modify Annex VIIA as regards
contract notices.

. . .

Amendment 110 obliges contracting authorities to state in the
pre-information notice the body from which information on
tax, social and environmental legislation can be obtained.

12a Name and address of the body responsible for appeal
and, where appropriate, mediation procedures. Precise
information concerning deadlines for lodging appeals.’

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3.3. Amendments not accepted by the Commission (162, 8, 173,
25, 29, 32, 37, 159, 49, 151, 68, 78, 63, 139, 66, 69,
161, 71, 72, 131, 73, 75, 76, 81, 82, 83, 84, 90, 92, 94,
176, 99, 102, 103, 107, 108, 111, 115, 117 and 116)

authority to define the means suitable to meet its needs, the
amendment is unacceptable, as it poses the same problems in
terms of subsidiarity as Amendments 142, 7 and 171-145
aimed at
introducing an obligatory separation between the
design and execution of works.

Amendment 162 introduces a new recital 1a designed to have
taken in award procedures of Council Directive
account
85/337/EEC of 27 June 1985 on the assessment of
the
and private projects on the
effects of
environment.

certain public

Amendment 25 is specifically designed to regulate framework
agreements in the field of translation and interpretation.

This amendment is superfluous, as it lies outside the scope of
this Directive. It reaffirms the applicability of a Directive which
imposes obligations on the private and public sectors prior to
the launch of any project and, hence, of any award procedure.

there

to be

Amendment 8 supplements the recital concerning technical
specifications by underlining that, where
are no
European specifications, contracting authorities must be able
to lay down precise national criteria in advance in order to
keep maintenance and repair costs as low as possible. This
amendment has
considered in conjunction with
Amendment 45, which enables a contracting authority to
reject an equivalent solution — a national one, as the case
may be — on the grounds that it would entail higher costs.
This part of Amendment 45 is unacceptable, as it is in contra-
diction to Article 28 of the Treaty. Therefore, Amendment 8 is
also unacceptable. What is more, it is not for contracting auth-
orities
to lay down national criteria which are generally
applicable. As regards the reference to a national standard,
is already
in the Commission initial proposal
the recital
explicit.

the details of

Amendment 173 modifies Article 1 in order
to define
particularly complex contracts which may be the subject of a
competitive dialogue. The amendment relates to Article 1
the
rather than Article 30, which sets out
procedure, giving a non-exhaustive list of examples. This is
in fact more than a definition. Rather, it is a listing of cases
in which a competitive dialogue may be held, namely when a
contracting authority is unable either to define the technical or
other means of meeting its requirements or to determine the
solutions that the market can offer. As regards inability to
define the means,
this must not be attributable to the
absence of a prior design competition or to the fact that a
functional contract notice could have sufficed. The Commission
takes the view that the concept of a complex contract is not
necessary and that it is preferable to define — in Article 30 —
the objective conditions permitting recourse to a competitive
dialogue.

As regards the condition according to which the organisation
of a prior design contest had not enabled the contracting

the services to which this
It should be emphasised that
amendment refers are covered by Annex IB and are therefore
not subject to all the procedural rules of the Directive (call for
competition and detailed rules). Consequently, by providing for
specific rules to govern framework agreements, the amendment
would, without justification, make the legislation applicable to
such agreements more inflexible than that applicable to public
contracts awarded in the same sector.

Amendment 29 sets out to make the awarding of prizes to
participants in design contests compulsory and accordingly
modifies the definition of ‘design contests’ by limiting them
exclusively to contests in which prizes are awarded.

The principle of making the awarding of prizes to participants
compulsory may be justified where a design contest relates to
projects incurring real costs, such as design contests organised
with a view to the execution of a structure or an urban or
landscaping project. However,
it should be pointed out that
design contests may be organised in other fields where the
compulsory awarding of prizes would not be justified. What
is more, the definition proposed by the amendment, according
to which only design contests with prizes could be held, would
to be an appropriate way of achieving this
not appear
objective. Indeed, such a definition would not prevent design
contests without prizes being organised, but it would remove
such contests from the scope of the Directive.

Amendment 32 proposes to increase the thresholds indicated
in the Commission's proposals by around 50 %.

in the Directives

The thresholds
in force are such that
Community regulations cover only the biggest contracts in
value terms. Raising the thresholds of the Directive would
lead to an unjustified reduction in the guarantees concerning
the opening-up of public contracts currently offered to
economic operators in the European Union.
It should be
noted that the supposed complexity of the procedures under
the Directives and the associated administrative costs could not
justify raising the
in fact
comparable with the complexity and costs of other national
contract award procedures in force for contracts below the
thresholds.

factors are

thresholds:

these

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What is more, a unilateral raising of the thresholds by the
European Union would be incompatible with its obligations
within the WTO. In addition, a European request to raise the
thresholds within the framework of the current revision of the
Government Procurement Agreement would entail a loss of
credibility for Europe in the context of
the negotiations
involved in that revision, as the negotiating mandate clearly
to the objective of broadening the Agreement's
refers
coverage. Also,
such a request would provoke either a
demand by our partners for compensation or the reciprocal
closing of international markets.

It should further be noted that the mechanism for the biennial
revision of thresholds, designed to adapt them in line with
changes in parities between European currencies and SDRs,
may already result in a significant raising of thresholds, as is
currently the case for the thresholds applicable for the period
2002-2004.

Amendment 37 adds an exclusion concerning transactions
enabling the contracting authority to contract borrowings
intended for investments and cash flow requirements.

This exclusion would have the effect of making it possible for
the financing of any public (and particularly local) authority
project to be raised without a call for competition at European
level. This runs counter to the objectives of the liberation of
financial services and is not justified by the argument put
forward concerning the volatility of interest rates. Procedures
framework agreements combined with
already exist — e.g.
electronic means and,
reverse auctions —
in particular,
which are sufficiently flexible to enable this volatility to be
taken into account.

Amendment 159 is intended to:

1. ensure that contracting authorities do not

impose any
‘quantitative restrictions on the exercise, by the under-
takings, of freedom of organisation of their own inputs’;

2. oblige contracting authorities to ask the tenderer to indicate
in his tender the share of the contract he may intend to
subcontract to third parties and any designated subcon-
tractors;

3. oblige contracting authorities to prohibit any subcontracting
to undertakings which are in the situation referred to in
Article 46 ‘and/or undertakings which do not meet
the
requirements laid down in Articles 47, 48 and 49’;

The Commission cannot accept this amendment, the reasons
being as follows:

1. If an economic operator can demonstrate that he can
effectively draw on the capacity of other entities,
for
example through subcontracting, he is entitled, according
to case-law, to avail himself thereof for the purposes of
selection. By contrast, there is nothing under current legis-
lation to prevent a contracting authority prohibiting the
execution of the contract, in whole or in part, from being
subcontracted.

2. By dint of this obligation, tenders would be required to
single out in the tender both the portion of the contract
to be subcontracted and the choice of subcontractors.
Imposing such an obligation at Community level would
appear to be excessive, given the fact that it is always the
successful tenderer who is responsible for the execution of
the contract.
it
would be up to Member States to provide, where necessary,
for an obligation to request the names of subcontractors.

In view of the principle of subsidiarity,

3. The possibility of excluding subcontractors would appear to
be legitimate as regards companies/persons convicted of
certain offences (organised crime/corruption/fraud against
the financial interest of the Community, cf. Article 46(1))
or in other cases (non-compliance with labour law, cf.
Article 46(2)); it nevertheless poses difficulties in terms of
application. It presupposes knowledge of (see point 2) and a
priori control over subcontractors, which would excessively
lengthen award procedures. However, it could be taken into
account in accordance with the principle of subsidiarity
(obligation imposed, where appropriate, by Member States).

As regards the aspects of point 3 relating to economic and
financial standing and technical and professional capa-
bilities, as referred to in Articles 48 and 49, this would
mean that subcontractors would have to have the same
capacity as the principal contractor, which would unjus-
tifiably exclude SMEs. These aspects cannot, therefore, be
taken into consideration.

As far as Article 47 is concerned, the amendment proposes
to apply in respect of subcontractors a stricter regime than
that envisaged for candidates and tenderers (in the latter
case, contracting authorities would not be obliged to
request information, whereas in the case of subcontractors
they would have to do so systematically). However,
it is
already possible to apply Article 47 to subcontractors for
selection purposes where a tenderer relies on means made
Italia’ (1)
available
judgment).

subcontractors

to him by

(‘Holst

4. prohibit the contracting out of ‘intellectual services, with the
translation and interpretation services and

exception of
management and related services’.

(1) Judgment of 2 December 1999 in case C-176/98, [1999] ECR

I-8607.

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4. It would not appear justified to lay down such a general
prohibition: contracting authorities, which are the parties
concerned, are already able,
if they so wish, to prohibit
subcontracting by imposing conditions for the execution
of the contract; this goes for all types of contracts and
not just for certain services. By the same token, they must
be free to allow subcontracting.

Amendment 49 inserts into Article 26 a new subparagraph
imposing on subcontractors the same requirements regarding
economic,
financial and social performance as apply to
candidates or tenderers.

the same reasons as

For
in the comments on
Amendment 159 (point 3, 2nd and 3rd paragraphs),
Amendment 49 cannot be accepted.

set out

times.

the very existence of

more than one year, a single notice calling for competition for
all contracts to be awarded during that period. The qualifi-
cation system would in theory be open at all
In
practice, accessibility to the system would be very uncertain,
as it would presuppose that economic operators became aware
the system — through a notice
of
in advance. This would
published months of even years
militate against putting contracts out
to competition and
would place newly-created enterprises at a disadvantage. The
amendment would thus entail an unacceptable loss of trans-
parency and risk contracts being reserved for companies which
had taken note of the initial notice. Matters could be otherwise
if such systems and the contracts awarded on the basis thereof
were accompanied by an appropriate call for competition and
were put in place by electronic means making it possible to
ensure transparency and equality of treatment. It should also be
noted that the introduction of qualification systems would be
in breach of the GPA to the extent that it was applied to
central contracting authorities.

Amendments 151, 68 and 78 are aimed essentially at intro-
ducing qualification systems such as those provided for in the
‘Utilities Directive’ 93/38/EEC.

Amendment 63 is aimed at prohibiting the application of
framework agreements to intellectual services and introducing
specific rules for translation and interpretation services.

Amendment 151 adds a new paragraph 2a to Article 32 in
order to introduce the possibility for contracting authorities of
setting up a qualification system, to be the subject of an annual
notice where the duration of the system exceeds three years
and of a single notice in other cases.

Amendment 68 introduces
the possibility of calling for
competition by means of a notice on the existence of a qualifi-
cation system.

Amendment 78 introduces the rules applicable to qualification
systems. These provisions are closely aligned on analogous
provisions of
the ‘Utilities Directive’ which are in force.
However, the amendment does not incorporate the provisions
concerning the obligations to state reasons for decisions taken
regarding qualification, nor those imposing mutual recognition
and equality of treatment within the framework of qualification
systems. Regarding the selection of economic operators, the
amendment merely indicates
to be
operated on the basis of ‘objective criteria and rules to be
established by the contracting authority’, with no reference
being made to the general
rules applying to qualitative
selection.

system is

that

the

Amendments 151, 68 and 78 (Article 45a) should be analysed
together. Their effect is to introduce the regime of the ‘Utilities
Directive’, namely the possibility of using a qualification system
— specific to each contracting authority — as a means of
individual contracts to be
calling for competition for several
awarded during the period of validity of the system. In other
words, instead of having as many notices as there are award
procedures, there would be either one notice per year calling
for competition for all the contracts covered by the system
during that year or, if the system had a period of validity of

The first part of the amendment is void, as the amendment
designed to separate intellectual services from other services
was not adopted. The origin of
the
amendment
lies in the problems raised by the translation
services of the European Institutions, in particular that of the
European Parliament, which have meanwhile been resolved to
the full satisfaction of those services.

the second part of

Moreover, it should be emphasised that the services to which
the amendment refers, and which are covered by Annex IB, are
not subject to all the procedural rules of the Directive (call for
competition and detailed rules). Consequently, by providing for
specific rules to govern framework agreements, the amendment
would, without justification, make the legislation applicable to
such agreements more inflexible than that applicable to public
contracts awarded in the same sector.

Amendment 139 prohibits the use of framework agreements
for works contracts.

Framework agreements can be used for works contracts,
particular
for
repairs. The
therefore unacceptable.

in
‘standard’ works such as road surfacing or
is
exclusion envisaged by the

amendment

Amendment 66 modifies Article 33 in order to extend the
scope of the particular procedure, concerning public housing
schemes,
for reasons of size,
complexity and duration and/or financing, require collaborative
project planning . . .’

‘public works which,

to all

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This amendment is wholly unacceptable, as it broadens the
scope for contract negotiation,
in a very vague manner to
it should be noted that Article 30 already
boot. Moreover,
makes it possible to cover a large number of
the cases
referred to by this amendment.

Amendment 69 adds to Article 35(1), first subparagraph, an
explicit
the European
Communities for the publication of notices.

to the Official

Journal of

reference

amendment would

This
the publication
arrangements and make it impossible to take into account
technological changes which could,
in future, make it more
appropriate to publish notices by other means.

institutionalise

Amendment 161 deletes the provision stipulating that the time
limits for receipt of requests to participate and for submission
of tenders must be sufficiently long to ensure that economic
operators are allowed the time actually needed.

As the aim of this provision is to contribute towards ensuring
that public contracts are the subject of a better and genuine
call for competition, the amendment is unacceptable.

Amendment 71 modifies Article 40 by specifying that any
specific conditions for taking part in the tendering process
must not unduly discriminate between tenderers. It adds this
provision to the conditions stated in the invitation to tender.

a Directive. This

The goal pursued by this amendment
proposal
for
however, as
concerning
throughout the award procedure.

is in line with the
superfluous,
is already covered by Article 2
to be observed

the matter
the

fundamental principles

addition is

Amendment 72 limits to two specific situations the scope for
closing an award procedure before a contract has been
awarded: where no tender has been received which meets the
award criteria and where there are other serious grounds which
lie outside the powers of the contracting authority.

This amendment is laudable as regards its objectives (to avoid
possible manipulations and contribute towards greater security
of planning for companies), but is unacceptable as regards its
form, as it restricts in a drastic, disproportionate and inappro-
priate manner the scope for not awarding a contract.

Reasons for non-award must not be listed in an exhaustive
manner, as contracting authorities act as purchasers and
consequently must have at
their disposal options that are
geared to coping with highly variable situations which the
Directive could not demarcate. It is appropriate to point out
that one of
the possibilities which the amendment would
exclude is the early closure of a procedure on grounds of

non-compliance with applicable Community law, which is in
contradiction with the ‘review procedures’ Directive (1).

Moreover, it should be pointed out that contracting authorities
are already obliged to inform participants of the reason why no
contract has been awarded. This provision is aimed precisely at
avoiding arbitrary manipulations and enables participants to
check the soundness of a decision made by a contracting
authority.

Amendment 131 is designed to prevent contracting authorities
from being able to choose the means by which communication
and the exchange of information must be performed in the
context of an award procedure.

The effect of this amendment would be to oblige contracting
authorities to receive tenders by whatever means, regardless of
whether they have the technical facilities to receive them by a
particular means. The amendment therefore has to be rejected.

Amendment 73 provides that tenders submitted by electronic
means are to be rejected unless an advanced electronic
signature within the meaning of Directive 1999/93/EC and a
reliable means of encrypting the contents are used.

This amendment reflects the current situation regarding elec-
tronic signatures. However, technical developments in this area
are proceeding apace. The amendment would make it necessary
to amend the Directive in line with each new development.
Guarantees concerning electronic signatures can be obtained by
way of referral to national provisions on the subject (avoiding
subsequent amendments to the text if and when Community
legislation changes). Also, encryption is not necessary, as other
means can be used to ensure the inviolability of tenders. What
is more, compulsory encryption would incur additional costs
for both the purchaser and the tenderers. Therefore,
this
amendment cannot be accepted.

Amendment 75 imposes an obligation to involve an accredited
third party in order to guarantee the confidentiality of data
transmitted by tenderers.

It should be stressed that Community policy has always been
geared precisely towards ensuring that an accreditation system
is never compulsory, given the risks of distortion and increased
disparities between Member States.

(1) Council Directive 89/665/EEC of 21 December 1989 on the coor-
dination of
the laws, regulations and administrative provisions
relating to the application of review procedures to the award of
public supply and public works contracts (OJ L 395, 30.12.1989,
p. 33) as amended by Council Directive 92/50/EEC of 18 June
1992 relating to the coordination of procedures for the award of
public service contracts (OJ L 209, 24.7.1992, p. 1).

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Amendment 76 proposes that, in the context of determining
the specific level of capacity and experience required for a
particular contract, a lack of experience may be offset by
evidence of ‘special capacity’.

whose affairs are being administered by the court, who has
entered into an arrangement with creditors, who has
suspended business activities or who is in any analogous
situation. Under Amendment 90, this possibility becomes an
obligation.

in practical

On its own, special capacity could not,
terms,
replace experience and provide contracting authorities with
sufficient guarantees for the purposes of the sound execution
of the contract (certificates of studies cannot replace experience
on the ground). Moreover, the thresholds applicable mean that
contracts subject to the Directives involve large amounts and
consequently require appropriate guarantees. What is more,
neither the ‘special capacity’ to which the amendment refers
nor the means of proving the same is defined. This is liable to
create a major source of dispute for contracting authorities.

Amendment 81 supplements Article 46(1) by adding ‘of
fraudulent or any other form of anti-competitive behaviour
in connection with the award of public contracts in the
common market’.

Amendment 90 provides for the compulsory exclusion of any
economic operators who are bankrupt, whose affairs are being
wound up by the court, who have entered into an arrangement
with creditors or have suspended business activities.

Amendments 84 and 90 would have the effect of prohibiting
any contracting authority in the EU from concluding a
contract, as the case may be, with a company which has
entered into an arrangement with creditors, without giving
that company any chance whatsoever and thus automatically
condemning it to closure. That is why it would appear more
appropriate to make the exclusion of operators in this situation
simply an option for all purchasers.

Under current Community legislation,
there is no harmon-
isation of the penalties for these phenomena under the third
pillar; nor do all Member States have systems of penal
sanctions
the
mechanism set up by the first paragraph of Article 46
cannot be implemented.

place. Under

circumstances,

these

in

Amendment 82 supplements Article 46(1) by including among
the grounds for compulsory exclusion non-compliance with
collective agreements and other provisions and laws relating
to employment and social security in the country of estab-
lishment or in another relevant country.

For the same reasons as in the case of the previous instruments
(penalties/violations of employment law not being the subject
of
the
approximation under
amendment is not accepted,

third pillar

instrument),

a

By contrast, Article 46(2) already provides scope for such
exclusions; the principle can be explicitly set out in a recital
(see Amendment 86).

Amendment 83 supplements Article 46(1) by adding drugs-
related offences within the meaning of the United Nations
Convention (Vienna, 19 December 1988).

Under current Community legislation,
there is no harmon-
isation of the penalties for these phenomena under the third
pillar; nor do all Member States have systems of penal
sanctions
the
mechanism set up by the first paragraph cannot be imple-
mented.

place. Under

circumstances,

these

in

for

Amendment 92 expands the list of proofs of technical capacity
for supplies by including therein a description of the measures
employed
and
protection of the health and safety of workers, as well as an
indication of the technicians or technical bodies responsible for
environmental management and protection of the health and
safety of workers.

environmental

protection

ensuring

The amendment is designed to provide a way of judging the
technical capability of an enterprise to supply a product which
is both environmentally friendly and does not endanger the
health and safety of workers. These aspects are covered
either by the description of
specifications
(prescribing a less polluting production process) or by the
requirement,
in other phases in the award procedure, of
compliance with social or environmental legislation (exclusion
of any non-complying tenderers).

the product

Amendment 94 introduces reliability as an element
to be
demonstrated alongside the technical/professional capability
of an undertaking.

As reliability is a particularly subjective element, it cannot be
added in parallel with these capabilities. For this reason, the
amendment is not acceptable.

Amendment 176 is intended, as far as the award criterion of
the ‘most economically advantageous tender’ is concerned, to:

1. remove the clarification that this means the most econ-
omically advantageous tender ‘for the contracting auth-
orities’,

2. specify that environmental characteristics may include

‘production methods’,

Amendment 84 removes the possibility, currently available to
contracting authorities, of excluding from the award procedure
a tenderer or candidate who is bankrupt or is being wound up,

3. and add the criterion of ‘equal treatment policy’.

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Re point 1.: removal of the words ‘for the contracting auth-
orities’ would enable various, often non-measurable, elements
to be taken into account in relation to a possible benefit to
‘society’ in the broad sense of the word. Such award criteria
would no longer fulfil their function, which is to permit an
evaluation of
tenders in order to
determine which one offers the purchaser the best value for
money. This would completely disrupt the objective of the
public contracts Directives and would amount to the institu-
sectoral
tionalisation of
policies, while also introducing serious risks of inequality of
treatment.

legislation to the benefit of

the intrinsic qualities of

this

Re point 2.: the contract award stage is not the appropriate
time at which to choose a less polluting method. Less polluting
production methods can be prescribed once the subject of the
contract has been defined in the technical specifications when
the purchaser chooses to purchase the solution causing the
least pollution.
If he wishes to compare different solutions
and evaluate the advantages/cost of lower- or higher-pollution
solutions, he may allow or insist on the presentation of
variants.

in the

context of public

Re point 3.: the concept of equality of treatment takes on a
particular meaning
contracts
(= treating all candidates/tenders in the same way), whereas
the amendment seems to be concerned with the non-discrimi-
nation within the meaning of Article 13 of the Treaty. To the
extent that this concerns a criterion relating to the policy of
the enterprise and not to the qualities of a tender, it cannot be
an award criterion. The introduction of criteria linked to the
undertaking would lead to a situation where certain under-
takings were given preference on the basis of non-measurable
elements during the award phase, even if their tenders did not
give the purchaser the best value for money.

Amendment 99 removes the obligation to apply a weighting to
award criteria, replacing it with a requirement to specify the
selection criteria in order of importance.

The introduction of a provision making weighting obligatory is
the proposal and is designed to
an important element of
prevent manipulations, encountered in practice,
favouring
certain operators, and to enable any tenderers to be reasonably
informed in accordance with the principles laid down by the
Court
the
judgment.
weighting of the criteria be indicated in advance.

in the ‘SIAC’ (1)

is essential

that

It

in Article 61(1), the part of the
Amendment 102 removes,
sentence which clearly states that the means of communication
to be used in a design contest is to be that chosen by the
contracting authority.

Without
the text would give
the sentence,
participants the possibility of choosing the means of communi-

this part of

(1) Judgement of 18 October 2001 in case C-19/00, 2001 ECR I-7725.

cation themselves, and the consequences would be those set
out in the case of Amendment 131.

Amendment 103 introduces, in Article 61, a new paragraph 1a
making it compulsory, when transmitting drafts or plans by
electronic means in the context of design contests for services,
to use an advanced electronic signature and a reliable means of
encryption.

See the reasons given for rejecting Amendment 73 and the text
of Article 61 with which Amendment 104 is concerned.

delegated

the Directive which are essential

Amendment 107 removes
some delegated powers which
enable the Commission, after obtaining the opinion of the
Advisory Committee for Public Contracts, to amend aspects
to operate
of
properly. These
threshold
adjustments which are necessary in order to take account of
fluctuations in SRD/euro parities, to possible amendments to
conditions for the drawing-up, transmission and publication of
opinions and statistical reports, and to amendments to Annex
VIII enabling technical developments to be taken into account,
as well as to amendments to the nomenclatures contained in
Annexes I and II.

if
it
relate

powers

is
to

it should be noted that

the amendment removes a
Firstly,
number of powers already delegated to the Commission by
the legislation in force. As regards the new powers, these are
limited to domains where the pace of technological change (use
of electronic means)
if the Directive were not
it would quickly become obsolete, as would the
adapted,
codecision procedure, given the time it takes.

is such that,

Amendment 108 introduces a new article obliging Member
States to establish effective and transparent mechanisms to
ensure implementation of the Directive. It goes on to specify
that Member States may, to this effect, set up an independent
vested with broad powers,
Public Procurement Agency
including the power to set aside contract awards and reopen
contract award procedures.

including interlocutory procedures,

to
Directive 89/665/EEC already requires Member States
review procedures regarding the
provide efficient national
award of contracts,
the
power to annul illegal decisions and award damages. Member
States may fulfil this obligation either by ensuring that national
courts have these powers or by setting up bodies endowed
with the appropriate powers. The obligation introduced by
the amendment is thus already the subject of Community legis-
lation in force and must not be reiterated. As regards the
possibility of
is also
setting up independent bodies,
possible under
the legislation in force, and an explicit
reminder
is given in the new recital 30a referred to in
Amendment 13, which is accepted by the Commission. This
repetition is therefore superfluous.

this

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Amendment 111 introduced an obligation to state in prein-
formation notices the contact details — including electronic
addresses — of the bodies responsible for appeals relating to
the award of public contracts.

used to submit tenders or requests to participate, this is done
under conditions which ensure that confidentiality is main-
tained.

Although greater transparency regarding appeals is desirable,
preinformation notices are not the appropriate instrument.

that

in the majority of
Internet

language versions,
Amendment 115,
stipulates
containing
information on award procedures must comply with the
European Union guidelines on Internet access.
(It should be
noted that the FR version is radically different.)

public-sector

sites

There is no reason to provide for specific legal arrangements
governing this type of Internet site. An issue such as this must
be addressed by horizontal legislation and not harmonised via
the ‘public contracts’ Directive.

the

concerns underlying

are
While
legitimate, the new annex cannot be inserted in the absence
of any reference in the substantive provisions, as amended, to a
new annex. The legal arrangements governing the annex would
thus remain unspecified.

amendments

these

Amendment 116 introduces a new annex linked to a new
point (c)a of Article 54, second sub-paragraph, proposed by
Amendment 100. As Amendment 100 has not been accepted,
this amendment is likewise not accepted: see comments on
Amendment 100 above.

3.4. Amended proposal

Amendment 117 introduces
a new annex designed to
guarantee that, where electronic means of communication are

Pursuant to Article 250(2) of the EC Treaty, the Commission
amends its proposal in the foregoing terms.