Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005 amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities
Date: 2005-07-20
Institutions: European Commission
Subjects: award of contract, financial regulation, general budget (EU), public contract, services contract, supplies contract, works contract

2.8.2005

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COMMISSION REGULATION (EC, EURATOM) No 1261/2005

of 20 July 2005

amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules
the
implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation
applicable to the general budget of the European Communities

for

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(2)

Having regard to the Treaty
Community,

establishing the European

Having regard to the Treaty establishing the European Atomic
Energy Community,

Having regard to Council Regulation (EC, Euratom) No
1605/2002 of 25 June 2002 on the Financial Regulation
applicable to the general budget of
the European Commu-
nities (1), and in particular Article 183 thereof,

Having consulted the European Parliament, the Council, the
Court of Justice of the European Communities, the Court of
Auditors, the European Economic and Social Committee, the
Committee of
the Ombudsman and the
European Data Protection Supervisor,

the Regions,

Whereas:

(1)

for

that,

Regulation (EC, Euratom) No 1605/2002, hereinafter ‘the
Financial Regulation’, provides
their own
the Community institutions are to comply
contracts,
with the rules, contained in the Directives, applicable to
the Member States. Directive 2004/18/EC of
the
European Parliament and of the Council of 31 March
2004 on the coordination of procedures for the award
of public works contracts, public supply contracts and
public service contracts (2) amended these rules. Where
relevant, the amendments made by Directive 2004/18/EC
should therefore be incorporated into Commission Regu-
lation (EC, Euratom) No 2342/2002 (3), which essentially
transposes the rules of Council Directive 92/50/EEC (4),
concerning the award of public service contracts, into the
internal financial rules of the institutions.

(1) OJ L 248, 16.9.2002, p. 1.
(2) OJ L 134, 30.4.2004, p. 114. Directive as amended by Commission
Regulation (EC) No 1874/2004 (OJ L 326, 29.10.2004, p. 17).

(3) OJ L 357, 31.12.2002, p. 1.
(4) OJ L 209, 24.7.1992, p. 1. Directive repealed by Directive

2004/18/EC.

the purposes of

the competitive dialogue procedure,

Those amendments concern in particular the new possi-
bilities for electronic award procedures,
including the
new dynamic purchasing system for commonly used
items,
the rules
governing contracts declared to be secret and the use
of framework agreements – which for practical reasons
should continue to be referred to as framework contracts
for
implementing the Community
thus making it possible for the parties to a
budget,
to be required to compete for
framework agreement
contracts – and the added
the award of
emphasis given to social and environmental dimensions
in the evaluation of tenders. The thresholds applicable
have also been revised for service contracts not subject
to the agreement of
the World Trade Organisation.
Directive 2004/18/EC also harmonises the provisions
applicable to the three main categories of contract,
with reference in particular to advertising, technical speci-
fications and the calculation of the value of the contracts.

specific

(3)

(4)

(5)

Furthermore,
the provisions relating to the means of
identifying interest on pre-financing payments have
proved too restrictive.
should therefore be made
permissible for any accounting method to be used to
identify such interest.

It

Article 31 of Regulation (EC, Euratom) No 2342/2002
sets out the list of basic acts for the purposes of Article
49 of the Financial Regulation, but does not cover the
whole range of legal instruments available to the Council
in the field of the common foreign and security policy.
The list should therefore be extended to include decisions
relating to the conclusion of
international agreements
and decisions on urgent action of limited duration to
deal with crisis situations.

and tenderers

It
is also appropriate to lay down a procedure for
in
informing unsuccessful
candidates
procurement procedures conducted by the institutions
on their own account. Such information should be
provided before the contract is signed and should give
the unsuccessful candidates and tenderers the reasons
why their application or tender has been rejected. The
introduction of
is
designed to make the institutions subject to an obligation
imposed on the Member States by the Court of Justice of
the European Communities.

such an information procedure

(6)

(7)

(8)

(9)

(10)

(11)

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Experience has shown that the procedures currently laid
down in relation to low-value contracts and contracts for
legal services, which are stricter than what is required
under Directive 2004/18/EC, have in practice proved
too cumbersome. They should therefore be made more
flexible, in particular as concerns publicity measures and,
subject
the
supporting documents to be provided. In the latter case
the contracting authority should always be able to justify
the choice.

to the authorising officers risk appraisal,

(12) With a view to enhancing effectiveness in the use of
it would be appropriate to allow
Community funds,
wider access to flat-rate financing,
in return for which
beneficiaries should be made more accountable, with
greater obligations as to results.

(13)

Regulation (EC,
therefore be amended accordingly,

Euratom) No 2342/2002 should

the postal sector,

the
Following the liberalisation of
discrimination that has always existed between registered
post and delivery by courier services should be removed,
as in both instances a slip is issued when items are
deposited which can serve as proof of
the date of
dispatch of tenders.

Provision should be made for the Community insti-
tutions to use the vocabulary laid down in Regulation
the European Parliament and the
No 2195/2002 of
Council of 5 November 2002 on the
common
procurement vocabulary (1).

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC, Euratom) No 2342/2002 is amended as follows:

1.

in Article 4(2), the introductory phrase and point (a) are
replaced by the following:

‘Authorising officers
concluded with beneficiaries and intermediaries:

shall ensure that,

in agreements

is

for

grants

programme

The 31 January deadline set for the adoption of the
annual work
proving
extremely tight, or even impossible to meet, in particular
where basic acts or pilot projects are adopted late or for
reasons
connected with committee procedures. A
deadline should therefore be set which is not as tight,
although the programme should continue to constitute
ex ante publicity and to be an essential condition for
budget implementation.

The provisions concerning the nature of
the audits
required in support of requests for payment and the
thresholds applying in that connection have proved to
be ambiguous or unnecessarily complex. They should
therefore be simplified and rationalised.

In the field of humanitarian aid, grant beneficiaries are
generally
tied to the Commission by partnership
agreements which provide for general and regular audit
and control arrangements. In the light of his analysis of
management risks, the authorising officer may consider
that those arrangements offer guarantees equivalent to
those offered by the audit of the accounts of an action,
which is required in support of requests for payment of
the balance. It is appropriate, in those circumstances and
to allow the
in order
authorising officer not to request an audit for payments
of balances.

to simplify management,

(1) OJ L 340, 16.12.2002, p. 1. Regulation as amended by Commission
Regulation (EC) No 2151/2003 (OJ L 329, 17.12.2003, p. 1).

(a) such pre-financing is paid to bank accounts or sub-
accounts which allow the funds and related interest to
be identified; otherwise the accounting methods of the
beneficiaries or intermediaries must make it possible to
identify the funds paid by the Community and the
interest or other benefits yielded by those funds;’

2.

in Article 31, paragraph 2 is replaced by the following:

‘2.
In the field of the common foreign and security
policy, a basic act may take one of the forms specified
in Articles 13(2), 14, 23(2) and 24 of
the Treaty on
European Union.

In crisis situations, as referred to in Article 168(2) of this
Regulation, and for actions of limited duration, a basic act
may also take the form specified in Articles 13(3) and
23(1) of the Treaty on European Union.’;

3. Article 116 is amended as follows:

(a)

in paragraph 2, the second sentence is replaced by the
following:

for the supply of products and,

‘A contract
inci-
dentally, for siting and installation shall be considered
a supply contract.’;

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(b) in paragraph 3, the first sentence is replaced by the

following:

the activities referred to in Annex I

‘Works contracts cover either the execution, or both
the execution and design, of works or a work related
to one of
to
Directive 2004/18/EC of
the European Parliament
and of the Council (*) or the realisation, by whatever
means, of a work corresponding to the requirements
specified by the contracting authority.

___________
(*) OJ L 134, 30.4.2004, p. 114.’;

(c)

in paragraph 4, the second sentence is replaced by the
following:

‘Those services are listed in Annexes IIA and IIB to
Directive 2004/18/EC.’;

(d)

in paragraph 5, the following subparagraphs are added:

‘A contract having as its object services and involving
works that are only incidental
in relation to the
principal object of the contract shall be considered a
service contract.

A contract having as its object services covered by
Annex IIA to Directive 2004/18/EC and services
covered by Annex IIB thereto shall be considered as
covered by Annex IIA if the value of the services listed
in that Annex exceeds that of the services listed in
Annex IIB.’;

(e)

the following paragraph 5a is inserted:

‘5a.
The description of the various types of contract
is based on the reference nomenclature constituted by
the common procurement vocabulary (CPV) within the
meaning of Regulation (EC) No 2195/2002 of
the
European Parliament and of the Council (*).

In the event of differences between the CPV and the
statistical classification of economic activities in the
European Community (NACE),
listed in Annex I to
Directive 2004/18/EC, or between the CPV and the
(provisional
Central
version),
the
NACE nomenclature or the CPC nomenclature respec-
tively shall take precedence.

Product Classification (CPC)
listed in Annex II

to that Directive,

___________
(*) OJ L 340, 16.12.2002, p. 1.’;

(f) paragraphs 6 and 7 are replaced by the following:

refer

to execute works,

The terms “contractor”, “supplier” and “service
‘6.
provider”
legal person or
to any natural or
public entity or consortium of such persons and/or
bodies which offers
supply
products and provide services respectively. The terms
“economic operator” covers “contractors”, “suppliers”
and “service providers”. Economic operators who
have
as
tender
“tenderers”. Those who have asked to be allowed to
take part in a restricted procedure, including a compe-
titive dialogue, or
in a negotiated procedure are
referred to as “candidates”.

submitted

referred

are

to

a

Consortia of economic operators shall be authorised to
submit tenders or to be candidates. Contracting autho-
rities may not demand that consortia must have a
given legal form in order to be allowed to submit a
tender or request to take part, but the consortium
selected may be required to adopt a given legal form
after it has been awarded the contract if this change is
necessary for proper performance of the contract.

7.
Departments of the Community institutions shall
be considered to be contracting authorities, save where
administrative
they
arrangements
the
services,
supply of products or the execution of works.’;

conclude between themselves
the provision of

for

4. Articles 117 and 118 are replaced by the following:

‘Article 117

Framework contracts and specific contracts

( A r t i c l e 8 8 o f

t h e F i n a n c i a l R e g u l a t i o n )

contracting authorities

A framework contract is an agreement between one
1.
or more
and one or more
economic operators the purpose of which is to establish
the terms governing contracts which may be awarded
during a given period, in particular with regard to price
and, where appropriate, the quantities envisaged. Where a
framework contract is concluded with several economic
operators, the latter must be at least three in number,
insofar as
there is a sufficient number of economic
operators who satisfy the selection criteria and/or of
admissible tenders which meet the award criteria.

A framework contract with a number of economic
operators may take the form of separate contracts but
concluded in identical terms.

The term of a framework contract may not exceed four
years, save in exceptional cases duly justified in particular
by the subject of the framework contract.

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Contracting authorities may not use framework contracts
improperly or in such a way that the purpose or effect is
to prevent, restrict or distort competition.

Framework contracts
contracts
including advertising.

for

shall be treated as procurement
the award procedure,

the purposes of

2.
Specific contracts based on framework contracts
shall be awarded in accordance with the terms of the
framework contract, only between the contracting autho-
rities and the economic operators originally party to the
framework contract.

When awarding specific contracts, the parties may not
make substantial amendments to the terms laid down in
that framework contract, in particular in the case referred
to in paragraph 3.

3. Where a framework contract is concluded with a
single economic operator, the specific contracts shall be
awarded within the limits of the terms laid down in the
framework contract.

For the award of
those specific contracts, contracting
authorities may consult in writing the economic operator
party
to
supplement its tender if necessary.

framework contract,

requesting it

to the

4.
Specific contracts based on framework contracts
concluded with a number of economic operators shall
be
following
awarded
arrangements:

accordance with

the

in

(a) by application of

the

terms

laid down in the

framework contract without reopening competition;

(b) where not all

the terms are laid down in the
framework contract, after
the parties have again
competed on the basis of the same and, if necessary,
more precisely formulated terms, and, where appro-
priate, on the basis of other terms referred to in the
specification for the framework contract.

economic operators

For every specific contract to be awarded in accordance
with the arrangements in point (b) of the first subpar-
agraph, contracting authorities shall consult
in writing
capable of performing the
the
contract, fixing a time limit which is sufficiently long to
allow tenders to be submitted. Tenders shall be submitted
in writing. Contracting authorities shall award each specific
contract to the tenderer who has submitted the best tender
on the basis of the award criteria set out in the specifi-
cation for the framework contract.

Only

5.
framework
contracts shall be preceded by a budgetary commitment.

contracts

specific

based

on

Article 118

Advertising of
covered by Directive
2004/18/EC, with the exception of contracts referred
to in Annex IIB thereto

contracts

( A r t i c l e 9 0 o f

t h e F i n a n c i a l R e g u l a t i o n )

1.
Publication for contracts with a value equal to or
above the thresholds laid down in Articles 157 and 158
shall consist in a pre-information notice, a contract notice
or simplified contract notice and an award notice.

the

essential

and the

contracts

value of

estimated total

2.
The pre-information notice is the notice by which
the contracting authorities make known, by way of indi-
cation,
and
framework contracts, by category of service or groups of
characteristics of works
products,
contracts which they intend to award during a budgetary
year, but
the negotiated
procedure without prior publication of a contract notice.
The pre-information notice shall be compulsory only
where the estimated total value of the contracts is equal
to or above the thresholds laid down in Article 157 and
the contracting authority intends to make use of the possi-
bility of shortening time limits for receipt of tenders in
accordance with Article 140(4).

excluding contracts under

The pre-information notice shall be published either by the
Office for Official Publications of the European Commu-
nities (OPOCE) or by the contracting authorities them-
selves on their buyer profile as referred to in point (2)(b)
of Annex VIII to Directive 2004/18/EC.

The pre-information notice shall be sent to OPOCE or
published on the buyer profile as soon as possible and
than 31 March of each
in any event by no later
budgetary year
supply and service
contracts and, in the case of works contracts, as soon as
possible after the decision approving the programme for
those contracts.

case of

in the

Contracting authorities which publish the pre-information
notice on their buyer profile shall send to OPOCE, elec-
transmission
tronically
procedures
to
Directive 2004/18/EC, a notice announcing the publi-
cation of a pre-information notice on a buyer profile.

and using
specified in point

(3) of Annex VIII

format

and

the

shall be

3.
The contract notice is the means by which the
contracting authorities make known their intention to
the award of a contract or
launch a procedure for
framework contract or to set up a dynamic purchasing
system in accordance with Article 125a. The contract
notice
contracts with an
to or above the thresholds laid
estimated value equal
down in points (a) and (c) of Article 158(1), without
prejudice
a negotiated
procedure, as referred to in Article 126. It shall not be
compulsory for specific contracts based on framework
contracts.

concluded after

to contracts

compulsory

for

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Contracting authorities which wish to award a specific
contract based on a dynamic purchasing system shall
make known their intention by means of a simplified
contract notice.

In an open procedure the contract notice shall specify the
date, time and, where appropriate, place of the meeting of
the opening committee, which shall be open to the
tenderers.

specify

variants

and shall

Contracting authorities shall state whether or not they
authorise
the minimum
capacity levels they demand if they make use of the possi-
bility provided for in the second subparagraph of Article
135(2). They shall set out the selection criteria referred to
in Article 135 that
the minimum
number of candidates they plan to invite to tender and,
and the
where
objective and non-discriminatory criteria they intend to
apply in order to limit the number,
in accordance with
the second subparagraph of Article 123(1).

the maximum number,

they intend to use,

appropriate,

Where there is unrestricted, direct and full access to the
call for tenders by electronic means, in particular in the
dynamic purchasing systems referred to in Article 125a,
the Internet address at which these documents can be
consulted shall appear in the contract notice.

‘Article 119

Advertising of contracts not covered by Directive
2004/18/EC, and of the contracts referred to in
Annex IIB thereto

( A r t i c l e
l a t i o n ) ’ ;

9 0

o f

t h e

F i n a n c i a l R e g u -

(b) paragraph 1 is amended as follows:

(i) the first sentence is replaced by the following:

‘Contracts with a value below the thresholds laid
down in Article 158 and the service contracts
referred
to Directive
2004/18/EC shall be advertised by appropriate
means in order to ensure competitive tendering
and impartiality of the procurement procedure.’;

in Annex

IIB

to

(ii) point (b) is replaced by the following:

‘(b)

the annual publication of a list of contractors,
specifying the subject and the value of the
contract awarded, for contracts with a value
equal to or greater than EUR 13 800.’;

Contracting authorities wishing to organise a contest shall
issue a notice announcing their intention.

(iii) the following subparagraph is added:

for

the

The award notice shall give the outcome of

the
4.
procedure
framework
award of
contracts or contracts based on a dynamic purchasing
system. In the case of contracts with a value equal to or
above the thresholds laid down in Article 158, the award
notice shall be compulsory. It shall not be compulsory for
specific contracts based on framework contracts.

contracts,

The award notice shall be sent to the OPOCE no later than
48 calendar days after the procedure is closed, that is to
say, from the date on which the contract or framework
contract is signed. However, notices relating to contracts
based on a dynamic purchasing system may be grouped
together on a quarterly basis. In such cases, they shall be
sent to the OPOCE no later than 48 days after the end of
each quarter.

Contracting authorities which have held a design contest
shall send the OPOCE a notice of
the
contest.

the results of

5.
The notices shall be drawn up in accordance with
the standard forms adopted by the Commission pursuant
to Directive 2004/18/EC.’;

5. Article 119 is amended as follows:

(a)

the title is replaced by the following:

‘The publication provided for in point (b) of the
first subparagraph shall not be compulsory for
specific contracts based on a framework contract.’;

(c) paragraph 2 is replaced by the following:

‘2.
A list of contractors to whom building contracts
in accordance with
and contracts declared secret
Article 126(1)(j) are awarded shall be published only
once a year, with an indication of the subject and
value of the contracts awarded. That list shall be sent
to the budgetary authority.
the
Commission, it shall be annexed to the summary of
the annual activity reports referred to in Article 60(7)
of the Financial Regulation.’;

case of

In the

6.

in Article 120(1), the second subparagraph is replaced by
the following:

‘The period specified in the first subparagraph shall be
the fast-
reduced to five calendar days in the case of
track procedures referred to in Article 142.’;

7.

in Article 122, paragraph 2 is replaced by the following:

for

Calls

tenders are open where all

‘2.
interested
economic operators may submit a tender. That applies
also in the case of
the dynamic purchasing systems
referred to in Article 125a.

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for

tenders are

restricted where all

economic
Calls
operators may ask to take part but only candidates
satisfying the selection criteria referred to in Article 135
and in writing by the
and invited simultaneously
a
submit
contracting authorities may
solution under
dialogue procedure
referred to in Article 125b.

competitive

tender or

the

a

The selection phase may be repeated for each individual
contract, also in the case of a competitive dialogue, or may
involve drawing up a list of potential candidates under the
restricted procedure referred to in Article 128.’;

8. Article 123 is amended as follows:

(a) paragraph 2 is replaced by the following:

In negotiated procedures

‘2.
and in restricted
procedures after a competitive dialogue, the number
of candidates invited to negotiate or to tender may
not be less than three, provided that a sufficient
number of candidates satisfy the selection criteria.

The number of candidates invited to tender must be
sufficient to ensure genuine competition.

The first and second subparagraphs shall not apply to
the following:

(a) contracts involving very small amounts, as referred

to in Article 129(3);

(b) contracts for legal services within the meaning of

Annex IIB of Directive 2004/18/EC;

(c) contracts declared secret, as referred to in Article

126(1)(j).’;

(b) the following paragraph 3 is added:

the

contracting

‘3. Where the number of candidates meeting the
selection criteria and the minimum levels is below
the minimum number specified in paragraphs 1 and
2,
the
procedure by inviting the candidate or candidates
with the required capacities. However, the contracting
authority may not include other economic operators
who did not ask to take part, or candidates who do
not have the required capacities.’;

authority may

continue

9.

in Article 124, the following paragraph is added:

127,

‘Where contracting authorities may,
in accordance with
negotiated
contracts
award
Article
procedure after publishing a contract notice, they may
arrange for the negotiated procedure to be conducted in
stages so as to reduce the number of tenders to be nego-
tiated, while applying the award criteria set out in the
contract notice or specification. The contract notice or

using

a

specification shall state that use is to be made of this
possibility.’;

10.

in Article 125(3), the following subparagraph is added:

‘Candidates may be asked by the selection board to answer
the questions recorded in the report in order to clarify a
project. A full report of the resulting dialogue shall be
drawn up.’;

11.

the following Articles 125a and 125b are inserted:

‘Article 125a

Dynamic purchasing system

( A r t i c l e 9 1 o f

t h e F i n a n c i a l R e g u l a t i o n )

The dynamic purchasing system, as referred to in
1.
is a
Articles 1(6) and 33 of Directive 2004/18/EC,
completely electronic process
for making commonly
used purchases, which is open throughout its duration
to any economic operator who satisfies the selection
that
criteria and has
complies with the
specification and any additional
documents. The indicative tenders may be improved at
any time provided that
they continue to comply with
the specification.

submitted an indicative tender

For

the purposes of

2.
setting up the dynamic
purchasing system, contracting authorities shall publish a
contract notice stating that a dynamic purchasing system
is being used and containing a reference to the Internet
address offering unrestricted, direct and full access to the
specification and to any additional documents from the
time of publication of the notice up to the expiry of the
system.

the nature of

indicate in the specification, amongst other
They shall
matters,
the purchases envisaged under
that system, and all the necessary information concerning
the purchasing system, the electronic equipment used and
the technical connection arrangements and specifications.

the duration of

Contracting authorities
throughout

shall give any economic
3.
operator,
the dynamic
purchasing system, the possibility of submitting an indi-
cative tender with a view to being admitted to the system
under the conditions referred to in paragraph 1. They shall
complete evaluation within a maximum of 15 days from
the date of submission of the indicative tender. However,
they may extend the evaluation period provided that no
invitation to tender is issued in the meantime.

inform tenderers at the
The contracting authority shall
earliest possible opportunity
they have been
that
admitted to the dynamic purchasing system or that their
tender has been rejected.

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Each specific contract shall be the subject of an invi-
4.
tation to tender. Before issuing this invitation, contracting
shall publish a simplified contract notice
authorities
inviting all
interested economic operators to submit an
indicative tender, within a time limit that may not be
less than 15 days from the date on which the simplified
notice is sent. Contracting authorities may not proceed
with tendering until they have completed evaluation of
all the indicative tenders received by that deadline.

Contracting authorities shall invite all tenderers admitted
to the system to submit a tender within a reasonable time.
They shall award the contract to the tenderer who has
submitted the tender offering best value for money on
the basis of the award criteria set out in the contract
notice for the establishment of the dynamic purchasing
system. Those criteria may, if appropriate, be formulated
more precisely in the invitation to tender.

5.
A dynamic purchasing system may not last for more
than four years, except in duly justified exceptional cases.

Contracting authorities may not resort to this system to
prevent, restrict or distort competition.

No charges may be billed to the interested economic
operators or to parties to the system.

Article 125b

Competitive dialogue

( A r t i c l e 9 1 o f

t h e F i n a n c i a l R e g u l a t i o n )

In the case of particularly complex contracts, where
1.
the contracting authority considers that direct use of the
open procedure or the existing arrangements governing
the restricted procedure will not allow the contract to be
it
awarded to the tender offering best value for money,
may make use of the competitive dialogue referred to in
Article 29 of Directive 2004/18/EC.

is considered to be “particularly complex”
A contract
where the contracting authority is not objectively able to
define the technical means capable of satisfying the needs
or objectives or able to specify the legal or financial make-
up of the project.

Contracting authorities

2.
shall publish a contract
notice setting out their needs and requirements, which
they shall define in that notice and/or in a descriptive
document.

3.
Contracting authorities shall open a dialogue with
the candidates satisfying the selection criteria set out in
Article 135 in order to identify and define the means
best suited to satisfying their needs.

During the dialogue, contracting authorities shall ensure
equality of treatment among all tenderers and confiden-

tiality of
communicated by
dialogue unless he/she agrees to its disclosure.

the solutions proposed or other information
in the

candidate participating

a

Contracting authorities may provide for the procedure to
take place in successive stages in order to reduce the
number of solutions to be discussed during the dialogue
stage by applying the award criteria in the contract notice
or the descriptive document if provision is made for this
possibility in the contract notice or
the descriptive
document.

After informing the participants that the dialogue is
4.
concluded, contracting authorities
shall ask them to
submit their final tenders on the basis of the solution or
solutions presented and specified during the dialogue.
These tenders shall contain all the elements required and
necessary for the performance of the project.

At the request of the contracting authority, these tenders
may be clarified, specified and fine-tuned provided this
does not have the effect of changing basic aspects of the
tender or of the invitation to tender, variations in which
could distort competition or have a discriminatory effect.

At the request of the contracting authority, the tenderer
identified as having submitted the tender offering best
value for money may be asked to clarify aspects of the
tender or confirm commitments contained in the tender
provided this does not have the effect of modifying
the tender or of
substantial aspects of
for
tenders and does not
risk distorting competition or
causing discrimination.

the call

The contracting authorities may specify prices or

5.
payments to the participants in the dialogue.’;

12. Article 126 is amended as follows:

(a) paragraph 1 is amended as follows:

(i) the introductory phrase and point (a) are replaced

by the following:

‘Contracting authorities may use the negotiated
procedure without
a
prior
contract notice, whatever the estimated value of
the contract, in the following cases:

publication

of

(a) where no tenders, or no suitable tenders, or
no applications have been submitted in
response to an open procedure or restricted
procedure after the initial procedure has been
completed, provided that the original terms of
the contract as specified in the call for tenders
referred to in Article 130 are not substantially
altered;’

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Official Journal of the European Union

2.8.2005

(ii) point (c) is replaced by the following:

‘(c)

in so far as is strictly necessary where, for
reasons of extreme urgency brought about
by unforeseeable events not attributable to
the contracting authorities,
it is impossible
to comply with the time limits set for the
other procedures and laid down in Articles
140, 141 and 142;’

(iii) points (e) and (f) are replaced by the following:

‘(e)

(f)

services

additional

for
and works not
included in the project initially envisaged or
through
in the initial contract but which,
become
have
unforeseen
the
of
performance
necessary
services or works, subject to the conditions
set out in paragraph 2;

circumstances,

the

for

similar

for new services or works consisting in the
repetition of
services or works
entrusted to the economic operator awarded
the initial contract by the same contracting
authority, provided that
these services or
works conform to a basic project and that
this project was the subject of an initial
contract awarded under the open or restricted
procedure, subject to the conditions set out
in paragraph 3;’

(iv) in point (g), the following points are added:

‘(iii)

(iv)

in respect of supplies quoted and purchased
on a commodity market;

in respect of purchases on particularly
advantageous terms, either from a supplier
which is definitively winding up its business
activities, or from the receivers or liquidators
of
an arrangement with
creditors, or a similar procedure under
national law;’

a bankruptcy,

(v) point (i) is replaced by the following:

‘(i)

for contracts for
meaning
IIB
2004/18/EC, provided that
are appropriately advertised;’

of Annex

legal services within the
to Directive
such contracts

the administrative provisions in force or when
the protection of the essential interests of the
Communities or of the Union so requires.’;

(vii) the following subparagraph is added:

‘Contracting authorities may also use the nego-
tiated procedure without prior publication of a
contract notice in the case of contracts with a
value below EUR 13 800.’;

(b) in paragraph 3, the first sentence is replaced by the

following:

‘In the cases referred to in point (f) of the first subpar-
agraph of paragraph 1, the option of using the nego-
tiated procedure shall be pointed out as soon as the
first operation is put out to competitive tender, and
the total estimated amount for the subsequent services
or work shall be taken into consideration in calcu-
lating the thresholds referred to in Article 158.’;

13. Article 127 is amended as follows:

(a) paragraph 1 is amended as follows:

(i) the introductory phrase and points (a) and (b) are

replaced by the following:

‘Contracting authorities may use the negotiated
contract
procedure
after having published a
the
notice, whatever
contract, in the following cases:

estimated value of

the

(a) where tenders which are irregular or unac-
to the
ceptable, by reference in particular
selection or award criteria, are submitted in
response to an open or restricted procedure,
or a competitive dialogue, which has been
completed, provided that
terms
for
the contract as specified in the call
of
tenders referred to in Article 130 are not
substantially altered, without prejudice to the
application of paragraph 2;

the original

(b) in exceptional cases involving work, supplies
or services where the nature or the risks do
not permit prior overall pricing by
the
tenderer;’

(vi) the following point (j) is added:

(ii) point (e) is replaced by the following:

‘(j)

for contracts declared to be secret by the
institution or by the authorities delegated by
contracts whose
for
the
institution, or
performance must
by
accompanied
be
special security measures, in accordance with

‘(e) for the service contracts referred to in Annex
IIB to Directive 2004/18/EC, subject to points
(i) and (j) of the first subparagraph of Article
126(1) of
this Regulation and the second
subparagraph thereof.’;

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(b) paragraph 2 is replaced by the following:

(ii) the following point (e) is added:

‘2.
In the cases referred to in point (a) of paragraph
1, contracting authorities may refrain from publishing
they include in the negotiated
a contract notice if
the tenderers and only the tenderers
procedure all
satisfying the
selection criteria who, during the
previous procedure, submitted tenders in accordance
with the formal
the procurement
requirements of
procedure.’;

‘(e) specify, in the case of a competitive dialogue,
the date set and the address for the start of the
consultation phase.’;

(c) paragraph 3 is amended as follows:

(i) points (a) and (b) are replaced by the following:

14.

in Article 129, paragraphs 3 and 4 are replaced by the
following:

Contracts with a value of less than EUR 3 500 may

‘3.
be awarded on the basis of a single tender.

Payments of amounts lower than EUR 200 in respect
4.
of items of expenditure may consist simply in payment
against invoices, without prior acceptance of a tender.’;

15. Article 130 is amended as follows:

(a)

in paragraph 1, points (a) and (b) are replaced by the
following:

‘(a)

(b)

the invitation to tender or to negotiate or to take
part in the dialogue under the procedure referred
to in Article 125b;

in the case of a
the attached specification or,
competitive dialogue as
referred to in Article
125b, a document describing the needs and
requirements of the contracting authority, or the
reference for the Internet address at which such
specification or document can be consulted.’;

(b) paragraph 2 is amended as follows:

(i) the introductory phrase and points (a) and (b) are

replaced by the following:

‘The invitation to tender or to negotiate or to take
part in the dialogue shall at least:

(a) specify the rules governing the lodging and
presentation of tenders, including in particular
the closing date and time for submission, any
requirement as to the use of a standard reply
form, the documents to be attached, including
those
economic,
technical and professional capacity referred to
in Article 135 if they are not specified in the
contract notice, and the address to which they
must be sent;

in evidence of

financial,

(b) state that

submission of a tender

implies
acceptance of the specification referred to in
paragraph 1 to which the tender relates and
that this submission binds the contractor to
whom the
during
performance of the contract;’

awarded

contract

is

including

‘(a) specify the exclusion and selection criteria
applying to the contract, save in the restricted
competitive
procedure,
dialogue, and in the negotiated procedures
following publication of a notice, referred to
in Article 127;
in such cases those criteria
shall appear solely in the contract notice or
the call for expressions of interest;

after

a

(b)

specify the award criteria and their relative
weighting
the
decreasing order of importance, if this is not
specified in the contract notice;’

appropriate,

or, where

(ii) point (d) is replaced by the following:

‘(d) state

contract

the minimum requirements which
variants must meet
in the procedures
referred to in Article 138(2) under which
tender
the
offering best value for money, where the
stated in the
contracting
contract notice
are
permitted.’;

authority has
that

awarded to the

variants

such

is

(iii) the following point (g) is added:

‘(g) specify,

in the dynamic purchasing systems
the nature of
referred to in Article 125a,
the purchases envisaged, as well as all the
necessary
the
purchasing system, the electronic equipment
connection
the
used
arrangements and specifications.’;

information

concerning

technical

and

16. Article 131 is amended as follows:

(a)

in paragraph 2, point (c) is replaced by the following:

‘(c) wherever possible,

the accessibility criteria for
people with disabilities or the design for all users;’

(b) in paragraph 3, point (b) is replaced by the following:

‘(b)

functional
in terms of performance or of
requirements, which may include environmental
characteristics and shall be sufficiently detailed to
enable tenderers to determine the purpose of the
contract and the contracting authorities to award
the contract; or’;

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2.8.2005

(c)

in paragraph 4, the following subparagraph is added:

17. Article 134 is replaced by the following:

‘An appropriate means may take the form of a
technical dossier of the manufacturer or a test report
from a recognised body.’;

‘Article 134

Evidence

(d)

in paragraph 5, the following subparagraph is added:

( A r t i c l e s 9 3 t o 9 6 o f
l a t i o n )

t h e F i n a n c i a l R e g u -

‘The tenderer must prove to the satisfaction of the
contracting authority and by any appropriate means
that the tender meets the performance or functional
requirements set by the contracting authority. An
appropriate means may take the form of a technical
dossier of the manufacturer or a test report from a
recognised body.’;

(e)

the following paragraphs 5a and 5b are inserted:

‘5a. Where contracting authorities lay down envir-
onmental characteristics in terms of performance or of
they may use the detailed
functional requirements,
specifications, or,
as
defined by European, multinational or national eco-
labels, or by any other eco-label, provided that the
following conditions are satisfied:

if necessary, parts

thereof,

(a)

the specifications used are appropriate to define
the characteristics of the supplies or services that
are the object of the contract;

(b) the requirements for the label are drawn up on the

basis of scientific information;

(c)

the

the eco-labels are adopted using a procedure in
which
as
all
government bodies,
consumers, manufacturers,
distributors and environmental organisations, can
participate;

concerned,

parties

such

(d) the eco-labels are accessible to all interested parties.

Contracting authorities may indicate that the products
or services bearing the eco-label are presumed to
comply with the technical specifications laid down in
the contract documents. They shall accept any other
appropriate means of proof, such as a technical dossier
of the manufacturer or a test report from a recognised
body.

5b.
A recognised body for the purposes of para-
graphs 4, 5 and 5a is a test and calibration laboratory
or a certification and inspection body which complies
with applicable European standards.’;

1.
The contracting authority shall accept, as satisfactory
evidence that the candidate or tenderer is not in one of the
situations described in point (a), (b) or (e) of Article 93(1)
of the Financial Regulation, production of a recent extract
from the judicial record or, failing that, a recent equivalent
document issued by a judicial or administrative authority
in the country of origin or provenance showing that those
requirements are satisfied. The contracting authority shall
accept, as satisfactory evidence that
the candidate or
tenderer is not in the situation described in point (d) of
Article 93(1) of the Financial Regulation, a recent certi-
ficate issued by the competent authority of
the State
concerned.

2. Where the document or certificate referred to in
paragraph 1 is not issued in the country concerned and
for the other cases of exclusion referred to in Articles 93
and 94 of the Financial Regulation, it may be replaced by
a sworn or, failing that, a solemn statement made by the
interested party before
administrative
a
authority, a notary or a qualified professional body in
his country of origin or provenance.

judicial or

For contracts with a value of less than EUR 50 000, the
contracting authority may, depending on its analysis of
risks, ask candidates or
to provide only a
declaration on their honour that they are not in one of
the situations referred to in Articles 93 and 94 of the
Financial Regulation.

tenderers

Depending on the national legislation of the country
3.
the
in which the tenderer or candidate is established,
documents referred to in paragraphs 1 and 2 shall relate
to legal persons and/or natural persons including, where
considered necessary
authority,
company directors or any person with powers of repre-
in relation to the
sentation, decision-making or control
candidate or tenderer.

contracting

the

by

4. Where they have doubts concerning the personal
situation of candidates or tenderers, contracting authorities
may themselves
authorities
referred to in paragraph 1 to obtain any information
they consider necessary about that situation.’;

apply to the

competent

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18. Article 135 is amended as follows:

(ii) point (d) is replaced by the following:

(a) paragraph 5 is replaced by the following:

tenderer

financial,

as proof of

‘5.
The information requested by the contracting
authority
economic,
the
technical and professional capacity of the candidate
levels
or
required in accordance with paragraph 2 may not go
beyond the subject of
take
account of the legitimate interests of the economic
operators as regards in particular the protection of
the firm's technical and business secrets.’;

the minimum capacity

the contract and shall

and

(b) the following paragraph 6 is added:

For contracts with a value of

‘6.
less than EUR
50 000, the contracting authority may, depending on
its analysis of risks, choose not to ask candidates or
their
tenderers
financial and economic,
technical and professional
capacity.
In that case no pre-financing or interim
payment may be made.’;

to provide documentary proof of

(19) Article 136 is amended as follows

(a)

in paragraph 1, the introductory phrase is replaced by
the following:

‘Proof of economic and financial capacity may in
the
particular be furnished by one or more of
following documents:’;

(b) in paragraph 3, the following subparagraph is added:

‘Under the same conditions, a consortium of economic
operators as referred to in Article 116(6) may rely on
the capacities of members of the consortium or of
other entities.’;

20. Article 137 is amended as follows:

(a) paragraph 2 is amended as follows:

‘(d) a description of the technical equipment and
the measures employed to ensure the quality
of supplies and services, and a description of
the firm's study and research facilities;’

(iii) the following point (i) is added:

‘(i)

for public works contracts and public service
contracts, and only in appropriate cases, an
indication of the environmental management
measures that the economic operator will be
able to apply when performing the contract.’;

(b) the following paragraphs 3a and 3b are inserted:

require

authorities

contracting

‘3a. Where
the
production of certificates drawn up by independent
bodies attesting the compliance of
the economic
operator with certain quality assurance standards,
they shall refer to quality assurance systems based on
the relevant European standards series certified by
bodies conforming to the European standards series
concerning certification.

require

authorities

contracting

the
3b. Where
production of certificates drawn up by independent
bodies attesting the compliance of
the economic
operator with certain environmental management
standards,
they shall refer to the Community Eco-
Management and Audit Scheme (EMAS) provided for
in Regulation (EC) No 761/2001 of
the European
Parliament and of the Council (*) or to environmental
management standards based on the relevant European
bodies
certified
or
conforming to Community law or
relevant
European or international standards concerning certifi-
cation. They shall recognise equivalent certificates from
bodies established in other Member States. They shall
also accept other evidence of equivalent environmental
management measures from economic operators.

international

standards

by
the

(i) the

introductory phrase

is

replaced by

the

following:

the

‘Evidence of
and professional
technical
capacity of economic operators may, depending
on the nature, quantity or scale and purpose of
the supplies, services or works to be provided, be
furnished on the basis of one or more of the
following documents:’;

___________
(*) OJ L 114, 24.4.2001, p. 1.’;

(c)

in paragraph 4, the following subparagraph is added:

‘Under the same conditions, a consortium of economic
operators as referred to in Article 116(6) may rely on
the capacities of members of the consortium or of
other entities.’;

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21.

in Article 138(3), the first and second subparagraphs are
replaced by the following:

(b) any limits on the values which may be submitted, as
from the specifications relating to the

they result
subject of the contract;

in the specification or
the weighting it will apply to each of

‘The contracting authority shall specify,
in the contract
in the descriptive
notice or
document,
the
criteria for determining best value for money. That
weighting may be expressed as a range with an appro-
priate maximum spread.

The weighting applied to price in relation to the other
criteria must not result in the neutralisation of price in
the choice of contractor, without prejudice to the scales
laid down by the institution for the remuneration of
certain services, such as those provided by experts for
evaluation purposes.’;

22.

the following Article 138a is inserted:

‘Article 138a

Use of electronic auctions

( A r t i c l e
l a t i o n )

9 7 ( 2 )

o f

t h e

F i n a n c i a l R e g u -

1.
In open, restricted or negotiated procedures in the
case referred to in Article 127(1)(a), the contracting autho-
rities may decide that the award of a public contract shall
be preceded by an electronic auction, as referred to in
Article 54 of Directive 2004/18/EC, when the contract
specifications can be established with precision.

In the same circumstances, an electronic auction may be
held on the reopening of competition among the parties
to a framework contract as referred to in Article 117(4)(b)
of this Regulation and on the opening for competition of
contracts to be awarded under the dynamic purchasing
system referred to in Article 125a.

in which case the contract

The electronic auction shall be based either solely on
prices,
is awarded to the
lowest price, or on the prices and/or the values of the
in
features of the tenders indicated in the specification,
tender
the
which case
offering best value for money.

is awarded to the

contract

2.
Contracting authorities which decide to hold an elec-
tronic auction shall state that fact in the contract notice.

The specification shall include the following details:

(a)

the features, the values for which will be the subject of
electronic auction, provided that
those features are
quantifiable and can be expressed in figures or
percentages;

(c)

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

(d) the relevant

information concerning the electronic

auction process;

(e)

the conditions under which the tenderers will be able
the minimum differences
to bid and,
which will, where appropriate, be required when
bidding;

in particular,

(f)

the relevant
information concerning the electronic
equipment used and the arrangements and technical
specifications for connection.

Before proceeding with an electronic

3.
auction,
contracting authorities shall make a full initial evaluation
of the tenders in accordance with the award criteria set
and with the weighting fixed for them.

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 start of the electronic auction. The
electronic auction may take place in a number of
successive phases. The electronic auction may not start
sooner than two working days after the date on which
invitations are sent out.

4. When the contract is to be awarded on the basis of
the tender offering best value for money, the invitation
shall be accompanied by the outcome of a full evaluation
of the relevant tender, carried out in accordance with the
weighting provided for in the first subparagraph of Article
138(3).

submitted. That

The invitation shall also state the mathematical formula to
be used in the electronic auction to determine automatic
re-rankings on the basis of the new prices and/or new
values
incorporate the
weighting of all the criteria fixed to determine the tender
offering best value for money, as indicated in the contract
notice or in the specification; for that purpose, any ranges
shall, however, be reduced beforehand to a specified value.

formula shall

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Official Journal of the European Union

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

Throughout each phase of an electronic auction the
5.
contracting authorities shall instantaneously communicate
to all tenderers at least sufficient information to enable
them to ascertain their relative rankings at any moment.
They may also communicate other information concerning
other prices or values submitted, provided that that is
stated in the specification. They may also at any time
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 elec-
tronic auction.

Contracting authorities

6.
auction in one or more of the following ways:

shall close an electronic

(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 or new values
which meet
the requirements concerning minimum
differences. In that event, the contracting authorities
in the
state in the invitation to take part
shall
auction the time which they will allow to elapse
after receiving the last submission before they close
the electronic auction;

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

invitation to take part
completed.

When the contracting authorities have decided to close an
electronic auction in accordance with point (c), possibly in
combination with the arrangements laid down in point (b),
the invitation to take part in the auction shall indicate the
timetable for each phase of the auction.

After

contracting
closing an electronic auction,
7.
authorities shall award the contract in accordance with
Article 138 on the basis of the results of the electronic
auction.

Contracting authorities may not have improper recourse to
electronic auctions nor may they use them in such a way
as to prevent, restrict or distort competition or to change
the subject-matter of the contract, as put up for tender in
the published contract notice and defined in the specifi-
cation.’;

23.

in Article 139(1), the following sentence is added in the
first subparagraph:

working conditions
work, service or supply is to be performed.’;

in force at

the place where the

24. Article 140 is amended as follows:

(a) paragraphs 2, 3 and 4 are replaced by the following:

‘2.
In open procedures for contracts with a value
equal to or above the thresholds set in Article 158,
the time limit for receipt of tenders shall be no less
than 52 days from the date on which the contract
notice is dispatched.

In restricted procedures, including cases of use of
3.
the competitive dialogue referred to in Article 125b,
and in negotiated procedures with publication of a
contract notice for contracts with a value equal to or
above the thresholds set in Article 158, the time limit
for receipt of requests to participate shall be no less
than 37 days from the date on which the contract
notice is dispatched.

In restricted procedures for contracts with a value
equal to or above the thresholds set in Article 158,
the time limit for receipt of tenders shall be no less
than 40 days from the date on which the invitation to
tender is dispatched.

However, in the restricted procedures after a call for
expressions of interest referred to in Article 128, the
time limit for receipt of tenders shall be no less than
21 days from the date on which the invitation to
tender is dispatched.

4. Where the contracting authorities, in accordance
with Article 118(2), have sent a pre-information notice
for publication or have themselves published a pre-
information notice on their buyer profile, the time
tenders may generally be
limit
reduced to 36 days but shall in no circumstances be
less than 22 days from the date of dispatch of the
contract notice or the invitation to tender.

the receipt of

for

The shortened time limits referred to in the first
subparagraph shall be permitted only if the pre-infor-
mation notice satisfies the following conditions:

(a)

it contains all
contract notice,
available at the time the notice is published;

the information required for the
information is

insofar as that

‘These details may relate in particular to compliance with
the provisions relating to employment protection and

(b) it was sent for publication between 52 days and
12 months before the date on which the contract
notice was sent.’

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Official Journal of the European Union

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(b) the following paragraph 5 is added:

26. Article 142 is replaced by the following:

‘5.
The time limits for receipt of tenders may be
if unrestricted and direct
shortened by five days
access
to all
electronic means
available by
documents constituting the call for tenders from the
date of publication of the contract notice or the call
for expressions of interest.’;

is

25. Article 141 is amended as follows:

(a) paragraphs 1 and 2 are replaced by the following:

in

or

tenders,

descriptive

documents

‘1.
Provided that the request was made in good time
before the deadline for submission of
the
the
specification
procedure referred to in Article 125b and additional
documents shall be sent, within six calendar days of
the receipt of the request, to all economic operators
who have requested the specification or expressed
interest in taking part in a dialogue or submitting a
tender, subject
to the provisions of paragraph 4.
Contracting authorities are not bound to reply to
requests for documents made less than five working
days before the deadline for submission of tenders.

2.
Provided that the request was made in good time
before the deadline for submission of tenders, addi-
tional information relating to the specification or the
descriptive documents or additional documents shall
be supplied simultaneously to all economic operators
who have requested the specification or expressed
interest in taking part in a dialogue or submitting a
tender no later than six days before the deadline for
the receipt of tenders or, in the case of requests for
information received less than eight calendar days
before the deadline for receipt of tenders, as soon as
possible after receipt of the request. Contracting autho-
rities are not bound to reply to requests for additional
information made less than five working days before
the deadline for submission of tenders.’;

(b) paragraph 4 is replaced by the following:

In the open procedure,

‘4.
including the dynamic
purchasing systems referred to in Article 125a,
if
there is unrestricted and full direct access by electronic
means to the entire call for tenders and any additional
documents, paragraph 1 shall not apply. The contract
notice referred to in Article 118(3) shall give the
Internet address at which those documents can be
consulted.’;

‘Article 142

Time limits in urgent cases

( A r t i c l e
l a t i o n )

9 8 ( 1 )

o f

t h e

F i n a n c i a l R e g u -

1. Where duly substantiated urgency renders imprac-
ticable the minimum time limits laid down in Article
140(3) for restricted procedures and negotiated procedures
where a contract notice is published, contracting autho-
rities may set
the following time limits, expressed in
calendar days:

(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 is dispatched or 10 days if
the notice is sent to OPOCE electronically;

(b) a time limit for the receipt of tenders which may not
be less than 10 days from the date of dispatch of the
invitation to tender.

In restricted procedures and fast-track negotiated
2.
procedures, additional
information on the specifications
shall, provided it has been requested in good time, be
communicated to all candidates or tenderers no later
than four calendar days before the deadline for receipt
of tenders.’;

27. Article 143 is amended as follows:

(a) paragraph 1 is replaced by the following:

‘1.
The arrangements for the submission of tenders
and requests to participate shall be determined by the
contracting authority, which may choose an exclusive
method of submission. Tenders and requests to parti-
cipate may be submitted by letter or by electronic
means. Requests to participate may also be submitted
by fax.

The means of communication chosen shall be non-
discriminatory in nature and shall not have the effect
of restricting the access of economic operators to the
award procedure.

The means of communication chosen shall be such as
to ensure that the following conditions are satisfied:

(a) each submission contains all
required for its evaluation;

the

information

(b) the integrity of data is preserved;

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(c)

the confidentiality of tenders is preserved and the
contracting authorities examine the content of
tenders only after the time limit set for submitting
them has expired.

Where necessary for the purposes of legal proof, the
appointing authorities may decide that requests to
participate submitted by fax must be confirmed by
letter or electronically as soon as possible and at all
events before the final date set in Articles 140 and
251.

Contracting authorities may require that electronic
tenders be accompanied by an advanced electronic
signature
Directive
1999/93/EC of the European Parliament and of the
Council (*).

the meaning

within

of

___________
(*) OJ L 13, 19.1.2000, p. 12.’;

(b) the following paragraph 1a is inserted:

the

‘1a. Where
contracting authority authorises
submission of tenders and requests to participate by
electronic means, the tools used and their technical
characteristics shall be non-discriminatory in nature,
generally available and interoperable with the infor-
mation and communication technology products in
general use. The information relating to the specifi-
tenders and
cations
requests to participate,
including encryption, shall be
made available to the tenderers or candidates.

required for presentation of

the devices for the electronic receipt of
Moreover,
tenders and requests to participate shall conform to
the
to Directive
of Annex
2004/18/EC.’;

requirements

X

(c) paragraph 2 is replaced by the following:

All

requests

‘1.
that
satisfy the requirements of Article 143 shall be
opened.’;

to participate and tenders

(b) in paragraph 2, the second and third subparagraphs

are replaced by the following:

come

under

link between them, at
the

‘The opening committee shall be made up of at least
three persons representing at least two organisational
the institution concerned with no hier-
entities of
least one of which
archical
does not
officer
authorising
responsible. To avoid any conflict of interests, those
persons shall be subject to the obligations laid down in
Article 52 of the Financial Regulation. In the represen-
tations or local units referred to in Article 254 or
isolated in a Member State,
if there are no separate
the requirement of organisational entities
entities,
with no hierarchical
link between them shall not
apply.’;

(c)

in paragraph 3, the first subparagraph is replaced by
the following:

‘3. Where tenders are submitted by post, one or
more members of the opening committee shall initial
the documents proving the date and time of dispatch
of each tender.’;

29. Article 146 is amended as follows:

(a)

in paragraph 1, the first subparagraph is replaced by
the following:

‘All requests to participate and tenders declared as
satisfying the requirements shall be evaluated and
ranked by an evaluation committee set up for each
of the two stages on the basis of the pre-announced
exclusion and selection criteria and the award criteria
respectively.’;

‘2. Where submission is by letter, tenderers may
choose to submit tenders:

(b) paragraph 2 is amended as follows:

(a) either by post or by courier service, in which case
the call for tenders shall specify that the evidence
shall be constituted by the date of dispatch, the
postmark or the date of the deposit slip;

(b) by hand-delivery to the premises of the institution
for
by the tenderer in person or by an agent;
which purposes the call for tenders shall specify,
in addition to the information referred to in Article
130(2)(a), the department to which tenders are to
be delivered against a signed and dated receipt.’;

28. Article 145 is amended as follows:

(a) paragraph 1 is replaced by the following:

(i) the first and second subparagraphs are replaced by

the following:

‘The evaluation committee shall be made up of at
least three persons representing at least two orga-
nisational entities of the institution concerned with
no hierarchical link between them, at least one of
which does not come under the authorising officer
responsible. To avoid any conflict of
interests,
those persons shall be subject to the obligations
laid down in Article 52 of the Financial Regulation.

In the representations and local units referred to in
Article 254 or isolated in a Member State, if there
are no separate entities, the requirement of orga-
nisational
link
between them shall not apply.’;

entities with no hierarchical

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(ii) the following fourth subparagraph is added:

referred to in Articles 125b, 126, 127, 242,
244, 246 and 247 which justify their use;’

‘Outside experts may assist
the committee by
decision of
responsible.
the authorising officer
The authorising officer responsible shall ensure
that
laid
down in Article 52 of the Financial Regulation.’;

satisfy the obligations

these experts

(c) paragraph 3 is amended as follows:

(i) the

second subparagraph is

replaced by the

following:

evaluation committee or

‘However,
the
contracting authority may
tenderers
clarify the supporting documents
connection with the
criteria, within the time limit it specifies.’;

the
ask candidates or
to
submitted in
exclusion and selection

to supply additional material or

(ii) the following third subparagraph is added:

‘Requests to participate and tenders which are not
excluded and which meet the selection criteria shall
be considered admissible.’;

30. Article 147 is amended as follows:

31.

in Article 148, the following paragraph 5 is added:

‘5.
In the case of contracts for legal services within the
meaning of Annex IIB to Directive 2004/18/EC,
the
into the necessary
contracting authority may enter
contacts with tenderers to check the selection and/or
award criteria.’;

32. Article 149 is amended as follows:

(a) paragraph 1 is replaced by the following:

‘1.
The contracting authorities shall as soon as
possible inform candidates and tenderers of decisions
the contract or
reached concerning the award of
framework contract or
admission to a dynamic
including the grounds for any
purchasing system,
decision not
framework
contract, or set up a dynamic purchasing system, for
which there has been competitive tendering or to
recommence the procedure.’;

to award a contract or

(a)

the title is replaced by the following:

(b) the following paragraph 3 is added:

‘Results of the evaluation

( A r t i c l e
l a t i o n ) ’ ;

9 9

o f

t h e

F i n a n c i a l R e g u -

(b) in paragraph 2, the introductory phrase and point (a)

are replaced by the following:

‘The written record referred to in paragraph 1 shall
contain at least the following:

(a) the name and address of the contracting authority,
and the subject and value of
the
framework contract or the dynamic purchasing
system;’

the contract,

(c) paragraph 3 is amended as follows:

(i) point (a) is replaced by the following:

‘(a)

the name and address of
the contracting
authority, and the subject and value of the
contract,
the
dynamic purchasing system;’

framework contract or

the

(ii) point (f) is replaced by the following:

‘(f)

in the case of negotiated procedures and
circumstances
competitive

dialogue,

the

In the

case of

contracts

‘3.
awarded by the
Community institutions on their own account, under
Article 105 of the Financial Regulation, the contracting
authority shall
tenderers or
inform all unsuccessful
candidates, simultaneously and individually, as soon
as possible after the award decision and within the
following week at
the latest, by mail and fax or
email, that their application or tender has not been
accepted; specifying in each case the reasons why the
tender or application has not been accepted.

The contracting authority shall, at the same time as the
unsuccessful candidates or tenderers are informed that
their tenders or applications have not been accepted,
inform the successful tenderer of the award decision,
does not
specifying
constitute
the
contracting authority.

decision notified
commitment on the part of

that
a

the

Unsuccessful tenderers or candidates may request addi-
tional information about the reasons for their rejection
in writing by mail, fax or email, and all tenderers who
have put in an admissible tender may obtain infor-
the characteristics and relative merits
mation about
of the tender accepted and the name of the successful
tenderer, without prejudice to the second subparagraph
the Financial Regulation. The
of Article 100(2) of
contracting authority shall
reply within no more
than fifteen calendar days from receipt of the request.

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The contracting authority may not sign the contract or
framework contract with the successful tenderer until
two calendar weeks have elapsed from the day after
the simultaneous dispatch of the rejection and award
decisions. If necessary it may suspend signing of the
contract for additional examination if justified by the
requests or comments made by unsuccessful tenderers
or candidates during the two calendar weeks following
the rejection or award decisions or any other relevant
information received during that period. In that event
all the candidates or tenderers shall be informed within
three working days following the suspension decision.’;

33.

the title of Article 154 is replaced by the following:

‘Article 154

Identification of the appropriate level for the calcu-
lation of thresholds

( A r t i c l e s 1 0 4 a n d 1 0 5 o f
R e g u l a t i o n ) ’ ;

t h e F i n a n c i a l

34.

in Article 155, paragraph 2 is replaced by the following:

is subdivided into several

‘2. Where the subject of a supply, service or works
contract
lots, each one the
subject of an individual contract, the value of each lot
shall be taken into account for the overall evaluation of
the applicable threshold.

Where the overall value of lots is equal to or exceeds the
thresholds laid down in Article 158, Article 90(1) and
the Financial Regulation shall
Article 91(1) and (2) of
apply to each of the lots, save those with an estimated
value of less than EUR 80 000 in the case of service or
supply contracts, or less than one million euro in the case
of works contracts, provided that the aggregate amount of
those lots does not exceed 20 % of the aggregate value of
all the lots making up the contract in question.’;

35. Article 156 is amended as follows:

(a) paragraph 1 is replaced by the following:

‘1.
For the purposes of calculating the estimated
amount of a contract, the contracting authority shall
include the contractors total estimated remuneration.

Where a contract provides for options or possible
renewal,
the
the basis
maximum amount authorised,
including the use of
option clauses and renewal.

calculation shall be

for

(b) the following paragraph 1a is inserted:

For

contracts

framework

‘1a.
purchasing systems
account
contracts envisaged during the total
framework contract or dynamic purchasing system.’;

dynamic
taken into
the
lifetime of the

shall be the maximum value of all

the value

to be

and

(c) paragraph 2 is amended as follows:

(i) point (a) is replaced by the following:

‘(a)

in the case of insurance services, the premium
payable and other forms of remuneration;’

(ii) point (c) is replaced by the following:

‘(c)

in the case of design contracts,
commissions payable and other
remuneration.’;

the fees,
forms of

36. Article 157 is replaced by the following:

‘Article 157

Thresholds for pre-information notices

( A r t i c l e 1 0 5 o f

t h e F i n a n c i a l R e g u l a t i o n )

The thresholds referred to in Article 118 for publication of
a pre-information notice shall be:

(a) EUR 750 000 for the supply and service contracts

listed in Annex IIA to Directive 2004/18/EC;

(b) EUR 5 923 000 for works contracts.’;

37.

in Article 158, the title and paragraph 1 are replaced by
the following:

‘Article 158

Thresholds for application of the procedures under
Directive 2004/18/EC

( A r t i c l e 1 0 5 o f

t h e F i n a n c i a l R e g u l a t i o n )

The thresholds referred to in Article 105 of

1.
Financial Regulation shall be:

the

This estimate shall be made when the contract notice
is sent or, where there is no such publicity, when the
contracting authority initiates the award procedure.’;

(a) EUR 154 000 for the supply and service contracts
listed in Annex IIA to Directive 2004/18/EC, with
the
research and development
the
contracts listed in category 8 of that Annex;

exception of

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(b) EUR 236 000 for the service contracts listed in Annex
IIB to Directive 2004/18/EC and for the research and
development service contracts listed in category 8 of
Annex IIA to Directive 2004/18/EC;

(c) EUR 5 923 000 for works contracts.’;

41.

in Article 168(1), point (d) is replaced by the following:

‘(d)

to bodies identified by a basic act, within the meaning
of Article 49 of the Financial Regulation as set forth
in greater detail in Article 31 of this Regulation, as
beneficiaries of a grant.’;

38.

in Article 164, paragraph 1 is amended as follows:

42.

in Article 169(2), point (c) is replaced by the following:

(a) point (d)(ii) is replaced by the following:

‘(ii)

the maximum rate of funding of the costs of the
action or approved work programme, save in
cases of contributions of a flat-rate amount and
scales of unit costs referred to in Article 181(1);’

(b) point (g) is replaced by the following:

‘(g)

of

the

the estimated budget and details of the eligible
costs
approved work
programme, save in cases of contributions of a
flat-rate amount and scales of unit costs referred
to in Article 181(1);’

action

or

‘(c)

the amount awarded and, save in cases of contri-
butions of a flat-rate amount and scales of unit
costs
the rate of
funding of the costs of the action or approved work
programme.’;

referred to in Article 181(1),

43.

in Article 172, paragraph 1 is replaced by the following:

The beneficiary shall supply evidence of

‘1.
the co-
financing provided, either by way of own resources, or
in the form of financial transfers from third parties, or
in kind, save in cases of contributions of a flat-rate
amount and scales of unit costs referred to in Article
181(1),’;

39.

in Article 165, paragraph 2 is replaced by the following:

44. Article 180 is amended as follows:

‘2.
Paragraph 1 shall not apply to study, research or
training scholarships paid to natural persons, nor
to
prizes awarded following contests, nor in cases of contri-
butions of a flat-rate amount and scales of unit costs
referred to in Article 181(1).’;

40. Article 166 is replaced by the following:

‘Article 166

Annual programming

( A r t i c l e 1 1 0 ( 1 ) o f
l a t i o n )

(a)

the following paragraph 1a is inserted:

‘1a.
The beneficiary shall, without prejudice to
Article 104, certify on his honour that information
contained in requests for payments is full, reliable
and true. He shall also certify that the costs incurred
can be considered eligible in accordance with the grant
agreement and that requests for payment are substan-
tiated by adequate supporting documents that can be
checked.’;

t h e

F i n a n c i a l R e g u -

(b) paragraph 2 is amended as follows:

1.
An annual work programme for grants shall be
responsible and
prepared by each authorising officer
adopted by the Commission. It shall be published on the
grants Internet site of the Commission as soon as possible
at the start of the year and by no later than 31 March each
financial year.

The work programme shall specify the basic act,
the
objectives, the schedule of calls for proposals with the
indicative amount and the results expected.

2.
Any substantial change in the work programme in
the course of the year shall also be adopted and published
as provided for in paragraph 1.’;

(i) the first and second subparagraphs are replaced by

the following:

‘An external audit of the financial statements and
underlying accounts, produced by an approved
auditor, may be demanded by the authorising
officer responsible in support of any payment
on the basis of his analysis of risks. In the case
of a grant for an action or of an operating grant,
the audit report shall be attached to the request
for payment. Its purpose is to certify that the costs
declared by the beneficiary in the
financial
statements on which the request for payment is
based are real, exact and eligible in accordance
with the grant agreement.

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An external audit shall be compulsory for interim
payments per financial year and for payments of
balances in the case of the following:

(a) grants for an action of EUR 750 000 or more;

(b) operating grants of EUR 100 000 or more.’;

(ii) the third subparagraph is deleted;

(iii) the

fourth subparagraph is

replaced by the

following:

‘Depending on his analysis of risks, the authorising
officer responsible may also waive the obligation
of an external audit in the case of:

(a) public bodies and the international organi-

sations referred to in Article 43;

(b) the beneficiaries of grants in connection with
humanitarian aid and the management of
crisis situations, save in respect of payments
of balances;

(c)

for payments of balances, beneficiaries of
grants in connection with humanitarian aid
who have signed a partnership framework
agreement, as referred to in Article 163, and
who have in place a system of control offering
equivalent guarantees for such payments.’;

45. Article 181 is replaced by the following:

‘Article 181

Flat-rate financing

( A r t i c l e 1 1 7 o f

t h e F i n a n c i a l R e g u l a t i o n )

1.
In addition to cases of scholarships and prizes, the
Commission may authorise the use of contributions of a
flat-rate amount of EUR 10 000 or less, or of scales of
unit costs. It may also, on the basis of the scale annexed to
the Staff Regulations or as approved each year by the
Commission, authorise daily allowances for mission costs.

The various

funding referred to in
2.
paragraph 1 may be combined for a single beneficiary to
cover different categories of eligible costs.

forms of

The Commission decision referred to in paragraph 1 shall
determine the maximum amount for the total of such
funding authorised by grant or type of grant.

The grant agreement may authorise flat-rate funding
3.
of the beneficiarys indirect costs up to a maximum of 7 %
of total eligible direct costs for the action, save where the
beneficiary is in receipt of an operating grant financed
from the Community budget. The 7 % ceiling may be
exceeded by reasoned decision of the Commission.

In order to ensure compliance with the principles of
4.
co-financing, no-profit and sound financial management,
the forms of funding referred to in paragraph 1 and the
conditions on which they may be combined shall be
assessed and determined by the Commission. They shall
be reviewed at least every two years by the authorising
officer
responsible. The Commission shall confirm or
amend accordingly its initial decision as referred to in
paragraph 1.’;

46. Article 182 is amended as follows:

(a)

in paragraph 1, the following subparagraph is added:

‘Such a guarantee may also be demanded by the
responsible, depending on his
authorising officer
analysis of
the method of
risks,
funding laid down in the grant agreement.’;

in the light of

(b) in paragraph 3, the first and second subparagraphs are

replaced by the following:

financial

institution established in one of

‘The guarantee shall be provided by an approved bank
or
the
Member States. When the beneficiary is established
in a third country, the authorising officer responsible
may agree that a bank or financial
institution estab-
lished in that third country may provide the guarantee
if he considers that the bank or financial
institution
offers equivalent security and characteristics as those
offered by a bank or financial institution established in
a Member State.

At the request of the beneficiary, that guarantee may
be replaced by a joint and several guarantee by a third
party or by the irrevocable and unconditional
joint
guarantee of the beneficiaries of an action who are
parties to the same grant agreement, after acceptance
by the authorising officer responsible.’;

(c)

in paragraph 4, the following subparagraph is added:

‘In the cases referred to in the second subparagraph of
paragraph 1, it shall be released only upon payment of
the balance.’;

47. Article 183 is replaced by the following:

‘Article 183

Suspension and reduction of grants

( A r t i c l e 1 1 9 o f

t h e F i n a n c i a l R e g u l a t i o n )

The authorising officer responsible shall suspend payments
in the following cases:

(a) where the agreed action or work programme is not
carried out at all, or is not carried out properly, in full
or on time;

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(b) where amounts exceeding the financing ceilings set in

49.

the agreement have been paid;

in Article 241(3), the third subparagraph is replaced by the
following:

(c) where the amounts paid in accordance with the grant
agreement are higher than the real costs incurred by
the beneficiary for the action or where the operating
budget reveals a surplus ex post.

Depending on the stage reached in the procedure, the
authorising officer shall, after giving the beneficiary or
beneficiaries the opportunity to present their comments,
either reduce the grant or demand reimbursement pro rata
by the beneficiary or beneficiaries.’;

48.

in Article 234(1), the first sentence is replaced by the
following:

‘For payments in the currency of
the recipient State,
accounts denominated in euro shall be opened with a
financial
institution in the recipient State or in one of
the Member States in the name of the Commission or,
by common agreement, of the recipient.’;

‘If the contracting authority does not receive at least three
valid tenders, the procedure must be cancelled and started
again.
If the second procedure does not produce three
valid tenders, the contracting authority may award the
contract on the basis of a single valid tender.’

Article 2

Public procurement and grant award procedures
launched
before entry into force of this Regulation shall continue to be
subject
the time when those
procedures were launched.

to the rules applicable at

Article 3

This Regulation shall enter into force on the third day following
its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 20 July 2005.

For the Commission
Dalia GRYBAUSKAITĖ
Member of the Commission