Council Decision (EU) 2017/43 of 12 December 2016 on the position to be adopted, on behalf of the European Union, in the Association Committee in Trade configuration established by the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, in relation to the update of Annexes XXI-A to XXI-P on regulatory approximation in the area of public procurement
Date: 2016-12-12
Institutions: Council of the European Union
Subjects: Association Council (EU), EAEC, Ukraine, application of EU law, association agreement (EU), competition law, invitation to tender, revision of an agreement




L_2017006EN.01000201.xml










11.1.2017   


EN


Official Journal of the European Union


L 6/2








            COUNCIL DECISION (EU) 2017/43
of 12 December 2016
         
on the position to be adopted, on behalf of the European Union, in the Association Committee in Trade configuration established by the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, in relation to the update of Annexes XXI-A to XXI-P on regulatory approximation in the area of public procurement


THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular the first paragraph of Article 207(4) in conjunction with Article 218(9) thereof,


Having regard to the proposal from the European Commission,

Whereas:







(1)


Article 486 of the Association Agreement between the European Union and the European Atomic Energy Community, and their Member States of the one part, and Ukraine, of the other part (1) (‘the Agreement’), provides for the provisional application of the Agreement in part, as specified by the Union.












(2)


Article 1 of Council Decision 2014/668/EU (2) specifies the provisions of the Agreement to be applied provisionally, including the provisions on public procurement, and Annex XXI to the Agreement. The provisional application of those provisions is effective from 1 January 2016.












(3)


Article 153 of the Agreement provides that Ukraine is to ensure that its public procurement legislation is gradually made compatible with the relevant Union acquis, in line with the schedule provided in Annex XXI to the Agreement.












(4)


Several Union acts listed in Annexe XXI to the Agreement have been amended or repealed since the initialling of the Agreement on 30 March 2012.












(5)


Article 149 of the Agreement provides that the value thresholds for public procurement contracts provided for in Annex XXI-P to the Agreement are to be revised regularly, beginning in the first even year following the entry into force of the Agreement.












(6)


It is furthermore appropriate to take into account the progress made by Ukraine in the process of approximation to the Union acquis by amending certain deadlines.












(7)


It is therefore necessary to update Annex XXI in order to reflect the developments to the Union acquis listed therein, and revise the value thresholds for public procurement contracts provided for in Annex XXI-P to the Agreement.












(8)


Article 149 of the Agreement provides that the revision of the thresholds provided for in Annex XXI-P to the Agreement shall be adopted by decision of the Association Committee in Trade configuration.












(9)


Article 463(3) of the Agreement provides that the Association Council shall have the power to update or amend the Annexes to the Agreement.












(10)


Article 1 of the Association Council Decision No 3/2014 (3) delegates the power to update or amend the trade-related annexes of the Agreement to the Association Committee in Trade configuration, including Annex XXI pertaining to Chapter 8 (Public Procurement) of Title IV (Trade and trade-related matters).












(11)


It is therefore appropriate to establish the position to be adopted on behalf of the Union in relation to the update of Annex XXI to the Agreement to be adopted by the Association Committee in Trade configuration.












(12)


Article 152(1) of the Agreement stipulates that Ukraine shall submit to the Association Committee in Trade configuration a comprehensive roadmap for the implementation of the legislation related to public procurement with time schedules and milestones which should include all reforms in terms of legislative approximation and institutional capacity building. This roadmap shall comply with the phases and time schedules set out in Annex XXI-A to the Agreement.












(13)


Article 152(3) specifies that a favourable opinion by the Association Committee in Trade configuration is needed in order for the comprehensive roadmap to become a reference document for the process of implementation i.e. for the legislative approximation of the public procurement related legislation to the Union acquis.












(14)


It is therefore appropriate to establish the position to be adopted on behalf of the Union in relation to a favourable opinion regarding the comprehensive roadmap to be adopted by the Association Committee in Trade configuration,





HAS ADOPTED THIS DECISION:



Article 1

1.   The position to be adopted on behalf of the European Union in the Association Committee in Trade configuration established by Article 465 of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part (‘the Agreement’), in relation to the update of Annex XXI of the Agreement shall be based on the draft Decision of that Committee, attached to this Decision.


2.   Minor technical corrections to the draft Decision may be agreed to by the representatives of the Union in the Association Committee in Trade configuration without further decision of the Council of the European Union.



Article 2
The position to be adopted on behalf of the Union within the Association Committee in Trade configuration established by Article 465 of the Agreement, in relation to the favourable opinion regarding the comprehensive roadmap shall be based on the draft Decision of that Committee referred to in Article 1(1).


Article 3
The Decisions of the Association Committee in Trade configuration shall be published in the Official Journal of the European Union after their adoption.


Article 4
This Decision shall enter into force on the date of its adoption.




Done at Brussels, 12 December 2016.


For the Council


The President

F. MOGHERINI
            





(1)  
            OJ L 161, 29.5.2014, p. 3.

(2)  Council Decision 2014/668/EU of 23 June 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part, as regards Title III (with the exception of the provisions relating to the treatment of third-country nationals legally employed as workers in the territory of the other Party) and Titles IV, V, VI and VII thereof, as well as the related Annexes and Protocols (OJ L 278, 20.9.2014, p. 1).

(3)  Decision No 3/2014 of the EU-Ukraine Association Council of 15 December 2014 on the delegation of certain powers by the Association Council to the Association Committee in Trade configuration [2015/980] (OJ L 158, 24.6.2015, p. 4).




DRAFT

DECISION No 1/2016 OF THE EU-UKRAINE ASSOCIATION COMMITTEE IN TRADE CONFIGURATION
of …
updating Annex XXI to the Association Agreement and giving a favourable opinion regarding the comprehensive roadmap on public procurement


THE ASSOCIATION COMMITTEE IN TRADE CONFIGURATION,

Having regard to the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part (1) (‘the Agreement’), and in particular Article 149, Article 153 and Article 463 thereof,

Whereas:







(1)


In accordance with Article 486 of the Agreement, parts of the Agreement, including provisions on public procurement, are applied provisionally as of 1 January 2016.












(2)


Article 149 of the Agreement provides that the value thresholds for public procurement contracts provided for in Annex XXI-P are to be revised regularly, beginning in the first even year following the entry into force of the Agreement and such revision is to be adopted by decision of the Association Committee in Trade configuration, as set out in Article 465(4) of the Agreement.












(3)


Article 153 of the Agreement provides that Ukraine is to ensure that its public procurement legislation is gradually made compatible with the relevant Union acquis, in line with the schedule provided in Annex XXI to the Agreement.












(4)


Several Union acts listed in Annex XXI to the Agreement have been recast or repealed and replaced by a new Union act since the initialling of the Agreement on 30 March 2012. In particular, the Union adopted and notified to Ukraine the following acts:






(a)


Directive 2014/23/EU of the European Parliament and of the Council (2);










(b)


Directive 2014/24/EU of the European Parliament and of the Council (3);










(c)


Directive 2014/25/EU of the European Parliament and of the Council (4).
















(5)


The above-mentioned Directives amended the value thresholds for public procurement contracts provided for in Annex XXI-P, which were subsequently amended by Commission Delegated Regulations (EU) 2015/2170 (5), (EU) 2015/2171 (6) and (EU) 2015/2172 (7), respectively.












(6)


Article 463(3) of the Agreement provides that the Association Council shall have the power to update or amend the Annexes to the Agreement.












(7)


It is necessary to update Annex XXI to the Agreement in order to reflect the changes made to the Union acquis listed in that Annex, in accordance with Articles 149, 153 and 463 of the Agreement.












(8)


The new Union acquis on public procurement has a new structure. It is appropriate to reflect this new structure in Annex XXI. In the interest of clarity, Annex XXI should be updated in its entirety and replaced by the Annex as set out in the Appendix to this Decision. It is furthermore appropriate to take into account the progress made by Ukraine in the process of approximation to the Union acquis.












(9)


Article 465(2) of the Agreement specifies that the Association Council may delegate to the Association Committee in Trade configuration any of its powers, including the power to take binding decisions.












(10)


The EU-Ukraine Association Council empowered the Association Committee in Trade configuration in its Decision No 3/2014 (8) of 15 December 2014 to update or amend certain trade-related annexes.












(11)


Article 152(1) of the Agreement stipulates that Ukraine shall submit to the Association Committee in Trade configuration a comprehensive roadmap for the implementation of the legislation related to public procurement with time schedules and milestones which should include all reforms in terms of legislative approximation to the Union acquis.












(12)


Article 152(3) specifies that a favourable opinion by the Association Committee in Trade configuration is needed in order for the comprehensive roadmap to become a reference document for the process of implementation, namely for the legislative approximation of the public procurement related legislation to the Union acquis.












(13)


It is therefore appropriate for the Association Committee in Trade configuration to adopt a decision giving favourable opinion regarding the comprehensive roadmap,





HAS ADOPTED THIS DECISION:



Article 1
Annex XXI to the Association Agreement between the European Union and the European Atomic Energy Community and their Member States of the one part, and Ukraine, of the other part, is hereby replaced by the updated version of the Annex, which is attached to this Decision.


Article 2
A favourable opinion is given regarding the comprehensive roadmap approved by the Ordinance of the Cabinet of Ministers of Ukraine of 24 February 2016 (number 175-p) adopted by the government of Ukraine on 24 February 2016.


Article 3
This Decision shall enter into force on the date of its adoption.




Done at …,


For the Association Committee in Trade configuration


The Chair






(1)  
            OJ L 161, 29.5.2014, p. 3.

(2)  Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ L 94, 28.3.2014, p. 1).

(3)  Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65).

(4)  Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p. 243).

(5)  Commission Delegated Regulation (EU) 2015/2170 of 24 November 2015 amending Directive 2014/24/EU of the European Parliament and of the Council in respect of the application thresholds for the procedures for the award of contracts (OJ L 307, 25.11.2015, p. 5).

(6)  Commission Delegated Regulation (EU) 2015/2171 of 24 November 2015 amending Directive 2014/25/EU of the European Parliament and of the Council in respect of the application thresholds for the procedures for the award of contracts (OJ L 307, 25.11.2015, p. 7).

(7)  Commission Delegated Regulation (EU) 2015/2172 of 24 November 2015 amending Directive 2014/23/EU of the European Parliament and of the Council in respect of the application thresholds for the procedures for the award of contracts (OJ L 307, 25.11.2015, p. 9).

(8)  Decision No 3/2014 of the EU-Ukraine Association Council of 15 December 2014 on the delegation of certain powers by the Association Council to the Association Committee in Trade configuration [2015/980] (OJ L 158, 24.6.2015, p. 4).



ANNEX XXI-A TO CHAPTER 8
INDICATIVE TIME SCHEDULE FOR INSTITUTIONAL REFORM, LEGISLATIVE APPROXIMATION AND MARKET ACCESS










Phase


 


Indicative time schedule


Market access granted to the EU by Ukraine


Market access granted to Ukraine by the EU


 




1.


Implementation of Articles 150(2) and 151 of this Agreement
Agreement of the Reform Strategy set out in Article 152 of this Agreement


6 months after the entry into force of this Agreement


Supplies for central government authorities


Supplies for central government authorities


 




2.


Approximation and implementation of basic elements of Directive 2014/24/EU and of Directive 89/665/EEC


3 years after the entry into force of this Agreement


Supplies for state, regional and local authorities and bodies governed by public law


Supplies for state, regional and local authorities and bodies governed by public law


Annexes XXI-B and XXI-C




3.


Approximation and implementation of basic elements of Directive 2014/25/EU and of Directive 92/13/EEC


4 years after the entry into force of this Agreement


Supplies for all contracting entities in the utilities sector


Supplies for all contracting entities


Annexes XXI-D and XXI-E




4.


Approximation and implementation of other elements of Directive 2014/24/EU. Approximation and implementation of Directive 2014/23/EU


6 years after the entry into force of this Agreement


Service and works contracts and concessions for all contracting authorities


Service and works contracts and concessions for all contracting authorities


Annexes XXI-F, XXI-G, and XXI-H




5.


Approximation and implementation of other elements of Directive 2014/25/EU


8 years after the entry into force of this Agreement


Service and works contracts for all contracting entities in the utilities sector


Service and works contracts for all contracting entities in the utilities sector


Annexes XXI-I and XXI-J








ANNEX XXI-B TO CHAPTER 8
BASIC ELEMENTS OF DIRECTIVE 2014/24/EU
of 26 February 2014 on public procurement
(Phase 2)
TITLE I
Scope, definitions and general principles
CHAPTER I
Scope and definitions







Section 1

Subject-matter and definitions











Article 1

Subject-matter and scope: paragraphs 1, 2, 5 and 6











Article 2

Definitions: paragraph 1, points (1), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (18), (19), (20), (22), (23), (24)











Article 3

Mixed procurement











Section 2

Thresholds











Article 4

Threshold amounts











Article 5

Methods for calculating the estimated value of procurement











Section 3

Exclusions











Article 7

Contracts in the water, energy, transport and postal services sectors











Article 8

Specific exclusions in the field of electronic communications











Article 9

Public contracts awarded and design contests organised pursuant to international rules











Article 10

Specific exclusions for service contracts











Article 11

Service contracts awarded on the basis of an exclusive right











Article 12

Public contracts between entities within the public sector











Section 4

Specific situations











Subsection 1

Subsidised contracts and research and development services











Article 13

Contracts subsidised by contracting authorities











Article 14

Research and development services











Subsection 2

Procurement involving defence and security aspects











Article 15

Defence and security











Article 16

Mixed procurement involving defence or security aspects











Article 17

Public contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules




CHAPTER II
General Rules







Article 18

Principles of procurement











Article 19

Economic operators











Article 21

Confidentiality











Article 22

Rules applicable to communication: paragraphs 2-6











Article 23

Nomenclatures











Article 24

Conflicts of interest




TITLE II
Rules on public contracts
CHAPTER I
Procedures







Article 26

Choice of procedures: paragraphs 1, 2, first alternative of paragraph 4, 5, 6











Article 27

Open procedure











Article 28

Restricted procedure











Article 29

Competitive procedure with negotiation











Article 32

Use of the negotiated procedure without prior publication




CHAPTER III
Conduct of the procedure







Section 1

Preparation











Article 40

Preliminary market consultations











Article 41

Prior involvement of candidates or tenderers











Article 42

Technical specifications











Article 43

Labels











Article 44

Test reports, certification and other means of proof: paragraphs 1, 2











Article 45

Variants











Article 46

Division of contracts into lots











Article 47

Setting time limits











Section 2

Publication and transparency











Article 48

Prior information notices











Article 49

Contract notices











Article 50

Contract award notices: paragraphs 1 and 4











Article 51

Form and manner of publication of notices: first subparagraph of paragraph 1, first subparagraph of paragraph 5











Article 53

Electronic availability of procurement documents











Article 54

Invitations to candidates











Article 55

Informing candidates and tenderers











Section 3

Choice of participants and award of contracts











Article 56

General principles











Subsection 1

Criteria for qualitative selection











Article 57

Exclusion grounds











Article 58

Selection criteria











Article 59

European Single Procurement Document: paragraph 1 mutatis mutandis, paragraph 4











Article 60

Means of proof











Article 62

Quality assurance standards and environmental management standards: paragraphs 1 and 2











Article 63

Reliance on the capacities of other entities











Subsection 2

Reduction of numbers of candidates, tenders and solutions











Article 65

Reduction of the number of otherwise qualified candidates to be invited to participate











Article 66

Reduction of the number of tenders and solutions











Subsection 3

Award of the contract











Article 67

Contract award criteria











Article 68

Life-cycle costing: paragraphs 1 and 2











Article 69

Abnormally low tenders: paragraphs 1 to 4




CHAPTER IV
Contract performance







Article 70

Conditions for performance of contracts











Article 71

Subcontracting











Article 72

Modification of contracts during their term











Article 73

Termination of contracts




TITLE III
Particular procurement regimes
CHAPTER I
Social and other specific services







Article 74

Award of contracts for social and other specific services











Article 75

Publication of notices











Article 76

Principles of awarding contracts




ANNEXES







ANNEX II

LIST OF THE ACTIVITIES REFFERED TO IN POINT 6(a) OF ARTICLE 2(1)











ANNEX III

LIST OF PRODUCTS REFFERED TO IN ARTICLE 4(b) WITH REGARD TO CONTRACTS AWARDED CONTRACTING AUTHORITIES IN THE FIELD OF DEFENCE











ANNEX IV

REQUIREMENTS RELATING TO TOOLS AND DEVICES FOR THE ELECTRONIC RECEIPT OF TENDERS, REQUESTS FOR PARTICIPATION AS WELL AS PLANS AND PROJECTS IN CONTESTS











ANNEX V

INFORMATION TO BE INCLUDED IN NOTICES











Part A:

INFORMATION TO BE INCLUDED IN NOTICES OF THE PUBLICATION OF A PRIOR INFORMATION NOTICE ON A BUYER PROFILE











Part B:

INFORMATION TO BE INCLUDED IN PRIOR INFORMATION NOTICES (as referred to in Article 48)











Part C:

INFORMATION TO BE INCLUDED IN CONTRACT NOTICES (as referred to in Article 49)











Part D:

INFORMATION TO BE INCLUDED IN CONTRACT AWARD NOTICES (as referred to in Article 50)











Part G:

INFORMATION TO BE INCLUDED IN NOTICES OF MODIFICATIONS OF A CONTRACT DURING ITS TERM (as referred to in Article 72(1))











Part H:

INFORMATION TO BE INCLUDED IN CONTRACT NOTICES CONCERNING CONTRACTS FOR SOCIAL AND OTHER SPECIFIC SERVICES (as referred to in Article 75(1))











Part I:

INFORMATION TO BE INCLUDED IN PRIOR INFORMATION NOTICES FOR SOCIAL AND OTHER SPECIFIC SERVICES (as referred to in Article 75(1))











Part J:

INFORMATION TO BE INCLUDED IN CONTRACT AWARD NOTICES CONCERNING CONTRACTS FOR SOCIAL AND OTHER SPECIFIC SERVICES (as referred to in Article 75(2))











ANNEX VII

DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS











ANNEX IX

CONTENTS OF THE INVITATIONS TO SUBMIT A TENDER, TO PARTICIPATE IN THE DIALOGUE OR TO CONFIRM INTEREST PROVIDED FOR UNDER ARTICLE 54











ANNEX X

LIST OF INTERNATIONAL SOCIAL AND ENVIRONMENTAL CONVENTIONS REFERRED TO IN ARTICLE 18(2)











ANNEX XII

MEANS OF PROOF OF SELECTION CRITERIA











ANNEX XIV

SERVICES REFFERED TO IN ARTICLE 74








ANNEX XXI-C TO CHAPTER 8
BASIC ELEMENTS OF DIRECTIVE 89/665/EEC
of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (Directive 89/665/EEC)
as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (Directive 2007/66/EC) and by Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (Directive 2014/23/EU)
(Phase 2)







Article 1

Scope and availability of review procedures











Article 2

Requirements for review procedures











Article 2a

Standstill period











Article 2b


Derogations from the standstill period
Point (b) of the first paragraph of Article 2b












Article 2c

Time limits for applying for review











Article 2d


Ineffectiveness
Paragraph 1(b)
Paragraphs 2 and 3












Article 2e

Infringements of this Directive and alternative penalties











Article 2f

Time limits








ANNEX XXI-D TO CHAPTER 8
BASIC ELEMENTS OF DIRECTIVE 2014/25/EU
of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors
(Phase 3)
TITLE I
Scope, definitions and general principles
CHAPTER I
Subject-matter and definitions







Article 1

Subject-matter and scope: paragraphs 1, 2, 5 and 6











Article 2

Definitions: points 1 to 9, 13 to 16 and 18 to 20











Article 3

Contracting authorities (paragraphs 1 and 4)











Article 4

Contracting entities: paragraphs 1 to 3











Article 5

Mixed procurement covering the same activity











Article 6

Procurement covering several activities




CHAPTER II
Activities







Article 7

Common provisions











Article 8

Gas and heat











Article 9

Electricity











Article 10

Water











Article 11

Transport services











Article 12

Ports and airports











Article 13

Postal services











Article 14

Extraction of oil and gas and exploration for, or extraction of, coal or other solid fuels




CHAPTER III
Material scope







Section 1

Thresholds











Article 15

Threshold amounts











Article 16

Methods for calculating the estimated value of procurement: paragraphs 1 to 4 and 7 to 14











Section 2

Excluded contracts and design contests: Special provisions for procurement involving defence and security aspects











Subsection 1

Exclusions applicable to all contracting entities and special exclusions for the water and energy sector











Article 18

Contracts awarded for purposes of resale or lease to third parties: paragraph 1











Article 19

Contracts and design contests awarded or organised for purposes other than the pursuit of a covered activity or for the pursuit of such an activity in a third country: paragraph 1











Article 20

Contracts awarded and design contests organised pursuant to international rules











Article 21

Specific exclusions for service contracts











Article 22

Service contracts awarded on the basis of an exclusive right











Article 23

Contracts awarded by certain contracting entities for the purchase of water and for the supply of energy or of fuels for the production of energy











Subsection 2

Procurement involving defence and security aspects











Article 24

Defence and security











Article 25

Mixed procurement covering the same activity and involving defence or security aspects











Article 26

Procurement covering several activities and involving defence or security aspects











Article 27

Contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules











Subsection 3

Special relations (cooperation, affiliated undertakings and joint ventures)











Article 28

Contracts between contracting authorities











Article 29

Contracts awarded to an affiliated undertaking











Article 30

Contracts awarded to a joint venture or to a contracting entity forming part of a joint venture











Subsection 4

Specific situations











Article 32

Research and development services




CHAPTER IV
General principles







Article 36

Principles of procurement











Article 37

Economic operators











Article 39

Confidentiality











Article 40

Rules applicable to communication











Article 41

Nomenclatures











Article 42

Conflicts of interest




TITLE II
Rules applicable to contracts
CHAPTER I
Procedures







Article 44

Choice of procedures: paragraphs 1, 2 and 4











Article 45

Open procedure











Article 46

Restricted procedure











Article 47

Negotiated procedure with prior call for competition











Article 50

Use of the negotiated procedure without prior call for competition: points (a) to (i)




CHAPTER III
Conduct of the procedure







Section 1

Preparation











Article 58

Preliminary market consultations











Article 59

Prior involvement of candidates or tenderers











Article 60

Technical specifications











Article 61

Labels











Article 62

Test reports, certification and other means of proof











Article 63

Communication of technical specifications











Article 64

Variants











Article 65

Division of contracts into lots











Article 66

Setting time limits











Section 2

Publication and transparency











Article 67

Periodic indicative notices











Article 68

Notices on the existence of a qualification system











Article 69

Contract notices











Article 70

Contract award notices: paragraphs 1, 3 and 4











Article 71

Form and manner of publication of notices: paragraph 1, first subparagraph of paragraph 5











Article 73

Electronic availability of procurement documents











Article 74

Invitations to candidates











Article 75

Informing applicants for qualification, candidates and tenderers











Section 3

Choice of participants and award of contract











Article 76

General principles











Subsection 1

Qualification and qualitative selection











Article 78

Criteria for qualitative selection











Article 79

Reliance on the capacities of other entities: paragraph 2











Article 80

Use of exclusion grounds and selection criteria provided for under Directive 2014/24/EU











Article 81

Quality assurance standards and environmental management standards: paragraphs 1 and 2











Subsection 2

Award of the contract











Article 82

Contract award criteria











Article 83

Life-cycle costing: paragraphs 1 and 2











Article 84

Abnormally low tenders: paragraphs 1 to 4




CHAPTER IV
Contract performance







Article 87

Conditions for performance of contracts











Article 88

Subcontracting











Article 89

Modification of contracts during their term











Article 90

Termination of contracts




TITLE III
Particular procurement regimes
CHAPTER I
Social and other specific services







Article 91

Award of contracts for social and other specific services











Article 92

Publication of notices











Article 93

Principles of awarding contracts




ANNEXES







ANNEX I

List of activities as set out in point (a) of point 2 of Article 2











ANNEX V

Requirement relating to tools and devices for the electronic receipt of tenders, requests to participate, applications for qualification as well as plans and projects in contests











ANNEX VI A

Information to be included in the periodic indicative notice (as referred to in Article 67)











ANNEX VI B

Information to be included in notices of publication of a periodic indicative notice on a buyer profile not used as a means of calling for competition (as referred to in Article 67(1))











ANNEX VIII

Definition of certain technical specifications











ANNEX IX

Features concerning publication











ANNEX X

Information to be included in the notice on the existence of a qualification system (as referred to in point (b) of Article 44(4) and in Article 68)











ANNEX XI

Information to be included in contract notices (as referred to in Article 69)











ANNEX XII

Information to be included in the contract award notice (as referred to in Article 70)











ANNEX XIII

Contents of the invitation to submit a tender, to participate in the dialogue, to negotiate or to confirm interest provided for under Article 74











ANNEX XIV

List of International Social and Environmental Conventions referred to in Article 36(2)











ANNEX XVI

Information to be included in notices of modifications of a contract during its term (as referred to in Article 89(1))











ANNEX XVII

Services referred to in Article 91











ANNEX XVIII

Information to be included in notices concerning contracts for social and other specific services (as referred to in Article 92)








ANNEX XXI-E TO CHAPTER 8
BASIC ELEMENTS OF COUNCIL DIRECTIVE 92/13/EEC
of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (Directive 92/13/EEC)
as amended by Directive 2007/66/EC and Directive 2014/23/EU
(Phase 3)







Article 1

Scope and availability of review procedures











Article 2

Requirements for review procedures











Article 2a

Standstill period











Article 2b


Derogations from the standstill period
Point (b) of the first paragraph of Article 2b












Article 2c

Time limits for applying for review











Article 2d


Ineffectiveness
Paragraphs 1(b), 2 and 3












Article 2e

Infringements of this Directive and alternative penalties











Article 2f

Time limits








ANNEX XXI-F TO CHAPTER 8I.   OTHER NON-MANDATORY ELEMENTS OF DIRECTIVE 2014/24/EU(Phase 4)
The elements of Directive 2014/24/EU set out in this Annex are not mandatory but recommended for approximation. Ukraine may approximate these elements within the time-frame set in Annex XXI-B
TITLE I
Scope, definitions and general principles
CHAPTER I
Scope and definitions







Section 1

Subject-matter and definitions











Article 2

Definitions (paragraph 1, points (14) and (16))











Article 20

Reserved contracts




TITLE II
Rules on public contracts
CHAPTER II
Techniques and instruments for electronic and aggregated procurement







Article 37

Centralised purchasing activities and central purchasing bodies




CHAPTER III
Conduct of the procedure







Section 3

Choice of participants and award of contracts











Article 64

Official lists of approved economic operators and certification by bodies established under public or private law




TITLE III
Particular procurement regimes
CHAPTER I







Article 77

Reserved contracts for certain services



II.   NON-MANDATORY ELEMENTS OF DIRECTIVE 2014/23/EU(Phase 4)
The elements of Directive 2014/23/EU set out in this Annex are not mandatory but recommended for approximation. Ukraine may approximate these elements within the time-frame set in Annex XXI-B
TITLE I
Subject matter, scope, principles and definitions
CHAPTER I
Scope, general principles and definitions







Section IV

Specific situations











Article 24

Reserved Concessions








ANNEX XXI-G TO CHAPTER 8I.   OTHER MANDATORY ELEMENTS OF DIRECTIVE 2014/24/EU(Phase 4)
TITLE I
Scope, definitions and general principles
CHAPTER I
Scope and definitions







Section 1

Subject-matter and definitions











Article 2

Definitions (paragraph 1, point (21))











Article 22

Rules applicable to communication: paragraph 1




TITLE II
Rules on public contracts
CHAPTER I
Procedures







Article 26

Choice of procedures: paragraph 3, second alternative of paragraph 4











Article 30

Competitive dialogue











Article 31

Innovation Partnership




CHAPTER II
Techniques and instruments for electronic and aggregated procurement







Article 33

Framework agreements











Article 34

Dynamic purchasing systems











Article 35

Electronic auctions











Article 36

Electronic catalogues











Article 38

Occasional joint procurement




CHAPTER III
Conduct of the procedure







Section 2

Publication and Transparency











Article 50

Contract award notices: paragraphs 2 and 3




TITLE III
Particular procurement regimes
CHAPTER II
Rules governing design contests







Article 78

Scope











Article 79

Notices











Article 80

Rules on the organisation of design contests and the selection of participants











Article 81

Composition of the jury











Article 82

Decisions of the jury




ANNEXES







ANNEX V

INFORMATION TO BE INCLUDED IN NOTICES











Part E:

INFORMATION TO BE INCLUDED IN DESIGN CONTEST NOTICES (as referred to in Article 79(1))











Part F:

INFORMATION TO BE INCLUDED IN NOTICES OF THE RESULTS OF A CONTEST (as referred to in Article 79(2))











ANNEX VI

INFORMATION TO BE INCLUDED IN THE PROCUREMENT DOCUMENTS RELATING TO ELECTRONIC AUCTIONS (ARTICLE 35(4))



II.   MANDATORY ELEMENTS OF DIRECTIVE 2014/23/EU(Phase 4)
TITLE I
Subject matter, scope, principles and definitions
CHAPTER I
Scope, general principles and definitions







Section I

Subject-matter, scope, general principles, definitions and threshold











Article 1

Subject-matter and scope: paragraphs 1, 2 and 4











Article 2

Principle of free administration by public authorities











Article 3

Principle of equal treatment, non-discrimination and transparency











Article 4

Freedom to define services of general economic interest











Article 5

Definitions











Article 6

Contracting authorities: paragraphs 1 and 4











Article 7

Contracting entities











Article 8

Threshold and methods for calculating the estimated value of concessions











Section II

Exclusions











Article 10

Exclusions applicable to concessions awarded by contracting authorities and contracting entities











Article 11

Specific exclusions in the field of electronic communications











Article 12

Specific exclusions in the field of water











Article 13

Concessions awarded to an affiliated undertaking











Article 14

Concessions awarded to a joint venture or to a contracting entity forming part of a joint venture











Article 17

Concessions between entities within the public sector











Section III

General provisions











Article 18

Duration of the concession











Article 19

Social and other specific services











Article 20

Mixed contracts











Article 21

Mixed procurement contracts involving defence or security aspects











Article 22

Contracts covering both activities referred to in Annex II and other activities











Article 23

Concessions covering both activities referred to in Annex II and activities involving defence or security aspects











Article 25

Research and development services




CHAPTER II
Principles







Article 26

Economic operators











Article 27

Nomenclatures











Article 28

Confidentiality











Article 29

Rules applicable to communication




TITLE II
Rules on the award of concessions: General principles and procedural guarantees
CHAPTER I
General principles







Article 30

General principles: paragraphs 1, 2 and 3











Article 31

Concession notices











Article 32

Concession award notices











Article 33

Form and manner of publication of notices: first subparagraph of paragraph 1











Article 34

Electronic availability of concession documents











Article 35

Combating corruption and preventing conflicts of interest




CHAPTER II
Procedural guarantees







Article 36

Technical and functional requirements











Article 37

Procedural guarantees











Article 38

Selection of and qualitative assessment of candidates











Article 39

Time limits for receipt of applications and tenders for the concession











Article 40

Provision of information to candidates and tenderers











Article 41

Award criteria




TITLE III
Rules on performance of concessions







Article 42

Subcontracting











Article 43

Modification of contracts during their term











Article 44

Termination of concessions











Article 45

Monitoring and Reporting




ANNEXES







ANNEX I

LIST OF THE ACTIVITIES REFERRED TO IN POINT (7) OF ARTICLE 5











ANNEX II

ACTIVITIES EXERCISED BY CONTRACTING ENTITIES AS REFERRED TO IN ARTICLE 7











ANNEX III

LIST OF LEGAL ACTS OF THE UNION REFERRED TO IN POINT (B) OF ARTICLE 7(2)











ANNEX IV

SERVICES REFERRED TO IN ARTICLE 19











ANNEX V

INFORMATION TO BE INCLUDED IN CONCESSION NOTICES REFERRED TO IN ARTICLE 31











ANNEX VI

INFORMATION TO BE INCLUDED IN PRIOR INFORMATION NOTICES CONCERNING CONCESSIONS FOR SOCIAL AND OTHER SPECIFIC SERVICES, AS REFERRED TO IN ARTICLE 31(3)











ANNEX VII

INFORMATION TO BE INCLUDED IN CONCESSION AWARD NOTICES, AS REFERRED TO IN ARTICLE 32











ANNEX VIII

INFORMATION TO BE INCLUDED IN CONCESSION AWARD NOTICES CONCERNING CONCESSIONS FOR SOCIAL AND OTHER SPECIFIC SERVICES, AS REFERRED TO IN ARTICLE 32











ANNEX IX

FEATURES CONCERNING PUBLICATION











ANNEX X

LIST OF INTERNATIONAL SOCIAL AND ENVIRONMENTAL CONVENTIONS REFERRED TO IN ARTICLE 30(3)











ANNEX XI

INFORMATION TO BE INCLUDED IN NOTICES OF MODIFICATIONS OF A CONCESSION DURING ITS TERM ACCORDING TO ARTICLE 43








ANNEX XXI-H TO CHAPTER 8
OTHER ELEMENTS OF DIRECTIVE 89/665/EEC
as amended by Directive 2007/66/EC and Directive 2014/23/EU
(Phase 4)







Article 2b


Derogations from the standstill period
Point (c) of the first paragraph of Article 2b












Article 2d


Ineffectiveness
Point (c) of the first paragraph of Article 2d
Paragraph 5









ANNEX XXI-I TO CHAPTER 8
(Phase 5)
I.   OTHER MANDATORY ELEMENTS OF DIRECTIVE 2014/25/EU
TITLE I
Scope, definitions and general principles
CHAPTER I
Subject-matter and definitions







Article 2

Definitions: point 17




CHAPTER III
Material scope







Section 1

Thresholds











Article 16

Methods for calculating the estimated value of procurement: paragraphs 5, 6




TITLE II
Rules applicable to contracts
CHAPTER I
Procedures







Article 44

Choice of procedures: paragraph 3











Article 48

Competitive dialogue











Article 49

Innovation Partnership











Article 50

Use of the negotiated procedure without prior call for competition: point (j)




CHAPTER II
Techniques and instruments for electronic and aggregated procurement







Article 51

Framework agreements











Article 52

Dynamic purchasing systems











Article 53

Electronic auctions











Article 54

Electronic catalogues











Article 56

Occasional joint procurement




CHAPTER III
Conduct of the procedure







Section 2

Publication and transparency











Article 70

Contract award notices: paragraph 2











Section 3

Choice of participants and award of contract











Subsection 1

Qualification and qualitative selection











Article 77

Qualification systems











Article 79

Reliance on the capacities of other entities: paragraph 1




TITLE III
Particular procurement regimes
CHAPTER II
Rules governing design contests







Article 95

Scope











Article 96

Notices











Article 97

Rules on the organisation of design contests, the selection of participants and the jury











Article 98

Decision of the jury




ANNEXES







ANNEX VII

Information to be included in the procurement documents relating to electronic auctions (Article 53(4))











ANNEX XIX

Information to be included in the design contest notice (as referred to in Article 96(1))











ANNEX XX

Information to be included in the results of design contest notices (as referred to in Article 96(1))




II.   OTHER NON-MANDATORY ELEMENTS OF DIRECTIVE 2014/25/EU
The further elements of Directive 2014/25/EU set out in this Annex are not mandatory but recommended for approximation. Ukraine may approximate these elements within the time-frame set in Annex XXI-B.
TITLE I
Scope, definitions and general principles
CHAPTER I
Subject-matter and definitions







Article 2

Definitions: points 10 to 12




CHAPTER IV
General principles







Article 38

Reserved contracts




TITLE II
Rules applicable to contracts
CHAPTER I
Procedures







Article 55

Centralised purchasing activities and central purchasing bodies




TITLE III
Particular procurement regimes
CHAPTER I
Social and other specific services







Article 94

Reserved contracts for certain services








ANNEX XXI-J TO CHAPTER 8
OTHER ELEMENTS OF DIRECTIVE 92/13/EEC
as amended by Directive 2007/66/EC and Directive 2014/23/EU
(Phase 5)







Article 2b


Derogations from the standstill period
Point (c) of the first paragraph of Article 2b












Article 2d


Ineffectiveness
Point (c) of paragraph 1 of Article 2d,
Paragraph 5









ANNEX XXI-K TO CHAPTER 8
I.   PROVISIONS OF DIRECTIVE 2014/24/EU OUTSIDE THE SCOPE OF APPROXIMATION
The elements of Directive 2014/24/EU listed in this Annex are not subject to the process of approximation.
TITLE I
Scope, definitions and general principles
CHAPTER I
Scope and definitions







Section 1

Subject-matter and definitions











Article 1

Subject-matter and scope: paragraphs 3 and 4











Article 2

Definitions: paragraph 2











Section 2

Thresholds











Article 6

Revision of the thresholds and of the list of central government authorities




TITLE II
Rules on public contracts
CHAPTER I
Procedures







Article 25

Conditions relating to the GPA and other international agreements




CHAPTER II
Techniques and instruments for electronic and aggregated procurement







Article 39

Procurement involving contracting authorities from different Member States




CHAPTER III
Conduct of the procedure







Section 1

Preparation











Article 44

Test reports, certification and other means of proof: paragraph 3











Section 2

Publication and transparency











Article 51

Form and manner of publication of notices: second subparagraph of paragraph 1, paragraphs 2, 3, 4, second subparagraph of paragraph 5, paragraph 6











Article 52

Publication at national level











Section 3

Choice of participants and award of contracts











Article 61

Online repository of certificates (e-Certis)











Article 62

Quality assurance standards and environmental management standards: paragraph 3











Article 68

Life-cycle costing: paragraph 3











Article 69

Abnormally low tender: paragraph 5




TITLE IV
Governance







Article 83

Enforcement











Article 84

Individual reports on procedures for the award of contracts











Article 85

National reporting and statistical information











Article 86

Administrative Cooperation




TITLE V
Delegated powers, implementing powers and final provisions







Article 87

Exercise of the delegation of powers











Article 88

Urgency procedure











Article 89

Committee procedure











Article 90

Transposition and transitional provisions











Article 91

Repeals











Article 92

Review











Article 93

Entry into force











Article 94

Addressees




ANNEXES







ANNEX I

CENTRAL GOVERNMENT AUTHORITIES











ANNEX VIII

FEATURES CONCERNING PUBLICATION











ANNEX XI

REGISTERS











ANNEX XIII

LIST OF EU LEGISLATION REFERRED TO IN ARTICLE 68(3)











ANNEX XV

CORRELATION TABLE




II.   PROVISIONS OF DIRECTIVE 2014/23/EU OUTSIDE THE SCOPE OF APPROXIMATION
The elements of Directive 2014/23/EU listed in this Annex are not subject to the process of approximation.
TITLE I
Subject matter, scope, principles and definitions
CHAPTER I
Scope, general principles and definitions







Section I

Subject-matter, scope, general principles, definitions and threshold











Article 1

Subject-matter and scope: paragraph 3











Article 6

Contracting authorities: paragraphs 2 and 3











Article 9

Revision of the threshold











Section II

Exclusions











Article 15

Notification of information by contracting entities











Article 16

Exclusion of activities which are directly exposed to competition




TITLE II
Rules on the award of concessions: General principles and procedural guarantees
CHAPTER I
General principles







Article 30

General principles: paragraph 4











Article 33

Form and manner of publication of notices: second subparagraph of paragraph 1, paragraphs 2, 3 and 4




TITLE IV
Amendments to Directive 89/665/EEC and 92/13/EEC







Article 46

Amendments to Directive 89/665/EEC











Article 47

Amendments to Directive 92/13/EEC




TITLE V
Delegated powers, implementing powers and final provisions







Article 48

Exercise of the delegation











Article 49

Urgency procedure











Article 50

Committee procedure











Article 51

Transposition











Article 52

Transitional provisions











Article 53

Monitoring and reporting











Article 54

Entry into force











Article 55

Addressees








ANNEX XXI-L TO CHAPTER 8
PROVISIONS OF DIRECTIVE 2014/25/EU OUTSIDE THE SCOPE OF APPROXIMATION
The elements listed in this Annex are not subject to the process of approximation.
TITLE I
Scope, definitions and general principles
CHAPTER I
Subject-matter and definitions







Article 1

Subject matter and scope: paragraphs 3 and 4











Article 3

Contracting authorities: paragraphs 2 and 3











Article 4

Contracting entities: paragraph 4




CHAPTER III
Material scope







Section 1

Thresholds











Article 17

Revision of the thresholds











Section 2

Excluded contracts and design contests: Special provisions for procurement involving defence and security aspects











Subsection 1

Exclusions applicable to all contracting entities and special exclusions for the water and energy sector











Article 18

Contracts awarded for purposes of resale or lease to third parties: paragraph 2











Article 19

Contracts and design contests awarded or organised for purposes other than the pursuit of a covered activity or for the pursuit of such an activity in a third country: paragraph 2











Subsection 3

Special relations (cooperation, affiliated undertakings and joint ventures)











Article 31

Notification of information











Subsection 4

Specific situations











Article 33

Contracts subject to special arrangements











Subsection 5

Activities directly exposed to competition and procedural provisions relating thereto











Article 34

Activities directly exposed to competition











Article 35

Procedure for establishing whether Article 34 is applicable




TITLE II
Rules applicable to contracts
CHAPTER I
Procedures







Article 43

Conditions relating to the GPA and other international agreements




CHAPTER II
Techniques and instruments for electronic and aggregated procurement







Article 57

Procurement involving contracting entities from different Member States




CHAPTER III
Conduct of the procedure







Section 2

Publication and transparency











Article 71

Form and manner of publication of notices: paragraphs 2, 3, 4, second subparagraph of paragraph 5, paragraph 6











Article 72

Publication at national level











Section 3

Choice of participants and award of contract











Article 81

Quality assurance standards and environmental management standards: paragraph 3











Article 83

Life-cycle costing: paragraph 3











Section 4

Tenders comprising products originating in third countries and relations with those countries











Article 85

Tenders comprising products originating in third countries











Article 86

Relations with third countries as regards works, supplies and service contracts




TITLE IV
Governance







Article 99

Enforcement











Article 100

Individual reports on procedures for the award of contracts











Article 101

National reporting and statistical information











Article 102

Administrative cooperation




TITLE V
Delegated powers, implementing powers and final provisions







Article 103

Exercise of the delegation











Article 104

Urgency procedure











Article 105

Committee procedure











Article 106

Transposition and transitional provisions











Article 107

Repeal











Article 108

Review











Article 109

Entry into force











Article 110

Addressees




ANNEXES







ANNEX II

List of Union legal acts referred to in Article 4(3)











ANNEX III

List of Union legal acts referred to in Article 34(3)











ANNEX IV

Deadlines for the adoption of the implementing acts referred to in Article 35











ANNEX XV

List of Union legal acts referred to in Article 83(3)








ANNEX XXI-M TO CHAPTER 8
PROVISIONS OF DIRECTIVE 89/665/EEC AS AMENDED BY DIRECTIVE 2007/66/EC AND DIRECTIVE 2014/23/EU OUTSIDE THE SCOPE OF APPROXIMATION
The elements listed in this Annex are not subject to the process of approximation.







Article 2b


Derogations from the standstill period
Point (a) of the first paragraph of Article 2b












Article 2d


Ineffectiveness
Point (a) of paragraph 1 of Article 2d,
Paragraph 4












Article 3

Corrective Mechanisms











Article 3a

Content of the notice for voluntary ex ante transparency











Article 3b

Committee Procedure











Article 4

Implementation











Article 4a

Review








ANNEX XXI-N TO CHAPTER 8
PROVISIONS OF DIRECTIVE 92/13/EEC AS AMENDED BY DIRECTIVE 2007/66/EC AND DIRECTIVE 2014/23/EU OUTSIDE THE SCOPE OF APPROXIMATION
The elements listed in this Annex are not subject to the process of approximation.







Article 2b


Derogations from the standstill period
Point (a) of the first paragraph of Article 2b












Article 2d


Ineffectiveness
Point (a) of paragraph 1 of Article 2d,
Paragraph 4












Article 3a

Content of the notice for voluntary ex ante transparency











Article 3b

Committee Procedure











Article 8

Corrective Mechanisms











Article 12

Implementation











Article 12a

Review








ANNEX XXI-O TO CHAPTER 8
UKRAINE: INDICATIVE LIST OF ISSUES FOR COOPERATION








1.


Training, in Ukraine and EU countries, of Ukrainian officials from government bodies engaged in public procurement;












2.


Training of suppliers interested participating in public procurement;












3.


Exchange of information and experience on best practice and regulatory rules in the sphere of public procurement;












4.


Enhancement of the functionality of the public procurement website and establishment of a system of public procurement monitoring;












5.


Consultations and methodological assistance from the EU Party in application of modern electronic technologies in the sphere of public procurement;












6.


Strengthening the bodies charged with guaranteeing a coherent policy in all areas related to public procurement and the independent and impartial consideration (review) of contracting authorities' decisions. (Cf. Article 150 paragraph 2 of this Agreement)








ANNEX XXI-P TO CHAPTER 8
THRESHOLDS








1.


The value thresholds mentioned in Article 149(3) of this Agreement shall be for both Parties:






(a)


EUR 135 000 for public supply and service contracts awarded by central government authorities and design contests awarded by such authorities;










(b)


EUR 209 000 in the case of public supply and public service contracts not covered by point (a);










(c)


EUR 5 225 000 in the case of public works contracts;










(d)


EUR 5 225 000 in the case of works contracts in the utilities sector;










(e)


EUR 5 225 000 in the case of concessions;










(f)


EUR 418 000 in the case of supply and service contracts in the utilities sector;










(g)


EUR 750 000 for public service contracts for social and other specific services;










(h)


EUR 1 000 000 for service contracts for social and other specific services in the utilities sector.
















2.


The EUR thresholds quoted in paragraph 1 shall be adapted to reflect the thresholds applicable under the EU Directives at the moment of the entry into force of this Agreement.