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31. 1. 91 Official Journal of the European Communities No C 23/1

II

_(Preparatory Acts)_

# COMMISSION

Proposal for a Council Directive relating to the coordination of procedures on the award of public

service contracts

_COM(90) 372 final_ — _SYN 293_

_(Submitted by the Commission on 13 December 1990)_

(91/C 23/01)

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Economic Community, and in particular Articles 57 (2),
_66,_ 100a and 113 thereof,

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

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

Whereas the European Council has concluded in successive
meetings on the need to complete the internal market;

Whereas measures aimed at progressively establishing the
internal market during the period up to 31 December 1992
need to be taken; whereas the internal market is an area

without internal frontiers in which the free movement of

goods, persons, services and capital is ensured;

Whereas these objectives require the coordination of the
procurement procedures on the award of public service

contracts;

Whereas the White Paper on the completion of the internal
market contains an action programme and a timetable for
opening up public procurement markets, including in the

field of services in so far as this is not already covered by
Council Directive 71/305/EEC of _16_ July 1971
concerning the coordination of procedures for the award of
public works contracts ( [1] ), as last amended by Directive
89/440/EEC ( [2] ), and Council Directive 77/62/EEC _oi_
21 December 1986 coordinating procedures for the award
of public supply contracts ( [3] ), as last amended by Directive
88/295/EEC( [4] );

Whereas this Directive should be applied by all contracting
authorities in the sense of the aforementioned Directives;

Whereas suppliers may be natural persons; whereas
without prejudice to national rules compatible with the
Treaty suppliers may also be legal persons;

Whereas the field of services is best described, for the
purpose of application of procurement rules, and for
monitoring purposes, by subdividing it into categories
corresponding to particular positions of the Central
Product Classification (CPC);

Whereas the provision of services is covered by this
Directive only in so far as it is based on contracts; whereas

I [1] ) OJ No L 185, 16. 8. 1971, p. 5.
( [2] ) OJ No L 210, 21. 7. 1989, p. 1.
_(3)_ OJNoL 13, 15. 1. 1977, p. 1.
( [4] ) OJ No L 127, 20. 5. 1988, p. 1.

No C 23/2 Official Journal of the European Communities 31. 1. 91

the provision of services on other bases, such as law or
regulations, or employment contracts, is not covered;

Whereas as far as research and development (R&D) is
concerned, this Directive only covers R&D services whose
results accrue exclusively to the contracting authority;

Whereas, in order to ensure coherent award procedures,
public service concessions should be covered by this
Directive in the same way as Directive 71/305/EEC
applies to public works concessions;

Whereas contracts relating to ownership or rights on
immovable property have particular characteristics, which
make the application of procurement rules inappropriate;

Whereas the award of contracts for certain audio-visual

services in the broadcasting field is governed by
considerations which make the application of procurement
rules inappropriate;

Whereas arbitration and conciliation services are usually
provided by bodies or individuals which are agreed on, or
selected, in a manner which cannot be governed by
procurement rules;

Whereas the financial services sector includes activities in

connection with the application of instruments of monetary
policy; the particular characteristics of this area require
their exclusion from this Directive;

Whereas in the field of services the same derogations as in
the aforementioned Directives should apply, as regards
State security or secrecy and the priority of other
procurement rules such as those pursuant to international
agreements, the stationing of troops, or the rules of
international organisations;

Whereas this Directive does not prejudice the application
of, in particular, Articles 55, 56 and _66_ of the Treaty;

Whereas the rules concerning service contracts as contained
in Council Directive 90/531 /EEC of 17 September 1990
on the procurement procedures of entities operating in the
water, energy, transport and telecommunications
sectors ( [a] ) should remain unaffected by this Directive;

(!) OJ No L 297, 29. 10. 1990, p. 1.

Whereas contracts with a designated single source of
supply may under certain conditions be fully or partly
exempted from this Directive;

Whereas this Directive should not apply to small contracts
below a certain threshold, in order to avoid unnecessary
formalities; whereas the threshold may in principle be the
same as that for public supply contracts; whereas the
threshold for design contracts concerning a complete work
within the meaning of Directive 71/305/EEC should
correspond to the threshold concerning works contracts as
established by that Directive; whereas the calculation of
contract value, the publication and the method of
adaptation of the thresholds should be the same as in the
other Community procurement directives;

Whereas, to eliminate practices that restrict competition in
general and participation in contracts by other Member
States' nationals in particular, it is necessary to improve the
access of suppliers to procedures for the award of

contracts;

Whereas full application of the Directive must be limited,
for a transitional period, to contracts for those services
where the market is genuinely open or will be so by the
time this Directive comes into effect, and where the
provisions of the Directive will enable the full potential for
increased cross-frontier trade to be realized; whereas

contracts for other services need to be monitored for a

certain period before taking a decision on the full
application of the Directive; whereas the mechanism for
such monitoring needs to be set up by the Directive;
whereas it should at the same time enable those interested

to share the relevant information;

Whereas the rules for the award of public service contracts
should be as close as possible to those concerning public
supply contracts and public works contracts;

Whereas the procurement rules contained in Directives
71/305/EEC and 77/62/EEC can be applied, with
necessary adaptations so as to take into account special
aspects of procurement of services such as the choice of the
negotiated procedure, design contests, variants, the legal
form of suppliers, the reservation of certain activities to
certain professions, registration and quality assurance

matters;

Whereas the particular conditions for use of the negotiated
procedure with prior publication of a notice when the
service to be performed cannot be specified with sufficient

31. 1. 91 Official Journal of the European Communities No C 23/3

precision should be fulfilled in particular in the field of
intellectual, creative services;

Whereas the relevant Community rules on mutual
recognition of diplomas, certificates or other evidence of
formal qualifications apply when evidence of a particular
qualification is required for participation in an award
procedure or a design contest;

Whereas the objectives of this Directive do not require any
changes in the current state at national level, as regards the
admission, or regulation, of price competition between
suppliers of certain services;

Whereas contracting authorities must be able to reject
tenders which, because they are based on State aids, are
unreliable; whereas tenders which are submitted by public
bodies may create the risk of distortions of competition
when they are influenced by the availability of public
financing; whereas contracting authorities shall, under
particular conditions, inform the Commission of their
attitude towards such tenders; whereas this Directive does
not prejudice the application of Articles 92 _et seq,_ of the
Treaty;

Whereas Community undertakings should be granted
access to the award of public service contracts and
concessions in non-Community countries; whereas
negotiations may be initiated to that effect when such
access, in law or in fact, is found to be restricted; whereas
the possibility should exist under certain conditions to take
measures as regards access to public service contracts or
concessions in the Community, of undertakings or of
tenders originating in the non-Community country
concerned;

Whereas the operation of this Directive should be reviewed
at the latest three years after the date for compliance of
national procurement rules; whereas the review should
extend in particular _to_ the possibility of making the
Directive fully applicable to a wider range of service

contracts,

HAS ADOPTED THIS DIRECTIVE:

TITLE I

GENERAL PROVISIONS

_Article 1_

(a) 'public service contracts' are contracts for pecuniary
interest concluded in writing between a supplier and a
contracting authority, to the exclusion of

(i) public supply contracts within the meaning of
Article 1 (a) of Directive 77/62/EEC and
public works contracts within the meaning of
Article 1 (a) of Directive 71/305/EEC;

(ii) contracts for the purchase, lease or rental of, or
concerning rights on land, existing buildings or
other immovable property;

(iii) contracts for the acquisition of programme
material by broadcasters within the meaning of
Council Directive 89/552/EEC ( [J] ), and
contracts for broadcasting time pursuing public
interest objectives such as information to the
population in case of civil disasters;

(vi) contracts for voice telephony, telex,
radiotelephony, paging and satellite services;

(v) contracts for arbitration and conciliation
services;

(vi) public service concessions in the sense of
point (h);

(vii) contracts concerning primary issues of
government bonds and other activities in the
area of public debt management;

(b) 'contracting authorities' (hereafter 'authorities') shall
be the bodies described in Article 1 (b) of Directive
71/305/EEC, and any other bodies listed in Annex I
to Directive 80/767/EEC;

(c) 'suppliers' are natural or legal persons, including
public bodies which offer services. A supplier who
submits a tender shall be designated by the term
'tenderer', and one who has sought an invitation to
take part in a restricted or negotiated procedure by the
term 'candidate';

(d) 'open procedures' are those national procedures
whereby all interested suppliers may submit a tender;

(e) 'restricted procedures' are those national procedures
whereby only those suppliers invited by the authority
may submit a tender;

(f) 'negotiated procedures' are those national procedures
whereby authorities consult suppliers of their choice
and negotiate the terms of the contract with one or
more of them;

For the purpose of this Directive: (!) OJ No L 298, 17. 10. 1989, p. 23.

No C 23/4 Official Journal of the European Communities 31. 1. 91

(g) 'design contests' are those national procedures which
aim at providing the authority with a plan or design,
mainly in the fields of area planning, town planning,
architecture and civil engineering, or data processing,
and which are selected by a jury on the basis of
competition with or without the award of prizes;

(h) a 'public service concession' is a contract other than a
public works concession within the meaning of
Article 1 (d) of Directive 71/305/EEC, concluded
between an authority and another entity of its choice
whereby the former transfers the execution of a service
to the public lying within its responsibility to the latter
and the latter accepts to execute the activity in return
for the right to exploit the service or this right together
with payment. Contracts for the award of rights to
perform broadcasting activities are excluded from this
definition.

_Article 2_

1. Member States shall take the necessary measures to
ensure that authorities comply with this Directive when
they award public service contracts or public service
concessions, or hold design contests.

2. Authorities shall ensure that there is no discrimination

between different suppliers.

3. Member States shall take the necessary measures to
ensure that the authorities comply or ensure compliance
with this Directive where they subsidize directly by more
than 50 % service contracts awarded by an entity other
than themselves in connection with projects to which
Article la (2) of Directive 71/305/EEC relates.

_Article 3_

1. When a concessionnaire is himself an authority within
the meaning of Article 1 (b), he shall comply with the
provisions of this Directive in the case of services to be
carried out by third parties.

2. Member States shall take the necessary steps to ensure
that a concessionnaire which is not itself an authority shall
apply the advertising rules as set out in Articles 17, 18 and
19 to contracts for services listed in Annex LA which it

intends to award to third parties when the value of the
contract is above the thresholds fixed in Article 8 (1).

Advertising rules need not be applied when the contract
meets the conditions laid down in Article 13 (3).

3. Undertakings which have formed a group in order to
obtain the concession, or undertakings affiliated to them,
shall not be regarded as third parties within the meaning of
paragraph 2 under the conditions specified in Article lb (4)
of Directive 71/305/EEC.

_Article 4_

1. This Directive shall apply to service contracts awarded
by authorities in the field of defence, except for contracts to
which the provisions of Article 223 of the Treaty apply.

2. This Directive shall not apply to services which are
declared secret or the execution of which must be

accompanied by special security measures in accordance
with the laws, regulations or administrative provisions in
force in the Member State concerned or when the

protection of the basic interests of that State's security so
requires.

_Article 5_

This Directive shall not apply to contracts governed by
different procedural rules and awards:

(a) pursuant to an international agreement concluded
between a Member State and one or more

non-member countries and covering services intended
for the joint implementation or exploitation of a
project by the signatory States; every agreement shall
be communicated to the Commission, which may
consult the Advisory Committee for Public Contracts
set up by Council Decision 71/306/EEC ( [2] );

(b) to undertakings in a Member State or a non-member
country in pursuance of an international agreement
relating to the stationing of troops;

(c) pursuant to the particular procedure of an
international organization.

_Article 6_

This Directive shall not apply to the award of public service
contracts or concessions or the execution of design contests
by contracting entities within the meaning of Article 2 of
Directive 90/531/EEC.

(!) OJNo L 185, 16. 8. 1971, p. 15.

31. 1. 91 Official Journal of the European Communities No C 23/5

_Article 7_

Without prejudice to Article 17 (1), the provisions of this
Directive shall not apply to the award of public service
contracts which authorities have to award to an entity
which is itself a contracting authority within the meaning
of Article 1 (b) pursuant to an exclusive right established
by a published law, regulation or administrative provision
which is compatible with the Treaty.

_Article 8_

1. The provisions of this Directive shall apply to contracts
for services falling within category 6 of Annex I.A which:

(a) as regards insurance services, provide for annual
premiums of not less than ECU 100 000;

(b) as regards banking and other financial services,
provide for fees, commissions or other types of
remuneration of not less than ECU 200 000.

2. The provisions of this Directive shall apply to contracts
for services falling within category 12 of Annex I.A which
have as their object the complete design of a work within
the meaning of Article 1 (c) of Directive 71/305/EEC,
when the estimated cost net of VAT of the execution of the

work is not less than ECU 5 000 000.

Where the design of a work is subdivided into several lots,
each one the subject of a contract, the value of execution of
each lot must be taken into account for the purpose of
calculating the amount referred to above. Where the
aggregate value of the execution of the lots is not less than
the amount referred to above, the provisions of this
Directive shall apply to all lots. Authorities shall be
permitted to depart from this provision for lots the
execution of which has an estimated value net of VAT of

less than ECU 1 000 000, provided that the total estimated
value of the execution of all the lots exempted does not, in
consequence, exceed 20 % of the total estimated value of
all lots.

3. The provisions of this Directive shall apply to contracts
for services falling within the category 21 of Annex LB
which provide for expected annual benefits from interest of
not less than ECU 200 000.

4. The provisions of this Directive shall apply to all other
service contracts whose estimated value net of VAT is not

less than ECU 200 000.

5. The value of a contract within the meaning of
paragraphs 1, 2 and 4 includes the total remuneration of

the supplier as estimated at the time of publication of the
notice in accordance with Article 17, along with the
elements specified in paragraphs 6 to 10.

6. In the case of contracts which do not specify a total
price, the basis for calculating the estimated contract value
shall be:

— in the case of fixed term contracts, the total contract
value for its duration,

— in the case of contracts for an indefinite period or in
cases where there is doubt as to the duration of the

contracts, the monthly instalment multiplied by 48.

7. In the case of regular contracts or _of_ contracts which
are to be renewed within a given time, the contract value
may be established on the basis of:

— either the aggregate cost of similar contracts for the
same category of services concluded over the previous
fiscal year or 12 months, adjusted, where possible, for
anticipated changes in quantity or value over the
subsequent 12 months,

or

— the estimated aggregate cost during the 12 months
following first performance or during the term of the
contract, where this is greater than 12 months.

The selection of the valuation method shall not be used

with the intention of avoiding the application of this
Directive.

8. In cases where a proposed contract specifies option
clauses, the basis for calculating the contract value shall be
the highest possible total inclusive of the option clauses.

9. No procurement requirement for a given amount of
services may be split up with the intention of avoiding the
application of this Article.

10. When calculating the amounts referred to in
paragraphs 1 to 4, account shall be taken not only of the
value of the services but also of the estimated value of the

supplies needed to carry out the services which are made
available to the supplier by the authorities.

11. Article 5 (1) (c) and (1) (d) of Directive 77/62/EEC
are applicable as regards the value in national currency of
the thresholds laid down in paragraphs 1 to 4 of this
Article, the calculation of these values, and the revision of
the method of calculation.

No C 23/6 Official Journal of the European Communities 31. 1. 91

TITLE II

TWO-TIER APPLICATION

_Article 9_

Contracts which have as their object services listed in
Annex I.A shall be awarded in accordance with the

provisions of Titles III to VI.

_Article 10_

Contracts which have as their object services listed in
Annex LB shall be awarded in accordance with Articles 16

and 18.

_Article 11_

Contracts which have as their object services listed in both
Annexes LA and LB shall be awarded in accordance with

the provisions of Titles III to VI where the value of the
services listed in Annex LA is greater than the value of the
services listed in Annex LB. Where this is not the case, they
shall be awarded in accordance with Articles 16 and 18.

_Article 12_

Where authorities conclude a public service concession
contract within the meaning of Article 1 (h), the advertising
rules as described in Articles 17, 18 and 19 shall apply
irrespective of whether the object of the concession is a
service within the meaning of Annex LA or Annex LB,
when its value is not less than ECU 5 000 000.

TITLE III

CHOICE OF AWARD PROCEDURES, AND RULES ON
DESIGN CONTESTS

_Article 13_

1. In awarding public service contracts the authorities
shall apply the procedures defined in Article 1, adapted to
this Directive.

2. The authorities may award their public service
contracts by negotiated procedure, with prior publication
of a tender notice in the following cases:

which are unacceptable under national provisions that
are in accordance with the provisions of Title VI
Chapter 1, in so far as the original terms of the
contract are not substantially altered. The authority
may not, in such a case, publish a tender notice where
it includes in such negotiated procedure all the
tenderers satisfying the criteria of Articles 26 to 32
which, during the prior open or restricted procedure,
have submitted tenders in accordance with the formal

requirements of the tendering procedure;

(b) in exceptional cases, when the nature of the services or
the risks attaching thereto do not permit overall
pricing;

(c) when the nature of the services to be procured, in
particular in the case of intellectual services and
services falling within category 6 of Annex IA, is such
that contract specifications cannot be established with
sufficient precision to permit the award of the contract
by selecting the best tender according to the rules
governing open or restricted procedures.

3. The authorities may award public service contracts by
negotiated procedure without prior publication of a tender
notice, in the following cases:

(a) in the absence of tenders or of appropriate tenders in
response to an open or restricted procedure in so far as
the original terms of the contract are not substantially
altered and provided that a report is communicated to
the Commission at its request;

(b) when, for technical or artistic reasons, or for reasons
connected with the protection of exclusive rights, the
services may only be carried out by a particular
supplier;

(c) when the contract concerned is part of the follow-up
to a design contest and must, according to the relevant
rules, be awarded to one of the winners of that

contest;

(d) in so far as is strictly necessary when, for reasons of
extreme urgency brought about by events
unforeseeable by the authorities in question, the time
limit for the open, restricted or negotiated procedures
referred to in Article 19 cannot be kept. The
circumstances invoked to justify extreme urgency must
not in any event be attributable to the authorities;

(a) in the event of irregular tenders in response to an open (e)
or restricted procedure or in the event of tenders

for additional services not included in the project
initially considered or in the contract first concluded

31. 1. 91 Official Journal of the European Communities No C 23/7

but which have, through unforeseen circumstances,
become necessary for the carrying out of the service
described therein, on condition that the award is made
to the supplier carrying out such service:

— when such services cannot be technically or
economically separated from the main contract
without great inconvenience to the contracting
authorities,

or

— when such services, although separable from the
execution of the original contract, are strictly
necessary to the later stages.

However, the aggregate estimated value of contracts
awarded for additional services may not exceed _50_ %
of the amount of the main contract;

(f) for new services consisting of the repetition of similar
services entrusted to the supplier to which the same
authorities awarded an earlier contract, provided that
such services conform to a basic project for which a
first contract was awarded according to the
procedures referred to in paragraph 4. As soon as the
first project is put up for tender, notice must be given
that this procedure might be adopted and the total
estimated cost of subsequent services shall be taken
into consideration by the authorities when they apply
the provisions of Article 8. This procedure may be
applied solely during the three years following the
conclusion of the original contract.

4. In all other cases, the authorities shall award their
public service contracts by the open procedure or by the
restricted procedure.

_Article 14_

1. This authority shall, within 15 days of the date on
which the request is received, inform any eliminated
candidate or tenderer who so requests in writing of the
reasons for rejection of his application or his tender, and,
in the case of a tender, the name of the successful

tenderer.

2. The authority shall inform candidates or tenderers who
so request of the grounds on which it decided not to award
a contract in respect of which a prior call for competition
was made, or to recommence the procedure. It shall also
inform the Office for Official Publications of the European
Communities of that decision.

3. For each contract awarded the authorities shall draw

up a written report which shall include at least the
following:

— its name and address, the subject and value of the

contract,

— the names of the candidates or tenderers admitted and

the reasons for their selection,

— the names of the candidates or tenderers rejected and
the reasons for their rejection,

— the name of the successful tenderer and the reasons for

his tender having been selected and, if known, any
share of the contract the successful tenderer may intend
to subcontract to a third party,

— for negotiated procedures, the circumstances referred to
in Article 13 which justify the use of these procedures.

This report, or the main features of it, shall be
communicated to the Commission at its request.

_Article IS_

1. Design contests shall be subject to the rules set out
below. When design contests are held as a separate
procedure, these rules are applicable only when the total
amount of prizes and payments to participants is not less
than ECU 200 000.

2. The admission of participants to design contests shall
not be limited by reference to the territory or part of the
territory of a Member State.

3. In the case of design contests with a limited number of
participants, authorities shall apply the rules laid down in
Article 24.

4. The jury shall be composed only of persons who have
no financial connections or special relationships with
participants in the contest. Whenever a particular
professional qualification is required from participants in a
contest, the majority of the jury members shall have the
same qualifications.

The jury shall be autonomous in its decisions. It shall take
its decisions based on projects presented in an anonymous
way, and solely on the grounds of the criteria indicated in
the invitation for projects in the sense of Annex IV.

5. Member States may oblige authorities to award
subsequent contracts to one of the winners of a design

contest.

No C 23/8 Official Journal of the European Communities 31. 1. 91

TITLE IV

COMMON RULES IN THE TECHNICAL FIELD

_Article 16_

1. The technical specifications defined in Annex II shall be
given in the general documents or the contractual
documents relating to each contract.

2. Without prejudice to the legally binding national
technical rules and in so far as these are compatible with
Community law, such technical specifications shall be
defined by the authorities by reference to national
standards implementing European standards or by
reference to European technical approvals or by reference
to common technical specifications.

3. An authority may depart from paragraphs if:

(a) the standards, European technical approvals or
common technical specifications do not include any
provisions for establishing conformity, or technical
means do not exist for establishing satifactorily the
conformity of a product to these standards, European
technical approvals or common technical
specifications;

(b) the application of paragraph 2 would prejudice the
application of Council Directive 86/361/EEC of
24 July 1986 on the initial stage of the mutual
recognition of type approval for telecommunications
terminal equipment ( [1] ), or Council Decision
87/95/EEC of 22 December 1986 on standardization

in the field of information technology and
telecommunications ( [2] ) or other Community
instruments in specific service or product areas;

(c) use of these standards, European technical approvals
or common technical specifications would oblige the
authority to acquire products or materials
incompatible with equipment already in use or would
entail disproportionate costs or disproportionate
technical difficulties, but only as part of a clearly
defined and recorded strategy with a view to
change-over, within a given period, to European
standards, European technical approvals or common
technical specifications;

(d) the project concerned is of a genuinely innovative
nature for which use of existing European standards,
European technical approvals or common technical
specifications would not be appropriate.

4. Authorities invoking paragraph 3 shall record,
wherever possible, the reasons for doing so in the tender
notice published in the _Official Journal of the European_
_Communities_ or in the contract documents and in all cases

shall record these reasons in their internal documentation

and shall supply such information on request to Member
States and to the Commission.

5. In the absence of European standards or European
technical approvals or common technical specifications, the
technical specifications:

(a) shall be defined by reference to the national technical
specifications recognized as complying with the basic
requirements listed in the Community Directives on
technical harmonization, in accordance with the
procedures laid down in those Directives, and in
particular in accordance with the procedures laid
down in Council Directive 89/106/EEC ( [3] );

(b) may be defined by reference to national technical
specifications relating to design and method of
calculation and execution of works and use of

materials;

(c) may be defined by reference to other documents.

In this case, it is appropriate to make reference in
order of preference to:

(i) national standards implementing international
standards accepted by the country of the
authority;

(ii) other national standards and national technical
approvals of the country of the authority;

(iii) any other standard.

6. Unless it is justified by the subject of the contract,
Member States shall prohibit the introduction into the
contractual clauses relating to a given contract of technical
specifications which mention products of a specific make or
source or of a particular process and which therefore
favour or eliminate certain undertakings. In particular, the
indication of trade marks, patents, types, or of specific
origin or production shall be prohibited. However, if such
indication is accompanied by the words 'or equivalent', it
shall be authorized in cases where the authorities are

unable to give a description of the subject of the contract
using specifications which are sufficiently precise and
intelligible to all parties concerned.

(!) OJ No L 217, 5. 8. 1986, p. 21.
( [2] ) OJNoL 36,7. 2. 1987, p. 31. ( [3] ) OJ No L 40, 11. 2. 1989, p. 12.

31. 1. 91 Official Journal of the European Communities No C 23/9

TITLE V

COMMON ADVERTISING RULES

_Article 17_

1. Authorities shall make known, by means of an
indicative notice to be published as soon as possible after
the beginning of their budgetary year, the intended total
procurement in each of the service categories listed in
Annex I.A which they envisage awarding during the
coming 12 months where the total estimated value, taking
account of the provisions of Article 8, is equal to or greater
than ECU 750 000. Intended contracts for the design of a
work within the meaning of Article 1 (c) of Directive
71/305/EEC and of which the estimated value is not less

than the threshold laid down in Article 8 (2) shall be
indicated separately in the notice.

2. Authorities who wish to award a public service
contract by open, restricted or, under the conditions laid
down in Article 13, negotiated procedure, shall make
known their intention by means of a notice.

3. Authorities who wish to award a public service
concession shall make known their intention by means of a
notice.

4. Authorities who wish to carry out a design contest shall
make known their intention by means of a notice.

_Article 18_

1. Authorities who have awarded a contract or a public
service concession, or which have held a design contest
shall send a notice of the results of the award procedure to
the Office for Official Publications of the European
Communities.

2. In cases of public service contracts for services listed in
Annex I.A, public service concessions and design contests,
the notice shall be published in accordance with the
provisions referred to in Article 19.

3. In the case of public service contracts for services listed
in Annex I.B, the authorities shall indicate in the notice
whether they agree on its publication.

4. The Commission shall draw up the rules for
establishing regular reports on the basis of such notices,
and for the publication of such reports in accordance with
the procedure laid down in Article 39 (3).

5. In so far as release of information on the contract

award would impede law enforcement or otherwise be
contrary _to_ the public interest or would prejudice the
legitimate commercial interests of a particular enterprise,
public or private, or might prejudice fair competition
between suppliers, such information may not be
published.

_Article 19_

1. The notices shall be drawn up in accordance with the
models set out in Annexes III, IV and V, and shall specify
the information requested in those models. The authorities
may not require any conditions but those specified in
Articles 28 and 29 when requesting information concerning
the economic and technical standards which they require of
suppliers for their selection (Point 13 of Annex III.B,
point 12 of Annex III.C, and point 11 of Annex III.D).

2. The following provisions of Directive 71/305/EEC
shall apply:

(i) Article 12 (6), (8) and (13) concerning publication of
notices;

(ii) Articles 13 to 15 concerning minimum time limits for
the phases of award procedures and communications
between authorities and candidates;

(iii) Articles 15a and 15b concerning minimum time limits
for the award of public service concessions and
contracts to be awarded by concessionnaires;

(vi) Article 19 concerning voluntary publication of notices
in the _Official_ _Journal_ _of_ _the_ _European_
_Communities._

3. The conditions for the establishment, transmission,
reception, translation, accumulation and distribution of the
notices referred to in paragraphs 1 and 2 and in Articles 17
and 18, and of the statistical reports provided for in
Articles 18 (4) and 38 and the reference in the notices to
particular CPC positions within the categories of services
listed in Annexes I.A and I.B may be modified in
accordance with the procedure laid down in
Article 39 (3).

TITLE VI

Chapter 1

Common rules on participation

_Article 20_

Contracts shall be awarded on the basis of the criteria laid

down in Chapter 3, taking into account Article 21, after

No C 23/10 Official Journal of the European Communities 31. 1. 91

the suitability of the suppliers not excluded under
Article 26 has been checked by the authorities in
accordance with the criteria referred to in Articles 28 and

29.

_Article 21_

1. Authorities may take account of variants where the
criterion for the award of the contract is that of the

economically most advantageous tender. They shall
indicate in the tender notice whether or not variants will be

considered. Where applicable, any specific requirements for
the presentation of variants shall be stated in the tender
notice or in the contract documents.

Variants must not deviate from minimum specifications
which the authority may have established. Minimum
specifications shall be stated in the tender notice or in the
contract documents.

2. Authorities which have admitted variants pursuant to
paragraph 1 may not reject a variant on the sole grounds
that it would lead, if successful, to a supply contract rather
than a public service contract within the meaning of this
Directive.

_Article 22_

1. In the contract documents, the authority may ask the
tenderer to indicate in his tender any share of the contract
he may intend to subcontract to third parties.

This indication shall be without prejudice to the question
of the principal supplier's liability.

2. Where authorities intend to award a public service
concession, they may:

— either require the concessionnaire to award contracts
representing a minimum of 30 % of the total value of
the services for which the concession contract is to be

awarded, to third parties, at the same time providing
the option for candidates to increase this percentage.
This minimum percentage shall be specified in the
concession contract,

— or request the candidates for concession contracts to
specify in their tenders the percentage, if any, of the
total value of the concession contract which they intend
to assign to third parties.

_Article 23_

1. Tenders may be submitted by groups of suppliers.
These groups may not be required to assume a specific legal

form in order to submit the tender; however, the group
selected may be required to do so when it has been
awarded the contract.

2. Candidates or tenderers may not be rejected on the
grounds that they are either natural or legal persons. Legal
persons, however, may be required to indicate in the tender
or the request for participation the names and relevant
professional qualification of the staff to be responsible for
the performance of the service.

3. Paragraph 2 is without prejudice to national rules
which establish conditions for the setting up of, or the
carrying out of particular activities by, legal persons
governed by the law of the Member States concerned.

_Article 24_

1. In restricted and negotiated procedures the authorities
shall, on the basis of information given relating to the
supplier's position as well as to the information and
formalities necessary for the evaluation of the minimum
conditions of an economic and technical nature to be

fulfilled by him, select from among the candidates with the
qualifications required by Articles 26 to 32 those whom
they will invite to submit a tender or to negotiate.

2. Where the authorities award a contract by restricted
procedure, they may prescribe the range within which the
number of suppliers which they intend to invite will fall. In
this case the range shall be indicated in the contract notice.
The range shall be determined in the light of the nature of
the service to be carried out. The range must number at
least five suppliers and may be up to 20.

In any event, the number of candidates invited to tender
shall be sufficient to ensure genuine competition.

3. Where the authorities award a contract by negotiated
procedure as referred to in Article 13, the number of
candidates admitted to negotiate may not be less than three
provided that there is a sufficient number of suitable
candidates.

4. Each Member State shall ensure that authorities issue

invitations without discrimination to those nationals of

other Member States who satisfy the necessary
requirements and under the same conditions as to its own
nationals.

31. 1. 91 Official Journal of the European Communities No C 23/11

_Article 25_

1. The authority may state in the contract documents, or
be obliged by a Member State to do so, the authority or
authorities from which a candidate may obtain the
appropriate information on the obligations relating to the
employment protection provisions and the working
conditions which are in force in the Member State, region
or locality in which the services are to be performed and
which shall be applicable to the services provided on site
during the performance of the contract.

2. The authority which supplies the information referred
to in paragraph 1 shall request the tenderers or those
participating in the contract procedure to indicate that they
have taken account, when drawing up their tender, of the
obligations relating to employment protection provisions
and the working conditions which are in force in the place
where the service is to be carried out. This shall be without

prejudice to the application of the provisions of Article 34
concerning the examination of abnormally low tenders.

Chapter 2

Criteria for qualitative selection

_Article 26_

Any supplier may be excluded from participation in the
contract who:

(a) is bankrupt or is being wound up, whose affairs are
being administered by the court, who has entered into
an arrangement with creditors, who has suspended
business activities or who is in any analogous situation
arising from a similar procedure under national laws
and regulations;

(b) is the subject of proceedings for a declaration of
bankruptcy, for an order for compulsory winding up
or administration by the court or for an arrangement
with creditors or of any other similar proceedings
under national laws or regulations;

(c) has been convicted of an offence concerning his
professional conduct by a judgement which has the
force of _res_ _judicata;_

(d) who has been guilty of grave professional misconduct
proven by any means which the authorities can
justify;

(e) has not fulfilled obligations relating to the payment of
social security contributions in accordance with the
legal provisions of the country in which he is
established or with those of the country of the
authority;

(f) has not fulfilled obligations relating to the payment of
taxes in accordance with the legal provisions of the
country of the authority;

(g) is guilty of serious misrepresentation in supplying the
information required under this chapter.

Where the authority requires of the supplier proof that
none of the cases quoted in (a), (b), (c), (e), or (f) applies to
him, it shall accept as sufficient evidence:

—' for (a), (b), or (c), the production of an extract from the
'judicial record' or, failing this, of an equivalent
document issued by a competent judicial or
administrative authority in the country of origin or in
the country whence that person comes showing that
these requirements have been met,

— for (e) or (f), a certificate issued by the competent
authority in the Member State concerned.

Where the country concerned does not issue such
documents or certificates, they may be replaced by a
declaration on oath made by the person concerned before a
judicial or administrative authority, a notary or a
competent professional or trade body, in the country of
origin or in the country whence that person comes.

Member States shall, within the time limit referred to in
Article 19, designate the authorities and bodies competent
to issue these documents and shall forthwith inform the

other Member States and the Commission thereof.

_Article 27_

1. Any candidate or tenderer may be requested to prove
his enrolment, as prescribed in his country of
establishment, in one of the professional or trade registers
or to provide a declaration or certificate as described in
paragraph 3.

2. In so far as candidates for a public contract have to
possess a particular authorization or to be members of a
particular organization in their home country in order to be
able to perform the service concerned, the authority may
require them to prove that authorization or membership.

3. The relevant professional or trade registers or
declarations or certificates are:

— in Belgium, the 'registre du commerce —
Handelsregister',

— in Denmark, the 'Erhvervs-og Selskabsstyreisen' (the
'Aktieselskabsregistret'; 'Foreningsregistret', or
'Handelsregistret'),

— in Germany, the 'Handelsregister' and the
'Handwerksrolle',

— in Greece, a declaration on the exercise of the
profession concerned made on oath before a notary
may be required,

No C 23/12 Official Journal of the European Communities 31. 1. 91

— in Spain, the 'Registro Oficial de Contratistas del
Ministerio de Industria y Energia',

— in France, the 'registre du commerce', and the
'repertoire des metiers',

— in Italy, the 'Registro della Camera di commercio,
industria, agricoltura e artigianato' or the 'Registro
delle commissioni provinciali per Partigianato',

— in Luxembourg, the 'registre aux firmes' and the 'role
de la Chambre des metiers',

— in the Netherlands, the 'Handelsregister',

— in Portugal, the 'Commissao de Alvaras de Empresas de
Obras Publicas e Particulares' (CAEOPP) or the
'Registo Nacional das Pessoas Colectivas',

— in the United Kingdom and Ireland, the supplier may be
requested to provide a certificate from the 'Registrar of
Companies' or the 'Registrar of Friendly Societies' or, if
he is not so certified, a certificate stating that the person
concerned has declared on oath that he is engaged in
the profession in question in the country in which he is
established in a specific place under a given business

_Article 28_

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

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

(b) the presentation of the supplier's balance sheets or
extracts therefrom, where publication of the balance
sheets is required under company law in the country in
which the supplier is established,

(c) a statement of the undertaking's overall turnover and
its turnover in respect of the services to which the
contract relates for the three previous financial years.

2. The authorities shall specify in the notice or in the
invitation to tender which reference or references they have
chosen and which references other than those mentioned

under paragraph 1 are to be produced.

3. If, for any valid reason, the supplier is unable to
provide the references requested by the authority, he may
prove his economic and financial standing by any other
document which the authority considers appropriate.

_Article 29_

1. The ability of suppliers to perform services may be
evaluated in particular with regard to their skills,
efficiency, experience and reliability.

2. Evidence of the suppliers' technical capability may be
furnished by one or more of the following means according
to the nature, quantity and purpose _of_ the services to be
supplied:

(a) the suppliers' educational and professional
qualifications and/or those of the firm's managerial
_staff,_ and in particular, those of the person or persons
responsible for performing the services;

(b) a list of the principal services supplied in the past three
years, with the sums, dates and recipients, public or
private, involved;

— where supplied to authorities, evidence to be in the
form of certificates issued or countersigned by the
competent authority,

— where supplied to private purchasers, delivery to
be certified by the purchaser or, failing this, simply
declared by the supplier _to_ have been effected;

(c) indication of the technicians or technical bodies
involved, whether or not belonging directly to the
supplier, especially those responsible for quality
control;

(d) a statement of the suppliers' average annual
manpower and the number _of_ managerial staff for the
last three years;

a statement of the tool, plant or technical equipment
available to the supplier for carrying out the services;

(f) a description of the suppliers' measures for ensuring
quality, and his study and research facilities;

(g) where the services to be provided are complex or,
exceptionally, are required for a special purpose, a
check carried out by the authority or on its behalf by a
competent official body of the country in which the
supplier is established, subject to that body's
agreement, on the technical capacities of the supplier
and, if necessary, on his study and research facilities
and quality control measures.

(h) indication of the share of the contract which the
supplier may intend to sub-contract.

3. The authority shall specify in the notice or in the
invitation to tender which references it wishes to receive.

31. 1. 91 Official Journal of the European Communities No C 23/13

4. The extent of the information referred to in Article 28

and paragraphs 1 to 3 of this Article must be confined to
the subject of the contract. Authorities shall take into
consideration the legitimate interests of the suppliers as
regards the protection of their technical or trade-related

secrets.

_Article 30_

Shoud authorities require the production of certificates
drawn up by independent bodies for attesting conformity
of the supplier to certain quality assurance standards,
reference should be made to quality assurance systems
based on the relevant EN 29000 European standards series
certified by bodies conforming to the EN 45000 European
standards series. Authorities shall recognize equivalent
certificates from bodies established in other Member States.

They shall also accept other evidence of equivalent quality
assurance measures from suppliers who have no access to
such certificates, or no possibility of obtaining them within
the relevant time limits.

_Article 31_

Within the limits of Articles 26 to 29, the authority may
invite the suppliers to supplement the certificates and
documents submitted or to clarify them.

_Article 32_

1. Member States who have official lists of recognized
suppliers must adapt them to the provisions of
Articles _26_ (a) to (d) and (g) and of Articles 27 to 29.

2. Suppliers registered in these lists may, for each
contract, submit to the authority a certificate of
registration issued by the competent authority. This
certificate shall state the references which enabled them to

be registered in the list and the classification given in this
list.

3. Certified registration in such lists by the competent
bodies shall, for the authorities of other Member States,
constitute a presumption of suitability corresponding to the
supplier's classification only as regards Articles 26 (a) to (d)
and (g), 27, 28 (b) and (c) and 29 (a).

Information which can be deduced from registration in
official lists may not be questioned. However, with regard
to the payment of social security contributions, an
additional certificate may be required of any registered
supplier whenever a contract is offered.

The authorities of other Member States shall apply the
above provisions only in favour of suppliers who are
established in the country holding the official list.

Chapter 3

Criteria for the award of contracts

_Article 33_

1. Without prejudice to national law, regulation or
administrative provision on the remuneration of certain
services, the criteria on which the authority shall base the
award of contracts may be:

(a) when the award is made to the economically most
advantageous tender, various criteria relating to the
contract: for example, quality, technical merit,
aesthetic and functional characteristics, technical
assistance and service, delivery date and period of
completion, price; or

(b) the lowest price only.

2. Where the contract is _to_ be awarded to the

economically most advantageous offer, authorities shall
state in the contract documents or in the tender notice the

award criteria which they intend to apply and the intended
ranking or weighting they intend to use.

3. Paragraph 1 shall not apply when a Member State
bases the award of contracts on other criteria, within the
framework of rules in force at the time of the adoption of
this Directive whose aim it is to give preference to certain
tenderers, on condition that the rules invoked are
compatible with the Treaty.

_Article 34_

1. If, for a given contract, tenders appear to be
abnormally low in relation to the transaction, the authority
shall request, in writing, details of the constituent elements
of the tender concerned. It shall, in particular, enquire
whether the tenderer is an authority within the meaning of
Article 1 (b), whether the tenderer is in receipt of any form
of State aid and whether the aid has been notified to and

received the approval from the Commission pursuant to
Article 93 (3) of the Treaty.

Authorities shall verify the constituent elements of the
tenders concerned, taking account of any explanations
received, before deciding on the award of the contract or
on the rejection of a tender.

No C 23/14 Official Journal of the European Communities 31. 1. 91

2. In the case of a tender submitted by a public authority
or a public enterprise, the authority shall in particular
enquire whether the tender is influenced by public funds
allocated for

(a) the setting-off of operating losses;

(b) the provision of capital;

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

(d) the granting of financial advantages by foregoing
profits or the recovery of sums due;

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

(f) compensation for financial burdens imposed by the
public authorities.

It shall inform the Commission if it intends to award a

contract to a tenderer whose tender is influenced by any of
these characteristics.

3. Authorities may reject tenders which are abnormally
low owing to the receipt of State aid only if they have
consulted the tenderer and if the tenderer has not been able

to show that the aid in question has been notified to the
Commission pursuant to Article 93 (3) of the Treaty or has
received the Commission's approval. Authorities which
reject a tender under these circumstances shall inform the
Commission thereof.

4. If the contract documents provide for its award at the
lowest price tendered, the authority must communicate to
the Commission the rejection of tenders which it considers
to be too low.

TITLE VII

Final provisions

_Article 35_

Until 31 December 1992, this Directive shall not prevent
the application of existing national provisions on the award
of public service contracts which have as their objective the
reduction of regional disparities and the promotion of job
creation in regions whose development is lagging behind
and in declining industrial regions, on condition that the
provisions concerned are compatible with the Treaty, in
particular with the principles of non-discrimination on
ground of nationality, freedom of establishment and
freedom to provide services, and with the Community's
international obligations.

_Article 36_

1. Member States shall inform the Commission of

national provisions covered by Articles 33 (3) and 35 and
of the rules for applying them.

2. Member States concerned shall forward to the

Commission, every year, a report describing the
implementation of these provisions. The reports shall be
submitted to the Advisory Committee for Public
Contracts.

_Article 37_

The calculation of time limits shall be made in accordance

with Council Regulation (EEC, Euratom) No 1182/71 of
3 June 1971, determining the rules applicable to periods,
dates and time limits (*).

_Article 38_

1. In order to complete the information obtained on the
basis of the award notices under Article 18, Member States
shall each year, at the latest by 31 October, forward to the
Commission a statistical report for the preceding year
concerning _inter alia_ the total value of contracts awarded
which are below the thresholds laid down in Article 8 and

which would otherwise have been covered by this
Directive. Details shall be fixed according to the procedure
laid down in Article 39 (3).

2. The Commission shall determine the nature of any
additional statistical information, which is required in
accordance with this Directive, in accordance with the
procedure laid down in Article 39 (3).

_Article 39_

1. The Commission shall be assisted by the Advisory
Committee for Public Contracts set up by Decision
71/306/EEC.

2. As regards procurement of telecommunications services
falling within category 5 of Annex I.A, the Commission
shall be assisted by the Advisory Committee on
Telecommunications Procurement set up by Directive
90/531/EEC.

3. Where reference is made to the procedure laid down in
this paragraph, the representative of the Commission shall
submit to the Committee a draft of the measures to be

taken. The Committee shall deliver its opinion on the draft
within a time limit which the chairman may lay down
according to the urgency of the matter, if necessary by
taking a vote.

(!) OJNoL 124, 8. 6. 1971, p. 1.

31. 1. 91 Official Journal of the European Communities No C 23/15

The opinion shall be recorded in the minutes; in addition,
each Member State shall have the right to ask to have its
position recorded in the minutes.

The Commission shall take the utmost account of the

opinion delivered by the Committee. It shall inform the
Committee of the manner in which its opinion has been
taken into account.

4. The Committees shall examine, on the initiative of the
Commission or at the request of a Member State, any
question relating to the application of this Directive.

_Article 40_

1. The Member States shall inform the Commission of

any general difficulties encountered, in law or in fact, by
their undertakings in securing the award of public service
contracts or public service concessions in third countries.

2. The Commission shall report to the Council, before
31 December 1991 and then periodically, on the opening
up of public service contracts and concessions in third
countries and on the state of negotiations with these
countries on this subject in the GATT framework or
elsewhere.

3. Whenever the Commission establishes, either on the
basis of the reports referred to in paragraph 2, or on the
basis of other information, that a third country, as regards
the award of public service contracts or concessions,

(a) does not grant Community undertakings effective
access comparable to that granted by the Community
to undertakings from that country;

(b) does not grant Community undertakings national
treatment or the same competitive opportunities as
available to national undertakings;

or

(c) grants undertakings from other third countries more
favorable treatment than Community undertakings;

the Commission may initiate negotiations in order to
remedy the situation.

4. Under the conditions referred to in paragraph 3(b) and
(c), the Commission may decide, in addition to action
taken pursuant to that paragraph, that the award of public
service contracts or concessions to:

(b) undertakings affiliated to the undertakings specified in
(a) and having their registered office in the
Community but having no effective and continuous
link with the economy of a Member State;

(c) tenders which have as their object services originating
in the country in question;

may be suspended or restricted during a period to be
determined in the decision.

The Commission may decide on the appropriate measures
either on its own initiative or at the request of a Member
State, after consulting the Member States in accordance
with the procedure laid down in Article _39 {3)._ Where the
Commission is asked to take action by a Member State, it
shall take a decision within a maximum period of three
months of receipt of the request.

It shall notify the Council and the Member States of the
decisions taken.

Any Member State may refer the Commission's decision to
the Council within a maximum period of four weeks from
the date of the decision.

The Council, acting by qualified majority, may take a
different decision within a maximum period of three
months of such referral.

5. This Article is without prejudice to the obligations of
the Community in relation to non-Member countries.

_Article 41_

Article 1 (1) of Directive 89/665/EEC ( [J] ) is replaced by
the following:

'1. The Member States shall take the measures

necessary to ensure that, as regards contract award
procedures falling within the scope of Directives
71/305/EEC, 77/62/EEC, and .../.../EEC (*),
decisions taken by the contracting authorities may be
reviewed effectively and, in particular, as rapidly as
possible in accordance with the conditions set out in the
following Articles, and, in particular, Article 2 (7) on
the grounds that such decisions have infringed
Community law in the field of public procurement or
national rules implementing that law.

(*) OJ No L 00, 00. 00. 0000, p. 0.'

(a) undertakings governed by the law _of_ the country in
question; (!) OJ No L 395, 30. 12. 1989, p. 33.

No C 23/16 Official Journal of the European Communities 31. 1. 91

_Article 42_

Not later than three years after the time limit for
compliance with this Directive the Commission, acting in
close cooperation with the Committees referred to in
Article 39, shall review the manner in which this Directive
has operated including, in particular, the effects of the
application of the Directive to procurement of services
listed in Annex I. A and the provisions concerning technical
standards. It shall evaluate, in particular, the prospects for
the full application of the Directive to procurement of other
services listed in Annex LB, and the effects of in-house
performance of services on the effective opening-up of the
market in this area. It shall make the necessary proposals to
adapt the Directive accordingly.

_Article 43_

Member States shall implement the laws, regulations and
administrative provisions necessary to comply with this

Directive by 1 March 1992. They shall forthwith inform
the Commission thereof.

When Member States adopt these provisions, these shall
contain a reference to this Directive or shall be

accompanied by such reference at the time of their official
publication. The procedure for such reference shall be
adopted by the Member States.

_Article 44_

Member States ensure that the texts of the basic provisions
of domestic law, whether laws, regulations or
administrative provisions, which they adopt to implement
this Directive, are communicated to the Commission.

_Article 45_

This Directive is addressed to the Member States.

31. 1. 91 Official Journal of the European Communities No C 23/17

ANNEX _LA_

Services in the sense of Article 9

Category

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

Title

Maintenance and repair services

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

Air transport services of passengers and freight, except
transport of mail

Transport of mail by land, except rail, and by air

Telecommunications services

Financial services:

(a) Insurance services

(b) Banking and investment services remunerated by fees,
commissions, or comparable types of remuneration ( [2] )

Computer and related services

R&D services ( [3] )

Accounting, auditing and bookkeeping services

Market research and public opinion polling services

Management consulting services and related services

Architectural services;

Engineering services and integrated engineering services;

Urban planning and landscape architectural services;

Related scientific and technical consulting services;

Technical testing and analysis services

Advertising services

Building-cleaning services and property management services

Publishing and printing services on a fee or contract basis

Sewage and refuse disposal; sanitation and similar services

CPC division, group, class
or sub-class

6112, 6122, 633, 886

712 (except 71235), 7512,
87304

73 (except 7321)

71235, 7321

752 (!)

ex 81, 812, 814

84

85

862

864

865, 866 ( [4] )

867

871

874, 82201, 82202

88442

94

f [1] ) Except voice telephony, telex, radiotelephony, paging and satellite services.
( [2] ) Except activities involving primary government bonds and activities involving public debt management.
( [3] ) As defined in the ninth recital.
( [4] ) Except arbitration and conciliation services.

No C 23/18 Official Journal of the European Communities 31. 1. 91

_ANNEX LB_

Services in the sense of Article 10

CPC division, group,

class or sub-class

64

711

72

74

ex 81

861

872

873 (except 87304)

92

93

96

Category

17

18

19

20

21

22

23

24

25

26

27

28

Title

Hotel and restaurant services

Transport services by rail

Water transport services

Supporting and auxiliary transport services

Financial services

Banking and investment services not remunerated by fees,
commissions, or comparable types of remuneration

Legal services

Placement and supply services of personnel

Investigation and security services (except armoured car
services)

Education and vocational educational services

Health and social services

Recreational, cultural and sporting services

Other services

3 1 . 1. 91 Official Journal of the European Communities No C 2 3 / 1 9

_ANNEX II_

Definition of certain technical specifications

For the purpose of this Directive the following terms shall be defined as follows:

1. 'Technical specifications': the totality of the technical prescriptions contained in particular in the tender
documents, defining the characteristics required of a work, material, product or supply, which permits a
work, a material, a product or a supply to be described in a manner such that it fulfils the use for which it is
intended by the contracting authority. These technical prescriptions shall include levels of quality,
performance, safety or dimensions, including the requirements applicable to the material, the product or to
the supply as regards quality assurance, terminology, symbols, testing and test methods, packaging,
marking or labelling. They shall also include rules relating to design and costing, the test, inspection and
acceptances for works and methods or techniques of construction and all other technical conditions which
the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the
finished works and _to_ the materials or parts which they involve.

2. 'Standard': a technical specification approved by a recognized standardizing body for repeated and
continuous application, compliance with which is in principle not compulsory.

3. 'European standard': a standard approved by the European Committee for Standardization (CEN) or by the
European Committee for Electrotechnical Standardization (Cenelec) as 'European Standards' or
'Harmonization documents (HD)' according to the common rules of these organizations or by the European
Telecommunications Standards Institute (ETSI) as a 'European Telecommunication Standard' (ETS).

4. 'European technical approval': a favourable technical assessment of the fitness for use of a product, based
on fulfilment of the essential requirements for building works, by means of the inherent characteristics of
the product and the defined conditions of applications and use. The European agreement shall be issued by
an approval body designated for this purpose by the Member State.

5. 'Common technical specification': a technical specification laid down in accordance with a procedure
recognized by the Member States to ensure uniform application in all Member States which has been
published in the _Official Journal of the European_ _Communities._

6. 'Essential requirements': requirements regarding safety, health and certain other aspects in the general
interest, that the construction works can meet.

No C 2 3 / 2 0 Official Journal of the European Communities 31. 1. 91

_ANNEX III_

MODEL CONTRACT NOTICES

A. Prior information

1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the authority, and, if
different, of the service from which additional information may be obtained;

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

3. Estimated date for initiating the award procedures, per category;

4. Other information;

5. Date of dispatch of the notice;

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

B. Open procedure

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

2. Category of service and description. CPC classification.

3. Place of delivery.

4. (a) Indication whether the execution of the service is by law, regulation or administrative provision

reserved to a particular profession.

(b) Reference of the law, regulation or administrative provision.

(c) Indication whether legal persons should indicate the names and professional qualifications of the staff
to be responsible for the execution of the service.

5. Indication whether suppliers can tender for a part of the services concerned.

6. Variants:

(a) minimum specifications;

(b) desirable elements;

(c) where applicable, prohibition on variants.

7. Duration of contract or time limit for completion of the service.

8. (a) Name and address of the service from which the relevant documents may be requested.

(b) Final date for making such requests.

(c) Where applicable, the amount and terms of payment of any sum payable for such documents.

9. (a) Persons authorized to be present at the opening of tenders.

(b) Date, time and place of the opening.

10. Where applicable, any deposits and guarantees required.

11. The main terms concerning financing and payment and/or references to the relevant provisions.

31. 1. 91 Official Journal of the European Communities No C 23/21

12. Where applicable, the legal form to be taken by the grouping of suppliers winning the contract.

13. Information concerning the suppliers' own position, and information and formalities necessary for an
appraisal of the minimum economic and technical standards required of the supplier.

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

15. Criteria for the award of the contract and their ranking. Criteria other than that of the lowest price shall
be mentioned if they do not appear in the contract documents.

16. Other information.

17. Date of dispatch of the notice.

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

C. Restricted procedure

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

2. Category _of_ service and description. CPC classification.

3. Place of delivery.

4. (a) Indication whether the execution of the service is by law, regulation or administrative provision

reserved _to_ a particular profession.

(b) Reference of the law, regulation or administrative provision.

(c) Indication whether legal persons should indicate the names and professional qualifications of the staff
to be responsible for the execution of the service.

5. Indication of whether the supplier can tender for a part of the services concerned.

_6._ Envisaged number of suppliers, or range, which will be invited to tender.

7. Variants:

(a) minimum specifications;

(b) desirable elements;

(c) where applicable, prohibition on variants.

8. Duration of contract, or time limit for completion of the service.

9. Where applicable, the legal form to be assumed by the grouping of suppliers winning the contract.

10. (a) Where applicable, justification for the use of the accelerated procedure.

(b) Final date for the receipt of requests to participate.

(c) Address to which they must be sent.

(d) Language(s) in which they must be drawn up.

11. Final date for the dispatch of invitations to tender.

12. Any deposits and guarantees required.

13. Information concerning the supplier's own position, and the information and formalities necessary for an
appraisal of the minimum economic and technical standards required of him.

No C 23/22 Official Journal of the European Communities 31. 1. 91

14. Criteria for the award of the contract and their ranking if these are not stated in the invitation to
tender.

15. Other information.

16. Date of dispatch of the notice.

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

D. Negotiated procedure

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

2. Category of service and description. CPC classification.

3. Place of delivery.

4. (a) Indication whether the execution of the service is by law, regulation or administrative provision

reserved to a particular profession.

(b) Reference of the law, regulation or administrative provision.

(c) Indication whether legal persons should indicate the names and professional qualifications of the staff
to be responsible for the execution of the service.

5. Indication of whether the supplier can tender for a part of the services concerned.

6. Envisaged number of suppliers, or range, which will be invited to tender.

7. Variants:

(a) minimum specifications;

(b) desirable elements;

(c) where applicable, prohibition on variants.

8. Duration of contract, or time limit for completion of the service.

9. Where applicable, the legal form to be assumed by the grouping of suppliers winning the contract.

10. (a) Where applicable, justification for the use of the accelerated procedure.

(b) Final date for the receipt of requests to participate.

(c) Address to which they must be sent.

(d) Language(s) in which they must be drawn up.

11. Any deposits and guarantees required.

12. Information concerning the supplier's own position, and the information and formalities necessary for an
appraisal of the minimum economic and technical standards required of him.

13. Where applicable, the names and addresses of suppliers already selected by the awarding authority.

14. Other information.

15. Date of dispatch of the notice.

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

17. Date(s) of previous publications in the _Official Journal of the European_ _Communities._

3 1 . 1. 91 Official Journal of the European Communities No C 2 3 / 2 3

E. Contract awards

1. Name and address of the authority.

2. Award procedure chosen; in case of negotiated procedure without prior publication of a tender notice,
justification (Article 13 (3)). CPC classification.

3. Category of service and description.

4. Date of award of contract.

5. Criteria for award of contract.

6. Number of tenders received.

7. Name and address of supplier(s).

8. Price or range of prices (minimum/maximum) paid.

9. Where appropriate, value and proportion of contract likely to be sub-contracted to third parties.

10. Other information.

11. Date of publication of the tender notice in the _Official journal of the European_ _Communities._

12. Date of dispatch of the notice.

13. Date of receipt of the notice by the Office for Official Publications _oi_ the European Communities.

14. In the case of contracts for services listed in Annex I.B, agreement, by the contracting authority, on
publication of the notice (Article 18 (3)).

N o C 2 3 / 2 4 Official Journal of the European Communities 3 1 . 1. 91

_ANNEX_ _IV_

A. Design contest notices

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

2. Project description.

3. Nature of the contest: open or restricted.

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

5. In the case of restricted contests:

(a) the envisaged number of participants, or range;

(b) where applicable, names of already selected participants;

(c) the criteria to be applied in the selection of participants;

(d) final date for receipt of requests to participate.

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

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

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

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

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

11. Where applicable, details on payments to all participants.

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

13. Other information.

14. Date of dispatch of the notice.

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

B. Results of design contests

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

2. Project description.

3. Total number of participants.

4. Number of foreign participants.

5. Winner(s) of the contest.

6. Where applicable, the prize(s).

7. Other information.

8. Reference of the design contest notice.

9. Date of dispatch of the notice.

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

3 1 . 1. 91 Official Journal of the European Communities No C 2 3 / 2 5

_ANNEX_ _V_

A. Model notice on public service concessions

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

2. (a) The place of delivery.

(b) The subject of the concession, nature and extent of the services to be provided.

(c) Duration of contract.

3. (a) Final date for receipt of candidatures.

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

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

4. Personal, technical and financial conditions to be fulfilled by the candidates.

5. The criteria for the award of the contract.

6. Where applicable, the minimum percentage of the total value of the concession contract to be awarded to
third parties.

7. Other information.

8. Date of dispatch of the notice.

9. Date od receipt of the notice by the Office for Official Publications of the European Communities.

B. Concession awards

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

2. The subject of the concession, nature and extent of the services _to_ be provided.

3. Date of award of the concession.

4. Number of tenders received.

5. Name and address of the concessionnaire.

6. Other information.

7. Date of publication of the tender notice in the _Official Journal of the European_ _Communities._

8. Date of dispatch of the notice.

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