CELEX: 51988PC0042
Language: en
Date: 1988-02-05
Title: Third alteration of the Proposal for a COUNCIL DIRECTIVE amending Directive 77/62/EEC relating to the coordination of procedures on the award of public supply contracts and deleting certain provisions of Directive 80/767/EEC (presented by the Commission pursuant to Article 149(2) of the EEC Treaty)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (88) 42
Vol. 1988/0009
 ---pagebreak--- Disclaimer
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                            COM(88 ) 42 final
                                                           Brussels , 5 February 1988
                                      Third alteration of the
                                           Proposal for a
                                         COUNCIL DIRECTIVE
  amending Directive 77 / 62 / EEC relating to the coordination of procedures
        on the award of public supply contracts and deleting certain
                               provisions of Directive 80 / 767 / EEC
(presented by the Commission pursuant to Article 149(2 ) of the EEC Treaty )
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 ---pagebreak---                                          - 2 -
  Explanatory Mémorandum
  I.   General considérations
       The re-examined proposal contained in this document reflects the
       position which the Commission has taken vis -a-vis
I
       - the Council common position of October 1987, along the lines set •
          out in the Commission 's communication to the European Parliament
          on this matter , and
       - the second reading by the European Parliament of December 1987,
          along the lines set out by Lord Cockfield in the plenary sitting .
  II . Analysis of the new proposais
  1.   The proposal corresponds to the common position adopted by the
       Council of Ministers in October 1987, except for the underlined
       part .
  2.   As regards the underlined parts , a number of provisions         maintain
       earlier proposals of the Commission which were supported by the
       European Parliament :
       - Article 3 adding a new Article 2 to tt.e directive concerning the
          exclusion of part of the defence sector ;
           Article 27 concerning the Council decision on the Commission
          proposal for a directive on compliance and legal remedies .
  3.    The   other underlined parts are        new and  concern the   following
       matters    :
       a ) The proposed new Article 1 ( d ) - ( f ) and Article 6 ,      and the
           deletion     of  Article  2(1 )  and  of Article  4  are  part   of  a
            reorganisation of the first Articles of the directive .          This
                                                                             This
            aims at putting all relevant definitions in Article 1 and at
           dealing exclusively in Article 6 with the conditions of use of
            the award procedures .     These transfers clarify the structure of
            the directive , but do not affect its substance .
            This modification
                           tion supersedes Amendment No . 2 of the European
            Parliament , which would otherwise have been acceptable to the
            Commission ;
       b ) The threshold value in Article 5 ( 1a , second indent ) is revised
            to take account of the exchange rate developments during the
            reference period which ended 31 October 1987 .          This is
                                                                    This   is in
                                                                               in
           accordance with the provisions of Article 3 of directive
           80 / 767/ EEC and following consultation of the Advisory Committee
           on Public Procurement ;
                                                                                  5
 ---pagebreak---                                  - 3 -
c ) The proposed Article 7(2 ) establishes appropriate derogations
    from the obligation to use European standards or common
    technical specifications for those situations where that
    obligation would create serious practical problems .             The
                                                                     The
    Commission proposal follows the Amendment from the European
    Parliament ;
d ) The proposed new Article 17(1e ), is to permit the exclusion of
    enterprises which distort competition to their economic
    advantage by failure to comply with certain costly statutory
    obligations .    This modification makes the previous text clearer
    as to its limited objectives and as regards paragraph 1 follows
    the  Amendment    of   the  European  Parliament .     The   changes
    concerning paragraphs 2 and 3 are necessary in order to allow
    evidence of compliance to be obtained in an appropriate way .
e ) The  addition of paragraph 3 to the proposed Article 23 ,
    concerning regional preferences , corresponds to the position
    taken by a number of delegations in the Council of Ministers on
    5 October 1987 .
f ) The inclusion in Annex I of definitions of purchasing entities
    in Greece ,    Spain and Portugal is a Commission initiative to
    consolidate the text of Annex I in accordance with the Accession
    Treaties    between   the  European  Communities   and   the   three
    countries concerned .
                                                                         2
 ---pagebreak---                            Third Alteration of the
                                Proposal for a
                              COUNCIL DIRECTIVE
amending Directive 77/62 / EEC relating to the coordination of procedures
     on the award of public supply contracts and repealing certain
                     provisions of directive 80 / 767 / EEC
The Council of the European Communities ,
Having regard to the Treaty establishing the                European Economic
Community and in particular Article 100 A thereof ,
                                                         1
Having regard to the proposal from the Commission
                                                 2
In cooperation with the European Parliament
Having regard to the opinion of the Economic and Social Committee ^
Whereas those measures need to be taken which aim at progressively
establishing the internal market , in a period up to 31 December 1992 ;
whereas  the   internal   market   consists   of  an   area  without   internal
frontiers in which free circulation of goods ,         persons ,  services and
capital is guaranteed ;
Whereas successive European Councils have drawn conclusions concerning
the need to realize a single internal market ;
1
     0J No . C 173 , 11.7.1986 , p . 4 , 0J No C 161 , 19.6.1987 , p . 10
     0J No . C 303, 13.11.1987, p . 3
2
     Opinions delivered on 9 July 1987 ( 0J No . C 246, 14.9.198 7, p. 58) and on
     15 December 1987
3
     0J No . C 68 , 16.3.1987, p. 7
                                                                                 U­
 ---pagebreak---                                     - 2 -
Whereas the White Paper on the completion of the Internal Market fixes
an action programme and a timetable for the ooening up of public supply
 contracts ;
                                                                                       4
Having regard to the report on the application of Directive 77 / 62 / EEC
 as last amended by the Act of Accession of Spain and Portugal and
Directive
Directive 80 80 // 767/
                   767/ EEC
                        EEC "* submitted
                               submitted by  by the
                                                 the Commission
                                                       Commission to
                                                                   to the
                                                                       the Council
                                                                             Council on
                                                                                     on
 14  December       1984    in  reply    to    the   resolution   of the     Council of
21 December 1976 ;
Whereas it is necessary to improve and extend the scope of the
Directive by increasing the transparency of procedures and practices
for the award of public supply contracts , and to make possible stricter
enforcement of the prohibition of restrictions on the free movement of
goods , which constitutes the basis of these Directives ;
Whereas    it     is   necessary     to   amend     these   Directives   in    order to
incorporate the changes to the GATT Government Procurement Agreement
agreed in December 1986 ;
Whereas it is necessary to develop the conditions of efft five
competition for public supply contracts and the economic , budgetary and
industrial benefits which result from it ;
Whereas it is necessary to that end to                    define the extent of the
exemptions by sector in order to ensure ,                  in view of the divergent
interpretations , that the disequilibrium in the application of the
directives between Member States does not increase ;
Whereas the inclusion of the defence sector under this Directive needs
to be clarified by reference to the provisions of the EEC Treaty ;
Whereas   it   is     appropriate     to    lay   down   the  applicable    thresholds ,
including the GATT related threshold , in a single provision ;
4
      OJ No . L 13 , 15.1.1977 , p. 1 .
5
      OJ No . L 215 , 18.8.1980 , p. 1 .
 ---pagebreak---                                - 3 -
Whereas the open procedure best assures the establishment of equality
in the conditions of participating in public contracts in all the
Member States ; whewhereas it is necessary to make the use of this
procedure
procedure the
           the rule
                 rule,.  with the use of other procedures requiring a
justification and the establishment of reports relating to it ;
Whereas in order to limit the use of the single tender procedure it is
appropriate to create a negotiated procedure, which exists already in
the practice of certain Member States and in addition to define the
conditions where extreme urgency can be invoked and the period during
which additional deliveries can be carried out ;
Whereas the negotiated procedure shall be considered as exceptional and
therefore only be applied in certain specified cases ;
Whereas it is necessary to adapt the common rules in the technical
domain to the new Community policy in respect of standardisation ;
Whereas all the operations and procedures related to            »   jpply
activities of the contracting authorities should be made more
transparent ; whereas to this end it is appropriate l it the contracting
authorities make known their purchasing programmes by means of advance
information notices at Community level and that contracting authorities
which use non-competitive tendering should permit other potential
suppliers to establish and show their interest in such purchases and
that  information on    the  conditions under which contracts  have been
awarded should also be made public by the same method in order to
stimulate more interest and participation on the part of a greater
number of suppliers at Community level in public supply contracts ;
Whereas it is necessary to fix certain time-limits in order to avoid
delays in the transmission of advance information notices and notices
on contracts awarded ;
Whereas it is necessary to extend the time limits for the receipt of
requests for participation and tenders in the framework of public
supply contracts in order to improve the access and participation by a
greater number of suppliers ;
                                                                          -,
 ---pagebreak---                                         4
Whereas the principle of equal pay for men and women is established by
the Treaty ; and whereas the directives on equal pay and equal treatment
for men and women     ^ contribute to ensuring fair compétition;
Whereas failure to comply with statutory obligations regarding health
and safety at work and equal opportunities for                  the handicapped
and racial or religious minorities can enable a supplier , in certain
ci rcumstances , to dérivé unfair économie advantage ;
Whereas   it is désirable to place national rules aiming at régional
development in a Community context ;
Whereas the Council will , within a fixed period , decide on the
Commission proposal for a Directive on monitoring and compliance with EC
Directives on the award of public contracts ;
Whereas Spain has only just adopted internal legislation
to implement Directive 77 / 62 / EEC ; whereas further changes at this stage
would adversely affect the adaptation of the private sector in this
country , it is appropriate to allow Spain additional time to implement
the present Directive in its entirety ;
Whereas Portugal needs a transitional period for simi.lar reasons ;
Whereas   Greece    is     about    to conclude  the process   of
adapting her national law to Directive 77 / 62 / EEC and the incorporation .
at this stage of new Community rules would adversely affect the public
supply contract sector ,             in particular with regard to certain
economically significant factors , namely stability , transparency and
the maintenance, in the medium term, of the framework of trading
conditions ;
6
      Directive  75 / 117 / EEC ,  OJ No L 45 of 19.02.1975 .
      Directive  76/ 207 / EEC ,   0J No L 39 of 14.02.1976 .
      Directive  79 / 37 / EEC ,  OJ No L 6 of 10.01.1979 .
                                  0J
      Directive  86 / 378 / EEC ,  0J No L 225 of 12.08.1986 .
      Directive  86/ 613 / EEC ,   0J No L 359 of 19.12.1986 .
                                                                                *
 ---pagebreak---                                   - 4A -
Whereas , in view of the conclusions of the said European Councils , of
the provisions of the White Paper , of the said report , Directive
77 / 62 / EEC should be    amended  and  certain  provisions  of  Directive
80 / 767 / EEC repealed ,
HAS ADOPTED THIS DIRECTIVE :
Title I - Amendments to the Directive 77 / 62 / EEC
Article 1
Directive 77 / 62 / EEC is hereby amended in accordance with the provisions
of this Title .
 ---pagebreak---                                       5 -
Artide 2
Article 1 ( a ) is replaced by the following :
"( a ) " public supply contracts " shall be contracts for pecuniary
interest concluded in writing involving the purchase , lease , rental or
hire purchase, with or without option to buy , of products between a
supplier (a natural or legal person ) and one of the contracting
authorities defined in ( b ) below . The delivery of such products may in
addition include siting and installation operations ".
New letters (d ), ( e ) and ( f )  are     added as follows :
 <d)   "open procedures " within the meaning of this Directive are those
       national procedures whereby all interested suppliers can present
       an offer ;
<e)    " restricted procedures " within the meaning of this Directive are
       those national procedures whereby only those suppliers invited by
       the contracting authority may submit tenders ;
 (f)   " negotiated procedures " within the meaning of this Directive are
       those national procedures whereby contracting authorities consult
       suppliers of their choice and negotiate the terms of the contract
       with one or several of them .
Article 3
A new Article 2     is inserted :
                                  " Article 2
           préjudice to Articles 3,
Without prejudice                 3 , 4 and 5(1 ), this Directive shall
apply to all products within the meaning of Article 1(a ) including
those covered by contracts awarded by contracting authorities in the
field of defence . except for the products referred to in Article 223
( 1)(b ) of the Treaty ".
                                                                          Q
 ---pagebreak---                                 - 6 -
Article 4
Article 2 of the Directive becomes Article 3 and its paragr aph ( 1 ) is
deleted .
Article 3(2 ) of the Directive     is    replaced by the following :
" This Directive shall not apply to :
(a>   public supply contracts awarded by carriers by land , sea or air ;
( b)  public supply contracts awarded by contracting authorities insofar
      as those contracts concern the production ,          transport and
      distribution of drinking water or those contracting authorities
      whose principal activity lies in the production and distribution
      of energy , nor to those contracting authorities whose principal
      activity is to offer telecommunications services ;
Ce )  supplies which are declared secret or when their delivery must be
      accompanied by special security measures in accordance with th ^
      laws , regulations or administrative provisions in force in the
      Member Slate concerned or when the protection o . the basic
      interests of that State 's security so requires .
Article 5
Article 3 of the Directive becomes Article 4 .
                                                                         U
 ---pagebreak---                                       - 7 -
Article 6
Article A of the Directive is deleted .
Article 7
Article 5       is       replaced by the following :
                                       " Article 5
1.   ( a ) The provisions of Titles II , III and IV and of Article 6 shall
           apply to public supply contracts
                   awarded by the contracting authorities referred to in
                   Article 1(b ) including contract ;            awarded by the
                   contracting authorities in the field of defence listed
                   in Annex I to Directive 80 / 767 / EFC , insofar as the
                   products not listed in Annex II to the said Directive
                  are concerned , provided that the estimated value net of
                  VAT is not less th?n 200 . n 00 ECU ;
                   awarded      under  the  terms  and   conditions  of  Directive
                   80 / 767 / EEC  by  the   contracting   authorities  listed  in
                  Annnex I to the said Directive and whose estimated value
                  net of VAT is not less than 130.000 ECU ; in the case of
                  contracting authorities in the field of defence , this
                  shall apply only to contracts involving products cover ed
                  by the said Directive in accordance with Annex II thereto .
     ( b ) The Directive shall apply to public supply contracts for which
           the estimated value equals or exceeds the threshold concerned
           at the time of publication of the notice in accordance with
           Article 9 ( 2 ).
                                                                                   . /
 ---pagebreak---                                    - 8 -
     ( c ) The value of the thresholds in national  : ional  currencies and the
           threshold of the GATT Agreement in       terms of the ECU shall in
           principle
           principle beoe   revised
                            revised every
                                      every  two
                                             two years with effect           from     1
           January 1988
           January  1988 ..   The calculation of these values shall be based
           on the average daily values of these currencies in          in terms
                                                                           terms of of
           the ECU and of the ECU in terms of the SDR over the 24 months
           terminating on the last day of October immediately preceding
           the l1 January revision .
           ine                                                    oubli^heri in the
                                        The values shall be published              th-
           Official Journal of the European Communities at the beginning
           of November .
    ( d ) The method of calculation laid down in subparagraph ( c ) shall
           be examined , on the Commission 's initiative
                                                 initiative,, bv   by the Advisory
           Committee for Public Contracts ,      in principle two years after
           its initial application .
2. In the case of contracts for the lease , rental or hire purchase of
   products ,      the bases for calculating the estimated contract value
   shall be :
            in the case of fixed ♦ '•rm contracts ,        wh"'-- their te'-"'
                                                             r» r           te r "' is
            twelve months or less , the calculation should be ba„ed on the
            total contract value for its duration , or , where their term
            exceeds twelve months its total value including the estimated
            residual value ;
            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 .
3. In the case of regular supply contracts or of contracts which are
   to be renewed within a given time , either the aggregate cost of
   similar contracts 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
                                                                                        U
 ---pagebreak---                              8A
   aggregate cost during the 12 months following first delivery or
   during the term of the contract where this is greater than 12
   months must be taken as the basis for the application of paragraph
   1 .  The selection of the valuation method shall not be used with
   the intention of avoiding the application of this Article .
4. If a proposed procurement of supplies of the same type may lead to
   contracts being awarded at the same time in separate parts ,   the
   estimated value of the total sum of these parts must be taken as
   the basis for the application of paragraphs 1 and 2 .
                                                                       / %*
                                                                      I >
 ---pagebreak---                                 - 9 -
5.   In cases where a proposed procurement specifies option clauses ,
     the basis for calculating the estimated contract value shall be
     the highest possible total purchase , lease , rental , or hire-
     purchase permissible , inclusive of the option clauses .
6.   No procurement requirement for a given quantity of supplies may be
     split up with the intention of avoiding the application of this
     Art icle ."
Article 8
Article 6      is     replaced by the following :
                                   " Article 6
1.   In awarding public supply contracts the contracting authorities
     shall ap ply the procedure s def ined in Article 1 ( d ), ( e ) and Cf ),
     adapted to this Directive , in the cases set out below .
2.   The contracting autho rities may award their supply contracts using
     the restricted procedure in justiiied cases .
     Such justification may inter alia be constituted by :
           a need     to  maintain    a balance  between market     value and
           procedural costs ;
           a need arising from the specific nature of the products to be
           procured .
3.   The contracting authorities may award their supply contracts by
     negotiated procedure in the event of irregular tenders in response
     to an open or restricted procedure or in the event of tenders
     which are unacceptable under national provisions that are in
     arrnrrfanrp with
     accordance   uith thethp provisions
                               nrovisions of Title IV ,.     insofar as the
     original terms for the contract are not substantially altered .
     The contracting authorities shall in these cases publish a tender
                                                                               //>
                                                                                U-
 ---pagebreak---                               ΊΟ -
   notice unless they include in such negotiated procedures all the
   enterprises satisfying the criteria of Articles 16-20 which ,
   during the prior open or restricted procedure , have submitted
   offers in accordance with the formal requirements of the tendering
   procedure .
4. The contracting authorities may also award their supply contracts
   by negotiated procedure without prior publication of a tender
   notice in the following cases :
   (a)  in   the absence  of  tenders  in  response  to  an  open   or
        restricted procedure insofar as the original terms of the
        contract are not substantially altered and provided that a
        report is communicated to the Commission ;
   (b)  when the articles involved are manufactured purely for the
        purpose of research , experiment , study or development , this
        provision not extending to quantity production to establish
        commercial viability or to recover research and development
        costs ;
   (w ) when , for technical or arti ic rea_uns , or for reasoi.j
        connected with protection of exclusive rights , the goods
        supplied may be manufactured or delivered only by a
        particular supplier ;
   (d ) in so far as is strictly necessary when , for reasons of
        extreme urgency brought about by events unforseeable by the
        contracting authorities , the time limits laid down for the
        open and restricted procedures cannot be kept .            The
                                                                   The
        circumstances invoked to justify extreme urgency must not in
        any case be attributable to the contracting authorities ;
   Ce ) for additional deliveries by the original supplier which are
        intended either as a partial replacement of normal supplies
        or installations or as the extension of existing supplies or
        installations where a change of supplier would oblige the
        contracting authority to acquire material having different
                                                                       i }
 ---pagebreak---                                     11
            technical
            tecnmcai        characterist ics
                            characteristics      which     would     result
                                                                     resuit  in
            incompatibility or disproportionate technical difficulties in
            operation and maintenance .        The length of such contracts as
            well as that of recurrent contractstracts may , as a general rule ,
            not exceed three years .
5.   In all other cases , the contracting authorities shall award their
     supply contracts by the open procedure .
6.   In    the    case   of   restricted    or   negotiated    procedures , the
     contracting authorities shall draw up a written report which shall
     contain the justification for the use of that procedure and shall
     include at least the name and address of the contracting
     authority , the value , quantity and nature of products purchased ,
     the number of requests to participate received , the number of
     candidates invited to present an offer and , should the occasion
     arise , the number of candidates rejected and the reasons for their
     rejection
     re j ection .    The report shall also indicate in the case of the use
     of negotiated tender procedures the circumstances referred to in
     paragraphs 3 and 4 with due justification which have led to
     the use of these procedures .
     This report ,                   features of it , shall be communicated to
                       or the main featu
     the Commission at its request.”
Article 9
Article 7      is      replaced by the following :
"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
     insofar as these are compatible with Community law, such technical
     specifications shall be defined by the contracting authorities by
     reference to national standards implementing European standards ,
     or by reference to common technical specifications .
                                                                                /,
 ---pagebreak---                                     12
  3. A contracting authority may make exceptions from paragraph 2 if :
     (a)   the standards do not include provision for establishing
           conformity , or technical means do not exist to establish
           satisfactorily conformity of a product to these standards ;
     (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                  or
           Council    Decision    87/ 95 / EEC    of   22   December    1986   on
           standardization in the field of information technology and
                                   g
                                   8
           telecommunications
           télécommunications                 other Community instruments in
                                     , or other
           spécifie service or product areas ;
     (c )  use of these standards would oblige the contracting authority
           to acquire supplies incom patible wit h equipment al r eady in
           use
           use    or
                  or     would     ent ai l     disproportionate      costs    or
                                                                               or
           disproport io nate technical diffi cul ties , but only as part o f
           a clearly defined and recorded strategy with J view to change
           over, within a determined pe r iod , to European standards or
           common technical specifications .
     (d )  The project concerned is of a genuinely innovative nature for
           which use of existing standards would not be appropriate .
4.   Contracting authorities invoking paragraph 3 shall record , unless
     it is impossible, the reasons for doing so in the tender notice
     published in the Official Journal of European Communities 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 .
7
     OJ No . L 217 , 5.8.1986, p. 21 .
8
     OJ No . L 36, 7.2.1987, P. 31 .
                                                                                  Ry
 ---pagebreak---                                        - 13 -
 5.   In    the   absence     of    European     standards
                              ui    European     standards   or    common    technical
      specif icat ions ,     the
                             the   technical specifications may be defined,
      without prejudice to the principles of equivalence and mutual
      recognition of nationallonai technical
                                     tecnmcai specifications
                                                  specifications ,, by reference to
      other documents .      In
                             In this
                                 this case
                                       case itit is
                                                  is annmnri ato
                                                     appropriate   to make reference
      in order of preference to :
      1.     national     standards      implementing     international     sstandards
             accepted in the country of the contracting authority;
     2.      national     standards     of   the    country   of    the   contracting
             author ity ;
     3.      any other standard ."
Article 7(2 ) of the Directive becomes 7(6 ).
Article 10
Article 9 of the Directive            is     replaced by the following :
                                      " Article 9
1.   The contracting authorities listed in Annex I to Directive
     80 / 767/ EEC shall make known , as from 1 January 1989 , as soon as
     possible after the beginning of their budgetary year , by means of
     an indicative notice , the total procurement by product area of
     which the estimated value, taking into account the provisions of
     Article 5 , is equal or greater than 750.000 ECU and which they
     envisage awarding during the coming twelve months .
     The Council ,      acting on a proposal from the Commission and after
     consulting the European Parliament and the Economic and Social
     Committee ,     shall decide before 1 March 1990 on the extension of
     this obligation to the other contracting authorities covered by
     Article 1 .
                                                                                       $
 ---pagebreak---                               14 -
2. Contracting authorities who wish to award a public supply contract
   by open , restricted, or negotiated procedure within the meaning of
   Article 1 shall make known their intention by means of a notice .
3. Contracting authorities who have awarded a contract shall make
   known the result by means of a notice .    However, on a contract -
   by-contract basis , certain information on the contract award may
   not be published where release of such information would impede
   law enforcement or otherwise be contrary to the public interest or
   would prejudice the legitimate commercial interest of particular
   enterprises ,   public or private ,     or might prejudice fair
   competition between suppliers .
4. The notices referred to in paragraphs 1 , 2 and 3 shall be sent as
   rapidly as possible by the most appropriate channels to the Office
   for Official Publications of the European Communities . In the case
   of the accelerated procedure referred to in Article 12 the notice
   shall be sent by telex , telegram or telecopier .
   a)   The notice referred to in paragraph 1 shall be sent as soon
        as possible after the beginning of each budgetary year ;
   b)   The notice referred to in paragraph 3 shall be sent at the
        latest 48 days after the award of the contract in question .
5. The notices shall be drawn up in accordance with the models given
   in Annex III .
6. The notices shall be published in full in the Official Journal of
   the European Communities and in the data bank TED in their
   original language .    A summary of the important elements of each
   notice shall be published in the other official languages of the
   Community , the original text alone being authentic .
   The Office for Official Publications of the European Communities
   shall publish the notices not later than 12 days after their
   dispatch . In the case of the accelerated procedure referred to in
   Article 12 this period shall be reduced to 5 days .
                                                                       >1
 ---pagebreak---                                   15 -
7.   The notice shall not be published in the Official Journals or the
     press of the country of the contracting authority before the date
     of its dispatch and it shall mention the          latter date .  This
     publication     shall   not  contain   information   other  than that
     published in the Official Journal of the European Communities .
8.   The contracting authorities must be able to supply proof of the
     date of dispatch .
9.   The cost of publication of the notices in the Official Journal of
     the European Communities shall be borne by the Communities .      The
     length of the notice shall not be greater than one page of the
     Journal , that is to say approximately 650 words . Each edition of
     the Official Journal of the European Communities which contains
     one or more notices shall reproduce the model notice or notices on
     which the published notice or notices are based".
Article 11
Article 10 ( 1 )     is    replaced by the following :
"1 . In open procedures the time limit for the receipt of tenders fixed
     by the contracting authorities shall not be less than 52 days from
     the date of dispatch of the notice ."
Article 12
Article 11 ( 1 ), ( 2) and ( 3 )   is    replaced by the following :
"1 .  In restricted procedures within the meaning of Article 1(e ) and
     negotiated procedures within the meaning of Article 1(f ) the time
      limit for the receipt of requests to participate fixed by the
     contracting authorities shall not be less than 37 days from the
     date of dispatch of the written invitation .
                                                                           20
 ---pagebreak---                                      16 -
 2.   The contracting authorities shall simultaneously and in writing
      invite all successful      candidates to submit   their tenders .   The
      letter of invitation shall be accompanied             by the   contract
      documents and supporting documents .
 3.   In restricted procedures the time limit for receipt of offers
      fixed by the contracting authorities may not be less than AO days
      from the date of dispatch of the written invitation ."
Article 13
Article 12 ( 1 )      is    replaced by the following :
"1 .  Where urgency renders impracticable the time limits referred to in
      Article 11 , the contracting authorities may fix the following time
      li mi t s :
     a)       a time limit for the receipt of requests to participate which
              shall not be less than 15 days from the date of dispatcn of
              the notice ;
     b)       a time limit for the receipt of tenders which shall not be
              less than 10 days from the date of the invitation to tender ."
Article 1A
Articles 13 , 14 and 15       are    deleted .
Article 15
Articles 16 , 17 and 18 become Articles 13 , 14 and 15 .
                                                                              /
 ---pagebreak---                                     - 17 - •
Article 16
Article 19 becomes Article 16 .
Article 16 ( 1 )    is     redac
                           replaced    by the following :
"1 . In
     in     restricted   and
                         ana     negotiated     procedures  the  contracting
     authorities shall , on the basis of information given relating to
     the supplier 's personal position as well as to the information and
     formalities necessary for the evaluation of the minimal conditions
     of an economic and technical nature to be fulfilled by him, select
     from among the candidates with the qualifications required by the
     Articles 14 to 18 those whom they will invite to submit a tender
     or to negotiate ."
Article 17
Article 20 becomes Art     ' * 17 .
In paragraph 1 , a new letter ( e ) is     inserted :
     " e ) is distorting compétition to its économie advantage by
     fai lure to comply with the statutor y obl igat ions of t he country in
     which it is established , relating to health and safety at work and
     equal opportunities for women , the handicapped and racial or
     religious minorities .
     Letters e ), f ) and g ) become f ), g ) and h ).
Paragraph 2 is replaced by the following :
"2.  Where the contracting authority requires of the supplier proof
     that none of the cases quoted in a ), b ), c ), e ), f ) or g ) of
     paragraph 1 applies to him, it              shall accept as sufficient
                                             it shall
     evidence :
                                                                             a
 ---pagebreak---                                   18 -
           first indent unchanged ;
           for e ), f ) or g ) ..." ( rest unchanged ).
Article 18
Articles 21-25 become Articles 18-22 .
Article 19
Article 26 becomes Article 23 ,      and   is   replaced by the following :
                                  " Article 23
1.   This Directive shall not prevent , _unti l 31 December 1992 ,_ t he
     appli cat i on of existing nationa l p rovis ions which have as their
     obj ective the reduction of regional disparities an*. _ ne promotion
     of job creat i on in regions whose development i s lagging behind '■nd
      in declining industrial regions , on condition that the provisions
     concerned are compatible with the Treaty a^d with the Community 's
      international obligations .
2.   Paragraph 1 shall be without prejudic e to any initiative on the part of
     the Commissionn , notably in the context of Articles 130 A to E of
     the Treaty ,      or with a view to prolonging existing national
     measures in the context of a Community policy having the objective
      specified in that paragraph .
3.   This Article shall be without prejudice to Article 25(4 )."
Article 20
Articles 27 and 28 become Articles 24 and 25 .
                                                                             -r
 ---pagebreak---                                       19 -
Article 21
Article 29 becomes Article 26 ,        and   is replaced by the following :
                                   " Article 26
1.
     In order to allow assessment of the results of applying   applying this
                                                                         this
     Directive, Member States shall communicate a statistical report to
     the Commission relative to contract awards :
     (a)
           not later than 31 October of each year for the preceding year
           in respect of the contracting authorities listed in Annex  Annex II
           to the Directive 80 / 767 / EEC ;
     ( b) not later than 31 October 1991 and for the Hellenic Republic ,
          the Kingdom of Spain and the Portuguese Republic 31 October
           1995 and henceforth tl ... 31 Octobe     of each second vear
                                                                     year for
          the preceding year in respect of contracting authorities
          within the meaning of Article 1 of tuis Directive excluding
          those listed in Annex I to the Directive 80 / 767 . ^ EC .
2.   This report shall detail at least :
     (a)  the number and value of contracts awarded by each contracting
          authority above the threshold and , in the case of contracting
          authorities mentioned in Annex I to Directive 80/ 767 / EEC , the
          value below the threshold ;
     (b)  the number and value of contracts awarded by each contracting
          authority above the threshold ,         subdivided by procedure ,
          product and the nationality of the supplier to whom the
          contract has been awarded , and in the case of negotiated
          procedures , subdivided in accordance with Article 6 , listing
          the number and value of the contracts awarded to each Member
          State and to third countries and in the case of Directive
          80 / 767 / EEC , the number and value of the contracts awarded to
          each signatory of the GATT Agreement on Government
          Procurement .
 ---pagebreak---                                   - 20 -
 3.   The Commission shall determine the nature of any additional
      statistical information
                          mation , which is requested in accordance with
     this Directive, in consultation with the Advisory Committee for
     Public Contracts ."
Article 22
A new Article 27     is inserted :
                                   " Article 27
The Council , on a proposal from the Commission and after consulting the
European Parliament , shall not later than 31 December 1988 lay down
provisions for appropriate monitoring and measures to ensure compliance
with this Directive ."
Article 23
Articles 31 and 32 become Article ? 28 and 2P
Article 24
Annexes I_, II and III of the Directive         are  replaced by the Annexes
to this Directive .
    Title II; Deletion of certain provisions of Directive 80 / 767 / EEC
Article 25
Articles 2 , 3 , 4 , 5 and 6 of Directive 80 / 767 are deleted .
                                                                             25
 ---pagebreak---                                  - 21
                       Ti t le III - Final provisions
Article 26
Member States shall adopt the measures necessary to comply with this
Directive by / 1 March 1988/ and shall forthwith inform the Commission
thereof .
However , with regard to the Hellenic Republic , the Kingdom of Spain and
the Portuguese Republic / 1 March 1988 / shall be replaced by 1 March
1992 .
Article 27
Member States shall ensure that the texts of the basic provisions of
domestic law , whether laws , regulations r administrative provisions ,
which they adopt to comply with this Directive, are communicated to the
Commi ssi on .
Article 28
This Directive is addressed to the Member States .
       Done at                             For the Council
                                           The President
                                                                             /• ,
                                                                          •.    C-
 ---pagebreak---                                   ANNEX 1
 LIST OF LEGAL PERSONS GOVERNED BY PUBLIC LAW AND BODIES CORRESPONDING
                    THERETO REFERRED TO IN ARTICLE 1(b )
I.   In ail Member States :
     associations governed by public law or bodies corresponding
     thereto formed       by regional     or local      authorities ,  e.g..
                                                                       e-g
     " associations de communes ", " Gemeindeverbande", etc .
II . In Germany :
     The " bundesunmittelbaren Körperschaften , Anstalten und Stiftungen
     des öffentlichen Rechts "; the " landesunmittelbaren Körperschaften ,
     Anstalten und Stiftungen des öffentlichen Rechts " subject to State
     budgetary supervision .
II V In Belgium :
           " le Fonds des Routes 1955-1969 " - " het Wegenfonds ",
           " la Régie des Voies Aériennes " - " de Regie der luchtwegen",
           public social assistance centres ,
           church councils ,                          ,
            l'Office Régulateur de la Navigation Intérieure " - de Dienst
           voor regeling van de binnenvaart ",
           " la Régie des services f rigorif iques de l'Etat beige" - "de
           Regie der Belgische Rijkskoel- en Vri esdiensten ".
IV . In Denmark :
     " andre forvaltningssubjekter ".
                                                                             •i l
 ---pagebreak---                                   - 23 -
V.      In France :
             administrative public bodies at national ,        departmental and
             local levels ,
             universities ,                         cultu
                             public scientific and cultural     bodies and othr
             establishments as defined by the Law setting out guidelines
             for Higher Education No . 68-978 of 12 November 1968 .
VI .   In Ireland :
       other public authorities whose public supply contracts are subject
       to control by the State .
VII . In Italy :
             State universities , State university institutes , consortia
             for university develonment works ,
             higher scientific an *, cultural institues ,         astronomical ,
             astrophysical , geophysical or v ' canoloc ' : al observatories ,
             thè " Enti di riforma fondiaria ",
             welfare and benevolent institutes of all kinds .
VIII . In Greece : other legal persons governed by public law whose public
       supply contracts are subject to State control .
IX .   In Luxembourg :
       public bodies subject to control by the Government , by an
       association of municipal corporations or by a municipal
       corporation .
                               *
                                                                                  Λ
                                                                                 4*
 ---pagebreak---                                       24
X.     In the Netherlands :
            the " Waterschappen ",
            the " instellingen van wetenschappelijk onderwijs vermeld in
            Article 15 van de Wet of het Wetenschappelijk Onderwijs
             ( 1960 )", the " academische ziekenhuizen ",
            the " Nederlandse        Centrale Organisatie voor      toegepast
            natuurwetenschappelijk       Onderzoek ( TNO )" and its dependent
            organizations .
XI .   In Spai n :
       other legal persons subject to public rules for the award of
       contracts .
XII . In Portugal.:
       legal persons governed by public law whose publ i c Simply con t racts
       are subject to State control .
XIII . In the United Kingdom :
            Education Authorities ,
            Fire Authorities ,
            National Health Service Authorities ,
            Police Authorities ,
            Commission for the New Towns ,
            New Towns Corporations ,
            Scottish Special Housing Association ,
            Northern Ireland Housing Executive .
                                                                              ?•>
                                                                              v *
 ---pagebreak---                                  - 25 -
                                       ANNEX II
                DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS
Within the meaning of the present directive the following terms shall
be defined as follows :
1.   technical      spécification
                    specifi c ation :     the totality of      the technical
     prescriptions contained in particular in the tender documents
     defining the characteristics required of a product such as levels
     of quality , performance, safety or dimensions , including the
     requirements applicable to the product as regards terminology ,
     symbols , testing and test methods , packaging, marking or labelling
     which permit a material ,        a product , or a supply to be described
     objectively in a manner such that it fulfills the use for which it
     is intended by the contracting authority .
2.   standard :     a technical specification approved by a recognized
     standardizing body i ^r reputed and co^inuou . application ,
     compliance with which is in principle not compulsory .
3.   European standard : a standard approved by the European Committee
     for Standardisation ( CEN) or by the European Committee for
     Electrotechnical Standardisation ( CENELEC ) as " European Standards
     ( EN ) n or " Harmonisation Documents ( HD )" according to the Common
     Rules of these organisations ;
4.   Common technical specification : a technical specification drawn up
     with a view to uniform application in all Member States of the
     Community .
                                                                              o
                                                                              ?
 ---pagebreak---                                                            . I ;V\7 V
                                   MODI I NO nci.s 01 si IITI Y I ON I KACTS
                                                   A Open ptoccduir*
        Ihe it.unr , addiCNs, téléphone , télégraphie , télex , iclccopici immhci ol thc o>m i aviini; atiihoins
   2 . TIu* award procedure chosen
   3 a ) Place of de îivcry :
       h) Nature and quantity of the goods to he supplied :
       c ) Indication whether the suppliers can tender for some and /oi all id the goods requited .
  4    Tnne limit loi dehverv :
  3 . a ) Name and address of the seiviee where the iclevant documents mas he requested
       h) Final date for making such requests :
       c ) Wheir applicable , tbe amount and tenus of paymem ol anv sum pavable lot siuh «lommcms
  <>. a ) Final date lor receipt of tenders :
       b) The address to which they must he sent :
       c ) The language or languages in which they must he drawn up :
  7 . a ) The persons authori /.cd to be present at the opening of temleis :
           The date , hour and j
       h) Tlte                       '* of this oy.
  S ( Where applicable) Any deposits and guarantees required :
  9 . The main terms conccrnin .. . inancing and payment and /or references to the provisions regulating
       these :
» 7. Where appheahh         Sc legal foi.n to be taken hv the gn          ng ot supp .   vinmiu - tlte coiu . ict :
•I     Fhe information and formalities necessary foi an appraisal of the minimum eeonomi . and let luma !
       standards require*! of the supplier .
1 ? The period during which the tenderer is hound to keep open lus tendei :
13 The criteria for the award of the contract . ( riicna other than that of the lowest pncc shall he
       mentioned if they do not appear in the contract documents :                     %
1 4 . Other information :
15 . Date of dispatch of the notice :
16 Date of receipt of the notice l>y the Publications Office :
                                                                                                                    '■ !
 ---pagebreak---                                                                                                                               i
                                                                                                                              I
                                                  Il KrUiHiril iHocrdinr
                                                                                                                              i
    I I In- lUHif. .Iililu-w. telephone . Iclep/ aplnc. irlr » .in. I irlcmpiri mimlieiv ol tin- aw.ii.lni|', .iniliniiiv
   .* .il l lir awaid puwrduie CIIOMII
       M KC.IMHI lor I IK* use of the irsirutcd         riltirr
       4 ) Where applicable , justification for the use of ihr accelerated procedure :
                                                                                                                              I
    * 3 ) I lie place of delivery :                                                                                          i
       I *) I'he nature ami quantity of goods to he delivered
      c ) Whether the supplier ran tender for some and /or all of the goods required .
   4 Any lime limit on delivery :                                                                                             I
   S Where applicable , die legal form to he assumed by the grouping of suppliers winning the contract                        i
  (> a ) The final date for the receipt of requests to panic ip.ur :
      1 >) The address to which they must he sent :                                                                          ι
      c ) The language of languages in which they must he drawn up
  7 The final date for the dispatch of invitations to tendei :
                                                                                                                             i
  S Information concerning the supplier's own position , and the 'formation and foinulitics necessary for
      an appraisal of the minimum economic and technical standai . irquirrd of lum
                                                                                                                              i
        Fhe .    • .a foi Ui . waul ol the contract if these air not siao l HI the invitation to ten .. .                     I
                                                                                                                              t
IC    Oilier information :
                                                                                                                           I
1 1 Duc of dispaich of lhe notice :
i C Dale of receipt of :            I  t.v     Publications Offic                                                             I
                                                                                                                              !
                                                                                                                              I
                                                                                                                              f
                                                                                                                              »
                                                                                                                              I
                                                                                                                              I
                                                                                                                             I
                                                                                                                              *
                                                                                                                             I
                                                                                                                             î
                                                                                                                             t
                                                                                                                             4
                                                                                                                          n
 ---pagebreak---                                               (    Nr^oiMlrtl l' un ohm
   1 . Namc , address , téléphoné , télégraphie , telex , télécopié » numbeis of thr awatdmg auihomy
  2 . a) Award procedure chosen :
       b) Where applicable , justification of the use of the accelerated procedure :
  3 . a) The place of delivery :
       b) The nature and quantity of goods to be delivered :
       c) Whether the suppliers can tender for some and /or all of the goods required :
  4 . Any time limit on delivery :
  5 . Where applicable, the legal form to be assumed by a grouping of suppliers winning the contract :
  6. a) Final date for the receipt of requests to participate :
       b) Address to which they must be sent :
       c) The language(s) in which they must be drawn up :
  7 . Information concerning the situation of the supplier as well as the * nformation and formalities
       necessary for the evaluation of the minimum economic and technical standards to be fulfilled by him :
  8 . Where applicable , the names and addresses of suppliers already selected by the awarding authority :
  9. Daie(s) of previous publications in the Official Journal of the European Communities :
10 . Other information :
1 1 . Date of dispatch of the notice :
12 . Date of receipt of the notice by the Publications Office :
                                                                                                             n
 ---pagebreak---                                                13. Single Tender Piocrduie
   I Name, address, téléphone, télégraphie, telex and télécopier number of tbe awardmg autlioritv :
  2 . a ) Award procedure cliosrn :
       b) Justification for the use of the single tender procedure :
  3 . a) Place of delivery :
       b) Nature and quantity of goods to be delivered :
  4 Name and address of the supplier :
 5 . Invitation to other potential suppliers to present themselves to the award authority :
 6 . Other information :
 7 . Date of dispatch of the notice :
 8 . Date of receipt of the notice by the Publications Office :
                                                   E. Pre-infomiation
 1 . Name, address, telephone, telegraphic, telex and telecopier number of the awarding authority and of
      the services from which additional information may be obtained :
2 . Nature and quantity or value of produce -o be supplied :
3 . Estimated date of the engagement of r cedures             the award ot ttic contract(s):
4 . Other information :
5 . Daté of                 the no.
6 . Date of receipt of the notice by the Publications Office :
                                                   F. Contract awards
   1 . Name and address of awarding authority :
   2. Award procedure chosen :
   3 . Date of award of contract :
  4 . Criteria for award of contract :
  5 . Number of offers received :
  6 . Name and address of suppliers):                                          '
  7. Nature and quantity of goods supplied, where applicable, by supplier:
  8 . Price or range of prices :
  9. Other information :
10. Date of publication of the tender notice in the Official Journal ofthe European Communitiei:
1 1 . Date of dispatch of the notice :
12 . Date of receipt of the notice by the Publications Office:'
                                                                                                         n