CELEX: 51979PC0621
Language: en
Date: 1979-10-31
Title: PROPOSAL FOR A COUNCIL DIRECTIVE AMENDING DIRECTIVE 77/62/EEC COORDINATING PROCEDURES FOR THE AWARD OF PUBLIC SUPPLY CONTRACTS (Proposal by the Commission to the Council)

ARCHIVES HISTORIQUES
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COM (79) 621
Vol. 1979/0210
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 ---pagebreak---  COMMISSION OF THE EUROPEAN COMMUNITIES
                                                COM ( 79 ) 621 final
                                                Brussels . 31st October 1979
                       PROPOSAL FOR A COUNCIL DIRECTIVE
             AMENDING DIRECTIVE 77 / 62 / EEC COORDINATING PROCEDURES
                    FOR THE AWARD OF PUBLIC SUPPLY CONTRACTS
                 ( Proposal by the Commission to the Council )
C0M(79 ) 621 final
 ---pagebreak---                           EXPLANATORY MEMORANDUM
                         –  i -■ i   –i . i i ■■ ■ ii ... ■ i i.i - i
I. GENERAL CONSIDERATIONS
1 . The objective of Council Di recti ve. 77 / 62 / EEC of 21 December 1976
    coordinating procedures for the award of public supply contracts
    is to ensure a greater degree of transparency, by introducing
    equal conditions of competition for public contracts ©f the Member
    States , in order to improve the functioning of the common market .
    The Directive applies to public supply contracts of a certain
    value awarded by States , public bodies and local authorities and
    makes them subject to Community procedures designed , inter alia ,
    to ensure more extensive advertising and to fix objective criteria
    as to entitlement to compete for , and the award of , public
    contracts .
2 . The Community has stated within the context of the GATT Multilateral
    Trade Negotiations that it is prepared to negotiate increased
    access to public contracts at international level on the basis
    of effective reciprocity . It is clear from the results of the
    negotiations that the aim of eliminating all reservations of
    contracts to national suppliers and all preferential prices in
    their favour has been achieved only in part by reason of the fact
    that , contrary to Directive 77 / 62 / EEC , only contracting authorities
    at central or federal level enter into such a commitment vis-a-vis
    countries that are signatories to the Agreement . In matters of
    procedure and transparency, the arrangements under the MTN Agreement
    do not differ greatly from those adopted by the Council in the
    Community Directive .
 ---pagebreak---                                  - 2 -
3 . Since implementation of the MTN Agreement on Government Procurement
     would not , as such , amend Community legislation , which solely
     governs access to public contracts within the Community, a
     solution must be found to deal with the situation in which the
     contracting authorities to which both the Directive and the Agreement
     apply would be required , without more to apply both sets of
     arrangements which it would be difficult , if not impossible , to
     render compatible .
4 . In seeking a - suitable solution to the problem the Commission 's
     first concern has been not to relinquish , even in part , what has
     been achieved in this field under Community legislation and ,
     secondly , to retain the directive as the sole instrument for
     extending access to contracts within the Community .     The Commission
     has decided , therefore , in accordance with the orientation set out
     in its report of 8 October 1979 on the Geneva GATT MTN ,
     C0M(79 ) 514 final , in favour of aligning the provisions of
     Directive 77 / 62 / EEC on those of the MTN Agreement in so far as the
      latter are more favourable to suppliers in the area covered by the
     two instruments .
 II . ANALYSIS OF THE ARTICLES
 Article 1
 1 . Paragraph 1 amends the definition contained in Article 1(a ) of
     Directive 77 / 62 / EEC to cover the slightly wider range of contracting
     authorities referred to in the MTN Agreement ( Article I , paragraph
     1(c )).   The contracting authorities have had to be subdivided into
     two . categories in order to enable some of the proposed amendments
     to be applied to the contracting authorities referred to in the
     first indent only .
 ---pagebreak---                                 - 3 -
2 . Paragraph 2 aligns the threshold of contracts awarded by these
     contracting authorities referred to in the first indent of
     paragraph 1 on that of the MTN Agreement (Article 1 r paragraph
     1(b )), which is approximately 160 000 EUA .      The threshold for
     the other contracting authorities referred to in the second
     indent remains unchanged at 200 000 EUA .
3 . Paragraph 3 provides for the abolition of an exception to the
     Community procedures for the award of contracts in respect of
     goods quoted and purchased on a commodity market , since such
     goods are subject to the tendering procedures provided for in
     the MTN Agreement ( Article V , paragraph 15 ).
                                                «
4 . Paragraph 4 reproduces the requirements contained in paragraph
     16 of Article V. of the MTN Agreement and ensures a greater degree
     of transparency in the case of contracts awarded pursuant to
    .Article 6(1 } of Directive 77 / 62 / tEC '-y all contracting authorities .
5 . Paragraphs 5 , 6 and 8 align the time limits of , the procedures
     for the award of contracts contained in Directive 77 / 62 / EEC on
     the slightly longer ones contained in the MTN Agreement
 - ( Article V , paragraph 10 ).                           •
6 . Paragraphs 7 and 9 reflect certain special features of the
     selective procedure laid down in Article V , paragraph 8 of the
     MTN Agreement .  Although the incorporation of these provisions
     impose additional obligations on the contracting authorities
     referred to in the first indent of the first paragraph only , it
     has proved necessary in order to ensure no less favourable
     treatment for suppliers from the Member States than that accorded
     to suppliers from third countries which are signatories to the
     MTN Agreement .
7 . Paragraph 10 reproduces in Article 25a of a new chapter in Title
     IV of Directive 77 / 62 / EEC appropriate provisions drawn from
     paragraphs 2 to 5 of Article VI of the MTN Agreement        enabling
     suppliers from Member States who have not been invited or admitted
     to tender to obtain the same information concerning the award
 ---pagebreak---                            - 4-
   of the contract as can be obtained by suppliers who are nationals
   of a third country which is a signatory to the Agreement . Out of
   the same concern to ensure a greater degree of transparency.
   Article 25b which is based on paragraphs 6 to 8 of Part VI of the
   Agreement , introduces new arrangements for the exchange between
   governments of more sensitive information .
Article 2
The Commission expressly reserves the right to submit appropriate
proposals to the Council to amend the Directive in the light of the
results of the negotiations referred to in paragraph 6 of Article IX
of the MTN Agreement which are designed to broaden and improve it .
Article 3
The final date for implementing the Directive must be that of the
entry into  force of the MTN Agreement . It would be contrary to the
EEC Treaty  to allow, as from the date of entry into force of the MTN
Agreement , more favourable treatment to be accorded to suppliers
from third  countries than that accorded to suppliers from Member
States .
 ---pagebreak---                     COUNCIL DIRECTIVE
amending Council Directive 77 / 62 / EEC coordinating procedures for
the award of public supply contracts
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having regard to the Treaty establishing the European Economic Community
and in particular Article 100 thereof ,
Having regard to the proposal from the Commission ,
Having regard to the opinion of the European Parliament ,
Having regard to the opinion of the Economic and Social Committee ,
Whereas by Decision of ...             on the conclusion of the Multilateral
Agreements resulting from the 1973-79 Trade Negotiations the Council
approved on behalf of the European Economic Community in particular the
Agreement on Government Procurement the purpose of which is to establish
an international framework of rights and obligations concerning the
award of public contracts in order to secure the liberalization and
expansion of world trade ;
Whereas Council Directive 77 / 62 / EEC of 21 December 1976 coordinated
national procedures relating to public supply contracts in order to
introduce equal conditions of competition for such contracts in all the
Member States ;
Whereas as regards the international rights and commitments accruing to
the Community as a result of the acceptance of the Agreement referred
to above , the arrangements to be applied to tenderers and products of
third countries is that defined by that Agreement ;
 ---pagebreak--- Whereas certain provisions of the Agreement introduce more favourable
 conditions for tenderers than those Laid down in Directive 77 / 62 / EEC
of 21 December 1976 ;
 Whereas the opportunities for access to public contracts within the
 Community available under the EEC Treaty to undertakings of the Member
 States must be at least as favourable as the conditions of access to
 public contracts within the Community accorded under the arrangements
 contained in the " Agreement , on Government Procurement " to undertakings
 of third countries which are signatories to the Agreement ;
 Whereas it is necessary therefore to align the provisions of Directive
 77 / 62 / EEC of 21 December 1976 on those of the Agreement on Government
 Procurement ;                              -
 Whereas the provisions of this Directive should be reconsidered in the
 light ofthe results of the new negotiations provided for in paragraph
.6 of Article IX of the Agreement on Government Procurement ;
 HAS ADOPTED THIS DIRECTIVE :
 ---pagebreak---                              ARTICLE 1
Council Directive 77 / 62 / EEC is amended as follows :
                                                   >
1 . Article 1(b ) shall be replaced by the following :
     "( b ) " contracting authorities " shall be :
            - the entities referred to in Article I , paragraph 1(c ) of the
               " Agreement on Government Procurement " concluded within the
               context of the multilateral trade negotiations ;
            - regional or local authorities and the legal persons governed by
               public law or , in Member States where the latter are unknown ,
               bodies corresponding thereto as specified in Annex I to this
               Directive ;"
2 . Article 5(1)(a ) shall be replaced by the following :
     " The provisions of Titles II , III and IV and of Article 6 shall apply,
     under the conditions laid down in Article 4 , to public supply contracts :
     - whose value is not less than the threshold applied under Article I ,
        paragraph 1(b ) of the "Agreement on Government Procurement " concluded
        within the context of the multilateral trade negotiations , with regard
   1    to the contracting authorities referred to in the first indent of
        Article 1 ( b );
     - whose estimated value net of VAT is not less than 200 000 European
        units of account , with regard to the contracting authorities referred
        to in the second indent of Article 1(b )."
3 . Article 6(1)(f ) shall be deleted
 ---pagebreak---                              _ 2 -
4 . Article 6 shall be supplemented by the following new paragraph 3 :
    " Contracting authorities shall draw up a report on each contract awarded
    on the basis of provisions ( a ) to ( e ) of paragraph 1 . The report shall
    contain the name of the contracting authority, the value and nature of
    the contract , the name of the successful tenderer , and shall indicate
    the circumstances referred to in paragraph 1 ( a ) to ( e ) in which the
    contract was awarded . The report shall remain with the contracting
    authority in question and shall be available to the Commission and,
    through it , to the Advisory Committee for Public Contracts ."
5 . Article 10(1 ) shall be replaced by the following :
    " In open procedures , the time limit for the receipt of tenders fixed by
    the contracting authorities shall be not less than 30 days from the date
    of publication of the notice ."          -
6 . Article 11(1 ) shall be replaced by the following :
    " In restricted procedures , the time limit for the receipt of requests
    to participate fixed by the contracting authorities shall be not less
    than 30 days from the date of publication of the notice ."
7 . Article 11 shall be supplemented by the following paragraph ( 1)a :
    "The contract documents and supporting documents shall be sent to
    candidates who request them by the contracting authorities referred to
    in the first indent of Article 1(b ) or by the competent departments
    within four working days of receiving such request ."
8 . Article 11(3 ) shall be replaced by the following :
    "The time limit for the receipt of tenders fixed by the contracting
    authorities shall be not less than 30 days from the date of dispatch
    of the written invitation ."
 ---pagebreak---                                                         1
                              - 3 -
 9 . Article 19(1 ) shall be supplemented by the following new subparagraph ;
     " The contracting authorities referred to in the first indent of Article
     1(b ) shall authorize any other candidate who so requests to submit a
     tender on condition that the procedure referred to in Article 17 for
     checking suitability can be completed within the prescribed time .
     The number of such suppliers shall be limited only by the need to ensure
     the effective operation of the procedure for awarding contracts ."
10 . A new Chapter 3 entitled " Provision of information and examination of
     complaints " shall be introduced into Title IV consisting of the following
     two articles :
     " Article 25a               _
                                        j
     The contracting authorities referred to in the first indent of Article 1(b )
     shall :                                   -\
     - without delay/ notify to any candidate who so requests the reasons why
        he has not been invited or authorized to ubmit a tender ;
     - inform unsuccessful tenderers of the award of the contract .   Such . -
        information shall be notified without delay in writing or by notice and,
        in any event , within not more than seven working days from the date of
        the award ;
     - without delay, notify to any unsuccessful tenderer who so requests
        relevant information concerning the reasons for the rejection of his
        tender including information concerning the comparative characteristics
                                                                           /
        and advantages of the successful tender, and the name of the successful
        tenderer ;                                    -
     - designate a department which shall be responsible for furnishing
        additional information to unsuccessful tenderers who consider that
        the reasons given for the rejection of their tender are unsatisfactory
        or who wish to put other questions concerning the award of the contract ;
 ---pagebreak---                                - 4 -
- establish , without prejudice to Articles 169 and 170 of the Treaty
   and to the Council Decision of 26 July 1971 setting up an Advisory
   Committee for Public Contracts , as amended by Council Decision
   77 / 63 / EEC of 21 December 1976, procedures for the receipt and
   examination of complaints relating to any stage of the procedure
   for the award of contracts ."
" Article 25b
With regard to the contracting authorities referred to in the first
indent of Article 1(b ):
- the Member State of an unsuccessful tenderer may, without prejudice
   to the Council Decision of 26 July 1971 setting up an Advisory
   Committee for Public Contracts , as amended by Council Decision
   77 / 63 / EEC of 21 December 1976, request any further information
   concerning the award of the contract which may be necessary to enable
   it to ascertain whether the contract has been awarded justly and fairly .
   The Member State of the contracting authority in question shall , to
   this end , furnish information on both the comparative characteristics
   and advantages of the successful tender and the contract price .   This
   latter information may be disclosed by the Member State of the
   unsuccessful tenderer provided such right is exercised with discretion .
   Where such disclosure would prejudice competition on the occasion of
   subsequent invitations to tender , such information shall be disclosed
   only following consultation and with the consent of the Member State
   by which it was notified ;
- available information concerning the award of a contract shall be
   notified to any other Member State who so requests ;
- confidential information furnished pursuant to this Article which would
   impede the application of statutory provisions or which would be
   contrary in any other way to the public interest or would prejudice
   the legitimate commercial interests of specific public or private
   undertakings , or which could prejudice fair competition between suppliers
   shall be disclosed only with the formal authorization of the Member
   State which furnished it ."
 ---pagebreak---                                  - 5 -
                              ARTICLE 2
The Commission shall determine whether this Directive should be - reviewed ,
having regard to the results of the further negotiations provided for in
paragraph 6 of Article IX of the Agreement on Government Procurement
concluded within the context of the multilateral trade negoti ations , and
shall , if necessary, submit appropriate proposals to the Council .
                              ARTICLE 3
Member States shal-l adopt the measures necessary to comply with this
Directive not later than 1 January 1981 and shall forthwith inform the
Commission thereof .
                              ARTICLE 4
Member States shall ensure that the texts of the basic provisions of
domestic law, whether laws , regulations c , administrative provisions ,
which they adopt in the field covered by this Directive , are communicated
to the Commission .
                            - ARTICLE 5
This Directive is addressed to Member States .
 Done at Brussels ,
                                                      For the Council
                                                      The President