CELEX: 51987PC0134
Language: en
Date: 1987-07-01
Title: PROPOSAL FOR A COUNCIL DIRECTIVE COORDINATING THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE APPLICATION OF COMMUNITY RULES ON PROCEDURES FOR THE AWARD OF PUBLIC SUPPLY AND PUBLIC WORKS CONTRACTS

No C 230/6                                Official Journal of the European Communities                                  28. 8. 87
                Proposal for a Council Directive coordinating the laws, regulations and administrative
                provisions relating to the application of Community rules on procedures for the award of public
                                                 supply and public works contracts
                                                         COM(87) 134 final
                                   (Submitted by the Commission to the Council on 1 July 1987)
                                                           (87/C 230/05)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                             Whereas the absence or inadequacy of effective
                                                                     administrative or judicial remedies in a number of
                                                                     Member States deters Community undertakings from
Having regard to the Treaty establishing the European
                                                                     submitting tenders in the Member State in which the
Economic Community, and in particular Article 100 A
                                                                     contracting authority is established and whereas,
thereof,
                                                                     therefore, the Member States concerned must put an end
                                                                     to this state of affairs by introducing proper remedies;
Having regard to the proposal from the Commission,
                                                                     Whereas, since procedures for the award of public
Having regard to the opinion of the Economic and                     contracts are of such short duration, the competent
Social Committee,                                                    administrative body or court must be authorized to take
                                                                     precautionary measures aimed, among other things, at
                                                                     suspending the contract award procedure or the
Having regard to the conclusions of the Brussels and
                                                                     implementation of the decision taken by the contracting
Milan European Councils of 29 and 30 March and 28
                                                                     authority;
and 29 June 1985 concerning the internal market,
Having regard to the White Paper on completing the                   Whereas the Commission must be able, in the course of
internal market, and in particular the need for more                 an administrative or judicial procedure, to ensure the
effective monitoring of compliance with Community                    precedence of Community public interest and the correct
provisions in the field of public procurement,                       application of Community rules;
Having regard to the Commission communication of                     Whereas the specific nature of infringements of
 19 June 1986 on public procurement in the Community                 Community rules on public procurement, which stems
(COM(86) 375 final),                                                 from the fact that procedures for the award of public
                                                                     contracts are of such short duration, means that such
                                                                     infringements need to be dealt with urgently;
Whereas the Community rules on public procurement,
and in particular           Directives 71/305/EEC           and
77/62/EEC ('), do not include any specific provisions                Whereas, accordingly, the Commission must be free to
permitting effective monitoring of their application;                suspend a contract award procedure for a limited period
                                                                     in order to prevent any irreparable harm that might
                                                                     result if the contract were awarded unlawfully,
Whereas the arrangements that exist at both national        and
Community levels for monitoring their application            are
not adequate to ensure strict compliance with                the
relevant Community provisions before violation of            the     HAS ADOPTED THIS DIRECTIVE:
latter becomes irreparable;
                                                                                                 Article 1
Whereas the opening up of public procurement to
 Community competition necessitates a substantial                     1.   Member States shall take the measures necessary to
 increase in the guarantees of transparency and non-                 ensure, at all stages of the contract award procedure,
 discrimination and whereas, for it to have tangible                 effective administrative and/or judicial remedies for:
 effects, any offences committed during contract award
procedures must be effectively and rapidly censured;                 — setting aside decisions taken by the contracting auth-
                                                                         orities as defined in the Community rules on public
                                                                         procurement and which infringe, with respect to any
                                                                         contractor or supplier taking part in a procedure for
 (') Directive 71/305/EEC concerning the coordination of pro-
     cedures for the award of public works contracts (OJ No              the award of a public supply or public works
     L 185, 16. 8. 1971);                                                contract, the Community and/or national rules on
     Directive 77/62/EEC coordinating procedures for the                 public procurement,
     award of public supply contracts (OJ No L 13, 15. 1. 1977),
     as amended by Directive 80/767/EEC (OJ No L 215,
     18. 8. 1980).                                                   — idemnifying the injured contractor or supplier.
 ---pagebreak--- 28.8.87                               Official Journal of the European Communities                             No C 230/7
2.    The measures provided for in paragraph 1 shall                                        Article 4
authorize the competent administrative body or court to
take at the earliest opportunity precautionary measures,          1.   A decision to suspend a contract award procedure
including decisions to suspend the procedure for the             may be taken at any stage of the procedure where it has
award of the public contract concerned or the                    been established that a clear and manifest infringement
implementation of the decision taken by the contracting          has been committed, and in particular where:
authority.                                                       (a) the invitation to tender has not been published in the
                                                                      Official Journal of the European Communities;
3.    The competent administrative body or court may             (b) improper recourse has been had to an exceptional
take, among other things, the following decisions:                    award procedure;
                                                                 (c) the tender notice (published in the local press or in
— to order the removal, subject to the imposition of                 the Official Journal of the European Communities)
    penalty payments, of discriminatory technical,                    and any other document laying down the contract
    economic or financial specifications in the invitation            award conditions contains administrative, financial,
    to tender, the contract documents or in any other                economic or technical clauses that are incompatible
    such document,                                                   with Community law;
                                                                 (d) a contractor or supplier has been excluded from
— to set aside decisions taken unlawfully and to award               participation in the tendering procedure in violation
    damages to the injured undertaking for the costs of              of the Community rules.
    unnecessary studies, foregone profits or lost oppor-
    tunities.                                                    2.    The decision to suspend the procedure shall be
                                                                 notified to the contracting authority and to the Member
                                                                 State to which the latter is answerable. The Commission
                         Article 2                               may publish its decision in the Official Journal of the
                                                                 European Communities.
Member States shall guarantee the possibility for the
Commission to intervene in the administrative or judicial                                   Article 5
procedure referred to in Article 1 in order to ensure the
precedence of Community public interest and compliance           Member States shall bring into force, not later than . . . ,
with the Community rules applicable to the award of              the measures necessary to comply with this Directive.
public supply and public works contracts.                        They shall communicate to the Commission the texts of
                                                                 the main national laws, regulations and administrative
                                                                 provisions which they adopt in implementation of this
                         Article 3                               Directive.
The Commission may, in case of urgency, suspend a                                           Article 6
contract award procedure for a period that may not
exceed three months.                                             This Directive is addressed to the Member States.