CELEX: 51989PC0141
Language: en
Date: 1989-04-04
Title: Re-examined proposal for a COUNCIL DIRECTIVE amending Council Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts (presented by the Commission pursuant to Article 149(2)(d) of the EEC Treaty)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (89) 141
Vol. 1989/0041
 ---pagebreak--- Disclaimer
Conformément au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983 concernant
l'ouverture au public des archives historiques de la Communauté économique européenne et de
la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983, p. 1) modifié en dernier
lieu par le règlement (UE) 2015/496 du Conseil du 17 mars 2015 (JO L79 du 25. 3.2015, p. 1), ce
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In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning
the opening to the public of the historical archives of the European Economic Community and the
European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as last amended by Council
Regulation (EU) 2015/496 of 17 March 2015 (OJ L 79, 27.3.2015, p. 1), this file is open to the
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In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1. Februar
1983 über die Freigabe der historischen Archive der Europäischen Wirtschaftsgemeinschaft und
der Europäischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983, S. 1), zuletzt geändert durch die
Verordnung (EU) Nr. 2015/496 vom 17. März 2015 (ABI. L 79 vom 25.3.2015, S. 1), ist dieser Akt
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Übereinstimmung mit Artikel 5 der genannten Verordnung freigegeben; beziehungsweise werden
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2015/444 vom      13.   März 2015     über die   Sicherheitsvorschriften für den Schutz von  EU-
Verschlusssachen als herabgestuft angesehen.
 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                  COM(89 ) 141 final - SYN 71
                                                  Brussels , 4 April 1989
                          Re-examined proposal for a
                                  COUNCIL DIRECTIVE
  amending Council Directive 71 / 305 / EEC concerning the coordination
              of procedures for the award of public works
                                      contracts
   ( presented by the Commission pursuant to Article 149(2)(d ) of the
                                         EEC Treaty )
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 ---pagebreak---                               EXPLANATORY    MEMORANDUM
 I.   General Considérations
The re-examined proposal reflects the Commission 's position following
 the    common    position   of   the  Council   of  4   November   1988   and  the
amendments       to that   position adopted by the European Parliament           at
second      reading on    15 February     1989 . As   Indicated   In  the plenary
session , these amendments have been accepted by the Commission and are
 Included In the altered proposal .
 II . Analysis of the altered proposal
The proposal reflects the existing agreement between Council , European
Parliament and Commission , except for the parts underlined .             On these
points ,     the proposal    reflects the European Parliament 's amendments .
These,' In turn , represent an attempt to find a satisfactory compromise
between the proposal of the Commission following the first reading In
the European Parliament and the common position of the Council .
The    points    at  which   the altered proposal      differs  from   the common
position are set out below .
a)    Article 1 point 2 concernlng the proposed Article la o f Directive
_     71 / 305/ EEC
This     Article    provides    that , when   contracting   authorities    provide
direct      subsidies to more than SOX of         the value of     the contract ,
compliance with        the provisions of      the directive shall      be made a
condition of the subsidy .
 ---pagebreak---                                              - 2 -
 The coverage of the article Is provided for In paragraph 2 where It Is
 stated that works concerned must fall within Group 502 of the NACE , or
 concern building work for hospitals , facilities Intended for sports ,
 recreation and leisure , school and university buildings and buildings
 used for administrative purposes .                Given the precise nature of this
 coverage , which Is accepted , the description In the common position of
 the works as concerning " Infrastructure " and " the general                       Interest "
 adds      nothing   to    the   clarity     of     the    text .   The   provision     of   a
 substantial      public subsidy of         Itself demonstrates that           the work     Is
 considered to be          In the general         Interest .    The precise meaning of
 " Inf r astructure " is not made clear , although in the Commission 's view
 all     the   works    mentioned     In   paragraph       2   could    be   considered     as
 infrastructure .       The   suppression of         these    terms   therefore clarifies
 the text and avoids possible ambiguity , without changing Its coverage .
b)    Article 1 , point 7 concerning Article 5 , paragraphs 2(b ) and 3(f)
      of Directive 71 / 305 / EEC
These - provisions relate          to the award ,         by means of       the negotiated
procedure of contracts carried out for the purposes of research and
development .      According      to   the    Council      common    position ,     contracts
carried out purely for the purpose of experiment or development should
be    the    subject    of   prior   publication        of   a   tender    notice ,   whereas
contracts carried out exclusively for purposes of research should not .
The distinction thus Introduced between " experiment and development "
on the onq hand , and " research " on the other ,                  Is without foundation
an d      Is   operationally       Impracticable .       All     three     categories     are
concerned with the earliest stages In bringing forward new building
and engineering technology and materials , and there Is no reason to
treat      them differently .      Where questions of protecting               Intellectual
property or exclusive rights are concerned , appropriate provisions
already exist        In   the proposal .       It   Is   therefore proposed         to  treat
works carried out for purposes of research In the same way as those
carried out for experiment and development .
 ---pagebreak---                                           - 3 -
c)   Article 1 , point 12 concernlng Article 12 paragraph 1
This provides for contracting authorities to publish an                    Indicative
notice with the essential characteristics of major works contracts
which     they     Intend   to   award     over     the   coming   year .   The    term
" Indicative " makes It clear that the notice Is without prejudice to
any final call       for tenders .    It    Is clear that     It could not     Include
 Information which for objective reasons cannot be given at the time of
publication .      For this reason ,     It   Is superfluous to Indicate , as Is
done in the common position of the Council , that Information should be
published " whenever possible ".
d)   Art le I e 1 point 16 concernlng Article IQÇb')
The article provides the possibility for contracting authorities to
ask tenderers to        Indicate their       Intentions regarding possible sub ¬
contracts .     It   makes   clear   that      this   Information    Is   in   no   way
prejudicial      to   the  question     of     the   principal   contractors      final
responsibility .      Clearly , a sub-contractor would acquire Intermediate
responslbl I It les .
e)   The   Insertion of a new Article 1           point  17a ) providing for a new
     article 22a )
The new text relates to the possibility for contracting authorities to
impose conditions aimed at fighting long-term unemployment and helping
In the Integration of young people In work .
Following the Jurisprudence of the Court of Justice , in Its Judgement
In case 31 / 87 " Beentjes ", the proposal provides for the publication of
such conditions and requires them to be non-discr Imlnatory .                Further ,
such conditions could only be applied In the context of operational
programmes agreed by the Commission .               This  Is  In order to provide
 ---pagebreak---                                            4
 security for both contracting authorities and potential contractors by
 giving the Commission a clear opportunity to examine the proposed
 conditions with      a view to ensuring        their   compatibility with     the
Treaty , before bids are Invited .
The Commission considers that the absence of such a provision would
 create Insecurity and would risk giving rise to the use of conditions
which Infringe the Treaty .
 f)  Article 1 point 18 concerning article 22b
This provides for contracting authorities to indicate , in the contract
documents ,     the   sources   from   which    Information    may   be   obtained
concerning      locally   applicable   rules   on   employment   conditions .    It
further provides that ,      in their tenders , bidders shall       Indicate that
they have      taken these rules      Into account    In preparing     their  cost
est Imates .
 It  Is   In the    Interest of both the contractor and the contracting
authority    to ensure that      the contractor    takes full    account of    the
costs he must meet and does not get Into financial difficulty because
of his failure to discover the extent of his obligations .            Contracting
authorities      are   well   placed    to   Identify    the  sources    of   such
 Informat Ion .
The     common    position   of    Council    would    provide    less   economic
transparency and       Increase the risk of underestimation of contract
costs .
g)   Annex IV point E , new point 8(a ) to be added
There Is agreement that bidders may be Invited to Indicate the share
of the contract which they plan to sub-contract .
 ---pagebreak--- The purpose of this alteration is to provide a line in the contract
award notice through which to Inform potential sub-contractors of the
possible scope for sub-contracts .
 III .   Up-datlng of the I I st of entltles
This proposal    is made without prejudice to the up-dating of the list
of bodies covered by public law and their equivalent , according to the
criteria   set  out   In Article   1(b ) and   contained   In   Annex  I. The
Council has requested that the list be updated as soon as possible ,
preferably before final     adoption of    this proposal    by the Council .
Appropriate    steps   have  been    Initiated   for   the    correction  and
completion of this list .
 ---pagebreak---                             Re-examlned proposai for a
                                    COUNCIL PI RECTI VE
       amending Directive 71 / 305 / EEC concerning co-ordination of procedures
                        for the award of public works contracts
  THE COUNCIL OF THE EUROPEAN COMMUNITIES .
                                                                • •
 Having regard to the Treaty establishing the European Economic Community ,
  and in particular Articles 57(2 ), 66 and 100a thereof ;
 Having regard to the proposal from the Commission
                                                     (2)
  In co-operation with the European Parliament
 Having regard to the opinion of the Economic and Social Committee
( 1 ) OJ No C
( 2 ) OJ No C 167 . 27 . 6.1988 . p. 76 and Decision ... ( not yet published in the
      Official Journal ).
( 3 ) OJ No C 319 . 30.11.1987 , p. 55 .
                                                                               - Z -
 ---pagebreak---   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 ;
  Having regard to the conclusions drawn by successive meetings of the
  European Council on the need to establish such a market ;
 Having regard to the White Paper on Completing the Internal Market and in
 particular to the timetable and programme laid down therein for the opening
 up of the market for public works contracts ;
 Having regard to the Commission 's communication . to the Council of
  19 June 1986 on public procurement in the Community ;
 Whereas public works contracts are governed by Council Directive 71 / 305 / EEC
 of 26 July 1971 concerning the co-ordination of procedures for the award of
 public works contracts          as last amended by the Act of Accession of
 Spain and Portugal , and Council Directive 72 / 277 / EEC of 26 July 1972
 concerning the details of publication of notices of public works contracts
 and concessions in the Official Journal of the European Communities          by
( 1 ) OJ No L 185 , 16.8.1971 , p. 5 .
( 2 ) OJ No L 176 , 3.8.1972 , p. 12 .
 ---pagebreak---   the Declaration of 26 July 1971 of the representatives of the governments
  of the Member States , meeting within the Council , concerning procedures to
  be followed in the field of public works contracts             and by Council
  Decision 71 / 306 / EEC of 26 July 1971 setting up an Advisory Committee for
  Public Contracts          as amended by Decision 77 / 63 / EEC
  Whereas , in order to guarantee real freedom of establishment and freedom to
  provide services in the market for public works contracts , it is necessary
  to improve and extend the safeguards in the Directives that are designed to
  introduce transparency into the procedures and practices for the award of
  such contracts , in order to be able to monitor compliance with the
  prohibition of restrictions more closely and at the same time to reduce
  disparities in the competitive conditions faced by nationals of different
                                                                 I
 Member States :
 Whereas this Directive does not prevent the application of , in particular .
 Article 36 of the Treaty ;
 Whereas it is necessary to define more precisely what is meant by public
 works contracts in order to take account , in particular , of new forms of
 such contracts , and to lay down criteria for identifying all the entities
 which are subject to Directive 71 / 305 / EEC ;
 Whereas the list of bodies and categories of bodies in Annex I should be as
 exhaustive as possible ;
( 1 ) OJ No C 82 . 16.8.1971 , p. 13 .
( 2 ) OJ No L 185 . 16.8.1971 , p. 15 .
( 3 ) OJ No L 13 . 15.1.1977 , p. 15 .
                                                                                4
 ---pagebreak---  Whereas it is also necessary to extend the provisions of
 Directive 71 / 305 / EEC to works that are subsidized by the State but do not
 come within the terms of Article 1 ;
 Whereas , in view of the increasing importance of concession contracts in
 the public works area and of their specific nature , the rules concerning
 advertising should be brought within Directive 71 / 305 / EEC :
Whereas it is necessary to clarify the scope of the exemptions for certain
sectors in order that divergences in the application of
Directive 71 / 305 / EEC due to divergent interpretations of the exemptions in
different Member States do not increase ;
Whereas the threshold value from which contracts are subject to
Directive 71 / 305 / EEC was set in 1971 at 1 million Ecu and whereas , in view
                                                                 t
of the rise in the cost of construction work and the interest of small and
medium-sized firms in bidding for medium-sized contracts , this threshold
should now be set at 5 million ECU :
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 contractors to procedures for the
award of contracts :
                                                                             5
 ---pagebreak---  Whereas it is desirable to introduce provision for a negotiated procedure
 as already exists in the practice of some Member States , in order to
 curtail the use of the exceptional procedure provided for in Article 9 of
 Directive 71 / 305 / EEC :
 Whereas the negotiated procedure should be considered to be exceptional and
 therefore only applicable in certain limited cases :
 Whereas contracting authorities should be required to inform rejected
 candidates and tenderers of the reasons for rejection of their application
or bid and to draw up a report on the conduct of the proceedings leading up
to each award ;
Whereas it is necessary to adapt the common rules in the technical field to
the new Community policy on standards ;
Whereas , to create the necessary conditions for efficient Community-wide
competition for contracts so that firms from other Member States can bid on
comparable terms to domestic firms and a greater level of interest and
participation in contracts is aroused from a larger number of contractors ,
all the operations and procedures involved in the competitive tendering for
contracts should be made more transparent ; whereas contracting authorities
should also be required . (2 words deleted ) to announce forthcoming publLC
                                                                           -6 -
 ---pagebreak---  works projects throughout the Community , and to publish , in the same w, .
 all relevant details of how contracts have been awarded :
Whereas , in order to improve access to contracts and allow a larger number
of contractors to compete and to prepare their bids in reasonable time ,
especially for large projects which are generally of considerable technical
 and organizational complexity , the time limits for the receipt of
applications to bid and tenders should be lengthened :
Whereas it is in the general interest to encourage technical advances in
 the construction and public works sector so that transfer of technology and
know-how from one Member State to another benefits not only the general
public but also the construction industry :
Whereas work is under way in the Community on methods of framing
specifications in terms of performance requirements instead of - as detailed
technical prescriptions and contractors in the Community should immediately
be given the opportunity to submit variants under certain conditions ;
Whereas , to ensure transparency as to how contractors propose to carry out
a contract , it must be made possible for contracting authorities to be
informed of any part of the contract the tenderer intends to subcontract to
third parties :
Whereas   account should be taken of the        considerable impact     public works
projects can have on job creation in parts of the Community suffering from
unemployment rates higher than the Community average ;
                                                                              -7 -
 ---pagebreak---  Whereas it could prove useful to provide for greater transparency as to the
 requirements regarding the protection and conditions of employment
 applicable in the Member State in which the works are to be carried out ;
 Whereas it is appropriate that national provisions for regional development
 requirements to be taken into consideration in the award of public works
 contracts should be made to conform to the objectives of the Community and
 be in keeping with the principles of the Treaty ;
 Whereas adequate statistical provisions should be included in
 Directive 71 / 305 / EEC in order to improve , and to put on a more systematic
 basis , information on the way in which contracting authorities award their
 contracts ;                                                            •
Whereas Spain has recently adopted legislation to implement
Directive 71 / 305 / EEC : whereas , given the fact that the introduction of
other amendments at this stage would adversely effect the adaptation of the
private sector in that Member State , it is appropriate to grant the Kingdom
of Spain an additional period to implement this Directive ;
Whereas Portugal          is   in    need   of   a   . transitional period for
similar reasons ;
Whereas Greece         will    be    adapting    its     legislation      to
Directive 71 / 305 / EEC and whereas incorporation , at this stage , of other
Community rules would have an adverse effect upon the public works
contracts sector and in particular upon certain economically important
factors such as the stability , transparency and maintenance , in the medium
term , of commercial conditions ;
                                                                               8
 ---pagebreak--- Whereas in accordance with the conclusions of the said meetings of the
European Council , of the White Paper and of the said Commission
communication to the Council , Directive 71 / 305 / EEC should be amended and
Directive 72/ 277/ EEC repealed ,
HAS ADOPTED THIS DIRECTIVE :
                                     Article 1
Directive 71 / 305 / EEC Is hereby amended as follows :
1)  Article 1      is   replaced by the following :
    " Article 1
    For the purposes of this Directive :
    ( a ) " public works contracts " are contracts for pecuniary Interest
          concluded In writing between a contractor and a contracting
          authority as defined in ( b ), which have as their object either
          the execution or both the execution and design of works related
          to one of the activities referred to In Annex 1 1 or a work
          defined In ( c ) below , or carrying out    by whatever means of a
          work corresponding to the requirements specified by the
          contracting authority ;
    ( b ) " Contracting authorities " shall be the State , regional or local
          authorities , bodies governed by public law , associations formed
          by one or several of such authorities or bodies governed by
          public law .
                                                                             -9-
 ---pagebreak---        A body governed by public law means any body :
       - established for the specific purpose of meeting needs in the
         general interest , not having an industrial or commercial
         character , and
       - having legal personality , and
       - financed , for the most part , by the State , or regional or local
         authorities , or other bodies governed by public law ; or subject to
         management supervision by those bodies : or having an
         administrative , managerial or supervisory board , more than half of
         whose memebrs are appointed by the State , regional or locaJ.
         authorities or by other bodies governed by public law .
      The lists of bodies or of categories of such bodies governed by
      public law which fulfil the criteria referred to in the second
      subparagraph are set out in Annex I.     These lists shall be as
      exhaustive as possible and may be reviewed in accordance with the
      procedure laid down in Article 30b .    To this end . Member States
      shall periodically notify the Commission of any changes to their
      lists of bodies and categories of bodies ;
( c ) a "work" means the outcome of building or civil engineering works
      taken as a whole that is sufficient of itself to fulfil an economic
      and technical function ;
                                                                            10
 ---pagebreak---     ( d ) " public works concession " is a contract of the same type as that
           Indicated In ( a ) except for the fact that the consideration for
           the works to be carried out consists either solely In the right
           to exploit the construction or In this right together with
           payment ;
    ( e ) "open procedures” are those national procedures whereby all
           Interested contractors may submit tenders ;
    ( f ) “ restricted procedures " are those national procedures whereby
          only those contractors Invited by the contracting authority may
          submit tenders ;
   ( g ) " negotiated procedures " are those national procedures whereby
          contracting authorities consult contractors of their choice and
          negotiate the terms of the contract with one or more of them ;
   ( h ) a contractor who submits a tender shall be designated by the
          term " tenderer " and one who has sought an Invitation to take
          part In a restricted and negotiated procedure by the term
          " candidate "."
2) The following Articles are inserted :
   " Article 1a
   1.     Member States shall take the necessary measures to ensure that
   the contracting authorities comply or ensure compliance with this
   Directive where they subsidize directly by more than 50% a works
   contract awarded by an entity other than themselves .
                                                                         - 11-
 ---pagebreak---  2 . Paragraph 1 shall concern only contracts covered by Class 50 .
 Group 502 . of the NACE nomenclature and to contracts relating to
 building work for hospitals , facilities intended for sports , recreation
 and leisure , school and university buildings and buildings used for
 administrative purposes .
 Article 1b
 1.   Should contracting authorities conclude a public works concession
 contract as defined in Article 1(d ), the advertising rules as described
 in Article 12(3 ). ( 6 ). ( 7 ) and ( 9 ) to ( 13 ). and in Article 15a . shall
apply to that contract when its value is not less than 5 000 000 Ecus .
2.    The contracting authority may :
- either require the concessionaire to award contracts representing a
    minimum of 30% of the total value of the work 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 work for
   which the concession contract is to be awarded which they intend to
   assign to third parties .
                                                                                 12
 ---pagebreak---  3 . When the concessionaire is himself one of the authorities awarding
 contracts within the meaning of Article 1(b ), he shall comply with the
 provisions of this Directive in the case of works to be carried out by
 third parties .
 4.  Member States shall take the necessary steps to ensure that a
 concessionaire other than an authority awarding contracts shall apply
 the advertizing rules listed in Article 12(4 ). ( 6 ). ( 7 ) and ( 9 ) to ( 13 ).
 and in Article 15b , in respect of the contracts which it awards to third
 parties when the value of the contracts is not less than 5 000 000 Ecus .
Advertising rules shall not be applied where works contracts meet the
conditions laid down in Article 5(3 ).
Undertakings which have formed a group in order to obtain the concession
contract , or undertakings affiliated to them , shall not be regarded as
                                                             I
third parties .
An " affiliated undertaking" means any undertaking over which the
concessionaire may exercise , directly or indirectly , a dominant
influence or which may exercise a dominant influence over the
concessionaire or which , in common with the concessionaire , is subject
to the dominant influence of another undertaking by virtue of ownership ,
financial participation , or the rules which govern it .       A dominant
influence on the part of an undertaking shall be presumed when , directly
or indirectly in relation to another undertaking , it :
                                                                              13
 ---pagebreak---       - holds the major part of the undertaking 's subscribed capital :
         or
     - controls the majority of the votes attaching to shares issued by the
         undertakings :
         or
     - can appoint more than half of the members of the undertaking 's
         administrative , managerial or supervisory body .
    A comprehensive list of these undertakings shall be enclosed wi_Lh the
     candidature for the concession .     This list shall be brought up to date
     following any subsequent changes in the relationships between the
    undertakings ."
3 ) Article 2 is     deleted .
4 ) Article 3(1 ). ( 2 ) and ( 3 ) are deleted and paragraphs 4 and 5
    thereof     are replaced       by the following :
    "4 .    This Directive shall not apply to :
    ( a ) works contracts awarded by carriers by land , air . sea or inland
          waterway ;
                                                                              14
 ---pagebreak---      ( b ) works 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 .
     ( c ) works contracts 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 ."
5 ) Article 4 is replaced by the following :
    " Article 4
    This Directive shall not apply to public contracts governed by different
    procedural rules and awarded :
    ( a ) in pursuance of an international agreement , concluded in conformity with
           the EEC Treaty , between a Member State and one or more non-member
           countries and covering works intended for the joint implementation or
           exploitation of a project by the signatory States ; all agreements shall be
           communicated to the Commission , which may consult the Advisory Committee
           for Public Contracts set up by Decision 71 / 306/ EEC [Tl ) as amended by
           Decision 77/63/ EEC ( 2j):
                                                                                     15
 ---pagebreak---       ( 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 .
        ( 1 ) OJ No L 185 . 16.8.1971 . p. 15 .
        ( 2 ) OJ No L 13 . 15.1.1977 . p. 15 ."
6 ) The following Article        is   inserted :
    " Article 4a
     1 . The provisions of this Directive shall apply to public works contracts
    whose estimated value net of VAT is not less than 5 000 000 Ecus .
    2 . The value of the threshold in national currencies shall normally be revised
    every two years with effect from 1 January ....       The calculation of this value
    shall be based on the average daily values of these currencies in terms of the
    Ecu over the 24 months terminating on the last day of October immediately
    preceding the 1 January revision . The values shall be published in the
    Official Journal of the European Communities at the beginning of November .
                                                                                    16
 ---pagebreak---       3.   Where a work is subdivided into several lots , each one the subject of a
      contract , the value of each lot must be taken into account for the purpose of
      calculating the amounts referred to in paragraph 1 .   Where the aggregate value
      of the lots is not less than the amount referred to in paragraph 1 . the
      provisions of that paragraph shall apply to all lots . Contracting authorities
      snail be permitted to depart from this provision for lots whose estimated
     value net of VAT is less than 1 000 000 Ecus , provided that the total
     estimated value of all the lots exempted does not , in consequence , exceed 20°..
     of the total estimated value of all lots .
     4.   No work or contract   may be split up with the intention of avoiding thr
     application of the preceding paragraphs .
     5.   When calculating the amounts referred to in paragraph 1 and in Article ‘3 .
     account shall be taken not only of the amount of the public works contracts
    but also of the estimated value of the supplies needed to carry out the worKs
    which are made available to the contractor by the contracting authorities .
7 ) Article 5 is replaced by the following :
    • 'Article 5
    1.    In awarding public works contracts the contracting authorities shall apply
    the procedures defined in Article He ), ( f ) and ( g ), adapted to this
    Directive .
                                                                                    17
 ---pagebreak--- 2.    The contracting authorities may award their public works contracts
by negotiated procedure , with prior publication of a tender notice and
after having selected the candidates according to qualitative public
criteria , In the following cases :
( a ) In the event of Irregular tenders In response to an open or
      restricted procedure or In the event of tenders which are
      unacceptable u-'der national provisions that are In accordance with
      the provisions of Title IV , Insofar as the original terms of the
      contract are not substantially altered .   The contracting authorities
      shall not , In these cases , publish a tender notice where they
      Include In such negotiated procedure all the enterprises satisfying
      the criteria of Articles 23 to 28 which , during the prior open or
      restricted procedure , have submitted offers In accordance with the
      formal requirements of the tendering procedure ;
( b ) for works carried out purely for purposes of research , experiment ,
      study or development and not with the purpose of ensuring profit or
      recovering the costs of research and development ;
( c ) In exceptional cases , when the nature of the works or the risks
      attaching thereto do not permit prior overall pricing .
3.    The contracting authorities may award their public works contracts
by negotiated procedure without prior publication of a tender notice , In
the fol lowing cases :
                                                                             18
 ---pagebreak---   ( a ) in the absence of tenders or of appropriate 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 at its request ;
 ( b ) when , for technical or artistic reasons or for reasons connected with the
         protection of exclusive rights , the works may only be carried out by a
         particular contractor ;
 ( c ) insofar as is strictly necessary when , for reasons of extreme urgency
        brought about by events unforeseen by the contracting authorities in
        question , the time limit laid down for the open , restricted or negotiated
        procedures referred to in paragraph 2 above cannot be kept .   The
        circumstances invoked to justify extreme urgency must not in any event be
                                                                 I
        attributable to the contracting authorities ;
( d ) for additional works not included in the project initially considered or
        in the contract first concluded but which have , through unforeseen
        circumstances , become necessary for the carrying out of the work described
        therein , on condition that the award is made to the contractor carrying
        out such work :
        - when such works cannot be technically or economically separated from the
          main contract without great inconvenience to the contracting
           authorities ;
                                                                                 19 ••
 ---pagebreak---        or when such works , although separable from the execution of the
       original contract , are strictly necessary to Its later stages ;
However , the aggregate value of contracts awarded for additional works
may not exceed 50% of the amount of the main contract ;
 ( e ) for  new  works   consisting  of  the  repetition   of   similar  works
       entrusted   to  the   undertaking  to  which   the   same   contracting
       authorities awarded an earlier contract , provided that such works
       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 works shall be taken Into consideration by the
       contracting authorities when they apply the provisions of Article
       4a . This procedure may only be applied during the three years
       following the conclusion of the original contract .
( f ) Deleted
4.     In all other cases , the contracting authorities shall award their
public works      contracts  by  the open procedure or    by   the  restricted
procedure ."
                                                                               20 -
 ---pagebreak--- 8 ) The following Article is inserted :
     " Article 5a
          The contracting authority shall , within 15 days of the date on which tin
     request is received , inform any eliminated candidate or tenderer who so
     requests 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 contracting authority shall inform candidates or tenderers who s <<
    request of the grounds on which it decided not to award a contract in respr\
    of which a prior call for competition was made , or to recommence the
    procedure .      It shall also inform the Office for Official Publications of ti ..
    European Communities of that decision .                        •
    3.     For each contract awarded the contracting authorities shall draw up a
    written report which shall include at least the following :
    - the name and address of the contracting authority , the subject and value >•:'
        the contract ;
    - the names of the candidates or tenderers admitted and the reasons for their
        select ion ;
    - the names of the candidates or tenderers rejected and the reasons for then
        rejection ;
 ---pagebreak---       - 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 m Article 5 which
         justify the use of these procedures .
     This report , or the main features of it . shall be communicated to the
     Commission at its request.”
 9 ) Articles 7 , 8 and 9 are    deleted .
10 ) Article 10     is replaced by the following :
     " Article  10
     1 . The technical specifications defined in Annex III 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
     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
     European technical approvals or by reference to common technical
     specif icat ions .
                                                                                 22
 ---pagebreak---  3 . A contracting authority may depart from paragraph 2 if :
  ( a ) the standards , European technical approvals or common technical
         specifications do not include any provision for establishing conformity ,
         or technical means do not exist for establishing satisfactorily the
         conformity of a product to these standards , European technical approvals
        or common technical specifications ;
 ( b ) use of these standards , European technical approvals or common technical
        specifications would oblige the contracting 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 ;
( c ) 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.      Contracting 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 .
                                                                                23
 ---pagebreak---  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 accordant <.*
         with the procedures laid down in Council Directive        /    / EEC
         of . on construction products : ( 1 )
 ( b ) may be defined by reference to national technical specifications r>.-l at i ng
         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 contracting authority :
          ( li ) other national standards and national technical approvals of Hit-
                  country of the contracting authority ;
        ( iii ) any other standard .
 ---pagebreak--- 6.     Unless such specifications are       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 a 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 awarding contracts
are unable to give a description of the subject of the contract using
specifications which are sufficiently precise and Intelligible to all
parties concerned .
( 1 ) OJ No L . ".
11 ) Article 11 Is     deleted .
12 ) Articles 12 to 15     are replaced by the following :
      " Article 12
      1.   Contracting authorities shall make known , ( two words removed ) by
      means of an Indicative notice , the essential characteristics of the
      works contracts which they Intend to award and the estimated value
      of which Is not less than the threshold laid down In Article 4a(1 ).
                                                                                - 25-
 ---pagebreak---  2.  Contracting authorities who wish to award a public works contract by
 open , restricted or negotiated procedure referred to in Article 5(2 ). shall
make known their intention by means of a notice .
 3.  Contracting authorities who wish to award a works concession contract
 shall make known their intention by means of a notice .
4.   Works concessionaires other than a contracting authority who wish to
award a works contract to be carried out by third parties as defined J n
Article lb(4 ), shall make known their intention by means of a notice .
5.   Contracting authorities who have awarded a contract shall make known the
result by means of a notice .   However , certain information on contract award
may , in certain cases , not be published where release of such information
                                                              I
would impede law enforcement or otherwise be contrary to the public interest
would prejudice the legitimate commercial interests of particular
enterprises , public or private , or might prejudice fair competition between
contractors .
6.   The contracting authorities shall send the notices referred to in the
preceding paragraphs as rapidly as possible and 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 15 , the
notice shall be sent by telex , telegram or telefax .
                                                                             26
 ---pagebreak---    ( a ) The notice referred to in paragraph 1 shall be sent as soon as possible-
          after the decision approving the planning of the works contracts that the
          contracting authorities intend to award ;
  > b ) The notice referred to in paragraph 5 shall be sent at the latest 48 days
          after the award of the contract in question .
 7.      The notices referred to in paragraphs 1 , 2 , 3 , 4 and 5 shall be drawn up
 m accordance with the models given in Annex IV , V and VI , and shall specify
 the information requested in those Annexes .
 In open , restricted and negotiated procedures , the contracting authorities may
not require any conditions but those specified in Articles 25 and 26'when
 requesting information concerning the economic and technical standards which
 they require of contractors for their selection ( Point 11 of Annex IV B.
point 10 of Annex IV C and point 9 of Annex IV D ).
8.       The notices referred to in paragraphs I and 5 above shall be published in
full in the Official Journal of the European Communities and in the TED data
bank in the official languages of the Communities , the original text alone
being authentic .
9.      The notices referred to in paragraphs 2 . 3 and 4 shall be published in
full in the Official Journal of the European Communities and in the TED data
bank in their original language .       A summary of the important elements of each
notice shall be published in the other official languages of the Communities ,
the original text alone being authentic .
                                                                                   27
 ---pagebreak---   10 .   The Office for Official Publications of the European Communities shall
 publish the notices not later than 12 days after their dispatch .     In the ca-.e
 of the accelerated procedure referred to in Article 15 . this period shall be
 reduced to 5 days .
  11 .   The notice shall not be published in the official journals or in the
 press of the country of the contracting authority before the abovement toned
 date of dispatch , and it shall mention this date .   It shall not contain
 information other than that published in the Official Journal of the European
 Communities .
 12 .   The contracting authorities must be able to supply proof of the date cf
dispatch .
                                                                I
 13 .   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 , or approximately 650
words .     Each edition of the Journal containing one or more notices shall
reproduce the model notice or notices on which the published notice or notices
are based .
Article     13
1.     In open procedures the time limit for the receipt of tenders shall be
fixed by the contracting authorities at not less than 52 days from the date or
sending the notice .
                                                                                28
 ---pagebreak---  2.   The time limit for the receipt of tenders provided for in paragraph 1 may
 be reduced to 36 days where the contracting authorities have published a
 tender notice , drafted in accordance with the specimen in Annex IV - A
 provided for in Article 12(1 ), in the Official Journal of the European
 Communities .
 3.  Provided they have been requested in good time , the contract documents and
 supporting documents must be sent to the contractors by the contracting
 authorities or competent departments within six days of receiving their
 application .
4.   Provided it has been requested in good time , additional information
relating to the contract documents shall be supplied by the contracting
authorities not later than 6 days before the final date fixed for receipt of
tenders .
5.   Where the contract documents , supporting documents or additional
information are too bulky to be supplied within the time limits laid down m
paragraph 3 or 4 or where tenders can only be made after a visit to the site
or after on - the - spot inspection of the documents supporting the contract
documents , the time limits laid down in paragraphs 1 and 2 shall be extended
accordingly .
                                                                             - 29 -
 ---pagebreak---  Article 14
  1.    In restricted procedures   and negotiated procedures as described in
 Article 5(2 ). the time limit for receipt of requests to participate fixed by
 the contracting authorities shall be not less than 37 days from the date of
 dispatch of the notice .
 2.    The contracting authorities shall simultaneously and in writing invite the
 selected candidates to submit their tenders .     The letter of invitation shall
 be accompanied by the contract documents and supporting documents .     It shall
 include at least the following information :
 ( a ) where appropriate , the address of the service from which the contract
       documents and supporting documents can be requested and the final date for
                                                                 I
       making such a request ; also the amount and terms of payment of any sum to
       be paid for such documents ;
( b ) the final date for receipt of tenders , the address to which they must bo
       sent and the language or languages in which they must be drawn up :
( c ) a reference to the contract notice published :
( d ) an indication of any documents to be annexed , either to support the
       verifiable statements furnished by the candidate in accordance with
       Article 12(7 ). or to supplement the information provided for in that
       Article under the same conditions as those laid down in Articles 25 and
       26 ;
                                                                                30
 ---pagebreak---  ( e > the criteria for the award of the contract if these are not given in the
        notice .
 3.     In restricted procedures , the time limit for receipt of tenders fixed by the
 c-.ini ract ing authorities may not be less than 40 days from the date of dispatch of
 the written invitation .
4.      The time limit for receipt of tenders laid down in paragraph 3 may be reduced
 to 26 days where the contracting authorities have published the tender notice ,
drafted according to the specimen in Annex IV - A provided for in Article 12 < i' .
m the Official Journal of the European Communities .
5.     Requests to participate in procedures for the award of contracts mfy be made
by letter , by telegram , telex , telefax or by telephone . If by one of the last
four , they must be confirmed by letter dispatched before the end of the period
laid doun in paragraph 1 .
6.     Provided it has been requested in good time , additional information relating
to the contract documents must be supplied by the contracting authorities not
later than 6 days before the final date fixed for the receipt of tenders .
7.     Where tenders can only be made after a visit to the site or after on - the - spot
inspection of the documents supporting the contract documents , the time limit
laid down in paragraphs 3 and 4 shall be extended accordingly .
 ---pagebreak---  Article 15
  I.    In cases where urgency renders impracticable the time limits laid down in
 article 14 . the contracting authorities may fix the following time limits :
 ( a ) a time limit for receipt of requests to participate which shall be not less
       than 15 days from the date of dispatch of the notice .
 ( b ) a time limit for the receipt of tenders which shall be not less than 10 days
       from the date of the invitation to tender .
2.     Provided it has been requested in good time , additional information relating
to the contract documents must be supplied by the contracting authorities not
later than 4 days before the final date fixed for the receipt of tenders .
                                                                    I
3.     Requests for participation in contracts and invitations to tender must be
made by the most rapid means of communication possible .      When requests to
participate are made by telegram , telex , telefax or telephone , they must be
confirmed by letter dispatched before the expiry of the time limit referred to in
paragraph 1 ."
                                                                                  32
 ---pagebreak---  13 ) The following Articles    are inserted :
       " Article 15a
      Contracting authorities who wish to award a works concession contract as
       defined in Article 1(d ) shall fix a time limit for receipt of candidatures
      for the concession , which shall not be less than 52 days from the date of
      dispatch of the notice .
      Article   15b
       In works contracts awarded by a concessionaire of works other than an
      authority awarding contracts , the time limit for the receipt of requests to
      participate shall be fixed by the concessionaire at not less than 3-7 days
      from the date of dispatch of the notice , and the time limit for the receipt
      of tenders at not less than 40 days from the date of dispatch of the not itv
      or the invitation to tender ."
14 ) Articles 16 , 17 and 18 are    deleted .
15 ) Articles 19 and 20 are replaced by the following :
      " Article 19
      Contracting authorities may arrange for the publication in the Official
      Journal of the European Communities of notices announcing public works
      contracts which are not subject to the publication requirement laid down in
      this Directive .
                                                                                   33
 ---pagebreak---       Article 20
     Contracts shall be awarded on the basis of the criteria laid down in Chapter
      2 of this Title , taking into account Article 20a , after the suitability of
      the contractors not excluded under Article 23 has been checked by the
      contracting authorities in accordance with the criteria of economic and
      financial standing and of technical knowledge or ability referred to in
     Articles 25 to 28 ."
16 ) The following Articles    are inserted :
     " Article 20a
     Where the criterion for the award of the contract is that of the most
     economically advantageous tender , contracting authorities may take account of
                                                                   I
     variants which are submitted by a tenderer and meet the minimum
     specifications required by the contracting authorities .
     The contracting authorities shall state in the contract documents the minimum
     specifications to be respected by the variants and any specific requirements
     for their presentation .   They shall indicate in the tender notice whether
     variants will be considered .
                                                                                   3-1
 ---pagebreak---       Contracting authorities may not reject the submission of a variant
      on the sole grounds that It has been drawn up with technical
      specifications defined by reference to national standards
      Implementing European standards , to European technical approvals or
      to common technical specifications referred to In Article 10(2 ) or
      by reference to national technical specifications referred to In
     Article 10(5)(a ) and ( b ).
     Article 20b
      In the contract documents , the contracting authority may ask the
     tenderer to Indicate In his tender any share of the contract he may
      Intend to sub-contract to third parties .
     This Indication shall be without prejudice to the question of the
     principal contractor 's final responslbl I Ity ."
17 ) Article 22     is replaced by the following :
     “ Article 22
     1.   In restricted and negotiated procedures the contracting
     authorities shall , on the basis of Information given relating to the
     contractor 's personal 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 23 to 28 those whom they will Invite to submit a tender or
     to negotiate .
     2.   Where the contracting authorities award a contract by restricted
     procedure , they may prescribe the range within which the number of
     undertakings 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 work to be
     carried out .    The range must number at least five undertakings and
     may be up to twenty .
 ---pagebreak---      In any event , the number of candidates Invited to tender shall be
    sufficient to ensure genuine competition .
    3.   Where the contracting authorities award a contract by negotiated
    procedure as referred to In Article 5(2 ), 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 contracting 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 ."
17a)The following Article is inserted :
    " Article 22a
    Contracting authorities may require as a condition of participation
    In contracts measures whose aim Is to help In the fight against
    long-term unemployment and In the Insertion of young people In
    employment to the extent that such measures are without either
    direct or Indirect discrimination with regard to bidders from
    different Member States and to the extent that such measures are
    provided for In the context of operational programmes presented by
    the competent authorities In the Member States and agreed by the
    Commission .   In this event , the contracting authorities shall
    Indicate these conditions In the tender notice ."
                                                                          - 36-
 ---pagebreak--- 18 ) The following Article       is inserted :
      " Article 22b
      1.   The contracting authority sha 1 1 state In the contract documents
      the authority or authorities from which a tenderer 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
     works are to be executed and which shall be applicable to the works
     carried out on site during the performance of the contract .
     2.    The tenderer shall    Indicate In his offer that he has taken
     account of the obligations relating to employment protection
     provisions and the working conditions In force on the place where
     the work    Is carried out . "
19 ) Article 24 Is     replaced by the following :
     " Article 24
     Any contractor wishing to take part In a public works contract may
     be requested to prove his enrolment In the professional or trade
     register under the conditions laid down by the laws of the Member
     State In which he Is established :
     -     In Belgium , the " registre du commerce - Handelsregister ";
     -     In Denmark , the " Erhvervs-og Selskabsstyrelsen ";
     -     In Germany , the " Handelsregister " and the " Handwerksrol le " ;
 ---pagebreak---  - in Greece , a declaration on the exercise of the profession of public works
    contractor made on oath before a notary may be required ;
 - in Spain , thè "Registro Oficial de Contratistas del Ministerio de Industria y
    Energia";
 - in France , the " registre du commerce " and the " répertoire des métiers ";
- in Italy , thè "Registro della Camera di commercio , industria , agricoltura e
   artigianato ":
- in Luxembourg , the " registre aux firmes " and the " rôle de la Chambre des
   métiers ";
- in the Netherlands , the "Handelsregister";
- in Portugal , the "Commissão de Alvarás de Empresas de Obras Públicas e
   Particulares " "( CAEOPP )";
- in the United Kingdom and Ireland , the contractor may be requested to provide a
   certificate from the " Registrar of. Companies " or the "Registrar of Friendly
   Societies " or , if this is not the case , 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 and under a
  given business name ."
                                                                                   38
 ---pagebreak--- 20 ) Article 29(3 ) is     deleted and Article 29(4 ) and ( 5 ) replaced by the
     following :
      "4 .  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 is to give preference to
     certain tenderers , on condition that the rules invoked are compatible with
      the Treaty .
     b.    If , for a given contract , tenders appear to be abnormally low in relation
     to the transaction , before it may reject those tenders the contracting
     authority shall request , in writing , details of the constituent elements of
     the tender which it considers relevant and shall verify those constituent
     elements taking account of the explanations received .         '
     The contracting authority may take into consideration explanations which ar =
     justified on objective grounds including the economy of the construction
     method , or the technical solutions chosen , or the exceptionally favourable
     conditions available to the tenderer for the execution of the work , or the
     originality of the work proposed by the tenderer .
     If the documents relating to the contract provide for its award at the lowest
     price tendered , the contracting authority must communicate to the Commission
     the rejection of tenders which it considers to be too low .
                                                                                   39
 ---pagebreak---       However , until the end of 1992 , if current national law so permits , the
      contracting authority may exceptionally , without any discrimination on
      grounds of nationality , reject tenders which are abnormally low in relation
      to the transaction , without being obliged to comply with the procedure
      provided for in the first subparagraph if the number of such tenders for a
      particular contract is so high that implementation of this procedure would
      lead to a considerable delay and jeopardize the public interest attaching to
      the execution of the contract in question .   Recourse to this exceptional
     procedure shall be mentioned in the notice referred to in Article 12(5 )."
21 ) The following Articles    are inserted in Title V :
     "Article 29a
     1.   Until 31 December 1992 , this Directive shall not prevent the application
     of existing national provisions on the award of public works 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 grounds of nationality , freedom of establishment and
     freedom to provide services , and with the Community 's international
     obligations .
                                                                                 40
 ---pagebreak---         2 . Paragraph 1 shall be without prejudice to Article 29(4 ).
         • Article 29b
         1.   Member States shall inform the Commission of national provisions covered
        by Article 29(4 ) and Article 29a 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 Works Contracts ."
  22 ) The following Articles      are inserted :
       " Article 30a
        1.    In order to permit assessment of the results of applying the Directive .
       Member States shall forward to the Commission a statistical report on the
       contracts awarded by contracting authorities by 31 October 19 .. at the
       iatest        for the preceding year and thereafter by 31 October of every
       second year .
       Nevertheless , for Greece , Spain and Portugal , the date 31 October 19 ..
        shall be replaced by 31 October 1995 .
( I ) Three years after the entry into force of the Directive .
                                                                                     41
 ---pagebreak---   2 . This report shall detail at least the number and value of contracts awarded by
  each contracting authority or category of contracting authority above the
  threshold , subdivided as far as possible by procedure , category of work and the
  nationality of the contractor to whom the contract has been awarded , and in the
  case of negotiated procedures , subdivided in accordance with Article 5 . listing
  the number and value of the contracts awarded to each Member State and to third
  countries .
  3 . The Commission shall determine the nature of any additional statistical
  information , which is requested in accordance with this Directive , in
  consultation with the Advisory Committee for Public Works Contracts .
 Article 30b
  1.   Annex I to this Directive shall be amended by the Commission when , in
 particular on the basis of the notifications from the Member States , it is
necessary
 ( a ) to remove from Annex I bodies governed by public law which no longer fulfil
       the criteria laid down in Article lb ;
( b ) to include in that Annex bodies governed by public law which meet those
       criteria .
2.     Amendments to Annex I shall be made by the Commission after consulting the
Advisory Committee for Public Works Contracts .
                                                                                  42
 ---pagebreak---        The Chairman of the Committee shall submit to the Committee a draft of any
      measures to be taken . The Committee shall deliver its opinion on the draft ,
       if necessary by taking a vote , within a time-limit to be fixed by the
      Chairman in the light of the urgency of the matter .
      The opinion shall be recorded in the minutes .     In addition , each Member Stat "-
      shall have the right to request that its position be recorded in the minutes .
      Tht.- Commission shall take the fullest account of the opinion delivered by irn .-
      Committee .   It shall inform the Committee of the manner in which its opinion
      has been taken into account .
      3.    Amended versions of Annex I shall be published in the Official-Journal of
      the European Communities ."                                  ■
 23 ) Article 31 is    deleted .
241 Annexes I and II to Directive 71 / 305 / EEC are replaced by Annexes I to
     VI to this Directive .
                                          Article 2
Directive 72 / 277 / EEC  is hereby repealed .
                                        Article 3
Member States shall bring into force the measures necessary to comply with this
Directive by . at the latest               .   They shall forthwith inform the
Commission thereof .
 ---pagebreak--- Nevertheless , for Greece , Spain and Portugal , the date . .                  is replaced
by 1 March 1992 .
                                        Article 4
Member States shall communicate to the Commission the texts of the basic provisions of domestic
law . whether laws , regulations or administrative provisions , which they adopt to
comply with this Directive .
                                       Article    5
This Directive is addressed to the Member States .
Done at Brussels ,
                                                           For the Council
                                                            The President
                                                                                          44
 ---pagebreak---                                                                                ANNEX I
              LISTS OF BODIES AND CATEGORIES OF BODIES GOVERNED BY PUBLIC LAV
                                REFERRED TO IN ARTICLE 1 ( b )
       I. In Belgium :
           - " Ie Fonds des Routes 1955-1969 " - "het Wegenfonds ",
           - " la Régie des Voies Aériennes " - "de Regie der luchtwegen",
                                                                      i
           - public social assistance centres .
           - church councils .
           - " 1'Office Régulateur de la Navigation Intérieure " - "die Dienst voor
             regeling van de binnenvaart ",
           - " la Régie des services frigorif iques de 1'Etat beige " - " de Regie der
             Belgische Rijkskoel - en Vriesdiensten".
     II . In Denmark :
          " andre forvaltningssub jekter".
    III . 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 .
( ANNEX I )                                                                        1
 ---pagebreak---       IV .  In Greece :
            other legal persons governed by public law whose public works contracts
            are subject to State control .
       V. In Spain :
            other legal persons subject to public rules for t.he award of contracts .
      VI .  In France :
           - administrative public bodies at national , departmental and local
              levels ,
                                                                     I
              universities , public scientific and cultural bodies and other
              establishments as defined by the Law setting out guidelines for Higher
              Education No . 68-978 of 12 November 1968 .
    VI 1 . In Ireland :
           other public authorities whose public works contracts are subject to
           control by the State .
   VIII . In Italy :
           - State universities . State university institutes , consortia for
              university development works .
( ANNEX I )                                                                     I
 ---pagebreak---                higher scientific and cultural institutes , astronomical , astrophysical ,
               geophysical or vulcanological observatories .
           -   thè " Enti di riforma fondiaria".
           -  welfare and benevolent institutes of all kinds .
     IX . In Luxembourg :
          public bodies subject to control by the Government , by an association of
          municipal corporations or by a municipal corporation .
      X.   In the Netherlands :
          - the " Waterschappen ",
          - the " instellingen van wetenschappelijk onderwijs vermeld in Artikel 15
             van de Wet op het Wetenschappelijk Onderwijs ( 1960 )", the " academische
             ziekenhuizen ",
          - the " Nederlandse Centrale Organisatie voor toegepast natuur ¬
             wetenschappelijk Onderzoek ( TNO )" and its dependent organizations .
    XI . In Portugal :
          legal persons governed by public law whose public works contracts are
         subject to State control .
( ANNEX I )                                                                        3
 ---pagebreak---    XII .    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 .
( ANNEX I )                                          4
 ---pagebreak---                                                                                           ANNEX I I
                                          LIST OF PROFESSIONAL ACTIVITIES
                             as set out in the general industrial classification
                           of economic activities uithin the European Communities
                 Subgroups
 Classes Groups       and                            Description
                    I tems
   50                      BUILDING AND CIVIL ENGINEERING
             500            General building and civil engineering work ( without any particular
                             specialization ) and demolition work
                  500.1        General building and civil engineering work ( without any particular
                               special ization )
                  500.2        Demol i t ion work
             501            Construction of flats , office blocks , hospitals and other buildings , both
                            residential and non-res ident ial
                  501.1        General building contractors
                  501.2        Roofing
                  501.3        Construction of chimneys , kilns and furnaces
                  501.4        Waterproofing and dampproofing
                  501.5        Restoration and maintenance of outside walls ( repainting , cleaning , etc. )
                  501.6        Erection and dismantlement of scaffolding
                  501.7        Other specialized activities relating to construction work ( including
                               carpentry )
             502            Civil engineering : construction of roads , bridges , railways , etc.
                 502.1        General civil engineering work
                 502.2        Earth-moving ( navvying )
                 502.3        Construction of bridges , tunnels and shafts , drilling
                 502.4        Hydraulic engineering ( rivers , canals , harbours . Mows , locks and dams )
(ANNEX
lANNtX II
       II ))                                                                                         - 1 -
 ---pagebreak---                     Subgroups
  Classes    Groups      ar.d                          Description
                       I tems
                     502.5        Road-building ( including specialized construction of airports and runways )
                     502.6        Specialized construction work relating to water ( i.e . to irrigation , land
                                  drainage , water supply , sewage disposal , sewerage , etc. )
                     502.7        Specialized activities in other areas of civil engineering
              503               Installation ( fittings and fixtures )
                     503.1        General installation work
                     503.2        Gas fitting and plumbing , and the installation of sanitary equipment
                     503.3         Installation of heating and ventilating apparatus ( central heating , air
                                  conditioning , ventilation )
                     503.4        Sound and heat insulation , insulation against vibration
                     503.5        Electrical fittings
                     503.6        Installation of aerials , lightning conductors , telephones , etc.
              504               Building completion work
                     504.1        General building completion work
                     5C4.2    .   Plaster ing
                     504.3        Joinery , primarily engaged in on the site assembly and / or installation
                                  ( including the laying of parquet flooring )
                     504.4        Painting , glazing , paperhanging
                     504.5        Tiling and otherwise covering floors and walls
                    504.6         Other building completion work ( putting in fireplaces , etc. )
( ANNEX II )                                                                                            - 2 -
 ---pagebreak---                                                                          ANNEX III
                      Definition of certain technical specifications
  For the purposes 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
                                                                     I
       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 .
( ANNEX III )                                                                      I
 ---pagebreak---   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 )" or "Harmonisation
       Documents ( HD )" according to the Common Rules of these organizations .
 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 application and use .      The European
       agrement shall be issued ay an approval body designated for this purpose by
       the Member State .
 5 . "Common technical spécification": a technical spécification laid down in
       accordance with a procedure recognized by t e Member States to ensure uniform
                                                                        I
       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 ? spects in the general interest , that the construe ion works can meet .
( ANNEX III )                                                                      2
 ---pagebreak---                                                                                  ANNEX IV
                                       MODEL CONTRACT NOTICES
                                        A. Prior informat ion
  1 . The name , address , telegraphic address , telephone , telex and facsimile numbers
       of the contracting authority :
 2.    ( a ) The site :
                                                                      l
       ( b ) The nature and extent of the services to be provided and , where relevant ,
             the main characteristics of any lots by reference to the work :
       { c ) if available : an estimate of the cost range of the proposed services :
 3 . ( a ) Estimated date for initiating the award procedures in respect of the
             contract   or contracts :
      (b)    If known : estimated date for the start of the work :
      ( c ) If known : estimated time-table for completion of the work :
4 . If known : terms of financing of the work and of price revision and / or
      references to the provisions in which these are contained :
( ANNEX IV )                                                                        1
 ---pagebreak---  5.  Other information :
 6 . Date of dispatch of the notice :
 7 . Date of receipt of the notice by the Office for Official Publications of the
     European Communities :
( ANNEX IV )                                                                _ I
 ---pagebreak---                                            B. Open procedures
  1 . The name , address , téléphoné number , télégraphie address , telex and facsimile
        numbers of the contracting authority :
  2 . ( a ) The award procedure chosen :
        ( b ) Nature of the contract for which tenders are being requested :
 3.     ( a ) The site :
        ( b ) The nature and extent of the services to be provided and general nature of
                the work :                                               ,
       ( c ) If the work or the contract Is subdivided into several lots , the size of
               the different lots and the possibility of tendering for one , for several
               or for all of the lots :
       ( d ) Information concerning the purpose of the work or the contract where the
               latter also involves the drawing up of projects :
   4 . Any time limit for completion :
   5.     ( a ) Name and address of the service from which the contract documents and
                 additional documents may be requested :
         ( b ) Where applicable , the amount and terms of payment of the sum to be paid
                 to obtain such documents :
( ANNEX IV )                                                                        3
 ---pagebreak---     6 . ( a ) The final date for receipt of tenders :
         ( b ) The address to which they must be sent :
         ( c ) The language or languages in which they must be drawn up :
   7 . ( a ) Where applicable , the persons authorized to be present at the opening of
               tenders ;
        ( b ) The date , hour and place of such opening :
   8 . Any deposit and guarantees required :
   9 . Main terms concerning financing and payment and / or references to the
                                                                        I
        provisions in which these are contained :
 10 . Where applicable , the legal form to be taken by the grouping of contractors
        to whom the contract is awarded :
 11 . Minimum economic and technical standards required of the contractor to whom
        the contract is awarded :
 12 . Period during which the tenderer is bound to keep open his tender :
 13 . The criteria for the award of the contract .       Criteria other than that of the
        lowest price shall be mentioned where they do not appear in the contract
       documents :
( ANNEX IV )                                                                        4
 ---pagebreak---    14 . Where applicable , prohibition on variants :
   15 . Other information :
  16 . Date of publication of the prior information notice in the OJ or reference to
        its non-publication :
  17 . Date of dispatch of the notice :
  18 . Date of receipt of the notice by the Office for Official Publications of the
        European Communities :
( ANNEX IVJ                                                                 - 5 -
 ---pagebreak---                                      C. Restricted procedures
  1 . The name , address , telephone number , telex and facsimile numbers of the
        contracting authority :
  2 . ( a ) The award procedure chosen :
        ( b ) Where applicable , justification for the use of the accelerated   procedure :
        ( c ) Nature of the contract for which tenders are being requested :
 3.    ( a ) The site :
                                                                        i
       ( b ) The nature and extent of the services to be provided and general nature of
              the work :
       ( c ) If the work or the contract is subdivided into several lots , the size of
              the different lots and the possibility of tendering ft.r one , for several
              or for all of the lots :
      ( d ) Information concerning the purpose of the work or the contract where the
              latter also involves the drawing up of projects :
4 . Any time limit for completion :
5 . Where applicable , the legal form to be taken by the grouping of contractors to
      whom the contract is awarded :
( ANNEX IV )                                                                         6
 ---pagebreak---     6 . ( a ) The final date for receipt of requests to participate :
         ( b ) The address to which they must be sent :
         ( c ) The language or languages in which they must be drawn up :
   7 . The final date for dispatch of invitations to tender :
   8 . Any deposit and guarantees required :
   9 . Main terms concerning financing and payment and / or the provisions in which
        these are contained :
  10 . Information concerning the contractor 's personal position and minimum
        economic and technical standards required of the contractor to whom the
        contract is awarded :
 11 . The criteria for the award of the contract where they are not mentioned in
        the invitation to tender :
 12 .     Where applicable , prohibition on variants :
 13 .    Other information :
( ANNEX IV )                                                                    7
 ---pagebreak---   14 . Date of publication of the prior information notice in the OJ or reference
       to its non-publication :
  15 . Date of dispatch of the notice :
  16 . Date of receipt of the notice by the Office for Official Publications of the
       European Communities :
( ANNEX IV )                                                                 8
 ---pagebreak---                                    D. Negotiated procedures
  1.    The name , address , télégraphie address , téléphoné , telex and facsimile
        numbers of the contracting authority :
 2.      ( a ) The award procedure chosen :
        ( b ) Where applicable , justification for the use of the accelerated
               procedure :
        ( c ) Nature of the contract for which tenders are being requested :
 3.     ( a ) The site :
       ( b ) The nature and extent of the services to be provided and general nature
               of the work :
       ( c ) If the work or the contract is subdivided into several lots , the size of
               the different lots and the possibility of tendering for one , for several
               or for all of the lots :
       ( d ) Information concerning the purpose of the work or the contract where the
               latter also involves the drawing up of projects :
  4.  Any time limit :
( ANNEX IV )                                                                       9
 ---pagebreak---    5.  Where applicable , the legal form to be taken by the grouping of contractors
       to whom the contract is awarded :
   6.  ( a ) Final date for receipt of tenders :
       ( b ) The address to which they must be sent :
       ( c ) The language or languages in which they must be drawn up :
   7.  Any deposit and guarantees required :
   8. Main terms concerning financing and payment and / or the provisions  in which
       these are contained :
  9.   Information concerning the contractor 's personal position and information
                                                                   I
       and formalities necessary in order to evaluate the minimum economic and
       technical standards required of the contractor to whom the contract is
      awarded :
 10 . Where applicable , prohibition on variants :
 11 . Where applicable , the names and addresses of suppliers already selected by
      the awarding authority :
 12 . Where applicable , date(s ) of previous publications in the Official Journal
      of the European Communities :
( ANNEX IV )                                                                   10
 ---pagebreak---   13 . Other information :
  14 . Date of publication of the prior information notice in the OJ :
  15 . Date of dispatch of the notice :
  16 . Date of receipt of the notice by the Office for Official Publications of the
       European Communities :
( ANNEX IV )                                                               - 11 -
 ---pagebreak---                                   E. 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 successful contractor ( s ) :
    7.   Nature and extent of the services provided , general characteristics
         of the finished structure :
    8.   Price or range of prices ( minimum /maximum ) paid :
    8a . The value and the share of the contract likely to be sub-contracted
         to third parties .
    9.   Other  Information :
    10 . Date of publication of the tender notice In the Official Journal of
         the European Communities :
    11 . Date of dispatch of the notice :
    12 . Date of receipt of the notice by the Office for Official
         Publications of the European Communities :
(ANNEX iv)                                                                 - il
 ---pagebreak---                                                                     ANNEX V
                              MODEL NOTICE OF PUBLIC WORKS CONCESSION
             1 .  The name , address , telegraphic address , telephone , telex and
                  facsimile numbers of the contracting authority :
            2.    (a)  The site :
                  (b)  The subject of the concession , nature and extent of the
                       services to be provided :
                  (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 works contracts
                 awarded to third parties :
( ANNEX V )                                                                        1
 ---pagebreak---             7 . Other information :
            8.  Date of dispatch of the notice :
            9.  Date of receipt of the notice by the Office for Official
                publications of the European Communities :
( ANNEX V )                                                              2
 ---pagebreak---                                                                       ANNEX VI
                MODEL NOTICE OF WORKS CONTRACTS AWARDED BY THE CONCESSIONNAIRE
             1.   (a) The site :
                  (b) The nature and extent of the service to be provided and the
                      general nature of the work :
            2.  Any time limit for the completion of the works :           ■
                                                                  I
             3. Name and address of the service from which the contract documents
                and additional documents may be requested :
            4.   ( a) The final date for receipt of requests to participate   and / or
                      for receipt of tenders :
                (b)   The address to which they must be sent :
                (c)   The language or languages in which they must be drawn up :
           5.   Any deposit and guarantees required :
           6.   The economic and technical standards required of the contractor :
           7.   The criteria for the award of the contract :
( ANNEX VI )                                                                     1
 ---pagebreak---              8.   Other information :
             9.   Date of dispatch of the notice :
             10 . Date of receipt of the notice by the Office for Official
                  Publications of the European Communities :
( ANNEX VI )                                                               2