CELEX: 51973PC0459
Language: en
Date: 1973-05-04
Title: AMENDED COUNCIL DIRECTIVE on coordination of procedures for the award of public supply contracts (submitted to the Council by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (73) 459
Vol. 1973/0078
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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
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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
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file have been declassified in conformity with Article 5 of the aforementioned regulation.
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,
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                          COM(73)459 final
                                                          Brussels , 4 May 1973
                                                                             ^ ^ r
                            ASSERTED COUNCIL DIRECTIVE  ■
                        on coordination of procedures for
                                    the award of
                             public supply contracts
                                                                         / \
                  ( submitted to the Council lay the Commission)
B(73 ) 459 Afinal
 ---pagebreak---                                                           AMEX 1
                           AMENDED DRAFT
        COUNCIL DIRECTIVE ON COORDINATION OP PROCEDURES
            FOR THE AWARD OF PUBLIC SUPPLY CONTRACTS
$3E COUNCIL OF THE EUROPEAN COHEUNITIES ,
HAVING REGARD to the Treaty establishing the European Economic Community ,
      and in particular Article 100 thereof ,
HAVING REGARD to the proposal from the Commission ,
HAVING REGARD to the Opinion of the European Parliament ,
HAVING REGARD to the Opinion of the Economic and Social Committee ,
WHEREAS restrictions on free movement of goods as concerns public supply
      are prohibited by the terms of Articles 30 et seqcr . of the Treaty
    ' and by the principles enunciated by the Commission in its Directive
      of 17 December 1969 pursuant to Article 33(7 ) with respect to the
      supply of products to the State , to regional or local authorities
      and to other legal persons governed by public law ;
WHEREAS it is necessary to supplement that prohibition by coordination of
      the procedures-relating to public supply contracts , in order , by
      enabling suppliers throughout the Community to compete for such
      contracts on equal terms , to secure a degree of ma,rket transparency
      which will allow more effective care to be taken to see that the
      prohibition is in fact obeyed ;
 ---pagebreak--- WHEREAS in the case of public works contracts coordination has been effected
      on the "basis of certain principles relating t6 a) the prohibition of
      specifications having discriminatory effects , t ) Community publication
      of contracts , c ) objective criteria as to entitlement to compete for
      contracts and d ) a procedure far jointly ensuring that the principles
      are obeyed , and whereas it is necessary to apply this method and
      principles likewise , mutatis mutandis , to public supply contracts ;
WHEREAS the bodies at present in charge of rail , ro~d and inland water
      transport in the member countries are governed some by public and
      some by private 1P.X , and whereas for the purposes of the common
      transport policy it is necessary to ensure equal treatment not only
      as among undertakings appertaining to one and the same mode of trans­
      port but also as between them and undertakings appertaining to other
      modes of transport ;
WHEREAS until such time as measures have been framed for coordinating the
      procedures with respect to the bodies aforesaid it is necessary ,
      having regard to the special circumstances just referred to , to
      provide that the Directive shall not apply to those of the bodies
      aforesaid which would otherwise fall within its scope by reason of
      their legal status ;
WHEREAS it is necessary to ensure that , in the matter of their supply contracts,
      the utilities responsible for the production , transmission and distri­
      bution of water and energy are not governed by different rules accor­
      ding as they partake of the legal personality of the State or of
      regional or local authorities or possess separate legal personality , '
      and whereas it is therefore necessary to provide that the Directive
      shall not apply to those of the utilities aforesaid Which belong to
      the State or to regional or local authorities until such time as
      definitive arrangements can be arrived at in the light of experience ;
 ---pagebreak---                                                                        4
                                   - 3 -
WHEREAS it is necessary to m?ke provision for special cases in which
       procedures need not be coordinated , "but at the sane time expressly
       to limit such cases ;
WHEREAS coordination is not called for in respect of supply contracts
       involving less than 100.000 units of account , inasmuch as their
       impact oil competition is a minor one ;
WHEREAS to ensure effective competition as concerns public contracts it is
       necessary that there "be Community publication of the Notices of
       Contract issued "by awarders in member countries , whereas the parti­
       culars therein contained must be such as to enable Community
       suppliers to decide whether the contracts offered are of interest
       to them , and accordingly must indicate in sufficient detail the
       goods and products to be supplied , and whereas more especially in the
       case of restricted procedures the object of publication is to enable
       suppliers in member countries to make known their interest by apply­
       ing to the awarders for an invitation to tender under the conditions
       laid down ;
WHEREAS additional information concerning contracts must , as is customary
       in the Member States , be given in the contract documents for ea.ch
       contract or else in an quivalent document ;
HAS ADOPTED THIS DIRECTIVE :
 ---pagebreak---                            TITLE I   -  GENERAL PROVISIONS
                                       Article 1
             In this directive ,
  ( a) " public supply contracts-' are written contracts for valuable conside­
        ration between a supplier ( whether a natural or a legal person), of the
        one part , and an awarder as defined in (b ) below, of the other part ,
        for the delivery off products covered by Articles
        Such delivery may include in addition,/installation operations of an
        estimated cost not exceeding $0% of the estimated cost of the items actually
        contracted for ; .
./( b ) "awarders" are the State , regional or local authorities, and legal persons
        governed by public lr,w as listed in Annex I , or , in Member States where the
        latter . are unknown , bodies corresponding thereto ;
  ( c ) suppliers submitting tenders are tertied "tenderers " while suppliers apply­
        ing to be invited to tender in a restricted procedure are termed " applicants
                                       Article 2
  1 . In placing public supply contracts awarders shall follow their national
       procedure as adjusted to the provisions of this Directive .
  2 . The following shall not be subject to the provisions of this Directives
       - public supply contracts placed by public-law bodies in charge of
         transport ;
       - public supply contracts placed by public-law utilities responsible
         for the production , transmission and distribution of water or energy .
 ---pagebreak---                                 Article 3 1
          This Directive shall not apply to such contracts as a Member State
may plaea
<!• with third-country and not with Community undertakings in pursuance of an
    international agreement concluded prior to 1 January 1958 ;
- in pursuance of the special procedure of an international organization .
                              ' Article 4
1 * The provisions on ''open procedures-' herein set out (Articles 7-10> 12-13 ,
     16 and 18-23 ) shall apply to national procedures in which any supplier
     interested may submit a tender ,
2 . The provisions on ^ 'restricted procedures ! herein set out (Articles 7 » 9 »
     11-14 and 16-23 ) shall apply to national procedures in which only
     suppliers thereto invited by the Awarder may submit tenders .
3 . Contracts placed in the cases referred to in Article 6 shall be subject
     to the provisions of Articles 7 and 15 only .
                                Article 5
1 . The provisions of Titles II , III and IV and of Article 6 hereof shall
     apply as provided in Article 4 "to public supply contracts of an estimated
     cost of 100 000 units of account or over .
2 . No contract    may be divided for the purpose of putting it outside the
     scope of this Article .
3 . Calculation of the cost of regular contracts or of contracts which are
to be renewed within a given time shall be based on the aggregate cost
     during the twelve months following the first deliveiy *
 ---pagebreak---                                Article 6
           Awarders may place supply contracts without resort to the proce­
dures referred *o in Article 4 ( l ) and ( 2 )
( a) where no tenders or none "but irregular tenders are forthcoming following
      resort to one of the procedures herein provided for , or where the only
      tenders submitted are inadmissible under national provisions oompatible
      with the rules of Title IV unless the terms of the initial contract are
      radically amended ;
( b ) in respect of items which being of a specific technical or artistic
      character or covered by an exclusive rights agreement can be made or
      delivered only by a particular supplier ;
( c ) in respect of items made only foir research, test , design , perfecting or
      development purposes ;
( d) to the extent absolutely necessary , where developments which the Awarder
      concerned could not haVe foreseen make it imperative to act with more
      speed than other procedures permit ;
( e ) in respect of additional deliveries by the original supplier in part-
      replacement of normal supplies or installations the starting or servicing
      of which requires highly skilled operators ;
( f ) in respect of items quoted and purchased on a commodity market in the
      Community .
            By the end of June in each year the Member States shall send to the
Commission a return of the number and cost of the contracts placed under
this Article during the preceding year .    Those States which possess the
requisite statistical facilities shall show the said contracts broken down
by categories ( a)-(f) above .
 ---pagebreak---              TITLE II : COMMON RULES ON TECHNICAL MATTERS
                                Article 7
1.    The technical specifications defined in Annex II , and the description
of testing, checking and acceptance methods , shall appear in the general
or the contractual documents pertaining to each contract .    The technical
specifications may be drawn up by reference to national standards .
2.    Save where warranted by the subject of the contract , Member States
shall prohibit the inclusion in the contractual clauses pertaining to any
contract of technical specifications referring to products of given make
or provenance or to given processes which would have the effect of favouring
or of ruling out particular undertakings or products .    In partioular it
shall be forbidden to mention any trade mark , patent or type or any specified
origin or production .            .
      Mention of a trade mark , patent or type followed by the words - or
equivalent ■' shall be permitted where the Awarder is unable otherwise to
describe the subject of the contract by specifications which are sufficient­
ly precise and fully intelligible to all concerned .                  ;:
                               Article 3
      Where projects are put up for competition , or when invitations to
tender permit contractors to submit variations on a project of the 'adminis­
tration , 'the Awarders may not , provided that the tender accords with the
terns and conditions to the contract documents , reject it solely because
it has been drawn up using a method of pricing different from that used in
the country where the contract is being awarded .    Tenderers shall append
to their tenders all supporting material needed to check the. projects , and
shall furnish any additional explanatory material which the Awarders may
consider essential .
 ---pagebreak---                       TITLE Ills COMMON RULES OH PUBLICATION
                                     Article 9
1.       Awarders intending to place a public supply contract "by open or restricted
procedure shall advertise their intention in a Notice of Contract . -
         The Notice shall be dispatched by telex or telegram to the Official Publi­
cations Office of the European Communities , and shall be published in full in the
Official Journal of the European Communities in the official languages of the
Communities , the original-language version being the sole authentic text . It shall
be drawn up in accordance with the models given in Annex III .
         The Official Journal of the European Communities shall publish the Notice
not later than seven days from the date of dispatch.
         Publication in the official journal or in specialist periodicals of the
Awarder 's country shall not take place before the said date of dispatch , and shall
indicate that date . It shall not include particulars other then those published in
the Official Journal of the European Communities .
         The Awarders must be able to produce evidence of the date of dispatch.
2.       The cost of the publication of Notices in the Official Journal of the
European Communities shall be borne by the Communities . No Notice may exceed in
length one half-page of the journal , that is to say , approximately 330 words .
Notices shall be drawn up in accordance with the Model Notices contained in
Annex III . Every edition of the Official Journal of the European Communities
which contains a Notice or Notices shall reproduce the Model Notice or Notices
on which the published Notice or Notices are based.
                                     Article . 10
                                        0   '    .ι ι ι .« ι
                                     i        >.        i    ,  .
                                     :•   »         Vv ,     ;i
         In open procedures , the closing date appointed by the Awarders for receiving
tenders shall not be less than 30 days from the date of dispatch of the Notice .
         The Awarders or competent bodies must send suppliers the contract documents
and supporting documents within two working days of receiving the suppliers * appli­
cation therefore .                                   ! :^
 ---pagebreak---                        nv>a \ pa rrfc -> /->jn 1 ars      jn^^spedr *Jtr* tiu>--^orrtrrmrt--d^£ameixfce
                                                                                                        ^ *
 if-Tetjuested in ^oocL tlraa, must be provided by the Awarder not J. ess -than"'
 six days in advance of the closing date for receiving- tenders .
                                                 Article 11
           In- restricted procedures                the closing date appointed by the Awardar^
for receiving applications to be invited to compete, shall be not lasfljhharr-
12' days from the date of dispatch.- of" the- Notice ,
           The Awarders- shall write simultaneously to all the applicants-- " '
short-listed inviting them to submit their tenders , and attaching the
contract-documents arid supporting documents .
           The closing date appointed for receiving tenders shall be .not' 1-esa
than 15 days from the date of dispatch of the written invitation .
           Any Any additional particulars- with respect to the contract documents ,
if requested in good time , must be provided by the Awarder not less than
six days in advance of the closing date for receiving tenders .
           Applications to be invited to compete and invitations to do scr may -
ba sent by letter , telegram , telex or telephone ; if by telegram , telex or
telephone , they must be confirmed by letter *
                                                Article 12
1,         In both open, and restricted procedures , the Notice published in the
Official Journal of the European Communities shall indicate
( a) the date of its dispatch to the Official Publications Office of the
      ISuropean Communities ;                     '                                        . .
( b ) the manner Jn which the -Contract is to be placed ;
( c ) the nature and quantity of the items to be supplied ;
(d) the dalivery date set , if any;
( e ) the address of the body placing the contact .
 ---pagebreak---                                          - 10 -
2.         11: shall further indicate
 ( a) in open procedures , .           ,         '
- the address of tho tody to be applied, to for the contract documents and
    supporting documents , the closing date for such application , and the
    amount and mode of any payment involved ;
- the closing date for receiving tenders ,
- the persons authorized to be present at the opening of the tenders , and the
    date , time and place of such opening ,
- the particulars of the supplier 's own situation and the economic and
    technical minima     required of suppliers by the Awarder to be considered
    for the contract in question , such requirements not to be other than those
    set out in Articles 20 and 21 ;
( b ) in restricted procedures ,
- the closing date for receiving applications to be invited to compete ,
- the particulars to be furnished in the application by way of verifiable
    statements as to the supplier 's own situation and the economic and tech­
    nical minima required of suppliers by the Aivarder to be considered for
    the contract in question , such requirements not to be other than those
    set out in Articles 20 and 21 .
                                     Article 13
          In both open end restricted procedures , the contract documents or
covering letter shall indicate , as a minimum ,
( a) the address of the body to which tenders are to be submitted , and , if
     ' different , the address to be applied to for the supporting documents
       and/or additional particulars,'
                                                                     • • •/ • • •
 ---pagebreak--- ( b ) the Language or languages ix» which         "fcendartj ani-enolosures are 'to
      to couched ;
( c ) the awarding criteria under Article 23 ;
(d ) the closing date for requesting additional particulars of the contract ;
( e ) the length of time tenderers must maintain their tenders ;
( f ) details as to any security or other guarantee , of whatever nature ,
      required by the Awarder ;
( g) the manner in which performance is to be financed or paid, and/or reference
      to the relevant legal instruments .
          The contract documents and covering letter shall be the same for all
suppliers .
                                         Article 14
           In restricted procedures , the invitation to tender together with
the contract documents and supporting documents shall include , as a minimum ,
( a) reference to the Notice referred to in Article 12 ;
( b ) a closing date for the submission of tenders and technical enclosures ;
( c ) indication of any further documents to be attached either in backing
      of the verifiable statements furnished by the applicant under Article
      12(2 ) ( b ), second indent , or in addition thereto , as provided in
      Articles 20 and 21 .
 ---pagebreak---                                     Article 15
        Awarders may publish in the Official Journal of the European
Communities Notices of public supply contracts not subject to mandatory
publication under this Directive , provided these involve not less than
100 000 units of account .
 ---pagebreak---                         TITLE IV - COMMON RUL2S OH PARTICIPATION
                                       Article 16
            Award shall be on the basis of the criteria set out in Chapter 2
 below , following verification of the suitability of such suppliers as are
 not debarred under Article 18 . Verification shall be effected by the Awarders
 in accordance with the criteria as to economic , financial and technical
 soundness laid down in Articles 20-22 .
                                      Article 17
            In restricted procedures within the meaning of Article 4(2 ), the
 Awarders shall on the basis of the particulars furnished under Article 12(2)(b ),
 second indent , select from among the applicants eligible under Articles 18-22
 those -whoa they will invite to submit tenders .
            Each Member State shall satisfy itGolf that the Awarders invite
 tenders from eligible nationals of other Member States just as they do
 frcn nationals of their own , and further , that they do not extend noro fa­
 vourable treatment to suppliers of home products than to suppliers of pro­
 ducts imported from other Member States.
                   Chapter 1 : Criteria for entitlement to compete
         '                            Article 18
            A supplier may be debarred from competing for a contract who
 ( a), is bankrupt or is being wound up , whose affairs are being administered
■ ; ,   by the court , who has entered into an arrangement with creditors , who
        has suspended business activities or is in any analogous situation
        under national laws and regulations ;
 ( b ) has been declared insolvent or is the subject of a court order for
        administration in insolvency or for composition with creditors ,
        is the subject of proceedings for a declaration of bankruptcy , for
        an order for compulsory winding-up or administration by the court or
        for an arrangement with creditors or of any other similar proceedings
        under national laws and regulations ;
  ( c ) has been convicted of an offence concerning his professional conduct
        by a judgment which has the force of res judicata :
 ---pagebreak---                                               - 14 -
( d ) has "been huilty of grave professional misconduct proven by any means which the
      Awarder can justify ;                 .
( e ) has been guilty of serious misrepresentation in supplying the information
      required under this Chapter ;
( f ) has not fulfilled obligations relating to the payment of social-security con­
      tributions in accordance with the legc?.l provisions of the country in which
      he is established or of the country of the Awarder ;
( g) has not fulfilled obligations relating to the payment of taxes in accordance
      with the legal provisions of the country of the Awarder.
          The Awarder when requiring suppliers to show that they are not in the
position referred to in ( a), ( b ), ( o ), ( f ) or ( g) above shall accept as sufficient
evidence ,    ■
• in the case of ( a), ( b ) and ( c ), production of an extract from the " judicial
   record ", or failing this of an equivalent document issued by a judicial or ad­
   ministrative authority in the supplier 's country of origin or the country whence
   he comes , showing that these requirements are met ;                      .
« in the case of ( f ) and ( g), production of a certificate issued by the competent
    authority in the Member State concerned .
          VJhere such document or certificate is unknown in the country concerned ,
or where it does not cover all the circumstances referred to in ( a), ( b ) and ( c ),
it may be replaced by a declaration on oath by the supplier before a judicial
or administrative authority , a notary or any other competent authority in the
Member State concerned. In Member States where there is no provision for declaratioi
on oath it may be replaced by a solemn declaration .
          Member States shall within the time appointed in Article 26 designate the
authorities and bodies competent to issue the above documents , iand shall notify the
other Member States and the Commission forthwith.
                                         Article 19
          A supplier wishing to complete for a public supply contract may be asked
to show that he is duly registered for trade purposes in accordance with the law
of the country in which he is established , viz . in Gemany on the Handelsregister
or Hrndwerksrolle , in Belgium on the Registre du Commerce/Handelsregister, in
Denamrk on the Aktieselskabregistret , Foreningsregistret or Handelsregistret ,
 ---pagebreak--- in Prance on the Registre du Commerce or Repertoire des Metiers , in Italy on the
Registro deila Camera di Commercio , Industria , Agricoltura e Artigianato or
Registro della Commissioni Provinciali per l 1 Artigianato , in Luxembourg on the
Registre aux Pirmes or Role de la Chambre des Metiers , in the Netherlands on the
Handelsregister , and in the United Kingdom and Ireland certified by the Registrar
of Companies as being incorporated.
                                           Article 20
          Proof of the supplier 's financial and economic standing may , as a general
rule , be furnished by way of the following , severally or together :
( a) appropriate statements from bankers ;
( b ) the undertaking 1 s balance-sheets or extracts therefrom , where the Company law
      of the country in which it is established requires balance-sheets to be pu­
      blished or lodged with a court registry ;
( c ) a statement of the undertaking * s overall turnover and its turnover in respect
      to the item to which the contract relates for the three preceding financial
      years .
          Awarders shall state in the Notice of Contract or invitation to tender
which of these forms of evidence they have selected , and what evidence other than
that mentioned under ( a), ( b ) and ( c ) above they wish to be furnished.
          If the supplier is unable , for good reason showft , to furnish evidence in
the form or forms specified by the Awarder , he shall be permitted to adduce as-'
evidence of economic and financial soundness any other documentary material which
the Awarder msy consider appropriate .
                                           Article 21
          Evidence of the supplier 's technical soundness may be furnished by way of
( a) a full list of the principal deliveries effected in the last three years , with
      the sums , dated and recipients , public or private , involved ,
 ---pagebreak---                                            - 16 -
      • where -to public Awarders , evidence to "be in the fora of certificates
        issued or countersigned by the competent authority ,
      . where to private purchasers , delivery to "be certified by the purchaser ,
        or failing this simply declared by the supplier to have been effected ;
( b ) a description of the undertaking's plant and its technical design and re­
      search facilities ;
( c ) indication of the technicians or technical bodies involved , whether or not
      belonging to the undertaking direct .
          Awarders shall state in the Notice of Contract or invitation to tender
in which of these forms they wish the evidence furnished .
                                        Article 22
          The Awarder may request the supplier , within the limits of Articles
18-21 , to furnish additional material or explanatory details .
                       Chapter 2 ; Criteria for award of contract
                                        Article 23
1.        The criteria on which Awarders shall base themselves in awarding con- '
tracts shall be
. either lowest quotation alone ,
. or , where the contract is to go to the tender which is economically the most
    advantageous , an assortment of criteria varying from contract to contract ,
    e.g. quotation , delivery date , running costs , profitability , quality , aesthetic
    and functional character , and technical value .
2.         In the latter case the Awarder shall list in the Specification all such
criteria which it is intended to apply , in descending order of importance .
          The- price criterion as calculated in accordrjico with current national
regulations Italian " anony-iouc onvolopo 1 ' procedure of the secret envelope 1 ,
r i\y be retained for a period of three year3 following the expiring of the
                                                                                   /.
 ---pagebreak---                                          - 17 -
tine-limit laid in Article 26 for contracts whose estimated value does not
exceed one nillion units of account , and for seven yor,rs from the seme date for
contrants whose estimated value is "between 100 000 and 200 000 units of account .
4.        Should a tender for a particular contract be obviously disproportionately-
low in respect of the item concerned , the Awarder shall investigate how the figure
was arrived at before deciding whether to award the contract . To this end the
Awarder shall request the tenderer to furnish the necessary documentation , and
shall inform him which portions thereof , if aay , are judged out of order.
          In awarding the contract tlie Awarder shall take account of the findings
of such investigation .
         Where the documents pertaining to the contract provide that it is to go
to the tender with the lowest quotation , the Awarder must substantiate to the
Advisory Committee on Contracts the case for rejecting those judged to be too
low.
                                                                       • • • /• • •
 ---pagebreak---                                         - 18 -
                           TITLE V : GENERAL PROVISIONS
                                     Article 24
          The powers of the Advisory Committee set up "by Council Decision
No 71/306/EEC of 26 July 1971 "to take cognizance of problems arising with
respect to the implementation of the Directive on coordination of procedures
for the award of public works contracts shall likewise embrace this Directive .
          The Committee shall consider problems arising from the placing of
supply contracts , including special cases arising in this field , as provided
in Article 2 of the above Decision .
                                     Article 25
          The closing dates for receiving tenders or for receiving applications
to be invited to tender shall be appointed pursuant to Council Regulation
(EEC/Euratom) No II82/7I ^^of 3 June 1971 determining the rules on periods,
dates and tine-limits , in accordance with the rules in the country of the
Awarder .
                                     Article 26
          Member States shall adopt the measures necessary to comply with
this Directive within twelve months of its notification , and shall forthwith
inform the Commission thereof .
                                     Article 27
          Member States shall ensure that the text of the main provisions of
national law which they adopt in the field covered by this Directive is
communicated to the Commission .
                                     Article 28
          Annexes I and II are an integral part of this Directive .
                                     Article 29
          This Directive is addressed to the Member States.
 ---pagebreak---                                               - 19 -
                                                                     Annex I
                          LEGAL PERSONS GOVERNED BY PUBLIC LAW     '
                            within the meaning of Article l(b )
  I. In all Member States ,
      associations governed "by public law formed by regional or local authorities ,
      e . g. associations de commune s , syndicrvts de communes , Gemeindeverbando . etc .;
 II . in Germany ,
      Bunde sunmittelbare Körperschaften , Anstalten und Stiftungen des öffentlichen
      Rechtes ;
III . m Belgium ,
      Le Ponds des Routes 1955-1969 i
      La Régie des Voies Aériennes ,
      Public Assistance commissions ,
      Structures of the Church ,
      L' Office Régulateur de la Navigation Intérieure ,
      La Régie des Services Frigorifiques de l' Etat Belge ;
 IV . in Denmark ,
  V. in France ,
      other administrative public bodies at national , departmental and local levels ;
 VI . in Ireland .
VII . in Italy .
      State universities , State university institutes , consortia for university
      development works ,
      Higher scientific and cultural institutes , astronomical , astrophysical ,
      geophysical and vulcanological observatories ,
      the Enti di refonna fondiaria;
 ---pagebreak---                                             - 20 -
VIII . in Luxembourg ,
        social insurance offices ,
        other public administrative bodies ;
                                      1 . .
  IX. in the Netherlands ,                                              '
        the Waterschappen ,
      • the Rijksuniversiteiten , the University of Amsterdam , the Free University
        of Amsterdam , the Roman Catholic University Uijmegen of the Tochnische
        Hogoscholen , the Koderlandse Centrale Orgonisatie voor Toegepast Natuurweten-
        schappelijlc Ondoreook (THO ) and ancillary establishments ;
  X. in the United. Kingdom ,
 ---pagebreak---                                           - 21 -
                                                               Annex II
          TJCCHFICAL SPEC IPI CATION'S WITHUT THE MEANING OP THIS DIRECTIVE
        For the purposes of this Directive , technical specifications for
public supply contracts shall comprise all the technical requirements
given in the contract documents which permit an objective description of a
material , product or item ( especially quality , performance ) so that the
material , product or item fulfills the purpose for which it is required by
the Awarder .
        The technical specifications shall include all the mechanical , physical
and chemical properties , the classifications and standards , end the test ,
checking and acceptance conditions for the items and for materials and parts
of which they involve .
 ---pagebreak---                                             - 22 -
                                                              Annex III
                                IIODEL NOTICES OF CONTRACT
A. Open procedures
1 . Name and address of the "body placing the contract
    (Article 12(l)(e )) :
2 . Manner in which contract is to be placed
    (Article 12(l)(b )) 5
3. Nature and quantity of item(s ) to "be supplied
    (Article 12(l)(c )) :
4 « Delivery date set , if any (Article 12(l)(d)) ;
5 . - Name and address of "body to be applied to for specification and supporting
      documents (Article 12(2 ) ( a), first ident ) :
    - Closing date for such application (do. ) :
    - Amount and mode of payment , if any (do.) :
6. Closing date for receiving tenders (Article 12(2 ) (a), second indent ) :
7. - Persons authorized to be present at opening of tenders (Article 12(2)(a) f
    third indent ) 1
    - Date , time and place of such opening ( do.) :
8. Particulars of supplier 's own situation and economic and technical minima
    required (Article 12(2 ) ( a), fourth indent ) :
9 . Date of dispatch of Notice (Article 12(l)(a) :
B. Restricted procedures
1. Name and address of the body placing the contract (Article 12(l)(e ) :
2 . Manner in which contract is to be placed (Article 12(l)(b) :
3» Nature and quantity of item(s ) to be supplied (Article 12(l)(c ) :
4 . Delivery date set , if any (Article 12(l)(d) :
5 . Closing date for receiving applications to be invited to compete
    (Article 12(2)(b), first indent ) :
6. Particulars of supplier 's own situation and economic and technical minima
    required (Article 12(2)(b ), second indent ) :
7. Date of dispatch of Notice (Article 12(l)(a) :
 ---pagebreak---                                                                  xJSKEX 2
Sw.-jnary of amendment s to Draft Council Directive on coordination of procedures
for the award of public supply contracts
                                      8th recital
         Raising of threshold of applicability of the Directive from 60 000 to
100 000 units of account , in accordance with the wishes of the Economic and
Social Committee . Refusal to follow the Parliament 's proposal that the threshold
should be raised to 200 000 , since too many contracts would thereby be exempted
from the rules to be applied in accordance with the Directive . Refusal to follow
the ECS 's further proposal that the Commission should have independent authority
to change this threshold , following Opinion of the advisory Committee on public
supply contracts. A procedure the effect of which was to circumvent the Council 's
power of decision in the matter would have no-     chance of success.
                                     Article 1 ( a)
         Addition desired by the Parliament and the ESC to define what proportion
of ancillary work a puplic supply contract may include . Figure of 50$ adopted
despite Parliament 's proposal for 60/5, which was judged to be excessive .
                                     Article 1 (b )
         Addition of a provision resembling that in the Directive on the coordina­
tion of public works contracts ( cf. Accession Treaty , OJ No L 73 » 27 March 1972 ,
p. 89 ).
                            Article 1 ( b ) and Article 2
         The Parliament and the ESC consider the number of legal persons governed
by public law falling within the scope of the Directive to be insufficient ,
and are critical of Annex I as well as of the exemptions laid down in Article 2
for public utility and transport . services contracts. The Parliament nevertheless
admits that progress will have to-be gradual in view of the complexity of the
subjects , and is not asking for immediate amendment on this point .
 ---pagebreak--- It is nevertheless awaiting the submission to it without delay by the Commission
of a programme covering contracts awarded "by other legal persons governed by
public law and by undertakings enjoying special and exclusive rights granted
by Member States . The ESC 's submission that this wide-ranging problem , about
which in any case the Commission recently submitted a first communication to
the Council ( cf . SEC(72 ) 2601 F of 24 July 1972 ), should be tackled in its
entirety by this proposal , cannot be accepted.
                                         Article 2
         Drafting amendment requested by ESC .
                                         Article 5 ( l )
         See as under !: 8th Recital " above : the same applies .
                                         Article 5 ( 2 )
         Parlianent requests that the permissible period envisaged for the purposes
of calculating the cost of contracts which it is intended to renew should be
defined as exactly as possible .
                                         Article 6
         Drafting aaa&dnent requested by the Parliament . Rejection of request
from ESC   that the award of public supply contracts not conforming to the rules
of the Directive should be allowed where justified by reasons of social , regional ,
or industrial policy. An exemption of this magnitude would render the Directive
meaningless .
                                         Article 7
         Addition for alignment with the corresponding text of the ,; public works
coordination " Directive (no . 71/305/ESC ).
                                         Article 8
         New article introduced at the suggestion of the ESC to cover cases where
contractors may present variations on the administration 's project . Provision
identical , mutatis nutcndis , with the corresponding text in the " Public works
 ---pagebreak---                                           - 3 -
                                                \
 coordination " Directive . The addition of this article necessarily changes the
numbering of those which follow.
                                        Article 9 ( l )
         Various drafting improvements. Rejection of request from ESC that Notices
be published simultaneously in the Official Journal of the European Communities
and in the official journals of Member States . This solution is impracticable ,
since it would introduce an element of rigidity into the work of the Official
Journal , and would , to no useful effect , depart from the system agreed after
long discussions for public works contracts .
                                        Article 9 ( 2 )
         New text to provide for the publination of Notices of public supply con­
tracts in the O.J.E.C. , a solution similar to that adopted with regard to public
works contracts in Directive no 72/277/EEC.
                                        Article 10 ( 2 )
         Rejection of a request from the ESC that all the time limits mentioned
in the proposal be oxtended. The harmonization of national legislations on the
award of public contracts must not bring about excessive extension of such time
limits in comparison with those currently in force in oertain Member States .
This principle was in any case adopted in the case of public works contracts.
                                        Article 12 (2 a)
         Drafting improvement .
                                        Article 12 ( 1 )
         Rejection of proposal from the Parliament to include in the Notice a
mention of the original language in which it was drawn up . Such mention would be
superfluous because the language of the original may be deduced according to
which national admini strati on is concerned.
 ---pagebreak---                                           Article 15
         See as under t : 8th recital tr above : the same applies .
                                          Article 17
         Various drafting improvements as suggested "by the Parliament and the ESC .
                                          Article 18
         Various additions requested by the ESC , identical to those featuring in
the "works coordination11 Directive , in particular the provisions under ( f ) and
( g). Although lessimportant in the case of supply contracts , the reasons for
debarring a supplier because of non-payment of social security contributions
or taxes will be invoked particularly in cases of supply contracts including
ancillary works . In addition , in the penultimate paragraph , a final sentence
has been added to cover the solution adopted vis -a-vis future new Member States
as regards the "public works coordination' - Directive ( cf. Accession Treaty ,
OJ L 73 , 27 March- 1972 , p. 89 ).
                                          Article 19
         Additions to take account of special positions with regard to registers
of companies in the ^cw Member States . Solutions identical to that adopted
for public works contracts ( cf . Accession Treaty , OJ L 73 , 27 March 1972 , p. 89 ).
                                          Article 20 (b )
         Addition at the request of the ESC . In certain countries balance-sheets ,
while not actually published , are made available for examination by the public .
                                          Article 23 ( 3 )
         The object of this new provision , based on a text adopted by the Council
for the ''public works coordination' 1 after the submission of the proposal for
the latter , is to abolish by stages a certain procedure specifically applicable
to Italy which is not likely to favour genuine competition.
 ---pagebreak---                                         - 5 -
                                      Article 24
        More exeat wording required. Rejection of request from ECS that repre­
sentatives of the private sector should sit in the advisory committee on public
contracts. Solution identical to that adopted for works contracts.
                                      Article 25
        Up dating of text following Council Regulation ( CEE Euratom ) llo 1182/71
of 3 June 1971 on periods , dates , and time-limits.
                                      Annex I
        The list of bodies governed "by public law to be mentioned for the
acceding states will have to be discussed in the Council . The list established
for the i :works coordination ^ directive is of no help since it contains mostly
bodies concerned with building amenity housing ( cf# Accession Treaty, OJ No
L 73, 27 March 1972 , page 90 ), See also above tinder !;Article l(b ) and Article 2 ".
                                      Annex III
        Drafting amendments in wording to align the Model Notices of Supply
Contracts with those adopted for works contracts in Directive 72/277/3EG of
26 July 1972 .