CELEX: 52011PC0895
Language: en
Date: 2011-12-20
Title: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on procurement by entities operating in the water, energy, transport and postal services sectors

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		52011PC0895
		
			Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on procurement by entities operating in the water, energy, transport and postal services sectors /* COM/2011/0895 final - 2011/0439 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1. Context of the proposal
·       
Grounds for and objectives of the proposal
The Europe 2020 strategy for smart,
sustainable and inclusive growth [COM(2010) 2020] is based on three
interlocking and mutually reinforcing priorities: developing an economy based
on knowledge and innovation; promoting a low-carbon, resource-efficient and
competitive economy; and fostering a high-employment economy delivering social
and territorial cohesion.
Public procurement plays a key role in the
Europe 2020 strategy as one of the market-based instruments to be used to
achieve those objectives by improving the business environment and conditions
for business to innovate and by encouraging wider use of green procurement
supporting the shift towards a resource efficient and low-carbon economy. At
the same time, the Europe 2020 strategy stresses that public procurement policy
must ensure the most efficient use of funds and that procurement markets must
be kept open Union-wide.
In the face of those challenges, the
existing public procurement legislation needs to be revised and modernised in
order to make it better suited to deal with the evolving political, social and
economic context. This concerns not only procurement by the State and public
authorities, but also contract awards by utilities operators which have their
own specific procurement regime.
In its communication of 13 April 2011 on
“The Single Market Act: Twelve levers to boost growth and confidence”, the European
Commission included among its twelve key priority actions to be adopted by the
EU institutions before the end of 2012, a revised and modernised public
procurement legislative framework to make the award of contracts more flexible
and enable public contracts to be put to better use in support of other
policies.
This proposal has two complementary
objectives:
·              
Increase the efficiency of spending to ensure
the best possible procurement outcomes in terms of value for money. This
implies in particular a simplification and flexibilisation of the existing
public procurement rules. Streamlined, more efficient procedures will benefit
all economic operators and facilitate the participation of SMEs and
cross-border bidders.
·              
Allow procurers to make better use of
procurement in support of common societal goals such as protection of the
environment, higher resource and energy efficiency, combating climate change,
promoting innovation, employment and social inclusion and ensuring the best
possible conditions for the provision of high quality social services.
·       
General context
Public procurement plays an important role
in the overall economic performance of the European Union. In Europe, public
purchasers spend around 18% of GDP on supplies, works and services. Given the
volume of purchases, public procurement can be used as a powerful lever for
achieving a Single Market fostering smart, sustainable and inclusive growth.
The current generation of public
procurement Directives – Directives 2004/17/EC[1]
and 2004/18/EC[2]
– are the product of a long evolution that started in 1971 with the adoption of
Directive 71/305/EEC. By guaranteeing transparent and non-discriminatory
procedures, those Directives principally aim to ensure that economic operators
from across the Single Market benefit fully from the basic freedoms in competing
for public contracts.
A comprehensive economic evaluation has
shown that the procurement Directives have achieved their objectives to a
considerable extent. They have resulted in greater transparency and higher
levels of competition while achieving measurable savings through lower prices.
Stakeholders have nevertheless voiced
demand for a review of the public procurement directives to simplify the rules,
increase their efficiency and effectiveness and make them better suited to deal
with the evolving political, social and economic context. Streamlined, more
efficient procedures will increase flexibility for contracting authorities,
benefit all economic operators and facilitate the participation of SMEs and
cross-border bidders. Improved procurement rules will also allow contracting entities
to make better use of procurement in support of common societal goals, such as
the protection of the environment, higher resource and energy efficiency and
combating climate change, promoting innovation and social inclusion, and
ensuring the best possible conditions for the provision of high quality social
services. Those orientations were confirmed by the results of a consultation of
stakeholders conducted by the European Commission in spring 2011, where a very
large majority of stakeholders supported the proposal to review the procurement
Directives in order to adapt them better to the new challenges faced by
procurers and economic operators alike.
·       
Existing provisions in the area of the
proposal
Together with the proposed new Directive on
procurement by public authorities, the proposal will replace Directives
2004/17/EC and 2004/18/EC as the core elements of the European Union public
procurement legislative framework.
The Directive will be complemented by the
further elements of that legislative framework:
·              
Directive 2009/81/EC[3] sets specific rules for defence
and sensitive security procurement,
·              
Directive 92/13/EEC[4] establishes common standards
for national review procedures to ensure that rapid and effective means of redress
is available in all EU countries in cases where bidders consider that contracts
have been awarded unfairly.
·       
Consistency with the other policies and
objectives of the Union
This initiative implements the Europe 2020
strategy for smart, sustainable and inclusive growth [COM(2010) 2020] and the
Europe 2020 Flagship Initiatives on a Digital Agenda for Europe [COM(2010)
245], the Innovation Union [COM(2010) 546], an Integrated Industrial Policy for
the Globalisation Era [COM(2010) 614], Energy 2020 [COM(2010) 639] and a
Resource Efficient Europe [COM(2011) 21]. It also implements the Single Market
Act [COM(2011) 206], in particular its twelfth key action “Revised and
Modernised Public Procurement Legislative Framework”. It is a CWP 2011
strategic initiative.
2. Consultation of interested parties
and impact assessment
·       
Consultation of interested parties
Consultation methods, main sectors
targeted and general profile of respondents
The European Commission published on 27
January 2011 a Green Paper on the modernisation of EU public procurement
policy – Towards a more efficient European Procurement Market[5] launching a
broad public consultation on options for legislative changes to make the award
of contracts easier and more flexible and enable public contracts to be put to
better use in support of other policies. The purpose of the Green Paper was to
identify a number of key areas for reform and ask for stakeholders’ views on
concrete options for legislative change. Among the issues covered were the needs
for simplifying and flexibilising procedures, strategic use of public
procurement to promote other policy objectives, improving access for SMEs to
public contracts and combating favouritism, corruption and conflicts of
interest.
The public consultation closed on 18 April
2011 and met with a high response. In total, 623 replies were received, coming
from a wide variety of stakeholder groups including central Member State
authorities, local and regional public purchasers and their associations,
undertakings, industry associations, academics, civil society organisations
(including trade unions) and individual citizens. The majority of replies
originated from the United Kingdom, Germany, France and, to a lesser degree,
Belgium, Italy, the Netherlands, Austria, Sweden, Spain and Denmark. 
The results of the consultation were
summarised in a synthesis paper[6]
and presented and discussed at a public conference on 30 June 2011[7].
Summary of responses and how they
have been taken into account
A very large majority of stakeholders
appreciated the initiative of the European Commission to review the current
procurement policy. Amongst the different subjects discussed in the Green
Paper, stakeholders put a particularly strong emphasis on the need to simplify
procedures and make them more flexible. There was also consensus among all
stakeholder groups that the rules on procurement by utilities were still
relevant. A clear majority of respondents agreed that there was still a need
for a specific set of rules to be applied to public utilities operators and
that the different rules applying to utilities operators adequately reflect the
specific character of utilities procurement.
In the same vein, a clear majority of
respondents agree that the criteria used for defining the entities subject to
the utilities rules (activities carried out by the entities concerned, their
legal statute and, where they are private, the existence of special or
exclusive rights) are still appropriate and should be maintained. Most
respondents are also in agreement that the profit-seeking or commercial ethos
of private companies cannot be regarded as sufficient to guarantee objective
and fair procurement, if those companies are operating on the basis of special
or exclusive rights.
On the strategic use of public procurement
to achieve the societal goals of the Europe 2020 strategy, stakeholders’
opinions were mixed. Many stakeholders, especially businesses, showed a general
reluctance to the idea of using public procurement in support of other policy
objectives. Other stakeholders, notably civil society organisations, were
strongly in favour of such strategic use and advocated far-reaching changes to
the very principles of the European Union public procurement policy.
·       
Collection and use of expertise
In addition to the Green Paper
consultation, the European Commission conducted in 2010/2011 a comprehensive
evaluation of the impact and effectiveness of EU procurement legislation
drawing on an extensive body of evidence and new independent research. The
studies assessed mainly the cost and effectiveness of procurement procedures,
issues of cross border procurement, SMEs’ access to procurement markets and the
strategic use of procurement in Europe. With regard to utilities procurement,
the evaluation examined whether the utilities sectors are now more exposed to
competition than they were at the time of adoption of the procurement regime.
The findings of the evaluation showed that
legislative activity to liberalise access to utility sectors has not yet
translated into sustained or effective competitive pressure on incumbent
operators. In many utility sectors, high levels of market concentration or
anaemic competition continue to be observed. The evaluations concluded that
conditions have not evolved to the extent that competition can be deemed to be
sufficiently strong on a sector wide basis to permit the exclusion of sectors
from the scope of the utilities procurement Directive. The rationale of the
Directive continues to apply in general while specific exemptions from the application
of the procurement rules may be justified on the basis of an in-depth, case by
case analysis.
·       
Impact assessment
The impact assessment and its executive
summary give an overview of the different options for each of the five groups
of basic problems (administrative organisation, scope, procedures, strategic
procurement and access to procurement markets). Based on an analysis of the
advantages and disadvantages of the different options, a package of preferred
options was identified that should optimise the synergies between the different
solutions allowing savings due to one type of action to neutralise related
costs caused by another (e.g. possible increased procedural requirements caused
by strategic procurement actions could partially be neutralised by savings
related to the improved design of procurement procedures). Those preferred
options form the basis of the present proposal.
The draft Impact Assessment report was
scrutinised by the Impact Assessment Board, who asked for amendments concerning
in particular the identification of the specific elements of the legislative
framework to be addressed, the description of the options under discussion, a more
in-depth cost-benefit analysis of the selected headline actions and the
systematic integration of stakeholder views, both in the problem definition and
to complement the analysis of impacts. Those recommendations for improvement
were integrated in the final report. The opinion of the Impact Assessment Board
on the report is published together with this proposal, as well as the final
Impact Assessment report and its executive summary.
3. Legal elements of the proposal
·       
Legal basis
The proposal is based on Articles 53(1), 62
and 114 of the Treaty on the Functioning of the European Union (TFEU).
·       
Subsidiarity principle
The subsidiarity principle applies insofar
as the proposal does not fall under the exclusive competence of the EU.
The objectives of the proposal cannot be
sufficiently achieved by the Member States for the following reason: 
The coordination of procurement procedures
above certain thresholds has proven an important tool for the achievement of
the Internal Market in the field of purchasing by utilities. It ensures
effective and equal access to contracts for economic operators across the Internal
Market. Experience with Directives 2004/17/EC and 2004/18/EC and the earlier
generations of procurement Directives has shown that European-wide procurement
procedures provide transparency and objectivity in procurement resulting in
considerable savings and improved procurement outcomes that benefit utilities
operators, their customers and, ultimately, the European taxpayer. 
This objective could not be sufficiently
achieved through action by Member States which would inevitably result in
divergent requirements and possibly conflicting procedural regimes increasing
regulatory complexity and causing unwarranted obstacles for cross-border
activities.
The proposal therefore complies with the
subsidiarity principle.
·       
Proportionality principle
The proposal complies with the
proportionality principle since it does not go beyond what is necessary in
order to achieve the objective of ensuring the proper functioning of the
Internal Market through a set of European-wide coordinated procurement
procedures. Moreover, the proposal is based on a “tool box” approach, allowing
Member State a maximum of flexibility in adapting the procedures and tools to
their specific situation. 
Compared to the current procurement
Directives, the proposal will reduce administrative burden related to the
conduct of the procedure both for contracting entities and economic operators;
where new requirements are foreseen (for instance, in the context of strategic
procurement), those will be compensated by the removal of constraints in other
areas.
·       
Choice of instruments
Since the proposal is based on Articles
53(1), 62 and 114 TFEU the use of a Regulation for the provisions applying both
to the procurement of goods and services would not be permitted by the Treaty.
The instrument proposed is therefore a Directive.
During the impact assessment process,
non-legislative options were discarded for reasons set out in detail in the
impact assessment.
4. Budgetary implication
The proposal has no budgetary implications.
5. Additional information
·       
Repeal of existing legislation
The adoption of the proposal will lead to
the repeal of existing legislation (Directive 2004/17/EEC).
·       
Review/revision/sunset clause
The proposal contains a review clause
concerning the economic effects of the threshold amounts.
·                                    
Transposition measures and explanatory
documents
The proposal
concerns an area where Union legislation has a coordination purpose, with a
significant impact on a wide range of national legal sectors. Nothwithstanding
the coordination purpose, many provisions constitute full harmonisation and the
proposal includes a large number of legal obligations. Member States supplement
Union rules with national additional provisions so as the whole system becomes
operational. 
In this
context, the Commission has identified a number of factors which render
explanations by Member States necessary both for the correct understanding of
transposing measures and for the functioning of the whole picture of
procurement rules at national level:
–                        
transposing and implementing measures are adopted
at different institutional levels (national / federal, regional, local);
–                        
in addition to the different regulatory layers,
in many Member States rules are also established according to the sector
involved or the type of procurement concerned;
–                        
administrative measures of general or specific
nature complement and in some cases overlap the main legal framework.
Only Member
States can explain how the different measures transpose the Union directives in
the public procurement sector and how the same measures interact each with the
others.
For those
reasons, the communication of documents explaining the relationship between the
various parts of this directive and the corresponding parts of national
transposition measures should be communicated together with the transposing
measures, in particular concordance tables, which constitute an operational
tool for the analysis of the national measures.
·       
European Economic Area
The proposed act concerns an EEA matter and
should therefore extend to the European Economic Area.
·       
Detailed explanation of the proposal
1) Simplification and flexibilisation of
procurement procedures
The proposed Directive provides for a
simplification and flexibilisation of the procedural regime set by the current
public procurement Directives. For this purpose, it contains the following
measures:
Clarification of scope: The basic concept of “procurement” which appears also in the title
of the proposed Directive has been newly introduced in order to better
determine the scope and purpose of procurement law and to facilitate the
application of the thresholds. The definitions of certain key notions
determining the scope of the Directive (such as body governed by public law,
public works and service contracts, mixed contracts) have been revised in the light
of the case-law of the Court of Justice. At the same time, the proposal
endeavours to keep continuity in the use of notions and concepts that have been
developed over the years through the Court’s case-law and are well known to
practitioners. In this context, it should be noted that minor deviations from
the wording or presentation known from the previous Directives do not
necessarily imply a change of substance, but may be due to simplification of
texts.
The notion of special or exclusive rights
is central to the definition of the scope of this Directive, since entities
which are neither contracting authorities not public undertakings within the
meaning of this Directive are subject to this Directive only to the extent that
they exercise one of the activities covered on the basis of such rights. It is
therefore appropriate to clarify that rights which have
been granted by means of a procedure in which adequate publicity has been
ensured and where the granting of those rights was based on objective criteria,
notably pursuant to Union legislation, do not constitute special or exclusive
rights for the purposes of this Directive.
The traditional distinction between
so-called priority and non-priority services (“A” and “B” services) will be
abolished. The results of the evaluation have shown that it is no longer
justified to restrict the full application of procurement law to a limited
group of services. However, it became also clear that the regular procurement
regime is not adapted to social services which need a specific set of rules
(see below).
Following the results of the evaluation,
the scope in terms of sectors covered remains largely unchanged. However,
procurement made for the purpose of exploring oil and gas has been withdrawn
from the scope as that sector has been found to be subject to such competitive
pressure that the procurement discipline brought about by the Directive is no
longer needed. The competitive situation in this sector of activity has been
examined in the context of four different requests for exemption under the
current Article 30[8].
In all four cases, the relevant geographical market was consistently found to
be worldwide, which is furthermore in accordance with well-established practice
in merger cases[9].
The conclusions have consistently been that the exploration market is not
highly concentrated. Apart from state owned companies, the market is
characterised by the presence of three international vertically integrated
private players named the super majors (BP, ExxonMobil and Shell) as well as a
certain number of so-called ‘majors’ and the individual market share of even
super majors is well below one percent. All of this has consistently been found
to constitute indications of direct exposure to competition and access to the
market is furthermore liberalised through the provisions of the Hydrocarbon
Licensing Directive[10].
It therefore appropriate to simplify the legal situation and to lessen the
administrative burden on all concerned (contracting entities, Member States,
the European Commission, the European Parliament and Council) by avoiding the
need to adopt individual Article 30 Decisions in respect of each of the
remaining 23 Member States.
Toolbox approach: Member State systems will provide the three basic forms of
procedure which already exist under current Directives: open and restricted
procedures as well as negotiated procedures with prior call for competition.
They may, in addition, foresee either as standard procedure or subject to
certain conditions the innovation partnership, a new form of procedure for
innovative procurement (see below). 
Contracting entities will furthermore have
at their disposal a set of six specific procurement techniques and tools
intended for aggregated and electronic procurement: framework agreements,
dynamic purchasing systems, electronic auctions, electronic catalogues, central
purchasing bodies and joint procurement. Compared to the existing Directive, those
tools have been improved and clarified with a view to facilitating
e-procurement.
Promotion of e-procurement: The use of electronic communications and transaction processing by
purchasers can deliver significant savings and improved procurement outcomes
while reducing waste and error. The proposal aims at helping Member States to
achieve the switchover to e-procurement enabling suppliers to take part in
online procurement procedures across the Internal Market. For this purpose, the
proposed Directive provides for the mandatory transmission of notices in
electronic form, the mandatory electronic availability of the procurement
documents and imposes the switch to fully electronic communication, in
particular e-submission, in all procurement procedures within a transition
period of two years. It streamlines and improves Dynamic Purchasing Systems and
electronic catalogues, fully electronic procurement tools that are particularly
adapted to highly aggregated procurement done by Central Purchasing Bodies. The
e-procurement instrument would also enable contracting authorities to prevent,
detect and correct errors generally due to wrong understanding or
interpretation of public procurement rules.
Modernisation of procedures: The proposal provides a more flexible and user-friendly approach
for certain important features of procurement procedures. Time-limits for
participations and submission of offers have been shortened, allowing for
quicker and more streamlined procurement. The distinction between selection of
tenderers and award of the contract which is often a source of errors and
misunderstandings has been made more flexible, allowing contracting entities to
decide on the most practical sequencing by examining award criteria before
selection criteria and to take into account the organisation and quality of the
staff assigned to performing the contract as an award criterion.
The procedure for exemption of contracts
awarded in sufficiently competitive markets (the current “Article 30
decisions”) has been simplified and streamlined. A number of exemptions, in
particular the intra-group and joint venture exemptions which are important in
practice have also been reviewed and clarified.
The modification of contracts during their
term has become an increasingly relevant and problematic issue for
practitioners. A specific provision on modification of contracts takes up the
basic solutions developed by case-law and provides a pragmatic solution for
dealing with unforeseen circumstances requiring an adaption of a public
contract during its term.
2) Strategic use of public procurement
in response to new challenges
The proposed Directive is based on enabling
approach providing contracting entities with the instruments needed to
contribute to the achievement of the Europe 2020 strategic goals by using their
purchasing power to procure goods and services that foster innovation, respect
the environment and combat climate change while improving employment, public
health and social conditions. 
Life-cycle costing: The proposal gives purchasers the possibility to base their award
decisions on life-cycle costs of the products, services or works to be
purchased. The life cycle covers all stages of the existence of a
product or works or provision of a service, from raw material acquisition or
generation of resources until disposal, clearance and finalisation. The costs
to be taken into account do not only include direct monetary expenses, but also
external environmental costs if they can be monetised and verified. Where a
common European Union methodology for the calculation of life-cycle costs has
been developed, contracting entities are obliged to make use of it.
Production process: Contracting entities may refer to all factors directly linked to
the production process in the technical specifications and in the award
criteria, as long as they refer to aspects of the production process which are
closely related to the specific production or provision of the good or service
purchased. This excludes requirements that are not related to the process of
producing the products, works or services covered by the procurement, such as a
general corporate social responsibility requirement covering the whole
operation of the contractor.
Labels:
Contracting entities may require that works, supplies or services bear specific
labels certifying environmental, social or other characteristics, provided that
they accept also equivalent labels. This applies for instance to European or
(multi-)national eco-labels or labels certifying that a product is free of
child-labour. The certification schemes in question must concern
characteristics linked to the subject-matter of the contract and be drawn up on
the basis of scientific information, established in an open and transparent
procedure and accessible to all interested parties.
Sanctioning violations of mandatory
social, labour or environmental law: Under the
proposed Directive, a contracting entity can exclude economic operators from
the procedure, if it identifies infringements of obligations established by
Union legislation in the field of social, labour or environmental law or of
international labour law provisions. Moreover, contracting entities will be
obliged to reject tenders if they have established that they are abnormally low
because of violations of Union legislation in the field of social, labour or
environmental law.
Social services: The evaluation on the impact and effectiveness of EU public
procurement legislation has shown that social, health and education services
have specific characteristics which make them inappropriate for the application
of the regular procedures for the award of public service contracts. Those
services are typically provided within a specific context that varies widely
between Member States due to different administrative, organisational and
cultural circumstances. The services have, by their very nature, only a very
limited cross-border dimension. Member States should therefore have large
discretion to organise the choice of service providers. The proposal takes
account of this by providing a specific regime for contracts for those
services, with a higher threshold of EUR 1 000 000 and imposing
only the respect of basic principles of transparency and equal treatment. A
quantitative analysis of the values of contracts for the relevant services
awarded to economic operators from abroad has shown that contracts below this
value have typically no cross-border interest in the particular context of
procurement in the utilities' sectors.
Innovation:
Research and innovation play a central role in the Europe 2020 strategy for
smart, sustainable and inclusive growth. Purchasers should be enabled to buy
innovative products and services promoting future growth and improving
efficiency and quality of public services. The proposal provides for this
purpose the innovation partnership, a new special procedure for the development
and subsequent purchase of new, innovative products, works and services,
provided they can be delivered to agreed performance levels and costs. In
addition, the proposal improves and simplifies the competitive dialogue
procedure and facilitates cross-border joint procurement which is an important
instrument for innovative purchasing.
3) Better access to the market for SMEs
and Start-ups
Small and medium-sized enterprises (SMEs)
have a huge potential for job creation, growth and innovation. Easy access to
procurement markets can help them unlock this potential while allowing
contracting entities to broaden their supplier base, with positive effects of
higher competition for public contracts. In order to make public contracts as
accessible as possible to SMEs, the European Commission published in 2008 the
“European Code of Best Practices facilitating access by SMEs to public
procurement contracts”[11].
The proposal builds on this work and provides concrete measures to remove
barriers for market access by SMEs.
Simplification of information
obligations: It is therefore foreseen that
contracting entities may apply the selection criteria provided for in the
proposed Directive on public procurement and that, where they do, they are then
obliged to apply the provisions concerning notably the ceiling to requirements
on minimum turnover as well as the provisions on in particular
self-certification.
Better access to framework agreements: Under the current Directives, there is no limitation to the
duration of framework agreements concluded in the utilities sectors. This can
lead to market foreclosure. The proposal limits the duration to four years
(except in duly justified circumstances), improving access to business
opportunities and enhancing competition, also to the benefit of SMEs.
Direct payment of subcontractors: In addition, Member State can provide that subcontractors may
request for direct payment by the contracting entity of supplies, works and
services provided to the main contractor in the context of the contract
performance. This offers subcontractors which are often SMEs an efficient way
of protecting their interest in being paid.
4) Sound procedures
The financial interests at stake and the
interaction between the public and the private sector make procurement a risk
area for unsound business practices such as conflict of interest, favouritism
and corruption. The proposal improves the existing safeguards against such
risks and provides for additional protection.
Conflicts of interest: The proposal contains a specific provision on conflicts of
interest covering actual, potential or perceived conflict of interest
situations affecting staff members of the contracting authority or of
procurement service providers intervening in the procedure and members of the
contracting authority's management who may influence the outcome of a procurement
procedure even if they are not formally involved in it. Given the differences
in the decision-making processes of respectively contracting authorities and undertakings,
it is appropriate to limit such provisions to procurement carried out by the
former.
Illicit conduct: The proposal contains a specific provision against illicit
behaviour by candidates and tenderers, such as attempts to improperly influence
the decision-making process or entering into agreements with other participants
to manipulate the outcome of the procedure have to be excluded from the
procedure. Such illicit activities violate basic principles of European Union law
and can result in serious distortions of competition.
Unfair advantages: Market consultations are a useful instrument for contracting
entities to obtain information on the structure, capability and capacity of a
market while at the same time informing market actors on purchasers’
procurement projects and requirements. However, preliminary contacts with
market participants must not result in unfair advantages and distortions of
competitions. The proposal contains therefore a specific provision on
safeguards against undue preference in favour of participants who have advised
the contracting entity or have been involved in the preparation of the
procedure.
5) Governance
National oversight bodies: The evaluation has shown that not all Member States are
consistently and systematically monitoring the implementation and functioning
of the procurement rules. This compromises the efficient and uniform
application of European Union law. The proposal provides therefore that Member
States designate a single national authority in charge of monitoring,
implementation and control of procurement law. Only a single body with
overarching tasks will ensure an overview of main implementation difficulties
and will be able to suggest appropriate remedies to more structural problems.
It will be in the position to provide immediate feedback on the functioning of
the policy and the potential weaknesses in national legislation and practice,
thus contributing to the quick identification of solutions and the improvement
of the procurement procedures.
Knowledge centres: In many cases, contracting entities do not have the internal
expertise to deal with complex procurement projects. Appropriate and
independent professional support by administrative structures could
considerably improve procurement outcomes by expanding the knowledge base and
the professionalism of public procurers and delivering assistance to
businesses, notably SMEs. The proposal obliges therefore Member States to
provide support structures offering legal and economic advice, guidance,
training and assistance in preparing and conducting procurement procedures.
Support structures or mechanisms exist already at national level, although
organised in very different manners and covering different areas of interest
for contracting authorities and contracting entities. Member states will therefore
be able to use those mechanisms, build on their expertise and promote their
services as an appropriate and modern tool capable to provide appropriate
support to contracting authorities, contracting entities and economic
operators. To reinforce the fight against corruption and favouritism,
contracting authorities will be obliged to transmit the text of concluded
contracts to the oversight body, which will thus be able to scrutinize these
contracts for suspicious patterns, and give access to these documents to
interested persons to the extent that legitimate public or private interests
are not jeopardized. Because of the evident problems of protecting legitimate
commercial interests and avoid distoriton of competition, this obligation
should not be extended to undertakings (public or private) operating in these
sectors. Furthermore, the creation of disproportionate administrative burden
must be avoided; the obligation to transmit the full text of concluded
contracts should therefore remain limited to relatively high value contracts.
The thresholds proposed would strike the right balance between increasing
administrative burden and ensuring greater transparency: with a threshold of 1
000 000 EUR for supplies and services, and of 10 000 000 EUR, this obligation
would apply to 10 - 20 % of all procurement published in the Official Journal.
It is not foreseen that requirements
concerning oversight bodies and knowledge centres will generate overall an
additional financial burden for Member States. If some costs are expected to
re-organise or fine tune the activities of existing mechanisms and structures,
they will be neutralised by a reduction of litigation costs (both for
contracting entities and business), costs related to delays in the attribution
of contracts, due to misapplication of public procurement rules or to the bad
preparation of the procurement procedures, as well as costs related to the fact
that advice to contracting entities is currently provided in a fragmented and
inefficient manner.
Administrative cooperation: The proposal provides also for effective cooperation allowing
national oversight bodies to share information and best practices and to
cooperate through the Internal Market Information System (IMI).
2011/0439 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on procurement by entities operating in
the water, energy, transport and postal services sectors
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 53(1) and Article 62 and Article 114
thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments[12],
Having regard to the opinion of the
European Economic and Social Committee[13],
Having regard to the opinion of the
Committee of the Regions[14],

Acting in accordance with the ordinary
legislative procedure,
Whereas:
(1)              
In the light of the results of the Evaluation on
the Impact and Effectiveness of EU Public Procurement Legislation[15] it appears appropriate to
maintain rules on procurement by entities operating in the water, energy,
transport and postal services sectors, since national authorities continue to
be able to influence the behaviour of those entities, including participation
in their capital and representation in the entities' administrative, managerial
or supervisory bodies. Another reason to continue to regulate procurement in those
sectors is the closed nature of the markets in which they operate, due to the
existence of special or exclusive rights granted by the Member States
concerning the supply to, provision or operation of networks for providing the
service concerned.
(2)              
In order to guarantee the opening up to
competition of procurement by entities operating in the water, energy,
transport and postal services sectors, provisions should be drawn up
coordinating procurement procedures in respect of contracts above a certain
value. Such coordination is needed to ensure the effect of the principles of
the Treaty on the Functioning of the European Union and in particular the free
movement of goods, the freedom of establishment and the freedom to provide
services as well as the principles deriving therefrom, such as equal treatment,
non-discrimination, mutual recognition, proportionality and transparency. In
view of the nature of the sectors affected by such coordination, the latter
should, while safeguarding the application of those principles, establish a framework
for sound commercial practice and should allow maximum flexibility.
(3)              
For procurement the value of which is lower than
the thresholds triggering the application of the provisions of Union
coordination, it is advisable to recall the case-law developed by the Court of
Justice according to which the rules and principles of the Treaty apply.
(4)              
Public procurement plays a key role in the
Europe 2020 strategy[16]
as one of the market-based instruments to be used to achieve a smart,
sustainable and inclusive growth while ensuring the most efficient use of
public funds. For that purpose, the current public procurement rules adopted
pursuant to Directive 2004/17/EC of the European Parliament and of the Council
of 31 March 2004 coordinating the procurement procedures of entities operating
in the water, energy, transport and postal services sectors[17] and Directive 2004/18/EC of
the European Parliament and of the Council of 31 March 2004 on the coordination
of procedures for the award of public works contracts, public supply contracts
and public service contracts[18]
have to be revised and modernised in order to increase the efficiency of public
spending, facilitating in particular the participation of small and
medium-sized enterprises in public procurement and to enable procurers to make
better use of public procurement in support of common societal goals. There is
also a need to clarify basic notions and concepts to ensure better legal
certainty and to incorporate certain aspects of related well-established
case-law of the Court of Justice of the European Union.
(5)              
Under Article 11 of the Treaty on the
Functioning of the European Union, environmental protection requirements must
be integrated into the definition and implementation of the Union policies and
activities, in particular with a view to promoting sustainable development.
This Directive clarifies how the contracting entities may contribute to the
protection of the environment and the promotion of sustainable development,
whilst ensuring that they can obtain the best value for money for their
contracts.
(6)              
It is appropriate that the notion of procurement
or the definition of what constitutes a single procurement are as close as
possible to those applied pursuant to Directive […] of the European Parliament
and of the Council of […] on public procurement[19], having due regard for the
specificities of the sectors covered by this Directive. The concept of single
procurement encompasses all supplies, works and services needed to carry out a
particular project, for instance a works project or an entirety of works,
supplies and/or services. Indications for the existence of one single project can
for instance consist in overall prior planning and conception by the
contracting entity, the fact that the different elements purchased fulfil a single economic and technical function or
that they are otherwise logically interlinked and carried out in a narrow time
frame.
(7)              
To ensure a real opening up of the market and a
fair balance in the application of procurement rules in the water, energy, transport
and postal services sectors it is necessary for the entities covered to be
identified on a basis other than their legal status. It should be ensured,
therefore, that the equal treatment of contracting entities operating in the
public sector and those operating in the private sector is not prejudiced. It
is also necessary to ensure, in keeping with Article 345 of the Treaty on the
Functioning of the European Union, that the rules governing the system of
property ownership in Member States are not prejudiced.
(8)              
The notion of special or exclusive rights is
central to the definition of the scope of this Directive, since entities which
are neither contracting authorities nor public undertakings within the meaning
of this Directive are subject to its provisions only to the extent that they
exercise one of the activities covered on the basis of such rights. It is
therefore appropriate to clarify that rights which have
been granted by means of a procedure based on objective criteria, notably
pursuant to Union legislation, and for which adequate publicity has been
ensured do not constitute special or exclusive rights for the purposes of this
Directive. This legislation should include Directive
98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning
common rules for the internal market in natural gas[20], Directive 96/92/EC of the
European Parliament and of the Council of 19 December 1996 concerning common
rules for the internal market in electricity[21], Directive 97/67/EC of the European Parliament
and of the Council of 15 December 1997 on common rules for the development of
the internal market of Community postal services and the improvement of quality
of service[22],
Directive 94/22/EC of the European Parliament and of the Council of 20 May 1994
on the conditions for granting and using authorisations for the prospection,
exploration and production of hydrocarbons[23]
and Regulation (EC) No 1370/2007 of the European Parliament and of the Council
of 23 October 2007 on public passenger transport services by rail and by
road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70[24].
(9)              
Contracting entities that operate in the
drinking water sector may also deal with other activities relating to water,
such as projects in the field of hydraulic engineering, irrigation, land
drainage or the disposal and treatment of sewage. In such case, contracting
entities should be able to apply the procurement procedures provided for in
this Directive in respect of all their activities relating to water, whichever
part of the "water cycle" is concerned. However, procurement rules of
the type proposed for supplies of goods are inappropriate for purchases of
water, given the need to procure water from sources near the area in which it
will be used.
(10)          
It is appropriate to exclude procurement made
for the purpose of exploring for oil and gas as that sector has consistently
been found to be subject to such competitive pressure that the procurement
discipline brought about by the EU procurement rules is no longer needed.
(11)          
Contracts may be awarded for the purpose of
meeting the requirements of several activities, possibly subject to different
legal regimes. It should be clarified that the legal regime applicable to a
single contract intended to cover several activities should be subject to the
rules applicable to the activity for which it is principally intended.
Determination of the activity for which the contract is principally intended
may be based on an analysis of the requirements which the specific contract
must meet, carried out by the contracting entity for the purposes of estimating
the contract value and drawing up the procurement documents. In certain cases,
such as the purchase of a single piece of equipment for the pursuit of
activities for which information allowing an estimation of the respective rates
of use would be unavailable, it might be objectively impossible to determine
for which activity the contract is principally intended. The rules applicable
to such cases should be indicated.
(12)          
Even if they do not necessarily lead to corrupt
conduct, actual, potential or perceived conflicts of interest have a high
potential to improperly influence public procurement decisions with the effect
of distorting competition and jeopardising equal treatment of tenderers. Effective
mechanisms should therefore be set up to prevent, identify and remedy conflicts
of interest. Given the differences in the decision-making processes of
respectively contracting authorities and undertakings, it is appropriate to
limit such provisions to procurement carried out by the former.
(13)          
Illicit conduct by participants in a procurement
procedure, such as attempts to unduly influence the decision-making process or
to enter into agreements with other candidates to manipulate the outcome of the
procedure can result in violations of the basic principles of Union law and in
serious distortions of competition. Economic operators should therefore be required
to submit a declaration on honour that they do not engage in such illicit
activities and be excluded if this declaration proves to be false.
(14)          
Council Decision 94/800/EC of 22 December 1994
concerning the conclusion on behalf of the European Community, as regards
matters within its competence, of the Agreements reached in the Uruguay Round
multilateral negotiations (1986 to 1994)[25],
approved in particular the World Trade Organisation Agreement on Government
Procurement, hereinafter referred to as the "Agreement". The aim of the
Agreement is to establish a multilateral framework of balanced rights and
obligations relating to public contracts with a view to achieving the
liberalisation and expansion of world trade. For contracts covered by the
Agreement, as well as by other relevant international agreements by which the
Union is bound, contracting entities fulfil the obligations under those
agreements by applying this Directive to economic operators of third countries that
are signatories to the agreements.
(15)          
The Agreement applies to contracts above certain
thresholds, set in the Agreement and expressed as special drawing rights. The
thresholds laid down by this Directive should be aligned to ensure that they
correspond to the euro equivalents of the thresholds of the Agreement.
Provision should also be made for periodic reviews of the thresholds expressed
in euros so as to adjust them, by way of a purely mathematical operation, to
possible variations in the value of the euro in relation to the special drawing
right. To avoid a multiplication of thresholds it is furthermore appropriate,
without prejudice to the international commitments of the Union, to continue to
apply the same thresholds to all contracting entities, regardless of the sector
in which they operate.
(16)          
The results of the Evaluation demonstrated that
the exclusion of certain services from the full application of this directive
should be reviewed. As a result, the full application of the Directive is
extended to a number of services (such as hotel and legal services, which both
showed a particularly high percentage of cross-border trade).
(17)          
Other categories of services continue by their
very nature to have a limited cross-border dimension, namely what are known as services
to the person such as certain social, health and educational services. Those
services are provided within a particular context that varies widely amongst
Member States, due to different cultural traditions. A specific regime should
therefore be established for contracts for those services, with a higher
threshold of EUR 1 000 000. In the particular context of
procurement in those sectors, services to the person with values below this
threshold will typically not be of interest to providers from other Member
States unless there are concrete indications to the contrary, such as Union
financing for transborder projects. Contracts for services to the person above
this threshold should be subject to Union-wide transparency. Given the
importance of the cultural context and the sensitivity of those services,
Member States should be given wide discretion to organise the choice of the
service providers in the way they consider most appropriate. The rules of this
directive take account of that imperative, imposing only observance of basic
principles of transparency and equal treatment and making sure that contracting
entities are able to apply specific quality criteria for the choice of service
providers, such as the criteria set out in the voluntary European Quality
Framework for Social Services of the European Union's Social Protection
Committee[26].
Member States and/or contracting entities remain free to provide those services
themselves or to organise social services in a way that does not entail the
conclusion of public contracts, for example through the mere financing of such
services or by granting licences or authorisations to all economic operators
meeting the conditions established beforehand by the contracting entity,
without any limits or quotas, provided such a system ensures sufficient
advertising and complies with the principles of transparency and
non-discrimination.
(18)          
Being addressed to Member States, this directive
does not apply to procurement carried out by international organisations on
their own behalf and for their own account. There is, however, a need to
clarify to what extent this directive should be applied to procurement governed
by specific international rules. 
(19)          
There is considerable legal uncertainty as to
how far cooperation between public authorities should be covered by public
procurement rules. The relevant case-law of the Court of Justice of the
European Union is interpreted divergently between Member States and even
between contracting authorities. As this jurisprudence would be equally
applicable to public authorities when operating in the sectors covered by this directive,
it is appropriate to ensure that the same rules apply in both this directive
and Directive […/…/EU][on public procurement]. 
(20)          
It is appropriate to exclude certain service,
supply and works contracts awarded to an affiliated undertaking having as its
principal activity the provision of such services, supply or works to the group
of which it is part, rather than offering them on the market. It is also
appropriate to exclude certain service, supply and works contracts awarded by a
contracting entity to a joint venture which is formed by a number of
contracting entities for the purpose of carrying out activities covered by this
Directive and of which that entity is part. However, it is appropriate to
ensure that this exclusion does not give rise to distortions of competition to
the benefit of the undertakings or joint ventures that are affiliated with the
contracting entities; it is appropriate to provide a suitable set of rules, in
particular as regards the maximum limits within which the undertakings may
obtain a part of their turnover from the market and above which they would lose
the possibility of being awarded contracts without calls for competition, the
composition of joint ventures and the stability of links between those joint
ventures and the contracting entities of which they are composed.
(21)          
It is also appropriate to clarify the relations
between the provisions on cooperation between public authorities and the
provisions on the award of contracts to affiliated undertakings or in the
context of joint ventures.
(22)          
This Directive should apply neither to contracts
intended to permit the performance of an activity referred to in Articles 5 to 11
nor to design contests organised for the pursuit of such an activity if, in the
Member State in which this activity is carried out, it is directly exposed to
competition on markets to which access is not limited. It is therefore
appropriate to maintain the procedure, applicable to all sectors covered by
this Directive that will enable the effects of current or future opening up to
competition to be taken into account. Such a procedure should provide legal
certainty for the entities concerned, as well as an appropriate decision-making
process, ensuring, within short time limits, uniform application of Union law
in this area.
(23)          
Direct exposure to competition should be
assessed on the basis of objective criteria, taking account of the specific
characteristics of the sector concerned. This assessment is, however, limited
by the applicable short deadlines and by having to be based on the information
available to the Commission – either from already available sources or from the
information obtained in the context of the application pursuant to Article 28 -
which can not be supplemented by more time consuming methods, including notably
public inquiries of economic operators concerned. The assessment of direct
exposure to competition that can be carried out in the context of this
directive is consequently without prejudice to the full-fledged application of competition law. 
(24)          
The implementation and application of
appropriate Union legislation opening a given sector, or a part of it, will be
considered to provide sufficient grounds for assuming that there is free access
to the market in question. Such appropriate legislation should be identified in
an annex which can be updated by the Commission. It is appropriate that this
annex should currently refer to Directive 2009/73/EC of the European Parliament
and of the Council of 13 July 2009 concerning common rules for the internal
market in natural gas and repealing Directive 2003/55/EC[27], Directive 2009/72/EC of the
European Parliament and of the Council of 13 July 2009 concerning common rules
for the internal market in electricity and repealing Directive 2003/54/EC[28] and Directive
94/22/EC.
(25)          
Research and innovation, including
eco-innovation and social innovation, are among the main drivers of future
growth and have been put at the centre of the Europe 2020 strategy for smart,
sustainable and inclusive growth. Contracting entities should make the best
strategic use of public procurement to spur innovation. Buying innovative goods
and services plays a key role in improving the efficiency and quality of public
services while addressing major societal challenges. It contributes to
achieving best value for money as well as wider economic, environmental and
societal benefits in terms of generating new ideas, translating them into
innovative products and services and thus promoting sustainable economic
growth. This directive should contribute to facilitating procurement of
innovation and help Member States in achieving the Innovation Union targets. A
specific procurement procedure should therefore be provided for which allows
contracting entities to establish a long-term innovation partnership for the
development and subsequent purchase of a new, innovative product, service or
works provided it can be delivered to agreed performance levels and costs. The
partnership should be structured in such a way that it can provide the
necessary “market-pull” incentivising the development of an innovative solution
without foreclosing the market.
(26)          
In view of the detrimental effects on
competition, negotiated procedures without a call for competition should only
be used in very exceptional circumstances. This exception should be limited to
cases where publication is either not possible, for reasons of force majeure in
line with the standing case-law of the Court of Justice of the European Union,
or where it is clear from the outset that publication would not trigger more
competition, not least because there is objectively only one economic operator that
can perform the contract. Only situations of objective exclusivity can justify
the use of the negotiated procedure without a call for competition, where the
situation of exclusivity has not been created by the contracting entity itself with
a view to the future procurement procedure, and where there are no adequate
substitutes, the availability of which should be assessed thoroughly.
(27)          
Electronic means of information and
communication can greatly simplify the publication of contracts and increase
the efficiency and transparency of procurement processes. They should become the
standard means of communication and information exchange in procurement
procedures. The use of electronic means also leads to time savings. As a
result, provision should be made for reducing the minimum periods where
electronic means are used, subject, however, to the condition that they are
compatible with the specific mode of transmission envisaged at Union level.
Moreover, electronic means of information and communication including adequate
functionalities can enable contracting authorities to prevent, detect and
correct errors that occur during procurement procedures. 
(28)          
There is a strong trend emerging across Union
public procurement markets towards the aggregation of demand by public
purchasers, with a view to obtaining economies of scale, including lower prices
and transaction costs, and to improving and professionalising procurement
management. This can be achieved by concentrating purchases either by the
number of contracting entities involved or by volume and value over time.
However, the aggregation and centralisation of purchases should be carefully monitored
in order to avoid excessive concentration of purchasing power and collusion,
and to preserve transparency and competition, as well as market access
opportunities for small and medium-sized enterprises. 
(29)          
The instrument of framework agreements can be an
efficient procurement technique throughout Europe; however, there is a need to
enhance competition by improving transparency of and access to procurement
carried out by means of framework agreements. It is therefore appropriate to
revise the provisions applicable to those agreements, notably by providing for
mini-competitions for the award of specific contracts based on the agreement
and by limiting the duration of framework agreements.
(30)          
In view of the experience acquired, there is
also a need to adjust the rules governing dynamic purchasing systems to enable
contracting entities to take full advantage of the possibilities afforded by this
instrument. The systems need to be simplified, in particular by operating them
in the form of a restricted procedure, hence eliminating the need for
indicative tenders, which have been identified as one of the major burdens associated
with those systems. Thus any economic operator who submits a request to
participate and meets the selection criteria should be allowed to take part in
procurement procedures carried out through the dynamic purchasing system. This
purchasing technique allows the contracting entity to have a particularly broad
range of tenders and hence to ensure optimum use of funds through broad
competition.
(31)          
In addition, new electronic purchasing
techniques are constantly being developed, such as electronic catalogues. They
help to increase competition and streamline public purchasing, particularly in
terms of savings in time and money. Certain rules should however be laid down
to ensure that such use complies with the rules of this Directive and the
principles of equal treatment, non-discrimination and transparency. In particular
where competition has been reopened under a framework agreement or where a
dynamic purchasing system is being used and where sufficient guarantees are
offered in respect of ensuring traceability, equal treatment and
predictability, contracting entities should be allowed to generate tenders in
relation to specific purchases on the basis of previously transmitted
electronic catalogues. In line with the requirements of the rules for
electronic means of communication, contracting entities should avoid
unjustified obstacles to economic operators' access to procurement procedures
in which tenders are to be presented in the form of electronic catalogues and which
guarantee compliance with the general principles of non-discrimination and
equal treatment.
(32)          
Centralised purchasing techniques are
increasingly used in most Member States. Central purchasing bodies are
responsible for making acquisitions or awarding contracts/framework agreements
for other contracting authorities or for contracting entities. In view of the
large volumes purchased, such techniques help increase competition and
professionalise public purchasing. Provision should therefore be made for a
Union definition of central purchasing bodies dedicated to contracting
entities, without preventing the continuation of less institutionalised and
systematic common purchasing or the established practice of having recourse to
service providers that prepare and manage procurement procedures on behalf and
for the account of a contracting entity. Rules should also be laid down for
allocating responsibility for the observance of the obligations pursuant to
this Directive, also in the case of remedies, among the central purchasing body
and the contracting entities procuring from or through the central purchasing
body. Where the latter has sole responsibility for the conduct of the procurement
procedures, it should also be solely and directly responsible for the legality
of the procedures. Where a contracting entity conducts certain parts of the
procedure, for instance the reopening of competition under a framework
agreement or the award of individual contracts based on a dynamic purchasing
system, it should continue to be responsible for the stages it conducts.
(33)          
Electronic means of communication are
particularly well suited to support centralised purchasing practices and tools
because of the possibility they offer to re-use and automatically process data
and to minimise information and transaction costs. The use of such electronic
means of communication should therefore, as a first step, be rendered compulsory
for central purchasing bodies, while also facilitating converging practices
across the Union. This should be followed by a general obligation to use
electronic means of communication in all procurement procedures after a
transition period of two years.
(34)          
Joint awarding of contracts by contracting
entities from different Member States currently encounters specific legal
difficulties, with special reference to conflicts of national laws. Despite the
fact that Directive 2004/17/EC implicitly allowed for cross-border joint public
procurement, in practice several national legal systems have explicitly or
implicitly rendered cross-border joint procurement legally uncertain or
impossible. Contracting entities from different Member States may be interested
in cooperating and in jointly awarding contracts in order to derive maximum
benefit from the potential of the internal market in terms of economies of
scale and risk-benefit sharing, not least for innovative projects involving a
greater amount of risk than reasonably bearable by a single contracting entity.
Therefore new rules on cross-border joint procurement designating the
applicable law should be established in order to facilitate cooperation between
contracting entities across the Single Market. In addition, contracting entities
from different Member States may set up joint legal bodies established under
national or Union law. Specific rules should be established for such form of
joint procurement.
(35)          
The technical specifications drawn up by
purchasers need to allow public procurement to be opened up to competition. To that
end, it should be possible to submit tenders that reflect the diversity of
technical solutions so as to obtain a sufficient level of competition.
Consequently, technical specifications should be drafted in such a way to avoid
artificially narrowing down competition through requirements that favour a specific
economic operator by mirroring key characteristics of the supplies, services or
works habitually offered by that economic operator. Drawing up the technical
specifications in terms of functional and performance requirements generally allows
this objective to be achieved in the best way possible and favours innovation.
Where reference is made to a European standard or, in the absence thereof, to a
national standard, tenders based on other equivalent arrangements which meet
the requirements of the contracting entities and are equivalent in terms of safety
must be considered by the contracting entities. To demonstrate equivalence,
tenderers can be required to provide third-party verified evidence; however,
other appropriate means of proof such as a technical dossier of the
manufacturer should also be allowed where the economic operator concerned has
no access to such certificates or test reports, or no possibility of obtaining
them within the relevant time limits. 
(36)          
Contracting entities that wish to purchase
works, supplies or services with specific environmental, social or other
characteristics should be able to refer to particular labels, such as the
European Eco-label, (multi-) national eco-labels or any other label provided
that the requirements for the label are linked to the subject-matter of the contract,
such as the description of the product and its presentation, including
packaging requirements. It is furthermore essential that those requirements are
drawn up and adopted on the basis of objectively verifiable criteria, using a
procedure in which stakeholders, such as government bodies, consumers,
manufacturers, distributors and environmental organisations can participate,
and that the label is accessible and available to all interested parties. 
(37)          
For all procurement intended for use by persons,
whether general public or staff of the contracting entity, it is necessary that
contracting entities lay down technical specifications so as to take into
account accessibility criteria for people with disabilities or design for all
users except in duly justified cases.
(38)          
In order to encourage the involvement of small
and medium-sized enterprises (SMEs) in the procurement market, it should be
provided explicitly that contracts may be divided into lots, whether homogenous
or heterogeneous. Where contracts are divided into lots, contracting entities
may, for instance in order to preserve competition or to ensure security of
supply, limit the number of lots for which an economic operator may tender;
they may also limit the number of lots that may be awarded to any one tenderer.
(39)          
Insofar as compatible with the need to ensure
the objective of sound commercial practice while allowing for maximum
flexibility, it is appropriate to provide for the application of Directive [2004/18/EC]
on public procurement in respect of requirements concerning economic and
financial capacity and documentary evidence. It is therefore foreseen that
contracting entities may apply the selection criteria provided for in Directive
[2004/18/EC] and that, where they do, they are then obliged to apply the
provisions concerning notably the ceiling to requirements on minimum turnover
as well as on self-certification.
(40)          
Public contracts should not be awarded to
economic operators that have participated in a criminal organisation or have
been found guilty of corruption, fraud to the detriment of the Union’s financial
interests or money laundering. Non-payment of taxes or social security
contributions should also be sanctioned by mandatory exclusion at the level of
the Union. Given that contracting entities, which are not contracting
authorities, might not have access to indisputable proof on the matter, it is
appropriate to leave the choice of whether or not to apply the exclusion
criteria listed in Directive [2004/18] to such contracting entities. The
obligation to apply Article 55(1) and (2) of Directive [2004/18] should
therefore be limited to contracting entities that are contracting authorities.
Furthermore, contracting entities should be given the possibility to exclude
candidates or tenderers for violations of environmental or social obligations,
including rules on accessibility for disabled persons or other forms of grave
professional misconduct, such as violations of competition rules or of
intellectual property rights. 
(41)          
Where contracting entities are obliged or choose
to apply the just mentioned exclusion criteria, they should apply Directive [2004/18]
concerning the possibility that economic operators adopt compliance measures
aimed at remedying the consequences of any criminal offences or misconduct and
at effectively preventing further occurrences of the misbehaviour. 
(42)          
Contracting entities may require that
environmental management measures or schemes are to be applied during the
performance of a contract. Environmental management schemes, whether or not
they are registered under Union instruments such as Regulation (EC) No 1221/2009
of the European Parliament and of the Council of 25 November 2009 on the
voluntary participation by organisations in a Community eco-management and
audit scheme (EMAS)[29],
can demonstrate that the economic operator has the technical capability to
perform the contract. A description of the measures implemented by the economic
operator to ensure the same level of environmental protection should be
accepted as an alternative to environmental management registration schemes as
a form of evidence, where the economic operator concerned has no access to such
environmental management registration schemes or no possibility of obtaining
them within the relevant time limits.
(43)          
Contracts should be awarded on the basis of
objective criteria that ensure compliance with the principles of transparency,
non-discrimination and equal treatment. Those criteria should guarantee that
tenders are assessed in conditions of effective competition, also where
contracting entities require high-quality works, supplies and services that are
optimally suited to their needs. As a result, contracting entities should be
allowed to adopt as award criteria either "the most economically
advantageous tender" or "the lowest cost", taking into account
that in the latter case they are free to set adequate quality standards by
using technical specifications or contract performance conditions.
(44)          
Where contracting entities choose to award a
contract to the most economically advantageous tender, they must determine the award
criteria on the basis of which they will assess tenders in order to identify
which one offers the best value for money. The determination of those criteria
depends on the subject-matter of the contract, since they must allow the level
of performance offered by each tender to be assessed in the light of the
subject-matter of the contract, as defined in the technical specifications, and
the value for money of each tender to be measured. Furthermore, the chosen award
criteria should not confer an unrestricted freedom of choice on the contracting
entity and they should ensure the possibility of effective competition and be
accompanied by requirements that allow the information provided by the
tenderers to be effectively verified.
(45)          
It is of utmost importance to fully exploit the
potential of public procurement to achieve the objectives of the Europe 2020
Strategy for sustainable growth. In view of the important differences between
individual sectors and markets, it would however not be appropriate to set
general mandatory requirements for environmental, social and innovation
procurement. The Union legislature has already set mandatory procurement
requirements for obtaining specific goals in the sectors of road transport
vehicles (Directive 2009/33/EC of the European Parliament and the Council of 23
April 2009 on the promotion of clean and energy-efficient road transport
vehicles[30])
and office equipment (Regulation (EC) No 106/2008 of the European Parliament
and the Council of 15 January 2008 on a Community energy-efficiency labelling
programme for office equipment[31]).
In addition, the definition of common methodologies for life cycle costing has
significantly advanced. It therefore appears appropriate to continue on that path,
leaving it to sector-specific legislation to set mandatory objectives and
targets in function of the particular policies and conditions prevailing in the
relevant sector and to promote the development and use of European approaches
to life-cycle costing as a further underpinning for the use of public
procurement in support of sustainable growth. 
(46)          
Those sector-specific measures must be
complemented by an adaptation of the public procurement Directives empowering
contracting entities to pursue the objectives of the Europe 2020 Strategy in
their purchasing strategies. It should hence be made clear that contracting entities
can determine the most economically advantageous tender and the lowest cost
using a life-cycle costing approach, provided that the methodology to be used
is established in an objective and non-discriminatory manner and accessible to
all interested parties. The notion of life-cycle costing includes all costs
over the life-cycle of a works, supplies or services, both their internal costs
(such as development, production, use, maintenance and end-of-life disposal
costs) and their external costs, provided they can be monetised and monitored.
Common methodologies should be developed at the level of the Union for the
calculation of life-cycle costs for specific categories of supplies or
services; whenever such a methodology is developed its use should be made
compulsory.
(47)          
Furthermore, in technical specifications and in
award criteria, contracting entities should be allowed to refer to a specific
production process, a specific mode of provision of services, or a specific
process for any other stage of the life-cycle of a product or service, provided
that they are linked to the subject-matter of the contract. In order to better
integrate social considerations in public procurement, procurers may also be
allowed to include, in the award criterion of the most economically
advantageous tender characteristics related to the working conditions of the
persons directly participating in the process of production or provision in
question. Those characteristics may only concern the protection of health of
the staff involved in the production process or the favouring of social
integration of disadvantaged persons or members of vulnerable groups amongst
the persons assigned to performing the contract, including accessibility for
persons with disabilities. Any award criteria which include those
characteristics should in any event remain limited to characteristics that have
immediate consequences on staff members in their working environment. They
should be applied in accordance with Directive 96/71/EC of the European
Parliament and of the Council of 16 December 1996 concerning the posting of
workers in the framework of the provision of services[32] and in a way that does not
discriminate directly or indirectly against economic operators from other
Member States or from third countries parties to the Agreement or to Free Trade
Agreements to which the Union is party.
(48)          
For service contracts and for contracts
involving the design of works, contracting entities should also be allowed to
use as an award criterion the organisation qualification and experience of the
staff assigned to performing the contract in question, as this may affect the
quality of the contract performance and, as a result, the economic value of the
tender.
(49)          
Tenders that appear abnormally low in relation
to the works, supplies or services might be based on technically, economically
or legally unsound assumptions or practices. In order to prevent possible
disadvantages during contract performance, contracting entities should be
obliged to ask for an explanation of the price charged where a tender
significantly undercuts the prices demanded by other tenderers. Where the
tenderer cannot provide a sufficient explanation, the contracting entity should
be entitled to reject the tender. Rejection should be mandatory in cases where
the contracting entity has established that the abnormally low price results
from non-compliance with mandatory Union legislation in the fields of social,
labour or environmental law or international labour law provisions.
(50)          
Contract performance conditions are compatible
with this Directive provided that they are not directly or indirectly
discriminatory, are linked to the subject-matter of the contract and are
indicated in the notice used to make the call for competition, or in the procurement
documents. They may, in particular, be intended to favour on-site vocational
training, the employment of people experiencing particular difficulty in achieving
integration, the fight against unemployment, protection of the environment or
animal welfare. For example, mention may be made of the requirements applicable
during the performance of the contract to recruit long-term job-seekers or to
implement training measures for the unemployed or for young persons, to comply
in substance with fundamental International Labour Organisation (ILO)
Conventions, even where such Conventions have not been implemented in national
law, and to recruit more disadvantaged persons than are required under national
legislation.
(51)          
The laws, regulations and collective agreements,
at both national and Union level, that are in force in the areas of employment
conditions and safety at work apply during the performance of a contract, provided
that such rules, and their application, comply with Union law. In cross-border
situations where workers from one Member State provide services in another
Member State for the purpose of performing a contract, Directive 96/71/EC of
the European Parliament and of the Council of 16 December 1996 concerning the
posting of workers in the framework of the provision of services[33] lays down the minimum
conditions that must be observed by the host country in respect of such posted
workers. Where national law contains provisions to this effect, non-compliance
with those obligations may be considered to be grave misconduct on the part of
the economic operator concerned, liable to lead to the exclusion of that
economic operator from the procedure for the award of a public contract.
(52)          
Council Regulation (EEC, Euratom) No 1182/71 of
3 June 1971 determining the rules applicable to periods, dates and time limits[34] should apply to the
calculation of the time limits contained in this Directive.
(53)          
It is necessary to clarify the conditions under
which modifications of a contract during its performance require a new procurement
procedure, taking into account the relevant case-law of the Court of Justice of
the European Union. A new procurement procedure is required in case of material
changes to the initial contract, in particular to the scope and content of the
mutual rights and obligations of the parties, including the distribution of
intellectual property rights. Such changes demonstrate the parties' intention
to renegotiate essential terms or conditions of that contract. This is the case
in particular if the amended conditions would have had an influence on the
outcome of the procedure, had they been part of the initial procedure.
(54)          
Contracting entities can be faced with external
circumstances that they could not foresee when they awarded the contract. In
this case, a certain degree of flexibility is needed to adapt the contract to those
circumstances without a new procurement procedure. The notion of unforeseeable
circumstances refers to circumstances that could not have been predicted
despite reasonably diligent preparation of the initial award by the contracting
entity, taking into account its available means, the nature and characteristics
of the specific project, good practice in the field in question and the need to
ensure an appropriate relationship between the resources spent in preparing the
award and its foreseeable value. However, this cannot apply in cases where a modification
results in an alteration of the nature of the overall procurement, for instance
by replacing the works, supplies or services to be procured by something
different or by fundamentally changing the type of procurement since, in such a
situation, a hypothetical influence on the outcome may be assumed.
(55)          
In line with the principles of equal treatment
and transparency, the successful tenderer should not be replaced by another
economic operator without reopening the contract to competition. However, the
successful tenderer performing the contract may undergo certain structural
changes during the performance of the contract, such as purely internal
reorganisations, mergers and acquisitions or insolvency. Such structural
changes should not automatically require new procurement procedures for all
contracts performed by that undertaking. 
(56)          
Contracting entities should, in the individual
contracts themselves, have the possibility to provide for modifications by way
of review clauses, but such clauses should not give them unlimited discretion. This
directive should therefore set out to what extent modifications may be provided
for in the initial contract. 
(57)          
The evaluation has shown that Member States do
not consistently and systematically monitor the implementation and the
functioning of public procurement rules. This has a negative impact on the
correct implementation of provisions stemming from those directives, which is a
major source of cost and uncertainty. Several Member States have appointed a
national central body dealing with public procurement issues, but the functions
that such bodies are empowered with vary considerably across Member States.
Clearer, more consistent and authoritative monitoring and control mechanisms
would increase knowledge of the functioning of procurement rules, legal
certainty for businesses and contracting entities, and contribute to establish
a level playing field. Such mechanisms could serve as tools for detection and
early resolution of problems, especially with regard to projects cofunded by
the Union, and for the identification of structural deficiencies. There is in particular a strong need to coordinate those mechanisms
to ensure consistent application, controls and
monitoring of public procurement policy, as well as systematic assessment of
the outcomes of procurement policy across the Union.
(58)          
Member States should designate a single national
authority in charge of monitoring, implementation and control of public
procurement. Such a central body should have first hand and timely information
particularly in relation to different problems affecting the implementation of
public procurement law. It should be able to provide immediate feedback on the
functioning of the policy, the potential weaknesses in national legislation and
practice and contribute to the quick identification of solutions. In view of
efficiently fighting corrupion and fraud, this central body and the general
public should also have the possibility to inspect the texts of concluded
contracts. High-value contracts should hence be transmitted to the oversight
body with a possibility of interested persons to have access to these
documents, to the extent that legitimate public or private interests are not
jeopardized.
(59)          
Not all contracting entities may have the
internal expertise to deal with economically or technically complex contracts.
Against this background, appropriate professional support would be an effective
complement to monitoring and control activities. On the one hand, this
objective can be achieved by knowledge sharing tools (knowledge centres)
offering technical assistance to contracting entities; on the other hand,
business, not least SMEs, should benefit from administrative assistance, in
particular when participating in procurement procedures on a cross-border
basis. 
(60)          
Monitoring, oversight and support structures or mechanisms
exist already at national level and can of course be used to ensure monitoring,
implementation and control of public procurement and to provide the required
support to contracting entities and economic operators.
(61)          
Effective cooperation is necessary to ensure
consistent advice and practice within each Member State and across the Union. Bodies
designated for monitoring, implementation, control and technical assistance
should be able to share information and cooperate; in the same context, the
national authority designated by each Member State should act as the preferred
contact point with the Commission services for the purpose of collecting data, exchanging
information and monitoring the implementation of Union public procurement law.
(62)          
In order to adapt to rapid technical, economic
and regulatory developments, the power to adopt acts in
accordance with Article 290 of the Treaty on the Functioning of the
European Union should be delegated to the Commission
in respect of a number of non-essential elements of this Directive. In fact,
due to the need to comply with international agreements, the Commission should
be empowered to modify the technical procedures for the calculation
methods concerning thresholds as well as to periodically revise the thresholds
themselves; references to the CPV nomenclature may undergo regulatory changes
at EU level and it is necessary to reflect those changes into the text of this
Directive; the technical details and characteristics of the devices for
electronic receipt should be kept up to date with technological developments
and administrative needs; it is also necessary to empower the Commission to
make mandatory certain technical standards for electronic communication to
ensure the interoperability of technical formats, processes and messaging in
procurement procedures conducted using electronic means of communication taking
into account technological developments and administrative needs; the Commission
should also be empowered to adapt the mandatory content of the information to
be included in notices to reflect administrative needs and regulatory changes
at both national and EU level; the list of legislative acts of the Union
establishing common methodologies for the calculation of life-cycle costs,
referred to in article 77(3); the list of International Social and
Environmental Conventions referred to in Articles 70 And 79 and the list of
Union legislation referred to in article 27(3) whose implementation creates a
presumption of free access to a given market as well as Annex II, referred to
in Article 4(4), setting out a list of legislative acts to be taken into
account when assessing the existence of special or exclusive rights should be
quickly adapted to incorporate the measures adopted on a sectoral basis. In
order to satisfy this need, the Commission should be empowered to keep the
lists up-to date. 
(63)          
It is of particular importance that the Commission
carry out appropriate consultations during its preparatory work, including at
expert level. When preparing and drawing up delegated
acts, the Commission should ensure simultaneous, timely and appropriate
transmission of relevant documents to the European Parliament and the Council.
(64)          
In order to ensure uniform conditions for the
implementation of this Directive, as for the procedure for sending and
publishing data referred to in Annex IX and the procedures for drawing up and transmitting
notices, the standard forms for the publication of notices as well as of
process and messaging standards and the common template to be used by the
oversight bodies for drawing up the implementation and statistical report,
implementing powers should be conferred on the Commission. Those powers should
be exercised in
accordance with Regulation (EU) No. 182/2011 of the European Parliament and of
the Council of 16 February 2011 laying down the rules and general principles
concerning mechanisms for control by the Member States of the Commission's
exercise of implementing powers[35].
The advisory procedure should be used for the adoption of those implementing
acts, which do not have any impact either from the financial point of views or
on the nature and scope of obligations stemming from this Directive. On the
contrary, those acts are characterised by a mere administrative purpose and
serve to facilitate the application of the rules set by this Directive. Furthermore,
decisions to establish whether a given activity is directly exposed to
competition on markets to which access is free should be adopted under
conditions ensuring uniform conditions for implementing that provision.
Implementing powers should therefore be conferred on the Commission also in
respect of the detailed provisions for the implementation of the procedure, provided for under Article 28, for establishing whether
Article 27 is applicable as well as the Decisions
themselves. Those powers should be exercised in accordance with Regulation (EU) 182/2011 of
the European Parliament and of the Council of 16 February 2011 laying down the
rules and general principles concerning mechanisms for control by the Member
States of the Commission's exercise of implementing powers[36]. The advisory procedure should
be used for the adoption of those implementing acts. 
(65)          
Since the objective of this Directive, namely
the coordination of laws, regulations and administrative provisions of the
Member States applying to certain public procurement procedures, cannot be
sufficiently achieved by the Member States and can therefore be better achieved
at Union level, the Union may adopt measures, in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty on European Union.
In accordance with the principle of proportionality, as set out in that
Article, this Directive does not go beyond what is necessary in order to
achieve that objective.
(66)          
Directive 2004/17/EC should therefore be
repealed.
(67)          
In accordance with the Joint Political
Declaration of Member States and the Commission on explanatory documents of
[date], Member States have undertaken to accompany, in justified cases, the
notification of their transposition measures with one or more documents
explaining the relationship between the components of a directive and the
corresponding parts of national transposition instruments. With regard to this
Directive, the legislator considers the transmission of such documents to be
justified,
HAVE ADOPTED THIS DIRECTIVE:
TITLE I: SCOPE, DEFINITIONS AND
GENERAL PRINCIPLES
CHAPTER I Subject-matter and definitions
Article 1: Subject-matter and scope
Article 2: Definitions
Article 3: Mixed procurement and procurement covering several activities
CHAPTER II: Personal scope: definition
of the activities and entities covered
SECTION 1: ENTITIES
Article 4: Contracting entities
SECTION 2: ACTIVITIES
Article 5: Gas and heat
Article 6: Electricity
Article 7: Water
Article 8: Transport services
Article 9: Ports and airports
Article 10: Postal services
Article 11: Extraction of oil and gas and
exploration for, or extraction of, coal or other solid fuels
CHAPTER III: Material scope
SECTION 1: THRESHOLDS
Article 12: Thresholds
Article 13: Methods for calculating the
estimated value of procurement
Article 14: Revision of the thresholds
SECTION 2: EXCLUDED CONTRACTS AND DESIGN
CONTESTS
Subsection 1: Exclusions applicable to all
contracting entities and special exclusions for the water and energy sectors
Article 15: Contracts awarded for purposes
of resale or lease to third parties
Article 16: Contracts
and design contests awarded or organised for purposes other than the pursuit of
a covered activity or for the pursuit of such an activity in a third country
Article 17: Defence
and security
Article 18: Contracts awarded and design
contest organised pursuant to international rules
Article 19: Specific exclusions for service
contracts
Article 20: Contracts
awarded by certain contracting entities for the purchase of water and for the
supply of energy or of fuels for the production of energy
Subsection 2: Special relations (Controlled
entities, cooperation, affiliated undertakings and joint ventures)
Article 21: Relations between public authorities
Article 22: Contracts awarded to an
affiliated undertaking
Article 23: Contracts awarded to a joint
venture or to a contracting entity forming part of a joint venture
Article 24: Notification of information
Subsection 3 : Specific situations
Article 25: Research and development
services
Article 26: Contracts subject to special
arrangements
Subsection 4: Activities
directly exposed to competition and procedural provisions relating thereto
Article 27: Activities directly exposed to
competition
Article 28: Procedure for establishing
whether Article 27 is applicable
CHAPTER IV: General principles
Article 29: Principles of procurement
Article 30: Economic operators
Article 31: Reserved contracts
Article 32: Confidentiality
Article 33: Rules applicable to
communication
Article 34: General obligation to use
electronic means of communication
Article 35: Nomenclatures
Article 36: Conflicts of interests
Article 37: Illicit conduct
TITLE II: RULES APPLICABLE TO
CONTRACTS
CHAPTER I: Procedures
Article 38: Conditions relating to the
Government Procurement Agreement and other international agreements
Article 39: Choice of procedures
Article 40: Open procedure
Article 41: Restricted procedure
Article 42: Negotiated procedure with prior
call for competition
Article 43: Innovation Partnership
Article 44: Use of the negotiated procedure
without prior call for competition
CHAPTER II: Techniques and instruments
for electronic and aggregated procurement
Article 45 Framework agreements
Article 46: Dynamic purchasing systems
Article 47: Electronic auctions
Article 48: Electronic catalogues
Article 49: Centralised purchasing
activities and central purchasing bodies
Article 50: Ancillary purchasing activities
Article 51: Occasional joint procurement
Article 52: Joint procurement between
contracting entities from different Member States
CHAPTER III: Conduct of the procedure
SECTION 1 PREPARATION 
Article 53: Preliminary market
consultations
Article 54: Technical specifications
Article 55: Labels
Article 56: Test
reports, certification and other means of proof
Article 57: Communication of technical
specifications
Article 58: Variants
Article 59: Division of contracts into lots
Article 60: Setting time limits
SECTION 2: PUBLICATION AND TRANSPARENCY
Article 61: Periodic indicative notices
Article 62: Notices on the existence of a
qualification system
Article 63: Contract notices
Article 64: Contract award notices
Article 65: Form and manner of publication
of notices
Article 66: Publication at national level
Article 67: Electronic availability of
procurement documents
Article 68: Invitations to submit a tender
or to negotiate; invitations to confirm interest
Article 69: Informing applicants for
qualification, candidates and tenderers
SECTION 3: CHOICE OF PARTICIPANTS AND AWARD
OF CONTRACTS
Article 70: General principles
Subsection 1: Qualification and qualitative
selection
Article 71: Qualification systems
Article 72: Criteria for qualitative
selection
Article 73: Reliance on the capacities of
other entities
Article 74: Use of exclusion and selection
criteria provided for under [Directive 2004/18]
Article 75: Quality assurance standards and
environmental management standards
Subsection 2: Award of the contract
Article 76: Contract award criteria
Article 77 Life-cycle costing
Article 78: Impediments to award 
Article 79: Abnormally low tenders
Chapter IV: Contract performance
Article 80: Conditions for performance of
contracts
Article 81: Subcontracting
Article 82: Modification of contracts
during their term
Article 83: Termination of contracts
TITLE III: PARTICULAR PROCUREMENT
REGIMES
CHAPTER I: Social and other specific
services
Article 84: Award of contracts for social
and other specific services
Article 85: Publication of notices
Article 86: Principles of awarding
contracts
CHAPTER II: Rules governing service
design contests
Article 87: General provisions
Article 88: Scope
Article 89: Notices
Article 90: Rules on the organisation of
design contests, the selection of participants and the jury
Article 91: Decisions of the jury
TITLE IV: GOVERNANCE
Article 92: Enforcement
Article 93: Public oversight
Article 94: Individual reports on
procedures for the award of contracts
Article 95: National reporting
Article 96: Assistance to contracting
entities and businesses
Article 97: Administrative cooperation
TITLE V: DELEGATED POWERS,
IMPLEMENTING POWERS AND FINAL PROVISIONS
Article 98: Exercise of the delegation
Article 99: Urgency procedure
Article 100: Committee procedure
Article 101: Transposition
Article 102: Repeal
Article 103: Review
Article 104: Entry into force
Article 105: Addressees
ANNEXES
ANNEX I: List of activities as set out in point
8(a) of Article 2
ANNEX II: List of Union legislation
referred to in Article 4(2)
ANNEX III: List of Union legislation
referred to in Article 27(3)
ANNEX IV: Requirements
relating to devices for the electronic receipt of tenders, requests to
participate, applications for qualification as well as plans and projects in
contests
Annex V: List of International Agreements
referred to in Articles 38
ANNEX VI Part A: Information to be included
in the periodic indicative notice (as referred to in Article 61)
ANNEX VI Part B: Information
to be included in notices of publication of a periodic indicative notice on a
buyer profile not used as a means of calling for competition (as referred to in Article 61(1))
ANNEX VII: Information to be included in
the specifications in electronic auctions (Article 47(4))
ANNEX VIII: Definition
of certain technical specifications
ANNEX IX: Features concerning publication
ANNEX X: Information to be included in the
notice on the existence of a qualification system (as referred to in point (b)
of Article 39(2) and in Article 62)
ANNEX XI: Information to be included in
contract notices (as referred to in Article 63)
ANNEX XII: Information
to be included in the contract award notice (as referred to in Article 64)
ANNEX XIII: Contents of the invitations to submit a tender, to negotiate
or to confirm interest provided for under Article 68
ANNEX XIV: List of International Social and
Environmental Conventions referred to in Articles 70 And 79
ANNEX XV: List of EU legislation referred
to in Article 77(3)
ANNEX XVI: Information to be included in
notices of modifications of a contract during its term (as referred to in
Article 82(6))
ANNEX XVII: Services referred to in article
84
ANNEX XVIII: Information to be included in
notices concerning contracts for social and other specific services (as
referred to in Article 85)
ANNEX XIX: Information to be included in
the design contest notice (as referred to in Article
89(1))
ANNEX XX: Information to be included in the
results of design contest notices (as referred to in Article 89(1))
ANNEX XXI: Correlation table
TITLE I
SCOPE, DEFINITIONS AND GENERAL PRINCIPLES
CHAPTER I
Subject-matter and definitions
Article 1
Subject-matter and scope
1.                      
This Directive establishes rules on the
procedures for procurement by contracting entities as
defined in Article 4 with respect to contracts as well as design contests, whose
value is estimated to be not less than the thresholds defined in Article 12.
2.                      
Procurement within the meaning of this Directive
is the purchase or other forms of acquisition of works, supplies or services by
one or more contracting entities from economic operators chosen by those
contracting entities, provided that the works, supplies or services are
intended for the pursuit of one of the activities referred
to in Articles 5 to 11.
An entirety of works, supplies and/or services,
even if purchased through different contracts, constitutes a single procurement
within the meaning of this Directive, if the contracts are part of one single
project. 
Article 2
Definitions
For the purposes of this Directive, the following
definitions shall apply:
(1)                   
"contracting authorities" means State,
regional or local authorities, bodies governed by public law, associations
formed by one or more such authorities or one or more such bodies governed by
public law;
(2)                   
"regional authorities" include all
authorities of the administrative units falling under NUTS 1 and 2, as referred
to by Regulation (EC) No. 1059/2003 of the European Parliament and of the
Council[37];
(3)                   
"local authorities" include all
authorities of the administrative units falling under NUTS 3 and smaller
administrative units, as referred to by Regulation (EC) No. 1059/2003;
(4)                   
a "body governed by public law" means
any body that has all of the following characteristics:
(a)         
It is established for or has the specific
purpose of meeting needs in the general interest, not having an industrial or
commercial character; for that purpose, a body which operates in normal market
conditions, aims to make a profit, and bears the losses resulting from the
exercise of its activity does not have the purpose of meeting needs in the
general interest, not having an industrial or commercial character;
(b)         
it has legal personality;
(c)         
it is financed, for the most part, by the State,
regional or local authorities, or other bodies governed by public law; or
subject to management supervision by those bodies; or has an administrative,
managerial or supervisory board, more than half of whose members are appointed
by the State, regional or local authorities, or by other bodies governed by
public law;
(5)                   
a "public undertaking" means any
undertaking over which the contracting authorities may exercise directly or
indirectly a dominant influence by virtue of their ownership of it, their
financial participation therein, or the rules which govern it;
(6)                   
"special or exclusive rights" mean
rights granted by a competent authority of a Member State by way of any
legislative, regulatory or administrative provision the effect of which is to
limit the exercise of activities defined in Articles 5 to 11 to one or more
entities, and which substantially affects the ability of other entities to
carry out such activity;
(7)                   
"supply, works and service contracts" means
contracts for pecuniary interest concluded in writing between one or more of
the contracting entities referred to in Article 4(3), and one or more economic
operators and having as their object the execution of works, the supply of
products or the provision of services within the meaning of this Directive;
(8)                   
"works contracts" means contracts
having as their object one of the following:
(a)         
the execution, or both the design and execution,
of works related to one of the activities within the meaning of Annex I; 
(b)         
the execution, or both the design and execution,
of a work; 
(c)         
the realisation by whatever means of a work
corresponding to the requirements specified by the contracting entity
exercising a decisive influence on the type or design of the work;
(9)                   
"a work" means the outcome of building
or civil engineering works taken as a whole which is sufficient in itself to
fulfil an economic or technical function;
(10)               
"supply contracts" means contracts
having as their object the purchase, lease, rental or hire-purchase, with or
without an option to buy, of products. A supply contract may include, as an
incidental matter, siting and installation operations;
(11)               
"service contracts" means contracts
having as their object the provision of services other than those referred to in
paragraph 8;
(12)               
"economic operator" means any natural
or legal person, or a contracting entity, or a group of such persons and/or
entities which offers the execution of works and/or a work, the supply of
products or the provision of services on the market;
(13)               
"tenderer" means an economic operator that
has submitted a tender; 
(14)               
"candidate" means an economic operator
that has sought an invitation or has been invited to take part in a restricted
or negotiated procedure or in an innovation partnership;
(15)               
'procurement documents' means all documents
produced or referred to by the contracting entity to describe or determine
elements of the procurement or the procedure, including the contract notice,
the prior information notice or the notices on the existence of a qualification
system where they are used a means of calling for competition, the technical
specifications, proposed conditions of contract, formats for the presentation
of documents by candidates and tenderers, information on generally applicable
obligations and any additional documents;
(16)               
"centralised purchasing activities" means
activities conducted on a permanent basis, in one of the following forms:
(a)         
the acquisition of supplies and/or services
intended for contracting entities,
(b)         
the award of contracts or the conclusion of
framework agreements for works, supplies or services intended for contracting
entities;
(17)               
"ancillary purchasing activities" means
activities consisting in the provision of support to purchasing activities, in
particular in the following forms:
(a)         
technical infrastructure enabling contracting
entities to award public contracts or to conclude framework agreements for
works, supplies or services; 
(b)         
advice on the conduct or design of procurement
procedures;
(c)         
preparation and management of procurement
procedures on behalf and for the account of the contracting entity concerned;
(18)               
"central purchasing body" means a
contracting authority within the meaning of point 1 of Article 2 or a
contracting authority within the meaning of point 1 of Article 2 of Directive [2004/18/EC]
providing centralised purchasing activities and, possibly, ancillary purchasing
activities;
(19)               
"procurement service provider" means a
public or private body, which offers ancillary purchasing activities on the
market;
(20)               
"written" or "in writing"
means any expression consisting of words or figures which can be read,
reproduced and subsequently communicated, including information transmitted and
stored by electronic means;
(21)               
"electronic means" means electronic
equipment for the processing (including digital compression) and storage of
data which is transmitted, conveyed and received by wire, by radio, by optical
means or by other electromagnetic means;
(22)               
‘life cycle’ means all consecutive and/or
interlinked stages, including production, transport, use and maintenance,
throughout the existence of a product or a works or the provision of a service,
from raw material acquisition or generation of resources to disposal, clearance
and finalisation;
(23)               
"Design contests" means those
procedures which enable the contracting entity to acquire, mainly in the fields
of town and country planning, architecture, engineering or data processing, a
plan or design selected by a jury after being put out to competition with or
without the award of prizes. 
Article 3
Mixed procurement and procurement covering several
activities
1.                      
Contracts which have as their subject two or
more types of procurement (works, services or supplies) shall be awarded in
accordance with the provisions applicable to the type of procurement that
characterises the main subject of the contract in question.
In the case of mixed contracts consisting of
services within the meaning of Chapter I of Title III and other services or of
services and supplies, the main object shall be determined by a comparison of
the values of the respective services or supplies.
In the case of mixed contracts containing
elements of supply, works and service contracts and of concessions, the part of
the contract which constitutes a contract covered by this Directive shall be
awarded in accordance with the provisions of this Directive. 
Where the different parts of the contract in
question are objectively not separable, the application of this Directive shall
be determined on the basis of the main subject of that contract.
2.                      
A contract which is intended to cover several
activities shall be subject to the rules applicable to the activity for which
it is principally intended.
However, the choice between awarding a single
contract and awarding a number of separate contracts shall not be made with the
objective of excluding it from the scope of this Directive or, where
applicable, [2004/18/EC].
3.                      
If one of the activities for which the contract
is intended is subject to this Directive and the other to the abovementioned
[2004/18] and if it is objectively impossible to determine for which activity
the contract is principally intended, the contract shall be awarded in
accordance with the abovementioned Directive [2004/18].
4.                      
If one of the activities for which the contract
is intended is subject to this Directive and the other is not subject to either
this Directive or to Directive [2004/18] or Directive 2009/81/EC of the
European Parliament and of the Council[38], and
if it is objectively impossible to determine for which activity the contract is
principally intended, the contract shall be awarded in accordance with this
Directive.
CHAPTER II
Personal scope: definition of the activities and entities covered
Section 1
Entities
Article 4
Contracting entities 
1.                      
A dominant influence within the meaning of point 5 of Article 2 on the part of
the contracting authorities shall be presumed in any of the following cases in
which those authorities, directly or indirectly:
(a)         
hold the majority of the undertaking's
subscribed capital;
(b)         
control the majority of the votes attaching to
shares issued by the undertaking, 
(c)         
can appoint more than half of the undertaking's
administrative, management or supervisory body. 
2.                      
Rights which have been granted by means of a
procedure in which adequate publicity has been ensured and where the granting
of those rights was based on objective criteria shall not constitute
"special or exclusive rights" within the meaning of point 6 of Article
2.
This includes:
(a)         
procurement procedures with a prior call for
competition in conformity with Directive [2004/18/EC], [Directive …
(concessions)] or this Directive;
(b)         
procedures pursuant to other legislative acts of
the Union listed in Annex II, ensuring adequate prior transparency for granting
authorisations on the basis of objective criteria.
3.                      
This Directive shall apply to contracting
entities:
(a)         
which are contracting authorities or public
undertakings and which pursue one of the activities referred to in Articles 5
to 11;
(b)         
which, when they are not contracting authorities
or public undertakings, have as one of their activities any of the activities
referred to in Articles 5 to 11, or any combination thereof and operate on the
basis of special or exclusive rights granted by a competent authority of a
Member State.
4.                      
The Commission shall be empowered to adopt
delegated acts in accordance with Article 98 concerning the amendmentmodification of the list of Union legislation set out
in Annex II, when on the basis of the adoption of new legislation, repeal or
modification of such legislation, such amendments prove necessary.
Section 2
Activities
Article 5
Gas and heat
1.                      
As far as gas and heat are concerned, this
Directive shall apply to the following activities:
(a)         
the provision or operation of fixed networks
intended to provide a service to the public in connection with the production,
transport or distribution of gas or heat; 
(b)         
the supply of gas or heat to such networks.
2.                      
The supply of gas or heat to networks which
provide a service to the public by a contracting entity other than a
contracting authority shall not be considered a relevant activity within the
meaning of paragraph 1 where all of the following conditions are met:
(a)         
the production of gas or heat by the entity
concerned is the unavoidable consequence of carrying out an activity other than
those referred to in paragraph 1 or in Articles 6 to 8;
(b)         
the supply to the public network is aimed only
at the economic exploitation of such production and amounts to not more than 20
% of the entity's turnover on the basis of the average for the preceding three
years, including the current year.
Article 6
Electricity
1.                      
As far as electricity is concerned, this
Directive shall apply to the following activities:
(a)         
the provision or operation of fixed networks
intended to provide a service to the public in connection with the production,
transport or distribution of electricity; 
(b)         
the supply of electricity to such networks.
For the purposes of this Directive, supply of
electricity includes generation (production) and wholesale of electricity.
2.                      
The supply of electricity to networks which
provide a service to the public by a contracting entity other than a
contracting authority shall not be considered a relevant activity within the
meaning of paragraph 1 where all of the following conditions are met:
(a)         
the production of electricity by the entity
concerned takes place because its consumption is necessary for carrying out an
activity other than those referred to in paragraph 1 or in Articles 5 and 7 to 8;
(b)         
supply to the public network depends only on the
entity's own consumption and has not exceeded 30% of the entity's total production
of energy, on the basis of the average for the preceding three years, including
the current year.
Article 7
Water
1.                      
This Directive shall apply to the following
activities:
(a)         
the provision or operation of fixed networks
intended to provide a service to the public in connection with the production,
transport or distribution of drinking water; 
(b)         
the supply of drinking water to such networks.
2.                      
This Directive shall also apply to contracts or
design contests awarded or organised by entities which pursue an activity
referred to in paragraph 1 and which are connected with one of the following:
(a)         
hydraulic engineering projects, irrigation or
land drainage, provided that the volume of water to be used for the supply of
drinking water represents more than 20 % of the total volume of water made
available by such projects or irrigation or drainage installations, 
(b)         
the disposal or treatment of sewage.
3.                      
The supply of drinking water to networks which
provide a service to the public by a contracting entity other than a contracting
authority shall not be considered a relevant activity within the meaning of
paragraph 1 where all of the following conditions are met:
(a)         
the production of drinking water by the entity
concerned takes place because its consumption is necessary for carrying out an
activity other than those referred to in Articles 5 to 8; 
(b)         
the supply to the public network depends only on
the entity's own consumption and has not exceeded 30 % of the entity's total
production of drinking water, on the basis of the average for the preceding
three years, including the current year.
Article 8
Transport services
This Directive shall apply to activities
relating to the provision or operation of networks providing a service to the
public in the field of transport by railway, automated systems, tramway,
trolley bus, bus or cable.
As regards transport services, a network
shall be considered to exist where the service is provided under operating
conditions laid down by a competent authority of a Member State, such as
conditions on the routes to be served, the capacity to be made available or the
frequency of the service.
Article 9
Ports and airports
This Directive shall apply to activities
relating to the exploitation of a geographical area for the purpose of the
provision of airports and maritime or inland ports or other terminal facilities
to carriers by air, sea or inland waterway.
Article 10
Postal services
1.                      
This Directive shall apply to activities
relating to the provision of: 
(a)         
postal services;
(b)         
other services than postal services, on condition
that such services are provided by an entity which also provides postal
services within the meaning of point (b) of paragraph 2 and provided that the
conditions set out in Article 27(1) are not satisfied in respect of the
services falling within point (b) of paragraph 2.
2.                      
For the purpose of this Directive and without
prejudice to Directive 97/67/EC:
(a)         
"postal item": means an item addressed
in the final form in which it is to be carried, irrespective of weight. In
addition to items of correspondence, such items also include for instance
books, catalogues, newspapers, periodicals and postal packages containing
merchandise with or without commercial value, irrespective of weight;
(b)         
"postal services": means services
consisting of the clearance, sorting, routing and delivery of postal items. This
shall include both services falling within as well as services falling outside
the scope of the universal service set up in conformity with Directive
97/67/EC;
(c)         
"other services than postal services":
means services provided in the following areas:
(i)      mail service management services
(services both preceding and subsequent to despatch, including "mailroom
management services");
(ii)      added-value services linked to and
provided entirely by electronic means (including the secure transmission of
coded documents by electronic means, address management services and
transmission of registered electronic mail);
(iii)     services concerning postal items not
included in point (a), such as direct mail bearing no address;
(iv)     financial services, as defined in the
CPV under the reference numbers from 66100000-1 to 66720000-3 and in Article 19(c)
and including in particular postal money orders and postal giro transfers;
(v)     philatelic services;
(vi)     logistics services (services combining
physical delivery and/or warehousing with other non-postal functions).
Article 11
Extraction of oil and gas and exploration for, or extraction of, coal or other
solid fuels
This Directive shall apply to activities
relating to the exploitation of a geographical area for the purpose of:
(a)                   
extracting oil or gas; 
(b)                   
exploring for or extracting coal or other solid
fuels.
Chapter III: Material scope
SECTION 1
THRESHOLDS
Article 12
Thresholds 
Save where they are ruled out by the
exclusions in Articles 15 to 20 or pursuant to Article 27, concerning the
pursuit of the activity in question, this Directive shall apply to procurements
with a value exclusive of value-added tax (VAT) estimated to be no less than
the following thresholds:
(a)                   
EUR 400 000 for supply and service contracts
as well as for design contests;
(b)                   
EUR 5 000 000 for works contracts;

(c)                   
EUR 1 000 000 for contracts for
social and other specific services listed in Annex XVII. 
Article 13
Methods for calculating the estimated value of procurement
1.                      
The calculation of the estimated value of a
procurement shall be based on the total amount payable, net of VAT, as
estimated by the contracting entity, including any form of option and any
renewals of the contract.
Where the contracting entity provides for
prizes or payments to candidates or tenderers it shall take them into account
when calculating the estimated value of the contract.
2.                      
The choice of the method used to calculate the
estimated value of a procurement shall not be made with the intention of
excluding it from the scope of this Directive. A single procurement shall therefore
not be subdivided with the effect of preventing it from falling within the
scope of this Directive, unless justified by objective reasons.
3.                      
This estimate shall be valid at the moment at
which the call for competition is sent or, in cases where such notice is not
foreseen, at the moment at which the contracting entity commences the contract
procurement procedure, in particular by defining the essential characteristics
of the intended procurement.
4.                      
With regard to framework agreements and dynamic
purchasing systems, the value to be taken into consideration shall be the
maximum estimated value net of VAT of all the contracts envisaged for the total
term of the agreement or system.
5.                      
In the case of innovation partnerships, the
value to be taken into consideration shall be the maximum estimated value net
of VAT of the research and development activities to take place during the all
stages of the envisaged partnership as well as of the supplies, services or works
to be developed and procured at the end of the envisaged partnership.
6.                      
For the purposes of Article 12, contracting
entities shall include in the estimated value of a works contract both the cost
of the works and the total estimated value of any supplies or services that are
made available to the contractor by the contracting entities provided that they
are necessary for the execution of the works.
7.                      
Where a proposed work or purchase of services
may result in contracts being awarded at the same time in the form of separate
lots, account shall be taken of the total estimated value of all such lots.
Where the aggregate value of the lots is equal
to or exceeds the threshold laid down in Article 12, this Directive shall apply
to the awarding of each lot.
8.                      
Where a proposal for the acquisition of similar
supplies may result in contracts being awarded at the same time in the form of
separate lots, account shall be taken of the total estimated value of all such
lots when applying Article 12.
Where the aggregate value of the lots is equal
to or exceeds the threshold laid down in Article 12, this Directive shall apply
to the awarding of each lot.
9.                      
Contracting entities may award contracts for
individual lots without applying the procedures provided for under this Directive,
provided that the estimated value net of VAT of the lot concerned is less than
EUR 80 000 for supplies or services or EUR 1 million for works.
However, the aggregate value of the lots thus awarded without applying this
Directive shall not exceed 20 % of the aggregate value of all the lots into
which the proposed work, the proposed acquisition of similar supplies or the
proposed purchase of services has been divided.
10.                  
In the case of supply or service contracts which
are regular in nature or which are intended to be renewed within a given
period, the calculation of the estimated contract value shall be based on the
following:
(a)         
either the total actual value of the successive
contracts of the same type awarded during the preceding 12 months or financial
year adjusted, if possible, to take account of the changes in quantity or value
which would occur in the course of the 12 months following the initial
contract;
(b)         
or the total estimated value of the successive
contracts awarded during the 12 months following the first delivery, or during
the financial year where that is longer than 12 months.
11.                  
With regard to supply contracts relating to the
leasing, hire, rental or hire purchase of products, the value to be taken as a
basis for calculating the estimated contract value shall be as follows:
(a)         
in the case of fixed-term contracts, if that
term is less than or equal to 12 months, the total estimated value for the term
of the contract or, where the term of the contract is greater than 12 months,
the total value including the estimated residual value;
(b)         
in the case of contracts without a fixed term or
the term of which cannot be defined, the monthly value multiplied by 48.
12.                  
With regard to service contracts, the basis for
calculating the estimated contract value shall, where appropriate, be the
following:
(a)         
insurance services: the premium payable, and
other forms of remuneration;
(b)         
banking and other financial services: the fees,
commissions, interest and other forms of remuneration;
(c)         
design contracts: fees, commission payable and
other forms of remuneration.
13.                  
With regard to service contracts which do not
indicate a total price, the basis for calculating the estimated contract value
shall be the following:
(a)         
in the case of fixed-term contracts, where that
term is less than or equal to 48 months: the total value for their full term;
(b)         
in the case of contracts without a fixed term or
with a term greater than 48 months: the monthly value multiplied by 48.
Article 14
Revision of the thresholds
1.                      
Every two years from 30 June 2014, the
Commission shall verify that the thresholds set out in points (a) and (b) of Article 12 correspond to the thresholds established in the Government
Procurement Agreement, and shall, where necessary,
revise them.
In accordance with the calculation method set
out in the Government Procurement Agreement, the Commission shall calculate the value of those thresholds on the basis of the average daily
value of the euro in terms of the special drawing
rights (SDRs), over a period of 24 months terminating
on the last day of August preceding the revision with effect from 1 January.
The value of the thresholds thus revised shall, where necessary, be rounded
down to the nearest thousand euros so as to ensure that the thresholds in force
provided for by the Agreement, expressed in SDR, are observed.
2.                      
Every two years from 1 January 2014, the
Commission shall determine the values, in the national
currencies of Member States not participating in Monetary Union, of the thresholds referred to in points (a) and (b) of Article 12,
revised pursuant to paragraph 1 of this Article.
At the same time, the Commission shall
determine the value, in the national currencies of the Member States which are
not participating in monetary union, of the threshold referred to in point (c)
of Article 12.
In accordance with the calculation method set
out in the Government Procurement Agreement, the determination
of such values shall be based on the average daily values of those currencies, corresponding to the applicable threshold
expressed in euros over the 24 months terminating on the last day of August
preceding the revision with effect from 1 January. 
3.                      
The revised thresholds referred to in paragraph 1 and their values in national currencies shall be
published by the Commission in the Official Journal of the European Union
at the beginning of the month of November following their revision.
4.                      
The Commission shall be empowered to adopt
delegated acts in accordance with Article 98 to adapt the methodology set out
in the second subparagraph of paragraph 1 to any change in the methodology
provided in the Government Procurement Agreement for the revision of the
thresholds referred to in points (a) and (b) of Article 12 and for the determination
of the thresholds in the national currencies of the Member States not
participating in monetary union, as referred to in paragraph 2 of this Article.
It shall also be empowered to adopt delegated
acts in accordance with Article 98 to revise the thresholds referred to in points
(a) and (b) of Article 12 when necessary.
5.                      
Where it is necessary to revise the thresholds
referred to in points (a) and (b) of Article 12 and time constraints prevent
the use of the procedure set in article 98 and therefore imperative grounds of
urgency so require, the procedure provided for in Article 99 shall apply to
delegated acts adopted pursuant to the second subparagraph of paragraph 4 of this
Article.
Section 2
Excluded Contracts and design contests
Subsection
1
Exclusions applicable to all contracting entities and special exclusions for the water and energy sectors
Article 15
Contracts awarded for purposes of resale or lease to third parties
1.                      
This Directive shall not apply to contracts
awarded for purposes of resale or lease to third parties, provided that the
contracting entity enjoys no special or exclusive right to sell or lease the
subject of such contracts, and other entities are free to sell or lease it
under the same conditions as the contracting entity.
2.                      
The contracting entities shall notify the
Commission or the national oversight body at their request of all the categories of products or activities
which they regard as excluded under paragraph 1. The Commission may
periodically publish in the Official Journal of the European Union, for
information purposes, lists of the categories of products and activities which
it considers to be covered by this exclusion. In so doing, the Commission shall
respect any sensitive commercial aspects that the contracting entities may
point out when forwarding information.
Article 16
Contracts and design contests awarded or organised for purposes other than the
pursuit of a covered activity or for the pursuit of such an activity in a third
country
1.                      
This Directive shall not apply to contracts
which the contracting entities award for purposes other than the pursuit of
their activities as described in Articles 5 to 11 or for the pursuit of such
activities in a third country, in conditions not involving the physical use of
a network or geographical area within the Union nor shall it apply to design
contests organised for such purposes.
2.                      
The contracting entities shall notify the
Commission or the national oversight body at their request of any activities which they regard as excluded
under paragraph 1. The Commission may periodically publish in the Official
Journal of the European Union for information purposes, lists of the
categories of activities which it considers to be covered by this exclusion. In
so doing, the Commission shall respect any sensitive commercial aspects that
the contracting entities may point out when forwarding this information.
Article 17
Defence and security
1.                      
In respect of contracts awarded and design
contests organised in the fields of defence and security, this Directive shall
not apply to:
(a)         
contracts to which Directive 2009/81/EC applies;
(b)         
contracts to which Directive 2009/81/EC does not
apply pursuant to Articles 8, 12 and 13 thereof.
2.                      
This Directive shall not apply to contracts and
design contests other than those mentioned in the first paragraph to the extent
that the protection of the essential security interests of a Member State
cannot be guaranteed in an procurement procedure as provided for in Article 39(1).
Article 18
Contracts awarded and design contests organised pursuant to international rules
This Directive shall not apply to contracts or design contests which the contracting entity is obliged to award
or organise in accordance with procurement procedures different
from those of this Directive established by any of the
following:
(a)                   
an international agreement concluded in
accordance with the Treaty between a Member State and one or more third
countries and covering works, supplies or services intended for the joint
implementation or exploitation of a project by the signatory States.;
(b)                   
an international agreement relating to the
stationing of troops and concerning the undertakings of a Member State or a
third country;
(c)                   
a particular procedure of an international
organisation;
(d)                   
procurement rules provided by an international
organisation or international financing institution for contracts or design
contests fully financed by this organisation or institution; in the case of
contracts or design contests co-financed to a considerable extent by an
international organisation or international financing institution the parties
shall agree on applicable procurement procedures, which shall be in conformity
with the Treaty.
All agreements referred to in point (a) of the
first subparagraph shall be communicated to the Commission, which may consult
the Advisory Committee for Public Contracts referred to in Article 100.
Article 19
Specific exclusions for service contracts
This Directive shall not apply to service
contracts for:
(a)                   
the acquisition or rental, by whatever financial
means, of land, existing buildings or other immovable property or concerning
rights thereon; however, financial service contracts concluded at the same time
as, before or after the contract of acquisition or rental, in whatever form,
shall be subject to this Directive;
(b)                   
arbitration and conciliation services;
(c)                   
financial services in connection with the issue,
sale, purchase or transfer of securities or other financial instruments within
the meaning of Directive 2004/39/EC of the European Parliament and of the
Council[39]
and operations conducted with the European Financial Stability Facility;
(d)                   
employment contracts;
(e)                   
public passenger transport services by rail or
metro;
(f)                     
contracts for broadcasting time that are awarded
to broadcasters.
The broadcasting referred to in point (f)
of the first paragraph shall include any transmission and distribution using
any form of electronic network.
Article 20
Contracts awarded by certain contracting entities for the purchase of water and
for the supply of energy or of fuels for the production of energy
This Directive shall not apply:
(a)                   
to contracts for the purchase of water if
awarded by contracting entities engaged in one or both of the activities
relating to drinking water referred to in Article 7(1). 
(b)                   
to contracts awarded by contracting entities
themselves being active in the energy sector by being engaged in an activity
referred to in Article 5(1), Article 6(1) or Article 11 for the supply: 
(i)      of energy; 
(ii)     of fuels for the production of
energy.
Subsection
2
Special relations (Controlled entities, cooperation, affiliated undertakings
and joint ventures)
Article 21
Relations between public authorities
1.                      
A contract awarded by a contracting authority to
another legal person shall fall outside the scope of this Directive where the
following cumulative conditions are fulfilled:
(a)         
the contracting authority exercises over the
legal person concerned a control which is similar to that which it exercises
over its own departments.
(b)         
at least 90 % of the activities of that legal
person are carried out for the controlling contracting authority or for other
legal persons controlled by that contracting authority;
(c)         
there is no private participation in the
controlled legal person.
A contracting authority shall be deemed to
exercise over a legal person a control similar to that which it exercises over
its own departments within the meaning of point (a) of the first subparagraph
where it exercises a decisive influence over both strategic objectives and
significant decisions of the controlled legal person.
2.                      
Paragraph 1 also applies where a controlled
entity which is a contracting authority awards a contract to its controlling
entity, or to another legal person controlled by the same contracting
authority, provided that there is no private participation in the legal person
being awarded the public contract.
3.                      
A contracting authority, which does not exercise
over a legal person control within the meaning of paragraph 1, may nevertheless
award a contract without applying this Directive to a legal person which it
controls jointly with other contracting authorities, where the following
conditions are fulfilled: 
(a)         
the contracting authorities exercise jointly
over the legal person a control which is similar to that which they exercise
over their own departments. 
(b)         
at least 90 % of the activities of that legal
person are carried out for the controlling contracting authorities or other
legal persons controlled by the same contracting authorities;
(c)         
there is no private participation in the
controlled legal person.
For the purposes of point (a) contracting
authorities shall be deemed to jointly control a legal person where the following
cumulative conditions are fulfilled: 
(a)         
the decision-making bodies of the controlled
legal person are composed of representatives of all participating contracting
authorities;
(b)         
those contracting authorities are able to jointly
exert decisive influence over the strategic objectives and significant
decisions of the controlled legal person;
(c)         
the controlled legal person does not pursue any
interests which are distinct from that of the public authorities affiliated to
it;
(d)         
the controlled legal person does not draw any
gains other than the reimbursement of actual costs from the public contracts
with the contracting authorities. 
4.                      
An agreement concluded between two or more
contracting authorities shall not be deemed to be a “works, supply or service
contract” within the meaning of point 7 of Article 2 of this Directive, where
the following cumulative conditions are met:
(a)         
the agreement establishes a genuine co-operation
between the participating contracting authorities aimed at carrying out jointly
their public service tasks and involving mutual rights and obligations of the
parties;
(b)         
the agreement is governed only by considerations
relating to the public interest;
(c)         
the participating contracting authorities do not
perform on the open market more than 10 % in terms of turnover of the
activities which are relevant in the context of the agreement;
(d)         
the agreement does not involve financial
transfers between the participating contracting authorities, other than those
corresponding to the reimbursement of actual costs of the works, services or
supplies;
(e)         
there is no private participation in any of the
contracting authorities involved. 
5.                      
The absence of private participation referred to
in paragraphs 1 to 4 shall be verified at the time of the award of the contract
or of the conclusion of the agreement. 
The exclusions provided for in paragraphs 1 to
4 shall cease to apply from the moment any private participation takes place,
with the effect that ongoing contracts need to be opened to competition through
regular procurement procedures.
Article 22
Contracts awarded to an affiliated undertaking
1.                      
For the purposes of this Article,
"affiliated undertaking" means any undertaking the annual accounts of
which are consolidated with those of the contracting entity in accordance with
the requirements of the Seventh Council Directive 83/349/EEC[40] .
2.                      
In the case of entities not subject to that
Directive, "affiliated undertaking" shall mean any undertaking that:
(a)         
may be, directly or indirectly, subject to a
dominant influence by the contracting entity within the meaning of point (5) of
Article 2 and Article 4(1) of this Directive;
(b)         
may exercise a dominant influence over the
contracting entity; 
(c)         
in common with the contracting entity, is
subject to the dominant influence of another undertaking by virtue of ownership,
financial participation, or the rules which govern it.
3.                      
Article 21 notwithstanding and provided that the
conditions in paragraph 4 are met, this Directive shall not apply to contracts
awarded:
(a)         
by a contracting entity to an affiliated
undertaking, or
(b)         
by a joint venture, formed exclusively by a
number of contracting entities for the purpose of carrying out activities
within the meaning of Articles 5 to 11, to an undertaking which is affiliated
with one of those contracting entities.
4.                      
Paragraph 3 shall apply:
(a)         
to service contracts provided that at least 80 %
of the average total turnover of the affiliated undertaking with respect to
services in general for the preceding three years derives from the provision of
services to undertakings with which it is affiliated;
(b)         
to supply contracts provided that at least 80 %
of the average total turnover of the affiliated undertaking with respect to
supplies in general for the preceding three years derives from the provision of
supplies to undertakings with which it is affiliated;
(c)         
to works contracts provided that at least 80 %
of the average total turnover of the affiliated undertaking with respect to
works in general for the preceding three years derives from the provision of
works to undertakings with which it is affiliated.
5.                      
When, because of the date on which an affiliated
undertaking was created or commenced activities, the turnover is not available
for the preceding three years, it will be sufficient for that undertaking to
show that the turnover referred to in points (a), (b) or (c) of paragraph 4 is
credible, particularly by means of business projections.
Where more than one undertaking affiliated with
the contracting entity provides the same or similar services, supplies or
works, the above percentages shall be calculated taking into account the total
turnover deriving respectively from the provision of services, supplies or
works by those affiliated undertakings.
Article 23
Contracts awarded to a joint venture or to a contracting entity forming part of
a joint venture
Article 21 notwithstanding and provided that the joint venture has been set up in order to carry
out the activity concerned over a period of at least three years and that the
instrument setting up the joint venture stipulates that the contracting entities,
which form it, will be part thereof for at least the same period, this Directive shall not apply to contracts awarded by any of the
following:
(a)                   
by a joint venture, formed exclusively by a number
of contracting entities for the purpose of carrying out activities within the
meaning of Articles 5 to 11, to one of those contracting entities, or
(b)                   
by a contracting entity to such a joint venture of
which it forms part. 
Article 24
Notification of information 
Contracting entities shall notify to the
Commission or the national oversight body, at their request, the following information regarding the
application of Article 22, paragraphs 2, 3 and Article 23:
(a)                   
the names of the undertakings or joint ventures
concerned,
(b)                   
the nature and value of the contracts involved,
(c)                   
proof deemed necessary by the Commission or the
national oversight body that the relationship between the undertaking or joint
venture to which the contracts are awarded and the contracting entity complies
with the requirements of Articles 22 or 23.
Subsection 3
Specific situations
Article 25
Research and development services
1.                      
This Directive shall apply to service contracts
for research and development services with CPV reference numbers 73000000-2 to
73436000-7, except 73200000-4, 73210000-7 or 73220000-0, provided that the
following conditions are both fulfilled:
(a)         
the benefits accrue exclusively to the
contracting entity for its use in the conduct of its own affairs,
(b)         
the service provided is wholly remunerated by
the contracting entity. 
This Directive shall not apply to service
contracts for research and development services with CPV reference numbers
73000000-2 to 73436000-7, except 73200000-4, 73210000-7 or 73220000-0 where one
of the conditions referred to in points (a) or (b) of the first subparagraph is
not met.
2.                      
The Commission shall be empowered to adopt
delegated acts in accordance with Article 98 to amend the CPV reference numbers
referred to in paragraph 1 to reflect changes in the CPV nomenclature provided
that such amendments do not imply a modification of the scope of this
Directive.
Article 26
Contracts subject to special arrangements
1.                      
Without prejudice to Article 27 the Republic of
Austria and the Federal Republic of Germany shall ensure, by way of the
conditions of authorisation or other appropriate measures, that any entity
operating in the sectors mentioned in Decisions 2002/205/EC and 2004/73/EC:
(a)         
observes the principles of non-discrimination
and competitive procurement in respect of the award of supplies, works and
service contracts, in particular as regards the information which the entity
makes available to economic operators concerning its procurement intentions;
(b)         
communicates to the Commission, under the
conditions defined in Commission Decision 93/327/EEC[41], information relating to the
contracts they award.
2.                      
Without prejudice to Article 27, the United
Kingdom shall ensure, by way of the conditions of authorisation or other
appropriate measures, that any entity operating in the sectors mentioned in
Decision 97/367/EEC applies points (a) and (b) of paragraph 1 in respect of
contracts awarded for the pursuit of said activity in Northern Ireland.
3.                      
Paragraphs 1 and 2 shall not apply to contracts
awarded for the purpose of exploring for oil or gas.
Subsection 4
Activities directly exposed to competition and procedural provisions relating
thereto
Article 27
Activities directly exposed to competition
1.                      
Contracts intended to enable an activity mentioned in Articles 5 to 11 to be carried
out shall not be subject to this Directive if the Member State or the contracting
entities having introduced the request pursuant to Article 28 can demonstrate
that, in the Member State in which it is performed, the activity is directly
exposed to competition on markets to which access is not restricted; nor shall design contests that are organised for the pursuit of such
an activity in that geographic area be subject to this Directive. Such competition assessment, which will be made in the light of
the information available to the Commission and for the purposes of this
Directive, is without prejudice to the application of competition law.
2.                      
For the purposes of paragraph 1, the question of
whether an activity is directly exposed to competition shall be decided on the
basis of criteria that are in conformity with the provisions on competition of
the Treaty; those may include
the characteristics of the goods or services concerned, the existence of
alternative goods or services, the prices and the actual or potential presence
of more than one supplier of the goods or provider of the services in question.
The geographical reference market, on the basis
of which exposure to competition is assessed, shall consist of the area in
which the undertakings concerned are involved in the supply and demand of
products or services, in which the conditions of competition are sufficiently
homogeneous and which can be distinguished from neighbouring areas because, in
particular, conditions of competition are appreciably different in those areas.
This assessment shall take account in particular of the nature and
characteristics of the products or services concerned, of the existence of
entry barriers or of consumer preferences, of appreciable differences of the
undertakings' market shares between the area concerned and neighbouring areas
or of substantial price differences.
3.                      
For the purposes of paragraph 1, access to a
market shall be deemed not to be restricted if the Member State has implemented
and applied the Union legislation listed in Annex III.
If free access to a given market cannot be
presumed on the basis of the first subparagraph, it must be demonstrated that
access to the market in question is free de facto and de jure.
Article 28
Procedure for establishing whether Article 27 is applicable
1.                      
Where a Member State or, where the legislation of the Member State concerned
provides for it, a contracting entity considers that, on the basis of the
criteria set out in Article 27(2) and (3), a given activity is directly exposed
to competition on markets to which access is not restricted, it may submit a
request to establish that this Directive does not apply to the award of
contracts or the organisation of desing contests for the pursuit of that
activity.
Requests shall be accompanied by a reasoned and
substantiated position adopted by an independent national authority that is
competent in relation to the activity concerned. This position shall thoroughly
analyse the conditions for the possible applicability of Article 27(1) to the
activity concerned in accordance with its paragraphs 2 and 3.
The Member State or contracting entity
concerned shall inform the Commission of all relevant facts, and in particular
of any law, regulation, administrative provision or agreement concerning
compliance with the conditions set out in Article 27(1).
2.                      
Upon request submitted in accordance with
paragraph 1 of this Article, the Commission may, by way of an implementing
decision adopted within the periods set out in paragraph 4 of this Article,
establish whether an activity referred to in Articles 5 to 11 is directly
exposed to competition on the basis of the criteria set out in Article 27.
Those implementing decisions shall be adopted in accordance with the advisory
procedure referred to in Article 100(2) .
Contracts intended to enable the activity
concerned to be carried out and design contests that
are organised for the pursuit of such an activity shall
cease to be subject to this Directive in any of the following cases:
(a)         
The Commission has adopted the
implementing decision referred to in the first subparagraph of this paragraph establishing the applicability of Article 27(1) within the period
provided for in paragraph 3 of this Article;
(b)         
has not adopted the
implementing decision referred to in the first subparagraph of this paragraph within the period provided for in paragraph 3 of this Article.
3.                      
The implementing decisions referred to in
paragraph 2 shall be adopted within the following periods:
(a)         
90 working days where free access to a given
market is presumed on the basis of the first subparagraph of Article 27(3); 
(b)         
130 working days in cases other than those
referred to in point (a).
Those deadlines shall commence on the first
working day following the date on which the Commission receives the request referred to in paragraph 1 or, where the
information to be supplied with the request is incomplete, on the working day
following the receipt of the complete information. 
The periods set out in the first subparagraph
may be extended by the Commission with the agreement of the Member State or
contracting entity which has presented the request. 
The Commission may require the Member State or
the contracting entity concerned or the independent national authority referred
to under paragraph 1 of this Article or any other competent national authority,
including the oversight body referred to in Article 93, to provide all
necessary information or to supplement or clarify information given within an
appropriate time limit. In the event of late or incomplete answers, the periods
set out in the first subparagraph shall be suspended for the period between the
expiry of the time limit set in the request for information, and the receipt of
the complete and correct information.
4.                      
Where an activity in a given Member State is
already the subject of a procedure under paragraphs 1, 2 and 3, further
requests concerning the same activity in the same Member State before the
expiry of the period opened in respect of the first request shall not be
considered as new procedures and shall be treated in the context of the first
request.
5.                      
The Commission shall adopt an implementing act
establishing detailed rules for the application of paragraphs 1 to 4. That
implementing act hall include at least:
(a)         
Thosethe publication in the
Official Journal of the European Union, for information, of the date on
which the period set out in the first subparagraph of paragraph 3 begins and
ends, including prolongations or suspensions of those periods, if any, as
provided for in paragraph 3 of this Article;
(b)         
publication of the possible applicability of
Article 27(1) in accordance with point b of the second subparagraph of paragraph
2 of this Article;
(c)         
implementing provisions concerning the form,
content and other details of requests pursuant to paragraph 1 of this Article; 
(d)         
rules concerning the periods set out in
paragraph 3 of this Article. 
Those implementing acts shall be adopted in
accordance with the advisory procedure referred to in Article 100(2). 
CHAPTER IV
General principles
Article 29
Principles of procurement
Contracting entities shall treat economic
operators equally and without discrimination and shall act in a transparent and proportionate way. 
The design of the procurement shall not be made with the objective of excluding it from the scope of this
Directive or of artificially narrowing competition.
Article 30
Economic operators
1.                      
Economic operators that, under the law of the
Member State in which they are established, are entitled to provide the
relevant service, shall not be rejected solely on the ground that, under the
law of the Member State in which the contract is awarded, they would be
required to be either natural or legal persons.
However, in the case of service and works
contracts as well as supply contracts covering in addition services or siting
and installation operations, legal persons may be required to indicate, in the
tender or the request to participate, the names and relevant professional
qualifications of the staff responsible for the performance of the contract in
question.
2.                      
Groups of economic operators may submit tenders
or put themselves forward as candidates. Contracting entities shall not
establish specific conditions for participation of such groups in procurement
procedures which are not imposed on individual candidates. In order to submit a
tender or a request to participate, those groups shall not be required by the
contracting entities to assume a specific legal form. 
Contracting entities may establish specific
conditions for the performance of the contract by a group, provided that those conditions are
justified by objective reasons and proportionate. Those
conditions may require a group to assume a specific
legal form once it has been awarded the contract, to the extent that this
change is necessary for the satisfactory performance of the contract.
Article 31
Reserved contracts
Member States may reserve the right to
participate in procurement procedures to sheltered workshops and economic operators whose main aim is the social and
professional integration of disabled and disadvantaged workers or provide for such contracts to be performed in the context of
sheltered employment programmes, provided that more than 30% of the employees of those
workshops, economic operators or programmes are disabled or disadvantaged workers.
The call for competition shall make reference to this Article. 
Article 32
Confidentiality
1.                      
Contracting entities may impose on economic
operators requirements aimed at protecting the confidential nature of
information which the contracting entities make available throughout the procurement
procedure, including information made available in connection with the
operation of a qualification system, whether or not this has been the subject
of a notice on the existence of a qualification system used as a means of
calling for competition.
2.                      
Unless otherwise provided in this Directive or in the national law concerning
access to information, and without prejudice to the
obligations relating to the advertising of awarded contracts and to the
information to candidates and tenderers set out in Articles 64 and 69 of this
directive the contracting entity shall not disclose information forwarded to it
by economic operators which they have designated as confidential, including, but not limited to, technical
or trade secrets and the confidential aspects of tenders.
Article 33
Rules applicable to communication
1.                      
Except where use of electronic means is
mandatory pursuant to Articles 46, 47, 48, 49(4), 65(2) or 67 of this Directive
contracting entities may choose between the following means of communication
for all communication and information exchange:
(a)         
electronic means in accordance with paragraphs 3,
4 and 5;
(b)         
post or fax;
(c)         
telephone in the cases and circumstances
referred to in paragraph 6; 
(d)         
a combination of those means. 
Member States may make mandatory the use of
electronic means of communication in other situations than those provided for
in Articles 46, 47, 48, 49(4), 65(2) or 67 of this Directive. 
2.                      
The means of communication chosen shall be
generally available and not restrict economic operators' access to the procurement
procedure.
In all communication, exchange and storage of
information, contracting entities shall ensure that the integrity of data and
the confidentiality of tenders and requests to participate are preserved. They
shall examine the content of tenders and requests to participate only after the
time limit set for submitting them has expired.
3.                      
The tools to be used for communicating by
electronic means, as well as their technical characteristics, shall be
non-discriminatory, generally available and interoperable with the information
and communication technology products in general use
and shall not restrict economic operators' access to the procurement procedure.
The technical details and characteristics of the devices for the electronic
receipts to be deemed in compliance with the first subparagraph of this paragraph
are set out in Annex IV.
The Commission shall be empowered to adopt
delegated acts in accordance with Article 98 to amend the technical details and
characteristics set out in Annex IV due to technical developments or
administrative reasons.
To ensure the interoperability of technical
formats as well as of process and messaging standards, especially in a
cross-border context, the Commission shall be empowered to adopt delegated acts
in accordance with Article 98 to establish the mandatory use of certain
technical standards, at least with regard to the use of e-submission,
electronic catalogues and means for electronic authentication.
4.                      
Contracting entities may, where necessary,
require the use of tools which are not generally available, provided that they
offer alternative means of access.
Contracting entities shall be deemed to offer
suitable alternative means of access in any of the following situations:
(a)         
they offer unrestricted and full direct access
by electronic means to those tools from the date of publication of the notice
in accordance with Annex IX or from the date on which the invitation to confirm
interest is sent. The text of the notice or the invitation to confirm interest
shall specify the internet address at which those tools are accessible;
(b)         
they ensure that tenderers established in other
Member States than the contracting entity's may access the procurement
procedure through the use of provisional tokens made available online at no
extra cost;
(c)         
they support an alternative channel for
electronic submission of tenders.
5.                      
The following rules shall apply to devices for
the electronic transmission and receipt of tenders and for the electronic
receipt of requests to participate:
(a)         
information on specifications for the electronic
submission of tenders and requests to participate, including encryption and
time-stamping, shall be available to interested parties;
(b)         
the devices, methods for authentication and
electronic signatures shall comply with the requirements of Annex IV;
(c)         
contracting entities shall specify the level of
security required for the electronic means of communication to be used in the
various stages of the specific procurement procedure; the level shall be
proportionate to the risks attached;
(d)         
where advanced Electronic Signatures as defined
by Directive 1999/93/EC[42]
are required, contracting entities shall, as long as the signature is valid,
accept signatures supported by a qualified electronic certificate referred to
in the Trusted List as provided for in the Commission Decision 2009/767/EC[43], created with or without a
secure signature creation device, subject to compliance with the following
conditions:
(i)            
they must establish the required advanced
signature format on the basis of formats established in Commission Decision
2011/130/EU[44]
and shall put in place necessary measures to be able to process those formats
technically;
(ii)          
where a tender is signed with the support of a
qualified certificate that is included in the Trusted list, they must not apply
additional requirements that may hinder the use of those signatures by
tenderers.
6.                      
The following rules shall apply to the
transmission of requests to participate:
(a)         
requests to participate in procedures for the
award of contracts may be made in writing or by telephone; in the latter case,
a written confirmation must be sent before expiry of the time limit set for
their receipt;
(b)         
contracting entities may require that requests
for participation made by fax must be confirmed by post or by electronic means,
where this is necessary for the purposes of legal proof. 
For the purposes of point (b) the contracting
entity shall indicate in the notice used as a means of calling for competition
or in the invitation to confirm interest that it requires requests to
participate made by fax to be confirmed by post or by electronic means and the
time limit for sending such confirmation.
7.                      
Contracting entities may use the data processed
electronically for public procurement procedures in order to prevent, detect
and correct errors occuring at each stage by developing appropriate tools. 
Article 34
General obligation to use electronic means of communication
Member States shall ensure that, at the
latest 2 years after the date provided for in Article 101(1), all procurement
procedures under this Directive are performed using electronic means of
communication, in particular e-submission, in accordance with the requirements
of this Article.
This obligation shall not apply where the
use of electronic means would require specialised tools or file formats that
are not generally available in all the Member States within the meaning of
paragraph 3. It is the responsibility of the contracting entities using other
means of communication for submission of tenders to demonstrate in the
procurement documents that the use of electronic means, due to the particular
nature of the information to be exchanged with the economic operators, would
require specialised tools or file formats that are not generally available in
all the Member States.
Contracting entities shall be deemed to
have legitimate reasons not to request electronic means of communication in the
submission process where the following apply:
(a)                   
the description of the technical specifications,
due to the specialised nature of the procurement, cannot be rendered using file
formats that are generally supported by commonly used applications;
(b)                   
the applications supporting file formats that
are suitable for the description of the technical specifications are under a
proprietary licensing schema and cannot be made available for downloading or
remote use by the contracting entity;
(c)                   
the applications supporting file formats that
are suitable for the description of the technical specifications use file
formats that cannot be handled by any other open or downloadable applications.
Article 35
Nomenclatures
1.                      
Any references to nomenclatures in the context
of public procurement shall be made using the "Common Procurement
Vocabulary (CPV)" as adopted by Regulation (EC) No 2195/2002[45].
2.                      
The Commission shall be empowered to adopt
delegated acts in accordance with Article 98 to adapt the reference numbers
used in Annex II and XVI, whenever changes in the CPV nomenclature have to be
reflected in this Directive and they do not imply a modification of the scope
of this Directive.
Article 36
Conflicts of interests
1.                      
Member States shall, in respect of contracting authorities within the meaning of point 1 of Article 2, provide for rules to effectively prevent, identify and immediately remedy
conflicts of interests arising in the conduct of procurement procedures that
are subject to this Directive, including the design and preparation of the
procedure, the drawing-up of the procurement documents, the selection of
candidates and tenderers and the award of the contract, so as to avoid any
distortion of competition and ensure equal treatment of all tenderers.
The notion of conflict of interests shall at
least cover any situation where the categories of persons referred to in
paragraph 2 have, directly or indirectly, a private interest in the outcome of
the procurement procedure, which may be perceived to impair the impartial and
objective performance of their duties. 
For the purposes of this Article, "private
interests" means any family, emotional life, economic, political or other
shared interests with the candidates or the tenderers, including conflicting
professional interests.
2.                      
The rules referred to in paragraph 1 shall apply
to conflicts of interests involving at least the following categories of
persons:
(a)         
staff members of the contracting authority,
procurement service providers or staff members of other service providers who
are involved in the conduct of the procurement procedure; 
(b)         
the chairperson of the contracting authority and
members of decision-making bodies of the contracting authority who, without
necessarily being involved in the conduct of the procurement procedure, may
nevertheless influence the outcome of that procedure.
3.                      
Member States shall ensure in particular:
(a)         
that staff members referred to in paragraph 2(a)
are required to disclose any conflict of interests in relation to any of the
candidates or tenderers, as soon as they become aware of such conflicts, in
order to enable the contracting authority to take remedial action, 
(b)         
that candidates and tenderers are required to
submit at the beginning of the procurement procedure a declaration on the
existence of any privileged links with the persons referred to in paragraph
2(b), which are likely to place those persons in a situation of conflict of
interests; the contracting authority shall indicate in the individual report
referred to in Article 94 whether any candidate or tenderer has submitted a
declaration.
In the event of a conflict of interests, the
contracting authority shall take appropriate measures. Those measures may
include the recusal of the staff member in question from involvement in the
affected procurement procedure or the re-assignment of the staff member’s
duties and responsibilities. Where a conflict of interests cannot be
effectively remedied by other means, the candidate or tenderer concerned shall
be excluded from the procedure.
Where privileged links are identified, the
contracting authority shall immediately inform the oversight body designated in
accordance with Article 93 and take appropriate measures to avoid any undue
influence on the award process and ensure equal treatment of candidates and
tenderers. If the conflict of interests cannot be effectively remedied by other
means, the candidate or tenderer concerned shall be excluded from the procedure.

4.                      
All measures taken pursuant to this Article
shall be documented in the individual report referred to in Article 94.
Article 37
Illicit conduct 
Candidates shall be required at the
beginning of the procedure to provide a declaration on honour that they have
not undertaken and will not undertake to:
(a)                   
unduly influence the decision-making process of
the contracting entity or obtain confidential information that may confer upon
them undue advantages in the procurement procedure;
(b)                   
enter into agreements with other candidates and
tenderers aimed at distorting competition, or 
(c)                   
deliberately provide misleading information that
may have a material influence on decisions concerning exclusion, selection or
award. 
TITLE II
RULES APPLICABLE TO CONTRACTS
CHAPTER I
Procedures
Article 38 
Conditions relating to the Government Procurement Agreement
and other international agreements
1.                      
As far as covered by Annexes III, IV and V and
the General Notes to the European Union’s Appendix 1 to the Government Procurement
Agreement and by the other international agreements by
which the Union is bound, as listed in Annex V to this Directive, contracting entities within the meaning of Article 4(3)(a) shall
accord to the works, supplies, services and economic operators of the
signatories to those agreements treatment no less favourable than the treatment
accorded to the works, supplies, services and economic operators of the Union.
By applying this Directive to economic operators of the signatories to those agreements
contracting entities shall comply with those agreements.
2.                      
The Commission shall be empowered to adopt
delegated acts in accordance with Article 98 to amend the list in Annex V,
where necessary due to the conclusion of new international agreements or
modification of existing international agreements.
Article 39
Choice of procedures
1.                      
When awarding supply, works or service
contracts, contracting entities shall apply the procedures adjusted to be in
conformity with this Directive, provided that, without
prejudice to Article 42, a call for competition has
been published in accordance with this Directive.
Member States shall provide that contracting entities may apply open or restricted procedures or negotiated
procedures with prior call for competition as regulated
in this Directive. 
2.                      
The call for competition may be made by one of
the following means:
(a)         
a periodic indicative notice pursuant to Article
61 where the contract is awarded by restricted or negotiated procedure;
(b)         
a notice on the existence of a qualification
system pursuant to Article 62 where the contract is awarded by restricted or
negotiated procedure or by an innovation partnership,
(c)         
by means of a contract notice pursuant to
Article 63.
In the case referred to in point (a), economic
operators having expressed their interest following the publication of the
periodic indicative notice shall subsequently be invited to confirm their
interest in writing by means of an ‘invitation to confirm interest’ in
conformity with Article 68.
3.                      
Member States may provide that contracting
entities may apply a negotiated procedure without prior call for competition
only in the specific cases and circumstances referred to expressly in Article
42. 
Article 40
Open procedure
1.                      
In open procedures any interested economic
operator may submit a tender in response to a call for competition.
The minimum time limit for the receipt of
tenders shall be 40 days from the date on which the contract notice was sent.
The tender shall be accompanied by the
requested information for qualitative selection.
2.                      
Where contracting entities have published a
periodic indicative notice which is not used as a means of calling for
competition, the minimum time limit for the receipt of tenders, as laid down in the second subparagraph of paragraph 1 of this
Article, may be shortened to 20 days, provided that both of the following conditions are fulfilled: 
(a)         
the periodic indicative notice has included, in
addition to the information required by Section I of Part A of Annex VI, all
the information required by Section II of Part A of Annex VI, insofar as the
latter information is available at the time the periodic indicative notice is
published;
(b)         
it was sent for publication between 45 days and
12 months before the date on which the contract notice was sent.
3.                      
Where a state of urgency duly substantiated by
the contracting entities renders impracticable the time limit laid down in the
second subparagraph of paragraph 1, they may fix a time limit which shall be
not less than 20 days from the date on which the contract notice was sent.
4.                      
The contracting entity may reduce by five days
the time limit for receipt of tenders set out in the second subparagraph of
paragraph 1 where it accepts that tenders may be submitted by electronic means
in accordance with Article 33(3), (4) and (5).
Article 41
Restricted procedure
1.                      
In restricted procedures, any economic operator
may submit a request to participate in response to a call for competition by
providing the requested information for qualitative selection.
The minimum time limit for the receipt of
requests to participate shall, as a general rule, be fixed at no less than 30
days from the date on which the contract notice or the
invitation to confirm interest is sent and may in no
case be less than 15 days.
2.                      
Only those economic operators invited by the
contracting entity following their assessment of the requested information may
submit a tender. Contracting entities may limit the number of suitable
candidates to be invited to participate in the procedure in accordance with
Article 72(2). 
The time limit for the receipt of tenders may
be set by mutual agreement between the contracting entity and the selected
candidates, provided that all candidates have the same time to prepare and
submit their tenders;
Where it is not possible to reach agreement on
the time limit for the receipt of tenders, the contracting entity shall fix a
time limit which shall in no case be less than 10 days from the date on which
the invitation to tender is sent.
Article 42
Negotiated procedure with prior call for competition
1.                      
In negotiated procedures with prior call for
competition, any economic operator may submit a request to participate in
response to a call for competition by providing the requested information for
qualitative selection.
The minimum time limit for the receipt of
requests to participate shall, as a general rule, be fixed at no less than 30
days from the date on which the contract notice or,
where a periodic indicative notice is used as a means of calling for
competition, the invitation to confirm interest is sent
and may in no case be less than 15 days.
2.                      
Only those economic operators invited by the contracting
entity following their assessment of the requested information may participate
in the negotiations. Contracting entities may limit the number of suitable
candidates to be invited to participate in the procedure in accordance with
Article 72(2).
The time limit for the receipt of tenders may
be set by mutual agreement between the contracting entity and the selected
candidates, provided that all candidates have the same time to prepare and
submit their tenders;
Where it is not possible to reach agreement on
the time limit for the receipt of tenders, the contracting entity shall fix a
time limit which shall in no case be less than 10 days from the date on which
the invitation to tender is sent.
Article 43
Innovation partnership
1.                      
Member States may provide that contracting
entities may apply innovation partnerships as regulated
in this Directive. Member States may decide not to transpose into their
national law innovation partnerships or to restrict the use of it to certain
types of procurement.
In innovation partnerships, any economic
operator may submit a request to participate in response to a call for
competition in accordance with points (b) and (c) of Article 39(2) with a view
to establishing a structured partnership for the development of an innovative product,
service or works and the subsequent purchase of the resulting supplies,
services or works, provided that they correspond to the agreed performance
levels and costs.
2.                      
The partnership shall be structured in
successive stages following the sequence of steps in the research and
innovation process, possibly up to the manufacturing of the supply or the
provision of the services. It shall provide for intermediate targets to be
attained by the partner and provide for payment of the remuneration in appropriate
instalments. Based on those targets, the contracting entity can decide after
each stage to terminate the partnership and launch a new procurement procedure
for the remaining phases, provided that it has acquired the relevant
intellectual property rights. 
3.                      
The contract shall be awarded in accordance with
the rules for a negotiated procedure with prior call for competition set out in
Article 42. 
In selecting candidates, contracting entities
shall pay particular attention to criteria concerning the tenderers’ capacity
and experience in the field of research and development or of developing
innovative solutions. They may limit the number of suitable candidates to be
invited to participate in the procedure in accordance with Article 72(2).
Only those economic operators invited by the
contracting entity following its assessment of the requested information may
submit research and innovation projects, aimed at meeting the needs identified
by the contracting entity that cannot be met by existing solutions. The
contract shall be awarded on the sole basis of the award criterion of the most
economically advantageous tender in accordance with Article 76 (1)(a).
4.                      
The structure of the partnership and, in
particular the duration and value of the different phases shall reflect the
degree of innovation of the proposed solution and the sequence of the research
and innovation activities required for the development of an innovative
solution not yet available on the market. The value and duration of a contract
for the purchase of the resulting supply, service or works shall remain within
appropriate limits, taking into account the need to recover the costs,
including those incurred in developing an innovative solution, and to achieve
an adequate profit.
Contracting entities shall not use innovation
partnerships in such a way as to prevent, restrict or distort competition.
Article 44
Use of the negotiated procedure without prior call for
competition
Contracting entities may use a negotiated procedure
without prior call for competition in the following cases:
(a)                   
where no tenders or no
suitable tenders or no requests to participate have been submitted in response
to a procedure with a prior call for competition, provided that the initial
conditions of the contract are not substantially altered;
(b)                   
where a contract is purely for the purpose of
research, experiment, study or development, and not for the purpose of securing
a profit or of recovering research and development costs, and insofar as the
award of such contract does not prejudice the competitive award of subsequent
contracts which do seek, in particular, those ends;
(c)                   
where the aim of the procurement is the creation
or obtention of a work of art;
(d)                   
where the works, supplies or services can be
supplied only by a particular economic operator for any of the following
reasons: 
(i)       the absence of competition for
technical reasons;
(ii)      the protection of patents, copyrights
or other intellectual property rights;
(iii)     the protection of other exclusive
rights.
This exception only applies when no reasonable
alternative or substitute exists and the absence of competition is not the
result of an artificial narrowing down of the parameters of the procurement;
(e)                   
insofar as is strictly necessary where, for
reasons of extreme urgency brought about by force majeure, the time limits laid
down for open procedures, restricted procedures and negotiated procedures with
prior call for competition cannot be complied with. The circumstances invoked
to justify extreme urgency must not in any event be attributable to the
contracting entity;
(f)                     
in the case of supply contracts for additional
deliveries by the original supplier which are intended either as a partial
replacement of normal supplies or installations or as the extension of existing
supplies or installations, where a change of supplier would oblige the
contracting entity to acquire material having different technical
characteristics which would result in incompatibility or disproportionate
technical difficulties in operation and maintenance;
(g)                   
for new works or services consisting in the
repetition of similar works or services assigned to the contractor to which the
same contracting entities awarded an earlier contract, provided that such works
or services conform to a basic project for which a first contract was awarded
according to a procedure in accordance with Article 39(1). 
(h)                   
for supplies quoted and purchased on a commodity
market or other similar markets such as electricity exchanges;
(i)                     
for bargain purchases, where it is possible to
procure supplies by taking advantage of a particularly advantageous opportunity
available for a very short time at a price considerably lower than normal
market prices;
(j)                     
for purchases of supplies under particularly
advantageous conditions from either a supplier definitively winding up its
business activities or the liquidators in an insolvency procedure, an
arrangement with creditors or a similar procedure under national laws or
regulations;
(k)                   
where the service contract concerned follows a
design contest organised in accordance with this Directive and is to be awarded,
under the applicable rules, be awarded to the winner or to one of the winners
of that contest; in the latter case, all the winners shall be invited to
participate in the negotiations.
For the purposes of point (a), a tender
shall be considered not to be suitable where:
(a)                   
it is irregular or unacceptable, and
(b)                   
it is completely irrelevant to the contract, being
incapable of meeting the contracting entity’s needs as specified in the
procurement documents.
In particular, tenders shall be considered
to be irregular, where they do not comply with the procurement documents or
where the prices offered are sheltered from normal competitive forces;
In particular, tenders shall be considered
to be unacceptable in any of the following cases: 
(a)                   
they have been received late; 
(b)                   
they have been submitted by tenderers that do not
have the requisite qualifications;
(c)                   
their price either exceeds the contracting entity’s
budget as determined prior to the launching of the procurement procedure; the
prior determination of the budget must be documented in writing; 
(d)                   
they have been found to be abnormally low in
accordance with Article 79.
For the purposes of point (g) of paragraph
1 of this Article, the basic project shall indicate the extent of possible
additional works or services and the conditions under which they will be
awarded. As soon as the first project is put up for
tender, notice shall be given that this procedure might be adopted and the
total estimated cost of subsequent works or services shall be taken into
consideration by the contracting entities when they apply Articles 12 and 13.
CHAPTER II
Techniques and instruments for electronic and aggregated procurement
Article 45
Framework agreements
1.                      
Contracting entities may conclude framework
agreements, provided that they apply the procedures
provided for in this Directive.
A framework agreement means an agreement
between one or more contracting entities and one or more economic operators,
the purpose of which is to establish the terms governing contracts to be
awarded during a given period, in particular with regard to price and, where
appropriate, the quantities envisaged.
The term of a framework agreement shall not
exceed four years, save in exceptional cases duly justified, in particular by
the subject of the framework agreement.
2.                      
Contracts based on a framework agreement shall
be awarded in accordance with the procedures laid down in this paragraph and
paragraphs 3 and 4. 
Those procedures may be applied only between
those contracting entities clearly identified for this purpose in the call for
competition, in the invitation to confirm interest or, where a notice on the existence
of a qualification system is used as a means of calling
for competition, in the invitation to tender and those
economic operators originally party to the framework agreement. 
Contracts based on a framework agreement may
under no circumstances make substantial modifications to the terms laid down in
that framework agreement, in particular in the case referred to in paragraph 3.

Contracting entities shall not use framework
agreements improperly or in such a way as to prevent, restrict or distort competition.
3.                      
Where a framework agreement is concluded with a
single economic operator, contracts based on that agreement shall be awarded within
the limits of the terms laid down in the framework agreement.
For the award of those contracts, contracting
entities may consult the operator party to the framework agreement in writing,
requesting it to supplement its tender as necessary.
4.                      
Where a framework agreement is concluded with
more than one economic operator, it may be performed in one of the two
following ways:
(a)         
following the terms and conditions of the
framework agreement, without reopening competition, where it sets out all the
terms governing the provision of the works, services and supplies concerned and
the objective conditions for determining which of the economic operators, party
to the framework agreement, shall perform them; the latter conditions shall be
indicated in the procurement documents;
(b)         
where not all the terms governing the provision
of the works, services and supplies are laid down in the framework agreement,
through reopening competition amongst the economic operators parties to the
framework agreement. 
5.                      
The competition referred to in paragraph (4)(b)
shall be based on the same terms as applied for the award of the framework
agreement and, where necessary, more precisely formulated terms, and, where
appropriate, other terms referred to in the specifications of the framework agreement,
in accordance with the following procedure:
(a)         
for every contract to be awarded, contracting
entities shall consult in writing the economic operators capable of performing
the contract;
(b)         
contracting entities shall fix a time limit
which is sufficiently long to allow tenders for each specific contract to be
submitted, taking into account factors such as the complexity of the
subject-matter of the contract and the time needed to send in tenders;
(c)         
tenders shall be submitted in writing, and their
content shall not be opened until the stipulated time limit for reply has
expired;
(d)         
contracting entities shall award each contract
to the tenderer that has submitted the best tender on the basis of the award
criteria set out in the specifications of the framework agreement.
Article 46
Dynamic purchasing systems
1.                      
For commonly used
purchases, the characteristics of which, as generally available on the market,
meet the requirements of the contracting entities, they
may use a dynamic purchasing system. The dynamic purchasing system shall be operated as a completely electronic process, open
throughout its validity to any economic operator that satisfies the selection
criteria.
2.                      
In order to award contracts under a dynamic
purchasing system, contracting entities shall follow the rules of the restricted
procedure. All the candidates who satisfy the selection criteria shall be
admitted to the system; the number of candidates to be admitted to the system shall
not be limited in accordance with Article 72 (2). All
communications in the context of a dynamic purchasing system shall only be made with
electronic means in accordance with Article 33(2) to (6).
3.                      
For the purposes of awarding contracts under a
dynamic purchasing system, contracting entities shall:
(a)         
publish a call for competition making it clear
that a dynamic purchasing system is involved;
(b)         
indicate in the specifications, at least the
nature and estimated quantity of the purchases envisaged, as well as all the
necessary information concerning the purchasing system, the electronic
equipment used and the technical connection arrangements and specifications;
(c)         
offer unrestricted and full direct access, as
long as the system is valid, to the specifications and to any additional
documents in accordance with Article 67.
4.                      
Contracting entities shall give any economic
operator, throughout the entire duration of the dynamic purchasing system, the
possibility of requesting to participate in the system under the conditions
referred to in paragraph 2. Contracting entities shall
finalise their assessment of such requests according to the selection criteria
within 10 working days following their receipt.
Contracting entities shall inform the economic
operator referred to in the first subparagraph at the earliest possible
opportunity of whether or not it has been admitted to the dynamic purchasing system.
5.                      
Contracting entities shall invite all qualified
participants to submit a tender for each specific procurement under the dynamic
purchasing system, in accordance with Article 68.
They shall award the contract to the tenderer that
submitted the best tender on the basis of the award criteria set out in the
contract notice for the dynamic purchasing system, in
the invitation to confirm interest, or, where the means of calling for competition is a notice on the
existence of a qualification system, in the invitation to tender. Those criteria may, where appropriate, be formulated more precisely
in the invitation to tender.
6.                      
Contracting entities shall indicate the duration
of the dynamic purchasing system in the call for competition. They shall notify
the Commission of any change in duration, using the following standard forms:
(a)         
where the duration is changed without
terminating the system, the form used initially for the call for competition
for the dynamic purchasing system; 
(b)         
where the system is terminated, a contract award
notice referred to in Article 64. 
7.                      
No charges may be billed to the interested
economic operators or to parties to the dynamic purchasing system.
Article 47
Electronic auctions 
1.                      
Contracting entities may use electronic auctions
in which new prices, revised downwards, and/or new
values concerning certain elements of tenders are presented.
For this purpose, contracting entities shall
use a repetitive electronic process (electronic
auction), which occurs after an initial full evaluation of the tenders,
enabling them to be ranked using automatic evaluation methods.
2.                      
In open, restricted or negotiated procedures
with a prior call for competition, the contracting entities may decide that the
award of a contract shall be preceded by an electronic auction when the tender
specifications can be established with precision.
In the same circumstances, an electronic
auction may be held on the reopening of competition
among the parties to a framework agreement as provided for in point (b) of Article
45(4) and on the opening for competition of contracts
to be awarded under the dynamic purchasing system referred to in Article 46.
3.                      
The electronic auction shall be based on one of the the following criteria:
(a)         
solely on prices where the contract is awarded
to the lowest cost, 
(b)         
on prices and/or on the new values of the
features of the tenders indicated in the specifications, where the contract is
awarded to the most economically advantageous tender.
4.                      
Contracting entities which decide to hold an
electronic auction shall state that fact in the contract notice, in the invitation to confirm interest or, where a notice on the existence
of a qualification system is used as a means of calling
for competition, in the invitation to tender. The
specifications shall include at least the information set out in Annex VII.
5.                      
Before proceeding with the electronic auction,
contracting entities shall make a full initial evaluation of the tenders in
accordance with the award criterion or criteria and with the weighting fixed
for them.
A tender shall be considered admissible where
it has been submitted by a qualified tenderer and is in conformity with the
technical specifications. 
All tenderers that have submitted admissible
tenders shall be invited simultaneously by electronic means to participate in
the electronic auction using, as of the specified date
and time, the connections in accordance with the instructions set out in the
invitation. The electronic auction may take place in a
number of successive phases. The electronic auction shall not start sooner than
two working days after the date on which invitations are sent out.
6.                      
Where the contract is to be awarded on the basis
of the most economically advantageous tender, the invitation shall be accompanied
by the outcome of a full evaluation of the relevant tender carried out in
accordance with the weighting provided for in the first subparagraph of Article
76(5).
The invitation shall also state the
mathematical formula to be used in the electronic auction to determine
automatic re-rankings on the basis of the new prices and/or new values
submitted. That formula shall incorporate the weighting of all the criteria
established to determine the most economically advantageous tender, as
indicated in the notice used as a means of calling for competition or in the
specifications. For that purpose, any ranges shall, however, be reduced
beforehand to a specified value.
Where variants are authorised, a separate
formula shall be provided for each variant.
7.                      
Throughout each phase of an electronic auction
the contracting entities shall instantaneously communicate to all tenderers
sufficient information to enable them to ascertain their relative rankings at
any moment. They may also communicate other information concerning other prices
or values submitted, provided that that is stated in the specifications. They
may also at any time announce the number of participants in that phase of the
auction. In no case, however, may they disclose the identities of the tenderers
during any phase of an electronic auction.
8.                      
Contracting entities shall close an electronic
auction in one or more of the following manners:
(a)         
at the previously indicated date and time;
(b)         
when they receive no more new prices or new
values which meet the requirements concerning minimum differences, provided
that they have previously stated the time which they will allow to elapse after
receiving the last submission before they close the electronic auction;
(c)         
when the previously indicated number of phases
in the auction has been completed.
Where the contracting entities have decided to
close an electronic auction in accordance with point (c), possibly in
combination with the arrangements laid down in point (b), the invitation to
take part in the auction shall indicate the timetable for each phase of the
auction.
9.                      
After closing an electronic auction the
contracting entities shall award the contract in accordance with Article 76 on
the basis of the results of the electronic auction.
Article 48
Electronic catalogues 
1.                      
Where contracting entities require the use of
electronic means of communication pursuant to Article 33 , they may require
tenders to be presented in the format of an electronic catalogue.
Member States may render the use of electronic
catalogues mandatory in connection with certain types of procurement.
Tenders presented in the form of an electronic
catalogue may be accompanied by other documents, completing the tender.
2.                      
Electronic catalogues shall be established by
the candidates or tenderers with a view to participating in a specific procurement
procedure in accordance with the technical specifications and format
established by the contracting entity. 
Furthermore, electronic catalogues shall comply
with the requirements for electronic communication tools as well as with any additional
requirements set by the contracting entity in accordance with Article 33. 
3.                      
Where the presentation of tenders in the form of
electronic catalogues is accepted or required, contracting entities shall:
(a)         
state so in the contract notice, in the
invitation to confirm interest, or, where the means of calling for competition
is a notice on the existence of a qualification system, in the invitation to
tender or to negotiate;
(b)         
indicate in the specifications all the necessary
information pursuant to Article 33(5) concerning the format, the electronic
equipment used and the technical connection arrangements and specifications for
the catalogue.
4.                      
Where a framework agreement has been concluded
with more than one economic operator following the submission of tenders in the
form of electronic catalogues, contracting entities may provide that the
reopening of competition for specific contracts takes place on the basis of
updated catalogues. In such case, contracting entities shall use one of the
following alternative methods:
(a)         
invite tenderers to resubmit their electronic
catalogues, adapted to the requirements of the specific contract in question;
(b)         
notify tenderers that they intend to collect
from the catalogues which have already been submitted the information needed to
constitute tenders adapted to the requirements of the specific contract in
question (hereinafter "punch out"), provided that the use of this
method has been announced in the procurement documents for the framework
agreement.
5.                      
Where contracting entities reopen competition
for specific contracts in accordance with point (b) of paragraph (4), they shall
specify the date and time at which they intend to collect the information
needed to constitute tenders adapted to the requirements of the specific contract
in question and shall give tenderers the possibility to refuse such collection
of information. 
Contracting entities shall allow for an
adequate period between the notification and the actual collection of
information.
Before awarding the contract, contracting
entities shall present the collected information to the tenderer concerned so
as to give it the opportunity to contest or confirm the correctness of the
tender thus constituted. 
6.                      
Contracting entities may award contracts based
on a dynamic purchasing system through a punch out provided that the request
for participation in the dynamic purchasing system is accompanied by an
electronic catalogue in accordance with the technical specifications and format
established by the contracting entity. This catalogue shall be completed
subsequently by the candidates, when they are informed of the contracting entity's
intention to constitute tenders by means of a punch out. The punch out shall be
conducted in conformity with point (b) of paragraph 4 and paragraph 5.
Article 49
Centralised purchasing activities and central purchasing bodies
1.                      
Contracting entities may purchase works, supplies
and/or services from or through a central purchasing body.
2.                      
Member States shall
provide for the possibility for contracting entities to have recourse to
centralised purchasing activities offered by central purchasing bodies
established in another Member State.
3.                      
A contracting entity fulfills its obligations
pursuant to this Directive when it procures by having recourse to centralised
purchasing activities, to the extent that the procurement procedures concerned
and their performance are conducted by the central procurement body alone in
all its stages from the publication of the call for competition to the end of
the execution of the ensuing contract or contracts.
However, where certain stages of the procurement
procedure or the performance of the ensuing contracts are carried out by the
contracting entity concerned, the contracting entity continues to be
responsible for fulfilling the obligations pursuant to this Directive in
respect of the stages it conducts. 
4.                      
All procurement procedures conducted by a
central purchasing body shall be performed using electronic means of
communication, in accordance with the requirements of Article 33.
5.                      
Contracting entities may, without applying the
procedures provided for in this Directive, choose a central purchasing body to
provide centralised purchasing activities, including where the central
purchasing body is remunerated for so doing. 
6.                      
Central purchasing bodies shall also ensure the
documentation of all transactions performed in the course of the execution of
the contracts, framework agreements or dynamic purchasing systems they conclude
in the course of their central purchasing activities.
Article 50
Ancillary purchasing activities 
The providers of ancillary purchasing
activities shall be chosen in accordance with the procurement procedures set
out in this Directive.
Article 51
Occasional joint procurement
1.                      
One or more contracting entities may agree to
perform certain specific procurements jointly. 
2.                      
Where one contracting entity alone conducts the procurement
procedures concerned in all its stages from the publication of the call for
competition to the end of the performance of the ensuing contract or contracts,
that contracting entity shall have sole responsibility for fulfilling the obligations
pursuant to this Directive.
However, where the conduct of the procurement
procedures and the performance of the ensuing contracts is carried out by more
than one of the participating contracting entities, each shall continue to be
responsible for fulfilling its obligations pursuant to this Directive in
respect of the stages it conducts. 
Article 52
Joint procurement between contracting entities from different Member States
1.                      
Without prejudice to Title I, Chapter III,
Section 2, Subsection 2: Special
relations, contracting entities from different Member States may jointly award
contracts by using one of the means described in this Article.
2.                      
Several contracting entities may purchase works,
supplies and/or services from or through a central purchasing body located in
another Member State. In that case, the procurement procedure shall be
conducted in accordance with the national provisions of the Member State where
the central purchasing body is located. 
3.                      
Several contracting entities from different
Member States may jointly award a contract. In that case, the participating
contracting entities shall conclude an agreement that determines
(a)         
which national provisions shall apply to the procurement
procedure;
(b)         
the internal organisation of the procurement
procedure, including the management of the procedure, the sharing of
responsibilities, the distribution of the works, supplies or services to be
procured, and the conclusion of contracts.
When determining the applicable national law in
accordance with point (a), contracting entities may choose the national
provisions of any Member State in which at least one of the participating
entities is located.
4.                      
Where several contracting entities from
different Member States have set up a joint legal entity, including European
Groupings of territorial cooperation under Regulation (EC) No° 1082/2006 of the
European Parliament and of the Council[46]
or other entities established under Union law, the participating contracting
entities shall, by a decision of the competent body of the joint legal entity,
agree on the applicable national procurement rules of one of the following
Member States:
(a)         
the national provisions of the Member State
where the joint legal entity has its registered office;
(b)         
the national provisions of the Member State
where the joint legal entity is carrying out its activities.
This agreement may either apply for an
undetermined period, when fixed in the constitutive act of the joint legal entity,
or may be limited to a certain period of time, certain types of contracts or to
one or more individual contract awards.
5.                      
In the absence of an agreement determining the
applicable public procurement law, the national legislation governing the contract
award shall be determined following the rules set out below:
(a)         
where the procedure is conducted or managed by
one participating contracting entity on behalf of the others, the national
provisions of the Member State of that contracting entity shall apply;
(b)         
where the procedure is not conducted or managed
by one participating contracting entity on behalf of the others, and
(i)      concerns a works contract,
contracting entities shall apply the national provisions of the Member State
where most of the works are located;
(ii)      concerns a service or supply
contract, contracting entities shall apply the national provisions of the
Member State where the major part of the services or supplies is provided;
(c)         
where it is not possible to determine the
applicable national law pursuant to points (a) or (b), contracting entities
shall apply the national provisions of the Member State of the contracting entity
which bears the biggest share of the costs.
6.                      
In the absence of an agreement determining the
applicable public procurement law under paragraph 4, the national legislation
governing procurement procedures conducted by joint legal entities set up by
several contracting entities from different Member States shall be determined
following the following rules:
(a)         
where the procedure is conducted or managed by
the competent organ of the joint legal entity, the national provisions of the
Member State where the legal entity has its registered office shall apply;
(b)         
where the procedure is conducted or managed by a
member of the legal entity on behalf of that legal entity, the rules set out in
points (a) and (b)of paragraph 5 shall apply;
(c)         
where it is not possible to determine the
applicable national law pursuant to points (a) or (b) of paragraph 5, the
contracting entities shall apply the national provisions of the Member State
where the legal entity has its registered office.
7.                      
One or more contracting entities may award
individual contracts under a framework agreement concluded by or jointly with a
contracting entity located in another Member State, provided that the framework
agreement contains specific provisions enabling the respective contracting entity
or entities to award the individual contracts.
8.                      
Decisions on the award of contracts in
cross-border public procurement shall be subject to the ordinary review
mechanisms available under the national law applicable. 
9.                      
In order to enable the effective operation of
review mechanisms, Member States shall ensure that the decisions of review
bodies within the meaning of Council Directive
92/13/EEC[47] located in other Member States are fully executed in their domestic
legal order, where such decisions involve contracting entities established on
their territory participating in the relevant cross-border public procurement
procedure.
CHAPTER III
Conduct of the procedure
Section 1 Preparation 
Article 53
Preliminary market consultations 
1.                      
Before launching a procurement procedure,
contracting entities may conduct market consultations in order to assess the
structure, capability and capacity of the market and to inform economic
operators of their procurement plans and requirements. 
For this purpose, contracting entities may seek
or accept advice from administrative support structures or from third parties
or market participants, provided that such advice does not have the effect of
precluding competition and does not result in a violation of the principles of non-discrimination
and transparency.
2.                      
Where a candidate or tenderer or an undertaking
related to a candidate or tenderer has advised the contracting entity or has otherwise
been involved in the preparation of the procurement procedure, the contracting entity
shall take appropriate measures to ensure that competition is not distorted by
the participation of that candidate or tenderer. 
Such measures shall include the communication to
the other candidates and tenderers of any relevant information exchanged in the
context of or resulting from the involvement of the candidate or tenderer in
the preparation of the procurement procedure and the fixing of adequate time
limits for the receipt of tenders. The candidate or tenderer concerned shall
only be excluded from the procedure where there are no other means to ensure
compliance with the duty to observe the principle of equal treatment. 
Prior to any such exclusion, candidates or
tenderers shall be given the opportunity to prove that their involvement in
preparing the procurement procedure is not capable of distorting competition. The
measures taken shall be documented in the individual report required by to
Article 94.
Article 54
Technical specifications
1.                      
The technical specifications as defined in point
1 of Annex VIII shall be set out in the procurement documents. They shall define the characteristics required of a works, service
or supply.
These characteristics may also refer to the
specific process of production or provision of the requested works, supplies or
services or of any other stage of its life cycle as referred to in point (22)
of Article 2. 
The technical specifications shall also specify
whether the transfer of intellectual property rights will be required.
For all procurement, the subject of which is
intended for use by persons, whether general public or staff of the contracting
entity, those technical specifications shall, except in duly justified cases, be drawn
up so as to take into account accessibility criteria for people with
disabilities or design for all users.
Where mandatory accessibility standards are
adopted by a legislative act of the Union, technical specifications shall, as
far as accessibility criteria are concerned, be defined by reference thereto.
2.                      
Technical specifications shall guarantee equal
access of economic operators to the procurement
procedure and not have the effect of creating
unjustified obstacles to the opening up of public procurement to competition.
3.                      
Without prejudice to mandatory national
technical rules, to the extent that they are compatible with Union law, the
technical specifications shall be formulated in one of
the following ways:
(a)     in terms of performance or functional
requirements, including environmental characteristics, provided that the
parameters are sufficiently precise to allow tenderers to determine the
subject-matter of the contract and to allow contracting entities to award the
contract;
(b)     by reference to technical
specifications and, in order of preference, to national standards transposing
European standards, European technical approvals, common technical
specifications, international standards, other technical reference systems
established by the European standardisation bodies or - when those do not exist
- national standards, national technical approvals or national technical
specifications relating to the design, calculation and execution of the works
and use of the supplies; each reference shall be accompanied by the words
"or equivalent";
(c)     in terms of performance or functional
requirements referred to in point (a), with reference to the technical specifications
referred to in point (b) as a means of presuming conformity with such
performance or functional requirements;
(d)     by reference to the technical specifications
referred to in point (b) for certain characteristics, and by reference to the
performance or functional requirements referred to in point (a) for other
characteristics.
4.                      
Unless justified by the subject-matter of the
contract, technical specifications shall not refer to a specific make or
source, or to a particular process, or to trade marks, patents, types or a
specific origin or production with the effect of favouring or eliminating certain
undertakings or certain products. Such reference shall be permitted, on an
exceptional basis, where a sufficiently precise and intelligible description of
the subject-matter of the contract pursuant to paragraph 3 is not possible. Such
reference shall be accompanied by the words "or equivalent".
5.                      
Where a contracting entity uses the option of
referring to the specifications referred to in point (b) of paragraph 3, it shall
not reject a tender on the ground that the works, supplies and services
tendered for do not comply with the specifications to which it has referred,
once the tenderer proves in its tender, by whatever appropriate means,
including the means of proof referred to in Article 56, that the solutions
which it proposes satisfy in an equivalent manner the requirements defined by
the technical specifications.
6.                      
Where a contracting entity uses the option
provided for in point (a) of paragraph
3 to formulate technical specifications in terms of performance or functional requirements, it shall not
reject a tender for supplies, services or works which comply with a national
standard transposing a European standard, with a European technical approval, a
common technical specification, an international standard, or a technical
reference system established by a European standardisation body, where those
specifications address the performance or functional requirements which it has
laid down.
In its tender, the tenderer shall prove by any
appropriate means including those referred to in Article 56, that the supplies,
service or work in compliance with the standard meets the performance or
functional requirements of the contracting entity.
Article 55
Labels
1.                      
Where contracting entities lay down environmental, social or other
characteristics of a works, service or supply in terms of performance or functional requirements as referred to
in point (a) of Article 54 paragraph 3, they may require that those works,
supplies or services bear a specific label, provided that all of the following conditions are fulfilled:
(a)         
the requirements for the label only concern characteristics which are linked to the
subject-matter of the contract and are appropriate to define the
characteristics of the works, supplies or services that are the subject-matter of
the contract;
(b)         
the requirements for the label are drawn up on the
basis of scientific information or based on other objectively verifiable and
non-discriminatory criteria;
(c)         
the labels are established in an open and
transparent procedure in which all stakeholders, including government bodies,
consumers, manufacturers, distributors and environmental organisations may
participate, 
(d)         
the labels are accessible to all interested parties;
(e)         
the criteria of the label are set by a third party
which is independent from the economic operator applying for the label. 
Contracting entities requiring a specific label shall accept all equivalent labels that
fulfil the requirements of the label indicated by the contracting entities. For
products that do not bear the label, contracting entities shall also accept a
technical dossier of the manufacturer or other appropriate means of proof.
2.                      
Where a label fulfils the conditions of provided
in points (b), (c), (d) and (e) of paragraph 1 but also sets outs out
requirements not linked to the subject-matter of the contract, contracting
entities may use those of the detailed specifications of that label, or, if
necessary, parts thereof, that are linked to the subject-matter of the contract
and are appropriate to define characteristics of this subject-matter.
Article 56
Test reports, certification and other means of proof.
1.                      
Contracting entities may require that economic
operators provide a test report from a recognised body or a certificate issued
by such a body as means of proof of conformity with the technical specifications.

Where contracting entities require the submission
of certificates drawn up by recognised bodies attesting conformity with a
particular technical specification, certificates from
equivalent other recognised bodies shall also be accepted by the contracting
entities. 
2.                      
Contracting entities shall accept other
appropriate means of proof than those referred to in paragraph 1, such as a
technical dossier of the manufacturer where the economic operator concerned has
no access to such certificates or test reports referred to in paragraph 1, or
no possibility of obtaining them within the relevant time limits.
3.                      
"Recognised bodies" within the meaning
of paragraph 1 of this Article
shall be test and calibration laboratories, and any certification and
inspection bodies accredited in accordance with
Regulation (EC) No 765/2008 of the European Parliament and of the Council[48].
4.                      
Member States shall make available to other Member
States, upon request, any information related to the evidence and documents submitted
in accordance with Article 54(6), Article 55 and paragraphs 1, 2 and 3 of this
Article to prove compliance with technical requirements. The competent
authorities of the Member State of establishment shall provide this information
in accordance with Article 96.
Article 57
Communication of technical specifications
1.                      
On request from economic operators interested in
obtaining a contract, contracting entities shall make available the technical
specifications regularly referred to in their supply, works or service
contracts, or the technical specifications which they intend to apply to
contracts for which the call for competition is a periodic indicative notice. Those
specifications shall be made available by electronic means through unrestricted and full direct access free of charge. 
2.                      
Where the technical specifications are based on
documents available by electronic means through unrestricted
and full direct access free of charge to interested
economic operators, the inclusion of a reference to those documents shall be
sufficient.
Article 58
Variants
1.                      
Contracting entities may take account of
variants which are submitted by a tenderer and meet the minimum requirements
specified by the contracting entities.
Contracting entities shall indicate in the
specifications whether or not they authorise variants and, if so, the minimum
requirements to be met by the variants and any specific requirements for their
presentation. Where variants are authorised, they shall
also ensure that the chosen award criteria can be usefully applied to variants
meeting those minimum requirements as well as to conforming tenders which are
not variants.
2.                      
In procedures for awarding supply or service
contracts, contracting entities that have authorised variants shall not reject
a variant on the sole ground that it would, where successful, lead either to a
service contract rather than a supply contract or to a supply contract rather
than a service contract.
Article 59
Division of contracts into lots 
1.                      
Contracts may be subdivided into homogenous or
heterogeneous lots. Article 13(7) applies.
Contracting entities shall indicate, in the
contract notice, in the
invitation to confirm interest, or, where the means of calling for competition is a notice on the
existence of a qualification system, in the invitation to tender or to
negotiate, whether tenders are limited to one or more lots only.
2.                      
Contracting entities may, even where the
possibility to tender for all lots has been indicated, limit the number of lots
that may be awarded to a tenderer provided that the maximum number is stated in
the contract notice or in the invitation to confirm interest. Contracting
entities shall determine and indicate in the procurement documents the
objective and non-discriminatory criteria or rules for awarding the different
lots where the application of the chosen award criteria would result in the
award to one tenderer of more lots than the maximum number. 
3.                      
Where more than one lot may be awarded to the
same tenderer, contracting entities may provide that they will either award a
contract per lot or one or more contracts, covering several or all lots. 
Contracting entities shall specify in the procurement
documents whether they reserve the right to make such a choice and, if so,
which lots may be grouped together under one contract.
Contracting entities shall first determine the
tenders fulfilling best the award criteria set out pursuant to Article 76 for
each individual lot. They may award a contract for more than one lot to a
tenderer that is not ranked first in respect of all individual lots covered by
this contract, provided that the award criteria set out pursuant to Article 76
are better fulfilled with regard to all the lots covered by that contract.
Contracting entities shall specify the methods they intend to use for such
comparison in the procurement documents. Such methods shall be transparent,
objective and non-discriminatory.
4.                      
Contracting entities may require that all
contractors coordinate under the direction of the economic operator to which a
lot involving the coordination of the entire project or its relevant parts has
been awarded.
Article 60
Setting time limits
1.                      
When fixing the time limits for requests to
participate and the receipt of tenders, contracting entities shall take
particular account of the complexity of the contract and the time required for
drawing up tenders, without prejudice to the minimum time limits set out in
Articles 39 to 44.
2.                      
Where tenders can be made only after a visit to
the site or after on-the-spot inspection of the documents supporting the procurement
documents, the time limits for the receipt of tenders shall be extended, so
that all economic operators concerned may be aware of all the information
needed to produce tenders.
Section 2
Publication and transparency
Article 61
Periodic indicative notices
1.                      
Contracting entities may make known their
intentions of planned procurement through the publication of a periodic
indicative notice as soon as possible after the beginning of the budgetary
year. Those notices shall contain the information set out in part A, section I
of Annex VI. They shall be published either by the Commission
or by the contracting entities on their buyer profilesin accordance with point
2(b) of Annex IX. Where the notice is published by the
contracting entities on their buyer profile, they shall
send a notice of the publication of the periodic indicative notice on a buyer
profile in accordance with point 3 of Annex IX.
2.                      
When a call for competition is made by means of
a periodic indicative notice in respect of restricted procedures and negotiated
procedures with prior call for competition, the notice shall meet all the
following requirements:
(a)         
it refers specifically to the supplies, works or
services that will be the subject of the contract to be awarded;
(b)         
it indicates that the contract will be awarded
by restricted or negotiated procedure without further publication of a call for
competition and invite interested economic operators to express their interest
in writing; 
(c)         
it contains, in addition to the information set
out in part A, section I of Annex VI, the information set out in part A,
section II of Annex VI;
(d)         
it has been published not more than 12 months
prior to the date on which the invitation to confirm interest is sent.
Article 62
Notices on the existence of a qualification system
Where contracting entities choose to set up
a qualification system in accordance with Article 71,
the system shall be the subject of a notice as referred to in Annex X,
indicating the purpose of the qualification system and how to have access to
the rules concerning its operation. Where the system is of a duration greater
than three years, the notice shall be published annually. Where the system is
of a shorter duration, an initial notice shall suffice.
Article 63
Contract notices
Contract notices may be used as a means of
calling for competition in respect of all procedures. They shall contain the
information set out in the relevant part of Annex XI and shall be published in
accordance with Article 65.
Article 64
Contract award notices
1.                      
Within two months of the award of a contract or
the conclusion of a framework agreement, contracting entities shall send a
contract award notice on the results of the procurement
procedure.
Such notice shall contain the information set
out in Annex XII and shall be published in accordance with Article 65.
2.                      
Where the call for competition for the contract
concerned has been made in the form of a periodic indicative notice and the
contracting entity does not intend to award further contracts during the 12
month period covered by the periodic indicative notice, the contract award
notice shall contain a specific indication to that effect.
In the case of framework agreements concluded
in accordance with Article 45, contracting entities shall not be bound to send
a notice of the results of the procurement procedure for each contract based on
that agreement.
Contracting entities shall send a contract
award notice within two months after the award of each contract based on a
dynamic purchasing system. They may, however, group such notices on a quarterly
basis. In that case, they shall send the grouped notices within two months of
the end of each quarter.
3.                      
The information provided in accordance with
Annex XII and intended for publication shall be published in accordance with
Annex IX. Certain information on the contract award or
the conclusion of the framework agreement may be withheld from publication where its release would impede law enforcement or otherwise be
contrary to the public interest or would prejudice the legitimate commercial
interests of a particular economic operator, public or private, including the
interests of the economic operator to whom the contract has been awarded, or
might prejudice fair competition between economic operators.
In the case of contracts for
research-and-development services ("R&D services"), the
information concerning the nature and quantity of the services may be
respectively limited to:
(a)         
the indication "R&D services"
where the contract has been awarded by a negotiated procedure without a call
for competition in accordance with Article 44(b);
(b)         
at least as detailed information as was
indicated in the notice that was used as a means of calling for competition.
4.                      
Information provided in accordance with Annex XII
and marked as not being intended for publication shall be published only in
simplified form and in accordance with Annex IX for statistical purposes.
Article 65
Form and manner of publication of notices
1.                      
Notices referred to in Articles 61 to 64 shall
include the information set out in Annexes XI, X, VI A, VI B and XII and in the
format of standard forms, including standard forms for
corrigenda. 
The Commission shall
establish those standard forms. Those implementing acts shall be adopted in accordance with the advisory procedure
referred to in Article 100.
2.                      
Notices referred to in
Articles 61 to 64 shall be drawn up, transmitted by
electronic means to the Commission and published in accordance with Annex IX. Notices shall be published not later than five days after
they are sent. The costs of publication of the notices by the Commission shall
be borne by the Union.
3.                      
Calls for competition within the meaning of
Article 39(2) shall be published in full in an official language of the Union
as chosen by the contracting entity. That language version shall constitute the
sole authentic text. A summary of the important elements of each notice shall
be published in the other official languages.
4.                      
The Commission shall ensure that the full text
and the summary of periodic indicative notices referred to in Article 61(2),
calls for competition setting up a dynamic purchasing system as referred to in
Article 46(3)(a) and notices on the existence of a qualification system used as
a means of calling for competition in accordance with Article 39(2)(b) continue
to be published:
(a)         
in the case of periodic indicative notices for 12
months or until receipt of a contract award notice as provided for in Article 64
(2) indicating that no further contracts will be awarded during the 12 month
period covered by the call for competition;
(b)         
in the case of calls for competition setting up
a dynamic purchasing system for the period of validity of the dynamic
purchasing system;
(c)         
in the case of notices on the existence of a qualification
system for its period of validity.
5.                      
Contracting entities shall be able to supply proof
of the dates on which notices are dispatched.
The Commission shall give the contracting
entity confirmation of the receipt of the notice and of
the publication of the information sent, indicating the
date of that publication. Such confirmation shall constitute proof of
publication.
6.                      
Contracting entities may publish notices for
works, supply or service contracts that are not subject to the publication
requirements laid down in this Directive provided that those
notices are sent to the Commission by electronic means in accordance with the
format and procedures for transmission indicated in Annex IX.
Article 66
Publication at national level
1.                      
Notices referred to in Articles 61 to 64 and the
information contained therein shall
not be published at national level before the publication
pursuant to Article 65.
2.                      
Notices published at national level shall not
contain information other than that contained in the notices dispatched to the Commission
or published on a buyer profile, but shall indicate the date of dispatch of the
notice to the Commission or its publication on the buyer profile.
3.                      
Periodic indicative notices shall not be
published on a buyer profile before the dispatch to the Commission of the
notice of their publication in that form; they shall indicate the date of that
dispatch.
Article 67
Electronic availability of procurement documents
1.                      
Contracting entities shall offer unrestricted
and full direct access free of charge by electronic means to the procurement documents
from the date of publication of the notice in accordance withArticle 65 or the
date on which the invitation to confirm interest is sent. Where the means of
calling for competition is a notice on the existence of a qualification system,
such access shall be offered as soon as possible and at the latest when the
invitation to tender or to negotiate is sent. The text of the notice or of those
invitations shall specify the internet address at which this documentation is
accessible.
2.                      
Provided that it has been requested in good
time, the contracting entities or competent departments shall supply additional
information relating to the specifications and any
supporting documents not later than six days before the
time limit fixed for the receipt of tenders. In the
event of an accelerated open procedure as referred to in Article 40(3), that
period shall be four days. 
Article 68
Invitations to submit a tender or to negotiate;
invitations to confirm interest
1.                      
In restricted procedures,
innovation partnerships and negotiated procedures with
prior call for competition, contracting entities shall simultaneously and in
writing invite the selected candidates to submit their tenders or to negotiate.
Where a periodic indicative notice is used as a
call for competition pursuant to point (a) of Article 39(2), contracting entities
shall simultaneously and in writing invite the economic
operators having expressed their interest to confirm their continuing interest.
2.                      
The invitations referred
to in paragraph 1 shall include a reference to the electronic address on which the specifications
and any other supporting document have been made directly available by
electronic means. In addition, they shall include the information set out in
Annex XIII.
Article 69
Informing applicants for qualification, candidates and tenderers
1.                      
Contracting entities shall as soon as possible
inform each candidate and tenderer of decisions reached concerning the
conclusion of a framework agreement, the award of the contract, or admission to
a dynamic purchasing system, including the grounds for any decision not to
conclude a framework agreement or award a contract for which there has been a
call for competition or to recommence the procedure, or not to implement a
dynamic purchasing system.
2.                      
On request from the party concerned, contracting
entities shall, as soon as possible, and in any case
within 15 days from receipt of a written request,
inform:
(a)         
any unsuccessful candidate of the reasons for
the rejection of its request to participate;
(b)         
any unsuccessful tenderer of the reasons for the
rejection of its tender, including, for the cases referred to in Article 54(5)
and (6), the reasons for their decision of non-equivalence or their decision
that the works, supplies or services do not meet the performance or functional
requirements;
(c)         
any tenderer that has made an admissible tender
of the characteristics and relative advantages of the tender selected, as well
as the name of the successful tenderer or the parties to the framework
agreement;
(d)         
any tenderer that has made an admissible tender
of the conduct and progress of negotiations and dialogue with tenderers.
3.                      
Contracting entities may decide that certain
information on the contract award or the conclusion of the framework agreement
or the admission to a dynamic purchasing system, referred to in paragraph 1, is
to be withheld where its release would impede law enforcement or otherwise be
contrary to the public interest or would prejudice the legitimate commercial
interests of a particular economic operator, public or private, including the
interests of the economic operator to whom the contract has been awarded, or
might prejudice fair competition between economic operators.
4.                      
Contracting entities which establish and operate
a system of qualification shall inform applicants of their decision as to
qualification within a period of six months.
If the decision will take longer than four
months from the presentation of an application, the contracting entity shall
inform the applicant, within two months of the application, of the reasons
justifying the longer period and of the date by which his application will be
accepted or refused.
5.                      
Applicants whose qualification is refused shall
be informed of this decision and the reasons for refusal as soon as possible
and under no circumstances more than 15 days later than the date of the decision.
The reasons shall be based on the criteria for qualification referred to in
Article 71(2).
6.                      
Contracting entities which establish and operate
a system of qualification may bring the qualification of an economic operator
to an end only for reasons based on the criteria for qualification referred to
in Article 71(2). Any intention to bring qualification to an end shall be
notified in writing to the economic operator beforehand, at least 15 days
before the date on which qualification is due to end, together with the reason
or reasons justifying the proposed action.
section 3
Choice of participants and award of contracts
Article 70
General principles
1.                      
For the purpose of selecting participants in
their procurement procedures, the following cumulative rules apply:
(a)         
contracting entities having provided rules and
criteria for the exclusion of tenderers or candidates in accordance with
Article 72(1) or Article 74(2) shall exclude economic operators identified in
accordance with such rules and fulfilling such criteria;
(b)         
they shall select tenderers and candidates in
accordance with the objective rules and criteria laid down pursuant to Articles
72 and 74;
(c)         
in restricted procedures, in negotiated
procedures with a call for competition and in innovation partnerships, they
shall where appropriate reduce in accordance with Article 72(2) the number of
candidates selected pursuant to points (a) and (b) of this paragraph.
2.                      
When a call for competition is made by means of
a notice on the existence of a qualification system and for the purpose of
selecting participants in procurement procedures for the specific contracts
which are the subject of the call for competition, contracting entities shall:
(a)         
qualify economic operators in accordance with
Article 71;
(b)         
apply to such qualified economic operators those
provisions of paragraph 1 that are relevant to restricted or negotiated
procedures or to innovation partnerships.
3.                      
When selecting participants for a restricted or
negotiated procedure or an innovation partnership, in reaching their decision
as to qualification or when the criteria and rules are being updated,
contracting entities shall not:
(a)         
impose administrative, technical or financial
conditions on certain economic operators which would not be imposed on others;
(b)         
require tests or evidence which would duplicate
objective evidence already available.
4.                      
Contracting entities shall verify that the
tenders submitted by the selected tenderers comply with the rules and
requirements applicable to tenders and award the contract on the basis of the
criteria laid down in Articles 76 and 79, taking into account Article 58.
5.                      
Contracting entities may decide not to award a
contract to the tenderer submitting the best tender where they have established
that the tender does not comply, at least in an equivalent manner, with
obligations established by Union legislation in the field of social and labour
law or environmental law or of the international social
and environmental law provisions listed in Annex XIV.
6.                      
In open procedures, contracting entities may
decide to examine tenders before verifying the suitability of tenderers,
provided that the relevant provisions of Articles 70 to 79 are observed,
including the rule that the contract shall not be awarded to a tenderer who
should have been excluded pursuant to Article 74 or who does not meet the
selection criteria set out by the contracting entity in accordance with Article
72(1) and Article 74.
7.                      
The Commission shall be empowered to adopt
delegated acts in accordance with Article 98 to amend the list in Annex XIV, where
necessary due to the conclusion of new international agreements or modification
of existing international agreements.
Subsection 1
Qualification and qualitative selection
Article 71
Qualification systems
1.                      
Contracting entities which so wish may establish
and operate a system of qualification of economic operators.
Contracting entities which establish or operate
a system of qualification shall ensure that economic operators are at all times
able to request qualification.
2.                      
The system under paragraph 1 may involve
different qualification stages.
Contracting entities shall establish objective
rules and criteria for the exclusion and selection of economic operators requesting qualification and objective
criteria and rules for the operation of the qualification system, covering
matters such as inscription in the system, periodic updating of the
qualifications, if any, and the duration of the system.
Where those criteria and rules include
technical specifications, Articles 54 to 56 shall apply. The criteria and rules
may be updated as required.
3.                      
The criteria and rules referred to in paragraph
2 shall be made available to economic operators on request. Those those updated
criteria and rules shall be communicated to interested economic operators.
Where a contracting entity considers that the
qualification system of certain other entities or bodies meets its
requirements, it shall communicate to interested economic operators the names
of such other entities or bodies.
4.                      
A written record of qualified economic operators
shall be kept; it may be divided into categories according to the type of
contract for which the qualification is valid.
5.                      
When a call for competition is made by means of
a notice on the existence of a qualification system, specific contracts for the
works, supplies or services covered by the qualification system shall be
awarded by restricted procedures or negotiated procedures, in which all tenderers
and participants are selected among the candidates already qualified in
accordance with such a system.
6.                      
Any charges that are billed in connection with
requests for qualification or with updating or conserving an already obtained
qualification pursuant to the system shall be proportionate to the generated costs.
Article 72
Criteria for qualitative selection
1.                      
Contracting entities may establish objective
rules and criteria for the exclusion and selection of
tenderers or candidates; those rules and criteria shall be available to interested economic operators.
2.                      
Where contracting entities need to ensure an
appropriate balance between the particular characteristics of the procurement
procedure and the resources required to conduct it, they may, in restricted or
negotiated procedures or in innovation partnerships, establish objective rules
and criteria that reflect this need and enable the contracting entity to reduce
the number of candidates that will be invited to tender or to negotiate. The
number of candidates selected shall, however, take account of the need to
ensure adequate competition.
Article 73
Reliance on the capacities of other entities
1.                      
Where the objective rules and criteria for the exclusion and selection of economic
operators requesting qualification in a qualification system include
requirements relating to the economic and financial
capacity of the economic operator, or to its technical and professional
abilities, the economic operator may where necessary rely on the capacity of
other entities, whatever the legal nature of the link between itself and those
entities. In this case the economic operator shall prove to the contracting
entity that those resources will be available to it throughout the period of
the validity of the qualification system, for example by producing an
undertaking by those entities to that effect. In the case of economic and
financial standing, contracting entities may require that the economic operator
and those entities are jointly liable for the execution of the contract.
Under the same conditions, a group of economic
operators as referred to in Article 30 may rely on the capacity of participants
in the group or of other entities.
2.                      
Where the objective rules and criteria for the exclusion and selection of
candidates and tenderers in open, restricted or negotiated procedures or in
innovation partnerships include requirements relating to the economic and financial capacity of the economic operator, or to
its technical and professional abilities the economic operator may where
necessary and for a particular contract rely on the capacity of other entities,
whatever the legal nature of the link between itself and those entities. In
this case the economic operator shall prove to the contracting entity that the
necessary resources will be available to it, for example by delivering an
undertaking by those entities to that effect. In the case of economic and
financial standing, contracting entities may require that the economic operator
and those entities are jointly liable for the execution of the contract. 
Under the same conditions, a group of economic
operators as referred to in Article 30 may rely on the capacities of
participants in the group or of other entities.
3.                      
In the case of works contracts, service
contracts and siting and installation operations in the context of a supply
contract, contracting entities may require that certain critical tasks be
performed directly by the tenderer itself or, where a tender is submitted by a
group of economic operators as referred to in Article 30, a participant in the
group.
Article 74
Use of exclusion grounds and selection criteria provided for under [Directive 2004/18]
1.                      
The objective rules and
criteria for the exclusion and selection of economic operators requesting qualification in a qualification system and the objective
rules and criteria for the exclusion and selection of candidates and tenderers in open, restricted or negotiated
procedures or in innovation partnerships may include
the exclusion grounds listed in Article 55 of Directive 2004/18 on the terms
and conditions set out therein.
Where the contracting entity is a contracting
authority, those criteria and rules shall include the exclusion grounds listed in Article 55(1) and (2) of
Directive 2004/18 on the terms and conditions set out in that Article. 
2.                      
The criteria and rules referred to in paragraph
1 may include the selection criteria set out in Article 56 of Directive
2004/18/EC on the terms and conditions set out therein, notably as regards the
limits to requirements concerning yearly turnovers, as provided for under the
second subparagraph of paragraph 3 of that Article.
3.                      
For the purpose of applying paragraphs 1 and 2
of this Article, Articles 57 to 60 of Directive 2004/18/EC shall apply.
Article 75
Quality assurance standards and environmental
management standards
1.                      
Where they request the production of
certificates drawn up by independent bodies attesting that the economic
operator complies with certain quality assurance standards, including on accessibility for disabled persons, contracting entities shall refer to quality assurance systems based
on the relevant European standards series certified by bodies conforming to the
European standards series concerning certification.
Contracting entities shall recognise equivalent
certificates from bodies established in other Member States. They shall also
accept other evidence of equivalent quality assurance measures from economic
operators that have no access to such certificates, or
no possibility of obtaining them within the relevant time limits.
2.                      
Where contracting entities require the
production of certificates drawn up by independent bodies attesting that the economic
operator complies with certain environmental management
schemes or standards, they shall refer to the European Union Eco-Management and Audit Scheme (EMAS) or to other environmental management
schemes as recognized in accordance with Article 45 of Regulation (EC) No
1221/2009 of the European Parliament and of the Council[49] or other environmental management standards based on the relevant European
or international standards by accredited bodies.
Contracting entities shall recognise equivalent
certificates from bodies established in other Member States. They shall also
accept other evidence of equivalent environmental management measures from
economic operators that have no access to such
certificates, or no possibility of obtaining them within the relevant time
limits.
3.                      
Upon request, Member States shall make available
to other Member States, in accordance with Article 97, any information relating
to the documents produced as evidence of compliance with quality and
environmental standards referred to in paragraphs 1 and 2 of this Article.
Subsection 2
Award of the contract
Article 76
Contract award criteria
1.                      
Without prejudice to national laws, regulations
or administrative provisions on the remuneration of certain services, the
criteria on which contracting entities shall base the award of contracts shall
be one of the following:
(a)         
the most economically advantageous tender;
(b)         
the lowest cost.
Costs may be assessed, at the choice of the
contracting entity, on the basis of the price only or using a cost-effectiveness
approach, such as a life-cycle costing approach, under the conditions set out in
Article 77.
2.                      
The most economically advantageous tender referred to in point (a) of paragraph 1)
from the point of view of the contracting entity shall be identified on the basis
of criteria linked to the subject-matter of the contract in question.
Those criteria shall include in addition to the
price or costs referred to in point (b) of paragraph 1, other criteria linked
to the subject-matter of the contract in question, such as:
(a)         
quality, including technical merit, aesthetic
and functional characteristics, accessibility, design for all users,
environmental characteristics and innovative character;
(b)         
for service contracts and contracts involving
the design of works, the organisation, qualification and
experience of the staff assigned to performing the
contract in question may be taken into consideration, with the consequence
that, following the award of the contract, such staff may only be replaced with
the consent of the contracting entity which must verify that replacements ensure
equivalent organisation and quality;
(c)         
after-sales service and technical assistance, delivery
date and delivery period or period of completion, commitments with regard to
parts and security of supply;
(d)         
the specific process of production or provision
of the requested works, supplies or services or of any other stage of its life
cycle, as referred to in point 22 of Article 2, to the extent that those criteria are specified in accordance with paragraph 4 and they concern factors directly involved in those
processes and characterise the specific process of production or provision of
the requested works, supplies or services.
3.                      
Member States may provide that the award of
certain types of contracts shall be based on the most economically advantageous
tender referred to in point (a) of paragraph 1 and in paragraph 2.
4.                      
Award criteria shall not confer an unrestricted
freedom of choice on the contracting entity. They shall ensure the possibility
of effective competition and shall be accompanied by requirements which allow the
information provided by the tenderers to be effectively verified. Contracting
entities shall verify effectively, on the basis of the information and proof
provided by the tenderers, whether the tenders meet the award criteria.
5.                      
In the case referred to in point (a) of
paragraph 1, the contracting entity shall specify the relative weighting which
it gives to each of the criteria chosen to determine the most economically
advantageous tender.
Those weightings may be expressed by providing
for a range with an appropriate maximum spread.
Where weighting is not possible for objective
reasons, the contracting entity shall indicate the criteria in descending order
of importance.
The relative weighting or order of importance
shall be specified, as appropriate, in the notice used as a means of calling
for competition, in the invitation to confirm interest, in the invitation to
tender or to negotiate, or in the specifications.
Article 77
Life-cycle costing
1.                      
Life-cycle costing shall to the extent relevant cover
the following costs over the life cycle of a product, service or works as
defined in point 22 of Article 2: 
(a)         
internal costs, including costs relating to
acquisition, such as production costs, use, such as energy consumption,
maintenance costs and end of life, such as collection and recycling costs and
(b)         
external environmental costs directly linked to
the life cycle, provided their monetary value can be determined and verified,
which may include the cost of emissions of greenhouse gases and of other
pollutant emissions and other climate change mitigation costs.
2.                      
Where contracting entities assess the costs
using a life-cycle costing approach, they shall indicate in the procurement
documents the methodology used for the calculation of the life-cycle costs. The
methodology used must fulfil all of the following conditions:
(a)         
it has been drawn up on the basis of scientific
information or is based on other objectively verifiable and non-discriminatory
criteria;
(b)         
it has been established for repeated or continuous
application;
(c)         
it is accessible to all interested parties.
Contracting entities shall allow economic
operators, including economic operators from third countries, to apply a
different methodology for establishing the life-cycle costs of their offer,
provided that they prove that this methodology complies with the requirements
set out in points a, b and c and is equivalent to the methodology indicated by
the contracting entity.
3.                      
Whenever a common methodology for the calculation
of life-cycle costs is adopted as part of a legislative act of the Union,
including by delegated acts pursuant to sector specific legislation, it shall
be applied where life-cycle costing is included in the award criteria referred
to in Article 76 (1). 
A list of such legislative and delegated acts is
set out in Annex XV. The Commission, shall be empowered to adopt delegated acts
in accordance with Article 98 concerning the update of this list, when on the
basis of the adoption of new legislation, repeal or modification of such
legislation, such amendments prove necessary.
Article 78
Impediments to award 
Contracting entities shall not conclude the
contract with a successful tenderer where one of the following conditions is
fulfilled:
(a)                   
the tenderer is not able to provide the
certificates and documents required pursuant to Article 74(3);
(b)                   
the declaration provided by the tenderer pursuant
to Article 37 is false;
(c)                   
the declaration provided by the tenderer pursuant
to Article 36(3)(b) is false.
Article 79
Abnormally low tenders
1.                      
The contracting entity shall request economic
operators to explain the price or costs charged, where
all of the following conditions are fulfilled: 
(a)         
the price or cost charged is more than 50 %
lower than the average price or costs of the remaining tenders;
(b)         
the price or cost charged is more than 20 %
lower than the price or costs of the second lowest tender;
(c)         
at least five tenders have been submitted.
2.                      
Where tenders appear to be abnormally low for
other reasons, contracting entities may also request such explanations.
3.                      
The explanations referred to in paragraphs 1 and
2 may in particular relate to:
(a)         
the economics of the manufacturing process, of
the services provided and of the construction method;
(b)         
the technical solutions chosen or any
exceptionally favourable conditions available to the tenderer for the supply of
the goods or services or for the execution of the work; 
(c)         
the originality of the supplies, services or
work proposed by the tenderer;
(d)         
compliance, at least in an
equivalent manner, with obligations established by
Union legislation in the field of social and labour law or environmental law or
of the international social and environmental law provisions listed in Annex XIV or, where not applicable, with
other provisions ensuring an equivalent level of protection;
(e)         
the possibility of the tenderer obtaining State
aid.
4.                      
The contracting entity shall verify the
information provided by consulting the tenderer. 
It may only reject the tender where the
evidence does not justify the low level of price or costs charged, taking into
account the elements referred to in paragraph 3.
Contracting entities shall reject the tender,
where they have established that the tender is abnormally low because it does
not comply with obligations established by Union legislation in the field of
social and labour law or environmental law or by the
international social and environmental law provisions listed in Annex XIV.
5.                      
Where a contracting entity establishes that a tender is abnormally low
because the tenderer has obtained State aid, the tender may be rejected on that
ground alone only after consultation with the tenderer where the latter is
unable to prove, within a sufficient time limit fixed by the contracting
entity, that the aid in question was compatible with
the internal market within the meaning of Article 107 of the Treaty. Where the contracting entity rejects a tender in those
circumstances, it shall inform the Commission thereof.
6.                      
Upon request, Member States shall make available
to other Member States, in accordance with Article 97, any information relating
to the evidence and documents produced in relation to details listed in
paragraph 3.
Chapter IV
Contract performance
Article 80
Conditions for performance of contracts 
Contracting entities may lay down special
conditions relating to the performance of a contract, provided that they are
indicated in the call for competition or in the specifications. Those conditions
may, in particular, concern social and environmental
considerations. They may also include the requirement
that economic operators foresee compensations for risks
of price increases that are the result of price
fluctuations (hedging) and that
could substantially impact the performance of a contract.
Article 81
Subcontracting
1.                      
In the procurement documents, the contracting
entity may ask, or may be required by a Member State to ask, the tenderer to
indicate in its tender any share of the contract it may intend to subcontract
to third parties and any proposed subcontractors.
2.                      
Member States may provide that, at the request
of the subcontractor and where the nature of the contract so allows, the
contracting entity shall transfer due payments directly to the subcontractor
for services, supplies or works provided to the main contractor. In such case,
Member States shall put in place appropriate mechanisms permitting the main
contractor to object to undue payments. The arrangements concerning that mode
of payment shall be set out in the procurement documents.
3.                      
Paragraphs 1 and 2 shall be without prejudice to
the question of the principal economic operator's liability.
Article 82
Modification of contracts during their term
1.                      
A substantial modification of the provisions of
a works, supply or service contract during its term shall be considered as a
new award for the purposes of this Directive and shall require a new procurement
procedure in accordance with this Directive.
2.                      
A modification of a contract during its term
shall be considered substantial within the meaning of paragraph 1, where it
renders the contract substantially different from the one initially concluded.
In any case, without prejudice to paragraph 3 and 4, a modification shall be
considered substantial where one of the following conditions is met: 
(a)         
the modification introduces conditions which,
had they been part of the initial procurement procedure, would have allowed for
the selection of other candidates than those initially selected or would have
allowed for awarding the contract to another tenderer;
(b)         
the modification changes the economic balance of
the contract in favour of the contractor;
(c)         
the modification extends the scope of the
contract considerably to encompass supplies, services or works not initially
covered.
3.                      
The replacement of the contractual partner shall
be considered a substantial modification within the meaning of paragraph 1. 
However, the first subparagraph shall not apply
in the event of universal or partial succession into the position of the
initial contractor, following corporate restructuring operations or insolvency,
of another economic operator that fulfils the criteria for qualitative
selection initially established provided that this does not entail other
substantial modifications to the contract and is not aimed at circumventing the
application of this Directive.
4.                      
Where the value of a modification can be
expressed in monetary terms, the modification shall not be considered to be
substantial within the meaning of paragraph 1, where its value does not exceed
the thresholds set out in Article 12 and where it is below 5% of the price of
the initial contract, provided that the modification does not alter the overall
nature of the contract. Where several successive modifications are made, the
value shall be assessed on the basis of the cumulative value of the successive
modifications.
5.                      
Contract modifications shall not be considered
substantial within the meaning ofparagraph 1 where they have been provided for
in the procurement documents in clear, precise and unequivocal review clauses
or options. Such clauses shall state the scope and nature of possible modifications
or options as well as the conditions under which they may be used. They shall
not provide for modifications or options that would alter the overall nature of
the contract. 
6.                      
By way of derogation from parapgraph 1, a
substantial modification shall not require a new procurement procedure where
the following cumulative conditions are fulfilled: 
(a)         
the need for modification has been brought about
by circumstances which a diligent contracting entity could not foresee; 
(b)         
the modification does not alter the overall
nature of the contract.
Contracting entities shall publish in the Official
Journal of the European Union a notice on such modifications. Such notices
shall contain the information set out in Annex XVI and be published in
accordance with Article 65. 
7.                      
Contracting entities shall not have recourse to
modifications of the contract in the following cases:
(a)         
where the modification would aim at remedying
deficiencies in the performance of the contractor or the consequences, which can
be remedied through the enforcement of contractual obligations;
(b)         
where the modification would aim at compensating
risks of price increases that have been hedged by the contractor.
Article 83
Termination of contracts
Member States shall ensure that contracting
entities have the possibility, under the conditions determined by the
applicable national contract law, to terminate a works, supply or service
contract during its term, where one of the following conditions is fulfilled:
(a)                   
the exceptions provided for in Article 21 cease
to apply following a private participation in the legal person awarded the
contract pursuant to Article 21 (4); 
(b)                   
a modification of the contract constitutes a new
award within the meaning of Article 82;
(c)                   
the Court of Justice of the European Union
finds, in a procedure under Article 258 of the Treaty, that a Member State has
failed to fulfil its obligations under the Treaties due to the fact that a
contracting entity belonging to that Member State has awarded the contract in
question without complying with its obligations under the Treaties and this
Directive.
TITLE III
PARTICULAR PROCUREMENT REGIMES
CHAPTER I
Social and other specific services 
Article 84
Award of contracts for social and other specific services
Contracts for social and other specific
services listed in Annex XVII shall be awarded in accordance with this Chapter
where the value of the contracts is equal to or greater than the threshold
indicated in Article 12(c).
Article 85
Publication of notices
1.                      
Contracting entities intending to award a
contract for the services referred to in Article 84 shall make known their
intention by means of a contract notice.
2.                      
Contracting entities that have awarded a
contract for the services referred to in Article 84 shall make known the
results by means of contract award notice.
3.                      
The notices refered to in paragraphs 1 and 2
shall contain the information referred to in Annex XVIII in accordance with the
standard model notices. The Commission shall establish the standard forms.
Those implementing acts shall be adopted in accordance with the advisory
procedure referred to in Article 100.
4.                      
The notices referred to in paragraphs 1 and 2
shall be published in accordance with Article 65.
Article 86
Principles of awarding contracts
1.                      
Member States shall put in place appropriate
procedures for the award of contracts subject to this Chapter, ensuring full compliance
with the principles of transparency and equal treatment of economic operators
and allowing contracting entities to take into account the specificities of the
services in question. 
2.                      
Member States shall ensure that contracting entities
may take into account the need to ensure quality, continuity, accessibility,
availability and comprehensiveness of the services, the specific needs of
different categories of users, the involvement and empowerment of users and
innovation. Member States may also provide that the choice of the service
provider shall not be made solely on the basis of the price for the provision
of the service.
CHAPTER II
RULES GOVERNING DESIGN CONTESTS
Article 87
General provisions
1.                      
The rules for the organisation of design contests
shall be in conformity with this Chapter and shall be made available to those
interested in participating in the contest.
2.                      
The admission of participants to design contests
shall not be limited:
(a)         
by reference to the territory or part of the
territory of a Member State;
(b)         
on the grounds that, under the law of the Member
State in which the contest is organised, they would be required to be either
natural or legal persons.
Article 88 
Scope
1.                      
This Chapter shall apply to design contests
organised as part of a procurement procedure for a service contract, provided
that the estimated value of the contract, net of VAT, and including any
possible prizes or payments to participants, is equal to or greater than the
amount set out in point (a) of Article 12. 
2.                      
This Chapter shall apply to all design contests
where the total amount of contest prizes and payments to participants,
including the estimated value net of VAT of the service contract which might
subsequently be concluded under point (k) of Article 44 if the contracting
entity does not exclude such an award in the contest notice, is equal to or
greater than the amount set out in point (a) of Article 12.
Article 89 
Notices
1.                      
Contracting entities that intend to organise a
design contest shall call for competition by means of a contest notice. Where they intend to award a subsequent service contract pursuant
to point (k) of Article 44, this shall be indicated in the design contest
notice. Contracting entities that have held a design
contest shall make the results known by means of a notice. 
2.                      
The call for competition shall include the
information set out in Annex XIX and the notice of the results of a design
contest shall include the information set out in Annex XX in the format of
standard forms. The Commission shall establish the
standard forms. Those implementing acts shall be adopted in accordance with the advisory procedure
referred to in Article 100.
The notice of the results of a design contest
shall be forwarded to the Commission within two months of the closure of the
design contest. 
Where release of information on the outcome of
the contest would impede law enforcement or otherwise be contrary to the public
interest or would prejudice the legitimate commercial interests of a particular
economic operator, public or private, including the interests of the economic
operator to whom the contract has been awarded, or might prejudice fair
competition between economic operators, such information may be withheld from publication.
3.                      
Paragraphs (2) to (6) of Article 65 shall also
apply to notices relating to design contests.
Article 90
Rules on the organisation of design contests, the selection of participants and
the jury
1.                      
When organising design
contests, contracting entities shall apply procedures which are adapted to this
Directive.
2.                      
Where design contests are restricted to a
limited number of participants, contracting entities shall establish clear and
non-discriminatory selection criteria. In any event, the number of candidates
invited to participate shall be sufficient to ensure genuine competition.
3.                      
The jury shall be composed exclusively of
natural persons who are independent of participants in the contest. Where a
particular professional qualification is required of participants in a contest,
at least a third of the jury members shall have the same qualification or an
equivalent qualification.
Article 91
Decisions of the jury
1.                      
The jury shall be autonomous in its decisions or
opinions.
2.                      
The jury shall examine the plans and projects
submitted by the candidates anonymously and solely on the basis of the criteria
indicated in the contest notice.
3.                      
The jury shall record its ranking of projects in
a report, signed by its members, made according to the merits of each project,
together with its remarks and any points that may need clarification.
4.                      
Anonymity shall be observed until the jury has
reached its opinion or decision.
5.                      
Candidates may be invited, if need be, to answer
questions that the jury has recorded in the minutes to clarify any aspects of
the projects.
6.                      
Complete minutes shall be drawn up of the
dialogue between jury members and candidates.
TITLE IV
GOVERNANCE
Article 92
Enforcement
In conformity with Council Directive
92/13/EEC, Member States shall ensure correct application of this Directive by
effective, available and transparent mechanisms which
complement the system in place for the review of decisions taken by contracting
entities.
Article 93
Public oversight
1.                      
Member States shall appoint a single independent
body responsible for the oversight and coordination of implementation activities
(hereinafter "the oversight body"). Member States shall inform the Commission
of their designation. 
All contracting entities shall be subject to such
oversight. 
2.                      
The competent authorities involved in the
implementation activities shall be organised in such a manner that conflicts of
interests are avoided. The system of public oversight shall be transparent. For
this purpose, all guidance and opinion documents and an annual report
illustrating the implementation and application of rules laid down in this
Directive shall be published. 
The annual report shall include the following:
(a)         
an indication of the success rate of small and
medium-sized enterprises (SMEs) in procurement; where the percentage is lower
than 50 % in terms of values of contracts awarded to SMEs, the report shall
provide an analysis of the reasons therefore;
(b)         
a global overview of the implementation of
sustainable procurement policies, including on procedures taking into account
considerations linked to the protection of the environment, social inclusion
including accessibility for persons with disabilities or fostering innovation;
(c)         
centralized data about reported cases of fraud,
corruption, conflict of interests and other serious irregularities in the field
of public procurement, including those affecting projects cofinanced by the
budget of the Union.
3.                      
The oversight body shall be responsible for the
following tasks:
(a)         
monitoring the application of public procurement
rules and the related practice by contracting entities and in particular by
central purchasing bodies;
(b)         
providing legal advice to contracting entities
on the interpretation of public procurement rules and principles and on the
application of public procurement rules in specific cases;
(c)         
issuing own initiative opinions and guidance on
questions of general interest pertaining to the interpretation and application
of public procurement rules, on recurring questions and on systemic
difficulties related to the application of public procurement rules, in the
light ofthe provisions of this Directive and of the relevant case-law of the
Court of Justice of the European Union;
(d)         
establishing and applying comprehensive, actionable
'red flag' indicator systems to prevent, detect and adequately report instances
of procurement fraud, corruption, conflict of interest and other serious
irregularities;
(e)         
drawing the attention of the national competent
institutions, including auditing authorities, to specific violations detected
and to systemic problems;
(f)           
examining complaints from citizens and businesses
on the application of public procurement rules in specific cases and transmitting
the analysis to the competent contracting entities, which shall have the
obligation to take it into account in their decisions or, where the analysis is
not followed, to explain the reasons for disregarding it;
(g)         
monitoring the decisions taken by national
courts and authorities following a ruling given by the Court of Justice of the
European Union on the basis of Article 267 of the Treaty or findings of the
European Court of Auditors establishing violations of Union public procurement
rules related to projects cofinanced by the Union; the
oversight body shall report to the European Anti-Fraud Office any infringement
to Union procurement procedures where these were related to contracts directly
or indirectly funded by the European Union.
The tasks referred to in point (e) shall be
without prejudice to the exercise of rights of appeal under national law or
under the system established on the basis of directive 92/13/EEC.
Member States shall empower the oversight body
to seize the jurisdiction competent according to national law for the review of
contracting entities' decisions where it has detected a violation in the course
of its monitoring and legal advising activity.
4.                      
Without prejudice to the general procedures and
working methods established by the Commission for its communications and
contacts with Member States, the oversight body shall act as a specific contact
point for the Commission when it monitors the application of Union law and the
implementation of the budget from the Union on the basis of Article 17 of the
Treaty on the European Union and Article 317 of the Treaty on the Functioning
of the European Union. It shall report to the Commission any violation of this
Directive in procurement procedures for the award of contracts directly or
indirectly funded by the Union.
The Commission may in particular refer to the
oversight body the treatment of individual cases where the contract is not yet
concluded or a review procedure can still be carried out. It may also entrust
the oversight body with the monitoring activities necessary to ensure the
implementation of the measures to which Member States are committed in order to
remedy a violation of Union public procurement rules and principles identified
by the Commission.
The Commission may require the oversight body
to analyse alleged breaches to Union public procurement rules affecting
projects co-financed by the budget of the Union. The Commission may entrust the
oversight body to follow-up certain cases and to ensure that the appropriate
consequences of breaches to Union public procurement rules affecting projects
co-financed are taken by the competent national authorities which will be
obliged to follow its instructions.
5.                      
The investigation and enforcement activities
carried out by the oversight body to ensure that contracting entities'
decisions comply with this Directive and the general principles of the Treaty
on the Functioning of the European Union shall not replace or prejudge the
institutional role of the Commission as guardian of the Treaty. When the Commission
decides to refer the treatment of an individual case, it shall also retain the
right to intervene in accordance withhe powers conferred to it by the Treaty.
6.                      
Contracting authorities shall transmit to the
national oversight body the full text of all concluded contracts with a a value
equal to or greater than
(a)         
1 000 000 EUR in the case of supply contracts or
service contracts;
(b)         
10 000 000 EUR in the case of works contracts.
7.                      
Without prejudice to the national law concerning
access to information, and in accordance with national and EU legislation on
data protection, the oversight body shall, upon written request, give unrestricted
and full direct access, free of charge, to the concluded contracts referred to
in paragraph 6. Access to certain parts of the contracts may be refused where
their disclosure would impede law enforcement or otherwise be contrary to the
public interest, would harm the legitimate commercial interests of economic
operators, public or private, or might prejudice fair competition between them.
Access to the parts that may be released shall
be given within a reasonable delay and no later than 45 days from the date of
the request. 
The applicants filing a request for access to a
contract shall not need to show any direct or indirect interest related to that
particular contract. The recipient of information should be allowed to make it
public.
8.                      
A summary of all the activities carried out by
the oversight body in accordance with paragraphs 1 to 7 shall be included in
the annual report mentioned in paragraph 2. 
Article 94
Individual reports on procedures for the award of
contracts
1.                      
Contracting entities shall keep appropriate
information on each contract, framework agreement and each time a dynamic
purchasing system is established. This information shall be sufficient to
permit them at a later date to justify decisions taken in connection with:
(a)         
the qualification and selection of economic
operators and the award of contracts;
(b)         
the use of negotiated procedures without a call
for competition by virtue of Article 44;
(c)         
the non-application of Chapters II to IV of
Title II by virtue of the derogations provided for in Chapters II and III of
Title I.
Contracting entities shall document the
progress of all procurement procedures, whether or not the
procedures are conducted by electronic means. To that end, they shall document all stages in the procurement
procedure, including all communications with economic operators and internal
deliberations, preparation of the tenders, dialogue or negotiation if any,
selection and award of the contract.
2.                      
The information shall be kept for at least four
years from the date of award of the contract so that the contracting entity
will be able, during that period, to provide the necessary information to the Commission or the national oversight body where they
so request it.
Article 95
National reporting
1.                      
The bodies established or appointed in
accordance with Article 93 shall forward to the Commission an implementation
and statistical report on each year, based on a standard form, not later than
31 October of the following year.
2.                      
The report referred to in paragraph 1 shall
contain at least the total value, broken down by category of activity to which Articles
5 to 11 refer, of the contracts awarded below the thresholds set out in Article
12 but which would be covered by this Directive if their value exceeded the
threshold. 
3.                      
Member States shall ensure that this report
contains at least the number and value of contracts
awarded, broken down by categories of activity to which
Articles 5 to 11 refer and any other information required to verify the proper application of the
Agreement. This shall include the
number and value of contracts awarded pursuant to a negotiated procedure
without a call for competition, broken down down according to the circumstances
referred to in Article 44 and by categories of activity to which Articles 5 to 11 refer. It shall also specify the Member State or third
country of the successful contractor. 
4.                      
The yearly report shall furthermore, for each of
the activities to which Articles 5 to 11 refers, contain a list of contracting
entities exercising the activity concerned, indicating for each entity the
unique identification number where such number is provided for in national
legislation. 
The Commission may periodically publish the
list of those contracting entities for information in the Official Journal
of the European Union.
5.                      
The Commission shall establish the standard form
for the drawing-up of the annual implementation and statistical report referred
to in paragraph 1. Those implementing acts shall be adopted in accordance with
the advisory procedure referred to in Article 100.
6.                      
The acts referred to under paragraph 5 shall
ensure that:
(a)         
in the interests of administrative
simplification, the statistical data may be collected on the basis of sampling,
provided that its representativeness is not jeopardised;
(b)         
the confidential nature of the information
provided is respected.
Article 96
Assistance to contracting entities and businesses
1.                      
Member States shall make available technical
support structures in order to provide legal and economic advice, guidance and
assistance to contracting entities in preparing and carrying out procurement
procedures. Member States shall also ensure that each contracting entity can
obtain competent assistance and advice on individual questions.
2.                      
With a view to improving access to public
procurement for economic operators, in particular SMEs, and in order to
facilitate correct understanding of the provisions of this Directive, Member
States shall ensure that appropriate assistance can be obtained, including by
electronic means or using existing networks dedicated to business assistance.
3.                      
Specific administrative assistance shall be
available to economic operators intending to participate in a procurement
procedure in another Member State. Such assistance shall at least cover
administrative requirements in the Member State concerned, as well as possible
obligations related to electronic procurement. 
Member States shall ensure that interested
economic operators have easy access to appropriate information on the
obligations relating to taxes, environmental protection and to social and
labour law obligations, which are in force in the Member State, in the region
or locality where the works are to be carried out or the services are to be
provided and which will be applicable to the works carried out on site or to
the services provided during the performance of the contract.
4.                      
For the purposes of paragraphs 1, 2 and 3,
Member States may appoint a single body or several bodies or administrative
structures. Member States shall ensure case due coordination between those
bodies and structures.
Article 97
Administrative cooperation
1.                      
Member States shall provide mutual assistance to
each other, and shall put in place measures for effective cooperation with one
another, in order to ensure exchange of information on issues referred to in
Articles 56, 75 and 79. They shall ensure the confidentiality of the
information which they exchange. 
2.                      
The competent authorities of all Member States
concerned shall exchange information in compliance with personal data
protection legislation provided for in Directives 95/46/EC of the European
Parliament and of the Council[50]
and 2002/58/EC of the European Parliament and of the Council[51]. 
3.                      
For the purposes of this Article, Member States
shall designate one or more liaison points, the contact details of which shall
be communicated to the other Member States, the oversight bodies and the Commission.
Member States shall publish and regularly update the list of liaison points.
The oversight body shall be in charge of the coordination of such liaison
points.
4.                      
The exchange of information shall take place via
the Internal Market Information system established pursuant to Regulation (EU)
N° XXX/XXXX of the European Parliament and Council[52] [proposal for a Regulation
of the European Pariliament and Council on the administrative cooperation
through the Internal Market Information System ('the IMI Regulation') COM(2011)522].
Member States shall supply information requested by other Member States within
the shortest possible period of time.
TITLE V
DELEGATED POWERS, IMPLEMENTING POWERS AND FINAL PROVISIONS
Article 98
Exercise of the delegation
1.                      
The power to adopt delegated acts is conferred
on the Commission subject to the conditions laid down in this Article. 
2.                      
The delegation of power referred to in Articles 4,
35, 33, 38, 25, 65, 70, 77, 85 and 95 shall be conferred on the Commission for
an indeterminate period of time from the [date of entry into force of this
Directive].
3.                      
The delegation of power referred to in Articles 4,
35, 33, 38, 25, 65, 70, 77, 85 and 95 may be revoked at any time by the
European Parliament or by the Council. A revocation decision shall put an end
to the delegation of the power specified in that decision. It shall take effect
the day following the publication of the decision in the Official Journal of
the European Union or at a later date specified therein. It shall not
affect the validity of any delegated acts already in force. 
4.                      
As soon as it adopts a delegated act, the Commission
shall notify it simultaneously to the European Parliament and to the Council. 
5.                      
A delegated act adopted pursuant to Article 98
shall enter into force only if no objection has been expressed either by the
European Parliament or by the Council within a period of 2 months of
notification of the act to the European Parliament and the Council or if,
before the expiry of that period, the European Parliament and the Council have
both informed the Commission that they will not object. That period shall be
extended by 2 months at the initiative of the European Parliament or the
Council.
Article 99
Urgency procedure
1.                      
Delegated acts adopted under this Article shall
enter into force without delay and shall apply as long as no objection is
expressed in accordance with paragraph 2. The notification of a delegated act to the European Parliament and to
the Council shall state the reasons for the use of the urgency procedure.
2.                      
Either the European Parliament or the Council
may object to a delegated act in accordance with the procedure referred to in
Article 98(5). In such a case, the Commission shall repeal the act without
delay following the notification of the decision to object by the European
Parliament or the Council.
Article 100
Committee procedure
1.                      
The Commission shall be
assisted by the Advisory Committee for Public Contracts established by Council
Decision 71/306/EEC[53]. That committee shall be a committee within the meaning of
Regulation (EU) No 182/2011.
2.                      
Where reference is made to this Article, Article
4 of Regulation (EU) No 182/2011 shall apply. 
Article 101
Transposition
1.                      
Member States shall bring into force the laws,
regulations and administrative provisions necessary to comply with this
Directive by 30 June 2014 at the latest. They shall forthwith communicate to the
Commission the text of those provisions.
When Member States adopt those measures, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2.                      
Member States shall communicate to the Commission
the text of the main provisions of national law which they adopt in the field
covered by this Directive.
Article 102
Repeal
Directive 2004/17/EC is hereby repealed with effect from 30 June 2014.
References to the repealed Directive shall
be construed as being made to this Directive and shall be read in accordance
with the correlation table in Annex XXI.
Article 103
Review
The Commission shall review the economic
effects on the internal market resulting from the application of the thresholds
set in Article 12 and report thereon to the European Parliament and the Council
by 30 June 2017. 
In the event of any change to the threshold
amounts applicable under the Agreement, the report shall, if appropriate, be
followed by a legislative proposal amending the thresholds set out in this
Directive.
Article 104
Entry into force
This Directive shall enter into force on
the twentieth day following that of its publication in the Official Journal of the European Union.
Article 105
Addressees
This Directive is addressed to the Member
States.
Done at Brussels, 
For the European Parliament                       For
the Council
The President                                                 The
President
ANNEX I
LIST OF ACTIVITIES AS SET OUT IN POINT 8(a) OF ARTICLE 2
In the event of any difference of
interpretation between the CPV and the NACE, the CPV nomenclature will apply.
 NACE(1) || CPV code 
 SECTION F || CONSTRUCTION 
 Division || Group || Class || Subject || Notes 
 45 ||   ||   || Construction || This division includes: construction of new buildings and works, restoring and common repairs. || 45000000 
   || 45.1 ||   || Site preparation ||   || 45100000 
   ||   || 45.11 || Demolition and wrecking of buildings; earth moving || This class includes: — demolition of buildings and other structures, — clearing of building sites, — earth moving: excavation, landfill, levelling and grading of construction sites, trench digging, rock removal, blasting, etc. — site preparation for mining: — overburden removal and other development and preparation of mineral properties and sites. This class also includes: — building site drainage. — drainage of agricultural or forestry land. || 45110000 
   ||   || 45.12 || Test drilling and boring || This class includes: — test drilling, test boring and core sampling for construction, geophysical, geological or similar purposes. This class excludes: — drilling of production oil or gas wells, see 11.20. — water well drilling, see 45.25, — shaft sinking, see 45.25, — oil and gas field exploration, geophysical, geological and seismic surveying, see 74.20. || 45120000 
   || 45.2 ||   || Building of complete constructions or parts thereof; civil engineering ||   || 45200000 
   ||   || 45.21 || General construction of buildings and civil engineering works || This class includes: — construction of all types of buildings construction of civil engineering constructions, — bridges, including those for elevated highways, viaducts, tunnels and subways, — long-distance pipelines, communication and power lines, — urban pipelines, urban communication and power lines, — ancillary urban works, — assembly and erection of prefabricated constructions on the site. This class excludes: — service activities incidental to oil and gas extraction, see 11.20, — erection of complete prefabricated constructions from self-manufactured parts not of concrete, see divisions 20, 26 and 28, — construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations, see 45.23, — building installation, see 45.3, — building completion, see 45.4, — architectural and engineering activities, see 74.20, — project management for construction, see 74.20. || 45210000 Except: -45213316 45220000 45231000 45232000 
   ||   || 45.22 || Erection of roof covering and frames || This class includes: — erection of roofs, — roof covering, — waterproofing. || 45261000 
   ||   || 45.23 || Construction of highways, roads, airfields and sport facilities || This class includes: — construction of highways, streets, roads, other vehicular and pedestrian ways, — construction of railways, — construction of airfield runways, — construction work, other than buildings, for stadiums, swimming pools, gymnasiums, tennis courts, golf courses and other sports installations, — painting of markings on road surfaces and car parks. This class excludes: — preliminary earth moving, see 45.11. || 45212212 and DA03 45230000 except: -45231000 -45232000 -45234115 
   ||   || 45.24 || Construction of water projects || This class includes — construction of: — waterways, harbour and river works, pleasure ports (marinas), locks, etc., — dams and dykes, — dredging, — subsurface work. || 45240000 
   ||   || 45.25 || Other construction work involving special trades || This class includes: — construction activities specialising in one aspect common to different kinds of structures, requiring specialised skill or equipment, — construction of foundations, including pile driving, — water well drilling and construction, shaft sinking, — erection of non-self-manufactured steel elements, — steel bending, — bricklaying and stone setting, — scaffolds and work platform erecting and dismantling, including renting of scaffolds and work platforms, — erection of chimneys and industrial ovens. This class excludes: — renting of scaffolds without erection and dismantling, see 71.32 || 45250000 45262000 
   || 45.3 ||   || Building installation ||   || 45300000 
   ||   || 45.31 || Installation of electrical wiring and fittings || This class includes: installation in buildings or other construction projects of: — electrical wiring and fittings, — telecommunications systems, — electrical heating systems, — residential antennas and aerials, — fire alarms, — burglar alarm systems, — lifts and escalators, — lightning conductors, etc. || 45213316 45310000 Except: -45316000 
   ||   || 45.32 || Insulation work activities || This class includes: — installation in buildings or other construction projects of thermal, sound or vibration insulation. This class excludes: — waterproofing, see 45.22. || 45320000 
   ||   || 45.33 || Plumbing || This class includes: — installation in buildings or other construction projects of: — plumbing and sanitary equipment, — gas fittings, — heating, ventilation, refrigeration or air-conditioning equipment and ducts, — sprinkler systems. This class excludes: — installation of electrical heating systems, see 45.31. || 45330000 
   ||   || 45.34 || Other building installation || This class includes: — installation of illumination and signalling systems for roads, railways, airports and harbours, — installation in buildings or other construction projects of fittings and fixtures n.e.c. || 45234115 45316000 45340000 
   || 45.4 ||   || Building completion ||   || 45400000 
   ||   || 45.41 || Plastering || This class includes: — application in buildings or other construction projects of interior and exterior plaster or stucco, including related lathing materials. || 45410000 
   ||   || 45.42 || Joinery installation || This class includes: — installation of not self-manufactured doors, windows, door and window frames, fitted kitchens, staircases, shop fittings and the like, of wood or other materials, — interior completion such as ceilings, wooden wall coverings, movable partitions, etc. This class excludes: — laying of parquet and other wood floor coverings, see 45.43. || 45420000 
   ||   || 45.43 || Floor and wall covering || This class includes: — laying, tiling, hanging or fitting in buildings or other construction projects of: —  — ceramic, concrete or cut stone wall or floor tiles, — parquet and other wood floor coverings carpets and linoleum floor coverings, — including of rubber or plastic, — terrazzo, marble, granite or slate floor or wall coverings, — wallpaper. || 45430000 
   ||   || 45.44 || Painting and glazing || This class includes: — interior and exterior painting of buildings, — painting of civil engineering structures, — installation of glass, mirrors, etc. This class excludes: — installation of windows, see 45.42, || 45440000 
   ||   || 45.45 || Other building completion || This class includes: — installation of private swimming pools, — steam cleaning, sand blasting and similar activities for building exteriors, — other building completion and finishing work n.e.c. This class excludes: — interior cleaning of buildings and other structures, see 74.70. || 45212212 and DA04 45450000 
   || 45.5 ||   || Renting of construction or demolition equipment with operator ||   || 45500000 
   ||   || 45.50 || Renting of construction or demolition equipment with operator || This class excludes: — renting of construction or demolition machinery and equipment without operators, see 71.32. || 45500000 
 (1) Council Regulation (EEC) No 3037/90 of 9 October 1990 (OJ L 293, 24.10.1990, p. 1), Regulation as amended by Commission Regulation (EEC) No 761/93 (OJ L 83, 3.4.1993, p. 1). 
ANNEX
II
LIST OF UNION LEGISLATION REFERRED TO IN ARTICLE 4(2) 
Rights which have been granted by means of
a procedure in which adequate publicity has been ensured and where the granting
of those rights was based on objective criteria shall not constitute
"special or exclusive rights" within the meaning of this Directive.
The following lists procedures, ensuring adequate prior transparency, for
granting authorisations on the basis of other legislative acts of the European
Union which do not constitute "special or exclusive rights" within
the meaning of this Directive:
(a)                   
granting authorisation to operate natural gas
installations in accordance with the procedures laid down in Article 4 of
Directive 98/30/EC;
(b)                   
authorisation or an invitation to tender for the
construction of new electricity production installations in accordance with
Directive 96/92/EC;
(c)                   
the granting in accordance with the procedures
laid down in Article 9 of Directive 97/67/EC of authorisations in relation to a
postal service which is not or shall not be reserved;
(d)                   
a procedure for granting an authorisation to
carry on an activity involving the exploitation of hydrocarbons in accordance
with Directive 94/22/EC;
(e)                   
public service contracts within the meaning of
Regulation (EC) No 1370/2007 which have been awarded on the basis of a
competitive tendering procedure in accordance with its Article 5(3).
ANNEX III
LIST OF UNION LEGISLATION REFERRED TO IN ARTICLE 27(3)
A. TRANSPORT OR DISTRIBUTION OF GAS OR HEAT
Directive 2009/73/EC
B. PRODUCTION, TRANSMISSION OR DISTRIBUTION
OF ELECTRICITY
Directive 2009/72/EC
C. PRODUCTION, TRANSPORT OR DISTRIBUTION OF
DRINKING WATER
None
D. CONTRACTING ENTITIES IN THE FIELD OF
RAIL SERVICES
Rail Freight transport
Council Directive 91/440/EEC of 29
July 1991 on the development of the Community's railways[54] 
Rail passenger transport
None
E. CONTRACTING ENTITIES IN THE FIELD OF
URBAN RAILWAY, TRAMWAY, TROLLEYBUS OR MOTOR BUS SERVICES
None
F. CONTRACTING ENTITIES IN THE FIELD OF
POSTAL SERVICES
Directive 97/67/EC
G. EXTRACTION OF OIL OR GAS
Directive 94/22/EC
H. EXPLORATION FOR AND EXTRACTION OF COAL
OR OTHER SOLID FUELS
None
I. CONTRACTING ENTITIES IN THE FIELD OF
SEAPORT OR INLAND PORT OR OTHER TERMINAL EQUIPMENT
None
J. CONTRACTING ENTITIES IN THE FIELD OF
AIRPORT INSTALLATIONS
None
ANNEX
IV
REQUIREMENTS RELATING
TO DEVICES FOR THE ELECTRONIC RECEIPT OF TENDERS, REQUESTS TO PARTICIPATE, APPLICATIONS
FOR QUALIFICATION AS WELL AS PLANS AND PROJECTS IN CONTESTS
Devices for the electronic receipt of
tenders, requests to participate, applications for qualification as well as
plans and projects in contests must guarantee, through technical means and
appropriate procedures, at least that:
(a)                   
the exact time and date of the receipt of
tenders, requests to participate, applications for qualification as well as the
submission of plans and projects can be determined precisely;
(b)                   
it may be reasonably ensured that, before the
time limits laid down, no-one can have access to data transmitted under those
requirements;
(c)                   
where that access prohibition is infringed, it
may be reasonably ensured that the infringement is clearly detectable;
(d)                   
only authorised persons may set or change the
dates for opening data received;
(e)                   
during the various stages of the qualification
procedure, the procurement procedure or contest, access to all data submitted,
or to part thereof, must be possible only through simultaneous action by
authorised persons;
(f)                     
simultaneous action by authorised persons must
give access to data transmitted only after the prescribed date;
(g)                   
data received and opened in accordance with those
requirements must remain accessible only to persons authorised to acquaint
themselves therewith and
(h)                   
authentication of tenders must conform to the
requirements set out in this Annex.
ANNEX V
LIST OF INTERNATIONAL AGREEMENTS REFERRED TO IN ARTICLE 38
Agreements with the following countries or
groupings of countries:
–                        
Albania (OJ L 107, 28.4.2009)
–                        
Former Yugoslav Republic of Macedonia (OJ L 87,
20.03.2004)
–                        
CARIFOUM (OJ L 289, 30.10.2008)
–                        
Chile (OJ L352, 30.12.2002)
–                        
Croatia (OJ L 26, 28.1.2005)
–                        
Mexico (OJ L 276, 28.10.2000, L 157/30.6.2000)
–                        
Montenegro (OJ L 345 of 28.12.2007)
–                        
South Korea - (OJ L 127/14.5.2011)
–                        
Switzerland (OJ L 300, 31/12/1972)
ANNEX VI
PART A
INFORMATION TO BE INCLUDED IN THE PERIODIC INDICATIVE NOTICE
(as referred to in Article 61)
I. INFORMATION TO BE INCLUDED IN ALL CASES
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.           (a)     For supply
contracts: nature and quantity or value of the services or products to be
supplied (nomenclature reference No(s)).
(b)     For works contracts: nature and extent
of the services to be provided, the general characteristics of the work or of
the lots by reference to the work (nomenclature reference No(s)).
(c)     For service contracts: intended total
procurement in each of the service categories envisaged (nomenclature reference
No(s)).
4.           Date of dispatch of the
notice or of dispatch of the notice of the publication of this notice on the
buyer profile.
5.           Any other relevant
information.
II. ADDITIONAL INFORMATION TO BE SUPPLIED
WHERE THE NOTICE IS USED AS A MEANS OF CALLING FOR COMPETITION OR PERMITS THE
REDUCTION OF THE TIME LIMITS FOR THE RECEIPT OF TENDERS (Article 61(2))
6.           A reference to the fact
that interested economic operators shall advise the entity of their interest in
the contract or contracts.
7.           Email or internet address
at which the specifications and any supporting documents will be available for
unrestricted and full direct access, free of charge.
8.           Where appropriate, state
whether the contract is reserved for sheltered workshops or whether its
performance is reserved in the context of sheltered employment programmes.
9.           Time limit for the receipt
of applications for an invitation to tender or to negotiate.
10.         Nature and quantity of the
goods to be supplied or general nature of the work or category of service and
description, stating if framework agreement(s) are envisaged, including any
options for further procurement and the estimated time available for exercising
those options as well as the number of renewals, if any. In the case of
recurring contracts, also, an estimate of the timing of the subsequent calls
for competition. State whether purchase, lease, rental or hire-purchase or any
combination of those is involved.
11.         NUTS
code for the main location of works in case of works or NUTS code for the main
place of delivery or performance in supplies and service ; if the contract is
divided into lots, this information shall be provided for each lot.
12.         Time limits for delivery or
completion or duration of service contract and, as far as possible, for
starting.
13.         Address to which interested
undertakings shall send their expressions of interest in writing.
14.         Time limit for receipt of
expressions of interest.
15.         Language or languages
authorised for the presentation of candidatures or tenders.
16.         Economic and technical
conditions, and financial and technical guarantees required of suppliers.
17.         (a)     Estimated date for
initiating the procurement procedures in respect of the contract or contracts (if known);
(b)     Type of procurement procedure
(restricted or negotiated);
(c)     The amount of and payment details for
any sum to be paid to obtain documents concerning the consultation.
18.         Where appropriate,
particular conditions to which the performance of the contract is subject.
19.         Where appropriate,
indication whether:
(a)         
E-submission of tenders or requests to
participate will be required/accepted,
(b)         
E-ordering will be used,
(c)         
E-invoicing will be used,
(d)         
E-payment will be accepted.
20.         Name and address of the
body responsible for appeal and, where appropriate, mediation procedures.
Precise information concerning time limits for lodging appeals, or, if need be,
the name, address, telephone number, fax number and e-mail address of the
service from which this information may be obtained.
21.         Where known, criteria
referred to in Article 76 to be used for award of the contract: "lowest
cost" or "most economically advantageous tender". Criteria
representing the most economically advantageous tender as well as their
weighting or, where appropriate, the order of importance of those criteria
shall be mentioned, where they do not appear in the specifications, or will not
be indicated in the invitation to confirm interest referred to in Article 61(2)(b)
or in the invitation tender or to negotiate.
PART
B
INFORMATION TO BE
INCLUDED IN NOTICES OF PUBLICATION OF A PERIODIC INDICATIVE NOTICE ON A BUYER
PROFILE NOT USED AS A MEANS OF CALLING FOR COMPETITION
(as referred to in Article 61(1))
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
CPV Nomenclature reference No(s).
4.                      
Internet address of the "buyer
profile" (URL).
5.                      
Date of dispatch of the notice of the
publication of the prior information notice on the buyer profile
Annex
VII
Information to be included in the specifications in electronic auctions
(Article 47(4))
The
specifications to be used where contracting entities have decided to hold an
electronic auction shall include at least the following details: 
(a)                   
the features whose values will be the subject of
electronic auction, provided that such features are quantifiable and can be
expressed in figures or percentages;
(b)                   
any limits on the values which may be submitted,
as they result from the specifications relating to the subject of the contract;
(c)                   
the information which will be made available to
tenderers in the course of the electronic auction and, where appropriate, when
it will be made available to them;
(d)                   
the relevant information concerning the electronic
auction process;
(e)                   
the conditions under which the tenderers will be
able to bid and, in particular, the minimum differences which will, where
appropriate, be required when bidding;
(f)                     
the relevant information concerning the
electronic equipment used and the arrangements and technical specifications for
connection.
ANNEX VIII
DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS
For the purposes of this Directive,
(1)                   
"technical specification" means one of
the following:
(e)         
in the case of service or supply contracts a
specification in a document defining the required characteristics of a product
or a service, such as quality levels, environmental and climate performance
levels, design for all requirements (including accessibility for disabled
persons) and conformity assessment, performance, use of the product, safety or
dimensions, including requirements relevant to the product as regards the name
under which the product is sold, terminology, symbols, testing and test
methods, packaging, marking and labelling, user instructions, production
processes and methods at any stage of the life cycle of the supply or service
and conformity assessment procedures;
(b)     in the case of works contracts, the
totality of the technical prescriptions contained in particular in the procurement
documents, defining the characteristics required of a material, product or
supply, which permits a material, a product or a supply to be described in a
manner such that it fulfils the use for which it is intended by the contracting
entity; those characteristics include levels of environmental and climate performance, design for all
requirements (including accessibility for disabled persons) and conformity
assessment, performance, safety or dimensions, including the procedures
concerning quality assurance, terminology, symbols, testing and test methods,
packaging, marking and labelling, user instructions, and production processes
and methods at any stage of the life cycle of the works; those characteristics also include rules relating to design and costing, the test,
inspection and acceptance conditions for works and methods or techniques of
construction and all other technical conditions which the contracting entity 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" means a technical
specification approved by a recognised standardisation body for repeated or
continuous application, compliance with which is not compulsory and which falls
into one of the following categories:
(a)         
"international standard": a standard
adopted by an international standards organisation and made available to the
general public;
(b)         
"European standard": a standard
adopted by a European standards organisation and made available to the general
public;
(c)         
"national standard": a standard
adopted by a national standards organisation and made available to the general
public;
(3)                   
"European technical approval" means a
favourable technical assessment of the fitness for use of a product, based on
the 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. European technical approvals are issued by an approval
body designated for this purpose by the Member State;
(4)                   
"Common technical specifications"
means a technical specification laid down in accordance with a procedure
recognised by the Member States or in accordance with
Articles 9 and 10 of Parliament and Council Regulation [XXX] on European
standardisation [and amending Council Directives 89/686/EEC and 93/15/EEC and
Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC,
2007/23/EC, 2009/105/EC and 2009/23/EC of the European Parliament and the
Council] which has been published in the Official
Journal of the European Union;
(5)                   
"Technical reference" means any deliverable
produced by European standardisation bodies, other than official standards,
according to procedures adapted to developments in market needs.
ANNEX IX
FEATURES CONCERNING PUBLICATION
1.                      
Publication of notices
The notices referred to in Articles 61, 62, 63,
64, 85 and 89 must be sent by the contracting entities to the Publications
Office of the European Union and published in accordance with the following
rules:
(a)         
Notices referred to in Articles 61, 62, 63, 64, 85
and 89 shall be published by the Publications Office of the European Union or
by the contracting entities in the event of a periodic indicative notice
published on a buyer profile in accordance with Article 61 (1).
In addition, contracting entities may publish
this information on the Internet on a "buyer profile" as referred to
in point 2(b) below;
(b)         
The Publications Office of the European Union
will give the contracting entity the confirmation referred to in the second
subparagraph of Article 65 (5).
2.                      
Publication of complementary or additional
information
(a)         
Contracting entities shall publish the
specifications and the additional documents in their entirety on the Internet;
(b)         
The buyer profile may include periodic indicative
notices as referred to in Article 61 (1), information on ongoing
invitations to tender, scheduled purchases, contracts concluded, procedures
cancelled and any useful general information, such as a contact point, a
telephone and a fax number, a postal address and an e-mail address.
3.                      
Format and procedures for the electronic
transmission of notices
The format and procedure for sending
notices electronically as established by the Commission are made accessible at the Internet address "http://simap.eu.int".
ANNEX X
INFORMATION TO BE INCLUDED IN THE NOTICE ON THE EXISTENCE OF A QUALIFICATION
SYSTEM
(as referred to in point (b) of Article 39(2) and in Article 62)
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
Where appropriate, state whether the contract is
reserved for sheltered workshops or whether its performance is reserved in the
context of sheltered employment programmes.
4.                      
Purpose of the qualification system (description
of the goods, services or works or categories thereof to be procured through
the system - nomenclature reference No(s)). NUTS code for the main location of
works in case of works or NUTS code for the main place of delivery or
performance in supplies and service.
5.                      
Conditions to be fulfilled by the economic
operators in view of their qualification pursuant to the system and the methods
according to which each of those conditions will be verified. Where the
description of such conditions and verification methods is voluminous and based
on documents available to interested economic operators, a summary of the main
conditions and methods and a reference to those documents shall be sufficient.
6.                      
Period of validity of the qualification system
and the formalities for its renewal.
7.                      
Reference to the fact that the notice acts as
the call for competition.
8.                      
Address where further information and
documentation concerning the qualification system can be obtained (where
different from the addresses mentioned under 1).
9.                      
Name and address of the body responsible for
appeal and, where appropriate, mediation procedures. Precise information
concerning time-limits for lodging appeals, or, if need be, the name, address,
telephone number, fax number and e-mail address of the service from which this
information may be obtained.
10.                  
Where known, criteria referred to in Article 76
to be used for award of the contract: "lowest cost" or "most
economically advantageous tender". Criteria representing the most
economically advantageous tender as well as their weighting or, where
appropriate, the order of importance of those criteria, shall be mentioned
where they do not appear in the specifications or will not be indicated in the
invitation to tender or to negotiate.
11.                  
Where appropriate, indication whether:
(a)         
 E-submission of tenders or requests to
participate will be required/accepted,
(b)         
 E-ordering will be used, 
(c)         
 E-invoicing will be used, 
(d)         
 E-payment will be accepted.
12.                  
Any other relevant information.
ANNEX XI
INFORMATION TO BE INCLUDED IN CONTRACT NOTICES
(as referred to in Article 63)
A. OPEN PROCEDURES
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
Where appropriate, state whether the contract is
reserved for sheltered workshops or whether its performance is reserved in the
context of sheltered employment programmes.
4.                      
Nature of the contract (supply, works or
service, where appropriate, state if it is a framework agreement or a dynamic
purchasing system), description (nomenclature reference
No(s)). Where appropriate, state whether tenders are requested for purchase,
lease, rental or hire purchase or any combination of those. 
5.                      
NUTS code for the main location of works in case
of works or NUTS code for the main place of delivery or performance in supplies
and service.
6.                      
For supplies and works:
(a)         
Nature and quantity of the goods to be supplied
(nomenclature reference No(s)), including any options for further procurement and,
if possible, the estimated time available for exercising those options as well
as the number of renewals, if any. In the case of recurring contracts, also, if
possible, an estimate of the timing of the subsequent calls for competition for
the goods to be procured or the nature and extent of the services to be
provided and general nature of the work (nomenclature reference No(s));
(b)         
Indication of whether the suppliers may tender
for some and/or all the goods required.
If, for works contracts, the work or the
contract is subdivided into several lots, the order of size of the different
lots and the possibility of tendering for one, for several or for all the lots;
(c)         
For works contracts: information concerning the
purpose of the work or the contract where the latter also involves the
drawing-up of projects.
7.                      
For services:
(a)         
The nature and quantity of the goods to be
supplied, including any options for further procurement and, if possible, the
estimated time available for exercising those options as well as the number of
renewals, if any. In the case of recurring contracts, also, if possible, an
estimate of the timing of the subsequent calls for competition for the services
to be procured;
(b)         
Indication of whether the performance of the
service is reserved by law, regulation or administrative provision to a
particular profession;
(c)         
Reference of the law, regulation or
administrative provision;
(d)         
Indication of whether legal persons shall
indicate the names and professional qualifications of the staff to be
responsible for the performance of the service;
(e)         
Indication of whether service providers may
tender for a part of the services concerned.
8.                      
Where known, indication
of whether authorisation to submit variants exists or not.
9.                      
Time limits for delivery or completion or
duration of service contract and, as far as possible, the starting date.
10.                  
Email or internet address at which the
specifications and any supporting documents will be available for unrestricted
and full direct access, free of charge
11.         (a)     Final date for
receipt of tenders or indicative tenders where a dynamic purchasing system is
introduced;
(b)     Address to which they shall be sent;
(c)     Language or languages in which they shall
be drawn up.
12.         (a)     Where applicable,
the persons authorised to be present at the opening of tenders;
(b)     Date, time and place of such opening.
13.         Where applicable, any
deposits and guarantees required.
14.         Main terms concerning
financing and payment and/or references to the provisions in which those are
contained.
15.         Where appropriate, the
legal form to be taken by the grouping of economic operators to whom the
contract is awarded.
16.         Minimum economic and
technical conditions required of the economic operator to whom the contract is
awarded.
17.         Period during which the
tenderer is bound to keep open his tender.
18.         Where appropriate,
particular conditions to which the performance of the contract is subject.
19.         Criteria referred to in
Article 76 to be used for award of the contract: "lowest cost" or
"most economically advantageous tender". Criteria representing the
most economically advantageous tender as well as their weighting or, where
appropriate, the order of importance of those criteria shall be indicated where
they do not appear in the specifications.
20.         Where appropriate, date(s)
and the reference(s) to publication in the Official Journal of the European
Union of the periodic information notice or of the notice of the
publication of this notice on the buyer profile to which the contract refers.
21.         Name and address of the
body responsible for appeal and, where appropriate, mediation procedures.
Precise information concerning time limits for lodging appeals, or, if need be,
the name, address, telephone number, fax number and e-mail address of the
department from which this information may be obtained.
22.         Date of dispatch of the
notice by the contracting entity.
23.         Any other relevant
information.
B. RESTRICTED PROCEDURES
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
Where appropriate, state whether the contract is
reserved for sheltered workshops or whether its performance is reserved in the
context of sheltered employment programmes.
4.                      
Nature of the contract (supplies, works or
services; where appropriate, state if it is a framework agreement); description (nomenclature reference No(s)). Where appropriate, state whether tenders are requested for purchase,
lease, rental or hire purchase or any combination of those.
5.                      
NUTS code for the main location of works in case
of works or NUTS code for the main place of delivery or performance in supplies
and service.
6.                      
For supplies and works:
(a)         
The nature and quantity of the goods to be
supplied (nomenclature reference No(s)), including any options for further
procurement and, if possible, the estimated time available for exercising those
options as well as the number of renewals, if any. In the case of recurring
contracts, also, if possible, an estimate of the timing of the subsequent calls
for competition for the goods to be procured or the nature and extent of the
services to be provided and general nature of the work (nomenclature reference
No(s));
(b)         
Indication of whether the suppliers may tender
for some and/or all the goods required.
If, for works contracts, the work or the
contract is subdivided into several lots, the order of size of the different
lots and the possibility of tendering for one, for several or for all the lots;
(c)         
Information concerning
the purpose of the work or the contract where the latter also involves the
drawing-up of projects.
7.                      
For services:
(a)         
The nature and quantity of the goods to be
supplied, including any options for further procurement and, if possible, the
estimated time available for exercising those options as well as the number of
renewals, if any. In the case of recurring contracts, also, if possible, an
estimate of the timing of the subsequent calls for competition for the services
to be procured;
(b)         
Indication of whether the performance of the
service is reserved by law, regulation or administrative provision to a
particular profession;
(c)         
Reference to the law, regulation or
administrative provision;
(d)         
Indication of whether legal persons shall
indicate the names and professional qualifications of the staff to be
responsible for the performance of the service;
(e)         
Indication of whether service providers may
tender for a part of the services concerned.
8.                      
Where known, indication of whether authorisation
to submit variants exists or not.
9.                      
Time limits for delivery or completion or
duration of the contract and, as far as possible, for starting.
10.                  
Where appropriate, the legal form to be taken by
the grouping of economic operators to whom the contract is awarded.
11.         (a)     Final date for
receipt of requests to participate;
(b)     Address to which they shall be sent;
(c)     Language or languages in which they shall
be drawn up.
12.         Final date for dispatch of
invitations to tender.
13.         Where applicable, any
deposits and guarantees required.
14.         Main terms concerning
financing and payment and/or references to the provisions in which those are
contained.
15.         Information concerning the
economic operator's position and the minimum economic and technical conditions
required of him.
16.         Criteria referred to in
Article 76 to be used for award of the contract: "lowest cost" or
"most economically advantageous tender". Criteria representing the
most economically advantageous tender as well as their weighting or, where
appropriate, the order of importance of those criteria shall be indicated where
they do not appear in the specifications or will not be indicated in the
invitation to tender.
17.         Where appropriate,
particular conditions to which the performance of the contract is subject.
18.         Where appropriate, the
date(s) and reference(s) to publication in the Official Journal of the
European Union of the periodic information notice or of the notice of the
publication of this notice on the buyer profile to which the contract refers.
19.         Name and address of the
body responsible for appeal and, where appropriate, mediation procedures.
Precise information concerning time limits for lodging appeals, or, if need be,
the name, address, telephone number, fax number and e-mail address of the
service from which this information may be obtained.
20.         Date of dispatch of the
notice by the contracting entities.
21.         Any other relevant
information.
C. NEGOTIATED PROCEDURES
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
Where appropriate, state whether the contract is
reserved for sheltered workshops or whether its
performance is reserved in the context of sheltered employment programmes.
4.                      
Nature of the contract
(supplies, works or services; where appropriate, state if it is a framework
agreement); description (nomenclature reference No(s)). Where appropriate,
state whether tenders are requested for purchase, lease, rental or hire
purchase or any combination of those.
5.                      
NUTS code for the main location of works in case
of works or NUTS code for the main place of delivery or performance in supplies
and service.
6.                      
For supplies and works:
(a)         
The nature and quantity of the goods to be
supplied (nomenclature reference No(s)), including any options for further
procurement and, if possible, the estimated time available for exercising those
options as well as the number of renewals, if any. In the case of recurring
contracts, also, if possible, an estimate of the timing of the subsequent calls
for competition for the goods to be procured or the nature and extent of the
services to be provided and general nature of the work (nomenclature reference
No(s));
(b)         
Indication of whether the suppliers may tender
for some and/or all the goods required.
If, for works contracts, the work or the
contract is subdivided into several lots, the order of size of the different
lots and the possibility of tendering for one, for several or for all the lots;
(c)         
For works contracts: information concerning the purpose of the work or the
contract where the latter also involves the drawing-up of projects.
7.                      
For services:
(a)         
The nature and quantity of the services to be
supplied, including any options for further procurement and, if possible, the
estimated time available for exercising those options as well as the number of
renewals, if any. In the case of recurring contracts, also, if possible, an
estimate of the timing of the subsequent calls for competition for the services
to be procured;
(b)         
Indication of whether the performance of the
service is reserved by law, regulation or administrative provision to a
particular profession;
(c)         
Reference of the law, regulation or
administrative provision;
(d)         
Indication of whether legal persons shall
indicate the names and professional qualifications of the staff to be
responsible for the performance of the service;
(e)         
Indication of whether service providers may
tender for a part of the services concerned.
8.                      
Where known, indication of whether authorisation
to submit variants exists or not.
9.                      
Time limits for delivery or completion or
duration of the contract and, as far as possible, for starting.
10.                  
Where appropriate, the legal form to be taken by
the grouping of economic operators to whom the contract is awarded.
11.         (a)     Final date for
receipt of requests to participate;
(b)     Address to which they shall be sent;
(c)     Language or languages in which they shall
be drawn up.
12.         Where appropriate, any
deposits and guarantees required.
13.         Main terms concerning
financing and payment and/or references to the provisions in which those are
contained.
14.         Information concerning the
economic operator's position and the minimum economic and technical conditions
required of him.
15.         Criteria referred to in
Article 76 to be used for award of the contract: "lowest cost" or
"most economically advantageous tender". Criteria representing the
most economically advantageous tender as well as their weighting or, where
appropriate, the order of importance of those criteria shall be indicated where
they do not appear in the specifications or will not be indicated in the
invitation to negotiate.
16.         Where appropriate, the
names and addresses of the economic operators already selected by the
contracting entity.
17.         Where appropriate,
particular conditions to which the performance of the contract is subject.
18.         Where appropriate, the
dates and reference(s) of publication in the Official Journal of the
European Union of the periodic information notice or of the notice of the
publication of this notice on the buyer profile to which the contract refers.
19.         Name and address of the
body responsible for appeal and, where appropriate, mediation procedures.
Precise information concerning time limits for lodging appeals, or, if need be,
the name, address, telephone number, fax number and e-mail address of the
service from which this information may be obtained.
20.         Date of dispatch of the
notice by the contracting entity.
21.         Any other relevant
information.
ANNEX XII
INFORMATION TO BE INCLUDED IN THE CONTRACT AWARD NOTICE
(as referred to in Article 64)
I. Information for publication in the Official
Journal of the European Union[55]
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
Nature of the contract (supplies, works or
services and Nomenclature reference No(s); where appropriate state if it is a
framework agreement).
4.                      
At least a summary indication of the nature and
quantity of the products, works or services provided.
5.           (a)     Form of the call
for competition (notice on the existence of a system of qualification; periodic
notice; call for tenders);
(b)     Date(s) and reference(s) of
publication of the notice in the Official Journal of the European Union;
(c)     In the case of contracts awarded
without a prior call for competition, indication of the relevant provision of
Article 44.
6.           Procurement procedure
(open, restricted or negotiated).
7.           Number of tenders
received, specifying
(a)         
number of tenders received from economic
operators which are small and medium-sized enterprises,
(b)         
 number of tenders received from abroad,
(c)         
number of tenders received electronically.
In the case of multiple awards (lots, multiple
framework agreements), this information shall be given for each award.
8.           Date of award of the
contract(s).
9.           Price paid for bargain
purchases pursuant to Article 44(i).
10.         For each award, name,
address including NUTS code, telephone, fax number, email address and internet
address of the successful tenderer(s) including:
(a)         
 information whether the successful tenderer is
small and medium-sized enterprise,
(b)         
 information whether the contract was awarded to
a consortium.
11.         State, where appropriate,
whether the contract has been, or may be, subcontracted.
12.         Price paid or the prices of
the highest and lowest tenders taken into account in the award of the contract.
13.         Name and address of the
body responsible for the appeal and, where appropriate, mediation procedures.
Precise information concerning the time limit for lodging appeals, or, if need
be, the name, address, telephone number, fax number and e-mail address of the
service from which this information may be obtained.
14.         Optional information:
–              
value and share of the contract which has been
or may be subcontracted to third parties,
–              
award criteria.
II. Information not intended for
publication
15.         Number of contracts awarded
(where an award has been split between several suppliers).
16.         Value of each contract
awarded.
17.         Country of origin of the
product or service (Community origin or non-Community origin; if the latter,
broken down by third country).
18.         Which award criteria were
used (most economically advantageous; lowest cost)?
19.         Was the contract awarded to
a tenderer who submitted a variant, in accordance with Article 58(1)?
20.         Were any tenders excluded
on the grounds that they were abnormally low, in accordance with Article 79?
21.         Date of transmission of the
notice by the contracting entity.
ANNEX XIII
Contents of the invitations to submit a
tender, to negotiate or to confirm interest provided for under Article 68
1.                      
The invitation to submit a tender or to
negotiate provided for under Article 68 must contain at least:
(a)         
the final date for receipt of tenders, the
address to which they are to be sent, and the language or languages in which
they are to be drawn up;
However, in the case of contracts awarded
through an innovation partnership, this information shall not appear in the
invitation to negotiate but it shall appear in the invitation to submit a
tender.
(b)         
a reference to any published call for
competition;
(c)         
an indication of any documents to be attached;
(d)         
the criteria for the award of the contract,
where they are not indicated in the notice on the existence of a qualification
system used as a means of calling for competition;
(e)         
the relative weighting of the contract award
criteria or, where appropriate, the order of importance of such criteria, if
this information is not given in the contract notice, the notice on the
existence of a qualification system or the specifications.
2.                      
When a call for competition is made by means of
a periodic indicative notice, contracting entities shall subsequently invite
all candidates to confirm their interest on the basis of detailed information
on the contract concerned before beginning the selection of tenderers or
participants in negotiations.
This invitation shall include at least the
following information:
(a)         
nature and quantity, including all options
concerning complementary contracts and, if possible, the estimated time
available for exercising those options for renewable contracts, the nature and
quantity and, if possible, the estimated publication dates of future notices of
competition for works, supplies or services to be put out to tender;
(b)         
type of procedure: restricted or negotiated;
(c)         
where appropriate, the date on which the
delivery of supplies or the execution of works or services is to commence or
terminate;
(d)         
the address and closing date for the submission
of requests for procurement documents and the language or languages in which
they are to be drawn up;
(e)         
the address of the entity which is to award the
contract and the information necessary for obtaining the specifications and
other documents;
(f)           
economic and technical conditions, financial
guarantees and information required from economic operators;
(g)         
the form of the contract which is the subject of
the invitation to tender: purchase, lease, hire or hire-purchase, or any
combination of those; and
(h)         
the contract award criteria and their weighting
or, where appropriate, the order of importance of such criteria, if this
information is not given in the indicative notice or the specifications or in
the invitation to tender or to negotiate.
ANNEX XIV 
LIST OF INTERNATIONAL SOCIAL AND ENVIRONMENTAL CONVENTIONS REFERRED TO IN ARTICLES
70 AND 79
–                        
Convention 87 on Freedom of Association and the
Protection of the Right to Organise;
–                        
Convention 98 on the Right to Organise and
Collective Bargaining;
–                        
Convention 29 on Forced Labour;
–                        
Convention 105 on the Abolition of Forced
Labour;
–                        
Convention 138 on Minimum Age;
–                        
Convention 111 on Discrimination (Employment and
Occupation);
–                        
Convention 100 on Equal Remuneration;
–                        
Convention 182 on Worst Forms of Child Labour;
–                        
Vienna Convention for the protection of the
Ozone Layer and its Montreal Protocol on substances that deplete the Ozone
Layer;
–                        
Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal (Basel Convention);
–                        
Stockholm Convention on Persistent Organic
Pollutants (Stockholm POPs Convention);
–                        
Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in International Trade
(UNEP/FAO) (The PIC Convention) Rotterdam, 10/09/1998 and its 3 regional
Protocols.
ANNEX
XV 
LIST OF EU LEGISLATION REFERRED TO IN ARTICLE 77(3)
(a)           
Directive 2009/33/EC.
ANNEX XVI
INFORMATION TO BE INCLUDED IN NOTICES OF MODIFICATIONS OF A CONTRACT DURING ITS
TERM
(as referred to in Article 82(6)
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
CPV Nomenclature reference No(s);
4.                      
NUTS code for the main location of works in case
of works or NUTS code for the main place of delivery or performance in supplies
and service;
5.                      
Description of the procurement before and after
the modification: nature and extent of the works, nature and quantity or value
of supplies, nature and extent of services.
6.                      
Where applicable, increase in price caused by
the modification.
7.                      
Description of the circumstances which have
rendered necessary the modification. 
8.                      
Date of contract award decision.
9.                      
Where applicable, the name, address including
NUTS code, telephone, fax number, email address and internet address of the new
economic operator or operators.
10.                  
Information whether the contract is related to a
project and /or programme financed by European Union funds.
11.                  
Name and address of the oversight body and the
body responsible for review and, where appropriate, mediation procedures.
Precise information concerning the deadline for review procedures, or if need
be the name, address, telephone number, fax number and email address of the
service from which this information may be obtained.
ANNEX XVII 
SERVICES REFERRED TO IN ARTICLE 84
 CPV Code || Description 
 79611000-0 and from 85000000-9 to 85323000-9 (except 85321000-5 and 85322000-2) || Health and social services 
 75121000-0, 75122000-7, 75124000-1; from 79995000-5 to 79995200-7; from 80100000-5 to 80660000-8 (except 80533000-9, 80533100-0, 80533200-1); from 92000000-1 to 92700000-8 (except 92230000-2, 92231000-9, 92232000-6) || Administrative educational, healthcare and cultural services 
 75300000-9 || Compulsory social security services 
 75310000-2, 75311000-9, 75312000-6, 75313000-3, 75313100-4, 75314000-0, 75320000-5, 75330000-8, 75340000-1 || Benefit services 
 98000000-3 || Other community, social and personal services 
 98120000-0 || Services furnished by trade unions 
 98131000-0 || Religious services 
ANNEX XVIII
Information to be included in notices concerning contracts for social and other
specific services
(as referred to in Article 85)
Part A Contract notice
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
Description of the services or categories
thereof and where applicable, incidental works and supplies to be procured,
including an indication of the quantities or values involved, nomenclature
reference No(s).
4.                      
NUTS code for the main place of performance of
the services. 
5.                      
Where appropriate, state whether the contract is
reserved for sheltered workshops or whether its performance is reserved in the
context of sheltered employment programmes.
6.                      
Main conditions to be fulfilled by the economic
operators in view of their participation, or, where appropriate, the electronic
address where detailed information may be obtained.
7.                      
Time limit(s) for contacting the contracting
entity in view of participation. 
8.                      
Any other relevant information.
Part B Contract award notice
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
At least a summary indication of the nature and
quantity of the services and where applicable, incidental works and supplies provided.
4.                      
Reference of publication of the notice in the Official
Journal of the European Union
5.                      
Number of tenders received.
6.                      
Name and address of the chosen economic
operator(s).
7.                      
Any other relevant information.
ANNEX XIX
INFORMATION TO BE INCLUDED IN THE DESIGN CONTEST NOTICE
(as referred to in Article 89(1))
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
Project description (nomenclature reference
No(s)).
4.                      
Nature of the contest: open or restricted.
5.                      
In the case of open contests: final date for
receipt of projects.
6.                      
In the case of restricted contests:
(a)         
the number of participants envisaged, or range;
(b)         
where applicable, names of participants already
selected;
(c)         
criteria for the selection of participants;
(d)         
final date for receipt of requests to
participate.
7.                      
Where applicable, indication of whether
participation is reserved to a particular profession.
8.                      
Criteria to be applied in the evaluation of
projects.
9.                      
Where applicable, names of the selected members
of the jury.
10.                  
Indication of whether the decision of the jury
is binding on the authority.
11.                  
Where applicable, number and value of prizes.
12.                  
Where applicable, details of payments to all
participants.
13.                  
Indication of whether the prize-winners are
permitted any follow-up contracts.
14.                  
Name and address of the body responsible for the
appeal and, where appropriate, mediation procedures. Precise information
concerning the time limit for lodging appeals, or, if need be, the name,
address, telephone number, fax number and e-mail address of the service from
which this information may be obtained.
15.                  
Date of dispatch of the notice.
16.                  
Any other relevant information
ANNEX XX
INFORMATION TO BE INCLUDED IN THE RESULTS OF DESIGN CONTEST NOTICES
(as referred to in Article 89(1))
1.                      
Name, identification number (where provided for
in national legislation), address including NUTS code, telephone, fax number,
email and internet address of the contracting entity and, where different, of
the service from which additional information may be obtained.
2.                      
Main activity exercised.
3.                      
Project description (nomenclature reference
No(s)).
4.                      
Total number of participants.
5.                      
Number of foreign participants.
6.                      
Winner(s) of the contest.
7.                      
Where applicable, the prize(s).
8.                      
Other information.
9.                      
Reference of the design contest notice.
10.                  
Name and address of the body responsible for the
appeal and, where appropriate, mediation procedures. Precise information
concerning the time limit for lodging appeals, or, if need be, the name,
address, telephone number, fax number and e-mail address of the service from
which this information may be obtained.
11.                  
Date of dispatch of the notice.
ANNEX XXI
CORRELATION TABLE[56]

 This Directive || Directive 2004/17/EC ||   
 Art. 1 || - || New 
 Art. 2, 1st sentence || Art. 1, par. 1 || = 
 Art. 2, point 1 || Art. 2, par. 1, point (a), 1st subpar. || =          
 Art. 2, points 2 and 3 || - || New 
 Art. 2, point 4, (a), 1st part || Art. 2, par. 1, point (a), 2nd subpar., 1st indent || = 
 Art. 2, point 4, (a), 2nd part ||   || New 
 Art. 2, point 4, (b) || Art. 2, par. 1, point (a), 2nd subpar., 2nd indent || = 
 Art. 2, point 4, (c) || Art. 2, par. 1, point (a), 2nd subpar., 3rd indent || = 
 Art. 2, point 5 || Art. 2, par. 1, point (b), 1st subpar. || = 
 Art. 2, point 6 || Art. 2, par. 3 || Adapted 
 Art. 2, point 7 || Art. 1, par. 2, point (a) || Adapted 
 Art. 2, point 8 || Art. 1, par. 2, point (b), 1st sentence || Adapted 
 Art. 2, point 9 || Art. 1, par. 2, point (b), 2nd sentence || = 
 Art. 2, point 10 || Art. 1, par. 2, point (c) || Adapted 
 Art. 2, point 11 || Art. 1, par. 2, point (d), 1st subpar. || Amended 
 Art. 2, point 12 || Art. 1, par. 7, 1st & 2nd subpar. || Adapted 
 Art. 2, point 13 || Art. 1, par. 7, 3rd subpar. || = 
 Art. 2, point 14 || Art. 1, par. 7, 3rd subpar. || Amended 
 Art. 2, point 15 || Art. 34, par. 1 || Amended 
 Art. 2, point 16 || Art. 1, par. 8 || Amended 
 Art. 2, point 17 ||   || New 
 Art. 2, point 18 || Art. 1, par. 8 || Amended 
 Art. 2, point 19 ||   || New 
 Art. 2, point 20 || Art. 1, par. 11 || = 
 Art. 2, point 21 || Art. 1, par. 12 || = 
 Art. 2, point 22 ||   || New 
 Art. 2, point 23 || Art. 1, par. 10 || = 
 Art. 3, par. 1, 1st subparagraph ||   || New 
 Art. 3, par. 1, 2nd subparagraph || Art. 1, par. 2, point (d), 2nd & 3rd subpar. || Amended 
 Art. 3, par. 1, 3rd subparagraph ||   || New 
 Art. 3, par. 2 || Art. 9, par. 1 || = 
 Art. 3, par. 3 || Art. 9, par. 2 || = 
 Art. 3, par. 4 || Art. 9, par. 3 || Amended 
 Art. 4, par. 1 || Art. 2, par. 1, point (b) 2nd subpar. || = 
 Art. 4, par. 2, 1st subparagraph || Art. 2, par. 3; Recital 25 || Adapted 
 Art. 4, par. 2, 2nd subparagraph ||   || New 
 Art. 4, par. 3 || Art. 2, par. 2 || = 
 Art. 4, par. 4 ||   || New 
 Art. 5 || Art. 3, par. 1 & 2 || = 
 Art. 6, par. 1 || Art. 3, par. 3 || Adapted 
 Art. 6, par. 2 || Art. 3, par. 4 || = 
 Art. 7 || Art. 4 || = 
 Art. 8 || Art. 5, par. 1 || = 
   || Art. 5, par. 2 || Deleted 
 Art. 9 || Art. 7, point (b) || = 
 Art. 10, par. 1 || Art. 6, par. 1 || adapted 
 Art. 10, par. 2, point (a) || Art. 6, par. 2, point (a) || = 
 Art. 10, par. 2, point (b) || Art. 6, par. 2, point (b) || Amended 
 Art. 10, par. 2, point (c) || Art. 6, par. 2, point (c) || Adapted 
 Art. 11, point (a) || Art. 7, point (a) || Amended 
 Art. 11, point (b) || Art. 7, point (a) || = 
   || Art. 8 || Deleted 
   || Annex I - X || Deleted 
 Art. 12 || Art. 16 & 61 || Amended 
 Art. 13, par. 1 || Art. 17, par. 1; Art. 17, par. 8 || Amended 
 Art. 13, par. 2 || Art. 17, par. 2; Art. 17, par. 8 || Amended 
 Art. 13, par. 3 ||   || New 
 Art. 13, par. 4 || Art. 17, par. 3 || = 
 Art. 13, par. 5 ||   || New 
 Art. 13, par. 6 || Art. 17, par. 4 & 5 || Adapted 
 Art. 13, par. 7 || Art. 17, par. 6(a), 1st & 2nd subpar. || = 
 Art. 13, par. 8 || Art. 17, par. 6(b), 1st & 2nd subpar. || = 
 Art. 13, par. 9 || Art. 17, par. 6(a), 3rd subpar. & par. 6(b), 3rd subpar. || Adapted 
 Art. 13, par. 10 || Art. 17, par. 7 || = 
 Art. 13, par. 11 || Art. 17, par . 9 || = 
 Art. 13, par. 12 || Art. 17, par. 10 || = 
 Art. 13, par. 13 || Art. 17, par. 11 || = 
 Art. 14 || Art. 69 || Adapted 
 Art. 15, par. 1 || Art. 19, par. 1 || = 
 Art. 15, par. 2 || Art. 19, par. 1 || Amended 
 Art. 16, par. 1 || Art. 20, par. 1; Art. 62, point 1 || Adapted 
 Art. 16, par. 2 || Art. 20, par. 2 || Amended 
 Art. 17, par. 1 || Art. 22a || Adapted 
 Art. 17, par. 2 || Art. 21; Art. 62, point 1 || Amended 
 Art. 18 || Art. 22; Art. 62, point 1 || Amended 
 Art. 19, point (a) and (b) || Art. 24, point (a) and (b) || = 
 Art. 19, point (c) || Art. 24, point (c) || Amended 
 Art. 19, point (d) || Art. 24, point (d) || = 
 Art. 19, point (e) ||   || New 
 Art. 19, point (f) and 2nd subparagraph. ||   || New 
 Art. 20 || Art. 26 || Adapted 
 Art. 21 ||   || New 
 Art. 22, par. 1 || Art. 23, par. 1 || Adapted 
 Art. 22, par. 2 || Art. 23, par. 1 || Adapted 
 Art. 22, par. 3 || Art. 23, par. 2 || Adapted 
 Art. 22, par. 4 || Art. 23, par. 3, points (a) to (c) || Adapted 
 Art. 22, par. 5 || Art. 23, par. 3, 2nd & 3rd subpar. || Adapted 
 Art. 23 || Art. 23, par. 4 || Adapted 
 Art. 24 || Art. 23, par. 5 || Amended 
 Art. 25, par. 1 || Art. 24, point (e) || Amended 
 Art. 25, par. 2 ||   || New 
 Art. 26, par. 1 and 2 || Art. 27 || Amended 
 Art. 26, par. 3 ||   || New 
 Art. 27, par. 1, 1st sentence || Art. 30, par. 1; Art. 62, point (2) || Adapted 
 Art. 27, par. 1, 2nd sentence ||   || New 
 Art. 27, par. 2, 1st subparagraph || Art. 30, par. 2 || = 
 Art. 27, par. 2, 2nd subparagraph ||   || New 
 Art. 27, par. 3 || Art. 30, par. 3 || = 
 Art. 28, par. 1 || Art. 30, par. 4, 1st subpar.; par. 5, 1st & 2nd subpar. || Amended 
 Art. 28, par. 2 || Art. 30, par. 4, 2nd subpar.; par. 5, 4th subpar.; Art. 62, point (2) || Adapted 
   || Art. 30, par. 4, 3rd subpar. || Deleted 
 Art. 28, par. 3, 1st & 2nd subparagraph || Art. 30, par. 6, 1st subpar. || Amended 
 Art. 28, par. 3, 3rd subparagraph ||   || New 
 Art. 28, par. 3, 4th subparagraph || Art. 30, par. 6, 1st subpar., 2nd sentence || Amended 
 Art. 28, par. 4 || Art. 30, par. 6, 2nd subpar. || = 
 Art. 28, par. 5 || Art. 30, par. 6, 4th subpar. || Amended 
 Art. 29 || Art. 10 || Amended 
 Art. 30, par. 1 || Art. 11, par. 1 || Adapted 
 Art. 30, par. 2 || Art. 11, par. 2 || Amended 
 Art. 31 || Art. 28 || Amended 
 Art. 32 || Art. 13 || Amended 
 Art. 33, par. 1 || Art. 48, par. 1; Art. 64, par. 1 || Amended 
 Art. 33, par. 2 || Art. 48, par. 2 & 3; Art. 64, par. 1 & 2 || Adapted 
 Art. 33, par 3, 1st subparagraph || Art. 48, par. 4; Art. 64, par. 1 || Amended 
 Art. 33, par 3, 2nd subparagraph || Art. 70, par 2, point (f) || = 
 Art. 33, par. 3 3rd subparagraph ||   || New 
 Art, 33, par. 4 ||   || New 
 Art. 33, par. 5 || Art. 48, par. 5; Art. 64, par. 3 || Amended 
 Art. 33, par. 6 || Art. 48, par. 6 || Adapted 
 Art. 33, par. 7 ||   || New 
 Art. 34 ||   || New 
 Art. 35, par. 1 || Art. 1, par. 13 || Amended 
 Art. 35, par 2 || Art. 70, par. 2, points (c) & (d) || Adapted 
 Art. 36 ||   || New 
 Art. 37 ||   || New 
 Art. 38, par. 1 || Art. 12 || Amended 
 Art. 38, par. 2 ||   || New 
 Art. 39, par. 1 || Art. 40, par. 1 & 2 || Amended 
 Art. 39, par. 2 || Art. 42 || = 
 Art. 39, par. 3 ||   || New 
 Art. 40, par. 1 || Art. 1, par. 9, point (a); Art. 45, par. 2 || Amended 
 Art. 40, par. 2 || Art. 45, par. 4 || Amended 
 Art. 40, par. 3 ||   || New 
 Art. 40, par. 4 ||   || New 
 Art. 41 || Art. 1, par. 9, point (b); Art. 45, par. 3 || Amended 
 Art. 42 || Art. 1, par. 9, point (c); Art. 45, par. 3 || Amended 
 Art. 43 ||   || New 
 Art. 44, point (a) || Art. 40, par. 3, point (a) || = 
 Art. 44, point (b) || Art. 40, par. 3, point (b) || = 
 Art. 44, point (c) || Art. 40, par. 3, point (c) || Amended 
 Art. 44, point (d) || Art. 40, par. 3, point (c) || Amended 
 Art. 44, point (e) || Art. 40, par. 3, point (d) || Amended 
 Art. 44, point (f) || Art. 40, par. 3, point (e) || = 
 Art. 44, point (g) || Art. 40, par. 3, point (g) || Amended 
 Art. 44, point (h) || Art. 40, par. 3, point (h) || Amended 
 Art. 44, point (i) || Art. 40, par. 3, point (j) || = 
 Art. 44, point (j) || Art. 40, par. 3, point (k) || Adapted 
 Art. 44, point (k) || Art. 40, par. 3, point (l) || Adapted 
 Art. 44, 2nd and 3rd subparagraphs ||   || New 
 Art. 44, 4th subparagraph || Art. 40, par. 3, point (g) in fine || Adapted 
 Art. 45, par. 1, 1st & 2nd subparagraph || Art. 14, par. 1; Art. 1, par. 4 || Adapted 
 Art. 45, par. 1, 3rd subparagraph ||   || New 
 Art. 45, par. 2 to 5 || Art. 14, par. 2 - 4; Art. 40, par. 3, point (i) || Amended 
 Art. 46, par. 1 || Art. 1, par. 5; Art. 15, par. 1 || Amended 
 Art. 46, par. 2 || Art. 15, par. 2 || Amended 
 Art. 46, par. 3 || Art. 15, par. 3 || Adapted 
 Art. 46, par. 4 || Art. 15, par. 4 || Amended 
 Art. 46, par. 5 || Art. 15, par. 6 || Amended 
 Art. 46, par. 6 ||   || New 
 Art. 46, par. 7 || Art. 15, par. 7, 3rd subpar. || = 
 Art. 47, par. 1 || Art. 1, par. 6; Art. 56, par. 1 || Amended 
 Art. 47, par. 2, 1st subparagraph || Art. 56, par. 2, 1st subpar. || = 
 Art. 47, par. 2, 2nd subparagraph || Art. 56, par. 2, 2nd subpar. || Adapted 
 Art. 47, par. 3 || Art. 56, par. 2, 3rd subpar. || Adapted 
 Art. 47, par. 4 || Art. 56, par. 3 || Adapted 
 Art. 47, par. 5 || Art. 56, par. 4 || Adapted 
 Art. 47, par. 6 || Art. 56, par. 5 || Adapted 
 Art. 47, par. 7 || Art. 56, par. 6 || = 
 Art. 47, par. 8 || Art. 56, par. 7 || Adapted 
 Art. 47, par. 9 || Art. 56, par. 8, 1st subpar. || = 
 Art. 48 ||   || New 
 Art. 49, par. 1 || Art. 29, par. 1 || Amended 
 Art. 49, par. 2 ||   || New 
 Art. 49, par. 3 || Art. 29, par. 2 || Amended 
 Art. 49, par. 4 ||   || New 
 Art. 49, par. 5 || Art. 29, par. 2 || Amended 
 Art. 49, par. 6 ||   || New 
 Art. 50 ||   || New 
 Art. 51 ||   || New 
 Art. 52 ||   || New 
 Art. 53, par. 1 || Recital 15 || Amended 
 Art. 53, par. 2 ||   || New 
 Art. 54, par. 1 || Art. 34, par. 1 || Amended 
 Art. 54, par. 2 || Art. 34, par. 2 || Adapted 
 Art. 54, par. 3 || Art. 34, par. 3 || Adapted 
 Art. 54, par. 4 || Art. 34, par. 8 || = 
 Art. 54, par. 5 || Art. 34, par. 4 || Adapted 
 Art. 54, par. 6 || Art. 34, par. 5 || Amended 
 Art. 55, par. 1 || Art. 34, par. 6 || Amended 
 Art. 55, par. 2 || Art. 34, par. 6 || Adapted 
 Art. 56, par. 1 || Art. 34, par. 4, 5, 6, & 7 || Amended 
 Art. 56, par. 2 || Art. 34, par. 4, 5 & 6 || Amended 
 Art. 56, par. 3 || Art. 34, par. 7 || Adapted 
 Art. 56, par. 4 ||   || New 
 Art. 57 || Art. 35 || Amended 
 Art. 58, par. 1 || Art. 36, par. 1 || Amended 
 Art. 58, par. 2 || Art. 36, par. 2 || Adapted 
 Art. 59 ||   || New 
 Art. 60, par. 1 || Art. 45, par. 1 || Adapted 
 Art. 60, par. 2 || Art. 45, par. 9 || Amended 
   || Art. 45, par. 10 || Deleted 
 Art. 61, par. 1 || Art. 41, par. 1 & 2 || Adapted 
 Art. 61, par. 2 || Art. 42, par. 3; Art. 44, par. 1 || Adapted 
 Art. 62 || Art. 41, par. 3 || Adapted 
 Art. 63 || Art. 42, par. 1, point (c); Art. 44, par. 1 || Adapted 
 Art. 64, par. 1 || Art. 43, par. 1, 1st subpar.; Art. 44, par. 1 || Adapted 
 Art. 64, par. 2 || Art. 43, par. 1, 2nd & 3rd subpar. || Amended 
 Art. 64, par. 3 || Art. 43, par 2 & 3 || Amended 
 Art. 64, par. 4 || Art. 43, par. 5 || Adapted 
 Art. 65, par. 1 || Art. 44, par. 1; Art. 70, par. 1, point (b) || Amended 
 Art. 65, par. 2 || Art. 44, par. 2, 3 & par. 4, 2nd subpar. || Amended 
 Art. 65, par 3 || Art. 44, par. 4, 1st subpar. || Adapted 
 Art. 65, par. 4 ||   || New 
 Art. 65, par. 5 || Art. 44, par. 6 & 7 || Amended 
 Art. 65, par. 6 || Art. 44, par. 8 || Amended 
 Art. 66, par. 1 || Art. 44, par. 5, 1st subpar. || Amended 
 Art. 66, par. 2 and 3 || Art. 44, par. 5, 2nd & 3rd subpar. || Adapted 
 Art. 67, par. 1 || Art. 45, par. 6 || Amended 
 Art. 67, par. 2 || Art. 46, par.2 || Amended 
 Art. 68, par. 1 || Art. 47, par. 1, 1st sentence || Adapted 
 Art. 68, par. 2 || Art. 47, par. 1, 2nd sentence || Adapted 
 Art. 69, par. 1 || Art. 49, par. 1 || Adapted 
 Art. 69, par. 2 || Art. 49, par. 2, 1st & 2nd subpar. || Adapted 
 Art. 69, par. 3 || Art. 49, par. 2, 3rd subpar. || = 
 Art. 69, par. 4, 5 and 6 || Art. 49, par. 3, 4 & 5 || = 
 Art. 70, par. 1 || Art. 51, par. 1 || Adapted 
 Art. 70, par. 2 || Art. 51, par. 2 || = 
 Art. 70, par. 3 || Art. 52, par. 1 || = 
 Art. 70, par. 4 || Art. 51, par. 3 || Adapted 
 Art. 70, par. 5 ||   || New 
 Art. 70, par. 6 ||   || New 
 Art. 70, par. 7 ||   || New 
 Art. 71, par. 1 || Art. 53, par. 1 || = 
 Art. 71, par. 2 || Art. 53, par. 2 || Adapted 
 Art. 71, par. 3 || Art. 53, par. 6 || = 
 Art. 71, par. 4 || Art. 53, par. 7 || = 
 Art. 71, par. 5 || Art. 53, par. 9 || Adapted 
 Art. 71, par. 6 ||   || New 
 Art. 72, par. 1 || Art. 54, par. 1 & 2 || Adapted 
 Art. 72, par. 2 || Art. 54, par. 3 || Adapted 
 Art. 73, par. 1 || Art. 53, par. 4 & 5 || Amended 
 Art. 73, par. 2 || Art. 54, par. 5 & 6 || Amended 
 Art. 73, par. 3 ||   || New 
 Art. 74, par. 1 || Art. 53, par. 3; Art. 54, par. 4 || Adapted 
 Art. 74, par. 2 ||   || New 
 Art. 74, par. 3 || Art. 53, par. 3; Art. 54, par. 4 || Amended 
 Art. 75, par. 1 || Art. 52, par. 2 || Amended 
 Art. 75, par. 2 || Art. 52, par. 3 || Amended 
 Art. 75, par. 3 ||   || New 
 Art. 76, par. 1 || Art. 55, par. 1 || Amended 
 Art. 76, par. 2 || Art. 55, par. 1, point (a) || Amended 
 Art. 76, par. 3 ||   || New 
 Art. 76, par. 4 || Recital 1; Recital 55, 3rd par. || Amended 
 Art. 76, par. 5 ||   || Amended 
 Art. 77 ||   || New 
 Art. 78 ||   || New 
 Art. 79, par. 1 || Art. 57, par. 1 || Amended 
 Art. 79, par. 2 || Art. 57, par. 1 || Adapted 
 Art. 79, par. 3, point (a) || Art. 57, par. 1, 2nd subpar., point (a) || = 
 Art. 79, par. 3, point (b) || Art. 57, par. 1, 2nd subpar., point (b) || = 
 Art. 79, par. 3, point (c) || Art. 57, par. 1, 2nd subpar., point (c) || = 
 Art. 79, par. 3, point (d) || Art. 57, par. 1, 2nd subpar., point (d) || Amended 
 Art. 79, par. 3, point (e) || Art. 57, par. 1, 2nd subpar., point (e) || = 
 Art. 79, par. 4, 1st & 2nd subparagraph || Art. 57, par. 2 || Amended 
 Art. 79, par. 4, 3rd subparagraph ||   || New 
 Art. 79, par. 5 || Art. 57, par. 3 || Adapted 
 Art. 79, par. 6 ||   || New 
   || Art. 58; Art. 59 || Deleted 
 Art. 80 || Art. 38 || Amended 
 Art. 81, par. 1 || Art. 37, 1st sentence || = 
 Art. 81, par. 2 ||   || New 
 Art. 81, par. 3 || Art. 37, 2nd sentence || Adapted 
 Art. 82, par.1 – 5, par. 7 ||   || New 
 Art. 82, par. 6 || Art. 40, par. 3, point (f) || Amended 
 Art. 83 ||   || New 
 Art. 84 ||   || New 
 Art. 85 ||   || New 
 Art. 86 ||   || New 
 Art. 87 || Art. 60 || = 
 Art. 88 || Art. 61 || Adapted 
 Art. 89, par. 1 || Art. 63, par. 1, 1st subpar. || Adapted 
 Art. 89, par. 2, 1st and 2nd subparagraphs || Art. 63, par. 1, 1st subpar; 2nd subpar., 1st sentence || Adapted 
 Art. 89, par. 2, 3rd subparagraph || Art. 63, par. 1, 2nd subpar., 2nd sentence || Amended 
 Art. 89, par. 3 || Art. 63, par. 2 || Adapted 
 Art. 90 || Art. 65 || = 
 Art. 91 || Art. 66 || = 
 Art. 92 || Art. 72, 1st subpar. || Adapted 
 Art. 93, par. 1 || Art. 72, 2nd subpar. || Amended 
 Art. 93, par. 2 - 8 ||   || New 
 Art. 94 || Art. 50 || Amended 
 Art. 95, par. 1 - 3 || Art. 67 || Amended 
 Art. 95, par. 4 ||   || New 
 Art. 95, par. 5 || Art. 70, par. 1, point (c) || Adapted 
 Art. 95, par. 6 || Art. 67, par. 3 || Amended 
 Art. 96 ||   || New 
 Art. 97 ||   || New 
 Art. 98 || Art. 68, par. 3 & 4 || Amended 
 Art. 99 || Art. 68, par. 5 || Amended 
 Art. 100, par. 1 || Art. 68, par. 1 || Adapted 
 Art. 100, par. 2 || Art. 68, par. 3 || Adapted 
 Art. 101, par. 1 || Art. 71, par. 1 || Adapted 
 Art. 101, par. 2 || Art. 71, par. 2 || = 
 Art. 102 || Art. 73 || Adapted 
 Art. 103 ||   || New 
 Art. 104 and 105 || Art. 74; Art. 75 || = 
   || Annex I to X || Deleted 
 Annex I (except 1st sentence) || Annex XII (except footnote 1) || = 
 1st sentence of Annex I || Footnote 1 to Annex XII || Amended 
 Annex II ||   || New 
 Annex III, points A, B, C, E, F, G, H, I and J || Annex XI || Adapted 
 Annex III, point D ||   || New 
 Annex IV, (a) – (g) || Annex XXIV, (b) – (h) || = 
 Annex IV, (h) ||   || New 
 Annex V ||   || New 
 Annex VI || Annex XV || Amended 
 Annex VII || Art. 56, par. 3, points (a) – (f) || = 
 Annex VIII, except for point 4 || Annex XXI || Adapted 
 Annex VIII, point 4 || Annex XXI || Amended 
 Annex IX || Annex XX || Amended 
 Annex X || Annex XIV || Amended 
 Annex XI || Annex XIII || Amended 
 Annex XII || Annex XVI || Amended 
 Annex XIII, 1. || Art. 47, par. 4 || Adapted 
 Annex XIII, 2. || Art. 47, par. 5 || Adapted 
 Annex XIV || Annex XXIII || Amended 
 Annex XV ||   || New 
 Annex XVI || Annex XVI || Amended 
 Annex XVII || Annex XVII || Amended 
 Annex XVIII ||   || New 
 Annex XIX || Annex XVIII || Amended 
 Annex XX || Annex XIX || Amended 
  Annex XI || Annex XXVI || Amended 
   || Annex XXII || Deleted 
   || Annex XXV || Deleted 
[1]               Directive 2004/17/EC of 31 March 2004 coordinating
the procurement procedures of entities in the water, energy, transport and postal
services sectors, OJ L 134, 30.4.2004, p. 1.
[2]               Directive 2004/18/EC of 31 March 2004 on the
coordination of procedures for the award of public works contracts, public
supply contracts and public service contracts, OJ L 134, 30.4.2004, p. 114.
[3]               Directive 2009/81/EC of 13 July 2009 on the
coordination of procedures for the award of certain works contracts, supply
contracts and service contracts by contracting authorities or entities in the
fields of defence and security, and amending Directives 2004/17/EC and
2004/18/EC, OJ L 216, 20.8.2009, p. 76.
[4]               Directive 92/13/EEC of 25 February 1992 coordinating
the laws, regulations and administrative provisions relating to the application
of Community rules on the procurement procedures of entities operating in the
water, energy, transport and telecommunication sectors, OJ L 76, 23.3.1992, p.
14.
[5]               COM(2011)
15. 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0015:FIN:EN:PDF
[6]               http://ec.europa.eu/internal_market/consultations/docs/2011/public_procurement/synthesis_document_en.pdf
[7]               http://ec.europa.eu/internal_market/publicprocurement/modernising_rules/conferences/index_en.htm
[8]               European Commission Implementing Decision 2011/481/EU
of 28 July 2011exempting exploration for oil and gas and exploitation of oil in
Denmark, excluding Greenland and the Faroe Islands, from the application of
Directive 2004/17/EC of the European Parliament and of the Council coordinating
the procurement procedures of entities operating in the water, energy,
transport and postal services sectors, OJ L 197 of 29.7.2011, p. 20; European
Commission Implementing Decision 2011/372/EU of 24 June 2011 exempting
exploration for oil and gas and exploitation of oil in Italy from the
application of Directive 2004/17/EC of the European Parliament and of the
Council coordinating the procurement procedures of entities operating in the
water, energy, transport and postal services sectors, OJ L 166 of 25.6.2011, p.
28; European Commission Decision 2010/192/EU of
29 March 2010 exempting exploration for and exploitation of oil and gas in
England, Scotland and Wales from the application of Directive 2004/17/EC of the
European Parliament and of the Council coordinating the procurement procedures
of entities operating in the water, energy, transport and postal services
sectors; OJ L 84 of 31.03.2010, p. 52; European Commission Decision 2009/546/EC
of 8 July 2009 exempting exploration for and exploitation of oil and gas in the
Netherlands from the application of Directive 2004/17/EC of the European
Parliament and of the Council coordinating the procurement procedures of
entities operating in the water, energy, transport and postal services sectors,
OJ L 181 of 14.07.2009, p. 53. 
[9]               See in particular European Commission Decision
2004/284/EC of 29 September 1999 declaring a concentration compatible with the
common market and the EEA Agreement (Case No IV/M.1383 — Exxon/Mobil) and
subsequent decisions, inter alia, European Commission Decision of 03/05/2007
declaring a concentration to be compatible with the common market (Case No
COMP/M.4545 — STATOIL/HYDRO) according to Council Regulation (EEC) No 139/2004.
[10]             Directive 94/22/EEC of the European Parliament and of
the Council of 30 May 1994 on the conditions for granting and using
authorizations for the prospection, exploration and production of hydrocarbons,
OJ L 79 of 29.3.1996, p. 30.
[11]             European Commission Staff Working Document SEC(2008)
2193.
[12]             OJ C
[13]             OJ C
[14]             OJ C 
[15]             SEC(2011) 853 Final of 27.6.2011
[16]             COM(2010) 2020 final, 3.3-2010.
[17]             OJ L 134, 30.4.2004, p. 1.
[18]             OJ L 134, 30.4.2004, p. 114.
[19]             See p. [ ] of this Official Journal.
[20]             OJ L 204, 21.7.1998, p. 1
[21]             OJ L 27, 30.1.1997, p. 20.
[22]             OJ L 15, 21.1.1998, p. 14.
[23]             OJ L 164, 30.6.1994, p. 3.
[24]             OJ L 315, 3.12.2007, p. 1.
[25]             OJ L 336, 23.12.1994, p. 1.
[26]             SPC/2010/10/8 Final of 6.10.2010.
[27]             OJ L 211, 14.8.2009, p. 94 
[28]             OJ L 211, 14.8.2009, p. 55 
[29]             OJ L 342, 22.12.2009, p. 1. 
[30]             OJ L 120, 15.5.2009, p. 5.
[31]             OJ L 39, 13.2.2008, p. 1.
[32]             OJ L 18, 21.1.1997, p.1.
[33]             OJ L 18, 21.1.1997, p. 1.
[34]             OJ L 124, 8.6.1971, p. 1.
[35]             OJ L 55, 28.2.2011, p. 13.
[36]             OJ L 55, 28.2.2011, p. 13.
[37]             OJ L 154, 21.6.2003, p. 1
[38]             OJ L 217, 20.8.2009, p. 76.
[39]             OJ L 145, 30.04.2004, p. 1.
[40]             OJ L 193, 18.7.1983, p. 1. Directive
as last amended by Directive 2001/65/EC of the European Parliament and of the
Council (OJ L 283, 27.10.2001, p. 28).
[41]             European Commission Decision of 13 May 1993 defining
the conditions under which contracting entities exploiting geographical areas
for the purpose of exploring for or extracting oil, gas, coal or other solid
fuels must communicate to the European Commission information relating to the
contracts they award, OJ L 129, 27.5.1993, p. 25.
[42]             Directive 1999/93/EC of the European Parliament and of
the Council of 13 December 1999 on a Community framework for electronic
signatures, OJ L 13, 19.1.2000, p. 12.
[43]             OJ L 274, 20.10.2009, p. 36.
[44]             OJ L 53, 26.2.2011, p. 66.
[45]             OJ L 340, 16.12.2002, p. 1.
[46]             OJ L 210 of 31.7.2006, p. 19
[47]             OJ L 76, 23.03.1992, p. 14.
[48]             OJ L 218, 13.8.2008, p. 30.
[49]             OJ L 342, 22.12.2009, p. 1. 
[50]             OJ L 281, 23.11.1995, p. 31.
[51]             OJ L 201, 31.7.2002, p. 37.
[52]             OJ L […]
[53]             OJ L 185, 16.8.1971, p. 15
[54]             OJ L 237, 24.8.1991, p. 25
[55]             Information in headings 6, 9 and 11
is deemed information not intended for publication where the awarding entity
considers that publication thereof might be detrimental to a sensitive
commercial interest.
[56]             "Adapted" means that the wording of the text
was changed, while the meaning of the repealed directive was preserved. Changes
to the meaning of the provisions of the repealed directive are indicated by the
term "Amended".