CELEX: 51988PC0378
Language: en
Date: 1988-10-11
Title: PROPOSAL FOR A COUNCIL DIRECTIVE ON THE PROCUREMENT PROCEDURES OF ENTITIES OPERATING IN THE TELECOMMUNICATIONS SECTOR (presented by the Commission)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (88) 378
Vol. 1988/0136
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                           COM ( 88 )  378 final - SYN 154
                                           Brussels , 110ctober 1988
                  PROPOSAL FOR A COUNCIL DIRECTIVE
                  ON THE PROCUREMENT PROCEDURES OF
        ENTITIES OPERATING IN THE TELECOMMUNICATIONS SECTOR
                    ( presented by the Commission )
 ---pagebreak---                                  -Λ                                     J.
                         explanatory Memorandum
A. Baclcground
B. The fleld ef application
   ( 1 ) the general approach
   ( 2 ) The legal mechanism
   ( 3 ) Exceptions for compétitive activitles
C. The obi Igat Ions
   ( 1 ) The general approach
   ( 2 ) The legal mechanism
D. Comments on the articles of the Directive
   ( 1 ) Title I       General provisions
               /
   ( 2 ) Title 1 1     Technical specifications and standards
   ( 3 ) Title 1 1 1   Procedures for the award of contracts
   ( 4 ) Title IV      Qualification , selection and award of contracts
E. Relations wlth thlrd countries
   (1)       General considérations
   (2)       The situation In the telecommunications sector
   (3)       The legal mechanism
F. Progressiveness of Introduction , and monitoring of progress
G. Final provisions
 ---pagebreak---                                  EXPLANATORY    MEMORANDUM
A.     Background
1 .    The Directives          In force on the public procurement of            supplies
       and works specifically exclude certain areas of                  activity from
       their scope , among which the telecommunications sector .
2.     The supplies Directive 77/62/ EEC^ 1 ^ as modified by Directive
       88/ 295 / EEC ( 2 )    does    not    apply    to    contracts      awarded     by
       contracting         authorities   whose   principal    activity     is  to offer
       telecommunications services .           The works Directive 71 / 305/ EEC ^ 3 ^
       does not specifically exclude such contracting authorities with
       the    result      that   such  bodies   which   have   the   status   of    State
       authorities are covered .           The other entities operating           in  the
       telecommunications          sector   are   not   covered    by   any   of    these
       D I rect I ves .
3.     The    intention       to  open  up   the  markets    for   telecommunications
       equipment        to    EC-wide   competition     dates    back    to   1976 .   In
       December 1976 ^ 4 \ the Council Invited the Commission to propose
       measures      whereby     supply   contracts    in  this   area    could   become
       subject to effective competition at Community level .
( 1 ) O.J. L 13 of 15 January 1977 .
( 2 ) O.J. L 127 of 20 May 1988 .
( 3 ) O.J. L 185 of 15 August 1971 .
( 4 ) O.J. C 11 of 15 January 1977 .
 ---pagebreak---                                           - 3 -
4.     Specific measures were decided in 1984 when the Council adopted
       the      Recommendation        84/ 550/EEC^® ^       according         to      which
       opportunities should be provided for undertakings established in
       other Community countries to tender for :
       -   all purchases of new telematic terminals and all conventional
           terminals     for      which     there      are    common       type-approval
           specifications ,
       -   at    least   10%    of    the     annual    orders     of     switching     and
           transmission     apparatus      as   well    as  other     than    the    above-
           mentioned terminal apparatus .
       A report on the Implementation of this Recommendation is attached
       to the Communication on "A Community Regime for Procurement in
       the      Excluded     Sectors :       Water ,      Energy ,     Transport        and
       Telecommunications "             A    survey    on    the    structure      of   the
       telecommunications sector          is given     in chapter      II   B 4 of that
       Communication .
5.     The realisation of the Internal market by 1992 requires that the
       complementary measures now be taken .             The economic Justification
       for doing so Is clear as already explained in recent studies on
       the    benefits   to   be    realised      through   the    completion       of  the
       internal       market ^ 7 ). With         particular        regard        to     the
       telecommunications sector          the    Intention to make the necessary
       proposals to that effect was also Included In the common policy
       on telecommunications which has developed rapidly since 1984                     and
( 5 ) O.J. L 298 of 16 November 1984 .
( 6 ) C0M(88)376 final of -
( 7 ) See The economics of 1992 , European Economy No . 35 , March 1988 .
 ---pagebreak---                                              4
       has now acquired the global             character    described    In the Green
       Paper of 1987(® ). The telecommunications Council of 30 June
       1988 has confirmed the objective of complete opening up of both
       the supplies and the works contracts In this area and has Invited
       the Commission to make the necessary proposals .
6.     The Commission 's approach to introducing EC-wide competition in
       the telecommunications sector           Involves two main     lines of action :
       to help market forces to play in such a way that " buy national "
       for    Its   own    sake   cannot   occur ,  and   to   Introduce   procurement
       procedures       In those areas where the forces of competition are
       absent or not sufficient to ensure that result .                As regards the
       first line of action , the Commission Directive 88/ 301 / EEC^ 9 ^ on
       competition        In    the   market    of     telecommunications     terminal
       equipment is the first step .
7.     Effective        EC-wide      competition      requires     parallel    action ,
       furthermore , notably In the field of standardisation .                The main
       measures      to   that   effect   concern    the  use   of  common   technical
       requirements and the recognition of type approvals .                The Council
       Directive 86/ 361 / EEC ^ 1 ° ) and the Council Decision 87/95/ EEC
       ( 11 ) are therefore particularly relevant In this context .
( 8 ) COM ( 87 ) 290 final Of 30 June 1987 .
( 9 ) O.J. L 131 of 27 May 1988 .
( 10 )      O.J. L 217 of 5 August 1986 .
( 11 )      O.J. L 36 of 7 February 1987 .
 ---pagebreak---                                            - 5 -
8.     This proposal         is limited to the telecommunications sector .       The
       sectors of water , energy and transport are subject to a separate
       proposa I ( 1 2 ) .    In Its operational parts , the regime proposed
       for the telecommunications sectors Is largely the same as for the
       other sectors . The degree of flexibility Inherent to that
       regime , such as the mechanisms such as for calling for
       competition and for qualifying and selecting suppliers are indeed
       appropriate for any sector           In which a balance has to be struck
       between the needs on the one hand to avoid overly rigid rules to
       be applied to private entities and , on the other hand , to take
       account of         the procurement     rules already applicable to those
       entities which are public .
9.     The consultations          leading to the preparation of       this proposal
       have   however        brought  to   light   some   specific  factors   In the
       telecommunications sector which require different provisions from
       those     of      the    other   Directive .   The   main   points   are  the
       progressive application of the provisions of this Directive , and
       the use of a specific Advisory Committee on Telecommunications
       Procurement to assist the Commission with various aspects of the
        Implementation of the Directive .           As emphasized In paragraph 6
       above , the situation In the area of standardization is In full
       development and , although for the time being the text proposed Is
       the same as far the other sectors , a different text Is likely to
       be required to reflect the new situation In this sector when In
       the autumn of 1988 the statute of the European Telecommunications
       Standards Institute will be finalized .
( 12 )     COM ( 88 ) 377 final of ... This Directive Is here in after
           referred to as the " Directive on the other sectors ", In order
           to facilitate the reading of this document .
 ---pagebreak---                                         6 -
B.   THE FIELD OF APPLICATION
(1 ) The general approach
10 . The   main    reason   given   for   excluding        the    telecommunications
     sector from the supplies Directive was , as                in the case of the
     other   sectors    concerned ,   that     a   particular      activity     may   be
     allocated to a " public " entity          In some States ,       to a " private "
     entity   in    others   or  Indeed   to     both .    In   addition ,    even   the
     concept of a public entity Is highly variable depending on the
     precise    context ,   national    and     regulatory .      As   a    result   any
     Community approach to the problem which sought                   to base     Itself
     simply on a distinction between public and private entitles would
     confront    enormous    difficulties at       the outset       and    probably   be
     doomed to failure .      A concept must be developed which addresses
     the    procurement      problem     In      terms     which      transcend      the
     public/ private distinction and permit              situations which        are  In
     substance     the    same   to   be    treated       equally      regardless     of
     differences in legal form .
11 . Accordingly , as regards the field of application , the proposal
     Is  based     on    identification     of     those      underlying      objective
     conditions which      lead entities     In the     telecommunications sector
     to pursue procurement policies that are uneconomic                   In the sense
     that they do not ensure that the best offer from any supplier or
     contractor      in the   Community     is    systematically        preferred    but
     privilege national suppliers .
12 . Two types of condition are of particular relevance .
 ---pagebreak---                                      - 7 -
13 . First , barriers to entry for potential competitors , whether
     technical , economic or legal , often place an entity , public or
     private ,  In a situation In which It        Is sufficiently Insulated
     from the force of the market that It can pursue other goals than
     that of always securing the best offer , including the protection
     of national suppliers and contractors .
14 . This position of relative privilege can arise in a number of
     ways . The entity may have a formal legal monopoly of a
     territorial character .     Even in the absence of a true monopoly ,
     the number of participants may be restricted by technical , legal
     or economic factors , or some combination of all of these , so that
     the competitive environment        is fundamentally qualified and the
     comportment of the entitles concerned Is not market led .
15 . Where    a good   or   service    Is made   available  by  means    of   a
     technical    network ,  as   In  the   telecommunications  sector ,    the
     system has a natural       tendency to develop     into a monopoly or
     oligopoly . That natural tendency may well be reinforced by the
     allocation by the State of special rights or powers relating to
     the management of the network . Regardless of whether they are
     public or private , the entitles supplying or managing the network
     are In a position in which competitive forces are qualified in
     such a way that regulatory or other governmental measures are
     considered necessary to redress the balance .
16 .  Indeed , the second type of . condition leading to uneconomic
     procurement , which is often but not always associated with
     barriers to entry , consists In the means available to a State to
      Influence the present or future operations of an entity . Such
 ---pagebreak---                                           8
     means take multiple forms .          The public character of an entity
     often automatically involves such means of Influence : control of
     the entity 's management by the State or of              Its financing , for
     example .    But   private    entitles   too   can equally     be   subject   to
     State influence , particularly where a vital activity depends on
     the State 's continued approval , for example , on a special right
     to   carry    out    that   activity .    In  such   cases ,    It   Is  hardly
     surprising     that ,  even    In the absence of      explicit     demands ,  an
     entity may decide that It is in Its long-term interests to accept
     the State 's objectives as Its own , despite the short-term cost ,
     and direct procurement to national firms rather than those from
     other Member States .
17 . Where    the    two   conditions ,     insulation    from    the   market    and
     exposure to State Influence , are both present to a significant
     degree , and perhaps for a period of very many years , the result
      is that substantial markets are essentially closed to suppliers
     or contractors from other Member States , however competitive they
     may be .   Indeed , the result In some cases appears to be a firmly
     closed , vicious circle In which outside firms do not even try ,
     since to do so would be a waste of resources and Impossible for a
     responsible manager to Justify .
(2)  The legal mechanism
18 . The  draft    proposal     seeks  to   Identify   those   situations     In  the
     telecommunications        sector   In   which ,   whatever    the    public   or
     private    status      of    the  entitles      concerned ,    the    objective
     conditions     leading to nationalist purchasing practices can be
     identified .     These conditions , which are of necessity drafted In
     rather general terms , are the following .
 ---pagebreak---                                      - 9 -
19 .  The first category of entitles are those which operate the
      technical      network     which       Is      needed     for     providing
      telecommunications services , and which , by Its very existence ,
      limits the scope for competition . Once one network Is In place
      the prospects for competition through an alternative network or
      new entrants are In practice small . Even If provision Is made
      for an alternative , the number of competitors is likely to remain
      so limited that at best they constitute an oligopoly .
20 .  The   second    category   of   entitles      are   those   which    provide
      telecommunications     services     to    the    public .  In   many   cases
      entities   do   of   course   both   operate      a  network   and   provide
      telecommunication services .      However ,     the evolution of markets
      and of the entitles' activities is such that both cases need to
      be mentioned explicitly .
21 .  As explained In paragraph 15 above , the Insulation from market
       forces is all the more pronounced where governments have legally
       reinforced the natural monopoly or oligopoly , and have reserved
       for themselves the possibility of Influencing the comportment of
       the entitles , by way of granting them special or exclusive rights
      with regard to the operation of the network or the rendering of
       telecommunication services .      The existence of        such   rights   Is
       therefore also required as a criteria for qualifying entitles to
       be covered by this Directive .
 22 .  In order    to ensure a high degree of             legal   certainty , the
       provisions formulating those conditions are complemented by a
       nominative    list of entitles . The annex gives the national
       legislator as brief and precise an Identification as possible of
       the organizations subject ot the Community regime . The annex
       will also facilitate the Commission 's task of applying the
       Directive once It Is In force . A mechanism for keeping the annex
       up to date is also provided .
 ---pagebreak---                                            10
(3)  Exceptions for compétitive actlvltlés
23 . Présent      trends       In     télécommunications         Indlcate     growlng
     competition in some Member States for the provision of a number
     of services .
     In  some of    these areas ,       it   may be assumed      that   the entitles
     concerned will      be   led by     the market     to pursue     fair  and open
     procurement    policies .      In such cases regulation would have no
     useful   purpose and the proposal would be open to the criticism
     that it seeks regulation for regulation 's sake .
     For  this reason ,     the proposal       contains a number of        provisions
     designed to take account of situations in which the market is , in
     form and    in reality , open and other          factors    likely to    lead to
     nationalist procurement are absent .
C.   THE OBLIGATIONS
(1 ) The general approach
24 . The obligation to be          Imposed on entities to be covered by the
     new   Community     Instrument     must    take   fully    Into   account   their
     particular character .         Public or private ,      they differ     from the
     essentially administrative organizations typically covered by the
     existing Directives         in having economic or        Industrial    purposes .
      In  addition ,    to   achieve       their   goals ,   they    rely   upon   the
     exploitation      of    a     network     which    is   complex     and    highly
     specialized .    They are in a real sense enterprises having much in
     common with ordinary enterprises              that  are   not   subject   to  the
     particular conditions outlined above .
 ---pagebreak---                                       11
25 . Accordingly , the obligations to be imposed should not be those
     long    applied     to   the   administrative     bureaucracies . More
     flexibility is required to permit the entities concerned to
     manage their procurement activities effectively In the light of
     their particular circumstances . The requirements should not be
     conceived as a comprehensive regulation of the procurement
     function , but as the minimum safeguards needed to permit the
     entities concerned to secure the best offer from all Community
     firms that are In position to compete .
26 . The   regime   proposed    Is  a    framework  for   sound   commercial
     practice .  Much of the details will be settled by the purchasing
     entitles themselves In accordance with their particular needs and
     circumstances .    Flexibility Is provided as to the choice of open ,
     restricted or negotiated procedures and the particular manner in
     which the procedures are opened to competition .      Traditional open
     tender   notices ,   periodic  notices    of  procurement   intentions ,
      Invitation to suppliers who have qualified through an accessible
     qualification system all find their place In the system . The
     counterpart of this flexibility Is that , whatever procedures are
     used , they will have to be transparent and capable of being
     monitored In order to help create the climate of mutual
     confidence without which the market opening would not take place
      In real terms .
 (2) The legal mechanism
27 . Although the telecommunications sector Is subject to a
     comprehensive Community policy , the particular aspect of
     procurement is not much different In Its nature from the patterns
     observed In the other excluded sectors . In order to ensure that
     the regimes to be applied in all these sectors are Identical or
 ---pagebreak---                                            12
     at   least as close as possible ,           the   legal mechanism chosen for
     this    Directive      Is   therefore   to   make   cross-references     to  the
     Directive on the other sectors .          It   Is obvious that this Directive
      is therefore not fully self-explanatory ; but the link between the
     two proposals concerning the excluded sectors                   is sufficiently
     close     that    both   texts will    In any case have to be considered
     together .       Moreover ,   the explanations given on          the Individual
     Articles of this Directive , in part D below , provide full details
     on the provisions of the other Directive to which this Directive
     refers .
D.   COMMENTS ON THE ARTICLES OF THIS DIRECTIVE
(1 ) Tit le I - General provisions
28 . Article 1 specifies which types of entities have to apply this
     Directive on the basis of their status ,                their powers and their
     act I vi t les .
29 . More precisely , Article 1 covers :
     -   those entities         in the public sector which either operate a
         public telecommunications network or offer telecommunications
         services to the public , or do both ;
     -   those other entitles which are granted special or exclusive
         rights        by    the    Member     State      to    operate   a    public
         telecommunications          network     or    to     offer   one   or   more
         telecommunications services to the public , or to do both .
30 . Legal     certainty about which entities fulfil              these criteria    is
     established ,       pursuant to the      last sentence of paragraph 1 ,       as
     regards the entitles listed in Annex I.
 ---pagebreak---                                      13 -
31 . Article 2 permits a contracting entity meeting the criteria of
     Article 1 not to apply the provisions of this Directive to Its
     purchases when the latter are made exclusively In connection with
     either an activity outside the telecommunications sector or with
     a telecommunication service which the entity offers In
     competition with other providers under the same conditions and In
     the same geographical area .
32 . As regards activities outside the telecommunications sector , the
     field   of  application    of  this    Directive   requires   that   such
     activities be clearly identified .      Moreover , transparency of the
     procurement market     requires   that   they are made known      to  the
      Interested suppliers or contractors .      Article 2 ( a ) serves these
     purposes by providing that such activities must be notified to
     the Comm iss ion . and published    In  the Official    Journal ,  before
     being   exempted    from  this   Directive .   Notifications    of   such
     activities could be made even before this Directive comes Into
     force so that they can be published , and the relevant activity be
     excluded from this Directive from the start .
33 .  In the second case , that is , a competitive environment for
     certain telecommunication services , the notification requirement
      Is according to Article 2 ( b ) addressed to the Member States who
     should be In a position to Inform the Commission about the
      relevant legal provisions which are those , in particular , that
      ensure that other potential market participants are free to offer
      the service concerned under the same conditions as the
      contracting entity concerned .
      It must be underlined here that a State requirement Imposing
      restrictions of a technical nature , for example , allocation of
      frequencies , Is not to be considered as a limitation to
      competition as long as several enterprises are free to compete
      for access to the market .
 ---pagebreak---                                                 14 -
34 .   Article      3    makes    applicable      the  following     provisions     of   the
       Directive on the other sectors :
       (a)        Concerning definitions : Article 1 , paragraphs 1 to 3 , 5 ,
                  7 to 10 , 12 and 13 .
35 .   Article 1        (1)   to ( 3 )  define the entities       In the public sector
       from a legal point of view by referring to the public sector as
       defined for the purposes of the existing Directives 77 / 62 / EEC and
       71 / 305 / EEC .    In    addition     the    public   sector      also   embraces ,
       according to paragraph 3 , those public undertakings which are the
       object of the Directive on financial transparency ^ 13 ^ .
36 .   Paragraphs 5 , 7 and 8 correspond to the definitions used In the
       existing       Directives       for   the   kind  of   contracts      covered ,   the
       participants          in   award     procedures ,   and   the     types   of    award
       procedures .
37 .   Paragraphs 9 , 10 , 12 and 13 concern the terminology used In the
       area of standards and technical specifications .                  They are in line
       with the definitions used in the existing Directives , as regards
       paragraphs 9 , 10 and 12 , with some simplified language notably In
       paragraph        9.    It   should     also    be   noted    that    reference      is
       explicitly made to " quality assurance requirements ", In order to
       clarify that         technical      specifications may also deal         with such
       matters       as     the    necessary      organisation     and     monitoring     of
       production processes ,           and with the durability of products and
       their maintenance .           Paragraph 13 corresponds         to   the definition
       proposed in the draft Directive on construction products ^ 14 ) .
( 13 )      Directive 80/ 723 / EEC of 25 June 1980 , O.J. L 195 of 29.7.1980 .
( 14 )      Initial       Commission        proposal :    C0M(86 )    756     final / 3   of
            17 February 1987 .
 ---pagebreak---                                           15 -
38 . The definitions contained In paragraphs 4 and 6 are not relevant
     because they concern the water sector only .
39 . The definition of European standards contained In paragraph 11
     is not appropriate for the telecommunications sector because It
     does not take Into account the role which the European
     Telecommunications Standards Institute ( ETSI ) will play in the
     future ( cf . paragraph 9 above ). A more appropriate definition Is
     therefore Introduced for the specific purposes of this Directive ,
      in Article 3 ( 2 ) ( b ).
40 . Furthermore ,   Article     3   (2)   (a) of  this  Directive  contains  a
     definition of     software service contracts ,       which has not    been
     necessary for the purposes of the Directive on the other sectors .
     Software forms such an important part of many telecommunications
     equipment    contracts     that   it   is essential  to  include  software
     service contracts from the outset ,           in the other sectors ,  this
     problem can be re-examined in the content of the new proposals
     now being prepared concerning public procurement of services .
      (b)     Concerning general         rules on the exclusion of certain
              contracts : Articles 4 , 6 , 7 and 8 .
41 . The reference to Article 4 of the Directive on the other sectors
     has the effect that another group of contracts , namely those
     where the contracting entity intends to sell or hire the
     equipment purchased In a competitive market , are not covered by
      this Directive .    This exclusion is similar in nature to the one
      provided for in Article 2 ( b ) of this Directive ( cf . paragraph 32
      above ). The consequence of these two exclusions is that
      procurement necessary for either offering services or products to
      the end consumer are excluded from this Directive when the end
      consumer has the choice between several suppliers .
 ---pagebreak---                                                16
42 .   Tne reference to Article 6 of the Directive on the other sectors
       has the effect of excluding from this Directive contracts whlcn
       In    their     execution     must    be   accompanied    by   special    security
       measures or when the protection of                the basic     Interests of     the
       State 's security so requires .
       It Is limited In that It Is only by virtue of specific rules that
       contracts may be excluded from this Directive , or by reference to
       the basic State security Interests which are well-defined In all
       Member States .        The article Is based on a corresponding provision
       added to the supplies Directive               In March 1988     In  Its Article 2
       ( 2 ) ( c ).
43 .   By way of the reference to Article 7 of                   the Directive on the
       other      sectors ,     the   priority     has   been  established      of    other
       procurement        rules    such   as   those   existing    under    International
       agreements , or In connection with the activities of International
       organisations         or   with    the   stationing    of    troops .   Article    7
       corresponds to Article 3 of the supplies Directive .
44 .   Article      8 of    the  Directive on      the other   sectors    which    Is  also
       Included in this reference provides for the thresholds which the
       value of contracts must exceed               In order to be covered by this
       Directive .       The figures are those , as regards supplies , of the
       existing       Directive ,     and   as    regards   works ,   of   the   modified
       Commission       proposal     for   modification     of    the   works   Directive
       ( 15 ). The calculation method laid down In paragraphs 2 to 4 Is
       largely the same as in the supplies Directive , with the relevant
       provisions on works contracts being added notably In paragraphs 5
       and 6 .      Extensive consultation on whether           the   thresholds should
       be raised or         lowered produced no conclusive result .             For every
       argument In one direction , a counter argument can be advanced .
( 15 )      COM ; 88 ) 35--S final of 21 June 1988
 ---pagebreak---                                      17 -
     It accordingly seems sensible to maintain the present levels for
     the time being . They are themselves the end result of long and
     Intensive debate In the Community Institutions and elsewhere .
45 . Since the Directive on the other sectors does not cover software
     service contracts , It was furthermore necessary to lay down a
     specific threshold for such contracts . The figure proposed In
     Article 4 of this Directive to that effect Is the same as for
     supply contracts .
(2)  Title II - Technical specifications and standards
46 . As  explained    In  paragraph 9 above ,    there   Is at  present  no
     evidence of    the telecommunications sector      requiring different
     rules  than   Included   In  the  Directive   on  the  other  sectors .
     Article 5 of     this Directive makes    therefore a global     cross-
     reference to the relevant provisions of         the Directive on the
     other sectors .    There Is Just one addition to those provisions ,
     laid down   in Article 5 paragraph 2 of this Directive ;         It Is
     explained In paragraph 52 below .
47 . The concept underlying Articles 9 to 11 of the Directive on the
     other sectors Is basically the same as the one adopted on this
     matter by the Council concerning the revision of the Directive on
     supply contracts . Its main objective Is to ensure to the maximum
     extent possible that contract specifications do not have the
     effect of excluding foreign suppliers . To that effect ,
     - European standards , common technical specifications and
        European technical approvals are made obligatory , subject to a
        number of exceptions ;
 ---pagebreak---                                            18
     -   there   Is an explicit prohibition on technical                specifications
         which have the effect of             favouring or eliminating certain
         undertakings , except In strictly defined cases ;
     -   performance      specifications        and     standards      that    Indicate
         functional     requirements       rather    than    particular      techniques
         should be used unless there are sound reasons for not doing
         so ; and
     -   transparency of the contract specifications Is ensured by an
         obligation to tell        Interested suppliers in advance what they
         are or where to find them .
48 . It   goes   without     saying ,    that   this   provision      can   apply only
     insofar as the contracting entity has a choice for developing the
     contract     specifications .      There    Is   no   choice ,    however ,  where
     mandatory requirements ,         for example ,      In the form of       technical
     regulations ,      exist .    Such     requirements       must     obviously     be
     respected .
49 .  It   Is   Important      to  understand      that    the   contracting     entity
     remains free to use In-house specifications for those technical
     aspects which are not subject to any of the prescribed standards
     or   specifications or        for   dealing with       situations which      these
     standards or specifications do not address .
50 .  In accordance with the principles of EC standardization policy
     and     of    EC    law ,    contracting      entitles      cannot     under    all
     circumstances       insist    on   compliance      with    those    standards    or
     specifications       which     they    have    laid    down    in   the   contract
     documents .     The principles of equivalence and mutual recognition
     of national standards oblige them to accept any offers which are
 ---pagebreak---                                        - 19 -
     based on satisfactory but different national standards of other
     EC countries . There Is no specific provision on this matter In
     the Directive . But these principles apply as a direct effect of
     Article 30 of the Treaty , in accordance with the decisions of the
     European Court of Justice as recalled in the preamble of this
     Direct Ive .
51 . As the Articles 9 to 11 of           the Directive on the other sectors
     are based on the provisions of the supplies Directive ,                   it  Is
     important     to   point    out    the   differences       compared   to   those
                                                    ■Ф
     provisions .
52 . As  regards    Article 9 ,      there   is  no    particular     preference   in
     paragraph    1   to   legally binding national           technical   rules .  As
     explained    above ,   compliance with      such      rules   is  self-evident .
     Paragraph 3 does not Include the record keeping and information
     requirements which are part of the equivalent provision of the
     supplies Directive .      However , the recording requirement has not
     been deleted from the general Directive .               It is now included in
     its Article 27 which regroups , for the purpose of simplicity , all
     record keeping requirements related to the provisions of this
     Direct ive .
53 . For the purposes of this Directive , the priority of the rules of
     Directive      86/ 361    concerning       telecommunications         terminals
     equipment has been established by Article 5 ( 2 ).
54 . The    differences       In     Article     10      ( other     standards    and
     specifications ), compared to the revised supplies Directive , are
     as follows . Paragraph 1 does not state that the principles of
     equivalence and mutual recognition of standards must be
     respected . This Is now recalled In the preamble . As explained
     above , these principles apply , irrespective of whether or not
 ---pagebreak---                                               20 -
     they have been mentioned , when offers received by the contracting
     entity     refer      to   other    national      standards       than      those      of   the
     country where the contract Is to be awarded .                     Paragraph 2 Is new .
      It  reflects       the     Idea   that    performance         related       standards       or
     specifications           leave   more     choice      to    the     supplier         and    are
     therefore more appropriate than design standards , for the purpose
     of  market       opening .     However ,    provision        Is  made       for     Justified
     deviations         from     this     principle .      Paragraph         3     is     somewhat
     different       from Directive 77 / 62 / EEC         ( Article 7       ( 2 ))    In   that    It
     focuses      on     the     need    not    to     discriminate         against         certain
     undertakings .         It   does    not    prohibit ,       however ,        favouring       or
     eliminating        certain     products .      It   must     indeed      be    possible      to
     require      the      product     to    be    of    a    particular         material ,       or
     performance , and thereby to eliminate others .
55 . Article     11     on    availability      of     technical      specifications            goes
     beyond    the new provisions retained                  for  Directive 77/ 62 / EEC            In
     that    it     requires      contracting       entities       to     Inform       Interested
     suppliers       about     those    technical       specifications         which       will   be
     applied      In    forthcoming       procurements .        In   order       to    avoid     the
     dispatch      of     voluminous       texts ,    references       may      suffice        where
     suppliers        can    have    access     to     the     full     texts .      Contracting
     entities      are    free    to  make    the    relevant       information          available
     against     payment of a fee which must                   not    In   Itself ,       however ,
     operate as a barrier to trade .               This provision corresponds to the
     request of suppliers for having as much specific Information as
     possible at an early stage In order to have a                          longer       lead-time
     for   preparing          participation        in    award      procedures .          It    also
     reflects the widespread practice of some entitles to lay down and
     make available the technical specifications which they regularly
     apply .
 ---pagebreak---                                        21
( 3)   TITLE III - PROCEDURES FOR THE AWARD OF CONTRACTS
(a)    General approach
56 .   Article 6 of this Directive uses again the technique of making a
       global cross-reference to the Directive on the other sectors .     It
       also includes , in its paragraph 2 , the provisions necessary for
       making the Directive on the other sectors applicable to software
       service contracts .     Its paragraph 3 clarifies that the cross-
       reference to the Directive on the other sectors does not cover
       the model notices for making publications In the Official Journal
       of the European Communities .      Instead , there  Is a full set of
       model notices attached to this Directive .
57 .   The cross-reference to the Directive on the other sectors       Is to
       those provisions which deal with the following major aspects :
       -  the choice of award procedures ;
       -  the choice of how to make a call for competition under each of
          the procedures ;
       -  formal    requirements concerning publications In the Official
          Journal of the European Communities ;
     . -  minimum time-llmlts established for each phase of the award
          procedures .
58 .   Contracting entities will according to Article 12 ( 1 ) of the
       Directive    on   the  other sectors   have   a  free  choice between
       procedures which have the characteristics of any one of the
       allowed types of award procedures . Thereby , they will enjoy
       substantially more flexibility than under Directives 77/62/ EEC
       and 71 / 305 / EEC which make the use of the negotiated procedure
       and , concerning supply contracts , the choice of the restricted
       procedures subject to certain conditions . The provisions of
 ---pagebreak---                                              22
     Article    12    do    not   attempt       to    fix   which    award   procedure      Is
     appropriate for what kind of contract .                  It Is rather the entitles
     themselves who will decide .               It would , however , not be a great
     surprise    If the open procedure were mainly used for purchasing
     standard off-the shelf           Items and the negotiated procedures were
     applied In case of complex and sensitive projects .
59 . The objective of          introducing competitive bidding requires that
     there should be a call for competition as part of whatever award
     procedure     has     been   chosen .       The    proposed     provisions     on   this
     matter are designed with particular care In order to allow for a
     maximum of flexibility and to avoid any undue bureaucracy .                          The
     underlying      concept      Is   that       entities     may    chose    between     the
     different     ways     of   approaching         potential     suppliers      which   are
     current practice already .             There are two exceptions from these
     pr Inciples .
60 . In  open    procedures ,      the    " normal "      tender    notice    is   mandatory
     according     to    Article     13    (1 )    of    the   Directive    on    the   other
     sectors .    It    is    indeed    an   essential       part    of   the    open   award
     procedure     that     any   interested        supplier     has   the  benefit     of   a
     tender notice to which he is free to respond If he so whlshes .
61 . In negotiated procedures , a call for competition would not make
     sense   In certain situations where there                   is no prospect      for any
     competition at all or where the existing competitors are known In
     any case .     These situations are listed in Article 12 ( 2 ) of the
     Directive on the other sectors along the lines accepted by the
     Council with regard to Directive 77 / 62 / EEC and In accordance with
     the Commission proposals for modifying Directive 71 / 305 / EEC .
 ---pagebreak---                                   - 23 -
62 . The particular ways and means for making a call for competition
     In the other cases are described In Articles 13 ( 2 ) and ( 3) of
     the Directive on the other sectors .
63 . The normal tender notice according to Article 13 ( 2)(a ) Is an
     option which should be available to entitles if they so wish even
     in the case of restricted or negotiated procedures .
64 . The possibility of making a call for competition , according to
     Article 13 ( 2)(b ) of the Directive on the other sectors , by
      inviting suppliers who have undergone a qualification test
     reflects the current practice of many entities in the excluded
     sectors .   Inviting qualified suppliers could not by     Itself be
     considered as a sufficient call      for competition because those
     other suppliers who have not ( yet ) qualified would have no chance
     to compete .   A call for competition could be considered as having
     been made only if those other suppliers had a chance to qualify .
     It   is therefore necessary to establish the conditions that the
     existence of the qualification system is publicly known , that the
     rules of operation are available , and that a minimum standard of
     fairness    in  the  operation   of  the  qualification  system   Is
     guaranteed .   These requirements are laid down in Article 20 of
     the Directive on the other sectors .     It may be noted that    the
     notice concerning qualification systems is not mandatory but Its
     publication is a prerequisite for the entity to be able to Invite
     only qualified suppliers to take part In an award procedure .
65 . The periodic notice of Article 13 ( 3) of the Directive on the
     other sectors is a survey which entitles have to publish once a
     year . The Information contained in it will normally be of a
     rather general nature . However , the periodic notice offers the
 ---pagebreak---                                           24 -
       opportunity to any       Interested suppliers to approach the entity
       concerned for more detailed Information on specific contracts to
       which the contracting entity decides to make reference ; therefore
        It can also serve the purpose of a call for competition provided
       that those suppliers who have stated their Interest get a chance
       to participate when particular award procedures are                     initiated .
        It  Is evident that suppliers who Intend to sell                to contracting
       entitles should have a strong            Interest   In monitoring periodic
       not ices .
66 .   The    ways  and means       for   making     calls   for      competition        are
       summarized in the following table :
     Call for competition 1 " normal "           1  per Iodic      I   qua I i f I cat Ion
                             1     notice        1   not Ice       I      system
                             !I
                             1I                  1
                                                 1
                                                                   I1
     award procedure           1 Art . 13(1 ) I    Art . 13(3 )   1    Art.13(2)(b )
                             1I and ( 2 ) ( a ) I
     open procedure          I ob I Igatory      I                1
                           I                     I                I1
     restricted procedure    1 optional         1    optional 1          opt iona 1
                           II1                  I1               I1
     negotiated procedure I1 optional            1   optional 1          opt Iona 1
     with prior call for I1                      1               1
     compet I t ion          1                   1                1
 ---pagebreak---                                     - 25 -
(b)  Peta I led comments
67 . The list of cases In which negotiated procedures may be applied
     without call for competition figuring in Article 12 ( 2 ) of the
     Directive on the other sectors , Is essentially a compilation of
     the relevant provisions of the revised supplies Directive and of
     the    proposals    for  revision   of    the  public  works   Directive .
     Differences compared to those provisions are :
     -   in sub-paragraph ( a ), the possibility of all         tenders being
     irregular    has been added .     The requirement     that  the original
     terms of the contract must stay the same In the negotiated
     procedure has been deleted because these terms may subsequently
     be modified anyway .     There Is no requirement for a report to the
     Commission .
     -   according    to   sub-paragraph    ( d ), contracting   entitles  are
     dispensed from making a call for competition whether or not they
     are responsible for the situation of extreme urgency ;
         In sub-paragraph ( e ), a time-limit of five years during which
     no call for competition need be made has been Introduced
     following the example of sub-paragraph ( g );
         In sub-paragraph ( f ), there Is no limit as regards the
     proportion of the value of additional works compared to the value
     of the original contract ;
     - In sub-paragraph ( g ), the duration during which the negotiated
     procedure may be applied in the circumstances referred to has
     been extended to five years ;
     - a new sub-paragraph ( h ) has been added In order to allow
     purchases on commodity markets to be made according to the rules
     of these markets which in any case guarantee competition ;
 ---pagebreak---                                            26 -
     -   a    new    sab-paragraph       (I)    has   been    added      which    allows
     contracting entitles to use the occasion for making bargains by
     purchasing from suppliers which are In bankruptcy or any other of
     the situations described           in Article 20 ( 1 ) ( a ) of      the supplies
     Direct Ive .
68 . Article 14 of         the Directive on the other          sectors on periodic
     notices      is   in   line   with   the   corresponding     provision     of   the
     revised supplies Directive , as regards              letter   ( a ) and with the
     Commission 's      modified    proposal     for  revising    the     public   works
     Directive as regards letter ( b ).           It should be borne In mind that
     this Article does require the inclusion In the periodic notices
     of    all   contracts     which    are   envisaged    at   the     time  when   the
     periodic notice Is drawn up .
     However , only those envisaged           must be covered .      Where additional
     projects      are    developed ,   or   additional    funds    become    available
     later     In the year , there are two possibilities : either the award
     procedure will be Initiated            in the same year by other means of
     calling for competition ( except where no call                  Is required ), or
     the    contract     will   be   Included    In  the  periodic      notice   of   the
     following year ,        unless   the project      Is abandoned .      Equally    the
     article does not require that contracts                Included     In a periodic
     notice must be launched during the period covered by that notice .
     If they are not , they would simply have to be                   Included    In the
     periodic notice of the following year .
69 . Article 15 of the Directive on the other sectors on publication
     of results of procedures attempts to strike the right                       balance
     between the need to ensure transparency In the public procurement
     market and respect for confidential             Information .      The compromise
 ---pagebreak---                                  - 27 -
     consists In making a post-award publication mandatory , but         In
     allowing Its contents to be reduced to the bare minimum where
     confidentiality or other obstacles to disclosure of Information
     are at stake . In this case , the contracting entitles may decide
     what information they would like to give to Interested suppliers
     on a bilateral basis . The time- llm it set by paragraph 3 allows
     sufficient time to pass by for possible subsequent debriefings to
     Individual suppliers to take place In a non-controverslal way .
70 . Article 16 of the Directive on the other sectors on general
     rules on publication of notices lays down certain formalities .
     They correspond to the rules of       the existing Directives .     It
     should be noted that these requirements are not addressed to the
     contracting   entitles  or  the  suppliers    or    contractors . They
     ensure   that  the Publication Office ,   for   its   part , will work
     according to certain rules and schedules .
71 . The time-1 Imlts laid down in Article 17 of the Directive on the
     other sectors concerning the different phases of award procedures
     are indispensable despite the need to make the rules on the
     excluded sectors as flexible as possible .       Partly contradictory
      interests have to be reconciled In fixing them .     On the one hand ,
     contracting entitles may want to proceed very quickly for certain
     procurements ; indeed this may not present problems for those of
     their suppliers with whom they have long-standing relationships .
     On the other hand , too short time-limits are the most evident and
     one of the most efficient means of excluding foreign suppliers
     who have to overcome certain handicaps which do not exist for
     domestic suppliers , such as language problems . Article 17
     provides for the time-limits accepted by the Council for
     modification of Directive 77/62 / EEC
 ---pagebreak---                                         28 -
72 . In addition , Article 18 of the Directive on the other sectors
     also    provides    for   tlme-llmlts   within   which   the   contracting
     entitles have to respond to requests for         Information .   These are
     also based on the provisions of the existing Directives .             There
     Is no express rule as regards the costs of any documents to be
     sent .   However , charges for such documents should not be higher
     than their     real   cost and must not     In any case be fixed       In a
     discriminatory way .
(4)  TITLE IV - QUALIFICATION . SELECTION . AND AWARD OF CONTRACTS
(a)  General approach
73 . Article 7 makes applicable , for the purposes of this Directive ,
     the relevant provisions of the Directive on the other sectors .
     There is no need for any specific provisions on this matter for
     the telecommunications sector .
74 . The relevant provisions of         the Directive on the other       sectors
     may be subdivided between those dealing with
     -  qualification and selection of participants ( Articles 19 to
        21 )
     -  award of contracts ( Articles 22 and 23 ).
75 . As   regards    qualification    and   selection   of  participants ,    the
     relevant provisions are of different nature :
     -  Articles 19 and 20 are part of a new concept which establishes
        the    general    principles   according   to  which   the  contracting
        entities can fix their own rules ;
 ---pagebreak---                                   - 29 -
     - Article 21 is based on the Directive 77/62/EEC and the current
         state of discussions concerning the revision of Directive
         71 / 305 / EEC .
     The new concept underlying Articles 19 and 20 reflects the need
     to avoid any unnecessary formalities and to allow for a maximum
     of adaptation to the particular circumstances In which each
     Individual contracting entity operates . In order to meet these
     criteria , common general principles are laid down in Article 19
     for any stage before and during award procedures where
     contracting entitles need to select between Interested suppliers ,
     that   is :
     -   when enterprises apply for qualification , Article 20 specifies
         how the qualification system must be handled ;
     -   when they request to participate in restricted or negotiated
         procedures , Article 21 lays down the basic principles .
     The general principles contained In Article 19 are based on the
      Interpretation given by the Court of Justice to Article 30 of the
     Treaty . Paragraph 3 leaves     It to the contracting entities to
     determine their own rules within these limits .
76 . As a counterpart for the freedom thereby created , It is ,
     however , necessary that the rules fixed by contracting entities
     are laid down In writing , and that they must be sent to anybody
      Interested . Without this , the conditions of the market would
     become totally obscure rather than more transparent , since the
     rules applied by Individual contracting entitles will be
     different from one to another .
 ---pagebreak---                                           30 -
77 . The provisions of Title          IV are also applicable       In those cases
     where contracting entitles           have entrusted     third parties with
     qualification of selection of participants , or with awarding the
     contract insofar as those third parties act as agents for and on
     behalf of the contracting entity .
78 . The general approach to rules on the award of contracts fol lows
     the   provisions    of   the    existing    Directives    very   closely .      It
     provides a considerable degree of flexibility for the contracting
     entitles .   Unless they choose to base the award decision on the
     lowest tender ,    they can , according to Article 22 ( 1 )            ( a ) take
     Into account any relevant aspect related to the object of the
     contract .   Article 23 also repeats provisions from the existing
     Directives .    There   are     certain    contracting     entities       In   the
     excluded sectors , Including telecommunications , which by national
     law have to apply regional preference rules , mainly among those
     entities which belong to the public sector .           The Directive on the
     other sectors accordingly takes exactly the same approach as the
     existing Directives .
(b)  Detailed comments
79 . Article 19 ( 1)(b )    Is to be       Interpreted   In the context of          the
     case    law   of   the     European    Court   of   Justice .     It    requires
     contracting     entities     to    recognise   existing     tests    or     proofs
     Insofar as they are relevant for Its purposes .
80 . Article 20 ( 1 ) allows the opening of qualification systems to
     Interested suppliers from abroad to take place in a progressive
     way . Contracting entities can respond to objective constraints
     In dealing with new applications by programming their examination
     over a given period of time . They must however give some precise
     information on the time schedule to the applicants .                   The real
                            A '
 ---pagebreak---                                         31
     cost of the examination may be charged to applicants provided
     this is done In a non-dlscr Imlnatory manner . Paragraphs 4 and 5
     reflect the two existing ways of operating a qualification
     system : either on a permanent basis or on an ad-hoc basis In
     connection with specific investment projects .
81 . As regards Article 22 ,        the catalogue of criteria         listed   In
     paragraph     1    (a)    is   not    exhaustive .  However ,   the    term
     " economically most advantageous tender " does not allow reference
     to macro-economic or social , regional , or other criteria which
     are not relevant ot the object of the contract . Paragraphs 3 and
     4 deal with tenders which are not fully conforming to the
     contractual requirements .
     Paragraph    3   makes    it  clear    that   contracting   entitles    may
     themselves decide to what extent they would accept alternative
     proposals , by fixing the hard core of requirements from which no
     deviations would be accepted .         In the   Interest of transparency
     they must however specify in the contract documents whether they
     are    ready    to    consider     variants .  Paragraph   4    concerning
     construction      products    reflects     the   principles    of    mutual
     recognition of such products as proposed by the Commission In the
     proposal for a Directive on construction products .           Paragraph 5
     Is a particularly Important provision because of the differing
     cost calculation basis which may be underlying tenders from other
     Member States .     The purpose of market opening and competitive
     purchasing would not be achieved If tenders which are low but
     sound would be rejected because they could at first sight be
     considered as abnormally low and therefore unreliable .           Paragraph
     5 Identifies accordingly the cases in which an apparently very
     low tender may not be rejected . Paragraph 5 also states that
     contracting entities , when considering that a very low offer Is
     unreliable because it is based on a State aid , may reject such
     offers .  The main purpose of this provision             Is not    to make
 ---pagebreak---                                            32 -
     contracting entitles Instrumental in the application of the rules
     on State aids of the Treaty .             Their own        interest   requires that
     they  be    allowed      In  an   explicit     way      to    reject   such     offers .
     Without such a clause , entitles would , according to the second
     subparagraph        of     paragraph       5,     (" exceptionally          favourable
     conditions ")      be   obliged    to    accept      tenders      which    might    not
     afterwards be carried out         If the State aid had to be reimbursed .
82 . Article 23 dealing with regional preference rules corresponds in
     its paragraph 1 to Article 25 ( 4 ) of Directive 77/ 62 / EEC and
     refers to national rules which require the application of other
     than the normal criteria , or a different weighting of them ,                         in
     awarding individual contracts .            It does not cover rules , however ,
     which    aim at     giving preference to certain                 tenderers by such
     methods as market quotas .            Paragraph 2 establ ishes as                In the
     recently modified supplies Directive ,                 the basis for        a general
     solution    to    the question of        preference        schemes .   The existing
     national schemes should come to an end not                  later than end 1992 In
     the absence of a new Community regime which the Commission has
     indicated     its   Intention to propose .           It does not exempt Member
     States ,   In   the period up        to   1992 ,    from their obligations            to
     respect    the   rules of     the EC Treaty and ,            as   far  as    the other
     sectors     are     concerned ,    of     the    GATT       Agreement      on    public
     procurement .
E.   RELATIONS WITH THIRD COUNTRIES
(1 ) General considérations
83 . Third    country      firms   are   watching      with      growing     Interest     the
     Community 's      new    Impetus    to    establish        a    common    procurement
     framework as a key element             in the realisation of             Its   internal
     market by 1992 .       They are focussing especially on the Community 's
     moves towards opening procurement In the excluded sectors because
 ---pagebreak---                                        33 -
     of their obvious economic and technological Importance and also
     because fierce International competition In these sectors Is
     forcing all         participants    to seek new markets . Opening
     procurement      in   the   excluded    sectors   could    under    certain
     conditions result In access to large contracts becoming available
     to firms of third country origin , either directly or through
     their   subsidiaries established       In the Member    States .   In other
     words , the Community is running a serious risk of unilaterally
     making Its domestic market more accessible to third country firms
     if the Directives on the excluded sectors fall             to take proper
     account of the external dimension .
84 . Furthermore ,    in parallel    to the Community 's efforts      to create
     the conditions whereby domestic Industry can exploit the single
     European market , discussions have been under way to strengthen
     and extend the scope of the GATT procurement Code , with the USA
     In particular pushing for the Inclusion of entities engaged In
     telecommunications and power generation .         It should be recalled
     that   at  present    the procurement practices of entities          in the
     telecommunications       sectors   fall   outside   the   scope   of   GATT
     disciplines .    The Community clearly has an important Interest in
     ensuring    that    Its enterprises have      access   to   third   country
     markets in the sectors concerned .        The Community has accordingly
     supported    the GATT broadening exercise ,        though    the outcome ,
     including the timing of any future agreement Is at present hard
     to predict .
85 . Discussions are also under way between the Community and EFTA
     countries concerning possibilities for further mutual opening of
     public procurement . The implications of these discussions for
     procurement in the excluded sectors are also uncertain at the
     present time .
 ---pagebreak---                                      34
86 . In these circumstances ,     the adoption of Community       legislation
     opening   procurement    In   the   excluded    sectors   needs   to   be
     accompanied by measures designed to achieve the following general
     objectives .  First ,   provisions     are   needed    to   defend    the
     Community 's  commercial    Interests   and preserve    Its  negotiating
     position by making no unilateral concession but on the contrary
     creating   a  positive    incentive    for  third   countries   to   give
     guarantees of equal access to similar markets .       Second , Community
     producers should , where necessary , be given the necessary time
     for the industrial adaptation required to meet the objectives of
     1992 and the day when reciprocal access Is finally agreed .
(2)  The situation In the telecommunications sector In particular
87 . The overall approach described above is appropriate also for the
     telecommunications sector , as some of the Community 's principal
     trading competitors are actively pursuing a further opening of
     the EC market ,   in particular    for   telecommunications equipment .
     The Commission considers the situation in this sector , as set out
     in the telecommunications Green Paper , not simply as a risk for
     Community suppliers , but also as a challenge and an opportunity
     to be exploited In parallel with the other Community efforts to
     open extra-EC markets .
( 3) The legal mechanism
88 . As to the content of Community legislation In this field ,              It
     should explicitly address the problem of offers made by firms
     established within the Community .      Situations in which offers are
     made by firms established entirely outside the Community are In
     practice relatively rare and ,      in any case , this Directive will
 ---pagebreak---                                     - 35 -
     simply not apply to them .      On the other hand , where an offer Is
     made by a firm established In a Member State , this Directive will
     apply to it even If the firm Is a subsidiary or agent of a third
     country firm and the goods or services to be rendered under the
     offer have their origin entirely In that third country .
89 . After     having    examined    various   possible    approaches ,  the
     Commission considers that       the best means for the Community to
     realise these    Important objectives    is to provide for a regime
     whereby ,   In the absence of relevant      International obligations ,
     contracting entitles are placed under no obligation to apply the
     provisions of this Directive to offers having their origin
     outside the Community .     For this purpose , an offer is considered
     having its origin outside the Community when more than half its
     value represents goods or services produced or performed outside
     the Community .    However , In the case of offers from subsidiaries
     or agents , a substantial part of the value of the offer may
     represent economic activity within Member States , and can thus be
     considered    to  be of   Community origin .    In  addition , where  a
     Community offer Is equivalent to one from a third country firm or
     to one of third country origin , the Community offer should be
     preferred .
90 . The equally Important counterpart to these provisions , which
     preserve the position of the Community In relation to third
     countries , is a mechanism which will permit the Council , on a
     Commission proposal , to extend the benefit of the provisions of
     this Directive to third country undertakings or undertakings
     offering goods or services of third country origin . This
     mechanism makes It clear that the Community Is not simply seeking
      to protect Its own market , but Is in a position to Implement
 ---pagebreak---                                       36 -
     agreements with third countries on equal market access , whether
     reached through multilateral or bilateral negotiations . Indeed ,
     the fundamental purpose of the provisions Is to provide a firm
     basis for negotiations with third countries .
91 . This Directive , by way of the cross-reference contained            In Its
     Article 8 makes applicable Article 24 of the Directive on the
     other excluded sectors which contains the principles explained
     above .
92 . Article 24 ( 1 ) provides for contracting entities to be able to
     exclude offers when      less than half the value of the goods or
     services to be rendered are of Community origin .             Paragraph 4
     provides definitions of the value of products manufactured and of
     services performed outside the Community .          However , paragraph 2
      Indicates that the contracting entities must choose a Community
     offer If offers are equivalent , except when this acceptance would
     oblige     It  to   acquire   material   having     different    technical
     characteristics , thus creating unreasonable and disproportionate
     difficulties , with existing material      ( paragraph 3 ).    At the same
     time paragraph 5 provides for a mechanism whereby the Council , on
     a Commission proposal , can extend the benefit of the provisions
     of   the   Directive  to undertakings or      offers of     third  country
     origin .
93 . This    approach  ensures   that ,  for the    time   being ,  contracting
     entitles are placed under no obligation to apply the provisions
     to an offer unless a substantial        part of     Its value represents
     economic activity within Member States .          It thus preserves the
     status quo allowing contracting entitles to reject offers not
     meeting the Community origin criterion or to reject firms not
     having a real connection with the Community .
 ---pagebreak---                                     - 37 -
94 . The proposed approach also takes Into account the need to give a
      clear preference to a Community offer where offers - are
     equivalent . For the purpose of comparing prices , a difference of
     up to 3 per cent In favour of a non-Communlty offer shall be
     disregarded . This provision Is designed to facilitate the
     application of the approach In practice . It should be stressed
     that this preference still leaves the possibility for the
     contracting entity to choose a non-Communlty offer on the basis
     of a sound technical reason In relation to the operation and
     maintenance of existing material , even where a non-Communlty
     offer is being evaluated on the basis of the lowest price
     criterion and Is within the 3 per cent margin .
95 . The provision permitting and requiring contracting entitles to
     exclude non-Communlty offers will ensure that the Community does
     not open its market unilaterally . The position of the Community
      Is thus preserved In relation to both multilateral and bilateral
     negotiations .
96 . The   extension   provision    provides   a  specific   mechanism   for
     arrangements   for   equal  market access to be made between        the
     Community and third States ,       should such negotiations produce
     positive results .
F.   PROGRESSIVENESS OF INTRODUCTION AND MONITORING OF PROGRESS
97 . Following   the    approach    of   Recommendation   84/ 550/ EEC , the
     provisions of this Directive will not all become applicable at
     the    same    time    to    the    total   procurements      made   by
 ---pagebreak---                                            38 -
      telecommunications        entitles .    Concerning    supplies      and  software
      services ,    according     to Article      10 paragraph     1,    they  will    be
      granted a two-year period of phasing In for most of the contents
      of this Directive during which 30% of their procurements may be
      made outside this Directive .            It   is anticipated that from 1992
      onwards ,    full    application    of   this    Directive    will    take   place
      smoothly , based on the experience gained during the previous two
      years .
98 .  However ,    according     to Article       10  paragraph     2,    the  periodic
      information notices explained In paragraphs 65 and 68 above shall
      from    the   start    include all     procurements      envisaged ,    suppliers
      will    therefore be      fully  Informed as       from   1990 .   They will     at
      least have the chance to state their              interest   In doing business
      with the telecommunications entitles , although the other benefits
      of   the    Directive     will  not     apply    to   all   of    the   contracts
      concerned .
99 .  For each of      the Member States ,       as well    as for     the Commission ,
      comprehensive periodic Information notices will also constitute a
      useful point of reference for monitoring whether the 70-%-rule of
      Article 10(1 ) has been respected .
100 . Monitoring      of    progress   will      also    take    place     through    the
      statistical reports which will have to be given to the Commission
      according to the cross-reference to Article 28 of the Directive
      on   the other      sectors which      Is provided      in Article 8 of        this
      Directive .     Here again , evidence of the 70-%- rule being respected
      must be given , according to Article 11 of this Directive .
101 . After four years of operation , the Commission will report on the
      way in which this Directive has been applied , and on the effects
       it has had .      It will also , according to the cross-reference to
 ---pagebreak---                                   - 39 -
      Article 30 of the Directive on the other sectors which Is made by
      Article 8 of this Directive , make any necessary proposals for
      adaptation of the regime of this Directive .
102 . These monitoring provisions may at first sight appear to be
      heavy-handed and bureaucratic .   They are , however , of fundamental
       importance . The opening up of procurement markets in the
      excluded sectors is a very complex and sensitive undertaking . It
      can succeed only If It is clear from the outset that everybody
      concerned will have to fully comply with the rules . Without
      everybody being seen as conforming to the rules the necessary
      climate of confidence can never be established .     The prospect for
      making a realistic review after three years , and for developing
      meaningful and necessary modifications , would equally be hampered
       if evidence on the operation of this Directive was missing .     The
      Commission    intends  furthermore    to pursue    other   Ideas   for
      assessing progress in market opening In order to keep the degree
      of bureaucracy required by this Directive as low as possible .
G.     FINAL PROVISIONS
103 . The other relevant provisions of Title V of this Directive , and
       of Title V of the Directive on the other sectors which Is
       referred to In Article 8 , deal with :
       - technical adaptations of certain provisions ; and
       - coming Into force , adaptation of the existing Directives and
           transposition into national law .
 ---pagebreak---                                          - 40 -
                                                      /
104 . Article    25    of   the   Directive    on  the     other   sectors   enables
       currency adaptations         In the context of         the European Monetary
       System to be taken Into account on a regular basis , and subject
       to a confirmation or a revision of the calculation method .
105 . Article     9    of    this    Directive    provides       the    criteria ,    and
       Article 26(2 ) of the Directive on the other sectors provides the
       method , for adjusting the field of application of this Directive
       by way of modification of the annexes .               It thereby creates the
       necessary margin of manoeuvre with regard to changes in the
       market place , such as those which may follow from privatisation ,
       deregulation , and market liberalisation policies . The procedure
       envisaged in Article 26 ( 2 ) of the Directive on the other sectors
       corresponds      to   the   one   agreed   by     way   of    Council   Decision
       87/373/ EEC ^ 16 ^ for cooperation with advisory committees .
106 . The    committee      established     pursuant      to   Article    12   of    this
       Directive plays a vitally Important role in this context , as well
       as   with    regard     to   the   monitoring      activities     explained      In
       paragraphs 101-103 above .
107 . Article     13    of    this    Directive    provides      for    the   necessary
       adaptations of the existing Directives which would result from
       this   Directive .      In   doing    so ,  it    refers     to   the   existing
       Directives     as   they would      be modified by Article           29 of     the
       Directive on      the other     sectors .  If    this Directive were        to be
       adopted earlier than the other Directive , Article 13 would have
       to be revised accordingly .
108 . The Recommendation 84/ 550/ EEC needs to be cancelled when the new
       rules are fully In place In order to avoid an overlap .                  Article
       14 of this Directive contains the relevant date .
( 16 )    O.J. L 197 of 18 July 1987 .
 ---pagebreak---                                       41
                                Proposai for a
                              ÇOUNÇIL DIRECTIVE
          on the procurement procedures of entitles operating
                     in the telecommunications sector
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having regard to the Treaty establishing the European Economic
Community , and In particular Article 100a and Article 113 thereof ,
Having regard to the proposal from the Commission
In cooperation with the European Parliament
Having regard to the opinion of the Economic and Social Committee
Whereas the measures aimed at progressively establishing the Internal
market during the period up to 31 December 1992 need to be taken ;
whereas  the   internal   market   consists  of an area  without  Internal
frontiers   in which    free movement of goods ,   persons , services and
capital Is guaranteed ;
Whereas successive European Councils have drawn conclusions concerning
the need to realise a single Internal market ;
Whereas restrictions on the free movement of goods and on the freedom
to provide services in the telecommunications sector are prohibited by
the terms of Articles 30 and 59 of the Treaty ;
Whereas those objectives also require the coordination of the
procurement procedures applied by the entities operating In this
sector ;
 ---pagebreak---                                              42
Whereas the White Paper on the completion of the Internal Market lays
down    an  action     programme     and   a    timetable     for   opening      up   public
procurement      markets     In  sectors     which     are   currently      excluded     from
Council      Directive 71 / 305 / EEC       of      26 July 1971         concerning       the
coordination       of     procedures     for       the     award    of      public      works
contracts ^ 1 ) , as last amended by the Act of Accession of Spain and
Portugal ,     and     Council      Directive 77 / 62 / EEC      of      21 December 1976
coordinating procedures for the award of public contracts ^ 2 ) , as last
amended by Directive 88/ 295 / EEC ^^ ;
Whereas the telecommunications sector                is among such excluded sectors
as far as the Directive 77 / 62 / EEC is concerned ;
Whereas    the    main     reason    for   their      exclusion     was     that    entities
providing such services are in some cases governed by public law , in
others by private law ;
Whereas the need to ensure a real openlng-up of the market and a fair
balance    In   the   application of       procurement       rules    In   these    sectors ,
requires    that    the entities      to be covered must           be    Identified on a
different basis than by reference to their legal status ;
Whereas    among      the   main    reasons      why    entities     operating       in   the
telecommunications sector do not purchase on the basis of Community¬
wide competition        Is the closed nature of the markets                  in which they
operate ,   due    to   the   existence     of    special    of   exclusive      rights    or
authorisations granted by the national                  authorities , concerning the
supply or management of the telecommunications network or the right to
provide telecommunication services ;
Whereas    the    other    main   reason     for    the    absence    of    Community-wide
competition in this sector results from various ways in which national
authorities can influence the behaviour of these entitles ,                        including
participations       in their capital and representation In the entities'
administrative , managerial or supervisory bodies ;
( 1 ) OJ N° L 185 , 16 / 08 / 1971 , p. 5 .
( 2 ) OJ N° L 13 , 15 / 01 / 1977 , p. 1 .
( 3 ) OJ N° L 127 , 20 / 05 / 1988 , p. 1 .
 ---pagebreak---                                   - 43 -
Whereas this Directive should not extend to activities of these
entities which either fall outside the telecommunications sector or
which fall within that sector but nevertheless are directly exposed to
competitive forces in markets to which entry is unrestricted ;
Wheras this Directive should not apply to procurement contracts which
affect basic State security Interests or which are concluded according
to other rules set up by existing International agreements or
 International organisations ;
Wheras the Community 's or the Member States' existing international
obligations must not be affected by the rules of this Directive ;
Whereas , within certain limits , a preference should be given to an
offer of Community origin where there are equivalent offers of third
country origin ;
Whereas   this   Directive should   not  prejudice the  position of  the
Community in any current or future International negotiations ;
Whereas , based on the results of such International negotiations this
Directive should be extendable to offers of third country origin ,
pursuant to a Council Decision ;
Whereas contracting entitles must be able to reject offers which ,
because they are based on State aids , are unreliable ;
Whereas In the area of standards and technical specifications It Is
 necessary to adopt common rules taking fully into account Community
 policy In the field ;
 Whereas the principles of equivalence and of mutual recognition of
 national standards , technical specifications and manufacturing methods
 are applicable In the field of application of this Directive ;
 ---pagebreak---                                          44
Whereas     tne  rules   to  be  applied   by  the   entitles   concerned   should
establish a framework for sound commercial practice and should leave a
max I mum of flexibility ;
Whereas as a counterpart for such flexibility and in the Interests of
mutual confidence a minimum level of transparency and appropriate ways
for monitoring the application of this Directive must be ensured ;
Whereas the arrangements to be introduced should to a large extent be
the    same   as  those   laid  down  by   the  Directive    on   the  procurement
procedures of entitles providing water , energy and transport services ;
Whereas it is desirable for national provisions in favour of regional
development to be Included in the Communities' objectives ;
Whereas the disciplines of this Directive should be phased In in two
steps , with a transitional period of two years during which 30% of
overall     annual  procurements may be made outside          this Directive ,   In
order to ensure       its smooth application as from 1992 on the basis of
experience gained during the two previous years ;
Whereas     no   transitional   period    should   be   laid  down ,  however ,  as
regards the obligation to publish periodic Information notices ,
Whereas the Commission should review the functioning of this Directive
and the effects which it has had , after four years ,            in order to make
any necessary further proposals ;
HAS ADOPTED THIS DIRECTIVE :
 ---pagebreak---                                                                                            45
                               TITLE I - CENF.RAT . PROVISIONS
                                            ARTICLE 1
      The provisions of this Directive shall apply to the award of supply, works and software
      service contracts by contracting entities which
      a)        are public or are granted special or exclusive rights by Member States, and
      b)       operate public ^ telecommunications networks or offer one or more
                telecommunications services to the public.
     The entities listed in Annex I fulfill these criteria.
                                           ARTICLE 2
This Directive shall not apply to contracts :
(a) which the contracting entities award exclusively for purposes other than the pursuit of
     their activities described in Article 1 provided that
     (i)       these activities have been notified to the Commission by the contracting
               entities and
     (ii)      the Commission has published a notification of their exclusion, after
               verification, in the Official Journal of the European Communities;
(b) which contracting entity awards for purchases exclusively in connection with one or
     more telecommunications services where other entities are free to offer the same
     services in the same geographical area and under the same conditions.
     Member States shall notify the Commission of the services falling within the scope of
     this paragraph and any relevant legal provisions.
 ---pagebreak---                                                                                          46
                                           ARTICLE 3
1.   For the purposes of this Directive, the provisions of TITLE I of Council Directive
     .../.../EEC concerning procurement procedures in the water, energy and transport
     sectors( 1 ) shall apply, except Articles 2, 3 and 5.
2.   Article 1 of Directive .../.../EEC shall apply except paragraphs 4, 6 and 11 . For the
     purposes of this directive :
     (a)        software service contracts means procurements of software for use in
                connection with networks or telecommunications services and purchased by
                one of the contracting entities defined in Article 1 .
     (b)       A "European standard" means a standard approved by European Standards
                Organizations such as the European Committee for Standardization (CEN)
                and the European Committee for Electrotechnical Standardization
                (CENELEC) as "European Standard (CEN)" or "Harmonization Document
                (HD)" according to the Common Rules of these organizations.
                                           ARTICLE 4
This directive shall apply to the software service contracts whose estimated value, net of
VAT, is not less than 200.000 ECUs.
              TITLE II - TECHNICAL SPECIFICATIONS AND STANDARDS
                                           ARTICLE 5
1.   Contracting entities shall apply the provisions of TITLE II of Directive ,../.../EEC< 1 ) .
2.   Contracting entities may derogate from Article 9 ( 1) of Directive ,../.../EEC( 1 ) if its
     application would prejudice the application of Council Directive 86/361 /EEC of July
     1986 on the initial stage of the mutual recognition of type approval for
     telecommunications terminal equipment.
(D
     C0M(88)377 of ...
 ---pagebreak---                                                                                          47
             TITLE HI ■ PROCEDURES FOR THE AWARD OF CONTRACTS
                                           ARTICLE 6
     For the award of supply, works and software service contracts, contracting entities
     shall apply the provisions of TITLE III of the Directive .../.../EEC(1 \
2.   In the case of software service contracts :
     a)        contracting entities may use the negotiated procedure without prior call for
               competition in the cases laid down in Article 12 (2) (a) to (e) of Directive
               ••• f         '
     b)        Article 14 ( 1) (a)of Directive .../.../EEcC 1) shall apply.
3.   The notices to be published in the Official Journal of the European Communities shall
     be established in accordance with Annexes II to V to this directive.
      TITLE IV - QUALIFICATION. SELECTION AND AWARD OF CONTRACTS
                                          ARTICLE 7
     Contracting entities shall apply the provisions of TITLE IV of Directive .../.../EEC^^
(1 )
     C0N(88)377 of ...
 ---pagebreak---                                                                                        48
                                TITLE V -FINAL PROVISIONS
                                          ARTICLE 8
Contracting entities shall apply the provisions of TITLE V of Directive ,../.../EEC( 1 )
except Article 26 ( 1 ) and Article 29.
                                          ARTICLE 9
    Annex I to this Directive may be amended by the Commission
     a)       to delete entities to which Annex I refers because they no longer fulfill the
              criteria for their inclusion set out in Article 1 , or
     b)       to include entities which meet those criteria.
                                         ARTICLE 10
1.  In the case of supplies and software service contracts the provisions of this Directive
    shall apply to :
     - at least 70 % in estimated value of the procurement procedures carried out in the
        year 1990 and the year 1991 .
     - all procurements carried out from 1992 onwards.
2. Notwithstanding the above, the provisions of Article 14 of Directive .../.../EEC^)
     shall apply to all supply and software service contracts from 1.1.1990 .
(D
    COM(88)377 of . . .
 ---pagebreak---                                                                                       49
                                          ARTICLE 11
For the purposes of Article 28 of Directive .../.../EEC< 1 ), Member States shall
communicate to the Commission evidence that the levels of progressive implementation of
this directive established in Article 10 are complied with.
                                          ARTICLE 12
1.    The Commission shall be assisted by a committee of an advisory nature which shall be
      the Advisory Committee on Telecommunications Procurement. The Committee is
      composed of representatives of the Member States and chaired by a representative of
      the Commission.
2.    The Commission shall consult the Committee on :
      (a)       amendments to Annex I
      (b)       révision of the thresholds
      (c)      procurement rules established under international agreements
      (d)       the review of the operation of this directive
(D
      C0M(88)377 of ...
 ---pagebreak---                                                                                                 50
                                          ARTICLE 13
1.  Article 2 (2) of Directive 77/62/CEE, as amended by Directive 88/295/CEE of
    22/3/88, shall be replaced by the following :
    This directive shall not apply :
    a)          to the award of supply contracts by contracting authorities in the fields
                covered by the provisions of Directive .../.../EEC(1 5 and those of
                Directive ,../.../EEC( 2)
    b)          to supplies which are declared secret or when their delivery must be
                accompanied by special security measures in accordance with the laws,
                regulations or administrative provisions in force in the Member State
                concerned or when the protection of the basic interest of that State’s security
                so require.
2.  Article 3 (4) and (5) of Directive 71/305/EEC as amended by Directive .../.../EEC of
    ...(3 ) shall be replaced by the following :
    This Directive shall not apply to works contracts by contracting authorities in the
    fields covered by the provisions of Directive .../.../EEC*'1 -' and those of
    Directive .../.../EEC^.
(D
    C0M(88)377 final of . . .
(2)
    C0M(88)378 final of . . .
(3)
    Proposal for a Council directive amending Directive 71 /305 / EEC concerning the coordination of
    procedures for the award of public works contracts , COM(88)354 final of 20 June 1988
 ---pagebreak---                                                                            51
                                 ARTICLE 14
1.   Member States shall implement the measures necessary to comply with
     this Directive by 31 December 1989 at the latest and shall inform the
     Commission thereof.
2.   Recommendation 84/550/EEC is withdrawn on 31 December 1989.
                                  ARTICLE 15
This Directive is addressed to the Member States.
Done at                                           For the Council
                                                  The President
 ---pagebreak---                               ANNEXES
ANNEX I :   Contracting entities
ANNEX II :  A.   Tender notice related to OPEN procedures
            B.   Tender notice related to RESTRICTED procedures
            C.   Tender notice related to NEGOTIATED procedures
ANNEX III : Notice on the existence of a qualification system
ANNEX IV :  Periodic notice :
            A.   Supply and software service contracts
            B.   For works contracts
ANNEX V :   Notice on contracts awarded
 ---pagebreak---                                               ANNEX I
                              CONTRACTING ENTITIES
Belgique
Régie des Télégraphes et des Téléphones
Regie van Telegrafîe en Telefonie
Danemark
Kobenhavns Telefon Aktieselskab
Jydsk Telefon
Fyns Kommunale Telefonselskab
Post-og Telegrafvaesnet
Statens Teletjeneste
République Fédérale d'Allemagne
Deutsche Bundespost
Grèce
OTE / Hellenic Télécommunications Organization
Espagne
Compania telefonica Nacional de Espana
France
Direction Générale des Télécommunications
Transpac
Telecom Service Mobile
Société Française de Radiotelefone
Irlande
Telecom Eireann
 ---pagebreak---                                                        54
Italie
Amministrazione delle Poste e delle Telecommunicazioni
Azienda di Stato per i Servizi Telefonici
Società Italiana per l’Esercizio Telefonico SpA
Italcable
Telespazio SpA
Luxembourg
Administration des Postes et des Télécommunications
Pays Bas
Post Telegraaf en Telefon
Portugal
Telefones de Lisboa e Porto
Companhia Portugesca Radio Marconi
Correios e Telecommunicacoes de Portugal
Rovaume-Uni
British Telecommunications PLC
Mercury Communications Ltd
City of Kingston-Upon-Hull
 ---pagebreak---                                                                                              55
                                                  ANNEX II
                                 A. OPEN PROCEDURES
1. The name, address, telephone number, telegraphic address, telex and telecopier
   number of the contracting entity
2. For supply and software service contracts : form of contract for which offers are
   invited
3. a) Place of delivery, or site
   b) Nature and quantity of the goods to be supplied
       or
       The nature and extent of the services to be provided and, in the case of works,
       general nature of the work
   c) Indication of whether the suppliers can tender for some and/or all of the goods
       required
       or, for works contracts :
       if 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 of the
       lots
   d) authorization to submit variants
   e) where applicable, information concerning the purpose of the work or the contract
       where the latter also involves the drawing up of projects
4. Derogation from the use of European standards, common technical specifications or
   European technical approvals, in accordance with Article 9.
5. Time-limits for delivery or completion
6. a) Name and address of the service from which the contract documents and
       additional documents may be requested
   b) Where applicable, the amount and terms of payment of the sum to be paid to
       obtain such documents
 ---pagebreak---                                                                                            56
7.   a) the final date for receipt of tenders
     b) the address to which they must be sent
     c) the language or languages in which they must be drawn up
8.   a) The persons authorized to be present at the opening of tenders
     b) the date, hour and place of such opening
9.   Where applicable, any deposits and guarantees required
10. Main terms concerning financing and payment and/or references to the provisions in
     which these are contained
11 . Where applicable, the legal form to be taken by the grouping of suppliers or
     contractors to whom the contract is awarded
12. Economic and technical standards required of the supplier or contractor to whom the
     contract is awarded
13. Period during which the tenderer is bound to keep open his tender
14. The criteria for the award of the contract. Criteria other than that of the lowest price
     shall be mentioned where they do not appear in the contract documents
15 . Other information
16. Where applicable, date of publication of the periodic information notice in the Official
     Journal to which this contract refers
17. Date of dispatch of the notice
18. Date of receipt of the notice by the Office of Official Publications of the European
     Communities
 ---pagebreak---                                                                                                  57
                                                    ANNEX II
                            B. RESTRICTED PROCEDURES
1. The name, address, telephone number,telegraphic address, telex and telecopier
   number of the contracting entity
2. For supply and software service contracts : form of contract for which offers are
   invited
3. Where applicable, justification for the use of the accelerated procedure
4. a) Place of delivery, or site
   b) Nature and quantity of the goods to be supplied
       or
       The nature and extent of the services to be provided and for works, general nature
       of the work
   c) indication of whether the suppliers can tender for some and/or all of the goods
       required
       or, for works contracts :
       if 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 r for all of the lots
   d) authorization to submit variants
   e) information concerning the purpose of the work or the contract where the latter
       also involves the drawing up of projects
5. Derogation from the use of European standards, common technical specifications or
       European technical approvals
6. Time-limits for delivery or completion
7. Where applicable, the legal form to be taken by the grouping of suppliers or
   contractors to whom the contract is awarded
8. a) the final date for receipt of requests to participate
   b) the address to which they must be sent
   c) the language or languages in which they must be drawn up
 ---pagebreak---                                                                                             58
9.    The final date for dispatch of invitations to tender
10. Where applicable, any deposits and guarantees required
1 1 . Main terms concerning financing and payment and/or the provisions laid down by law
      or regulation in which these are contained
12. Information concerning the supplier’s or contractor’s position and economic and
      technical standards required of him
13. The criteria for the award of the contract where they are not mentioned in the
      invitation to tender
14 .  Other information
15. Where applicable, date of publication of the periodic information notice in the Official
      Journal to which this contract refers
16. Date of dispatch of the notice
17. Date of receipt of the notice by the Office of Official Publications of the European
      Communities
 ---pagebreak---                                                                                               59
                                                   ANNEX II
                            C. NEGOTIATED PROCEDURES
1. The name, address, telephone number, telegraphic address, telex and telecopier
   number of the contracting entity
2. For supply and software service contracts : form of contract for which offers are
   invited
3. a) Place of delivery, or site
   b) Nature and quantity of the goods to be supplied
       or
       The nature and extent of the services to be provided for works general nature of
       the work
   c) indication of whether the suppliers can tender for some and/or all of the goods
       required
       or, for works contracts :
       if 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 of the
       lots
   d) information concerning the purpose of the work or the contract where the latter
       also involves the drawing up of projects
4. Derogation from the use of European standards, common technical specifications or
   European technical approvals.
5. Time-limits for delivery or completion
6. Where applicable, the legal form to be taken by the grouping of suppliers or
   contractors to whom the contract is awarded
7. a) the final date for receipt of tenders
   b) the address to which they must be sent
   c) the language or languages in which they must be drawn up
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8.   Where applicable, any deposits and guarantees required
9.   Main terms concerning financing and payment and/or the provisions laid down by law
     or regulation in which these are contained
10. Information concerning the supplier’s or contractor’s position and economic and
     technical standards required of him
11 . Where applicable, the name and addresses of suppliers or contractors already selected
     by the contracting entity
12. Where applicable, date of previous publications in the Official Journal of the
     European Communities
13 . Other information
14. Where applicable, date of publication of the periodic information notice in the Official
     Journal to which this contract refers
15. Date of dispatch of the notice
16. Date of receipt of the notice by the Office of Official Publications of the European
     Communities
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                                                 ANNEX m
          NOTICE ON THE EXISTENCE OF A OUALIFICATION SYSTEM
1. Name, address, téléphoné number, télégraphie address, telex and télécopier number
   of the contracting entity
2. Purpose of the qualification system
3. Address where the rules concerning the qualification system can be obtained (if
   different from the address mentioned under 1 above)
4. Where applicable, duration of the qualification system
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                                                  A NNGX IV
                          PERIODIC INFORMATION NOTICE
A. For supply and software service contracts
1. Name, address, telephone, telegraphic address, telex and telecopier number of the
   contracting entity or the service from which additional information may be obtained
2. Nature and quantity or value of the products to be supplied or, for sc aware service
   contracts, nature and value of the services
3. a) Estimated date of the commencement of the procedures of the award of the
       contract(s) (if known)
   b) Type of award procedure to be used
4. Other information
5. Date of dispatch of the notice
6. Date of receipt of the notice by the Office for Official Publications of the European
       Communities
B. For works contracts :
1. the name, address, telephone, telegraphic address, telex and telecopier number of the
   contracting entity
2. a) the site
   b) the nature and extent of the services to be provided, the main characteristics of
       the work or of the lots by reference to the work
   c) an estimate of the cost of the services to be provided
3. a) type of award procedure to be used
   b) the date scheduled for initiating the award procedures in respect of the contract or
       contracts
   c) the date scheduled for the start of the work
   d ) planned timetable for completion of the work
 ---pagebreak--- 4. Terms of financing of the work and of price revision
5. Other information
6. Date of dispatch of the notice
7. Date of receipt of the notice by the Office for Official Publications of the European
   Communities
 ---pagebreak---                                                   ANNEX V
                     NOTICE ON CONTRACTS AWARDED
1.   Name and address of contracting entity
2.   Award procedure
3.   Date of award of contract
4.   Criteria for award of contract
5.   Number of offers received
6.   Name and address of successful supplier(s) or contractor(s)
7.   Nature and quantity of goods supplied, where applicable, by supplier
     or
     the nature and extent of the services provided, general characteristics of
     the finished structure
8.   Price or range of prices (minimum/maximum) paid
9.   Other information
10. Date of publication of the tender notice in the Official Journal of the
     European Communities
11 . Date of dispatch of the notice
12. Date of receipt of the notice by the Office for Official Publications of the
     European Communities