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

17. 2. 89                           Official Journal of the European Communities                                No C 40/5
                                                               II
                                                       (Preparatory Acts)
                                                 COMMISSION
               Proposal for a Council Directive on the procurement procedures of entities operating in the
                                                  telecommunications sector
                                               COM(88) 378 final — SYN 154
                                    (Submitted by the Commission on 11 October 1988)
                                                         (89/C 40/05)
 THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           77/62/EEC of 21 December 1976 coordinating
                                                                   procedures for the award of public contracts (2), as last
 Having regard to the Treaty establishing the European             amended by Directive 88/295/EEC ( 3 );
 Economic Community, and in particular Article 100a
 and Article 113 thereof,                                          Whereas the telecommunications sector is among such
                                                                   excluded sectors as far as Directive 77/62/EEC is
 Having regard to the proposal from the Commission,                concerned;
 In cooperation with the European Parliament,                      Whereas the main reason for their exclusion was that
                                                                   entities providing such services are in some cases
 Having regard to the opinion of the Economic and                  governed by public law, in others by private law;
 Social Committee,
                                                                   Whereas the    need to ensure a real opening-up of the
Whereas the measures aimed at progressively establishing           market and      a fair balance in the application of
 the internal market during the period up to 31 December           procurement    rules in these sectors, requires that the
 1992 need to be taken; whereas the internal market                entities to be  covered must be identified on a different
 consists of an area without internal frontiers in which           basis than by  reference to their legal status;
 free movement of goods, persons, services and capital is
guaranteed;                                                        Whereas among the main reasons why entities operating
                                                                   in the telecommunications sector do not purchase on the
Whereas successive European Councils have drawn                    basis of Community-wide competition is the closed
conclusions concerning the need to realize a single                nature of the markets in which they operate, due to the
internal market;                                                   existence of special exclusive rights or authorizations
                                                                   granted by the national authorities, concerning the
Whereas restrictions on the free movement of goods and             supply or management of the telecommunications
on the freedom to provide services in the telecommuni-             network or the right to provide telecommunication-
cations sector are prohibited by the terms of Articles 30         services;
and 59 of the Treaty;
                                                                  Whereas the other main reason for the absence of
Whereas those objectives also require the coordination of         Community-wide competition in this sector results from
the procurement procedures applied by the entities                various ways in which national authorities can influence
operating in this sector;                                         the behaviour of these entities, including participations in
                                                                  their capital and representation in the entities' adminis-
Whereas the White Paper on the completion of the                  trative, managerial or supervisory bodies;
internal market lays down an action programme and a
timetable for opening up public procurement markets in            Whereas this Directive should not extend to activities of
sectors which are currently excluded from Council                 these entities which either fall outside the telecommuni-
Directive 71/305/EEC of 26 July 1971 concerning the               cations sector or which fall within that sector but never-
coordination of procedures for the award of public                theless are directly exposed to competitive forces in
works contracts ('), as last amended by the Act of                markets to which entry is unrestricted;
Accession of Spain and Portugal, and Council Directive
                                                                  (2)% OJ No L 13, 15. 1. 1977, p. 1.
(') OJ No L 185, 16. 8. 1971, p. 5.                               (3) OJ No L 127, 20. 5. 1988, p. 1.
 ---pagebreak--- No C 40/6                            Official Journal of the European Communities                                   17. 2. 89
Whereas this Directive should not apply to procurement         HAS ADOPTED THIS DIRECTIVE:
contracts which affect basic State security interests or
which are concluded according to other rules set up by
existing international agreements or international organ-                                 TITLE I
izations;
                                                                                     General provisions
Whereas the Community's or the Member States'                                             Article 1
existing international obligations must not be affected by
the rules of this Directive;                                   The provisions of this Directive shall apply to the award
                                                               of supply, works and software service contracts by
Whereas, within certain limits, a preference should be         contracting entities which:
given to an offer of Community origin where there are
equivalent offers of third country origin;
                                                               (a) are public or are granted special or exclusive rights
Whereas this Directive should not prejudice the position            by Member States, and
of the Community in any current or future international
negotiations;                                                  (b) operate public telecommunications networks or offer
Whereas, based on the results of such international                 one or more telecommunications services to the
negotiations this Directive should be extendable to offers          public.
of third country origin, pursuant to a Council decision;
Whereas contracting entities must be able to reject offers     The entities listed in Annex I fulfil these criteria.
which, because they are based on State aids, are unre-
liable;
                                                                                          Article 2
Whereas in the area of standards and technical specifi-
                                                               This Directive shall not apply to contracts:
cations it is necessary to adopt common rules taking fully
into account Community policy in the field;
                                                               (a) which the contracting entities award exclusively for
Whereas the principles of equivalence and of mutual                 purposes other than the pursuit of their activities
recognition of national standards, technical specifications         described in Article 1 provided that:
and manufacturing methods are applicable in the field of
                                                                     (i) these activities have been notified to           the
application of this Directive;
                                                                         Commission by the contracting entities, and
Whereas the rules to be applied by the entities concerned           (ii) the Commission has published a notification of
should establish a framework, for sound commercial                       their exclusion, after verification, in the Official
practice and should leave a maximum of flexibility;                      Journal of the European Communities;
Whereas, as a counterpart for such flexibility and in the
interests of mutual confidence, a minimum level of trans-       (b) which the contracting entity awards for purchases
parency and appropriate ways for monitoring the                     exclusively in connection with one or more telecom-
application of this Directive must be ensured;                      munications services where other entities are free to
                                                                    offer the same services in the same geographical area
Whereas the arrangements to be introduced should to a               and under the same conditions.
large extent be the same as those laid down by the
Directive on the procurement procedures of entities
providing water, energy and transport services;                     Member States shall notify the Commission of the
                                                                    services falling within the scope of this paragraph
Whereas it is desirable for national provisions in favour           and any relevant legal provisions.
of regional development to be included in the
Communities' objectives;
                                                                                          Article 3
Whereas the disciplines of this Directive should be
phased in in two steps, with a transitional period of two       1.    For the purpose of this Directive, the provisions of
years during which 30 % of overall annual procurements         Title I of Council Directive . . . / . . ./EEC concerning
may be made outside this Directive, in order to ensure its     procurement procedures in the water, energy and
smooth application as from 1992 on the basis of                transport sectors (') shall apply, except Articles 2, 3 and
experience gained during the two previous years;                5.
Whereas no transitional period should be laid down,
however, as regards the obligation to publish periodic          2.    Article 1 of Directive . . . / . . ./EEC shall apply
information notices;                                            except paragraphs 4, 6 and 11. For the purposes of this
                                                                Directive:
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,                                                      (') COM(88) 377.
 ---pagebreak---  17. 2. 89                                 Official Journal of the European Communities                                  N o C 40/7
(a) 'software service contracts' means procurement of                                               TITLE IV
     software for use in connection with networks or tele-
     communications services and purchased by one of                            Qualification, selection and award of contracts
     the contracting entities defined in Article 1;                                                  Article 7
(b) a 'European standard' means a standard approved by               Contracting entities shall apply the provisions of Title IV
     European standards organizations such as the                    of Directive . . . / . . ./EEC (*).
     European Committee for Standardization (CEN)
     and the European Committee for Electrotechnical
     Standardization (Cenelec) as 'European Standard                                                TITLE V
     (CEN)' or 'Harmonization Document (HD)'                                                    Final provisions
     according to the common rules of these organi-
     zations.                                                                                       Article 8
                                                                     Contracting entities shall apply the provisions of Title V
                               Article 4                             of Directive . . . / . . ./EEC (') except Articles 26 (1) and
                                                                     29.
This Directive shall apply to the software service
contracts whose estimated value, net of VAT, is not less
than ECU 200 000.                                                                                   Article 9
                                                                     Annex I to this Directive may be amended by the
                               TITLE II                              Commission:
           Technical specifications and standards
                                                                     (a) to delete entities to which Annex I refers because
                               Article 5                                     they no longer fulfill the criteria for their inclusion
                                                                             set out in Article 1, or
1.    Contracting entities shall apply the provisions of
Title II of Directive . . . / . . ./EEC (»).
                                                                     (b) to include entities which meet those criteria.
2.    Contracting entities may derogate from Article 9
(1) of Directive . . . / . . ./EEC (') if its application would                                    Article 10
prejudice     the application of Council                Directive
86/361/EEC of 24 July 1986 on the initial stage of the               1.         In the case of supplies and software service
mutual recognition of type-approval for telecommuni-                 contracts the provisions of this Directive shall apply to:
cations terminal equipment (2).
                                                                     — at least 70 % in estimated value of the procurement
                                                                            procedures carried out in the year 1990 and the year
                              TITLE III                                      1991,
           Procedures for the award of contracts
                                                                     — all procurements carried out from 1992 onwards.
                               Article 6
1.     For the award of supply, works and software                   2.         Notwithstanding the above, the provisions of
service contracts, contracting entities shall apply the              Article 14 of Directive . . . / . . ./EEC (*) shall apply to all
provisions of Title III of the Directive . . . / . . ./EEC (').      supply and software service contracts from 1 Januar
                                                                     1990.
2.     In the case of software service contracts:
                                                                                                    Article 11
(a) contracting entities may use the negotiated
     procedure without prior call for competition in the             For the purposes of Article 28 of Directive
     cases laid down in Article 12 (2) (a) to (e) of                 . . . / . . ./EEC ('), Member States shall communicate to
     Directive . . . / . . ./EEC ( l )                               the Commission evidence that the levels of progressive
                                                                     implementation of this Directive established in Article 10
(b) Article 14 (1) (a) of Directive . . . / . . ./EEC (>) shall      are complied with.
     apply.
                                                                                                    Article 12
3.    The notices to be published in the Official Journal
of the European Communities shall be established in                   1.        The Commission shall be assisted by a committee
accordance with Annexes II to V to this Directive.                   of an advisory nature which shall be the Advisory
                                                                     Committee on Telecommunications Procurement. The
                                                                     committee is composed of representatives of the Member
(') COM(88) 377.                                                     States and chaired by a representative of the
(2) OJ No L 217, 5. 8. 1986, p. 21.                                  Commission.
 ---pagebreak--- No C 40/8                                   Official Journal of the European Communities                                  17. 2. 89
2.     The Commission shall consult the committee on:                            protection of the basic interest of that State's
                                                                                 security so require.'
(a) amendments to Annex I;
(b) revision of the thresholds;                                       2.     Article 3 (4) and (5) of Directive 71/305/EEC as
                                                                      amended by Directive . . . / . . ./EEC of . . . (J) shall be
(c) procurement rules established under international                 replaced by the following:
     agreements;
                                                                      'This Directive shall not apply to works contracts by
(d) the review of the operation of this Directive.
                                                                      contracting authorities in the fields covered by the
                                                                      provisions of Directive . . . / . . ./EEC (') and those of
                          Article 13                                  Directive . . . / . . ./EEC (2).'
1. Article 2 (2) of Directive 77/62/EEC, as amended by
    Directive 88/295/EEC of 22 March 1988, shall be                                               Article 14
    replaced by the following:
                                                                       1.    Member States shall implement the measures
    'This Directive shall not apply.                                  necessary to comply with this Directive by 31 December
                                                                       1989 at the latest and shall inform the Commission
    (a)    to the award of supply contracts by contracting            thereof.
           authorities in the fields covered by the
           provisions of Directive . . . / . . ./EEC (*) and          2.     Recommendation 84/550/EEC is withdrawn on 31
          those of Directive . . . / . . ./EEC (2),                   December 1989.
    (b)    to supplies which are declared secret or when
           their delivery must be accompanied by special                                          Article 15
           security measures in accordance with the laws,
           regulations or administrative provisions in force          This Directive is addressed to the Member States.
           in the Member State concerned or when the
                                                                      (3) Proposal for a Council Directive amending Directive
                                                                          71/305/EEC concerning the coordination of procedures for
(l) COM(88) 377 final.                                                    the award of public works contracts, (COM(88) 354 final of
O COM(88) 378 final.                                                      20 June 1988).
 ---pagebreak--- 17. 2. 89                            Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s               N o C 40/9
                                                              ANNEX       I
                                                 C O N T R A C T I N G ENTITIES
          Belgium                                                       Ireland
          Regie des Telegraphes et des Telephones                      Telcom Eireann
          Regie van Telegrafie en Telefonie
                                                                        Italy
          Denmark                                                      Amministrazione delle Poste e delle Telecomuni-
          Kobenhavens Telefon Aktieselskab                             cazioni
          Jydsk Telefon                                                Azienda di Stato per i Servizi Telefonici
          Fyns Kommunale Telefonselskab                                Societa Italiana per l'Esercizio Telefonico SpA
          Post- og Telegrafvaesenet                                    Italcable
          Statens Teletjeneste                                         Telespazio SpA
                                                                       Luxembourg
          Federal Republic of Germany
                                                                       Administration des Postes et des Telecommuni-
          Deutsche Bundespost
                                                                       cations
          Greece                                                        The Netherlands
          OTE / Hellenic     Telecommunications         Organ-         Post, Telegraaf en Telefoon
          ization
                                                                       Portugal
          Spain                                                        Telefones de Lisboa e Porto
          Campaflia Telef6nica Nacional de Espafia                     Companhia Portugesa Radio Marconi
                                                                       Correios e Telecomunicac5es de Portugal
          France
          Direction generale des telecommunications                     United Kingdom
          Transpac                                                     British Telecommunications pic
          Telecomservice mobile                                        Mercury Communications Ltd
          Societe francaise de radiotelephone                          City of Kingston Upon Hull
 ---pagebreak--- ^ooe^OBlO                                  C^ffici^l]ourn^lof                 rh^Enro^^nOeornrnunin^^                                                t^ ^ ^
             l . T h e name, address, telephone number, telegraphic address, tele^ and telecopier number of the
                  contracting entity
            2. Eor supply and software service contracts^ form of contract for which offers are invited
            ^. ^       ^laceofdelivery,orsite^
                  ^   mature and quantity of the goods to be supplied
                      or
                      The nature and extent of the services to be provided a n d , i n t h e case of works, general nature of
                      the work,
                  ^   indication of whether the suppliers can tender for some andBor all of the goods required,
                      or, for works contracts^ if the work or the contract is subdivided into several lots, the order of si^e
                      of the different lots and the possibility of tendering for one, serveral, or all of the lots
                  ^   authorisation to submit variants
                  ^   where applicable, information concerning the purpose of the work or the contract where the later
                      also involves the drawing up of proiects
            ^. Uerogation from the use of European standards, common technical specifications or European
                 technical approvals, in accordance with ^rticle^.
            ^. Time limits for delivery or completion
            D. (a^ ^ a m e and a d d r e s s o f t h e s e r v i c e f r o m which t h e c o n t r a c t d o c u m e n t s a n d additionaldocuments
                      may be requested
                  d^ Where applicable, the amount and terms of payment of the sum to be paid to obtain such
                      documents
            ^. ^      the final date for receipt of tenders
                  d^ the address to which they must be sent
                  ^   the language or languages in which they must be drawn up
            ^. ^      The persons authorised to be present at the opening of tenders
                 d^ the date, hour and place of such opening
            ^. Where applicable any deposits and gurantees required
          10. Mainterms concerning financing and payment andBor references to the provisions inwhichthese are
                 contained
          I t . 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
          1^. period during which the tenderer is bound to keep open his tender
 ---pagebreak--- 17. 2. 89                            Official Journal of the European Communities                                     No C 40/11
          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 Office Journal to which
              this contract refers
          17. Date of dispatch of the notice
          18. Date of receipt of the notice by the Office for Official Publications of the European Communities.
 ---pagebreak--- N o C 40/12                              Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s                17. 2. 89
                                                  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, serveral, or 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
             9. The final date for dispatch of invitations to tender
            10. Where applicable, any deposits and guarantees required
            11. 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 for Official Publications of the European Communities
 ---pagebreak--- 17. 2. 89                              Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s                N o C 40/13
                                               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, several, or 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 specification 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
           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 for Official Publications of the European Communities.
 ---pagebreak--- No C 40/14                             Official Journal of the European Communities                                17. 2. 89
                                                            ANNEX III
                           NOTICE ON THE EXISTENCE OF A QUALIFICATION SYSTEM
           1. Name, address, telephone number, telegraphic address, telex and telecopier 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.
 ---pagebreak--- rB ^ ^                             COffici^l]ourn^lof rh^Euron^nC^ornrnuniric^                                    ^o^^OBt^
       A  Eors^pptya^dsofrw^ese^ceco^tr^cts
         t. 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 software service contracts, nature
            and value of the services
         3. (a^ Estimated date of the commencement of the procedures of the award of the c o n t r a c t s (if
                l^nown^
            (b^ r y p e of award procedure to be used
         ^. (Other information
         ^. EOate of dispatch of the notice
         D. L^ate of receipt of the notice by the (office for (Official publications of the European (communities
         t. the name, address, telephone, telegraphicaddress, telex and telecopier numberof the contracting
            entity
         2. (a^ the site
            (b^ the nature and extent of the services to be provided, the main characteristics of the worl^ or of
                 the lots by reference to the worl^
            (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 wDrl^
            (d^ planned timetable for completion of the worl^
         ^. Terms of financing of the worl^ and of price revision
         ^. (Other information
         D. tOate of dispatch of the notice
         B5 Uate of receipt of the notice by the (Office for (Official publications of the E u r o p e a n s
 ---pagebreak--- N o C 40/16                            Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s       17. 2. 89
                                                                ANNEX      V
                                           N O T I C E O N 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 Publication of the European Communities.