CELEX: 51990PC0372
Language: en
Date: 1990-12-06
Title: PROPOSAL FOR A COUNCIL DIRECTIVE RELATING TO THE COORDINATION OF PROCEDURES ON THE AWARD OF PUBLIC SERVICE CONTRACTS

31. 1. 91                               Official Journal of the European Communities                                  No C 23/1
                                                                II
                                                       (Preparatory Acts)
                                                  COMMISSION
             Proposal for a Council Directive relating to the coordination of procedures on the award of public
                                                        service contracts
                                                COM(90) 372 final — SYN 293
                                   (Submitted by the Commission on 13 December 1990)
                                                         (91/C 23/01)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           field of services in so far as this is not already covered by
                                                                   Council Directive 71/305/EEC of 16 July 1971
                                                                   concerning the coordination of procedures for the award of
                                                                   public works contracts ( 1 ), as last amended by Directive
Having regard to the Treaty establishing the European               89/440/EEC ( 2 ), and Council Directive 77/62/EEC oi
Economic Community, and in particular Articles 57 (2),             21 December 1986 coordinating procedures for the award
66, 100a and 113 thereof,                                          of public supply contracts ( 3 ), as last amended by Directive
                                                                   88/295/EEC( 4 );
Having regard to the proposal from the Commission,
                                                                   Whereas this Directive should be applied by all contracting
In cooperation with the European Parliament,                       authorities in the sense of the aforementioned Directives;
Having regard to the opinion of the Economic and Social
                                                                   Whereas suppliers may be natural persons; whereas
Committee,
                                                                   without prejudice to national rules compatible with the
                                                                   Treaty suppliers may also be legal persons;
Whereas the European Council has concluded in successive
meetings on the need to complete the internal market;
                                                                   Whereas the field of services is best described, for the
                                                                   purpose of application of procurement rules, and for
Whereas measures aimed at progressively establishing the           monitoring purposes, by subdividing it into categories
internal market during the period up to 31 December 1992           corresponding to particular positions of the Central
need to be taken; whereas the internal market is an area           Product Classification (CPC);
without internal frontiers in which the free movement of
goods, persons, services and capital is ensured;
                                                                   Whereas the provision of services is covered by this
Whereas these objectives require the coordination of the           Directive only in so far as it is based on contracts; whereas
procurement procedures on the award of public service
contracts;
                                                                   I1) OJ No L 185, 16. 8. 1971, p. 5.
Whereas the White Paper on the completion of the internal          (2) OJ No L 210, 21. 7. 1989, p. 1.
market contains an action programme and a timetable for            (3) OJNoL 13, 15. 1. 1977, p. 1.
opening up public procurement markets, including in the            (4) OJ No L 127, 20. 5. 1988, p. 1.
 ---pagebreak--- No C 2 3 / 2                            Official Journal of the European Communities                                     31. 1. 91
the provision of services on other bases, such as law or           Whereas contracts with a designated single source of
regulations, or employment contracts, is not covered;              supply may under certain conditions be fully or partly
                                                                   exempted from this Directive;
Whereas as far as research and development (R&D) is
 concerned, this Directive only covers R&D services whose
results accrue exclusively to the contracting authority;           Whereas this Directive should not apply to small contracts
                                                                   below a certain threshold, in order to avoid unnecessary
                                                                   formalities; whereas the threshold may in principle be the
                                                                   same as that for public supply contracts; whereas the
 Whereas, in order to ensure coherent award procedures,            threshold for design contracts concerning a complete work
public service concessions should be covered by this               within the meaning of Directive 71/305/EEC should
Directive in the same way as Directive 71/305/EEC                  correspond to the threshold concerning works contracts as
applies to public works concessions;                               established by that Directive; whereas the calculation of
                                                                   contract value, the publication and the method of
                                                                   adaptation of the thresholds should be the same as in the
                                                                   other Community procurement directives;
Whereas contracts relating to ownership or rights on
immovable property have particular characteristics, which
make the application of procurement rules inappropriate;
                                                                   Whereas, to eliminate practices that restrict competition in
                                                                   general and participation in contracts by other Member
Whereas the award of contracts for certain audio-visual
                                                                   States' nationals in particular, it is necessary to improve the
services in the broadcasting field is governed by                  access of suppliers to procedures for the award of
considerations which make the application of procurement           contracts;
rules inappropriate;
Whereas arbitration and conciliation services are usually          Whereas full application of the Directive must be limited,
provided by bodies or individuals which are agreed on, or          for a transitional period, to contracts for those services
selected, in a manner which cannot be governed by                  where the market is genuinely open or will be so by the
procurement rules;                                                 time this Directive comes into effect, and where the
                                                                   provisions of the Directive will enable the full potential for
                                                                   increased cross-frontier trade to be realized; whereas
Whereas the financial services sector includes activities in       contracts for other services need to be monitored for a
                                                                   certain period before taking a decision on the full
connection with the application of instruments of monetary
                                                                   application of the Directive; whereas the mechanism for
policy; the particular characteristics of this area require
                                                                   such monitoring needs to be set up by the Directive;
their exclusion from this Directive;
                                                                   whereas it should at the same time enable those interested
                                                                   to share the relevant information;
Whereas in the field of services the same derogations as in
the aforementioned Directives should apply, as regards
State security or secrecy and the priority of other                Whereas the rules for the award of public service contracts
procurement rules such as those pursuant to international          should be as close as possible to those concerning public
agreements, the stationing of troops, or the rules of              supply contracts and public works contracts;
international organisations;
Whereas this Directive does not prejudice the application          Whereas the procurement rules contained in Directives
of, in particular, Articles 55, 56 and 66 of the Treaty;           71/305/EEC and 77/62/EEC can be applied, with
                                                                   necessary adaptations so as to take into account special
                                                                   aspects of procurement of services such as the choice of the
Whereas the rules concerning service contracts as contained        negotiated procedure, design contests, variants, the legal
in Council Directive 90/531 /EEC of 17 September 1990              form of suppliers, the reservation of certain activities to
on the procurement procedures of entities operating in the         certain professions, registration and quality assurance
water, energy, transport          and   telecommunications         matters;
sectors (a) should remain unaffected by this Directive;
                                                                   Whereas the particular conditions for use of the negotiated
                                                                  procedure with prior publication of a notice when the
(!) OJ No L 297, 29. 10. 1990, p. 1.                               service to be performed cannot be specified with sufficient
 ---pagebreak--- 31. 1. 91                                Official Journal of the European Communities                                  No C 2 3 / 3
precision should be fulfilled in particular in the field of         (a) 'public service contracts' are contracts for pecuniary
intellectual, creative services;                                        interest concluded in writing between a supplier and a
                                                                        contracting authority, to the exclusion of
Whereas the relevant Community rules on mutual                          (i)     public supply contracts within the meaning of
recognition of diplomas, certificates or other evidence of                      Article 1 (a) of Directive 77/62/EEC and
formal qualifications apply when evidence of a particular                       public works contracts within the meaning of
qualification is required for participation in an award                         Article 1 (a) of Directive 71/305/EEC;
procedure or a design contest;
                                                                        (ii)    contracts for the purchase, lease or rental of, or
                                                                                concerning rights on land, existing buildings or
Whereas the objectives of this Directive do not require any                     other immovable property;
changes in the current state at national level, as regards the
admission, or regulation, of price competition between                  (iii)   contracts for the acquisition of programme
suppliers of certain services;                                                  material by broadcasters within the meaning of
                                                                                Council     Directive    89/552/EEC ( J ),     and
                                                                                contracts for broadcasting time pursuing public
Whereas contracting authorities must be able to reject                          interest objectives such as information to the
tenders which, because they are based on State aids, are                        population in case of civil disasters;
unreliable; whereas tenders which are submitted by public
bodies may create the risk of distortions of competition                (vi)    contracts     for    voice    telephony,     telex,
when they are influenced by the availability of public                          radiotelephony, paging and satellite services;
financing; whereas contracting authorities shall, under
particular conditions, inform the Commission of their
                                                                        (v)     contracts    for  arbitration   and    conciliation
attitude towards such tenders; whereas this Directive does
                                                                                services;
not prejudice the application of Articles 92 et seq, of the
Treaty;
                                                                        (vi)    public service concessions in the sense of
                                                                                point (h);
Whereas Community undertakings should be granted
                                                                        (vii) contracts concerning primary issues of
access to the award of public service contracts and
                                                                                government bonds and other activities in the
concessions in non-Community countries; whereas
                                                                                area of public debt management;
negotiations may be initiated to that effect when such
access, in law or in fact, is found to be restricted; whereas
the possibility should exist under certain conditions to take       (b) 'contracting authorities' (hereafter 'authorities') shall
measures as regards access to public service contracts or               be the bodies described in Article 1 (b) of Directive
concessions in the Community, of undertakings or of                     71/305/EEC, and any other bodies listed in Annex I
tenders originating in the non-Community country                        to Directive 80/767/EEC;
concerned;
                                                                    (c) 'suppliers' are natural or legal persons, including
Whereas the operation of this Directive should be reviewed              public bodies which offer services. A supplier who
at the latest three years after the date for compliance of              submits a tender shall be designated by the term
national procurement rules; whereas the review should                   'tenderer', and one who has sought an invitation to
extend in particular to the possibility of making the                   take part in a restricted or negotiated procedure by the
Directive fully applicable to a wider range of service                  term 'candidate';
contracts,
                                                                    (d) 'open procedures' are those national procedures
                                                                        whereby all interested suppliers may submit a tender;
HAS ADOPTED THIS DIRECTIVE:                                        (e)  'restricted procedures' are those national procedures
                                                                        whereby only those suppliers invited by the authority
                                                                        may submit a tender;
                            TITLE I
                                                                    (f) 'negotiated procedures' are those national procedures
                                                                        whereby authorities consult suppliers of their choice
                   GENERAL PROVISIONS                                   and negotiate the terms of the contract with one or
                                                                        more of them;
                           Article 1
For the purpose of this Directive:                                 (!) OJ No L 298, 17. 10. 1989, p. 23.
 ---pagebreak---   No C 23/4                                Official Journal of the European Communities                                    31. 1. 91
  (g) 'design contests' are those national procedures which           intends to award to third parties when the value of the
      aim at providing the authority with a plan or design,           contract is above the thresholds fixed in Article 8 (1).
      mainly in the fields of area planning, town planning,
      architecture and civil engineering, or data processing,
      and which are selected by a jury on the basis of                Advertising rules need not be applied when the contract
      competition with or without the award of prizes;                meets the conditions laid down in Article 13 (3).
 (h) a 'public service concession' is a contract other than a         3. Undertakings which have formed a group in order to
      public works concession within the meaning of                   obtain the concession, or undertakings affiliated to them,
      Article 1 (d) of Directive 71/305/EEC, concluded                shall not be regarded as third parties within the meaning of
      between an authority and another entity of its choice           paragraph 2 under the conditions specified in Article l b (4)
      whereby the former transfers the execution of a service         of Directive 71/305/EEC.
      to the public lying within its responsibility to the latter
      and the latter accepts to execute the activity in return
      for the right to exploit the service or this right together
      with payment. Contracts for the award of rights to                                         Article 4
      perform broadcasting activities are excluded from this
      definition.                                                     1. This Directive shall apply to service contracts awarded
                                                                      by authorities in the field of defence, except for contracts to
                                                                      which the provisions of Article 223 of the Treaty apply.
                                                                      2. This Directive shall not apply to services which are
                                                                      declared secret or the execution of which must be
                           Article 2                                  accompanied by special security measures in accordance
                                                                     with the laws, regulations or administrative provisions in
 1. Member States shall take the necessary measures to                force in the Member State concerned or when the
 ensure that authorities comply with this Directive when              protection of the basic interests of that State's security so
 they award public service contracts or public service                requires.
 concessions, or hold design contests.
                                                                                                 Article 5
 2. Authorities shall ensure that there is no discrimination         This Directive shall not apply to contracts governed by
 between different suppliers.                                        different procedural rules and awards:
                                                                     (a) pursuant to an international agreement concluded
                                                                           between a Member State and one or more
                                                                           non-member countries and covering services intended
 3. Member States shall take the necessary measures to                     for the joint implementation or exploitation of a
ensure that the authorities comply or ensure compliance                    project by the signatory States; every agreement shall
with this Directive where they subsidize directly by more                  be communicated to the Commission, which may
than 50 % service contracts awarded by an entity other                     consult the Advisory Committee for Public Contracts
than themselves in connection with projects to which                       set up by Council Decision 71/306/EEC (2);
Article la (2) of Directive 71/305/EEC relates.
                                                                     (b) to undertakings in a Member State or a non-member
                                                                           country in pursuance of an international agreement
                                                                           relating to the stationing of troops;
                                                                     (c)   pursuant to the particular           procedure    of   an
                           Article 3                                       international organization.
1. When a concessionnaire is himself an authority within
the meaning of Article 1 (b), he shall comply with the
                                                                                                 Article 6
provisions of this Directive in the case of services to be
carried out by third parties.
                                                                     This Directive shall not apply to the award of public service
                                                                     contracts or concessions or the execution of design contests
                                                                     by contracting entities within the meaning of Article 2 of
                                                                     Directive 90/531/EEC.
2. Member States shall take the necessary steps to ensure
that a concessionnaire which is not itself an authority shall
apply the advertising rules as set out in Articles 17, 18 and
19 to contracts for services listed in Annex LA which it             (!) OJNo L 185, 16. 8. 1971, p. 15.
 ---pagebreak--- 31. 1. 91                                Official Journal of the European Communities                                 No C 23/5
                           Article 7                                the supplier as estimated at the time of publication of the
                                                                    notice in accordance with Article 17, along with the
Without prejudice to Article 17 (1), the provisions of this         elements specified in paragraphs 6 to 10.
Directive shall not apply to the award of public service
contracts which authorities have to award to an entity
which is itself a contracting authority within the meaning
                                                                    6. In the case of contracts which do not specify a total
 of Article 1 (b) pursuant to an exclusive right established
                                                                    price, the basis for calculating the estimated contract value
by a published law, regulation or administrative provision          shall be:
which is compatible with the Treaty.
                                                                    — in the case of fixed term contracts, the total contract
                                                                        value for its duration,
                           Article 8                                — in the case of contracts for an indefinite period or in
                                                                        cases where there is doubt as to the duration of the
 1. The provisions of this Directive shall apply to contracts           contracts, the monthly instalment multiplied by 48.
for services falling within category 6 of Annex I.A which:
(a)   as regards insurance services, provide for annual             7. In the case of regular contracts or of contracts which
      premiums of not less than ECU 100 000;                        are to be renewed within a given time, the contract value
                                                                    may be established on the basis of:
(b) as regards banking and other financial services,
      provide for fees, commissions or other types of               — either the aggregate cost of similar contracts for the
      remuneration of not less than ECU 200 000.                        same category of services concluded over the previous
                                                                        fiscal year or 12 months, adjusted, where possible, for
                                                                        anticipated changes in quantity or value over the
2. The provisions of this Directive shall apply to contracts            subsequent 12 months,
for services falling within category 12 of Annex I.A which
have as their object the complete design of a work within               or
the meaning of Article 1 (c) of Directive 71/305/EEC,
when the estimated cost net of VAT of the execution of the          — the estimated aggregate cost during the 12 months
work is not less than ECU 5 000 000.                                    following first performance or during the term of the
                                                                        contract, where this is greater than 12 months.
Where the design of a work is subdivided into several lots,
each one the subject of a contract, the value of execution of       The selection of the valuation method shall not be used
each lot must be taken into account for the purpose of              with the intention of avoiding the application of this
calculating the amount referred to above. Where the                 Directive.
aggregate value of the execution of the lots is not less than
the amount referred to above, the provisions of this
Directive shall apply to all lots. Authorities shall be
                                                                    8. In cases where a proposed contract specifies option
permitted to depart from this provision for lots the
                                                                    clauses, the basis for calculating the contract value shall be
execution of which has an estimated value net of VAT of
                                                                    the highest possible total inclusive of the option clauses.
less than ECU 1 000 000, provided that the total estimated
value of the execution of all the lots exempted does not, in
consequence, exceed 20 % of the total estimated value of
all lots.                                                           9. No procurement requirement for a given amount of
                                                                    services may be split up with the intention of avoiding the
                                                                    application of this Article.
3. The provisions of this Directive shall apply to contracts
for services falling within the category 21 of Annex LB
which provide for expected annual benefits from interest of         10. When calculating the amounts referred to in
not less than ECU 200 000.                                          paragraphs 1 to 4, account shall be taken not only of the
                                                                    value of the services but also of the estimated value of the
                                                                    supplies needed to carry out the services which are made
                                                                    available to the supplier by the authorities.
4. The provisions of this Directive shall apply to all other
service contracts whose estimated value net of VAT is not
less than ECU 200 000.
                                                                    11. Article 5 (1) (c) and (1) (d) of Directive 77/62/EEC
                                                                    are applicable as regards the value in national currency of
                                                                    the thresholds laid down in paragraphs 1 to 4 of this
5. The value of a contract within the meaning of                    Article, the calculation of these values, and the revision of
paragraphs 1, 2 and 4 includes the total remuneration of            the method of calculation.
 ---pagebreak--- No C 23/6                               Official Journal of the European Communities                                   31. 1. 91
                           TITLE II                                     which are unacceptable under national provisions that
                                                                        are in accordance with the provisions of Title VI
                                                                        Chapter 1, in so far as the original terms of the
                   TWO-TIER APPLICATION                                 contract are not substantially altered. The authority
                                                                        may not, in such a case, publish a tender notice where
                                                                        it includes in such negotiated procedure all the
                                                                        tenderers satisfying the criteria of Articles 26 to 32
                           Article 9
                                                                        which, during the prior open or restricted procedure,
                                                                        have submitted tenders in accordance with the formal
Contracts which have as their object services listed in                 requirements of the tendering procedure;
Annex I.A shall be awarded in accordance with the
provisions of Titles III to VI.
                                                                   (b) in exceptional cases, when the nature of the services or
                                                                        the risks attaching thereto do not permit overall
                          Article 10                                    pricing;
Contracts which have as their object services listed in
Annex LB shall be awarded in accordance with Articles 16           (c)  when the nature of the services to be procured, in
and 18.                                                                 particular in the case of intellectual services and
                                                                        services falling within category 6 of Annex IA, is such
                                                                        that contract specifications cannot be established with
                                                                        sufficient precision to permit the award of the contract
                          Article 11                                    by selecting the best tender according to the rules
                                                                        governing open or restricted procedures.
Contracts which have as their object services listed in both
Annexes LA and LB shall be awarded in accordance with
the provisions of Titles III to VI where the value of the
services listed in Annex LA is greater than the value of the
services listed in Annex LB. Where this is not the case, they
shall be awarded in accordance with Articles 16 and 18.            3. The authorities may award public service contracts by
                                                                   negotiated procedure without prior publication of a tender
                                                                   notice, in the following cases:
                          Article 12
                                                                   (a) in the absence of tenders or of appropriate tenders in
Where authorities conclude a public service concession                  response to an open or restricted procedure in so far as
contract within the meaning of Article 1 (h), the advertising           the original terms of the contract are not substantially
rules as described in Articles 17, 18 and 19 shall apply                altered and provided that a report is communicated to
irrespective of whether the object of the concession is a               the Commission at its request;
service within the meaning of Annex LA or Annex LB,
when its value is not less than ECU 5 000 000.
                                                                   (b) when, for technical or artistic reasons, or for reasons
                                                                        connected with the protection of exclusive rights, the
                                                                        services may only be carried out by a particular
                                                                        supplier;
                           TITLE III
CHOICE OF AWARD PROCEDURES, AND RULES ON                           (c) when the contract concerned is part of the follow-up
                     DESIGN CONTESTS                                    to a design contest and must, according to the relevant
                                                                        rules, be awarded to one of the winners of that
                                                                        contest;
                          Article 13
                                                                   (d) in so far as is strictly necessary when, for reasons of
1. In awarding public service contracts the authorities
                                                                        extreme urgency brought             about   by events
shall apply the procedures defined in Article 1, adapted to
                                                                        unforeseeable by the authorities in question, the time
this Directive.
                                                                        limit for the open, restricted or negotiated procedures
                                                                        referred to in Article 19 cannot be kept. The
                                                                        circumstances invoked to justify extreme urgency must
2. The authorities may award their public service
                                                                        not in any event be attributable to the authorities;
contracts by negotiated procedure, with prior publication
of a tender notice in the following cases:
(a) in the event of irregular tenders in response to an open       (e)  for additional services not included in the project
     or restricted procedure or in the event of tenders                 initially considered or in the contract first concluded
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      but which have, through unforeseen circumstances,               3. For each contract awarded the authorities shall draw
      become necessary for the carrying out of the service            up a written report which shall include at least the
      described therein, on condition that the award is made          following:
      to the supplier carrying out such service:
                                                                      — its name and address, the subject and value of the
      — when such services cannot be technically or                       contract,
            economically separated from the main contract
            without great inconvenience to the contracting            — the names of the candidates or tenderers admitted and
            authorities,                                                  the reasons for their selection,
            or                                                        — the names of the candidates or tenderers rejected and
                                                                          the reasons for their rejection,
      — when such services, although separable from the
            execution of the original contract, are strictly          — the name of the successful tenderer and the reasons for
            necessary to the later stages.                                his tender having been selected and, if known, any
                                                                          share of the contract the successful tenderer may intend
                                                                          to subcontract to a third party,
      However, the aggregate estimated value of contracts
      awarded for additional services may not exceed 50 %             — for negotiated procedures, the circumstances referred to
      of the amount of the main contract;                                 in Article 13 which justify the use of these procedures.
 (f)  for new services consisting of the repetition of similar
                                                                      This report, or the main features of it, shall            be
      services entrusted to the supplier to which the same
                                                                      communicated to the Commission at its request.
      authorities awarded an earlier contract, provided that
      such services conform to a basic project for which a
      first contract was awarded according to the
      procedures referred to in paragraph 4. As soon as the
      first project is put up for tender, notice must be given                                 Article IS
      that this procedure might be adopted and the total
      estimated cost of subsequent services shall be taken            1. Design contests shall be subject to the rules set out
      into consideration by the authorities when they apply           below. When design contests are held as a separate
      the provisions of Article 8. This procedure may be              procedure, these rules are applicable only when the total
      applied solely during the three years following the             amount of prizes and payments to participants is not less
      conclusion of the original contract.                            than ECU 200 000.
                                                                      2. The admission of participants to design contests shall
                                                                      not be limited by reference to the territory or part of the
4. In all other cases, the authorities shall award their             territory of a Member State.
public service contracts by the open procedure or by the
restricted procedure.
                                                                      3. In the case of design contests with a limited number of
                                                                     participants, authorities shall apply the rules laid down in
                                                                     Article 24.
                           Article 14                                4. The jury shall be composed only of persons who have
                                                                     no financial connections or special relationships with
1. This authority shall, within 15 days of the date on               participants in the contest. Whenever a particular
which the request is received, inform any eliminated                 professional qualification is required from participants in a
candidate or tenderer who so requests in writing of the              contest, the majority of the jury members shall have the
reasons for rejection of his application or his tender, and,         same qualifications.
in the case of a tender, the name of the successful
tenderer.
                                                                     The jury shall be autonomous in its decisions. It shall take
                                                                     its decisions based on projects presented in an anonymous
                                                                     way, and solely on the grounds of the criteria indicated in
2. The authority shall inform candidates or tenderers who            the invitation for projects in the sense of Annex IV.
so request of the grounds on which it decided not to award
a contract in respect of which a prior call for competition
was made, or to recommence the procedure. It shall also              5. Member States may oblige authorities to award
inform the Office for Official Publications of the European          subsequent contracts to one of the winners of a design
Communities of that decision.                                        contest.
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                           TITLE IV                                (d) the project concerned is of a genuinely innovative
                                                                         nature for which use of existing European standards,
                                                                         European technical approvals or common technical
                                                                         specifications would not be appropriate.
       COMMON RULES IN THE TECHNICAL FIELD
                                                                   4. Authorities invoking paragraph 3 shall record,
                                                                   wherever possible, the reasons for doing so in the tender
                                                                   notice published in the Official Journal of the European
                          Article 16                               Communities or in the contract documents and in all cases
                                                                   shall record these reasons in their internal documentation
1. The technical specifications defined in Annex II shall be       and shall supply such information on request to Member
given in the general documents or the contractual                  States and to the Commission.
documents relating to each contract.
                                                                   5. In the absence of European standards or European
                                                                   technical approvals or common technical specifications, the
2. Without prejudice to the legally binding national               technical specifications:
technical rules and in so far as these are compatible with
Community law, such technical specifications shall be              (a)   shall be defined by reference to the national technical
defined by the authorities by reference to national                      specifications recognized as complying with the basic
standards implementing European standards or by                          requirements listed in the Community Directives on
reference to European technical approvals or by reference                technical harmonization, in accordance with the
to common technical specifications.                                      procedures laid down in those Directives, and in
                                                                         particular in accordance with the procedures laid
                                                                         down in Council Directive 89/106/EEC ( 3 );
3. An authority may depart from paragraphs if:                     (b) may be defined by reference to national technical
                                                                         specifications relating to design and method of
(a) the standards, European technical approvals or                       calculation and execution of works and use of
     common technical specifications do not include any                  materials;
     provisions for establishing conformity, or technical
     means do not exist for establishing satifactorily the         (c)   may be defined by reference to other documents.
     conformity of a product to these standards, European
     technical      approvals     or   common       technical            In this case, it is appropriate to make reference in
      specifications;                                                    order of preference to:
                                                                         (i)   national standards implementing international
(b) the application of paragraph 2 would prejudice the                         standards accepted by the country of the
     application of Council Directive 86/361/EEC of                            authority;
     24 July 1986 on the initial stage of the mutual
     recognition of type approval for telecommunications                 (ii) other national standards and national technical
     terminal     equipment ( 1 ), or    Council    Decision                   approvals of the country of the authority;
      87/95/EEC of 22 December 1986 on standardization
     in the field of information technology and                          (iii) any other standard.
     telecommunications (2)       or   other     Community
     instruments in specific service or product areas;
                                                                   6. Unless it is justified by the subject of the contract,
                                                                   Member States shall prohibit the introduction into the
(c)  use of these standards, European technical approvals
                                                                   contractual clauses relating to a given contract of technical
     or common technical specifications would oblige the
                                                                   specifications which mention products of a specific make or
      authority to acquire products or materials
                                                                   source or of a particular process and which therefore
     incompatible with equipment already in use or would
                                                                   favour or eliminate certain undertakings. In particular, the
     entail disproportionate costs or disproportionate
                                                                   indication of trade marks, patents, types, or of specific
     technical difficulties, but only as part of a clearly
                                                                   origin or production shall be prohibited. However, if such
     defined and recorded strategy with a view to
                                                                   indication is accompanied by the words 'or equivalent', it
     change-over, within a given period, to European
                                                                   shall be authorized in cases where the authorities are
     standards, European technical approvals or common
                                                                   unable to give a description of the subject of the contract
     technical specifications;
                                                                   using specifications which are sufficiently precise and
                                                                   intelligible to all parties concerned.
(!) OJ No L 217, 5. 8. 1986, p. 21.
(2) OJNoL 36,7. 2. 1987, p. 31.                                    (3) OJ No L 40, 11. 2. 1989, p. 12.
 ---pagebreak--- 31. 1. 91                                 Official Journal of the European Communities                               No C 23/9
                           TITLE V                                   5. In so far as release of information on the contract
                                                                     award would impede law enforcement or otherwise be
                                                                     contrary to the public interest or would prejudice the
             COMMON ADVERTISING RULES                                legitimate commercial interests of a particular enterprise,
                                                                     public or private, or might prejudice fair competition
                                                                     between suppliers, such information may not be
                                                                     published.
                          Article 17
 1. Authorities shall make known, by means of an                                                Article 19
indicative notice to be published as soon as possible after
the beginning of their budgetary year, the intended total            1. The notices shall be drawn up in accordance with the
procurement in each of the service categories listed in              models set out in Annexes III, IV and V, and shall specify
Annex I.A which they envisage awarding during the                    the information requested in those models. The authorities
coming 12 months where the total estimated value, taking             may not require any conditions but those specified in
account of the provisions of Article 8, is equal to or greater       Articles 28 and 29 when requesting information concerning
than ECU 750 000. Intended contracts for the design of a             the economic and technical standards which they require of
work within the meaning of Article 1 (c) of Directive                suppliers for their selection (Point 13 of Annex III.B,
71/305/EEC and of which the estimated value is not less              point 12 of Annex III.C, and point 11 of Annex III.D).
than the threshold laid down in Article 8 (2) shall be
indicated separately in the notice.
                                                                     2. The following provisions of Directive 71/305/EEC
                                                                     shall apply:
2. Authorities who wish to award a public service
                                                                     (i)   Article 12 (6), (8) and (13) concerning publication of
contract by open, restricted or, under the conditions laid                 notices;
down in Article 13, negotiated procedure, shall make
known their intention by means of a notice.                          (ii) Articles 13 to 15 concerning minimum time limits for
                                                                           the phases of award procedures and communications
                                                                           between authorities and candidates;
3. Authorities who wish to award a public service
concession shall make known their intention by means of a            (iii) Articles 15a and 15b concerning minimum time limits
notice.                                                                    for the award of public service concessions and
                                                                           contracts to be awarded by concessionnaires;
                                                                     (vi) Article 19 concerning voluntary publication of notices
4. Authorities who wish to carry out a design contest shall                in the Official         Journal  of   the    European
make known their intention by means of a notice.                           Communities.
                                                                     3. The conditions for the establishment, transmission,
                         Article 18                                  reception, translation, accumulation and distribution of the
                                                                     notices referred to in paragraphs 1 and 2 and in Articles 17
1. Authorities who have awarded a contract or a public               and 18, and of the statistical reports provided for in
service concession, or which have held a design contest              Articles 18 (4) and 38 and the reference in the notices to
shall send a notice of the results of the award procedure to         particular CPC positions within the categories of services
the Office for Official Publications of the European                 listed in Annexes I.A and I.B may be modified in
Communities.                                                         accordance with the procedure laid down                   in
                                                                     Article 39 (3).
2. In cases of public service contracts for services listed in
Annex I.A, public service concessions and design contests,
the notice shall be published in accordance with the                                             TITLE VI
provisions referred to in Article 19.
                                                                                               Chapter 1
3. In the case of public service contracts for services listed
in Annex I.B, the authorities shall indicate in the notice
whether they agree on its publication.                                              Common rules on participation
4. The Commission shall draw up the rules for                                                   Article 20
establishing regular reports on the basis of such notices,
and for the publication of such reports in accordance with           Contracts shall be awarded on the basis of the criteria laid
the procedure laid down in Article 39 (3).                           down in Chapter 3, taking into account Article 2 1 , after
 ---pagebreak--- No C 23/10                                Official Journal of the European Communities                                    31. 1. 91
the suitability of the suppliers not excluded under                  form in order to submit the tender; however, the group
Article 26 has been checked by the authorities in                    selected may be required to do so when it has been
accordance with the criteria referred to in Articles 28 and          awarded the contract.
29.
                                                                     2. Candidates or tenderers may not be rejected on the
                          Article 21                                 grounds that they are either natural or legal persons. Legal
                                                                     persons, however, may be required to indicate in the tender
1. Authorities may take account of variants where the                or the request for participation the names and relevant
criterion for the award of the contract is that of the               professional qualification of the staff to be responsible for
economically most advantageous tender. They shall                    the performance of the service.
indicate in the tender notice whether or not variants will be
considered. Where applicable, any specific requirements for
the presentation of variants shall be stated in the tender
notice or in the contract documents.                                 3. Paragraph 2 is without prejudice to         national rules
                                                                     which establish conditions for the setting     up of, or the
                                                                     carrying out of particular activities by,       legal persons
Variants must not deviate from minimum specifications                governed by the law of the Member States      concerned.
which the authority may have established. Minimum
specifications shall be stated in the tender notice or in the
contract documents.
2. Authorities which have admitted variants pursuant to                                         Article 24
paragraph 1 may not reject a variant on the sole grounds
that it would lead, if successful, to a supply contract rather       1. In restricted and negotiated procedures the authorities
than a public service contract within the meaning of this            shall, on the basis of information given relating to the
Directive.                                                           supplier's position as well as to the information and
                                                                     formalities necessary for the evaluation of the minimum
                                                                     conditions of an economic and technical nature to be
                                                                     fulfilled by him, select from among the candidates with the
                           Article 22                                qualifications required by Articles 26 to 32 those whom
                                                                     they will invite to submit a tender or to negotiate.
 1. In the contract documents, the authority may ask the
tenderer to indicate in his tender any share of the contract
he may intend to subcontract to third parties.
                                                                     2. Where the authorities award a contract by restricted
                                                                     procedure, they may prescribe the range within which the
This indication shall be without prejudice to the question           number of suppliers which they intend to invite will fall. In
of the principal supplier's liability.                               this case the range shall be indicated in the contract notice.
                                                                     The range shall be determined in the light of the nature of
                                                                     the service to be carried out. The range must number at
2. Where authorities intend to award a public service                least five suppliers and may be up to 20.
concession, they may:
— either require the concessionnaire to award contracts
     representing a minimum of 30 % of the total value of            In any event, the number of candidates invited to tender
     the services for which the concession contract is to be          shall be sufficient to ensure genuine competition.
     awarded, to third parties, at the same time providing
     the option for candidates to increase this percentage.
     This minimum percentage shall be specified in the
     concession contract,                                             3. Where the authorities award a contract by negotiated
                                                                     procedure as referred to in Article 13, the number of
 — or request the candidates for concession contracts to              candidates admitted to negotiate may not be less than three
     specify in their tenders the percentage, if any, of the          provided that there is a sufficient number of suitable
     total value of the concession contract which they intend         candidates.
     to assign to third parties.
                                                                      4. Each Member State shall ensure that authorities issue
                           Article 23                                 invitations without discrimination to those nationals of
                                                                      other Member States who satisfy the necessary
 1. Tenders may be submitted by groups of suppliers.                  requirements and under the same conditions as to its own
 These groups may not be required to assume a specific legal          nationals.
 ---pagebreak--- 31. 1. 91                                 Official Journal of the European Communities                                   No C 23/11
                          Article 25                                 (g) is guilty of serious misrepresentation in supplying the
                                                                           information required under this chapter.
1. The authority may state in the contract documents, or
be obliged by a Member State to do so, the authority or
authorities from which a candidate may obtain the                    Where the authority requires of the supplier proof that
appropriate information on the obligations relating to the           none of the cases quoted in (a), (b), (c), (e), or (f) applies to
employment protection provisions and the working                     him, it shall accept as sufficient evidence:
conditions which are in force in the Member State, region
or locality in which the services are to be performed and            —' for (a), (b), or (c), the production of an extract from the
which shall be applicable to the services provided on site               'judicial record' or, failing this, of an equivalent
during the performance of the contract.                                  document issued by a competent judicial or
                                                                         administrative authority in the country of origin or in
                                                                         the country whence that person comes showing that
2. The authority which supplies the information referred                 these requirements have been met,
to in paragraph 1 shall request the tenderers or those
participating in the contract procedure to indicate that they        — for (e) or (f), a certificate issued by the competent
have taken account, when drawing up their tender, of the                 authority in the Member State concerned.
obligations relating to employment protection provisions
and the working conditions which are in force in the place
where the service is to be carried out. This shall be without        Where the country concerned does not issue such
prejudice to the application of the provisions of Article 34         documents or certificates, they may be replaced by a
concerning the examination of abnormally low tenders.                declaration on oath made by the person concerned before a
                                                                     judicial or administrative authority, a notary or a
                                                                     competent professional or trade body, in the country of
                                                                     origin or in the country whence that person comes.
                          Chapter 2
                                                                     Member States shall, within the time limit referred to in
              Criteria for qualitative selection                     Article 19, designate the authorities and bodies competent
                                                                     to issue these documents and shall forthwith inform the
                                                                     other Member States and the Commission thereof.
                          Article 26
Any supplier may be excluded from participation in the                                           Article 27
contract who:
                                                                     1. Any candidate or tenderer may be requested to prove
(a)  is bankrupt or is being wound up, whose affairs are
                                                                     his enrolment, as prescribed in his country of
     being administered by the court, who has entered into
                                                                     establishment, in one of the professional or trade registers
     an arrangement with creditors, who has suspended
                                                                     or to provide a declaration or certificate as described in
     business activities or who is in any analogous situation
                                                                     paragraph 3.
     arising from a similar procedure under national laws
     and regulations;
                                                                     2. In so far as candidates for a public contract have to
(b) is the subject of proceedings for a declaration of
                                                                     possess a particular authorization or to be members of a
     bankruptcy, for an order for compulsory winding up
                                                                     particular organization in their home country in order to be
     or administration by the court or for an arrangement
                                                                     able to perform the service concerned, the authority may
     with creditors or of any other similar proceedings
                                                                     require them to prove that authorization or membership.
     under national laws or regulations;
(c)  has been convicted of an offence concerning his
     professional conduct by a judgement which has the               3. The relevant professional             or  trade  registers  or
     force of res judicata;                                          declarations or certificates are:
(d) who has been guilty of grave professional misconduct             — in Belgium, the              'registre    du   commerce      —
     proven by any means which the authorities can                       Handelsregister',
     justify;
                                                                     — in Denmark, the 'Erhvervs-og Selskabsstyreisen' (the
(e)  has not fulfilled obligations relating to the payment of            'Aktieselskabsregistret';        'Foreningsregistret',     or
     social security contributions in accordance with the                'Handelsregistret'),
     legal provisions of the country in which he is
     established or with those of the country of the                 — in      Germany,        the     'Handelsregister'   and     the
     authority;                                                          'Handwerksrolle',
(f)  has not fulfilled obligations relating to the payment of        — in Greece, a declaration on the exercise of the
     taxes in accordance with the legal provisions of the                profession concerned made on oath before a notary
     country of the authority;                                           may be required,
 ---pagebreak---  No C 23/12                                   Official Journal of the European Communities                                      31. 1. 91
 — in Spain, the 'Registro Oficial de Contratistas del                   2. Evidence of the suppliers' technical capability may be
     Ministerio de Industria y Energia',                                 furnished by one or more of the following means according
                                                                         to the nature, quantity and purpose of the services to be
 — in France, the 'registre du commerce', and                   the      supplied:
     'repertoire des metiers',
 — in Italy, the 'Registro della Camera di commercio,
                                                                         (a) the      suppliers'     educational    and      professional
     industria, agricoltura e artigianato' or the 'Registro
                                                                               qualifications and/or those of the firm's managerial
     delle commissioni provinciali per Partigianato',
                                                                              staff, and in particular, those of the person or persons
 — in Luxembourg, the 'registre aux firmes' and the 'role                     responsible for performing the services;
     de la Chambre des metiers',
 — in the Netherlands, the 'Handelsregister',                            (b) a list of the principal services supplied in the past three
                                                                              years, with the sums, dates and recipients, public or
 — in Portugal, the 'Commissao de Alvaras de Empresas de                      private, involved;
     Obras Publicas e Particulares' (CAEOPP) or the
     'Registo Nacional das Pessoas Colectivas',
                                                                              — where supplied to authorities, evidence to be in the
 — in the United Kingdom and Ireland, the supplier may be                          form of certificates issued or countersigned by the
                                                                                   competent authority,
     requested to provide a certificate from the 'Registrar of
     Companies' or the 'Registrar of Friendly Societies' or, if
     he is not so certified, a certificate stating that the person            — where supplied to private purchasers, delivery to
     concerned has declared on oath that he is engaged in                          be certified by the purchaser or, failing this, simply
     the profession in question in the country in which he is                      declared by the supplier to have been effected;
     established in a specific place under a given business
                                                                         (c)  indication of the technicians or technical bodies
                                                                              involved, whether or not belonging directly to the
                                                                              supplier, especially those responsible for quality
                            Article 28
                                                                              control;
 1. Proof of the supplier's financial and economic standing
may, as a general rule, be furnished by one or more of the
following references:                                                   (d) a statement of the suppliers' average annual
                                                                              manpower and the number of managerial staff for the
(a)   appropriate statements from banks or evidence of                        last three years;
      relevant professional risk indemnity insurance,
(b) the presentation of the supplier's balance sheets or                      a statement of the tool, plant or technical equipment
      extracts therefrom, where publication of the balance                    available to the supplier for carrying out the services;
      sheets is required under company law in the country in
      which the supplier is established,
                                                                        (f)   a description of the suppliers' measures for ensuring
(c)   a statement of the undertaking's overall turnover and
                                                                              quality, and his study and research facilities;
      its turnover in respect of the services to which the
      contract relates for the three previous financial years.
                                                                        (g) where the services to be provided are complex or,
2. The authorities shall specify in the notice or in the                      exceptionally, are required for a special purpose, a
invitation to tender which reference or references they have                  check carried out by the authority or on its behalf by a
chosen and which references other than those mentioned                        competent official body of the country in which the
under paragraph 1 are to be produced.                                         supplier is established, subject to that body's
                                                                              agreement, on the technical capacities of the supplier
                                                                              and, if necessary, on his study and research facilities
3. If, for any valid reason, the supplier is unable to                        and quality control measures.
provide the references requested by the authority, he may
prove his economic and financial standing by any other
document which the authority considers appropriate.                     (h) indication of the share of the contract which the
                                                                              supplier may intend to sub-contract.
                            Article 29
1. The ability of suppliers to perform services may be
evaluated in particular with regard to their skills,                    3. The authority shall specify in the notice or in the
efficiency, experience and reliability.                                 invitation to tender which references it wishes to receive.
 ---pagebreak--- 31. 1. 91                                 Official Journal of the European Communities                                 No C 23/13
4. The extent of the information referred to in Article 28           The authorities of other Member States shall apply the
and paragraphs 1 to 3 of this Article must be confined to            above provisions only in favour of suppliers who are
the subject of the contract. Authorities shall take into             established in the country holding the official list.
consideration the legitimate interests of the suppliers as
regards the protection of their technical or trade-related
secrets.
                                                                                               Chapter 3
                           Article 30
                                                                                   Criteria for the award of contracts
Shoud authorities require the production of certificates
drawn up by independent bodies for attesting conformity
of the supplier to certain quality assurance standards,
reference should be made to quality assurance systems                                           Article 33
based on the relevant EN 29000 European standards series
certified by bodies conforming to the EN 45000 European              1. Without prejudice to national law, regulation or
standards series. Authorities shall recognize equivalent             administrative provision on the remuneration of certain
certificates from bodies established in other Member States.         services, the criteria on which the authority shall base the
They shall also accept other evidence of equivalent quality          award of contracts may be:
assurance measures from suppliers who have no access to
such certificates, or no possibility of obtaining them within        (a) when the award is made to the economically most
the relevant time limits.                                                  advantageous tender, various criteria relating to the
                                                                          contract: for example, quality, technical merit,
                                                                           aesthetic and functional characteristics, technical
                                                                          assistance and service, delivery date and period of
                                                                          completion, price; or
                           Article 31
                                                                     (b) the lowest price only.
Within the limits of Articles 26 to 29, the authority may
invite the suppliers to supplement the certificates and
documents submitted or to clarify them.                              2. Where the contract is to be awarded to the
                                                                     economically most advantageous offer, authorities shall
                                                                     state in the contract documents or in the tender notice the
                                                                     award criteria which they intend to apply and the intended
                                                                     ranking or weighting they intend to use.
                           Article 32
1. Member States who have official lists of recognized               3. Paragraph 1 shall not apply when a Member State
suppliers must adapt them to the provisions of                       bases the award of contracts on other criteria, within the
Articles 26 (a) to (d) and (g) and of Articles 27 to 29.             framework of rules in force at the time of the adoption of
                                                                     this Directive whose aim it is to give preference to certain
                                                                     tenderers, on condition that the rules invoked are
2. Suppliers registered in these lists may, for each                 compatible with the Treaty.
contract, submit to the authority a certificate of
registration issued by the competent authority. This
certificate shall state the references which enabled them to
be registered in the list and the classification given in this                                  Article 34
list.
                                                                     1. If, for a given contract, tenders appear to be
                                                                     abnormally low in relation to the transaction, the authority
                                                                     shall request, in writing, details of the constituent elements
3. Certified registration in such lists by the competent             of the tender concerned. It shall, in particular, enquire
bodies shall, for the authorities of other Member States,            whether the tenderer is an authority within the meaning of
constitute a presumption of suitability corresponding to the         Article 1 (b), whether the tenderer is in receipt of any form
supplier's classification only as regards Articles 26 (a) to (d)     of State aid and whether the aid has been notified to and
and (g), 27, 28 (b) and (c) and 29 (a).                              received the approval from the Commission pursuant to
                                                                     Article 93 (3) of the Treaty.
Information which can be deduced from registration in
official lists may not be questioned. However, with regard           Authorities shall verify the constituent elements of the
to the payment of social security contributions, an                  tenders concerned, taking account of any explanations
additional certificate may be required of any registered             received, before deciding on the award of the contract or
supplier whenever a contract is offered.                             on the rejection of a tender.
 ---pagebreak---  No C 23/14                              Official Journal of the European Communities                                   31. 1. 91
 2. In the case of a tender submitted by a public authority                                   Article 36
 or a public enterprise, the authority shall in particular
 enquire whether the tender is influenced by public funds           1. Member States shall inform the Commission of
 allocated for                                                      national provisions covered by Articles 33 (3) and 35 and
                                                                    of the rules for applying them.
 (a) the setting-off of operating losses;
                                                                    2. Member States concerned shall forward to the
 (b) the provision of capital;
                                                                    Commission, every year, a report describing the
                                                                    implementation of these provisions. The reports shall be
 (c)  non-refundable grants, or loans on privileged terms;          submitted to the Advisory Committee for Public
                                                                    Contracts.
 (d) the granting of financial advantages by foregoing
      profits or the recovery of sums due;
 (e)  the foregoing of a normal return on public funds                                        Article 37
      used;
                                                                    The calculation of time limits shall be made in accordance
                                                                    with Council Regulation (EEC, Euratom) No 1182/71 of
 (f)  compensation for financial burdens imposed by the
                                                                    3 June 1971, determining the rules applicable to periods,
      public authorities.
                                                                    dates and time limits (*).
It shall inform the Commission if it intends to award a
 contract to a tenderer whose tender is influenced by any of                                  Article 38
these characteristics.
                                                                    1. In order to complete the information obtained on the
                                                                    basis of the award notices under Article 18, Member States
 3. Authorities may reject tenders which are abnormally             shall each year, at the latest by 31 October, forward to the
low owing to the receipt of State aid only if they have             Commission a statistical report for the preceding year
consulted the tenderer and if the tenderer has not been able        concerning inter alia the total value of contracts awarded
to show that the aid in question has been notified to the          which are below the thresholds laid down in Article 8 and
Commission pursuant to Article 93 (3) of the Treaty or has         which would otherwise have been covered by this
                                                                    Directive. Details shall be fixed according to the procedure
received the Commission's approval. Authorities which
                                                                   laid down in Article 39 (3).
reject a tender under these circumstances shall inform the
Commission thereof.
                                                                    2. The Commission shall determine the nature of any
                                                                    additional statistical information, which is required in
4. If the contract documents provide for its award at the           accordance with this Directive, in accordance with the
lowest price tendered, the authority must communicate to           procedure laid down in Article 39 (3).
the Commission the rejection of tenders which it considers
to be too low.
                                                                                              Article 39
                                                                    1. The Commission shall be assisted by the Advisory
                                                                   Committee for Public Contracts set up by Decision
                           TITLE VII                               71/306/EEC.
                        Final provisions                           2. As regards procurement of telecommunications services
                                                                   falling within category 5 of Annex I.A, the Commission
                                                                   shall be assisted by the Advisory Committee on
                                                                   Telecommunications Procurement set up by Directive
                          Article 35                               90/531/EEC.
Until 31 December 1992, this Directive shall not prevent           3. Where reference is made to the procedure laid down in
the application of existing national provisions on the award       this paragraph, the representative of the Commission shall
of public service contracts which have as their objective the      submit to the Committee a draft of the measures to be
reduction of regional disparities and the promotion of job         taken. The Committee shall deliver its opinion on the draft
creation in regions whose development is lagging behind            within a time limit which the chairman may lay down
and in declining industrial regions, on condition that the         according to the urgency of the matter, if necessary by
provisions concerned are compatible with the Treaty, in            taking a vote.
particular with the principles of non-discrimination on
ground of nationality, freedom of establishment and
freedom to provide services, and with the Community's
international obligations.                                         (!) OJNoL 124, 8. 6. 1971, p. 1.
 ---pagebreak--- 31. 1. 91                               Official Journal of the European Communities                                 No C 23/15
The opinion shall be recorded in the minutes; in addition,         (b) undertakings affiliated to the undertakings specified in
each Member State shall have the right to ask to have its                  (a) and having their registered office in the
position recorded in the minutes.                                          Community but having no effective and continuous
                                                                           link with the economy of a Member State;
The Commission shall take the utmost account of the                (c)     tenders which have as their object services originating
opinion delivered by the Committee. It shall inform the                    in the country in question;
Committee of the manner in which its opinion has been
taken into account.
                                                                   may be suspended or restricted during a period to be
                                                                   determined in the decision.
4. The Committees shall examine, on the initiative of the
Commission or at the request of a Member State, any
question relating to the application of this Directive.            The Commission may decide on the appropriate measures
                                                                   either on its own initiative or at the request of a Member
                                                                   State, after consulting the Member States in accordance
                                                                   with the procedure laid down in Article 39 {3). Where the
                                                                   Commission is asked to take action by a Member State, it
                          Article 40
                                                                   shall take a decision within a maximum period of three
                                                                   months of receipt of the request.
 1. The Member States shall inform the Commission of
any general difficulties encountered, in law or in fact, by
their undertakings in securing the award of public service
                                                                   It shall notify the Council and the Member States of the
contracts or public service concessions in third countries.
                                                                   decisions taken.
2. The Commission shall report to the Council, before
                                                                   Any Member State may refer the Commission's decision to
31 December 1991 and then periodically, on the opening
                                                                   the Council within a maximum period of four weeks from
up of public service contracts and concessions in third
                                                                   the date of the decision.
countries and on the state of negotiations with these
countries on this subject in the GATT framework or
elsewhere.
                                                                   The Council, acting by qualified majority, may take a
                                                                   different decision within a maximum period of three
                                                                   months of such referral.
3. Whenever the Commission establishes, either on the
basis of the reports referred to in paragraph 2, or on the
basis of other information, that a third country, as regards       5. This Article is without prejudice to the obligations of
the award of public service contracts or concessions,              the Community in relation to non-Member countries.
(a) does not grant Community undertakings effective
      access comparable to that granted by the Community
      to undertakings from that country;
                                                                                              Article 41
(b) does not grant Community undertakings national                 Article 1 (1) of Directive 89/665/EEC (J) is replaced by
      treatment or the same competitive opportunities as           the following:
      available to national undertakings;
                                                                        ' 1 . The Member States shall take the measures
     or                                                                 necessary to ensure that, as regards contract award
                                                                       procedures falling within the scope of Directives
(c)  grants undertakings from other third countries more                71/305/EEC, 7 7 / 6 2 / E E C , and .../.../EEC (*),
     favorable treatment than Community undertakings;                   decisions taken by the contracting authorities may be
                                                                        reviewed effectively and, in particular, as rapidly as
                                                                       possible in accordance with the conditions set out in the
the Commission may initiate negotiations in order to                    following Articles, and, in particular, Article 2 (7) on
remedy the situation.                                                  the grounds that such decisions have infringed
                                                                        Community law in the field of public procurement or
                                                                       national rules implementing that law.
4. Under the conditions referred to in paragraph 3(b) and
(c), the Commission may decide, in addition to action
                                                                       (*) OJ No L 00, 00. 00. 0000, p. 0.'
taken pursuant to that paragraph, that the award of public
service contracts or concessions to:
(a)  undertakings governed by the law of the country in
     question;                                                     (!) OJ No L 395, 30. 12. 1989, p. 33.
 ---pagebreak--- No C 23/16                                Official Journal of the European Communities                                 31. 1. 91
                          Article 42                                 Directive by 1 March 1992. They shall forthwith inform
                                                                     the Commission thereof.
Not later than three years after the time limit for
compliance with this Directive the Commission, acting in
                                                                     When Member States adopt these provisions, these shall
close cooperation with the Committees referred to in
                                                                     contain a reference to this Directive or shall be
Article 39, shall review the manner in which this Directive
                                                                     accompanied by such reference at the time of their official
has operated including, in particular, the effects of the
                                                                     publication. The procedure for such reference shall be
application of the Directive to procurement of services
                                                                     adopted by the Member States.
listed in Annex I. A and the provisions concerning technical
standards. It shall evaluate, in particular, the prospects for
the full application of the Directive to procurement of other
services listed in Annex LB, and the effects of in-house                                      Article 44
performance of services on the effective opening-up of the
market in this area. It shall make the necessary proposals to        Member States ensure that the texts of the basic provisions
adapt the Directive accordingly.                                     of domestic law, whether laws, regulations or
                                                                     administrative provisions, which they adopt to implement
                                                                     this Directive, are communicated to the Commission.
                          Article 43
                                                                                              Article 45
Member States shall implement the laws, regulations and
administrative provisions necessary to comply with this              This Directive is addressed to the Member States.
 ---pagebreak--- 31. 1. 91                                    Official Journal of the European Communities                                           No C 23/17
                                                                   ANNEX LA
                                                        Services in the sense of Article 9
                                                                                                         CPC division, group, class
               Category                                        Title
                                                                                                                 or sub-class
                   1           Maintenance and repair services                                          6112, 6122, 633, 886
                   2           Land transport services, including armoured car services, and            712 (except 71235), 7512,
                               courier services, except transport of mail                               87304
                   3          Air transport services of passengers and freight,              except     73 (except 7321)
                               transport of mail
                   4          Transport of mail by land, except rail, and by air                        71235, 7321
                   5          Telecommunications services                                               752 (!)
                   6          Financial services:                                                       ex 8 1 , 812, 814
                              (a) Insurance services
                              (b) Banking and investment services remunerated by fees,
                                   commissions, or comparable types of remuneration (2)
                   7          Computer and related services                                             84
                   8          R&D services (3)                                                          85
                   9          Accounting, auditing and bookkeeping services                             862
                 10           Market research and public opinion polling services                       864
                 11           Management consulting services and related services                       865, 866 (4)
                 12           Architectural services;                                                   867
                              Engineering services and integrated engineering services;
                              Urban planning and landscape architectural services;
                              Related scientific and technical consulting services;
                              Technical testing and analysis services
                 13           Advertising services                                                      871
                 14           Building-cleaning services and property management services               874, 82201, 82202
                 15           Publishing and printing services on a fee or contract basis               88442
                 16           Sewage and refuse disposal; sanitation and similar services               94
          f1) Except voice telephony, telex, radiotelephony, paging and satellite services.
          (2) Except activities involving primary government bonds and activities involving public debt management.
          (3) As defined in the ninth recital.
          (4) Except arbitration and conciliation services.
 ---pagebreak--- No C 23/18                       Official Journal of the European Communities                          31. 1. 91
                                                      ANNEX LB
                                          Services in the sense of Article 10
                                                                                  CPC division, group,
           Category                               Title
                                                                                   class or sub-class
              17    Hotel and restaurant services                             64
              18    Transport services by rail                                711
              19    Water transport services                                  72
              20    Supporting and auxiliary transport services               74
              21    Financial services                                        ex 81
                    Banking and investment services not remunerated by fees,
                    commissions, or comparable types of remuneration
              22    Legal services                                            861
              23    Placement and supply services of personnel                872
             24     Investigation and security services (except armoured car  873 (except 87304)
                    services)
             25     Education and vocational educational services             92
             26     Health and social services                                93
             27     Recreational, cultural and sporting services              96
             28     Other services
 ---pagebreak--- 3 1 . 1. 91                               Official Journal of the European Communities                                            No C 23/19
                                                                ANNEX II
                                              Definition of certain technical specifications
            For the purpose of this Directive the following terms shall be defined as follows:
            1. 'Technical specifications': the totality of the technical prescriptions contained in particular in the tender
               documents, defining the characteristics required of a work, material, product or supply, which permits a
               work, a material, a product or a supply to be described in a manner such that it fulfils the use for which it is
               intended by the contracting authority. These technical prescriptions shall include levels of quality,
               performance, safety or dimensions, including the requirements applicable to the material, the product or to
               the supply as regards quality assurance, terminology, symbols, testing and test methods, packaging,
               marking or labelling. They shall also include rules relating to design and costing, the test, inspection and
               acceptances for works and methods or techniques of construction and all other technical conditions which
               the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the
               finished works and to the materials or parts which they involve.
            2. 'Standard': a technical specification approved by a recognized standardizing body for repeated and
               continuous application, compliance with which is in principle not compulsory.
            3. 'European standard': a standard approved by the European Committee for Standardization (CEN) or by the
               European Committee for Electrotechnical Standardization (Cenelec) as 'European Standards' or
               'Harmonization documents (HD)' according to the common rules of these organizations or by the European
               Telecommunications Standards Institute (ETSI) as a 'European Telecommunication Standard' (ETS).
            4. 'European technical approval': a favourable technical assessment of the fitness for use of a product, based
               on fulfilment of the essential requirements for building works, by means of the inherent characteristics of
               the product and the defined conditions of applications and use. The European agreement shall be issued by
               an approval body designated for this purpose by the Member State.
            5. 'Common technical specification': a technical specification laid down in accordance with a procedure
               recognized by the Member States to ensure uniform application in all Member States which has been
               published in the Official Journal of the European Communities.
            6. 'Essential requirements': requirements regarding safety, health and certain other aspects in the general
               interest, that the construction works can meet.
 ---pagebreak--- No C 23/20                                Official Journal of the European Communities                                       3 1 . 1. 91
                                                             ANNEX III
                                                   MODEL CONTRACT NOTICES
                                                         A. Prior information
            1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the authority, and, if
                different, of the service from which additional information may be obtained;
           2. Intended total procurement in each of the service categories listed in Annex I.A;
           3. Estimated date for initiating the award procedures, per category;
           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. Open procedure
           1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the authority.
           2. Category of service and description. CPC classification.
           3. Place of delivery.
           4. (a)    Indication whether the execution of the service is by law, regulation or administrative provision
                     reserved to a particular profession.
               (b) Reference of the law, regulation or administrative provision.
               (c)   Indication whether legal persons should indicate the names and professional qualifications of the staff
                     to be responsible for the execution of the service.
           5. Indication whether suppliers can tender for a part of the services concerned.
           6. Variants:
               (a) minimum specifications;
               (b) desirable elements;
               (c)   where applicable, prohibition on variants.
           7. Duration of contract or time limit for completion of the service.
           8. (a) Name and address of the service from which the relevant documents may be requested.
               (b) Final date for making such requests.
               (c)   Where applicable, the amount and terms of payment of any sum payable for such documents.
           9. (a) Persons authorized to be present at the opening of tenders.
               (b) Date, time and place of the opening.
          10. Where applicable, any deposits and guarantees required.
          11. The main terms concerning financing and payment and/or references to the relevant provisions.
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          12. Where applicable, the legal form to be taken by the grouping of suppliers winning the contract.
          13. Information concerning the suppliers' own position, and information and formalities necessary for an
              appraisal of the minimum economic and technical standards required of the supplier.
          14. Period during which the tenderer is bound to keep open his tender.
          15. Criteria for the award of the contract and their ranking. Criteria other than that of the lowest price shall
              be mentioned if they do not appear in the contract documents.
          16. Other information.
          17. Date of dispatch of the notice.
          18. Date of receipt of the notice by the Office for Official Publications of the European Communities.
                                                      C. Restricted procedure
           1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the authority.
           2. Category of service and description. CPC classification.
           3. Place of delivery.
           4. (a)  Indication whether the execution of the service is by law, regulation or administrative provision
                   reserved to a particular profession.
              (b) Reference of the law, regulation or administrative provision.
              (c)  Indication whether legal persons should indicate the names and professional qualifications of the staff
                   to be responsible for the execution of the service.
           5. Indication of whether the supplier can tender for a part of the services concerned.
           6. Envisaged number of suppliers, or range, which will be invited to tender.
           7. Variants:
              (a)  minimum specifications;
              (b) desirable elements;
              (c)  where applicable, prohibition on variants.
           8. Duration of contract, or time limit for completion of the service.
           9. Where applicable, the legal form to be assumed by the grouping of suppliers winning the contract.
          10. (a) Where applicable, justification for the use of the accelerated procedure.
              (b) Final date for the receipt of requests to participate.
              (c)  Address to which they must be sent.
              (d) Language(s) in which they must be drawn up.
          11. Final date for the dispatch of invitations to tender.
          12. Any deposits and guarantees required.
          13. Information concerning the supplier's own position, and the information and formalities necessary for an
              appraisal of the minimum economic and technical standards required of him.
 ---pagebreak--- No C 23/22                              Official Journal of the European Communities                                        31. 1. 91
           14. Criteria for the award of the contract and their ranking if these are not stated in the invitation to
                tender.
           15. Other information.
           16. Date of dispatch of the notice.
           17. Date of receipt of the notice by the Office for Official Publications of the European Communities.
                                                      D. Negotiated procedure
            1. The name, address, telegraphic address, telephone, telex and facsimile number of the authority.
            2. Category of service and description. CPC classification.
            3. Place of delivery.
            4. (a)  Indication whether the execution of the service is by law, regulation or administrative provision
                    reserved to a particular profession.
               (b) Reference of the law, regulation or administrative provision.
               (c)  Indication whether legal persons should indicate the names and professional qualifications of the staff
                    to be responsible for the execution of the service.
            5. Indication of whether the supplier can tender for a part of the services concerned.
            6. Envisaged number of suppliers, or range, which will be invited to tender.
            7. Variants:
               (a)  minimum specifications;
               (b) desirable elements;
               (c)  where applicable, prohibition on variants.
            8. Duration of contract, or time limit for completion of the service.
            9. Where applicable, the legal form to be assumed by the grouping of suppliers winning the contract.
           10. (a) Where applicable, justification for the use of the accelerated procedure.
               (b) Final date for the receipt of requests to participate.
               (c)  Address to which they must be sent.
               (d) Language(s) in which they must be drawn up.
          11. Any deposits and guarantees required.
          12. Information concerning the supplier's own position, and the information and formalities necessary for an
               appraisal of the minimum economic and technical standards required of him.
          13. Where applicable, the names and addresses of suppliers already selected by the awarding authority.
          14. Other information.
          15. Date of dispatch of the notice.
          16. Date of receipt of the notice by the Office for Official Publications of the European Communities.
          17. Date(s) of previous publications in the Official Journal of the European     Communities.
 ---pagebreak--- 3 1 . 1. 91                               Official Journal of the European Communities                                 No C 23/23
                                                          E. Contract awards
             1. Name and address of the authority.
             2. Award procedure chosen; in case of negotiated procedure without prior publication of a tender notice,
                justification (Article 13 (3)). CPC classification.
             3. Category of service and description.
             4. Date of award of contract.
             5. Criteria for award of contract.
             6. Number of tenders received.
             7. Name and address of supplier(s).
             8. Price or range of prices (minimum/maximum) paid.
             9. Where appropriate, value and proportion of contract likely to be sub-contracted to third parties.
            10. Other information.
            11. Date of publication of the tender notice in the Official journal of the European   Communities.
            12. Date of dispatch of the notice.
            13. Date of receipt of the notice by the Office for Official Publications oi the European Communities.
            14. In the case of contracts for services listed in Annex I.B, agreement, by the contracting authority, on
                publication of the notice (Article 18 (3)).
 ---pagebreak--- No C 23/24                               Official Journal of the E u r o p e a n Communities                              3 1 . 1. 91
                                                               ANNEX     IV
                                                       A. Design contest notices
            1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the authority and of the
                service from which the relevant documents may be obtained.
            2. Project description.
            3. Nature of the contest: open or restricted.
            4. In the case of open contests: final date for receipt of projects.
            5. In the case of restricted contests:
                (a) the envisaged number of participants, or range;
                (b) where applicable, names of already selected participants;
                (c)  the criteria to be applied in the selection of participants;
                (d) final date for receipt of requests to participate.
            6. Where applicable, indication whether participation is reserved to a particular profession.
            7. The criteria to be applied in the evaluation of projects.
            8. Where applicable, names of selected members of the jury.
            9. Indication whether the decision of the jury is binding for the authority.
           10. Where applicable, the number and value of the prizes to be awarded.
           11. Where applicable, details on payments to all participants.
           12. Indication whether the prize-winners are entitled to be awarded any follow-up contracts.
           13. Other information.
           14. Date of dispatch of the notice.
           15. Date of receipt of the notice by the Office for Official Publications of the European Communities.
                                                     B. Results of design contests
            1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the authority.
            2. Project description.
            3. Total number of participants.
            4. Number of foreign participants.
            5. Winner(s) of the contest.
            6. Where applicable, the prize(s).
            7. Other information.
            8. Reference of the design contest notice.
            9. Date of dispatch of the notice.
           10. .Date of receipt of the notice by the Office for Official Publications of the European Communities.
 ---pagebreak--- 3 1 . 1. 91                              Official Journal of the European Communities                                  No C 23/25
                                                              ANNEX      V
                                            A. Model notice on public service concessions
            1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the authority.
            2. (a)  The place of delivery.
               (b) The subject of the concession, nature and extent of the services to be provided.
               (c)  Duration of contract.
            3. (a)  Final date for receipt of candidatures.
               (b) The address to which they must be sent.
               (c)  The language or languages in which they must be drawn up.
            4. Personal, technical and financial conditions to be fulfilled by the candidates.
            5. The criteria for the award of the contract.
            6. Where applicable, the minimum percentage of the total value of the concession contract to be awarded to
               third parties.
            7. Other information.
            8. Date of dispatch of the notice.
            9. Date od receipt of the notice by the Office for Official Publications of the European Communities.
                                                        B. Concession awards
            1. The name, address, telegraphic address, telephone, telex and facsimile numbers of the authority.
            2. The subject of the concession, nature and extent of the services to be provided.
            3. Date of award of the concession.
            4. Number of tenders received.
            5. Name and address of the concessionnaire.
            6. Other information.
            7. Date of publication of the tender notice in the Official Journal of the European   Communities.
            8. Date of dispatch of the notice.
            9. Date of receipt of the notice by the Office for Official Publications of the European Communities.