CELEX: 51991PC0347
Language: en
Date: 1991-11-06
Title: Proposal for a COUNCIL DIRECTIVE amending Directive 90/531/EEC on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors

COMMISSION OF THE EUROPEAN COMMUNITIES
                                       COM(91) 347 final - SYN 361
                                       Brussels, 6 november 1991
                          Proposal for a
                        COUNCIL DIRECTIVE
  amending Directive 90/531/EEC on the procurement procedures
   of entities operating in the water, energy, transport and
                   telecommunications sectors
                  (presented by the Commission)
 ---pagebreak---                                TABLE OF CONTENTS
                                                                          pages
EXPLANATORY MEMORANDUM                                                    3
I.   I nt roduc t i on                                                      3
II.  Scope                                                                4
III. Definition of service contracts                                      6
     Definition of contracts                                              6
     Definition of service contracts                                      6
     Definition of service categories                                     7
     Design contests                                                      8
     Reasearch and development contracts                                  9
     Contracts covered                                                   10
IV.  Procedural obi i gat ions                                            10
V.   Specific points concerning services in the four sectors in question 11
     Intra-group transactions                                            11
     Confidential i ty                                                    14
VI.  Adoption of a consolidated text                                     17
VII. Detailed analysis of Articles                                       17
     Annex I: Correlation table                                          32
PROPOSAL FOR A COUNCIL DIRECTIVE                                         35
 ---pagebreak---  ---pagebreak---                                     - 3 -
                         EXPLANATORY MEMORANDUM
   INTRODUCTION
1. In its communication to the Council on the public procurement in
   the excluded sectoral-1-), the Commission analyzed the industrial
   and economic aspects of procurement by the utilities in the water,
   energy, transport and telecommunications sectors.   It was concluded
   that considerable gains could be expected      from opening up the
   procurement of the utilities to Community-wide competition and that
   the benefits brought about by more transparent, non-discriminatory
   procurement in the four sectors concerned would spread throughout
   the economy, bringing sizeable budget savings to the utilities,
    along with better quality and a more efficient structure of the
    supply side.  The opening up of public procurement in those sectors
   will thereby enhance the competitiveness of Community industry as a
   whole.
2. The   procurement  of  services  by  the  utilities, which   can  be
    estimated to be of the order of ECU 45 billions, is an important
    part of this picture, accounting for between 15 and 20 % of the
    utilities' total procurement.   The importance of such large scale
    purchases for the service sectors concerned, which cover the whole
    range from relatively simple labour intensive services through to
    highly skilled capital-intensive services, is evident, even if it
    is somewhat less in value than the procurement of services by the
    public authorities.   (This is the subject of the Commisssion's
    proposal for a Public services Directive^) ).
 (1)     COM  (88) 376, 11.10.1988, published as Supplement     6/88 to the
         Bulletin of the European Communities.
 (2)     COM (91) 322, 30.8.1991.
 ---pagebreak---                                         - 4-
3. The adoption of Directive 90/531 aimed to achieve the benefits of
   the internal market for the utilities' purchases of supplies and
   works.    The present proposal aims to extend the provisions of that
   Directive to the utilities' purchases of services.       In doing so, it
   takes    account    of  the   particular   characteristics    of  service
   procurement, as was also the case in the proposal for a Public
    Services Directive.     A correlation table indicating the parallels
    between   the  provisions    of  this proposal, the    public   services
    proposal and Directive 90/531/EEC is attached to this explanatory
   memorandum (Annex I).
4. With this proposal, the Commission has completed its legislative
    programme on public procurement under the White Paper on Completing
    the Internal Market(*).
II.   SCOPE
5. The aim of this proposal is to extend, wherever possible, the
    procedural rules laid down in Directive 90/531/EEC to services.
    The scope is identical to that of Directive 90/531/EEC as regards
    the contracting     entities and activities concerned       in the four
    sectors (Article 2 ) .
6. In    line   with   the   ultimate   objective,  which   is   to  require
    contracting    entities    throughout   the  Community   to   operate  a
    procurement     system    that   is   tailored  to   their    particular
    characteristics and as consistent as possible, this proposal makes
    amendments to Directive 90/531/EEC only where:
 (1)      COM (85) 310 final, 14.6.1985.
 ---pagebreak---                                     - 5 -
   (a) the specific nature of services or of design contests so
        requires;
   (b)  the existing provisions need to be extended to services and
        design contests.
7. Certain provisions can be applied to all three types of contract.
   Where Directive 90/531/EEC does not confine them to supply and
   works contracts, it has not been deemed necessary here to propose
   that they be amended.   Consequently, once this proposal is adopted,
   many provisions of Directive 90/531/EEC will apply to services
   without requiring the slightest amendment.
8. These provisions relate to the following in particular:
   -    scope (Article 2);
   -    non-discrimination (Article 4(2) and (4));
   -     framework agreements (Article 5);
   -    contracts linked to telecommunications activities carried on
        under conditions of competition (Article 8 ) ;
        contracts declared to be secret (Article 10);
   -     contracts  awarded  pursuant  to  an  international  agreement
         (Article 11(2) and (3));
        technical specifications (Article 13);
        procedural obligations (Articles 19 to 22);
   -     qualification system (Article 24);
   -     selection criteria (Article 25);
   -     award criteria (Article 27(2) to (5));
   -     consultation of the Advisory Committee on Telecommunications
        Procurement (Article 31(2)(a) to (e));
   -     statistical reporting (Article 34).
 ---pagebreak---                                       - 6 -
III.   DEFINITION OF SERVICE CONTRACTS
Definition of contracts
9. This   proposal   covers  only  services which   are  acquired  under   a
   contract    for pecuniary   interest  concluded  between  two  different
   legal persons.
   On the other hand, services provided in house within a contracting
   entity that constitutes a single legal person are not regarded as
   service contracts and lie outside the scope of this proposal.
   Definition of service contracts
10. Since the aim of the proposal is to supplement the existing rules,
     service   contracts   are  defined   in  Article 1  so   as  to   catch
     purchases made by contracting entities in the sectors concerned
     which are not covered by Directive 90/531/EEC.     This proposal thus
     extends the coverage of the existing Directive, which, in addition
     to works contracts, already takes in certain service contracts.
     The    services    concerned   are    firstly   those    regarded    by
     Directive 90/531/EEC as supplies, i.e.:
     (i) certain software services procured by entities operating         in
         the telecommunications sector;
    (ii) services whose purpose is to make equipment available to the
         contracting entity (lease, rental or hire-purchase contracts).
 ---pagebreak---                                      - 7 -
   The other   services already covered by Directive 90/531/EEC are
   those which are included in a supply or works contract, and in
   particular:
    (i) siting and installation services for equipment covered by a
         supply contract;
   (ii) design   services   covered  by   a works  contract  whereby the
         contractor takes responsibility for both design and execution
         of the works;
  (iii) services included in a "turnkey" works contract.
11. Where   services   involving  the   design of  works  or  siting and
    installation operations are the subject of a call for competition
    that is separate from the associated works or supply contract,
    they are regarded as services falling within the scope of this
    proposal.
   Nevertheless, since this proposal lays down different rules only in
   so far as the specific nature of the services not covered by the
   existing rules so requires, classification of a contract in one
   category or the other will not face contracting entities with
   difficulties in applying the provisions.
   Definition of service categories
12. The potential for cross-border trade in services is not uniform
    throughout the economy.     The approach adopted in this proposal is
     consequently to distinguish between "priority" and other services.
 ---pagebreak---                                      - 8 -
    Priority services are services to which it is desirable to apply
    immediately rules introducing Community-wide competition in order
    to reap the benefits of a larger market          (greater cross-border
    trade, economies of scale, etc.);     these are listed in Annex XVI A
    and   are  subject   to   rules   similar   to   those    laid  down  in
    Directive 90/531/EEC.    For non-priority    services, on the other
    hand, not enough    is known about the transactions involved to
    conclude with certainty at this stage that Community rules are
    desirable.   These services, which are listed in Annex XVI B, are
    therefore subject to transparency requirements only.
13. Services are defined here and classified in either Annex XVI A or
    Annex XVI B   in exactly    the  same way    as   the   public  services
    proposal:   their classification as priority or other services has
    more to do with their inherent characteristics than the status of
    the contracting entities purchasing them.      Services are defined in
    Annexes XVI A   and   XVI B  by   reference   to   the   United Nations'
    Central Product Classification, which offers the advantage of
    being an international nomenclature.
    Design contests
14. This proposal also covers design contests, the purpose of which is
    to   weigh   up  competing    ideas   rather   than    tenders   in  the
    conventional sense.    Specific procedural rules are thus laid down
 ---pagebreak---                                      - 9 -
    in Article 17a to     ensure   that   such  contests   are  held   on   a
    transparent and non-discriminatory basis.
    Research and development contracts
15. Only transactions which are intended to provide the contracting
    entity with a result and are linked to the activities concerned
    are regarded as R&D service contracts for the purposes of this
    proposal.   On  the   other   hand,    the  financing   of  R&D    by   a
    contracting entity, e.g. for the benefit of society as a whole, is
    not regarded as a service contract.      This approach is in line with
    that adopted in the public services proposal.
16. As in the case of R&D contracts which also involve the supply of
    products    or   the   execution    of   works   already   covered     by
    Directive 90/531/EEC, this proposal likewise affords contracting
    entities the option of not calling for Community-wide competition
     (Article 15(2)(b)).   Nevertheless,    the  introduction   of   service
    contracts increases the scope of that possibility considerably.
    If particular firms are not to be given an unfair advantage as a
    result, steps need to be taken to ensure that reliance on this
    Article does not prejudice competitive tendering for subsequent
    contracts, and particularly those relating to series production.
   Specific    provisions   are   also    included   for   protecting     the
   confidentiality of R&D contracts (see points 25 to 28 below).
 ---pagebreak---                                     - 10 -
    Contracts covered
17. The rules of Directive 90/531/EEC apply to supplies and works
    contracts awarded by covered entities only in the context of
    activities which are listed in Article 2 of that Directive.    Thus
    contracts awarded by covered entities in the context of other
    activities are not subject to these rules.     In the same way, the
    present proposal only concerns service contracts awarded by a
    covered entity in the context of a relevant activity.
IV.   PROCEDURAL OBLIGATIONS
18. The procedural rules laid down in Titles IV and V of this proposal
    in respect of the services listed in Annex XVI A (see point 47
    below) are based on those established by Directive 90/531/EEC for
    works and supply contracts.
    In line with the approach described in points 12 and 13 above,
    services listed in Annex XVI B will be subject to only minimum
    requirements (Article 12b).
19. The   procedural  rules  applicable  to  design  contests  are more
    specific.   They relate to the call for competition (Article 16(4)
    and   Annex XVII),  the  composition   and  decisions  of  the jury
     (Article 17a), the notice on the results of a design contest
     (Article 18 and Annex XVIII) and contracts awarded following a
    design contest (Article 15(2)(1)).
 ---pagebreak---                                      - 11
V. SPECIFIC POINTS CONCERNING SERVICES IN THE FOUR SECTORS IN QUESTION
    Intra-group transactions (Article 11a)
20. Article   11a  provides   for   the   exclusion   of  certain   service
    contracts awarded to a service provider which is affiliated to the
    contracting entity, or to a service provider which is affiliated
    to a contracting entity participating in a joint venture formed
    for   the  purpose  of  carrying   on   an  activity  covered   by  the
    Directive.
   The service contracts excluded are those which are awarded to an
   affiliate whose essential purpose is to act as a central service
   provider to the group to which it belongs, rather than to sell its
   services   commercially   on  the   open   market.  In  this   way,  the
   Directive seeks to recognize the particular role of certain service
   activities   in establishing the commercial advantage and common
   character of undertakings.      At the same times, it accepts the
   reality of the group structure under which many entities, both
   public and private, carry on their activities.
21. The provision relates, in particular, to three types of service
    provision within groups.      These categories are not necessarily
    distinct:
    -    the   provision   of   common   services   such   as   accounting,
        recruitment and management;
    -    the provision of specialized services embodying the know-how
        of the group;
 ---pagebreak---                                     - 12 -
    -    the provision of a specialized service to a joint venture.
    The   provision  of  such  services   is often  concentrated  in an
    affiliated company within the economic group.      This is done for
    the same reasons which lead economic groups to establish separate
    affiliates    for   their   different   activities.  These   include
    limitation of liability, tax efficiency, separate cost control and
    efficient management in a general sense.    However, the process of
    affiliation does not negate the unique character of the economic
    group.
    Thus the provision of common services to affiliated entities is a
    matter of organizational convenience which there is no reason to
    undermine.
    Further, the concentration of specialized know-how reflects the
    commercial and competitive advantage of the group.      Particularly
     (but not exclusively) for private entities, direct access to such
    services is indispensable.
22. Finally,   joint  ventures   for the carrying-on of    a particular
    operation are frequently established in order that the particular
    project may benefit from the specialized knowledge of the groups
    forming the joint venture.     To deprive them of this access would
    be to eliminate the reason for establishing the joint venture in
    the first place.
 ---pagebreak---                                     - 13 -
     The provision of services within the group can differ from the
     provision    of  supplies   in   important   respects.   It   is   the
     availability of services which establishes the character of the
     group    (common  management,    staffing,    accounting)    and   its
     competitiveness (know-how to which the group has access and which
     it does not make available to others except through the activities
     of  the    group  as   a  whole).   It   is  in   respect   of   these
     characteristics that exceptional treatment is justified.
     The acquisition, on the other hand, by group affiliates of a
     service   which  is  freely  marketed   is  no   different   from  the
     obtaining of supplies from a group affiliate.       The obligation to
     procure either of these in an open, competitive context would not
     undermine the character and competitive advantage of the group.
23. The provision for exclusion of service contracts is therefore
     limited in two important respects, in that it is only available to
     affiliates :
         with which the contracting entity's accounts are consolidated
         under the provisions of the Seventh Directive on Company
         Law^1) or, in the case of entities which are not subject to
         that Directive, to situations where dominant influence, in
         the sense of competition law, is present; and
         which exist essentially     to provide their     services to the
         group and do not market them.       In order to allow for some
         activity with minority affiliates (which would not be covered
         by the
 (1)      Council Directive 83/349/EEC, 13.6.1983, OJ No L 193, 18.7.1983
 ---pagebreak---                                     - 14 -
        exception) and for marginal commercial activities, the minimum
        intra-group provision has been set at 85% of turnover.
24. The Directive accordingly permits entities to award such contracts
    without  their   being  subject  to the   rules  of  the Directive.
    However, it provides for the monitoring of such exceptions as
    required by the Commission and for the provision of such proofs as
    the Commission may consider necessary.    Such proof may consist of
    consolidated accounts drawn up by parent undertakings pursuant to
    Directive 83/349/EEC.    It could also include the verification by
    public audit bodies of shareholdings and of the share of turnover
    being generated in intra-group activity.    (The Commission has been
    assured  that, in the case of private entities subject to an
    independent audit, the group auditor would be in a position to
    verify compliance with these requirements.)
    Confidentiality
25. In view of the industrial nature of the activities carried on by
    entities operating in the four sectors concerned, measures need to
    be  taken   to  protect   confidential  or   commercially   sensitive
    information   without  doing   away  with  the   obligation   to  put
    contracts or design contests up for competition.      The provisions
    of Directive 90/531/EEC concerning confidentiality are extended to
    services.
 ---pagebreak---                                   - 15 -
These relate tot
 (a) the protection of information in the transmission of technical
     specifications, in the qualification and selection of service
     providers and in the award of contracts (Article 4);
 (b) the free choice between contract award procedures (Article 15)
     and methods of calling for competition (Article 16), enabling
     the contracting entity to avoid publishing a notice on the
     service contract in question in the Official Journal and thus
     limit the dissemination of information thereon;
 (c) the obligation to publish, in the periodic indicative notice
     (Article 17 and Annex XIV), only the categories of services
     concerned    and    their   respective   total    value   (without
     necessarily having to disclose the ultimate objective of the
     service);
 (d) subdivision of the contract award notice (Annex XV) into two
     sections, only one of which is for publication in the Official
     Journal;
 (e) the possibility of withholding, in the contract award notice,
     information on the price paid, the award criteria and the
     value   of  the   share  of  the  contract   to  be  subcontracted
      (point 11 of Annex XV);
(f)  the   possibility   of pointing   out  any   sensitive  commercial
     aspects of the information to be supplied in connection with
     points 6   and   9  (number  of  tenders   received  and  name of
 ---pagebreak---                                     - 16 -
        successful    provider)    of    the    contract     award    notice
        (Article 18(2)).
26. In  the   case   of  contracts   for   certain    services    listed   in
    Annex XVI B or R&D or study contracts, the above provisions could
    prove insufficient in so far as publication of Section I of the
    contract award notice within two months of award of the contract
    could disseminate information that the contracting authority does
    not wish to disclose;      the very outcome of       a contract    award
    procedure could reveal the internal strategy of the contracting
    entity  or   service  provider   and   should   be   able   to  be   kept
    confidential.
27. Article 18(3)   thus  provides   that   the   description    of  service
    contracts listed in Annex XVI B and of contracts awarded without a
    prior call for competition in accordance with Article 15(2)(b) may
    be limited to an indication of the service category concerned
    according to the classification given in Annex XVI        (R&D services,
    management consulting services and related services, etc.).
28. The other contracts for which the outcome of the award procedure
    should also remain confidential are above all contracts that fall
    outside  the scope of the Directive,        since   although they     are
    awarded by contracting entities, they are linked to activities
    other than those caught by the Directive or are excluded in
    pursuance of specific provisions such as Article 7.
 ---pagebreak---                                     - 17 -
VI.      ADOPTION OF A CONSOLIDATED TEXT
29. Article 2 of this proposal stipulates that, when adopting this
     Directive, the Commission shall adopt a text which consolidates
     all the provisions relating to supplies, works and services.
    There   are many   advantages to  a   single   instrument  being  made
    available within a very brief period, the main one being that it
    would make it possible at national level to refer to a single
    Community instrument whatever the type of contract.      It would also
    be easier for the interested parties to use a single document,
    particularly since, as explained in point 7 above, the provisions
    relating to supplies and works are also relevant to services and
    are not necessarily contained in this proposal.
VII.      DETAILED ANALYSIS OF ARTICLES
30. The    comments  presented  below   relate  to   the  amended  or  new
     provisions set out in Article 1 of this proposal.
     Article 1(3)
31. The introduction of a definition for "affiliated undertaking" is
     necessary for the purposes of granting, pursuant to Article 11a,
     the exemption of certain service contracts which are the subject
     of transactions within a group (see points 20 to 24 above).        In
     this definition reference is made to the Seventh Directive on
     Company Law (83/349/EEC) on consolidated accounts.
 ---pagebreak---                                       - 18 -
    For undertakings not subject to that Directive, the exercise of
    dominant influence in the sense of point 2 of this Article is the
    decisive critérium.
    Article 1(4)
32. Article 1(4) incorporates the definition of service contracts into
    that for the other types of contract.        In accordance with this
    proposal's aim, which is to complete the existing rules, service
    contracts are defined in such as way as to cover all services
    purchased in the sectors in question which do not fall within the
    definition   of  supply   and works contracts     already  covered   by
    Directive 90/531/EEC.
33. However, some contracts should not be made subject to Community
    rules owing either to their specific characteristics or to the
    absence of any likelihood of competition existing in their respect
    in the near future.    These are identified in points (i), (ii) and
     (iii),  i.e. telecommunications services which, under Directive
    90/388/EEC, will not be liberalized, contracts for arbitration and
    conciliation    services,   the   suppliers  of  which   are  normally
    appointed by common agreement between the parties concerned, and
    contracts for the acquisition of immovable property which are
    neither   supply   nor works    contracts.  Services  linked  to   such
    acquisition are, however, covered by this Directive.
    Article 1(5), (6), (7) and (8)
34. Each of these definitions is amended to include the notion of
     "services" or "service provider".     In addition, paragraph 6 makes
    it clear that service providers may not be rejected on the grounds
    of their legal form (see point 63 below).
 ---pagebreak---                                        - 19 -
    Article 1(16)
35. This provision introduces a definition of design contests.           These
    differ from service contracts in that they are not concerned with
    the supply of a service per se but are intended as a means of
    exploring  the possibilities       for a future project which might
    ultimately be the subject of a service, works or supply contract:
    contests  may    be   held,   for   example,   in   the   fields  of   data
    processing   (project     to   computerize    the   organization    of   an
    authority), civil engineering or architecture            (project for the
    construction of headquarters).
    Article 3(2)(a)
36. The alternative rules of Directive 90/531/EEC are extended in
    their entirety to service contracts; where a Member State is
    authorized, following a decision by the Commission, to apply the
    alternative rules for the award of supply and works contracts by
    entities operating in the oil and gas sectors in question, it is
    vital  that    the   latter    also   comply   with    these  rules. Only
    paragraph   2(a)    has   had   to   be  amended    to   include  "service
    contracts".
    Article 4
37. The amendments to Article 4 take account of the extension of the
    scope of Directive 90/531/EEC to service contracts and design
    contests   and   of   the   principle   of   non-discrimination    between
    service providers.
 ---pagebreak---                                    - 20 -
    Article 6(1) and (2)
38. Only the award of contracts or the organization of design contests
    in the areas covered by the Directive should be referred to by the
    Directive.  The new version of Article 6(1) and (2) extends this
    principle, which   already  exists   in  Directive  90/531/EEC, to
    services and design contests.
    Article 7
39. Directive 90/531/EEC excludes purchases of supplies which are to
    be re-sold or hired to third parties under competitive conditions.
    The new version of Article 7 thus excludes service contracts
    awarded for the purposes of such re-sale or hire activities. This
    is because, when a contracting entity awards service contracts in
    order to pursue such activities, any associated services (e.g.
    advertising)  should  not  be   made  subject  to  the  Directive's
    procedural rules: the pressure of competition on the price at
    which the product is sold or hired should force the contracting
    entity to obtain all the elements of which this price is composed
    on the best possible terms.
    Article 10a
40. Some Member States' laws reserve the right to provide certain
     services for public authorities.    The new Article 10a excludes
    such contracts under certain conditions.     The Article does not,
    however, aim to exclude contracts which a contracting entity
 ---pagebreak---                                     - 21 -
    reserved by contractual means for one or more suppliers, on the
    basis, for example, of a framework agreement.
    Article 11
41. The new version of this Article extends the exemption already
    provided   for by   Directive  90/531/EEC  to  services  and  design
    contests where contracts in their respect are awarded pursuant to
    an international agreement.
    Article 11a
42. This new Article applies solely to service contracts
         between the contracting entity and "affiliated undertakings",
         as defined in Article 1(3), or
         awarded by a joint venture formed by a contracting entity and
         its "affiliated undertakings".
    It offers an exemption from application of the Directive where the
    contracting entity awards service contracts among its subsidiaries
     (see points 20 to 24 above).
    Article 12
43. The   new   version  of  Article   12  incorporates  the  thresholds
 ---pagebreak---                                    - 22 -
    applicable to services (paragraph 1) and adapts the provisions for
    calculating the estimated value of a contract to the specific
    characteristics of services (paragraphs 2 and 3).
44. The thresholds are fixed at the same levels laid down for supply
    contracts in Directive 90/531/EEC, i.e. ECU 400 000 for contracts
    awarded by entities operating in the water, energy and transport
    sectors,  and  ECU 600 000   for  contracts   awarded   by   entities
    operating in the telecommunications sector.
    Fixing a common threshold avoids any difficulty       linked to the
    classification of contracts within one category or another and
    thus  prevents  entities  from  circumventing   application   of  the
    Directive by artificially classifying a contract within a category
    to which a higher threshold applies*
    Since many contracts include both services and supplies, it is
    also important that the contracting entity should, when estimating
    the contract value, add the respective parts together to determine
    whether  the total value of the contract      is greater than the
    threshold (paragraph 7),
45. These levels also allow a not insubstantial proportion, in terms
    of  value, of   contracts to be covered     and  to eliminate many
    low-value  contracts which   are unlikely   to be the     subject  of
    cross-border transactions*
 ---pagebreak---                                       - 23 -
    Articles 12a, 12b and 12c
46. These Articles introduce the application of different procedural
    rules depending on whether the services concerned are priority
    (listed in Annex XVI A) or other (listed in Annex XVI B) services.
47. Priority services are subject to the full procedure set out by the
    proposal  (Article 12a) in the same way as works and supplies
    contracts.   These     rules   correspond    to   those    of   Directive
    90/531/EEC.
48.-Other services will be subject to minimum rules (Article 12b).
    These relate on the one hand to technical specifications, which
    must be as transparent as possible so as not to obstruct trade.
    Contracting entities are also required to draw up a contract award
    notice   (see    also   point 57). These     notices   will   enable  the
    Commission    to   establish    a  solid    basis   of   information   on
    transactions involving the services in question and to examine
    whether it would be appropriate subsequently to extend the full
    procedure to them (see also point 12).
    Article 14
49. The new version of this Article merely extends to services the
    provisions    on   the   communication   of   technical   specifications
    regularly referred to by the contracting entities.
 ---pagebreak---                                    - 24 -
    Article 15
50. Paragraph 2(b) stipulates that the award of research, experiment,
    study or development contracts without prior call for competition
    must not prejudice the competitive award of subsequent contracts,
    in particular where the latter are aimed, for example, at the
    series production of the result of the research, experiment, study
    or development work in question.
51. Paragraph 2(f) extends the existing provisions for works contracts
    to services.
52. Paragraph  2(1) authorizes   entities  not  to issue  a  call  for
    competition when contracts must, under national law, be awarded to
    the winner of a design contest.     This does not apply, however,
    where the contest in question has not been organized according to
    the rules of this Directive (prizes lower than the threshold, for
    example).
    Article 16
53. Article 16 deals with the methods by which a call for competition
    may be made.   The new version takes account of the inclusion of
    services.
54. In the case of design contests (paragraph 4), the publication of a
    notice in the Official Journal is required.    The very nature of
 ---pagebreak---                                      - 25 -
    this method of opening a contract up to competition separates it
    from the other methods of calling for competition provided for.
    Article 17
55. The new paragraph 1(c) introduces the necessary provisions to
    ensure that    entities, when publishing the periodic         indicative
    notice,   indicate their    intentions  as   far as the purchase of
    services is concerned.     The amount above which they are required
    to make such an indication is identical to that laid down for
    supplies, irrespective of the type of services in question.
    Article 17a
56. This new Article deals solely with design contests.
    Where they are organized as part of the procedure for awarding
    supply,   works   or  service  contracts,   contracting    entities  are
    required    to   comply   with   the   rules    on   non-discrimination
    (paragraphs 2 and 3) and the organization of juries (paragraph 4)
    irrespective of the amount of prizes or payments to participants,
    including where no payment is to be made.
    In  contrast,    when   design  contests   are   held   as   a  separate
    procedure, it seems appropriate to require that they be held on a
    European scale and that publication take place only in cases where
    prizes   amount  to more than ECU 200 000, thereby         limiting the
    administrative workload of the contracting entities.         Paragraph 5
 ---pagebreak---                                    - 26 -
    allows the Member States, by dint of national rules, to oblige
    contracting entities to award subsequent contracts to the winners
    of a design contest.
    Article 18
57. The new version of Article 18 applies to all award notices,
    whether they relate to supply, works or service contracts, or a
    design contest.
    The provisions of Directive 90/531/EEC have thus been extended to
    services and design contests.
    However, for reasons of confidentiality, it is also stipulated
    that the contracting entities applying Article 15(2)(b) in order
    to   award  certain  contracts   for  the  purpose   of  research,
    experiment,   study  or   development  without   prior  call   for
    competition may decide not to supply a description of the content
    of the contract, as referred to in point 3 of Annex XV, but merely
    to mention the main title thereof within the meaning of the
    classification of Annex XVI.
    Article 19(5)
58. Paragraph 5 is adapted to take account of the introduction of the
    new design contest notice.
    Article 22(1)
59. The provisions of Article 22 apply in their entirety to services;
 ---pagebreak---                                      - 27 -
     the new version of paragraph 1 merely introduces the notion of
     "service provider".
     Article 23
60. The new version of Article 23 merely extends its provisions to
     services.
     Articles 24 and 25
61. Articles 24 and 25 are applicable in their entirety to service
     contracts; the amendments which have been introduced merely add
     the notion of "service provider".
     Article 25a
62. It is in some cases necessary in the area of services to demand
     proof from service providers of their capacity as such on the
     basis of certificates drawn up by independent bodies.
     Article    25a  acknowledges  the   existence  of  quality   assurance
     systems and invites contracting entities to refer to the EN 29000
     and EN 45000 European Standards series.
     To prevent such proof from obstructing trade, and in compliance
     with   the   judgment  of the Court    of Justice   in the   "Dundalk"
     Case,(i)    Article   25a  also   stipulates  that   the   contracting
 (1)      Case 45/87 - R, 13.3.1987.
 ---pagebreak---                                     - 28 -
    entities must recognize equivalent certificates issued in other
    Member States, unless they are able to indicate the reasons why
    such certificates are unsuitable for the purposes of the contract
    in question.
    Article 26
63. Some national laws prohibit legal persons from providing services
    or impose restrictive conditions on such persons (either regarding
    the establishment    itself or the activities pursued).    The new
     provisions of Article 26(2) and (3) correspond to those of the
     public services proposal.   In line with the case law of the Court
     of Justice, in particular its judgment in the "Webb" Case,1 they
     require contracting authorities to take account also of tenders
     submitted by legal persons provided they comply with the rules of
     the country in which they are established.   This does not prevent
     the contracting entity from demanding a given level of training on
     the part of service providers or from assessing the content of
     each offer.
     Article 27
64. This Article    is concerned   with award  criteria.  The two main
     criteria already adopted for works and supply contracts, i.e. the
     lowest price or the most economically advantageous tender, are
     applied to services.
1   Case 279/80, [1981] ECR 3304.
 ---pagebreak---                                     - 29 -
    Although price is not normally the most determining factor in the
    area of services, it has proved necessary to ensure (in paragraph
    1) that these provisions do not prejudice national regulations
    which impose compulsory scales of remuneration.         Even if price
    competition cannot operate fully in all the Member States, these
    differences   do   not   apparently    constitute   an    obstacle   to
    cross-border trade.
65. Some suppliers in the area of services are public authorities or
    public    undertakings.   These    might    therefore    exploit    the
    competitive advantages accruing from their status.      The purpose of
    paragraph 6 is not to have contracting entities check the conduct
    of public authorities or undertakings, but rather to guarantee
    that the contracting entity is fully informed of the importance of
    public funds in a tender submitted by a public supplier.
    Article 29a
66. Opening the contracts covered by this Directive up to competition
    will make it easier for non-Community firms to gain access to the
    European    market.   However,    in   the    absence    of    specific
    international   rules governing trade     in services, there     is no
    guarantee   that   third   countries   will   grant   Community   firms
    comparable access to their markets.
 ---pagebreak---                                    - 30 -
    It should be remembered that, although there is a risk that trade
    will be distorted to the Community's detriment, this risk is less
    great in the case of services than in that of supply contracts
    since a sizeable proportion of the services concerned will often
    have to be provided on the Community's actual territory.
    For this reason, and because of the absence of Community rules
    defining the origin of all services, it does not seem warranted to
    extend the provisions of Article 29 of Directive 90/531/EEC to the
    service contracts covered by this Directive.   However, in order to
    avoid opening up service contracts unilaterally to the Community's
    detriment, Article 29a introduces arrangements applicable solely
    to  the  services  covered  by  this  Directive  which  enable the
    Commission to attempt to solve by negotiation any problems of
    access to third-country markets which may arise.   Paragraph 4 also
    allows the Commission, acting in consultation with the Advisory
    Committee, to take measures to limit access by third-country firms
    where it is established that the countries in question prevent
    Community firms from entering their markets.    The Council may, by
    a qualified majority, decide to amend these measures.
    Article 30(1)
67. Deletion of the word "software" does not alter the scope of the
    provisions of Article 30 applicable to the contracts covered by
    Directive 90/531/EEC, but allows them to be extended to service
    contracts.
 ---pagebreak---                                   - 31 -
    Article 33(1)(a)
68. The provisions of Article 33 are applicable in their entirety to
    services; point (a) simply incorporates the notion of "providers
    of services".
    Article 37
69. These Articles set out the deadlines for implementation of this
    Directive.  In  view  of  the  transitional  periods  retained in
    Directive 90/531/EEC for 3 Member States, it would clearly be
    impractical for the present Directive to enter into force any
    earlier and the time limits have been adapted accordingly.
 ---pagebreak---                                        - 32 -
                                 Correlation table
         EXCLUDED SECTORS           SERVICES DIRECTIVE
         SERVICES DIRECTIVE             COM (90) 372       DIRECTIVE 90/531/EEC
—           ,                    ;             ;                                  T_
  Article 1
  (3) affiliated undertaking
  (4) service contracts          1(a)
  (5) framework agreements                             adaptation of Article 1(4)
  (6) tenderer                                         adaptation of Article 1(5)
  (7) procedures                                       adaptation of Article 1(6)
  (8) specifications                                   adaptation of Article 1(7)
  (16) design contests           1(9)                  adaptation of Article 1(6)
  Article 3 (2) (a)
  alternative arrangements                             adapt, of Article 3(2)(a)
  applicable to oil/gas/coal
  Article 4
  application of the non-                              adaptation of  Article 4
  discrimination procedures
  Article 6
  contracts & design contests                          adaptation of Article 6
  linked to the activity
  mentioned
  Article 7
   (a) exclusion of services                           adaptation of Article 7 (1)
       linked to competing
       products
   (b) exclusion of contracts
       intended for competing
       services
  Article 10 a
  single source of supply        7
  Article 11
   special procurement rules                           adaptation of Article 11
  Article 11 a
   intra-group transactions
  Article 12
   (1)   thresholds                                    adapt, of Article 12 (1)
   (2)    calculation of the
         value of contracts       8(2)
   (3)    services                8(4)
   (4.12) calculation of the                           adaptation of Article
          value of contracts                           12(2 to 9)
   Articles 12 a , 12 b      and
   12 c
   two-tier application           9, 10 and 11
   Article 14
   communication of technical                          adaptation of Article 14
   specifications
 ---pagebreak---                                     - 33 -
Article 15
(2) procedures without call
     for competition
     (b) R & D contracts                   adaptation of Art 15(2)(b)
     (c) contracts with techni-            adaptation of Article
         cal specifications                15 (2) (c)
     (f) additional service                adaptation of Article
         contracts                         15 (2) (f)
     (1) contract following a   12 (3) (c)
         design contest
Article 16
(1)    means of making calls               adaptation of Article 16
       for competition
(4)    calls for competition    16 (4)
       of design contests
Article 17 (1) (c)
periodic notice                            adaptation of Article 17(1)
Article 17 (a)
design contests                 14
Article 18
(1) notice on contracts                    adaptation of Article 18
     awarded
(3) publication of information
Article 19 (5)
publication                                adapt, of Article 19 (5)
Article 22 (1)
request for contract                       adapt, of Article 22 (1)
documents
Article 23 (1)
social clause                              adapt, of Article 23 (1)
Article 24
qualification system                       adaptation of Article 24
Article 25
selection of candidates                    adaptation of Article 25
Article 25 a
certification / quality         29
assurance
Article 26
 (2-3) natural/legal persons    22(2-3)
Article 27
 (1)   award criteria           32(1)
 (6)   tenders submitted by     33(2)
       public authorities/
       public undertakings
 ---pagebreak---                                  - 34 -
Article 29 a
tenders originating in third 37
countries (services)
Article 30 (1)
value in national currencies            adaptation of Article 30
Article 33 (1)
keeping of information                  adapt, of Article 33 (1)
Article 37
Date of application                     adapt, of Article 37 (1)
Article 37 a
reference to the directive
ARTICLE 2
Consolidated Directive
ARTICLES 3, 4 and 5
entry into force
Annex XII
open, restricted and                    adaptation of Annex XII
negotiated procedure notices
Annex XIV
periodic information notice             adaptation of Annex XIV
Annex XV
notice on contracts awarded             adaptation of Annex XV
Annex XVI
A. services in the sense of  Annex I
   article 12a               A.
B. services in the sense of  B.
   article 12b
Annex XVII
design contest notices       Annex IV A
Annex XVIII
results of design contests   Annex IV B
 ---pagebreak---                                    - 35 -
                               Proposal for a
                             COUNCIL DIRECTIVE
                       amending Directive 90/531/EEC
                on the procurement procedures of entities
                operating in the water, energy, transport
                      and telecommunications sectors
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having   regard   to  the   Treaty   establishing  the European  Economic
Community   and  in particular     the   last sentence of  Article 57(2),
Article 66, Article 100a and Article 113 thereof,
Having regard to the proposal from the Commission^),
In cooperation with the European Parliament(2)t
Having regard to the opinion of the Economic and Social Committee^),
Whereas restrictions on the free movement of goods and on the freedom
to provide services in respect of supply and service contracts awarded
in the water, energy, transport and telecommunications sectors are
prohibited by the terms of Articles 30 and 59 of the Treaty;
 (1)   OJ No C
 (2)   OJ No C
 (3)   OJ No C
 ---pagebreak---                                 - 36 -
Whereas Article 97 of the Euratom Treaty prohibits any restrictions
based on nationality as regards companies under the jurisdiction of a
Member State where they desire to participate in the construction of
nuclear installations of a scientific or industrial nature or provide
the relevant services in the Community;
Whereas the White Paper on the completion       of the internal market
contains  an  action  programme   and   a  time-table  for   opening  up
procurement markets in services;
Whereas the awarding procedures of service contracts should        be as
similar as possible to the procedures applicable to the works and
supply contracts covered by Council Directive"* 90/531/EECfà) ;
Whereas service providers may be natural or legal persons without
prejudice to the national rules of their country of establishement
that are compatible with the Treaty;
Whereas the field of services is best described, for the purpose of
application of procurement rules, and for monitoring purposes, by
subdividing it into categories corresponding to particular positions
of the Central Product Classification (CPC);
Whereas the provision of services is covered by Directive 90/531/EEC
only in so far as it is based on contracts; whereas the provision of
services on other bases, such as law or regulations, or employment
contracts, is not covered;
Whereas  as  far  as  research  and   development  (R&D)  is concerned,
Directive 90/531/EEC only covers R&D services whose results accrue
exclusively to the contracting entity;
 (1)  OJ No L 297, 29.10.1990, p. 1.
 ---pagebreak---                                   - 37 -
Whereas contracts relating to the acquisition or rental of immovable
property have particular characteristics, which make the application
of procurement rules inappropriate;
Whereas arbitration and conciliation services are usually provided by
bodies or individuals which are agreed on, or selected, in a manner
which cannot be governed by procurement rules;
Whereas contracts with a designated single source of supply may under
certain   conditions  be   fully   or  partly   exempted  from   Directive
90/531/EEC;
Whereas full application of Directive 90/531/EEC must be limited, for
a transitional period, to contracts for those services where its
provisions will enable the full potential for increased cross-frontier
trade to be realised;   whereas contracts for other services need to be
monitored for a certain period before taking a decision on the full
application of the said Directive;      whereas the mechanism for such
monitoring needs to be set up by the said Directive;           whereas it
should at the same time enable those interested to share the relevant
information;
Whereas   the  relevant   Community   rules   on  mutual  recognition   of
diplomas, certificates or other evidence of         formal qualifications
apply when evidence of a particular qualification is required for
participation in an award procedure or a design contest;
Whereas Community undertakings should be granted access to the award
of service contracts in non-member countries;        whereas 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 measures as regards access to service
contracts subject to Directive 90/531/EEC by undertakings of the non-
member country concerned or by tenders originating in that country;
HAS ADOPTED THIS DIRECTIVE :
 ---pagebreak---                                     - 38 -
                                  Article 1
Directive 90/531/EEC is hereby amended as follows:
1.    In Article 1, point 3 is replaced by the following:
      "3) "affiliated undertaking" shall mean any undertaking whose
           annual    accounts    are   consolidated   with    those   of   the
           contracting entity in accordance with the requirements of
           Council Directive 83/349/EEC* or, in case of contracting
           entities not subject to that Directive, any undertaking over
           which   the   contracting   entity  may   exercise, directly     or
           indirectly, a dominant influence within the meaning of point
           2, or which may exercise a dominant           influence over the
           contracting entity or which, in common with the contracting
           entity, is subject to the dominant          influence of another
           undertaking by virtue of ownership, financial participation,
           or the rules which govern it.
          *OJ No L 193, 18.7.1983, p. 1."
2.    In Article      1,  former   points   3 to   7  are   replaced   by  the
      following:
       "4) "supply, works and service contracts" shall mean contracts
           for   pecuniary    interest   concluded   in  writing    between  a
           supplier, a contractor or a service provider and one of the
           contracting entities defined in Article 2, to the exclusion
           of
 ---pagebreak---                            - 39 -
    i)    contracts for the acquisition or rental, by whatever
          financial means, of land, existing buildings, or other
          immovable property or concerning rights therein;
   ii)    contracts for voice telephony, telex, radiotelephony,
          paging and satellite services ;
   iii)   contracts for arbitration and conciliation services.
   These contracts have as their object :
   a) in the case of supply contracts, the purchase, lease,
      rental or hire purchase, with or without options to buy,
      of products;
   b) in the case of works contracts, either the execution, or
       both the execution and design or the realization, by
      whatever    means,   of  building   or   civil   engineering
       activities referred to in Annex XI. These contracts may,
       in addition, cover supplies and services necessary for
       their execution;
   c) in the case of service contracts, any other provision.
   Contracts   which   include  the  provision  of   services  and
   supplies shall be regarded as supply contracts if the total
   value of supplies is greater than the value of the services
   covered by the contract;
5) "framework agreement" shall mean an agreement between one of
   the contracting entities defined in Article 2 and one or more
   suppliers, contractors or service providers the purpose of
 ---pagebreak---                             - 40 -
   which is to establish the terms, in particular with regard to
   the prices and, where appropriate, the quantity envisaged,
   governing the contracts to be awarded during a given period;
6) "tenderer"   shall mean a supplier, contractor        or   service
   provider who submits a tender and "candidate" shall mean a
   person who has     sought  an invitation to take part        in a
   restricted or negotiated procedure ; service providers may be
   either   natural   or  legal   persons,   including   contracting
   entities within the meaning of Article 2;
7) "open, restricted and negotiated procedures" shall mean the
   award procedures applied by contracting entities whereby:
     a)   in  the   case   of  open   procedures,   all   interested
          suppliers, contractors or service providers may submit
          tenders;
     b)   in  the   case   of   the  restricted   procedures,    only
          candidates invited by the contracting entity may submit
          tenders;
     c)   in the case of negotiated procedures, the contracting
          entity   consults   suppliers,   contractors   or   service
          providers of its choice and negotiates the terms of the
          contract with one or more of them;
8) "technical     specifications"    shall   mean    the    technical
    requirements contained in particular in the tender documents,
    defining the characteristics of a set of works, material,
    product, supply or a service, and enabling a piece of work, a
    material, a product, a supply or a service to be objectively
    described in a manner such that it fulfils the use for which
 ---pagebreak---                               - 41 -
      it is intended by the contracting entity.       These technical
      prescriptions may include quality, performance, safety or
      dimensions,    as well   as  requirements   applicable   to   the
      material, product, supply or a service as regards quality
      assurance, terminology, symbols, testing and test methods,
      packaging,   marking  or   labelling.  In  the   case  of   works
      contracts, they may also include rules for the design and
      costing, the test, inspection and acceptance conditions for
      works and methods or techniques of construction and all other
      technical conditions which the contracting entity is in a
      position to prescribe under general or specific regulations,
      in relation to the finished works and to the materials or
      parts which they involve;"
3. In Article 1, points 8 to 14 become points 9 to 15.
4. The following paragraph is added to Article 1:
   "16)   "design contests" shall mean the procedures which aim at
          providing the contracting entity with a plan or design,
          mainly in the fields of architecture, civil engineering or
          data processing, and which are selected by a jury on the
          basis of competition with or without the award of prizes."
5. Article 3(2)(a) is replaced by the following:
   "a) observes     the   principles    of   non-discrimination     and
       competitive procurement in respect of the award of supplies,
       works and service contracts, in particular as regards the
        information that the entity makes available to undertakings
        concerning its procurement intentions;"
 ---pagebreak---                                - 42 -
6. Article 4 is replaced by the following:
                             "Article 4
   1) When   awarding   supply,   works   or   service   contracts,   or
       organizing design contests, the contracting entities shall
       apply procedures which are adapted to the provisions of this
       Directive.
   2) Contracting    entities   shall    ensure   that   there   is   no
       discrimination between different suppliers, contractors or
       service providers.
   3) In the context of provision of technical specifications to
       interested  suppliers, contractors or service providers of
       qualification and    selection  of   suppliers, contractors or
       service providers and of award of contracts, contracting
       entities may impose requirements with a view to protecting
       the  confidential   nature  of   information   which  they   make
       available.
   4) The provisions of this Directive shall not limit the right of
       suppliers, contractors or service providers to require a
       contracting  entity,   in conformity with     national   law, to
       respect the confidential nature of information which         they
       make available."
7. Article 6(1) and (2) are replaced by the following:
    "1) This Directive    shall  not  apply to    contracts   or  design
        contests which the contracting entities award or organize
        for purposes other than the pursuit of their activities as
 ---pagebreak---                                - 43 -
       described   in  Article   2(2)   or   for  the   pursuit   of   such
       activities   in  a   non-member    country,   in    conditions   not
       involving the physical use of a network or geographical area
       within the Community.
    2) However, this Directive shall apply to contracts or design
       contests  awarded   or organized     on  behalf   of  the  entities
       which exercise an activity referred to in Article 2(2)(a)(i)
       and which :
       (a)  are   connected   with   hydraulic    engineering    projects,
            irrigation or land drainage, provided that the volume
            of  water   intended   for  the   supply  of   drinking   water
            represents more than 20% of the total volume of water
            made   available   by   these   projects   or   irrigation   or
            drainage installations; or
        (b) are   connected   with    the   disposal    or   treatment   of
            sewage."
8. Article 7(1) is replaced by the following:
   "1) The provisions of this Directive shall not apply to :
       a)   contracts awarded for purposes of re-sale or hire to
            third   parties,   provided   that   the  contracting    entity
            enjoys no special or exclusive right to sell or hire
            the subject of such contracts and other entities are
             free to sell or hire it under the same conditions as
            the contracting entity;
       b)    service contracts directly relating to the re-sale or
             hire mentioned under a ) . "
 ---pagebreak---                                 - 44 -
 9. The following Article 10a is inserted:
                             "Article 10a
    The provisions of this Directive shall not apply to the award of
    service contracts which contracting entities have to award to an
    entity which is itself a contracting entity within the meaning
    of  Article   1(b) of   Directive    ../.../EEC(*) pursuant    to  an
    exclusive right established by a published law, regulation or
    administrative provision which is compatible with the Treaty.
    (*) OJ No C 23, 31.1.1991, p. 1."
10. Point 1 of Article 11    is replaced by the following:
    "1. pursuant    to   an   international    agreement   concluded   in
         conformity with the Treaty between a Member State and one or
         more third countries and covering supplies, works, services
         or design contests intended for the joint implementation or
         exploitation of a project by the signatory States; every
         agreement shall be communicated to the Commission, which may
         consult the Advisory Committee for Public Contracts set up
         by  Council   Decision 71/306/EEC(*),     as  last  amended   by
         Decision 77/63/EEc(2)t    or,   in   the   case  of   agreements
         governing   contracts   awarded   by   entities  exercising   an
         activity defined in Article 2(2)(d), the Advisory Committee
         on Telecommunications Procurement referred to in Article 31;
        (1)   OJ No L 185, 16.8.1971, p. 15.
        (2)   OJ No L 13, 15.1.1977, p. 15."
 ---pagebreak---                                  - 45 -
11. The following Article 11a is inserted:
                              "Article 11a
    1. This Directive shall not apply to contracts for services
        which
        a) a contracting entity awards to an affiliated undertaking;
        b) are awarded by a joint venture formed by a number of
           contracting entities for the purpose of carrying out a
           relevant activity within the meaning of Article 2(2) to an
           undertaking    which   is  affiliated  with  one  of   these
           contracting entities;
        provided that at least 85% of the average turnover of that
        undertaking arising within the Community for the preceding
        three years derives from the provision of such services to
        undertakings with which it is affiliated.
     2. The   contracting   entities  notify  the  Commission,  at  its
        request, the following information regarding the application
        of the provisions of paragraph 1 :
            the names of the undertakings concerned;
         -  the nature and value of the service contracts involved;
         -  such proof as may be deemed necessary by the Commission
            that the relationship between the undertaking to which the
            contracts are awarded and the contracting entity is in
            conformity with the requirements of this Article."
 ---pagebreak---                                 - 46 -
12. Article 12 is replaced by the following:
                              "Article 12
    1) This   Directive   shall  apply to   contracts  whose estimated
        value, net of VAT, is not less than :
        a) ECU 400 000 in the case of supply and service contracts
           awarded by entities carrying out an activity defined in
           Article 2(2)(a), (b) and (c);
        b) ECU 600 000 in the case of supply and service contracts
           awarded by entities carrying out an activity defined in
           Article 2(2)(d);
        c) ECU 5 000 000 in the case of works contracts.
    2) The estimated value of a service contract shall include the
        total remuneration of the service provider.taking account of
        the elements specified in paragraphs 3 to 12.
    3) In   assessing   the  estimated   contract  value  of financial
        services, the following amounts shall be taken into account:
           as regards insurance services, the premium payable;
        -  as regards banking and other financial services, fees,
           commissions, interest and other types of remuneration.
     4) In the case of supply contracts for lease, rental or hire-
        purchase, or of service contracts not indicating the total
        cost, the basis for calculating the contract value shall be:
 ---pagebreak---                             - 47 -
   a) in the case of fixed-term contracts, where their term is
      twelve months or less, the estimated total value for the
      contract's duration, or, where their term exceeds twelve
      months, the contract's total value including the estimated
      residual value;
   b) in the case of contracts for an indefinite period or in
      cases where    there  is doubt   as to   the  duration   of  the
       contracts, the anticipated total instalments to be paid in
      the first four years.
5) Where   a   proposed   supply  or   service   contract    expressly
   specifies    option  clauses,  the   basis  for  calculating    the
   contract value shall be the highest possible total purchase,
   lease, rental or hire-purchase permissible, inclusive of the
   option clauses.
6) In the case of a procurement of supplies or services over a
   given period by means of a series of contracts to be awarded
   to one or more suppliers or of contracts which are to be
   renewed, the contract value shall be calculated on the basis
   of:
   a) the    total    value   of  contracts    which     had   similar
       characteristics awarded over the previous fiscal year or
       twelve  months, adjusted    where  possible   for   anticipated
       changes in quantity or value over the subsequent         twelve
       months;
   b) or the aggregate value of contracts to be awarded during
       the twelve months following the first award or during the
       whole term of the contract, where this         is  longer  than
       twelve months.
 ---pagebreak---                             - 48 -
 7) The basis for calculating the estimated value of a contract
    including both supplies and services, shall be the total
    value   of  the  supplies  and  services  regardless  of  their
    respective values.
 8) The basis for calculating the value of a framework agreement
    shall be the estimated maximum value of all the contracts
    envisaged for the period in question.
 9) The basis for calculating the value of a works contract for
    the purposes of paragraph 1 shall be the total value of the
    work.   "Work"   shall  mean   the  building   and  engineering
    activities taken as a whole that are intended to fulfil an
    economic function by themselves.
    In particular, where a supply, work or service is the subject
    of several lots, the value of each lot shall be taken into
    account when assessing the value referred to in paragraph 1.
    Where the aggregate value of the lots equals or exceeds the
    value laid down in paragraph 1, that paragraph shall apply to
    all the    lots.  However, in the case of works contracts,
    contracting entities may derogate from paragraph 1 in respect
    of   lots whose estimated    value net of VAT     is less than
    ECU 1 million, provided that the aggregate value of those
     lots does not exceed 20% of the overall value of the lots.
10) For the purposes of paragraph 1, contracting entities shall
     include in the estimated value of a works contract the value
    of any supplies or services necessary for the execution of
    the works which they make available to the contractor.
 ---pagebreak---                                 - 49 -
    11) The value of supplies or services which are not necessary for
        the execution of a particular works contract may not be added
        to  that   of  the  contract    with  the   result  of   avoiding
        application of this Directive to the procurement of those
        supplies.
    12) Contracting entities may not circumvent this Directive by
        splitting contracts or using special methods of calculating
        the value of contracts."
13.  The following Title la is inserted:
                               "Title la
                         TWO-TIER APPLICATION
                              Article 12a
     Supply and works contracts and contracts which have as their
     object  services   listed   in  Annex XVIA   shall  be  awarded   in
     accordance with the provisions of Titles II, III and IV.
                              Article 12b
     Contracts   which  have   as   their  object   services   listed  in
     Annex XVIB shall be awarded in accordance with Articles 13 and
     18.
 ---pagebreak---                                 - 50 -
                             Article 12c
    Contracts which have as their object services listed in both
    Annexes XVIA and XVIB shall be awarded in accordance with the
    provisions of Titles II, III and IV where the value of the
    services listed in Annex XVIA is greater than the value of the
    services listed in Annex XVIB.
    Where this is not the case, they shall be awarded in accordance
    with Articles 13 and 18."
14. Article 14 is replaced by the following:
                             "Article 14
    1) Contracting   entities   shall  make  available   on  demand  to
       suppliers, contractors or service providers interested in
       obtaining a contract the technical specifications regularly
       referred to in their supply, works or service contracts or
       the technical specifications which they intend to apply to
       contracts covered by periodic information notices within the
       meaning of Article 17.
    2) Where such technical specifications are based on documents
       available to interested     suppliers, contractors or service
       providers   a    reference   to   those   documents   shall   be
       sufficient".
15. Article 15(2)(b) is replaced by the following:
    "b) where a contract is purely for the purpose of research,
        experiment, study or development and not for the purpose of
        ensuring profit or of recovering research and development
        costs and insofar as the award of such contract does not
        prejudice  the   competitive   award of   subsequent  contracts
        which have in particular these purposes;"
 ---pagebreak---                                - 51 -
16. Article 15(2)(c) is replaced by the following:
    "c) when, for technical or artistic reasons, or for reasons
        connected with protection of exclusive rights, the contract
        may be executed only by a particular supplier, contractor or
        service provider;"
17. Article 15(2)(f) is replaced by the following:
    "f) for additional works or services not included in the project
        initially awarded or in the contract first concluded but
        which   have,   through   unforeseen    circumstances,     become
        necessary for the execution of the contract, on condition
        that the award is made to the contractor executing the
        original contract:
        - when   such   additional   works   or    services   cannot   be
          technically   or  economically   separated     from  the   main
          contract without great inconvenience to the contracting
          entities;
        - or  when   such  additional   works   or   services,   although
          separable from the execution of the original contract, are
          strictly necessary to its later stages;"
18. The following point is added to Article 15(2):
    "1) when the service contract concerned is part of the follow-up
        to  a  design   contest  organized   in   conformity   with   the
        provisions of this Directive and must, in accordance with
        the relevant rules, be awarded to one of the winners of that
        contest, provided that all the winners are included in the
        procedure."
 ---pagebreak---                                - 52 -
19. Article 16(1) is replaced by the following:
    "1) In the case of supply, works or service contracts, the call
         for competition may be made:
        a) by  means  of   a  notice  drawn  up  in  accordance with
           Annex XII A, B or C; or
        b) by means of a periodic indicative notice drawn up in
           accordance with Annex XIV; or
        c) by means of a notice on the existence of a qualification
           system drawn up in accordance with Annex XIII."
20. Article 16(2)(a) is replaced by the following:
    "a) the notice must refer specifically to the supplies, works or
         services which will be the subject of the contract to be
         awarded;"
21. In Article 16, paragraph 4 is replaced by the following:
     "4) in the case of design contests, the call for competition
         shall be made by means of a notice drawn up in accordance
         with Annex XVII."
22.  In Article 16, former paragraph 4 becomes paragraph 5.
23. The following paragraph (c) is added to Article 17(1):
     "c) in the case of service contracts, the estimated total value
         of the service contracts     in each of the categories of
         services listed in Annex XVIA which they intend to award
 ---pagebreak---                                - 53 -
        over the following 12 months, where such estimated total
        value, taking into account the provisions of Article 12, is
        equal to or greater than ECU 750 000."
24. The following Article 17a is inserted:
                            "Article 17a
    1) Design contests shall be subject to the rules set out below.
       However,   when  design   contests   are   held   as   a   separate
       procedure, these rules are applicable only when the total
       amount of contest prizes and payments to participants is not
       less 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
       territory of a Member State.
    3) In the case of design contests with a limited number of
       participants, contracting entities shall apply the rules of
       Article 25.
    4) The jury shall be composed only of persons who have no
       financial    connections    or    special    relationships     with
       participants    in   the    contest. Whenever       a    particular
       professional qualification is required from participants in a
        contest, the majority of the jury members shall have the same
       qualifications.   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 the invitation for projects within
        the meaning of Annex XVII.
 ---pagebreak---                                  - 54 -
    5) Member  States    may  oblige   contracting   entities   to   award
       subsequent   contracts to one of the winners of a design
       contest."
25. Article 18 is replaced by the following:
                              "Article 18
    1) Contracting    entities   which   have  awarded   a  contract    or
       organised    a   design   contest   shall   communicate    to   the
       Commission, within two months of the award of the contract
       and under conditions to be laid down by the Commission in
       accordance with the procedure laid down in Article 32, the
       results of the awarding procedure by means of a notice drawn
       up in accordance with Annex XV or Annex XVIII.
    2) Information provided under Section I of Annex XV or under
       Annex XVIII shall be published in the Official Journal of the
       European Communities. In this connection the Commission shall
       respect   any   sensitive   commercial  aspects the    contracting
       entities may point out when forwarding this information in
       connection with points 6 and 9 of Annex XV.
    3) The contracting entities applying the provisions of Article
       15(2)(b) or awarding service contracts listed in Annex XVIB,
       may, concerning point 3 of Annex XV, only mention the main
       title thereof within the meaning of the classification of
       Annex XVI.
    4) Information provided under Section II of Annex XV must not be
       published or mentioned in the periodic reports except, in
       aggregated form, for statistical purposes."
 ---pagebreak---                                - 55 -
26. Article 19(5) is replaced by the following:
    "5) Contracts or design contests in respect of which a notice is
        published    in  the   Official   Journal   of   the   European
        Communities pursuant to Article 16(1) or Article 16(4) shall
        not be published in any other way before that notice has
        been dispatched to the Office for Official Publications of
        the   European   Communities.   Such  publication    shall  not
        contain   information   other  than  that   published    in the
        Official Journal of the European Communities."
27. Article 22(1) is replaced by the following:
    "1. Provided they have been requested in good time, the contract
        documents   and supporting documents must be sent to the
        suppliers,    contractors   or   service   providers    by  the
        contracting entities as a general rule within six days of
        receipt of the application."
28. Article 23 is replaced by the following:
                             "Article 23
    1. The contracting entity may state in the contract documents,
       or be obliged by a Member State so to do, the authority or
       authorities from which a tenderer may obtain the appropriate
       information on the obligations relating to the employment
       protection provisions and the working conditions which are in
       force in the Member State, region or locality in which the
       works or services are to be executed or performed and which
       shall be applicable to the works carried out or the services
       performed on site during the performance of the contract.
    2) A contracting entity which supplies the information referred
       to   in paragraph   1 shall request the tenderers or those
 ---pagebreak---                                 - 56
        participating in the contract procedure to indicate that
        they have taken account, when drawing up their tender, of
        the obligations relating to employment protection provisions
        and the working conditions which are in force in the place
        where the work or the service is to be carried out or
        performed.   This   shall    be   without   prejudice   to   the
         application of the provisions of Article 27 (5) concerning
        the examination of abnormally low tenders".
29. In Article    24, paragraphs    (1), (3), (5), (7) and       (8) are
    replaced by the following:
    "1) Contracting entities which so wish may establish and operate
         a  system  of qualification of      suppliers, contractors   or
         service providers."
    "3) The rules and criteria       for qualification shall be made
         available on request to interested suppliers, contractors or
         service providers. The updating of these criteria and rules
         shall   be   communicated    to   the   interested   suppliers,
         contractors   and  service   providers.   Where  a  contracting
         entity considers that the qualification system of certain
         third entities or bodies meet its requirements, it shall
         communicate to interested suppliers, contractors and service
         providers the names of such third entities or bodies."
    "5) In reaching their decision as to qualification or when the
         criteria and rules are being updated, contracting entities
         may not:
       impose    conditions   of   an    administrative,   technical  or
        financial nature on some suppliers, contractors or service
       providers that are not imposed on others;
    -   require tests or proof that duplicate objective evidence
       already available."
 ---pagebreak---                                 - 57 -
    "7) A written record of qualified        suppliers, contractors or
        service providers shall be kept, and it may be divided into
        categories according to the type of contract for which the
        qualification is valid.
     8) Contracting    entities  may  bring   the   qualification  of  a
        supplier, contractor or service provider to an end only for
        reasons based on the criteria referred to in paragraph 2.
        The intention to bring qualification to an end must be
        notified in writing to the supplier, contractor or service
        provider beforehand, together with the reason or reasons
        justifying the proposed action."
30. Article 25(1) is replaced by the following:
    "1) Contracting entities which select candidates to tender in
        restricted    procedures  or   to   participate   in  negotiated
        procedures shall do so according to objective criteria and
        rules   which   they  lay  down   and  which   they  shall  make
        available to interested suppliers, contractors or service
        providers."
31. The following Article 25a is inserted:
                             "Article 25a
    Should entities require the production of certificates drawn up
    by independent bodies for attesting conformity of the service
    provider to certain quality assurance standards, they shall
    refer to quality assurance systems based on the relevant EN
    29000 European standards series certified by bodies conforming
    to  the  EN   45000 European    standards   series.  Entities  shall
    recognise equivalent certificates from bodies established in
    other Member States.
 ---pagebreak---                                - 58 -
    They shall also accept other evidence of equivalent quality
    assurance measures from service providers who have no access to
    such certificates, or no possibility of obtaining them within
    the relevant time limits."
32. Article 26 is replaced by the following:
                             "Article 26
    1) Groupings   of  suppliers, contractors or     service  providers
        shall be permitted to tender or negotiate. The conversion of
        such groupings   into a specific    legal  form  shall not be
        required in order to submit a tender or to negotiate, but the
        grouping selected may be required so to convert itself once
        it has been awarded the contract where such conversion is
        necessary for the proper performance of the contract.
    2) Candidates or tenderers who, under the law of the Member
        State in which they are established, are entitled to carry
        out the relevant service activity, shall not be rejected on
        the sole grounds that under the law of the Member State in
        which the contract is awarded they would have been required
        to be either a natural or a legal person.
    3) Legal persons may be required to indicate in the tender or
        the  request   for  participation,   the  names   and  relevant
        professional qualifications of the staff to be responsible
        for the performance of the service."
33. Article 27(1) is replaced by the following:
     "1) Without   prejudice   to   national   laws,   regulations   or
         administrative provisions on the remuneration of certain
         services, the criteria on which the contracting entities
         shall base the award of contracts shall be:
 ---pagebreak---                                - 59 -
       a) the   most  economically   advantageous  tender,   involving
          various criteria depending on the contract in question,
          such as: delivery or completion date, running costs, cost-
          effectiveness,    quality,     aesthetic   and    functional
          characteristics, technical merit, after-sales service and
          technical assistance, commitments with regard to spare
          parts, security of supplies and price; or
       b) the lowest price only."
34. The following paragraph 6 is added to Article 27:
    "6) In the case of a tender for the award of a service contract
        submitted by a public authority or a public undertaking, the
        contracting entity shall in particular enquire whether the
        tender is influenced by public funds allocated for
        a)    the setting-off of operating losses;
        b)    the provision of capital;
        c)    non-refundable grants, or loans on privileged terms;
        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 used;
        f)    compensation  for   financial  burdens  imposed   by  the
              public authorities.
        It shall inform the Commission if it intends to award a
        contract to a tenderer whose tender is influenced by any of
        these characteristics."
 ---pagebreak---                                  - 60 -
35. The following Article 29a is inserted:
    "Article 29a
    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 service contracts in
       third countries.
    2) The    Commission    shall     report   to    the   Council   before
       31 December 1992      and    periodically     thereafter    on   the
       opening-up of service contracts in third countries and on the
       state of negotiations with these countries on this subject,
       particularly within the GATT framework.
    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 the award
       of service contracts,
       a) does not grant Community undertakings effective access
           comparable    to    that    granted    by   the   Community   to
           undertakings from that country,
       b) does not grant Community undertakings national treatment
           or the same competitive opportunities as are available to
           national undertakings, or
       c) grants    undertakings     from   other   third   countries  more
           favorable treatment than Community undertakings,
       the Commission may initiate negotiations in order to remedy
       the situation.
 ---pagebreak---                             - 61 -
4) Under   the   conditions   referred   to  in  paragraph 3,   the
   Commission may decide, in addition to action taken pursuant
   to that paragraph, that the award of service contracts to
   a) undertakings governed by the law of the third country in
       question,
   b) undertakings affiliated to the undertakings specified in
       (a) and having their registered office in the Community
       but having no effective and continuous       link with the
       economy of a Member State,
   c) undertakings submitting tenders which have as their object
       services originating in the third country in question,
   may   be  suspended   or  restricted   during  a  period  to  be
   determined in the decision.     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 32(5),
    (6) and (7). Where the Commission is asked to take action by
    a Member State, it shall take a decision within a maximum
    period of three months of receipt of the request.
    It shall notify the Council and the Member States of the
    decisions taken.
    Any Member State may refer the Commission's decision to the
    Council within a maximum period of four weeks from the date
    of the decision.
 ---pagebreak---                               - 62 -
       The  Council,  acting  by  qualified   majority, may   take  a
       different decision within a maximum period of three months of
       such referral.
    5) This Article is without prejudice to the obligations of the
       Community in relation to non-member countries."
36. In Article 30(1) the word "software" is deleted.
37. Article 33(1)(a) is replaced by the following:
    "a) the qualification and selection of contractors, suppliers or
        of providers of services and award of contracts"
38. Article 37 is replaced by the following:
                            "Article 37
    1) Member States shall adopt the measures necessary to comply
       with the provisions relating to works and supply contracts of
       this Directive by 1 July 1992. They shall forthwith inform
       the Commission thereof.
       Member States may stipulate that the measures referred to
       shall apply only from 1 January 1993.
    2) The Member   States  shall  apply  the  measures  relating  to
       service contracts by 1 January 1993.
    3) Nevertheless, in the case of the Kingdom of Spain, 1 January
       1993 shall be replaced by 1 January 1996. As regards the
       Hellenic Republic and the Portuguese Republic, 1 January 1993
       shall be replaced by 1 January 1998.
 ---pagebreak---                                   - 63 -
      4) Council   Recommendation    84/550/EEC   of   12   November    1984
         concerning the first phase of opening up access to public
         telecommunications contracts(1)     shall cease to have effect
         as from the date on which this Directive is applied by the
         Member States.
      (1) OJ No L 298, 16.11.1984, p. 51.
39.   The following Article 37a is inserted :
                               "Article 37a
      When   Member   States  adopt   the   provisions    referred   to   in
      Article 37, these shall contain a reference to this Directive or
      shall be accompanied by such reference at the time of their
      official publication.    The procedure for such reference shall be
      adopted by the Member States."
40.   The list of Annexes and Annexes XII, XIV and XV are replaced by
      the  list   of Annexes   and Annexes    XII, XIV    and  XV  of this
      Directive.
41.   Annexes XVI, XVII and XVIII hereto are added.
                                 Article 2
The Commission shall adopt before 1 January 1993, a Directive which
consolidates   the  provisions   of  Directive   90/531/EEC   and  of   this
Directive   in   conformity    with   the   procedure    referred   to    in
Article 32(4) to (7) .
 ---pagebreak---                                 - 64 -
                              Article 3
1) Member States shall adopt the measures necessary to comply with
   this Directive by 1 January 1993. They shall forthwith inform the
   Commission thereof.
2) Nevertheless, the Kingdom of Spain may stipulate that the measures
   referred to in paragraph 1 shall apply only from 1 January 1996.
   The Hellenic Republic and the Portuguese Republic may stipulate
   that the measures referred to in paragraph 1 shall apply only from
   1 January 1998.
3) When Member States adopt these provisions, these shall contain a
   reference  to this Directive    or  shall be   accompanied  by  such
   reference at the time of their official publication.   The procedure
   for such reference shall be adopted by Member States.
                               Article 4
Member States shall communicate to the Commission the text of the main
provisions   of   national   law,    whether  laws,    regulations   or
administrative provisions, which they adopt in the field governed by
this Directive.
                               Article 5
This Directive is addressed to the Member States.
Done at Brussels,
                                                  For the Council
                                                   The President
 ---pagebreak---                                             65 -
                                        ANNEXES
Annex I     production, transport or distribution of drinking water
Annex 11    production, transport or distribution of electricity
Annex 111   transport or distribution of gas or heat
Annex IV    exploration for and extraction of oil or gas
Annex V     exploration for and extraction of coal or other solid fuels
Annex VI    Contracting entities in the field of railway services
Annex VII   Contracting entities in the field of urban railway, tramway, trolley bus or bus
            services
Annex VIII  Contracting entities in the field of airport facilities
Annex IX    Contracting entities in the field of maritime or inland port or other terminal
            faciIities
Annex X     Operation of telecommunications networks or provision of telecommunications
            services
Annex XI    List of professional activities as set out in the general industrial
            classification of economic activities within the European Communities
Annex XII   A. open procedures
            B. restricted procedures
            C. negotiated procedures
Annex XIII  Notice on the existence of a qualification system
Annex XIV   Periodic information notice
            A. For supply contracts
            B. For works contracts
            C. For service contracts
Annex XV    Notice on contracts awarded
            I. Information for publication in the Official Journal of the European
               Communities
            11.Information not intended for publication
Annex XVI   A. Services in the sense of Article 12a
            B. Services in the sense of Article 12b
Annex XVII
            Design contest notices
Annex XVIII
            Results of design contests
 ---pagebreak---                                              - 66 -
                                           ANNEX  XII
                                       A. OPEN PROCEDURES
1.  The name, address, telephone number, telegraphic address, telex and telecopier number of the
    contracting entity.
2.  Nature of the contract (supply, works or service, where appropriate, state if it is a
    framework agreement).
    Category of service within the sense of annex XVIA or XVIB and description (CPC
    classification).
3.  Place of delivery, site or place of performance of service.
4.  For supplies and works :
    (a)   Nature and quantity of the goods to be supplied;
          or
          the nature and extent of the services to be provided and general nature of the work.
    (b)   Indication of whether the suppliers can tender for some and/or all the goods required.
          If, for works contracts, the work or the contract is subdivided into several lots, the
          order of size of the different lots and the possibility of tendering for one, for
          several or for all the lots.
    (c)   For works contracts :
          Information concerning the purpose of the work or the contract where the latter also
          involves the drawing up of projects.
5.  For services :
    (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 provison;
    (O    Indication whether legal persons should indicate the names and professional
          qualification of the staff to be reponsible for the execution of the services;
    (d)    Indication whether suppliers can tender for a part of the services concerned;
6.  Authorization to submit variants.
7.  Derogation from the use of European Specifications, in accordance with Article 13 (6).
8.  Time limits for delivery or completion or duration of service contract.
9.  (a)   Address from which the contract documents and additional documents may be requested.
    (b)   Where appropriate, the amount and terms of payment of the sum to be paid to obtain
          such documents.
10. (a)   The final date for receipt of tenders.
    (b)   The address to which they must be sent.
    (c)   The language or languages in which they must be drawn up.
11. (a)   Where appropriate, the persons authorized to be present at the opening of tenders,
    (b)   The date, hour and place of such opening.
12. Where appropriate, any deposits and guarantees required.
13. Main terms concerning financing and payment and/or references to the provisions in which are
    contained.
 ---pagebreak---                                              -  67   -
14. Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or
    service providers to whom the contract is awarded.
15. Minimum economic and technical conditions required of the supplier, contractor or provider
    to whom the contract is awarded.
16. Period during which the tenderer is bound to keep open his tender.
17. The criteria for the award of the contract. Criteria other than that of the lowest price
    shall be mentioned where they do not appear in the contract documents.
18. Other information.
19. Where appropriate, the reference to publication of the periodic information notice in the
    Official Journal to which the contract refers.
20. Date of dispatch of the notice by the contacting entities.
21. Date of receipt of the notice by the Office for Official Publications of the European
    Communities (to be supplied by the said Office).
 ---pagebreak---                                              - 68 -
                                           ANNEX XII
                                    B. RESTRICTED PROCEDURES
1.  The name, address, telephone number, telegraphic address, telex and telecopier number of the
    contracting entity.
2.  Nature of the contract (supply, works or service, where appropriate, state if it is a
    framework agreement).
    Category of service within the sense of annex XVIA or XVIB and description (CPC
    classification).
3.  Place of delivery, site or place of performance of service.
4.  For supplies and works :
    (a)   Nature and quantity of the goods to be supplied;
          or
          the nature and extent of the services to be provided and general nature of the work.
    (b)   Indication of whether the suppliers can tender for some and/or all the goods required.
          If, for works contracts, the work or the contract is subdivided into several lots, the
          order of size of the different lots and the possibility of tendering for one, for
          several or for all the lots.
    (c)   For works contracts :
          Information concerning the purpose of the work or the contract where the latter also
          involves the drawing up of projects.
5.  For services :
    (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 provison;
    (c)   Indication whether legal persons should indicate the names and professional
          qualification of the staff to be reponsible for the execution of the services;
    (d)   Indication whether suppliers can tender for a partof the services concerned;
6.  Authorization to submit variants.
7.  Derogation from the use of European Specifications, in accordance with Article 13 (6).
8.  Time limits for delivery or completion or duration of service contract.
9.  Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or-
    providers to whom the contract is awarded.
10. (a)   The final date for receipt of requests to participate.
    (b)   The address to which they must be sent.
    (c)   The language or languages in which they must be drawn up.
11. The final date for dispatch of invitations to tender.
12. Where appropriate, any deposits and guarantees required.
13. Main terms concerning financing and payment and/or references to the texts in which these
    are contained.
14. Information concerning the supplier's, contractor's or provider's position and minimum
    economic and technical conditions required of him.
15. The criteria for the award of the contract where they are not mentioned in the invitation to
    tender.                                         t
 ---pagebreak---                                              -  69   -
16. Other information.
17. Where appropriate, the reference to publication of the periodic information notice in the
    Official Journal to which the contract refers.
18. Date of dispatch of the notice by the contracting entities.
19. Date of receipt of the notice by the Office for Official Publications of the European
    Communities (to be supplied by the said Office).
 ---pagebreak---                                                - 70 -
                                             ANNEX XII
                                     C. NEGOCIATED PROCEDURES
1.   The name, address, telephone number, telegraphic address, telex and telecopier number of the
     contracting entity.
2.   Nature of the contract (supply, works or service, where appropriate, state if it is a
     framework agreement).
     Category of service within the sense of annex XVIA or XVIB and description (CPC
     classification).
3.   Place of delivery, site or place of performance of service.
4.   For supplies and works :
     (a)   Nature and quantity of the goods to be supplied;
           or
           the nature and extent of the services to be provided and general nature of the work.
     (b)   Indication of whether the suppliers can tender for some and/or all the goods required.
           If, for works contracts, the work or the contract is subdivided into several lots, the
           order of size of the different lots and the possibility of tendering for one, for
           several or for all the lots.
     (c)   For works contracts :
           Information concerning the purpose of the work or the contract where the latter also
           involves the drawing up of projects.
5.   For services :
     (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 provison;
     (c)   Indication whether legal persons should indicate the names and professional
           qualification of the staff to be reponsible for the execution of the services;
     (d)    Indication whether suppliers can tender for a part of the services concerned;
6.   Derogation from the use of European specifications, in accordance with article 13 (6).
7.   Time limits for delivery or completion or duration of service contract.
8.   (a)   The final date for receipt of tenders.
     (b)   The address to which they must be sent.
     (c)   The language or languages in which they must be drawn up.
9.   Where appropriate, any deposits and guarantees required.
10.  Main terms concerning financing and payment and/or references to the texts in which these
     are contained.
11.  Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or
     providers to whom the contract is awarded.
12.  Information concerning the supplier's, contractor's or provider's position and minimum
     economic and technical conditions required of him.
13.  Where appropriate, the names and addresses of suppliers, contractors or providers already
     selected by the contracting entity.
14.  Where applicable, date(s) of previous publications in the Official Journal of the European
     Communities.
 15. Other information.
 ---pagebreak---                                              -  71   -
16. Where appropriate, the reference to publication of the periodic information notice in the
    Official Journal to which the contract refers.
17. Date of dispatch of the notice by the contracting entities.
18. Date of receipt of the notice by the Office for Official Publications of the European
    Communities (to be supplied by the said Office).
 ---pagebreak---                                               - 72 -
                                            ANNEX XIV
                                   Periodic Information Notice
C. For service contracts.
1.   Name, address, telephone number, telegraphic address, telex and telecopier number of the
     contracting entity or the service from which additional information may be obtained.
2.   Intended total procurement in each of the service categories listed in Annex XVIA;
3.   (a)   Estimated date of the commencement of the procedures of the award of the contract(s)
           (if known).
     (b)   Type of award procedure to be used.
4.   Other information (for example, indicate if a call for competition will be published later),
5.   Date of dispatch of the notice by the contracting entities.
6.   Date of receipt of the notice by the Office for Official Publications of the European
     Communities (to be supplied by the said Office).
 ---pagebreak---                                               - 73 -
                                             ANNEX XV
                                    Notice on contracts awarded
I.   INFORMATION FOR PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES
1.   Name and address of the contracting entity
2.   Nature of the contract (supplies, works or services; where appropriate state if it is a
     framework agreement)
3.   At least a summary indication of the nature of the products, works or services provided
4.   (a)    Form of the call for competition (notice on the existence of a qualification
            procedure; periodic information notice; call for tenders)
     (b)    Reference of publication of the notice in the Official Journal of the European
            Communities
     (c)    In the case of contracts awarded without a prior call for competition, indication of
            the relevant provision of Article 15(2), or Article 12b.
5.   Award procedure (open, restricted or negotiated)
6.   Number of tenders received
7.   Date of award of the contract
8.   Price paid for bargain purchases under Article 15(2)(j)
9.   Name and address of successful supplier(s), contractor(s) or service provider(s)
10.  State, where appropriate, whether the contract has been, or may be, sub-contracted.
11.  Optional information:
         value and share of the contract which may be sub-contracted to third parties;
     - award criteria;
     - price paid (or range of prices).
11. INFORMATION NOT INTENDED FOR PUBLICATION
12.  Number of contracts awarded (where an award has been split between more than one supplier)
13.  Value of each contract awarded
 14. Country of origin of the product or service (EEC origin or non-Community origin; if the
      latter, broken down by third country)
15.  Was recourse made to the exceptions to the use of European specifications provided for under
     Article 13(6). If so, which?
16.  Which award criteria was used (most economically advantageous: lowest price: criteria
     permitted under Article 28)?
 17. Was the contract awarded to a bidder who submitted a variant, in
     accordance with Article 27(3)?
 18. Were any tenders excluded on the grounds that they were abnormally low, in accordance with
     Article 27(5)?
 19. Date of transmission of the notice by the contracting entities.
 ---pagebreak---                                              -  74   -
                                          ANNEX XVI A
                              Services in the sense of Article 12a
       Maintenance and repair services                6112, 6122, 633, 886
       Land transport services, including             712 (except 71235) 7512
       armoured car services, and courier             87304
       services, except transport of mail
       Air transport services of passengers
       and freight, except transport of
       ma i I                                         73 (except 7321)
       Transport of mail by land, except
       raiI, and by air                               71235, 7321
       Telecommunications services                    752*
       Financial services                             ex 81
       a) Insurance services                          812, 814
       b) Banking and investment services
       Computer and related services                  84
       R&D services**                                 85
       Accounting, auditing and book-
       keeping services                               862
10     Market research and public
       opinion polling services                       864
11     Management consulting services
       and related services                           865, 866***
12     Architectural services;                        867
       Engineering services and inte-
       grated engineering services;
       Urban planning and landscape
       architectural services;
       Related scientific and tech-
       nical consulting services;
       Technical testing and analysis
       services
13     Advertising services                           871
Ï4~    Building-cleaning services                     874
       and property management services               82201, 82202
15     Publishing and printing services
       on a fee or contract basis                     88442
16     Sewage and refuse disposal;
       sanitation and similar services                94
*   except voice telephony, telex, radiotelephony, paging and satellite services
**  as defined in the eighth recital
*** except arbitration and conciliation services
 ---pagebreak---                                             -   75  -
                                         ANNEX XVI B
                            Services in the sense of Article 12b
                                    CPC Division, Group,
Cat. 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   Legal services                         861
22   Placement and supply services of
     personnel                               872
23   Investigation and security services
     (except armoured car services)          873 (except 87304)
24   Education and vocational educational
     services                                92
25   Health and social services              93
26   Recreational, cultural and sporting
     services                                96
27   Other services
 ---pagebreak---                                             - 76 -
                                          ANNEX XVII
                                    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;
        i
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.
 ---pagebreak---                                              -  77   -
                                          ANNEX XVIII
                                   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---                        - 78 -
                  WORKING DOCUMENT
         OF THE SERVICES OF THE COMMISSION
Consolidated text integrating the provisions of the
        proposal for a Directive COM (91)...
   (service contracts) into Directive 90/531/EEC
            (supply and works contracts)
                                                    (9)
 ---pagebreak---                                 - 79 -
                                 NOTE
The attached consolidated text aims at facilitating the reading and
understanding  of the proposal   for a Directive concerning    service
contracts    awarded   in   the    water,   energy,   transport    and
telecommunications sectors(*).
This text integrates all the modifications relating to contracts for
services into Directive 90/531/EEC which is applicable only to supply
and works contracts.
The underlined text corresponds to the modified or new provisions
which are to be found in the formal proposal; where the provisions do
not specify that they only apply to supply or works contracts, it
means that the provison concerned also applies to service contracts.
 (1)  COM (91)...of ...1991; proposal for a Council Directive amending
      Directive 90/531/EEC on the procurement procedures of entities
      operating in the water, energy, transport and telecommunications
      sectors.
 ---pagebreak---                                 -  80 -
                       /ANNEX CONSOLIDATED TEXT
                                TITLE   I
                           GENERAL PROVISIONS
                               Article 1
For the purposes of this Directive:
 1)   "public authorities" shall mean the State, regional or local
      authorities, bodies governed by public     law, or associations
      formed by one or more of such authorities or bodies governed by
      public law.
      A body is considered to be governed by public law where it:
      -  is established for the specific purpose of meeting needs in
         the general interest, not being of a commercial or industrial
         nature, and
 ---pagebreak---                                - 81 -
       has legal personality, and
       is financed for the most part by the State, or regional or
       local authorities, or other bodies governed by public law, or
       is subject to management supervision by those bodies, or has
       an administrative, managerial or supervisory board more than
       half of whose members are appointed by the State, regional or
       local authorities, or other bodies governed by public law;
2)  "public undertaking" shall mean any undertaking over which the
    public   authorities  may   exercise  directly or   indirectly   a
    dominant influence by virtue of their ownership of it, their
    financial participation therein, or the rules which govern it.
    A dominant influence on the part of the public authorities shall
    be presumed when these authorities, directly or indirectly, in
    relation to an undertaking:
       hold the major part of the undertaking's subscribed capital,
       or
    -   control the majority of the votes attaching to shares issued
       by the undertaking, or
       can    appoint  more   than   half  of  the  members   of   the
       undertaking's administrative, managerial or supervisory body;
 3) "affiliated undertaking" shall mean any undertaking whose annual
    accounts are consolidated with those of the contracting entity
    in accordance with the requirements of Directive 83/349/EEC of
    13 June 1983(^) or, in case of contracting entities not subject
    to that Directive, any undertaking over which the contracting
(1) OJ No L 193, 18.7.1983, p. 1.
 ---pagebreak---                                     - 82 -
     entity   may    exercise,     directly    or   indirectly,     a   dominant
     influence within the meaning of point 2, or which may exercise a
     dominant   influence    over   the   contracting   entity   or   which,  in
     common with the contracting entity, is subject to the dominant
     influence    of   another    undertaking     by   virtue   of    ownership,
     financial participation, or the rules which govern it.
4)   "supply, works and service contracts" shall mean contracts for
    ' pecuniary  interest concluded in writing between a supplier, a
     contractor   or   a service provider       and  one   of the    contracting
     entities defined in Article 2, to the exclusion of
     i) contracts for the acquisition or rental by whatever financial
         means,  of    land,   existing     buildings,    or  other    immovable
         property or concerning rights therein;
    ii) contracts for voice telephony, telex, radiotelephony, paging
         and satellite services ;
   iii) contracts for arbitration and conciliation services.
      These contracts have as their object :
      a) in the case of supply contracts, the purchase, lease, rental
         or  hire    purchase,    with   or   without    options   to   buy,  of
         products;
      b) in the case of works contracts, either the execution, or both
         the  execution    and  design    or  the   realization,    by  whatever
         means, of building or civil engineering activities referred
         to  in Annex    XI.   These    contracts   may,   in  addition,   cover
         supplies and services necessary for their execution;
 ---pagebreak---                                - 83 -
   c) in the case of service contracts, any other provision.
   Contracts which include the provision of services and supplies
   shall be regarded   as supply   contracts  if the total value of
   supplies is greater than the value of the services covered by
   the contract;
5) "framework agreement" shall mean an agreement between one of the
   contracting  entities   defined   in Article 2   and   one   or  more
   suppliers, contractors or service providers the purpose of which
   is to establish the terms, in particular with regard          to the
   prices and, where appropriate, the quantity envisaged, governing
   the contracts to be awarded during a given period;
6) "tenderer" shall mean a supplier, contractor or service provider
   who submits a tender and "candidate" shall mean a person who has
   sought an invitation to take part in a restricted or negotiated
   procedure ; service providers may be either       natural   or  legal
   persons,  including contracting entities within the meaning of
   Article 2;
7) "open,  restricted  and   negotiated  procedures"   shall   mean  the
   award procedures applied by contracting entities whereby:
   a) in the case of open procedures, all       interested    suppliers,
      contractors or service providers may submit tenders;
   b) in the case of the restricted      procedures, only     candidates
      invited by the contracting entity may submit tenders;
 ---pagebreak---                                   - 84 -
     c) in the case of negotiated procedures, the contracting entity
        consults suppliers, contractors or service providers of its
        choice and negotiates the terms of the contract with one or
        more of them;
 8)  "technical specifications" shall mean the technical requirements
     contained in particular in the tender documents, defining the
     characteristics of a set of works, material, product, supply or
    * a service, and enabling a piece of work, a material, a product,
     a supply or a service to be objectively described in a manner
     such that it fulfils the use for which it is intended by the
     contracting entity.     These technical prescriptions may include
     quality,    performance,    safety   or    dimensions,    as    well   as
     requirements applicable to the material, product, supply or a
     service   as regards quality      assurance, terminology, symbols,
     testing and test methods, packaging, marking or labelling.             In
     the case of works contracts, they may also include rules for the
     design   and    costing,   the   test,   inspection    and    acceptance
     conditions for works and methods or techniques of construction
     and all other technical conditions which the contracting entity
     is  in   a   position   to  prescribe    under   general    or   specific
     regulations,    in relation to the finished works and to the
     materials or parts which they involve;
 9)  "standard" shall mean a technical specification approved by a
     recognized    standardizing    body  for    repeated    and    continuous
     application,     compliance   with   which    is   in    principle    not
     compulsory;
10)  "European    standard"   shall mean    a   standard   approved    by  the
     European Committee for Standardization (CEN) or by the European
     Committee for Electrotechnical Standardization (CENELEC) as a
 ---pagebreak---                                  - 85 -
      "European   Standard (EN)"    or    "Harmonization    Document (HD)",
     according to the common rules of those organizations, or by the
     European Telecommunications Standards Institute (ETSI) according
     to     its  own    rules   as     a   "European     Telecommunications
     Standard (ETS)";
11)   "common   technical   specification"     shall    mean   a   technical
      specification drawn up in accordance with a procedure recognized
      by the Member States with a view to uniform application in all
      Member States and published       in the Official Journal of the
      European Communities;
12)   "European technical approval" shall mean a favourable technical
      assessment of the fitness for use of a product for a particular
      purpose, based on fulfilment of the essential requirements for
      building works, by means of the inherent characteristics of the
      product and the defined conditions of application and use, as
      provided for in Council Directive 89/106/EEC of 21 December 1988
      on the approximation of laws, regulations and administrative
      provisions   of   the  Member   States    relating   to   construction
      products (1).   European technical approval shall be issued by
      an approval body designated       for this purpose by the Member
      State;
13)   "European    specification"    shall    mean   a    common   technical
      specification, a European      technical    approval   or  a national
      standard implementing a European standard;
14)    "public  telecommunications    network"    shall   mean   the  public
      telecommunications infrastructure which enables signals to be
      conveyed between defined network termination points by wire, by
      microwave, by optical means or by other electromagnetic means.
 (1) OJ No L 40, 11.2.1989, p. 12.
 ---pagebreak---                                    - 86 -
       "Network termination point" shall mean all physical connections
       and their technical access specifications which form part of the
       public telecommunications network and are necessary for access
       to, and efficient communication through, that public network;
15)    "public      telecommunications       services"      shall     mean
       telecommunications services the provision of which the Member
       States  have   specifically   assigned   notably  to  one  or  more
       telecommunications entities.
       "Telecommunications services" shall mean services the provision
       of which consists wholly or partly        in the transmission and
       routing of signals on the public telecommunications network by
       means of telecommunications processes, with the exception of
       radio-broadcasting and television.
16)    "design  contests"   shall   mean  the   procedures  which  aim  at
       providing the contracting entity with a plan or design, mainly
       in  the  fields   of  architecture,    civil  engineering  or  data
       processing, and which are selected by a jury on the basis of
       competition with or without the award of prizes.
                                 Article 2
1) This Directive shall apply to contracting entities which:
    a) are public authorities or public undertakings and exercise one
       of the activities referred to in paragraph 2;
    b) or, when they are not public authorities or public undertakings,
       have as one of their activities any of those referred to in
                                                                           (8)
 ---pagebreak---                                    - 87 -
      paragraph 2 or any combination thereof and operate on the basis
      of special or exclusive rights granted by a competent authority
      of a Member State.
2) Relevant activities for the purposes of this Directive shall be:
   a) the provision or operation of fixed networks intended to provide
      a   service  to  the  public   in connection   with   the   production,
      transport or distribution of:
      (i)    drinking water; or
      (ii)   electricity; or
      (iii) gas or heat;
      or the supply of drinking water, electricity, gas or heat to
      such networks;
   b) the exploitation of a geographical area for the purpose of:
       (i)   exploring for or extracting oil, gas, coal or other solid
              fuels, or
       (ii)  the provision of airport, maritime or inland port or other
             terminal   facilities  to  carriers  by   air,   sea  or  inland
             waterway;
   c) the operation of networks providing a service to the public in
      the field    of transport by railway, automated systems, tramway,
      trolley bus, bus or cable.
 ---pagebreak---                                  - 88 -
      As regards transport services, a network shall be considered to
      exist where the service is provided under operating conditions
      laid down by a competent authority of a Member State, such as
      conditions on the routes to be served, the capacity to be made
      available or the frequency of the service;
   d) the provision or operation of public telecommunications networks
      or  the  provision  of  one or more     public   telecommunications
      services.
3) For the purpose of applying paragraph 1(b), special or exclusive
   rights shall mean rights deriving from authorizations granted by a
   competent  authority   of  the   Member   State   concerned,   by  law,
   regulation or administrative action, having as their result the
   reservation for one or more entities of the exploitation of an
   activity defined in paragraph 2.
   A  contracting entity   shall be considered      to enjoy   special or
   exclusive rights in particular where:
   a) for the purpose of constructing       the networks or     facilities
      referred to in paragraph 2, it may take advantage of a procedure
       for the expropriation or use of property or may place network
      equipment on, under or over the public highway;
   b) in the case of paragraph 2(a), the entity supplies with drinking
      water, electricity, gas or heat a network which           is itself
      operated   by an entity enjoying     special or exclusive rights
      granted by a competent authority of the Member State concerned.
4) The provision of bus transport services to the public shall not be
   considered   to  be  a  relevant   activity   within   the meaning   of
 ---pagebreak---                                 - 89 -
   paragraph 2(c) where other entities are free to provide those
   services, either in general or in a particular geographical area,
   under the same conditions as the contracting entities.
5) The supply of drinking water, electricity, gas or heat to networks
   which provide a service to the public by a contracting entity other
   than a public authority shall not be considered as a relevant
   activity within the meaning of paragraph 2(a) where:
  a)  in the case of drinking water or electricity:
         the production of drinking water or electricity by the entity
         concerned takes place because its consumption is necessary
         for carrying out an activity other than that referred to in
         paragraph 2, and
      -  supply to the public network depends only on the entity's own
         consumption and has not exceeded 30% of the entity's total
         production of drinking water or energy, having regard to the
         average for the preceding three years, including the current
         year;
  b)  in the case of gas or heat:
      -  the production of gas or heat by the entity concerned is the
         unavoidable consequence of carrying on an activity other than
         that referred to in paragraph 2, and
         supply to the public network is aimed only at the economic
         exploitation of such production and amounts to not more than
         20% of the entity's turnover having regard to the average for
         the preceding 3 years, including the current year.
 ---pagebreak---                                    - 90 -
6) The contracting entities listed in Annexes I to X shall fulfil the
   criteria set out above.     In order to ensure that the lists are as
   exhaustive as possible, Member States shall notify the Commission
   of  amendments    to   their   lists.    The   Commission    shall   revise
   Annexes I to X in accordance with the procedure in Article 32.
                                 Article 3
1) Member   States   may   request    the    Commission   to   provide    that
   exploitation of geographical areas for the purpose of exploring
   for, or extracting, oil, gas, coal or other solid fuels shall not
   be considered to be an activity defined in Article 2(2)(b)(i) and
   that entities shall not be considered as operating under special or
   exclusive rights within the meaning of Article 2(3)(b) by virtue of
   carrying on one or more of these activities, provided that all the
   following conditions are satisfied with respect to the relevant
   national provisions concerning such activities:
  a)  at the time when authorization to exploit such a geographical
      area   is  requested,   other    entities    shall  be   free   to  seek
      authorization for that purpose under the same conditions as the
      contracting entities;
  b)  the technical and financial capacity of entities to engage in
      particular   activities     shall   be    established   prior    to  any
      evaluation    of   the   merits    of    competing   applications    for
      authorization;
  c)  authorization to engage in those activities shall be granted on
      the basis of objective criteria concerning the way in which it
      is intended to carry out the exploitation or extraction, which
      shall be established and published prior to the requests and
      applied in a non-discriminatory manner;
 ---pagebreak---                                    - 91 -
  d)  all conditions and requirements concerning the carrying out or
      termination of the activity, including, provisions on operating
      obligations, royalties, and participation        in the capital or
      revenue of the entities, shall be established and made available
      prior to the requests for authorization being made and then
      applied in a non-discriminatory manner; every change concerning
      these conditions and requirements shall be applied to all the
      entities concerned, or else amendments must be made in a non-
      discriminatory manner; however, operating obligations need not
      be established until immediately before the authorization is
      granted; and
  e)  contracting    entities    shall  not    be required   by   any  law,
      regulation,      administrative     requirement,     agreement     or
      understanding to provide information on a contracting entity's
      intended or actual sources of procurement, except at the request
      of national authorities and exclusively with a view to the
      objectives mentioned in Article 36 of the Treaty.
2) Member   States which apply the provisions of paragraph 1 shall
   ensure,   through   the   conditions  of   the authorization   or  other
   appropriate measures, that any entity:
   a) observes the principles of non-discrimination and competitive
      procurement    in respect of the award of supplies, works and
      service contracts, in particular as regards the information that
      the   entity   makes   available  to   undertakings  concerning   its
      procurement intent ions;
   b) communicates to the Commission, under conditions to be defined
      by   the   latter   in   accordance   with  Article 32,   information
      relating to the award of contracts.
 ---pagebreak---                                      - 92 -
3) As regards individual concessions or authorizations granted before
   the date on which Member States apply this Directive in accordance
   with   Article 37, paragraphs 1(a),. (b) and           (c) shall     not    apply,
   provided   that   at   that   date    other   entities     are   free    to   seek
   authorization    for the exploitation of geographical areas for the
   purpose of exploring       for or extracting oil, gas, coal or other
   solid   fuels, on a non-discriminatory         basis and      in the    light of
   objective   criteria.     Paragraph 1(d)     shall    not   apply    as   regards
   conditions or requirements established, applied or amended before
   the date referred to above.
4) A Member State which wishes to apply paragraph 1 shall inform the
   Commission     accordingly.    In    doing    so,    it    shall    inform     the
   Commission    of  any   law,  regulation     or   administrative      provision,
   agreement    or   understanding      relating    to    compliance      with    the
   conditions referred to in paragraphs 1 and 2.
   The   Commission    shall   take   a   decision    in   accordance      with   the
   procedure laid down in Article 32(4) to (7).             It shall publish its
   decision,   giving    its   reasons,    in  the   Official     Journal    of   the
   European Communities.
   It   shall   forward   to   the   Council    each   year    a   report    on   the
   implementation of this Article and review its applicaiton in the
   framework of the report provided for in Article 36.
                                   Article 4
1) When   awarding   supply, works or       service contracts, or        organizing
   design   contests, the contracting        entities shall apply        procedures
   which are adapted to the provisions of this Directive.
 ---pagebreak---                                   - 93 -
2) Contracting entities shall ensure that there is no discrimination
   between different suppliers, contractors or service providers.
3) In  the  context   of   provision   of   technical    specifications   to
   interested   suppliers,    contractors    or    service   providers    of
   qualification and selection of suppliers, contractors or service
   providers and of award of contracts, contracting entities may
   impose requirements with a view to protecting the confidential
   nature of information which they make available.
4) The provisions of this Directive shall not limit the right of
   suppliers,   contractores    or   service   providers    to   require   a
   contracting entity, in conformity with national law, to respect the
   confidential nature of information which      they make available.
                                 Article 5
1) Contracting entities may regard a framework agreement as a contract
   within the meaning of Article 1(3) and award it in accordance with
   this Directive.
2) Where  contracting   entities have     awarded   a  framework   agreement
   in accordance with this Directive, they may avail themselves of
   Article 15(2)(i) when awarding contracts based on that agreement.
3) Where a framework agreement has not been awarded in accordance with
   this Directive, contracting entities may not avail themselves of
   Article 15(2)(i).
4) Contracting entities may not misuse framework agreements in order
   to hinder, limit or distort competition.
 ---pagebreak---                                  - 94 -
                               Article 6
1) This Directive shall not apply to contracts or design contests
   which the contracting entities award or organize for purposes other
   than the pursuit of their activities as described in Article 2(2)
   or for the pursuit of such activities in a non-member country, in
   conditions   not  involving  the  physical   use of  a  network  or
   geographical area within the Community.
2) However, this Directive shall apply to contracts or design contests
   awarded or organized on behalf of the entities which exercise an
   activity referred to in Article 2(2)(a)(i) and which:
   a) are connected with hydraulic engineering projects, irrigation or
       land drainage, provided that the volume of water intended for
       the supply of drinking water represents more than 20% of the
       total  volume of water made available by these projects or
       irrigation or drainage installations, or
   b) are connected with the disposal or treatment of sewage.
3) The contracting entities shall notify the Commission at its request
   of any activities they regard as excluded under paragraph 1.    The
   Commission may periodically publish lists of the categories of
   activities which it considers to be covered by this exclusion, for
   information in the Official Journal of the European Communities.
   In so doing, the Commission shall respect any sensitive commercial
   aspects the contracting entities may point out when forwarding this
    information.
                                                                       (7)
 ---pagebreak---                                   - 95 -
                                Article 7
1) The provisions of this Directive shall not apply to :
  a)   contracts awarded for purposes of re-sale or hire to third
       parties, provided that the contracting entity enjoys no special
       or exclusive right to sell or hire the subject of such contracts
       and other entities are free to sell or hire it under the same
       conditions as the contracting entity;
  b)   service contracts directly relating to the re-sale or hire
       mentioned under a).
2) The contracting entities shall notify the Commission at its request
   of all the categories of products they regard as excluded under
   paragraph 1.   The Commission may periodically publish lists of the
   categories of activities which it considers to be covered by this
   exclusion, for information in the Official Journal of the European
   Communities.   In   so  doing,   the  Commission shall  respect  any
   sensitive commercial aspects the contracting entities may point out
   when forwarding this information.
                                Article 8
1) This Directive shall not apply to contracts which        contracting
   entities exercising an activity described in Article 2(2)(d) award
   for purchases intended exclusively to enable them to provide one or
   more telecommunications services where other entities are free to
   offer the same services in the same geographical area and under
    substantially the same conditions.
 ---pagebreak---                                     - 96 -
2) The contracting entities shall notify the Commission at its request
   of any services they regard as covered by the exclusion referred to
    in paragraph 1.    The Commission may periodically publish the list
    of services which it considers to be covered by this exclusion, for
    information in the Official Journal of the European Communities.
    In so doing, the Commission shall respect any sensitive commercial
    aspects the contracting entities may point out when forwarding this
    information.
                                  Article 9
1) This Directive shall not apply to:
    a) contracts which the contracting entities listed in Annex I award
        for the purchase of water;
    b) contracts    which    the   contracting   entities   specified   in
        Annexes II, III, IV and V award for the supply of energy or of
        fuels for the production of energy.
2) The Council shall re-examine the provisions of paragraph 1 when it
    has   before   it   a  report    from  the Commission   together  with
    appropriate proposals.
                                  Article 10
This Directive shall not apply to contracts when they are declared to
be    secret  by   the   Member  State, when   their   execution  must  be
 accompanied by special security measures in accordance with the laws,
 regulations or administrative provisions in force in the Member State
 concerned or when the protection of the basic security interests of
 that State so requires.
 ---pagebreak---                                    - 97 -
                                Article 10a
The provisions of this Directive shall not apply to the award of
service contracts which contracting entities have to award to an
entity which is itself a contracting entity within the meaning of
Article 1(b) of Directive ../.../EEC (*)       pursuant to an exclusive
right established by a published law, regulation or administrative
provision which is compatible with the Treaty.
*) OJ No C 23, 31.1.1991, p. 1.
                                 Article 11
This Directive shall not apply to contracts governed by different
procedural rules and awarded:
1) pursuant to an international agreement concluded in conformity with
    the Treaty between a Member State and one or more third countries
    and covering supplies, works, services or design contests intended
    for the joint implementation or exploitation of a project by the
    signatory States; every agreement shall be communicated to the
    Commission, which may consult the Advisory Committee for Public
    Contracts   set  up  by  Council   Decision 71/306/EEC (*),   as  last
    amended by Decision 77/63/EEC (2)# or, in the case of agreements
    governing  contracts awarded by entities exercising       an activity
    defined    in   Article 2(2)(d),      the  Advisory    Committee    on
    Telecommunications Procurement referred to in Article 31;
2 ) to undertakings in a Member State or a third country in pursuance
    of an international agreement relating to the stationing of troops;
3) pursuant    to   the   particular   procedure   of   an   international
    organization
 (1) OJ No L 185, 16.8.1971, p. 15.
 (2) OJ No L    13, 15.1.1977, p. 15.
 ---pagebreak---                                  - 98 -
                              Article lia
1. This Directive shall not apply to contracts for services which
   a) a contracting entity awards to affiliated undertaking;
   b) are awarded by a joint venture formed by a number of contracting
      entities for the purpose of carrying out a relevant activity
     * within the meaning of Article 2(2) to an undertaking which is
      affiliated with one of these contracting entities;
   provided that   at least 85 % of the average turnover       of that
   undertaking arising within the Community for the preceding three
   years derives from the provision of such services to undertakings
   with which it is affiliated.
2. The contracting entities notify the Commission, at its request, the
   following information regarding the application of the provisions
   of paragraph 1 :
   -  the names of the undertakings concerned;
   -  the nature and value of the service contracts involved;
   -   such proof as may be deemed necessary by the Commission that the
      relationship between the undertaking to which the contracts are
      awarded and the contracting entity is in conformity with the
      requirements of this Article.
                               Article 12
 1)   This Directive shall apply to contracts whose estimated value,
      net of VAT, is not less than :
 ---pagebreak---                              - 99 -
   a) ECU 400 000 in the case of supply and service contracts
      awarded  by entities carrying   out  an activity defined   in
      Article 2(2)(a), (b) and (c);
   b) ECU 600 000 in the case of supply and service contracts
      awarded  by entities carrying   out  an activity defined   in
      Article 2(2)(d);
   c) ECU 5 000 000 in the case of works contracts
2) The estimated value of a service contract shall include the
   total remuneration of the service provider taking account of the
   elements specified in paragraphs 3 to 12.
3) In assessing the estimated contract value of financial services,
   the following amounts shall be taken into account:
   -  as regards insurance services, the premium payable;
   -  as  regards  banking  and  other  financial  services,  fees,
      commissions, interest and other types of remuneration.
4) In the case of supply contracts for lease, rental or hire-
   purchase, or of service contracts not indicating the total cost,
   the basis for calculating the contract value shall be:
   a) in the case of fixed-term contracts, where their term is
      twelve months or less, the estimated total value for the
      contract's duration, or, where their term exceeds twelve
      months, the contract's total value including the estimated
      residual value;
 ---pagebreak---                                  - 100 -
    b) in the case of contracts for an indefinite period or in cases
       where there is doubt as to the duration of the contracts, the
       anticipated total instalments to be paid in the first four
       years.
5)  Where a proposed supply or service contract expressly specifies
    option  clauses, the basis      for calculating the contract          value
    shall be the highest possible total purchase, lease, rental or
   'hire-purchase permissible, inclusive of the option clauses.
6)  In the case of a procurement         of supplies or services over a
    given period by means of a series of contracts to be awarded to
    one or more suppliers or of contracts which are to be renewed,
    the contract value shall be calculated on the basis of:
    a) the    total     value    of     contracts     which      had    similar
       characteristics     awarded   over   the  previous     fiscal   year  or
       twelve   months,     adjusted   where    possible     for    anticipated
       changes    in  quantity   or   value   over   the   subsequent    twelve
       months;
    b) or the aggregate value of contracts to be awarded during the
       twelve months following the first award or during the whole
       term    of    the    contract,    where     this    is     longer   than
       twelve months.
7)  The basis    for calculating     the estimated     value   of   a  contract
    including both supplies and services, shall be the total value
    of  the  supplies    and  services    regardless    of  their    respective
    values.
 ---pagebreak---                               - 101 -
 8) The basis for calculating the value of a framework agreement
    shall be the estimated maximum     value of   all the   contracts
    envisaged for the period in question.
 9) The basis for calculating the value of a works contract for the
    purposes of paragraph 1 shall be the total value of the work.
    "Work" shall mean the building and engineering activities taken
    as a whole that are intended to fulfil an economic function by
    themselves.
    In particular, where a supply, work or service is the subject of
    several lots, the value of each lot shall be taken into account
    when assessing the value referred to in paragraph 1. Where the
    aggregate value of the lots equals or exceeds the value laid
    down in paragraph 1, that paragraph shall apply to all the lots.
    However, in the case of works contracts, contracting entities
    may derogate from paragraph 1 in respect of lots whose estimated
    value net of VAT is less than ECU 1 million, provided that the
    aggregate value of those lots does not exceed 20% of the overall
    value of the lots.
10) For the purposes of paragraph 1, contracting      entities shall
     include in the estimated value of a works contract the value of
     any supplies or services necessary for the execution of the
    works which they make available to the contractor.
11) The value of supplies or services which are not necessary for
     the execution of a particular works contract may not be added to
     that of the contract with the result of avoiding application of
     this Directive to the procurement of those supplies.
 ---pagebreak---                                  - 102 -
12)   Contracting  entities   may  not   circumvent this Directive  by
      splitting contracts or using special methods of calculating the
      value of contracts.
                                Title la
                          TWO-TIER APPLICATION
                               Article 12a
Supply and works contracts and contracts which have as their object
services listed in Annex XVIA shall be awarded in accordance with the
provisions of Titles II, III and IV.
                               Article 12b
Contracts which have as their object services listed in Annex XVIB
shall be awarded in accordance with Articles 13 and 18.
                               Article 12c
Contracts which have as their object services listed in both Annexes
XVIA and XVIB shall be awarded in accordance with the provisions of
Titles II, III and IV where the value of the services listed in Annex
XVIA is greater than the value of the services listed in Annex XVIB.
Where this is not the case, they shall be awarded in accordance with
Articles 13 and 18.
                                                                       (6)
 ---pagebreak---                                   - 103 -
                                 TITLE II
                 TECHNICAL SPECIFICATIONS AND STANDARDS
                                Article 13
1) Contracting entities shall include the technical specifications in
   the general documents or the contract documents relating to each
   contract.
2) The technical    specifications shall be defined      by reference to
   European specifications where these exist.
3) In   the   absence   of   European    specifications,    the   technical
   specifications should as far as possible be defined by reference to
   other standards having currency within the Community.
4) Contracting entities shall define such further requirements as are
   necessary to complement European specifications or other standards.
   In  doing   so, they    shall   prefer   specifications   that  indicate
   performance    requirements   rather    than   design   or   description
   characteristics unless the contracting entity has objective reasons
          for considering that such specifications are inadequate for the
          purposes of the contract.
5) Technical specifications which mention goods of a specific make or
   source or of a particular process, and which have the effect of
   favouring or eliminating certain undertakings, shall not be used
   unless such specifications are indispensable for the subject of the
   contract. In particular, the indication of trade marks, patents,
 ---pagebreak---                                     - 104 -
   types,   or   specific    origin  or production     shall   be   prohibited;
   however,    such    an   indication    accompanied    by   the    words   "or
   equivalent" shall be authorized where the subject of the contract
   cannot    otherwise    be    described    by  specifications      which   are
    sufficiently precise and fully intelligible to all concerned.
6) Contracting entities may derogate from paragraph 2 if:
    a) it is technically impossible to establish satisfactorily that a
       product conforms to the European specifications;
    b) the application of paragraph 2 would prejudice the application
       of Council Directive 86/361/EEC of 24 July 1986 on the initial
       stage   of    the   .mutual   recognition    of   type    approval    for
       telecommunications      terminal    equipment(*),     or    of    Council
       Decision 87/95/EEC of 22 December 1986 on standardization in the
       field of information technology and telecommunications(2);
    c) in the context of adapting existing practice to take account of
       European    specifications,    use   of  these   specifications     would
       oblige the contracting entity to acquire supplies incompatible
       with equipment already in use or would entail disproportionate
       cost   or    disproportionate    technical    difficulty.    Contracting
       entities which have recourse to this derogation shall do so only
       as part of a clearly defined and recorded strategy with a view
       to a change-over to European specifications;
    d) the relevant European specification is inappropriate for the
       particular application or does not take account of technical
       developments     which   have   come   about   since   its   adoption.
 (1) OJ No L 217, 5.8.1986, p. 21.
 (2) OJ No L     36, 7.2.1987, p.„_3^.
 ---pagebreak---                                 - 105 -
      Contracting entities which have recourse to this derogation
      shall inform the appropriate standardizing organization, or any
      other body empowered to review the European specification, of
      the reasons why they consider the European specification to be
      inappropriate and shall request its revision;
   e) the project is of a genuinely innovative nature for which use of
      European specifications would not be appropriate.
7) Notices published pursuant to Article 16(1)(a) shall indicate any
   recourse to the derogations referred to in paragraph 6.
8) This Article shall be without prejudice to compulsory technical
   rules insofar as these are compatible with Community law.
                              Article 14
1) Contracting entities shall make available on demand to suppliers,
   contractors or service providers interested in obtaining a contract
   the technical specifications regularly referred to in their supply,
   works or service contracts or the technical specifications which
   they intend to apply to contracts covered by periodic information
   notices within the meaning of Article 17.
2) Where   such  technical  specifications   are  based  on  documents
   available to interested suppliers, contractors or service providers
   a reference to those documents shall be sufficient.
 ---pagebreak---                                   - 106 -
                                 TITLE III
                  PROCEDURES FOR THE AWARD OF CONTRACTS
                                Article 15
1) Contracting entities may choose any of the procedures described in
   Article 1(6),    provided,   subject    to  paragraph 2,     a   call   for
   competition has been made in accordance with Article 16.
2) Contracting entities may use a procedure without prior call for
   competition in the following cases:
   a) in the absence of tenders or suitable tenders in response to a
      procedure with a prior call for competition, provided that the
      original    contract   conditions    have    not   been   substantially
      changed;
   b) where  a   contract   is   purely   for  the    purpose   of  research,
      experiment, study or development and not for the purpose of
      ensuring profit or of recovering research and development costs
      and insofar as the award of such contract does not prejudice the
      competitive    award   of   subsequent    contracts    which   have   in
      particular these purposes;
   c) when,   for   technical   or   artistic    reasons,   or   for   reasons
      connected with protection of exclusive rights, the contract may
      be executed only by a particular supplier, contractor or service
      provider;
 ---pagebreak---                              - 107 -
d) insofar as is strictly necessary when, for reasons of extreme
   urgency brought about by events unforeseeable by the contracting
   entities, the time limits laid down for open and restricted
   procedures cannot be adhered to;
e) in the case of supply contracts for additional deliveries by the
   original  supplier  which   are  intended   either   as  a   partial
   replacement  of  normal  supplies   or  installations   or   as the
   extension of existing supplies or installations, where a change
   of  supplier would oblige the contracting       entity to acquire
   material having different technical characteristics which would
   result   in   incompatibility   or    disproportionate    technical
   difficulties in operation and maintenance;
f) for additional works or services not included in the project
   initially awarded or in the contract first concluded but which
   have, through unforeseen circumstances, become necessary for the
   execution of the contract, on condition that the award is made
   to the contractor executing the original contract:
   -  when such additional works or services cannot be technically
      or economically   separated  from the main contract without
      great inconvenience to the contracting entities;
      or when such additional works or services, although separable
      from the execution of the original contract, are strictly
      necessary to its later stages;
g) in the case of works contracts, for new works consisting of the
   repetition of similar works entrusted to the contractor to which
   the  same contracting   entities   awarded   an earlier    contract,
   provided that such works conform to a basic project for which a
 ---pagebreak---                                  - 108 -
   first contract was awarded after a call for competition.              As
   soon as the first project is put up for tender, notice must be
   given   that   this  procedure    might  be  adopted   and   the  total
   estimated    cost   of   subsequent   works   shall   be   taken    into
   consideration by the contracting entities when they apply the
   provisions of Article 12;
h) for supplies quoted and purchased on a commodity market;
i) for   contracts   to   be   awarded  on  the  basis  of    a  framework
   agreement,    provided     that   the   condition   referred     to   in
   Article 5(2) is fulfilled;
j) for bargain purchases, where it is possible to procure supplies
   taking   advantage   of   a particularly    advantageous    opportunity
   available for a very short space of time at a price considerably
   lower than normal market prices;
k) for    purchases    of    goods   under   particularly     advantageous
   conditions either from a supplier definitively winding up his
   business activities or from the receivers or liquidators of a
   bankruptcy, an arrangement with creditors or a similar procedure
   under national laws or regulations.
1) when the service contract concerned is part of the follow-up to
   a design contest organized in conformity with the provisions of
   this Directive and must, in accordance with the relevant rules,
   be awarded to one of the winners of that contest, provided that
   all the winners are included in the procedure.
 ---pagebreak---                                   - 109 -
                                Article 16
1) In the case of supply, works or service contracts, the call for
   competition may be made:
   a) by means of a notice drawn up in accordance with Annex XII A, B
      or C; or
   b) by means of a periodic indicative notice drawn up in accordance
      with Annex XIV; or
   c) by means of a notice on the existence of a qualification system
      drawn up in accordance with Annex XIII.
2) When  a  call   for  competition    is   made  by  means    of  a   periodic
   indicative notice:
   a) the notice must    refer   specifically to the      supplies, works or
      services   which  will   be  the    subject  of   the   contract   to  be
      awarded;
   b) the notice must indicate that the contract will be awarded by
      restricted or negotiated procedure without         further publication
      of  a notice of    a call   for competition     and   invite   interested
      undertakings to express their interest in writing;
   c) contracting entities shall subsequently invite all candidates to
      confirm their interest on the basis of detailed information on
      the   contract   concerned    before    beginning    the   selection   of
      tenderers or participants in negotiations.
 ---pagebreak---                                  - 110 -
3) When a call for competition is made by means of a notice on the
   existence of a qualification system, tenderers in a restricted
   procedure  or  participants   in a negotiated  procedure  shall  be
   selected from the qualified candidates in accordance with such a
   system.
4) in the case of design contests, the call for competition shall be
   made by means of a notice drawn up in accordance with Annex XVII.
5) The notices referred to in this Article shall be published in the
   Official Journal of the European Communities.
                               Article 17
1) Contracting entities shall make known at least once a year,by means
   of a periodic indicative notice:
   a) in the case of supply contracts, the total of the contracts for
      each product area of which the estimated value, taking into
      account the provisions of Article 12, is equal to or greater
      than ECU 750 000, and which they     intend to award over the
      following twelve months;
   b) in the case of works contracts, the essential characteristics of
      the works contracts which the contracting entities intend to
      award, the estimated     value of which  is not   less than the
      threshold laid down in Article 12(1).
   c) in the case of service contracts, the estimated total value of
      the service contracts in each of the categories of services
       listed in Annex XVI A which they intend to award over the
                                                                       (5)
 ---pagebreak---                                   - Ill -
      following 12 months, where such estimated total value, taking
      into account the provisions of Article 12, is equal to or
      greater than ECU 750 000.
2) The notice shall be drawn up in accordance with Annex XIV and
   published in the Official Journal of the European Communities.
3) Where the notice is used as a means of calling for competition in
   accordance with Article 16(1)(b), it must have been published not
   more than 12 months prior to the date on which the invitation
   referred to in Article 16(2)(c) is sent. Moreover the contracting
   entity shall meet the deadlines laid down in Article 20(2).
4) Contracting    entities   may,    in   particular,    publish   periodic
   indicative notices relating to major projects without repeating
   information previously included in a periodic indicative notice,
   provided it is clearly stated that such notices are additional
   notices.
                                Article 17a
1) Design contests shall be subject to the rules set out below.
   However, when design contests are held as a separate procedure,
   these rules are applicable only when the total amount of prizes and
   payments to participants is not less 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 territory of a
   Member State.
3) In   the  case   of   design   contests   with  a   limited   number  of
   participants,    contracting   entities   shall   apply   the  rules  of
   Article 25.
 ---pagebreak---                                   - 112 -
4) The jury shall be composed only of persons who have no financial
   connections   or  special   relationships  with   participants   in the
   contest.   Whenever   a  particular   professional    qualification   is
   required from participants in a contest, the majority of the jury
   members shall have the same qualifications.         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 the invitation for projects within the
   meaning of Annex XVII.
5) Member States may oblige contracting entities to award subsequent
   contracts to one of the winners of a design contest.
                                Article 18
1) Contracting entities which have awarded a contract       or organised a
   design contest shall communicate to the Commission, within two
   months of the award of the contract and under conditions to be laid
   down by the Commission in accordance with the procedure laid down
   in Article 32, the results of the awarding procedure by means of a
   notice drawn up in accordance with Annex XV or Annex XVIII.
2) Except where paragraph 4 is applied, information provided under
   Section I of Annex XV or under Annex XVIII shall be published in
   the   Official   Journal   of   the  European   Communities.    In  this
    connection the Commission shall respect any sensitive commercial
    aspects the contracting entities may point out when forwarding this
    information in connection with points 6 and 9 of Annex XV.
3 ) The    contracting     entities    applying     the    provisions    of
   Article 15(2)(b)    or    awarding   service    contracts    listed   in
 ---pagebreak---                                 - 113 -
   Annex XVI B, may, concerning point 3 of Annex XV, only mention the
   main title thereof within the meaning of the classification of
   Annex XVI A.
4) Information provided under Section II of Annex XV must not be
   published  or  mentioned   in  the   periodic   reports  except,   in
   aggregated form, for statistical purposes.
                              Article 19
1) The contracting entities must be able to supply proof of the date
   of dispatch of the notices referred to in Articles 15 to 18.
2) The notices shall be published in full in their original language
   in the Official Journal of the European Communities and in the TED
   data bank.   A summary of the important elements of each notice
   shall  be  published   in  the  other   official  languages  of   the
   Community, the original text alone being authentic.
3) The Office for Official Publications of the European Communities
   shall publish the notices not later than twelve days after their
   dispatch.  In exceptional cases it shall endeavour to publish the
   notice referred to in Article 16(1)(a) within five days in response
   to a request by the contracting entity and provided the notice has
   been sent to the Office by electronic mail, telex or telefax.    Each
   edition of the Official Journal of the European Communities which
   contains one or more notices shall reproduce the model notice or
   notices on which the published notice or notices are based.
4) The cost of publication of the notices in the Official Journal of
   the European Communities shall be borne by the Communities.
5) Contracts or design contests in respect of which a notice is
 ---pagebreak---                                    - 114 -
   published  in  the  Official     Journal   of   the   European   Communities
   pursuant to Article 16(1) or Article 16(4) shall not be published
   in any other way before that notice has been dispatched to the
   Office for Official Publications of the European Communities.           Such
   publication shall not contain information other than that published
   in the Official Journal of the European Communities.
                                  Article 20
1) In open procedures the time limit for the receipt of tenders shall
   be fixed by contracting entities at not less than 52 days from the
   date of dispatch of the notice.       This time limit may be shortened
   to 36 days where contracting entities have published a notice in
   accordance with Article 17(1).
2) In restricted procedures and in negotiated procedures with a prior
   call for competition, the following arrangements shall apply:
   a) the  time  limit    for   receipt  of   requests    to   participate,  in
      response    to    a     notice    published      in    accordance    with
      Article 16(1)(a)     or   in   response    to   an   invitation   from  a
      contracting entity in accordance with Article 16(2)(c), shall,
      as a general    rule, be at least       five weeks     from the date of
      dispatch of the notice and shall in any case not be less than
      the time limit for publication laid down in Article 19(3) plus
      10 days;
   b) the time limit for receipt of tenders may be fixed by mutual
      agreement  between     the   contracting     entity   and   the  selected
      candidates, provided that all tenderers are given equal time to
      prepare and submit tenders;
 ---pagebreak---                                   - 115 -
   c) where it is not possible to reach agreement on the time limit
      for the receipt of tenders, the contracting entity shall fix a
      time  limit   which  shall, as    a   general rule, be    at   least
      three weeks and shall in any case not be less than 10 days from
      the date of the invitation to tender; the time allowed shall be
      sufficiently long to take account in particular of the factors
      mentioned in Article 22(3).
                                Article 21
In the contract documents, the contracting entity may ask the tenderer
to indicate in his tender any share of the contract he may intend to
subcontract to third parties.
This indication shall be without prejudice to the question of the
principal contractor's responsibility.
                                Article 22
1) Provided  they have been requested       in good  time, the contract
   documents and supporting documents must be sent to the suppliers,
   contractors or service providers by the contracting entities as a
   general rule within six days of receipt of the application.
2) Provided it has been requested in good time, additional information
   relating  to   the  contract   documents   shall be  supplied   by the
   contracting entities not later than six days before the final date
   fixed for receipt of tenders.
3) Where tenders require the examination of voluminous documentation
   such as lengthy technical specifications, a visit to the site or an
 ---pagebreak---                                   - 116 -
   on-the-spot inspection of the documents supporting the contract
   documents,   this   shall   be   taken   into   account   in fixing  the
   appropriate time limits.
4) Contracting    entities    shall    invite    the   selected  candidates
   simultaneously and in writing.       The letter of invitation shall be
   accompanied by the contract documents and supporting documents.       It
   shall include at least the following information:
   a) the   address   from   which    any  additional    documents  can  be
      requested, the final date for such requests and the amount and
      methods of payment of any sum to be paid for such documents;
   b) the final date for receipt of tenders, the address to which they
      must be sent and the language or languages in which they must be
      drawn up;
   c) a reference to any tender notice published;
   d) an indication of any document to be annexed;
   e) the criteria for the award of the contract if these are not
      given in the notice;
   f) any other special condition for participation in the contract-
5) requests for participation in contracts and invitations to tender
   must be made by the most rapid means of communication possible.
   When requests to participate are made by telegram, telex, telefax,
   telephone or any electronic means, they must be confirmed by letter
   dispatched before the expiry of the time limit referred to in
   Article 20(1) or of the time limit set by contracting entities
   pursuant to Article 20(2).
 ---pagebreak---                                   - 117 -
                                Article 23
1) The contracting entity may state in the contract documents, or be
   obliged by a Member State so to do, the authority or authorities
   from which a tenderer may obtain the appropriate information on the
   obligations relating to the employment protection provisions and
   the working conditions which are in force in the Member State,
   region or   locality    in which the works or services are to be
   executed or performed and which shall be applicable to the works
   carried  out   or    the  services   performed   on  site  during   the
   performance of the contract.
2) A contracting entity which supplies the information referred to in
   paragraph 1 shall request the tenderers or those participating in
   the contract procedure to indicate that they have taken account,
   when  drawing   up their tender, of the obligations relating to
   employment protection provisions and the working conditions which
   are in force in the place where the work or the service is to be
   carried out or performed.     This shall be without prejudice to the
   application   of   the provisions   of Article 27(5) concerning     the
   examination of abnormally low tenders.
                                 TITLE IV
                    QUALIFICATION, SELECTION AND AWARD
                                Article 24
1) Contracting entities which so wish may establish and operate a
   system  of   qualification   of   suppliers,   contractors or   service
   providers.
 ---pagebreak---                                   - 118 -
2) The system, which may involve different qualification stages, shall
   operate  on   the  basis   of  objective  rules   and  criteria   to be
   established   by the   contracting   entity.   The  contracting   entity
   shall  use  European    standards   as  a  reference   where   they  are
   appropriate.   The rules and criteria may be updated as required.
3) The rules and criteria for qualification shall be made available on
   request to interested suppliers, contractors or service providers.
   The updating of these criteria and rules shall be communicated to
   the interested suppliers, contractors and service providers.       Where
   a contracting entity considers that the qualification system of
   certain third entities or bodies meet its requirements, it shall
   communicate   to  interested    suppliers,   contractors   and   service
   providers the names of such third entities or bodies.
4) Contracting entities shall inform applicants of their decision as
   to qualification within a reasonable period.       If the decision will
   take   longer   than   six months    from   the   presentation    of  an
   application, the contracting entity shall inform the applicant,
   within two months of the application, of the reasons justifying a
   longer period and of the date by which its application will be
   accepted or refused.
5) In reaching their decision as to qualification or when the criteria
   and rules are being updated, contracting entities may not:
      impose conditions of an administrative, technical or financial
      nature on some suppliers, contractors or service providers that
      are not imposed on others;
      require tests or proof that duplicate objective evidence already
      available.
                                                                            (4)
 ---pagebreak---                                   - 119 -
6) Applicants whose qualification is refused shall be informed of this
   decision and the reasons for refusal.      The reasons must be based on
   the criteria for qualification referred to in paragraph 2.
7) A written record of qualified suppliers, contractors or service
   providers shall be kept, and it may be divided into categories
   according to the type of contract for which the qualification is
   valid.
8) Contracting entities may bring the qualification of a supplier,
   contractor or service provider to an end only for reasons based on
   the criteria referred to in paragraph 2.        The intention to bring
   qualification   to  an  end   must  be   notified   in writing   to the
   supplier, contractor or service provider beforehand, together with
   the reason or reasons justifying the proposed action.
9) The qualification system shall be the subject of a notice drawn up
   in accordance with Annex XIII and published in the Official Journal
   of  the   European   Communities,    indicating   the  purpose   of  the
   qualification system and the availability of the rules concerning
   its operation.    Where the system is of a duration greater than
   three years, the notice shall be published annually.          Where the
   system is of a shorter duration, an initial notice shall suffice.
                                Article 25
1) Contracting   entities    which   select    candidates   to  tender   in
   restricted procedures or to participate in negotiated procedures
   shall do so according to objective criteria and rules which they
   lay  down   and  which   they   shall  make   available   to  interested
   suppliers, contractors or service providers.
 ---pagebreak---                                    - 120 -
2) The criteria used may include the criteria for exclusion specified
   in   Article 23    of  Directive 71/305/EEC    and    in   Article 20   of
   Directive 77/62/EEC.
3) The criteria may be based on the objective need of the contracting
   entity to reduce the number of candidates to a level which is
   justified by the need to balance the particular characteristics of
   the contract award procedure and the resources required to complete
   it.   The number of candidates selected must, however, take account
   of the need to ensure adequate competition.
                                Article 25a
Should entities require the production of certificates drawn up by
independent bodies for attesting conformity of the service provider to
certain quality     assurance standards, they     shall refer to quality
assurance systems based on the relevant EN 29000 European standards
series   certified   by  bodies   conforming  to the     EN   45000 European
Standards series. Entities shall recognise equivalent certificates
from bodies established in other Member States.
They shall also accept other evidence of equivalent quality assurance
measures    from   service   providers   who   have   no    access  to   such
certificates, or no possibility of obtaining them within the relevant
time limits.
                                 Article 26
1) Groupings of suppliers, contractors or service providers shall be
   permitted to tender or negotiate.      The conversion of such groupings
    into a specific legal form shall not be required in order to submit
 ---pagebreak---                                 - 121 -
   a tender or to negotiate, but the grouping selected may be required
   so to convert itself once it has been awarded the contract where
   such conversion is necessary for the proper performance of the
   contract.
2) Candidates or tenderers who under the law of the Member State in
   which they are established, are entitled to carry out the relevant
   service activity, shall not be rejected on the sole grounds that
   under the law of the Member State in which the contract is awarded
   they would have been required to be either a natural or a legal
   person.
3) Legal persons may be required to indicate in the tender or the
   request  for participation, the names and relevant professional
   qualifications of the staff to be responsible for the performance
   of the service.
                               Article 27
1) Without prejudice to national laws, regulations or administrative
   provisions on the remuneration of certain services, the criteria on
   which the contracting entities shall base the award of contracts
   shall be:
   a) the most economically    advantageous tender, involving various
      criteria  depending  on   the   contract  in  question, such as:
      delivery or completion date, running costs, cost-effectiveness,
      quality, aesthetic   and   functional  characteristics, technical
      merit, after-sales service and technical assistance, commitments
      with regard to spare parts, security of supplies and price; or
   b) the lowest price only.
 ---pagebreak---                                 - 122 -
2) the case referred to in paragraph 1(a), contracting entities shall
   state in the contract documents or in the tender notice all the
   criteria they intend to apply to the award, where possible in
   descending order of importance.
3) Where the criterion for the award of the contract is that of the
   most economically advantageous tender, contracting entities may
   take account of variants which are submitted by a tenderer and meet
   the minimum specifications required by the contracting entities.
   Contracting entities shall state in the contract documents the
   minimum specifications to be respected by the variants and any
   specific requirements for their presentation.    Where variants are
   not permitted, they shall so indicate in the contract documents.
4) Contracting entities may not reject the presentation of a variant
   on the sole ground that it was drawn up on the basis of technical
   specifications defined with reference to European specifications or
   to national technical specifications recognized as complying with
   the    essential     requirements    within    the     meaning    of
   Directive 89/106/EEC.
5) If, for a given contract, tenders appear abnormally low in relation
   to the services, the contracting entity shall, before it may reject
   those  tenders, request    in writing  details  of  the  constituent
   elements of the tender which it considers relevant and shall verify
   those  constituent  elements  taking  account  of  the  explanations
   received.  It may set a reasonable period within which to reply.
   The contracting entity may take into consideration explanations
   which are justified on objective grounds relating to the economy of
   the construction or production method, or the technical solutions
 ---pagebreak---                                 - 123 -
   chosen, or the exceptionally favourable conditions available to the
   tenderer for the execution of the contract, or the originality of
   the product or the work proposed by the tenderer.
   Contracting entities may reject tenders which are abnormally low
   owing to the receipt of State aid only if they have consulted the
   tenderer and if the tenderer has not been able to show that the aid
   in  question  has been   notified   to the   Commission   pursuant  to
   Article 93(3) of   the Treaty    or has   received   the  Commission's
   approval.  Contracting entities which reject a tender under these
   circumstances shall inform the Commission thereof.
6) In the case of a tender for the award of a service contract
   submitted  by  a public   authority   or a public    undertaking, the
   contracting entity shall in particular enquire whether the tender
   is influenced by public funds allocated for
   a) the setting-off of operating losses ;
   b) the provision of capital ;
   c) non-refundable grants, or loans on privileged terms;
   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 used ;
   f) compensation   for  financial   burdens   imposed   by  the  public
      authorities.
   It shall inform the Commission if it intends to award a contract to
   a   tenderer   whose  tender    is   influenced   by   any   of  these
   characteristics.
 ---pagebreak---                                   - 124 -
                                Article 28
1) Article 27(1) shall not apply where a Member State bases the award
   of contracts on other criteria within the framework of rules in
   force at the time of adoption of this Directive whose aim is to
   give preference to certain tenderers, provided the rules invoked
   are compatible with the Treaty.
2) Without prejudice to paragraph 1, this Directive shall not prevent,
   until 31 December 1992, the application of national provisions in
    force on the award of supply or works contracts which have as their
   objective the reduction of regional disparities and the promotion
   of job creation in disadvantaged regions or those suffering from
    industrial decline, provided that the provisions concerned are
    compatible with the Treaty and with the Community's international
    obligations.
                                Article 29
1) This Article shall apply to tenders comprising products originating
    in third countries with which the Community has not concluded,
    multilaterally or bilaterally, an agreement ensuring comparable and
    effective access for Commumnity undertakings to the markets of
    those  third  countries.   It   shall  be without  prejudice   to the
    obligations of the Community or its Member States in respect of
    third countries.
2) Any tender made for the award of a supply contract may be rejected
    where   the  proportion  of    the   products originating   in   third
    countries, as determined     in accordance with Council Regulation
    (EEC) No 802/68 of 27 June 1968      on the common definition of the
    concept   of  the   origin    of   goods (*),  as  last   amended   by
 (1) OJ No L 148, 28. 6.1968, p.     1.
 ---pagebreak---                                       - 125 -
   Regulation (EEC) No 3860/87 (*) exceeds 50% of the total value of
   the products constituting the tender.             For the purposes of this
   Article,    software used      in the     equipment    of telecommunications
   networks shall be considered as products.
3) Subject to paragraph 4, where two or more tenders are equivalent in
   the light of the award criteria defined in Article 27, preference
   shall be given to the tenders which may not be rejected pursuant to
   paragraph 2.     The prices      of these tenders        shall  be   considered
   equivalent     for    the  purposes     of   this   Article,    if   the  price
   difference does not exceed 3%.
4) However, a tender shall not be preferred to another pursuant to
   paragraph    3 where its acceptance would oblige the contracting
   entity    to    acquire    material     having    technical    characteristics
   different     from     those    of    existing     material,     resulting   in
    incompatibility      or   technical     difficulties      in  operation    and
   maintenance or disproportionate costs.
5) For the purposes in this Article, of determining the proportion
    referred   to   in paragraph      2 of    products    originating    in third
    countries, those third        countries to which the benefit of the
    provisions    of   this   Directive    has been     extended    by  a Council
    Decision in accordance with paragraph 1 shall not be taken into
    account.
6) The Commission shall submit an annual report to the Council (for
    the first time in the second half of 1991) on progress made in
    multilateral     or    bilateral    negotiations     regarding     access  for
    Community undertakings to the markets of third countries in the
    fields   covered     by  this    Directive,    on   any   result   which  such
    negotiations     may   have  achieved,     and   on  the   implementation   in
    practice of all the agreements which have been concluded.
 (1) OJ No L 363, 23.12.1987, p. 30.
 ---pagebreak---                                 - 126 -
   The Council, acting by a qualified majority on a proposal from the
   Commission, may amend the provisions of this Article in the light
   of such developments.
                              Article 29a
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 service contracts in third countries.
2) The Commission shall report to the Council before 31 December 1992
   and periodically thereafter on the opening-up of service contracts
   in third countries and on the state of negotiations with these
   countries on this subject, particularly within the GATT framework.
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 the award of service
   contracts,
   a) does   not   grant   Community  undertakings   effective  access
      comparable to that granted by the Community to undertakings from
      that country,
   b) does not grant Community undertakings national treatment or the
      same competitive opportunities as are available to national
      undertakings, or
   c) grants undertakings from other third countries more favorable
      treatment than Community undertakings,
                                                                       (3)
 ---pagebreak---                                   - 127 -
  the Commission may initiate negotiations in order to remedy the
  situation.
4) Under the conditions referred to in paragraph 3, the Commission may
   decide, in addition to action taken pursuant to that paragraph,
   that the award of service contracts to
   a) undertakings    governed  by   the  law of   the    third    country  in
       question,
   b) undertakings affiliated to the undertakings specified in (a) and
       having their registered office in the Community but having no
       effective   and    continuous   link   with    the     economy   of   a
       Member State,
   c) undertakings    submitting   tenders which    have    as their    object
       services originating in the third country in question,
   may be suspended or restricted during a period to be determined in
   the   decision.   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 32(5), (6) and (7). Where the
   Commission is asked to take action by a Member State, it shall take
    a decision within a maximum period of three months of receipt of
   the request.
    It shall notify the Council and the Member States of the decisions
    taken.
    Any Member State may refer the Commission's decision to the Council
    within  a maximum    period   of  four weeks   from    the   date  of  the
    decision.
 ---pagebreak---                                    - 128 -
   The Council, acting by qualified majority, may take a different
   decision within a maximum period of three months of such referral.
5) This   Article   is without    prejudice  to  the  obligations   of  the
   Community in relation to non-member countries.
                                   TITLE V
                              FINAL PROVISIONS
                                 Article 30
1) The value in national currencies of the thresholds specified in
   Article 12 shall in principle be revised         every two years with
   effect from the date provided for in Directive 77/62/EEC as far as
   the thresholds for supply and service contracts are concerned and
   from the date provided for in Directive 71/305/EEC as far as the
   thresholds for works contracts are concerned.        The calculation of
   such value shall be based on the average daily values of those
   currencies expressed in ECU over the 24 months terminating on the
   last   day  of   October  preceding   the  revision   with  effect  from
   1 January.    The values shall be published in the Official Journal
   of the European Communities at the beginning of November.
2) The method     of  calculation   laid down   in paragraph   1 shall be
   examined pursuant to the provisions of Directive 77/62/EEC.
                                 Article 31
1) The Commission shall be assisted, as regards procurement by the
    contracting   entities exercising    an activity   defined  in Article
    2(2)(d), by a Committee of an advisory nature which shall be the
 ---pagebreak---                                    - 129 -
   Advisory     Committee    on     Telecommunications     Procurement.   The
   Committee shall be composed of representatives of the Member States
   and chaired by a representative of the Commission.
2) The Commission shall consult this Committee on:
   a) amendments to Annex X;
   b) revision of the currency values of the thresholds;
   c) the   rules   concerning    contracts   awarded   under  international
       agreements;
   d) the review of the application of this Directive;
   e) the procedures described       in Article 32(2) relating to notices
       and statistical accounts;
                                  Article 32
1) Annexes I to X shall be revised in accordance with the procedure
   laid down in paragraphs 3 to 7 with a view to ensuring that they
   fulfill the criteria of Article 2.
2) The    conditions    for   the    presentation,    dispatch,    reception,
   translation, keeping and distribution of the notices referred to in
   Articles 16, 17, and 18 and of the statistical reports provided for
    in   Article 34,   shall    be   established,   for    the  purposes   of
   simplification,    in  accordance    with  the  procedure   laid  down  in
   paragraphs 3 to 7.
3) The revised Annexes and the conditions referred to in paragraphs 1
    and 2 shall be published in the Official Journal of the European
   Communities.
 ---pagebreak---                                  - 130 -
4) The Commission shall be assisted by the Advisory Committee for
   Public Contracts and, in the case of the revision of Annex X, by
   the Advisory Committee on Telecommunications Procurement provided
   for in Article 31 of this Directive.
5) The Commission representative shall submit to the Committee a draft
   of the decisions to be taken.      The Committee shall deliver its
   opinion on the draft within a time limit which the Chairman may lay
   down according to the urgency of the matter, if necessary by taking
   a vote.
6) The opinion shall be recorded in the minutes; in addition, each
   Member State shall have the right to ask for its position to be
   recorded in the minutes.
7) The   Commission  shall  take  the  utmost  account  of  the  opinion
   delivered by the Committee.    It shall inform the Committee of the
   manner in which its opinion has been taken into account.
                               Article 33
1) Contracting entities shall keep appropriate information on each
   contract which shall be sufficient to permit them at a later date
   to justify decisions taken in connection with:
   a) the qualification and selection of contractors, suppliers or of
       providers of services and award of contracts;
   b) recourse to derogations from the use of European specifications
       in accordance with Article 13(6);
    c) use   of  procedures  without  prior   call  for  competition  in
       accordance with Article 15(2);
 ---pagebreak---                                     - 131 -
   d) non-application of Titles II, III and IV in accordance with the
       derogations provided for in Title I.
2) The information shall be kept for at least 4 years from the date of
    award of the contract so that the contracting entity will be able,
    during that period, to provide the necessary information to the
    Commission if it so requests.
                                  Article 34
1) The Member States shall ensure that each year, in accordance with
    the arrangements to be laid down under the procedure provided for
    in Article 32(3) to (7), the Commission receives a statistical
    report concerning the total value, broken down by Member State and
    each category of activity to which Annexes I to X refer, of the
    contracts awarded below the thresholds defined in Article 12 which
    would, if they were not below those thresholds, be covered by this
    Directive.
2) Arrangements    shall   be   fixed  in accordance  with  the  procedure
    referred to in Article 32 to ensure that:
    a) in the interests of administrative simplification, contracts of
        lesser value may be excluded, provided that the usefulness of
        the statistics is not jeopardized;
    b) the    confidential    nature   of   the information   provided  is
        respected.
                                  Article 35
 1) Article 2(2) of Directive 77/62/EEC is hereby replaced by the
     following:
 ---pagebreak---                                  - 132 -
   "2.This Directive shall not apply to:
      a) contracts awarded in the fields referred to in Articles 2, 7,
         8 and 9 of Council Directive 90/531/EEC of 17 September 1990
         on the procurement procedures of entities operating in the
         water, energy, transport and telecommunications sectors(*) or
         fulfilling  the   conditions    in  Article   6(2)   of  the   said
         Directive;
      b) supplies which are declared secret or when their delivery
         must   be  accompanied    by   special    security    measures   in
         accordance  with   the   laws,   regulations   or   administrative
         provisions in force in the Member State concerned or when the
         protection of the basic interests of that State's security so
         requires.
     (*) OJ No L 297, 29.10.1990, p.l."
2) Article 3(4) and (5) of Directive 71/305/EEC is hereby replaced by
   the following:
   "4.This Directive shall not apply to contracts awarded in the
   fields referred to in Articles 2, 7, 8 and 9 of Council Directive
   90/531/EEC of 17 September 1990 on the procurement procedures of
   entities   operating    in   the    water,    energy,    transport    and
   telecommunications   sectors (*)   or   fulfilling the    conditions   in
   Article 6(2) of the said Directive.
  (*) OJ No L 297, 29.10.1990, p.l."
 ---pagebreak---                                    - 133 -
                                 Article 36
Not later than four years after the application of this Directive, the
Commission, acting in close cooperation with the Advisory Committee
for Public Contracts, shall review the manner in which this Directive
has operated and its field of application and if necessary, it shall
make further proposals to adapt it, in the light of developments and
the level of competition. In the case of entities exercising an
activity defined in Article 2(2)(d), the Commission shall act in close
cooperation    with   the  Advisory    Committee    on   Telecommunications
Procurement.
                                 Article 37
1) Member States shall adopt the measures necessary to comply with the
    provisions relating to works and supply contracts of this Directive
    by  1  July   1992. They    shall   forthwith   inform  the  Commission
    thereof.
    Member States may stipulate that the measures referred to shall
    apply only from 1 January 1993.
 2) Member   States  shall   apply   the   measures   relating  to  service
    contracts by 1 January 1993.
 3) Nevertheless, in the case of the Kingdom of Spain, 1 January 1993
    shall be replaced by 1 January         1996. As regards the Hellenic
    Republic and the Portuguese Republic, 1 January          1993 shall be
    replaced by 1 January 1998.
 ---pagebreak---                                   - 134 -
4) Council Recommendation 84/550/EEC of 12 November 1984 concerning
   the first phase of opening up access to public telecommunications
   contracts (1)  shall cease to have effect as from the date on which
   this Directive is applied by the Member States.
                                Article 37a
When Member States adopt the provisions referred to in Article 37
these   shall  contain   a  reference   to  this   Directive  or  shall be
accompanied   by   such   reference   at   the   time  of   their  official
publication. The procedure for such reference shall be adopted by the
Member States.
                                 Article 38
Member States shall communicate to the Commission the text of the main
provisions    of    national    law,   whether     laws,   regulations   or
administrative provisions, which they adopt in the field governed by
this Directive.
                                 Article 39
This Directive is addressed to the Member States.
Done at Brussels,
                                             For the Council
                                               The President
 (1)   OJ No L 298, 16.11.1984, p. 51.
 ---pagebreak---                                  - 135 -
                               FINANCIAL STATEMENT
1.  Title of opérât ion
    Proposal for a Council Directive amending Directive 90/531/EEC on the
    procurement procedures of entities operating in the water, energy,
    transport and telecommunications sectors.
2.  Budget heading involved:     B5-304
3.  Legal basis
    Articles 52, 57(2), 66, 100a and 113 of the EEC Treaty.
4.  Description of operation
    4.1 Specific oblectives of operation
         Opening    up of    public    procurement  in services  through  the
         harmonization of national        rules for the award of contracts;
         transparency of procedures as regards the preparation of contracts,
         advertising of tenders and the results of the award procedures.
    4.2 Durât ion
          Indefinite, although decisions are taken specifically every year.
     4.3 Target population
         Operators inside and outside the Community.
5.   Classification of expenditure
     Non-compulsory.
     Non-di fferent iated appropr iat ions.
 6.  Type of expenditure
     See point 7.1.
 7.  Financial   impact
     7.1 Method of calculation
         The figures mentioned below show the cost of approximately 1 500
          notices    in 1993, especially notices on the existence of a
          qualification system and notices on contracts awarded (tender
          notices to a lesser extent)
 ---pagebreak---                              - 136
       and approximately 10 000 notices in 1994 (increase in the number of
       periodic information notices and notices on contracts awarded).
       In the Supplement     to the Official     Journal of the European
       Communities (Series S ) , each page will contain two notices. The
       Directive will therefore mean an extra 750 pages in 1993 and 5 000
       in 1994. Since each page costs ECU 160.48, the expenditure
       entailed by the Directive will be:
       ECU             in 1993, and
       ECU             in 1994.
       However, it is difficult to quantify the additional expenditure
       resulting from the implementation of the Directive. The programme
       for opening up public procurement comprises several measures which
       will enter into force progressively and which involve additional
       expenditure. Moreover, contracting authorities covered by the
       directives already in force are tending increasingly to fulfil
       their advertising obligations. Compliance with the advertising
       rules    will  also  be   improved    in the   years   ahead  by   the
        implementation in all Member States of Community rules ensuring a
       minimum of legal protection for firms which believe they have been
       discriminated against by contracting authorities' decisions.
        In addition, the Commission       is in the process of      launching
        important measures to reduce further the costs of the Supplement,
       e.g. by introducing fully standardized notices.
        The additional expenditure described above will be taken into
        account in the budget forecasts submitted under the annual budget
        procedure.
   7.2 Proportion of mini-budget   in total cost of operation
        No mini-budget.
   7.3 Indicative schedule (commitment appropriations)
        Not applicable (specific measure).
8. Anti-fraud provisions planned in the proposal for the operation
   The usual general provisions laid down by Financial Control.
9. Elements of cost-effectiveness analysis
   9.1 Assessment and analysis of objectives
        Public supply, works and services contract notices communicated by
        the Member States pursuant to Community directives or by certain
 ---pagebreak---                          - 137 -
    non-member countries (in particular, Japan, the United States and
    the EFTA countries) under the protocol concluded within the GATT
    are published    in the S series of the OJ (Supplement) after
    adaptation and translation.
    The Supplement will be considerably expanded in the years ahead,
    since public procurement is an essential part of the large single
    market (1992). The Community directives will be improved and
    extended to new sectors.
    Because of the large single market, the Supplement will expand
    faster than the other series of the Official Journal. It therefore
    seemed appropriate to enter the appropriations for the Supplement
     in Part B of the budget (Chapter 5-30, which is devoted to the
     internal market).
9.2 Grounds for the operation
    Explicit consequence of Council directives.
9.3 Evaluât ion
    See point 7.1.
 ---pagebreak---                                   - 138 -
               FICHE D'IMPACT SUR LA COMPETITIVE ET L'EMPLOI
i. Titre de la proposition
Proposition de Directive modifiant la Directive 90/531/CEE relative aux
procédures de passation des marchés dans les secteurs de l'eau, de
l'énergie, des transports et des télécommunications.
II. Quelle est la lust IfIcatIon principale de la mesure?
La proposition de directive étend le régime de la directive 90/531/CEE aux
services et vise à ce que les procédures de passation de marchés de
services soient transparantes, et que les soumissionnaires de tous les
Etats membres soient traités d'une manière non-dlscrimlnatoire.
III. Caractéristiques des entreprises concernées
En oartlcul1er:
Y-a-t-ll un grand nombre de PME?
Les prestataires de certains services sont dans de nombreux cas des PME.
Certains marchés couverts par la directive visent des services qui sont
réservés, dans certains Etats membres, à des professions libérales comme
les architectes.
Note-t-on des concentrations dans des réglons
-  éllglbles aux aides régionales des E.M.?
   Non
-  élIglbles au Feder?
   Non
IV. Quelles sont les obligations Imposées directement aux entreprises?
Aucune obligation n'est Imposée aux prestataires de services.
V. Quelles sont les obligations susceptibles d'être Imposées Indirectement
   aux entreprises via les autorités locales?
Néant
VI. Y-a-t-tl des mesures spéciales pour les PME? Lesquelles?
La proposition contient des éléments Importants visant à:
-   encourager la sous-traitance par une clause permettant aux entités
   adjudlcatrIces de tenir compte de la sous-traitance prévue par les
   soumissionnaires (Article 21)
 ---pagebreak---                                         139 -
-      restreindre la concurrence de la part des grandes entreprises, en ce qui
      concerne    la prestation de services réservés à des professions
      déterminées (Article 26 paragraphe 2 ) , et en ce qui concerne la prise en
      compte de variantes (Article 27 paragraphe 3 ) .
En ce qui concerne les critères de sélection, la directive prévoit, en
outre       les dispositions également prévues pour        les travaux et     les
fournitures, des critères particulièrement favorables aux PME et aux
professions       libérales:   le savoir   faire    Intellectuel,   l'efficacité,
l'expérience et la fiabilité.
V I I . Quel est   l'effet prévisible
a) sur la compétitivité des entréprises?
      La mesure vise a renforcer la compétitivité des prestataires de services
      de l'ensemble des Etats membres.
b) sur I'emploi?
      Les conséquences sur l'emploi, sont susceptibles de varier d'un secteur
      de services à l'autre, mais peuvent toutefois être considérées comme
       I Imitées.
VIII. Les partenaires sociaux ont-Ils été consultés? Quels sont leurs avis?
Les consultations ont lieu par la vole du Comité consultatif pour
 l'ouverture des marchés publics, au sein duquel sont représentés et
 l'Industrie et la Confédération Européenne des Syndicats. Les avis énoncés
par les membres du Comité sont largement favorables.
 ---pagebreak---  ---pagebreak---  ---pagebreak---                                                                      ISSN 02S4-1475
                                                              C0M(91) 347 final
                                                       DOCUMENTS
EN                                                                              06
                                Catalogue number : CB-CO-91-481-EN-C
                                                             ISBN 92-77-76914-9
Office for Official Publications of the European Comrrmmties
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