CELEX: 51987PC0233
Language: en
Date: 1987-05-27
Title: Alteration of the Proposal for a COUNCIL DIRECTIVE amending Directive 77/62/EEC relating to the coordination of procedures on the award of public supply contracts and deleting certain provisions of Directive 80/767/EEC (submitted by the Commission pursuant to the second paragraph of Article 149 of the EEC Treaty)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (87) 233
Vol. 1987/0153
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 ---pagebreak---  COMMISSION OF THE EUROPEAN COMMUNITIES
                                                        /
                                                      COM(87 ) 233 final
                                                      Brussels , 27 May  1987
                                     Alteration of the
                                       Proposai for a
                                     COUNCIL DIRECTIVE
     amending Directive 77/ 62 / EEC relating to the coordination of proce¬
                 dures on the award of public supply contracts and
                deleting certain provisions of Directive 80/ 767/ EEC
                    ( submitted by the Commission pursuant to the
                           second paragraph of Article 149
                                    of the EEC Treaty )
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 ---pagebreak---                                         A
Explanatory Mémorandum
I.  General considérations
    In June 1986 the Commission submitted to the Council a proposal for a
    Directive amending Directive 77/ 62 / EEC relating to the coordination of
    procedures on the award of public supply contracts and deleting
    certain provisions of directive 80 / 767/ EEC ( 1 ). This proposal
    anticipated to a certain extent on the outcome of the renegotiations
    of the GATT Agreement on Government Procurement .
    In December 1986 , the renegotiation of the GATT Government Procurement
    Agreement has resulted in a number of modifications which the
    Community has accepted ad referendum . These modifications are
    compiled in a GATT-protocole of 2 February 1987 . Those points which
    were not yet covered by the Commission proposals of June 1986 need to
    be added to these proposals .
    Particular points concerned are
    - the inclusion of other types of contracts such as lease, rental ,
      hire purchase , and options to buy,
    - the revision of the threshold which has been reduced under the GATT
      Agreement from 150.000 SDR to 130.000 SDR .
    - the revision of calculation methods for the threshold .
    In addition , the Community has offered to unilaterally reduce the
    threshold, following the conclusions adopted by a GATT Panel according
    to which the exclusion of the value-added tax in the contract value
    was not in conformity with the GATT Code .
    Moreover, it is appropriate to take over, in Directive 77/62 / EEC , the
    reporting and information requirements laid down in Article 5 of
    Directive 80 / 767 / EEC .
    The inclusion of these points in the modifications of Directive
    77/62/ EEC requires to modify the initial Commission proposals as
    explained below .
 ---pagebreak---                                               2 -
II . Analysis of the Articles
     New Article 2
     By way of this Article , the field of application of the Directive as
     laid down in its Article 1(a ) will be extended to the other types of
     contracts .
     Modification of Article 3 which becomes Article 4
     The reporting requirements laid down in Article 4 paragraphe 2 ( d ) as
     in the initial Commission proposals should be extented so as to have
     the same scope as those in Article 5 of directive 80 / 767 / EEC .
     New Article 5
     By way of the proposed modifications , the thresholds of Directive
     80 / 767 / EEC and of directive 77 / 62 / EEC will be comprised in one clause ,
     the GATT-threshold will be adjusted and the new calculation methods
     will be introduced .
     As a consequence . Articles 2 and 3 of Directive 80 / 767 / EEC have to be
     deleted .
     Modification of Article 8 which becomes Article 10
     The modification of the time-limit for the receipt of requests to
     participate , in the case of restricted and negotiated procedures ,
     follows from the revision of the corresponding time-limit in the GATT
     Agreement .
     Modification of Article 14 which becomes Article 16
     The additional deletion of Article 4 of Directive 80 / 767 / EEC is
     necessary because Article 6 paragraph 1(f ) of Directive 77 / 62 / EEC
     which is under reference in Article 4 will be deleted according to the
     initial Commission proposals .
 ---pagebreak---                                            - 3 -
                                  Alteration of    the
                                     Proposai for a
                                   COUNCIL DIRECTIVE
  amending Directive 77 / 62 / EEC relating to the coordination of procedures on
           the award of public supply contracts and deleting certain
                       provisions of directive 80 / 767 / EEC
  A new recital is added between the fourth       , .> and fifth récitals :
  Whereas it is necessary to amend these Directives in order to incorporate
  the changes in the GATT Government Procurement Agreement agreed in
  December 1986 ;
\
 ---pagebreak---                                             - 4 -
 New Article 2
 Article 1 ( a ) is replaced by the following text :
"( a ) " public supply contracts " shall be contracts for pecuniary interest
 concluded in writing involving the purchase , lease , rental or hire
 purchase , with or without option to buy , of products between a supplier
 (a natural or legal person ) and one of the contracting authorities
 defined in ( b ) , below . The delivery of such products may in addition
 include siting and installation operations ."
 Articles 2 and 3 become Articles 3 and 4 .
 Alteration -,     of Article 4
 Article 4         (2)         ( d ) is replaced by the following text :
 "( d) The contracting authorities shall prepare a report in writing on
         each contract awarded under the restricted or the negotiated procedure. They shall
         ensure that each report contains the name of the contracting
         authority , the value and nature of goods purchased, the country of
         origin as indicated by the address of the supplier , and a statement
         of the conditions referred to in Article 6 paragraph ( 1 ) and ( 2 ) which
         prevailed at the time when the contract was awarded . The report
         shall remain with the contracting authority concerned . If needed ,
         this information shall be supplied to the authorities responsible
         for the contracting authority in order that it may , if required ,
         be used by the Commission and , through the Commission , by the
         Advisory Committee for Public Contracts ."
 New Article 5
 Article 5 is replaced by the following text :
                              "Article 5
 1 . ( a ) The provisions of Titles II , III and IV and of Article 6, under the
           conditions laid down in Title I and in Article 4 , shall apply to
           public supply contracts
           - awarded under the terms and conditions of Directive 80 / 767 / EEC
             by those contracting authorities listed in Annex I of that
             Directive and whose estimated value net of VAT is not less
             than ECU 139.000, except those contracts awarded by
             contracting authorities in the field of defence in respect of
             products not listed in Annex II to that Directive'; •
           - awarded by those contracting authorities within the meaning of
             Article 1 of           this   . Directive and whose estimated value
             net of VAT is not less than ECU 200.000 except those awarded
             by the contracting authorities listed in Annex I to Directive
             80 / 767 / EEC ;
           - awarded by contracting authorities in the field of defence in
             respect of those products not listed in Annex II to
             Directive 80 / 767 / EEC and whose estimated value net of VAT is
             not less than ECU 139.000 .
 ---pagebreak---                                       - 5 -
     ( b ) The Directive shall apply to public supply contracts for which
           the estimated value equals or exceeds the threshold concerned at
           the time of publication of the notice in accordance with Article
           9 ( 2 ).
     ( c ) The value of the thresholds in national currencies and the
           threshold of the GATT Agreement in terms of the ECU shall be
           revised every two years with effect from 1 January 1988 . The
           calculation of these values shall be based on the average daily
           values of these currencies in terms of the ECU and of the ECU in
           terms of the SDR over the 24 months terminating on the last day
           of October immediately preceding the 1 January revision .    The
           values shall be published in the Official Journal of the
           European Communities at the beginning of November .
     ( d ) The method of calculation laid down in subparagraph ( c ) shall
           be examined , on the Commission 's initiative , by the Advisory
           Committee for Public Contracts two years after its initial
           application .
2 . In the case of contracts for the lease , rental or hire purchase of
    products , the bases for calculating the estimated contract value
    shall be :
    - in the case of fixed term contracts , where their term is twelve
        months or less , the calculation should be based on the total
        contract value for its duration , or , where their term exceeds
        twelve months its total value including the estimated residual
        value ;
    - in the case of contracts for an indefinite period or in cases
        where there is doubt as to the duration of the contracts , the
        monthly instalment multiplied by 48 .
3 . In the case of regular supply contracts or of contracts which are to
    be renewed within a given time, either the aggregate cost of similar
    contracts concluded over the previous fiscal year or 12 months
    adjusted , where possible , for anticipated changes in quantity 0/
    value over the subsequent 12 months or the estimated aggregate cost
    during the 12 months following first delivery or during the term of
    the contract where this is greater than 12 months must be taken as
    the basis for the application of paragraph 1 . The selection of the
    valuation method shall not be used with the intention of avoiding
    the application of this Article .
4 . If a proposed procurement of supplies of the same type may lead to
    contracts being awarded at the same time in separate parts , the
    estimated value of the total sum of these parts must be taken as the
    basis for the application of paragraphs 1 and 2 .
5 . In cases where a proposed procurement specifies option clauses , the
    basis for calculating the estimated contract value shall be the
    highest possible total of the purchase , lease , rental , or
    hire-purchase permissible , inclusive of the option clauses .
6 . No procurement requirement for a given quantity of supplies may be
    split up with the intention of avoiding the application of this
    Article ."
 ---pagebreak---                                        6 -
Articles 4-7     become Articles 6-9 .
Article 8 becomes Article 10 .
Alteration     of Article 10
Article 11 ( 1 ) is replaced by the following text :
" 1 . In restricted and negotiated procedures the time limit for the
      receipt of requests to participate fixed by the contracting
      authorities shall be not less than 37 days from the date of
      dispatch of the notice ."
Articles 9-13 become Articles 7-15 .
Article 14 becomes Article 16 and is to read :
" Articles 2 , 3 , 4 , 5 and 6 of Directive 80 / 767 / EEC are deleted ."
Articles 15-17 become Articles 17-19 .