CELEX: 51991SC2360
Language: en
Date: 1992-01-09
Title: Proposal for a Council Directive concerning the coordination of procedures for the award of public works contracts

20 . 2. 92                                  Official Journal of the European Communities                               No . C 46 /79
                 Proposal for a Council Directive concerning the coordination of procedures for the award of
                                                          public works contracts
                                                              (92/C 46/04)
                                                            SEC(91)2360final
                                            (Submitted by the Commission on 10 January 1992)
 THE COUNCIL OF THE EUROPEAN COMMUNITIES,                               under this Directive ; whereas it is appropriate to pro­
                                                                         vide for their exemption from coordination measures ;
 Having regard to the Treaty establishing the European
 Economic Community, and in particular Articles                          Whereas provision must be made for exceptional cases
 57 (2), 66 and 100A thereof,                                           where measures concerning the coordination of proce­
                                                                        dures may not necessarily be applied, but such cases
                                                                        must be expressly limited ;
 Having regard to the proposal from the Commission,
                                                                        Whereas it is necessary to provide common rules in the
 In cooperation with the European Parliament,                           technical field which take account of the new Com­
                                                                        munity policy on standards ;
 Having regard to the opinion of the Economic and                       Whereas to ensure development of effective competi­
 Social Committee ,
                                                                        tion in the field of public contracts it is necessary that
                                                                        contract notices drawn up by the authorities of Member
 Whereas Council Directive 71 / 305 / EEC of 26 July                    States awarding contracts be advertised throughout the
 1971 , concerning the coordination of procedures for the               Community ; whereas the information contained in
award of public works contracts ('), as last amended by                 these notices must enable contractors established in the
 Directive 90/ 531 / EEC (2), has been amended substan­                 Community to determine whether the proposed con­
tially and on numerous occasions ; whereas for reasons                  tracts are of interest to them ; whereas , for this purpose,
 of clarity and rationality the said Directive should be                it is appropriate to give them adequate information
 consolidated ;                                                         about the services to be provided and the conditions
                                                                        attached thereto ; whereas, more particularly , in res­
                                                                        tricted procedures advertisement is intended to enable
 Whereas the simultaneous attainment of freedom of
                                                                        contractors of Member States to express their interest in
establishment and freedom to provide services in res­                   contracts by seeking from the authorities awarding con­
pect of public works contracts awarded in Member                        tracts invitations to tender under the required condi­
 States on behalf of the State, or regional or local au­                tions ;
thorities or other legal persons governed by public law
entails not only the abolition of restrictions but also the             Whereas it is necessary to provide common rules for
coordination of national procedures for the award of
                                                                        participation in public works contracts which must
public works contracts ;                                                include both qualitative selection criteria and criteria
                                                                        for the award of the contract ;
 Whereas such coordination should take into account as
far as possible the procedures and administrative prac­                 Whereas this Directive must not affect the obligations
tices in force in each Member State ;                                   of the Member States concerning the deadlines for
                                                                        transposal of the Directives set out in Annex B,
Whereas works contracts awarded by entities operating
in the water, energy, transport and telecommunication                   HAS ADOPTED THIS DIRECTIVE :
sectors are covered by Directive 90/531 / EEC ;
Whereas, in view of the increasing importance of con­                                              TITLE I
cession contracts in the public works area and of their
specific nature, rules concerning advertising should be                                   GENERAL PROVISIONS
included in this Directive ;
                                                                                                   Article 1
Whereas works contracts of less than ECU 5 000 000
may be exempted from competition as provided for                        For the purpose of this Directive :
(')   OJ No L 185 , 16. 8 . 1971 , p. 5 .                               (a) 'public works contracts' are contracts for pecuniary
( 2)  OJ No L 297 , 29 . 10 . 1990, p . 1 .                                  interest concluded in writing between a contractor
 ---pagebreak--- No . C 46/ 80                          Official Journal of the European Communities                                   20 . 2 . 92
     and a contracting authority as defined in (b), which         (0 'restricted procedures' are those national proce­
     have as their object either the execution, or both                dures whereby only those contractors invited by the
     the execution and design , of works related to one                contracting authority may submit tenders ;
     of the activities referred to in Annex II or a work
     defined in (c) below, or the execution, by whatever
     means, of a work corresponding to the require­               (g) ' negotiated procedures ' are those national proce­
     ments specified by the contracting authority ;                    dures whereby contracting authorities consult con­
                                                                       tractors of their choice and negotiate the terms of
                                                                       the contract with one or more of them ;
(b) ' contracting authorities ' shall be the State, regional      (h) a contractor who submits a tender shall be desig­
     or local authorities, bodies governed by public law,              nated by the term 'tenderer' and one who has
     associations formed by one or several of such auth­               sought an invitation to take part in a restricted and
     orities or bodies governed by public law .                        negotiated procedure by the term 'candidate'.
     A body governed by public law means any body :
                                                                                             Article 2
     — established for the specific purpose of meeting
          needs in the general interest, not having an
          industrial or commercial character, and                 1 . Member States shall take the necessary measures to
                                                                  ensure that the contracting authorities comply or ensure
                                                                  compliance with this Directive where they subsidize
     — having legal personality, and                              directly by more than 50 % a works contract awarded
                                                                  by an entity other than themselves .
     — financed, for the most part, by the State, or
          regional or local authorities, or other bodies
          governed by public law ; or subject to manage­          2 . Paragraph 1 shall concern only contracts covered
          ment supervision by those bodies ; or having an         by Class 50, Group 502, of the NACE nomenclature
          administrative, managerial or supervisory               and contracts relating to building work for hospitals,
          board, more than half of whose members are              facilities intended for sports, recreation and leisure,
          appointed by the State, regional or local auth­         school and university buildings and buildings used for
          orities or by other bodies governed by public           administrative purposes.
          law .
     The list of bodies or of categories of such bodies                                      Article 3
     governed by public law which fulfil the criteria
     referred to in the second subparagraph are set out
     in Annex I. These lists shall be as exhaustive as            1 . Should contracting authorities conclude a public
     possible and may be reviewed in accordance with              works concession contract the advertising rules as des­
                                                                  cribed in Article 11 (3), (6), (7) and (9) to ( 13), and in
     the procedure laid down in Article 35 . To this end ,
     Member States shall periodically notify the Com­             Article 15 , shall apply to that contract when its value is
                                                                  not less than ECU 5 000 000 .
     mission of any changes to their lists of bodies and
     categories of bodies ;
                                                                  2.   The contracting authority may :
                                                                  — either require the concessionaire to award contracts
(c) a 'work' means the outcome of building of civil                    representing a minimum of 30 % of the total value
     engineering works taken as a whole that is suffi­                 of the work for which the concession contract is to
     cient of itself to fulfil an economic and technical               be awarded, to third parties, at the same time pro­
     function ;                                                        viding the option for candidates to increase this
                                                                       percentage. This minimum percentage shall be
                                                                       specified in the concession contract,
(d) 'public works concession' is a contract of the same           — or request the candidates for concession contracts
     type as that indicated in (a) except for the fact that            to specify in their tenders the percentage, if any, of
     the consideration for the works to be carried out                 the total value of the work for which the conces­
     consists either solely in the right to exploit the con­           sion contract is to be awarded which they intend to
     struction or in this right together with payment ;                assign to third parties.
                                                                  3.   When the concessionaire is himself one of the
(e) ' open procedures' are those national procedures              authorities awarding contracts, he shall comply with
     whereby all interested contractors may submit ten­           the provisions of this Directive in the case of works to
     ders ;                                                       be carried out by third parties .
 ---pagebreak--- 20 . 2 . 92                            Official Journal of the European Communities                               No . C 46 / 81
4. Member States shall take the necessary steps to                (a) in pursuance of an international agreement, con­
ensure that a concessionaire other than an authority                   cluded in conformity with the Treaty, between a
awarding contracts shall apply the advertising rules                   Member State and one or more non-member coun­
listed in Article 11 (4), (6), (7), and (9) to ( 13), and in           tries and covering works intended for the joint
Article 16, in respect of the contracts which- it awards to            implementation or exploitation of a project by the
third parties when the value of the contracts is not less              signatory States ; all agreements shall be communi­
than ECU 5 000 000. Advertising rules shall not be                     cated to the Commission which may consult the
applied where works contracts meet the conditions laid                 Advisory Committee for Public Contracts set up by
down in Article 7 ( 3 ).                                               Council Decision 71 / 306/ EEC (*);
                                                                  (b) to undertakings in a Member State or a non-mem­
Undertakings which have formed a group in order to
                                                                       ber country in pursuance of an international agree­
obtain the concession contract, or undertakings affi­
                                                                       ment relating to the stationing of troops ;
liated to them , shall not be regarded as third parties .
                                                                  (c) pursuant to the particular procedure of an interna­
An ' affiliated   undertaking' means any undertaking over              tional organization .
which the concessionaire may exercise, directly or indi­
rectly, a dominant influence or which may exercise a
dominant influence over the concessionaire or which,
in common with the concessionaire , is subject to the                                          Article 6
dominant influence of another undertaking by virtue of
ownership, financial participation or the rules which
govern it. A dominant influence on the part of an                 1 . The provisions of this Directive shall apply to
undertaking shall be presumed when , directly or indi­            public works contracts whose estimated value net of
rectly in relation to another undertaking, it :                   VAT is not less than ECU 5 000 000 .
— holds the major part of the undertaking's sub­
      scribed capital, or                                         2.   The value of the threshold in national currencies
                                                                  shall normally be revised every two years with effect
— controls the majority of the votes attaching to                 from 1 January 1993 . The calculation of this value shall
      shares issued by the undertakings , or                      be based on the average daily values of these currencies
— can appoint more than half of the members of the                in terms of the ecu over the 24 months terminating on
      undertaking's administrative, managerial or super­          the last day of October immediately preceding the
      visory body .                                                1 January revision . The values shall be published in the
                                                                   Official Journal of the European Communities at the
                                                                  beginning of November.
A comprehensive list of these undertakings shall be
enclosed with the candidature for the concession . This
list shall be brought up to date following any sub­               3.   Where a work is subdivided into several lots, each
sequent changes in the relationship between the under­            one the subject of a contract, the value of each lot must
takings .                                                         be taken into account for the purpose of calculating the
                                                                  amounts referred to in paragraph 1 . Where the aggre­
                                                                  gate value of the lots is not less than the amount,
                             Article 4                            referred to in paragraph 1 , the provisions of that para­
                                                                  graph shall apply to all lots . Contracting authorities
This Directive shall not apply to :                               shall be permitted to depart from this provision for lots
                                                                  whose estimated value net of VAT is less than ECU
(a) contracts awarded in the fields referred to in Arti­           1 000 000, provided that the total estimated value of all
      cles 2, 7 , 8 and 9 of Directive 90/ 531 / EEC or ful­      the lots exempted does not, in consequence, exceed
      filling the conditions in Article 6 (2) of that Direc­      20 % of the total estimated value of all lots .
      tive ;
(b) works contracts which are declared secret or the              4. No work or contract may be split up with the inten­
      execution of which must be accompanied by                   tion of avoiding the application of the preceding para­
      special security measures in accordance with the            graphs.
      laws, regulations of administrative provisions in
      force in the Member State concerned or when the
      protection of the basic interests of that State's           5 . When calculating the amounts referred to in para­
      security so requires .                                      graph 1 and in Article 7, account shall be taken not
                                                                  only of the amount of the public works contracts but
                                                                  also of the estimated value of the supplies needed to
                             Article 5                            carry out the works which are made available to the
                                                                   contractor by the contracting authorities .
This Directive shall not apply to public contracts gov­
erned by different procedural rules and awarded :                 (')  OJ No L 185 , 16. 8 . 1971 , p. 15 .
 ---pagebreak--- No . C 46 / 82                          Official Journal of the European Communities                                  20 . 2 . 92
                            Article 7                                   but which have, through unforeseen circumstances,
                                                                        become necessary for the carrying out of the work
                                                                        described therein, on condition that the award is
1 . In awarding public works contracts the contracting                  made to the contractor carrying out such work :
authorities shall apply the procedures defined in Article
1 (e), (0 and (g).                                                      — when such works cannot be technically or
                                                                             economically separated from the main contract
                                                                             without great inconvenience to the contracting
                                                                             authorities, or
2. The contracting authorities may award their public
works contracts by negotiated procedure, with prior
                                                                        — when such works, although separable from the
publication of a tender notice and after having selected                     execution of the original contract, are strictly
the candidates according to qualitative public criteria,
                                                                             necessary to its later stages ,
in the following cases :
                                                                        however, the aggregate value of contracts awarded
(a) in the event of irregular tenders in response to an                 for additional works may not exceed 50 % of the
     open or restricted procedure or in the event of ten­               amount of the main contract ;
     ders which are unacceptable under national provi­
     sions that are in accordance with the provisions of
     Title IV, in so far as the original terms of the con­
                                                                   (e) for new works consisting of the repetition of simi­
                                                                         lar works entrusted to the undertaking to which the
     tract are not substantially altered . The contracting
      authorities shall not, in these cases , publish a ten­
                                                                         same contracting authorities awarded an earlier
                                                                         contract, provided that such works conform to a
      der notice where they include in such negotiated
                                                                         basic project for which a first contract was awarded
      procedure all the enterprises satisfying the criteria              according to the procedures referred to in para­
      of Articles 24 to 29 which, during the prior open or
                                                                         graph 4.
     restricted procedure, have submitted offers in
      accordance with the formal requirements of the
                                                                         As soon as the first project is put up for tender,
      tendering procedure ;                                              notice must be given that this procedure might be
                                                                         adopted and the total estimated cost of subsequent
(b) when the works involved are carried out purely for                   works shall be taken into consideration by the con­
      the purpose of research, experiment or develop­                    tracting authorities when they apply the provisions
      ment, and not to establish commercial viability or                 of Article 6 . This procedure may only be applied
      to recover research and development costs ;
                                                                         during the three years following the conclusion of
                                                                         the original contract.
 (c) in exceptional cases, when the nature of the works
      or the risks attaching thereto do not permit prior
      overall pricing.                                             4. In all other cases, the contracting authorities shall
                                                                    award their public works contracts by the open proce­
                                                                   dure or by the restricted procedure.
 3 . The contracting authorities may award their public
 works contracts by negotiated procedure without prior
 publication of a tender notice, in the following cases :
                                                                                               Article 8
 (a) in the absence of tenders or of appropriate tenders
       in response to an open or restricted procedure in so
       far as the original terms of the contract are not sub­       1 . The contracting authority shall, within 15 days of
       stantially altered and provided that a report is com­        the date on which the request is received, inform any
      municated to the Commission at its request ;                  eliminated candidate or tenderer who so requests of the
                                                                    reasons for rejection of his application or his tender,
 (b) when, for technical or artistic reasons or for reasons         and, in the case of a tender, the name of the successful
       connected with the protection of exclusive rights ,          tenderer .
       the works may only be carried out by a particular
       contractor ;
                                                                    2 . The contracting authority shall inform candidates
 (c) in so far as is strictly necessary when, for reasons of        or tenderers who so request of the grounds on which it
       extreme urgency brought about by events unfore­              decided not to award a contract in respect of which a
       seen by the contracting authorities in question, the         prior call for competition was made, or to recommence
       time limit laid down for the open, restricted or             the procedure. It shall also inform the Office for Offi­
       negotiated procedures referred to in paragraph 2             cial Publications of the European Communities of that
       above cannot be kept . The circumstances invoked             decision .
       to justify extreme urgency must not in any event be
       attributable to the contracting authorities ;
                                                                    3 . For each contract awarded the contracting au­
  (d) for additional works not included in the project ini­         thorities shall draw up a written report which shall
       tially considered or in the contract first concluded          include at least the following :
 ---pagebreak--- 20 . 2 . 92                            Official Journal of the European Communities                              No . C 46/ 83
— the name and address of the contracting authority,              2 . Without prejudice to the legally binding national
      the subject and value of the contract,                      technical rules and in so far as these are compatible
                                                                  with Community law, such technical specifications
— the names of the candidates or tenderers admitted               shall be defined by the contracting authorities by refer­
      and the reasons for their selection ,                       ence to national standards implementing European
                                                                  standards , or by reference to European technical
— the names of the candidates or tenderers rejected               approvals or by reference to common technical specifi­
      and the reasons for their rejection,                        cations .
— the name of the successful tenderer and the reasons
      for his tender having been selected and, if known ,
      any share of the contract the successful tenderer
      may intend to subcontract to a third party,                 3.    A contracting authority may depart from paragraph
                                                                  2 if:
— for negotiated procedures , the circumstances
      referred to in Article 7 which justify the use of
      these procedures .                                          (a) the standards, European technical approvals or
                                                                        common technical specifications do not include
                                                                        any provision for establishing conformity, or tech­
This report, or the main features of it, shall be com­                  nical means do not exist for establishing satisfacto­
municated to the Commission at its request.                             rily the conformity of a product to these standards,
                                                                        European technical approvals or common tech­
                                                                        nical specifications ;
                          Article 9
                                                                  (b) use of these standards, European technical approv­
In the case of contracts relating to the design and con­                als or common technical specifications would
struction of a public housing scheme whose size and                     oblige the contracting authority to acquire products
complexity, and the estimated duration of the work                      or materials incompatible with equipment already
involved, require that planning be based from the out­                  in use or would entail disproportionate costs or dis­
set on close collaboration within a team comprising                     proportionate technical difficulties, but only as
representatives of the authorities awarding contracts,                  part of a clearly defined and recorded strategy with
experts and the contractor to be responsible for carry­                 a view to change-over, within a given period, to
ing out the works, a special award procedure may be                     European standards , European technical approvals
adopted for selecting the contractor most suitable for                  or common technical specifications ;
integration into the team .
                                                                  (c) the project concerned is of a genuinely innovative
In particular, authorities awarding contracts shall                     nature for which use of existing European stan­
include in the contract notice as accurate as possible a                dards, European technical approvals or common
description of the works to be carried out so as to ena­                technical specifications would not be appropriate .
ble interested contractors to form a valid idea of the
project . Furthermore, authorities awarding contracts
shall , in accordance with the provisions of Articles 24
to 29 , set out in such contract notice the personal , tech­
                                                                  4. Contracting authorities invoking paragraph 3 shall
nical and financial conditions to be fulfilled by candi­
dates .
                                                                  record, wherever possible, the reasons for doing so in
                                                                  the tender notice published in the Official Journal of
                                                                  the European Communities or in the contract docu­
Where such procedure is adopted , authorities awarding            ments and in all cases shall record these reasons in
contracts shall apply the common advertising rules                their internal documentation and shall supply such
relating to restricted procedure and to the criteria for          information on request to Member States and to the
qualitative selection .                                           Commission .
                          TITLE II                                5 . In the absence of European standards or European
                                                                  technical approvals or common technical specifica­
                                                                  tions, the technical specifications :
      COMMON RULES IN THE TECHNICAL FIELD
                          Article 10                              (a) shall be defined by reference to the national tech­
                                                                        nical specifications recognized as complying with
                                                                        the basic requirements listed in the Community
1 . The technical specifications defined in Annex III                   directives on technical harmonization, in accord­
shall be given in the general or contractual documents                  ance with the procedures laid down in those direc­
relating to each contract .                                             tives , and in particular in acccordance with the pro­
 ---pagebreak--- No . C 46/ 84                          Official Journal of the European Communities                                 20 . 2 . 92
     cedures laid down in Council Directive 89 / 106 /            4. Works concessionaires, other than a contracting
     EEC of 21 December 1988 on construction prod­                authority, who wish to award a work contract to a third
     ucts (');                                                    party as defined in Article 3 (4), shall make known their
                                                                  intention by means of a notice.
(b) may be defined by reference to national technical
     specifications relating to design and method of cal­
     culation and execution of works and use of materi­
     als ;                                                        5 . Contracting authorities who have awarded a con­
                                                                  tract shall make known the result by means of a notice .
(c) may be defined by reference to other documents .              However, certain information on contract award may,
                                                                  in certain cases, not be published where release of such
     In this case, it is appropriate to make reference in         information would impede law enforcement or other­
     order of preference to :                                     wise be contrary to the public interest, would prejudice
     ( i ) national standards implementing international          the legitimate commercial interests of particular enter­
            standards accepted by the country of the con­         prises, public or private, or might prejudice fair compe­
                                                                  tition between contractors .
            tracting authority ;
     ( ii) other national standards and national technical
            approvals of the country of the contracting           6. The contracting authorities shall send the notices
            authority ;                                           referred to in the preceding paragraphs as rapidly as
     (iii ) any other standard .                                  possible and by the most appropriate channels to the
                                                                  Office for Official Publications of the European Com­
                                                                  munities . In the case of the accelerated procedure
6 . Unless it is justified by the subject of the contract,        referred to in Article 14, the notice shall be sent by
Member States shall prohibit the introduction into the            telex, telegram or telefax .
contractual clauses relating to a given contract of tech­
nical specifications which mention products of a spe­             (a) The notice referred to in paragraph 1 shall be sent
cific make or source or of a particular process and
which therefore favour or eliminate certain undertak­
                                                                       as soon as possible after the decision approving the
                                                                       planning of the works contracts that the contract­
ings . In particular, the indication of trade marks,                   ing authorities intend to award ;
patents, types, or of a specific origin or production
shall be prohibited . However, if such indication is
accompanied by the words "or equivalent', it shall be             (b) the notice referred to in paragraph 5 shall be sent at
authorized in cases where the authorities awarding con­                the latest 48 days after the award of the contract in
tracts are unable to give a description of the subject of              question .
the contract using specifications which are sufficiently
precise and intelligible to all parties concerned .
                                                                  7 . The notices referred to in paragraphs 1 , 2, 3 , 4 and
                                                                  5 shall be drawn up in accordance with the models
                                                                  given in Annexes IV, V and VI , and shall specify the
                           TITLE III                              information requested in those Annexes.
               COMMON ADVERTISING RULES
                                                                  In open, restricted and negotiated procedures, the con­
                            Article 11                            tracting authorities may not require any conditions but
                                                                  those specified in Articles 26 and 27 when requesting
                                                                  information concerning the economic and technical
1.   Contracting authorities shall make known, by                 standards which they require of contractors for their
means of an indicative notice, the essential characteris­         selection (point 11 of Annex IV B, point 10 of Annex
tics of the works contracts which they intend to award            IV C and point 9 of Annex IV D).
and the estimated value of which is not less than the
threshold laid down in Article 6(1 ).
                                                                  8 . The notices referred to in paragraphs 1 and 5 shall
2. Contracting authorities who wish to award a public             be published in full in the Official Journal of the Euro­
works contract by open, restricted or negotiated proce­           pean Communities and in the TED data bank in the
dure referred to in Article 7 (2), shall make known their         official languages of the Communities, the original text
intention by means of a notice .                                  alone being authentic.
3.   Contracting authorities who wish to award a works
concession contract shall make known their intention
                                                                  9 . The notices referred to in paragraphs 2, 3 and 4
by means of a notice .
                                                                  shall be published in full in the Official Journal of the
                                                                  European Communities and in the TED data bank in
(')  OJ No L 40, 11.2 . 1989, p. 12 .                             their original language. A summary of the important
 ---pagebreak--- 20. 2 . 92                             Official Journal of the European Communities                               No. C 46/ 85
elements of each notice shall be published in the other           supplied within the time limits laid down in paragraph
official languages of the Community, the original text             3 or 4 or where tenders can only be made after a visit to
alone being authentic.                                            the site or after on-the-spot inspection of the docu­
                                                                   ments supporting the contract documents, the time lim­
                                                                   its laid down in paragraphs 1 and 2 shall be extended
 10.   The Office for Official Publications of the Euro­           accordingly.
pean Communities shall publish the notices not later
than 12 days after their dispatch . In the case of the
accelerated procedure referred to in Article 14, this
period shall be reduced to five days .
                                                                                             Article 13
 11 . The notice shall not be published in the official
journals or in the press of the country of the contract­
ing authority before the date of dispatch, and it shall            1 . In restricted procedures and negotiated procedures
mention this date. It shall not contain information               as described in Article 7 (2), the time limit for receipt of
other than that published in the Official Journal of the          requests to participate fixed by the contracting au­
                                                                  thorities shall be not less than 37 days from the date of
European Communities.
                                                                  dispatch of the notice .
 12 . The contracting authorities must be able to supply
proof of the date of dispatch.                                    2 . The contracting authorities shall simultaneously
                                                                  and in writing invite the selected candidates to submit
 13 . The cost of publication of the notices in the Offi­         their tenders . The letter of invitation shall be accompa­
cial Journal of the European Communities shall be                 nied by the contract documents and supporting docu­
borne by the Communities . The length of the notice               ments . It shall include at least the following informa­
                                                                  tion :
shall not be greater than one page of the Journal, or
approximately 650 words . Each edition of the Journal
containing one or more notices shall reproduce the                (a) where appropriate, the address of the service from
model notice or notices on which the published notice                   which the contract documents and supporting
or notices are based .                                                  documents can be requested and the final date for
                                                                        making such a request ; also the amount and terms
                                                                        of payment of any such to be paid for such docu­
                                                                        ments ;
                         Article 12
                                                                  (b) the final date for receipt of tenders, the address to
 1 . In open procedures the time limit for the receipt of               which they must be sent and the language or lan­
tenders shall be fixed by the contracting authorities at                guages in which they must be drawn up :
not less than 52 days from the date of sending the not­
ice .                                                             (c) a reference to the contract notice published ;
                                                                  (d) an indication of any documents to be annexed,
2 . The time limit for the receipt of tenders provided                  either to support the verifiable statements fur­
for in paragraph 1 may be reduced to 36 days where the                  nished by the candidate in accordance with Article
contracting authorities have published a tender notice,                 1 1 (7), or to supplement the information provided
drafted in accordance with the specimen in Annex                        for in that Article under the same conditions as
IV A, provided for in Article 11 ( 1 ), in the Official Jour­           those laid down in Articles 26 and 27 ;
nal of the European Communities.
                                                                  (e) the criteria for the award of the contract if these are
3 . Provided they have been requested in good time,                     not given in the notice .
the contract documents and supporting documents
must be sent to the contractors by the contracting au­
thorities or competent departments within six days of             3 . In restricted procedures , the time limit for receipt
receiving their application .                                     of tenders fixed by the contracting authorities may not
                                                                  be less than 40 days from the date of dispatch of the
                                                                  written invitation .
4. Provided it has been requested in good time, addi­
tional information relating to the contract documents
shall be supplied by the contracting authorities not
later than six days before the final date fixed for receipt       4. The time limit for receipt of tenders laid down in
of tenders .                                                      paragraph 3 may be reduced to 26 days where the con­
                                                                  tracting authorities have published the tender notice,
                                                                  drafted according to the specimen in Annex IV A,
5 . Where the contract documents, supporting docu­                provided for in Article 1 1 ( 1 ), in the Official Journal of
ments or additional information are too bulky to be               the European Communities.
 ---pagebreak---                                        Official Journal of the European Communities                                  20 . 2 . 92
No . C 46 / 86
5 . Requests to participate in procedures for the award           time limit for the receipt of requests to participate shall
of contracts may be made by letter, by telegram, telex,           be fixed by the concessionaire at not less than 37 days
telefax or by telephone. If by one of the last four, they         from the date of dispatch of the notice, and the time
must be confirmed by letter dispatched before the end             limit for the receipt of tenders at not less than 40 days
of the period laid down in paragraph 1 .                          from the date of dispatch of the notice or the invitation
                                                                  to tender.
6 . Provided it has been requested in good time, addi­
tional information relating to the contract documents                                        Article 17
must be supplied by the contracting authorities not
later than six days before the final date fixed for the
receipt of tenders .                                              Contracting authorities may arrange for the publication
                                                                  in the Official Journal of the European Communities of
                                                                  notices announcing public works contracts which are
7 . Where tenders can be made only after a visit to the           not subject to the publication requirement laid down in
site or after on-the-spot inspection of the documents             this Directive .
supporting the contract documents, the time limit laid
down in paragraphs 3 and 4 shall be extended accord­
ingly .
                                                                                             TITLE IV
                                                                            COMMON RULES ON PARTICIPATION
                          Article 14
                                                                                             Article 18
 1.   In cases where urgency renders impracticable the
 time limits laid down in Article 13 , the contracting
                                                                   Contracts shall be awarded on the basis of the criteria
 authorities may fix the following time limits :
                                                                   laid down in Chapter 2 of this Title , taking into
 (a) a time limit for receipt of requests to participate           account Article 19, after the suitability of the contrac­
      which shall be not less than 15 days from the date           tors not excluded under Article 24 has been checked by
      of dispatch of the notice ;                                  the contracting authorities in accordance with the cri­
                                                                   teria of economic and financial standing and of tech­
 (b) a time limit for the receipt of tenders which shall be        nical knowledge or ability referred to in Articles 26 to
      not less than 10 days from the date of the invitation        29 .
      to tender .
                                                                                             Article 19
 2 . Provided it has been requested in good time, addi­
 tional information relating to the contract documents
 must be supplied by the contracting authorities not               Where the criterion for the award of the contract is that
 later than four days before the final date fixed for the          of the most economically advantageous tender, con­
 receipt of tenders .                                              tracting authorities may take account of variants which
                                                                   are submitted by a tenderer and meet the minimum
                                                                   specifications required by the contracting authorities .
 3 . Requests for participation in contracts and invita­
  tions to tender must be made by the most rapid means
                                                                   The contracting authorities shall state in the contract
  of communication possible . When requests to partici­            documents the minimum specifications to be respected
 pate are made by telegram, telex, telefax or telephone,           by the variants and any specific requirements for their
 they must be confirmed by letter dispatched before the            presentation . They shall indicate in the tender notice if
 expiry of the time limit referred to in paragraph 1 .              variants are not permitted .
                                                                    Contracting authorities may not reject the submission
                          Article 15
                                                                    of a variant on the sole grounds that it has been drawn
                                                                    up with technical specifications defined by reference to
  Contracting authorities who wish to award a works                 national standards transposing European standards, to
  concession contract shall fix a time limit for receipt of         European technical approvals or to common technical
  candidatures for the concession, which shall not be less          specifications referred to in Article 10 (2) or again by
  than 52 days from the date of dispatch of the notice.             reference to national technical specifications referred to
                                                                    in Article 10 (5) (a) and (b).
                          Article 16                                                          Article 20
   In works contracts awarded by a concessionaire of                In the contract documents, the contracting authority
  works other than an authority awarding contracts, the             may ask the tenderer to indicate in his tender any share
 ---pagebreak--- 20 . 2 . 92                             Official Journal of the European Communities                                No . C 46/87
of the contract he may intend to subcontract to third              relating to the employment protection provisions and
parties.                                                           the working conditions which are in force in the Mem­
                                                                   ber State, region or locality in which the works are to be
                                                                   executed and which shall be applicable to the works
This indication shall be without prejudice to the ques­            carried out on site during the performance of the con­
tion of the principal contractor's liability.                      tract .
                          Article 21                               2. The contracting authority which supplies the infor­
                                                                   mation referred to in paragraph 1 shall request the ten­
                                                                   derers or those participating in the contract procedure
Tenders may be submitted by groups of contractors .                to indicate that they have taken account, when drawing
These groups may not be required to assume a specific              up their tender, of the obligations relating to employ­
legal form in order to submit the tender ; however, the            ment protection provisions and the working conditions
group selected may be required to do so when it has                which are in force in the place where the work is to be
been awarded the contract .                                        carried out. This shall be without prejudice to the appli­
                                                                   cation of the provisions of Article 30 (4) concerning the
                                                                   examination of abnormally low tenders .
                          Article 22
 1.   In restricted and negotiated procedures the con­                                      Chapter I
tracting authorities shall, on the basis of information
given relating to the contractor's personal position as
well as to the information and formalities necessary for                         Criteria for qualitative selection
the evaluation of the minimum conditions of an econo­
mic and technical nature to be fulfilled by him, select
from among the candidates with the qualifications                                            Article 24
required by Articles 24 and 29 those whom they will
invite to submit a tender or to negotiate .
                                                                   Any contractor may be excluded from participation in
                                                                   the contract who :
2 . Where the contracting authorities award a contract
by restricted procedure, they may prescribe the range              (a) is bankrupt or is being wound up, whose affairs are
within which the number of undertakings which they                      being administered by the court, who has entered
intend to invite will fall . In this case the range shall be            into an arrangement with creditors, who has sus­
indicated in the contract notice . The range shall be                   pended business activities or who is in any analo­
determined in the light of the nature of the work to be                 gous situation arising from a similar procedure
carried out . The range must number at least 5 undertak­                under national laws and regulations ;
ings and may be up to 20 .
                                                                   (b) is the subject of proceedings for a declaration of
                                                                        bankruptcy, for an order for compulsory winding
In any event, the number of candidates invited to ten­
der shall be sufficient to ensure genuine competition .
                                                                        up or administration by the court or for an arrange­
                                                                        ment with creditors or of any other similar proceed­
                                                                        ings under national laws or regulations ;
3 . Where the contracting authorities award a contract
by negotiated procedure as referred to in Article 7 (2),           (c) has been convicted of an offence concerning his
the number of candidates admitted to negotiate may                      professional conduct by a judgment which has the
not be less than three provided that there is a sufficient              force of res judicata ;
number of suitable candidates .
                                                                   (d) who has been guilty of grave professional miscon­
                                                                        duct proven by any means which the authorities
4.    Each Member State shall ensure that contracting                   awarding contracts can justify ;
authorities issue invitations without discrimination to
those nationals of other Member States who satisfy the             (e) has not fulfilled obligations relating to the payment
necessary requirements and under the same conditions                    of social security contributions in accordance with
as to its own nationals .                                               the legal provisions of the country in which he is
                                                                        established or with those of the country of the
                                                                        authority awarding contracts ;
                          Article 23
                                                                   (f) has not fulfilled obligations relating to the payment
                                                                        of taxes in accordance with the legal provisions of
1 . The contracting authority may state in the contract                 the country of the authority awarding contracts ;
documents, or be obliged by a Member State so to do,
the authority or authorities from which a tenderer may             (g) is guilty of serious misrepresentation in supplying
obtain the appropriate information on the obligations                   the information required under this Chapter.
 ---pagebreak--- No . C 46/ 88                           Official Journal of the European Communities                                     20 . 2 . 92
Where the authority awarding contracts requires of the             — in the Netherlands, the Handelsregister,
contractor proof that none of the cases quoted in (a),
(b), (c), (e) or (f) applies to him, it shall accept as suffi­     — in Portugal, the Commissão de Alvarás de Empre­
cient evidence :                                                        sas de Obras Públicas e Particulares (CAEOPP),
                                                                   — in the United Kingdom and Ireland, the contractor
— for points (a), (b) or (c), the production of an
     extract from the 'judicial record ' or, failing this, of           may be requested to provide a certificate from the
     an equivalent document issued by a competent                       Registrar of Companies or the Registrar of Friendly
                                                                        Societies or, if this is not the case, a certificate stat­
     judicial or administrative authority in the country
     of origin or in the country whence that person                     ing that the person concerned has declared on oath
     comes showing that these requirements have been                    that he is engaged in the profession in question in
     met,
                                                                        the country in which he is established, in a specific
                                                                        place and under a given business name.
— for points (e) or (f), a certificate issued by the com­
     petent authority in the Member State concerned.
                                                                                              Article 26
Where the country concerned does not issue such docu­
ments or certificates , they may be replaced by a decla­           Proof of the contractor's financial and economic stand­
ration on oath (or, in Member States where there is no             ing may, as a general rule, be furnished by one or more
provision for declarations on oath, by a solemn decla­             of the following references :
ration) made by the person concerned before a judicial
or administrative authority, a notary or a competent               (a) appropriate statements from bankers ;
professional or trade body, in the country of origin or
in the country whence that person comes . Member                   (b) the presentation of the firm 's balance sheets or
States shall designate the authorities and bodies com­                  extracts from the balance sheets, where publication
petent to issue these documents and shall forthwith                     of the balance sheet is required under the law of
inform the other Member States and the Commission                       the country in which the contractor is established ;
thereof.
                                                                   (c) a statement of the firm 's overall turnover and the
                                                                        turnover on construction works for the previous
                                                                        three financial years .
                           Article 25
                                                                   The authorities awarding contracts shall specify in the
                                                                   notice or in the invitation to tender which reference or
Any contractor wishing to take part in a public works              references they have chosen and what references other
contract may be requested to prove his enrolment in the            than those mentioned under (a), (b) or (c) are to be
professional or trade register under the conditions laid           produced.
down by the laws of the Member State in which he is
established :
                                                                   If, for any valid reason, the contractor is unable to sup­
— in Belgium, the registre du commerce — Handels­                  ply the references requested by the authorities awarding
     register,                                                     contracts, he may prove his economic and financial
                                                                   standing by any other document which the authorities
— in Denmark, the Handelsregistret, Aktieselskabsre­               awarding contracts consider appropriate .
      gistret and Erhvervsregistret,
— in Germany, the Handelsregister and the Hand­                                               Article 27
     werksrolle ,
— in Greece, a declaration on the exercise of the pro­             Proof of the contractor's technical knowledge or ability
     fession of public works contractor made on oath               may be furnished by :
     before a notary may be required,
                                                                   (a) the contractor's educational and professional qual­
— in Spain, the Registro Oficial de Contratistas del                    ifications and/or those of the firm 's managerial
      Ministerio de Industria y Energía,                                staff and, in particular, those of the person or per­
                                                                        sons responsible for carrying our the works ;
— in France, the registre du commerce and the réper­
     toir des métiers,                                             (b) a list of the works carried out over the past five
                                                                        years, accompanied by certificates of satisfactory
— in Italy, the Registro della Camera di commercio,                     execution for the most important works. These cer­
      industria, agricoltura e artigianato,                             tificates shall indicate the value, date and site of
                                                                        the works and shall specify whether they were car­
— in Luxembourg, the registre aux firmes and the rôle                   ried out according to the rules of the trade and
      de la Chambre des métiers,                                        properly completed . Where necessary, the compe­
 ---pagebreak--- 20 . 2 . 92                             Official Journal of the European Communities                              No . C 46/ 89
tent authority shall submit these certificates to the auth­        The authorities of other Member States awarding con­
ority awarding contracts direct ;                                  tracts shall apply the above provisions only in favour
                                                                   of contractors who are established in the country hold­
(c) a statement of the tools, plant and technical equip­           ing the official list.
      ment available to the contractor for carrying out
      the work ;
                                                                   4. For the registration of contractors of other Member
                                                                   States in an official list, no further proofs and state­
(d) a statement of the firm's average annual manpower
      and the number of managerial staff for the last              ments may be required other than those requested of
      three years ;                                                nationals, and in any event, only those provided for
                                                                   under Articles 24 to 27 .
(e) a statement of the technicians or technical divi­
      sions which the contractor can call upon for carry­          5.   Member States holding an official list shall com­
      ing out the work, whether or not they belong to the          municate to other Member States the address of the
      firm .
                                                                   body to which requests for registration may be made .
The authorities awarding contracts shall specify in the
notice or in the invitation to tender which of these                                       Chapter II
references are to be produced .
                                                                                Criteria for the award of contracts
                            Article 28                                                       Article 30
The authority awarding contracts may, within the limits             1.  The criteria on which the authorities awarding con­
of Articles 24 to 27, invite the contractor to supplement          tracts shall base the award of contracts shall be :
the certificates and documents submitted or to clarify
them .                                                             — either the lowest price only,
                                                                   — or, when the award is made to the most economi­
                                                                        cally advantageous tender, various criteria accord­
                            Article 29
                                                                        ing to the contract : e.g. price, period for comple­
                                                                        tion, running costs, profitability, technical merit.
 1 . Member States who have official lists of recognized           2 . In the case referred to in the second indent of para­
 contractors must, on the implementation of this Direc­            graph 1 , the authorities awarding contracts shall state
 tive, adapt them to the provisions of Article 24 (a) to           in the contract documents or in the contract notice all
 (d) and (g) and of Articles 25 , 26 and 27 .                      the criteria they intend to apply to the award, where
                                                                   possible in descending order of importance .
 2 . Contractors registered in the official lists may, for
 each contract, submit to the authority awarding con­              3 . Paragraph 1 shall not apply when a Member State
tracts a certificate of registration issued by the compe­          bases the award of contracts on other criteria, within
tent authority. This certificate shall state the references        the framework of rules in force at the time of the adop­
which enabled them to be registered in the list and the            tion of this Directive whose aim is to give preference to
 classification given in this list.                                certain tenderers, on condition that the rules invoked
                                                                   are compatible with the Treaty .
 3 . Certified registration in the official lists by the           4. If, for a given contract, tenders appear to be abnor­
 competent bodies shall, for the authorities of other              mally low in relation to the service, before it may reject
 Member States awarding contracts, constitute a pres­              those tenders the contracting authority shall request, in
 umption of suitability for works corresponding to the             writing, details of the constituent elements of the ten­
 contractor's classification only as regards Articles 24 (a)       der which it considers relevant and shall verify those
 to (d) and (g), 25 , 26 (b) and (c) and 27 (b) and (d).           constituent elements taking account of the explana­
                                                                   tions received .
 Information which can be deduced from registration in
 official lists may not be questioned. However, with               The contracting authority may take into consideration
regard to the payment of social security contributions,            explanations which are justified on objective grounds
 an additional certificate may be required of any regis­           including the economy of the construction method, or
tered contractor whenever a contract is offered .                  the technical solutions chosen, or the exceptionally
 ---pagebreak--- No . C 46/90                          Official Journal of the European Communities                                 20. 2 . 92
favourable conditions available to the tenderer for the          with Council Regulation (EEC, Euratom) No 1182/71
execution of the work, or the originality of the work            of 3 June 1971 determining the rules applicable to
proposed by the tenderer.                                        periods, dates and time limits (').
If the documents relating to the contract provide for its
award as the lowest price tendered, the contracting                                         Article 34
authority must communicate to the Commission the
rejection of tenders which it considers to be too low.
                                                                 1 . In order to permit assessment of the results of
However, until the end of 1992, if current national law          applying the Directive, Member States shall forward to
so permits, the contracting authority may exceptionally,         the Commission a statistical report on the contracts
without any discrimination on grounds of nationality,            awarded by contracting authorities by 3 1 October 1 993
reject tenders which are abnormally low in relation to           at the latest for the preceding year and thereafter by 3 1
the service, without being obliged to comply with the            October of every second year.
procedure provided for in the first subparagraph if the
number of such tenders for a particular contract is so           Nevertheless, for Greece, Spain and Portugal, the date
high that implementation of this procedure would lead            of 31 October 1993 shall be replaced by 31 October
to a considerable delay and jeopardize the public                1995 .
interest attaching to the execution of the contract in
question . Recourse to this exceptional procedure shall
be mentioned in the notice referred to in Article 1 1 (5 ).      2. The statistical report shall detail at least the num­
                                                                 ber and value of contracts awarded by each contracting
                                                                 authority or category of contracting authority above the
                         Article 31                              threshold, subdivided as far as possible by procedure,
                                                                 category of work and the nationality of the contractor
                                                                 to whom the contract has been awarded , and in the
 1.   Until 31 December 1992, this Directive shall not
prevent the application of existing national provisions          case of negotiated procedures, subdivided in accord­
on the award of public works contracts which have as             ance with Article 7, listing the number and value of the
                                                                 contracts awarded to each Member State and to third
their objective the reduction of regional disparities and        countries .
the promotion of job creation in regions whose
development is lagging behind and in declining indus­
trial regions, on condition that the provisions con­             3 . The Commission shall determine the nature of any
cerned are compatible with the Treaty, in particular             additional statistical information, which is requested in
with the principles of non-discrimination on grounds             accordance with the Directive, in consultation with the
of nationality, freedom of establishment and freedom             Advisory Committee for Public Works Contracts .
to provide services , and with the Community's interna­
tional obligations .
                                                                                            Article 35
2.    Paragraph 1 shall be without prejudice to Article 30
(3 ).
                                                                  1 . Annex I shall be amended by the Commission
                                                                 when, in particular on the basis of the notifications
                          Article 32                             from the Member States , it is necessary :
 1.   Member States shall inform the Commission of               (a) to remove from that Annex bodies governed by
national provisions covered by Article 30 (3) and                     public law which no longer fulfil the criteria laid
Article 3 1 and of the rules for applying them .                      down in Article 1 (b);
                                                                 (b) to include in that Annex bodies governed by public
2.    Member States concerned shall forward to the                    law which meet those criteria.
Commission, every year, a report describing the prac­
tical application of these provisions . The reports shall
be submitted to the Advisory Committee for Public                2 . Amendments to Annex I shall be made by the
Works Contracts .                                                Commission after consulting the Advisory Committee
                                                                 for Public Works Contracts .
                          TITLE V                                The chairman of the committee shall submit to the
                                                                 committee a draft of any measures to be taken . The
                    FINAL PROVISIONS                             committee shall deliver its opinion on the draft, if
                                                                 necessary by taking a vote, within a time limit to be
                          Article 33                             fixed by the chairman in the light of the urgency of the
                                                                 matter.
The calculation of the time limit for receipt of tenders
or requests to participate shall be made in accordance           (i)  OJ No L 124, 8 . 6. 1971 , p. 1 .
 ---pagebreak--- 20 . 2 . 92                          Official Journal of the European Communities                          No . C 46/91
The opinion shall be recorded in the minutes . In addi­                                 Article 36
tion, each Member State shall have the right to request
                                                                The Directives listed in Annex A are hereby repealed
that its position be recorded in the minutes.                   without prejudice to the obligations of the Member
                                                                States concerning the deadlines for transposal set out
                                                                in Annex B.
The Commission shall take the fullest account of the
opinion delivered by the committee. It shall inform the         References to the repealed Directives shall be con­
committee of the manner in which its opinion has been           strued as references to this Directive and should be
taken into account .                                            read in accordance with the correlation table in Annex
                                                                C.
                                                                                        Article 37
3 . Amended versions of Annex I shall be published m
the Official Journal of the European Communities.               This Directive is addressed to the Member States .
 ---pagebreak--- No . C 46/92                                Official Journal of the European Communities                                    20. 2 . 92
                                                                 ANNEX I
                   LISTS OF BODIES AND CATEGORIES OF BODIES GOVERNED BY PUBLIC LAW
                                                      REFERRED TO IN ARTICLE 1 (b) (>)
               I.   In BELGIUM :
                    Bodies
                    —      Ie Fonds des routes 1955-1969 — het Wegenfonds 1955-1969
                    — la régie des voies aériennes — de Regie de Luchtwegen
                    — l'office régulateur de la navigation intérieure — de Dienst voor Regeling van de Binnenvaart
                    — la régie des services frigorifiques de l'État belge — de Regie der Belgische Rijskoel - en Vries­
                           diensten
                    Categories
                    —      les centres publics d'aide sociale (public social assistance centres)
                    — les fabriques d'église (church councils)
              II .  In DENMARK
                    Bodies
                    —      Kebenhavns Havn
                    —      Danmarks Radio
                    —      Det Landsdækkende Fjernsyn TV 2
                    —      Danmarks Nationalbank
                    —      Storebæltsforbindelsen A/ S
                    — Kjøbenhavns Telefon Aktieselskab
                    — Jydsk Telefon-Aktieselskab
                    —      Fyns Telefon
                    —      Kommunedata
                    —      Datacentralen I / S
                    —      Kommunekemi
                    Categories
                    —      De Kommunale Havne (municipal ports)
                    — Andre Forvaltningssubjekter (other public administrative bodies)
             III .  In GERMANY .
                    Categories
                    Authorities, establishments and foundations governed by public law and created by federal , State
                    or local authorities and non-commercial establishment subject to state control and operating in
                    the general interest .
             IV.    In GREECE :
                    Categories
                    Other legal persons governed by public law whose public works contracts are subject to State con­
                    trol .
              V.    In SPAIN :
                    Categories
                    —      Entidades Gestoras y Servicios Comunes de la Seguridad Social (administrative entities and
                           common services of the health and social services)
                    — Organismos Autónomos de la Administración del Estado (independent bodies of the
                           national administration )
                    — Organismos Autónomos de las Comunidades Autónomas (independent bodies of the autono­
                           mous communities)
             (i)   Commission Decision of 13 July 1990 concerning the updating of Annex I to Council Directive 89/440 EEC —
                   OJ No L 187 , 19.7 . 1990, p. 55 .
 ---pagebreak--- 20. 2 . 92                                Official Journal of the European Communities                                No . C 46/93
                  — Organismos Autónomos de las Entidades Locales (independent bodies of local authorities)
                  — Otras entidades sometidas a la legislación de contratos del Estado español (other entities sub­
                        ject to Spanish State legislation on procurement)
           VI .   In FRANCE :
                  Bodies
                  1.     National public bodies :
                  1.1 . With scientific , cultural and professional character :
                        —     College de France
                        —     Conservatoire national des arts et métiers
                        —     Observatoire de Pans
                  1.2 . Scientific and technological :
                        —     Centre national de la recherche scientifique — CNRS
                        —     Institut national de la recherche agronomique
                        —     Institut national de la santé et de la recherche médicale
                        — ORSTOM — Institut français de recherche scientifique pour le développement en coop­
                              ération
                  1.3 . With an administrative character :
                        —     Agence nationale pour 1'emploi
                        —     Caisse nationale des allocations familiales
                        —     Caisse nationale d'assurance maladie des travailleurs salariés
                        —     Caisse nationale d'assurance vieillesse des travailleurs salariés
                        — Office national des anciens combattants et victimes de la guerre
                        — Agences financières de bassins
                  Categories
                  1.     National public bodies :
                        —     Universités (universities )
                        — écoles normales d'instituteurs (teacher training colleges)
                  2.     Administrative public bodies at regional , departmental and local level :
                        —     colleges (secondary schools)
                        —     lycées ( secondary schools)
                        — établissements publics hospitaliers (public hospitals)
                        —     offices publics d'habitation a loyer modéré (OPHLM) (public offices for low-cost hous­
                              ing)
                  3.     Groupings of territorial authorities :
                        —     syndicats de communes (associations of local authorities)
                         —    districts (districts )
                        —     communautés urbaines (municipalities)
                        —     institutions interdépartementales et interrégionales ( Institutions common to more than
                              one department and interregional institutions)
            VII . In IRELAND
                  Bodies
                  —      Shannon Free Airport Development Company Ltd
                  —      Local Government Computer Services Board
                  —      Local Government Staff Negotiations Board
                  —      Coras Trachtála ( Irish Export Board)
                  —      Industrial Development Authority
                  —      Irish Goods Council ( Promotion of Irish Goods)
                  —      Coras Beostoic agus Feola (CBF) ( Irish Meat Board)
                  —      Bord Fáilte Eireann ( Irish Tourism Board)
                  —      Udarás na Gaeltachta ( Development Authority for Gaeltacht Regions)
                  —      An Bord Pleanála ( Irish Planning Board)
 ---pagebreak--- No . C 46 /94                              Official Journal of the European Communities                                          20. 2 . 92
                     Categories
                     — Third-level educational bodies of a public character
                     — National training, cultural or research Agencies
                     — Hospital boards of a public character
                     —    National health and social agencies of a public character
                     —    Central and regional fishery boards
              VIII . In ITALY
                     Bodies
                     — agenzia per la promozione delle sviluppo nel mezzogiorno
                     Categories
                     — enti portuali e aeroportuali (port and airport authorities)
                     — consorzi per le opere idrauliche (consortia for water engineering works)
                     — le università statali, gli istituti universitari statali, i consorzi per i lavori interessanti le univer­
                          sità (State universities, State university institutes, consortia for university development work)
                     — gli istituti superiori scientifici e culturali, gli osservatori astronomici, astrofisici, geofisici o
                          vulcanologici (higher scientific and cultural institutes, astronomical, astrophysical, geophysi­
                          cal or vulcanological observatories)
                     — enti di ricerca e sperimentazione (organizations conducting research and experimental work)
                     — le istituzioni pubbliche di assistenza e di beneficenza (public welfare and benevolent institu­
                          tions )
                     — enti che gesticono forme obbligatone di previdenza ed assistenza (agencies administering
                          compulsory social security and welfare schemes)
                     — consorzi di bonifica (land reclamation consortia)
                     — enti di sviluppo o di irrigazione (development or irrigation agencies)
                     — consorzi per le aree industriali (associations for industrial areas)
                     — comunita montane (groupings of municipalities in mountain areas)
                     — enti preposti a servizi di pubblico interesse (organizations providing services in the public
                          interest)
                     — enti pubblici proposti ad attività di spettacolo, sportivo, turistiche e del tempo libero (public
                          bodies engaged in entertainment, sport, tourism and leisure activities)
                     — enti culturali e di promozione artistica (organizations promoting culture and artistic activities)
               IX . In LUXEMBOURG
                     Categories
                     — Les établissements publics de l'État placés sous la surveillance d'un membre du Gouverne­
                          ment (public establishments of the State placed under the supervision of a member of the
                          Government)
                     — Les établissements publics placés sous la surveillance des communes (public establishments
                          placed under the supervisior of the communes)
                     —    Les syndicats de communes créés en vertu de la loi du 14 février 1900 telle qu'elle a été modi­
                          fiée à la suite (associations of communes created under the law of 14 February 1990 as subse­
                          quently modified)
                X. In NETHERLANDS :
                     Bodies
                     — de Nederlandse Centrale Organisatie voor Toegepast Natuurwetenschappelijk Onderzoek
                          (TNO) en de daaronder ressorterende organisaties
                     Categories
                     — de waterschappen (administration of water engineering works)
                     — de instellingen van wetenschappelijk onderwijs vermeld in artikel 8 van de Wet op het
                          Wetenschappelijk Onderwijs ( 1985), de academische ziekenhuizen (institutions for scientific
 ---pagebreak--- 20. 2 . 92                             Official Journal of the European Communities                                 No . C 46 /95
                      education, as listed in Article 8 of the Scientific Education Act ( 1985) (Wet op het Weten­
                      schappelijk Onderwijs ( 1985 ), teaching hospitals)
            XI . In PORTUGAL
                 Categories
                 — Estabelecimentos Públicos de Ensino, Investigação Cientifica e Saúde (public establishments
                      for education, scientific research and health)
                 —    Institutos Publicos sem caracter comercial ou industrial (public institutions without commer­
                      cial or industrial character)
                 —    Fundações Públicas (public foundations)
                 —    Administrações Gerais e Juntas Autonómas (general administration bodies and independent
                      councils)
           XII . In the UNITED KINGDOM
                 Bodies
                 —    National Rivers Authority
                 —    National Research Development Corporation
                 —    Universities Funding Council
                 —    Polytechnics and Colleges Funding Council
                 —    Central Blood Laboratory Service
                 —    Health And Safety Executive
                 —    Northern Ireland Housing Executive
                 —    Public Health Laboratory Service
                 —    Scottish Homes
                 —    Commission for the New Towns
                 —    Design Council
                 —    Arbitration , Conciliation and Advisory Service
                 — Cardiff Bay Development Corporation
                 —    Development Board for Rural Wales
                 —    London Docklands Development Corporation
                 —    Merseyside Development Corporation
                 —    English Industrial Estates Corporation
                 —    Scottish Development Agency
                 —    Urban Development Corporation
                 — Welsh Development Agency
                 Categories
                 —    Education authorities
                 —    Research councils
                 —    National health service authorities
                 —    New town corporations
                 —    Fire authorities
                 —    Police authorities
 ---pagebreak--- No . C 46 /96                            Official Journal of the European Communities                                           20 . 2 . 92
                                                                 ANNEX II
                                              LIST OF PROFESSIONAL ACTIVITIES
              as set out in the general industrial classification of economic activities within the European Communities
              Classes      Groups
                                      Subgroups                                      Description
                                       and items
                50                                    BUILDING AND CIVIL ENGINEERING
                             500                            General building and civil engineering work (without any parti­
                                                            cular specialization) and demolition work
                                         500.1                 General building and civil engineering work (without any
                                                              particular specialization)
                                         500.2                 Demolition work
                             501                            Construction of flats, office blocks, hospitals and other build­
                                                            ings, both residential and non-residential
                                         501.1                General building contractors
                                         501.2                 Roofing
                                         501.3                Construction of chimneys, kilns and furnaces
                                         501.4                 Waterproofing and damp-proofing
                                         501.5                 Restoration and maintenance of outside walls (repainting,
                                                              cleaning, etc. )
                                         501.6                 Erection and dismantlement of scaffolding
                                         501.7                Other specialized activities relating to construction work
                                                              ( including carpentry)
                             502                            Civil engineering : construction of roads, bridges, railways, etc.
                                         502.1                General civil engineering work
                                         502.2                 Earth-moving (navvying)
                                         502.3                Construction of bridges, tunnels and shafts, drilling
                                         502.4                 Hydraulic engineering (rivers, canals , harbours , flows , locks
                                                              and dams)
                                         502.5                 Road-building (including specialized construction of air­
                                                              ports and runways )
                                         502.6                 Specialized construction work relating to water ( i.e. to irri­
                                                              gation , land drainage, water supply , sewage disposal , sewer­
                                                              age , etc.)
                                         502.7                Specialized activities in other areas of civil engineering
                             503                            Installation (fittings and fixtures)
                                         503.1                General installation work
                                         503.2                Gas fitting and plumbing, and the installation of sanitary
                                                              equipment
                                         503.3                 Installation of heating and ventilating apparatus (central
                                                              heating, air conditioning, ventilation)
                                         503.4                Sound and heat insulation , insulation against vibration
                                         503.5                Electrical fittings
                                         503.6                 Installation of aerials, lightning conductors, telephones, etc.
                             504                            Building completion work
                                         504.1                General building completion work
                                         504.2                 Plastering
                                         504.3                Joinery, primarily, engaged in on the site assembly and/or
                                                              installation (including the laying of parquet flooring)
                                         504.4                 Painting, glazing, paperhanging
                                         504.5                Tiling and otherwise covering floors and walls
                                         504.6                Other building completion work (putting in fireplaces , etc. )
 ---pagebreak--- 20. 2 . 92                               Official Journal of the European Communities                                       No . C 46 /97
                                                               ANNEX III
                                  DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS
           For the purposes of this Directive the following terms shall be denned as follows :
           1.    Technical specifications . the totality of the technical prescriptions contained in particular in the ten­
                der documents , defining the characteristics required of a work, material, product or supply, which
                permits a work, a material, a product or a supply to be described in a manner such that it fulfils the
                use for which it is intended by the contracting authority. These technical prescriptions shall include
                levels of quality, performance, safety or dimensions, including the requirements applicable to the
                material, the product or to the supply as regards quality assurance, terminology, symbols, testing
                and test methods, packaging, marking or labelling. They shall also include rules relating to design
                and costing, the test, inspection and acceptances for works and methods or techniques of construc­
                tion and all other technical conditions which the contracting authority is in a position to prescribe ,
                under general or specific regulations, in relation to the finished works and to the materials or parts
                which they involve ;
           2.   Standard : a technical specification approved by a recognized standardizing body for repeated and
                continuous application, compliance with which is in principle not compulsory ;
           3.   European standard: a standard approved by the European Committee for Standardization (CEN) or
                by the European Committee for Electrotechnical Standardization (Cenelec) as ' European standards
                ( EN )' or ' Harmonization documents ( HD)' according to the common rules of these organizations ;
           4.   European technical approval: a favourable technical assessment of the fitness for use of a product,
                based on fulfilment of the essential requirements for building works , by means of the inherent char­
                acteristics of the product and the defined conditions of application and use . The European agree­
                ment shall be issue by an approval body designated for this purpose by the Member State ;
           5.   Common technical specification : a technical specification laid down in accordance with a procedure
                recognized by the Member States to ensure uniform application in all Member States which has
                been published in the Official Journal of the European Communities ;
           6.   Essential requirements : requirements regarding safety, health and certain other aspects in the gen­
                eral interest , that the construction works can meet .
 ---pagebreak--- No . C 46 / 98                             Official Journal of the European Communities                                     20 . 2 . 92
                                                                 ANNEX IV
                                                    MODEL CONTRACT NOTICES
                                                            A. Prior information
               1 . The name, address , telegraphic address, telephone, telex and facsimile numbers of the contracting
                   authority :
               2 . (a) The site :
                   (b) The nature and extent of the services to be provided and, where relevant, the main characteris­
                         tics of any lots by reference to the work :
                   ( c) If available : an estimate of the cost range of the proposed services :
               3 . (a) Estimated date for initiating the award procedures in respect of the contract or contracts :
                   (b) If known : estimated date for the start of the work :
                   (c ) If known : estimated timetable for completion of the work :
               4. If known : terms of financing of the work and of price revision and/or references to the provisions
                   in which these are contained :
               5.  Other information :
               6 . Date of dispatch of the notice :
               7 . Date of receipt of the notice by the Office for Official Publications of the European Communities :
                                                             B. Open procedures
               1 . The name, address , telephone number, telegraphic address, telex and facsimile numbers of the con­
                   tracting authority :
               2 . (a) The award procedure chosen :
                   (b) Nature of the contract for which tenders are being requested :
               3 . (a ) The site :
                   (b) The nature and extent of the services to be provided and general nature of the work :
                   ( c) If the work or the contract is subdivided into several lots, the size of the different lots and the
                         possibility of tendering for one, for several or for all of the lots :
                   ( d) Information concerning the purpose of the work or the contract where the latter also involves
                         the drawing up of projects :
               4. Any time limit for completion :
               5 . (a) Name and address of the service from which the contract documents and additional docu­
                         ments may be requested :
                   (b) Where applicable, the amount and terms of payment of the sum to be paid to obtain such
                         documents :
               6 . (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 :
               7 . ( a ) Where applicable, the persons authorized to be present at the opening of tenders :
                   (b) The date, hour and place of such opening :
               8 . Any deposit and guarantees required :
 ---pagebreak--- 20. 2 . 92                                Official Journal of the European Communities                                     No . C 46/99
              9 . Main terms concerning financing and paymant and / or references to the provisions in which these
                  are contained :
            10. Where applicable, the legal form to be taken by the grouping of contractors to whom the contract is
                   awarded :
            11 . Minimum economic and technical standards required of the contractor to whom the contract is
                   awarded :
            12 . Period during which the tenderer is bound to keep open his tender :
            13 . The criteria for the award of the contract . Criteria other than that of the lowest price shall be men­
                  tioned where they do not appear in the contract documents :
            14. Where applicable, prohibition on variants :
            1 5.  Other information :
            16. Date of publication of the prior information notice in the Official Journal of the European Commu­
                   nities or references to its non-publication :
            17 . Date of dispatch of the notice :
            18 . Date of receipt of the notice by the Office for Official Publications of the European Communities :
                                                         C. Restricted procedures
              1 . The name , address, telepone number, telex and facsimile numbers of the contracting authority :
              2 . (a) The award procedure chosen :
                  ( b ) Where applicable, justification for the use of the accelerated procedure :
                  (c) Nature of the contract for which tenders are being requested :
              3 . ( a) The site :
                  (b) The nature and extent of the services to be provided and general nature of the work :
                  ( c) If the work of the contract is subdivided into several lots, the size of the different lots and the
                        possibility of tendering for one, for several or for all of the lots :
                  (d) Information concerning the purpose of the work or the contract where the latter also involves
                        the drawing up of projects :
              4 . Any time limit for completion :
              5 . Where applicable, the legal form to be taken by the grouping of contractors to whom the contract is
                  awarded :
             6 . ( 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 :
             7 . The final date for dispatch of invitations to tender :
             8 . Any deposit and guarantees required :
             9 . Main terms concerning financing and payment and/or the provisions in which these are contained :
           10 . Information concerning the contractor's personal position and minimum economic and technical
                  standards required of the contractor to whom the contract is awarded :
           1 1 . The criteria for the award of the contract where they are not mentioned in the invitation to tender :
 ---pagebreak--- No . C 46 / 100                              Official Journal of the European Communities                                      20 . 2 . 92
              12. Where applicable, prohibition on variants :
              13 .  Other information :
              14. Date of publication of the prior information notice in the Official Journal of the European Commu­
                    nities or reference to its non-publication :
              15 . Date of dispatch of the notice :
              16 . Date of receipt by the notice by the Office for Official Publications of the European Communities :
                                                           D. Negotiated procedures
                1 . The name, address, telegraphic address, telephone, telex and facsimile numbers of the contracting
                    authority :
                2 . ( a ) The award procedure chosen :
                    ( b ) Where applicable, justification for the use of the accelerated procedure :
                    ( c ) Nature of the contract for which tenders are being requested :
                3 . ( a) The site :
                    (b) The nature and extent of the services to be provided and general nature of the work :
                    ( c ) If the work or the contract is subdivided into several lots , the size of the different lots and the
                           possibility of tendering for one, for several or for all of the lots :
                    (d) Information concerning the purpose of the work or the contract where the latter also involves
                           the drawing up of projects :
                4 . Any time limit :
                5 . Where applicable, the legal form to be taken by the grouping of contractors to whom the contract is
                    awarded :
                6 . ( a) 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 :
                7 . Any deposit and guarantees required :
                8 . Main terms concerning financing and payment and/ or the provisions in which these are contained :
                9 . Information concerning the contractor's personal position and information and formalities neces­
                    sary in order to evaluate the minimum economic and technical standards required of the contractor
                    to whom the contracts awarded :
              10 . Where applicable, prohibition on variants :
              1 1 . Where applicable , the names and addresses of suppliers already selected by the awarding authority :
              12 . Where applicable, date(s) of previous publications in the Official Journal of the European Communi­
                    ties :
              13 .  Other information :
              14. Date of publication of the prior information notice in the Official Journal of the European Commu­
                    nities :
              15 . Date of dispatch of the notice :
              16 . Date of receipt of the notice by the Office for Official Publications of the European Communities .
 ---pagebreak--- 20. 2 . 92                             Official Journal of the European Communities                                 No . C 46/ 101
                                                       E. Contract awards
             1. Name and address of awarding authority :
            2.  Award procedure chosen :
            3.  Date of award of contract :
            4.  Criteria for award of contract :
            5.  Number of offers received :
            6.  Name and address of successful contractor(s):
            7.  Nature and extent of the services provided, general characteristics of the finished structure :
            8.  Price or range of prices ( minimum / maximum) paid :
            9.  Where appropriate, value and proportion of contract likely to be subcontracted to third parties :
           10 . Other information :
           11 . Date of publication of the tender notice in the Official Journal of the European Communities :
           12 . Date of dispatch of the notice :
           13 . Date of receipt of the notice by the Office for Official Publications of the European Communities :
 ---pagebreak--- No . C 46/ 102                            Official Journal of the European Communities                                20. 2 . 92
                                                                ANNEX V
                                      MODEL NOTICE OF PUBLIC WORKS CONCESSION
               1 . The name, address, telegraphic address, telephone, telex and facsimile numbers of the contracting
                    authority :
              2 . ( a ) The site :
                   ( b ) The subject of the concession , nature and extent of the services to be provided :
              3 . ( a ) Final date for receipt of candidatures :
                   (b) The address to which they must be sent :
                   (c ) The language or languages in which they must be drawn up :
              4. Personal , technical and financial conditions to be fulfilled by the candidates :
              5.   The criteria for the award of the contract :
              6 . Where applicable, the minimum percentage of the works contracts awarded to third parties :
              7.   Other information :
              8 . Date of dispatch of the notice :
              9 . Date of receipt of the notice by the Office for Official Publications of the European Communities :
                                                                ANNEX VI
                  MODEL NOTICE OF WORKS CONTRACTS AWARDED BY THE CONCESSIONNAIRE
               1 . ( a ) The site :
                   ( b ) The nature and extent of the service to be provided and the general nature of the work :
              2 . Any time limit for the completion of the works :
              3.    Name and address of the service from which the contract documents and additional documents
                   may be requested :
              4 . ( a ) The final date for receipt of requests to participate and /or 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 :
              5 . Any deposit and guarantees required :
              6 . The economic and technical standards required of the contract :
              7.   The criteria for the award of the contract :
              8.   Other information :
              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--- 20 . 2 . 92                            Official Journal of the European Communities No . C 46/ 103
                                                           ANNEX A
                                                 Repealed Directives and Decision
            Council Directive 71 /305 / EEC ,
            Council Directive 72 / 277 / EEC ,
            Council Directive 78 /668 / EEC ,
            Council Directive 89 /440/ EEC ,
            Council Directive 90/531 / EEC, only Article 35 (2),
            Commission Decision 90/ 380/ EEC .
                                                                                                   :
 ---pagebreak--- No. C 46/ 104                                      Official Journal of the European Communities                                           20. 2 . 92
                                                                         ANNEX B
                              Deadlines for application of transposition measures concerning the public works Directive
                                                            amended by Directive                             amended by Act of Accession of
    Directive 7 1 /305/ EEC (')                                                                       DK, IRL,
                                    72/277/ EEC (2) 78/669/EEC (3) 89 /440/EEC (4) 90/531 / EEC 0                        GR (7)          E,P (»)
                                                                                                       UK (6)
Article 1                                                                     x
Article 1 a                                                                   x
Article 1 b                                                                   x
Article 2                                                                 deleted
Article 3(1 )                                                             deleted
Article 3 (2)                                                             deleted
Article 3 (3)                                                             deleted
Article 3 (4) and ( 5) (a)                                                                 x
and (b)
Article 3 (4) and ( 5) (c)                                                    x
Article   4                                                                   x
Article   4a                                                                  x
Article   5                                                                   x
Article   5a                                                                  x
Article   6
Article 7(1 )                                                x            deleted
Article 7 (2)                                                             deleted
Article 8                                                                 deleted
Article 9                                                                 deleted
Article 10                                                                    x
Article 1 1                                                               deleted
Article   12                                x                                 x
Article   13                                                                  x
Article   14                                                                  x
Article   15                                                                  x
Article   15 a                                                                x
Article   15 b                                                                x
Article 16                                                                deleted
Article 17                                                                deleted
Article 18                                                                deleted
Article   19                                x                x                x
Article   20                                                                  x
Article   20 a                                                                x
Article   20 b                                                                x
Article   21
Article   22                                                                  x
Article   22 a                                                                x
Article   23
Article   24                                                                  x
Article   25                                                                                             x                 x                x
Article   26
Article   27
Article   28
Article 29 ( 1 )
Article 29 (2)
Article 29 (3)                                                            deleted
Article 29 (4)                                                                x
Article 29 ( 5 )                                                              x
Article   29  a                                                               x
Article   29  b                                                               x
Article   30
Article   30  a                                                               x
Article   30  b                                                               x
Article 3 1                                                               deleted
Article 32
Article 33
Article 34
Annexes I to VI                          I and II                          I to VI                       I                 I                I
(')    EC-6 :             30 .7 . 1972 ;          (3) EC-9 :        16.2.1979 ;         (5)   EC-9 :      1.1 . 1993 ;
       DK, IRL, UK :      1.1.1973 ;                  GR :          1.1.1981 ;                E:          1 . 1 . 1996 ;
       GR :               1.1.1981 ;                  E, P :        1.1.1986 .                GR, P :     1.1.1998 .
       E, P :             1.1.1986 .              (4) EC-9 :        19.7.1990 ;         (6)   EC-9 :      1.1 . 1973 .
(2)    EC-6 :             3.8.1972 ;                  GR, E , P :   1.3.1992 .          (7)   EC-10 :     1 . 1 . 1980.
       DK,IRL, UK :       1.1.1973 ;
       GR :               1.1.1981 ;                                                    (8)   EC-12 :     1.1.1986.
       E, P :             1.1.1986.
 ---pagebreak--- 20. 2 . 92       Official Journal of the European Communities             No . C 46/ 105
                                           ANNEX C
                                        Correlation table
                 Directive 7 1 / 305 / EEC                 This Directive
           Article 1                                  Article 1
           Article 1 a                                Article 2
           Article 1 b                                Article 3
           Article 2                                  —
           Article 3(1 )                              —
           Article 3 ( 2)                             —
           Article 3 (3 )                             —
           Article 3 (4) and ( 5) (a) and (b)         Article 4 (a)
           Article 3 (4) and ( 5) ( c)                Article 4 (b)
           Article 4                                  Article 5
           Article 4 a                                Article 6
           Article 5                                  Article 7
           Article 5 a                                Article 8
           Article 6                                  Article 9
           Article 7                                  —
           Article 8                                  —
           Article 9                                  —
           Article 10                                 Article 10
           Article 1 1                                —
           Article 12                                 Article 11
           Article 13                                 Article 12
           Article 14                                 Article 13
           Article 15                                 Article 14
           Article 15 a                               Article 15
           Article 15 b                               Article 16
           Article 16                                —
           Article 17                                —
           Article 18                                —
           Article 19                                 Article 17
           Article 20                                 Article 18
           Article 20 a                               Article 19
           Article 20 b                               Article 20
           Article 21                                 Article 21
           Article 22                                 Article 22
           Article 22 a                               Article 23
           Article 23                                 Article 24
           Article 24                                 Article 25
           Article 25                                 Article 26
           Article 26                                 Article 27
           Article 27                                 Article 28
           Article 28                                 Article 29
           Article 29 ( 1 )                           Article 30 ( 1 )
           Article 29 (2 )                            Article 30 (2)
           Article 29 (3 )                           —
           Article 29 (4)                            Article 30 (3 )
           Article 29 (5 )                           Article 30 (4)
           Article 29  a                             Article  31
           Article 29  b                             Article  32
           Article 30                                Article  33
           Article 30  a                             Article  34
           Article 30  b                             Article  35
           Article 31                                —
           —                                         Article 36
           Article 32                                —
           Article 33                                —
           —                                          Article 37
           Article 34                                Article 38
           Annexes I to VI                           Annexes I to VI
           —                                         Annexes VII to VIII