Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
COMMISSION OF THE EUROPEAN COMMUNITIES •it •it à <r <i it Brussels, 20. 11. 1996 COM(96) 598 final 95/ 0080 (COD) Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (presented by the Commission pursuant to Article 189 a (2) of the EC-Treaty) List of contents EXPLANATORY MEMORANDUM Introduction I Detailed analysis of Articles II PROPOSAL FOR A PARLIAMENT AND COUNCIL DIRECTIVE Preamble Article 1: Amendments to Directive 93/38/EEC Articles 2 - 5: Final provisions Annex Annex XII A Annex XII B Annex XII C Annex XIII Annex XIV Annex XV I 1. 2. Explanatory Memorandum Introduction The Government Procurement Agreement (GPA or, in French, AMP) forms an integral part of the legal order of the Community through Council Decision 94/800/EEC of 22 December 1994, which approves the agreements reached in the Uruguay Round multilateral negotiations. TTiis does, however, not entail that its provisions can be directly invoked before the jurisdictions of the Community and the Member States (last recital of Decision 94/800/EEC). Consequently, the GPA entered into force in the Community on 1 January 1996 as stipulated in its Article XXIV. Its implementation by the Community does not therefore, per se, require any transposing measures. b) The Commission has, nevertheless proposed a series of modifications to the Directive, aimed at inserting some provisions of the GPA in the Directives in order to: a) avoid discrimination against Community companies and give them the same advantages that third country companies enjoy pursuant to the GPA; and ensure coherence between the two legal regimes. This way contracting authorities, which are subject to both the directives and the GPA, will be able to conform to the GPA by applying the provisions of the amended Directives. They would otherwise be obliged to know both legal regimes perfectly, to highlight the differences between them and to draw the correct consequences of these differences. That would seem to be a difficult process which could lead to significant differences in the application of Community law in the different Member States. This does not in any way constitute a unilateral opening of the Community markets to companies from third countries. The GPA and the Community Directives are two distinct legal realities. The former regulates the relations between the Community and third countries having signed the GPA with regard to the contracts covered therein. The rights for companies from third countries to access to contracts awarded by contracting authorities and contracting entities in the Community are therefore governed by the GPA. The Directives, whether amended or not, only deals with the intra-Community relations, that is the relations between the European contracting entities and authorities and the European companies. It does not create rights for companies from third countries, whose rights exclusively derive from the GPA or other international agreements. The Commission is, in other words, trying to ensure that European companies are given a level playing field by proposing to amend the directives. With few minor and strictly technical exceptions, which are necessary for reasons of legislative technique, the Commission intends to limit itself to amending the directives only insofar as this is strictly necessary in order to avoid discrimination against Community companies. 3. On 30 March 1995, the Commission sent the Council and the European Parliament two proposals for a Directive of the Council and of the European Parliament, one amending Directives 92/50/EEC, 93/36/EEC and 93/37/EEC (regarding the procurement of, respectively, services, supplies and works by public authorities), and the other amending Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. Only the latter will be examined in the following paragraph. 4. In July 1995, the Economic and Social Committee adopted its Opinion on the proposals, in which certain aspects of the proposal amending Directive 93/38/EEC were criticized, notably with regard to the scope of the proposal, the provision on the so-called "technical dialogue" and the amendments to the model notices (annexes XII - XV of the Directive). 5. A hearing organized by the European Parliament on 31 October 1995 as well as numerous contacts with different sectors of industry made it clear that the proposal amending Directive 93/38/EEC (hereafter referred to as the Directive or the "utilities directive") was the subject of some misunderstandings, in particular with regard to the effects of the proposal for companies of third countries. In fact, many considered that the proposals were aimed at implementing the GPA and that third country companies would have access to all award procedures covered by the proposal, regardless of whether the sector, contract or entity is subject to the GPA. See however point 2 above. It also became clear that some of the proposed amendments, particularly those concerning the "technical dialogue", the amendments to the annexes (model notices) and the obligation to inform rejected participants of the reasons for the rejection of a tender or request to participate, raised numerous concerns among the, organisations represented. 6. In October 19% the European Parliament adopted its legislative resolution, which rejects the Commission's proposal and invites it to take appropriate measures in cooperation with the European Parliament in order to present a new proposal which provides for the implementation of the GPA by means of a specific (separate) directive. 7. While the Commission has not accepted the idea of a separate directive, as it presents a series of major drawbacks, it has nevertheless examined together with the European Parliament the possibilities of improving its proposal. All in all, the Commission considers that there is room to improve its proposal through appropriate modifications and clarifications, the more so as a revision of the proposal aimed at clarifying and simplifying the proposal is in full line with the Commission's general policy on better law-making. The principal amendments introduced in the revised proposal consist in: - a clarification of the fields of application of the GPA and the directives as well as a clear statement as to the legal regime applicable to third country companies; - - - - the earlier provision on "technical dialogue" has been replaced by a recital; the changes to the thresholds have been limited to the contracts and sectors, which are subject to the GPA; the obligation to inform eliminated candidates or tenderers of the reasons for their rejection and eliminated tenderers of the characteristics and advantages of the tender selected has been limited to the sectors covered by the GPA; the amendments to the model notices, and in particular the notice on the existence of a qualification system (Annex XIII) and the periodic information notice (Ajinex XIV), have been limited to what is explicitly required by the GPA as is the case regarding the information to be provided by contracting entities when they invite ^"'. 'Better Law-Making: Commission Report to the European Council on the application of the subsidiarity and proportionality principles, on simplification and on consolidation", CSE (95) 580. candidates to confirm their interest following publication of a periodic indicative notice used as a means of calling for competition; and - the introduction of an obligation on the Commission to respect the commercially sensitive nature of information communicated by contracting entities in notices on contracts awarded and concerning prices. II Analysis of the recitals and articles. The following paragraphs explain the modifications which have been introduced. 8. Recitals. The third recital has been amended to make it clear that the rights of third- country firms depend only on the GPA and not on the amended Directives. It is also aimed at giving a clear picture of what is not covered by the GPA but does fall within the scope of the Directive and it likewise stresses that the amendment of the Directive cannot have anything to do with reciprocity or non-reciprocity vis-à-vis firms in non-member signatory countries. The Directive deals only with intra-Community relations, i. e. relations between contracting entities and firms within the Community, and does not create any rights which benefit firms in third countries; such rights can only flow from the GPA. This should also help to make it understood that the Directive can be amended in respect of private entities (in sectors covered by the GPA or not) without granting third-country firms access to contracts put up for tender by these contracting entities. A new twelfth recital has been inserted instead of the earlier proposed amendment to Article 18. The purpose of the recital is to give an explicit reminder of what already follows from current Community law as applied to technical advice. In fact, while nothing in current Community Law prevents entities seeking or accepting advice which may be used in the preparation of specifications for a particular procurement from a firm that could take part in the tender procedure, such is not the case pursuant to current Community Law where so doing would this prejudice the principle of equal treatment, in particular by precluding competition. This being the case* there is no need to amend the provisions of the Directive in order to take into account Article VI(4) of the GPA. The wording of recitals 10 and 11 have been changed to take into account the amendments of the articles. 9. Article 1 Article 1 has been amended in parallel with the third recital and for the same purpose (see point 7 above). 10. Article 14 (1) - thresholds. This amendment limits the changes to the thresholds so that these are amended exclusively with regard to the sectors and contracts, which are subject to the GPA. In line with the general approach of the Directive, the applicability of which does not depend on the public or private statute of contracting entities, the amended thresholds continue to apply to all contracting entities operating in any given sector, whether these are public undertakings or private undertakings operating on the basis of special or exclusive rights. Letter a establishes the thresholds applicable to the telecommunications sector. These thresholds are unchanged as compared to the currently applicable ones. Letter b introduces the new thresholds, which are applicable to the sectors subject to the GPA (i. e. the drinking water, electricity, (urban) transport, airport and port sectors). Regarding service contracts in particular, two thres holds are provided for as subparagraph i applies to the types of service contracts, which are subject to the GPA (i. e. the services listed the exception of R&D-services and certain telecommunications services), whereas subparagraph ii applies to all other service contracts subject to the Directive (i. e. the two just mentioned categories and the types of services listed in Annex XVI B). in Annex XVI A with -6 Letter c provides the thresholds applicable to the remaining sectors not subject to the GPA. These thresholds are unchanged. The Commission originally introduced Iwo paragraphs on thresholds. It is now proposed to simplify the proposal by gathering these provisions in a single paragraph. 11. Article 14 (14) to (16) Calculation of the value in national currencies and in ecus of the thresholds. As a result of the just mentioned simplification, these paragraphs have been renumbered, but are otherwise unchanged. 12. Article 21 (2) (c) Information requirements in relation to periodic indicative notices used as a means of calling for competition. This provision has been amended so that the information required is limited to what is explicitly required pursuant to Article IX (4) and (6) of the GPA. Currently, the Directive requires contracting entities to invite all candidates to confirm their interest on the basis of "detailed information on the contract concerned". In order to maintain the proposal simple and to avoid speculations as to whether and if so how "detailed information" differs from the explicitly listed information, the amendments continue to be applicable to all contracting entities, sectors and contracts, whether or not covered by the GPA. 13. Article 22 (1) (b) thresholds for the publication of periodic indicative notices regarding works contracts. In line with the changes to Article 14(1), the thresholds for the publication of periodic indicative notice regarding works contracts have been amended so that they remain unchanged for the sectors not covered by the GPA. 14. Article 23 (1) and (2) thresholds applicable to design contests. These thresholds have been amended in the same way that the general provision on thresholds in Article 14 (1) has been amended. This means that the thresholds remain unaltered compared to those currently applicable with regard to the contracts and sectors, which are not subject to the GPA. For the reasons explained above, the thresholds are amended in respect of all the contracting entities - both public and private, operating in the sectors covered by the GPA, when organising design contests concerning a service, which is also covered by the GPA (i. e. an Annex XVI A service except R&D services and certain telecommunications services). 15. Article 24 (2) confidentiality of certain aspects of the information to be communicated on the award of contracts. This amendment, which is in part a simple consequence of the amendments to Annex XV (model notice on contract awards), aims at ensuring that the Commission respects the sensitive commercial aspects, in particular regarding the price, of the information on contract awards, which contracting entities must transmit to the Commission. 16. Article 26 (1) Shortened deadlines in open procedures following publication of an indicative notice. The amendments are aimed at rendering the deadlines more flexible and at clarifying the information requirements in accordance with the amendments to Annex XIV. The deadlines have also been changed so as to be calculated in all cases from the date of dispatch of notice. 17. Article 26 (2) Deadlines under restricted or negotiated procedures. - 7- This provision has been simplified as compared to the Commission's original proposal, notably as regards the deadlines for the receipt of tenders. Given, in fact, the unconditional possibilities of agreeing the deadline or shorten it, the introduction of the general minimal deadline and the possibility of shortening the deadline following the publication of a periodic indicative notice have been seen as bringing about little change in practice and as rendering a complex text necessary. With the exception of the slight lengthening of the deadline for the receipt of requests to participate (from 5 weeks to 37 days as a general rule), which was introduced in the Commission's original proposal, the text now proposed is identical to the currently applicable text. 18. Article 28 (5) Transmission of requests to participate by electronic means. This provision has been rendered more flexible, as it has been left with the Member States to decide whether to require written confirmation in case of transmission of requests to participate by electronic means. 19. Article 28 (6) Submission of tenders by electronic means. This provision has been simplified so that it now limits itself to the essential conditions to be met where Member States authorize the submission of tenders by other means of transmission than by mail or by direct delivery of a written tender. Other means of transmission may, in fact, be authorized where the means of transmission offer sufficient guarantees of ensuring confidentiality and where the it can be ensured that the opening of tenders take place after expiration of the relevant deadline. Where necessary for reasons of legal proof, it may also be required that such tenders be confirmed in writing or by dispatch of a certified copy. The Commission considers that the necessary confidentiality can be guaranteed in case of tenders presented on diskette or on any other medium and submitted under cover directly or by mail. In line with its original proposal, the Commission also continues to consider that it is technically possible to ensure at least an equivalent level of confidentiality using electronic means, in particular electronic mail, for the submission of tenders. The explicit provision of the original proposal that tenders submitted by telephone are not permitted has been deleted because the economy of the text now proposed renders it superfluous. Such means of transmission continues, of course, to be unacceptable. 20. Article 41 Information to rejected candidates and tenderers. Besides a new structure, which is easier to read, the major change has been to limit the obligations of paragraphs 3 and 4 to contracting entities operating in the sectors covered by the GPA. Within these sectors, the obligations apply, however, in respect of all contracting entities, whether public or private. Paragraph 3 has furthermore been formulated so as to correspond more clearly to Article XVIII (3) of the GPA. Information regarding other tenderers has furthermore been restricted to tenderers having made an "admissible tender" in order to avoid abuses. 21. Article 42 Statistical obligations. This provision has been changed in the sense that the information to be con tained in the annual report is no longer listed in the provision itself. Instead, the provision now establishes that the report shall "contain the information necessary to verify the proper application of the GPA". The precise content of the report and the modalities for its transmission etc. will be laid down in the Advisory Committee in accordance with the procedure provided for in Article 40 (4) to (8), also in view of the fact that negotiations on the details of the statistical obligations are ongoing within the WTO. The other change to this Article consists in an exhaustive listing of the categories of service contracts which are not subject to the statistical obligations of this provision. 22. Article 42a The terminology of this Article has been corrected, in that reference is made to the GPA instead of to the G ATT-Agreement. - 8- 23. Annexes XII to XV (model notices). The changes to Annex XII are purely redactional. Annex XIII has been greatly simplified and the few changes as compared to the currently applicable Annex XIII are undisputably limited to what follows explicitly from the relevant parts of Article IX of the GPA. Annex XIV has been restructured and simplified and the few changes as compared to the currently applicable Annex XIV arc undisputably limited to what follows explicitly from the relevant parts of Article IX of the GPA. Finally, the changes to Annex XV are purely redactional, with the exception of the footnote echoing the amendments to Article 24 (2) (see also point 14 above). Other provisions. 24. Article 30 (1) (Access to qualification systems), Article 35 (1) (other award criteria) and the deletion of Article 38 have not been changes as compared to the Commission's original proposal. 25. Other changes. A certain number of provisions, which it was proposed to amend in the Commission's original proposal, have been deleted from this revised proposal as a direct consequence of the amendments now introduced. Such is, for instance, the case regarding the amendments to Article 14(10) and (11), which are no longer necessary since the thresholds are no longer contained in two different paragraphs of that Article. Another example is given by the amendments to Article 22 (3), which are no longer necessary, given the now proposed amendments to Article 26 (2). The amendment of Article 20 (2) (f), which was proposed in the Commission's original proposal, has also been deleted, as it is not indispensable, in practice, in order to avoid discrimination against European companies, given that contracting entities, which are subject to the GPA, will in any case be obliged to apply the corresponding provision of Article XV (1) (f) of the GPA, which provides that contracts concerning additional works may be awarded by negotiated procedure without prior publication only in respect of an aggregate 50% of the value of the original contract. Consequently, where the value of the additional works is above an aggregate 50% of the value of the original contract, such contracting entities must, in any case, publish a notice in the O. J. E. C, which will also serve to alert European companies to the coming award procedure. 26. Article 2 Dates of entry into force. The date for implementation mentioned in paragraph 1 is provisional. Paragraph 2 has been changed in order to make it clear that, pursuant to point 9 of the Community's "General Notes and Derogations from the provisions of Article III", the derogation accorded to the Kingdom of Spain only concerns service contracts. Amended Proposal for a DIREC TIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 93/38/EEC coordinating the procurement procedures of entities opcniting in the water, energy, transport and telecommunications sectors THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION Having regard to the Treaty establishing the European Community and in particular the last sentence of Articles 57 (2), 66 and 100a thereof Having regard to the proposal from the Commission , Having regard to the opinion of the Economic and Social Committee Acting in accordance with the procedure referred to in Article 189b of the Treaty4 1. Whereas by its Decision 94/800/EC concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) , the Council approved on behalf of the European Union inter alia the Agreement on Government Procurement, hereinafter referred to as "the Agreement", the purpose of which is to establish an international framework of balanced rights and obligations with respect to government procurement with a view to achieving liberalization and expansion of world trade; 2. Whereas Directive 93/38/EEC coordinated the national procedures relating to the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, in order to introduce equal conditions of competition for such contracts in all the Member States; 3. Whereas, in view of the international rights and commitments devolving on the Union as a result of the acceptance of the GPA, the arrangements to be applied to tenderers and products from signatory third countries are those defined by the GPA, the scope of which does not include contracts awarded by contracting entities referred to in Article 2(1 )(b), contracts awarded by contracting entities carrying out activities referred to in Annexes III, IV, V, VI and X, service contracts listed in Annex XVI B, R&D in Category 8 of Annex XVI A, telecommunications service contracts mentioned in Category 5 of Annex XVI A whose CPC numbers are 7524, 7525 and 7526 and financial service contracts mentioned in Category 6 of Annex XVI A in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services; service contracts mentioned 4. Whereas, certain provisions of the Agreement introduce more favourable conditions for tenderers than those laid down in Directive 93/38/EEC; 5. Whereas, when contracts are awarded by contracting entities within the meaning of the agreement, the opportunities for access to public supplies, works and service contracts available under the Treaty to undertakings and products from the Member States must be at least as favourable as the conditions of access to public contracts within the Union accorded under the arrangements contained in the Agreement to 2OJ N C 3OJ N C 4OJ N C 5 OJ N L 3 3 6, 2 3. 1 2. 1 9 9 4, p - 1 0- undertakings and products from Agreement; third countries which are signatories to the 6. Whereas it is therefore necessary to adapt and supplement the provisions of Directive 93/38/EI'X'; 7. Whereas the need to ensure a real opening-up of the market and a fair balance in the application of procurement rules in these sectors continues to require that the entities to be covered must be identified on a different basis than by reference to their legal status; 8. Whereas the extension of the benefits of the provisions of Council Directive 93/38/EEC to third countries must be granted in such a way that equal treatment between private and public entities is ensured; 9. Whereas it must be ensured that the rules in Member States governing the system of property ownership shall not be prejudiced (Art. 222 of the Treaty); 10. Whereas the application of the Directive must be simplified and the equilibrium, which has been reached in the current Community legislation in the field of public procurement in these sectors, must be maintained as far as possible; 11. Whereas it is therefore necessary to extend the applicability of certain of the adaptations of the Directive to all the contracting entities and sectors covered by Directive 93/38/EEC;. 12. Whereas Article VI(4) of the GPA, whereby entities shall not seek or accept, in a manner which would have the effect of precluding competition, advice which may be used in the preparation of specifications for a specific procurement from a firm that may have a commercial interest in the procurement, is implicit in the present Article 4(2) of Directive 93/38/EEC and whereas, therefore, an amendment to the Directive to that effect is unnecessary; 13. Whereas the opening-up of contracts in the sectors covered by this Directive might have an adverse effect upon the economy of the Kingdom of Spain; whereas the economies of the Hellenic Republic and the Portuguese Republic will have to sustain even greater efforts; whereas it is appropriate that these Member States be granted adequate additional periods to implement this Directive, HAS ADOPTED THIS DIRECTIVE: Article 1 Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors is hereby amended as follows without prejudice to the international rights and commitments devolving on the Community as a result of the acceptance of the GPA, which defines the arrangements to be applied to tenderers and products from signatory third countries and the current scope of which does not include contracts awarded by contracting entities referred to in Article 2(1 )(b), contracts awarded by contracting entities carrying out activities referred to in Annexes III, IV, V, VI and X, service contracts listed in Annex in Category 8 of Annex XVI A, XVI B, telecommunications service contracts mentioned in Category 5 of Annex XVI A whose CPC numbers are 7524, 7525 and 7526 and financial service contracts mentioned in Category 6 of Annex XVI A in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services: R&D service contracts mentioned 1. Article 14(1) shall be replaced by the following: " 1. This Directive shall apply to: - 1 1- Ca) contracts awarded by contracting entities carrying out activities referred to in Annex X , provided that the estimated value, net of VAT, is not less than: (i) ECU 600 000 in the case of supply and service contracts; (ii) ECU 5 000 000 in the case of works contracts. (b) contracts awarded by contracting entities carrying out activities referred to in Annexes I, II, VII, VIII and IX , provided that the estimated value, net of VAT, is not less than: (i) the equivalent in ECU of 400 000 SDR for supply contracts and for the service contracts listed in Annex XVI A, except for the R&D services mentioned in Category 8 and Category 5 telecommunications services, the CPC reference numbers of which are 7524, 7525 and 7526; (ii) ECU 400 000 in the case of service contracts other than those mentioned in(i); (iii) the equivalent in ECU of 5 000 000 SDR for works contracts. (c) contracts awarded by contracting entities carrying out activities referred to in Annexes III, IV, V, and VI , provided that the estimated value, net of VAT, is not less than: (i) ECU 400 000 in the case of supply and service contracts; (ii) ECU 5 000 000 in the case of works contracts. " I I {. | |, 1 H 2. The following paragraphs shall be added to Article 14: "14. The value in national currencies of the thresholds specified in paragraph 1 shall, in principle, be revised every two years with effect from the date provided for in Directive 93/36/EEC as far as the thresholds for supply and service contracts are concerned and from the date provided for in Directive 93/37/EEC as far as the thresholds for works contracts are concerned. The calculation of such value shall be based on the average daily values of those currencies expressed in ecus over the 24 months terminating on the last day of August preceding the revision with effect from 1 January. These values shall be published in the Official Journal of the European Communities at the beginning of November. 15. The thresholds of the GPA expressed in ecus shall in principle be revised even/ two years with effect from 1 January 1996. The calculation of these values shall be based on the average daily value of the ecu expressed in SDRs over the 24 months terminating on the last day of August preceding the revision with effect from 1 January. These values shall be published as provided for in paragraph 14. 16. The methods of calculation laid down in paragraphs 14 and 15 shall be examined pursuant to the second subparagraph of Article 5(1 )(c) of Directive 93/36/EEC. " 6Annex X: contracting entities in the telecommunications sector. 7Annex I : Entities in the sectors covering the production, transport or distribution of drinking water. Annex II. entities in the sectors covering the production, transport or distribution of electricity. Annex VII: entities in the field of urban railway, tramway, trolleybus or bus services. Annex VIII: entities in the field of airport facilities. Annex IX: entities in the field of maritime or inland port or other terminal facilities. 8Annex III: Entities in the sectors covering the transport or distribution of gas or heat. Annex IV: Entities in the sectors covering the exploration for and extraction of oil or gas. Annex V: entities in the sectors covering the exploration for and extraction of coal and other solid fuels. Annex VI: entities in the filed of railway services. - 1 2- 3. Article 21(2)(c) shall be replaced by the following: interest on the basis of detailed "(c)contracting entities shall subsequently invite all candidates to confirm their information on the contract concerned before beginning the selection of tenderers or participants in negotiations. The information must include at least the following: (a) the nature and quantity, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised; in the case of recurring contracts the nature and quantity and, if possible, an estimate of the timing of the subsequent calls for competition for the works, supplies or services to be procured; (b) whether the procedure is restricted or negotiated; (c) any date for starting or completing the delivery of supplies or for performing works or services; (d) the address and final date for submitting an application to be invited to tender, as well as the language or languages in which it must be submitted; (e) the address of the entity awarding the contract and providing any and other for obtaining specifications information necessary documents; (f) any economic and technical requirements, financial guarantees and information required from suppliers, undertakings or providers of services; (g) the amount and terms of payment of any sum payable for the documentation relating to the procurement procedure; and (h) whether the entity is inviting offers for purchase, lease, rental or hire purchase, or more than one of these methods. " 4. Article 22(l)(b) shall be replaced by the following: "(b)in the case of works contracts, the essential characteristics of the works contracts which the contracting entities intend to award, the estimated value of which is not less than: regards contracts the threshold laid down in Article 14(l)(a)(ii) as intended to be awarded by entities carrying out an activity referred to in Annex X; the threshold laid down in Article 14(l)(b)(iii) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes I, II, VII, VIII and IX, or the threshold laid down in Article 14(l)(c)(ii) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes III, IV, V and VI. " 5. Article 23(1) and (2) shall be replaced by the following: "I. This Article shall apply to design contests organized as part of a procedure leading to the award of a service contract the estimated value net of VAT for which is not less than: the threshold laid down in Article 14(l)(a)(i) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annex X; the threshold laid down in Article 14(l)(b)(i) or (ii) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes I, II, VII, VIII and IX, or the threshold laid down in Article 14(l)(c)(i) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes III, IV, V and VI. 2. This Article shall apply to all design competitions where the competition prizes and payments to participants is not less than: total amount of the threshold laid down in Article 14(l)(a)(i) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annex X; regards contracts the threshold laid down in Article 14(l)(b)(i) or (ii) as intended to be awarded by entities carrying out an activity referred to in Annexes I, II, VII, VIII and IX, or - 1 3- - the threshold laid down in Article 14(l)(c)(i) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes III, IV, V, and VI. " 6. Article 24(2) shall be replaced by the following: "2. Information provided under Section I of Annex XV or under Annex XVIII shall In this be published in the Official Journal of the European Communities. connection the Commission shall respect any sensitive commercial aspects which the contracting entities may point out when forwarding this information in connection with points 6, 9 and 11 of Annex XV. " 7. Article 26(1) shall be replaced by the following: " 1. In open procedures the time limit for the receipt of tenders shall be fixed by contracting entities at not less than 52 days from the date of dispatch of the notice. This time limit may be replaced by one which is sufficiently long to allow those concerned to submit valid tenders and which shall as a general rule not be less than 36 days and in any case not less than 22 days from the date of dispatch of the notice, where contracting entities have sent the OJEC a periodic indicative notice in accordance with Article 22(1), provided that this notice contains, in addition to the information required in Part I of Annex XIV, the information required in parts II and III of Annex XIV, insofar as that information is available at the time of publication of the notice referred to in Article 22(1). This periodic indicative notice must furthermore have been dispatched to the OJEC within a minimum of 52 days and a maximum of twelve months before the date on which the contract notice provided for in Article 21(l)(a) is dispatched to the OJEC. " 8. Article 26(2) is hereby replaced by the following: "2. In restricted procedures and in negotiated procedures with a prior call for competition, the following shall apply: (a) the time limit for receipt of requests to participate, in response to a notice published in accordance with Article 21(l)(a) or in response to an invitation from a contracting entity in accordance with Article 21(2)(c), shall, as a general rule, be at least 37 days from the date of dispatch of the notice or invitation and shall in any case not be less than the time limit for publication laid down in Article 25(3), plus 10 days; (b) the time limit for receipt of tenders may be fixed by mutual agreement between the contracting entity and the selected candidates, provided that all tenderers are given equal time to prepare and submit tenders; (c) where it is not possible to reach agreement on the time limit for the receipt of tenders, the contracting entity shall fix a time limit which shall, as a general rule, be at least 24 days and shall in any case not be less than 10 days from the date of the invitation to tender; the time allowed shall be sufficiently long to take account in particular of the factors mentioned in Article 28(3). " 9. Article 28(5) shall be replaced by the following: "5. Requests for participation in contracts and invitations to tender must be made by the most rapid means of communication possible. When requests to participate are made by telegram, telex, telephone or any electronic means, Member States may require them to be confirmed by letter dispatched before the expiry of the time limit referred to in Article 26(2). " 10. The following paragraph 6 shall be added to Article 28: "6. Tenders shall be submitted in writing directly or by mail. Member States may authorize the submission of tenders by any other means making it possible to ensure: that each tender contains all the information necessary for the evaluation of the tender; that tenders remain confidential pending their evaluation; and - 1 4- - that, where necessary for reasons of legal proof, such tenders are confirmed as soon as possible in writing or by dispatch or a certified copy; that tenders are opened after the time-limit for their submission has expired. " 11. Article 30(1) shall be replaced by the following: "1. Contracting entities which so wish may establish and operate a system of qualification of suppliers, contractors or service providers. ensure that Entities establishing or operating a qualification system shall suppliers, contractors and service providers may apply for qualification at any time. " 12. Article 35(1) shall be replaced by the following: "1. Article 34(1) shall not apply where a Member State bases the award of contracts on other criteria, within the framework of rules in force at the time of adoption of this Directive, which are intended to give preference to certain tenderers, provided that the rules invoked are compatible with the Treaty. " 13. Article 38 shall be deleted. 14. Article 41 shall be replaced by the following: "1. Contracting entities shall keep appropriate information on each contract which shall be sufficient to permit them at a later date to justify decisions taken in connection with: (a) the qualification and selection of contractors, suppliers or service providers (b) recourse to derogations from the use of European specifications in (c) use of procedures without prior call for competition in accordance with (d) non-application of Titles II, III and IV in accordance with the derogations and award of contracts; accordance with Article 18(6); Article 20(2); provided for in Title I. 2. The information shall be kept for at least four years from the date of award of the contract so that the contracting entity will be able, during that period, to supply the necessary information to the Commission if the latter so requests. 3. Entities carrying out activities referred to in Annexes I, II, VII, VIII and IX shall inform participating suppliers, contractors or service providers of decisions on contract awards promptly and, upon request, in writing. 4. Contracting entities carrying out activities referred to in Annexes I, II, VII, VIII and IX shall, promptly after the date on which a written request is received, inform any eliminated candidate or tenderer of the reasons for rejection of his application or his tender and any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer. However, contracting entities may decide that certain information on the contract award, referred to in the first subparagraph of this paragraph, be withheld where release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private, or might prejudice fair competition between suppliers, contractors or service providers. " 15. The following paragraphs shall be inserted in Article 42: "2. With respect to the activities to which Annexes I, II, VII, VIII and IX refer, Member States shall, in accordance with the arrangements to be laid down under the procedure provided for in Article 40(4) to (8), ensure that, by 31 October 1997 at the latest for the preceding year and thereafter by 31 October of every year, the Commission receives a statistical report on the contracts awarded. This report shall contain the information necessary to verify the proper application of the GPA. The statistical information required under this provision shall not include information concerning contracts for the services listed in category 8 of Annex XVI A, telecommunications services listed in category 5, the CPC reference - 1 5- numbers of which are 7524, 7525 and 7526, or the services listed in Annex XVI. B. " 16. The current paragraph 2 shall be renumbered as paragraph 3. 17. The following Article shall be inserted: "Article 42a For the purposes of the award of contracts by the contracting entities, Member States shall apply in their relations conditions as favourable as those which they grant to third countries in implementation of the GPA. The Member States shall to this end consult each other within the Advisory Committee for Public Contracts on the measures to be taken pursuant to the GPA. " 18. Annexes XII, XIII, XIV and XV to Directive 93/38/EEC are hereby replaced by the Annex to this Directive. Article 2 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1997. They shall forthwith inform the Commission thereof. 2. Nevertheless, the Kingdom of Spain may, regarding services contracts only, provide that the measures referred to in paragraph 1 shall apply from 1 January 1997 only and the Hellenic Republic and the Portuguese Republic may provide that the measures referred to in paragraph 1 shall apply from 1 January 1998 only. Article 3 When Member States adopt the provisions referred to in Article 2, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States. Article 4 Member States shall communicate to the Commission the main provisions of national law which they adopt in the field covered by this Directive together with a correlation table between this Directive and the national measures adopted. Article 5 This Directive is addressed to the Member States. -16- ANNEX ANNEX XII A. OPEN PROCEDURES 1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity. 2. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement). Category of service within the meaning of Annex XVI A or XVI B and description (CPC classification). Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combination of these. 3. Place of delivery, site or place of performance of service. 4. For supplies and works: (a) nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurrent contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the goods to be procured or the nature and extent of the services to be provided and general nature of the work. (b) Indication of whether suppliers can tender for some and/or all of the goods required. If, for works contracts, the work or the contract is subdivided into several lots, the order of size of the different lots and the possibility of tendering for one, for several or for all of the lots. (c) For works contracts: information concerning the purpose of the work or the contract where the latter also involves the drawing- up of projects. 5. For services: (a) nature and quantity of the services to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurrent contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the services to be procured. (b) Indication whether the execution of the service is by law, administrative provision reserved to a particular profession. (c) Reference of the law, regulation or administrative provision. (d) Indication whether legal persons should indicate the names and professional qualifications of the staff to be responsible for the execution of the services. (e) Indication whether suppliers can tender for a part of the services concerned. regulation, or 6. Authorization to submit variants. 7. Derogation from the' use of European specifications, in accordance with Article 1 8(6)- possible, for starting. 8. Time limits for delivery or completion or duration of service contract and, as far as 9. (a) Address from which the contract documents and additional documents may be requested. (b) Where appropriate, the amount and terms of payment of the sum to be paid to obtain such documents. 10. (a) Final date for receipt of tenders. (b) Address to which they must be sent. (c) Language or languages in which they must be drawn up. 11. (a) Where appropriate, the persons authorized to be present at the opening of tenders, (b) Date, hour and place of such opening. 12. Where appropriate, any deposits and guarantees required. 13. Main terms concerning financing and payment and/or references to the provisions in which they are contained. 14. Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or service providers to whom the contract is awarded. 15. Minimum economic and teclinical conditions required of the supplier, contractor or service provider to whom the contract is awarded. 16. Period during which the tenderer is bound to keep open his tender. - 1 7- 17. Criteria for the award of the contract. Criteria other than that of the shall be mentioned where they do not appear in the contract documents. iowes" price 18. Other information. 19. Where appropriate, the reference to publication of the periodic information notice in the Official Journal of the European Communities to which the contract refers. 20. Date of dispatch of the notice by the contracting entity. 21. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office). B. RESTRICTED PROCEDURES 1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity. 2. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement). Category of service within the meaning of Annex XVI A or XVI B and description (CPC classification). Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combination of these. 3. Place of delivery, site or place of performance of service. 4. For supplies and works: (a) nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurrent contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the goods to be procured or the nature and extent of the services to be provided and general nature of the work. (b) Indication of whether suppliers can tender for some and/or all of the goods required. If, for works contracts, the work or the contract is subdivided into several lots, the order of size of the different lots and possibility of tendering for one, for several or for all of the lots. (c) For works contracts: information concerning the purpose of the work or the contract where the latter also involves the drawing- up of projects. 5. For services: (a) nature and quantity of the services to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurrent contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the services to be procured. (b) Indication whether the execution of the service is by law, administrative provision reserved to a particular profession. (c) Reference of the law, regulation or administrative provision. (d) Indication whether legal persons should indicate the names and professional regulation, or qualifications of the staff to be responsible for the execution of the services. (e) Indication whether suppliers can tender for a part of the services concerned. 6. Authorization to submit variants. 7. Derogation from the use of European specifications, in accordance with Article 18(6). 8. Time limits for delivery or completion or duration of service contract and, as far as possible, for starting. 9. Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or providers to whom the contract is awarded. 10. (a) Final date for receipt of requests to participate. (b) Address to which they must be sent. (c) Language or languages in which they must be drawn up. 11. Final date for dispatch of invitations to tender. 12. Where appropriate, any deposits and guarantees required. 13. Main terms concerning financing and payment and/or references to the texts in which these are contained. 14. Information concerning the supplier's, contractor's or service provider's position and minimum economic and technical conditions required of him. 15. Criteria for the award of the contract where they are not mentioned in the invitation to tender. - 1 8- 16. Other information. 17. Where appropriate, the reference to publication of the periodic information notice in the Official Journal of the European Communities to which the contract refers. 18. Date of dispatch of the notice by the contracting entities. 19. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office). C. NEGOTIATED PROCEDURES 1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity 2. Nature of the contract (supplies, works or services; where appropriate, state if it is a framework agreement). Category of service within the meaning of Annex XVI A or XVI B and description (CPC classification). Where appropriate, state whether tenders are requested for purchase, lease, rental or hire purchase or any combination of these. 3. Place of delivery, site or place of performance of service. 4. For supplies and works: (a) nature and quantity of the goods to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurrent contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the goods to be procured or the nature and extent of the services to be provided and general nature of the work. (b) Indication of whether suppliers can tender for some and/or all of the goods If, for works contracts, the work or the contract is subdivided into required. several lots, the order of size of the different lots and the possibility of tendering for one, for several or for all of the lots. (c) For works contracts: Information concerning the purpose of the work or the contract where the latter also involves the drawing- up of projects. 5. For services: (a) nature and quantity of the services to be supplied, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised. In the case of recurrent contracts, also, if possible, an estimate of the timing of the subsequent calls for competition for the services to be procured. (b) Indication whether the execution of the service is by law, administrative provision reserved to a particular profession. (c) Reference of the law, regulation or administrative provision. (d) Indication whether legal persons should indicate the names and professional regulation, or qualifications of the staff to be responsible for the execution of the services. (e) Indication whether suppliers can tender for a part of the services concerned. 6. Authorization to submit variants. 7. Derogation from the use of European specifications, in accordance with Article 18(6). possible, for starting. 8. Time limits for delivery or completion or duration of service contract and, as far as 9. Where appropriate, the legal form to be taken by the grouping of suppliers, contractors or providers to whom the contract is awarded. 10. (a) Final date for receipt of requests to participate. (b) Address to which they must be sent. (c) Language or languages in which they must be drawn up. 11. Where appropriate, any deposits and guarantees required. 12. Main terms concerning financing and payment and/or references to the texts in which these are contained. 13. Information concerning the supplier's, contractor's or service provider's position and minimum economic and technical conditions required of him. 14. Criteria for the award of the contract where they are not mentioned in the invitation to tender or the contract documents. 15. Where appropriate, the names and addresses of suppliers, contractors or providers already selected by the contracting entity. - 1 9- 16. Where applicable, date(s) of previous publications in the Official Journal of the European Communities. 17. Other information. 18. Where appropriate, the reference to publication of the periodic information notice in the Official Journal of the European Communities to which the contract refers. 19. Date of dispatch of the notice by the contracting entity. 20. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office). ANNEX XIII - 2 0- NOTICE ON THE EXISTENCE OF A QUALIFICATION SYSTEM 1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity. 2. Purpose of the qualification system (description of the goods, services or works or categories thereof to be procured through the system). 3. Conditions to be fulfilled by suppliers, contractors and service providers in view of their qualification pursuant to the system and the methods according to which each of those conditions will be verified. Where the description of such conditions and verification methods is voluminous and based on documents available to interested suppliers, contractors and service providers, a summary of the main conditions and methods and a reference to those documents shall be sufficient. 4. Period of validity of the qualification system and the formalities for its renewal. 5. Reference to the fact that the notice acts as the call for competition. 6. Address where further information and documentation concerning the qualification system can be obtained (if different from the address mentioned under 1). 7. Any other relevant information. - 2 1- ANNEX XIV PERIODIC INFORMATION NOTICE I. HEADINGS TO BE COMPLETED IN ANY CASE 1. Name, address, telegraphic address, telephone number, telex and fax number of the contracting entity or the service from which additional information may be obtained. 2. (a) For supply contracts: nature and quantity or value of the services or products to be supplied. (b) For works contracts: nature and extent of the services to be provided, the main characteristics of the work or of the lots by reference to the work. (c) For service contracts: intended total procurement in each of the service categories listed in Annex XVI A. 3. Date of dispatch of the notice by the contracting entity. 4. Date of receipt of the notice by the Office for Official Publications of the European Communities (to be supplied by that Office). 5. Any other relevant information. II. INFORMATION WHICH MUST BE SUPPLIED WHERE THE NOTICE IS USED AS A MEANS OF CALLING FOR COMPETITION OR JUSTIFIES REDUCING THE DEADLINES FOR THE RECEIPT OF CANDIDATURES OR TENDERS 6. A reference to the fact that interested suppliers must advise the entity of their interest in the contract or contracts. 7. Deadline for the receipt of applications for an invitation to tender. III. INFORMATION TO BE SUPPLIED, INSOFAR AS SUCH INFORMATION IS AVAILABLE, WHERE THE NOTICE IS USED AS A MEANS OF CALLING FOR COMPETITION OR JUSTIFIES REDUCING THE DEADLINES FOR THE RECEIPT OF CANDIDATURES OR TENDERS 8. Nature and quantity of the goods to be supplied or general nature of the work or category of service within the meaning of Annex XVI A and description (CPC classification), stating if framework agreement(s) are envisaged, including any options for further procurement and an estimate of the timing when such options may be exercised. In the case of recurrent contracts, also, an estimate of the timing of the subsequent calls for competition. 9. State whether tenders are requested for purchase, lease, rental or hire-purchase or any 10. Time limits for delivery or completion or duration of service contract and, as far as combination of these. possible, for starting. 11. Address to which interested undertakings should send their expressions of interest in writing. Final date for recepit of expressions of interest. Language or languages authorized for the presentation of candidatures or tenders, 12. Economic and technical conditions required of suppliers. 13. (a) Provisional date, if known, for commencing the procedures for awarding the contract or contracts. (b) Type of award procedure (restricted or negotiated). (c) The amount of and payment details for any sum to be paid to obtain documents concerning the consultation. - 2 2- ANNEX XV NOTICE ON CONTRACTS AWARDED I. Information for publication in the Official Journal of the European Communities 1. Name and address of the contracting entity. 2. Nature of the contract (supplies, works or services; where appropriate state if it is a 3. At least a summary indication of the nature and quantity of the products, works or framework agreement). services provided. 4. (a) Form of the call for competition (notice on the existence of a qualification procedure; periodic information notice; call for tenders). (b) Reference of publication of the notice in the Official Journal of the European Communities. (c) In the case of contracts awarded without a prior call for competition, indication of the relevant provision of Article 20(2), or Article 16. 5. Award procedure (open, restricted or negotiated). 6. Number of tenders received. 7. Date of award of the contract. 8. Price paid for bargain purchases pursuant to Article 20(2)(j). 9. Name and address of successful supplicr(s), contractor(s) or service providcr(s). 10. State, where appropriate, whether the contract has been, or may be, subcontracted. 11. Price paid or the prices of the highest and lowest offers taken into account in the award of the contract. 12. Optional information: value and share of the contract which may be subcontracted to third parties; award criteria. II. information not intended for publication 13. Number of contracts awarded (where an award has been split between more than one supplier). 14. Value of each contract awarded. 15. Country of origin of the product or service (Community origin or non- Community origin; if the latter, broken down by third country). 16. Was recourse made to the exceptions to the use of European specifications provided 17. Which award criteria were used (most economically advantageous; lowest price; for under Article 18(6). If so, which? criteria permitted pursuant to Article 35)? 18. Was the contract awarded to a bidder who submitted a variant, in accordance with 19. Were any tenders excluded on the grounds that they were abnormally low, in Article 34(3)? accordance with Article 34(5)? 20. Date of transmission of the notice by the contracting entity. 21. In the case of contracts for services listed in Annex XVI B, agreement by the contracting entity to publication of the notice (Article 24(3)). 9 Information in headings 6, 9 and 11 is deemed information not intended for publication where the awarding entity considers that publication thereof might be detrimenal to a sensitive commercial interest. COMPETITIVENESS AND EMPLOYMENT IMPACT STATEMENT I. Titit oftfcf proptMri Amended Proposal for a Parliament and Council Directive amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. H. What is the main reason for introducing the measures? The taking into account in the above-mentioned Directive of the international the new WTO Agreement on Government obligations deriving from Procurment (GPA). III. Features of the businesses concerned 1. 2. In particular, are many SMEs involved? Public supply, public works and public service contracts are in many cases likely to interest SMEs, either directly or indirectly. Are they concentrated in regions of the Community which are: eligible for national regional aid schemes? No. eligible for ERDF assistance? No. IV. What direct obligations do these measures impose on businesses? All the obligations flowing from the proposed measures would be imposed on businesses if the undertaking in question is itself a contracting entity (i. e. a private undertaking having special or exclusive rights or a public undertaking). If the undertaking in question isnoi itself a contracting entity, then these measures impose few direct obligations. !! businesses decide to participate in an award procedure, which is subject to the Directives, then they will be obliged, for instance, to submit the documentation required by the contracting authority and to submit tenders in writing. Where an undertaking avails itself of the possibility of submitting tenders by telex, telegram or telefax, then it may be obliged to confirm this by letter. I I V. What indirect obligations are local authorities likely to impose on businesses? Local authorities are likely to impose few indirect obligations on businesses. As certain deadlines have been rendered slightly longer, contracting authorities are likely to require that businesses prolong the period of validity of their tender correspondingly. VI. Do any special measures apply in respect of SMEs. This proposal does not contain any new measures applicable to SMEs. VII. What is the likely effect on: 1. 2. Business competitiveness? The abovementioned Directives are aimed at boosting business competitiveness across the Community. The amendments pursue the same aim. Employment? The impact on employment can be regarded as limited. VIII. Have both sides of industry been consulted? Please indicate their opinions. Both sides of industry have commented largely on the original proposal, directly to the Commission, in a hearing organised by the European Parliament and through the consultation of the Economic and Social Committee. »v ISSN 0254-1475 COM(96) 598 final DOCUMENTS EN 10 12 07 15 Catalogue number : CB-CO-96-609-EN-C ISBN 92-78-11848-6 Office for Official Publications of the European Communities L-2985 Luxembourg