Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (Text with EEA relevance)

20.8.2009

EN

Official Journal of the European Union

L 216/76

(1)

National security remains the sole responsibility of each Member State, in the fields of both defence and security.

(2)

The gradual establishment of a European defence equipment market is essential for strengthening the European Defence Technological and Industrial Base and developing the military capabilities required to implement the European Security and Defence Policy.

(3)

Member States agree on the need to foster, develop and sustain a European Defence Technological and Industrial Base that is capability driven, competent and competitive. In order to achieve this objective, Member States may use different tools, in conformity with Community law, aiming at a truly European defence equipment market and a level playing field at both European and global levels. They should also contribute to the in-depth development of the diversity of the European defence-related supplier base, in particular by supporting the involvement of small and medium-sized enterprises (SMEs) and non-traditional suppliers in the European Defence Technological and Industrial Base, fostering industrial cooperation and promoting efficient and responsive lower tier suppliers. In this context, they should take into account the Commission’s Interpretative Communication of 7 December 2006 on the application of Article 296 of the Treaty in the field of defence procurement and the Commission Communication of 5 December 2007 on a Strategy for a stronger and more competitive European defence industry.

(4)

One prerequisite for the creation of a European defence equipment market is the establishment of an appropriate legislative framework. In the field of procurement, this involves the coordination of procedures for the award of contracts to meet the security requirements of Member States and the obligations arising from the Treaty.

(5)

To achieve this objective, in its resolution of 17 November 2005 on the Green Paper on defence procurement (3), the European Parliament called on the Commission to draft a directive taking particular account of the security interests of Member States, further developing the common foreign and security policy, promoting greater European cohesion and preserving the role of the Union as a ‘civil power’.

(6)

Better coordination of award procedures, for instance for contracts regarding logistics services, transportation and warehousing, also have the potential to reduce costs in the defence sector and significantly lower the sector’s environmental impact.

(7)

These procedures should reflect the Union’s overall approach to security, which responds to changes in the strategic environment. The emergence of asymmetrical transnational threats has increasingly blurred the boundary between external and internal and military and non-military security.

(8)

Defence and security equipment is vital for both the security and the sovereignty of Member States and for the autonomy of the Union. As a result, purchases of goods and services in the defence and security sectors are often of a sensitive nature.

(9)

This results in specific requirements, particularly in the fields of security of supply and security of information. These requirements relate especially to purchases of arms, munitions and war material for the armed forces, as well as services and works directly relating thereto, but also to certain particularly sensitive purchases in the field of non-military security. In these fields, the absence of Union-wide regimes hampers the openness of defence and security markets between Member States. This situation requires rapid improvement. An Union-wide regime on security of information, including the mutual recognition of national security clearances and allowing the exchange of classified information between contracting authorities/entities and European companies, would be particularly useful. At the same time, Member States should take concrete measures to improve security of supply between them aiming at the progressive establishment of a system of appropriate guarantees.

(10)

For the purposes of this Directive, military equipment should be understood in particular as the product types included in the list of arms, munitions and war material adopted by the Council in its Decision 255/58 of 15 April 1958 (4), and Member States may limit themselves to this list only when transposing this Directive. This list includes only equipment which is designed, developed and produced for specifically military purposes. However, the list is generic and is to be interpreted in a broad way in the light of the evolving character of technology, procurement policies and military requirements which lead to the development of new types of equipment, for instance on the basis of the Common Military List of the Union. For the purposes of this Directive, military equipment should also cover products which, although initially designed for civilian use, are later adapted to military purposes to be used as arms, munitions or war material.

(11)

In the specific field of non-military security, this Directive should apply to procurements which have features similar to those of defence procurements and are equally sensitive. This can be the case in particular in areas where military and non-military forces cooperate to fulfil the same missions and/or where the purpose of the procurement is to protect the security of the Union and/or the Member States, on their own territory or beyond it, against serious threats from non-military and/or non-governmental actors. This may involve, for example, border protection, police activities and crisis management missions.

(12)

This Directive should take account of the needs of the contracting authority/entity throughout the whole life cycle of the product, i.e., research and development, industrial development, production, repair, modernisation, modification, maintenance, logistics, training, testing, withdrawal and disposal. These stages include, for example, studies, evaluation, storage, transport, integration, servicing, dismantling, destruction and all other services following the initial design. Some contracts may include the supply of parts, components and/or subassemblies to be incorporated in or affixed to products, and/or the supply of specific tools, test facilities or support.

(13)

For the purposes of this Directive, research and development should cover fundamental research, applied research and experimental development. Fundamental research consists in experimental or theoretical work undertaken mainly with a view to acquiring new knowledge regarding the underlying foundation of phenomena and observable facts, without any particular application or use in view. Applied research also consists of original work undertaken with a view to acquiring new knowledge. However, it is directed primarily towards a particular practical end or objective. Experimental development consists in work based on existing knowledge obtained from research and/or practical experience with a view to initiating the manufacture of new materials, products or devices, establishing new processes, systems and services or considerably improving those that already exist. Experimental development may include the realisation of technological demonstrators, i.e. devices demonstrating the performance of a new concept or a new technology in a relevant or representative environment.

Research and development does not include the making and qualification of pre-production prototypes, tools and industrial engineering, industrial design or manufacture.

(14)

This Directive should take account of the needs of the contracting authority/entity for works and services which, although not directly linked to the supply of military equipment or sensitive equipment, are necessary to fulfil certain military or security requirements.

(15)

The award of contracts concluded in the Member States by contracting entities as referred to in Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (5) and by contracting authorities as referred to in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (6) is subject to compliance with the principles of the Treaty and in particular the free movement of goods, the freedom of establishment and the freedom to provide services, and with the principles deriving therefrom, such as the principles of equal treatment, non-discrimination, mutual recognition, proportionality and transparency.

Transparency and competition obligations for contracts below the application thresholds for this Directive should be determined by Member States in compliance with those principles and taking account, in particular, of situations where there is a cross-border interest. In particular, it is for Member States to determine the most suitable arrangements for awarding such contracts.

For contracts above a certain value, it is advisable to draw up provisions for the Community coordination of national procedures for the award of such contracts which are based on these principles so as to guarantee their effects and an effective opening-up of procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the above-mentioned rules and principles and with other rules of the Treaty.

(16)

Articles 30, 45, 46, 55 and 296 of the Treaty make provision for specific exceptions to the application of the principles set out in the Treaty and, consequently, to the application of law derived therefrom. It therefore follows that none of the provisions of this Directive should prevent the imposition or application of any measures considered necessary to safeguard interests recognised as legitimate by these provisions of the Treaty.

This means in particular that the award of contracts which fall within the field of application of this Directive can be exempted from the latter where this is justified on grounds of public security or necessary for the protection of essential security interests of a Member State. This can be the case for contracts in the fields of both defence and security which necessitate such extremely demanding security of supply requirements or which are so confidential and/or important for national sovereignty that even the specific provisions of this Directive are not sufficient to safeguard Member States’ essential security interests, the definition of which is the sole responsibility of Member States.

(17)

Nevertheless, in accordance with the case-law of the Court of Justice of the European Communities, the possibility of recourse to such exceptions should be interpreted in such a way that their effects do not extend beyond that which is strictly necessary for the protection of the legitimate interests that those Articles help to safeguard. Thus, the non-application of this Directive must be proportionate to the aims pursued and cause as little disturbance as possible to the free movement of goods and the freedom to provide services.

(18)

Contracts relating to arms, munitions and war material awarded by contracting authorities/entities operating in the field of defence are excluded from the scope of the Government Procurement Agreement (GPA) concluded at the World Trade Organization. The other contracts covered by this Directive are also exempted from the application of the GPA by virtue of Article XXIII thereof. Article 296 of the Treaty and Article XXIII(1) of the GPA have a different scope and are subject to different standards of judicial review. Member States may still rely on Article XXIII(1) of the GPA in situations where Article 296 of the Treaty cannot be invoked. The two provisions have therefore to meet different conditions for application.

This exclusion means also that in the specific context of defence and security markets, Member States retain the power to decide whether or not their contracting authority/entity may allow economic operators from third countries to participate in contract award procedures. They should take that decision on grounds of value for money, recognizing the need for a globally competitive European Defence Technological and Industrial Base, the importance of open and fair markets and the obtaining of mutual benefits. Member States should press for increasingly open markets. Their partners should also demonstrate openness, on the basis of internationally-agreed rules, in particular as concerns open and fair competition.

(19)

A contract shall be deemed to be a works contract only if its subject-matter specifically covers the execution of activities under Division 45 of the ‘Common Procurement Vocabulary’ laid down by Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV) (7) (hereinafter the ‘CPV), even if the contract covers the provision of other services necessary for the execution of such activities. Service contracts may, in some cases, include works. However, insofar as such works are incidental to the principal subject-matter of the contract, and are only a possible consequence thereof or a complement thereto, the fact that such works are included in the contract does not justify the qualification of the contract as a works contract.

(20)

Defence and security contracts often contain classified information which the laws, regulations or administrative provisions in force in the Member State concerned require, for security reasons, to be protected from unauthorised access. In the military field, the Member States have systems for classifying this information for military purposes. However, when it comes to non-military security matters, there is more diversity in Member States’ practice, where other information must similarly be protected. Therefore, it is appropriate to make use of a concept which takes into account the diversity of practices in Member States and can encompass both the military and non-military fields. At any rate, procurement in these fields should not, where appropriate, affect the obligations arising from Commission Decision 2001/844/EC, ECSC, Euratom of 29 November 2001 amending its internal Rules of Procedure (8) or Council Decision 2001/264/EC of 19 March 2001 adopting the Council’s security regulations (9).

Moreover, Article 296(1)(a) of the Treaty gives Member States the possibility to exempt contracts in the fields of both defence and security from the rules of this Directive if the application of this Directive would oblige them to supply information, the disclosure of which they consider contrary to the essential interests of their security. This can be the case in particular where contracts are so sensitive that their very existence must be kept secret.

(21)

The contracting authorities/entities should be allowed to use framework agreements, which makes it necessary to provide a definition of framework agreements and specific rules. Under these rules, when a contracting authority/entity enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time-limits and conditions for the submission of tenders, it may enter into contracts based on this framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if not all terms have been fixed in advance, by reopening competition between the parties to the framework agreement. The reopening of competition should comply with certain rules, the aim of which is to guarantee the required flexibility and compliance with the general principles, in particular the principle of equal treatment. For the same reasons, the term of framework agreements should be limited and should not exceed seven years, except in cases that are duly justified by the contracting authorities/entities.

(22)

Contracting authorities/entities may make use of electronic purchasing techniques, providing such use complies with the rules drawn up under this Directive and with the principles of equal treatment, non-discrimination and transparency. Since use of the technique of electronic auctions is likely to increase, such auctions should be given a Community definition and governed by specific rules in order to ensure that they operate in full accordance with those principles. To that end, provision should be made for such electronic auctions to deal only with contracts for works, supplies or services for which the specifications can be determined with precision. Such may in particular be the case for recurring supplies, works and service contracts. With the same objective, it must also be possible to establish the respective ranking of the tenderers at any stage of the electronic auction. Recourse to electronic auctions enables contracting authorities/entities to ask tenderers to submit new prices, revised downwards, and when the contract is awarded to the most economically advantageous tender, also to improve elements of the tenders other than prices. In order to guarantee compliance with the principle of transparency, only the elements suitable for automatic evaluation by electronic means, without any intervention and/or appreciation by the contracting authority/entity, may be the object of electronic auctions, that is, only the elements which are quantifiable so that they can be expressed in figures or percentages. On the other hand, those aspects of tenders which imply an appreciation of non-quantifiable elements should not be the object of electronic auctions. Consequently, certain works contracts and certain service contracts having as their subject-matter intellectual performances, such as the design of works, should not be the object of electronic auctions.

(23)

Centralised purchasing techniques help to increase competition and streamline purchasing. Consequently, Member States should be allowed to provide that contracting authorities/entities may purchase goods, works and/or services through a central purchasing body. Provision should therefore be made for a Community definition of central purchasing bodies and of the conditions under which, in accordance with the principles of non-discrimination and equal treatment, contracting authorities/entities purchasing works, supplies and/or services through a central purchasing body may be deemed to have complied with this Directive. A contracting authority/entity which is bound to apply this Directive should in any event be eligible to act as a central purchasing body. At the same time, Member States should also be free to designate European public bodies not subject to this Directive, such as the European Defence Agency, as central purchasing bodies, provided that such bodies apply procurement rules compliant with all the provisions of this Directive to those purchases.

(24)

Contracting authorities/entities may find themselves obliged to award a single contract for acquisitions which is covered partially by this Directive, with the remaining part either falling within the scope of Directive 2004/17/EC or Directive 2004/18/EC or not being subject to this Directive, Directive 2004/17/EC or Directive 2004/18/EC. This applies when the relevant procurements cannot, for objective reasons, be separated and awarded through separate contracts. In such cases the contracting authorities/entities should be able to award a single contract, provided that their decision is not taken for the purpose of excluding contracts from the application of this Directive or of Directive 2004/17/EC or Directive 2004/18/EC.

(25)

Multiplying the number of thresholds for applying coordinated provisions complicates matters for contracting authorities/entities. Given the average value of contracts in the fields of defence and security, it is appropriate to align the application thresholds of this Directive to the thresholds that already have to be met by contracting entities in applying Directive 2004/17/EC. The thresholds of this Directive should also be revised together with those of Directive 2004/17/EC when the latter thresholds are revised.

(26)

In addition, provision should be made for cases where this Directive does not apply because specific rules on the awarding of contracts which derive from international agreements or arrangements between Member States and third countries apply. The rules under certain agreements relating to the stationing of troops from a Member State in another Member State or a third country, or the stationing of troops from a third country in a Member State, should also preclude the use of award procedures under this Directive. This Directive should not apply either to contracts awarded by international organisations for their purposes or to contracts which must be awarded by a Member State in accordance with rules that are specific to such organisations.

(27)

In the fields of defence and security, some contracts are so sensitive that it would be inappropriate to apply this Directive, despite its specificity. That is the case for procurements provided by intelligence services, or procurements for all types of intelligence activities, including counter-intelligence activities, as defined by Member States. It is also the case for other particularly sensitive purchases which require an extremely high level of confidentiality, such as, for example, certain purchases intended for border protection or combating terrorism or organised crime, purchases related to encryption or purchases intended specifically for covert activities or other equally sensitive activities carried out by police and security forces.

(28)

Member States often conduct cooperative programmes to develop new defence equipment together. Such programmes are particularly important because they help to develop new technologies and bear the high research and development costs of complex weapon systems. Some of these programmes are managed by international organisations, namely the Organisation conjointe de coopération en matière d’armement (OCCAR) and NATO (via specific agencies), or by agencies of the Union, such as the European Defence Agency, which then award contracts on behalf of Member States. This Directive should not apply to such contracts. For other such cooperative programmes, contracts are awarded by contracting authorities/entities of one Member State also on behalf of one or more other Member States. In these cases too, this Directive should not apply.

(29)

In the event that armed forces or security forces from Member States conduct operations beyond the borders of the Union, and when imposed by operational requirements, authorisation should be given to contracting authorities/entities deployed in the field of operations not to apply the rules of this Directive when they award contracts to economic operators located in the area of operations, including with respect to civilian purchases directly connected to the conduct of those operations.

(30)

Given the specificity of the defence and security sector, purchases of equipment as well as works and services by one government from another should be excluded from the scope of this Directive.

(31)

In the context of services, contracts for the acquisition or rental of immovable property or rights to such property have particular characteristics which make the application of procurement rules inappropriate.

(32)

Arbitration and conciliation services are usually provided by bodies or individuals designated or selected in a manner which cannot be governed by procurement rules.

(33)

Financial services are also entrusted to persons or bodies under conditions that are not compatible with the application of procurement rules.

(34)

Pursuant to Article 163 of the Treaty, the encouragement of research and technological development is a means of strengthening the scientific and technological basis of Community industry, and the opening-up of service contracts contributes to this end. This Directive should not cover the co-financing of research and development programmes. Research and development contracts other than those where the benefits accrue exclusively to the contracting authority/entity for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority/entity, are therefore not covered by this Directive.

(35)

Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute to integration in society. In this context, sheltered workshops and sheltered employment programmes contribute efficiently towards the integration or reintegration of people with disabilities in the labour market. However, such workshops might not be able to obtain contracts under normal conditions of competition. Consequently, it is appropriate to provide that Member States may reserve the right to participate in award procedures for contracts to such workshops or reserve performance of contracts to the context of sheltered employment programmes.

(36)

For the purpose of applying this Directive to the service contracts falling within its scope and for monitoring purposes, services should be subdivided into categories that correspond to particular headings of the CPV classification and brought together in two Annexes according to the regime to which they are subject. As regards services in Annex II, the relevant provisions of this Directive should be without prejudice to the application of Community rules specific to the services in question. However, in order to apply the provisions of this Directive instead of those of Directive 2004/17/EC or Directive 2004/18/EC, it has to be established that the relevant service contracts come within the scope of application of this Directive.

(37)

As regards service contracts, full application of this Directive should be limited, for a transitional period, to contracts where its provisions will permit the full potential for increased cross-border trade to be realised. It is necessary to monitor contracts for other services during this transitional period before a decision is taken on the full application of this Directive.

(38)

The technical specifications drawn up by contracting authorities/entities need to allow procurement to be opened up to competition. To this end, it must be possible to submit tenders which reflect the diversity of technical solutions. To do so, technical specifications should, on the one hand, be established on the basis of performance and functional requirements. On the other hand, where reference is made to the European standard or to international or national standards, including those specific to the field of defence, tenders based on other equivalent arrangements must be considered by the contracting authorities/entities. This equivalence can be assessed in particular with regard to interoperability and operational efficiency requirements. To demonstrate equivalence, tenderers should be permitted to use any form of evidence. Contracting authorities/entities must be able to provide a reason for any decision that equivalence does not exist in a given case. There are also international agreements on standardisation which aim to ensure the interoperability of the armed forces and which can have the force of law in Member States. Should one of these agreements apply, the contracting authorities/entities may demand that tenders comply with the standards described in that agreement. The technical specifications should be clearly indicated, so that all tenderers know what the requirements established by the contracting authority/entity cover.

(39)

The detailed technical specifications and additional information concerning contracts must, as is customary in the Member States, be given in the contract documents for each contract, or in an equivalent document.

(40)

Potential subcontractors should not be discriminated against on grounds of nationality. In the context of defence and security, it can be appropriate for contracting authorities/entities to oblige the successful tenderer to organise a transparent and non-discriminatory competition when awarding subcontracts to third parties. This obligation may apply to all subcontracts or only to specific subcontracts chosen by the contracting authority/entity.

In addition, it seems appropriate to complement the tenderer’s right to subcontract with the option offered to the Member State to allow or to require its contracting authorities/entities to ask that subcontracts representing at least a certain share of the value of the contract be awarded to third parties on the understanding that related undertakings are not to be regarded as third parties. When such a share is required, the successful tenderer should award subcontracts following a transparent and non-discriminatory competition, so that all interested undertakings have the same opportunity to benefit from the advantages of subcontracting. At the same time, the proper functioning of the successful tenderer’s supply chain should not be jeopardised. Therefore, the percentage that can be subcontracted to third parties at the request of the contracting authority/entity should appropriately reflect the object and value of the contract.

During a negotiated procedure or competitive dialogue with subcontracting requirements, the contracting authority/entity and the tenderers may discuss subcontracting requirements or recommendations with a view to ensuring that the contracting authority/entity is fully informed of the impact of different subcontracting options on, in particular, cost, quality or risk. In any event, subcontractors initially proposed by the successful tenderer should be free to participate in competitions organised for the award of subcontracts.

In the context of defence and security markets, the Member States and the Commission should also encourage the development and dissemination of best practices between Member States and European industry with a view to promoting free movement and competitiveness in Union subcontracting markets, as well as the effective management of suppliers and SMEs, in order to achieve the best value for money. Member States should communicate to all successful tenderers the benefits of transparent and competitive tendering and supplier diversity for subcontracts, and develop and disseminate best practice on supply-chain management in the defence and security markets.

(41)

Contract performance conditions are compatible with this Directive provided that they are not directly or indirectly discriminatory and are indicated in the contract notice or the contract documents.

(42)

In particular, the conditions of performance may contain requirements by the contracting authorities/entities as regards security of information and security of supply. These requirements are particularly important given the sensitive nature of the equipment covered by this Directive, and concern the whole of the supply chain.

(43)

In order to ensure security of information, contracting authorities/entities may require in particular commitments from both contractors and subcontractors to protect classified information against unauthorised access, as well as sufficient information regarding their capacity to do so. In the absence of a Community regime on security of information, it is for the contracting authorities/entities or Member States to define these requirements in accordance with their national laws and regulations, and to determine whether they consider security clearances issued in accordance with the national law of another Member State as equivalent to those issued by their own competent authorities.

(44)

Security of supply can imply a great variety of requirements, including, for example, internal rules between subsidiaries and the parent company with respect to intellectual property rights, or the provision of critical service, maintenance and overhaul capacities to ensure support for purchased equipment throughout its life-cycle.

(45)

In any case, no performance conditions may pertain to requirements other than those relating to the performance of the contract itself.

(46)

The laws, regulations and collective agreements, at both national and Community levels, which are in force in the areas of employment conditions and safety at work apply during performance of a contract, provided that such rules, and their application, comply with Community law. In cross-border situations, where workers from one Member State provide services in another Member State for the purpose of performing a contract, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (10) lays down the minimum conditions which must be observed by the host country in respect of such posted workers. If national law contains provisions to this effect, non-compliance with those obligations may be considered to be grave misconduct or an offence concerning the professional conduct of the economic operator concerned liable to lead to the exclusion of that economic operator from the procedure for the award of a contract.

(47)

The contracts covered by this Directive are characterised by specific requirements in terms of complexity, security of information or security of supply. Extensive negotiation is often required to satisfy these requirements when awarding contracts. As a result, the contracting authorities/entities may use the negotiated procedure with the publication of a contract notice, as well as the restricted procedure, for contracts covered by this Directive.

(48)

Contracting authorities/entities which carry out particularly complex projects may, without any fault on their part, find it objectively impossible to define the means of satisfying their needs or to assess what the market can offer in the way of technical solutions and/or financial or legal solutions. This situation may arise in particular in the case of projects requiring the integration or combination of several technological or operational capabilities, or projects involving complex and structured financing, the financial and legal make-up of which cannot be defined in advance. In this case, use of the restricted procedure and the negotiated procedure with the publication of a contract notice would not be feasible, as it would not be possible to define the contract with enough precision to allow candidates to draw up their offers. It is therefore necessary to provide for a flexible procedure ensuring competition between economic operators and allowing the contracting authorities/entities to discuss all aspects of the contract with each candidate. However, this procedure must not be used in such a way as to restrict or distort competition, particularly by altering any fundamental aspect of the tender, by imposing substantial new requirements on the successful tenderer or by involving any tenderer other than the one selected as the most economically advantageous.

(49)

Before launching a procedure for the award of a contract, contracting authorities/entities may, using a technical dialogue, seek or accept advice which may be used in the preparation of specifications, provided, however, that such advice does not have the effect of precluding competition.

(50)

Use of the negotiated procedure with publication of a contract notice could be impossible or entirely inappropriate in certain exceptional circumstances. The contracting authorities/entities should thus, in certain very specific cases and circumstances, be able to use the negotiated procedure without publication of a contract notice.

(51)

Certain circumstances should be partly the same as those provided for in Directive 2004/18/EC. In this respect, consideration should be given in particular to the fact that defence and security equipment is often technically complex. Consequently, incompatibility or disproportionate technical difficulties in operation and maintenance justifying the use of the negotiated procedure without publication of a contract notice in the case of supply contracts for additional deliveries should be assessed in the light of this complexity and the associated requirements for interoperability and standardisation of equipment. This is the case, for example, for the integration of new components into existing systems or for the modernisation of such systems.

(52)

It may be the case for certain purchases within the scope of this Directive that only one economic operator is able to execute the contract because it holds exclusive rights, or for technical reasons. In such cases, the contracting authority/entity should be allowed to award contracts or framework agreements directly to that economic operator. However, technical reasons for only one economic operator being able to execute a contract should be rigorously defined and justified on a case-by-case basis. They could include, for instance, strict technical impracticability for a candidate other than the chosen economic operator to achieve the required goals, or the necessity to use specific know-how, tools or means which only one operator has at its disposal. This may be the case, for example, for the modification or retrofitting of particularly complex equipment. Technical reasons may also derive from specific interoperability or safety requirements which must be fulfilled in order to ensure the functioning of the armed forces or security forces.

(53)

The specific nature of the contracts subject to this Directive also demonstrates the need to provide for new circumstances which may arise in the fields covered by it.

(54)

The armed forces of Member States may, for example, be called on to intervene in crisis situations abroad, for instance as part of peace-keeping operations. At the launch, or during the course, of such an intervention, the security of Member States and their armed forces may necessitate the award of certain contracts at a speed which is incompatible with the usual deadlines imposed by the award procedures laid down by this Directive. Such emergencies could also arise for the security forces, for example in the case of a terrorist attack on the territory of the Union.

(55)

Stimulating research and development is a key way of strengthening the European Defence Technological and Industrial Base, and the opening-up of procurement helps to achieve this objective. The importance of research and development in this specific field justifies maximum flexibility in the award of contracts for research supplies and services. At the same time, however, this flexibility should not preclude fair competition in the later phases of the life cycle of a product. Research and development contracts should therefore cover activities only up to the stage where the maturity of new technologies can be reasonably assessed and de-risked. Research and development contracts should not be used beyond that stage as means of avoiding the provisions of this Directive, including by predetermining the choice of tenderer for the later phases.

On the other hand, the contracting authority/entity should not have to organise a separate tender for the later phases if the contract which covers the research activities already includes an option for those phases and was awarded through a restricted procedure or a negotiated procedure with the publication of a contract notice, or, where applicable, a competitive dialogue.

(56)

In order to ensure transparency, provision should be made for rules on publication by the contracting authorities/entities of appropriate information prior to, and at the end of, the award procedure. In addition, further specific information should be provided to candidates and tenderers regarding the results of that procedure. However, contracting authorities/entities should be allowed to withhold some of the information so required when and insofar as its release would impede law enforcement or otherwise be contrary to the public interest, harm the legitimate commercial interests of economic operators or might prejudice fair competition between them. In the light of the nature and the features of the works, supplies and services covered by this Directive, grounds of public interest relating to compliance with national mandatory provisions falling within the scope of national public policy, notably with regard to defence and security, are of particular relevance in this regard.

(57)

In view of new developments in information and communications technology, and the simplifications these can bring, electronic means should be put on a par with traditional means of communication and information exchange. As far as possible, the means and technology chosen should be compatible with the technologies used in other Member States.

(58)

To ensure the development of effective competition in the field of procurement covered by this Directive, it is necessary that contract notices drawn up by the contracting authorities/entities of Member States be advertised throughout the Community. The information contained in these notices must enable economic operators in the Community to determine whether the proposed contracts are of interest to them. For this purpose, they must be given adequate information as regards the subject-matter of the contract and the conditions attached thereto. Improved visibility should therefore be ensured for public notices by means of appropriate instruments, such as standard contract notice forms and the CPV, which is the reference nomenclature for contracts.

(59)

Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (11) and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) (12) should, in the context of this Directive, apply to the transmission of information by electronic means. Procurement procedures require a level of security and confidentiality higher than that required by those Directives. Accordingly, devices for the electronic receipt of offers and requests to participate should comply with specific additional requirements. To this end, the use of electronic signatures, in particular advanced electronic signatures, should be encouraged to as great an extent as possible. Moreover, the existence of voluntary accreditation schemes could constitute a favourable framework for enhancing the level of certification service provision for these devices.

(60)

The use of electronic means leads to savings in time. As a result, provision should be made for reducing the minimum time-limits for receipt of offers and requests to participate where electronic means are used, subject however to the condition that they are compatible with the specific modes of transmission envisaged at Community level.

(61)

Verification of the suitability of candidates and the selection thereof should be carried out in transparent conditions. For this purpose, non-discriminatory criteria should be indicated which the contracting authorities/entities may use when selecting competitors and the means which economic operators may use to prove they have satisfied those criteria. In the same spirit of transparency, the contracting authority/entity should be required, as soon as a contract is put out to competition, to indicate the selection criteria it will use and the level of specific competence it may, where appropriate, demand of economic operators before admitting them to the procurement procedure.

(62)

A contracting authority/entity may limit the number of candidates in the restricted and negotiated procedures with publication of a contract notice and in a competitive dialogue. Any reduction in the number of candidates should be performed on the basis of objective criteria indicated in the contract notice. For criteria relating to the personal situation of economic operators, a general reference in the contract notice to the situations set out in this Directive may suffice.

(63)

In the competitive dialogue and negotiated procedures with publication of a contract notice, in view of the flexibility which may be required and the high level of costs associated with such methods of procurement, contracting authorities/entities should be entitled to make provision for the procedure to be conducted in successive stages in order gradually to reduce, on the basis of previously indicated contract award criteria, the number of tenders which they will go on to discuss or negotiate. This reduction should, insofar as the number of appropriate solutions or candidates allows it, ensure that there is genuine competition.

(64)

The relevant Community rules on the mutual recognition of diplomas, certificates or other evidence of formal qualifications apply when evidence of a particular qualification is required for participation in a procurement procedure.

(65)

The award of contracts to economic operators which have participated in a criminal organisation or which have been found guilty of corruption or fraud to the detriment of the financial interests of the European Communities, money laundering, the financing of terrorism or terrorist and terrorism-related offences, should be avoided. Where appropriate, the contracting authorities/entities should ask candidates or tenderers to supply relevant documents and, where they have doubts concerning the personal situation of a candidate or tenderer, may seek the cooperation of the competent authorities of the Member State concerned. Such economic operators should be excluded as soon as the contracting authority/entity has knowledge of a judgment concerning such offences rendered in accordance with national law that has the force of res judicata. If national law contains provisions to this effect, non-compliance with procurement legislation on unlawful agreements which has been the subject of a final judgment or a decision having equivalent effect may be considered an offence concerning the professional conduct of the economic operator concerned or grave misconduct. It should also be possible to exclude economic operators if the contracting authority/entity has information, where applicable provided by protected sources, establishing that they are not sufficiently reliable so as to exclude risks to the security of the Member State. Such risks could derive from certain features of the products supplied by the candidate, or from the shareholding structure of the candidate.

(66)

Non-compliance with national provisions implementing Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (13) and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (14) which has been the subject of a final judgment or a decision having equivalent effect may be considered an offence concerning the professional conduct of the economic operator concerned or grave misconduct.

(67)

Given the sensitive nature of the defence and security sectors, the reliability of economic operators to which contracts are awarded is vital. This reliability depends, in particular, on their ability to respond to requirements imposed by the contracting authority/entity with respect to security of supply and security of information. In addition, nothing in this Directive should prevent a contracting authority/entity from excluding an economic operator at any point in the process for the award of a contract if the contracting authority/entity has information that to award all or any part of the contract to that economic operator could cause a risk to the essential security interests of that Member State.

(68)

In the absence of a Community regime as regards the security of information, it is for the contracting authorities/entities or Member States to define the level of technical capacity which is required in this regard for participation in an award procedure and to assess whether candidates have achieved the required security level. In many cases, Member States have bilateral security agreements with rules on the mutual recognition of national security clearances. Even where such agreements exist, the capacities of economic operators from other Member States as regards security of information can be verified, and such verification should be carried out in accordance with the principles of non-discrimination, equal treatment and proportionality.

(69)

Contracts should be awarded on the basis of objective criteria which ensure compliance with the principles of transparency, non-discrimination and equal treatment and which guarantee that tenders are assessed in a transparent and objective manner under conditions of effective competition. As a result, it is appropriate to allow the application of two award criteria only: ‘the lowest price’ and ‘the most economically advantageous tender’.

(70)

To ensure compliance with the principle of equal treatment in the award of contracts, it is appropriate to lay down an obligation, which has been established by case-law, to ensure the necessary transparency to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied to identify the most economically advantageous tender. It is therefore the responsibility of contracting authorities/entities to indicate the criteria for the award of the contract and the relative weighting given to each of those criteria, in sufficient time for tenderers to be aware of them when preparing their tenders. Contracting authorities/entities may derogate from indicating the weighting of the criteria for the award in duly justified cases for which they must be able to give reasons where the weighting cannot be established in advance, in particular on account of the complexity of the contract. In such cases, they must indicate the descending order of importance of the criteria.

(71)

Where the contracting authorities/entities choose to award a contract to the most economically advantageous tender, they shall assess the tenders in order to determine which one offers the best value for money. In order to do this, they shall determine the economic and quality criteria which, taken as a whole, must make it possible to determine the most economically advantageous tender for the contracting authority/entity. The determination of these criteria depends on the object of the contract, since they must allow the level of performance offered by each tender to be assessed in the light of the object of the contract, as defined in the technical specifications, and the value for money of each tender to be measured.

(72)

Compliance with transparency and competition obligations should be ensured by an efficient review system, based on the system which Council Directives 89/665/EEC (15) and 92/13/EEC (16), as amended by Directive 2007/66/EC of the European Parliament and of the Council (17), provide for contracts covered by Directives 2004/17/EC and 2004/18/EC. In particular, the possibility of challenging the award procedure before the contract is signed should be provided for, as should the guarantees necessary for the efficiency of the review, such as the standstill period. The possibility of challenging illegal direct awards or contracts concluded in violation of this Directive should also be provided for.

(73)

However, review procedures should take into account the protection of defence and security interests as regards the procedures of review bodies, the choice of interim measures or penalties for infringements of obligations relating to transparency and competition. In particular, Member States should be able to provide that the review body independent of the contracting authority/entity, may not consider a contract ineffective, even though it has been awarded illegally on the grounds referred to in this Directive, where it finds, after having examined all relevant aspects, that the exceptional circumstances of the case concerned require certain overriding reasons relating to a general interest to be respected. In the light of the nature and features of the works, supplies and services covered by this Directive, such overriding reasons should be first and foremost related to the general interests of defence and security of Member States. This can be the case, for example, when the ineffectiveness of a contract would seriously endanger not only the fulfilment of the specific project aimed at by it, but the very existence of a wider defence and/or security programme of which the project is a part.

(74)

Certain technical conditions, and in particular those concerning notices and statistical reports, as well as the nomenclature used and the conditions of reference to that nomenclature, need to be adopted and amended in the light of changing technical requirements. It is therefore appropriate to put in place a flexible and rapid adoption procedure for this purpose.

(75)

The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (18).

(76)

In particular, the Commission should be empowered to revise the threshold amounts for contracts by aligning them to the thresholds laid down in Directive 2004/17/EC and to amend certain reference numbers in the CPV nomenclature and the procedures for reference in notices to certain headings in the CPV, as well as the technical details and characteristics of devices for electronic receipt.

Since those measures are of general scope and are designed to amend non-essential elements of this Directive, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(77)

When, on imperative grounds of urgency, the normal time-limits for the regulatory procedure with scrutiny cannot be complied with, the Commission should be able to apply the urgency procedure provided for in Article 5a(6) of Decision 1999/468/EC for the adoption of these measures.

(78)

In accordance with point 34 of the Interinstitutional agreement on better law-making (19), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

(79)

The Commission should carry out a periodic assessment to examine whether the defence equipment market is functioning in an open, transparent and competitive way, including the impact of this Directive on the market, for example on involvement of SMEs,

TITLE I

Article 1.

Article 2.

Article 3.

Article 4.

TITLE II

CHAPTER I

Article 5.

Article 6.

Article 7.

CHAPTER II

Section 1.

Article 8.

Article 9.

Section 2.

Article 10.

Section 3.

Article 11.

Article 12.

Article 13.

Section 4.

Article 14.

CHAPTER III

Article 15.

Article 16.

Article 17.

CHAPTER IV

Article 18.

Article 19.

Article 20.

Article 21.

Article 22.

Article 23.

Article 24.

CHAPTER V

Article 25.

Article 26.

Article 27.

Article 28.

Article 29.

CHAPTER VI

Section 1.

Article 30.

Article 31.

Article 32.

Section 2.

Article 33.

Section 3.

Article 34.

Article 35.

Section 4.

Article 36.

Section 5.

Article 37.

CHAPTER VII

Section 1.

Article 38.

Section 2.

Article 39.

Article 40.

Article 41.

Article 42.

Article 43.

Article 44.

Article 45.

Article 46.

Section 3.

Article 47.

Article 48.

Article 49.

TITLE III

CHAPTER I

Article 50.

Article 51.

Article 52.

Article 53.

CHAPTER II

Article 54.

TITLE IV

Article 55.

Article 56.

Article 57.

Article 58.

Article 59.

Article 60.

Article 61.

Article 62.

Article 63.

Article 64.

TITLE V

Article 65.

Article 66.

Article 67.

Article 68.

Article 69.

Article 70.

Article 71.

Article 72.

Article 73.

Article 74.

Article 75.

Annex I

Annex II

Annex III

Annex IV

Annex V

Annex VI

Annex VII

Annex VIII

1.

‘Common Procurement Vocabulary (CPV)’ means the reference nomenclature applicable to contracts awarded by contracting authorities/entities, as adopted by Regulation (EC) No 2195/2002;

2.

‘Contracts’ means contracts for pecuniary interest concluded in writing as referred to in Article 1(2)(a) of Directive 2004/17/EC and Article 1(2)(a) of Directive 2004/18/EC;

3.

‘Works contracts’ means contracts having as their object either the execution, or both the design and execution, of works related to one of the activities mentioned in Division 45 of the CPV, or a work, or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority/entity. A ‘work’ means the outcome of building or civil engineering works taken as a whole that is sufficient of itself to fulfil an economic or technical function;

4.

‘Supply contracts’ means contracts other than works contracts having as their object the purchase, lease, rental or hire-purchase, with or without the option to buy, of products.

A contract having as its object the supply of products and which also covers, as an incidental matter, siting and installation operations shall be considered to be a ‘supply contract’;

5.

‘Service contracts’ means contracts other than works or supply contracts having as their object the provision of services.

A contract having as its object both products and services shall be considered to be a ‘service contract’ if the value of the services in question exceeds that of the products covered by the contract.

A contract having as its object services and including activities mentioned in Division 45 of the CPV that are only incidental to the principal object of the contract shall be considered to be a service contract;

6.

‘Military equipment’ means equipment specifically designed or adapted for military purposes and intended for use as an arm, munitions or war material;

7.

‘Sensitive equipment’, ‘sensitive works’ and ‘sensitive services’ means equipment, works and services for security purposes, involving, requiring and/or containing classified information;

8.

‘Classified information’ means any information or material, regardless of the form, nature or mode of transmission thereof, to which a certain level of security classification or protection has been attributed, and which, in the interests of national security and in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, requires protection against any misappropriation, destruction, removal, disclosure, loss or access by any unauthorised individual, or any other type of compromise;

9.

‘Government’ means the State, regional or local government of a Member State or third country;

10.

‘Crisis’ means any situation in a Member State or third country in which a harmful event has occurred which clearly exceeds the dimensions of harmful events in everyday life and which substantially endangers or restricts the life and health of people, or has a substantial impact on property values, or requires measures in order to supply the population with necessities; a crisis shall also be deemed to have arisen if the occurrence of such a harmful event is deemed to be impending; armed conflicts and wars shall be regarded as crises for the purposes of this Directive;

11.

‘Framework agreement’ means an agreement between one or more contracting authorities/entities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged;

12.

‘Electronic auction’ means a repetitive process involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial full evaluation of the tenders, enabling them to be ranked using automatic evaluation methods.

Consequently, certain service contracts and certain works contracts having as their subject-matter intellectual performances, such as the design of works, may not be the object of electronic auctions;

13.

‘Contractor’, ‘supplier’ and ‘service provider’ means any natural or legal person or public entity or consortium of such persons and/or bodies which offers on the market to execute works, supply products and provide services, respectively;

14.

‘Economic operator’ means a contractor, supplier or service provider. It is used merely in the interests of simplification;

15.

‘Candidate’ means an economic operator which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue;

16.

‘Tenderer’ means an economic operator which has submitted a tender under a restricted or negotiated procedure or a competitive dialogue;

17.

‘Contracting authorities/entities’ means contracting authorities as referred to in Article 1(9) of Directive 2004/18/EC and contracting entities as referred to in Article 2 of Directive 2004/17/EC;

18.

‘Central purchasing body’ means a contracting authority/entity as referred to in Article 1(9) of Directive 2004/18/EC and Article 2(1)(a) of Directive 2004/17/EC, or a European public body, which:

19.

‘Restricted procedures’ means procedures in which any economic operator may ask to participate and whereby only those economic operators invited by the contracting authority/entity may submit a tender;

20.

‘Negotiated procedures’ means procedures in which the contracting authority/entity invites the economic operators of its choice and negotiates the terms of the contract with one or more of these;

21.

‘Competitive dialogue’ means a procedure in which any economic operator may ask to participate and whereby the contracting authority/entity conducts a dialogue with the candidates admitted to that procedure with the aim of developing one or more suitable alternatives capable of meeting its requirements, and on the basis of which the candidates chosen are invited to tender.

For the purposes of recourse to the procedure referred to in the first subparagraph, a contract is considered to be ‘particularly complex’ where the contracting authority/entity is not objectively able:

22.

‘Subcontract’ means a contract for pecuniary interest concluded in writing between a successful tenderer for a contract and one or more economic operators for the purposes of carrying out that contract and having as its object works, supplies of products or the performance of services;

23.

‘Related undertaking’ means any undertaking over which the successful tenderer can exert a dominant influence, whether directly or indirectly, or any undertaking which can exert a dominant influence on the successful tenderer or which, as the successful tenderer, is subject to the dominant influence of another undertaking as a result of ownership, financial participation or the rules which govern it. A dominant influence on the part of the undertaking is presumed when, directly or indirectly in relation to another undertaking, it:

24.

‘Written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated. It may include information which is transmitted and stored by electronic means;

25.

‘Electronic means’ means any means using electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

26.

‘Life cycle’ means all the possible successive stages of a product, i.e. research and development, industrial development, production, repair, modernisation, modification, maintenance, logistics, training, testing, withdrawal and disposal;

27.

‘Research and development’ means all activities comprising fundamental research, applied research and experimental development, where the latter may include the realisation of technological demonstrators, i.e., devices that demonstrate the performance of a new concept or a new technology in a relevant or representative environment;

28.

‘Civil purchases’ means contracts not subject to Article 2 covering the procurement of non-military products, works or services for logistical purposes and concluded in accordance with the conditions specified in Article 17.

(a)

the supply of military equipment, including any parts, components and/or subassemblies thereof;

(b)

the supply of sensitive equipment, including any parts, components and/or subassemblies thereof;

(c)

works, supplies and services directly related to the equipment referred to in points (a) and (b) for any and all elements of its life cycle;

(d)

works and services for specifically military purposes or sensitive works and sensitive services.

(a)

EUR 412 000 for supply and service contracts;

(b)

EUR 5 150 000 for works contracts.

5.

(a)

in the case of fixed-term contracts, where that term is less than or equal to 12 months, the total estimated value for the term of the contract or, where the term of the contract is greater than 12 months, the total value, including the estimated residual value;

(b)

in the case of contracts without a fixed term or the term of which cannot be defined, the monthly value multiplied by 48.

(a)

either the total actual value of the successive contracts of the same type awarded during the preceding 12 months or financial year, adjusted, if possible, to take account of the changes in quantity or value which could occur in the course of the 12 months following the initial contract; or

(b)

the total estimated value of the successive contracts awarded during the 12 months following the first delivery, or during the financial year if that is longer than 12 months.

(a)

for the following services:

(b)

for service contracts which do not indicate a total price:

—

the central purchasing body has complied with it, or,

—

when the central purchasing body is not a contracting authority/entity, the contract award rules applied by it are compliant with all the provisions of this Directive and the contracts awarded can be subject to efficient remedies comparable to those provided for in Title IV.

(a)

specific procedural rules pursuant to an international agreement or arrangement concluded between one or more Member States and one or more third countries;

(b)

specific procedural rules pursuant to a concluded international agreement or arrangement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;

(c)

specific procedural rules of an international organisation purchasing for its purposes, or to contracts which must be awarded by a Member State in accordance with those rules.

(a)

contracts for which the application of the rules of this Directive would oblige a Member State to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b)

contracts for the purposes of intelligence activities;

(c)

contracts awarded in the framework of a cooperative programme based on research and development, conducted jointly by at least two Member States for the development of a new product and, where applicable, the later phases of all or part of the life-cycle of this product. Upon the conclusion of such a cooperative programme between Member States only, Member States shall indicate to the Commission the share of research and development expenditure relative to the overall cost of the programme, the cost-sharing agreement as well as the intended share of purchases per Member State, if any;

(d)

contracts awarded in a third country, including for civil purchases, carried out when forces are deployed outside the territory of the Union where operational needs require them to be concluded with economic operators located in the area of operations;

(e)

service contracts for the acquisition or rental, under whatever financial arrangements, of land, existing buildings or other immovable property, or concerning rights in respect thereof;

(f)

contracts awarded by a government to another government relating to:

(g)

arbitration and conciliation services;

(h)

financial services, with the exception of insurance services;

(i)

employment contracts;

(j)

research and development services other than those where the benefits accrue exclusively to the contracting authority/entity for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority/entity.

(a)

either by reference to technical specifications defined in Annex III and, in order of preference, to:

Every reference shall be followed by the expression ‘or equivalent’;

(b)

or in terms of performance or functional requirements; the latter may include environmental characteristics.

However, such parameters must be sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting authorities/entities to award the contract;

(c)

or in terms of performance or functional requirements as mentioned in point (b), with reference to the specifications mentioned in point (a) as a means of presuming conformity with such performance or functional requirements;

(d)

or by referring to the specifications mentioned in point (a) for certain characteristics, and by referring to the performance or functional requirements mentioned in point (b) for other characteristics.

—

those specifications are appropriate as a means of defining the characteristics of the supplies or services that are the object of the contract,

—

the requirements for the label are drawn up on the basis of scientific information,

—

the eco-labels are adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations, can participate, and,

—

they are accessible to all interested parties,

—

to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractor, as well as the subject-matter of the subcontracts for which they are proposed; and/or,

—

to indicate any change occurring at the level of subcontractors during the execution of the contract,

(a)

a commitment from the tenderer and the subcontractors already identified to appropriately safeguard the confidentiality of all classified information in their possession or coming to their notice throughout the duration of the contract and after termination or conclusion of the contract, in accordance with the relevant laws, regulations and administrative provisions;

(b)

a commitment from the tenderer to obtain the commitment provided in point (a) from other subcontractors to which it will subcontract during the execution of the contract;

(c)

sufficient information on subcontractors already identified to enable the contracting authority/entity to determine that each of them possesses the capabilities required to appropriately safeguard the confidentiality of the classified information to which they have access or which they are required to produce when carrying out their subcontracting activities;

(d)

a commitment from the tenderer to provide the information required under point (c) on any new subcontractor before awarding a subcontract.

(a)

certification or documentation demonstrating to the satisfaction of the contracting authority/entity that the tenderer will be able to honour its obligations regarding the export, transfer and transit of goods associated with the contract, including any supporting documentation received from the Member State(s) concerned;

(b)

the indication of any restriction on the contracting authority/entity regarding disclosure, transfer or use of the products and services or any result of those products and services, which would result from export control or security arrangements;

(c)

certification or documentation demonstrating that the organisation and location of the tenderer’s supply chain will allow it to comply with the requirements of the contracting authority/entity concerning security of supply set out in the contract documents, and a commitment to ensure that possible changes in its supply chain during the execution of the contract will not affect adversely compliance with these requirements;

(d)

a commitment from the tenderer to establish and/or maintain the capacity required to meet additional needs required by the contracting authority/entity as a result of a crisis, according to terms and conditions to be agreed;

(e)

any supporting documentation received from the tenderer’s national authorities regarding the fulfilment of additional needs required by the contracting authority/entity as a result of a crisis;

(f)

a commitment from the tenderer to carry out the maintenance, modernisation or adaptation of the supplies covered by the contract;

(g)

a commitment from the tenderer to inform the contracting authority/entity in due time of any change in its organisation, supply chain or industrial strategy that may affect its obligations to that authority/entity;

(h)

a commitment from the tenderer to provide the contracting authority/entity, according to terms and conditions to be agreed, with all specific means necessary for the production of spare parts, components, assemblies and special testing equipment, including technical drawings, licenses and instructions for use, in the event that it is no longer able to provide these supplies.

(1)

for works contracts, supply contracts and service contracts:

(2)

for service contracts and supply contracts:

(3)

for supply contracts:

(4)

for works contracts and service contracts:

(5)

for contracts related to the provision of air and maritime transport services for the armed forces or security forces of a Member State deployed or to be deployed abroad, when the contracting authority/entity has to procure such services from economic operators that guarantee the validity of their tenders only for such short periods that the time-limit for the restricted procedure or the negotiated procedure with publication of a contract notice, including the shortened time-limits as referred to in Article 33(7), cannot be complied with.

—

by application of the terms laid down in the framework agreement without reopening competition, or,

—

where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the contract documents of the framework agreement, in accordance with the following procedure:

(a)

where supplies are concerned, the estimated total value of the contracts or the framework agreements by product area which they intend to award over the following 12 months.

The product area shall be established by the contracting authorities/entities by reference to the CPV nomenclature;

(b)

where services are concerned, the estimated total value of the contracts or framework agreements in each of the categories of services which they intend to award over the following 12 months;

(c)

where works are concerned, the essential characteristics of the contracts or framework agreements which they intend to award.

—

a time-limit for receipt of requests to participate which may not be less than 15 days from the date on which the contract notice is dispatched, or less than 10 days if the notice was sent by electronic means, in accordance with the format and procedure for sending notices set out in point 3 of Annex VI; and

—

in the case of restricted procedures, a time-limit for receipt of tenders which shall not be less than 10 days from the date of the invitation to tender,

—

a copy of the contract documents or of the descriptive document and any supporting documents, or,

—

a reference to accessing the documents referred to in the first indent when they are made directly available by electronic means in accordance with Article 33(5),

(a)

a reference to the contract notice published;

(b)

the deadline for receipt of tenders, the address to which the tenders must be sent and the language or languages in which the tenders must be drawn up. In the case of a competitive dialogue, this information shall not be contained in the invitation to take part in the dialogue, but in the invitation to submit a tender;

(c)

in the case of a competitive dialogue, the date and the address set for the start of the consultation stage and the language or languages used;

(d)

an indication of any documents to be annexed, either to support the verifiable statements provided by the candidate in accordance with Article 38, or to supplement the information provided for in that Article under the same conditions as those laid down in Articles 41 and 42;

(e)

the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance of the criteria used to define the economically most advantageous tender, if they are not given in the contract notice, the contract documents or the descriptive document.

(a)

any unsuccessful candidate of the reasons for the rejection of the application;

(b)

any unsuccessful tenderer of the reasons for the rejection of the tender, including, in particular, for the cases referred to in Article 18(4) and (5) the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements, and in the cases referred to in Articles 22 and 23, the reasons for its decision of non-conformity with the requirements of security of information and security of supply;

(c)

any tenderer which has made an admissible tender that has been rejected, of the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer or the parties to the framework agreement.

(a)

information regarding the specifications necessary for the electronic submission of tenders and requests to participate, including encryption, shall be available to interested parties. Moreover, devices for the electronic receipt of tenders and requests to participate shall conform to the requirements of Annex VIII;

(b)

Member States may, in compliance with Article 5 of Directive 1999/93/EC, require electronic tenders to be accompanied by an advanced electronic signature, in conformity with paragraph 1 thereof;

(c)

Member States may introduce or maintain voluntary arrangements for accreditation intended to improve the level of the certification service provided for such devices;

(d)

candidates shall undertake to submit, before expiry of the time-limit laid down for submission of tenders or requests to participate, the documents, certificates and declarations referred to in Articles 39 to 44 and Article 46, if they do not exist in electronic format.

(a)

requests to participate in procedures for the award of contracts may be made in writing or by telephone;

(b)

where requests to participate are made by telephone, a written confirmation must be sent before expiry of the time-limit set for their receipt;

(c)

contracting authorities/entities may require that requests for participation made by fax must be confirmed by post or electronic means where this is necessary for the purposes of legal proof. Any such requirement, together with the time-limit by which it must be met, must be stated by the contracting authority/entity in the contract notice.

(a)

the name and address of the contracting authority/entity and the subject and value of the contract or framework agreement;

(b)

the award procedure chosen;

(c)

in the case of a competitive dialogue, the circumstances justifying the use of this procedure;

(d)

in the case of a negotiated procedure without prior publication of a contract notice, the circumstances referred to in Article 28 which justify the use of this procedure; if appropriate, justification for exceeding the time-limits laid down in the second subparagraph of Article 28(3)(a) and the third subparagraph of Article 28(4)(b) and for exceeding the 50 % limit laid down in the second subparagraph of Article 28(4)(a);

(e)

if appropriate, the reasons for the framework agreement lasting more than seven years;

(f)

the name of the candidates chosen and the reason for this choice;

(g)

the name of the candidates excluded and the reasons for their rejection;

(h)

the reasons for the rejection of tenders;

(i)

the name of the successful tenderer and the reasons why its tender was selected, and, if known, the share of the contract or framework agreement which the successful tenderer intends, or will be required, to subcontract to third parties;

(j)

if necessary, the reasons why the contracting authority/entity decided not to award a contract or framework agreement.

—

the contracting authorities/entities shall indicate in the contract notice the objective and non-discriminatory criteria or rules they intend to apply, the minimum number of candidates they intend to invite and, where appropriate, the maximum number. The minimum number of candidates they intend to invite may not be less than three;

—

subsequently, the contracting authorities/entities shall invite a number of candidates at least equal to the minimum number set in advance, provided a sufficient number of suitable candidates is available,

(a)

participation in a criminal organisation, as defined in Article 2(1) of Joint Action 98/733/JHA (20);

(b)

corruption, as defined in Article 3 of the Act of 26 May 1997 (21) and Article 2(1) of Framework Decision 2003/568/JHA (22);

(c)

fraud within the meaning of Article 1 of the Convention relating to the protection of the financial interests of the European Communities (23);

(d)

terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Framework Decision 2002/475/JHA (24) respectively, or inciting, aiding or abetting or attempting to commit an offence, as referred to in Article 4 of that Framework Decision;

(e)

money laundering and terrorist financing, as defined in Article 1 of Directive 2005/60/EC (25).

(a)

is bankrupt or is being wound up, where its affairs are being administered by a court, where it has entered into an arrangement with creditors, where it has suspended business activities or is in any analogous situation arising from a similar procedure under national laws and regulations;

(b)

is the subject of proceedings for a declaration of bankruptcy, for an order for compulsory winding up or administration by a court or of an arrangement with creditors or of any other similar proceedings under national laws and regulations;

(c)

has been convicted by a judgment which has the force of res judicata in accordance with the legal provisions of the country of any offence concerning its professional conduct, such as, for example, infringement of existing legislation on the export of defence and/or security equipment;

(d)

has been guilty of grave professional misconduct proven by any means which the contracting authority/entity can supply, such as a breach of obligations regarding security of information or security of supply during a previous contract;

(e)

has been found, on the basis of any means of evidence, including protected data sources, not to possess the reliability necessary to exclude risks to the security of the Member State;

(f)

has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which it is established or with those of the country of the contracting authority/entity;

(g)

has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country in which it is established or with those of the country of the contracting authority/entity;

(h)

is guilty of serious misrepresentation in supplying the information required under this Section, or has not supplied such information.

(a)

as regards paragraph 1 and paragraph 2(a), (b) and (c), the production of an extract from the ‘judicial record’ or, failing that, of an equivalent document issued by a competent judicial or administrative authority in the country of origin or provenance, showing that these requirements have been met;

(b)

as regards paragraph 2(f) and (g), a certificate issued by the competent authority in the Member State concerned.

(a)

appropriate statements from a bank or, where appropriate, evidence of professional risk indemnity insurance;

(b)

the presentation of balance sheets or extracts from balance sheets, where publication of the balance sheet is required under the law of the country in which the economic operator is established;

(c)

a statement of the undertaking’s overall turnover and, where appropriate, of turnover in the area covered by the contract for a maximum of the last three financial years available, depending on the date on which the undertaking was set up or the economic operator started trading, insofar as information on such turnovers is available.

(a)

(b)

an indication of the technicians or technical bodies involved, whether or not they belong directly to the economic operator’s undertaking, especially those responsible for quality control and, in the case of works contracts, those upon which the contractor can call in order to carry out the work;

(c)

a description of the technical facilities and measures used by the economic operator to ensure quality and the undertaking’s study and research facilities, as well as internal rules regarding intellectual property;

(d)

a check carried out by the contracting authorities/entities or on their behalf by a competent official body of the country in which the economic operator is established, subject to that body’s agreement, on the production capacities of the supplier or the technical capacity of the economic operator and, if necessary, on the means of study and research which are available to it and the quality control measures it will operate;

(e)

in the case of works contracts, service contracts or supply contracts also covering siting and installation operations or services, the educational and professional qualifications of the economic operator and/or those of the undertaking’s managerial staff and, in particular, those of the person or persons responsible for providing the services or managing the work;

(f)

for works contracts and services contracts, and only in appropriate cases, an indication of the environmental management measures that the economic operator will be able to apply when performing the contract;

(g)

a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years;

(h)

a description of the tools, material, technical equipment, staff numbers and know-how and/or sources of supply — with an indication of the geographical location when it is outside the territory of the Union — which the economic operator has at its disposal to perform the contract, cope with any additional needs required by the contracting authority/entity as a result of a crisis or carry out the maintenance, modernisation or adaptation of the supplies covered by the contract;

(i)

with regard to the products to be supplied, provision of:

(j)

in the case of contracts involving, entailing and/or containing classified information, evidence of the ability to process, store and transmit such information at the level of protection required by the contracting authority/entity.

In the absence of harmonisation at Community level of national security clearance systems, Member States may provide that this evidence has to comply with the relevant provisions of their respective national laws on security clearance. Member States shall recognise security clearances which they consider equivalent to those issued in accordance with their national law, notwithstanding the possibility to conduct and take into account further investigations of their own, if considered necessary.

The contracting authority/entity may, where appropriate, grant candidates which do not yet hold security clearance additional time to obtain such clearance. In this case, it shall indicate this possibility and the time-limit in the contract notice.

The contracting authority/entity may ask the national security authority of the candidate’s Member State or the security authority designated by that Member State to check the conformity of the premises and facilities that may be used, the industrial and administrative procedures that will be followed, the methods for managing information and/or the situation of staff likely to be employed to carry out the contract.

(a)

when the award is made to the most economically advantageous tender from the point of view of the contracting authority/entity, various criteria linked to the subject-matter of the contract in question: for example, quality, price, technical merit, functional characteristics, environmental characteristics, running costs, lifecycle costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, security of supply, interoperability and operational characteristics; or

(b)

the lowest price only.

—

solely on price, where the contract is awarded to the lowest price; or,

—

on price and/or on the new values of the features of the tenders indicated in the contract documents, where the contract is awarded to the most economically advantageous tender,

(a)

the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;

(b)

any limitations on the values which may be submitted, as they result from the specifications relating to the subject of the contract;

(c)

the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;

(d)

the relevant information concerning the electronic auction process;

(e)

the conditions under which tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding;

(f)

the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.

(a)

in accordance with the date and time fixed in advance, as indicated in the invitation to take part in the auction;

(b)

when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities/entities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before closing the electronic auction;

(c)

when the phases in the auction, fixed in the invitation to take part in the auction, have been completed.

(a)

the economics of the construction method, manufacturing process or services provided;

(b)

the technical solutions chosen and/or any exceptionally favourable conditions available to the tenderer for the execution of the work or for the supply of the goods or services;

(c)

the originality of the work, supplies or services proposed by the tenderer;

(d)

compliance with the provisions relating to employment protection and working conditions in force at the place where the work, service or supply is to be performed;

(e)

the possibility of the tenderer obtaining State aid.

(a)

to take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further injury to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a contract or the implementation of any decision taken by the contracting authority/entity, and to set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure in question; or

(b)

to take, at the earliest opportunity, if possible by way of interlocutory procedures and if necessary by a final procedure on the substance, measures other than those provided for in point (a) with the aim of correcting any identified infringement and preventing injury to the interests concerned; in particular, making an order for the payment of a particular sum, in cases where the infringement has not been corrected or prevented.

—

a summary of the relevant reasons as set out in Article 35(2), subject to Article 35(3), and,

—

a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing this paragraph,

(a)

where this Directive does not require prior publication of a contract notice in the Official Journal of the European Union;

(b)

where the only tenderer concerned within the meaning of Article 57(2) is the one which is awarded the contract and there are no candidates concerned;

(c)

in the case of a contract based on a framework agreement as provided for in Article 29.

If this derogation is invoked, Member States shall ensure that the contract is ineffective in accordance with Articles 60 and 62 where:

(a)

where the contracting authority/entity has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with this Directive;

(b)

in the case of an infringement of Article 55(6), Article 56(3) or Article 57(2), where this infringement has deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies where such an infringement is combined with another infringement of Titles I or II, if that infringement has affected the chances of the tenderer applying for a review to obtain the contract;

(c)

in the cases referred to in the second subparagraph of Article 58(c), where Member States have invoked the derogation from the standstill period for contracts based on a framework agreement.

—

the contracting authority/entity considers that the award of a contract without prior publication of a contract notice in the Official Journal of the European Union is permissible in accordance with this Directive,

—

the contracting authority/entity has published in the Official Journal of the European Union a notice as described in Article 64 expressing its intention to conclude the contract, and,

—

the contract has not been concluded before the expiry of a period of at least 10 calendar days with effect from the day following the date of the publication of this notice,

—

the contracting authority/entity considers that the award of a contract is in accordance with the second indent of the second subparagraph of Article 29(4),

—

the contracting authority/entity has sent a contract award decision, together with a summary of reasons as referred to in the first indent of the fourth subparagraph of Article 57(2), to the tenderers concerned, and,

—

the contract has not been concluded before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers concerned if fax or electronic means are used or, if other means of communications are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

—

the imposition of fines on the contracting authority/entity, or,

—

the shortening of the duration of the contract,

(a)

before the expiry of at least 30 calendar days with effect from the day following the date on which:

(b)

in any case, before the expiry of a period of at least 6 months with effect from the day following the date of the conclusion of the contract.

(a)

its confirmation that the infringement has been corrected;

(b)

a reasoned submission as to why no correction has been made; or

(c)

a notice to the effect that the contract award procedure has been suspended either by the contracting authority/entity on its own initiative or on the basis of the powers specified in Article 56(1)(a).

(a)

the name and contact details of the contracting authority/entity;

(b)

a description of the object of the contract;

(c)

a justification of the decision of the contracting authority/entity to award the contract without prior publication of a contract notice in the Official Journal of the European Union;

(d)

the name and contact details of the economic operator in favour of which a contract award decision has been taken; and

(e)

where appropriate, any other information deemed useful by the contracting authority/entity.

(a)

the threshold established in Article 8(a) of this Directive to the revised threshold laid down in Article 16(a) of Directive 2004/17/EC;

(b)

the threshold established in Article 8(b) of this Directive to the revised threshold laid down in Article 16(b) of Directive 2004/17/EC.

(a)

the procedures for the drawing-up, transmission, receipt, translation, collection and distribution of the notices referred to in Article 30 and the statistical reports provided for in Article 65;

(b)

the procedure for sending and publishing the data referred to in Annex VI on grounds of technical progress or for administrative reasons;

(c)

the list of registers, declarations and certificates set out in Annex VII, when, on the basis of notifications from Member States, this proves necessary.

(a)

the reference numbers in the CPV nomenclature set out in Annexes I and II, insofar as this does not change the material scope of this Directive, and the procedures for reference in the notices to particular headings in the CPV within the categories of services listed in those Annexes;

(b)

the technical details and characteristics of the devices for electronic receipt referred to in points (a), (f) and (g) of Annex VIII.