What changed, Directive 2004/18/EC

+ ## TITLE I / DEFINITIONS AND GENERAL PRINCIPLES
+ 
+ ### Article 1 — Definitions
+ 
+ 1. For the purposes of this Directive, the definitions set out in paragraphs 2 to 15 shall apply.
+ 
+ 2.
+ 
+ (a) ‘Public contracts’ are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
+ 
+ (b) ‘Public works contracts’ are public contracts having as their object either the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I or a work, or the realisation, by whatever means, of a work corresponding to the requirements speci…
+ 
+ (c) ‘Public supply contracts’ are public contracts other than those referred to in (b) having as their object the purchase, lease, rental or hire purchase, with or without option to buy, of products.
+ 
+ A public 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 ‘public supply contract’.
+ 
+ (d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
+ 
+ A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.
+ 
+ A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.
+ 
+ 3. ‘Public works concession’ is a contract of the same type as a public works contract except for the fact that the consideration for the works to be carried out consists either solely in the right to exploit the work or in this right together with payment.
+ 
+ 4. ‘Service concession’ is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
+ 
+ 5. A ‘framework agreement’ is an agreement between one or more contracting authorities 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 e…
+ 
+ 6. A ‘dynamic purchasing system’ is a completely electronic process for making commonly used purchases, the characteristics of which, as generally available on the market, meet the requirements of the contracting authority, which is limited in duration and open throughout its validity to any economi…
+ 
+ 7. An ‘electronic auction’ is 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 …
+ 
+ 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.
+ 
+ 8. The terms ‘contractor’, ‘supplier’ and ‘service provider’ mean any natural or legal person or public entity or group of such persons and/or bodies which offers on the market, respectively, the execution of works and/or a work, products or services.
+ 
+ The term ‘economic operator’ shall cover equally the concepts of contractor, supplier and service provider. It is used merely in the interest of simplification.
+ 
+ An economic operator who has submitted a tender shall be designated a ‘tenderer’. One which has sought an invitation to take part in a restricted or negotiated procedure or a competitive dialogue shall be designated a ‘candidate’.
+ 
+ 9. ‘Contracting authorities’ means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
+ 
+ A ‘body governed by public law’ means any body:
+ 
+ (a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
+ 
+ (b) having legal personality; and
+ 
+ (c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, region…
+ 
+ Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. Member States shall periodically notify the Commission of any changes to their lists of bodies and categories …
+ 
+ 10. A ‘central purchasing body’ is a contracting authority which:
+ 
+ — acquires supplies and/or services intended for contracting authorities, or
+ 
+ — awards public contracts or concludes framework agreements for works, supplies or services intended for contracting authorities.
+ 
+ 11.
+ 
+ (a) ‘Open procedures’ means those procedures whereby any interested economic operator may submit a tender.
+ 
+ (b) ‘Restricted procedures’ means those procedures in which any economic operator may request to participate and whereby only those economic operators invited by the contracting authority may submit a tender.
+ 
+ (c) ‘Competitive dialogue’ is a procedure in which any economic operator may request to participate and whereby the contracting authority conducts a dialogue with the candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting its requiremen…
+ 
+ For the purpose of recourse to the procedure mentioned in the first subparagraph, a public contract is considered to be ‘particularly complex’ where the contracting authorities:
+ 
+ — are not objectively able to define the technical means in accordance with Article 23(3)(b), (c) or (d), capable of satisfying their needs or objectives, and/or
+ 
+ — are not objectively able to specify the legal and/or financial make-up of a project.
+ 
+ (d) ‘Negotiated procedures’ means those procedures whereby the contracting authorities consult the economic operators of their choice and negotiate the terms of contract with one or more of these.
+ 
+ (e) ‘Design contests’ means those procedures which enable the contracting authority to acquire, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of priz…
+ 
+ 12. ‘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.
+ 
+ 13. ‘Electronic means’ 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.
+ 
+ 14. The ‘Common Procurement Vocabulary (CPV)’ shall designate the reference nomenclature applicable to public contracts as adopted by Regulation (EC) No 2195/2002, while ensuring equivalence with the other existing nomenclatures.
+ 
+ In the event of varying interpretations of the scope of this Directive, owing to possible differences between the CPV and NACE nomenclatures listed in Annex I, or between the CPV and CPC (provisional version) nomenclatures listed in Annex II, the NACE or the CPC nomenclature respectively shall take …
+ 
+ 15. For the purposes of Article 13, Article 57(a) and Article 68(b), the following phrases shall have the following meanings:
+ 
+ (a) ‘public telecommunications network’ means the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;
+ 
+ (b) a ‘network termination point’ means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to, and efficient communication through, that public network;
+ 
+ (c) ‘public telecommunications services’ means telecommunications services the provision of which the Member States have specifically assigned, in particular, to one or more telecommunications entities;
+ 
+ (d) ‘telecommunications services’ means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television.
+ 
+ ### Article 2 — Principles of awarding contracts
+ 
+ Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
+ 
+ ### Article 3 — Granting of special or exclusive rights: non-discrimination clause
+ 
+ Where a contracting authority grants special or exclusive rights to carry out a public service activity to an entity other than such a contracting authority, the act by which that right is granted shall provide that, in respect of the supply contracts which it awards to third parties as part of its …
+ 
+ ## CHAPTER I / General provisions
+ 
+ ### Article 4 — Economic operators
+ 
+ 1. Candidates or tenderers who, under the law of the Member State in which they are established, are entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is awarded, they would be required to be either natu…
+ 
+ However, in the case of public service and public works contracts as well as public supply contracts covering in addition services and/or siting and installation operations, legal persons may be required to indicate in the tender or the request to participate, the names and relevant professional qua…
+ 
+ 2. Groups of economic operators may submit tenders or put themselves forward as candidates. In order to submit a tender or a request to participate, these groups may not be required by the contracting authorities to assume a specific legal form; however, the group selected may be required to do so w…
+ 
+ ### Article 5 — Conditions relating to agreements concluded within the World Trade Organisation
+ 
+ For the purposes of the award of contracts by contracting authorities, Member States shall apply in their relations conditions as favourable as those which they grant to economic operators of third countries in implementation of the Agreement on Government Procurement (hereinafter referred to as ‘th…
+ 
+ ### Article 6 — Confidentiality
+ 
+ Without prejudice to the provisions of this Directive, in particular those concerning the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 35(4) and 41, and in accordance with the national law to which the contracting…
+ 
+ ## Section 1 / Thresholds
+ 
+ ### Article 7 — Threshold amounts for public contracts
+ 
+ This Directive shall apply to public contracts which are not excluded in accordance with the exceptions provided for in Articles 10 and 11 and Articles 12 to 18 and which have a value exclusive of value-added tax (VAT) estimated to be equal to or greater than the following thresholds:
+ 
+ (a) ►M1 EUR 154 000** ◄ ** for public supply and service contracts others than those covered by point (b), third indent, awarded by contracting authorities which are listed as central government authorities in Annex IV; in the case of public supply contracts awarded by contracting authorities operat…
+ 
+ (b) ►M1 EUR 236 000** ◄ **
+ 
+ — for public supply and service contracts awarded by contracting authorities other than those listed in Annex IV,
+ 
+ — for public supply contracts awarded by contracting authorities which are listed in Annex IV and operate in the field of defence, where these contracts involve products not covered by Annex V,
+ 
+ — for public service contracts awarded by any contracting authority in respect of the services listed in Category 8 of Annex IIA, Category 5 telecommunications services the positions of which in the CPV are equivalent to CPC reference Nos 7524, 7525 and 7526 and/or the services listed in Annex II B;
+ 
+ (c) ►M1 EUR 5 923 000** ◄ ** for public works contracts.
+ 
+ ### Article 8 — Contracts subsidised by more than 50 % by contracting authorities
+ 
+ This Directive shall apply to the awarding of:
+ 
+ (a) contracts which are subsidised directly by contracting authorities by more than 50 % and the estimated value of which, net of VAT, is equal to or greater than ►M1 EUR 5 923 000** ◄ **,
+ 
+ — where those contracts involve civil engineering activities within the meaning of Annex I,
+ 
+ — where those contracts involve building work for hospitals, facilities intended for sports, recreation and leisure, school and university buildings and buildings used for administrative purposes;
+ 
+ (b) service contracts which are subsidised directly by contracting authorities by more than 50 % and the estimated value of which, net of VAT, is equal to or greater than ►M1 EUR 154 000** ◄ ** and which are connected with a works contract within the meaning of point (a).
+ 
+ Member States shall take the necessary measures to ensure that the contracting authorities awarding such subsidies ensure compliance with this Directive where that contract is awarded by one or more entities other than themselves or comply with this Directive where they themselves award that contrac…
+ 
+ ### Article 9 — Methods for calculating the estimated value of public contracts, framework agreements and dynamic purchasing systems
+ 
+ 1. The calculation of the estimated value of a public contract shall be based on the total amount payable, net of VAT, as estimated by the contracting authority. This calculation shall take account of the estimated total amount, including any form of option and any renewals of the contract.
+ 
+ Where the contracting authority provides for prizes or payments to candidates or tenderers it shall take them into account when calculating the estimated value of the contract.
+ 
+ 2. This estimate must be valid at the moment at which the contract notice is sent, as provided for in Article 35(2), or, in cases where such notice is not required, at the moment at which the contracting authority commences the contract awarding procedure.
+ 
+ 3. No works project or proposed purchase of a certain quantity of supplies and/or services may be subdivided to prevent its coming within the scope of this Directive.
+ 
+ 4. With regard to public works contracts, calculation of the estimated value shall take account of both the cost of the works and the total estimated value of the supplies necessary for executing the works and placed at the contractor's disposal by the contracting authorities.
+ 
+ 5.
+ 
+ (a) Where a proposed work or purchase of services may result in contracts being awarded at the same time in the form of separate lots, account shall be taken of the total estimated value of all such lots.
+ 
+ Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 7, this Directive shall apply to the awarding of each lot.
+ 
+ However, the contracting authorities may waive such application in respect of lots the estimated value of which net of VAT is less than EUR 80 000 for services or EUR 1 million for works, provided that the aggregate value of those lots does not exceed 20 % of the aggregate value of the lots as a who…
+ 
+ (b) Where a proposal for the acquisition of similar supplies may result in contracts being awarded at the same time in the form of separate lots, account shall be taken of the total estimated value of all such lots when applying Article 7(a) and (b).
+ 
+ Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 7, this Directive shall apply to the awarding of each lot.
+ 
+ However, the contracting authorities may waive such application in respect of lots, the estimated value of which, net of VAT, is less than EUR 80 000, provided that the aggregate cost of those lots does not exceed 20 % of the aggregate value of the lots as a whole.
+ 
+ 6. With regard to public supply contracts relating to the leasing, hire, rental or hire purchase of products, the value to be taken as a basis for calculating the estimated contract value shall be as follows:
+ 
+ (a) in the case of fixed-term public contracts, if that term is less than or equal to 12 months, the total estimated value for the term of the contract or, if the term of the contract is greater than 12 months, the total value including the estimated residual value;
+ 
+ (b) in the case of public contracts without a fixed term or the term of which cannot be defined, the monthly value multiplied by 48.
+ 
+ 7. In the case of public supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation of the estimated contract value shall be based on the following:
+ 
+ (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 would occur in the course of the 12 months following the initial contract;
+ 
+ (b) or 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.
+ 
+ The choice of method used to calculate the estimated value of a public contract may not be made with the intention of excluding it from the scope of this Directive.
+ 
+ 8. With regard to public service contracts, the value to be taken as a basis for calculating the estimated contract value shall, where appropriate, be the following:
+ 
+ (a) for the following types of services:
+ 
+ (i) insurance services: the premium payable and other forms of remuneration;
+ 
+ (ii) banking and other financial services: the fees, commissions, interest and other forms of remuneration;
+ 
+ (iii) design contracts: fees, commission payable and other forms of remuneration;
+ 
+ (b) for service contracts which do not indicate a total price:
+ 
+ (i) in the case of fixed-term contracts, if that term is less than or equal to 48 months: the total value for their full term;
+ 
+ (ii) in the case of contracts without a fixed term or with a term greater than 48 months: the monthly value multiplied by 48.
+ 
+ 9. With regard to framework agreements and dynamic purchasing systems, the value to be taken into consideration shall be the maximum estimated value net of VAT of all the contracts envisaged for the total term of the framework agreement or the dynamic purchasing system.
+ 
+ ## Section 2 / Specific situations
+ 
+ ### Article 10 — Defence procurement
+ 
+ This Directive shall apply to public contracts awarded by contracting authorities in the field of defence, subject to Article 296 of the Treaty.
+ 
+ ### Article 11 — Public contracts and framework agreements awarded by central purchasing bodies
+ 
+ 1. Member States may stipulate that contracting authorities may purchase works, supplies and/or services from or through a central purchasing body.
+ 
+ 2. Contracting authorities which purchase works, supplies and/or services from or through a central purchasing body in the cases set out in Article 1(10) shall be deemed to have complied with this Directive insofar as the central purchasing body has complied with it.
+ 
+ ## Section 3 / Excluded contracts
+ 
+ ### Article 12 — Contracts in the water, energy, transport and postal services sectors
+ 
+ This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded …
+ 
+ However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option ref…
+ 
+ ### Article 13 — Specific exclusions in the field of telecommunications
+ 
+ This Directive shall not apply to public contracts for the principal purpose of permitting the contracting authorities to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services.
+ 
+ ### Article 14 — Secret contracts and contracts requiring special security measures
+ 
+ This Directive shall not apply to public contracts when they are declared to be secret, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the …
+ 
+ ### Article 15 — Contracts awarded pursuant to international rules
+ 
+ This Directive shall not apply to public contracts governed by different procedural rules and awarded:
+ 
+ (a) pursuant to an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering supplies or works intended for the joint implementation or exploitation of a work by the signatory States or services intended for the joint implemen…
+ 
+ (b) pursuant to a concluded international agreement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;
+ 
+ (c) pursuant to the particular procedure of an international organisation.
+ 
+ ### Article 16 — Specific exclusions
+ 
+ This Directive shall not apply to public service contracts for:
+ 
+ (a) the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon; nevertheless, financial service contracts concluded at the same time as, before or after the contract of acquisition or rental, in whatever form, shall be…
+ 
+ (b) the acquisition, development, production or co-production of programme material intended for broadcasting by broadcasters and contracts for broadcasting time;
+ 
+ (c) arbitration and conciliation services;
+ 
+ (d) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, in particular transactions by the contracting authorities to raise money or capital, and central bank services;
+ 
+ (e) employment contracts;
+ 
+ (f) research and development services other than those where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority.
+ 
+ ### Article 17 — Service concessions
+ 
+ Without prejudice to the application of Article 3, this Directive shall not apply to service concessions as defined in Article 1(4).
+ 
+ ### Article 18 — Service contracts awarded on the basis of an exclusive right
+ 
+ This Directive shall not apply to public service contracts awarded by a contracting authority to another contracting authority or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a published law, regulation or administrative provision which…
+ 
+ ## Section 4 / Special arrangement
+ 
+ ### Article 19 — Reserved contracts
+ 
+ Member States may reserve the right to participate in public contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes where most of the employees concerned are handicapped persons who, by reason of the nature or …
+ 
+ The contract notice shall make reference to this provision.
+ 
+ ## CHAPTER III / Arrangements for public service contracts
+ 
+ ### Article 20 — Service contracts listed in Annex II A
+ 
+ Contracts which have as their object services listed in Annex II A shall be awarded in accordance with Articles 23 to 55.
+ 
+ ### Article 21 — Service contracts listed in Annex II B
+ 
+ Contracts which have as their object services listed in Annex II B shall be subject solely to Article 23 and Article 35(4).
+ 
+ ### Article 22 — Mixed contracts including services listed in Annex II A and services listed in Annex II B
+ 
+ Contracts which have as their object services listed both in Annex II A and in Annex II B shall be awarded in accordance with Articles 23 to 55 where the value of the services listed in Annex II A is greater than the value of the services listed in Annex II B. In other cases, contracts shall be awar…
+ 
+ ## CHAPTER IV / Specific rules governing specifications and contract documents
+ 
+ ### Article 23 — Technical specifications
+ 
+ 1. The technical specifications as defined in point 1 of Annex VI shall be set out in the contract documentation, such as contract notices, contract documents or additional documents. Whenever possible these technical specifications should be defined so as to take into account accessibility criteria…
+ 
+ 2. Technical specifications shall afford equal access for tenderers and not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.
+ 
+ 3. Without prejudice to mandatory national technical rules, to the extent that they are compatible with Community law, the technical specifications shall be formulated:
+ 
+ (a) either by reference to technical specifications defined in Annex VI and, in order of preference, to national standards transposing European standards, European technical approvals, common technical specifications, international standards, other technical reference systems established by the Euro…
+ 
+ (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 to award the contract;
+ 
+ (c) or in terms of performance or functional requirements as mentioned in subparagraph (b), with reference to the specifications mentioned in subparagraph (a) as a means of presuming conformity with such performance or functional requirements;
+ 
+ (d) or by referring to the specifications mentioned in subparagraph (a) for certain characteristics, and by referring to the performance or functional requirements mentioned in subparagraph (b) for other characteristics.
+ 
+ 4. Where a contracting authority makes use of the option of referring to the specifications mentioned in paragraph 3(a), it cannot reject a tender on the grounds that the products and services tendered for do not comply with the specifications to which it has referred, once the tenderer proves in hi…
+ 
+ An appropriate means might be constituted by a technical dossier of the manufacturer or a test report from a recognised body.
+ 
+ 5. Where a contracting authority uses the option laid down in paragraph 3 to prescribe in terms of performance or functional requirements, it may not reject a tender for works, products or services which comply with a national standard transposing a European standard, with a European technical appro…
+ 
+ In his tender, the tenderer must prove to the satisfaction of the contracting authority and by any appropriate means that the work, product or service in compliance with the standard meets the performance or functional requirements of the contracting authority.
+ 
+ An appropriate means might be constituted by a technical dossier of the manufacturer or a test report from a recognised body.
+ 
+ 6. Where contracting authorities lay down environmental characteristics in terms of performance or functional requirements as referred to in paragraph 3(b) they may use the detailed specifications, or, if necessary, parts thereof, as defined by European or (multi-) national eco-labels, or by and any…
+ 
+ — those specifications are appropriate to define 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.
+ 
+ Contracting authorities may indicate that the products and services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents; they must accept any other appropriate means of proof, such as a technical dossier of the manufacturer or a test rep…
+ 
+ 7. ‘Recognised bodies’, within the meaning of this Article, are test and calibration laboratories and certification and inspection bodies which comply with applicable European standards.
+ 
+ Contracting authorities shall accept certificates from recognised bodies established in other Member States.
+ 
+ 8. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain …
+ 
+ ### Article 24 — Variants
+ 
+ 1. Where the criterion for award is that of the most economically advantageous tender, contracting authorities may authorise tenderers to submit variants.
+ 
+ 2. Contracting authorities shall indicate in the contract notice whether or not they authorise variants: variants shall not be authorised without this indication.
+ 
+ 3. Contracting authorities authorising variants shall state in the contract documents the minimum requirements to be met by the variants and any specific requirements for their presentation.
+ 
+ 4. Only variants meeting the minimum requirements laid down by these contracting authorities shall be taken into consideration.
+ 
+ In procedures for awarding public supply or service contracts, contracting authorities which have authorised variants may not reject a variant on the sole ground that it would, if successful, lead to either a service contract rather than a public supply contract or a supply contract rather than a pu…
+ 
+ ### Article 25 — Subcontracting
+ 
+ In the contract documents, the contracting authority may ask or may be required by a Member State to ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties and any proposed subcontractors.
+ 
+ This indication shall be without prejudice to the question of the principal economic operator's liability.
+ 
+ ### Article 26 — Conditions for performance of contracts
+ 
+ Contracting authorities may lay down special conditions relating to the performance of a contract, provided that these are compatible with Community law and are indicated in the contract notice or in the specifications. The conditions governing the performance of a contract may, in particular, conce…
+ 
+ ### Article 27 — Obligations relating to taxes, environmental protection, employment protection provisions and working conditions
+ 
+ 1. A contracting authority may state in the contract documents, or be obliged by a Member State so to state, the body or bodies from which a candidate or tenderer may obtain the appropriate information on the obligations relating to taxes, to environmental protection, to the employment protection pr…
+ 
+ 2. A contracting authority which supplies the information referred to in paragraph 1 shall request the tenderers or candidates in the contract award procedure to indicate that they have taken account, when drawing up their tender, of the obligations relating to employment protection provisions and t…
+ 
+ The first subparagraph shall be without prejudice to the application of the provisions of Article 55 concerning the examination of abnormally low tenders.
+ 
+ ## CHAPTER V / Procedures
+ 
+ ### Article 28 — Use of open, restricted and negotiated procedures and of competitive dialogue
+ 
+ In awarding their public contracts, contracting authorities shall apply the national procedures adjusted for the purposes of this Directive.
+ 
+ They shall award these public contracts by applying the open or restricted procedure. In the specific circumstances expressly provided for in Article 29, contracting authorities may award their public contracts by means of the competitive dialogue. In the specific cases and circumstances referred to…
+ 
+ ### Article 29 — Competitive dialogue
+ 
+ 1. In the case of particularly complex contracts, Member States may provide that where contracting authorities consider that the use of the open or restricted procedure will not allow the award of the contract, the latter may make use of the competitive dialogue in accordance with this Article.
+ 
+ A public contract shall be awarded on the sole basis of the award criterion for the most economically advantageous tender.
+ 
+ 2. Contracting authorities shall publish a contract notice setting out their needs and requirements, which they shall define in that notice and/or in a descriptive document.
+ 
+ 3. Contracting authorities shall open, with the candidates selected in accordance with the relevant provisions of Articles 44 to 52, a dialogue the aim of which shall be to identify and define the means best suited to satisfying their needs. They may discuss all aspects of the contract with the chos…
+ 
+ During the dialogue, contracting authorities shall ensure equality of treatment among all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.
+ 
+ Contracting authorities may not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue without his/her agreement.
+ 
+ 4. Contracting authorities may provide for the procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria in the contract notice or the descriptive document. The contract notice or the descriptive d…
+ 
+ 5. The contracting authority shall continue such dialogue until it can identify the solution or solutions, if necessary after comparing them, which are capable of meeting its needs.
+ 
+ 6. Having declared that the dialogue is concluded and having so informed the participants, contracting authorities shall ask them to submit their final tenders on the basis of the solution or solutions presented and specified during the dialogue. These tenders shall contain all the elements required…
+ 
+ These tenders may be clarified, specified and fine-tuned at the request of the contracting authority. However, such clarification, specification, fine-tuning or additional information may not involve changes to the basic features of the tender or the call for tender, variations in which are likely t…
+ 
+ 7. Contracting authorities shall assess the tenders received on the basis of the award criteria laid down in the contract notice or the descriptive document and shall choose the most economically advantageous tender in accordance with Article 53.
+ 
+ At the request of the contracting authority, the tenderer identified as having submitted the most economically advantageous tender may be asked to clarify aspects of the tender or confirm commitments contained in the tender provided this does not have the effect of modifying substantial aspects of t…
+ 
+ 8. The contracting authorities may specify prices or payments to the participants in the dialogue.
+ 
+ ### Article 30 — Cases justifying use of the negotiated procedure with prior publication of a contract notice
+ 
+ 1. Contracting authorities may award their public contracts by negotiated procedure, after publication of a contract notice, in the following cases:
+ 
+ (a) in the event of irregular tenders or the submission of tenders which are unacceptable under national provisions compatible with Articles 4, 24, 25, 27 and Chapter VII, in response to an open or restricted procedure or a competitive dialogue insofar as the original terms of the contract are not s…
+ 
+ Contracting authorities need not publish a contract notice where they include in the negotiated procedure all of, and only, the tenderers which satisfy the criteria of Articles 45 to 52 and which, during the prior open or restricted procedure or competitive dialogue, have submitted tenders in accord…
+ 
+ (b) in exceptional cases, when the nature of the works, supplies, or services or the risks attaching thereto do not permit prior overall pricing;
+ 
+ (c) in the case of services, *inter alia* services within category 6 of Annex II A, and intellectual services such as services involving the design of works, insofar as the nature of the services to be provided is such that contract specifications cannot be established with sufficient precision to p…
+ 
+ (d) in respect of public works contracts, for works which are performed solely for purposes of research, testing or development and not with the aim of ensuring profitability or recovering research and development costs.
+ 
+ 2. In the cases referred to in paragraph 1, contracting authorities shall negotiate with tenderers the tenders submitted by them in order to adapt them to the requirements which they have set in the contract notice, the specifications and additional documents, if any, and to seek out the best tender…
+ 
+ 3. During the negotiations, contracting authorities shall ensure the equal treatment of all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.
+ 
+ 4. Contracting authorities may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria in the contract notice or the specifications. The contract notice or the specifications shall indicate wheth…
+ 
+ ### Article 31 — Cases justifying use of the negotiated procedure without publication of a contract notice
+ 
+ Contracting authorities may award public contracts by a negotiated procedure without prior publication of a contract notice in the following cases:
+ 
+ (1) for public works contracts, public supply contracts and public service contracts:
+ 
+ (a) when no tenders or no suitable tenders or no applications have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of contract are not substantially altered and on condition that a report is sent to the Commission if it so requests;
+ 
+ (b) when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator;
+ 
+ (c) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities in question, the time limit for the open, restricted or negotiated procedures with publication of a contract notice as referred to in Article 30 cannot be co…
+ 
+ (2) for public supply contracts:
+ 
+ (a) when the products involved are manufactured purely for the purpose of research, experimentation, study or development; this provision does not extend to quantity production to establish commercial viability or to recover research and development costs;
+ 
+ (b) for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire material having differe…
+ 
+ (c) for supplies quoted and purchased on a commodity market;
+ 
+ (d) for the purchase of supplies on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the receivers or liquidators of a bankruptcy, an arrangement with creditors, or a similar procedure under national laws or regulations;
+ 
+ (3) for public service contracts, when the contract concerned follows a design contest and must, under the applicable rules, be awarded to the successful candidate or to one of the successful candidates, in the latter case, all successful candidates must be invited to participate in the negotiations…
+ 
+ (4) for public works contracts and public service contracts:
+ 
+ (a) for additional works or services not included in the project initially considered or in the original contract but which have, through unforeseen circumstances, become necessary for the performance of the works or services described therein, on condition that the award is made to the economic ope…
+ 
+ — when such additional works or services cannot be technically or economically separated from the original contract without major inconvenience to the contracting authorities,
+ 
+ — or
+ 
+ — when such works or services, although separable from the performance of the original contract, are strictly necessary for its completion.
+ 
+ However, the aggregate value of contracts awarded for additional works or services may not exceed 50 % of the amount of the original contract;
+ 
+ (b) for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to whom the same contracting authorities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contrac…
+ 
+ As soon as the first project is put up for tender, the possible use of this procedure shall be disclosed and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities when they apply the provisions of Article 7.
+ 
+ This procedure may be used only during the three years following the conclusion of the original contract.
+ 
+ ### Article 32 — Framework agreements
+ 
+ 1. Member States may provide that contracting authorities may conclude framework agreements.
+ 
+ 2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the awar…
+ 
+ Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.
+ 
+ When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.
+ 
+ The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.
+ 
+ Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.
+ 
+ 3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.
+ 
+ For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.
+ 
+ 4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.
+ 
+ Contracts based on framework agreements concluded with several economic operators may be awarded either:
+ 
+ — 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 specifications of the framework agreement, in accordance w…
+ 
+ (a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;
+ 
+ (b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders;
+ 
+ (c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;
+ 
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