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PUBLIC PROCUREMENT
Public works contracts

1) OBJECTIVE
To coordinate national procedures for the award of public works contracts in order to open up these contracts to effective Community-wide competition.

2) COMMUNITY MEASURES
Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts.

Amended by Council Directive 97/52/EC of 13 October 1997.

3) CONTENTS
1. The Directive consolidates Council Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts, as amended by Council Directives 89/440/EEC, 90/531/EEC and 93/4/EEC.

2. Scope: the Directive applies to contracts which have as their object either the execution, or both the execution and design, of works involving certain professional activities (building, civil engineering, installation or building completion work), or the execution, by whatever means, of a work corresponding to the requirements specified by the contracting authority.

3. Exclusions: the Directive does not apply to contracts awarded in the fields referred to in Articles 2, 7, 8 and 9 of Council Directive 90/531/EEC, namely contracts concerning the production, transport and distribution of drinking water, contracts awarded by entities whose main activity is to produce or distribute energy, and contracts relating to telecommunications. Neither does this Directive apply to works contracts which are declared secret or where the protection of the Member State's basic interests so requires. Lastly, certain types of contract governed by an international agreement or the particular procedure of an international organization are also excluded.

4. Obligation on Member States to ensure that contracting authorities financing more than 50% of a works contract awarded by another entity still comply with the provisions of the Directive.

5. Thresholds and estimation of contract value: the Directive applies to contracts whose estimated value net of VAT is not less than ECU 5 million. The value of this threshold in national currencies is revised every two years with effect from 1 January 1992.

6. Award procedures: contracting authorities have a free choice between the open procedure (in which all interested contractors may submit tenders) and the restricted procedure (in which only those contractors so invited by the contracting authority may submit tenders). They may also, in the cases listed exhaustively in the Directive (works carried out for the purposes of research or experiment, extreme urgency brought about by unforeseen events, etc.), rely on the negotiated procedure (whereby the contracting authority consults contractors of its choice and negotiates the terms of the contract with one or more of them).

7. Common rules in the technical field: obligation on contracting authorities to give the technical specifications for the works in the general or contractual documents relating to each contract. These technical specifications are to be defined with reference to national standards transposing European standards, to European technical approvals or to common technical specifications.

8. Common advertising rules: contracting authorities must publish a notice giving certain items of information on the contract. Notices must comply with prescribed models and deadlines.

9. Common rules on participation: the Directive lays down rules on the selection of contractors and the award of contracts. The criteria for selecting contractors have to do with their good repute (contractors may be excluded if they are bankrupt, if they are not in good standing with the tax authorities, etc.) and technical capability (educational and professional qualifications, list of works carried out over the past five years, etc.). The criteria for awarding contracts must be either the lowest price or the most economically advantageous tender.

10. Obligation on the contracting authority to inform within 15 days any unsuccessful applicant or tenderer who so requests of the reasons for the rejection of his application or tender. Obligation on contracting authorities to draw up a written report on each contract awarded, identifying the contracting authority, the successful applicants or tenderers and the reason for their selection, the unsuccessful applicants or tenderers and the reason for their rejection, the successful bidder and the reason why his tender was chosen. The report is to be communicated to the Commission at its request.

4) DEADLINE FOR IMPLEMENTATION OF THE LEGISLATION IN THE MEMBER STATES
Directive 97/52/EC: 13.10.1998
5) DATE OF ENTRY INTO FORCE (if different from the above)
Directive 93/37/EEC: 28.08.1993
Directive 97/52/EC: 18.10.1997
6) REFERENCES
Official Journal L 199, 09.08.1993
Corrigendum
Official Journal L 111, 30.04.1994

Official Journal L 328, 28.11.1997

7) FOLLOW-UP WORK
On 10 May 1993 the Council adopted Decision 93/323/EEC concerning the conclusion of an Agreement in the form of a Memorandum of Understanding between the European Economic Community and the United States of America on government procurement (Official Journal L 125, 20.05.1993).
This Agreement is designed to open up to tenderers in signatory states supply, works and service contracts awarded by central governments. It also provides for the elimination of discrimination in respect of purchases made by entities in the electrical power sector.

The Council has adopted a statement concerning Article 7(4) of Directive 93/37/EEC (Official Journal L 111, 30.04.1994).
This Council and Commission statement stipulates that in open and restricted procedures all negotiations with candidates or tenderers on fundamental aspects of contracts, variations in which are likely to distort competition, and in particular on prices, are ruled out.

This Directive will be replaced by the directive of the European Parliament and the Council on the coordination of procedures for the award of public supply contracts, public service contracts and public works contracts, the proposal of which was sent to the Council and the Parliament on 12 July 2000 (Doc COM(2000)275 - Not yet published).

8) COMMISSION IMPLEMENTING MEASURES
Recommendation 96/527/EC - Official Journal L 222, 03.09.1996
Commission Recommendation of 30 July 1996 on the use of the Common Procurement Vocabulary (CPV) for describing the subject matter of public contracts.
It is recommended that contracting authorities and entities use the CPV, a version of which is published in the Supplement to the Official Journal and which will be regularly updated, to describe the nature and scale of their public contracts in the notices they submit to the Office for Official Publications of the European Communities.

Communication - Official Journal C 121, 29.04.2000
Commission interpretative communication on concessions under Community law.

SOURCE: http://europa.eu.int/business/

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