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PUBLIC PROCUREMENT
Water, energy, transport and telecommunications sectors


1) OBJECTIVE
To coordinate the national procurement procedures of entities operating in the water, energy, transport and telecommunications sectors in order to ensure genuine Community-wide competition between operators in these sectors.

2) COMMUNITY MEASURES
Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors.

Amended by European Parliament and Council Directive 98/4/EC of 16 February 1998.

 

 

3) CONTENTS
1. This Directive is a consolidated text covering the procedures for the award of public supply, works and service contracts in the water, energy, transport and telecommunications sectors. Directive 90/531/EEC will therefore cease to have effect as from the date on which this Directive is applied by the Member States, but this shall be without prejudice to the obligations of the Member States concerning the deadlines laid down in Article 37 of Directive 90/531/EEC.

2. Scope: the Directive governs supply, works and services contracts (for the definitions of these three types of contracts, see summaries 2.2 - 2.4) and design contests awarded or organized by contracting entities as part of their activities within the scope of the Directive. The activities referred to by the Directive are the following:

a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water, electricity, gas or heat, or the supply of the above to such networks;

b) the exploitation of a geographical area for the purpose of exploring for or extracting oil, gas, coal or other solid fuels or the provision of airport, maritime or inland port or other terminal facilities to carriers by air, sea or inland waterway;

c) the operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable;

d) the provision or operation of public telecommunications networks or the provision of one or more public telecommunications services.

3. The Directive applies not only to public authorities and public undertakings, but also to private entities whose activities include one or more of the activities described in the Directive and who enjoy special or exclusive rights granted by a Member State to operate in these sectors of activity.

4. Exemptions: the Directive lists the activities (bus transport where other entities are free to provide this service, contracts for fuels intended for power generation), contracts (contracts concluded for purposes other than the pursuit of their activities pursuant to the Directive) and the other circumstances (contracts declared confidential by the Member States or where protection of essential national interests requires) to which the Directive does not apply.

5. Contract thresholds and estimated values: the Directive applies to contracts of an estimated value (net of VAT) of not less than:

ECU 400 000 in the case of supply and service contracts relating to the activities referred to in points 1(a), (b) and (c);
ECU 600 000 in the case of supply and service contracts relating to the activities referred to in point 1(d);
ECU 5 000 000 in the case of works contracts.
These contract thresholds have been amended by Directive 98/4/EC.

6. Common technical rules: contracting entities must include the technical specifications in the general documents or the contract documents relating to each contract. These specifications shall be defined by reference to European specifications where they exist or, in their absence, to other standards in use within the Community.

7. Award procedures: the Directive allows contracting entities to choose between the open procedure (in which all interested suppliers, contractors or service providers may submit tenders), the restricted procedure (in which only candidates invited by the contracting entity may submit tenders) or the negotiated procedure (in which the contracting entity consults the candidates of its choice and negotiates the terms of the contract with one or more of them) to award contracts, provided that a call for competition has been published in the form of a notice in the Official Journal of the European Communities. The contracting entities may use a procedure without a prior call for competition in certain specified cases (e.g. contracts for the purpose of research and development).

8. Obligation to publish at least once a year a periodic notice setting out the supply and works contracts worth not less than ECU 750 000 in the first two cases and ECU 5 million in the third case. This notice must be published no more than 12 months before the call for competition.

9. The call for competition may be made by means of an ad hoc notice on the award of the contract by open, restricted or negotiated procedure, by means of a periodic indicative notice as described above or by means of a notice referring to the existence of a qualification system. The Directive specifies the form and content of these notices.

10. Obligation on a contracting entity which has awarded a contract to inform the Commission of the outcome of the award procedure by means of a notice of a format specified in the Directive.

11. The notices shall be published in the Official Journal of the European Communities.

12. The time-limits for receipt of tenders are laid down in the Directive.

13. Common rules on participation: for the selection of participants the Directive has introduced a new formula whereby contracting entities can lay down and administer their own selection criteria; these must be objective and non-discriminatory. The criteria for awarding contracts are either the lowest prices offered or the most economically advantageous tender.

4) DEADLINE FOR IMPLEMENTATION OF THE LEGISLATION IN THE MEMBER STATES
Directive 93/38/EC: 01.07.1994
Directive 98/4/EC: 16.02.1999
Article 2 (1): 16.02.2000 for Greece and Portugal
5) DATE OF ENTRY INTO FORCE (if different from the above)
Directive 93/38/EC:
01.01.1997: Spain;
01.01.1998: Greece and Portugal.
Directive 98/4/EC: 21.04.1998
6) REFERENCES
Official Journal L 199, 09.08.1993
Corrigendum
Official Journal L 82, 25.03.1994
Official Journal L 169, 03.09.1996

Official Journal L 101, 01.04.1998

7) FOLLOW-UP WORK
On 3 March 1993 the Commission presented a report describing the stage reached in the multilateral and bilateral negotiations concerning access by Community enterprises to third-country markets in the fields covered by Directive 90/531/EEC (COM(93) 80 final).
That Directive was replaced by Directive 93/38/EEC.
The report mentions the agreements that have already been signed, namely the EEA Agreement and the agreements with Poland, Czechoslovakia and Hungary, and describes the stage reached in the current negotiations within GATT and with the United States.
On 7 September 1994 the Commission adopted a second report on the progress achieved since the first report.
That report was followed by a third report, adopted by the Commission on 23 April 1998 [COM(98) 203 final].

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 Community and the United States signed the Agreement on 25 May 1993 and it entered into force on that date (Official Journal L 140, 11.06.1993).
The Memorandum of Understanding to which the Agreement refers is published in the Official Journal of the European Communities (Official Journal C 173, 24.06.1993).

In this connection, the Council adopted, on 10 May 1993, Decision 93/324/EEC concerning the extension of the benefit of the provisions of Council Directive 90/531/EEC in respect of the United States of America (Official Journal L 125, 20.05.1993).
This Decision extends the scope of Directive 90/531/EEC to the United States in the case of entities in the electrical power sector.

The Council has adopted a statement concerning Article 20 of Directive 93/38/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.

On 29 May the Council adopted Decision 95/215/EC concerning the conclusion of an Agreement in the form of an exchange of letters between the European Community and the United States of America on government procurement (Official Journal L 134, 20.06.1995).
The Agreement gives the European Community and the United States mutual access in the electricity sector and provides for the opening-up by the United States of public procurement in 39 States and a number of ports and cities. In the case of public procurement contracts awarded by public entities other than central government (i.e. by regional or local authorities), the Community will, for its part, open up only supply contracts. The United States of America and the European Community also agree to cooperate and take all necessary steps to improve substantially the transparency of the notices of intended procurement in order to ensure that contracts covered under the Government Procurement Agreement can be clearly identified as such.

This Directive will be replaced by the Directive of the European Parliament and the Council coordinating the procurement procedures of entities operating in the water, energy and transport sectors, the proposal of which was sent to the Council and the Parliament on 11 July 2000 (Doc COM(2000)276 - Not yet published).

8) COMMISSION IMPLEMENTING MEASURES
Decision 93/676/EC - Official Journal L 316, 17.12.1993
Commission Decision of 10 December 1993 establishing that the exploitation of geographical areas for the purpose of exploring for or extracting oil or gas does not constitute in the Netherlands an activity defined in Article 2(2)(b)(i) of Council Directive 90/531/EEC and that entities carrying on such an activity are not to be considered in the Netherlands as operating under special or exclusive rights within the meaning of Article 2(3)(b) of the Directive.

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.
The Recommendation advocates use by contracting authorities of the CPV, a version of which has been published in the Supplement to the Official Journal and which will be updated regularly, 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.

Commission Communications pursuant to Article 8 of Directive 93/38/EEC:
Official Journal C 129, 08.05.1999
Official Journal C 156, 04.06.1999.
In this Communication the Commission presents a list of services regarded as excluded from the scope of Council Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors pursuant to Article 8 thereof.

 

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

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