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)

CONTENTS	CONTENTS
TITLE I	DEFINITIONS, SCOPE AND GENERAL PRINCIPLES
Article 1.	Definitions
Article 2.	Scope
Article 3.	Mixed contracts
Article 4.	Procurement principles
TITLE II	RULES ON CONTRACTS
CHAPTER I	General provisions
Article 5.	Economic operators
Article 6.	Confidentiality obligations of contracting authorities/entities
Article 7.	Protection of classified information
CHAPTER II	Thresholds, central purchasing bodies and exclusion provisions
Section 1.	Thresholds
Article 8.	Threshold amounts for contracts
Article 9.	Methods for calculating the estimated value of contracts and of framework agreements
Section 2.	Central purchasing bodies
Article 10.	Contracts and framework agreements awarded by central purchasing bodies
Section 3.	Excluded contracts
Article 11.	Use of exclusions
Article 12.	Contracts awarded pursuant to international rules
Article 13.	Specific exclusions
Section 4.	Special arrangements
Article 14.	Reserved contracts
CHAPTER III	Arrangements for service contracts
Article 15.	Service contracts listed in Annex I
Article 16.	Service contracts listed in Annex II
Article 17.	Mixed contracts including services listed in Annexes I and II
CHAPTER IV	Specific rules governing contract documentation
Article 18.	Technical specifications
Article 19.	Variants
Article 20.	Conditions for performance of contracts
Article 21.	Subcontracting
Article 22.	Security of information
Article 23.	Security of supply
Article 24.	Obligations relating to taxes, environmental protection, employment protection provisions and working conditions
CHAPTER V	Procedures
Article 25.	Procedures to be applied
Article 26.	Negotiated procedure with publication of a contract notice
Article 27.	Competitive dialogue
Article 28.	Cases justifying use of the negotiated procedure without publication of a contract notice
Article 29.	Framework agreements
CHAPTER VI	Rules on advertising and transparency
Section 1.	Publication of notices
Article 30.	Notices
Article 31.	Non-mandatory publication
Article 32.	Form and manner of publication of notices
Section 2.	Time-limits
Article 33.	Time-limits for receipt of requests to participate and for receipt of tenders
Section 3.	Information content and means of transmission
Article 34.	Invitations to tender, negotiate or participate in a dialogue
Article 35.	Information for candidates and tenderers
Section 4.	Communication
Article 36.	Rules applying to communication
Section 5.	Reports
Article 37.	Content of reports
CHAPTER VII	Conduct of the procedure
Section 1.	General provisions
Article 38.	Verification of the suitability and choice of participants and award of contracts
Section 2.	Criteria for qualitative selection
Article 39.	Personal situation of the candidate or tenderer
Article 40.	Suitability to pursue the professional activity
Article 41.	Economic and financial standing
Article 42.	Technical and/or professional ability
Article 43.	Quality management systems standards
Article 44.	Environmental management standards
Article 45.	Additional documentation and information
Article 46.	Official lists of approved economic operators and certification by bodies established under public or private law
Section 3.	Award of the contract
Article 47.	Contract award criteria
Article 48.	Use of electronic auctions
Article 49.	Abnormally low tenders
TITLE III	RULES APPLICABLE TO SUBCONTRACTING
CHAPTER I	Subcontracts awarded by successful tenderers which are not contracting authorities/entities
Article 50.	Scope
Article 51.	Principles
Article 52.	Thresholds and rules on advertising
Article 53.	Criteria for qualitative selection of subcontractors
CHAPTER II	Subcontracts awarded by successful tenderers which are contracting authorities/entities
Article 54.	Rules to be applied
TITLE IV	RULES TO BE APPLIED TO REVIEWS
Article 55.	Scope and availability of review procedures
Article 56.	Requirements for review procedures
Article 57.	Standstill period
Article 58.	Derogations from the standstill period
Article 59.	Time-limits for applying for review
Article 60.	Ineffectiveness
Article 61.	Infringements of this Title and alternative penalties
Article 62.	Time-limits
Article 63.	Corrective mechanism
Article 64.	Content of a notice for voluntary ex ante transparency
TITLE V	STATISTICAL OBLIGATIONS, EXECUTORY POWERS AND FINAL PROVISIONS
Article 65.	Statistical obligations
Article 66.	Content of the statistical report
Article 66a.	Exercise of the delegation
Article 66b.	Urgency procedure
Article 67.	Committee procedure
Article 68.	Revision of thresholds
Article 69.	Amendments
Article 70.	Amendment to Directive 2004/17/EC
Article 71.	Amendment to Directive 2004/18/EC
Article 72.	Transposition
Article 73.	Review and reporting
Article 74.	Entry into force
Article 75.	Addressees
ANNEXES	ANNEXES
Annex I	Services referred to in Articles 2 and 15
Annex II	Services referred to in Articles 2 and 16
Annex III	Definition of certain technical specifications referred to in Article 18
Annex IV	Information to be included in the notices referred to in Article 30
Annex V	Information to be included in the subcontract notices referred to in Article 52
Annex VI	Features concerning publication
Annex VII	Registers
Annex VIII	Requirements relating to devices for the electronic receipt of requests to participate and tenders

TITLE I DEFINITIONS, SCOPE AND GENERAL PRINCIPLES

Article 1

Definitions

For the purposes of this Directive, the following definitions shall apply:

• 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;

• 1. ‘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;

• 1. ‘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;

• 1. ‘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’;

• 1. ‘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;

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

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

• 1. ‘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;

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

• 1. ‘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;

• 1. ‘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;

• 1. ‘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;

• 1. ‘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;

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

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

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

• 1. ‘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;

• 1. ‘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:
• — acquires supplies and/or services intended for contracting authorities/entities, or,
• — awards contracts or concludes framework agreements for works, supplies or services intended for contracting authorities/entities,

• 1. ‘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;

• 1. ‘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;

• 1. ‘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:
• — to define the technical means in accordance with Article 18(3)(b), (c) or (d), capable of satisfying its needs or objectives, and/or,
• — to specify the legal and/or financial make-up of a project,

• 1. ‘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;

• 1. ‘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:
• — holds a majority of the undertaking’s subscribed capital,
• — controls a majority of the votes attached to the shares issued by the undertaking, or,
• — is entitled to appoint more than half of the undertaking’s administrative, management or supervisory bodies,

• 1. ‘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;

• 1. ‘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;

• 1. ‘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;

• 1. ‘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;

• 1. ‘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.

Article 2

Scope

Subject to Articles 30, 45, 46, 55 and 296 of the Treaty, this Directive shall apply to contracts awarded in the fields of defence and security for:

• (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.

Article 3

Mixed contracts

Article 4

Procurement principles

Contracting authorities/entities shall treat economic operators equally and in a non-discriminatory manner and shall act in a transparent way.

TITLE II RULES ON CONTRACTS

CHAPTER I General provisions

Article 5

Economic operators

However, in the case of service and works contracts as well as 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 qualifications of the staff to be responsible for the performance of the contract in question.

Article 6

Confidentiality obligations of contracting authorities/entities

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 as set out in Article 30(3) and Article 35, and in accordance with the national law to which the contracting authority/entity is subject, in particular legislation regarding access to information, the contracting authority/entity, subject to contractually acquired rights, shall not disclose information forwarded to it by economic operators which such operators have designated as confidential; such information includes, in particular, technical or trade secrets and the confidential aspects of tenders.

Article 7

Protection of classified information

Contracting authorities/entities may impose on economic operators requirements aimed at protecting the classified information they communicate throughout the tendering and contracting procedure. They may also request these economic operators to ensure compliance with such requirements by their subcontractors.

CHAPTER II Thresholds, central purchasing bodies and exclusion provisions

Section 1 Thresholds

Article 8

Threshold amounts for contracts

This Directive shall apply to contracts which have a value excluding value-added tax (VAT) estimated to be no less than the following thresholds:

• (a) EUR 432 000 for supply and service contracts;

• (b) EUR 5 404 000 for works contracts.

Article 9

Methods for calculating the estimated value of contracts and of framework agreements

Where the contracting authority/entity provides for prizes or payments to candidates or tenderers, it shall take them into account when calculating the estimated value of the contract.

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 8, this Directive shall apply to the awarding of each lot. However, the contracting authorities/entities 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 1 000 000 for works, provided that the aggregate value of those lots does not exceed 20 % of the aggregate value of the lots as a whole;

• (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 8(a) and (b). Where the aggregate value of the lots is equal to or exceeds the threshold laid down in Article 8, this Directive shall apply to the awarding of each lot. However, the contracting authorities/entities 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.

• (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.

The choice of method used to calculate the estimated value of a contract may not be made with the intention of excluding it from the scope of this Directive.

• (a) for the following services:
• (i) insurance services: the premium payable and other forms of remuneration;
• (ii) 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, where 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.

Section 2 Central purchasing bodies

Article 10

Contracts and framework agreements awarded by central purchasing bodies

• — 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.

Section 3 Excluded contracts

Article 11

Use of exclusions

None of the rules, procedures, programmes, agreements, arrangements or contracts referred to in this section may be used for the purpose of circumventing the provisions of this Directive.

Article 12

Contracts awarded pursuant to international rules

This Directive shall not apply to contracts governed by:

• (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.

Article 13

Specific exclusions

This Directive shall not apply to the following:

• (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:
• (i) the supply of military equipment or sensitive equipment,
• (ii) works and services directly linked to such equipment, or
• (iii) works and services specifically for military purposes, or sensitive works and sensitive services;

• (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.

Section 4 Special arrangements

Article 14

Reserved contracts

Member States may reserve the right to participate in 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 seriousness of their disabilities, cannot carry on occupations under normal conditions.

The contract notice shall make reference to this provision.

CHAPTER III Arrangements for service contracts

Article 15

Service contracts listed in Annex I

Contracts which have as their object services covered by Article 2 that are listed in Annex I shall be awarded in accordance with Articles 18 to 54.

Article 16

Service contracts listed in Annex II

Contracts which have as their object services covered by Article 2 that are listed in Annex II shall be subject solely to Article 18 and Article 30(3).

Article 17

Mixed contracts including services listed in Annexes I and II

Contracts which have as their object services covered by Article 2 that are listed both in Annex I and in Annex II shall be awarded in accordance with Articles 18 to 54 where the value of the services listed in Annex I is greater than the value of the services listed in Annex II. In other cases, contracts shall be awarded in accordance with Article 18 and Article 30(3).

CHAPTER IV Specific rules governing contract documentation

Article 18

Technical specifications

• (a) either by reference to technical specifications defined in Annex III and, in order of preference, to:
• — national civil standards transposing European standards,
• — European technical approvals,
• — common civil technical specifications,
• — national civil standards transposing international standards,
• — other international civil standards,
• — other technical reference systems established by the European standardisation bodies, or, where these do not exist, other national civil standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products,
• — civil technical specifications stemming from industry and widely recognised by it, or,
• — the national ‘defence standards’ defined in point 3 of Annex III and defence materiel specifications similar to those standards, 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.

An appropriate means might be constituted by a technical dossier from the manufacturer or a test report from a recognised body.

In its tender, the tenderer must prove to the satisfaction of the contracting authority/entity 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/entity.

An appropriate means might be constituted by a technical dossier from the manufacturer or a test report from a recognised body.

• — 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,

Contracting authorities/entities 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 from the manufacturer or a test report from a recognised body.

Contracting authorities/entities shall accept certificates from recognised bodies established in other Member States.

Article 19

Variants

Only variants meeting the minimum requirements laid down by the contracting authorities/entities shall be taken into consideration.

Article 20

Conditions for performance of contracts

Contracting authorities/entities 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 documentation (contract notices, contract documents, descriptive documents or supporting documents). These conditions may, in particular, concern subcontracting or seek to ensure the security of classified information and the security of supply required by the contracting authority/entity, in accordance with Articles 21, 22 and 23, or take environmental or social considerations into account.

Article 21

Subcontracting

• — 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,

Any percentage of subcontracting falling within the range of values indicated by the contracting authority/entity shall be considered to fulfil the subcontracting requirement set out in this paragraph.

Tenderers may propose to subcontract a share of the total value which is above the range required by the contracting authority/entity.

The contracting authority/entity shall ask tenderers to specify in their tender which part or parts of their offer they intend to subcontract to fulfil the requirement referred to in the first subparagraph.

The contracting authority/entity may ask or may be required by a Member State to ask tenderers also to specify which part or parts of their offer they intend to subcontract beyond the required percentage, as well as the subcontractors they have already identified.

The successful tenderer shall award subcontracts corresponding to the percentage which the contracting authority/entity requires it to subcontract in accordance with the provisions of Title III.

Article 22

Security of information

When contracts involve, require and/or contain classified information, the contracting authority/entity shall specify in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents) the measures and requirements necessary to ensure the security of such information at the requisite level.

To this end, the contracting authority/entity may require that the tender contain, inter alia, the following particulars:

• (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.

In the absence of harmonisation at Community level of national security clearance systems, Member States may provide that the measures and requirements referred to in the second subparagraph have to comply with their national provisions on security clearance. Member States shall recognise the 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.

Article 23

Security of supply

The contracting authority/entity shall specify in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents) its security of supply requirements.

To this end, the contracting authority/entity may require that the tender contain, inter alia, the following particulars:

• (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.

A tenderer may not be required to obtain a commitment from a Member State that would prejudice that Member State’s freedom to apply, in accordance with relevant international or Community law, its national export, transfer or transit licensing criteria in the circumstances prevailing at the time of such a licensing decision.

Article 24

Obligations relating to taxes, environmental protection, employment protection provisions and working conditions

The first subparagraph shall be without prejudice to the application of the provisions of Article 49 concerning the examination of abnormally low tenders.

CHAPTER V Procedures

Article 25

Procedures to be applied

In awarding contracts, contracting authorities/entities shall apply the national procedures adjusted for the purposes of this Directive.

Contracting authorities/entities may choose to award contracts by applying the restricted procedure or the negotiated procedure with publication of a contract notice.

Under the circumstances referred to in Article 27, they may award their contracts by means of a competitive dialogue.

In the specific cases and circumstances referred to expressly in Article 28, the contracting authorities/entities may apply a negotiated procedure without publication of a contract notice.

Article 26

Negotiated procedure with publication of a contract notice

Article 27

Competitive dialogue

A contract shall be awarded on the sole basis of the award criterion for the most economically advantageous tender.

During the dialogue, contracting authorities/entities 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/entities may not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue, without the agreement of that candidate.

These tenders may be clarified, specified and fine-tuned at the request of the contracting authority/entity. 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 to distort competition or have a discriminatory effect.

At the request of the contracting authority/entity, 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 the tender or of the call for tenders and does not risk distorting competition or causing discrimination.

Article 28

Cases justifying use of the negotiated procedure without publication of a contract notice

In the following cases, contracting authorities/entities may award contracts by a negotiated procedure without prior publication of a contract notice and shall justify the use of this procedure in the contract award notice as required in Article 30(3):

• (1) for works contracts, supply contracts and service contracts:
• (a) when no tenders or no suitable tenders or no applications have been submitted in response to a restricted procedure, a negotiated procedure with prior publication of a contract notice or a competitive dialogue, provided that the initial conditions of the contract are not substantially altered and on condition that a report is sent to the Commission, if it so requests;
• (b) in the event of irregular tenders or the submission of tenders which are unacceptable under national provisions compatible with Articles 5, 19, 21 to 24 and Chapter VII of Title II, in response to a restricted procedure, a negotiated procedure with publication or a competitive dialogue, insofar as:
• (i) the original terms of the contract are not substantially altered, and
• (ii) they include in the negotiated procedure all of, and only, the tenderers which satisfy the criteria of Articles 39 to 46 and which, during the prior restricted procedure or competitive dialogue, had submitted tenders in accordance with the formal requirements of the tendering procedure;
• (c) when the periods laid down for the restricted procedure and negotiated procedure with publication of a contract notice, including the shortened periods referred to in Article 33(7), are incompatible with the urgency resulting from a crisis. This may apply for instance in the cases referred to in point (d) of the second paragraph of Article 23;
• (d) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities/entities in question, 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. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authority/entity;
• (e) when, for technical reasons or reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator;

• (2) for service contracts and supply contracts:
• (a) for research and development services other than those referred to in Article 13;
• (b) for products manufactured purely for the purpose of research and development, with the exception of quantity production to establish commercial viability or recover research and development costs;

• (3) for supply contracts:
• (a) 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/entity to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance. The length of such contracts, as well as that of recurrent contracts, may not exceed five years, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause;
• (b) for supplies quoted and purchased on a commodity market;
• (c) 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;

• (4) for works contracts and 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 operator performing such works or services:
• (i) when such additional works or services cannot be technically or economically separated from the original contract without major inconvenience to the contracting authorities/entities, or
• (ii) 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 which the same contracting authorities/entities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded according to the restricted procedure, the negotiated procedure with publication of a contract notice or a competitive dialogue. 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/entities when they apply Article 8. This procedure may be used only during the five years following the conclusion of the original contract, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause;

• (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.

Article 29

Framework agreements

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/entities 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 seven years, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause.

In such exceptional circumstances, the contracting authorities/entities shall provide an appropriate justification for those circumstances in the notice referred to in Article 30(3).

Contracting authorities/entities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.

For the award of those contracts, contracting authorities/entities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.

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 contract documents of the framework agreement, in accordance with the following procedure: (a) for every contract to be awarded, contracting authorities/entities shall consult in writing the economic operators capable of performing the contract; (b) contracting authorities/entities 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 submit tenders; (c) tenders shall be submitted in writing and their content remain confidential until the stipulated time-limit for reply has expired; (d) contracting authorities/entities shall award each contract to the tenderer which has submitted the best tender on the basis of the award criteria set out in the contract documents of the framework agreement.

CHAPTER VI Rules on advertising and transparency

Section 1 Publication of notices

Article 30

Notices

• (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.

The notices referred to in the first subparagraph shall be sent to the Commission or published on the buyer profile at the earliest opportunity after the decision approving the project for which the contracting authorities/entities intend to award contracts or framework agreements.

Contracting authorities/entities that publish a prior information notice on their buyer profiles shall send the Commission, electronically, a notice of publication of the prior information notice on a buyer profile, in accordance with the format and detailed procedures for sending notices set out in point 3 of Annex VI.

Publication of the notices referred to in the first subparagraph shall be compulsory only where the contracting authorities/entities take the option of shortening the time-limits for the receipt of tenders as laid down in Article 33(3).

This paragraph shall not apply to negotiated procedures without the prior publication of a contract notice.

In the case of framework agreements concluded in accordance with Article 29, the contracting authorities/entities shall not be bound to send a notice of the results of the award procedure for each contract based on that agreement.

Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where release of such information would impede law enforcement or otherwise be contrary to the public interest, in particular defence and/or security interests, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

Article 31

Non-mandatory publication

Contracting authorities/entities may publish, in accordance with Article 32, notices concerning contracts which are not subject to the publication requirement laid down in this Directive.

Article 32

Form and manner of publication of notices

Notices shall be published in accordance with the technical characteristics for publication set out in point 1(a) and (b) of Annex VI.

Notices which are not transmitted by electronic means in accordance with the format and procedures for transmission set out in point 3 of Annex VI shall be published no later than 12 days after they are sent, or, in the case of the accelerated procedure referred to in Article 33(7), no later than five days after they are sent.

The costs of publication of such notices by the Commission shall be borne by the Community.

Notices published at national level shall not contain information other than that contained in the notices sent to the Commission or published on a buyer profile in accordance with the first subparagraph of Article 30(1), but shall mention the date of dispatch of the notice to the Commission or its publication on a buyer profile.

Prior information notices may not be published on a buyer profile before the dispatch to the Commission of the notice of their publication in that form; they shall mention the date of that dispatch.