Defence & Security [EU]

Table of Contents

Public procurement in the fields of defence and security

This Directive aims to apply internal market rules to products for defence and security.

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).

This Directive applies to public contracts in the fields of defence and security for:

the supply of military equipment;
the supply of sensitive equipment;
works and services for specifically military and sensitive purposes.

Public procurement

Economic operators, whether they are natural or legal persons, can participate in invitations to tender in these fields. Groups of economic operators may also participate. If a contract is awarded to them, they may be required to assume a specific legal form.

Market thresholds and exclusions

This Directive shall apply to contracts which have a value excluding value-added tax (VAT) estimated to be no less than the following thresholds (for the period from 1 January 2010 to 31 December 2011):

EUR 387,000 for supply and service contracts;
EUR 4,845,000 in the case of works contracts.

Exclusions

This Directive excludes contracts awarded pursuant to international rules, as well as certain other cases including:

contracts governed by specific procedural rules pursuant to an international agreement or arrangement between Member States and third countries and markets governed by the specific procedural rules of an international organisation;
contracts for which the release of certain information would represent a threat to the security of a Member State;
contracts awarded in the framework of a cooperation programme aimed at developing a new system;
contracts for the purposes of intelligence activities;
contracts awarded in a third country when forces are deployed outside the territory of the Union and transactions take place in the area of operations;
contracts relating to immovable property;
contracts awarded between governments.

Procedures

Contracting authorities/entities shall apply national procedures for the award of public contracts, by using the restricted procedure or the negotiated procedure with publication of a contract notice.

Member States may use a competitive dialogue in the case of particularly complex contracts. In this case, contracting authorities/entities open a dialogue with the candidates selected in order to identify and define the means best suited to satisfying their needs.

There are also cases in which the negotiated procedure can be used without publication of a contract notice. The contract award notice shall then indicate that recourse may be had to this procedure.

The contracting authorities/entities may also conclude framework agreements, the duration of which may not exceed seven years. They must not, however, restrict competition.

Rules on advertising and transparency

Contracting authorities/entities may publish a prior information notice on their buyer profiles or through the Commission. The notices shall include the information set out in Annex IV of this Directive. They are to be published according to the terms given in Annex VI.

In the case of restricted procedures, contracting authorities/entities shall invite the selected candidates to submit their tenders and to negotiate. This invitation shall also include contract documents, the deadline for receipt of tenders and an indication of any documents to be annexed.

For every contract or framework agreement, the contracting authorities/entities must draw up a written report describing the selection procedure chosen as well as information concerning the candidates.

Contract award criteria

Contracting authorities/entities shall award contracts on the basis of:

the most economically advantageous tender. Award shall then be based on various criteria linked to the subject-matter of the contract in question, such as quality, price or technical merit); or
the lowest price.

Subcontracting

Contracting authorities/entities may oblige the successful tenderer to organise a transparent and non-discriminatory competition when awarding subcontracts to third parties.

In addition, Member States may allow or require their contracting authorities/entities to ask that subcontracts representing at least a certain share of the value of the contract (a maximum of 30%) be awarded to third parties following a transparent and non-discriminatory competition.

Review

A review of a decision taken by contracting authorities/entities may be sought in the event of an infringement of Community law. Member States must ensure that any operator that has suffered harm has access to effective and rapid rights to review. They may require that operators who wish to seek review either inform the contracting authority or first seek review from it.

During a review procedure, interim or final measures may be taken. In both cases, damages shall be granted to the persons concerned.

Context

The 2005 Green Paper on defence procurement highlighted the fact that it was essential to create a European market for defence equipment. This Directive should prove to be an appropriate legislative framework since it meets the specific requirements relating to goods and services in the fields of defence and security.

References

Act	Entry into force	Deadline for transposition in the Member States	Official Journal
Directive 2009/81/EC	21.8.2009	21.8.2011	OJ L216 of 20.8.2009