Enforcement

In order to effectively ensure correct and efficient implementation, Member States must ensure that at least the tasks set out in this Article are performed by one or more authorities, bodies or structures. They must indicate to the Commission all authorities, bodies or structures competent for those tasks.

Member States must ensure that the application of public procurement rules is monitored. Where monitoring authorities or structures identify by their own initiative or upon the receipt of information specific violations or systemic problems, they must be empowered to indicate those problems to national auditing authorities, courts or tribunals or other appropriate authorities or structures, such as the ombudsman, national parliaments or committees thereof.

The results of the monitoring activities must be made available to the public through appropriate means of information. These results must also be made available to the Commission. For instance, they may be integrated in the monitoring reports referred to in the second subparagraph of this paragraph.

By 18 April 2017 and every three years thereafter Member States must submit to the Commission a monitoring report covering, where applicable, information on the most frequent sources of wrong application or of legal uncertainty, including possible structural or recurring problems in the application of the rules, on the level of SME participation in public procurement and about prevention, detection and adequate reporting of cases of procurement fraud, corruption, conflict of interest and other serious irregularities.

The Commission may, not more than every three years, request Member States to provide information on the practical implementation of national strategic procurement policies.

On the basis of the data received under this paragraph, the Commission must regularly issue a report on the implementation and best practices of national procurement policies in the internal market.

Member States must ensure that:

* information and guidance on the interpretation and application of EU public procurement law is available free of charge to assist contracting authorities and economic operators, in particular SMEs, in correctly applying EU public procurement rules; and

* support is available to contracting authorities with regard to planning and carrying out procurement procedures.

Member States must, without prejudice to the general procedures and working methods established by the Commission for its communications and contacts with Member States, designate a point of reference for cooperation with the Commission as regards the application of public procurement legislation.

Contracting authorities must, at least for the duration of the contract, keep copies of all concluded contracts with a value equal to or greater than:

* €1 000 000 in the case of public supply contracts or public service contracts;

* €10,000 000 in the case of public works contracts.

Contracting authorities must grant access to those contracts; however, access to specific documents or items of information may be denied to the extent and on the conditions provided for in the applicable Union or national rules on access to documents and data protection.

Individual reports on procedures for the award of contracts

For every contract or framework agreement covered by this Directive, and every time a dynamic purchasing system is established, contracting authorities must draw up a written report which must include at least the following:

* the name and address of the contracting authority, the subject-matter and value of the contract, framework agreement or dynamic purchasing system;

* where applicable, the results of the qualitative selection and/or reduction of numbers namely:
* the names of the selected candidates or tenderers and the reasons for their selection;

* the names of the candidates or tenderers rejected and the reasons for their rejection;

* the reasons for the rejection of tenders found to be abnormally low;

* the name of the successful tenderer and the reasons why its tender was selected and, where known, the share of the contract or framework agreement which the successful tenderer intends to subcontract to third parties; and, where known at this point in time, the names of the main contractor’s subcontractors, if any;

* for competitive procedures with negotiations and competitive dialogues, the circumstances as laid down which justify the use of those procedures;

* for negotiated procedures without prior publication, the circumstances which justify the use of this procedure;

* where applicable, the reasons why the contracting authority has decided not to award a contract or framework agreement or to establish a dynamic purchasing system;

* where applicable, the reasons why other means of communication than electronic means have been used for the submission of tenders;

* where applicable, conflicts of interests detected and subsequent measures taken.

This report is not be required in respect of certain categories of framework agreements..

To the extent that the contract award notice drawn contains the information required in this paragraph, contracting authorities may refer to that notice.

Contracting authorities must document the progress of all procurement procedures, whether or not those are conducted by electronic means. To that end, they must ensure that they keep sufficient documentation to justify decisions taken in all stages of the procurement procedure, such as documentation on communications with economic operators and internal deliberations, preparation of the procurement documents, dialogue or negotiation if any, selection and award of the contract. The documentation must be kept for a period of at least three years from the date of award of the contract.

The report, or its main elements, must be communicated to the Commission or the competent authorities, bodies or structures where they so request.

National reporting and statistical information

The Commission must review the quality and completeness of data that can be extracted from the notices, which are published.

Where the quality and completeness of the data referred to above is not compliant with the obligations stipulated the Commission must request complementary information from the Member State concerned. Within a reasonable time, the Member State concerned must supply the missing statistical information requested by the Commission.

By 18 April 2017 and every three years thereafter, Member States must forward to the Commission a statistical report for procurement which would have been covered by this Directive if its value had exceeded the relevant threshold , indicating an estimation of the aggregated total value of such procurement during the period concerned. That estimation may in particular be based on data available under national publication requirements or on sample-based estimates.

Member States must make available to the Commission information on their institutional organisation related to the implementation, monitoring and enforcement of this Directive, as well as on national initiatives taken to provide guidance on or assist in implementation of Union rules on public procurement, or to respond to challenges confronting the implementation of those rules.

Administrative cooperation

Member States must provide mutual assistance to each other, and must put in place measures for effective cooperation with one another, in order to ensure exchange of information on certain procurement issues. They must ensure the confidentiality of the information which they exchange.

The competent authorities of all Member States concerned must exchange information in compliance with personal data protection rules provided.

To test the suitability of using the Internal Market Information System (IMI) for the purpose of exchanging information covered by this Directive, a pilot project must be launched by 18 April 2015.

 

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