Award of contracts for social and other specific services
Public contracts for social and other specific services listed in Annex XIV shall be awarded in accordance with this Chapter, where the value of the contracts is equal to or greater than the threshold indicated in point (d) of Article 4.
Publication of notices
1. Contracting authorities intending to award a public contract for the services referred to in Article 74 shall make known their intention by any of the following means:
(a) by means of a contract notice, which shall contain the information referred to in Annex V Part H, in accordance with the standard forms referred to in Article 51; or
(b) by means of a prior information notice, which shall be published continuously and contain the information set out in Annex V Part I. The prior information notice shall refer specifically to the types of services that will be the subject of the contracts to be awarded. It shall indicate that the contracts will be awarded without further publication and invite interested economic operators to express their interest in writing.
The first subparagraph shall, however, not apply where a negotiated procedure without prior publication could have been used in conformity with Article 32 for the award of a public service contract.
2. Contracting authorities that have awarded a public contract for the services referred to in Article 74 shall make known the results of the procurement procedure by means of a contract award notice, which shall contain the information referred to in Annex V Part J, in accordance with the standard forms referred to in Article 51. They may, however, group such notices on a quarterly basis. In that case, they shall send the grouped notices within 30 days of the end of each quarter.
3. The Commission shall establish the standard forms referred to in paragraphs 1 and 2 of this Article by means of implementing acts. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 89(2).
4. The notices referred to in this Article shall be published in accordance with Article 51.
Principles of awarding contracts
1. Member States shall put in place national rules for the award of contracts subject to this Chapter in order to ensure contracting authorities comply with the principles of transparency and equal treatment of economic operators. Member States are free to determine the procedural rules applicable as long as such rules allow contracting authorities to take into account the specificities of the services in question.
2. Member States shall ensure that contracting authorities may take into account the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantaged and vulnerable groups, the involvement and empowerment of users and innovation. Member States may also provide that the choice of the service provider shall be made on the basis of the tender presenting the best price-quality ratio, taking into account quality and sustainability criteria for social services.
Reserved contracts for certain services
1. Member States may provide that contracting authorities may reserve the right for organisations to participate in procedures for the award of public contracts exclusively for those health, social and cultural services referred to in Article 74, which are covered by CPV codes 75121000-0, 75122000-7, 75123000-4, 79622000-0, 79624000-4, 79625000-1, 80110000-8, 80300000-7, 80420000-4, 80430000-7, 80511000-9, 80520000-5, 80590000-6, from 85000000-9 to 85323000-9, 92500000-6, 92600000-7, 98133000-4, 98133110-8.
2. An organisation referred to in paragraph 1 shall fulfil all of the following conditions:
(a) its objective is the pursuit of a public service mission linked to the delivery of the services referred to in paragraph 1;
(b) profits are reinvested with a view to achieving the organisation’s objective. Where profits are distributed or redistributed, this should be based on participatory considerations;
(c) the structures of management or ownership of the organisation performing the contract are based on employee ownership or participatory principles, or require the active participation of employees, users or stakeholders; and
(d) the organisation has not been awarded a contract for the services concerned by the contracting authority concerned pursuant to this Article within the past three years.
3. The maximum duration of the contract shall not be longer than three years.
4. The call for competition shall make reference to this Article.
5. Notwithstanding Article 92, the Commission shall assess the effects of this Article and report to the European Parliament and the Council by 18 April 2019.
Rules governing design contests
This Chapter shall apply to:
(a) design contests organised as part of a procedure leading to the award of a public service contract;
(b) design contests with prizes or payments to participants.
In the cases referred to in point (a) of the first paragraph of this Article, the threshold referred to in Article 4 is calculated on the basis of the estimated value net of VAT of the public service contract, including any possible prizes or payments to participants.
In the cases referred to in point (b) of the first paragraph of this Article, the threshold refers to the total amount of the prizes and payments, including the estimated value net of VAT of the public services contract which might subsequently be concluded under Article 32(4) if the contracting authority has announced its intention to award such contract in the contest notice.
1. Contracting authorities that intend to carry out a design contest shall make known their intention by means of a contest notice.
Where they intend to award a subsequent service contract pursuant to Article 32(4), this shall be indicated in the contest notice.
2. Contracting authorities that have held a design contest shall send a notice of the results of the contest in accordance with Article 51 and shall be able to prove the date of dispatch.
Where the release of information on the outcome of the contest would impede law enforcement, would be contrary to the public interest or would prejudice the legitimate commercial interests of a particular enterprise, whether public or private, or might prejudice fair competition between service providers, such information may be withheld from publication.
3. The notices referred to in paragraphs 1 and 2 of this Article shall be published in accordance with Article 51(2) to (6) and Article 52. They shall include the information set out respectively in Annex V parts E and F in the format of the standard forms.
The Commission shall establish the standard forms by means of implementing acts. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 89(2).
Rules on the organisation of design contests and the selection of participants
1. When organising design contests, contracting authorities shall apply procedures which are adapted to the provisions of Title I and this Chapter.
2. The admission of participants to design contests shall not be limited:
(a) by reference to the territory or part of the territory of a Member State;
(b) on the grounds that, under the law of the Member State in which the contest is organised, they would be required to be either natural or legal persons.
3. Where design contests are restricted to a limited number of participants, the contracting authorities shall lay down clear and non-discriminatory selection criteria. In any event, the number of candidates invited to participate shall be sufficient to ensure genuine competition.
Composition of the jury
The jury shall be composed exclusively of natural persons who are independent of participants in the contest. Where a particular professional qualification is required from participants in a contest, at least a third of the members of the jury shall have that qualification or an equivalent qualification.
Decisions of the jury
1. The jury shall be autonomous in its decisions or opinions.
2. The jury shall examine the plans and projects submitted by the candidates anonymously and solely on the basis of the criteria indicated in the contest notice.
3. The jury shall record its ranking of projects in a report, signed by its members, made according to the merits of each project, together with its remarks and any points that may need clarification.
4. Anonymity shall be observed until the jury has reached its opinion or decision.
5. Candidates may be invited, if need be, to answer questions that the jury has recorded in the minutes to clarify any aspect of the projects.
6. Complete minutes shall be drawn up of the dialogue between jury members and candidates.
1. In order to effectively ensure correct and efficient implementation, Member States shall ensure that at least the tasks set out in this Article are performed by one or more authorities, bodies or structures. They shall indicate to the Commission all authorities, bodies or structures competent for those tasks.
2. Member States shall 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 shall 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.
3. The results of the monitoring activities pursuant to paragraph 2 shall be made available to the public through appropriate means of information. These results shall 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 shall 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.
For the purposes of this paragraph and paragraph 4 of this Article, ‘SME’ shall be understood as defined in Commission Recommendation 2003/361/EC ( 39 ).
On the basis of the data received under this paragraph, the Commission shall regularly issue a report on the implementation and best practices of national procurement policies in the internal market.
4. Member States shall ensure that:
(a) information and guidance on the interpretation and application of the Union public procurement law is available free of charge to assist contracting authorities and economic operators, in particular SMEs, in correctly applying the Union public procurement rules; and
(b) support is available to contracting authorities with regard to planning and carrying out procurement procedures.
5. Member States shall, 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.
6. Contracting authorities shall, at least for the duration of the contract, keep copies of all concluded contracts with a value equal to or greater than:
(a) 1 000 000 EUR in the case of public supply contracts or public service contracts;
(b) 10 000 000 EUR in the case of public works contracts.
Contracting authorities shall 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
1. For every contract or framework agreement covered by this Directive, and every time a dynamic purchasing system is established, contracting authorities shall draw up a written report which shall include at least the following:
(a) the name and address of the contracting authority, the subject-matter and value of the contract, framework agreement or dynamic purchasing system;
(b) where applicable, the results of the qualitative selection and/or reduction of numbers pursuant to Articles 65 and 66, namely:
(i) the names of the selected candidates or tenderers and the reasons for their selection;
(ii) the names of the candidates or tenderers rejected and the reasons for their rejection;
(c) the reasons for the rejection of tenders found to be abnormally low;
(d) 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;
(e) for competitive procedures with negotiations and competitive dialogues, the circumstances as laid down in Article 26 which justify the use of those procedures;
(f) for negotiated procedures without prior publication, the circumstances referred to in Article 32 which justify the use of this procedure;
(g) 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;
(h) where applicable, the reasons why other means of communication than electronic means have been used for the submission of tenders;
(i) where applicable, conflicts of interests detected and subsequent measures taken.
This report shall not be required in respect of contracts based on framework agreements where these are concluded in accordance with Article 33(3) or point (a) of Article 33(4).
To the extent that the contract award notice drawn up pursuant to Article 50 or Article 75(2) contains the information required in this paragraph, contracting authorities may refer to that notice.
2. Contracting authorities shall document the progress of all procurement procedures, whether or not those are conducted by electronic means. To that end, they shall 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 shall be kept for a period of at least three years from the date of award of the contract.
3. The report, or its main elements, shall be communicated to the Commission or the competent authorities, bodies or structures referred to in Article 83 where they so request.
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