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Contracts by Utility Undertakings) Regulations 2016. S.I. No. 286/2016 - European Union (Award
Contracts by Utility Undertakings) Regulations
these Regulations
oil and gas and exploration for, or extraction
, coal or other solid fuels Chapter 3 Material scope Thresholds
procurement Excluded contracts and design contests; special provisions for procurement involving defence and security aspects 19. Contracts awarded for purposes
resale or lease to third parties 20. Contracts and design contests awarded or organised for purposes other than the pursuit
a covered activity or for the pursuit
such an activity in a third country
an exclusive right 24. Contracts awarded by certain contracting entities for the purchase
water and for the supply
energy or
fuels for the production
energy
a joint venture 32. Notification
information
Utilities Directive Chapter 4 General principles 35. Principles
procurement
interest Part 2 RULES APPLICABLE TO CONTRACTS Chapter 1 Procedures
procedures
the negotiated procedure without prior call for competition Chapter 2 Techniques and instruments for electronic and aggregated procurement
electronic auctions 58. Use
electronic catalogues
competition when using electronic catalogues
the procedure Preparation
candidates or tenderers
proof 70. Communication
technical specifications
contracts into lots
a qualification system
sending notices for publication at European Union level
procurement documents
participants and award
contracts
other entities: economic operators requesting qualification 87. Reliance on the capacities
other entities: candidates and tenderers 88. Reliance on the capacities
other entities: general 89. Use
exclusion grounds and selection criteria provided for under the Public Authority Contracts Regulations
contracts
contracts during their term 98. Termination
contracts Part 3 PARTICULAR PROCUREMENT REGIMES Chapter 1 Social and other specific services 99. Award
contracts for social and other specific services 100. Publication
notices 101. Principles
awarding contracts
Organisation
design contests and the selection
participants and the jury 106. Decisions
the jury Part 4 GOVERNANCE 107. Retention
contract copies 108. Individual reports on procedures for the award
contracts
activities for works contracts SCHEDULE 2 List
European Union legal acts referred to in Regulation 5
tenders, requests to participate, application for qualification as well as plans and projects in contests SCHEDULE 4 Part 1 — Information to be included in a periodic indicative notice Part 2 — Information to be included in notice
publication
a periodic indicative notice on a buyer profile not used as a means
calling for competition SCHEDULE 5 Information to be included in the procurement documents relating to electronic auctions SCHEDULE 6 Features concerning publication Part 1 — Publication
notices Part 2 — Publication
complementary or additional information Part 3 — Format and procedures for the electronic transmission
notices SCHEDULE 7 Information to be included in a notice on the existence
a qualification system SCHEDULE 8 Information to be included in contract notices Part 1 — Open procedures Part 2 — Restricted procedures Part 3 — Negotiated procedures SCHEDULE 9 Information to be included in the contract award notice Part 1 — Information for publication in the
ficial Journal
the European Union Part 2 — Information not intended for publication SCHEDULE 10 Contents
invitation to submit a tender, participate in dialogue, to negotiate or to confirm interest under Regulation 81 SCHEDULE 11 List
international social and environmental conventions referred to in Regulation 35
European Union legal acts referred to in Regulation 92
modifications
a contract during its term SCHEDULE 14 Information to be included in notices concerning contracts for social and other specific services Part 1 — Contract notice Part 2 — Periodic indicative notice Part 3 — Notice on the existence
a qualification system Part 4 — Contract award notice SCHEDULE 15 Information to be included in the design contest notice SCHEDULE 16 Information to be included in the results
design contest notice S.I. No. 286
2016 EUROPEAN UNION (AWARD
CONTRACTS BY UTILITY UNDERTAKINGS) REGULATIONS 2016 Notice
the making
this Statutory Instrument was published in “Iris Oifigiúil”
7th June, 2016. The Minister for Public Expenditure and Reform, in exercise
the powers conferred on him by section 3
the European Communities Act 1972 (No. 27
1972) and for the purpose
giving effect to Directive 2014/25/EU
the European Parliament and
the Council
26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC1 , hereby makes the following regulations: Part 1 SCOPE, DEFINITIONS AND GENERAL PRINCIPLES Chapter 1 Subject matter and definitions Citation and commencement 1.
Contracts by Utility Undertakings) Regulations 2016.
tenders that is shorter than the minimum specified in Regulation 44
2000); “ancillary purchasing activity” means an activity consisting
the provision
support to purchasing activities, in particular in the following forms: (
procurement procedures; (c) preparation and management
procurement procedures on behalf and for the account
the contracting entity concerned; “body governed by public law” means a body that has the following characteristics: (a) it is established for the specific purpose
meeting needs in the general interest, not having an industrial or commercial character; (b) it has legal personality; (c) it has any
the following characteristics: (
whose members are appointed by the State, a regional or a local authority, or by another body governed by public law; “candidate” means an economic operator that has sought an invitation or has been invited to take part in a restricted or negotiated procedure, in a competitive dialogue or in an innovation partnership; “centralised purchasing activity” means an activity conducted on a permanent basis, in one
the following forms: (a) the acquisition
supplies or services, or the acquisition
supplies and services, intended for contracting entities; (b) the award
contracts or the conclusion
framework agreements for works, supplies or services intended for contracting entities; “central purchasing body” means a contracting entity within the meaning
Regulation 5
the Public Authority Contracts Regulations providing centralised purchasing activities and, possibly, ancillary purchasing activities; “Commission” means the European Commission; “Commission Decision 2009/767/EC” means Commission Decision
16 October 2009 setting out measures facilitating the use
procedures by electronic means through the points
single contact under Directive 2006/123/EC
the European Parliament and
the Council on services in the internal market2 , as amended by Commission Decision
28 July 20103 , Commission Implementing Decision
14 October 20134 and Commission Regulation (EU) No 519/2013
21 February 20135 ; “Commission Decision 2011/130/EU” means Commission Decision 2011/130/EU
25 February 2011 establishing minimum requirements for the cross-border processing
documents signed electronically by competent authorities under Directive 2006/123/EC
the European Parliament and
the Council on services in the internal market6 ; “common technical specification” means a technical specification in the field
ICT specified in accordance with Articles 13 and 14
Regulation (EU) No 1025/2012
25 October 20127 ; “company number” means the registration number
a company assigned to that company by the Companies Registration
fice; “competent authority” means— (a) in the case
the activities referred to in Regulations 10, 11 and 12, the Commission for Energy Regulation, (b) in the case
the activities referred to in Regulations 13 and 14, other than those relating to the provision
airports or other terminal facilities to carriers by air, the Minister for Transport, Tourism and Sport, (c) in the case
the activities referred to in Regulation 14, other than those relating to the provision
maritime or inland ports or other terminal facilities to carriers by sea or inland waterway, the Commission for Aviation Regulation, (d) in the case
activities referred to in Regulation 15, the Commission for Communications Regulation, and (e) in the case
activities referred to in Regulation 16, the Minister for Communications, Energy and Natural Resources; “Concessions Directive” means Directive 2014/23/EU
the European Parliament and
the Council
26 February 2014 on the award
concession contracts8 ; “Concessions Regulations” means the regulations made under section 3
the European Communities Act 1972 (No. 27
1972) to give effect to the Concessions Directive; “contracting authority” has the meaning given by Regulation 4; “contracting entity” has the meaning given by Regulation 5; “corruption” has the meaning given by the Convention drawn up on the basis
Article K.3
the Treaty on European Union, on the fight against corruption involving
ficials
the European Communities or
ficials
Member States
the European Union drawn up under the Council Act
26 May 19979 ; “contravene” includes fail to comply with; “CPV” means the Common Procurement Vocabulary established by Regulation (EC) No 2195/2002; “Defence Contract Regulations” means the European Union (Award
Contracts relating to Defence and Security) Regulations 2012 ( S.I. No. 62
2012 ); “design contests” means those procedures which enable the contracting entity to acquire, mainly in the fields
town and country planning, architecture, engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award
prizes; “Directive 2004/39/EC” means Directive 2004/39/EC
the European Parliament and
the Council
21 April 200410 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC
the European Parliament and
the Council and repealing Council Directive 93/22/EEC, as amended by Directive 2006/31/EC
the European Parliament and
the Council
5 April 200611 , Directive 2007/44/EC
the European Parliament and
the Council
5 September 200712 , Directive 2008/10/EC
the European Parliament and
the Council
11 March 200813 , Directive 2009/65/EC
the European Parliament and
the Council
13 July 200914 and Directive 2010/78/EU
the European Parliament and
the Council
24 November 201015 ; “Directive 2009/72/EC” means Directive 2009/72/EC
the European Parliament and
the Council
13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC16 ; “Directive 2009/73/EC” means Directive 2009/73/EC
the European Parliament and
the Council
13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC17 ; “Directive 2009/81/EC” means Directive 2009/81/EC
the European Parliament and
the Council
13 July 2009 on the coordination
procedures for the award
certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields
defence and security, and amending Directives 2004/17/EC and 2004/18/EC18 , as amended by Commission Regulation (EC) No 1177/2009
30 November 200919 , Commission Regulation (EU) No 1251/2011
30 November 201120 , Council Directive 2013/16/EU
13 May 201321 , Commission Regulation (EU) No 1336/2013
13 December 201322 and Commission Regulation (EU) 2015/2340
15 December 201523 ; “Directive 2010/13/EU” means Directive 2010/13/EU
the European Parliament and
the Council
10 March 2010 on the coordination
certain provisions laid down by law, regulation or administrative action in Member States concerning the provision
audiovisual media services24 ; “Directive 2012/34/EU” means Directive 2012/34/EU
the European Parliament and
the Council
21 November 2012 establishing a single European railway area25 ; “Directive 2013/34/EU” means Directive 2013/34/EU
the European Parliament and
the Council
26 June 2013 on the annual financial statements, consolidated financial statements and related reports
certain types
undertakings, amending Directive 2006/43/EC
the European Parliament and
the Council and repealing Council Directives 78/660/EEC and 83/349/EEC26 ; “Directive 77/249/EEC” means Council Directive 77/249/EEC
22 March 1977 to facilitate the effective exercise by lawyers
freedom to provide services27 ; “Directive 94/22/EC” means Directive 94/22/EC
the European Parliament and
the Council
30 May 1994 on the conditions for granting and using authorizations for the prospection, exploration and production
hydrocarbons28 ; “Directive 97/67/EC” means Directive 97/67/EC
the European Parliament and
the Council
15 December 1997 on common rules for the development
the internal market
Community postal services and the improvement
quality
service29 , as amended by Directive 2002/39/EC
the European Parliament and
the Council
10 June 200230 and Directive 2008/6/EC
the European Parliament and
the Council
20 February 200831 ; “disability” has the same meaning as it has in the Disability Act 2005 (No. 14
2005); “disabled” means a disability in relation to a natural person; “dominant influence” shall be construed in accordance with Regulation 5
such persons or entities, including temporary associations
undertakings, who or which
fers— (a) the execution
works or a work or both, or (b) the supply
products or the provision
services, on the market; “electronic means” means electronic equipment for the processing (including digital compression) and storage
data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; “Europe 2020 strategy” means the Communication from the Commission
3 March 2010 — Europe 2020 A strategy for smart, sustainable and inclusive growth (COM
the Treaty establishing the European Stability Mechanism done at Brussels on 2 February 2012 between the Euro Area Member States
the European Union; “European standard” means a standard adopted by a European standardisation organisation and made available to the general public; “European Technical Assessment” means the documented assessment
the performance
a construction product, in relation to its essential characteristics, in accordance with the respective European Assessment Document, as defined in point 12
Regulation (EU) No 305/2011
the European Parliament and
the Council
9 March 201132 ; “framework agreement” means an agreement between one or more contracting entities and one or more economic operators, the purpose
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 quantities envisaged; “GPA” means the Agreement on Government Procurement between certain parties to the World Trade Organisation done at Marrakesh on 15 April 1994, as amended by the Protocol Amending the Agreement on Government Procurement done at Geneva on 30 March 2012; “innovation” means the implementation
a new or significantly improved product, service or process, including production, building or construction processes, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations, amongst other things, with the purpose
helping to solve societal challenges or to support the Europe 2020 strategy for smart, sustainable and inclusive growth; “innovation partnership” shall be construed in accordance with Regulation 48; “international standard” means a standard adopted by an international standardisation organisation and made available to the general public; “invitation to confirm interest” means the invitation described in Regulation 81
the product or the works or the provision
the service, from raw material acquisition or generation
resources to disposal, clearance and end
service or utilisation; “local authority”, in relation to the State, has the same meaning as it has in the Local Government Act 2001 (No. 37
2001); “Member State” means a Member State
the European Union and, where relevant, includes a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (as adjusted by the Protocol signed at Brussels on 17 March 1993), as amended; “Minister” means the Minister for Public Expenditure and Reform; “national standard” means a standard adopted by a national standardisation organisation and made available to the general public; “negotiated procedure” means a procedure in accordance with Regulation 46 or 49; “
ficial Journal” means the
ficial Journal
the European Union; “open procedure” shall be construed in accordance with Regulation 44; “periodic indicative notice” means the notice referred to in Regulation 74; “procurement” means the acquisition by means
a supply, works or service contract
supplies, works or services by one or more contracting entities from economic operators chosen by those contracting entities, provided that the supplies, works or services are intended for the pursuit
one
the activities referred to in Regulations 10 to 16; “procurement document” means any document produced or referred to by a contracting entity to describe or determine elements
a procurement or a procedure, including the contract notice, the periodic indicative notice or the notices on the existence
a qualification system where they are used as a means
calling for competition, the technical specifications, the descriptive document, proposed conditions
contract, formats for the presentation
documents by candidates and tenderers, information on generally applicable obligations and any additional documents; “procurement service provider” means a public or private body, which
fers ancillary purchasing activities on the market; “Public Authorities Contracts Directive” means Directive 2014/24/EU
the European Parliament and
the Council
26 February 2014 on public procurement and repealing Directive 2004/18/EC33 ; "Public Authority Contracts Regulations" means the European Union (Award
Public Authority Contracts) Regulations 2016; “public contract” has the same meaning as it has in the Public Authority Contracts Regulations; “public undertaking” has the meaning given by Regulation 5
fice” means the Union Publications
fice
the European Union; “qualification system” means the system described in Regulation 84; “quarter” means a period
3 months ending in March, June, September or December in any year; “regional authority” includes an authority
an administrative unit classified as NUTS level 1 or 2 in accordance with Regulation (EC) No 1059/2003
the European Parliament and
the Council
26 May 2003 on the establishment
a common classification
territorial units for statistics (NUTS)34 ; “Regulation (EC) No 1370/2007” means Regulation (EC) No. 1370/2007
the European Parliament and
the Council
23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos. 1191/69 and 1107/7035 ; “Regulation (EC) No 2195/2002” means Regulation (EC) No 2195/2002
the European Parliament and
the Council
5 November 2002 on the Common Procurement Vocabulary (CPV)36 , as amended by Commission Regulation (EC) No 2151/2003
16 December 200337 , Commission Regulation (EC) No 213/2008
28 November 200738 and Regulation (EC) No 596/2009
the European Parliament and
the Council
18 June 200939 ; “Regulations
2007” means the European Communities (Award
Contracts by Utility Undertakings) Regulations 2007 ( S.I. No. 50
2007 ); “selection criteria” means the criteria established by a contracting entity in accordance with Regulations 85 and 89; “service contracts” means contracts having as their object the provision
services other than those referred to in the definition
“works contracts”; “standard” means a technical specification, adopted by a recognised standardisation body, for repeated or continuous application, with which compliance is not compulsory, and which is one
the following: (
products; for the purposes
this definition, a supply contract may include, as an incidental matter, siting and installation operations; “supply, works and service contracts” means contracts for pecuniary interest concluded in writing between one or more contracting entities and one or more economic operators and having as their object the execution
works, the supply
products or the provision
services; “technical reference” means any deliverable produced by European standardisation bodies, other than European standards, according to procedures adapted to the development
market needs; “technical specification” means— (a) in the case
service or supply contracts a specification in a document defining the required characteristics
a product or a service, including quality levels, environmental and climate performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use
the product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods at any stage
the life cycle
the supply or service and conformity assessment procedures, or (b) in the case
works contracts, the totality
the technical prescriptions contained in particular in the procurement documents, defining the characteristics required
a material, product or supply, which permits a material, a product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contracting entity; those characteristics include levels
environmental and climate performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, and production processes and methods at any stage
the life cycle
the works; those characteristics also include rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques
construction and all other technical conditions which the contracting entity is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve; “tenderer’ means an economic operator that has submitted a tender; “TFEU” means the Treaty on the Functioning
the European Union; “Treaties” means the Treaty on European Union and the TFEU; “Union law” means the law
the European Union; “Utilities Directive” means Directive 2014/25/EU
the European Parliament and
the Council
26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC40 ; “VAT” means value-added tax; “work” where used as a singular noun, means the outcome
building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function; “works contracts” means contracts having as their object one
the following: (a) the execution, or both the design and execution,
works related to one
the activities within the meaning
Schedule 1; (b) the execution, or both the design and execution,
a work; (c) the realisation by whatever means
a work corresponding to the requirements specified by the contracting entity exercising a decisive influence on the type or design
the work; “written” or “in writing” means any expression consisting
words or figures which can be read, reproduced and subsequently communicated, including information transmitted and stored by electronic means.
an activity as referred to in Regulations 10 to 16.
these Regulations 3.
the procedures for procurement by a contracting entity with respect to a contract or a design contest— (a) the value
which is estimated to be not less than the threshold referred to in Regulation 17, and (b) which is not excluded from the scope
these Regulations by any other provision
this Part.
the TFEU. Contracting authorities 4. In these Regulations, “contracting authority” means— (
the activities referred to in Regulations 10 to 16, or (b) is not a contracting authority or public undertaking, but pursues one
the activities referred to in Regulations 10 to 16 or any combination thereof and has been granted special or exclusive rights by a competent authority
a Member State.
— (i) its ownership
the undertaking, (
subparagraph (a), a contracting authority is presumed to exercise a dominant influence where it directly or indirectly— (i) holds a majority
the undertaking’s subscribed capital, (ii) controls a majority
the votes attaching to shares issued by the undertaking, or (iii) can appoint more than half
the undertaking’s administrative, management or supervisory body.
this Regulation, and subject to subparagraph (b), “special or exclusive rights” means rights granted by a competent authority
a Member State by way
any legislative, regulatory or administrative provision the effect
which is to limit the exercise
activities referred to in Regulations 10 to 16 to one or more persons, and which substantially affects the ability
other persons to carry out such activity. (b) Rights which have been granted by means
a procedure in which adequate publicity has been ensured and where the granting
those rights was based on objective criteria shall not constitute special or exclusive rights within the meaning
subparagraph (a). (
the European Union listed in Schedule 2, ensuring adequate prior transparency for granting authorisations on the basis
objective criteria. Mixed procurement covering the same activity 6.
procurement (works, services or supplies) all
which are subject to these Regulations.
procurement that characterises the main subject
the contract.
services referred to in Regulation 99 and partly
other services, or (b) partly
services and partly
supplies, the main subject
the contract shall be determined in accordance with which
the estimated values
the respective services or supplies is the highest. Mixed procurement covering activities to which these Regulations do not apply 7.
a contract to which this Regulation applies are objectively separable and the contracting entity chooses to award separate contracts for the separate parts
the contract, the decision as to which legal regime applies to any one
such separate contracts shall be taken on the basis
the characteristics
the separate part concerned.
a contract to which this Regulation applies are objectively separable and the contracting entity chooses to award a single contract, these Regulations shall apply to the contract, irrespective
the value
the parts that would otherwise fall under a different legal regime and irrespective
which legal regime those parts would otherwise have been subject to.
a contract to which this Regulation applies are objectively separable and the contract contains elements
supply, works and service contracts and also contains elements
concessions, the contract shall be awarded in accordance with these Regulations where the estimated value
the part
the contract the subject-matter
which is subject to these Regulations, calculated in accordance with Regulation 18, is equal to or greater than the relevant threshold specified in Regulation 17.
a contract to which this Regulation applies are not objectively separable, the applicable legal regime shall be determined on the basis
the main subject-matter
that contract.
a contract to which this Regulation applies is subject to Article 346
the TFEU or Directive 2009/81/EC, Regulation 26 shall apply. Procurement covering several activities 8.
each separate activity or to award a single contract.
separate activities, the decision as to which provisions apply to any one
such separate contracts shall be taken on the basis
the characteristics
the separate activity concerned.
separate activities and it is objectively possible to identify the activity for which the contract is principally intended, the provisions applicable to the activity for which the contract is principally intended shall apply to the award
the contract.
separate activities and it is not objectively possible to determine for which activity the contract is principally intended, the contract shall be awarded as follows: (a) where one
the purposes
the contract is an activity to which the Public Authority Contracts Regulations apply and the other purpose
the contract is an activity to which these Regulations apply, the contract shall be awarded in accordance with the Public Authority Contracts Regulations; (b) where one
the purposes
the contract is an activity to which the Concessions Regulations apply and the other purpose
the contract is an activity to which these Regulations apply, the contract shall be awarded in accordance with these Regulations; (c) where one
the purposes
the contract is an activity to which these Regulations apply and the other purpose
the contract is an activity to which neither these Regulations, the Public Authority Contracts Regulations nor the Concessions Regulations apply, the contract shall be awarded in accordance with these Regulations.
separate activities and one
the activities is subject to Article 346
the TFEU or Directive 2009/81/EC, Regulation 27 shall apply.
separate activities where the purpose
so choosing is to exclude the award
the contract or contracts from the scope
these Regulations, the Public Authority Contracts Regulations or the Concessions Regulations. Chapter 2 Activities Common provisions 9.
Regulations 10, 11 and 12, supply includes generation, production, wholesale and retail sale, but does not include the production
gas in the form
extraction.
gas in the form
extraction. Gas and heat 10.
fixed networks intended to provide a service to the public in connection with the production, transport or distribution
gas or heat, and (b) the supply
gas or heat to such networks.
gas or heat to fixed networks which provide a service to the public where the following conditions are met: (a) the production
gas or heat by that contracting entity is the unavoidable consequence
carrying out an activity other than those referred to in— (i) paragraph
the economic exploitation
such production only and amounts to not more than 20%
the contracting entity’s turnover.
paragraph
its turnover for the preceding 3 years, including the current year. Electricity 11.
fixed networks intended to provide a service to the public in connection with the production, transport or distribution
electricity, and (b) the supply
electricity to such networks.
electricity to fixed networks which provide a service to the public where the following conditions are met: (a) the electricity is produced by that contracting entity because the consumption
that electricity is necessary for carrying out an activity other than those referred to in— (i) paragraph
electricity to the public network is only for the purposes
that contracting entity’s own consumption
electricity and has not exceeded 30%
that contracting entity’s total energy production.
paragraph
its energy production for the preceding 3 years, including the current year. Water 12.
fixed networks intended to provide a service to the public in connection with the production, transport or distribution
drinking water, and (b) the supply
drinking water to such networks.
the following: (a) hydraulic engineering projects, irrigation or land drainage, where the volume
water to be used for the supply
drinking water represents more than 20%
the total volume
water made available by such projects or irrigation or drainage installations; (b) the disposal or treatment
sewage.
drinking water to fixed networks which provide a service to the public where the following conditions are met: (
that contracting entity’s own consumption and has not exceeded 30%
that contracting entity’s total drinking water production.
paragraph
its drinking water production for the preceding 3 years, including the current year. Transport services 13.
networks providing a service to the public in the field
transport by railway, automated systems, tramway, trolley bus, bus or cable.
paragraph
a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency
the service. Ports and airports 14. These Regulations apply to activities relating to the exploitation
a geographical area for the purpose
the provision
airports, maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway. Postal services 15.
— (
the Utilities Directive are not satisfied in respect
those postal services.
this Regulation and without prejudice to Directive 97/67/EC: (a)“postal item” means an item addressed in the final form in which it is to be carried, irrespective
weight, including— (
weight; (b)“postal services” means services consisting
the clearance, sorting, routing and delivery
postal items, including services falling within, as well as services falling outside, the scope
the universal service set up in conformity with Directive 97/67/EC; (c)“services other than postal services” means services provided in the following areas: (
the definition
“postal items” in subparagraph (a), including direct mail bearing no address. Extraction
oil and gas and exploration for, or extraction
, coal or other solid fuels 16. These Regulations apply to activities relating to the exploitation
a geographical area for the purpose
— (
VAT, estimated to be equal to or greater than the following thresholds: (a)€418,000 for supply and service contracts as well as for design contests; (b)€5,225,000 for works contracts; (c)€1,000,000 for service contracts for social and other specific services listed in Annex XVII to the Utilities Directive. Methods for calculating the estimated value
procurement 18.
the estimated value
a procurement shall be based on the total amount payable, net
VAT, as estimated by the contracting entity, including any form
option and any renewal
a contract as explicitly specified in the procurement documents.
the procurement.
separate operational units, account shall be taken
the total estimated value for all
those units when calculating the estimated value
the procurement.
its procurement, the value
the procurement may be estimated at the level
the unit concerned.
the method used to calculate the estimated value
a procurement shall not be made with the intention
excluding it from the scope
these Regulations.
preventing it from falling within the scope
these Regulations other than where the subdivision is justified by objective reasons.
the procurement shall be the value at the moment at which the call for competition is sent or, in cases where such a call for competition is not foreseen, at the moment at which the contracting entity commences the contract procurement procedure, including, where appropriate, by contacting economic operators in relation to the procurement.
framework agreements and dynamic purchasing systems, the estimated value
the procurement to be taken into consideration shall be the maximum estimated value, net
VAT,
all the contracts envisaged for the total term
the framework agreement or the dynamic purchasing system, as the case may be.
innovation partnerships, the estimated value
the procurement to be taken into consideration shall be the maximum estimated value, net
VAT,
the research and development activities to take place during all stages
the envisaged partnership as well as
the supplies, services or works to be developed and procured at the end
the envisaged partnership.
Regulation 17, contracting entities shall include in the calculation
the estimated value
a works contract both the cost
the works and the total estimated value
any supplies or services that are made available to the economic operator by the contracting entity where those supplies and services are necessary for the execution
the works.
services may result in contracts being awarded in the form
separate lots, account shall be taken
the total estimated value
all such lots. (b) Where the aggregate value
the lots referred to in subparagraph (a) is equal to or greater than the relevant threshold specified in Regulation 17, these Regulations shall apply to the awarding
each lot.
similar supplies may result in contracts being awarded in the form
separate lots, account shall be taken
the total estimated value
all such lots when applying paragraphs (b) and (c)
Regulation 17. (b) Where the aggregate value
the lots referred to in subparagraph (a) is equal to or greater than the relevant threshold specified in Regulation 17, these Regulations shall apply to the awarding
each lot.
VAT,
the lot concerned is less than— (i) in the case
supplies or services, €80,000, or (ii) in the case
works, €1,000,000, and (b) the aggregate value
the lots awarded without applying these Regulations does not exceed 20%
the aggregate value
all the lots into which the proposed work, the proposed acquisition
similar supplies or the proposed provision
services, has been divided.
supply or service contracts which are regular in nature or which are intended to be renewed within a given period, the calculation
the estimated contract value shall be based on either
the following: (a) the total actual value
the successive contracts
the same type awarded during the preceding 12 months or financial year adjusted, where possible, to take account
the changes in quantity or value which would occur in the course
the 12 months following the initial contract; (b) the total estimated value
the successive contracts awarded during the 12 months following the first delivery, or during the financial year where that is longer than 12 months.
supply contracts relating to the leasing, hire, rental or hire purchase
products, the value to be taken as a basis for calculating the estimated contract value shall be as follows: (a) in the case
fixed-term contracts— (i) where the term
the contract is less than or equal to 12 months, the total estimated value for the term
the contract, or (ii) where the term
the contract is greater than 12 months, the total value including the estimated residual value; (b) in the case
contracts without a fixed term, or public contracts the term
which cannot be defined, the monthly value multiplied by 48.
service contracts, the basis for calculating the estimated contract value shall, where appropriate, be the following: (a) in the case
insurance services, the premium payable and other forms
remuneration payable for those services; (b) in the case
banking and other financial services, the fees, commissions payable, interest and other forms
remuneration payable for those services; (c) in the case
a design contract, the fees, commissions payable and other forms
remuneration payable under the contract.
service contracts which do not indicate a total price, the basis for calculating the estimated contract value shall be the following: (a) in the case
fixed-term contracts where that term is less than or equal to 48 months, the total value for their full term; (b) in the case
contracts without a fixed term or with a term greater than 48 months, the monthly value multiplied by 48. Excluded contracts and design contests; special provisions for procurement involving defence and security aspects Contracts awarded for purposes
resale or lease to third parties 19.
resale or lease to third parties where— (a) the contracting entity enjoys no special or exclusive right to sell or lease the subject
such contracts, and (b) other entities are free to sell or lease the subject
such contracts under the same conditions as the contracting entity.
all the categories
products or activities which it considers to be excluded under paragraph
a covered activity or for the pursuit
such an activity in a third country 20.
their activities, as described in Regulations 10 to 16, or for the pursuit
such activities in a third country, in conditions not involving the physical use
a network or geographical area within the European Union.
any activities which it considers to be excluded under paragraph
the following: (a) a legal instrument creating international law obligations, such as an international agreement, concluded in accordance with the Treaties, between a Member State and one or more third countries (or subdivisions
such countries) and covering works, supplies or services intended for the joint implementation or exploitation
a project by its signatories; (b) an international organisation.
contracts, or design contests, the majority
the finance for which is provided by an international organisation or international financing institution, the contracting entity and the international organisation or international financing institution, as appropriate, shall agree on applicable procurement procedures.
contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules. (b) Regulation 28 applies to contracts and design contests referred to in subparagraph (a). Specific exclusions for service contracts 22.
land, existing buildings or other immovable property, or any interest in or right over any such land, existing buildings or immovable property, (b) arbitration or conciliation services, (c) any
the following legal services: (i) legal representation
a client by a lawyer (within the meaning
Directive 77/249/EEC) in— (I) an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance, or (II) judicial proceedings before the courts, tribunals or public authorities
a Member State or a third country or before international courts, tribunals or institutions; (ii) legal advice given— (I) in the preparation
any
the proceedings referred to in clause (i), or (II) where there is a tangible indication and high probability that the matter to which the advice relates will become the subject
such proceedings, where the advice is given by a lawyer (within the meaning
Directive 77/249/EEC); (iii) document certification and authentication services which must be provided by notaries; (iv) legal services provided by trustees or appointed guardians or other legal services the providers
which are designated by a court or tribunal in the Member State concerned or are designated by law to carry out specific tasks under the supervision
such tribunals or courts; (v) other legal services which in the Member State concerned are connected, even occasionally, with the exercise
ficial authority, (d) financial services in connection with the issue, sale, purchase or transfer
securities or other financial instruments within the meaning
Directive 2004/39/EC and operations conducted with the European Financial Stability Facility and the European Stability Mechanism, (e) loans, whether or not in connection with the issue, sale, purchase or transfer
securities or other financial instruments, (
paragraph
Directive 2010/13/EU; “programme” means a programme within the meaning
point (b)
Directive 2010/13/EU, or a radio programme. Service contracts awarded on the basis
an exclusive right 23. These Regulations do not apply to service contracts awarded to an entity which is itself a contracting authority or to an association
contracting authorities on the basis
an exclusive right which they enjoy pursuant to a law, regulation or published administrative provision which is compatible with the TFEU. Contracts awarded by certain contracting entities for the purchase
water and for the supply
energy or
fuels for the production
energy 24. These Regulations do not apply— (a) to contracts for the purchase
water if awarded by contracting entities engaged in one or both
the activities relating to drinking water referred to in Regulation 12
energy, or (ii)
fuels for the production
energy. Defence and security 25.
defence and security, with the exception
the following: (a) contracts falling within the scope
Directive 2009/81/EC; (b) contracts to which Directive 2009/81/EC does not apply pursuant to Articles 8, 12 and 13
that Directive.
defence and security not otherwise exempted under paragraph
the essential security interests
the State or another Member State cannot be guaranteed by less intrusive measures, including by imposing requirements aimed at protecting the confidential nature
information which the contracting entity makes available in a contract award procedure as provided for in these Regulations.
the TFEU, these Regulations do not apply to contracts awarded and design contests organised in the fields
defence and security, not otherwise exempted under paragraph
these Regulations would oblige the State to supply information the disclosure
which it considers contrary to the essential interests
its security.
a contract or design contest are declared to be secret or must be accompanied by special security measures in accordance with the laws
, or administrative provisions in force in, the State, these Regulations do not apply where the State has determined that the essential interests concerned cannot be guaranteed by less intrusive measures, such as those referred to in paragraph
the TFEU or the Defence Contract Regulations apply.
a contract to which this Regulation applies are objectively separable, a contracting entity may choose to award separate contracts for the separate parts or to award a single contract.
a contract to which this Regulation applies, the decision as to which legal regime applies to any one
such separate contracts shall be taken on the basis
the characteristics
the separate part concerned.
a contract to which this Regulation applies, the following criteria shall apply to determine the applicable legal regime: (a) where part
a contract is covered by Article 346
the TFEU, the contract may be awarded without applying these Regulations where the award
a single contract is justified for objective reasons; (b) where the Defence Contract Regulations apply to part
a contract, the contract may be awarded in accordance with those Regulations, subject to any exclusions and thresholds specified in those Regulations, where the award
a single contract is justified for objective reasons; (
a single contract is justified for objective reasons.
so choosing is to exclude the award from the application
either these Regulations or the Defence Contract Regulations.
a contract to which this Regulation applies are objectively not separable— (a) the contract may be awarded without applying these Regulations where the contract includes elements to which Article 346
the TFEU applies, and (b) the contract may be awarded in accordance with the Defence Contract Regulations where the contract does not include elements to which Article 346
the TFEU applies. Procurement covering several activities and involving defence or security aspects 27.
a contract to which this Regulation applies, award separate contracts for the purposes
each separate activity or award a single contract.
a contract to which this Regulation applies, a contracting entity chooses to award separate contracts for separate activities, the decision as to which legal regime applies to any one
such separate contracts shall be taken on the basis
the characteristics
the separate activity concerned.
a contract to which this Regulation applies— (
a single contract is justified for objective reasons, and (c) the decision to award a single contract is not taken for the purpose
excluding contracts from the application
these Regulations, the contract may be awarded in accordance with the Defence Contract Regulations, subject to any exclusions and thresholds specified in those Regulations.
a contract to which this Regulation applies— (a) a contracting entity chooses to award a single contract covering an activity which is subject to these Regulations and another which is covered by Article 346
the TFEU, (b) the award
a single contract is justified for objective reasons, and (c) the decision to award a single contract is not taken for the purpose
excluding contracts from the application
these Regulations, the contract may be awarded without applying these Regulations.
a contract to which this Regulation applies— (
the TFEU, (b) the award
a single contract is justified for objective reasons, and (c) the decision to award a single contract is not taken for the purpose
excluding contracts from the application
these Regulations, the contract may be awarded without applying these Regulations.
separate contracts where the purpose
so choosing is to exclude the contract or contracts from the scope
either these Regulations or the Defence Contract Regulations. Contracts and design contests involving defence or security aspects which are awarded or organised pursuant to international rules 28.
the following: (a) an international agreement or arrangement, concluded in accordance with the Treaties, between a Member State and one or more third countries or subdivisions
such countries and covering works, supplies or services intended for the joint implementation or exploitation
a project by its signatories; (b) an international agreement or arrangement relating to the stationing
troops and concerning the undertakings
a Member State or a third country; (c) an international organisation.
contracts, or design contests, the majority
the finance for which is provided by an international organisation or international financing institution, the contracting entity and the international organisation or international financing institution, as appropriate, shall agree on applicable procurement procedures. Contracts between contracting authorities 29.
these Regulations where the following conditions are fulfilled: (
the activities
the controlled legal person are carried out in the performance
tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority; (c) there is no direct private capital participation in the controlled legal person with the exception
non-controlling and non-blocking forms
private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on that legal person.
paragraph
that legal person, or (b) that control is exercised by another legal person, which is itself controlled in the same way by the contracting authority.
these Regulations where a controlled legal person which is a contracting authority awards a contract to— (
non-controlling and non-blocking forms
private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence over the controlled legal person.
paragraph
the activities
that legal person are carried out in the performance
tasks entrusted to it by the controlling contracting authorities or by other legal persons controlled by the same contracting authorities; (c) there is no direct private capital participation in the controlled legal person with the exception
non-controlling and non-blocking forms
private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.
paragraph
the controlled legal person are composed
representatives
all participating contracting authorities; (b) those contracting authorities are able to jointly exert decisive influence over the strategic objectives and significant decisions
the controlled legal person; (c) the controlled legal person does not pursue any interests which are contrary to those
the controlling contracting authorities.
paragraph
the participating contracting authorities.
these Regulations where the following conditions are fulfilled: (a) the contract establishes or implements a co-operation between the participating contracting authorities with the aim
ensuring that public services they have to perform are provided with a view to achieving objectives they have in common; (b) the implementation
that co-operation is governed solely by considerations relating to the public interest; (c) the participating contracting authorities perform on the open market less than 20%
the activities concerned by the co-operation.
the percentage
activities referred to in paragraphs
— (
its activities, the turnover, or alternative activity-based measure such as costs, is either not available for the preceding 3 years or no longer relevant, it shall be sufficient to show that the measurement
activity is credible, particularly by means
business projections. Contracts awarded to an affiliated undertaking 30.
an entity which is subject to Directive 2013/34/EU, any undertaking the annual accounts
which are consolidated with those
the contracting entity in accordance with the requirements
that Directive, and (b) in the case
an entity which is not subject to Directive 2013/34/EU, any undertaking that— (
another undertaking by virtue
ownership, financial participation or the rules which govern it.
contracting entities for the purpose
carrying out activities described in Regulations 10 to 16, to an affiliated undertaking
one
its members.
service contracts, at least 80%
the average total turnover
the affiliated undertaking over the preceding 3 years, taking into account all services provided by that undertaking, derives from the provision
services to the contracting entity or one or more
its affiliated undertakings, (b) in respect
supply contracts, at least 80%
the average total turnover
the affiliated undertaking over the preceding 3 years, taking into account all supplies provided by that undertaking, derives from the provision
supplies to the contracting entity or one or more
its affiliated undertakings, and (c) in respect
works contracts, at least 80%
the average total turnover
the affiliated undertaking over the preceding 3 years, taking into account all works provided by that undertaking, derives from the provision
works to the contracting entity or one or more
its affiliated undertakings.
the date on which an affiliated undertaking was created or commenced activities, the turnover referred to in paragraph
business projections.
services, supplies or works by those affiliated undertakings. Contracts awarded to a joint venture or to a contracting entity forming part
a joint venture 31. Notwithstanding Regulation 29, these Regulations shall not apply to contracts awarded by— (a) a joint venture, formed exclusively by a number
contracting entities for the purpose
carrying out activities within the meaning
Regulations 10 to 16, to one
those contracting entities, or (b) a contracting entity to such a joint venture
which it forms part, provided that the joint venture has been set up in order to carry out the activity concerned over a period
at least 3 years and the instrument setting up the joint venture stipulates that the contracting entities, which form it, will be part
the joint venture for at least the same period. Notification
information 32. A contracting entity shall notify to the Commission, if so requested, the following information regarding the application
paragraphs
Regulation 30 and Regulation 31: (a) the names
the undertakings or joint ventures concerned; (b) the nature and value
the contracts involved; (c) proof, deemed necessary by the Commission, that the relationship between the undertaking or joint venture to which the contracts are awarded and the contracting entity complies with the requirements
Regulation 30 or
its own affairs, and (b) the service provided is wholly remunerated by the contracting entity. Applicability
Utilities Directive 34.
the criteria specified in Article 34
the Utilities Directive, a given activity is directly exposed to competition on markets to which access is not restricted, the Minister or, where applicable, the contracting entity may submit a request to the Commission to establish that the Utilities Directive does not apply to the award
contracts or the organisation
design contests for the pursuit
that activity.
a larger sector or which are exercised only in certain parts
the State.
all relevant facts, and in particular any law, regulation, administrative provision or agreement concerning compliance with the conditions specified in Article 34
the Utilities Directive.
the Utilities Directive to the activity concerned in accordance with paragraphs
that Article, and the Commission so informs the State, the Minister shall inform the Commission
all relevant facts, and in particular
any law, regulation, administrative provision or agreement concerning compliance with the conditions specified in Article 34
a request under paragraph
— (a) a request under paragraph
additional facts under paragraph
the period provided for in Annex IV to the Utilities Directive (as adjusted in accordance with Article 35
the Utilities Directive, where applicable) in respect
the first request shall not be considered as new requests and shall be treated in the context
the first request concerning that activity.
such an activity shall cease to be subject to these Regulations where the Commission has in respect
the activity— (a) adopted an implementing act establishing the applicability
the Utilities Directive in accordance with Article 35
that Directive within the period provided for in Annex IV to that Directive (as adjusted in accordance with Article 35
that Directive, where applicable), or (b) not adopted any implementing act in accordance with Article 35
the Utilities Directive within the period provided for in Annex IV to the Utilities Directive (as adjusted in accordance with Article 35
the Utilities Directive, where applicable). Chapter 4 General principles Principles
procurement 35.
a procurement shall not be made with the intention
excluding it from the scope
these Regulations or
artificially narrowing competition.
paragraph
a procurement is made with the intention
unduly favouring or disadvantaging certain economic operators.
a public contract, an economic operator shall comply with applicable obligations in the fields
environmental, social and labour law that apply at the place where the works are carried out or the services provided, that have been established by Union law, national law, collective agreements or by international, environmental, social and labour law listed in Schedule 11. (b) A contracting authority shall ensure that public contracts entered into by it require that the obligations referred to in subparagraph (a) are complied with. Economic operators 36.
the Member State in which it is established, is entitled to provide the relevant service, shall not be rejected solely on the ground that, under the law
the State, it would be required to be either a natural or a legal person.
service and works contracts as well as supply contracts covering in addition services 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
the staff responsible for the performance
the contract in question.
economic operators, including temporary associations, may participate in procurement procedures and shall not be required by a contracting entity to have a specific legal form in order to submit a tender or a request to participate.
economic operators are to meet the criteria and requirements for qualification and qualitative selection referred to in Regulations 84 to 90 provided that this is justified by objective reasons and is proportionate.
a contract by such groups
economic operators which are different from those imposed on individual participants shall also be justified by objective reasons and shall be proportionate.
economic operators to assume a specific legal form once they have been awarded the contract, to the extent that such a change is necessary for the satisfactory performance
the contract. Reserved contracts 37.
disabled or disadvantaged persons, or (b) provide for contracts awarded under such a procurement procedure to be performed in the context
sheltered employment programmes, provided that at least 30%
the employees
those workshops, economic operators or programmes are disabled or disadvantaged workers.
the Utilities Directive. Confidentiality 38.
tenders.
these Regulations, including the obligations relating to the advertising
awarded contracts and the information to candidates and tenderers specified in Regulations 77 and 82 respectively, and (b) the Freedom
Information Act 2014 (No. 30
2014).
information which the contracting entity makes available throughout the procurement procedure, including information made available in connection with the operation
a qualification system, whether or not this has been the subject
a notice on the existence
a qualification system used as a means
calling for competition. Rules applicable to communication 39.
communication in accordance with the requirements
this Regulation.
communication in the submission process where— (a) due to the specialised nature
the procurement, the use
electronic means
communication would require specific tools, devices or file formats that are not generally available or supported by generally available applications, (b) the applications supporting file formats that are suitable for the description
the tenders use file formats that cannot be handled by any other open or generally available applications or are under a proprietary licensing scheme and cannot be made available for downloading or remote use by the contracting entity, (c) the use
electronic means
communication would require specialised
fice equipment that is not generally available to contracting entities, or (d) the procurement documents require the submission
physical or scale models which cannot be transmitted using electronic means.
communications for which electronic means
communication are not used pursuant to paragraph
post or other suitable carrier and electronic means.
communication in the submission process to the extent that the use
means
communication other than electronic means is necessary either— (a) because
a breach
security
the electronic means
communications, or (b) for the protection
information
a particularly sensitive nature requiring such a high level
protection that it cannot be properly ensured by using electronic tools and devices that are either generally available to economic operators or can be made available to them by alternative means
access within the meaning
paragraph
communication other than electronic means in the submission process, it shall indicate in the information kept in accordance with Regulation 108 the reasons for this requirement. (b) Where applicable, contracting entities shall indicate in the information kept in accordance with Regulation 108 the reasons why use
means
communication other than electronic means has been considered necessary in accordance with paragraph
communications other than those concerning the essential elements
a procurement procedure, where the content
the oral communication is documented to a sufficient degree. (b) For the purposes
subparagraph (a), the essential elements
the procurement procedure include the procurement documents, requests for participation and confirmations
interest and tenders. (c) In particular, oral communications with tenderers which could have a substantial impact on the content and assessment
the tenders shall be documented to a sufficient extent and by appropriate means. (d) For the purpose
subparagraph (c), appropriate means includes written or audio records or summaries
the main elements
the communication.
data and the confidentiality
tenders and requests to participate are preserved in all communication, exchange and storage
information. (b) Contracting entities shall examine the content
tenders and requests to participate only after the time limit set for submitting them has expired.
public works contracts and design contests, require the use
specific electronic tools, such as
building information electronic modelling tools or similar. (b) Where a contracting entity requires the use
specific electronic tools in accordance with subparagraph (a), the contracting entity shall
fer alternative means
access as provided for in paragraph
paragraph
tools which are not generally available, provided that the contracting entity
fers alternative means
access. (b) A contracting entity shall be deemed to
fer suitable alternative means
access where it— (i)
fers unrestricted and full direct access free
charge by electronic means to those tools and devices from— (I) the date
publication
the notice in accordance with Schedule 6, or (II) the date on which the invitation to confirm interest is sent, (ii) ensures that tenderers having no access to the tools and devices concerned, or no possibility
obtaining them within the relevant time limits, may access the procurement procedure through the use
provisional tokens made available free
charge online, where the lack
access is not attributable to the tenderer concerned, or (iii) supports an alternative channel for electronic submission
tenders. (c) The text
the notice or the invitation to confirm interest referred to in subparagraph (b)(i) shall specify the internet address at which those tools and devices are accessible.
tenders and for the electronic receipt
requests to participate: (a) information on specifications for the electronic submission
tenders and requests to participate, including encryption and time-stamping, shall be available to interested parties; (b) a contracting entity shall, acting in accordance with paragraphs
security required for the electronic means
communication in the various stages
the specific procurement procedure, and that level shall be proportionate to the risks attached; (c) where a contracting entity concludes that the level
risk, assessed in accordance with paragraphs
formats established in Commission Decision 2011/130/EU and shall put in place necessary measures to be able to process these formats technically; (ii) where a different format
electronic signature is used, the electronic signature or the electronic document carrier shall include information on existing validation possibilities; (iii) the validation possibilities shall allow the contracting entity to validate online, free
charge and in a way that is understandable for non-native speakers, the received electronic signature as an advanced electronic signature supported by a qualified certificate; (iv) where a tender is signed with the support
a qualified certificate that is included on a trusted list, a contracting entity shall not apply additional requirements that may hinder the use
those signatures by tenderers.
a document used in the context
a procurement procedure that is signed by a competent authority
a Member State or by another issuing entity, the competent issuing authority or entity may establish the required advanced signature format in accordance with the requirements specified in Article 1
Commission Decision 2011/130/EU. (
processing the signature in the document concerned. (c) The document concerned shall contain, in the electronic signature or in the electronic document, carrier information on existing validation possibilities that allow the validation
the received electronic signature online, free
charge and in a way that is understandable for non-native speakers.
security required at each stage
a procurement procedure, and in concluding whether the level
risk is such that advanced electronic signatures are required, a contracting entity shall assess the risks having regard to both the likelihood that particular risks will materialise and the potential adverse consequences if those risks materialise.
any particular security requirements, and (b) the costs, burdens and obligations which those requirements may impose on economic operators.
electronic means is mandatory pursuant to Regulation 51
communication for all communication and information exchange: (
the means referred to in clauses (i) to (iii).
public procurement shall be made using the CPV. Conflicts
interest 41.
interest arising in the conduct
procurement procedures so as to avoid any distortion
competition and to ensure equal treatment
all economic operators.
this Regulation, “conflicts
interest” includes any situation where a relevant staff member has, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise his or her impartiality and independence in the context
the procurement procedure.
the contracting authority or
a procurement service provider acting on behalf
the contracting authority who is involved in the conduct
the procurement procedure or may influence the outcome
that procedure. Part 2 RULES APPLICABLE TO CONTRACTS Chapter 1 Procedures Conditions relating to the GPA and other international agreements 42. In so far as it is covered by Annexes 3, 4 and 5 and the General Notes to the European Union’s Appendix I to the GPA and by the other international agreements by which the European Union is bound, a contracting entity within the meaning
Regulation 5
the signatories to those agreements treatment no less favourable than the treatment accorded to the works, supplies, services and economic operators
the European Union. Choice
procedures 43.
the following means: (
a qualification system pursuant to Regulation 75, where the contract is awarded by restricted or negotiated procedure or by a competitive dialogue or an innovation partnership; (c) by means
a contract notice pursuant to Regulation 76.
the periodic indicative notice, the economic operator shall subsequently be invited to confirm their interest in writing by means
an invitation to confirm interest. Open procedure 44.
tenders is 35 days from the date on which the contract notice was sent, and (c) the tender shall be accompanied by the information for qualitative selection that is requested by the contracting entity.
calling for competition, the minimum time limit for the receipt
tenders, as specified in paragraph 1(b), may be shortened to 15 days, where— (a) the periodic indicative notice included, in addition to the information required by paragraphs 1 to 5
Schedule 4, all the information required by paragraphs 6 to 21
Schedule 4, insofar as the latter information was available at the time the periodic indicative notice was published, and (b) the periodic indicative notice was sent for publication between 35 days and 12 months before the date on which the contract notice was sent.
urgency duly substantiated by a contracting entity renders impracticable the time limit specified in paragraph 1(b), the contracting entity may fix a time limit which shall not be less than 15 days from the date on which the contract notice was sent.
tenders specified in paragraph 1(b) where it accepts that tenders may be submitted by electronic means in accordance with Regulation 39
requests to participate shall, as a general rule, be fixed at not less than 30 days from the date on which the contract notice or the invitation to confirm interest was sent and shall in any event not be less than 15 days, (c) only those economic operators invited to do so by the contracting entity following its assessment
the information provided may submit a tender, (d) a contracting entity may limit the number
suitable candidates to be invited to participate in the procedure in accordance with Regulation 85
tenders may be set by mutual agreement between the contracting entity and the selected candidates, where all selected candidates have the same time to prepare and submit their tenders, and (f) in the absence
agreement on the time limit for the receipt
tenders, the time limit shall be not less than 10 days from the date on which the invitation to tender was sent. Negotiated procedure with prior call for competition 46. In a negotiated procedure with prior call for competition— (
requests to participate shall, as a general rule, be fixed at not less than 30 days from the date on which the contract notice or, where a periodic indicative notice is used as a means
calling for competition, the invitation to confirm interest was sent and shall in any event not be less than 15 days, (c) only those economic operators invited by the contracting entity following its assessment
the information provided may participate in the negotiations, (d) contracting entities may limit the number
suitable candidates to be invited to participate in the procedure in accordance with Regulation 85
tenders may be set by mutual agreement between the contracting entity and the selected candidates, where they all have the same time to prepare and submit their tenders, and (f) in the absence
agreement on the time limit for the receipt
tenders, the time limit shall be not less than 10 days from the date on which the invitation to tender was sent. Competitive dialogue 47.
requests to participate shall, as a general rule, be fixed at not less than 30 days from the date on which the contract notice or, where a periodic indicative notice is used as a means
calling for competition, the invitation to confirm interest was sent and shall in any event not be less than 15 days, (c) only those economic operators invited by the contracting entity following the assessment
the information provided may participate in the dialogue, (d) a contracting entity may limit the number
suitable candidates to be invited to participate in the procedure in accordance with Regulation 85
the award criterion
the tender presenting the best price-quality ratio in accordance with Regulation 91
the dialogue, (
Regulations 83 to 90, a dialogue the aim
which shall be to identify and define the means best suited to satisfying their needs, and (ii) may discuss all aspects
the procurement with the chosen participants during the dialogue referred to in clause (i), (i) during the dialogue referred to in subparagraph (h), a contracting entity shall ensure equality
treatment among all participants, (
that candidate or tenderer, and (
a general waiver but shall instead be given with reference to the intended communication
specific information.
solutions to be discussed during the dialogue stage by applying the award criteria specified in the call for competition or in the descriptive document. (b) In the call for competition or the descriptive document, the contracting entity shall indicate whether it will use the option specified in subparagraph (a).
meeting its needs.
the solution or solutions presented and specified during the dialogue. (
the project. (
the contracting entity, but such clarification, specification, optimisation or additional information may not involve changes to the essential aspects
the tender or
the procurement, including the needs and requirements specified in the call for competition or in the descriptive document, where variations to those aspects, needs and requirements are likely to distort competition or have a discriminatory effect.
the award criteria specified in the call for competition or in the descriptive document, and (b) at the request
the contracting entity, negotiations with the tenderer identified as having submitted the tender presenting the best price-quality ratio in accordance with Regulation 91
the contract, where such negotiations do not— (i) have the effect
materially modifying essential aspects
the tender or
the procurement, including the needs and requirements specified in the call for competition or in the descriptive document, or (ii) risk distorting competition or causing discrimination.
the needs identified in clause (
the required solution and decide whether to request to participate in the procedure, (
requests to participate shall, as a general rule, be fixed at not less than 30 days from the date on which the contract notice is sent and shall in any event not be less than 15 days, (f) only those economic operators invited by the contracting entity following the assessment
the information provided may participate in the procedure, (g) contracting entities may limit the number
suitable candidates to be invited to participate in the procedure in accordance with Regulation 85
the award criterion
the tender presenting the best price-quality ratio in accordance with Regulation 91
the resulting supplies, services or works, where the resulting supplies, services or works correspond to the performance levels and maximum costs agreed between the contracting entity and the participants.
steps in the research and innovation process, which may include the manufacturing
the products, the provision
the services or the completion
the works.
the remuneration in appropriate instalments.
an innovation partnership with several partners, reduce the number
partners by terminating individual contracts, where the contracting entity has indicated in the procurement documents that such action may be taken and the conditions under which such action would be taken.
those tenders.
all tenderers, including by— (
any changes to the technical specifications or other procurement documents other than those setting out the minimum requirements, and (c) providing sufficient time for tenderers following those changes to modify and re-submit amended tenders, as appropriate.
that candidate or tenderer. (
a general waiver but shall instead be given with reference to the intended communication
specific information.
tenders to be negotiated by applying the award criteria specified in the contract notice, in the invitation to confirm interest or in the procurement documents. (
an innovation partnership, apply criteria concerning the capacity
the candidate in the field
research and development and
developing and implementing innovative solutions.
the requested information may submit research and innovation projects aimed at meeting the needs identified by the contracting entity that cannot be met by existing solutions.
an innovation partnership with several partners, the contracting entity shall not reveal to the other partners solutions proposed or other confidential information communicated by a partner in the framework
the partnership without that partner’s agreement. (
a general waiver but shall instead be given with reference to the intended communication
specific information.
the innovation partnership, including the duration and value
the different phases, reflects the degree
innovation
the proposed solution and the sequence
the research and innovation activities required for the development
an innovative solution not yet available on the market.
supplies, services or works purchased through an innovation partnership shall not be disproportionate to the investment required for their development. Use
the negotiated procedure without prior call for competition 49.
the contract are not substantially altered; (b) where a contract is solely for the purpose
research, experiment, study or development, and not for the purpose
securing a profit or
recovering research and development costs, and insofar as the award
such contract does not prejudice the competitive award
subsequent contracts which are, in particular, for the purpose
securing a profit or
recovering research and development costs; (c) where the works, supplies or services can be supplied only by a particular economic operator for any
the following reasons: (i) the purpose
the procurement is the creation or acquisition
a unique work
art or artistic performance; (ii) competition is absent for technical reasons; (iii) the protection
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.