| | Preamble to 1989/440COUNCIL DIRECTIVE
of 18 July 1989
amending Directive 71/305/EEC concerning coordination of procedures for the award of public works contracts (89/440/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 57 (2), 66 and 100a thereof,
Having regard to the proposal from the Commission,
In cooperation with the European Parliament (1),
Having regard to the opinion of the Economic and Social Committee (2),
Whereas measures aimed at progressively establishing the internal market during the period up to 31 December 1992 need to be taken; whereas the internal market is an
area without internal frontiers in which the free movement of goods, persons, services and capital is ensured;
Having regard to the conclusions drawn by successive meetings of the European Council on the need to establish such a market,
Having regard to the White Paper on completing the internal market and in particular to the timetable and programme laid down therein for the opening up of the market for
public works contracts,
Having regard to the Commission's communication to the Council of 19 June 1986 on public procurement in the Community,
Whereas public works contracts are governed by Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works
contracts (3), as last amended by the Act of Accession of Spain and Portugal, and Council Directive 72/277/EEC of 26 July 1972 concerning the details of publication of
notices of public works contracts and concessions in the Official Journal of the European Communities (4), by the declaration of 26 July 1971 of the representatives of the
Governments of the Member States, meeting within the Council, concerning procedures to be followed in the field of public works contracts (5), and by Council Decision
71/306/EEC of 26 July 1971 setting up an Advisory Committee for Public Contracts (6), as amended by Decision 77/63/EEC (7);
Whereas, in order to guarantee real freedom of establishment and freedom to provide services in the market for public works contracts, it is necessary to improve and extend
the safeguards in the directives that are designed to introduce transparency into the procedures and practices for the award of such contracts, in order to be able to monitor
compliance with the prohibition of restrictions more closely and at the same time to reduce disparities in the competitive conditions faced by nationals of different Member
States;
Whereas this Directive does not prevent the application of, in particular, Article 36 of the Treaty;
Whereas it is to define more precisely what is meant by public works contracts in order to take account, in particular, of
new forms of such contracts, and to lay down criteria for identifying all the entities which are subject to Directive 71/305/EEC;
Whereas the list of bodies and categories of bodies in Annex I should be as exhaustive as possible;
Whereas it is also necessary to extend the provisions of Directive 71/305/EEC to works that are subsidized by the State but do not come within the terms of Article 1;
Whereas, in view of the increasing importance of concession contracts in the public works area and of their specific nature, the rules concerning advertising should be
brought within Directive 71/305/EEC;
Whereas it is necessary to clarify the scope of the exemptions for certain sectors in order that divergences in the application of Directive 71/305/EEC due to divergent
interpretations of the exemptions in different Member States do not increase;
Whereas the threshold value from which contracts are subject to Directive 71/305/EEC was set in 1971 at ECU 1 million and whereas, in view of the rise in the cost of
construction work and the interest of small and medium-sized firms in bidding for medium-sized contracts, this threshold should now be set at ECU 5 million;
Whereas, to eliminate practices that restrict competition in general and participation in contracts by other Member States' nationals in particular, it is necessary to improve
the access of contractors to procedures for the award of contracts;
Whereas it is desirable to introduce provision for a negotiated procedure such as already exists in the practice of some Member States, in order to curtail the use of the
exceptional procedure provided for in Article 9 of Directive 71/305/EEC;
Whereas the negotiated procedure should be considered to be exceptional and therefore only applicable in certain limited cases;
Whereas contracting authorities should be required to inform rejected candidates and tenderers of the reasons for rejection in their application or bid and to draw up a report
on the conduct of the proceedings leading up to each award;
Whereas it is necessary to adapt the common rules in the technical field to the new Community policy on standards;
Whereas, to create the necessary conditions for efficient Community-wide competition for contracts so that firms from other Member States can bid on comparable terms to
domestic firms and a greater level of interest and
participation in contracts is aroused from a larger number of contractors, all the operations and procedures involved in the
competitive tendering for contracts should be made more transparent; whereas contracting authorities should also be required, to announce forthcoming public works
projects throughout the Community, and to publish, in the same way, all relevant details of how contracts have been awarded;
Whereas, in order to improve access to contracts and allow a larger number of contractors to complete and to prepare their bids in reasonable time, especially for large
projects which are generally of considerable technical and organizational complexity, the time limits for the receipt of applications to bid and tenders should be lengthened;
Whereas it is in the general interest to encourage technical advances in the construction and public works sector so that transfer of technology and know-how from one
Member State to another benefits not only the general public but also the construction industry;
Whereas work is under way in the Community on methods of framing specifications in terms of performance requirements instead of as detailed technical prescriptions and
contractors in the Community should immediately be given the opportunity to submit variants under certain conditions;
Whereas, to ensure transparency as to how contractors propose to carry out a contract, it must be made possible for contracting authorities to be informed of any part of the
contract the tenderer intends to subcontract to third parties;
Whereas it could prove useful to provide for greater transparency as to the requirements regarding the protection and conditions of employment applicable in the Member
State in which the works are to be carried out;
Whereas it is appropriate that national provisions for regional development requirements to be taken into consideration in the award of public works contracts should be
made to conform to the objectives of the Community and be in keeping with the principles of the Treaty;
Whereas adequate statistical provision should be included in Directive 71/305/EEC in order to improve, and to put on a more systematic basis, information on the way in
which contracting authorities award their contracts;
Whereas the Kingdom of Spain has recently adopted legislation to implement Directive 71/305/EEC; whereas, given the fact that the introduction of other amendments at
this stage would adversely effect the adaptation of the private sector in that Member State, it is appropriate to grant the Kingdom of Spain an additional period to implement
this Directive;
Whereas the Portuguese Republic is in need of a transitional period for similar reasons;
Whereas the Hellenic Republic will be adapting its legislation to Directive 71/305/EEC and whereas incorporation, at this stage, of other Community rules would have an
adverse effect upon the public works contracts sector and in particular upon certain economically important factors such as the stability, transparency and maintenance, in
the medium term, of commercial conditions;
Whereas in accordance with the conclusions of the said meetings of the European Council, of the White Paper and of the said Commission communication to the Council,
Directive 77/305/EEC should be amended and Directive 72/277/EEC repealed,
HAS ADOPTED THIS DIRECTIVE:
(1) OJ No C 167, 27. 6. 1988, p. 76 and OJ No C 69, 20. 3. 1989, p. 69.
(2) OJ No C 319, 30. 11. 1987, p. 55.(3) OJ No L 185, 16. 8. 1971, p. 5.
(4) OJ No L 176, 3. 8. 1972, p. 12.
(5) OJ No C 82, 16. 8. 1971, p. 13.
(6) OJ No L 185, 16. 8. 1971, p. 15.
(7) OJ No L 13, 15. 1. 1977, p. 15. |
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