Directive 2009/81/EC of the European Parliament and of the CouncilShow full title

CHAPTER VI Rules on advertising and transparency

Section 1 Publication of notices

Article 30 Notices

1. Contracting authorities/entities may make known, by means of a prior information notice published by the Commission or by themselves on their ‘buyer profile’, as described in point 2 of Annex VI:

(a) where supplies are concerned, the estimated total value of the contracts or the framework agreements by product area which they intend to award over the following 12 months.

The product area shall be established by the contracting authorities/entities by reference to the CPV nomenclature;

(b) where services are concerned, the estimated total value of the contracts or framework agreements in each of the categories of services which they intend to award over the following 12 months;

(c) where works are concerned, the essential characteristics of the contracts or framework agreements which they intend to award.

The notices referred to in the first subparagraph shall be sent to the Commission or published on the buyer profile at the earliest opportunity after the decision approving the project for which the contracting authorities/entities intend to award contracts or framework agreements.

Contracting authorities/entities that publish a prior information notice on their buyer profiles shall send the Commission, electronically, a notice of publication of the prior information notice on a buyer profile, in accordance with the format and detailed procedures for sending notices set out in point 3 of Annex VI.

Publication of the notices referred to in the first subparagraph shall be compulsory only where the contracting authorities/entities take the option of shortening the time-limits for the receipt of tenders as laid down in Article 33(3).

This paragraph shall not apply to negotiated procedures without the prior publication of a contract notice.

2. Contracting authorities/entities which wish to award a contract or a framework agreement by restricted procedure, negotiated procedure with the publication of a contract notice or a competitive dialogue shall make known their intention by means of a contract notice.

3. Contracting authorities/entities which have awarded a contract or concluded a framework agreement shall send a notice of the results of the award procedure no later than 48 days after the award of the contract or the conclusion of the framework agreement.

In the case of framework agreements concluded in accordance with Article 29, the contracting authorities/entities shall not be bound to send a notice of the results of the award procedure for each contract based on that agreement.

Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where release of such information would impede law enforcement or otherwise be contrary to the public interest, in particular defence and/or security interests, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

Article 31 Non-mandatory publication

Contracting authorities/entities may publish, in accordance with Article 32, notices concerning contracts which are not subject to the publication requirement laid down in this Directive.

Article 32 Form and manner of publication of notices

1. Notices shall include the information referred to in Annex IV and, where appropriate, any other information deemed useful by the contracting authority/entity in the format of the standard forms adopted by the Commission in accordance with the advisory procedure referred to in Article 67(2).

2. Notices sent by contracting authorities/entities to the Commission shall be sent either by electronic means in accordance with the format and procedures for transmission set out in point 3 of Annex VI, or by other means. In the event of recourse to the accelerated procedure set out in Article 33(7), notices must be sent either by fax or by electronic means, in accordance with the format and procedures for transmission set out in point 3 of Annex VI.

Notices shall be published in accordance with the technical characteristics for publication set out in point 1(a) and (b) of Annex VI.

3. Notices drawn up and transmitted by electronic means in accordance with the format and procedures for transmission set out in point 3 of Annex VI shall be published no later than five days after they are sent.

Notices which are not transmitted by electronic means in accordance with the format and procedures for transmission set out in point 3 of Annex VI shall be published no later than 12 days after they are sent, or, in the case of the accelerated procedure referred to in Article 33(7), no later than five days after they are sent.

4. Contract notices shall be published in full in an official language of the Community, as chosen by the contracting authority/entity, this original language version constituting the sole authentic text. A summary of the important elements of each notice shall be published in the other official languages.

The costs of publication of such notices by the Commission shall be borne by the Community.

5. Notices and their contents may not be published at national level or on a buyer profile before the date on which they are sent to the Commission.

Notices published at national level shall not contain information other than that contained in the notices sent to the Commission or published on a buyer profile in accordance with the first subparagraph of Article 30(1), but shall mention the date of dispatch of the notice to the Commission or its publication on a buyer profile.

Prior information notices may not be published on a buyer profile before the dispatch to the Commission of the notice of their publication in that form; they shall mention the date of that dispatch.

6. The content of notices not sent by electronic means in accordance with the format and procedures for transmission set out in point 3 of Annex VI shall be limited to approximately 650 words.

7. Contracting authorities/entities must be able to supply proof of the dates on which notices are dispatched.

8. The Commission shall give the contracting authority/entity confirmation of the publication of the information sent, mentioning the date of such publication. Such confirmation shall constitute proof of publication.

Section 2 Time-limits

Article 33 Time-limits for receipt of requests to participate and for receipt of tenders

1. When fixing the time-limits for receipt of requests to participate and tenders, contracting authorities/entities shall take particular account of the complexity of the contract and the time required for drawing up tenders, without prejudice to the minimum time-limits set by this Article.

2. In restricted procedures, negotiated procedures with the publication of a contract notice and use of a competitive dialogue, the minimum time-limit for receipt of requests to participate shall be 37 days from the date on which the contract notice is sent.

In the case of restricted procedures, the minimum time-limit for the receipt of tenders shall be 40 days from the date on which the invitation is sent.

3. When contracting authorities/entities have published a prior information notice, the minimum time-limit for the receipt of tenders under the second subparagraph of paragraph 2 may, as a general rule, be shortened to 36 days, but under no circumstances to less than 22 days.

The time-limit shall run from the date on which the invitation to tender was sent.

The shortened time-limits referred to in the first subparagraph shall be permitted, provided that the prior information notice has included all the information required for the contract notice set out in Annex IV, insofar as that information is available at the time the notice is published and that the prior information notice was sent for publication between 52 days and 12 months before the date on which the contract notice was sent.

4. Where notices are drawn up and transmitted by electronic means in accordance with the format and procedure for sending notices set out in point 3 of Annex VI, the time-limit for the receipt of the requests to participate referred to in the first subparagraph of paragraph 2 may be shortened by seven days.

5. The time-limits for receipt of tenders referred to in the second subparagraph of paragraph 2 may be reduced by five days where the contracting authority/entity offers unrestricted and full direct access by electronic means to the contract documents and any supporting documents from the date of publication of the notice in accordance with Annex VI, specifying in the text of the notice the Internet address at which this documentation is accessible.

This reduction may be added to that referred to in paragraph 4.

6. If, for whatever reasons, the contract documents and supporting documents or additional information, although requested in good time, are not supplied within the time-limits set out in Article 34, or where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the contract documents, the time-limits for the receipt of tenders shall be extended so that all economic operators concerned may be aware of all the information needed to produce tenders.

7. In the case of restricted procedures and negotiated procedures with publication of a contract notice, where urgency renders impracticable the minimum time-limits laid down in this Article, contracting authorities/entities may fix:

• a time-limit for receipt of requests to participate which may not be less than 15 days from the date on which the contract notice is dispatched, or less than 10 days if the notice was sent by electronic means, in accordance with the format and procedure for sending notices set out in point 3 of Annex VI; and

• in the case of restricted procedures, a time-limit for receipt of tenders which shall not be less than 10 days from the date of the invitation to tender,

Section 3 Information content and means of transmission

Article 34 Invitations to tender, negotiate or participate in a dialogue

1. In restricted procedures, negotiated procedures with the publication of a contract notice and competitive dialogues, the contracting authorities/entities shall simultaneously and in writing invite the selected candidates to submit their tenders or to negotiate, or, in the case of a competitive dialogue, to take part in the dialogue.

2. The invitation to the candidates shall include either:

• a copy of the contract documents or of the descriptive document and any supporting documents, or,

• a reference to accessing the documents referred to in the first indent when they are made directly available by electronic means in accordance with Article 33(5),

3. Where the contract documents, the descriptive document and/or any supporting documents are held by an entity other than the contracting authority/entity responsible for the award procedure, the invitation shall state the address from which that documentation may be requested and, if appropriate, the closing date for requesting such documents, the sum payable for obtaining them and any payment procedures. The competent department shall send that documentation to the economic operator without delay upon receipt of a request.

4. The additional information on the contract documents, the descriptive document and/or the supporting documents shall be sent by the contracting authority/entity or the competent department not less than six days before the deadline fixed for the receipt of tenders, provided that it is requested in good time. In the event of a restricted or an accelerated procedure, that period shall be four days.

5. In addition to the particulars provided for in paragraphs 2, 3 and 4, the invitation shall contain at least:

(a) a reference to the contract notice published;

(b) the deadline for receipt of tenders, the address to which the tenders must be sent and the language or languages in which the tenders must be drawn up. In the case of a competitive dialogue, this information shall not be contained in the invitation to take part in the dialogue, but in the invitation to submit a tender;

(c) in the case of a competitive dialogue, the date and the address set for the start of the consultation stage and the language or languages used;

(d) an indication of any documents to be annexed, either to support the verifiable statements provided by the candidate in accordance with Article 38, or to supplement the information provided for in that Article under the same conditions as those laid down in Articles 41 and 42;

(e) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance of the criteria used to define the economically most advantageous tender, if they are not given in the contract notice, the contract documents or the descriptive document.

Article 35 Information for candidates and tenderers

1. The contracting authorities/entities shall, at the earliest opportunity, inform candidates and tenderers of decisions reached concerning the award of a contract or the conclusion of a framework agreement, including the grounds for any decision not to award a contract or conclude a framework agreement for which there has been competitive tendering or to recommence the procedure; that information shall be given in writing upon request to the contracting authorities/entities.

2. At the request of the party concerned, the contracting authority/entity shall, subject to paragraph 3, at the earliest opportunity and at the latest within 15 days of receipt of the written request for information, inform the parties as follows:

(a) any unsuccessful candidate of the reasons for the rejection of the application;

(b) any unsuccessful tenderer of the reasons for the rejection of the tender, including, in particular, for the cases referred to in Article 18(4) and (5) the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements, and in the cases referred to in Articles 22 and 23, the reasons for its decision of non-conformity with the requirements of security of information and security of supply;

(c) any tenderer which has made an admissible tender that has been rejected, of the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer or the parties to the framework agreement.

3. Contracting authorities/entities may decide to withhold certain information on the contract award or the conclusion of the framework agreements referred to in paragraph 1 where release of such information would impede law enforcement or otherwise be contrary to the public interest, in particular defence and/or security interests, would prejudice the legitimate commercial interests of economic operators, whether public or private, or might prejudice fair competition between them.

Section 4 Communication

Article 36 Rules applying to communication

1. All communication and information exchange referred to in this Title may be made by post, fax, electronic means in accordance with paragraphs 4 and 5, telephone in the cases and circumstances referred to in paragraph 6, or a combination of those means, according to the choice of the contracting authority/entity.

2. The means of communication chosen must be generally available and thus not restrict the access of economic operators to the tendering procedure.

3. Communication and the exchange and storage of information shall be carried out in such a way as to ensure that the integrity of data and the confidentiality of requests to participate and tenders are preserved, and that the contracting authorities/entities examine the content of requests to participate and tenders only after the time-limit set for submitting them has expired.

4. The tools to be used for communicating by electronic means, as well as their technical characteristics, must be non-discriminatory, generally available and compatible with information and communication technology products in general use.

5. The following rules shall apply to devices for the electronic transmission and receipt of tenders and devices for the electronic receipt of requests to participate:

(a) information regarding the specifications necessary for the electronic submission of tenders and requests to participate, including encryption, shall be available to interested parties. Moreover, devices for the electronic receipt of tenders and requests to participate shall conform to the requirements of Annex VIII;

(b) Member States may, in compliance with Article 5 of Directive 1999/93/EC, require electronic tenders to be accompanied by an advanced electronic signature, in conformity with paragraph 1 thereof;

(c) Member States may introduce or maintain voluntary arrangements for accreditation intended to improve the level of the certification service provided for such devices;

(d) candidates shall undertake to submit, before expiry of the time-limit laid down for submission of tenders or requests to participate, the documents, certificates and declarations referred to in Articles 39 to 44 and Article 46, if they do not exist in electronic format.

6. The following rules shall apply to the transmission of requests to participate:

(a) requests to participate in procedures for the award of contracts may be made in writing or by telephone;

(b) where requests to participate are made by telephone, a written confirmation must be sent before expiry of the time-limit set for their receipt;

(c) contracting authorities/entities may require that requests for participation made by fax must be confirmed by post or electronic means where this is necessary for the purposes of legal proof. Any such requirement, together with the time-limit by which it must be met, must be stated by the contracting authority/entity in the contract notice.

Section 5 Reports

Article 37 Content of reports

1. For every contract and framework agreement, the contracting authorities/entities shall draw up a written report to confirm that the selection procedure was undertaken in a transparent and non-discriminatory manner, which shall include at least the following:

(a) the name and address of the contracting authority/entity and the subject and value of the contract or framework agreement;

(b) the award procedure chosen;

(c) in the case of a competitive dialogue, the circumstances justifying the use of this procedure;

(d) in the case of a negotiated procedure without prior publication of a contract notice, the circumstances referred to in Article 28 which justify the use of this procedure; if appropriate, justification for exceeding the time-limits laid down in the second subparagraph of Article 28(3)(a) and the third subparagraph of Article 28(4)(b) and for exceeding the 50 % limit laid down in the second subparagraph of Article 28(4)(a);

(e) if appropriate, the reasons for the framework agreement lasting more than seven years;

(f) the name of the candidates chosen and the reason for this choice;

(g) the name of the candidates excluded and the reasons for their rejection;

(h) the reasons for the rejection of tenders;

(i) the name of the successful tenderer and the reasons why its tender was selected, and, if known, the share of the contract or framework agreement which the successful tenderer intends, or will be required, to subcontract to third parties;

(j) if necessary, the reasons why the contracting authority/entity decided not to award a contract or framework agreement.

2. Contracting authorities/entities shall take appropriate steps to document the progress of award procedures conducted by electronic means.

3. The report, or the main features of it, shall be communicated to the Commission, if it so requests.