Commission Decision (EU, Euratom) 2019/1963Show full title

Article 3 U.K. Basic principles

1. Classified contracts shall be awarded only to economic operators registered in a Member State, or to economic operators registered in a third country or established by an international organisation where that third country or international organisation has concluded a security of information agreement with the European Union or entered into an administrative arrangement with the Commission(1).

2. Before launching an invitation to tender for a classified contract, the contracting authority shall determine the security classification of any information that could be provided to tenderers. The contracting authority shall also determine the maximum security classification of any information generated in the performance of the contract or programme or project, or at least the anticipated volume and type of information to be produced or handled, and the need for a classified communication and information system (CIS).

3. The contracting authority shall ensure that contract notices for classified contracts provide information about the special security obligations related to classified information. Annex I contains a sample template for the contract notice information.

4. The contracting authority shall ensure that information classified RESTREINT UE/EU RESTRICTED, CONFIDENTIEL UE/EU CONFIDENTIAL and SECRET UE/EU SECRET is disclosed to tenderers only after they have signed a non-disclosure agreement, obliging tenderers to handle and protect EUCI in accordance with Decision (EU, Euratom) 2015/444 and its implementing rules.

5. All contractors which are required to handle or store information classified CONFIDENTIEL UE/EU CONFIDENTIAL or SECRET UE/EU SECRET within their facilities, either during the performance of the classified contract itself or at the pre-contractual stage, shall hold an FSC at the required level. The following identifies the three scenarios that may arise during the tendering stage for a classified contract involving EUCI at CONFIDENTIEL UE/EU CONFIDENTIAL or SECRET UE/EU SECRET level:

(a) no access to EUCI at CONFIDENTIEL UE/EU CONFIDENTIAL or SECRET UE/EU SECRET level during the tendering stage:

Where the contract notice or the invitation to tender concerns a contract that will involve EUCI at CONFIDENTIEL UE/EU CONFIDENTIAL or SECRET UE/EU SECRET level, but does not require the tenderer to handle such information at the tender stage, a tenderer which does not hold an FSC at the required level shall not be excluded from the bidding process on the grounds that they do not hold an FSC.

(b) access to EUCI at CONFIDENTIEL UE/EU CONFIDENTIAL or SECRET UE/EU SECRET level on the premises of the contracting authority during the tendering stage:

Access shall be granted to tenderer personnel who hold a PSC at the required level and who have a need-to-know. Before such access is granted, the contracting authority shall verify, through the Commission security authority, with the respective NSA/DSA whether an FSC is also required under national laws and regulations at this stage.

(c) handling or storage of EUCI at CONFIDENTIEL UE/EU CONFIDENTIAL or SECRET UE/EU SECRET level on the premises of the tenderer during the tendering stage:

Where the contract notice or the invitation to tender requires tenderers to handle or store EUCI on their premises, the tenderer shall hold an FSC at the required level. In such circumstances the contracting authority shall obtain, through the Commission security authority, an assurance from the relevant NSA/DSA that the tenderer has been granted an appropriate FSC. Access shall be granted to tenderer personnel who hold a PSC at the required level and who have a need-to-know.

6. In principle, an FSC shall not be required for access to RESTREINT UE/EU RESTRICTED information, either at the tender stage or for the performance of the contract. Where Member States require an FSC for contracts or subcontracts at RESTREINT UE/EU RESTRICTED level under their national laws and regulations, as listed in Annex IV, those national requirements shall not place any additional obligations on other Member States or exclude tenderers, contractors or subcontractors from Member States that have no such FSC requirements for access to RESTREINT UE/EU RESTRICTED information from related contracts/subcontracts or a competition for such. These contracts shall be performed in Member States in accordance with their national laws and regulations.

7. Where an FSC is required for the performance of a classified contract, the contracting authority shall submit, through the Commission security authority, a request to the contractor's NSA/DSA using a facility security clearance information sheet (FSCIS). Annex III, Appendix D, contains an example of an FSCIS(2). The classified contract shall not be awarded until the contractor's NSA/DSA has confirmed the tenderer's FSC. Response to an FSCIS is provided, to the extent possible, within ten working days of the date of the request.

(1)

The list of agreements concluded by the EU and of administrative arrangements entered into by the European Commission, under which EU classified information may be exchanged with third countries and international organisations, can be found on the Commission website.

(2)

Other forms used may differ from the example provided in these implementing rules in their design.