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Procurement law in the field of defence and security

Original Language Title: Aanbestedingswet op defensie- en veiligheidsgebied

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Law of 28 January 2013 on the implementation of Directive No 2009 /81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supplies and services by contracting authorities in the fields of defence and security, and amending Directives 2004 /17/EC and 2004 /18/EC (Procurement law in the fields of defence and security)

We Beatrix, at the grace of God, Queen of the Netherlands, Princess of Orange-Nassau, etc. etc. etc.

All of them, who will see or hear these, saluut! do know:

So We have taken into consideration that it is necessary to provide for statutory rules to give effect to Directive No 2009 /81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supplies and services by contracting authorities in the fields of defence and security, and to Change of Directives 2004 /17/EC and 2004 /18/EC (PbEU L 216);

It is true that we, the Department of Consultative Affairs of the Council of State, and with the mean consultations of the States-General, have found and understand the same as We approve and understand:


Part 1. General provisions

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Chapter 1.1. Conceptual provisions

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Article 1.1

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For the purposes of this Act and the provisions based thereon, the following definitions shall apply:

  • Contracting authority: the State, a province, a municipality, a watership or a public-law institution or a grouping of such public authorities or bodies governed by public law;

  • procurement documents: all documents in a procurement procedure brought into the proceedings by the contracting authority or by the special sector undertaking;

  • Central purchasing body a contracting authority or a public authority of the European Union which acquires special-sector undertakings for contracting authorities or services or in relation to contracting authorities or entities Special-sector enterprises work, supply or service contracts;

  • Contractor: any person who offers the execution of works on the market;

  • Consumer Authority and Market Authority: the Consumer and Market Authority, mentioned in Article 2, 1st paragraph, of the Incomposition Act Authority of Consumer and Market ;

  • CPV: the Common Vocabulary (Public Procurement Vocabulary), established by Regulation (EC) 2195/2002 from the European Parliament and the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV) (PbEG L 340);

  • crisis situation: an armed conflict, a war or any other situation resulting in a harmful event that clearly surpasses the extent of a harmful event of everyday life and which is a serious threat or hindrane constitutes for the life or health of humans, or has substantial implications for material goods of high value, or requires measures to meet the population of first life needs, or a situation where such a situation is Adverse event is expected to occur in the very short term;

  • service provider: any one offering services on the market;

  • Own Declaration: a statement as referred to in Article 2.74, first paragraph ;

  • Electronic procurement system: the electronic procurement system, as intended Article 4.13 of the Procurement Act 2012 ;

  • electronic auction: a repetitive electronic process for the presentation of new, reduced prices or of new values for certain elements of tenders, which takes place after the initial full review of the tenders and that class Allows the basis of electronic processing;

  • Conduct a declaration of conduct: a statement as referred to in Article 4.1 of the Procurement Act 2012 ;

  • Candidate: an economic operator who has requested, when the restricted procedure is applied, the competitive dialogue procedure or the negotiated procedure, to be admitted to the procedure;

  • Classified information: data or material, regardless of the form, nature, or manner of transmission of it, to which a certain level of safety classification or security level has been assigned and which is in the interest of national security and under the law of law rules, of binding directions given due to the Empire or to administrative decisions, must be protected against any inalide, destruction, removal, disclosure, loss or access to that data or material by any unauthorized, or in any other form of compromise;

  • Sensitive material: Material intended for security purposes that relates to classified information, which renders classified information necessary, or which contains self-classified information;

  • Sensitive work: a work intended for security purposes that relates to classified information, which renders classified information necessary, or which contains self-classified information;

  • Sensitive service: a service intended for security purposes which relates to classified information, which renders classified information necessary, or which contains classified information;

  • award decision: the choice of the contracting authority or the special sector undertaking for the economic operator with whom it intends to conclude the agreement to which the procedure relates, including the choice not to conclude an agreement;

  • tenderer: an economic operator who has submitted an invitation to tender;

  • lifecycle: the successive phases of a product, consisting of research and development, industrial development, production, repair, modernisation, adaptation, maintenance, logistics, training, testing, non-use and disposal;

  • vendor: any one offering products on the market;

  • State: Member State of the European Union or any other State party to the Agreement on the European Economic Area;

  • Notification of award decision: a written notification that complies with the Article 2.121 requirements;

  • Military equipment: Material specifically designed or modified for military purposes and intended for use as a weapon, ammunition or war material;

  • restricted procedure: procedure whereby all economic operators may make a request to participate, but only the economic operators selected by the contracting authority or by the special-sector undertaking may submit a tender;

  • negotiated procedure: procedure whereby the contracting authority or the special sector undertaking consultations with economic operators selected by it and by negotiation with one or more of them determines the terms and conditions of the contract;

  • entrepreneur: a contractor, supplier or service provider;

  • research and development: all activities involving fundamental research, applied research and experimental development, where experimental development may include the creation of technological demonstration models, containing means to improve performance. showing a new concept or technology in a relevant or representative environment;

  • Our Minister: Our Minister for Economic Affairs;

  • command: a works contract, a supply contract, a service contract, or a framework agreement;

  • command for services: a written agreement for consideration which has been concluded between one or more service providers and one or more contracting entities or special sector undertakings and which:

    • a. only relates to the provision of Annex I or II of this Regulation; Directive No 2009 /81/EC designated services,

    • b. relates to the supply of products and the provision of services as referred to in subparagraph (a), where the value of such services exceeds the value of the products to be supplied; or

    • c. refers to the provision of Annex I or II of this Regulation. Directive No 2009 /81/EC designated services and which are only indirectly related to operations designated under Section 45 of the CPV;

  • Supply contract: a written agreement for consideration which has been concluded between one or more suppliers and one or more contracting entities or special sector undertakings and which relates to:

    • a. the purchase, lease, hire or hire purchase, with or without purchase option, of products or

    • b. the supply of products and which only includes the provision of works for the installation and installation of that supply;

  • command for work: a written agreement for consideration concluded between one or more contractors and one or more contracting entities or specialist member companies and which relates to:

    • a. the execution or design and execution of works under works designated under Section 45 of the CPV;

    • b. the execution or design and execution of a work; or

    • (c) to have the means of carrying out any means of work which meets the requirements laid down by the contracting authority or by the special sector undertaking;

  • subcontracting order: a written contract concluded between a tenderer to which a contract has been awarded and one or more economic operators for the execution of that contract and which relates to works, supplies of goods or services, products or the provision of services;

  • procedure for the competitive dialogue: procedure whereby all economic operators may request participation and where the contracting authority or the special-sector undertaking conducts a dialogue with the operators admitted to the procedure, in order to find one or more solutions which may be adopted by the contracting authority or by the specific sector undertaking. answer the needs of the contracting authority or the special sector undertaking and on the basis of which the selected economic operators will be invited to subscribe;

  • public law institution: an institution specifically designed to meet requirements of general interest, other than industrial or commercial character, which has legal personality and of which:

    • (a) the main financing of the activities carried out by the State, a province, a municipality, a watership or another body governed by public law;

    • (b) the management is subject to supervision by the State, a province, a municipality, a watership or any other body governed by public law; or

    • (c) more than half of the members of the administrative board, management or supervisory body are designated by the State, a county, a municipality, a watership or other public body;

  • framework agreement: a written agreement between one or more contracting authorities or special sector undertakings and one or more economic operators with the aim of establishing contracts to be awarded for a specified period;

  • Directive No 2009 /81/EC: Directive 2009 /81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supplies and services by contracting authorities in the fields of defence and security, and to Change of Directives 2004 /17/EC and 2004 /18/EC (PbEU L 216);

  • in writing: reproduced and subsequently communicated, in all words or figures, which can be read, reproduced and subsequently communicated, including by electronic means, information transferred or stored;

  • Special-sector holding: a special-sector holding as intended Article 1.1 of Procurement Act 2012 ;

  • Work: the product of the structure of construction or civil engineering works intended to fulfil an economic or technical function in such a way as to be of such a nature.


Article 1.2

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  • 1 An amendment to Annex I or Annex II of Directive No 2009 /81/EC shall apply for the purposes of the definition of service contract provided for in this Act with effect from the day on which the relevant decision of the European Commission enters into force.

  • 2 Our Minister makes notice in the Official Gazette of a decision referred to in the first paragraph.

Chapter 1.2. Equality, non-discrimination, transparency and proportionality

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Article 1.3

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  • 1 The provisions of this Chapter shall apply to contracting authorities and special sector undertakings in the award of a contract based on, or pursuant to, the Chapter 2.1 is covered by the scope and scope of this Act.

  • 2 The provisions of this Chapter shall apply mutatis mutandis to tenderers acting in subcontracting in a third place with a clear cross-border interest in the execution of an agreement resulting from a the award of a contract as referred to in the first paragraph shall be concluded with them.


Article 1.4

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A contracting authority or a special sector undertaking shall treat economic operators in an equal and non-discriminatory manner.


Article 1.5

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  • 1 A contracting authority or a special sector undertaking shall act transparor.

  • 2 When applying the first paragraph, the contracting authority or the special sector undertaking shall, in any event, ensure an appropriate degree of publicity of the notice of intended purpose of award of a contract.

  • 3 The second paragraph shall not apply if the provisions of the second paragraph are not applicable Part 2 of this Law shall not be obliged to publish an announcement of the intention to award a contract.

  • 4 Without prejudice to the corresponding application of the preceding paragraphs to a subcontract by subcontracting, the second paragraph shall not apply to subcontracting where, by analogy, application of the Article 2.136 No obligation shall be required to publish an announcement of the intention to award the contract.


Article 1.6

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A procuring entity or a special sector undertaking shall, when preparing and establish a contract, make only the requirements, conditions and criteria applicable to tenderers and tenders in reasonable proportion to the award of a contract. the object of the contract.

Chapter 1.3. Third countries

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Article 1.7

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A contracting authority or a special sector undertaking may exclude economic operators established within the European Union from participating in a procurement procedure, unless this is not permitted by a Treaty applicable to the Netherlands. or decide.


Part 2. Commands

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Chapter 2.1. Scope

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Section 2.1.1. Scope and range

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§ 2.1.1.1. Scope

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Article 2.1

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  • 1 The provisions of, or pursuant to, this Act shall apply to the award of contracts for:

    • a. The supply of military equipment, including the provision of components, components or assembly parts thereof;

    • b. The supply of sensitive material, including the provision of components, components or assembly parts thereof;

    • c. works, supplies and services directly related to the material referred to in subparagraph (a) or (b) for all stages of its life cycle;

    • d. Work and services specifically for military purposes, or sensitive works or sensitive services.

  • 2 The first paragraph shall be without prejudice to the applicability of Articles 36, 51, 52, 62 and 346 of the Treaty on the Functioning of the European Union.


Article 2.2

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  • 1 The provisions of or pursuant to this Act apply to the award of a contract which for a part within the scope of this Act and for a part within that of the Tender Act 2012 if the award is justified as a whole for objective reasons.

  • 2 The provisions of or under this Act do not apply to the award of a contract which falls within the scope of this Act and for a part both outside and outside that of the Tender Act 2012 , if the award is justified as a whole for objective reasons.

  • 3 A procuring entity or a special sector undertaking shall not place a contract as a whole for the purpose of applying this Act or the Tender Act 2012 to be excluded.


§ 2.1.1.2. Application Scope

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Article 2.3

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  • 1 The provisions of, or pursuant to, this Act shall apply to contracts for:

    • (a) supplies and services the estimated value of which is equal to or greater than the value of Article 8, part a, of Directive No 2009 /81/EC said amount, exclusive of sales tax;

    • b. works the estimated value of which is equal to or greater than the value of the value of the value of the value of the value of the value of the product Directive No 2009 /81/EC amount, exclusive of sales tax.


Article 2.4

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  • 1 An amendment to the amounts referred to in Article 8 of Directive No 2009 /81/EC is for the application of Article 2.3 shall apply from the day on which the relevant decision of the European Commission enters into force.

  • 2 Our Minister makes notice in the Official Gazette of a decision referred to in the first paragraph.


Article 2.5

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  • 1 A contracting authority or a special sector undertaking may award a contract through a central purchasing body, provided that the central purchasing body fails to comply with or, if the central purchasing authority does not, in respect of that contract or, if the central purchasing authority does not contracting authority, having regard to the acts and efficient remedies provided by or under this law, is available to the award of contracts by the central purchasing body, which are comparable to those set out in the Chapter 3.2 .

  • 2 In the case referred to in the first paragraph, the contracting authority or the special sector undertaking shall have fulfilled the obligations imposed on it under this law.


Section 2.1.2. Estimate of value

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§ 2.1.2.1. General provisions

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Article 2.6

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The contracting authority or the special sector undertaking shall estimate the value of the proposed contract in accordance with the provisions of the Articles 2.7 to 2.14 .


Article 2.7

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  • 1 The contracting authority or the special-sector undertaking does not discontinue the proposed contract with a view to removing itself from the application of this Law.

  • 2 The contracting authority or the special sector undertaking shall not choose the method of calculation of the estimated value for the purpose of avoiding the application of this law.


§ 2.1.2.2. The estimate of contracts

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Article 2.8

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  • 1 The value of a contract is estimated at the value at the time of dispatch of the notice of that order or, if an announcement is not required, to the value at the time the procedure for the award by the contract was issued. contracting authority or the special-sector undertaking is initiated.

  • 2 The contracting authority or the special sector undertaking shall base the calculation of the estimated value of a contract on the total amount, excluding sales tax, including options and renewals of the contract.

  • 3 The contracting authority or the special-sector undertaking shall calculate the value of a framework agreement from the estimated value of all contracts envisaged for the duration of the framework agreement.


Article 2.9

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When estimating the value of a works contract, the contracting authority or the special sector undertaking shall take into account the value of the works and the estimated total value of the supplies necessary for the execution of such works, and services made available to the contractor by the contracting authority or by the special sector undertaking.


Article 2.10

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The contracting authority or the special sector undertaking shall estimate the value of a service contract:

  • a. in the case of an insurance service, on the basis of the premium to be paid and other forms of remuneration;

  • b. design: on the basis of the fees, commissions and other forms of remuneration to be paid;

  • c. where no total price is stated and has a fixed duration equal to, or less than, 48 months: on the basis of the total estimated value for the whole duration;

  • d. in which no total price is stated and is for an indefinite duration or has a duration longer than 48 months: the monthly amount to be paid multiplied by 48.


Article 2.11

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  • 1 If an intended work or a proposed purchase of services may lead to contracts placed simultaneously in separate lots, the contracting authority or the special sector undertaking shall take the estimated total value of the contract. parcels as a basis.

  • (2) If the aggregate value of the lots referred to in paragraph 1 is equal to or greater than the value of the aggregate Article 2.3 of the amount referred to, shall be subject to or pursuant to this Act to the placement of each lot.

  • 3 The second paragraph shall not apply to:

    • (a) works contracts the estimated value of which does not exceed € 1 000 000, exclusive of turnover taxes,

    • (b) contracts for services whose estimated value does not exceed € 80 000, exclusive of turnover taxes,

    provided that the total estimated value of the lots referred to in (a) or (b) is not more than 20% of the total value of all the lots.


Article 2.12

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  • (1) Where a proposed acquisition of homogeneous supplies may lead to contracts awarded simultaneously in separate lots, the contracting authority or the special sector undertaking shall take the estimated total value of such lots as base for the estimate.

  • (2) If the aggregate value of the lots referred to in paragraph 1 is equal to or greater than the value of the aggregate Article 2.3 of the amount referred to, shall be subject to or pursuant to this Act for the placing of each lot.

  • 3 The second paragraph shall not apply to lots whose estimated value does not exceed € 80 000, exclusive of turnover taxes, provided that the total estimated value of those lots does not exceed 20% of the total value of all the lots parcels.


Article 2.13

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The contracting authority or the special sector undertaking shall estimate the value of supply contracts relating to the leasing, rental or hire-purchase of products on the following basis:

  • a. In the case of supply contracts with a fixed term duration, the total estimated value for the whole duration if it is not more than 12 months, or the total value if the duration exceeds 12 months, including the total value of the contract estimated residual value;

  • b. In the case of supply contracts for an indefinite period or for which the duration of the contract cannot be determined, the monthly amount to be paid multiplied by 48.


Article 2.14

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The contracting authority or the special sector undertaking shall estimate the value of supply or service contracts carried out by a certain regularity, or which the contracting authority or the special-sector undertaking provides for a given period of time Intends to renew, on the following basis:

  • a. The total fair value of any similar supply or service contracts awarded during the preceding financial year or 12 months, adjusted if possible, for expected changes to the quantity or value for the 12 months following the first contract, or

  • (b) the estimated total value of the corresponding successive supply or service contracts for the 12 months following the first delivery or provision of services or the financial year of the first provision or provision of services; if that financial year extends over more than 12 months.


Section 2.1.3. Subcontract Commands

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Article 2.15

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The contracting authority or the special sector undertaking shall not apply the provisions of this Section to evade the application of this law.


Article 2.16

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By way of derogation from the Articles 2.1 to 2.3 The provisions of this Act shall not apply to contracts:

  • a. the performance of which leads to the obligation for the procuring entity or the special sector undertaking to provide information in respect of which disclosure would be contrary to an essential security interest;

  • b. Those relating to activities of intelligence services;

  • c. which are placed under a cooperation programme between the Kingdom of the Netherlands and one or more other Member States based on research and development with a view to the development of a new product, applicable, including the subsequent phases of the entire life cycle of that product or any part thereof;

  • d. which are placed in a third country, where armed forces have been deployed outside the territory of the European Union and the operational conditions require contracts to be awarded to economic operators established in the area of operation;

  • (e) for which other procedural rules apply and which are placed under an international agreement or agreement concluded between the Kingdom of the Netherlands and one or more third countries;

  • f. which are subject to other procedural rules and which are placed as a result of an international agreement concluded in connection with the alloy of armed forces or an agreement on undertakings in a Member State or in a third country;

  • g. for which there are other procedural rules of an international organisation which, on that basis, makes purchases for its own purposes or for which these other procedural rules are applicable to the proceedings of the Kingdom of the Netherlands;

  • h. which is awarded by a Dutch public authority to a government agency of another state and which fall within the scope of Article 2.1 parts a, b, or c , in so far as these contracts relate to works or services, or d.


Article 2.17

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By way of derogation from the Articles 2.1 to 2.3 The provisions of this Act shall not apply to contracts for services:

  • a. concerning the acquisition or rental, regardless of its financial modalities, of land, existing buildings or other immovable property, or concerning the rights thereto;

  • b. arbitration and conciliation;

  • c. of a financial nature, except insurance services;

  • d. employment contracts;

  • e. concerning research and development, with the exception of those contracts the results of which are intended in their entirety for the contracting authority or the special sector undertaking for its use in the performance of its own activities, provided that the service is fully paid by the contracting authority or by the special sector undertaking.

Chapter 2.2. Procedures for the award of contracts

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Section 2.2.1. Non-public procedure and negotiated procedure with announcement

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Article 2.18

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The contracting authority or the special sector undertaking shall apply the restricted procedure or the negotiated procedure for the award of a contract.


Article 2.19

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The contracting authority or the special sector undertaking to apply the restricted procedure shall continue to follow the following steps. The contracting authority or the special sector undertaking shall:

  • a. publish an announcement of the contract;

  • (b) examine whether a candidate is covered by an exclusion ground established by the contracting authority or by the special sector undertaking;

  • (c) whether a non-excluded candidate meets the eligibility requirements of the contracting authority or the special sector undertaking;

  • (d) assess the candidates not excluded or rejected on the basis of the selection criteria set by the contracting authority or by the specialsector undertaking;

  • (e) invite the selected candidates to tender;

  • (f) review the compliance of tenders with the technical specifications, requirements and standards set by the contracting authority or by the special sector undertaking;

  • g. assesses the valid tenders in accordance with the award criterion referred to by the contracting authority or by the specialsector undertaking, as specified in Article 2.105 and the further criteria specified in Article 2.106 ;

  • h. makes a report of the contract;

  • i. shall communicate the award decision;

  • j. may close the contract;

  • k. makes the announcement of the awarded contract known.


Article 2.20

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The contracting authority or the special sector undertaking to apply the negotiated contract procedure shall complete the following steps. The contracting authority or the special sector undertaking shall:

  • a. publish an announcement of the contract;

  • (b) examine whether a candidate is covered by an exclusion ground established by the contracting authority or by the special sector undertaking;

  • (c) whether a non-excluded candidate meets the eligibility requirements of the contracting authority or the special sector undertaking;

  • (d) assess the candidates not excluded or rejected on the basis of the selection criteria set by the contracting authority or by the specialsector undertaking;

  • (e) invite the selected candidates to tender;

  • (f) review the compliance of tenders with the technical specifications, requirements and standards set by the contracting authority or by the special sector undertaking;

  • g. assesses the valid tenders in accordance with the award criterion referred to by the contracting authority or by the specialsector undertaking, as specified in Article 2.105 , and the detailed criteria, Article 2.106 ;

  • h. negotiates with the tenderers;

  • i. makes a report of the contract;

  • j. shall communicate the award decision;

  • k. may conclude the contract;

  • l. makes the announcement of the awarded contract known.


Section 2.2.2. Exceptions to the application of the restricted procedure and negotiated procedure with a notice

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§ 2.2.2.1. Procedure for the competitive dialogue

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Article 2.21

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  • 1 The contracting authority or the special-sector undertaking may, if it is not considered possible by the application of the restricted procedure or the negotiated procedure with a particular complex contract, be awarded the contract by the contracting authority or by the apply the competitive dialogue procedure.

  • 2 A contract is particularly complex where the contracting authority or the special-sector undertaking is not objectively able to:

    • define the technical means to meet the needs or the objectives, or

    • b. specify the legal or financial terms of a project.


Article 2.22

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The contracting authority or the special sector undertaking to apply the competitive dialogue procedure shall follow the following steps. The contracting authority or the special sector undertaking shall:

  • a. publish an announcement of the contract;

  • (b) examine whether a candidate is covered by an exclusion ground established by the contracting authority or by the special sector undertaking;

  • (c) whether a non-excluded candidate meets the eligibility requirements of the contracting authority or the special sector undertaking;

  • (d) assess the candidates not excluded or rejected on the basis of the selection criteria set by the contracting authority or by the specialsector undertaking;

  • (e) invite the selected candidates to participate in the dialogue;

  • f. maintains a dialogue with the selected candidates for the purpose of determining the means suitable to meet the needs of the contracting authority or the special sector as well as possible, and makes a choice of the solution or solutions to its needs;

  • g. calls on the participants to submit their tender;

  • h. review the compliance of tenders with the solution or solutions submitted during the dialogue;

  • i. assesses the valid tenders according to the award criterion the economic most advantageous tender and the detailed criteria specified by the contracting authority or the special sector undertaking, as set out in the Article 2:106 ;

  • j. makes a record of the authorisation;

  • k. shall communicate the award decision;

  • l. may conclude the contract;

  • m. makes the announcement of the awarded contract known.


§ 2.2.2.2. Negotiated procedure without notice

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Article 2.23

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  • 1 The contracting authority or the special sector undertaking may apply the negotiated procedure without notice if:

    • (a) when the restricted procedure is applied, the negotiated procedure with a notice or a competitive dialogue procedure has not been submitted, or no appropriate tenders or no requests to participate, the original procedure; the conditions of the contract are not substantially altered and the European Commission, at its request, is presented with a report of the original procedure,

    • b. the contract may be entrusted to a particular economic operator for technical reasons or for reasons of protection of exclusive rights;

    • (c) in so far as is strictly necessary in cases where the time limits are set out in the Article 2.57 , of the restricted procedure or negotiated procedure with notice of notice, cannot be complied with due to events which could not be carried out by the contracting authority or by the special sector undertaking provide the contracting authority or the special-sector undertaking, and not,

    • d. in the case of time limits specified in: Article 2.57 , of the restricted procedure or the negotiated procedure with a notice of urgency, which cannot be complied with, or

    • e. when the restricted procedure is applied, the negotiated procedure with a notice or a competitive dialogue procedure, tenders are submitted which are not regular, or where tenders have been submitted that are: unacceptable, provided that the original terms of the contract are not substantially altered.

  • 2 Where the procuring entity or the special sector undertaking has applied to the first paragraph, subparagraph (e), it shall simultaneously and in writing invite tenderers exclusively from those in the restricted procedure, the negotiated procedure to announce whether the competitive dialogue procedure has been registered to satisfy the eligibility criteria and selection criteria, and which satisfy the formal requirements of the procurement procedure.


Article 2.24

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  • 1 The contracting authority or the special sector undertaking may apply the negotiated procedure without notice:

    • a. For contracts for research and development services the results of which are intended in their entirety for the contracting authority or the special sector undertaking for its use in the exercise of its own activities, provided that the the provision of services is entirely paid by the contracting authority or by the special sector undertaking,

    • b. for the supply of products manufactured exclusively for research and development and whose production does not take place in large quantities with the aim of determining the commercial viability of the product or to develop research and development;

    • c. Additional deliveries made by the original supplier which are intended:

      • 1 °. for partial replacement of current supplies or installations, or

      • 2. for the extension of existing supplies or installations, where a change of supplier would oblige the contracting authority or the special-sector undertaking to acquire material with other technical characteristics which do not are compatible with the technical properties of material already supplied or are subject to disproportionate technical difficulties in the use and maintenance of materials to be purchased and to be purchased;

    • d. For supplies quoted and purchased on a commodity market; or

    • e. for the purchase of supplies at particularly favourable conditions from a supplier definitively stopping its trading activities, in the case of liquidators or liquidators of bankruptcy, or in the application of the debt restructuring scheme, persons or a similar procedure existing in other national legislation.

  • 2 The term of the contracts and of the following orders referred to in paragraph 1 (c) shall not exceed five years, unless exceptional circumstances exist for determining the expected lifetime of delivered objects, plants or systems and the technical difficulties that a change of supplier may cause to influence.


Article 2.25

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The contracting authority or the special sector undertaking may apply the negotiated procedure without notice to any additional works or services, to the extent that such services or works are neither in the design or in the original design nor in the original the contract awarded was included and cannot be technically or economically separate from the original contract without leading to great inconvenience to the contracting authority or the special sector undertaking or to the additional work or services are strictly necessary to complete the original contract Complete and:

  • 1. additional works or services have become necessary as a result of an unforeseen event for the performance of that contract,

  • 2 °. the award shall be made to the contractor or service provider performing the initial works contract or service contract; and

  • 3 °. the total amount of contract awarded for the supplementary works or services does not exceed 50 per cent of the amount of the original contract.


Article 2.26

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  • 1 The contracting authority or the special sector undertaking may apply the negotiated procedure without notice for new works or services up to five years following the award of the initial contract, in so far as such works or services are consist of a repetition of similar works or services entrusted to the economic operator to which the original contract was awarded and to the economic operator entrusted by the same contracting authorities or special sector undertakings:

    • 1 °. these works or services correspond to a basic project which was the subject of the original contract which, with the application of the restricted procedure, the negotiated procedure with a notice or procedure of the competitive dialogue has been awarded,

    • 2. the contracting authority or the special-sector undertaking already mentioned in the tender notice of the basic project that a procedure may be applied without notice; and

    • 3 °. the contracting authority or the special sector undertaking for the application of Section 2.1.2 the total estimated amount estimated for the following works has been taken into account for the estimation of the value of the contract.

  • 2 The contracting authority or the special sector undertaking may, in exceptional circumstances, as referred to in Article 2.24, second paragraph , also after the five-year period following the award of the original contract, apply the negotiated procedure without notice.


Article 2.27

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The contracting authority or the special sector undertaking may, for contracts relating to the provision of transport services in the air and to the sea for the armed forces or security services which are or will be deployed abroad, Apply a negotiated procedure without notice if the contracting authority or the special sector undertaking is required to award a contract to economic operators for which an invitation to tender is valid for such a service short periods of time guarantee that the period of time referred to in Article 2.57 , in the case of the restricted procedure or the negotiated procedure with a contract notice, it cannot be complied with.


Article 2.28

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The contracting authority or the special sector undertaking which applies the negotiated procedure without notice shall continue to follow the following steps. The contracting authority or the special sector undertaking shall:

  • (a) negotiate with the economic operators concerned;

  • b. makes a report of the contract;

  • c. shall communicate the award decision;

  • d. may conclude the agreement;

  • e. makes the announcement of the awarded contract known.


§ 2.2.2.3. Special rules relating to the award of contracts for Annex II services

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Article 2.29

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  • 1 The contracting authority or the special-sector undertaking may, for a contract concerning services listed in Annex II of this Regulation, be published: Directive No 2009 /81/EC apply the procedure for Annex II services.

  • 2 If the contract referred to in paragraph 1 applies both to the services provided for in Annex I of this Regulation, Directive No 2009 /81/EC as on services referred to in Annex II of Directive No 2009 /81/EC the contracting authority or the special sector undertaking may apply the procedure for Annex II services if the estimated value of the services in Annex II is equal to or higher than that of the Annex I services.


Article 2.30

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  • 1 The contracting authority or the special sector undertaking applying the procedure for Annex II services shall complete the following steps. The contracting authority or the special sector undertaking shall:

    • a. review the compliance of the tenders with the technical specifications, requirements and standards set by the contracting authority or by the special sector undertaking;

    • b. shall communicate the results of the award to the European Commission;

    • c. may publish an announcement of the awarded contract.

  • 3 By way of derogation from the second paragraph, the procuring entity or the special sector undertaking shall publish an announcement of the intention to award the contract to the electronic procurement system, if that contract is a clear cross-border interest.


Section 2.2.3. Special procedure for the conclusion of a framework agreement

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Article 2.31

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A procuring entity or a special sector undertaking wishing to conclude a framework agreement shall, for this purpose, apply one of the following procedures:

  • (a) the restricted procedure;

  • b. the negotiated procedure with a notice;

  • c. if on the basis of Article 2.21 The procedure for the competitive dialogue shall be authorised;

  • d. if that is done on the basis of the Articles 2.23 to 2.27 shall be authorised, the negotiated procedure without notice;

  • e. if that is done on the basis of Article 2.29 shall be authorised, the procedure for Annex II services.


Article 2.32

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  • 1 A contracting authority or a special-sector undertaking wishing to award a contract using a framework agreement concluded with a single economic operator shall apply the procedure for the award of a contract by means of a contract to be awarded by a contract of a kind used in the contract. framework agreement with a single economic operator, if this framework agreement is in accordance with Article 2.31 is closed.

  • 2 In the case referred to in paragraph 1, the contracting authority or the special sector undertaking shall award the contract on the basis of the conditions laid down in the framework agreement.


Article 2.33

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A contracting authority or a special-sector undertaking wishing to award a contract using a framework contract concluded with several economic operators shall apply the procedure for the award of a contract by means of a contract concluded by the contracting authority or by a contract of a kind used in the contract. framework agreement with several economic operators, where such a framework agreement is in accordance with Article 2.31 is closed.


Article 2.34

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  • 1 In the Article 2.33 The contracting authority or the special sector undertaking shall apply the terms of the framework agreement, without re-establishing competition for the economic operators concerned.

  • 2 If not all the conditions laid down in the framework agreement are determined, the contracting authority or the special sector undertaking shall follow the following steps. The contracting authority or the special sector undertaking shall:

    • (a) ask the operators concerned to submit tenders;

    • Assess the completed tenders in accordance with the award criteria set out in the framework agreement or procurement documents;

    • c. makes a report of the contract;

    • d. may conclude the agreement.

Chapter 2.3. Rules on notice, exclusion, selection and award

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Section 2.3.1. General

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§ 2.3.1.1. Economic operators

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Article 2.35

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  • 1 A contracting authority or a special sector undertaking shall not reject candidates or tenderers who are entitled under the legislation of the Member State in which they are established to carry out the operation in question solely on the basis of the Fact that they are a natural person or a legal person.

  • 2 A contracting authority or a special sector undertaking may require a legal person for service contracts, works contracts and supply contracts which involve additional services or installation works from a legal person. the names and professional qualifications of the persons responsible for the performance of the contract shall be mentioned in the tender or in the request for participation.

  • 3 A grouping of economic operators may register or identify themselves as a candidate.

  • 4 A contracting authority or a special sector undertaking shall not require the grouping of economic operators to submit a tender or a request to participate in a grouping of economic operators. This is

  • 5 A contracting authority or a special sector undertaking may require a grouping to which the contract is awarded that it adopts a particular legal form, if it is necessary for the proper performance of the contract.


§ 2.3.1.2. Communication and intelligence

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Article 2.36

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  • 1 An entrepreneur may ask for information about a specific invitation to tender.

  • 2 The contracting authority or the special sector undertaking shall reply to the questions raised in a letter of information which it sends to all candidates or tenderers.

  • 3 An entrepreneur may ask the contracting authority or the special sector company not to include certain information in the note of information if disclosure of this information would harm the justified economic situation. interests of the undertaking.


Article 2.37

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  • 1 A contracting authority or a special-sector undertaking shall provide further information on the procurement documents no later than six days before the closing date for the submission of tenders, provided that the request for information is requested in good time for the purposes of the The closing date for the submission of tenders was done.

  • 2 By way of derogation from paragraph 1, the period referred to in that paragraph shall, in the case of application of the restricted procedure or negotiated procedure, apply to the application of Article 2.57 Four days.


Article 2.38

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A contracting authority or a special sector undertaking may request an economic operator to clarify or supplement its registration or request for participation in the light of the requirements of the Articles 2.74 , 2.75 and 2.93 .


Article 2.39

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  • 1 A contracting authority or special sector undertaking is not required to provide classified information relating to a specific procurement to an economic operator, if it does not meet requirements which the contracting authority or the contracting authority special-sector undertaking in order to protect that data from its provision.

  • 2 A requirement referred to in paragraph 1 may imply that an economic operator must ensure that the subcontractors to be employed by him also meet the requirements specified in the first paragraph.


Article 2.40

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A procuring entity or a special sector undertaking shall take appropriate measures to document the conduct of a procedure carried out by electronic means.


Article 2.41

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  • 1 Without prejudice to the provisions of this Act, a procuring entity or a special sector undertaking shall not disclose information provided to it by an economic operator as confidential.

  • 2 Without prejudice to this Law, a procuring entity or a special sector undertaking shall not disclose information from procurement documents or other documents that the entity has drawn up in connection with a procurement procedure, if that information may be used to distort competition.


Section 2.3.2. Announcements

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§ 2.3.2.1. Prior information notice

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Article 2.42

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A procuring entity or the special sector undertaking may publish a prior information notice stating:

  • a. In accordance with Section 2.1.2 the estimated amount and the main characteristics of the works contracts which it intends to award or close;

  • b. In accordance with Section 2.1.2 the estimated total amount per product group of the supply contracts which the contracting authority or the special-sector undertaking intends to award in the course of the next 12 months;

  • c. in accordance with Section 2.1.2 estimated total amount per service category of service contracts for each of the service categories, which the contracting authority or the special-sector undertaking intends to award over the next 12 months.


Article 2.43

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  • 1 The publication of the prior information notice shall be made by electronic means, using the electronic procurement system.

  • 2 The contracting authority or the special sector undertaking shall use the form made available for that purpose by means of the electronic procurement system for the purpose of publication of the prior information notice.


Article 2.44

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A procuring entity or a special sector company shall transmit the pre-announcement, as referred to in Article 2.42 , as soon as possible after the decision has been taken to approve the programme of contracts or framework agreements which the contracting authority or the special-sector undertaking intends to award or to conclude, using the Electronic tendering system for procurement to the European Commission.


Article 2.45

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  • 1 By way of derogation from Article 2.44 the contracting authority or the special sector undertaking may also publish the pre-announcement on its buyer profile.

  • 2 A buyer profile as referred to in the first paragraph shall be accessible by electronic means and may contain information on pre-announcements, ongoing procurement procedures, proposed purchases, awarded contracts, cancelled procedures and useful information general information, such as a contact point, a telephone and fax number, a postal address and an e-mail address.

  • 3 In the case referred to in the first paragraph, the contracting authority or the special sector undertaking shall forward a notification of the prior information notice by electronic means using the electronic procurement system to the European Commission.

  • 4 The notification referred to in paragraph 3 shall be made by means of the form made available for this purpose by means of the electronic system of procurement.

  • 5 A procuring entity or a special sector undertaking shall publish the pre-announcement on its buyer profile not earlier than after the notification of such publication to the European Commission has been sent.

  • 6 The prior announcement on the buyer profile shall contain the date of the notification referred to in the fourth paragraph.


§ 2.3.2.2. Announcement

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Article 2.46

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  • 1 The contracting authority or the special sector undertaking which intends to award a contract shall publish a contract notice to that effect.

  • 2 The publication of the notice shall be made by electronic means using the electronic procurement system.

  • 3 The contracting authority or the special sector undertaking shall use the form made available for this purpose by means of the electronic procurement system for the publication of the notice.

  • 4 The first paragraph shall not apply where the contracting authority or the special sector undertaking applies the negotiated procedure without notice.


Article 2.47

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The contracting authority or the special sector undertaking shall indicate in the notice or in the invitation to tender the means of evidence it requires of the economic operator, including those relating to the financial and economic capacity and the financial contribution of the undertaking. technical and professional competence.


Article 2.48

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The contracting authority or the special sector undertaking may, by means of the acknowledgement of receipt of the publication of the European Commission, demonstrate that it has published an announcement.


Article 2.49

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  • 1 The procuring entity or the special-sector undertaking may not sooner or later assume the notice or its content in a manner other than the one intended for Article 2.46 publish them after it has been sent to the European Commission.

  • 2 If the procuring entity or the special sector undertaking also makes the announcement in a manner other than the use of the electronic procurement system, that announcement shall contain no information other than that which has been submitted to the contracting authority. The European Commission has been sent or published via the buyer profile and it contains, in any event, the date of transmission to the European Commission or the date of the publication on the buyer profile.


Article 2.50

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  • 1 The contracting authority or the special-sector undertaking shall make available to tender documents free of charge the procurement documents for the contract.

  • 2 If the procuring entity or the special sector undertaking makes available the procurement documents for the contract in a manner other than that for the execution of the first paragraph, the contracting authority or the special sector undertaking may cover the costs of the contract take account of that method of distribution to those who have requested that other means of providing the procurement documents.


Article 2.51

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  • 1 The contracting authority or the special sector undertaking may publish a corrigendum to a previous notice.

  • 2 The publication of the rectification shall be effected by electronic means using the electronic procurement system.

  • 3 The contracting authority or the special sector undertaking shall use the form made available for this purpose by means of the electronic procurement system for the publication of the rectification.


Article 2.52

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If the procurement documents are to be called upon to another authority, the contracting authority or the special sector undertaking shall include in the call for participation in a restricted procedure, the competitive dialogue, or negotiated procedure with a notice, the address of that authority and, where appropriate, the deadline for such a request.


§ 2.3.2.3. Time limits

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Article 2.53

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The contracting authority or the special sector undertaking shall fix the time limit for the submission of requests to participate or tenders, taking into account the subject-matter of the contract, the preparation for the request or the invitation to tender. necessary time and the time limits set out in this paragraph.


Article 2.54

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  • 1 For restricted procedures, negotiated procedures with announcement and the competitive dialogue, the time limit for submitting requests to participate shall be at least 30 days from the date of dispatch of the notice. of the command.

  • 2 For restricted procedures, the time limit for the submission of tenders shall be not less than 40 days from the date on which the invitation to tender is sent.

  • 3 Where the procuring entity or the special sector undertaking provides an advance notice as referred to in Section 2.3.2.1 In any case, he may reduce the time limit for the submission of tenders referred to in the second paragraph to 36 days, but in no case to less than 22 days.

  • 4 The period of time limits referred to in paragraph 3 shall be limited only if the prior information notice contains all the information contained in the contract notice referred to in Annex IV of this Regulation. Directive No 2009 /81/EC , to the extent that such information is available at the time of publication of the pre-announcement and provided that such prior information notice is at least 52 days and no more than 12 months before the date of delivery of the contract notice, has been sent for publication.


Article 2.55

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A contracting authority or a special sector undertaking may set the time limits for the submission of tenders referred to in Article 2.54, second paragraph , reduce by five days if, by electronic means and from making the announcement, he offers free, direct and complete access to the procurement documents, taking into account: Section 2.3.2.2 , and, in the announcement, mentions the internet address that provides access to these documents.


Article 2.56

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If the procurement documents and the additional documents or further information requested in good time do not enter into the Article 2.37 The contracting authority or the contracting authority shall, if the tenders are submitted only after a visit to the spot, or after on-the-spot inspection of the documents accompanying the procurement documents, shall be issued. special-sector undertaking the time limit for the submission of tenders, so that all operators concerned may take note of all the information necessary for the preparation of tenders.


Article 2.57

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If for urgent reasons the in Articles 2.54 to 2.56 certain time limits cannot be complied with, a contracting authority or a special sector undertaking may, in the event of a restricted procedure, the competitive dialogue procedure or a negotiated procedure with a notice, the Following time limits:

  • a. A time limit for lodging requests to participate for at least 15 days from the date of delivery of the contract notice, or 10 days if the announcement has been sent electronically in accordance with the model in the third point of Annex VI to Directive No 2009 /81/EC ;

  • (b) in the case of the restricted procedure and the competitive dialogue procedure, a time limit for the submission of tenders of at least 10 days from the date of dispatch of the call for submission of tenders. Registration.


Section 2.3.3. Cutlery

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§ 2.3.3.1. Technical specifications

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Article 2.58

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  • 1 A contracting authority or a special sector undertaking shall include the technical specifications which it has set out in the procurement documents.

  • 2 The technical specifications provide equal access for tenderers and do not lead to unjustified obstacles in the opening of contracts to competition.


Article 2.59

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  • 1 Without prejudice to technical requirements which are compatible with Union law, the use of which is required by or under the law to be subject to or to be fulfilled by international standardisation agreements for the purposes of this Directive. A procuring entity or a special-sector undertaking shall set out the technical specifications:

    • a. by reference to technical specifications and to national civil standards transpoting European standards, European technical approvals, common civil technical specifications, national civil standards in which international standards are standards have been transposed, other international civil standards, other technical reference systems drawn up by European standardisation bodies or, failing this, other national civil standards, national technical approvals, or national technical specifications relating to design, calculate and execute works and use of products, civil engineering specifications that are widely recognised within the sector, or national defence standards and similar specifications for defence equipment,

    • b. In terms of performance requirements and functional requirements, which may contain environmental features, requiring such precision to require tenderers to determine the subject matter of the contract and the contracting authority or the contracting authority. The special-sector undertaking may award the contract,

    • c. in terms of performance requirements and functional requirements as referred to in subparagraph (b), referring under a presumption of conformity to these performance requirements and functional requirements to the specifications referred to in subparagraph (a); or

    • d. by reference to the specifications, referred to in paragraph (a), for certain characteristics, and reference to performance requirements and functional requirements, referred to in subparagraph (b), for other characteristics.

  • 2 A contracting authority or a special sector undertaking shall be accompanied by the words "or equivalent" as referred to in subparagraph (a) of paragraph 1.

  • 3 A contracting authority or a special sector undertaking requiring environmental characteristics by reference to performance requirements or functional requirements referred to in paragraph 1 (b) may make use of the detailed specifications or of the Parts thereof, as laid down in Ecolabel marks, provided that:

    • a. which are suitable for the description of the characteristics of the supplies or services to which the contract relates;

    • b. The requirements for the health marking have been developed on the basis of scientific data;

    • c. Eco-label marks have been adopted through a process to which all those involved, such as government bodies, consumers, manufacturers, retail and environmental organizations, can participate; and

    • d. The labels shall be accessible to all interested parties.

  • 4 A contracting authority or a special sector undertaking may indicate that the products or services provided for in an eco-labelling brand comply with the technical specifications of the procurement documents.

  • 5 A contracting authority or a special sector undertaking does not refer in the technical specifications to a particular manufacturer, origin or mode of operation, trade mark, patent, or type, origin or specific product production, which favours or excludes certain undertakings or certain products, unless this is justified by the subject-matter of the contract.

  • 6 A contracting authority or a special sector undertaking may include the notification or reference, as referred to in paragraph 5, in the technical specification if:

    • a. A sufficiently precise and understandable description of the subject-matter of the contract by the application of the first paragraph; or Article 2.60, first paragraph , is not possible, and

    • b. This notification or referral is accompanied by the words "or equivalent".


Article 2.60

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  • 1 A contracting authority or a special-sector undertaking which refers to the specifications referred to in the Article 2.59, first paragraph, part a , do not reject an invitation to tender because the products and services offered do not meet the specifications to which it has referred, if the tenderer is satisfied by the tender to the satisfaction of the contracting authority or the special-sector undertaking demonstrates that the solutions proposed by him meet the requirements of those technical specifications in an equivalent manner.

  • 2 A contracting authority or a special-sector undertaking, which establishes performance requirements or functional requirements as set out in Article 2 (2) of the EC Treaty. Article 2.59, first paragraph, points (b) and (c) , do not reject an invitation to tender for works, products or services if that tender complies with:

    • a. A national standard transpoting a European standard;

    • b. a European technical approval,

    • c. to a common technical specification,

    • d. to an international standard; or

    • e. to a technical reference system drawn up by a European standardisation organisation;

    where the specifications referred to in points (a) to (e) relate to the performance requirements or functional requirements laid down by the contracting authority or by the special sector undertaking.

  • 3 The contracting authority or the special sector undertaking shall accept, if it makes use of the Article 2.59, fourth paragraph , referred to, any other appropriate means of proof, such as a technical file of the manufacturer or a test report by a recognised organisation.

  • 4 A contracting authority or a special sector undertaking shall accept certificates from recognised organisations established in other Member States of the European Union.


Article 2.61

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In its tender, a tenderer shall demonstrate that the product, service or work is in accordance with the standard and meets the functional and performance requirements of the contracting authority or the special sector undertaking.


§ 2.3.3.2. Subcontracting

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Article 2.62

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  • 1 The contracting authority or the special sector undertaking may ask candidates invited to tender for a contract to indicate in their tender whether they intend to subcontract part of the contract to third parties. to be given.

  • 2 In the case of a request as referred to in paragraph 1, a tenderer may also be requested to state:

    • a. which subcontractors he wants to enable,

    • (b) on which the subcontracts for which he intends to enable subcontractors referred to in (a), are to be applied; or

    • c. that he will report any change in subcontractors to be carried out during the execution of the contract.

  • 3 The first and second paragraphs shall not apply where the contracting authority or the special sector undertaking Article 2.63 apply.


Article 2.63

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  • 1 The contracting authority or the special-sector undertaking may ask candidates invited to tender for a contract in their tender to indicate a percentage of the value of the contract to third parties in the case of a contract. subcontracting shall be subcontracted outside a range established by the contracting authority or by the special sector undertaking, with a minimum and maximum percentage of the value of the contract to the extremes.

  • 2 The maximum percentage to be fixed by the contracting authority or by the special-sector undertaking referred to in paragraph 1 shall not exceed 30%.

  • 3 The minimum and maximum percentages to be laid down by the contracting authority or by the special-sector undertaking referred to in paragraph 1 shall be proportionate in the light of the content and value of the contract and the nature of the sector concerned, with including the level of competition in the relevant market and the technical capacity of the industry in this field.

  • 4 The contracting authority or the special sector undertaking which makes a claim as referred to in paragraph 1 shall also request tenderers to specify in their tender the part or parts of the contract which they intend to award to third parties. to be used as sub-contracting within the percentages specified in paragraph 1.


Article 2.64

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  • 1 It is permissible for a tenderer to propose in its tender a part of the total value of the contract which exceeds the maximum percentage fixed by the contracting authority or by the special-sector undertaking, intended to be fixed in the name of the tenderer: Article 2.63, first paragraph , to be subcontracted to third parties in subcontracting.

  • 2 A contracting authority or a special-sector undertaking may request a tenderer to specify the part of the contract which is above the set maximum percentage specified in: Article 2.63, first paragraph , increase and, where appropriate, indicate which subcontractors have already been chosen.


Article 2.65

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  • 1 A grouping of companies formed to acquire a contract, or to this cooperative affiliated undertakings, shall not be regarded as third parties as referred to in this paragraph or in the Section 2.4.2 Considered.

  • 2 For the purposes of this Article, 'associated undertaking' means an undertaking:

    • a. to which the tenderer may directly or indirectly exercise a dominant influence;

    • b. which may have a dominant influence on the tenderer; or

    • (c) who, together with the tenderer, is subject to the dominant influence of another undertaking in respect of ownership, financial participation or the rules applicable to it.

  • 3 Dominant influence as referred to in paragraph 2 shall be presumed if an undertaking, directly or indirectly, in respect of another holding:

    • a. The majority of subscribed capital,

    • b. has the majority of votes attached to the shares issued by the company; or

    • (c) more than half of the members of the company's administrative, management or supervisory board may appoint.


Article 2.66

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  • 1 The contracting authority or the special sector undertaking may, during the selection or award of a contract, reject the choices of subcontractors listed in a tender, provided that such rejection is based on selection criteria, technical specifications, requirements or standards, or solutions that have been put to the execution of the contract.

  • 2 The contracting authority or the special sector undertaking may reject subcontractors chosen during the execution of a contract, provided that such rejection is based on selection criteria, technical specifications, requirements or standards, or solutions which have been put to the execution of the contract.

  • 3 The contracting authority or the special-sector undertaking which rejects a subcontractor shall provide the tenderer who intended to enable the subcontractor to provide a statement of reasons for that refusal with a letter of approval of the subcontractor. selection criteria, technical specifications, requirements or standards, or solutions to which that subcontractor does not comply.

  • 4 The third paragraph shall apply mutatis mutandis to a rejection as referred to in the second paragraph.


Article 2.67

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The contracting authority or the special sector company shall state in the notice the requirements which it is required to Articles 2.62 to 2.66 set.


§ 2.3.3.3. Data security

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Article 2.68

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  • 1 In the case of a contract relating to classified information which requires classified information, or which contains classified information, the contracting authority or the special sector undertaking shall indicate in the procurement documents the measures and requirements necessary to ensure the required security level of these data.

  • 2 The contracting authority or the special sector undertaking may, in order to achieve the security level required of the classified information, require, inter alia, to include in a tender:

    • (a) a declaration by the tenderer and the subcontractors already known that they shall take appropriate measures to protect the safety of the products concerned, subject to legal provisions applicable to them; the confidentiality of all classified information held or notified to them during the entire duration of the contract or after the end or end of the contract;

    • b. a statement by the tenderer that he will obtain the declaration referred to in point (a) from other subcontractors whom he intends to subcontract during the execution of the contract;

    • c. To enable the subcontractors already known to be employed, which are sufficient for the contracting authority or the special sector undertaking to establish that each of them has the necessary skills to be able to do so properly protect confidentiality of classified information to which they have access or to provide them in the context of their subcontracting activities;

    • d. a declaration by the tenderer for a subcontractor not known to be subcontracted earlier than after the information referred to under (c) has been provided to that subcontractor.

  • 3 If a contracting authority or a special-sector undertaking requires a declaration from a tenderer:

    • a. which comes from a body designated by the contracting authority or by the special-sector company; and

    • (b) showing that, according to that designated body, the tenderer complies with the general security level required for the performance of contracts required by that contracting authority or by that special sector undertaking,

    The contracting authority or the special sector undertaking shall also recognise an equivalent declaration by a body from another country in accordance with the agreements reached with that country, without prejudice to the possibility of using it on the basis of the agreement to be able to renounce its own examination of that recognition, if those agreements provide for it.

  • 4 Before the declaration, referred to in Article 1 (b) of the Safety Investigating Act , is issued in respect of the person who wishes to charge a tenderer or subcontractor with a function designated as a function of trust as referred to in that Act, may, by way of derogation from Article 7 of that Act the safety investigation referred to therein shall be withheld in whole or in part where that person has a declaration from another Member State based on an equivalent safety investigation.


§ 2.3.3.4. Security of supply

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Article 2.69

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  • 1 The contracting authority or the special-sector undertaking shall specify in the procurement documents the requirements of supply security.

  • 2 The contracting authority or the special-sector undertaking may require that a tender in the field of supply security include, inter alia:

    • a. certification or documentation demonstrating to the satisfaction of the contracting authority or the special-sector undertaking that the tenderer will be able to fulfil the obligations arising out of the agreement with regard to the export, transfer and transit of goods of goods, including additional documentation received from the Member State or Member States concerned;

    • b. An indication of any limitation on the disclosure, transfer or use of the products and services or of a result of such products and services, as a result of export controls, of the contracting authority or the special sector undertaking; Safety provisions;

    • c. certification or documentation demonstrating that the organisation and location of the tenderer's supply chain will enable him to meet the requirements of the contracting authority or the special-sector company in the field of supply security included in the procurement documents, and a statement by the tenderer to ensure that potential changes in its supply chain during the performance of the contract are not adversely affected by the supply chain. Compliance with these requirements will be met;

    • (d) a statement by the tenderer that he is able to achieve or maintain capacity required to meet any additional needs of the contracting authority or the special sector undertaking resulting from a crisis situation; comply with conditions to be agreed;

    • e. supporting documentation received by the tenderer from its national authorities on the fulfilment of the additional needs of the contracting authority or the special sector undertaking as a result of a crisis situation;

    • f. the tenderer ' s statement that he will carry out the maintenance, modernization or adjustments to the supplies that make up the object of the contract;

    • g. the tenderer ' s statement that he will give the contracting authority or the special sector company knowledge of any change in his organisation in due time,

      supply chain or business strategy which may affect its obligations to the contracting authority or to the special sector business;

    • (h) the statement by the tenderer that he will provide the contracting authority or the special sector undertaking under the conditions to be met with all the specific means necessary for the manufacture of spare parts, components, assembly parts and special test equipment, including technical drawings, licences and instructions for use, in case he can no longer supply such equipment.

  • 3 The contracting authority or the special sector undertaking does not require any tenderer to be included in its tender a declaration by a Member State which would restrict that Member State's freedom to act in accordance with the relevant provisions of the contract. national or Community legislation to apply national authorisation criteria for export, transfer or transit in the circumstances which apply at the time of authorisation.


§ 2.3.3.5. Special conditions

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Article 2.70

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  • 1 A contracting authority or a special sector undertaking may attach special conditions to the execution of a contract, provided that such conditions are compatible with the Treaty on the Functioning of the European Union and in the procurement documents are listed.

  • 2 The conditions under which a contract is carried out may involve subcontracting or the purpose of which the contracting authority or the special-sector undertaking has Articles 2.68 and 2.69 ensure the security required of classified information and security of supply, or be related to social or environmental considerations.


Article 2.71

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  • 1 In the procurement documents, a contracting authority or a special sector undertaking may indicate to which body the tenderers may obtain information on obligations relating to the provisions relating to taxes, environmental protection, employment protection and working conditions applicable in the Netherlands or, if the operations are carried out outside the Netherlands, that are in force in the area or the place where the operations are carried out and which during the performance of the contract shall be applicable to those operations.

  • 2 A contracting authority or a special-sector undertaking shall request tenderers to indicate that they have taken into account, when drawing up their tender, the obligations under the provisions on employment protection and the requirements of the conditions of employment applicable at the place where the operation is carried out.


§ 2.3.3.6. Reserved Assignment

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Article 2.72

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  • 1 The contracting authority or the special-sector undertaking may reserve the participation in a contract award procedure or its execution to social work places under protected work programmes if the contract is to be used for the purposes of the award of a contract or its execution. A majority of the workers concerned are disabled persons who, by reason of the nature or the severity of their disability, are unable to carry out a professional activity in normal circumstances.

  • 2 The contract notice shall state a reservation as referred to in the first paragraph.


§ 2.3.3.7. Variations

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Article 2.73

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  • 1 A contracting authority or a special sector undertaking may allow tenderers to propose variants if it applies the criterion of the most economically advantageous tender for the award of the contract.

  • 2 A contracting authority or a special sector undertaking shall indicate in the contract notice whether or not it authorises variants. A procuring entity or a special sector undertaking shall permit variants only if it has indicated in the notice that they are authorised.

  • 3 A contracting authority or a special sector undertaking which permits variants shall indicate in the procurement documents the requirements of those variants at least, and how they are submitted.

  • 4 A contracting authority or a special sector undertaking shall only consider the variants which meet the requirements.

  • 5 In the case of procedures for the award of supply or service contracts, a contracting authority or a special sector undertaking which has granted variants shall not reject a variant solely because it is a variant, if it has been selected, rather than a supply contract, or rather a supply contract rather than a contract for services.


Section 2.3.4. Own Declaration

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Article 2.74

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  • 1 A declaration of his own is a statement by an economic operator which indicates whether exclusion grounds apply to him, whether he satisfies the eligibility requirements laid down in the notice or in the procurement documents and the manner in which he/she meets the selection criteria.

  • 2 The data and information which may be required in a statement shall be determined by or pursuant to general management measure.


Article 2.75

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  • 1 The contracting authority or the special-sector undertaking shall require an economic operator to submit his own statement at his request to participate or to tender, indicating the information and information contained in the declaration of the undertaking. shall be provided.

  • 2 The contracting authority or the special sector undertaking does not require an economic operator to provide information or information in any other way when the request for participation or registration is made by an economic operator, if that information and information are in its own declaration. may be requested.

  • 3 The contracting authority or the special-sector undertaking may request an economic operator to submit only supporting documents accompanying its own declaration which do not relate to information and information which may be requested in its own declaration, unless it concerns supporting documents in the Article 2.83, first paragraph, point (a) or (b) .


Section 2.3.5. Exclusion

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§ 2.3.5.1. Exclusion grounds

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Article 2.76

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  • 1 A contracting authority or a special sector undertaking shall exclude a candidate or tenderer from whom a judgment as referred to in paragraph 2 of the second paragraph has been delivered by an irrevocable judicial decision, of which the contracting authority or the special-sector undertaking shall have knowledge of participation in a contract or a procurement procedure.

  • 2 For the purposes of application of paragraph 1, appropriate convictions shall be designated as follows:

    • (a) participation in a criminal organisation within the meaning of Article 2 (1) of Joint Action 98 /733/JHA (PbEG 1998, L 351);

    • a. Bribery within the meaning of Article 3 of the Council Decision of 26 May 1997 (PbEG L 195) and Article 2 (1) respectively of the Framework Decision of the Council (PbEU 2003, L 192);

    • (c) fraud within the meaning of Article 1 of the Convention on the protection of the Community's financial interests (PbEG 1995, C 316);

    • d. terrorist offence or offence related to terrorist activities within the meaning of Articles 1 and 3 of the Council Framework Decision on combating terrorism (PbEG 2002, L 164), respectively, or to be provoked by, Aiding or abetting or attempting to commit such an offence or criminal offence as referred to in Article 4 of that Framework Decision;

    • e. money laundering and financing of terrorism within the meaning of Article 1 of Directive No 2005 /60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and financing of terrorism (PbEU L 309).

  • 4 The contracting authority or the special-sector undertaking shall, in applying the first paragraph, only make judgments which, in the four years preceding the date of lodging of the application for participation or registration, are have become irrevocable.


Article 2.77

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  • 1 The contracting authority or the special-sector undertaking may exclude a tenderer or candidate from participation in a contract or a procurement procedure on the following grounds:

    • (a) the tenderer or candidate is in a position of bankruptcy or liquidation, his duties have been suspended, whether the tenderer is subject to a payment or a contract of bankruptcy or whether the candidate or tenderer is in a position to a similar situation arising from a similar procedure which is found in the legislation or regulations applicable to it;

    • (b) an irrevocable judgment has been made vis-vis the candidate or tenderer on the basis of the laws and regulations applicable to him for infringement of a rule of professional conduct relevant to him;

    • (c) in the exercise of his profession, the tenderer or candidate has committed a serious error which may be likely to be incurred by the contracting authority or by the special-sector undertaking;

    • (d) the tenderer or candidate has not fulfilled obligations on the basis of legal provisions applicable to him in respect of payment of social security contributions or taxes;

    • e. the candidate or tenderer has committed itself to a serious extent to false statements in the provision of information required by the contracting authority or by the special-sector undertaking of the applicant or has that information; not provided;

    • (f) it has been established to the candidate or tenderer that he does not have the reliability necessary to exclude risks to national security.

  • 2 The contracting authority or the special-sector undertaking shall, when applying the first paragraph, part b, make only irrevocable statements made in the four years preceding the date of lodging of the application for participation or the registration has become irrevocable and, in the case of the application of paragraph 1 (c), only serious errors which occurred during the four years preceding the specified date.


Article 2.78

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The contracting authority or the special sector undertaking may refrain from applying Article 2.76 or Article 2.77 :

  • a. For overriding reasons of public interest;

  • (b) if, in the opinion of the contracting authority or by the special-sector undertaking, the candidate or tenderer has taken sufficient measures to restore confidence in breach of the law;

  • If, in the opinion of the contracting authority or the special-sector undertaking, exclusion is not proportional to the time which has elapsed since the sentence and given the subject-matter of the contract.


§ 2.3.5.2. Supporting evidence for exclusions

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Article 2.79

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  • 1 A candidate or tenderer may prove, by means of an extract from the commercial register, that at the time of submission of the request to take part or the invitation to tender is not more than six months, that the ground of exclusion of the tenderer may be Article 2.77, part a , he doesn't apply to him.

  • 2 A candidate or tenderer may, by means of a conduct declaration, which at the time of lodging the application for participation or registration does not exceed two years, shall prove that the grounds for exclusion provided for in the Articles 2.76 and 2.77, parts b and c In so far as it concerns an irrevocable conviction or an irrevocable order for breach of competition rules, they are not applicable to him.

  • 3 A candidate or tenderer may prove, by means of a statement by the tax authority, who at the time of lodging the request to participate or to tender is not older than six months, that the ground of exclusion, intended Article 2.77, part d , it doesn't apply to him.

  • 4 A contracting authority or a special sector undertaking which submits information to a candidate or tenderer for the purposes of the exclusion grounds, Article 2.76 or Article 2.77 , do not apply to him, it shall also accept data and documents from another Member State which serve an equivalent purpose or which show that the exclusion ground does not apply to him.


Section 2.3.6. Eligibility requirements and selection criteria

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§ 2.3.6.1. Eligibility requirements

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Article 2.80

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  • 1 A contracting authority or a special sector undertaking may require candidates and tenderers to be subject to fitness requirements.

  • 2 The criteria of eligibility referred to in paragraph 1 of this Article may cover:

    • a. Financial and economic capacity;

    • b. technical competence and professional competence;

    • (c) professional competence.

  • 3 A contracting authority or a special-sector undertaking shall, when preparing and establish a contract, only require the tenderer and the tender which are related to and in a reasonable proportion to the agreement the object of the contract.


Article 2.81

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  • 1 An economic operator can in any case demonstrate his financial and economic capacity by one or more of the following:

    • a. Appropriate bank statements or proof of an insurance against occupational risks;

    • b. production of balance sheets or balance sheet extracts, where the legislation of the country of establishment of the economic operator provides for the disclosure of balance sheets; or

    • c. a statement concerning the total turnover and turnover of the business activity which is the subject of the contract, not exceeding the last three financial years available, depending on the date of establishment of the undertaking or on the date on which the contract is based. the economic operator has started business, in so far as the turnover figures concerned are available.

  • (2) If the economic operator is unable, for good reason, to submit the supporting documents requested by the contracting authority or by the special-sector undertaking, he may prove his economic and financial standing with other documents which are the subject of the contracting authority or the special sector undertaking is suitable for it.


Article 2.82

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  • 1 An economic operator may rely for a specific contract on the financial and economic capacity of other natural or legal persons, irrespective of the legal nature of their links with those natural or legal persons. In such a case, an economic operator shall demonstrate to the contracting authority or the special sector undertaking that he can actually have the resources necessary for the performance of the contract by such natural or legal persons.

  • 2 Under the conditions referred to in paragraph 1, a consortium of economic operators may rely on the capacities of participants in the grouping or of other natural or legal persons.


Article 2.83

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  • 1 An entrepreneur may demonstrate his technical ability or professional ability in one or more of the following ways, depending on the nature, quantity or size and purpose of the works, supplies or services:

    • a. through a list of works carried out in the last five years, which list is accompanied by certificates proving that the most important works have been properly implemented and in which the amount of works, location and location of the works the date on which they were carried out, indicating whether the works were carried out and completed under the rules of art, and which, where appropriate, were delivered by the competent authority directly to the competent authorities. contracting authority or the special sector undertaking are to be sent;

    • b. by means of a list of the main supplies or services carried out during the last five years, indicating the amount and date and of the public or private bodies to which they were assigned;

    • (c) by means of an indication of the technicians or technical bodies, whether or not belonging to the undertaking, of the economic operator, in particular those responsible for quality control and, in the case of works contracts, those which are the contractor will be available to carry out the works;

    • d. through a description of the technical equipment of the supplier or service provider, of the measures he is taking to ensure the quality and the possibilities he offers with regard to designs and research, and of internal rules on intellectual property;

    • e. by means of a check by the contracting authority or by the special sector undertaking or, in his name, by a competent official body of the country in which the supplier or the service provider is established, subject to agreement by that authority body, which controls the supplier's production capacity or the technical capacity of the service provider and, if necessary, on its design and research possibilities and the measures it takes to improve the quality of the product, guarantees;

    • f. in the case of works, services or supplies contracts which also relate to services or works for affixing and installation, by means of the educational and professional qualifications of the service provider or contractor or the contractor, the undertaking's managerial staff and, in particular, those entrusted with the provision of services or the management of the works;

    • g. for works contracts or service contracts, by indicating the environmental management measures which the economic operator may apply for the performance of the contract;

    • h. by means of a statement of the average annual staffing of the company of the service provider or contractor and the size of the managerial staff during the last three years;

    • a description of the equipment, equipment, technical equipment, staff and knowledge or sources of supply, including a description of their geographical location when they are outside the scope of the The European Union shall be the subject of the contract, on which the economic operator will have to implement the contract, to deal with any increase in the needs of the contracting authority or the special-sector undertaking as a result of a crisis situation, or to the maintenance of a crisis situation, or modernisation or the adjustments to the supplies which determine the subject-matter of the contract, ensure;

    • (j) for the products to be supplied, by means of samples, descriptions or photographs, the authenticity of which can be demonstrated by the contracting authority or by the special-sector undertaking, or by means of certificates issued by an approved authority or by an approved body. have been issued, stating that products clearly identified by references meet certain specifications or standards;

    • k. where contracts relating to classified information or such data are necessary or contained, by means of evidence showing that the classified information is subject to compliance with the information required by the contracting entity service or the special-sector company required security level can be processed, stored and dispatched.

  • 2 Supplies and services referred to in paragraph 1 (b) shall be demonstrated in the case of supplies or services for a contracting authority or for a special sector undertaking by certificates issued by the competent authority. or co-signed, or in the case of supplies or services to a private customer, by the customer's certificates or, failing that, by a declaration from the economic operator.

  • 3 Where as evidence referred to in paragraph 1 (k) of a candidate, a certificate as referred to in paragraph 1 Article 2.68, third paragraph, parts a and b , or a statement as referred to in Article 1 (b) of the Safety Investigating Act , the contracting authority or the special sector undertaking may, at the request of that candidate, grant it more time to obtain it, where the contracting authority or the special sector undertaking has the possibility to do so; and of the additional time to be obtained in the announcement of the contract notice.

  • (4) Where a statement is made by a candidate Article 2.68, third paragraph, parts a and b , where a declaration is made, the last sentence of that third paragraph shall apply mutatis mutandis to the recognition of an equivalent declaration of that third paragraph.


Article 2.84

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  • 1 An economic operator may rely on the ability of other natural or legal persons, irrespective of the legal nature of his links with such natural or legal persons, for certain contracts, provided that he proves that he is capable of doing so have the necessary resources for the execution of the contract.

  • 2 Under the conditions referred to in paragraph 1, a grouping of economic operators may rely on the competence of members of the grouping or of any other natural or legal person.


Article 2.85

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The contracting authority or the special-sector undertaking may, in the case of works contracts, in the case of supply contracts for the supply or installation, and in the case of service contracts, the suitability of economic operators to carry out such contracts. to provide services or to carry out such installation or work on the basis, in particular, of their practical skills, technical knowledge, efficiency, experience and reliability.


Article 2.86

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If, for good reason, the economic operator is unable to submit the supporting documents requested by the contracting authority or by the special-sector undertaking, he may prove his technical and professional competence with other documents which are the same as those which have been contracting authority or the special sector undertaking is suitable for it.


Article 2.87

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  • 1 Where a procuring entity or a special sector undertaking requires the production of an attestation drawn up by an independent accredited body that the economic operator meets certain standards of quality management systems, Refers to quality management systems based on the European standards series in this field and certified by independent accredited bodies that comply with the European standards series for certification.

  • 2 A contracting authority or a special sector undertaking shall accept equivalent certificates from independent accredited bodies established in other Member States of the European Union. A procuring entity or a special sector undertaking shall also accept other evidence of equivalent quality management systems.


Article 2.88

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  • 1 Where a procuring entity or a special sector undertaking in a case is as intended Article 2.83, first paragraph, part g Where the trader fulfils certain environmental management standards, it shall refer to the Community eco-management and audit scheme or to standards relating to environmental protection; the declaration shall be accompanied by a declaration drawn up by an independent authority. Environmental management based on relevant European or international standards certified by recognised organisations or organisations answering to or from relevant European or international standards for certification.

  • 2 A contracting authority or a special sector undertaking shall accept equivalent certificates from bodies established in other Member States. He shall also accept other evidence of equivalent measures in the field of environmental management.


§ 2.3.6.2. Professional jurisdiction

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Article 2.89

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  • (1) If a candidate or tenderer is not entitled to pursue his professional activity without being registered in a professional or trade register in his home Member State or in his home Member State, the contracting authority or the special sector undertaking may requests to prove that he is registered in the relevant registry, or to provide a sworn statement or a certificate.

  • 2 In the case of procedures for the award of service contracts, a contracting authority or a special sector undertaking may, if the candidates or tenderers are required to have a special licence or if they are members of a particular sector, must be required to provide the service in question in their country of origin, require proof of their possession of such authorisation, or be a member of the said organisation.


§ 2.3.6.3. Selection

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Article 2.90

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  • 1 The contracting authority or the special-sector undertaking may, when the restricted procedure is applied, the negotiated procedure with a notice and the competitive dialogue give the number of candidates that it will submit to tender, limit participation or negotiation in compliance with what is defined in this paragraph.

  • 2 A limitation of the number of candidates referred to in paragraph 1 shall take place in an objective and non-discriminatory manner by means of rules or selection criteria and weightings specified in the notice.


Article 2.91

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  • 1 The contracting authority or the special sector undertaking shall indicate in the notice the number of candidates which it intends to invite at least and, where appropriate, to the highest number.

  • 2 The number of candidates which the contracting authority or the special-sector undertaking intends to invite shall be at least three.

  • 3 The number of candidates invited shall ensure effective competition.

  • 4 The contracting authority or the special sector undertaking shall invite a number of candidates at least equal to the minimum number of candidates set out in the notice, if the number of candidates not excluded and the number of candidates concerned has not been excluded. adequate compliance with the criteria for eligibility and selection criteria.

  • 5 If the number of candidates not excluded and meeting the eligibility criteria and selection criteria is below the number of candidates, the contracting authority or the special sector undertaking shall, as a minimum, be considered as a minimum for the number of candidates in the notice to be published. invite candidates, the contracting authority or the special sector undertaking may continue the procedure. In that case, by way of derogation from the fourth paragraph, it shall invite the candidate or candidates not to be excluded and who satisfy the requirements for their fitness to be met.


Article 2.92

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  • 1 If the number of candidates meeting the eligibility requirements and not subject to exclusion grounds is too low to ensure effective competition, the contracting authority or the special sector undertaking may use the procedure suspend and, in that case, make the initial announcement of the contract again known to Article 2.46, second and third paragraphs .

  • 2 In applying the first paragraph, the notice shall contain a new deadline for the submission of requests to participate.

  • 3 The contracting authority or the special-sector undertaking shall invite it to comply with Section 2.3.8.1 the candidates, selected after the first and after the second publication of the notice.

  • 4 The possibility, referred to in paragraph 1, shall be without prejudice to the possibility of terminating the current procedure and of initiating a new procedure.

  • 5 The contracting authority or the special-sector undertaking shall not invite any economic operators who have not requested to participate, nor shall it invite any economic operators subject to exclusion, or who do not comply with the requirements for fitness for use.


§ 2.3.6.4. Verification of exclusion grounds, eligibility requirements and selection criteria

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Article 2.93

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  • 1 The contracting authority or the special sector undertaking may verify the accuracy of one or more information or information contained in the statement of the candidates which it wishes to invite to submit an invitation to tender or to the tenderers in which he/she intends to place the request.

  • 2 By application of the first paragraph, the contracting authority or the special sector undertaking may ask the economic operator under the conditions of the Articles 2.75 and 2.79 and the Articles 2.81 to 2.88 clarify and supplement the statements made and the documents submitted.


Section 2.3.7. Communication of exclusion and rejection

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Article 2.94

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  • 1 A contracting authority or special sector undertaking shall communicate in writing the rejection or exclusion of interested candidates and tenderers concerned in writing as soon as possible.

  • 2 At the request of any party concerned, a procuring entity or a special-sector undertaking shall inform any unsuccessful candidate as soon as possible, but no later than 15 days after the receipt of its written request, of the reasons for rejection.

  • 3 At the request of any party concerned, the contracting authority or a special sector undertaking shall notify any unsuccessful tenderer as soon as possible, but no later than 15 days from the receipt of its written request, of the reasons for the rejection, including for the cases, intended in the Articles 2.60 and 2.61 , the reasons for its decision that there is no equivalence exists or that the works, supplies or services do not meet the functional and performance requirements.

  • 4 If the rejection relates to the cases specified in the Articles 2.68 and 2.69 , the notification referred to in paragraph 3 shall contain the reasons that the requirements in the field of security and security of supply are not met.


Article 2.95

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The contracting authority or the special-sector undertaking providing for the purpose of a communication Article 2.94, first paragraph , does not provide any information provided that:

  • a. It would be contrary to any legal requirement,

  • b. would be in conflict with public interest, in particular where this could harm defense and security interests,

  • c. could harm the legitimate commercial interests of economic operators; or

  • d. could undermine fair competition between entrepreneurs.


Section 2.3.8. Award phase

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§ 2.3.8.1. Invitation to tender

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Article 2.96

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Where the restricted procedure is applied, the competitive dialogue or the negotiated procedure with a notice shall require the contracting authority or the special sector undertaking to take into account: Section 2.3.6.3 the parties not excluded and unrejected candidates simultaneously and in writing to enter into the dialogue or to enter into negotiations.


Article 2.97

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  • 1 The invitation to the candidates referred to in Article 2.96 , shall contain a copy of the procurement documents, or if the procurement documents are to be awarded in accordance with Article 2.55 have been made available by electronic means, provide the means of access to procurement documents.

  • 2 The invitation referred to in paragraph 1 shall also include:

    • a. a reference to the published contract notice;

    • (b) the closing date for the submission of tenders, the address to which they may be presented and the language or languages in which they are to be lodged,

    • (c) where the contracting authority or the special-sector undertaking applies the competitive dialogue, the starting date and address of the consultation, as well as the language or languages used thereto,

    • d. Particulars of the documents which have been taken into account Article 2.93 where appropriate, be attached, or in support of a declaration made by the candidate or in addition to the information referred to in Article 2.37 , and under the same conditions as in the Articles 2.81 to 2.88 , and

    • e. the relative weight of the award criteria of the contract or the decreasing order of importance of the criteria, if that weight or sequence is not indicated in the contract notice or procurement documents.


§ 2.3.8.2. Enrollment

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Article 2.98

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  • 1 The registration shall be in writing.

  • 2 The contracting authority or the special sector undertaking shall determine the manner in which the tender is to be submitted.


Article 2.99

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The contracting authority or the special sector undertaking shall not take notice of the content of the tender before the deadline for the submission of the tender has expired.


Article 2,100

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  • 1 In the case of a malfunction of the electronic system by means of which the tender must be submitted, which does not allow the submission of the tender shortly before expiry of the final deadline, the contracting authority may whether the special-sector undertaking extends this period after the end of the deadline, provided that it has not yet taken notice of the content of any tender.

  • 2 All unrejected candidates and tenderers shall be informed by the contracting authority or the special sector undertaking of the extension, referred to in paragraph 1, and shall have the opportunity to submit their tender within the extension. Change or supplement.


§ 2.3.8.3. Dialogue

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Article 2.101

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  • 1 When the competitive dialogue is applied, the award of the contract shall be based on the criterion of the most economically advantageous tender.

  • 2 A contracting authority or the special-sector undertaking shall indicate in the contract notice the needs and requirements which are defined by the entity in that notice or the descriptive document.

  • 3 A contracting authority or the special sector company shall open with the corresponding Section 2.3.6.3 selected candidates shall have a dialogue to determine the appropriate means of meeting their needs as best as possible.

  • 4 During the dialogue, the contracting authority or the special sector undertaking with the selected candidates may discuss all aspects of the contract.

  • 5 The contracting authority or the special-sector undertaking shall ensure equal treatment of all tenderers during the dialogue and shall not provide any information which may confer advantages on one or more tenderers over others.

  • 6 The procuring entity or the special sector undertaking does not communicate the proposed solutions or other confidential information provided by a participant in the dialogue to the other participants without the agreement of the relevant sector undertaking. participant.


Article 2.102

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  • 1 A contracting authority or a special sector undertaking may provide that the competitive dialogue procedure is conducted in successive stages, so that the number of solutions to be discussed in the dialogue phase may be limited by means of the award criteria which are specified in the contract notice or in the procurement documents.

  • 2 The contracting authority or the special sector undertaking shall ensure that, in the final stage, the number of solutions is such that effective competition can be guaranteed, provided that there is a sufficient number of suitable solutions or candidates a.

  • 3 The first paragraph shall apply only where the contracting authority or the special sector undertaking has indicated the possibility of publishing the contract or in the procurement documents.

  • 4 A contracting authority or a special sector undertaking shall continue the dialogue until it can, where necessary after comparison, identify the solutions which may be met by its needs.

  • 5 After a procuring entity or a special-sector undertaking has terminated the dialogue and informed its participants, it shall request participants to submit their final tenders on the basis of the dialogue held during the dialogue. submitted and specified solutions.

  • 6 The invitation to tender shall contain the closing date for the submission of tenders, the address to which they may be submitted, and the language or languages in which they are to be submitted.

  • 7 The tenderer shall provide that the invitation to tender, referred to in the fifth paragraph, shall contain all the necessary and necessary elements for the implementation of the project.

  • 8 A contracting authority or a special sector undertaking may request a tenderer to explain the tender or to define it more accurately.

  • 9 If a request as referred to in paragraph 8 is made, the tenderer shall not substantially alter the basic elements of the tender or the tender.


Article 2.103

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  • 1 A contracting authority or a special sector undertaking shall assess the tenders received based on the award criteria set out in the contract notice or in the procurement documents and select the economically most advantageous tender in accordance with Article 2.106 .

  • 2 A contracting authority or a special-sector undertaking may require the tenderer whose tender is designated as the most economically advantageous tender to clarify aspects of its tender or to include it in the tender procedure to confirm commitments, provided that the content of the tender or the invitation to tender remains unchanged and does not result in or threatens to distort competition or discrimination.

  • 3 A contracting authority or a special sector undertaking may provide for prizes or payments to the participants in the dialogue.


§ 2.3.8.4. Award criteria

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Article 2.104

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The contracting authority or the special sector undertaking shall review the tenders submitted by the contracting authority or the special sector undertaking in the contract notice or procurement documents, and shall be required to meet the requirements of performance and performance requirements.


Article 2.105

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The contracting authority or the special sector undertaking shall award a contract on the basis of one of the following award criteria:

  • (a) the most economically advantageous tender, in the opinion of the contracting authority or the special-sector undertaking;

  • b. the lowest price.


Article 2.106

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  • 1 The contracting authority or the special-sector undertaking to apply the criterion of the most economically advantageous tender shall, in the contract notice, publish the detailed criteria which it lays down for the purpose of applying this Directive. criterion.

  • 2 The detailed criteria referred to in paragraph 1 may cover, inter alia:

    • a. quality;

    • b. price;

    • c. Technical value;

    • d. functional characteristics;

    • e. Environmental characteristics;

    • f. Cost of use;

    • g. profitability;

    • h. Customer service and technical assistance;

    • Date of delivery;

    • j. deadline for delivery or execution;

    • k. Costs over the lifetime;

    • (l) supply security;

    • m. interoperability;

    • n. the operational features.

  • 3 The procuring entity or the special sector undertaking shall specify in the contract notice or in the procurement documents the relative weight of each of the criteria chosen by it for the determination of the most economically advantageous Registration. This weight may be expressed by means of a margin with an appropriate difference between minimum and maximum.

  • 4 If, in the opinion of the contracting authority or the special-sector undertaking, no weighting is possible, the contracting authority or the special sector undertaking shall indicate in the contract notice or in the contract notice of the contract or procurement documents or, in the case of the competitive dialogue, in the descriptive document, the criteria in descending order of importance.


§ 2.3.8.5. Abnormally low tenders

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Article 2.107

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  • (1) Where a tender is made for a contract which appears to be abnormally low in relation to the works, supplies or services to be made, the contracting authority or the special sector undertaking shall, before rejecting the invitation to tender, request that the contract be registered to in writing, to clarify the composition of the invitation to tender, which he considers necessary.

  • 2 The clarifications referred to in paragraph 1 may be related, inter alia, to:

    • a. the efficiency of the construction process, of the production process of the products or of the provision of services;

    • b. the chosen technical solutions or exceptionally favourable conditions for which the tenderer may benefit in the performance of the works, the supply of the products or the provision of services;

    • c. the originality of the design of the tenderer;

    • Compliance with the provisions on working conditions and working conditions applicable at the place where the contract is to be executed;

    • e. the receipt of State aid by the tenderer.

  • 3 The contracting authority or the special-sector undertaking shall examine, in agreement with the tenderer, the composition of the invitation to tender on the basis of the notes in the accounts received.

  • 4 A contracting authority or a special-sector undertaking which finds that a tender is abnormally low because the tenderer has received State aid, may reject the tender solely on the basis of that ground if the tenderer has been requested does not demonstrate, within a sufficiently long period, that the aid in question is not contrary to Articles 107 and 108 of the Treaty on the Functioning of the European Union, within a sufficiently long period determined by the contracting authority or by a special sector undertaking. granted.

  • 5 If the contracting authority or the special-sector undertaking rejects a tender in a case as provided for in the fourth paragraph, it shall inform the European Commission accordingly.


§ 2.3.8.6. Electronic Auction

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Article 2.108

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  • 1 The contracting authority or the special sector undertaking may, in the restricted procedure and the negotiated procedure, make the award decision in advance by an electronic auction, if:

    • a. he has reported this in the notice,

    • b. he has included in the procurement documents the information relating to the electronic auction; and

    • c. precise specifications for the contract may be drawn up.

  • 2 The first paragraph shall not apply to the procurement of works or services for intellectual performance.

  • 3 The procuring entity or the special sector undertaking does not abuse the electronic auction method nor uses the method of preventing, restricting or distorting competition or making substantial changes to the process. the subject-matter of the contract as defined in the notice and recorded in the procurement documents.


Article 2.109

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Under a framework agreement concluded with several economic operators as referred to in Article 2.132 (b), second paragraph, point (2) , a procuring entity or a special sector undertaking may have the contract award preceded by an electronic auction, if precise specifications for the contract can be drawn up.


Article 2.110

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The procurement documents relating to an electronic auction shall, in any event, contain the following information:

  • a. The elements of which the values are covered by the electronic auction, provided that these elements are quantifiable so that they can be expressed in figures or percentages;

  • b. any limits of the values that may be submitted, as they result from the specifications of the subject-matter of the contract;

  • c. the information to be made available to the tenderers during the electronic auction and the time at which such information will be made available;

  • d. relevant information regarding the conduct of the electronic auction;

  • (e) the conditions under which the tenderers may submit bids, and in particular the minimum differences required for tenders;

  • f. relevant information regarding the electronic system used and the detailed technical provisions and specifications for the connection.


Article 2.111

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Before entering into the electronic auction, a contracting authority or a special sector undertaking shall carry out a first full assessment of the tenders in accordance with the award criteria laid down and the weighting given to them.


Article 2.112

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  • 1 A contracting authority or a special sector undertaking shall ensure that all tenderers who have submitted a tender responding to the functional and performance requirements are simultaneously invited by electronic means to meet new prices. or to submit new values.

  • 2 A contracting authority or a special sector undertaking shall ensure that the request, referred to in paragraph 1, contains all relevant information for the individual connection to the electronic system used and to the date and time of entry of the contract. Electronic auction details.


Article 2.113

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A contracting authority or a special sector undertaking may have the electronic auction run in different stages.


Article 2.114

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  • 1 A contracting authority or a special sector undertaking shall forward invitations to an electronic auction at the latest two working days before the start of the auction.

  • 2 A contracting authority or a special-sector undertaking which uses the criterion of the most economically advantageous tender for the award shall attach to the invitation:

    • a. the result of the full review of the tender of the tenderer concerned; and

    • b. The mathematical formula that will determine automatic re-rankings in the electronic auction, depending on the submitted new prices or new values.

  • 3 In the formula referred to in paragraph 2 (b), the contracting authority or the special sector undertaking shall process the weight assigned to all the criteria established in order to determine the most economically advantageous tender. For that purpose, any margins shall be expressed in a given value by the contracting authority or by the special sector undertaking.

  • 4 A contracting authority or a special sector undertaking which permits variants shall provide the separate formula for each variant.


Article 2.115

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  • 1 During all phases of the electronic auction, the contracting authority or the special sector undertaking shall, without delay, communicate to all tenderers at least the information which enables them at any time to make their respective rankings. know. Where indicated in the procurement documents, the contracting authority or the special sector undertaking may also communicate other information relating to other prices or values submitted.

  • 2 A contracting authority or a special sector undertaking may also forward to tenderers at any time the number of tenderers participating in the auction phase.

  • 3 A contracting authority or a special sector undertaking shall in no case communicate the identity of the tenderers in the course of the electronic auction process.


Article 2.116

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  • 1 A contracting authority or a special sector undertaking shall close the electronic auction in one or more of the following ways:

    • a. He may indicate in the invitation to participate in the auction a pre-determined date and a pre-determined time for the closure;

    • b. he may close the auction if he does not receive any new prices or values which meet the requirements relating to minimum differences if he mentions in the invitation to participate in the auction the time limit which he has after receipt of the last offer will take effect before the auction;

    • c. he may close the auction if all phases of the auction listed in the invitation to participate in the auction are dealt with.

  • 2 A contracting authority or a special sector undertaking which has decided to close the electronic auction in accordance with paragraph 1 (c), in combination with the application of paragraph 1 (b), shall indicate in the invitation to take part in the auction the timetable for each of the phases of the auction.

  • 3 After the closing of the electronic auction, a contracting authority or a special sector undertaking awards the contract in accordance with Article 2.105 on the basis of the results of the electronic auction.


§ 2.3.8.7. Negotiations

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Article 2.117

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  • 1 When the negotiated procedure is applied, the contracting authority or the special sector undertaking shall negotiate with tenderers on the tenders submitted by them, in order to adapt them to the requirements of the tenders submitted by the contracting authority or by the special-sector undertaking. contracting authority or the special-sector undertaking set out in the contract notice, the procurement documents and any additional documents, and in order to seek the best bid for the award of the contract.

  • 2 The contracting authority or the special sector undertaking shall ensure, during the negotiations, equal treatment of all tenderers and shall not provide any information which may confer advantages on one or more tenderers over others.

  • 3 A contracting authority or a special-sector undertaking may provide that the negotiated procedure expires in successive stages, so that the number of tenders negotiated, by application of the award criteria, is reduced in the contract notice or in the procurement documents.

  • 4 The third paragraph shall apply only if the contracting authority or the special sector undertaking has indicated that possibility in the contract notice or in the procurement documents.

  • 5 The contracting authority or the special sector undertaking shall ensure that, in the final stage, the number of solutions is such that effective competition can be guaranteed, provided that there is a sufficient number of suitable solutions or candidates a.


§ 2.3.8.8. Award Decision

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Article 2.118

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  • 1 A contracting authority or a special sector undertaking shall meet a standstill period before closing the agreement envisaged by the award decision.

  • 2 The standstill period referred to in paragraph 1 shall begin on the day following the date on which the notification of the award decision has been sent to the tenderers concerned and candidates concerned.

  • 3 The period of suspension referred to in paragraph 1 shall be at least 15 calendar days.

  • 4 A contracting authority or a special sector undertaking shall not be required to apply the first member if:

    • a. This Act does not require the publication of the contract notice by the electronic procurement system;

    • (b) the sole tenderer concerned is the one to whom the contract is awarded and no interested party has been involved;

    • c. the contract is based on a framework agreement.


Article 2.119

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  • 1 A tenderer concerned as referred to in 2 118, second paragraph , any tenderer who is not definitively excluded is the case. The exclusion shall be final where the tenderers concerned have been informed and where the exclusion has been found lawfully by a court or no longer a remedy may be used against the exclusion.

  • 2 A candidate concerned as referred to in 2 118, second paragraph , is any candidate to whom the contracting authority or the special sector undertaking has not made available any information on the rejection of their request to participate before the tenderers concerned have been informed of the award decision.


Article 2.120

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Notification of the award decision of a contracting authority or a special sector undertaking shall not imply acceptance as intended for the purpose of Article 217, 1st paragraph, of Book 6 of the Civil Code of an entrepreneur's offer.


Article 2.121

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  • 1 The notification of the award decision to any tenderer or candidate concerned shall contain the relevant reasons for that decision and a precise definition of the period of suspension, as referred to in Article 4 (1) of the Regulation. Article 2.118, first paragraph , which applies.

  • 2 For the purposes of application of paragraph 1, the terms and advantages of the tender selected and the name of the beneficiary or parties to the framework agreement shall be understood in any case.

  • 3 The communication, referred to in paragraph 1, shall in any event be sent either electronically or by fax.


Article 2.122

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If during the suspensive period specified in Article 2.118, first paragraph Where an immediate supply of stock is requested in respect of the award decision in question, the contracting authority or the special sector undertaking shall not conclude the agreement envisaged by that decision until after the court has jurisdiction in the case of the court. the arbitration tribunal or the arbitration tribunal has taken a decision on the application for interim measures and the suspension period has expired.


§ 2.3.8.9. Reporting and publication

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Article 2.123

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The contracting authority or the special sector undertaking shall draw up a report on the award of a contract which shall, where applicable, contain, in any case, the following information:

  • a. Name and address of the procuring entity or the special sector business;

  • b. object and value of the contract;

  • (c) the names of the selected candidates and the reasons for that choice;

  • d. the names of the candidates excluded and rejected with reasons for such exclusion or rejection;

  • e. the names of the unsuccessful tenderers with reasons for such rejection;

  • f. the reasons for the rejection of tenders;

  • g. the name of the successful tenderer and the justification for that choice and, if known to be the part of the contract which the successful tenderer intends to subcontract to third parties;

  • h. the award procedure followed;

  • i. in the case of the competition-oriented dialogue procedure, the circumstances, intended in Article 2.21 which justify the application of this procedure;

  • j. in the case of the negotiated procedure without notice, the Section 2.2.2.2 the circumstances justifying the application of the procedure and, where applicable, a statement of reasons for the overrun:

  • k. in the case of exceptional circumstances as referred to in Article 2.129, third paragraph , a statement of reasons for a longer duration of a framework agreement than seven years;

  • (l) where applicable, the reasons why the contracting authority or the special sector undertaking has decided not to award a contract.


Article 2.124

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A procuring entity or a special sector undertaking shall transmit the minutes referred to in Article 2.123 , at its request to the European Commission.


Article 2.125

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  • 1 The contracting authority or the special sector undertaking which has awarded a contract shall publish the contract award notice using the electronic procurement system within 48 days of the award of that contract.

  • 2 The contracting authority or the special sector undertaking shall use the form made available for this purpose by means of the electronic procurement system for the purpose of communicating the outcome of the procedure.


Article 2.126

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Article 2.125 does not apply to commands based on a corresponding statement. Section 2.4.1 entered into a framework agreement concluded.


Article 2.127

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The contracting authority or the special sector undertaking shall not disclose certain information relating to the award of a contract, where the disclosure of such data:

  • a. It would be contrary to any legal requirement;

  • b. would be in conflict with the public interest, in particular where such defence and security interests might be adversely affecting;

  • c. could harm the legitimate commercial interests of economic operators;

  • d. could undermine fair competition between entrepreneurs.

Chapter 2.4. Rules applicable to special procedures

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Section 2.4.1. Special rules for the award of a contract by means of a framework agreement

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Article 2.128

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A contracting authority or a special-sector undertaking to conclude a framework agreement after the application of a procedure as referred to in the Divisions 2.2.1 or 2.2.2 , on the basis of that framework agreement, may award contracts in accordance with the procedures provided for in Article 2.131 or Article 2.132 .


Article 2.129

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  • 1 The procedures referred to in the Articles 2.131 and 2.132 , may be applied only between a contracting authority or a special sector undertaking and the economic operators which are originally parties to the framework agreement.

  • 2 In the award of contracts based on a framework agreement, the parties may not make substantial changes to the terms of the framework agreement.

  • 3 The duration of a framework agreement shall be no more than seven years, except in exceptional cases for determining the expected lifetime of delivered objects, installations or systems, and with the technical difficulties that may cause a change of supplier.


Article 2.130

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A contracting authority or a special sector undertaking shall not use a framework agreement to obstruct, limit or distort competition and does not make improper use of a framework agreement.


Article 2.131

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  • 1 If a framework agreement has been concluded with a single economic operator, contracts based on that framework agreement shall be awarded in accordance with the conditions laid down in the framework agreement.

  • 2 Contracts on the basis of framework contracts with a single economic operator may be awarded by means of written consultation of that economic operator and, if necessary, to request him to complete his tenders.


Article 2.132

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  • 1 If a framework agreement is concluded with several economic operators, this framework agreement shall be concluded with at least three economic operators, provided that the number of economic operators meeting the selection criteria, or the number of tenders submitted to the award criteria, which is sufficiently large.

  • 2 Contracts on the basis of framework contracts with more than one economic operator may be awarded:

    • (a) by applying the terms laid down in the framework agreement, without re-establishing competition from the parties; or

    • If not all the conditions laid down in the framework agreement are determined by calling the parties to competition under the terms and conditions laid down in the framework agreement or in the procurement documents of the framework agreement, as follows: procedure:

      • 1 °. for a contract to be awarded, the contracting authority or the special-sector undertaking shall consult the economic operators able to carry out the contract;

      • 2 °. the contracting authority or the special sector undertaking establishes a sufficiently long period for the submission of tenders for a specific contract, taking into account elements such as the complexity of the subject-matter of the contract. order and the time required for the transmission of tenders,

      • 3 °. tenders shall be submitted in writing and their content shall remain confidential until the time limit for the submission of applications has expired,

      • 4 °. the contracting authority or the special-sector undertaking shall award a contract to the tenderer who has submitted the best tender on the basis of the award criteria laid down in the procurement documents of the framework agreement.


Section 2.4.2. Special rules when placing a contract in subcontracting

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§ 2.4.2.1. General provisions and applicability

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Article 2.133

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  • 1 The contracting authority or the special-sector undertaking concluding an agreement as a result of a award with a tenderer shall not impede that tenderer from being able to choose subcontractors free of subcontractors when placing contracts in subcontract and, in particular, does not require any requirement whereby the tenderer discriminates against potential subcontractors on grounds of nationality.

  • 2 If, on the premises of a subcontract, the Sections 2.4.2.2 to 2.4.2.4 apply, the first paragraph shall apply to the extent that these paragraphs do not object to that.


Article 2.134

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  • 1 The contracting authority or the special sector undertaking to conclude an agreement as a result of an award with a tenderer acting on the basis of Article 2.62, first paragraph , his intention to award contracts in subcontracting in the tender may oblige him to undertake in that agreement all or part of the contract with due regard to the conditions laid down in the tender procedure. Sections 2.4.2.2 to 2.4.2.4 to carry out.

  • 2 The contracting authority or the special sector undertaking to conclude an agreement as a result of an award with a tenderer acting on the basis of Article 2.63, first paragraph , its plans to award contracts by subcontracting in the tendering procedure shall, under the terms of the contract, intend to comply with the conditions laid down in that agreement. Sections 2.4.2.2 to 2.4.2.4 to carry out the percentage of the value of the contract, with a maximum rate equal to the maximum percentage specified in that invitation to tender, specified in that invitation to tender; Article 2.63, first paragraph .

  • 3 The contracting authority or the special-sector undertaking may be a tenderer referred to in the second paragraph, acting on the basis of Article 2.64 also intend to award contracts under sub-contracting above the set maximum rate, in accordance with Article 2.63, first paragraph In its tender, the contract concluded as a result of the award shall also oblige all or parts of any plans exceeding that percentage to be taken into account in accordance with the conditions laid down in Article 3 (1) of the Agreement. Sections 2.4.2.2 to 2.4.2.4 to carry out.

  • 4 The contracting authority or the special-sector undertaking which wishes to give effect to the first or third member shall indicate its intention to do so in the contract notice.

  • 5 A contracting authority or a special sector undertaking which, as a result of the award, concludes an agreement with a tenderer in which it is obliged to award contracts in subcontracting with due regard to the contract Sections 2.4.2.2 to 2.4.2.4 ensure that that tenderer respects the requirements of those paragraphs when it comes to the award of those contracts.


Article 2.135

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  • 1 A tenderer with whom a contracting authority or a special sector undertaking enters into an agreement as a result of an award shall be different from that on the basis of Article 2.134 not required Sections 2.4.2.2 to 2.4.2.4 to be taken into account in the execution of its plans for subcontracting.

  • 2 If the contracting authority or the special sector undertaking enters into an agreement as a result of a award decision with a tenderer which is itself a contracting authority or a special sector undertaking, this Section shall not apply to the placing of contracts in sub-contracting by that tenderer. Those orders are the Parts 1 and 2 of this law.


§ 2.4.2.2. Announcement

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Article 2.136

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  • The tenderer with whom an agreement has been concluded as a result of an award decision and who intends to award a contract in subcontract shall publish a notice to that effect if the estimated value of that contract is at least equal to: equal to the threshold amount specified in Article 2.3 , which applies to that assignment.

  • 2 Section 2.1.2 shall apply mutatis mutandis to the calculation of the estimated value of a subcontract contract.

  • 3 The first paragraph shall not apply if the tenderer intends to apply the negotiated procedure without notice.


Article 2.137

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  • 1 An announcement of a subcontract contract as referred to in Article 2.136, first paragraph , shall contain the information referred to in Annex V of this Regulation. Directive No 2009 /81/EC and, where necessary, with the approval of the contracting authority or the special sector undertaking, any other information which the tenderer considers to be useful.

  • 2 An announcement of a subcontract shall be drawn up by means of the form set out by the European Commission pursuant to Article 67, second paragraph, of the Directive No 2009 /81/EC the procedure has been established.


Article 2.138

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  • 1 An announcement of a subcontract shall be made using the form set out in the Annex. Article 2.137, second paragraph , for the purpose of publication to the European Commission by electronic means, as provided for in the third point of Annex VI to this Directive. Directive No 2009 /81/EC or shipped with other means.

  • 2 The publication of the notice referred to in paragraph 1 may be published by means of the electronic procurement system.


Article 2.139

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  • 2 Our Minister makes notice in the Official Gazette of a decision referred to in the first paragraph.

  • 3 The tenderer with whom an agreement has been concluded as a result of an award decision shall first submit the contract notice in subcontract for publication to the European Commission, subject to the conditions of the award of the contract. Articles 2.137, second paragraph , 2.138 and 2.139 Before making any other announcement or content of the announcement.


Article 2.140

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The tenderer with whom an agreement has been concluded as a result of an award decision may make an announcement of a contract in subcontract in accordance with Article 2.138 also, if this is not required.


Article 2.141

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  • 1 The tenderer with whom an agreement has been concluded as a result of an award decision may publish a rectification of an earlier announcement of a subcontract contract.

  • 2 The publication of the rectification shall be carried out along the same road as the publication of the original notice.

  • 3 If the electronic procurement system has been used for the publication of the notice for a subcontract contract, the publication of a rectification of that contract may be used for the purposes of the publication of the notice of invitation to tender. by means of the form made available for that purpose by means of the electronic system of procurement.


§ 2.4.2.3. Exclusion and fitness

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Article 2.142

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  • 1 The tenderer with whom an agreement is concluded as a result of an award decision shall indicate in the contract notice the criteria relating to exclusion and suitability to be applied by him in subcontract.

  • 2 The criteria referred to in the first paragraph shall be objective and non-discriminatory.

  • 3 The criteria relating to exclusion and fitness referred to in paragraph 1 shall be in accordance with the criteria applied by the contracting authority or the special sector undertaking to the procurement of the contract.

  • 4 The criteria relating to suitability referred to in paragraph 1 shall be proportionate to the contract in subcontracting and shall, in so far as they relate directly to the subject-matter of the contract, be subcontracted.


Article 2.143

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The tenderer with whom an agreement is concluded as a result of an award decision is not to award contracts in sub-contracting where it proves to the satisfaction of the contracting authority or the special-sector undertaking that no contract has been concluded between the parties concerned. the subcontractors participating in the procurement meet exclusion and suitability criteria or, if one or more subcontractors comply, do not meet the tenders of those subcontractors in accordance with selection criteria, technical specifications, requirements or standards, or solutions, which are in the announcement of the Sub-contracting or procurement documents shall be commissioned.


§ 2.4.2.4. Framework agreements

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Article 2.144

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  • 1 The tenderer with whom an agreement is concluded as a result of an award decision may place a contract in subcontract on the basis of a framework agreement concluded with due regard for the contract. Articles 2.136 to 2.143 .

  • 2 A tenderer as referred to in paragraph 1 shall subcontract contracts on the basis of the conditions laid down in the framework agreement.

  • 3 A subcontract contract awarded on the basis of a framework agreement shall be awarded only to an economic operator who is originally party to the framework agreement.

  • 4 The duration of a framework agreement on the basis of which contracts are subcontracted shall not exceed seven years, except in exceptional cases for determining the expected lifetime of the contract. delivered objects, installations or systems, and with the technical difficulties that a change of supplier can cause.

  • 5 A tenderer referred to in paragraph 1 shall not use a framework agreement to obstruct, limit or distort competition and does not make improper use of a framework agreement.


Part 3. Other provisions

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Chapter 3.1. Other provisions

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Section 3.1.1. Detailed rules for the implementation of Directive No 2009 /81/ec

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Article 3.1

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  • 1 In order to implement Directive No 2009 /81/EC the following shall be subject to or pursuant to general management measures:

    • (a) use of the electronic means: conditions which the contracting authority or the special-sector undertaking may use for its use;

    • b. communication between contracting authority or the special-sector undertaking and economic operator means the means, the way in which data is offered and stored, electronic submission of tenders, electronic certificates and the manner in which they are presented requests to participate may be made.

  • 2 In order to implement Directive No 2009 /81/EC in the case of, or in accordance with general rules of administration, detailed rules on the setting, issuing and probing value of certificates or the setting of, recording and evidential value of the inclusion on a recognition list may be laid down.


Section 3.1.2. The electronic system for the use of the system

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Article 3.1a

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Article 3.1b

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  • 1 Our Minister proposes, by means of the electronic system of contract, the European Commission, taking into account the provisions of Article 52 (2) of the EC Treaty, and Article 69 of Directive No 69 of the EC Treaty. 2009 /81/EC forms available for:

    • a. pre-announcement of a contract;

    • (b) the contract notice;

    • c. Announcement of a subcontract contract;

    • d. The announcement by means of a buyer profile;

    • e. the announcement of an award contract;

    • f. rectification of an announcement;

    • g. the notice, intended in Article 3.3, first paragraph, point (b) ,

    in accordance with the model established by the European Commission, pursuant to the second paragraph of Article 67 of Directive No 1408/71, 2009 /81/EC has been established.

  • 2 At the request of the procuring entity or the special sector undertaking, Our Minister shall inform the European Commission of any data not intended for publication. This information shall not be disclosed by means of the electronic system of subcontracting.

  • 3 Our Secretary of State shall ensure that by electronic means of contract the communications mentioned in paragraph 1 are sent by electronic means for publication to the European Commission in accordance with the model and in the case of the method of application, referred to in the third point of Annex VI to Directive No 2009 /81/EC.

  • 4 An amendment to a form referred to in Article 69 of Directive No 1408/71. For the purposes of the first paragraph, 2009 /81/EC shall apply from the day on which the relevant decision of the European Commission enters into force.

  • 6 Our Minister makes notice in the Official Gazette of a decision referred to in the fourth paragraph.

Chapter 3.2. Destroyability and penance

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Section 3.2.1. Destroyability

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Article 3.2

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  • 1 An agreement concluded as a result of a award decision shall be legally voidable on any of the following grounds:

    • a. the contracting authority or the special sector undertaking has, in violation of Part 2 of this Act, the Agreement concluded without prior publication of an announcement of the contract in the Official Journal of the European Union;

    • b. the contracting authority or the special sector company, contrary to the law, has the time limits specified in Article 2.118, first paragraph , below 2.122 , not complied with;

    • c. the contracting authority or the special sector undertaking has applied to Article 2.118, fourth paragraph, point (c) , when awarding a contract whose estimated value is equal to or higher than it is in the Articles 2.3 and 2.4 of the applicable amount, and has acted in violation of Article 2.132, second paragraph, part b .

  • 2 The claim for destruction shall be brought by an economic operator who considers it wronchable by an award decision:

    • a. Before the expiry of a period of 30 calendar days starting on the day following the date on which the

      • -the contracting authority or the special sector undertaking published the contract award notice in accordance with the requirements of the Articles 2.125 to 2.127 provided that this notice also justifies the decision of the contracting authority or the special sector undertaking to award the contract without prior publication of a contract notice, or

      • -the contracting authority or the special sector undertaking sent to the tenderers and candidates concerned a notification of the conclusion of the contract, provided that such notification is accompanied by the relevant reasons for the operation of the contract. award decision;

    • (b) in cases other than those referred to in subparagraph (a) before the expiry of a period of six months starting from the day following the date of the conclusion of the Agreement.


Article 3.3

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  • 1 Article 3.2, first paragraph, introductory wording and point (a) , does not apply if the contracting authority or the special sector undertaking:

    • (a) considers that the award of a contract without prior publication of a contract notice by means of the electronic procurement system pursuant to this Act is permitted;

    • (b) the announcement of its intention to conclude the agreement by means of the electronic system for procurement published in the Official Journal of the European Union, and

    • (c) the Agreement has not concluded before the expiry of a period of at least 15 calendar days from the day following the date of publication of the notice of such notice.


Article 3.4

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  • 1 The announcement, intended to Article 3.3, first paragraph, point (b) , at least contain the following information:

    • a. The name and contact details of the procuring entity or the special sector business;

    • b. a description of the subject matter of the contract;

    • (c) a justification of the decision to award the contract without prior publication of an announcement of the contract in the Official Journal of the European Union;

    • d. the name and contact details of the company in favour of whom the decision to award a contract has been taken;

    • . to the extent applicable, any other information which the contracting authority or the special-sector undertaking considers to be useful.

  • 2 The publication of the notice referred to in paragraph 1 shall be made by electronic means, using the electronic procurement system.

  • 3 The contracting authority or the special sector undertaking shall use the form made available for this purpose by means of the electronic procurement system for the publication of the notice referred to in paragraph 1.


Article 3.5

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  • 1 The court may decide not to terminate an agreement if, all relevant aspects, overriding reasons of public interest make it necessary for the agreement to remain in force.

  • 2 In applying the first paragraph, the court shall, in any event, not destroy an agreement if its effects would seriously jeopardise the existence of a comprehensive defence or security programme essential to the implementation of the the security interests of a Member State.

  • 3 Economic interests may only be regarded as a compelling reason referred to in paragraph 1 if destruction in exceptional circumstances would have a disproportionate impact. However, economic interests directly related to the agreement in question shall not constitute an overriding reason as referred to in paragraph 1. Such interests include, inter alia, the costs incurred as a result of a delay in the performance of the contract, the costs of a new procurement procedure, the costs caused by the fact that another company is the beneficiary of the contract. contract, and the cost of the legal obligations arising out of the destruction.


Article 3.6

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  • 1 If the court gives application to Article 3.5, first paragraph The court may, at the request of an interested party or on its own initiative, shorten the duration of the contract.

  • 2 The judge shall, in any event, take into account the seriousness of the offence, the conduct of the contracting authority or the special-sector undertaking, the nature of the contract and, where appropriate, the possibility of the operation of a destruction limit.


Article 3.7

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  • 1 If the right application has been granted to Article 3.5, first paragraph , or if the agreement is destroyed on the basis of Article 3.2, first paragraph But if the destruction is completely or partially denied, a copy of the judgment shall be sent by the Registry of the court without delay to our Minister and to the Consumer and Market Authority.

  • 2 Our Secretary of State shall ensure that copies of judgments referred to in paragraph 1 are sent to the European Commission once a year.


Section 3.2.2. Fine

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Article 3.8

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  • 1 The Consumer and Market Authority shall provide the contracting authority or the special sector undertaking which is a party to an agreement applying to Article 3.5, first paragraph -An administrative fine.

  • 2 The first paragraph shall apply mutatis mutandis if the agreement has been eliminated in law but has been denied, in whole or in part, that destruction.

  • 3 The fine referred to in paragraph 1 shall be dissuasive, proportionate and effective, considered in connection with the Article 3.6 the shortening of the term.

  • 4 The administrative penalty shall not exceed 15% of the estimated value of the contract in question. In determining the amount of the fine, the Authority shall comply with the relevant circumstances of the case, including the seriousness of the infringement.


Article 3.9

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The Consumer and Market Authority takes the decision in question: Article 3.8, first paragraph , not after the judgment is given in Article 3.7, first paragraph , power of wisdom has been given.


Article 3.10

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  • 2 Before imposing a fine, the officials appointed by the Consumer Authority and Market Authority may examine the agreement and the bookkeeping in order to obtain the financial data for the purposes of establishing the fine. determine. They may be assisted by an independent financial expert.

  • 3 The contracting authority or the special sector undertaking shall be obliged to cooperate in the investigations referred to in paragraph 2.


Article 3.11

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If the agreement, referred to in Article 3.8 , closed or co-concluded for the benefit of the Consumer and Market Authority, the powers of the Authority are Articles 3.8 to 3.10 exercised by Our Minister.


Article 3.12 [ Exposition by 16-02-2013]

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Article 3.13

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If arbitration has been agreed upon in relation to a procurement dispute:

Chapter 3.3. Transitional and final provisions

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Article 3.14

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  • 1 Where a procuring entity or a special sector undertaking for the time of entry into force of Part 2 of this Law has been a contract award notice or a tendering procedure has been launched without notice and has, within the framework of that tender, requested one or more economic operators to submit a tender, is to be tendering procedure the duty applicable as that applied immediately before the time of entry into force of the Part 2 of this law.

  • 2 If a tenderer with whom a procuring entity or a special sector undertaking has entered into an agreement as a result of a award decision before the date of entry into force of the contract, Part 2 of this Act either an announcement to tender has been subcontracted or launched without notice and has, within the framework of that tender, requested one or more economic operators to submit a tender notice. it shall be subject to the duty applicable to that tender procedure as immediately before the date of entry into force of that tender procedure. Part 2 of this law.


Article 3.14a

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Up to one year from the date of entry into force of the Article 3.15, Part E , may be a candidate or tenderer, by way of derogation from Article 2.79, second paragraph , by means of a declaration of behaviour as referred to in Article 28 of the Law and Criminal Justice Act which at the time of submission of the request to participate or to tender shall not exceed two years, demonstrate that the grounds for exclusion, as provided for in the Articles 2.76 and 2.77, parts b and c , don't apply to him.


Article 3.15

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Article 3.16

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Article 3.17

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Article 3.18 [ Verfall by 16-02-2013]

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Article 3.19

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Article 3.20

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This law shall enter into force on a date determined by the Royal Decree, which may be adopted in respect of several articles or parts thereof.


Article 3.21

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This law is cited as: Procurement law in the field of defence and security.

Burdens and orders that it will be placed in the Official Gazette and that all ministries, authorities, colleges and public servants who so far as to do so will keep their hands on the precise execution.

Entry

' s-Gravenhage, 28 January 2013

Beatrix

The Minister for Economic Affairs,

H. G. J. Kamp

The Minister of Defence,

J. A. Hennis-Plasschaert

Published the fifteenth of February 2013

The Minister for Security and Justice,

I. W. Opstelten