Changes from plenary report to adopted text

Added5. Contracting authorities/entities shall give any economic operator, throughout the entire period of validity of the dynamic purchasing system, the possibility of requesting to participate in the system under the conditions provided for in paragraph 2. Contracting authorities/entities shall finalise their assessment of such requests in accordance with the selection criteria within 10 working days following their receipt. That deadline may be prolonged to 15 working days in individual cases where justified, in particular because of the need to examine additional documentation or to otherwise verify whether the selection criteria are met.

AddedNotwithstanding the first subparagraph, as long as the invitation to tender for the first specific procurement under the dynamic purchasing system has not been sent, contracting authorities/entities may extend the evaluation period provided that no invitation to tender is issued during the extended evaluation period. Contracting authorities/entities shall indicate in the procurement documents the length of the extended period that they intend to apply.

AddedContracting authorities/entities shall inform the economic operator concerned at the earliest possible opportunity of whether or not it has been admitted to the dynamic purchasing system and the reasons why upon request.

Added6. Contracting authorities/entities shall invite all admitted participants to submit a tender for each specific procurement under the dynamic purchasing system, in accordance with Article 34. Where the dynamic purchasing system has been divided into categories of works, products or services, contracting authorities/entities shall invite all participants having been admitted to the category corresponding to the specific procurement concerned to submit a tender.

AddedThey shall award the contract to the tenderer that submitted the best tender on the basis of the award criteria set out in the contract notice for the dynamic purchasing system in accordance with Article 47. Those criteria shall, where appropriate, be formulated more precisely in the invitation to tender.

Added7. Contracting authorities/entities shall indicate the period of validity of the dynamic purchasing system in the call for competition. They shall notify the Commission of any change in the period of validity, using the following standard forms:

Added(a) where the period of validity is changed without terminating the system, the form used initially for the call for competition for the dynamic purchasing system;

Added(b) where the system is terminated, a contract award notice referred to in Article 30(3).

Added8. Contracting authorities/entities may, at any time during the period of validity of the dynamic purchasing system, require admitted participants to submit sufficient proof related to the criteria for qualitative selection.

Added9. No charges may be billed prior to or during the period of validity of the dynamic purchasing system to the economic operators interested in or party to the dynamic purchasing system.’;

Added(13) Article 30 is amended as follows:

Added(a) paragraph 2 is replaced by the following:

Added‘2. Contracting authorities/entities which intend to award a contract or a framework agreement by open procedure, restricted procedure, negotiated procedure with the publication of a contract notice, competitive dialogue or innovation partnership shall make known their intention by means of a contract notice.’;

Added(b) the following paragraph is inserted:

Added‘2a. Contracting authorities/entities shall send a contract award notice within 30 days after the award of each contract based on a dynamic purchasing system. They may, however, group such notices on a quarterly basis. In that case, they shall send the grouped notices within 30 days of the end of each quarter.’;

Added(14) ▌ Article 33 is amended as follows:

Added(a) paragraph 2 is replaced by the following:

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

AddedIn the case of restricted procedures, the minimum time-limit for the receipt of tenders shall be 40 days from the date on which the invitation is sent and in the case of open procedures, the minimum time-limit for receipt of tenders shall be 35 days from the date on which the contract notice is sent.’;

Added(b) paragraph 7 is replaced by the following:

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

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

Added(b) in the case of restricted procedures, a time-limit for receipt of tenders which shall not be less than 10 days from the date of the invitation to tender; and

Added(c) in the case of open procedures, a time-limit for receipt of tenders which shall not be less than 15 days from the date on which the contract notice was sent, or less than 10 days if the notice was sent by electronic means, in accordance with the format and procedure for sending notices set out in point 3 of Annex VI.’;

Added(15) in Article 34, paragraph 1 is replaced by the following:

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

Added(16) Article 35 is amended as follows:

Added(a) paragraph 1 is replaced by the following:

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

Added(b) paragraph 3 is replaced by the following:

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

Added(17) Article 38 is amended as follows:

Added(a) in paragraph 3, the introductory part is replaced by the following:

Added‘3. In restricted procedures, negotiated procedures with publication of a contract notice, competitive dialogues and innovation partnerships, contracting authorities/entities may limit the number of suitable candidates they will invite to tender or with which they will conduct a dialogue, or, in the case of an innovation partnership, they will invite to participate. In this case:’;

Added▌

Added(b) paragraph 5 is replaced by the following:

Added‘5. Where the contracting authorities/entities exercise the option of reducing the number of solutions to be discussed or of tenders to be negotiated, as provided for in Article 26(3), Article 27(4) and Article 27a(2) and (5), they shall do so by applying the award criteria stated in the contract notice or the contract documents. In the final stage, the number arrived at shall make for genuine competition insofar as there are enough solutions or suitable candidates.’;

Added(18) in Article 42, the following paragraph is added:

Added‘7. In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, contracting authorities/entities may require that certain critical tasks be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators as referred to in Article 5(2), by a participant in that group.’;

Added▌

Added(19) the following Article is inserted in Title II, Chapter VII, Section 3:

Added‘Article 49a

AddedModification of contracts during their term

Added1. Contracts and framework agreements may be modified without a new procurement procedure in accordance with this Directive in any of the following cases:

Added(a) where the modifications, irrespective of their monetary value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses, which may include price revision clauses, or options. Such clauses shall state the scope and nature of possible modifications or options as well as the conditions under which they may be used. They shall not provide for modifications or options that would alter the overall nature of the contract or the framework agreement;

Added(b) for additional works, services or supplies by the original contractor that have become necessary and that were not included in the initial procurement where a change of contractor:

Added(i) cannot be made for economic or technical reasons such as requirements of interchangeability or interoperability with existing equipment, services or installations procured under the initial procurement; and

Added(ii) would cause significant inconvenience or substantial duplication of costs for the contracting authority/entity;

AddedHowever, any increase in price shall not exceed 50 % of the value of the original contract. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive;

Added(c) where all of the following conditions are fulfilled:

Added(i) the need for modification has been brought about by circumstances which a diligent contracting authority/entity could not foresee;

Added(ii) the modification does not alter the overall nature of the contract; and

Added(iii) any increase in price is not higher than 50 % of the value of the original contract or framework agreement. Where several successive modifications are made, that limitation shall apply to the value of each modification. Such consecutive modifications shall not be aimed at circumventing this Directive;

Added(d) where a new contractor replaces the one to which the contracting authority/entity had initially awarded the contract as a consequence of either:

Added(i) an unequivocal review clause or option in conformity with point (a);

Added(ii) universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another economic operator that fulfils the criteria for qualitative selection initially established provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of this Directive; or

Added(iii) in the event that the contracting authority/entity itself assumes the main contractor’s obligations towards its subcontractors where this possibility is provided for under national legislation pursuant to Article 21;

Added(e) where the modifications, irrespective of their value, are not substantial within the meaning of paragraph 4.

AddedContracting authorities/entities having modified a contract in the cases referred to in point (b) and (c) of this paragraph shall publish a notice to that effect in the Official Journal of the European Union. Such notice shall contain mutatis mutandis the information required in a contract award notice.

Added2. Furthermore, and without any need to verify whether the conditions set out under paragraph 4, points (a) to (d), are met, contracts may equally be modified without a new procurement procedure in accordance with this Directive being necessary where the value of the modification is below both of the following values: