Part II – Relevant actors
Title I – Public buyers
Chapter 1
Identification of public buyers
Article 7
Contracting authorities
1.For the purpose of this Regulation, contracting authorities shall be the central government authorities, sub-central government authorities, bodies governed by public law, or associations formed by one or more such contracting authorities, irrespective of whether the procurement procedure is conducted by one or more specific administrative units within them.
2.For the purposes of this Regulation, central government authorities shall be the authorities listed in Annex I and, in so far as corrections or amendments have been made at national level, those authorities’ successor entities.
Where corrections or amendments are made at national level, Member States shall notify the Commission thereof within three months.
3.Sub-central government authorities shall mean any of the following:
(a)State, regional or local authorities other than those listed in Annex I;
(b)central purchasing bodies who are not themselves central government authorities;
(c)bodies governed by public law as described in paragraph 4.
4.For the purpose of this Regulation, bodies governed by public law shall be bodies that meet all the following conditions:
(a)they have the specific purpose of meeting needs in the general interest, and not having an industrial or commercial character;
(b)they have legal personality;
(c)they are financed, for more than 50 % by the State, regional or local authorities, or by other bodies governed by public law; or are subject to the management and supervision by those authorities or bodies; or have an administrative, managerial or supervisory board where more than half of their members are appointed by the State, regional or local authorities or by other bodies governed by public law.
5.The Commission is empowered to adopt delegated acts in accordance with Article 141 to amend Annex I by updating the list of central government authorities based on the notifications received from Member States pursuant to paragraph 2 of this Article.
Article 8
Contracting entities
1.For the purpose of this Regulation, contracting entities shall be contracting authorities, public undertakings, and entities that operate on the basis of special or exclusive rights, and which carry out one or more of the activities referred to in Articles 12 to 18 or any combination thereof, unless the activity is directly exposed to competition on markets to which access is not restricted within the meaning of Article 19.
2.A public undertaking shall be any undertaking over which one or more contracting authorities may exercise, directly or indirectly, a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it.
Contracting authorities shall be presumed to exercise a dominant influence in any of the following cases in which they, directly or indirectly:
(a)hold the majority of the undertaking's subscribed capital;
(b)control the majority of the votes attaching to shares issued by the undertaking;
(c)can appoint more than half of the undertaking's administrative, management or supervisory body.
3.For the purpose of this Regulation, special or exclusive rights shall be rights granted by a competent authority of a Member State by way of any legislative, regulatory or administrative provision the effect of which is to limit the exercise of the activities referred to in Articles 12 to 18 to one or more entities, and which substantially affects the ability of other entities to carry out such activity.
Rights which have been granted by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute special or exclusive rights within the meaning of the first subparagraph.
The procedures referred to in the second subparagraph shall include, but are not limited to:
(a)procurement procedures with a prior call for competition in conformity with Directive 2009/81/EC 39 or a public summary of competition pursuant to this Regulation;
(b)procedures pursuant to other legal acts of the Union that ensure adequate prior transparency for granting authorisations on the basis of objective criteria, including but not limited to the procedures under the Union legal acts listed in Annex III.
Article 9
Central purchasing bodies
1.Public buyers may organise their procurement activities through the creation and use of central purchasing bodies in accordance with the rules set out in this Article.
2.For the purpose of this Regulation, central purchasing bodies shall be any public buyer carrying out the following activities:
(a)acting as a wholesaler by buying and re-selling solutions purchased on the market for public buyers;
(b)acting as an intermediary by publishing summaries and awarding contracts for public buyers;
Central purchasing bodies may also, in addition to the activities set out above, carry out or take part in joint procurement activities, or provide ancillary purchasing support services to public buyers, including technical assistance, technical infrastructure or advice.
3.Public buyers shall indicate in the public summaries pursuant to Article 110 when they are acting as a central purchasing body.
4.Any public buyer may acquire solutions from or through any central purchasing body established in the Union without applying the procedures laid down in this Regulation for the provision of the services of the central purchasing body.
5.A public buyer acquiring a solution from or through a central purchasing body, which for that solution was obliged to and has applied this Regulation, shall be deemed to comply with this Regulation in respect of the procurement for that solution.
6.A public buyer acquiring a solution from or through a Union institution, body, office or agency which carries out joint procurement, acts on behalf of the Member States or acts as a central purchasing body pursuant to Regulation (EU, Euratom) 2024/2509 40 or other Union legal acts other than this Regulation which provide for carrying out joint procurement or acting on behalf of the Member States or as central purchasing body, shall be deemed to comply with this Regulation in respect of the procurement for that solution.
Article 10
Joint procurement
1.Two or more public buyers, including those from different Member States, may act jointly in the award of certain specific public contracts.
2.The joint procurement procedure shall be regulated by an agreement between the parties, determining, among other things:
(a)the respective responsibilities of the concerned parties, the responsibility for the management of the joint procedure, the distribution of the works, supplies or services to be jointly procured or rights to be transferred; and
(b)where the public buyers are from different Member States, the legal system governing the procedure and, consequently, the legislation applicable to disputes, the competent review body and applicable jurisdiction, and the law governing the resulting public contracts.
The allocation of responsibilities and the applicable national law shall be referred to in the procurement detail for the jointly procured public contracts.
3.This Article is without prejudice to Articles 9(6) and 69(3), point (f), of this Regulation and Article 168(2) and (3) of Regulation (EU, Euratom) 2024/2509 or other Union legal acts.
Chapter 2
Activities in the field of utilities
Section 1
Covered activities
Article 11
Common provisions
1.For the purposes of Articles 12, 13 and 14, ‘supply’ shall include generation or production, wholesale and retail sale.
2.The production of gas in the form of extraction shall fall within the scope of Article 18.
Article 12
Gas and heat
1.In relation to gas and heat, this Regulation applies to the following activities:
(a)the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat;
(b)the supply of gas or heat to the networks referred to in point (a).
2.The supply by a contracting entity other than a contracting authority of gas or heat to fixed networks which provide a service to the public shall not constitute a relevant activity within the meaning of paragraph 1 of this Article where both of the following conditions are met:
(a)the production of gas or heat by that contracting entity is the unavoidable consequence of carrying out activities other than those referred to in paragraph 1 of this Article or in Articles 13, 14 or 15;
(b)the supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20 % of the contracting entity's turnover on the basis of the average for the three years preceding the one in which the supply is made.
Article 13
Electricity
1.In relation to electricity, this Regulation applies to the following activities:
(a)the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity;
(b)the supply of electricity to the networks referred to in point (a).
2.The supply by a contracting entity other than a contracting authority of electricity to fixed networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of paragraph 1 of this Article where both of the following conditions are met:
(a)the production of electricity by that contracting entity takes place because its own consumption is necessary for carrying out activities other than those referred to in paragraph 1 of this Article or in Articles 12, 14 or 15;
(b)the supply to the public network depends only on that contracting entity's own consumption and has not exceeded 30 % of that contracting entity's total production of energy, on the basis of the average for the three years preceding the one in which the supply is made.
Article 14
Water
1.In relation to water, this Regulation applies to the following activities:
(a)the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water;
(b)the supply of drinking water to the networks referred to in point (a).
2.This Regulation shall also apply to contracts awarded by contracting entities which pursue an activity referred to in paragraph 1 and which are connected with one of the following activities:
(a)hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations;
(b)the disposal or treatment of sewage.
3.The supply by a contracting entity other than a contracting authority of drinking water to fixed networks which provide a service to the public shall not be considered to be a relevant activity within the meaning of paragraph 1 of this Article where both of the following conditions are met:
(a)the production of drinking water by that contracting entity takes place because its consumption by that contracting entity is necessary for carrying out an activity other than those referred to in Articles 14 to 17;
(b)the supply to the public network depends only on that contracting entity's own consumption and has not exceeded 30 % of that contracting entity's total production of drinking water, on the basis of the average for the three years preceding the one in which the supply is made.
Article 15
Transport Services
1.This Regulation applies to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.
2.As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.
Article 16
Ports and airports
This Regulation applies to the exploitation of a geographical area for the purpose of providing airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway.
Article 17
Postal services
1.This Regulation applies to activities relating to the provision of the following services:
(a)postal services;
(b)services other than postal services, on condition that such services are provided by an entity which also provides postal services as defined in paragraph 2, point (b), of this Article and provided that the conditions set out in Article 19 are not satisfied in respect of those services.
2.For the purpose of this Article and without prejudice to Directive 97/67/EC 41 of the European Parliament and of the Council:
(a)‘postal item’ means an item addressed in the final form in which it is to be carried, irrespective of weight. In addition to items of correspondence, such items also include for instance, books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without commercial value, irrespective of weight;
(b)‘postal services’ means services consisting of the clearance, sorting, routing and delivery of postal items, including services falling both within and outside the scope of the universal service obligation provided for in Article 3 of Directive 97/67/EC;
(c)‘services other than postal services’ means services provided in the following areas:
(i) mail service management services both preceding and subsequent to despatch, including mailroom management services;
(ii) services concerning postal items not included in point (a), such as direct mail bearing no address.
Article 18
Energy sources extraction and exploration
This Regulation applies to the exploitation of a geographical area for the purpose of:
(a)extracting oil or gas;
(b)exploring for, or extracting, coal or other solid fuels.
Section 2
Exempting particular utility activities
Article 19
Activities directly exposed to competition
1.This Regulation does not apply to contracts for the pursuit of activities listed in Articles 12 to 18, with regard to a given geographical area if the activity is directly exposed to competition on markets to which access is not restricted in that geographical area, where that is established by an implementing act adopted pursuant to Article 20(4).
2.For the purposes of paragraph 1, the question of whether an activity is directly exposed to competition shall be decided on the basis of criteria that are in conformity with the provisions on competition of the Treaty, and without prejudice to the application of competition law to the situation subject to the decision. Those criteria may include the following:
(a)the characteristics of the products or services concerned;
(b)the existence of alternative products or services considered to be substitutable on the supply side or demand side;
(c)the prices; and
(d)the actual or potential presence of more than one supplier of the products or provider of the services in question on the relevant market.
The activity concerned may form part of a larger sector or be exercised only in certain parts of the territory of the Union, including certain parts of Member States.
3.The geographical area on the basis of which direct exposure to competition is assessed shall consist of an area in which the undertakings concerned are involved in the supply of and demand for products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because, in particular, the conditions of competition are appreciably different in those areas. That assessment shall primarily take into account appreciable differences in the undertakings’ market shares and the existence of market entry barriers or consumer preferences. It shall also take into account factors such as the nature and characteristics of the products or services concerned and any substantial price differences between the area concerned and neighbouring areas. The territorial scope of the area on the basis of which exposure to competition is assessed shall be limited to the territory of the Member State.
4.For the purposes of paragraph 1, access to a market is deemed not to be restricted if the Member State has implemented and applied the Union legal acts listed in Annex IV. Otherwise, it shall be established that access to the market in question is free in law and in fact.
Article 20
Exemption procedure
1.Where a Member State or a contracting entity considers that a given activity is directly exposed to competition on markets to which access is not restricted, it may submit to the Commission, as a preparatory step to a possible formal exemption request, a preliminary question on the applicability of Article 19 pursuant to paragraph 2 of this Article, or, directly, a formal exemption request pursuant to paragraph 3 of this Article, to establish that the activity in question is not covered by this Regulation.
2.During the optional preparatory phase following the submission of a preliminary question, the Commission, in a spirit of loyal cooperation, shall carry out an initial assessment of the conditions set out in Article 19. Such assessment shall be based on all information relevant to that activity already in the possession of or available to the Commission. To complement the information already in its possession, the Commission may request additional information from the contracting entity or Member State concerned, or any other party competent in relation to the activity and market concerned. The Commission may invite the contracting entity, Member State and other concerned parties to further written or oral exchanges to explore whether the conditions for granting an exemption are met, including as regards clarification of missing facts, data or reasoning.
The Commission shall provide a reply to the preliminary assessment question within 180 calendar days after the submission. If the information collected in assessing the preliminary question is sufficient to conclude that the conditions set out in Article 19 are met, the Commission shall end the preparatory phase, waive the submission of a formal exemption request and adopt an implementing act declaring that the relevant activity was exempted pursuant to paragraph 4 of this Article.
The Member State or contracting entity concerned may submit a formal request at any time before the end of the period referred to in the second subparagraph.
If the information collected in assessing the preliminary question is not sufficient to conclude that the conditions set out in Article 19 are met, the Commission shall inform the Member State or the contracting entity concerned, after which the Member State or the contracting entity may decide to submit a formal exemption request pursuant to paragraph 3 of this Article.
3.Following the submission of a formal exemption request, either directly or following an inconclusive, negative or partially negative outcome of the preparatory phase, the Commission shall carry out a full assessment of the conditions set out in Article 19. The formal exemption request shall include all relevant facts, and in particular information on any law, regulation, administrative provision or agreement concerning compliance with these conditions. It may include a position adopted by an independent national authority that is competent in relation to the activity concerned. Form, content and other details of the exemption request shall follow the requirements in the implementing act based on paragraph 10 of this Article.
4.Following its assessment of the information submitted, the Commission shall, by means of implementing acts adopted within the periods set out in the second subparagraph of this paragraph, establish whether an activity is directly exposed to competition on the basis of the criteria set out in Article 19. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 143(2).
The activity shall cease to be subject to this Regulation when:
(a)the Commission has adopted an implementing act establishing that the activity is directly exposed to competition within the period provided for in point (b);
(b)the Commission has not adopted the implementing act within the following periods:
(i) in case the exemption request is not accompanied by a position adopted by an independent national authority:
(1)90 days;
(2)120 days where the Commission exceptionally informs the contracting entity and Member State concerned that the degree of complexity of the request for exemption requires more time to analyse the competitive situation on the relevant market or activity;
(ii) in case the exemption request is accompanied by a position adopted by an independent national authority:
(1)60 days;
(2)exceptionally 80 days, where the Commission informs the contracting entity and Member State concerned that the degree of complexity of the request for exemption requires more time to analyse the competitive situation on the relevant market or activity.
Those deadlines shall commence on the first working day following the date on which the Commission receives the exemption request or, where the information to be supplied with the exemption request is incomplete, on the working day following the receipt of the complete information.
The periods set out in point (b) may be extended by the Commission with the agreement of the Member State or of the contracting entity concerned.
The Commission may request from the Member State or the contracting entity concerned or the independent national authority or any other competent national authority information that it considers necessary to carry out its assessment, including related additional information or clarifications to information already provided. The periods set out in point (b) shall be suspended until the receipt of the complete and correct information.
5.After the submission of an exemption request, the Member State or the contracting entity concerned may, with the Commission's agreement, substantially modify its exemption request, in particular as regards the activities or the geographical areas concerned. In such case, a new period for the adoption of the implementing act shall apply, which is to be calculated in accordance with paragraph 4, point (b), unless a shorter period is agreed on by the Commission and the Member State or contracting entity concerned.
6.If, in the context of an exemption request, the Commission issues a request for information to the Member State or the contracting entity concerned which remains unanswered for 180 days, the exemption request shall be deemed to be withdrawn.
7.Where an activity in a given Member State is already the subject of a procedure under paragraphs 1 and 5, further exemption requests concerning the same activity in the same Member State before the expiry of the period opened in respect of the first exemption request shall not be considered as new procedures but shall be treated in the context and period of the first exemption request.
8.The Commission may, ex officio, carry out a new analysis of the conditions for granting an exemption, including following information from a third party, or in case of a formal request from a Member State.
9.Information on the applicability of Article 19(1) to covered activities for a given market and activity shall be made available by the Commission, including the fact of the submission of an exemption request, the applicable periods for its assessment and any prolongations or suspensions thereof. The Commission shall also publish information on preliminary questions and new analyses carried out pursuant to paragraph 8.
10.The Commission is empowered to adopt implementing acts establishing detailed rules for the application of paragraphs 1 to 9, including at least rules relating to:
(a)implementing provisions concerning the form, content and other details of preliminary questions and exemption requests pursuant to paragraphs 1 and 3;
(b)publication pursuant to paragraph 9.
That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 143(2).
Title II – Economic operators
Chapter 1
General provisions
Article 21
Economic operators
1.Public buyers shall not require economic operators to have a specific legal form in order to participate in the procurement procedure.
2.Economic operators that, under the law of the Member State in which they are established, are entitled to provide the relevant supplies, works or services, shall not be rejected solely on the ground that, under the law of the Member State in which the contract is to be awarded, the economic operator would have been required to be either a natural or legal person.
3.Public buyers may, in the case of services, works or siting and installation operations, require legal persons to indicate before the start of the execution of the tasks concerned, the names and relevant qualifications of the staff responsible for the performance of the contract in question.
Article 22
Groups of economic operators
1.Public buyers shall not set out selection criteria pursuant to Article 27 for groups of economic operators that differ from those for other economic operators, unless otherwise laid down in this Article.
A group of economic operators shall be deemed to fulfil a selection criterion where:
(a)one economic operator in the group possesses the necessary technical and professional ability or economic and financial standing; or
(b)where such ability or standing can be established by combining the relevant technical and professional ability or economic and financial standing from two or several members of the group, unless such combination would not achieve the same level of ability or standing.
2.When justified by the nature of the contract and in accordance with the principle of proportionality, public buyers may:
(a)derogate from paragraph 1, second subparagraph, point (a) or (b), for selection criteria relevant for certain critical tasks;
(b)require that certain critical tasks be performed directly by the member of the group that fulfils the selection criterion relevant for that task.
Public buyers shall identify the critical tasks and related, requirements, clearly indicating them and their justification in the procurement detail.
3.Conditions for the performance of the contract by groups of economic operators may be permitted to differ from those imposed on other economic operators only where justified by objective reasons, which are proportionate and clearly indicated in the procurement detail.
4.Without prejudice to Member States’ competence to organise their social security systems, public buyers shall not require a group of economic operators to assume a specific legal form, including once they have been awarded the contract.
5.Public buyers shall give particular consideration not to create unjustified or disproportionate barriers related to the size of the economic operators participating in a group, in particular for SMEs.
Article 23
Reliance on the capacity of other entities
1.With regard to selection criteria set by the public buyer pursuant to Article 27, economic operators may rely on the capacities of other entities, regardless of the legal nature of the links which it has with them or of their legal form.
2.The public buyer shall verify whether the entities, whose capacity the economic operator intends to rely on regarding one or more selection criteria fulfil the relevant selection criteria and whether there are grounds for their exclusion. The public buyer shall require that the economic operator replace an entity which does not meet a relevant selection criterion, or in respect of which there are mandatory grounds for exclusion. The public buyer may require that the economic operator substitute an entity in respect of which there are optional grounds for exclusion.
3.Public buyers may request in the procurement detail that the economic operator proves that it will have the relevant resources of the entity it intends to rely on at its disposal throughout the period of execution of the contract, for example by a statement to that effect by those entities.
4.Where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial standing, the public buyer may require that the economic operator and those entities be jointly liable to the public buyer for the execution of the contract.
5.Where an economic operator relies on the capacities of other entities to prove technical and professional ability, the public buyer may require in the procurement detail that such other entity will perform the works or services for which these capacities are required.
Article 24
Subcontracting
1.Parts of the public contract may be subcontracted. A contract awarded to an economic operator shall not be subcontracted in its entirety, nor be further subcontracted in its entirety.
2.Public buyers shall require economic operators to indicate in their tender any share of the contract that they envisage to subcontract to third parties, and any proposed subcontractors.
They may require the main contractor to inform them after the award of the contract and before the start of the contract performance of the tasks and activities it intends to subcontract. They may also require information about the identity of any subcontractors.
Public buyers shall require the main contractor to provide the information referred to in the second subparagraph in the following cases:
(a)public works contracts;
(b)services to be provided at a facility under the direct oversight of the public buyer;
(c)contracts identified as presenting or including a risk for security or public safety set out in Article 66;
(d)contracts making use of the European preference requirements referred to in Article 73.
The public buyer shall require the main contractor to notify the public buyer as soon as possible of any changes to the information provided pursuant to the third subparagraph during the course of the contract.
3.The public buyer shall require the economic operator to replace a subcontractor in respect of which there are mandatory grounds for exclusion pursuant to Article 25. The public buyer may require the economic operator to replace a subcontractor in respect of which there are optional grounds for exclusion under Article 26.
4.Where the public buyer has made use of any of the European preference requirements referred to in Article 73 or has included security measures in accordance with Article 66, the economic operator may introduce or replace a subcontractor only provided that the subcontractor complies with the European preference requirements or security measures established by the public buyer.
5.When justified by the nature of the contract and in accordance with the principle of proportionality, public buyers may require that certain critical tasks be performed directly by the main contractor. Public buyers shall identify the critical tasks and related requirements, clearly indicating them and their justification in the procurement detail.
6.Subcontracting under the provisions in this Article is without prejudice to the main contractor’s liability.
7.Observance of the obligations referred to in Article 4(4) by subcontractors is ensured through appropriate action by the competent national authorities acting within the scope of their responsibility and remit. Member States may adopt or retain additional proportionate measures limiting subcontracting where they have identified a duly substantiated higher risk of non-compliance with social and labour law obligations.
Chapter 2
Exclusion grounds and selection criteria
Article 25
Mandatory exclusions
1.Public buyers shall at any time during the procedure exclude an economic operator, including individual members of a group of economic operators, from participation in a procurement procedure where that economic operator, or a key person in the functioning of a legal person as defined in the second subparagraph, has been the subject, in any Member State, of a conviction by final judgment for any of the offences listed in this subparagraph, or, regarding Member States not bound by the relevant Union legal act, offences as laid down in equivalent national legislation:
(a)participation in a criminal organisation, as defined in
Article 1, point 1, of Council Framework Decision 2008/841/JHA
42 ;
(b)corruption offences, within the meaning of Directive (EU) 2026/1021 43 ;
(c)fraud affecting the Union’s financial interests within the meaning of Article 1 of the Convention on the protection of the European Communities’ financial interests and criminal offences referred to in Articles 3, 4 and 5 of Directive (EU) 2017/1371 44 ;
(d)terrorist offences and offences related to a terrorist group, as well as offences related to terrorist activities, as referred to in Articles 3 to 12 of Directive (EU) 2017/541 45 ;
(e)money laundering withing the meaning of Article 3 of Directive (EU) 2018/1673 46 ;
(f)trafficking in human beings within the meaning of Article 2 of Directive (EU) 2011/36 47 ;
(g)criminal offences concerning the employment of illegally staying third-country nationals, as referred to in Articles 2, 3 and 9 of Directive 2009/52/EC 48 ;
(h)environmental criminal offences as referred to in Articles 3 and 4 of Directive (EU) 2024/1203 49 ;
(i)criminal offences concerning the violation of Union restrictive measures as referred to in Articles 3 and 4 of Directive (EU) 2024/1226 50 ;
(j)fraudulent use of non-cash payment instruments as referred to in Articles 3 to 8 of Directive 2019/713/EU 51 ;
(k)offences in the area of sexual abuse and sexual exploitation of children as referred to in Articles 3 to 9 of Directive (EU) 2011/93 52 .
A key person in the functioning of a legal person means a person having a leading position within the legal person, based on any of the following:
(a)a power of representation of the legal person;
(b)an authority to take decisions on behalf of the legal person;
(c)an authority to exercise control within the legal person.
2.The exclusion grounds set out in this Article shall apply for five years from the date of the delivery of the final judgment, except where the period of exclusion has been set by the final judgment, meaning that no exclusion decision shall be taken after the expiry of the periods referred to in this sentence.
3.Public buyers shall at any time during the procedure exclude an economic operator from participation in a procurement procedure when it becomes aware that the economic operator or contractor is in breach of its obligations relating to the payment of taxes or social security contributions and this has been established by final judicial or administrative decision, except if by that moment in time, the economic operator has concluded a binding arrangement on paying the taxes or social security contributions due, including, where applicable, any interest accrued or fines.
Public buyers may derogate from the mandatory exclusion provided for in subparagraph 1 where an exclusion would be clearly disproportionate, in particular where only minor amounts are unpaid.
4.Public buyers may decide to derogate from the mandatory exclusion provided for in this Article on an exceptional basis, for overriding reasons relating to the public interest such as public health or protection of the environment Any decision to derogate and the justification therefore shall be documented in the individual documentation pursuant to Article 109.
Article 26
Optional exclusion grounds
1.Public buyers may at any time during the procedure exclude an economic operator, including individual members of groups of economic operators, from participation in a procurement procedure, where:
(a)the public buyer can demonstrate by any appropriate means that the economic operator has breached applicable obligations under relevant Union legislation, as referred to in Article 4(4);
(b)the economic operator is bankrupt or is the subject of insolvency or winding-up proceedings or a comparable situation;
(c)the public buyer can demonstrate by appropriate means grave professional misconduct by the economic operator, which renders its integrity or reliability questionable;
(d)the public buyer has sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition;
(e)the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, which led to early termination of that prior contract, damages or other comparable sanctions by the public buyer;
(f)the economic operator, in the context of the concerned procedure, has been found accountable of serious misrepresentation with regard to the information required for the verification of the absence of grounds for exclusion or the fulfilment of the selection criteria; or has otherwise undertaken to unduly obtain advantages in the public procurement procedure;
(g)the public buyer can demonstrate by any appropriate means including but not limited to classified information or non-publicly disclosable assessments provided by competent national authorities, that the economic operator does not possess sufficient reliability to exclude risks to the security and public safety interests of the Union or of one or more Member States;
(h)the economic operator has benefitted from foreign subsidies distorting the internal market, established by an implementing act adopted by the Commission pursuant to Article 31 (2) of Regulation (EU) 2022/2560 53 , in the three years preceding the public procurement procedure, and the public buyer has sufficiently plausible indications to conclude that the foreign subsidies concerned are likely to have an impact on the tender of the economic operator.
2.Any economic operator subject to an exclusion pursuant to paragraph 1 may provide evidence to rebut the existence of the exclusion ground or to demonstrate that it has taken sufficient measures to demonstrate its reliability despite the existence of the exclusion ground.
For this purpose, the economic operator shall, in particular, prove that it has
(a)paid or undertaken to pay compensation in respect of any damage caused by the misconduct;
(b)clarified the facts and circumstances in a comprehensive manner by actively cooperating with the investigating authorities; and
(c)taken concrete technical, organisational and personnel measures that are appropriate to prevent further misconduct.
If the public buyer considers the evidence provided as sufficient, the economic operator concerned shall not be excluded from the procurement procedure.
The measures taken by the economic operators shall be evaluated taking into account the gravity and particular circumstances of the misconduct. In assessing the measures taken by the economic operator public buyers shall take into account the nature, extent and timing of the cooperation with the relevant investigating authorities.
Where the measures are considered to be insufficient, the economic operator shall receive a statement of the reasons thereto.
An economic operator which has been excluded by final judgment in any Member State from participating in procurement procedures shall not be entitled to make use of the possibility provided for under this paragraph during the period of exclusion resulting from that judgment.
Member States may designate a national authority competent to evaluate the evidence and decide whether it is sufficient for the purposes of this paragraph. Public buyers shall rely on a positive decision of the national competent authority for the purpose of their procurement procedures.
3.Where no measures as specified in paragraph 2 are taken and where the period of exclusion has not been set by final judgment, public buyers may exclude economic operators pursuant to this Article during a period of five years from the date of the conduct giving rise to exclusion or, in the case of continued or repeated acts, the date on which the conduct ceases, but not after that maximum period.
4.Where a public buyer excludes an economic operator on the basis of paragraph 1, point (h), it shall inform the Commission thereof.
Article 27
Selection criteria
1.Where public buyers decide to make use of selection criteria, they shall lay down such criteria in accordance with the conditions in this Article.
2.Selection criteria shall only relate to:
(a)technical and professional ability within the meaning of paragraphs 4, 5 and 6;
(b)legal, economic and financial standing within the meaning of paragraph 7.
3.Public buyers shall limit any requirements to those that are appropriate to ensure that an economic operator has the legal, economic and financial capacities and the technical and professional abilities to perform the contract to be awarded. All requirements shall be related and proportionate to the complexity of and the risks associated with the subject-matter of the contract.
4.When justified by the subject-matter of the contract, public buyers may require economic operators to be enrolled in one of the professional or trade registers established in the country where the economic operator conducts its main activity.
In procurement procedures for services, insofar as economic operators are required to hold a particular authorisation or to be members of a particular organisation in order to be able to perform in their country of origin the service concerned, the public buyer may require them to prove that they hold such authorisation or membership.
Certified registration on official lists by the competent bodies or a certificate issued by the certification body shall constitute a presumption of compliance with regard to the requirements set out pursuant to this paragraph.
5.Any references to qualifications or qualification levels included in selection criteria shall mention the European Qualifications Framework levels set out in Annex II to Council Recommendation of 22 May 2017 54 .
6.Public buyers may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to perform the contract to an appropriate quality standard.
Unless justified due to the complexity of the contract or the nature of the subject-matter, public buyers shall not require prior experience in public contracts as a condition for participation in the procurement procedure.
A public buyer may assume that an economic operator does not possess the required professional abilities where:
(a)the public buyer has established by appropriate means that the economic operator has conflicting interests which may negatively affect the performance of the contract; or
(b)the public buyer has been made aware by appropriate means that the economic operator presents a security concern for a Member State or the Union as a whole.
7.Public buyers may require economic operators to satisfy any of the following criteria:
(a)to have an appropriate minimum yearly overall turnover;
(b)to have an appropriate minimum turnover in the area covered by the contract;
(c)to provide information on their annual accounts, including on the ratios between assets and liabilities;
(d)to have an appropriate level of professional indemnity insurance.
The minimum turnovers referred to in the first subparagraph shall not exceed 50 % of the estimated annual contract value, except in duly justified cases such as relating to the special risks attached to the nature of the works, services or supplies.
The public buyer shall indicate the main reasons for such a requirement in the procurement detail.
Information from the annual accounts may be taken into consideration only where the public buyer has specified the methods and criteria for such consideration in the procurement detail. Such methods and criteria shall be transparent, objective and non-discriminatory.
8.Information that can be determined from existing national databases established by a public body, or from the registration on official lists or certifications shall not be questioned without sufficient justification.
Chapter 3
Means of proof of eligibility and database access
Article 28
Means of proof of the eligibility of economic operators
1.Public buyers shall require economic operators to use the electronic eligibility service established pursuant to Article 133 as the means of proof for the following:
(a)absence of exclusion grounds pursuant to Articles 25 and 26;
(b)compliance with selection criteria pursuant to Article 27.
Where the economic operator relies on the capacities of other entities pursuant to Article 23 or proposes to make use of subcontractors in the execution of the contract pursuant to Article 24, the economic operator shall also provide the information referred to in the first subparagraph for those entities through the electronic eligibility service.
2.Where the electronic eligibility service provides for an automated verification of the existence of an exclusion ground or compliance with a selection criterion, public buyers shall use that verification for their decision on eligibility.
3.Economic operators shall use the digital business credential tool as provided for in Article 133. Where an economic operator does not have access to that tool or where the relevant evidence is not available through that tool, the economic operator shall declare, through the electronic eligibility service, whether it complies with the requirements set out for exclusion grounds and the selection criteria and whether it would be able to submit the required evidence (self-declaration).
In that case, the public buyer may, at any time during the procedure, require evidence that is not available through the electronic eligibility service where it is necessary for the assessment of the public buyer’s requirements.
4.Economic operators shall indicate their country of origin, in accordance with Article 74, in the electronic eligibility service referred to in Article 133.
If required for applying requirements under Article 73(2), economic operators shall indicate the country of origin of the goods that compose their tender, incorporating it, where applicable, into the digital product passport of the goods pursuant to Regulation (EU) 2024/1781.
Where public buyers conduct a procurement procedure by applying one or more measures set out in Part III, Title II, Chapter 5, they may, at any time during the public procurement procedure, request the economic operator to supplement, clarify or complete information or documentation related to the verification of the origin of the economic operator, or the goods, services or works offered, provided that such requests comply with the principles of equal treatment and transparency.
Where the economic operator fails to provide the information or documentation referred to in the third subparagraph, without reasonable explanation, and thereby prevents the verification of the origin by a public buyer or makes such verification practically impossible or very difficult, the economic operator, or the tender it has submitted, may be excluded from participating in the public procurement procedure concerned.
Article 29
Connection of databases to the electronic eligibility service
1.Member States shall, by 15 June 2029, provide free of charge access for the digital business credential tool pursuant to Article 133 to the national databases in which:
(a)final judgements for the offences referred to in Article 25(1) are recorded, in particular to the national criminal registers for legal and those for natural persons;
(b)information on key persons pursuant to Article 25(1), second subparagraph, is recorded, in particular in the national professional or trade registers;
(c)evidence regarding the outstanding payment of taxes or social security contributions pursuant to Article 25(2) is recorded, in particular in the national professional or trade registers and in taxation databases and social security databases;
(d)evidence regarding bankruptcy, insolvency and restructuring pursuant to Article 25(4) point (b), is recorded, in particular in the national professional or trade registers and the national registers of bankruptcy, insolvency and reorganisations, including court registers;
(e)evidence regarding the compliance with selection criteria set pursuant to Article 27 of this Regulation and for the assessment of origin pursuant to Article 74 of this Regulation is stored, in particular in national professional or trade registers and the beneficial ownership registers established pursuant to Article 12 of Directive (EU) 2024/1640;
(f)any other structured evidence relevant within the scope of this Regulation is recorded, such as labels, specifications including security requirements or means of proof for product requirements pursuant to Article 92.
2.Access pursuant to paragraph 1 shall, where possible, be provided in such a manner that the electronic eligibility service may automate the verification as set out in Article 28(2). An automated verification shall in particular be provided for national criminal registers, taxation databases and social security databases, as well as national registers of bankruptcy, insolvency and reorganisations. Such verification shall be subject to suitable measures to safeguard the rights of freedoms of data subjects pursuant Articles 10 and 22 of Regulation (EU) 2016/679. The personal data shall only be used for the purpose of ensuring that the economic operator meets the requirements of this Regulation.
3.Member States shall inform the Commission of any newly established national databases capable of providing means of proof through use of the digital business credential tool and shall provide free of charge access for the digital business credential tool to such national databases.