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Title II – Strategic design and execution of public procurement

Chapter 1

Green public procurement

Article 50​

Green public procurement

1.When procuring products, services and works, public buyers may take environmental and climate-related considerations into account with a view to preventing, reducing or otherwise mitigating adverse environmental and climate-related impacts or pursuing positive environmental and climate-related impacts throughout their life-cycle, as compared to alternative products, services and works with the same primary function (‘green public procurement’).

2.The environmental considerations referred to in paragraph 1 shall support the achievement of the environmental and climate-related objectives as referred to in Article 5, including the following:

(a)climate change mitigation, including emission reductions;

(b)climate resilience and adaptation;

(c)the sustainable use and protection of water and marine resources;

(d)the transition to a circular economy, including through bioeconomy;

(e)pollution prevention and control;

(f)the protection and restoration of biodiversity and ecosystems.

3.Public buyers may take such environmental and climate-related considerations into account as appropriate in specifications, award criteria, contract performance clauses, or selection criteria, in compliance with the principles set in Article 4 and if they are linked to the subject-matter of the contract pursuant to Article 90.

4.Mere compliance with general minimum environmental obligations established by Union law, national law or the international conventions listed in Annex II shall not by itself be considered ‘green public procurement’ for the purpose of this Regulation.

By contrast, public procurement integrating specific public procurement environmental criteria or requirements set under this Regulation or other relevant Union legislation shall be considered ‘green public procurement’ within the meaning of paragraph 1.

Article 51​

Circular economy and resource efficiency

Public buyers may establish specifications, selection criteria, award criteria or conditions for the performance of contracts that, in line with the objective of a high level of environmental protection, promote circularity and resource efficiency throughout the life-cycle of works, products and services. Such requirements or criteria may, where appropriate, relate to durability, reparability, upgradeability, reuse, refurbishment, remanufacturing recycled content, the use of secondary raw materials, waste prevention, preparation for reuse or the procurement of refurbished, remanufactured or previously used products. Public buyers may also consider circular business models, including product-as-a-service, leasing, sharing or rental solutions, rather than the purchase of new products.

Article 52​

Energy efficiency

1.Public buyers shall, when purchasing goods, services or works purchase only products, services and works with a high energy efficiency performance, unless this is not technically feasible. To that end they shall:

(a)where a product is covered by a delegated act adopted under Regulation (EU) 2017/1369 60 , Directive 2010/30/EU 61 or by a related Commission implementing act, purchase only products that comply with the criterion laid down in Article 7(2) of Regulation (EU) 2017/1369;

(b)where a product not covered under point (a) is covered by an implementing measure under Directive 2009/125/EC 62 , purchase only products that comply with energy efficiency benchmarks specified in an implementing measure under Directive 2009/125/EC;

(c)require in their tenders for service contracts that service providers use, for the purposes of providing the services in question, only products that comply with points (a) and (b) when providing the services in question. This requirement shall apply only to new products purchased by service providers partially or wholly for the purpose of providing the service in question;

(d)where they purchase, or make new rental agreements for, buildings, ensure that such building shall, where available comply at least with the technical screening criteria on the substantial contribution to climate change mitigation provided in the Commission Delegated Regulation (EU) 2021/2139 63 , Annex I, section 7.7 (‘Acquisition and Ownership of Buildings’), unless the purpose of the purchase is:

(i) to undertake deep renovation or demolition;

(ii) to preserve it as a building officially protected as part of a designated environment, or because of its special architectural or historic merit.

Article 85(1), point (d), shall not apply to the obligations set out in the first subparagraph, point (d).

2.When the purchase concerns product package fully covered by a delegated act adopted under Regulation (EU) 2017/1369, public buyers may require that the aggregate energy efficiency of the product package takes precedence over the energy efficiency of the individual products within that package, by purchasing the product package that complies with the criterion of belonging to the highest available energy efficiency class.

Article 53​

Food procurement

1.For the purposes of pursuing objectives set in Articles 50(2) and Article 55(2), public buyers may also take considerations related to the quality and sustainability of food into account when procuring food, as appropriate, in specifications, award criteria or conditions for the performance of contracts, to the extent that they are related to the subject-matter of the contract.

2.The food-specific considerations referred to in paragraph 1 may relate, in particular, to the following:

(a)fairness and transparency in food supply chains requirements and conditions, in particular a fair renumeration of the farmers involved in the production of procured food;

(b)the organisation of the food supply chain;

(c)requirements or conditions on organic production methods, quality schemes such as geographical indications, and other production methods;

(d)nutritional value and health effects, freshness and seasonality of food criteria;

(e)animal welfare requirements.

Article 54​

Requirements for green public procurement for certain products

1.When purchasing products, product families or technologies subject to the Union legal acts listed in Annex VII, public buyers shall require in specifications, award criteria or conditions for the performance of contracts such environmental characteristics as they consider appropriate for the procurement in question, in light of the objective of ensuring a high level of environmental protection in the Union, the need for a swift transition to a climate neutral economy and the principles of equal treatment, non-discrimination and proportionality. Those environmental characteristics shall be expressed in terms of the classes or levels of performance, thresholds, environmental aspects or environmental sustainability requirements that are laid down in the relevant legal acts listed in Annex VII.

2.Where diverging requirements of environmental characteristics create a real risk of fragmentation of the internal market or in the presence of a need to foster the demand for products referred to in the Union legal acts listed in Annex VII, the Commission is empowered to adopt delegated acts in accordance with Article 141 to supplement this Regulation by specifying the environmental characteristics referred to in paragraph 1 that public buyers shall require in specifications, award criteria or conditions for the performance of contracts in relation to products, product families or technologies subject to the Union legal acts listed in Annex VII.

When adopting delegated acts pursuant to the first subparagraph, the Commission shall set the requirements at a high level, taking into account:

(a)the value and volume of public contracts awarded for the products, product families or technologies in question, or for services or works using them for the activities constituting the subject-matter of the contract;

(b)the need to ensure sufficient demand for more environmentally sustainable and low carbon products or technologies;

(c)the economic feasibility for public buyers to buy more environmentally sustainable products or technologies, without incurring disproportionate costs, and the availability of such products or technologies on the market;

(d)the effects of the requirements on competition.

3.Public buyers may decide not to require the characteristics specified in delegated acts adopted pursuant to paragraph 2 where:

(a)a product or technology can only be supplied by a specific economic operator and no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the public procurement procedure; or

(b)the application of the delegated act would oblige the public buyer to acquire equipment having disproportionate costs or would result in technical incompatibility in operation and maintenance.

4.Where new Union legal acts setting environmental sustainability and climate-related requirements for the placing on the market of products or technologies in the Union are adopted, the Commission is empowered to adopt delegated acts in accordance with Article 141 to amend Annex VII by updating the list of Union legal acts referred to in that Annex.

Chapter 2

Socially responsible public procurement

Article 55​

Socially responsible public procurement

1.Public buyers may take social considerations into account when procuring supplies, services and works with a view to achieving positive social outcomes or preventing or mitigating adverse social impacts through the life-cycle of supplies, services and works (‘socially responsible public procurement’).

2.The social considerations referred to in paragraph 1 shall pursue the social objectives of the Union, notably those referred to in Article 5, which may include the following:

(a)social inclusion and labour market integration of persons with disabilities and disadvantaged persons involved in the performance of a given public contract;

(b)high-quality jobs including through acknowledging the role of collective bargaining, taking into account the diversity of national systems and respecting the autonomy of social partners, and improvement of working conditions, for workers performing a given public contract and, in particular, for vulnerable categories of workers;

(c)accessibility for persons with disabilities and design for all approaches, beyond the legal requirements set out in Article 56 of this Regulation;

(d)training, upskilling and reskilling of workers performing a given public contract;

(e)gender equality and non-discrimination measures for workers performing a given public contract;

(f)promotion of the social economy and, where applicable, social and affordable housing;

(g)effective human rights protection across the supply chains relevant to the procurement in question.

3.Public buyers may take such social considerations into account as appropriate through criteria or requirements in specifications, award criteria, conditions for the performance of contracts, or, where relevant to the subject-matter, selection criteria, provided that they are linked to the subject-matter of the contract pursuant to Article 90, and comply with the principles of transparency, non-discrimination and proportionality.

4.The mere compliance with applicable labour and social law obligations established by Union law, national law, collective agreements or by the international social and labour law conventions listed in Annex II, shall not by itself be considered socially responsible public procurement.

Article 56​

Accessibility

1.For all procurement of goods, services and works which are intended for use by natural persons, whether the general public or staff of the public buyer, public buyers shall, except in duly justified cases, require their accessibility for persons with disabilities, and take account of design for all approaches. To that effect, public buyers shall include appropriate accessibility requirements in the specifications or conditions for the performance of contracts.

2.For the products and services referred to in Article 2 of Directive (EU) 2019/882, public buyers shall establish specifications, as far as accessibility criteria for persons with disabilities or design for all users are concerned, by reference to Annex I to that Directive.

Article 57​

Reserved contracts

1.Public buyers may reserve the participation in procedures for the award of public contracts, including for specific lots thereof, to organisations whose main aim is the social and professional integration of persons with disabilities or disadvantaged persons, provided that at least 30 % of the employees of those organisations or programmes are workers with disabilities or with disadvantages, including providing for such contracts to be performed in the context of supported employment contracts or sheltered employment programmes, provided that the labour rights of the persons with disabilities or with disadvantages are safeguarded.

2.Public buyers may reserve the participation in procedures for the award of public service contracts forming part of the social welfare system which are covered by the CPV codes listed in Annex VI, including for specific lots thereof, to organisations which fulfil all of the following conditions:

(a)the organisation is legally recognised as non-profit under national law of the Member State where the organisation was established;

(b)the organisation has as its main purpose the delivery of a public welfare service of general interest;

(c)the organisation’s decisions are not guided by purely commercial considerations, and any surplus generated from the performance of the contract is reinvested in delivering the public welfare services of general interest for which it is constituted.

Article 58​

Contracts for social, health and educational services

1.For public contracts having as subject-matter any of the services listed in Annex VI, public buyers may award contracts in accordance with the procedures provided for in national law, provided that the nature of the services makes it necessary for the public buyers to take into account the specificities of the services in question, and that the principles of transparency and equal treatment as well as the obligations in paragraph 2 are respected.

2.Public buyers awarding contracts pursuant to paragraph 1 of this Article shall take into account, through appropriate requirements in specifications, award criteria or conditions for the performance of contracts, the need to ensure the quality, continuity, accessibility for people with disabilities, affordability, availability and comprehensiveness of the services, and the involvement and empowerment of users, including disadvantaged and vulnerable persons, in order to safeguard their specific personal medical or social needs. In awarding such contracts, public buyers shall also take into account the need to ensure respect for the right to self-determination of persons with disabilities, as laid down in Article 19 of the United Nations Convention on the Rights of Persons with Disabilities.

3.Where a public buyer awards a contract pursuant to this Article, it shall publish a public summary of result pursuant to Article 110(4) of this Regulation no later than 20 days after the award.

Chapter 3

Public procurement of innovation

Article 59​

Innovation objectives in public procurement

Public buyers may take innovation objectives into consideration when procuring supplies, works or services that comprise, without being limited to, any or several of the following objectives:

(a)promoting the market deployment of the results from research and innovation within the Union and to encourage the participation of start-ups, scale-ups and SMEs in innovation in public procurement, thereby supporting the diffusion of innovation and the growth of innovative enterprises;

(b)fostering the growth of lead markets in Union strategic sectors, by encouraging the development and procurement of innovative solutions that contribute to environmental sustainability, social inclusion and sustainability, health protection, digital transformation and technological advancement including interoperability of and open-source solutions for digital systems and elements of public services;

(c)improving the cost-effectiveness of the public buyer’s purchases compared with existing or conventional alternatives, while maintaining or enhancing the quality, quantity, or impact of the solutions.

Article 60​

Public procurement of innovation

1.Public buyers shall classify their procurement as public procurement of innovation in the public summary of competition where the procurement has as its objective the purchase of an innovative solution. An innovative solution has one or more new characteristics that deliver better performance or added value compared with alternative solutions which are available on a large-scale commercial basis on the relevant market.

New characteristics of an innovative solution may include new or improved combinations of existing characteristics and new or improved ways of using existing characteristics, such as using existing characteristics in a new sector or a new context.

2.In any event, public buyers shall classify their purchases in public summaries as public procurement of innovation in both of the following cases:

(a)the award of a contract for a solution that was successfully developed in an innovation procedure pursuant to Article 45;

(b)the award of a contract in an open procedure pursuant to Articles 34 and 35, where a public buyer intends to purchase a solution after a pre-commercial procurement as defined in Article 6, point (13).

Article 61​

Techniques to pursue innovation objectives in public procurement

1.In order to pursue innovation objectives, public buyers may prepare and design any procurement procedure using one or more of the following techniques:

(a)seek, analyse and implement advice aimed at identifying the availability of innovative solutions in the market consultations;

(b)consider the purchase of open-source solutions or solutions with open-source elements;

(c)use only functional requirements and or, where that is not feasible, allow explicitly for variants;

(d)limit the selection criteria to what is strictly necessary and proportionate to the risks of the public contract and the capacities needed to perform it, and, where appropriate, without requirements on turnover and past performance;

(e)require a concept for innovation of the supplies, works or services as a qualitative award criterion, including the feasibility and scalability of that concept or its impact on the green, social or digital objectives set for the procurement;

(f)designate one or more specific lots for innovation and provide clear, precise and unambiguous conditions for any additional purchases based on the contract awarded in that lot, if the solution proves successful;

(g)combine multiple phases of a public works contract such as design, construction, operation, and maintenance into a single integrated contract;

(h)aggregate demand of innovative solutions and to allow for task distribution of testing and validation among public buyers;

(i)allow for experimentation, testing, validation, development, enhancement and reinvestment in the procurement procedure or contract implementation.

2.The techniques referred to in paragraph 1 may, as appropriate to the technique and the type of solution concerned, take the form of specifications, selection criteria, quality considerations when applying the best price-quality ratio method, or conditions for the performance of contracts.

Article 62​

Specification of intellectual property rights

1.For all procedures subject to this Regulation, the public buyer shall specify to its best effort in the procurement detail the intellectual property rights that it considers relevant for the execution of the public contract.

2.The information shall be sufficiently clear and precise to enable economic operators to assess their obligations relating thereto, determine the scope of the rights to be granted or transferred, and prepare their tenders accordingly.

3.The estimation of the value of the contract pursuant to Article 32 shall take into account the value of the distribution of intellectual property rights as relevant.

Article 63​

Granting licences

1.The economic operator shall grant to the public buyer appropriate, sufficient and non-exclusive licences to the extent and for the period necessary to enable it to use, receive, operate, maintain or otherwise benefit from the services, deliverables or other contractual outputs provided in the performance of the public contract.

The licences referred to in the first subparagraph shall cover both the following rights:

(a)any pre-existing intellectual property rights owned by, or licensed to, the economic operator;

(b)any intellectual property rights arising in the performance of the public contract.

2.Licences pursuant to paragraph 1 shall permit the public buyer, either directly or through contractors or service providers acting on its behalf, to use, reproduce, execute, display, adapt, configure, integrate, maintain, repair, support, upgrade and otherwise exploit such rights and the related deliverables to the extent necessary to ensure the continued use of the supplies, services or works for their intended purpose and the proper performance of the public contract.

Article 64​

Limits to transfer of ownership

1.Any pre-existing intellectual property, including software components, models, methods, platforms, or systems owned or controlled by the economic operator prior to or independently of the procurement shall remain the property of the economic operator and shall not be subject to ownership transfer obligations to the public buyer.

2.By way of derogation from paragraph 1, public buyers may require the ownership transfer of pre-existing intellectual property rights that are necessary for the performance, operation, and maintenance of the solutions, in particular in cases of critical infrastructure and where this is included in the procurement detail in a proportionate, transparent and non-discriminatory manner without distorting competition.

3.For intellectual property rights arising in connection with the performance of a public contract, public buyers shall specify, where relevant, the allocation of those rights between the public buyer and the economic operator in the procurement detail.

4.By way of derogation from paragraph 3 of this Article for public contracts subject to an innovation procedure pursuant to Articles 41 to 45, economic operators shall retain ownership of the intellectual property rights arising during the innovation procedure or in the performance of the respective public contract, unless justified by overriding reasons of the public interest clearly stated in the procurement detail. Such overriding reasons of public interest may relate inter alia to the need to prevent technological lock-in, or to protect the security or critical public services of the public buyer, a Member State or the Union, in particular as regards critical infrastructure.

Article 65​

Building information modelling

1.For the execution of public works contracts with an estimated value equal to or greater than EUR 25 000 000, public buyers shall require the use of building information modelling in the execution of the public works contracts.

2.‘Building Information Modelling’ means the methodologies of collaborative digital processes using open, interoperable formats with the purpose of creating, managing and sharing structured information about a public works contract throughout its lifecycle.

3.By way of derogation from paragraph 1, public buyers may do any of the following:

(a)request the use of Building Information Modelling only from certain contractors, or in certain lots, where such requirements would otherwise impose a disproportionate burden on the economic operators concerned and fully covering the project in Building Information Modelling is not necessary; or

(b)not request the use of Building Information Modelling or only request its use for certain parts of the solution or from certain contractors, where such requirements would otherwise present a risk for security or public safety.

4.The Commission is empowered to adopt delegated acts in accordance with Article 141 in order to amend this Regulation to lower the threshold set out in paragraph 1 where justified by an increased market uptake of Building Information Modelling.

Chapter 4

Security and resilience

Article 66​

Security considerations in public procurement

1.Public buyers shall take appropriate measures, in addition to measures required or imposed by virtue of other Union legislation, where relevant, at any stage of the procurement procedure, from planning and market consultation to contract award and execution, to ensure the protection of the security and public safety interests of the Union or one or more Member States for any public procurement procedure identified as presenting or including a risk for security or public safety. This Chapter is without prejudice to other requirements under relevant Union legislation.

2.Security and public safety interests of the Union or a Member State relevant for a given contract may include, but are not limited to, the following:

(a)protection of critical infrastructure, strategic dual-use infrastructure, identified by Member States in accordance with [Article 33 of the Military Mobility Regulation], especially for those located on a military mobility corridor, critical supply chains, critical technologies or essential services, resilience against physical, cyber, or hybrid threats, and prevention across and protection against risks of any disruption including due to harmful strategic dependencies on third-country suppliers,

(b)prevention of espionage, sabotage or technology leakage;

(c)crisis preparedness, including business continuity and contingency planning for disruptions in case of natural disasters or geopolitical instability, pandemics or cyberattacks;

(d)the prevention of other harmful interference, including third-country and third-country state-controlled influence;

(e)the cybersecurity of systems, networks, and data processed;

(f)the protection of classified information, sensitive data, research, or intellectual property from unauthorised access or transfer;

(g)ensuring public health, including crisis-prepared and self-sufficient health services; or

(h)resilience to climate-related disruptions.

3.Risks for security or public safety in a public contract may arise in particular from:

(a)the subject-matter of the contract, such as:

(i) sensitivity of the assets involved or to be developed in its implementation;

(ii) access to and handling of sensitive data;

(iii) critical dependency or risk of critical dependency on a limited number of third-country suppliers, goods, services or technologies;

(iv) risks associated with access to critical infrastructure, strategic dual-use infrastructure identified by Member States in accordance with [Article 33 of the Military Mobility Regulation], research facilities, IT systems, or critical materials;

(v) dual-use nature of the technologies, works, goods or services procured;

(vi) the nature of the public interests attached to it and the potential consequences of a malfunction or malperformance, such as harm to public safety, national security, economic stability, health security or fundamental rights;

(b)the characteristics of economic operators, such as:

(i) ownership, control, or financing structure bearing risks of undue interference or influence over it;

(ii) security track record, including past breaches, non-compliance with security standards, or exclusion from other procurement procedures on security grounds;

(iii) capacity to meet applicable security clearance, personnel vetting, or information security requirements;

(iv) exposure to third-country legislation that may compel disclosure of sensitive information or interference with contract performance.

4.Public buyers shall, to the extent possible specify in the procurement detail in a clear, sufficiently detailed manner appropriate measures that are proportionate to the risks referred to in paragraph 3 and non-discriminatory. Such measures may be implemented, in particular through:

(a)specifications, such as mandatory security standards, certifications, personnel vetting or security clearance obligations, or risk management and assurance requirements;

(b)award criteria, such as evaluating bidders’ security management systems, security compliance standards, incident response capabilities, supply chain security;

(c)conditions for the performance of contracts, such as enabling security oversight of suppliers through audits, inspections, or documentation reviews and implementation of corrective measures in case of breaches, including provisions on subcontracting, ownership change notification, and the protection of classified or sensitive information;

(d)selection criteria, where justified, such as possessing security clearances or otherwise requiring bidders to establish that they do not present risks for security or public safety pursuant to point (b) of paragraph 3. This shall be without prejudice to Article 26;

(e)by derogation from Article 34(2), invite to submit a tender in the procedure referred to in Article 34 only those economic operators who meet specific objective and non-discriminatory security-related requirements, provided that the public buyer has indicated its intention to do so, and the security-related requirements it intends to apply, in the public summary of competition for the procurement in question.

Public buyers may also indicate in the procurement detail which security measures they intend to implement where risks for security or public safety arise during the procurement procedure.

5.Public buyers shall at any time during the procedure exclude an economic operator from participation in a procurement procedure where the operator has been identified as a high-risk supplier pursuant to Regulation (EU) XXXX/XXX [CSA2 proposal] in relation to the provision of ICT components or components that include ICT components to be used in key ICT assets as identified in accordance with Article […] of that Regulation.

6.Where there is evidence that disparities in measures affect the functioning of the internal market, the Commission is empowered to adopt delegated acts in accordance with Article 141 in order to supplement this Regulation by establishing mandatory technical specifications, selection criteria, award criteria or contract performance clauses, for specific categories of goods, services or works where such elements address an identified specific security and public safety interest of the Union.

Article 67​

Security measures during contract implementation

1.Without prejudice to contract law of the Member States, the public buyer may terminate a contract in whole or in part where it determines that the contractor has failed to comply with measures or obligations aiming at preventing or mitigating risks for security or public safety, or a risk for security or public safety has materialised or is likely to materialise. Under the same conditions, they may exclude certain economic operators during contract implementation.

2.Termination and exclusion pursuant to this Article shall be proportionate in relation to the risk for security or public safety. Before terminating a contract or excluding an economic operator, the public buyer shall conduct a written assessment. The public buyer shall take into account in particular:

(a)the severity of the risk for security or public safety;

(b)the impact of termination on the delivery of public services;

(c)alternative mitigation measures such as contractual amendments or enhanced monitoring.

3.Unless justified by the severity of the risks involved, the imminence of the threat or where notification may aggravate the risk, the public buyer shall notify the contractor in writing of its intent to terminate or exclude, specifying:

(a)the grounds for termination or exclusion;

(b)the facts and evidence supporting the decision, with the exception of classified information;

(c)the proposed date of termination or exclusion.

4.The contractor shall have an appropriate time, determined by the public buyer, which shall not be shorter than at least ten calendar days, to submit observations on the grounds for termination or exclusion and propose remedial actions. The public buyer may shorten the deadline in case of emergency.

5.The contractor shall cooperate with the public buyer to secure or transfer data, documents, or assets related to the contract and ensure continuity of critical services until the termination takes effect.

Article 68​

Cybersecurity

1.Where products with digital elements fall within the scope of Regulation (EU) 2024/2847, Member States shall ensure that compliance with the essential cybersecurity requirements set out in Annex I to that Regulation, including the manufacturers’ ability to handle vulnerabilities effectively are taken into consideration in the procurement process.

2.This Regulation shall not prevent Member States from subjecting products with digital elements to additional cybersecurity requirements for the procurement or use of those products for specific purposes, including where those products are procured or used for national security or defence purposes, provided that such requirements are consistent with Member States’ obligations laid down in Union law and that they are necessary and proportionate for the achievement of those purposes.

3.Without prejudice to paragraph 1, and without prejudice to Directive (EU) 2022/2555 64 where applicable, public buyers may specify in the procurement detail requirements relating to cybersecurity for the works, supplies or services procured. To that end, they may include specifications, selection criteria, award criteria or conditions for the performance of contracts. Such requirements shall be linked to the subject-matter of the contract and comply with the principles of transparency, non-discrimination and proportionality.

Article 69​

Resilience and security of supply for critical entities or infrastructures

1.Where a public contract is intended to be performed by a public buyer that has been identified by the competent Member State as a critical entity in accordance with Article 6 of Directive (EU) 2022/2557 65 , the public buyer shall, where relevant, include in the procurement detail requirements relating to security of supply, economic, physical and geopolitical resilience, as well as transparency and sustainability of the supply chains for the works, supplies or services procured. Where appropriate, such requirements shall be based on the risks identified through the obligation for risk assessment under

Article 12 of Directive (EU) 2022/2557

.

2.Requirements referred to in paragraph 1 may be set out in specifications, selection criteria, award criteria or conditions for the performance of contracts, shall be linked to the subject-matter of the contract and comply with the principles of transparency, non-discrimination and proportionality.

3.Public buyers may, inter alia, require that the tender contains, or that the contract provides for, one or more of the following elements:

(a)diversification of the supply chain, including recourse to a multi-source approach, geographic diversification of production, or limitation of dependency on a single third country or single economic operator from a third country;

(b)security of supply and continuity, including:

(i) certification or documentation demonstrating that the organisation and location of the tenderer's supply chain will allow it to comply with the security-of-supply requirements set out in the contract documents;

(ii) a commitment to ensure that possible changes in the supply chain during the execution of the contract will not adversely affect compliance with those requirements;

(iii) stockpiling obligations within the Union;

(iv) business continuity and disaster recovery plans;

(v) commitment from the tenderer to provide, according to terms and conditions to be agreed, the specific means necessary for the continued production or provision of spare parts, components, assemblies, software updates or testing equipment in the event that it is no longer able to ensure the supply itself;

(c)crisis preparedness and surge capacity, including:

(i) a commitment from the tenderer to establish and/or maintain the capacity required, including upscaling capabilities, to meet additional needs of the public buyer as a result of a crisis, according to terms and conditions to be agreed;

(ii) crisis preparedness plans, mandatory training of management and key personnel, and incident notification to the public buyer;

(d)supply chain transparency and traceability where proportionate to the importance of the contract and the risks involved, including the quality of supply chain management and contingency plans provided by the tenderers;

(e)obligation for the service providers to indicate any potential double-booking of capability or services to all concerned public buyers, prior to accepting conflicting orders;

(f)flexible participation clause, allowing other public buyers to join as contracting parties without changing the material or quantitative scope of the contract.

4.The Commission is empowered to adopt delegated acts in accordance with Article 141 establishing mandatory specifications, selection criteria, award criteria or conditions for the performance of contracts relating to resilience, security of supply, and supply chain transparency, for specific categories of works, supplies or services where a critical dependency, a systemic risk or a critical-infrastructure dimension has been identified.

5.This Article is without prejudice to security of supply requirements under relevant Union legislation, in particular to the requirements under

Regulation (EU) 2019/1242

66 and

Regulation (EU) 2024/1735

.

Chapter 5

European preference

Article 70​

Covered economic operators, goods, services or works

1.An economic operator shall be considered ‘covered’ for the purposes of this Regulation when it has its origin pursuant to Article 74(1) in:

(a)a third country that is party to the GPA, provided that the procurement in question falls within the scope of the Union's commitments under that agreement, taking into account the applicable Annexes;

(b)a third country that has concluded a bilateral or multilateral trade agreement with the Union, under the conditions laid down in that agreement, provided that the procurement in question falls within the scope of the Union’s public procurement commitments in that agreement;

(c)a third country that has concluded with the Union an agreement establishing a customs union, under the conditions laid down in that agreement, provided that the procurement in question falls within the scope of the Union’s public procurement commitments in that agreement.

2.Goods, services or works shall be considered ‘covered’ for the purposes of this Regulation when they have their origin pursuant to Article 74(2), (3) and (4) in:

(a)a third country that is party to the GPA, provided that the procurement in question falls within the scope of the Union's commitments under that agreement, taking into account the applicable Annexes;

(b)a third country that has concluded a bilateral or multilateral trade agreement with the Union, under the conditions laid down in that agreement, provided that the procurement in question falls within the scope of the Union’s public procurement commitments in that agreement;

(c)a third country that has concluded with the Union an agreement establishing a customs union, under the conditions laid down in that agreement, provided that the procurement in question falls within the scope of the Union’s public procurement commitments in that agreement.

Article 71​

Determining the scope of coverage for third-country covered economic operators, goods, services or works

1.The Commission shall establish and make available free of charge a publicly accessible online tool, which sets out, in a comprehensive and up-to-date manner, the Union’s public procurement commitments in international agreements referred to in Article 70.

2.Public buyers shall determine, for the purposes of a given procurement procedure, which economic operators, goods, services and works are covered in accordance with Article 70, on the basis of the applicable international agreements as reflected in the online tool referred to in paragraph 1 for the parameters entered, including the public buyer concerned, the subject-matter and the estimated value of the contract in relation to the applicable thresholds.

3.The Commission shall keep the online tool updated to reflect fully and at any given time the Union’s commitments in the field of public procurement, including:

(a)Union acts, in particular Commission decisions to exclude in whole or in part, a third country’s economic operators, goods, services or works from public procurement procedures in the Union, in accordance with the applicable EU legislation;

(b)Union measures with regard to covered economic operators, goods, services or works, in accordance with Article 72.

(c)Union measures with regard to non-covered economic operators, goods, services or works, in accordance with Article 75.

Article 72​

Restrictions on covered economic operators, goods, services or works

1.The Commission is empowered to adopt delegated acts in accordance with Article 141 to amend Article 70 by establishing that covered economic operators from certain third countries, and/or all or certain covered goods, services, or works from certain third countries, shall not be considered as covered where:

(a)the Commission has established, on the basis of a factual market access analysis, that their country of origin has failed to provide national treatment related to Union economic operators, goods, services or works contrary to its commitments on public procurement in an international agreement with the Union;

(b)such exclusion is justified to avoid dependencies or any other developments that may threaten the security of supply in the Union of the relevant goods or services; or

(c)such restriction is justified under any other exception under the applicable agreement, in particular relating to the protection of economic security interests.

2.Member States and interested parties may submit to the Commission at any time indications of the existence of one of the situations referred to in paragraph 1.

Article 73​

European preference requirements

1.Public buyers may:

(a)restrict participation only to economic operators and subcontractors originating in the Union and those that are covered, or, in the case of groups of economic operators, or any other form of joint participation, to groups which are either composed solely of Union or covered economic operators or to groups where the majority, but not all members of the group are Union or covered economic operators;

(b)reject a tender in the course of a procedure where it is not submitted by Union or covered economic operators or groups, including their subcontractors, thereof as referred to in point (a).

2.Public buyers may do one or more of the following:

(a)require that the goods, services and works offered originate in the Union or be covered goods, services or works, either fully, or to a certain degree, or for specific components that participate in the competitive relationship with the procured goods, services or works;

(b)solely for the purposes of evaluation and ranking of tenders in the award phase without affecting the price payable under the contract, apply a percentage reduction to the price of the tender or the allocation of additional award points, where:

(i) the tender is submitted only by Union or covered economic operators and subcontractors or, in the case of groups of economic operators, or any other form of joint participation, to groups composed solely of such operators or to groups where most, but not all members of the group are Union or covered economic operators; or

(ii) the tender contains a higher proportion of Union or covered goods, services or works, in comparison with the other submitted tenders;

(c)reject a tender where the value of Union or covered goods, services or works contained in the tender is below 50 % of the total estimated value of the tender.

3.The measures referred to in paragraph 2 may only be applied if they have been clearly stated by the public buyer in the competition public summary. The competition public summary shall specify the goods, services or works required to be of Union or covered origin, well as the percentage of reduction or award points allocation, together with the corresponding value that the public buyer will apply for the evaluation and ranking of tenders in the award phase.

4.Public buyers shall notify the national coordinating authority designated pursuant to Article 138 of any indications of circumvention of measures taken pursuant to this Article. The national coordinating authority shall inform the Commission of any systemic flaws identified on the basis of theses notifications.

Article 74​

Origin

1.The origin of economic operators or subcontractors shall be determined in accordance with Article 3(1) of Regulation (EU) 2022/1031 67 .

2.The origin of goods shall be determined in accordance with Title II, Chapter 2, Section 1 of Regulation (EU) No 952/2013 68 .

3.The origin of services shall be determined on the basis of the origin of the economic operator or subcontractor providing the service.

4.The overall origin of works shall be determined pursuant to the origin of the economic operator, or subcontractor, providing it. For the European preference requirements, buyers may determine separately the origin of the goods used as part of the works pursuant to paragraph 2.

Article 75​

Union restrictions for third-country non-covered economic operators, goods, services and works

The Commission is empowered to adopt delegated acts, in accordance with Article 141, to amend Article 73 to require public buyers to apply any of the European preference requirements set out in Article 73 in relation to economic operators, and subcontractors, goods services and works that are not covered in accordance with Article 70 where this is in the interest of the Union.

Article 76​

Exceptions

Public buyers may decide not to apply European preference requirements, including those in the delegated acts adopted pursuant to Article 75, where:

(a)the contracts in question are governed by Article 48;

(b)the required products or services cannot be supplied by a Union or covered economic operator, and no reasonable alternative or substitute exists;

(c)no suitable tenders or requests to participate have been submitted, including in response to a similar public procurement procedure launched by the same public buyer in the two years preceding the launch of the planned new procurement procedure; or

(d)the application of such European preference requirements would entail that a public buyer would have to acquire goods, services or works at disproportionate costs.

Article 77​

European preference in sectoral Union legislation

Where Union legislation contains provisions, restricting or setting conditions for participation in public procurement procedures or giving preference depending on the origin of economic operators, goods, services or works, the rules set out in this Chapter shall apply, unless regulated otherwise in the Union legislation in question.