Title III – Horizontal provisions
Chapter 1
Excluded and mixed contracts
Article 78
Defence and security contracts
1.This Regulation does not apply to public contracts the subject-matter of which falls within the scope of Directive 2009/81/EC, including contracts below the threshold set out in Article 8 of that Directive and contracts to which that Directive does not apply pursuant to Article 12 or 13 thereof.
2.This Regulation does not apply to public contracts not exempted in accordance with paragraph 1, to the extent that the protection of the essential security interests of a Member State cannot be guaranteed by less intrusive measures, in particular the measures set out in Title II, Chapter 4 of this Part, or requirements aimed at protecting the confidential nature of information, which the public buyer makes available in a contract award procedure as provided for in this Regulation.
3.Furthermore, in conformity with Article 346(1), point (a), of the Treaty, this Regulation does not apply to public contracts that are not otherwise exempted pursuant to paragraph 1 of this Article to the extent that the application of this Regulation would oblige a Member State to supply information the disclosure of which it considers contrary to its essential security interests.
4.Where the procurement and performance of the public contract are declared to be secret or must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in a Member State, this Regulation does not apply provided that the Member State has determined that the essential security interests concerned cannot be guaranteed by less intrusive measures, such as those referred to in paragraph 2.
Article 79
R&D procurement excluded
This Regulation does not apply to procurement for public contracts exclusively containing research and development services as defined in Article 6, point (16).
The first sentence does not apply to procurement for public contracts containing , in addition to research and development services as defined in Article 6, point (16), other elements falling within the scope of this Regulation, in particular where testing and validation is part of the innovation procedure pursuant to Title I, Chapter 4 of this Part, or where research and development is integrated as an innovation technique in public procurement falling within the scope of this Regulation pursuant to Article 61.
Article 80
Contracts awarded to controlled entities
1.This Regulation does not apply to public contracts awarded by public buyers to a legal person governed by private or public law, provided that all of the following conditions are fulfilled at the time of the award:
(a)the public buyer exercises control over the legal person concerned which is similar to that which it exercises over its own departments meaning it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person; such control may also be exercised by another legal person, which is itself controlled in the same way by the public buyer;
(b)more than 80 % of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling public buyer or by other legal persons controlled by that public buyer; and
(c)there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.
2.Paragraph 1 also applies where a controlled legal person which is a public buyer awards a contract to its controlling public buyer, or to another legal person controlled by the same public buyer, provided that there is no direct private capital participation in the legal person being awarded the public contract.
3.This Regulation does not apply where a public buyer, which does not exercise over a legal person governed by private or public law control within the meaning of paragraph 1, awards a public contract to that legal person where all of the following conditions are fulfilled at the time of the award:
(a)the public buyer exercises jointly with other public buyers a control over that legal person which is similar to that which they exercise over their own departments, meaning:
(i) the decision-making bodies of the controlled legal person are composed of representatives of all participating public buyers whereas individual representatives may represent several or all of the participating public buyers;
(ii) those public buyers are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person;
(iii) the controlled legal person does not pursue any interests which are contrary to those of the controlling public buyers;
(b)more than 80 % of the activities of that legal person are carried out in their performance of tasks entrusted to it by the controlling public buyers or by other legal persons controlled by the same public buyers; and
(c)there is no direct private capital participation in the controlled legal person with the exception of non-controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.
4.For the percentage of activities referred to in paragraph 1, first subparagraph, point (b), and paragraph 3, first subparagraph, point (b), the average total turnover, or, where turnover does not appropriately reflect the volume of activities carried out, another objective and verifiable quantitative indicator of those activities such as costs incurred or overall income obtained, for the three years preceding the award of the contract shall be taken into consideration.
Where, by reason of the date on which the relevant legal person or public buyer was created or commenced activities or by reason of a reorganisation of its activities, the turnover, or alternative activity based measures such as costs, are either not available for the preceding three years or no longer relevant, it shall be sufficient to show that the measurement of activity is credible, particularly by means of business projections.
5.Member States may maintain or adopt stricter national provisions on the contracts excluded pursuant to this Article.
6.The exclusions in this Article shall not apply if the public contract shall be subcontracted in its entirety without a procurement procedure.
Article 81
Public-public cooperation
1.This Regulation does not apply to contracts concluded exclusively between two or more contracting authorities, including where they carry out activities pursuant to Article 12 to 18, provided that, at the time of the award:
(a)the resulting contract establishes or implements a cooperative relationship between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common;
(b)the implementation of such cooperation is governed solely by considerations relating to the public interest;
(c)the participating contracting authorities perform on the open market less than 20 % of the activities concerned by the cooperation.
2.A cooperative relationship pursuant to paragraph 1, point (a), may cover all types of activities in any legal form or temporary structure or agreement but requires genuine collaboration by all parties through effective contributions which may be identical or complimentary or different in size or nature but shall not be limited to cost-sharing.
3.Article 80(4) shall apply in relation to the percentage of activities referred to in paragraph 1, point (c) of this Article.
4.The exclusion in this Article shall not apply if the solutions provided based on the resulting contract shall be subcontracted in their entirety without a procurement procedure.
Article 82
Local and regional administrative cooperation
1.This Regulation does not apply where regional or local authorities entrust each other with the performance of tasks incumbent on them, or use each other’s own resources for that purpose, including in exchange for remuneration only, provided that they perform the task by own resources. For the purposes of this Article, own resources do not include goods not yet acquired or services that are being provided to one of the participating local or regional authorities by economic operators or legal persons entrusted pursuant to Article 80(1), (2) and (3).
2.For the purpose of this Article, ‘regional authorities’ includes authorities listed non-exhaustively in NUTS 1 and NUTS 2, as referred to in Regulation (EC) No 1059/2003 69 , while ‘local authorities’ includes all authorities of the administrative units falling under NUTS 3 and smaller administrative units, as referred to in that Regulation.
Article 83
Contracts awarded to affiliated undertakings
1.This Regulation does not apply where contracting entities award a public contract by either of the following:
(a)by a contracting entity to an affiliated undertaking;
(b)by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities described in Article 12 to 18, to an undertaking which is affiliated with one of those contracting entities.
2.Paragraph 1 shall apply provided that at least 80 % of the average total turnover of the affiliated undertaking over the preceding three years derives from the provision of services, supplies or works to the contracting entity or other undertakings with which it is affiliated. Where, by reason of the date on which an affiliated undertaking was created or commenced activities, the turnover is not available for the preceding three years, it shall be sufficient for that undertaking to show that the turnover is credible, in particular by means of business projections.
Where more than one undertaking affiliated with the contracting entity with which they form a corporate group provides the same or similar services, supplies or works, the percentages shall be calculated taking into account the total turnover deriving respectively from the provision of services, supplies or works by those affiliated undertakings.
3.For the purposes of this Article, ‘affiliated undertaking’ means any undertaking which meets either of the following requirements:
(a)the annual accounts of which are consolidated with those of the contracting entity in accordance with the requirements set out in Directive 2013/34/EU 70 ;
(b)in the case of entities, which are not subject to Directive 2013/34/EU, any undertakings that satisfy one of the following conditions:
(i) they are directly or indirectly, subject to a dominant influence by the contracting entity;
(ii) they exercise a dominant influence over the contracting entity;
(iii) together with the contracting entity, they are subject to the dominant influence of another undertaking by virtue of ownership, financial participation, or the rules which govern it.
4.For the purposes of this Article, ‘dominant influence’ shall have the same meaning as that set out in Article 8(2).
The Commission may request evidence which demonstrates that the relationship between the undertaking to which the contract is awarded and the contracting entity complies with the requirements set out in paragraphs 1, 2 and 3.
Article 84
Contracts awarded in a joint venture
1.This Regulation does not apply to public contracts awarded by:
(a)a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities described in Article 12 to 18, to one of those contracting entities, provided that the joint venture has been set up in order to carry out the activity concerned over a period of at least three years and that the instrument setting up the joint venture provides that the contracting entities, which form it, will be part thereof for at least the same period;
(b)a contracting entity which forms part of a joint venture referred to in point (a) to that joint venture.
2.The Commission may request evidence which demonstrates that the relationship between the joint venture to which the contracts are awarded and the contracting entity complies with the requirements set out in paragraphs 1.
Article 85
Other excluded public contracts
1.This Regulation does not apply to:
(a)public service contracts awarded by a public buyer to another public buyer or to an association of public buyers on the basis of an exclusive right which they enjoy pursuant to a law, regulation, or published administrative provision which is compatible with the Treaty;
(b)public contracts for the principal purpose of permitting the public buyers to provide or exploit public electronic communications networks or to provide to the public one or more electronic communications services; for the purposes of this Article, ‘public electronic communications network’ and ‘electronic communications service’ shall have the same meaning as in Directive 2018/1972 71 ;
(c)public contracts which have to be organised in accordance with procurement procedures other than those laid down in this Regulation where such procedures have been established:
(i) by an international agreement in accordance with the Treaties and concern a common project implementation which requires common purchasing;
(ii) by an international organisation, or
(iii) by an international financing institution fully financing a concerned project; where the concerned project is co-financed for the most part by such institution, the parties shall agree which procurement rules shall be applicable;
(d)the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon;
(e)the acquisition, development, production or co-production of programme material intended for media services within the meaning of Regulation (EU) 2024/1083 72 ;
(f)legal services which require authority to practice law, such as litigation or formal representation in court proceedings or are related to the exercise of public office, including document certification and authentication services which must be provided by notaries;
(g)arbitration and conciliation services;
(h)financial services in connection with the provision of investment services or the performance of investment activities within the meaning of Directive 2014/65/EU 73 and Regulation (EU) No 600/2014 74 , the administration of benchmarks within the meaning of Regulation (EU) 2016/1011 75 , central bank services and operations conducted with the European Financial Stability Facility and the European Stability Mechanism;
(i)valuation services referred to in
Articles 36
and
74 of Directive 2014/59/EU 76
;
(j)grants, financing, investments or loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments;
(k)civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transport ambulance services;
(l)political campaign services covered by CPV codes 79341400-0, 92111230-3 and 92111240-6, when awarded by a political party in the context of an election campaign;
(m)employment contracts;
(n)contracts for public passenger services by rail or metro within the meaning of Regulation (EC) No 1370/2007.
2.In addition to the provisions of paragraph 1, this Regulation does not apply to the following contracts which concern activities in the field of utilities pursuant to Part II, Title I, Chapter 2:
(a)contracts for the purchase of water if awarded by contracting entities engaged in one or both of the activities relating to drinking water referred to in Article 14;
(b)contracts awarded by contracting entities themselves being active in the energy sector by being engaged in an activity referred to in Article 12(1), 13(1) or 18 for the supply of energy or of fuels for the production of energy;
(c)contracts awarded by contracting entities for the purposes of resale or lease to third parties provided that the contracting entity enjoys no special or exclusive right to sell or lease the subject of such contracts, and other entities are free to sell or lease it under the same conditions as the contracting entity;
(d)contracts awarded by contracting entities for purposes other than the pursuit of their activities as described in Article 12 to 18 or for the pursuit of such activities in a third country in conditions not involving the physical use of a network or geographical area within the Union and to design contests organised for such purposes.
Article 86
Mixed procurement involving defence or security aspects
1.This Article applies to mixed contracts which have as their subject-matter procurement covered by this Regulation as well as procurement covered by Article 346 of the Treaty or
Directive 2009/81/EC
.
2.Where the different parts of a given public contract are objectively separable, public buyers may choose to award separate contracts for the separate parts or to award a single contract.
3.Where public buyers choose to award separate contracts for separate parts, the decision regarding the applicable legal regime to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned.
4.Where public buyers choose to award a single contract, the following criteria shall apply to determine the applicable legal regime:
(a)where part of a given contract is covered by
Article 346 of the Treaty
, the contract may be awarded without applying this Regulation, provided that the award of a single contract is justified for objective reasons;
(b)where part of a given contract is covered by
Directive 2009/81/EC
the contract may be awarded in accordance with that Directive, provided that the award of a single contract is justified for objective reasons, subject to the thresholds and exclusions for which that Directive provides.
5.The decision to award a single contract shall not, however, be taken for the purpose of excluding contracts from the application of either this Regulation or Directive 2009/81/EC.
6.Paragraph 2, third subparagraph, point (a) applies to mixed contracts to which both point (a) and point (b) of that subparagraph could otherwise apply.
7.Where the different parts of a given contract are objectively not separable, the contract may be awarded without applying this Regulation where it includes elements to which
Article 346 of the Treaty
applies; otherwise it may be awarded in accordance with
Directive 2009/81/EC
.
Article 87
Other mixed contracts
1.Contracts which have as their subject-matter two or more types of procurement, namely works, services or supplies, or which partially pursue an activity in the field of utilities pursuant to Part II, Title I, Chapter 2, shall be awarded in accordance with the provisions applicable to the type of procurement that characterises the main subject of the contract in question.
2.In the case of mixed contracts consisting partly of social, health and educational services within the meaning of Article 58 and partly of other services, or in the case of mixed contracts consisting partly of such services and partly of supplies, the main subject shall be determined in accordance with which of the estimated values of the respective services or supplies is the highest.
3.This Regulation applies to contracts which have as their subject-matter procurement covered by this Regulation as well as procurement not covered by this Regulation, irrespective of the main subject-matter or of the value of the parts that would otherwise fall under a different legal regime, unless otherwise provided in Article 86.
Chapter 2
Subject-matter of the contract and means of proof
Article 88
Specifications
1.Public buyers shall, as part of the procurement detail, set out specifications defining the characteristics of the works, supplies or services that are subject of the procurement. Specifications shall be set out in objective, clear and measurable terms, and formulated in a way that allows interested economic operators to identify the subject-matter of the contract and public buyers to assess alignment of tenders with the specifications.
2.The characteristics referred to in paragraph 1 of this Article, may, provided that they are linked to the subject-matter of the contract pursuant to Article 90, relate to methods or specific processes of production or to strategic aspects as set out in Title II of this Part.
3.The specifications shall describe the characteristics of the solution to be procured in terms of functional requirements. ‘Functional requirement’ means a requirement that describes the performance, desired function, capability, outcome or result that a work, product or service must achieve, without referring to specific technical means, design, or methods by which functions or outcomes are to be achieved.
4.Public buyers may derogate from paragraph 3, where standards are mandatory by Union law or where characteristics cannot be sufficiently or appropriately described in functional requirements. In the latter case, public buyers may formulate requirements in specifications in particular by technical prescriptions of the works or definitions of the characteristics of the supplies or services, or in any of the following ways by reference to, in order of preference:
(a) harmonised standards, as well as standards and standardisation deliverables the references of which have been published for the purpose of this paragraph, in the Official Journal of the European Union or by any other means as provided in accordance with Union legislation and common specifications, understood as a technical specification other than a standard and adopted by the Commission, and the conformity with which provides for a presumption of conformity with the requirements set out in the relevant Union legislation;
(b)to European standards as defined in Article 2 of Regulation (EU) No 1025/2012, including national standards transposing European standards;
(c)European Assessment Documents;
(d)international standards;
(e)other standardisation deliverables established by a European standardisation organisation as defined in Regulation (EU) No 1025/2012;
(f)in the absence of all the ways referred to in points (a) to (e), specifications may be formulated by reference to national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the supplies; each reference shall be accompanied by the words ‘or equivalent’.
5.Specifications shall not refer to a specific make or source, or a particular process which characterises the products or services provided by one specific economic operator, or to trademarks, patents, types or a specific origin or production, having the effect of favouring or eliminating certain undertakings or products.
6.The reference referred to in paragraph 5 shall only be allowed on an exceptional basis, where a minimum level of precision pursuant to paragraphs 1, 2 and 3 is otherwise not possible. Such reference shall be accompanied by the words ‘or equivalent’.
This paragraph shall apply without prejudice to European preference requirements in this Regulation or other Union legislation.
Where a public buyer uses the option of referring to the standards or specifications referred to in paragraph 4, it shall not reject a tender on the grounds that the solutions offered do not comply with the standards or specifications, to which it has referred, as long as the tenderer proves in its tender that the solutions proposed satisfy the requirements in a manner equivalent to the requirements defined in the specifications. The tender may provide the proof by any appropriate means, including the means of proof referred to in Article 92.
Article 89
Variants
1.Where public buyers do not formulate specifications solely in the form of functional requirements pursuant to Article 88(3), they shall consider whether to allow variants.
For the purposes of this Regulation, ‘variant’ means a tender that partially deviates from specifications set out in the procurement detail offering an alternative solution to meet the public buyer’s needs.
2.Public buyers shall indicate in the procurement detail whether or not they allow variants, and if not, the main reasons for that decision. Public buyers shall specify any minimum requirements that variants must satisfy, provided that they do not unnecessarily restrict the ability of economic operators to propose alternative solutions capable of meeting the buyer’s needs and objectives. Variants shall be linked to the subject-matter of the contract pursuant to Article 90 and evaluated on the basis of the same award criteria as non-variant tenders.
Article 90
Link to the subject-matter
1.Selection criteria, award criteria, specifications, and the conditions for the performance of contracts shall be linked to the subject-matter of the contract.
Such a link shall be considered to subsist where the condition, requirement or criterion in question relates to the works, supplies or services to be provided under the contract at any stage of their life-cycle.
2.The link to the subject-matter may be either direct, that is to say the condition, requirement or criterion in question is intrinsically related to the material substance of the subject-matter of the contract, or indirect.
3.A condition, requirement or criterion shall be considered to be indirectly linked to the subject-matter of the contract, where, without being part of the material substance of the works, services or supplies in question, it specifically impacts those works, services or supplies as regards their preparation, production or any other stage of their life-cycle to the extent covered by the contract, including the working conditions of the workers involved in any of those stages of the life-cycle and responsible sourcing and supply chain transparency for the product subject to the procurement in question.
Article 91
Labels
1.Where public buyers intend to purchase solutions with specific environmental, social or other characteristics, they may, in the specifications, the award criteria or the conditions for the performance of contracts, require a specific label as proof that the works, services and products correspond to the required characteristics, provided that all of the following conditions are fulfilled:
(a)the label requirements only concern criteria which are linked to the subject-matter of the contract and are appropriate to define characteristics of the solutions that are the subject-matter of the contract;
(b)the label requirements are based on objectively verifiable and non-discriminatory criteria;
(c)the labels are established in an open and transparent procedure in which all relevant stakeholders, including government bodies, consumers, social partners, manufacturers, distributors and non-governmental organisations, may participate;
(d)the labels are accessible to all interested parties;
(e)the label requirements are set by a third party over which the economic operator applying for the label cannot exercise a decisive influence.
In addition to the conditions set out in the first subparagraph and without prejudice to requirements set out in other Union legislation, where public buyers require an ecolabel, the ecolabel shall be the EU Ecolabel, provided that the works, products or services in question are covered by EU Ecolabel criteria adopted pursuant to Regulation (EC) No 66/2010 77 . In the absence of EU Ecolabel criteria for the purchased works, products or services, the required ecolabel shall be a third party-verified ecolabel based on a life-cycle perspective compliant with the first subparagraph.
Where public buyers do not require the works, services and products to meet all the label requirements set out in the first and second subparagraphs, they shall indicate which label requirements are to be met.
2.Public buyers that require a specific label shall accept all other equivalent labels that confirm that the works, products or services meet the required characteristics.
3.Where an economic operator demonstrates that it had no possibility of obtaining the specific label indicated by the public buyer or an equivalent label referred to in paragraph 2 within the relevant time limits for reasons beyond its control, the public buyer shall accept other appropriate means of proof, which may include a technical dossier from the manufacturer, provided that the economic operator concerned proves that the work, service or supply to be provided by it fulfil the requirements of the specific label or the specific requirements indicated by the public buyer.
Where a label fulfils the conditions set out in paragraph 1, points (b), (c), (d) and (e), but also sets out requirements not linked to the subject-matter of the contract, public buyers shall not require the economic operator to provide the label but may define the specifications by reference to those of the detailed specifications of that label, or, where necessary, parts thereof, that are linked to the subject-matter of the contract and are appropriate to define characteristics of that subject-matter.
Article 92
Means of proof for product requirements
1.Public buyers may require that economic operators provide a declaration of conformity or a declaration of performance and conformity of a product through the digital product passport pursuant to Regulation (EU) 2024/1781 or, where this does not yet exist, other equivalent electronic means as means of proof of conformity or compliance with requirements or criteria set out in the specifications, the award criteria or the conditions for the performance of contracts.
2.Public buyers may require a test report from a notified body, a technical assessment body, a conformity assessment body or a certificate issued by such a body as means of proof of conformity with the requirements or criteria set out in the specifications, the award criteria or the conditions for the performance of contracts.
Where public buyers require the submission of certificates drawn up by a specific notified body, a technical assessment body or conformity assessment body, certificates from other equivalent notified bodies, technical assessment bodies or conformity assessment bodies shall also be accepted by the public buyers, including those established in other Member States than the one of the public buyer.
For the purpose of this paragraph, a conformity assessment body shall be a body that performs conformity assessment activities including calibration, testing, certification and inspection accredited in accordance with
Regulation (EC) No 765/2008 78 of the European Parliament and of the Council
.
3.Public buyers may accept other appropriate means of proof instead of those referred to in paragraph 1, such as a technical dossier of the manufacturer where the economic operator concerned had no access to the certificates or test reports referred to in paragraph 1, or no possibility of obtaining them within the relevant time limits, provided that the lack of access is not attributable to the economic operator concerned and provided that the economic operator concerned thereby proves that the works, supplies or services provided by it meet the requirements or criteria set out in the specifications, the award criteria or the conditions for the performance of contracts. Economic operators may provide other appropriate means of proof only where the documents referred to in paragraph 1 are not required by other Union legislation.
Chapter 3
Conduct of the procedure
Article 93
Confidentiality
1.Public buyers shall not disclose information provided by economic operators which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders, unless otherwise provided in this Regulation, or in the Union or national law to which the public buyer is subject, in particular legislation concerning access to information.
2.Public buyers may impose requirements on economic operators aimed at protecting the confidential nature of information which the public buyers make available throughout the procurement procedure or in contract implementation.
3.Where justified by security reasons, including but not limited to essential national security interests or the security of the Union, public buyers may
(a)restrict the information that they provide to economic operators to certain stages of the procurement procedure; or
(b)make the access to information conditional to having taken certain security measures, in particular having acquired security clearance in the Member State where the public contract is to be performed.
Article 94
Conflicts of interest
1.Public buyers shall take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures, including the design and preparation of the procedure and the staff involved, the drawing-up of the procurement detail, the selection of economic operators and the award of the contract.
For the purposes of this Article, ’conflict of interest’ includes any situation where the categories of persons referred to in paragraph 2 have, directly or indirectly, a personal interest in the outcome of the procurement procedure or conduct of the contract implementation, which may compromise the impartial and objective performance of their duties.
For the purpose of this paragraph ‘personal interest’ means any family, emotional, economic, political or other relevant shared interests with the candidates the tenderers or contractor including conflicting professional interests.
2.The rules referred to in paragraph 1 shall apply to conflicts of interest involving at least the following categories of persons:
(a)staff members of the public buyer, procurement service providers or staff members of other service providers who are involved in the conduct of the procurement procedure or may influence its outcome;
(b)the members of decision-making bodies of the public buyer, or of other bodies that influence the decision making of the public buyer, who may influence the outcome of the procurement procedure, without necessarily being involved in the conduct of that procedure.
3.The persons referred to in paragraph 2 are required to declare any conflicts of interest in relation to any of the economic operators participating in a procurement procedure, as soon as they become aware of such conflicts, in order to enable remedial action.
Public buyers may require that economic operators declare in their expression of interest, tender or at the beginning of negotiations the existence of any links with the persons referred to in point (b) of paragraph 2, which may place those persons in a situation of conflicts of interest, as well as conflicts of interest in relation to the subject-matter of the procurement procedure.
4.Without prejudice to Article 140(3), remedial measures shall primarily include the recusal of the persons referred to in paragraph 2 in question from involvement in the affected procurement procedure or the re-assignment of that person’s duties and responsibilities.
Where conflicts of interest cannot be effectively remedied by other means, the economic operator concerned shall be excluded from the procedure only after it has been given the opportunity to prove that the situation of suspected conflicts of interest does not distort competition.
5.All conflicts of interest prevented, identified or declared and the remedial measures taken shall be documented pursuant to Article 109.
Article 95
Prior involvement in the preparation of the procurement procedure
1.Where an economic operator has been involved in the preparation of the procurement procedure, public buyers shall take any necessary measures to ensure that competition is not distorted by the participation of that economic operator.
Participation in a market consultation shall not be considered preparation of the procurement procedure within the meaning of this Article.
2.The measures referred to in paragraph 1 shall include making available relevant information exchanged or obtained by the participating economic operator during the preparation of the procurement procedure to all interested economic operators, as well as setting appropriate time limits to ensure fair competition.
3.The economic operator concerned shall only be excluded from the procedure where there are no other means to ensure equal treatment and after it has been given the opportunity to prove that its prior involvement does not distort competition.
4.The measures shall be documented pursuant to Article 109.
Article 96
Setting time limits
1.When setting the time limits for expressions of interest or the receipt of tenders and without prejudice to the minimum and maximum time limits set out in Title I of this Part, public buyers shall take account of the nature and complexity of the contract, the necessity of on-site inspections, and the time required for drawing up tenders.
2.Public buyers shall extend time limits set for the receipt of tenders in case of additional information or significant changes. The length of the extension shall be proportionate to the relevance and complexity of the information or change.
Article 97
Availability of procurement detail
1.Public buyers shall ensure unrestricted, full direct and free of charge access by electronic means to the procurement detail from the date of publication of a public summary of competition until three years after the award of the contract.
2.Where for certain parts of the procurement detail such access referred to in paragraph 1 cannot be provided, public buyers may indicate in the public summary the other means by which those parts will be made available by other than electronic means.
3.Public buyers shall provide without undue delay to all economic operators all additional information relating to the specifications and any supporting procurement detail necessary for the submission of tenders provided that it has been requested in good time.
4.This Article is without prejudice to Article 93(3).
Article 98
Award criteria
1.Public buyers shall award the contract to the economic operator that offers the best quality for money.
To that effect, public buyers shall evaluate the tenders received according to the best price-quality ratio method referred to in paragraph 2, and by applying award criteria with the minimum quality weighting in accordance with paragraph 4, except as provided for in paragraph 5.
2.To determine the best price-quality ratio, public buyers shall evaluate the tenders through a comparison of their price and quality, based on quality criteria linked to the subject-matter of the contract. Costs can also be taken into account when determining the best price-quality ratio.
Quality criteria shall refer to any criteria used to assess the degree to which a tender proposes beneficial, efficient or sustainable outcomes in relation to the subject-matter of the contract.
The quality of the tender may, for instance, relate to the following aspects:
(a)technical merit, aesthetic and functional characteristics, accessibility, design for all users, and production methods;
(b)environmental and climate-related considerations referred to in Article 50, food-specific considerations referred to in Article 53 where relevant, social considerations referred to in Article 55, innovation objectives referred to in Article 59, security and public safety interests as set out in Article 66, resilience and security of supply requirements as set out in Article 69, or European preference requirements where a public buyer applies those requirements in the form of an allocation of award points pursuant to Article 73(2), point (b);
(c)quality of the staff assigned that can significantly impact the level of performance of the contract, such as the organisation, qualification and experience of the staff assigned to performing the contract;
(d)after-sales service and technical assistance, delivery conditions such as date at which or period during which the delivery is to take place or to be completed.
Public buyers may also establish a fixed price on the basis of which economic operators are to compete on quality criteria only.
3.Award criteria shall be non-discriminatory, proportionate, specific, objective and measurable; they shall be evaluated in a process containing sufficient safeguards against irregularities. They shall allow the public buyer to effectively compare the strengths and weaknesses of the offered goods, services and works, and shall not have the effect of conferring an unrestricted freedom of choice on the public buyer.
Public buyers shall specify, in the public summary of competition, the criteria and their relative weighting chosen to determine the best price-quality ratio.
4.The weight of quality criteria shall represent at least 30 % of total points awarded.
For contracts where the subject-matter is labour-intensive, the weight of quality criteria shall represent at least 50 % of total points awarded.
Where, pursuant to Article 99, public buyers apply life-cycle costing, the weight given to life-cycle costs shall be counted within the respective percentage share.
Where public buyers apply environmental criteria specific for public procurement set in Union legislation as referred to in Article 50(4), second subparagraph, including delegated acts adopted pursuant to Article 54, and where those requirements relate to award criteria, the weight given to such environmental considerations shall count within percentages indicated in this paragraph. Mere compliance with obligations not relating to award criteria shall not be an award criterion.
5.Public buyers may derogate from paragraph 1, second subparagraph, and from paragraph 4, where the quality of the product, service or works procured can be ensured in any of the following ways:
(a)specifications;
(b)where relevant, conditions for the performance of contracts;
(c)a combination of any of the following: quality-based award criteria, specifications and conditions for the performance of contracts.
Public buyers shall indicate in the public summary of competition which of the ways set out in the first subparagraph justifies that derogation.
Article 99
Life-cycle costing
1.Where public buyers apply life-cycle costing, this shall, to the extent relevant, cover parts or all of the following costs over the life-cycle of a product, service or works:
(a)costs borne by the public buyers or other parties for purchase of the solution, costs of use, consumption of energy and other resources, maintenance costs and end of life costs, such as collection and recycling costs, based on appropriate baselines and scenario assessments where appropriate;
(b)costs imputed to environmental and climate externalities linked to the product, service or works during its life-cycle, provided their monetary value can be determined and verified.
The costs referred to in the first subparagraph, point (b), may include the cost of emissions of greenhouse gases and of other pollutant emissions or other climate change mitigation costs.
2.Where public buyers assess the costs using a life-cycle costing approach they shall indicate in the procurement detail the data to be provided by the tenderers and the method which the public buyer is to use to determine the life-cycle costs on the basis of those data.
3.The methods used for assessment of costs imputed to environmental and climate externalities shall be accessible to all interested parties and based on objectively verifiable and non-discriminatory criteria. In particular where the method has not been established for repeated or continuous application, it shall not unduly favour or disadvantage certain economic operators.
Article 100
Division into lots
1.Public buyers shall consider whether to divide contracts into lots.
2.In assessing whether a contract should be divided into lots, public buyers shall take into account, where relevant, the potential contribution of such division to increasing participation of SMEs, reducing dependency on a single supplier, strengthening supply chain resilience and security of supply, and fostering innovation, as well as, on the other hand, the impact of such division on the efficiency of and risks related to the integrity of the procurement. Where division into lots is not mandatory pursuant to paragraph 6 and public buyers consider that such division is not appropriate, they shall indicate the main reasons thereof in the procurement detail or in the individual documentation pursuant to Article 109.
3.Where public buyers divide a contract into lots, they shall do so in a way that the scope, size, number and nature of lots are proportionate to the subject-matter and complexity of the contract.
4.Public buyers may award contracts for individual lots without applying the procedures provided for under this Regulation, provided that the estimated value net of VAT of the lot concerned is less than EUR 80 000 for supplies or services or EUR 1 million for works. However, the aggregate value of the lots thus awarded without applying this Regulation shall not exceed 20 % of the aggregate value of all the lots into which the proposed work, the proposed acquisition of similar supplies or the proposed provision of services has been divided.
5.Public buyers may limit the number of lots for which economic operators may submit tenders. They shall indicate that limit in the procurement detail.
6.Public buyers may limit the number of lots that may be awarded to a single tenderer. In such case, public buyers shall state the maximum number, and where applicable, the possible combinations of lots in the procurement detail. They shall also indicate in the procurement detail the objective and non-discriminatory criteria or rules they intend to apply for determining which lots will be awarded where the application of the award criteria would result in one tenderer being awarded more lots than the maximum number.
7.Member States may provide that public buyers shall divide contracts into lots.
Article 101
Abnormally low tenders
1.Public buyers shall require tenderers to explain the price or price elements in the tender, including in relation to the quality of the tender, where these appear to be abnormally below any of the following:
(a)the price or price elements of the other tender or tenders received in the procurement procedure;
(b)the market price such as by the public buyer's estimation of contract value, in particular where it is based on market consultation, and including all costs such as the cost of labour and working conditions, materials and logistics and for complying with other contractual requirements as well as other life-cycle costing;
(c)contract values in past procurement procedures with mostly identical subject-matter and conditions, in particular in past estimations, tenders or prices paid by the same public buyer or other public buyers.
The public buyer may limit the requirement to explain the prices or price elements to the tenderer with the best placed tender in accordance with Article 98, or, where appropriate, to several of the tenderers with the best ranked tenders.
2.The explanations of the tenderer shall establish the economic viability of the price or price elements of the tender as not abnormally low over the duration of the contract. They shall account for the low level of price, including price elements and the relation to the quality of the tender and compliance with all obligations, and may include, in particular, the following:
(a)the economics of the manufacturing process, of the services provided or of the construction method or the technical solutions chosen;
(b)exceptionally favourable conditions, including state aid where such state aid is compatible with the internal market;
(c)whether the tenderer complies with all regulatory obligations and strategic requirements pursuant to Title II of this Part applicable to the contract.
3.Where the public buyer considers the explanations referred to in paragraph 2 to be satisfactory, it shall record its assessment in the individual documentation pursuant to Article 109.
4.Where the explanations referred to in paragraph 2 are not considered satisfactory, including after having asked for clarifications or additional information, the public buyer shall reject the tender from the procurement procedure.
Article 102
Corrections during procedures and cancellation
1.Before the deadline for each submission of tenders or each start of negotiations, public buyers may make corrections to the procurement detail without initiating a new procurement procedure or changing the public summary of competition provided that:
(a)the correction does not substantially alter the subject-matter of the procurement; and
(b)the correction is indicated clearly in an updated procurement detail made available to all economic operators concerned.
If the correction is done less than 24 hours before the deadline for submission of tenders, the deadline shall be extended by a minimum of two working days, or more where warranted due to the nature and complexity of the correction.
2.Where information or documentation submitted by economic operators is or appears to be incomplete or erroneous or where specific information or documentation are missing, public buyers may provide the economic operators concerned in a strictly non-discriminatory manner the opportunity to submit, supplement, clarify or complete the relevant information or documentation within an appropriate time limit to remedy such deficiency. The first sentence only applies to a minor informality or irregularity of a tender or eligibility information where such remedy does not materially change the tender or eligibility information.
3.The public buyer shall cancel the procurement procedure if it identifies material errors in the procurement procedure that cannot be corrected by any other means and that are liable to distort competition.
4.The public buyer may, before the contract is signed, cancel the procurement procedure. In the case of contracts divided into lots or other forms of multiple sourcing procurement, the cancellation may be done partially. The decision shall be justified and brought to the attention of the tenderers as soon as possible.
Article 103
Framework agreements
1.Public buyers may conclude framework agreements pursuant to the procedures in Title I of this Part. The rules of this Regulation for public contracts shall apply mutatis mutandis to framework agreements unless otherwise provided for in this Article.
A ‘framework agreement’ means an agreement between one or more public buyers and one or more economic operators to establish the terms governing contracts that may be awarded during a given period.
2.The duration of a framework agreement shall not exceed the following:
(a)three years for framework agreements with one economic operator; or
(b)five years for framework agreements with several economic operators.
The maximum duration of the framework agreement may be set for a longer period in exceptional cases, where this is duly justified by the complexity or specialised nature of the procurement and the duration is not longer than what is strictly necessary in view of the circumstances of the procurement in question.
3.A public buyer shall indicate its intention to conclude a framework agreement through a public summary of competition. The public summary shall also include the duration and the maximum cumulative value or volumes of contracts expected to be concluded based on the framework agreement over its duration. The maximums may be adjusted in the public summary of result, provided that any adjustment is proportionate to the terms of the successful tender or tenders.
4.The procurement detail shall include the non-discriminatory and objective criteria that shall be used to conclude subsequent contracts based on the framework agreement. Where a framework agreement is concluded with more than one economic operator, the criteria shall either provide for the rules for reopening of competition between the economic operators party to the framework agreement or set out all the terms of how the contracts will be awarded and performed, or a combination thereof.
Public buyers shall publish a public summary of result pursuant to Article 110 on each contract concluded based on a framework agreement. Contracts based on a framework agreement shall not have a duration that exceeds the end of the duration of the framework agreement by more than 50 % of the duration of the framework agreement.
Chapter 4
Contract execution
Article 104
Conditions for the performance of contracts
1.Public buyers may lay down conditions relating to the performance of a contract, provided that they are linked to the subject-matter of the contract in accordance with Article 90 and clearly indicated in the procurement detail.
2.Those conditions may, in addition to general contractual, technical, quality and economic aspects, such as price indexation, also include conditions related to strategic considerations, including:
(a)environmental considerations as defined in Article 50, such as the handling of waste, compliance with sustainability due diligence and reporting in the execution of the contract, or other requirements in a circular economy;
(b)employment considerations, such as fair working conditions of the workers employed in the execution of the contract, including remuneration as well as occupational health and safety at work;
(c)other social considerations as defined in Article 55, such as implementation of appropriate prevention and mitigation processes related to human rights impacts arising in the performance of the contract;
(d)innovation objectives as described in Article 59, such as to encourage continued improvement of the solution;
(e)security and public safety interests as described in Articles 66, or resilience and security of supply requirements as set out in Article 69, such as security clearance of the personnel, handling restrictions or continued observance and improvement of the supply chain.
Article 105
Adjustment mechanisms
1.Public buyers may include in the procurement detail clauses establishing mechanisms for the adjustment of the conditions of the contract throughout its duration, provided that those mechanisms:
(a)are objectively justified having regard to the nature of the contract;
(b)maintain the economic balance of the contract;
(c)the clauses are clear, precise and unequivocal.
2.The adjustment mechanisms referred to in paragraph 1 may, in particular, relate to:
(a)predefined rules for the adjustment of revenues, including variations linked to demand or usage levels;
(b)indexation mechanisms, including those linked to objective economic indicators, such as price indices, inflation rates or volatility of input costs such as for key materials;
(c)performance-based payment adjustments, linked to the achievement of qualitative or performance objectives relating to the supply of works or services.
3.Adjustments of a contract based on such clauses shall not be considered modifications pursuant to Article 106.
Article 106
Modifications of contracts during their term
1.Public buyers may modify awarded contracts or framework agreements during their term without a new procurement procedure provided that the modification is not substantial within the meaning of paragraph 3 or falls within one of the cases referred to in paragraph 4. Any such modification shall respond to objective needs arising during the performance of the contract, be limited to what is necessary and appropriate to ensure its performance and continuity and not alter the initial economic balance of the contract in favour of the contractor.
2.Modification, the value of which does not exceed 15 % of the value of the initial contract shall be considered non-substantial and may be made without a new procurement procedure, provided that the modification does not alter the initial economic balance of the contract.
Where several successive modifications are made, the thresholds shall be assessed on the basis of the net cumulative value of the successive modifications.
3.A modification shall be considered substantial where it introduces terms which, had they been part of the original procurement procedure would have changed the condition of competition, or where it changes essential terms or conditions of the contract, such as the scope of the contract, the initial economic balance in favour of the contractor or the identity of the original contractor, in cases other than those referred to in paragraph 4, point (c).
4.Provided that they do not alter the initial economic balance of the contract in favour of the contractor, substantial modifications shall be permissible within the meaning of paragraph 1 only in the following cases:
(a)where additional works, services, or supplies have become necessary during the performance of the contract, provided that a change of contractor is not technically or economically feasible, including due to the interdependence of the existing works or services or because it would result in substantial increase in costs;
(b)where the modification is necessary due to circumstances which could not reasonably have been anticipated by a diligent public buyer at the time of the launch of the procedure, and which significantly affect the performance or feasibility of the contract, including:
(i) substantial changes in the applicable regulatory or legal framework;
(ii) significant technological developments;
(iii) disruptions, emergencies or crises having a significant economic, societal or operational impact;
(c)where the original contractor is replaced by another entity due to:
(i) a merger, takeover, acquisition, insolvency or other corporate restructuring, another economic operator succeeds, wholly or partly, to the rights and obligations of the initial contractor, provided that the new entity fulfils the original qualitative selection criteria; that no other substantial modifications are made to the contract and that the replacement is not intended to circumvent the application of this Regulation; or
(ii) the public buyer assuming the main contractor’s obligations towards its subcontractors where that possibly is provided for under national law.
5.Before modifying a contract, the public buyer shall establish, on the basis of objective and verifiable elements, that the conditions set out in paragraph 1 are satisfied. Public buyers shall maintain detailed written records of the essential elements of the modification, including its justification, its necessity or appropriateness, and its impact on the economic balance of the contract, in particular allocation of risks and economic advantages, in order to justify the decisions to modify the contract and to enable verification of compliance with this Article by competent supervisory, audit and review bodies.
6.Before any modification of a contract that exceeds 50 % of the initial estimated value of the contract, the public buyers shall publish a public summary of modification to that effect. That public summary shall contain the justification for the modification without a new procurement procedure and the information set out in Article 110. Successive modifications shall not be aimed at circumventing this Regulation.
By way of derogation from the first subparagraph of this paragraph, the prior publication obligation does not apply where urgency resulting from an emergency determined in accordance with Article 48 does not allow for prior publication of the public summary of modification. In such case, public buyers shall publish a public summary of modification pursuant to paragraph 7 of this Article.
7.Where public buyers substantially modify a contract pursuant to paragraph 4 of this Article, and the modification does not exceed 50 % of the initial estimated contract value of the contract, they shall publish a public summary of modification containing the information set out in Article 110 within 20 days from the date on which the modification was made.
8.For the purpose of the calculation of the value referred to in the paragraphs 2, 6 and 7, the updated value shall be the reference value when the contract includes an indexation clause. If the contract does not include an indexation clause, the updated value shall be calculated taking into account the average inflation in the Member State of the public buyer.
9.Modifications of a contract shall not be used to remedy deficiencies of the contractor’s performance that are not justified by circumstances beyond its control.
Article 107
Termination of contracts
Without prejudice to any other grounds for termination provided for in this Act or under applicable national law, public buyers shall terminate the contract where:
(a)the economic operator becomes subject of a final conviction for one of the grounds referred to in Article 25, except where the public buyer establishes that such termination is not warranted for reasons of overriding public interest and the final judgment does not preclude this;
(b)the contract or its modification should not have been awarded to the contractor in view of a serious infringement of the obligations under the Treaties and this Regulation that has been declared by the Court of Justice of the European Union in a procedure pursuant to Article 258 of the Treaty.
Article 108
Payments
1.Without prejudice to their obligations under Directive 2011/7/EU 79 of the European Parliament and of the Council, public buyers shall ensure the timely payment of contractors and, where applicable, subcontractors.
2.As part of the conditions for the performance of the contract pursuant to Article 104, public buyers may provide that the contractors pass through the supply chain equivalent payment terms as laid down in the relevant provisions of Directive 2011/7/EU of the European Parliament and of the Council.
3.Member States shall provide, through the National Public Procurement Data Space (NPPDS), procurement information on payment status linked to each individual contract concerned pursuant to Article 134(4).
4.Member States shall make available procurement information on prompt payment compliance for each annual reporting period for each public buyer pursuant to Article 134(4).
5.In addition to Article 44(6), public buyers may provide for advance payments in the procurement detail, especially to encourage the participation of SMEs. Where the contract in question has particular relevance for the innovation considerations set out in Title II, Chapter 3 of this Part and unless justified by an overriding interest of the public buyer, public buyers shall provide for an appropriate advance payment to the contractor.
6.At the request of the subcontractor and where the nature of the contract so allows, the public buyer shall transfer due payments directly to the subcontractor for services, supplies or works provided to the main contractor. Such measures may include appropriate mechanisms permitting the main contractor to object to undue payments. The arrangements concerning that mode of payment shall be set out in the procurement detail.
Chapter 5
Publication and documentation rules
Article 109
Individual documentation of procedures
1.Public buyers shall record, in the public buyer’s eProcurement service and make available in the NPPDS pursuant to Article 134, the necessary documentation to justify decisions taken in all stages of the procurement procedure, in particular documentation on communications with economic operators, including in negotiations if any, and internal decisions for the preparation or correction of the procurement detail, including after negotiations if any, in selection of economic operators and award of the contract. The documentation shall be kept for a period of at least three years from the date of award of the contract, except where a longer period is required by applicable Union or national law.
2.Procurement information and procurement decisions shall be recorded and managed in a manner enabling their origin, evolution, justification and approval history to be identified throughout their lifecycle.
3.Public buyers shall include in their documentation any identified conflicts of interest, integrity breaches and significant risks for security or public safety affecting procurement procedures or contract implementation as well as mitigating measures taken.
Article 110
Publication information in public summaries
1.Public buyers shall publish information in accordance with Article 112 with all the following public summaries:
(a)consultation;
(b)competition;
(c)result;
(d)contract;
(e)modification;
(f)completion.
2.The publication of a public summary of consultation as referred to in Article 30, shall include all the following information:
(a)identification of the organisations relevant for the consultation; and
(b)purpose of the consultation including method, communication and submission terms;
(c)other necessary information regarding the consultation.
3.The publication of a public summary of competition as referred to in Articles 34, 37, 42, 49 and 103 shall include all the following information:
(a)identification of the organisations relevant for the procedure;
(b)purpose of the procedure including method, communication and submission terms;
(c)description of the procurement, including the nature, quantity or estimated quantity, and timing of purchases;
(d)duration of validity of the procedure;
(e)contract terms;
(f)if applicable, an indication on the strategic nature of the procurement, such as the fulfilment of environmental, social or innovation objectives, as well as the suitability of the procurement for SMEs;
(g)GPA coverage;
(h)other necessary information regarding competition.
4.The publication of a public summary of result as referred to in Articles 40, 44, 46, 49, 103 and 111 shall include the following information:
(a)identification of the organisations relevant for the procedure;
(b)purpose of the procedure;
(c)result of the procedure, including cancellation;
(d)for contracts awarded pursuant to Article 46: a justification for the decision of the public buyer to award the contract in accordance with that provision;
(e)for contracts awarded pursuant to Article 46: a description of the request as set out in the invitation to negotiate, the request to submit a tender or the request to deliver the solution against invoice;
(f)if applicable, an indication of the strategic nature of the procurement, such as the fulfilment of environmental, social or innovation objectives, as well as indication of SME participation;
(g)GPA coverage; and
(h)other necessary information regarding the result.
5.The publication of a public summary of contract of modification or of completion as set out in Articles 106, 111, and 125, shall include all the following information, as applicable:
(a)identification of the organisations relevant for the contract;
(b)purpose of the contract;
(c)any contract information published pursuant to this paragraph and changed by the modification;
(d)reasons for the modification;
(e)result of the contract including information on termination;
(f)other necessary information regarding the contract, modification or completion information.
6.The Commission is empowered to adopt delegated act in accordance with Article 141 to amend the information in each public summary referred to in paragraphs 2 to 6 of this Article in accordance with the implementation needs.
7.The Commission is empowered to adopt implementing acts further detailing the specific information which shall be contained in each public summary as described in paragraphs 2 to 6, establishing the connection of public summaries and the sequencing of specific information contained in multiple public summaries, and establishing requirements for public buyers to reuse information already provided in a public summary as well as requirements for eProcurement service providers to provide a corresponding reuse service. Those implementing acts shall be adopted in accordance with the advisory procedure referred in Article 143(2).
Article 111
Publication of public summary of result, of contract and of completion
1.Public buyers shall send the following procurement information pursuant to Article 110 no later than 20 days:
(a)after the conclusion of a market consultation, the award decision in or the cancellation of a procurement procedure, or as referred to in Article 40, 44, 46, 49 and 103, public buyers shall send a public summary of result;
(b)after the conclusion of a contract where the preceding procurement procedure was within the scope of this Regulation, public buyers shall send a public summary of contract;
(c)after the completion of the performance of a contract where the preceding procurement procedure was within the scope of this Regulation, public buyers shall send a public summary of completion, including from the day of the respective event where an awarded contract was not concluded or where the contract execution was not terminated, including due to a termination pursuant to Articles 107 and 126 from the day of the respective event.
2.Certain information may be withheld from publication where its release would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of a particular economic operator, public or private, might prejudice fair competition between economic operators. Such information shall at the same time however be provided to the NPPDS pursuant to Article 134 as not publicly available information.
3.Public buyers shall ensure the complete, correct and timely provision of procurement information to the NPPDS pursuant to Article 134.
Article 112
Form and manner of publication
1.The public summaries referred to in Article 110 including changes to information shall be sent by public buyers through the NPPDS to the Publications Office of the European Union and shall be published in the Supplement to the Official Journal of the European Union. no later than five days after it is received, unless the public buyer requests a later date of publication. The information shall be considered to be received by the Publications Office of the European Union only once it has been validated according to the technical validation requirements set up by the Union.
2.The Publications Office of the European Union shall ensure that the public summaries referred in Article 110 are made available:
(a)as the sole authentic text in at least one of the official languages of the Union as provided by the public buyer; and
(b)as non-authentic versions in the other official languages of the Union in addition to authentic text.
3.Public buyers shall be able to supply proof of the date on which their information was sent for publication.
4.The Publications Office of the European Union shall give the NPPDS confirmation of the receipt and of the publication of the public summaries sent, indicating the date of publication. Such confirmation shall be provided by the NPPDS to the public buyer and shall constitute proof of publication.
5.Public buyers may publish public summaries for public contracts that are not subject to the publication requirements laid down in this Regulation, provided that these are sent to the Publications Office of the European Union according to this Article.
6.The costs of the reception, validation and publication of the public summaries by the Publications Office of the European Union shall be borne by the Union.
7.The Commission is empowered to adopt implementing acts, specifying the details concerning the provision of public summaries to the Publications Office of the European Union and the source of the technical validation requirements referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 143(2).
Article 113
Publication at national level
1.The information referred to in Article 110 or the implementing act pursuant to Article 110(7) shall not be published at national level before the publication pursuant to Article 112. However, publication may in any event take place at the national level where public buyers have not been notified of the publication within 48 hours after confirmation of the receipt of the information in accordance with Article 112.
2.Information published at national level shall indicate the date when that the information was sent to the Publications Office of the European Union as well as the identifier of the information regarding a procurement procedure published pursuant to Article 112.