Rules applicable to procurement by entities operating in the water, energy, transport and postal services sectors until 2016

This directive addresses the need to assure the opening of the market, as well as a fair balance in the implementation of the procurement in the water, energy, transport and postal services sectors. Directive 2014/25/EU has replaced this directive, which remains applicable nevertheless, until the transposition of the directive by the Member States, to be carried out no later than 18 April 2016.

ACT

Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of the procedures for awarding public procurement in the water, energy, transport and postal services sectors.

SUMMARY

Directive 2004/17/EC on the special sectors of water, energy, transport and postal services (so-called special sectors) applies to the procurement issued by a contracting entity in the sectors in question for:

• supplies;
• services;
• works.

However, it does not apply to works concessions or services regulated by Directive 2014/23/EU.

Contracting entities

The special sectors directive applies to:

• every contracting authority or public company which practises in the energy (gas, electricity, fossil fuel extraction), water, transport (including the provision of transport to ports or airports) and postal services sectors;
• every contracting entity which practises in one (or several) of the above sectors and benefits from the special or exclusive rights granted by a competent authority of a Member State.

The annexes of the directive contain inexhaustible lists of the contracting entities.

Activities concerned

The directive particularly applies to the provision or operation of fixed networks intended to provide a service to the public in the following sectors:

• production, transport or distribution of gas, heat, electricity or drinkable water. It also applies to the supplying of these networks with gas, heat, electricity, drinkable water, as well as contracts linked to the supply or treatment of water used for hydraulic engineering projects, irrigation or drainage;
• transport by railway, automated systems, tramway, trolley bus, bus (under certain conditions) or cable.

It also applies to:

• the provision of postal services;
• the exploitation of a geographical area for the purpose of prospecting or extracting fossil fuels, or providing airports, ports or other terminals of transport with fossil fuels for use on carriers by air, sea or inland waterways.

It is important to note that the contracts awarded in the sectors in question are no longer subject to the directive if there exists an effective competition approved by a decision made by the Commission on the effective competition in a Member State or for a given sector .

Thresholds revised every 2 years

The directive applies to public contracts that have an estimated value, excluding VAT, equal to or superior to the following thresholds:

• €414 000 in the case of supply and service contracts;
• €5 186 000 in the case of works contracts.

Criteria for the awarding of contracts

The criteria on which the contracting entities are based are:

• either the lowest price;
• or, where the award is offered to the most economically advantageous, various criteria linked to the contracted object, including: the quality, the price, the technical value, the environmental characteristics, etc.

Obligation of publication and transparency

This obligation is particularly targeted at the publication of information notices according to the standard formulas of the Commission, accessible on the information system for European public procurement (SIMAP). There are several types:

• the notice announcing the publication of a periodic notice (not compulsory);
• the periodic indicative notice (which can be used as a way to call for competition);
• the contract or competition notice (compulsory when the way of calling for competition is neither a periodic notice, nor a notice on the existence of a qualification system);
• the contract award notice or the result of a competition notice (compulsory);
• the existence of a qualification system notice (which can be used as a way to call for competition).

For every contract, the contracting entity must also be in a position to justify its decisions and conserve all appropriate information for at least 4 years. At the earliest opportunity, it shall inform:

• any unsuccessful applicant of the reasons for their rejection;
• any applicant to which the offer is open, the advantages of the successful applicant as well as the name of the chosen economic operator.

Technical specifications

The technical specifications shall define the characteristics required of a material, supply or service such that they fulfil the use for which they are intended. They shall figure in the contract documentation (contract notice, specification or additional documents) and must not create unjustifiable obstacles for competition.

Conditions for participation

The European legislation on public procurement provides the conditions which can be demanded of participation in public procurement. These conditions aim to ascertain the economic operators’ aptitude for participation in a contract, on the basis of criteria relating to the economic and financial capacity and professional and technical capacities.

The conditions of participation also aim to combat fraud and corruption. Any economic operator condemned for having participated in a criminal organisation, corruption, fraud, or money laundering is systematically excluded from an award of public procurement by a contracting authority.

An economic operator can also be excluded from the participation in a public procurement if it:

• is in a state (or object of a declaration) of bankruptcy, liquidation, cessation or suspension of activities or judicial settlement;
• is found guilty of an offence concerning its professional conduct;
• has committed an act of grave professional misconduct;
• has not fulfilled regulations relating to the payment of social security contributions and taxes.

Procedures for the awarding of public procurement

There are different procedures for the award of public procurement:

• the open procedure; all economic operators interested may present an offer;
• the restricted procedure; all economic operators may demand to participate and only those who are invited may present an offer;
• the negotiated procedure: the contracting entities consult the economic operators of their choice and negotiate the procurement conditions with them.

The contracting entities may also award procurement without prior call for competition in certain specific cases listed in the Directive.

Competitions in the services sector

The directive applies to competitions for the procurement of services superior to €414 000.

The contracting entity shall publish a competition notice conforming to the regulations for the procedure of awarding a public procurement and it shall only be aware of the projects when the deadline for the planned presentation has expired.

The award criteria are clear, non-discriminatory and assure a genuine competition. The jury shall exclusively be composed of technically qualified and independent personnel.

RELATED ACTS

Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on the awarding of procurement to entities operating in the water, energy, transport and postal services sectors and repealing the Directive 2004/17/EC (Official Journal L 94 of 28.3.2014).

Last updated: 02.06.2014