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EUROPEAN COMMISSION

Brussels, 9.9.2026 COM(2026) 590 final

2026/0265 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on public contracts and concessions, repealing Directives 2014/23/EU, 2014/24/EU and

2014/25/EU, and amending Regulations (EC) No 1370/2007, (EU) 2023/1542, (EU)

2024/1157, (EU) 2024/1252, (EU) 2024/1735, (EU) 2024/1781, (EU) 2024/2847, (EU)

2024/3110 and (EU) 2025/40, and Directives 2008/98/EC, (EU) 2019/882, (EU) 2022/2381,

(EU) 2023/1791 and (EU) 2024/1760 (Public Procurement Act)

{SEC(2026) 590 final} - {SWD(2026) 590 final} - {SWD(2026) 591 final} - {SWD(2026) 592 final}

(Text with EEA relevance)

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EXPLANATORY MEMORANDUM

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

This explanatory memorandum accompanies the proposal for a Regulation on Public

Procurement, revising the Directive 2014/23/EU on the award of concession contracts,

Directive 2014/24/EU on public procurement and Directive 2014/25/EU on procurement by

entities operating in the water, energy, transport, and postal services sectors and amending

various sectoral acts with regard to provisions on public procurement therein.

Every day, across the European Union, public authorities award contracts for goods, services

and works that shape the daily lives of citizens, whether it be the roads they travel on, the

energy that powers their homes or the school buildings that shape their childrens’ futures.

With public procurement accounting for around 15% of the EU's GDP, public procurement is

a powerful policy lever at the Union's disposal. For public buyers, it is the means to ensure

efficient investments into public infrastructure and services. For citizens, it maximises value

for taxpayers’ money by ensuring that public funds are spent efficiently and effectively. For

businesses, a well-designed procurement framework opens new opportunities, including

across borders. For all, public procurement should be transparent, fair and open, to build and

reinforce public trust.

The central role of public procurement has been forcefully underlined by Mario Draghi and

Enrico Letta in their reports on the future of European competitiveness1 and on the Single

Market2. Both highlight procurement not only as a mechanism for public spending, but also as

a strategic investment tool to strengthen the Union’s clean industrial base, support innovation,

advance the clean and digital transitions, and reinforce economic security and strategic

autonomy. The Clean Industrial Deal3 and the Competitiveness Compass4 have similarly

emphasised the responsibility of public buyers in translating strategic orientations into

concrete purchasing decisions. In a geopolitical context marked by intensifying competition,

supply-chain vulnerabilities and the exploitation of economic dependencies, the way public

buyers spend money has become a matter of strategic relevance.

The European Court of Auditors5 highlighted a number of shortcomings of the European

procurement practice. It found that competition for public contracts had decreased over the

past decade, that the participation of SMEs and cross-border bidders remained limited, and

that single-bid procedures had become increasingly common. It is against this background

that the Council, in its Conclusions of May 20246, invited the Commission to bring forward a

comprehensive action plan to address the shortcomings in public procurement legislation and

practice and to simplify the regulatory framework. The European Parliament adopted a

resolution on public procurement7 calling for a more strategic, simplified and competitive

framework. The Committee of the Regions8 and the European Economic and Social

1 https://commission.europa.eu/topics/competitiveness/draghi-report_en. 2 consilium.europa.eu/media/ny3j24sm/much-more-than-a-market-report-by-enrico-letta.pdf. 3 https://commission.europa.eu/topics/competitiveness/clean-industrial-deal_en. 4 https://commission.europa.eu/topics/competitiveness/competitiveness-compass_en. 5 2023 Special Report on public procurement in the EU

https://www.eca.europa.eu/en/publications?ref=SR-2023-28. 6 consilium.europa.eu/en/press/press-releases/2024/05/24/council-adopts-conclusions-on-the-court-of-

auditors-report-on-public-procurement/pdf/. 7 https://www.europarl.europa.eu/doceo/document/TA-10-2025-0174_EN.pdf. 8 https://data.europa.eu/doi/10.2863/0379789.

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Committee9 adopted opinions underlining the importance of public procurement as a driver of

local development, social progress and industrial resilience.

The European Commission's in-depth evaluation of the 2014 Directives confirmed that

today’s public procurement rules know significant shortcomings. It found that their

complexity and lack of flexibility creates significant legal uncertainty for both public buyers

and economic operators. Price-only awards remain prevalent and the uptake of social,

environmental and innovation requirements continue to be limited. Rules on market access for

non-EU companies lack clarity and no longer respond effectively to today's geopolitical

realities. Fragmented eProcurement systems prevent proper transparency and efficient

monitoring and oversight and despite improvements in transparency, data gaps and quality

issues at both EU and national level hamper effective governance, strategic decision-making

and the prevention of corruption.

The proposal for a Public Procurement Act seeks to address these challenges.

Simplifying and increasing the flexibility and coherence of procurement rules

The proposal replaces the three 2014 Directives with a single, directly applicable Regulation.

Consolidating the rules applicable to public contracts, utilities procurement and concessions

into a single legal instrument removes the complexity and inconsistency resulting from the

coexistence of separate legislative acts and divergent national transposition choices.

• Two new main procedures are proposed, both possible with or without selection

criteria, and with or without negotiations: an open procedure where economic operators

submit (first) tenders from the outset, and a dynamic procedure in which economic operators

first join and are later on invited to tender or negotiate for individual procurement

opportunities arising during the validity of the procedure. These two procedures are

complemented by an innovation procedure for the development and acquisition of innovative

solutions that the public buyers wishes to have developed by an economic operator to best

meet its needs.

• Market consultations are clarified and encouraged as a standard preparatory tool.

• Selection criteria are limited to what is necessary and proportionate, excessive

turnover requirements are curtailed, and unjustified demands for prior public-sector

experience are restricted.

Procurement rules continue to apply to entities in water, energy, transport and postal

services. In addition to specific exemptions, utilities may also be exempt where the relevant

activity is directly exposed to competition on markets with unrestricted access.

To further simplify the overall legislative framework, the rules on concessions are

incorporated in this Regulation. The revised procedural rules will apply both to public

contracts and concessions, complemented by adapted rules for concessions where needed to

take account of certain specific characteristics of concessions.

Increasing the uptake of strategic procurement

This Regulation establishes a coherent architecture for integrating strategic policy

objectives into procurement design, award and contract performance. The proposal reinforces

the quality dimension of award decisions. Contracts will as a rule be awarded on the basis of

the best price-quality ratio, with minimum quality weighting requirements, including higher

weighting for labour-intensive contracts.

9 https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/review-european-

public-procurement-legal-framework.

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• On environmental procurement, the proposal provides clearer legal bases for the use

of environmental requirements throughout the procurement cycle. It strengthens the

contribution of procurement to circularity, recycled and refurbished content, waste recovery

and energy efficiency, and creates a framework for mandatory green procurement

requirements for certain product categories where divergent application of requirement risks

creating market fragmentation.

• On socially responsible procurement, the proposal highlights a number of important

societal objectives, including social inclusion, labour market integration, accessibility for

persons with disabilities, improved working conditions, up-skilling and re-skilling of the

workforce, gender equality and human rights in supply chains. It emphasises accessibility

obligations for persons with disabilities and preserves targeted instruments such as reserved

contracts and tailored rules for social, health and educational services.

• On innovation procurement, the new innovation procedure allows public buyers to

formulate societal challenges rather than fixed technical specifications, assess proposals

through a value assessment framework, test and validate approaches, and then procure the

resulting solutions.

Improving EU economic security and strategic autonomy

The proposal responds to the growing geopolitical significance of public procurement.

• Public buyers are enabled, and in certain contexts required, to address risks related to

security and public safety interests of the Union or Member States, linked to critical

infrastructure, sensitive information, cybersecurity, harmful critical dependencies, supply

disruption, and undue third-country influence.

• Without prejudice to acts covering specific products or services, new provisions on

resilience and security of supply apply in particular to contracts involving essential or

important entities and critical infrastructures.

• The proposal also modernises and clarifies the treatment of third-country participation,

in full respect of the Union’s international commitments:

• It clarifies the distinction between operators, and works, services or supplies that are

covered by the Union's international procurement commitments and those that are not and

establishes a common framework, supported by a Commission online tool (the

Access2Markets web portal developed by the European Commission to assist businesses with

international trade), to determine coverage. The Commission may restrict such coverage

where a market access analysis establishes that a third country has failed to provide national

treatment to Union operators contrary to its commitments, or where restriction is necessary to

protect essential Union interests.

• Public buyers may apply European preference requirements, including by

restricting participation, requiring minimum Union or covered origin, or granting evaluation

preferences. Where the Union's strategic interests so require, the Commission may close

specific procedures to non-covered operators, products or services.

This Regulation serves as a horizontal framework for European preference requirements and

has been designed so as not to conflict with the body of Union legislation which are sector-

specific, and which establish mechanisms for preference or restriction based on the origin of

economic operators or the specific goods or services offered in the context of public

procurement. This applies to rules that have already been adopted, such as Regulation (EU)

2024/2803 on the implementation of the Single European Sky, or more recent proposals such

as the Industrial Accelerator Act (COM 2026/0068) which are currently in the legislative

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process. Therefore, the general rules of this Regulation apply unless the sector-specific act

provides otherwise, including regarding the determination of origin.

Moreover, in order to avoid excessive fragmentation of the legislative framework and to

ensure a coherent set of rules on public procurement, this Regulation also serves as a model

and a basis for future Union legislative acts establishing preference mechanisms based on

origin. This concerns compatibility with international agreements that include a public

procurement dimension, the way in which the origin of economic operators, goods, services

and works is defined. Any future European preference rules relating to public procurement

should be based as a starting point on the rules regarding the actual preference requirements

set out in this Regulation, and only adapted where necessary on account of the specific sectors

they will cover.

Facilitating access to procurement information, data and digital tools

The evaluation of the current Directives found that the digital ecosystem for procurement

remains fragmented, non-interoperable and insufficiently data driven. The proposal addresses

this through a substantially more integrated approach.

• It establishes a common digital ecosystem based on an interoperability network,

harmonised semantic standards and common specifications, enabling public buyers and

economic operators using different eProcurement systems to communicate through

interoperable digital services. A key innovation is the creation of an electronic eligibility

service built around digital business credentials and digital company profiles, implementing

the once-only principle.

• The proposal establishes National Public Procurement Data Spaces and a Union-

level Public Procurement Data Space, designed to support structured access to procurement

and contract lifecycle data. Publication obligations are expanded and rationalised across the

full procurement lifecycle.

The effective operation of the system will require an update of the Common Procurement

Vocabulary (CPV), established under Regulation (EC) No 213/2008.

Governance

The proposal strengthens governance, monitoring and professionalisation. Integrity

governance is reinforced through measures addressing fraud, collusion, corruption,

favouritism and conflicts of interest, ensuring that the simplification and strategic ambitions

of this Regulation are matched by stronger implementation capacity on the ground.

• Consistency with existing policy provisions in the policy area

The Commission’s evaluation highlights the concerns regarding the fragmentation of public

procurement rules within the EU legal framework. Contracting authorities and economic

operators must currently comply with a multitude of overlapping and, in some cases,

incoherent provisions across more than fifty sector-specific legal instruments. This a source of

legal uncertainty, disproportionate administrative burdens, and procedural inefficiencies in the

conduct of public procurement for both.

The Commission’s Communication ‘A Simpler, Clearer and Better Enforced EU Rulebook’10

mandates a ‘regulatory deep cleaning’ of public procurement rules to eliminate redundancies,

streamline procedures, and enhance legal clarity. The proposed Public Procurement

Regulation therefore undertakes a comprehensive coherence exercise, focusing on

consolidating into the Public Procurement Act sectoral rules relating to public procurement

10 https://commission.europa.eu/publications/simpler-clearer-and-better-enforced-eu-rulebook_en.

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procedural rules, horizontal requirements, and empowerment provisions, fully preserving the

policy objectives of sectoral acts.

Exclusion grounds

Currently, grounds for exclusion from the participation in a procurement procedure of

economic operators are fragmented across several sectoral acts, creating legal uncertainty and

unequal treatment. The proposal consolidates these rules into a single, coherent framework by

rationalising existing grounds for exclusion from the participation in a procurement procedure

as follows:

• 7 mandatory exclusion grounds from sectoral acts based on Title V of the TFEU that

are linked to serious criminal offences, including human trafficking, corruption, and terrorism,

and are intrinsic and inseparable elements of the acts in which they are laid down, are

maintained in those acts, but mirrored as well in this Regulation.

• 2 exclusion grounds originating from legal acts based on other legal bases are

removed from those acts and reflected in this Regulation. This concerns the exclusion grounds

so far enshrined the Shipments of Waste Regulation (Regulation (EU) 2024/1157), and the

Eco-Design Regulation (Regulation (EU) 2024/1781), which are deleted from these acts.

Rather than disappearing entirely, however, breaches of these instruments are absorbed into

existing exclusion grounds in this Regulation.

Horizontal requirements

In addition to procedural rules, the current public procurement framework is further

complicated by the multiplication of horizontal requirements in legislation on procurement

decisions. To address this, the present proposal transfers relevant horizontal ‘what to buy’

provisions into dedicated chapters of the Act, structured around the Union’s strategic

procurement priorities (green, social, security, and resilience), streamlining where needed to

ensure consistency in the application of these requirements.

Empowerments

Finally, five sectoral instruments contain separate and uncoordinated empowerments for

establishing green public procurement requirements in certain areas. To remedy these

inefficiencies, the present proposal repeals those sectoral empowerments for the adoption of

procurement-related delegated or implementing acts, and replaces them with a single,

horizontal empowerment allowing the Commission to make certain environmental

requirements mandatory for public buyers under certain circumstances.

This proposal includes targeted amendments to the sectoral instruments concerned which

are strictly necessary to achieve the proposal's objective of legal coherence. Further possible

modifications of those sectoral instruments are entirely outside the scope of the present

proposal. The need for any such modifications may be assessed, as appropriate, in the context

of the review of each of the sectoral instruments concerned, in accordance with their

respective review clauses and policy cycles. The Commission will constructively engage

with the co-legislators to ensure that the legislative process on the present proposal fully

preserves its essential object.

Beyond the existing acquis, several legislative initiatives currently under negotiation or

pending publication also contain, or are expected to contain, public procurement-related

provisions. This is the case, for example, of the proposal for a Cyber Security Act 2.0 (COM

2026/001), the proposal for a Cloud and AI Development Act (COM 2026/0138), the proposal

for an Industrial Accelerator Act (2026/0068) and the proposal for a Chips Act 2.0 (COM

2026/0139). The coherence exercise carried out by the present proposal can only deliver its

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full added value if these ongoing initiatives are themselves aligned with the horizontal

framework established by the Public Procurement Regulation, while maintaining sector-

specific rules on What to buy in those acts The Commission has worked to ensure such

coherence internally when preparing these texts and it is essential that the co-legislators also

take into consideration the need for coherence and consistency with the Public Procurement

Regulation. Particular attention should be paid to provisions relating to European preference

requirements as divergent sectoral approaches would be especially detrimental to legal

certainty, equal treatment of economic operators and proper functioning of the internal

market. The Commission will engage constructively with the European Parliament and the

Council throughout the negotiations of these parallel files.

• Consistency with other Union policies

The proposed Regulation also interacts with a distinct category of Union policies, which use

public procurement as a tool to pursue specific objectives without, however, relying on or

modifying the horizontal procurement framework. They establish autonomous regimes that

operate alongside the general rules and respond to their own policy rationale.

The proposal does not interfere with the procurement regimes established in the defence and

security sectors, which fall outside its scope and under Directive 2009/81/EC. It is without

prejudice to Regulation (EU) 2025/1106 (SAFE) and Regulation (EU) 2023/2418 (EDIRPA)

on cooperative defence procurement and leaves unaffected the joint procurement mechanisms

under Regulation (EU) 2022/2371 and Council Regulation (EU) 2022/2372 on health crises. It

is similarly consistent with the resilience-oriented obligations of Regulation (EU) 2024/2747

(IMERA).

Public procurement is increasingly used as a lever to defend the Union's strategic interests

in its external economic relations and to ensure a level playing field for European economic

operators. The European preference measures are fully compatible with the international

framework to which the Union is a party, in particular the WTO Agreement on Government

Procurement (GPA). The proposal operates without prejudice to Union trade policy

instruments containing procurement-specific provisions, notably Regulation (EU) 2022/2560

on foreign subsidies, as well as measures under the Union's trade defence and restrictive

measures toolbox, such as Regulation (EU) 2023/2675 (Anti-Coercion Instrument) and

Council Regulation (EU) No 833/2014 concerning Russia. Regarding Regulation (EU)

2022/1031 on the International Procurement Instrument, Chapter 5 of the proposed

Regulation explicitly incorporates, including through cross-references, the principles and

concepts of this Regulation concerning the origin of economic operators and goods.

In parallel to this Regulation, the Commission is proposing a European Innovation Act which

proposes a specific regime for the procurement of research and development services,

meaning the procurement of fundamental research, industrial research and experimental

development up to original development. Research and development service contracts,

including pre-commercial procurement are thus excluded from the scope of this Regulation.

Contrary to the specific regime proposed in the European Innovation Act, the Public

Procurement Act also covers the purchase of the commercial end-product.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

Article 114 Treaty on the Functioning of the European Union (“the Treaty”) is the appropriate

legal basis for this initiative, as its primary objective is to establish a simpler and more

efficient harmonised public procurement framework across the Member States, thereby

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improving the functioning of the internal market in line with Article 26 of the Treaty. While

the initiative also touches upon matters related to the objectives pursued under Articles 173

and 207 TFEU, these aspects are clearly ancillary to its primary aim of harmonising public

procurement rules and therefore do not justify reliance on those provisions as legal bases.

• Subsidiarity (for non-exclusive competence)

Under Article 5 TEU, the principle of subsidiarity is respected as it balances contracting

authorities’ discretion with harmonisation measures and elements necessary to achieve the

objectives of this initiative, which cannot be sufficiently achieved by Member States alone.

Public procurement is a key component of the EU single market, enabling cross-border

competition and broader access to markets for contracting authorities. However,

fragmentation in implementation undermines its effectiveness as an internal market

instrument. This calls for further EU-level action to ensure coherence and simplification and

to fully unlock the potential of an EU-wide procurement market for businesses and

contracting authorities alike.

In line with recent CJEU rulings11, the treatment of third-country economic operators in

public procurement falls within the common commercial policy, an exclusive competence

of the Union, and can therefore be regulated only at EU level. Only the Union, and not the

Member States acting individually, is competent to establish a coherent and uniform

framework governing the participation of third-country bidders. Action at EU level is

therefore both justified and necessary to ensure legal certainty and a level playing field across

the internal market.

• Proportionality

The proposed revision respects the principle of proportionality, as set out in Article 5 TEU

and follows what is adapted and necessary to achieve the objectives of ensuring a more

efficient, transparent and coherent EU public procurement framework, completing the

Union’s strategic objectives.

The establishment of the EU digital ecosystem is necessary to reduce fragmentation,

administrative burden and costs by mandating the interconnection of Member States’

eProcurement systems into a single integrated EU public procurement marketplace, thereby

also reducing compliance costs and facilitating cross-border participation and enhancing

overall market efficiency.

The European preference provisions in sector-specific acts are necessary to respond to the

new geopolitical imperatives, while fully respecting the Union’s international commitments.

They are designed in a proportionate manner so as not to impose disproportionate financial

burdens on contracting authorities’ budgets. They aim to limit administrative burden for

public buyers, notably through implementation support and the use of digital tools within the

procurement marketplace.

Determining at Union level the Best Price-Quality Ratio (“BPQR”) as the standard award

method with a “comply or explain” mechanism is necessary to achieve common social,

environmental and innovation policy objectives of the Union. While the impact on fraud and

irregularity risks depends on administrative capacity, several safeguards reduce such risks,

notably the requirement that all quality criteria remain linked to the subject-matter of the

contract, limiting potential distortions of competition.

11 Case C-652/22, Kolin İnşaat Turizm Sanayi ve Ticaret AŞ v State Commission for the Supervision of

Public Procurement Procedures; Case C-266/22, CRRC Qingdao Sifang Co. Ltd and Astra Vagoane

Călători SA v Autoritatea pentru Reformă Feroviară and Alstom Ferroviaria SpA.

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• Choice of the instrument

The proposed regulatory changes address the shortcomings identified in the evaluation of

the 2014 Directives by enhancing coherence and legal clarity through the merger of the three

Directives into a single Regulation and the streamlining of the procedural architecture. This

responds to persistent fragmentation and insufficient harmonisation across several EU

instruments, which has increased complexity, legal uncertainty and compliance costs. By

establishing a directly applicable Regulation, the framework creates a single set of rules at

Union level, improving consistency of application, reducing fragmentation and avoiding

divergent national implementation (“gold-plating”), while preserving necessary flexibility. In

line with the European Council’s “One Europe, One Market” mandate and the Letta Report’s

recommendation, this ensures greater legal certainty and a more level playing field across all

Member States.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER

CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

The evaluation aimed to assess the effects between 2016 and 2024 of the 2014 Directives on

public procurement. The evaluation provided an evidence-based assessment of the

effectiveness, efficiency, coherence and relevance of those Directives, and its findings

informed both the drafting process and the accompanying Impact Assessment.

The evaluation established that the objective of creating greater legal clarity and certainty

with respect to scope and coverage has not been achieved, and that the remaining objectives

have been only partially achieved: namely the simplification, streamlining and increased

flexibility of procurement procedures; the use of public procurement to support other policy

objectives such as social, environmental and innovation policy; the opening of markets to

greater cross-border competition and the facilitation of SME participation; and the

strengthening of the governance framework to prevent irregularities. While confirming that all

these objectives remain highly relevant today, the evaluation also found that the Directives are

not fit for purpose to ensure economic security and to respond to supply chain disruptions and

dependencies.

• Stakeholder consultations

In line with the Better Regulation Guidelines, the Commission conducted an ambitious and

inclusive consultation process designed to gather reliable evidence from the full range of

public procurement actors.

A combined call for evidence and public consultation ran from 3 November 2025 to 26

January 2026, generating 745 and 1 037 responses respectively, from business associations,

companies, public authorities, trade unions, NGOs and citizens, overwhelmingly from EU and

EEA countries. The open public consultation was structured around three thematic sections:

efficiency and transparency, the balance between green, social, innovation and other

objectives, and economic security and strategic autonomy.

These public consultations were complemented by dedicated engagement with Member States

and experts through the Expert Group on Public Procurement (EXPP), the Expert Group on

Electronic Public Procurement (EXEP) and the Stakeholder Expert Group on Public

Procurement (SEGPP), as well as targeted hearings with social partners and NGOs. Particular

attention was paid to the participation of SMEs, who were consulted specifically through the

Network of SME Envoys and a dedicated SME panel gathering 108 responses.

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• Collection and use of expertise

The results of these consultations, and in particular of the open public consultation, were

carefully taken into consideration in the preparation of the proposal. Respondents broadly

agreed on the need to move beyond the lowest-cost paradigm, increase procedural flexibility

and reduce administrative burden through full digitalisation, while strong support (exceeding

80% across all EU and EEA respondent groups) was expressed for prioritising European

goods and services in strategic sectors, notably through the expansion of non-price criteria

and the introduction of "European preference" mechanisms. SMEs identified simplification,

digitalisation and improved data availability as key priorities and pointed to the difficulties

caused by divergent national implementation. Their input directly informed measures aimed

at facilitating SME access.

• Impact assessment

In line with the Better Regulation Guidelines, this proposal is based on an impact assessment

that analyses the problem and sub-problems related to revision of the Public Procurement

Directives, in a global context of competitiveness challenges. The impact assessment

identifies possible policy options to address problem-drivers and assesses their likely impacts.

The impact assessment was structured to reflect the open public consultation, the call for

evidence, and the various consultations.

The impact assessment initially received a negative opinion from the Regulatory Scrutiny

Board on 17 April 2026. The Board cited several shortcomings that had to be addressed,

including insufficient analysis of coherence between the intervention and the sectoral acts

containing public procurement provisions, and inadequate assessment of the scale of problems

related to environmental, social, and innovation objectives. The Regulatory Scrutiny Board

also pointed out a need for better specifying and justifying the preferred policy options,

particularly regarding how quality would be defined under BPQR procurement, and for better

evaluating the costs, benefits, and proportionality of the preferred option, including its effects

on competition and prices. Finally, the Board highlighted that the report lacked a thorough

assessment of the combined impacts and unintended consequences of the preferred option,

notably the risks of simultaneously introducing more negotiations and greater reliance on

BPQR principles.

The above-mentioned points were addressed in a revised impact assessment submitted to the

Board, which issued a positive opinion with reservations on 8 June 2026. The Board

requested to provide further detail on the new open procedure with possible negotiations and

on BPQR and its “comply or explain” approach, and more clarity on the cost-benefit analysis.

These clarifications were provided.

The impact assessment is built around a set of 4 specific objectives that tackle the problem

drivers identified. It sets out two or three policy options for each specific objective (Flexibility

[FLX]; Environmental, Social and Innovation [ESI]; Buy European [BEU], and digital

marketplace [MPL]).

• FLX – [FLX.1] Maintains the existing procurement architecture while introducing

targeted flexibility, allowing the choice of procedure, permitting material corrections in

tenders where they do not alter the procurement's substance, improving guidance on

preliminary market consultations, and clarifying concepts such as "crisis" and concession risk.

It also aligns rules across directives and cross-references exclusion grounds with sectoral

legislation. [FLX.2] is merging the three existing directives into a single act and restructuring

procedures into an open procedure with possible negotiation, a dynamic procedure, an

innovation procedure, and contracts requiring only publication of public summary of result

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such as in emergencies. It also integrates exclusion grounds from existing sectorial acts and

where possible deletes them from the sectoral acts. It promotes pre-procurement

consultations, standardises negotiation phases with stronger transparency safeguards, and

strengthens anti-fraud and traceability requirements while removing sectoral duplication.

• ESI – [ESI.1] incentivises quality-based procurement by making the Best Price-

Quality Ratio the default award method under a "comply or explain" logic, with minimum

quality weightings. It promotes ecolabels, life cycle costing and performance standards,

frames innovation procurement, limits full subcontracting, and clarifies the link between

working conditions and the contract subject-matter. [ESI.2] builds on this by integrating

relevant horizontal provisions from other Union acts, harmonising definitions and centralising

enabling provisions for delegated and implementing acts. [ESI.3] makes the BPQR with

minimum quality weights compulsory with no opt-out, introduces binding Member State

targets and reporting obligations, makes EU Ecolabel use mandatory where applicable, further

restricts subcontracting chains, and integrates sector-specific requirements into the general

framework.

• BEU – [BEU.1] would introduce a voluntary European preference by codifying

existing CJEU case law and allowing contracting authorities to restrict participation to

EU/EEA and other internationally covered economic operators or goods (GPA and relevant

FTAs). It provides practical tools for verifying eligible countries and guidance on rules of

origin. [BEU.2] offers a framework for coherent European preference in selected sectors in

future acts, through a toolbox of mechanisms to public buyers, while standardising

definitions, origin rules and documentation and integrating these tools into the EU digital

procurement infrastructure. [BEU.3] makes European preference mandatory by requiring the

exclusion of non-EU/EEA or non-covered third-country economic operators, subject only to

limited safeguards such as lack of competition or excessive cost.

• MPL – [MPL.1] establishes a decentralised network of interconnected national

eProcurement platforms linked through an EU interoperability layer. It introduces a digital

business credential tool for verified company identity and eligibility data, a common

procurement eligibility service, and a unified data management framework, strengthening

transparency and anti-fraud capabilities through systematic data exchange, risk analysis tools

and mandatory reporting. [MPL.2] instead replaces national systems with a single EU-level

eProcurement platform for all procedures under the act, fully centralising procurement

processes, data management, monitoring and compliance tools at Union level.

On the basis of the data that are available, the proposal is expected to deliver significant net

cost savings, principally through the creation of the public procurement digital ecosystem. For

economic operators, the new requirements entail recurring costs of EUR 477 million, which

are more than offset by recurring savings of EUR 1 billion from the digital ecosystem and

other simplifications. For contracting authorities, the new recurring costs amount to

EUR 141 million, while the digital ecosystem yields annual savings of EUR 220 million. On a

per procedure basis, the average contracting authority saves approximately 4.4 %, whereas the

average economic operator saves around 8.9 %. Overall, the proposal therefore results in

substantial net savings for both economic operators and contracting authorities.

• Regulatory fitness and simplification

The proposal simplifies the legal framework by replacing the three existing Directives with a

single directly applicable Regulation. This reduces fragmentation, removes divergences

resulting from national transposition, and provides a more coherent and accessible set of rules

for public buyers and economic operators. It also streamlines the procedural framework by

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reducing the number of procedures and establishing more flexible and operational tools

adapted to different purchasing needs.

The proposal is also the product of a comprehensive regulatory deep cleaning exercise. The

consolidation into a single reference legislation, this Regulation, of provisions on exclusion

grounds, horizontal “what to buy” provisions and empowerments for green public

procurement that are currently scattered across sectoral legal acts will greatly simplify the

application of these rules in practice and enhance their readability and legal certainty.

Further simplification is achieved through greater use of digital solutions and structured data,

including interoperable digital tools, an electronic eligibility service based on the once-only

principle, and harmonised publication and data requirements, reducing repetitive

administrative formalities and improving efficiency. The proposal also reduces burdens for

economic operators, in particular SMEs, by limiting disproportionate selection requirements

and facilitating cross-border participation. At the same time, the proposal preserves the core

guarantees of transparency, equal treatment, competition and accountability required by

Union public procurement law.

• Fundamental rights

The proposal does not impact the Charter of Fundamental Rights

4. BUDGETARY IMPLICATIONS

The proposed initiative is expected to have a total financial implication for seven years of

about EUR 163.5 million, including a yearly 2% inflation rate.12 This budget covers around

EUR 142.2 million for operational appropriations and about EUR 21.3 million for human

resources. As stated in the LFDS, the annual breakdown foreseen is around EUR 22.0 million

in 2028, EUR 22.4 million in 2029, EUR 22.9 million in 2030, EUR 23.3 million in 2031,

EUR 23.8 million in 2032, EUR 24.3 million in 2032 and EUR 24.8 million in 2034.

The budget is expected to be financed under the Multiannual Financial Framework 2028-

2034. The estimated budgetary impact does not pre-judge the next Multiannual Financial

Framework. The source of financing and scope of Union financial commitment in the post-

2027 period remain subject to the outcome of interinstitutional negotiations on the MFF 2028-

2034 and thereafter shall be determined through the annual budgetary procedure.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

To ensure effective implementation, this Regulation provides for a phased approach for those

elements that require technical development or institutional adaptation, notably the digital

ecosystem including the electronic eligibility service, and the National Public Procurement

Data Spaces and Public Procurement Data Space. The Commission will support

implementation through delegated and implementing acts, guidance, technical specifications,

standardisation work, and, where appropriate, operational tools and digital services.

Member States will be required to designate a national coordinating authority and to put in

place the governance arrangements necessary to ensure effective coordination between the

12 The difference in costs presented in the legislative financial statement and in the impact assessment

arises because the legislative financial statement includes all costs, whereas the impact assessment

accounts only for the additional costs introduced by the policy measures on top of the so-called

business-as-usual costs. There are also slight differences in cost classification and presentation

stemming from the requirements of the financial regulation.

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authorities and bodies involved in the application of this Regulation. They will also be

required to support the professionalisation of procurement, including through national

strategies and appropriate support structures, and to ensure that the relevant actors have the

capacity to apply the new framework effectively.

This Regulation establishes a reinforced monitoring framework based on structured

procurement data. Each Member State will be required to establish or designate a National

Public Procurement Data Space as the central national access point for procurement and

contract lifecycle data. Those national data spaces will feed into a Union-level Public

Procurement Data Space managed by the Commission. This will enable more systematic

monitoring of procurement markets, strategic procurement outcomes, competition, cross-

border participation, SME access, and risks affecting integrity, resilience and security of

supply.

Member States will be required to establish an evidence-based framework to monitor the

functioning of their public procurement systems and markets and to make the results of that

monitoring publicly available at least once a year. Member States will report to the

Commission on the results of those analyses and on measures taken or envisaged to address

structural shortcomings where identified.

The Commission will continuously monitor the functioning of public procurement in the

Union on the basis of the data available in the Public Procurement Data Space. It will provide,

every three years, an analysis of the public procurement system across the Union.

In addition, this Regulation requires the Commission to carry out an evaluation seven years

after its entry into force and every seven years thereafter.

• Detailed explanation of the specific provisions of the proposal

Part I sets out the general provisions on subject-matter, scope, in particular the relevant

thresholds and the mechanisms for updating them, principles and definitions. This Regulation

requires public buyers to treat Union and covered economic operators equally and without

discrimination, act transparently and proportionately, and ensure the integrity of public

procurement procedures. Public contracts must ensure best quality for money, avoid undue

restrictions on competition, and aim at contributing to the achievement of the Union’s broader

policy objectives).

Part II defines relevant actors who participate in public procurement. Title I starts by

defining the public buyers covered by the rules, then covers utilities, listing the sectors

concerned and allowing exemptions where activities are directly exposed to competition and

setting out the procedure for requesting an exemption from the Commission. Title II concerns

economic operators, including groups, the use of third-party capacities, and subcontracting,

with well-calibrated rules framing the use of this instrument to avoid abuses. This title

furthermore sets out mandatory exclusion grounds, relating to serious offences such as

corruption, fraud, terrorism, trafficking, environmental crime, and child exploitation, and

optional exclusion grounds that relate to situations casting doubts on the reliability or integrity

of the economic operator concerned. The provisions on selection criteria set out clear rules on

the financial, technical and professional capacities of economic operators that public buyers

can require, if they wish to use selection criteria in their procurement procedures.

Part III lays down rules on procedures. Title I deals with public procurement procedures and

integrates provisions on planning, market consultations, choice of procedures, estimation of

the contract value, and the conduct of negotiations, which are allowed in all procedures, with

the appropriate safeguards for transparency and non-discrimination. The procedures include

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the open procedure, the dynamic procedure, the innovation procedure, and contracts requiring

only publication of public summary of result such as in emergencies and crises.

Title II deals with the strategic design and execution of public procurement, streamlining the

relevant definitions and provisions for taking into account considerations relating to the

Union’s broader policy objectives:

• Chapter 1 concerns green public procurement. It includes a definition of green public

procurement and enshrines obligations relating to fostering the circular economy, resource

efficiency, energy efficiency, and green public procurement requirements for certain products.

• Chapter 2 covers socially responsible public procurement, including accessibility,

reserved contracts for organisations whose main aim is the social and professional integration

of persons with disabilities or disadvantaged persons, and contracts for social, health and

educational services.

• Chapter 3 concerns public procurement of innovation. It clarifies innovation objectives

in public procurement, procurement of innovation, and intellectual property rights.

• Chapter 4 deals with security and resilience and clarifies how security considerations

are to be considered in public procurement. It provides a non-exhaustive list of the security

and public safety interests to be considered, and it regulates the termination of contracts and

the exclusion of operators during contract implementation for security reasons. It also seeks to

ensure compliance with cybersecurity requirements and defines resilience and security of

supply for critical entities and infrastructures.

• Chapter 5 clarifies the concept of European preference by defining covered economic

operators, goods, services and works: where they originate from a third country party to the

WTO Government Procurement Agreement or from a third country that has concluded a

bilateral or multilateral trade agreement with the Union. It sets out European preference

requirements, including the possibility to restrict or reject certain economic operators and

tenders. It also provides a framework for mandatory European preference in sector-specific

EU legal acts, while laying down exceptions where public buyers may decide not to apply

European preference.

Title III lays down horizontal provisions covering key aspects of the procurement process,

including excluded and mixed contracts, among them defence and security contracts, but also

various services not subject to procurement disciplines such as legal services, arbitration and

conciliation services, employment contracts etc. This Regulation clarifies the important

concept of subject-matter link and establishes clear provisions on technical specifications,

including the use of standards and labels, and on award criteria, in particular the use of quality

criteria through the BPQR. Title III further regulates other aspects of the conduct of

procedures, including confidentiality, conflicts of interest, prior involvement of operators,

deadlines, procurement documents, division into lots, abnormally low tenders, corrections and

cancellations, and framework agreements. Finally, it addresses contract execution, including

modification and termination of contracts, adjustment mechanisms, payments, and publication

and documentation requirements.

Part IV regulates concessions, specifies exclusions, and lays down rules on preparation,

design, and award procedures, including structured risk assessment. It also covers concession

duration and contract management (such as modifications and termination).

Part V defines the framework for the digital ecosystem sustaining the implementation of this

regulation. It creates interoperability rules for a secure public procurement data-exchange

network. This enables electronic communication between public buyers and economic

operators through different eProcurement service providers. It also sets obligations for the

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Commission to help providers with the eligibility check (exclusion grounds, selection criteria,

requirements of origin).

Part VI covers transparency and governance. The rules on data spaces (Title I) regulate the

setting up and functions of national public procurement data spaces on the one hand, and on

the other hand of the Public Procurement Data Space established by the Commission, a

central repository of procurement information originating from all NPPDS for the monitoring

of public procurement procedures and contracts at Union level. Title II sets out different

governance tools and mechanisms allowing for regular monitoring of the procurement system

to assess performance and support improvements; this includes the designation of a national

coordinating authority to oversee and coordinate implementation; and appropriate measures to

strengthen the professionalisation of public procurement as long term and strategic elements

of public governance.

Part VII sets final provisions, determining the exercise of delegation and giving power to the

Commission to adopt delegated acts. This Regulation repeals Directives 2014/23/EU,

Directive 2014/24/EU, Directive 2014/25/EU, and amends the horizontal public procurement

provisions included in Regulation (EU) 2014/1781, Regulation (EU) 2024/1735, Regulation

(EU) 2023/1542, Regulation (EU) 2024/3110, Regulation (EU) 2025/40, Directive

2023/1791, Directive 2008/98/EC, Regulation (EU) 2024/1252, Directive 2019/882, Directive

2022/2381, Regulation (EU) 2024/2847, Directive (EU) 2024/1760, Regulation (EU)

2024/1157; it also amends Regulation 1370/2007. Finally, it sets a review target seven years

after adoption and a deferred entry into application of two years.

EN 15 EN

2026/0265 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on public contracts and concessions, repealing Directives 2014/23/EU, 2014/24/EU and

2014/25/EU, and amending Regulations (EC) No 1370/2007, (EU) 2023/1542, (EU)

2024/1157, (EU) 2024/1252, (EU) 2024/1735, (EU) 2024/1781, (EU) 2024/2847, (EU)

2024/3110 and (EU) 2025/40, and Directives 2008/98/EC, (EU) 2019/882, (EU) 2022/2381,

(EU) 2023/1791 and (EU) 2024/1760 (Public Procurement Act)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular

Article 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) The award of public contracts and concessions by or on behalf of Member States’

authorities has to comply with the principles laid down in the Treaty on the

Functioning of the European Union (the Treaty), and in particular the free movement

of goods, freedom of establishment and the freedom to provide services, as well as the

principles deriving therefrom, such as equal treatment, non-discrimination, mutual

recognition, proportionality and transparency. For procurement procedures for public

contracts and concessions above a certain monetary value, it is necessary to establish

harmonised rules for procurement procedures so as to eliminate obstacles to the

functioning of the internal market and prevent the emergence of new ones in the form

of regulatory divergences between Member States, including as regards the pursuit of

strategic policy objectives. The evaluation of the current existing Directives

2014/23/EU1, 2014/24/EU2 and 2014/25/EU3 of the Parliament and the Council of the

2014 Directives confirmed that today’s public procurement rules know significant

1 Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the

award of concession contracts (OJ L 94, 28.3.2014, p. 1, ELI: http://data.europa.eu/eli/dir/2014/23/oj). 2 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public

procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65, ELI:

http://data.europa.eu/eli/dir/2014/24/oj). 3 Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on

procurement by entities operating in the water, energy, transport and postal services sectors and

repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p. 243, ELI:

http://data.europa.eu/eli/dir/2014/25/oj).

EN 16 EN

shortcomings. It found that their complexity and lack of flexibility creates significant

legal uncertainty for both public buyers and economic operators. Price-only awards

remain prevalent and the uptake of social, environmental and innovation requirements

continue to be limited. Rules on market access for non-EU companies lack clarity and

no longer respond effectively to today's geopolitical realities. Fragmented

eProcurement systems prevent proper transparency and efficient monitoring and

oversight and despite improvements in transparency, data gaps and quality issues at

both EU and national level hamper effective governance, strategic decision-making

and the prevention of corruption. This Regulation seeks to address these challenges

and is expected to ensure that public procurement is further opened to competition and

will at the same time serve as a tool for efficient public investments in line with the

EU’s broader policy objectives. Obligations under other Union legislation continue to

apply and remain unaffected.

(2) This Regulation is to lay down rules for procurement procedures for public contracts

and concessions above certain thresholds. As regards contracts that are not covered by

this Regulation, Member States remain free to regulate the award of such contracts

subject to ensuring respect of any applicable Union legislation, including Treaty

principles in case of cross-border interest. This Regulation establishes procedural rules

for awarding the contracts and concessions covered, as well as the procurement related

aspects of the planning and the execution of those contracts, sets out how to take into

account broader policy objectives and establishes a framework for a common digital

ecosystem to be used in their planning, award and implementation of as well as

mechanisms and requirements to ensure efficiency and accountability of public

purchasing. By contrast, this Regulation should not regulate the overall administrative

environment in which those public procurement procedures take place. Hence,

national rules on the functioning and organisation of public administration in general,

in particular those relating to budgetary and financial controls, and to decision-making

structures inside public administration, remain unaffected. National civil law and

general rules on contractual relationships, which form part of the broader national

legal framework in which the rules laid down in this Regulation will operate, also

remain unaffected.

(3) It should be recalled that nothing in this Regulation obliges Member States to contract

out or externalise the provision of services that they wish to provide themselves or to

organise by means other than public contracts within the meaning of this Regulation.

The provision of services based on laws, regulations or employment contracts should

not be covered. In some Member States, this might be the case for certain

administrative and government services such as executive and legislative services, the

provision of certain services to the community, such as foreign affairs services or

justice services or compulsory social security services.

(4) This Regulation should not affect the social security legislation of the Member States,

nor should it deal with the liberalisation of services of general economic interest,

reserved to public or private entities, or with the privatisation of public entities

providing services. Member States are free to organise the provision of compulsory

social services or of other services either as services of general economic interest or as

non-economic services of general interest or as a mixture thereof. Non-economic

services of general interest should not fall within the scope of this Regulation.

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(5) Council Decision 94/800/EC4 approved among other things, the conclusion of the

World Trade Organization Agreement on Government Procurement (the ‘GPA’) on

behalf of the Union. The GPA establishes a multilateral framework of balanced rights

and obligations relating to public contracts with a view to achieving the liberalisation

and expansion of world trade. For contracts covered by Annexes 1, 2, 4 and 5 and the

General Notes to the Union’s Appendix I to the GPA, as well as by other relevant

international agreements by which the Union is bound, public buyers should, in order

to comply with the obligations under those agreements apply this Regulation to

economic operators of third countries that are Parties to the agreements. All new

elements introduced in this Regulation have been designed with a view to ensuring full

alignment with the Union’s obligations under the GPA.

(6) The thresholds established by this Regulation should serve to determine the contracts

and concessions to which the full set of Union procurement rules applies. Those

thresholds should continue to reflect the Union’s international commitments under the

GPA, while ensuring legal certainty, and administrative practicability. In order to

ensure consistency with the Union’s international obligations under the GPA, the

thresholds applicable to public procurement should be aligned with those expressed in

Special Drawing Rights (SDRs) as defined by the International Monetary Fund, and

therefore should be periodically revised, based on the average value of the euro against

SDR. Apart from those periodic mathematical adjustments, the Commission will

explore with GPA partners the question of an increase in the thresholds set in the

GPA.

(7) In order to ensure the proper functioning of the Union’s internal market in public

procurement, public procurement should be guided by the principle of best quality for

public money, thereby serving the objective of efficient public spending and

investment, and public buyers should treat economic operators that originates from the

Union, a third-country that is party to the GPA or a third-party that has concluded a

bilateral or multilateral trade agreement with the Union, under the conditions laid

down in that agreement, equally and without discrimination, acting in a transparent

and proportionate manner. Public buyers should also take appropriate measures to

safeguard the integrity, impartiality and fairness of the procurement process, and

should not design their procurement to exclude it from the scope of this Regulation or

to unduly restrict competition. Respect for these principles is essential to guarantee

effective competition, lift and prevent barriers to market access and help ensure

efficient public investments.

(8) Public procurement constitutes a key instrument for advancing the Union’s strategic

policy objectives. It is necessary to regulate the strategic use of public procurement to

avoid that diverging practices by public buyers throughout the Union create obstacles

to the internal market. Public procurement procedures should be guided by the Union

policy objectives, including strengthening the competitiveness of the internal market,

supporting innovation and the clean industrial base, achieving climate and

environmental targets, a fair and inclusive society, in particular fair working

conditions, including as fostered by social dialogue, and enhancing the Union’s safety,

security, resilience and economic security, including through strategic independence.

Taking into account the diversity of national systems and respecting the autonomy of

4 Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the

European Community, as regards matters within its competence, of the agreements reached in the

Uruguay Round multilateral negotiations (1986-1994) (OJ L 336, 23.12.1994, p. 1, ELI:

http://data.europa.eu/eli/dec/1994/800/oj).

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social partners, public buyers can use socially responsible public procurement to

support high-quality jobs and social fairness, including through acknowledging the

role of collective bargaining.

(9) It is appropriate to maintain rules on procurement by entities operating in the utility

sectors of water, energy, including gas, understood as natural gas or any other gas,

transport and postal services, since national authorities continue to be able to steer the

behaviour of those entities and/or the existence of special or exclusive rights.

Contracting entities should be exempted from this Regulation when the activities they

carry out are directly exposed to competition on markets to which access is not

restricted. Whether a given sector, or parts thereof, is directly exposed to competition

should be assessed in respect of the specific area in which the activity, or the parts

thereof concerned, are carried out. The so-called ‘relevant geographical market’ is

either the territory of a Member State or parts of it. The notion of ‘relevant

geographical market’ should be based on similar criteria set out in other Union

legislation.

(10) Direct exposure to competition should be assessed by the Commission upon request of

a Member State or a contracting entity. In order to render easily accessible, the

procedure for establishing that this Regulation does not apply to a certain activity, it

should be clarified that an exemption decision can already be taken in the preparatory

phase before the actual submission of a formal request, in situations where the

information already available to the Commission allows it to conclude that the

conditions for exempting the activity are met. Furthermore, to facilitate the

Commission’s assessment in the formal phase, it is preferable that requests for

exemption are accompanied by, or incorporate, a reasoned and substantiated recent

position on the competitive situation in the sector concerned, adopted by an

independent national authority that is competent in relation to the activity concerned or

for the application of competition rules, or both. Where the circumstances which are

the basis of an implementing act establishing that this Regulation does not apply to a

certain activity substantially change, such implementing act may be modified

corrected or revoked.

(11) To enhance access to business opportunities in public procurement and increase

competition for the award of contracts, the participation of groups of economic

operators should be further facilitated. This is of particular importance for micro, small

and medium-sized enterprises (SMEs), which often face difficulties in accessing larger

procurement opportunities. Therefore, the rules governing economic operators

participating jointly in a procurement procedure should be clear and simple, while

ensuring that only requirements that are necessary and proportionate for the proper

performance of the contract are imposed.

(12) Subcontracting parts of a contract remains a practical and powerful tool of

collaboration between economic operators. The rules for subcontracting set out in this

Regulation should preserve contractual freedom and facilitate access for SMEs,

enabling them to participate effectively in public procurement and related supply

chains. Subcontracting the entirety of a contract should however not be allowed under

this Regulation, in particular in order to avoid that subcontracting is misused

especially in sectors which may be more vulnerable to labour exploitation owing to

cost pressures and complex subcontracting chains. To ensure better transparency of

subcontracting, public buyers should require tenderers to indicate any intended share

of subcontracting and any proposed subcontractors. Where provided for by national

law, public buyers should be able to require the main contractor, after award and

EN 19 EN

before performance, to inform them of the tasks to be subcontracted and of the identity

of the subcontractors beyond the cases provided for under this Regulation. The rules

for subcontracting in this Regulation leave unaffected the existing rules in the field of

employment and social protection applicable at Union and national level, in particular

as regards the duties, responsibilities and liability of employers throughout the

subcontracting chain.

(13) Economic operators should be excluded from participation in procedures where they

have been convicted by final judgment for certain serious offences. So-called self-

cleaning measures should not be permitted for mandatory exclusions, while for

optional exclusions, which are related to the reliability of the economic operators, they

should be able to rebut the existence of the exclusion ground, which preserves their

rights to be heard, or demonstrate their reliability by means of self-cleaning measures.

In that context, due account should be taken of any cooperation with the investigating

authorities aimed at clarifying the relevant facts and circumstances. For example, in

cases involving violations of competition rules, such cooperation may take the form of

participation in a leniency programme or settlement procedure before the Commission

or a national competition authority. In particular, the granting of immunity from fines

under a leniency programme should, in principle, constitute strong evidence

demonstrating the reliability of the economic operator despite the existence of the

exclusion ground. Member States should not add other grounds for exclusion based on

criteria relating to professional situation of the tenderer.

(14) Selection criteria should remain limited to what is necessary to ensure that the

economic operator has the technical, professional, legal and financial capacity to

perform the contract, so as to ensure the widest possible access to public procurement,

in particular for SMEs. Public buyers should not require prior experience in public

contracts as such, unless this is strictly justified by the complexity of the contract or

the nature of the subject-matter concerned, and should also avoid excessive financial

requirements which can unnecessarily exclude SMEs and newer market entrants from

procurement opportunities.

(15) In order to simplify and modernise the verification of the eligibility of economic

operators in public procurement procedures, the electronic eligibility service should

constitute the principal means of proof for the absence of exclusion grounds,

compliance with selection criteria and, where relevant, fulfilment of origin-related

requirements. The digital business credential tool used in this context should enable

the retrieval of structured evidence from relevant national and Union databases, which

should be interconnected to the electronic eligibility service to allow for the use of

automated verifications, where possible. Where verifications are based on personal

data, national and Union law should include suitable safeguards to mitigate the risks to

individuals, including rules on who can access and view the data as well as the

limitation of access only to such data as is necessary to access within the scope of this

Regulation. Individuals should also have the possibility to review the outcome of the

verification before it is provided to the public buyer.

(16) Public buyers should be encouraged to carry out market consultations before

launching procurement procedures in order to improve their understanding of available

market solutions, of the maturity and structure of supply markets, and of potential

strategic or operational constraints.

(17) Negotiations can enable public buyers to improve the quality, efficiency and overall

value of the procured solution, especially where the subject-matter requires adaptation

EN 20 EN

to operational needs or the balancing of strategic considerations. The possibility to

negotiate solutions with a successive reduction of the number of economic operators in

the procedure aims at achieving broad access to competition with the possibility for

the public buyer to refine solutions and contractual terms through negotiation where

that is conducive to achieving best quality for money. At the same time, it is necessary

to clarify that the conduct of negotiations should remain subject to safeguards ensuring

equal treatment, proportionality and the protection of commercially sensitive

information. Therefore, negotiations should only concern non-essential characteristics

of the works, services and supplies to be purchased; and public buyers should clearly

indicate all non-negotiable elements which, in turn should include the essential

conditions of the contract that are determinative for economic operators’ decision to

participate in the procedure.

(18) A new simple and flexible open procedure should be established, which allows any

interested economic operator to express interest and submit a tender, and where the

use of negotiations and of selection criteria remaining optional for the public buyer.

The open procedure should ensure that public buyers can decide not to apply selection

criteria where not needed to ensure good procurement outcomes, thereby lifting one of

the major burdens for SME participation in public procurement.

(19) A new dynamic procedure should be established to provide public buyers with an

easy-to use, quick and agile tool to procure from a pre-constituted supplier base,

through reaching out, ahead of the individual contracts to be awarded, to all interested

economic operators available to perform the contract throughout its validity.

Negotiations and the use of selection criteria should be optional for public buyers, as

in the open procedure. Economic operators should be able to express their interest in a

simple and straight-forward way, simply by sharing their eligibility profile with the

public buyer through the electronic eligibility service. In view of the potentially large

number of economic operators interested in dynamic procedures, and in order to

ensure administrative efficiency and to guarantee fairness, public buyers should be

able, where the number of interested suppliers exceeds a certain level, to invite only a

limited number of suppliers. Selection of economic operators invited to tender or to

negotiate should take place by means of a random indiscriminate algorithmic

determination or, in cases where admission to the procedure in the first place is done

on the basis of selection criteria, either without further selection, or on the basis of

objective, non-discriminatory criteria indicated in the competition public summary.

(20) Public authorities are increasingly confronted with complex societal challenges that

require innovative and collaborative approaches extending beyond traditional

procurement practices. Public buyers should be allowed to co-create innovative

solutions that address public needs more effectively, through a competitive procedure

in which economic operators are invited to develop solutions based on societal

challenges identified by the public buyer. The development of those solutions should

take place in different phases, including market consultation, selection of innovative

solution proposals, testing and validation, and assessment of the proposals, and

commercial purchase of the solution which public buyers should be allowed to

purchase directly from the same economic operator.

(21) This procedure allows public buyers to purchase a yet-to-be developed solution,

covering within the same procedure the research and development of that solution as

well as all steps leading up to and including the commercial purchase. The innovation

procedure covers the full cycle of innovation procurement, possibly from very early

stages of research, the subject-matter of the procurement being the purchase of the yet

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to-be-developed solution. It is therefore markedly different from R&D services

procurement, which include pre-commercial procurement, whose subject-matter is not

the purchase of the final solution but of research and development services. Unlike the

innovation procedure, R&D services procurement therefore does not include the

commercial deployment of the yet to-be developed end product. Research and

development services, including pre-commercial procurement, are regulated in the

[European Innovation Act], and they should be excluded from the scope of this

Regulation to avoid overlaps. This exclusion of research and development service

contracts covers research and development service contracts as such and does not

extend to the research and development elements that are part of the new innovation

procedure.

(22) The award of public contracts without prior competition should remain strictly

exceptional and justifiable only where competition is objectively impossible or

manifestly inappropriate and where additional flexibility is not used to circumvent the

general principles of transparency, equal treatment and sound competition. In

situations of emergency, crisis or serious cross-border threats, public buyers may need

to procure rapidly in order to ensure continuity of essential services, respond to urgent

public needs, or safeguard public health and safety. Public buyers should therefore be

allowed to have recourse to a simplified direct procurement mechanism, without

prejudice to other Union instruments governing joint procurement or crisis response.

(23) Article 11 of the Treaty requires that environmental protection requirements be

integrated into the elaboration and implementation of Union policies and activities.

Union policies should therefore be developed with a view to promoting, in particular,

the objectives of climate change mitigation and adaptation including emission

reductions, the sustainable use and protection of water and marine resources, the

transition to a circular economy, pollution prevention and control, and the protection

and restoration of biodiversity and ecosystems. Green public procurement should also

contribute to the development of lead markets for sustainable bio-based products and

solutions, in line with the Bioeconomy Strategy. It is necessary to clarify how public

buyers can contribute to such objectives, whilst ensuring that they obtain the best

quality for money and any conditions remain linked to the subject-matter of the

contract. Horizontal environmental sustainability requirements that have been

previously provided for in sectoral legislation, in particular on energy efficiency and

the transition to a more circular economy, should be established as requirements for

green public procurement in this Regulation, while preserving the core substance of

the requirements that have been previously provided for in the sectoral legislation. To

reduce administrative burden and facilitate the use of Green Public Procurement,

public buyers should be able to use existing environmental requirements and criteria

developed at Union level, such as the technical screening criteria set out in Regulation

(EU) 2020/852 or EU Green Public Procurement voluntary criteria developed by the

Commission.

(24) In view of the crucial role of resilient food systems in ensuring food security and

protecting public health, this Regulation recognises the importance of economic,

climate, environmental and social sustainability considerations in the procurement of

food. These food-specific considerations may include, to the extent that they are linked

to the subject matter of the contract, fairness and transparency in food supply chains,

organic production methods, quality schemes, nutritional value and health effects,

freshness and seasonality, organisation of food supply chains or animal welfare. This

can play an important role in bringing consumers, particularly in settings such as

EN 22 EN

schools and hospitals, closer to sustainable food production. Given its very limited

cross-border dimension, procurement of services related to food distribution such as

canteen services, catering services, school meal services, restaurant services and

meals-on-wheels services is subject to a direct award procedure under which public

buyers have wide leeway to take into account and accommodate food-specific

considerations.

(25) For certain products or product families, for which Union legislation establishes

environmental requirements, and contains empowerments for the Commission to

enshrine specific rules for public buyers in this regard, it is appropriate to consolidate

these empowerments in this Regulation, which should therefore provide for a

horizontal empowerment covering the products in question. Following the logic of the

sectoral legislation, this empowerment should allow the Commission to set specific

requirements for green public procurement for the products covered where necessary

to avoid fragmentation of the internal market and foster the demand for certain

products. This empowerment should enable the Commission to adopt delegated acts

where necessary to maintain fully the substance of provisions previously enshrined in

sectoral legislation, like energy efficiency of tyres.

(26) To facilitate and enable public buyers to take social considerations into account, where

relevant to the subject-matter of the contract and in compliance with the principles

governing public procurement, this Regulation brings together, in a dedicated social

chapter, EU social objectives of a horizontal nature. These objectives include social

inclusion, high-quality jobs and decent working conditions, accessibility for persons

with disabilities, gender equality and non-discrimination, training, the promotion of

the social economy, as referred to in Council Recommendation C/2023/13445, and

effective human rights protection in relevant supply chains. It is to be stressed that the

Union recognises and promotes the role of the social partners at its level, taking into

account the diversity of national systems. Accessibility requirements should continue

to be of a mandatory nature for the public procurement of goods, services and works

intended for use by natural persons.

(27) By using public purchasing power for the fast market uptake and expansion of

innovative solutions, public authorities can help bridge the innovation gap and

facilitate the transition from a limited first production for testing and validation to

commercialisation. Such an approach can contribute to increased productivity,

improve market access for SMEs such as innovative startups and scaleups.

(28) In construction, which accounts for roughly 30 % of the value of public contracts

awarded, innovation is supported through the use of Building Information Modelling

(BIM) as a standard approach in public procurement and project delivery. Using open

BIM digital technologies reduces project risks and enables more efficient design and

construction processes, while continuously increasing impact on sustainability

objectives. Accordingly, public buyers should in principle use it for the

implementation of high-value contracts.

(29) Security and public safety risks may arise in a wide range of procurement procedures,

including outside defence and sensitive security sectors in the strict sense. Public

buyers should be aware of, assess and address such risks in the design and conduct of

procurement procedures and in performance of contracts.

5 Council Recommendation of 27 November 2023 on developing social economy framework conditions

(OJ C, C/2023/1344, 29.11.2023, p. 1, ELI: http://data.europa.eu/eli/C/2023/1344/oj).

EN 23 EN

(30) Public procurement in sectors critical to the functioning of society and the Union

economy including energy, transport, health, digital infrastructure, water, food and

agriculture and financial market infrastructure, can create or compound strategic

vulnerabilities where supply chains are concentrated, opaque, or excessively

dependent on a limited number of operators or third-country sources. Where a public

contract is intended to be performed by a critical entity, in these sectors, public buyers

should, where relevant, include in their public contracts measures relating to security

of supply and resilience, without prejudice to applicable sectorial Union legislation.

(31) This Regulation is without prejudice to the application of State aid and competition

rules, in particular Articles 101, 102 and 107 of the Treaty on the Functioning of the

European Union. The measures provided for in this Regulation should not be used to

restrict or distort competition in a manner contrary to the Treaty on the Functioning of

the European Union.

(32) The Union has concluded international agreements that provide for access to its public

procurement markets to third-country economic operators and goods, services or

works, in particular the GPA and a number of free trade agreements with procurement

commitments. The existence of market access granted depends on the type of

procurement procedure, the nature of the public buyer, the subject-matter of the

contract, the applicable thresholds, and the specific carve-outs or horizontal

exemptions negotiated in each agreement. To give effect to this graduated and

procedure-specific coverage, this Regulation introduces the concepts of 'covered

economic operator' and 'covered goods, services or works', which are determined

separately for each procurement procedure on the basis of the Union's international

commitments applicable to each individual procurement. The Commission should be

empowered to adopt delegated acts on this matter, in accordance with the relevant

international agreements, where warranted for the reasons laid down in this

Regulation. Where candidate countries have concluded an agreement with the Union

providing for access to public procurement, economic operators, goods, services and

works originating from those countries should be regarded as 'covered economic

operators' and 'covered goods, services or works' for the purposes of this Regulation,

in accordance with the terms and conditions set out in the relevant agreement. This

approach reflects the perspective of enlargement and the gradual integration of

candidate countries into the Union's internal market, and is intended to support closer

economic integration, encourage regulatory alignment, and strengthen the application

of the Union's rules and standards in its immediate neighbourhood.

(33) In line with the case law of the Court of Justice of the European Union, in particular its

judgments in Case C-652/22 (Kolin)6 and Case C-266/22 (Qingdao)7, the rights and

principles derived from Union public procurement law do not extend to economic

operators, goods, services or works originating in third countries that are not covered

by such international commitments. The same principle should apply also to goods,

including components of products procured, services or works originating in such

countries. Building on this principle, this Regulation enables public buyers to apply

European preference requirements, in line with the Union’s international obligations.

(34) The Commission should be empowered to close specific procurements to non-covered

economic operators or non-covered goods, services or works on the condition that

such closure is in the interest of the Union. The interest of the Union to close certain

6 Case C-652/22, Kolin Inşaat Turizm Sanayi ve Ticaret, EU:C:2025:178. 7 Case C-266/22, CRRC Qingdao Sifang and Others, EU:C:2024:910.

EN 24 EN

procurements should be assessed based on an appreciation of all relevant interests

taken as a whole, in particular economic, geopolitical and societal interests of the

Union, its Member States and its citizens. The relevance of such Union interest is

illustrated by sectors such as railways and shipbuilding which, as manufacturing

sectors of a dual-use nature, rely on infrastructure, mobile assets and information and

communication technology (ICT) and traffic management systems that must be

resilient and are critical to military mobility, security, and the Union's strategic

autonomy objectives. Their strategic importance has been underlined by recent Union

initiatives including the EU Economic Security Strategy, the EU High-Speed Rail

Plan, and the EU Maritime Industrial Strategy. The Joint Communication on

strengthening EU economic security also emphasised the risks related to involvement

of high-risk entities in sensitive sectors and supply chains.

(35) Clear and uniform rules on the determination of origin are necessary to ensure the

effective and consistent application of international coverage and European preference

provisions across all procurement procedures. This Regulation should therefore

establish rules of origin for the application of the European Preference requirements

set out herein. Where Union legislation applicable to specific sectors introduces

European preference requirements, those rules should prevail as lex specialis. This is

the case, in particular, for critical medicinal products, where Article [18(2)] of

Regulation (EU) …/… [reference to be added after adoption of c.f.

COM(2025)102final] establishes mandatory rules for favouring the suppliers of

critical medicinal products and their active substances manufactured in the Union,

which exhaustively regulates the application of European preference with regard to the

critical medicinal products falling within its scope. At the same time, where the

sectoral legislation does not provide the modalities for the application of those

requirements, public buyers should rely on the horizontal rules set out in this

Regulation.

(36) Certain contracts and the concessions awarded for the provision of public service

transport within the scope of Regulation (EC) No 1370/20078 are excluded from the

scope of this Regulation. However, the provisions of Chapter 4 on “Security and

Resilience” and Chapter 5 on “European Preference” of this Regulation should be

applicable to all contracts and concessions subject to Regulation (EC) No 1370/2007

in order to ensure a coherence regarding the application of those provisions to all

contracts and concessions whether or not are subject to the provisions of public

procurement established by this Regulation. Therefore Regulation (EC) No 1370/2007

should be amended accordingly.

(37) Horizontal rules applicable to all procurement procedures under this Regulation should

build on well-known concepts from Directives 2014/23/EU, 2014/24/EU and

2014/25/EU of the Parliament and the Council, and the case-law by the Court of

Justice of the European Union, modernising and clarifying them where needed, to

better achieve the objectives set out in this Regulation, including in particular the

integrity and non-discriminatory competitiveness of the procurement procedure.

(38) The existing exclusions from scope for certain types of contracts awarded by public

buyers to legal persons controlled by them or within public-public cooperation

arrangements should be maintained. As the contracts referred to in these two

8 Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on

public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos

1191/69 and 1107/70 (OJ L 315, 3.12.2007, p. 1, ELI: http://data.europa.eu/eli/reg/2007/1370/oj).

EN 25 EN

exclusions are out of the scope of this Regulation, Member States remain free to

enshrine stricter rules or open these contracts to competition in their national law.

Cooperation exclusively between local and regional authorities, as it is less likely to

entail risks of distorting competition with economic operators, should be excluded

from the scope of this Regulation under less stringent conditions. Finally, the existing

possibility for contracting entities to rely on established structural links with affiliated

undertakings or joint ventures to perform specific activities should also be maintained.

(39) Excessively detailed specifications often contribute to unnecessarily reducing the

participation of economic operators and hamper innovation. In order to facilitate

competitive procurement markets, the specifications defining the characteristics of the

works, supplies or services that are subject of the procurement should, as a general

rule be drafted in terms of functional requirements. Variants should be used more in

public procurement procedures in view that they can contribute to enhancing

competition and fostering innovative and cost-effective solutions. By allowing

economic operators to propose alternative approaches, public buyers could benefit

from a wider range of tenders better tailored to their needs. Such approach could also

benefit SMEs, enabling them to put forward flexible, innovative or more specialised

solutions that may differ from standard specifications and better reflect their specific

expertise or business models.

(40) In order to ensure non-discriminatory access to procurement it is of crucial importance

that any criteria and conditions applied in procurement procedures remain directly or

indirectly linked to the subject-matter of the contract, relating to the material substance

of the goods, services and works procured, or, without relating to the material

substance, directly impacting those goods, services and works. As the notion of

subject-matter link has been subject to prejudicial diverging interpretations, the notion

should be clarified in this Regulation. Examples of considerations that are linked to the

subject-matter of a given contract could include that the manufacturing of the

purchased products did not involve toxic chemicals, the purchased services are

provided using energy-efficient machines or energy-efficient production methods, the

product concerned is of fair-trade origin, including the requirement to pay a minimum

price and price premium to producers, fair wages are ensured for workers involved in

the execution of the contract in question. The condition of a direct or indirect link to

the subject-matter of the contract excludes criteria and conditions relating to general

corporate policy.

(41) Labels are valuable means of proof that help public buyers to integrate environmental,

social, or other strategic considerations in public procurement. Public buyers that wish

to purchase products, services or works with specific environmental, social or other

characteristics should be able to refer to particular labels provided that their

requirements are linked to the subject-matter of the contract and compliant with

certain label quality requirements. When public buyers decide to request an ecolabel,

they should request life cycle, third-party verified ecolabel with a high level of

ambition and, when EU Ecolabel criteria have been adopted for a product, a service or

work, they should require in the first place the EU Ecolabel, which is the official EU

voluntary scheme for environmental excellence of goods and services.

(42) To make public spending a more efficient investment tool in line with the Union’s

strategic policy objectives, greater emphasis should be placed on long-term public

benefit rather than focusing only on the lowest upfront cost. Putting quality at the

centre of public purchasing will allow public buyers to acquire works, supplies and

services that provide better guarantees for meeting their needs in a longer term

EN 26 EN

perspective, at the same time serving overall societal objectives. Therefore, public

contracts should, as a general rule, be awarded on the basis of the best price-quality

ratio, allowing public buyers to compare tenders not only on price, but also on quality

criteria linked to the subject-matter of the contract, including environmental, social,

innovation, European preference, security and resilience aspects where relevant, as

well as life-cycle costing. The evaluation of such award criteria should be framed with

sufficient safeguards for the fairness of the evaluation process, such as separating price

and quality assessments and securing the “four eyes principle”, but could also include

other measures such as conducting individual evaluations prior to collective

deliberation, maintaining a documented audit trail and publication of all scoring

justifications for high-value contracts. A minimum weighting of 30%, and 50% for by

their nature labour-intensive contracts whereby the 50% should include significant

social considerations, should therefore be provided for quality criteria in the award

phase, while allowing public buyers to derogate from this requirement, where the

quality of the procured works, supplies or services can be sufficiently ensured through

specifications, conditions for performance of contracts, or a combination of any of

those instruments with award criteria.

(43) SMEs play a crucial role in the Union’s economy. Therefore, procurement procedures

should be designed in a proportionate manner, avoiding unnecessary administrative

and financial burdens, to facilitate the access of SMEs to public procurement,

including as single direct contractors or as members of groups of economic operators.

Conducting procurement through the new digital ecosystem is expected to

significantly reduce procedural and administrative barriers for SMEs, including

documentation and registration requirements. The division of contracts into

meaningful lots remains one of the main tools to facilitate participation of SMEs in

public procurement and diversify the supplier base. Therefore, public buyers should

actively consider division into lots as part of the procurement design process. In view

of the existence of stricter national regimes in a number of Member States which

Member States should be able to maintain, Member States should be allowed to

impose stricter rules of division into lots. Prompt payment, including through the

supply chain further contribute to securing and strengthening the financial standing of

SMEs, as do advance payments which should therefore be encouraged.

(44) To ensure sound procurement procedures which yield best quality for money, public

buyers should reject tenders where abnormally low prices cannot be properly

explained. The circumstances under which tenders appear abnormally low and which

conditions tenderers can refer to explain their prices and price elements should be

clarified.

(45) It is also necessary to have clearer rules regarding certain aspects related to the

contract execution phase, including payments, due to its close link with the

procurement procedure itself. It should be clarified how public buyers can apply

adjustment mechanisms during the performance of contracts, and how contracts can be

modified, particularly in unforeseen circumstances. A clear and transparent adjustment

mechanism should be introduced to enable public buyers to modify contract terms in a

predictable and proportionate manner. The provisions on modifications of contract

should be streamlined to allow for better application in situations justifying a

modification without new competitive procedure. Robust safeguards are required to

ensure that any substantial modification of the contract, in particular to the scope and

content of the mutual rights and obligations of the parties, is subject to adequate

justification, where appropriate, prior publication and potential review to combat

EN 27 EN

potential misuse. Where modifications exceed 50% of the initial estimated value of the

contract, there is an increased risk that such modification would alter the economic

balance of the contract, such modifications should therefore be subject to increased

transparency obligations.

(46) Rules should be laid down to ensure traceability of decisions taken throughout the

procurement procedures. Documentation of the individual procurement procedure

remains key to validate the proper application of this Regulation. It should be

automated to the extent possible in the electronic procurement platforms.

Transparency of procurement opportunities is the cornerstone of ensuring equal access

of all economic operators throughout the Union to procurement Union-wide. Proper

publication of such opportunities should therefore be guaranteed through rules on the

information to be published. To allow for a data-focused approach, general categories

of information should be provided in this Regulation. Categories of information are

grouped, allowing the establishment of a comprehensive view from procurement

planning to contract completion, yielding collections of relevant data points, instead of

a more static paper-based focus on forms, supporting the lowering of administrative

burdens. Publication deadlines and modalities, including at national level, should also

be laid down in this Regulation.

(47) Concessions and public contracts share the same core objective of enabling public

buyers to meet public needs through works or services. They differ primarily in their

remuneration structures rather than their essential purpose. Given their similarities,

including their reliance on competitive selection procedures, the pursuit of horizontal

policy objectives and the potential use of public assets, it is appropriate to harmonize

their legal frameworks to the extent possible, to enhance clarity, reduce complexity,

and ensure consistent implementation of Union priorities. This approach, supported by

flexible procedural rules, provides clearer guidance for public buyers while

maintaining necessary distinctions.

(48) In order to address the conceptual uncertainties arising from the definition of

concessions under Directive 2014/23/EU, and to distinguish it from other types of

contracts such as land-leases agreements, it is necessary to clarify the definition of

concession and the concept of operating risk, which constitutes the determining

criterion for the qualification of a contract as a concession. The definitional elements

set out in this Regulation should be understood as remaining limited to defining the

scope of this Regulation, without impacting definitions of operating risks for purposes

of other policy areas. The new definition should focus directly on the concessionaire’s

exposure to uncertain economic outcomes that may affect the recovery of investments

and operating costs under normal market conditions, rather than relying on rigid

overly prescriptive categories of risk. This approach ensures that factors such as

demand, supply, availability, lifecycle, or performance risks are not treated as

standalone legal criteria but are instead regarded as illustration of the underlying

economic exposure that characterises the transfer of operating risk. Regulatory

mechanism under which operators are remunerated pursuant to statutory or regulated

tariffs that fully compensate for their investment and operating costs, thereby

eliminating genuine operating risk, do not constitute concessions within the meaning

of this Regulation. Regulatory measures whose principal purpose is to grant financial

support, or other incentives should not, as such, be considered concessions merely

because they are allocated through a competitive procedure and impose certain

requirements on beneficiaries. Rights of way relating to the construction and operation

EN 28 EN

of fixed lines or networks should also not be considered concessions where they do not

entail an obligation of supply or an acquisition of services by the public authority.

(49) To ensure effective management of concessions from preparation to implementation,

this Regulation introduces structured contract management elements, including prior

risk assessment to verify that real and economically meaningful operating risk is

transferred to the concessionaire. This prior structured risk assessment should identify

the principal categories of risk and determine, on the basis of objective elements, the

allocation of those risks between the parties. For those purposes regard should be had

to the parties’ respective ability to control or influence the occurrence or consequences

of the relevant risks, without thereby relieving the concessionaire of exposure to

potential losses, even where the public buyer bears part of the risk or where the overall

exposure to potential losses is limited. The duration of concessions should be

proportionate not only to the time required for the concessionaire to recoup

investments but also to foreseeable sectoral developments, such as technological,

environmental, climatic, or societal changes, that could affect the concession’s

performance. Excessively long durations may increase the need for substantial

modifications, thereby undermining the initial risk allocation and competitive

conditions. Contracts should enable adaptation to evolving requirements relating to

sustainability, technological advancement, security, innovation, and resilience,

ensuring concessions remain fit for purpose throughout their lifecycle.

(50) The rules on modifications of concessions have proven difficult to apply in practice.

This Regulation, while retaining the existing framework’s exceptions to modification

prohibitions, therefore introduces clearer limits better reflecting concessions’

economic realities, namely requiring the economic balance to be preserved and

forbidding changes to essential competitive elements. For enhanced transparency on

contract modification this Regulation introduces an ex-ante publication obligation for

major modifications (exceeding 50%) that should acts as a safeguard against abuses.

(51) eProcurement service providers, whether public or private, play an important role in

public procurement in facilitating secure electronic communication. It is therefore

necessary to lay down place certain requirements on them, to ensure the functioning of

the interoperable exchange of information as well as the resilience of the

interoperability network. To provide easy access to cross-border procurement

procedures for economic operators, the Commission should establish and operate an

eProcurement platform that contains the basic functions necessary for the access to

and the conduct of procurement procedures.

(52) To improve cross-border access to procurement procedures, a European standard for

procurement procedures should be established which allows economic operators to

submit electronic communication such as tenders to public buyers that are using other

services. Additionally, a European standard for procurement details should also be

requested to be developed by a European standardisation organisation. It should also

be clarified that the electronic communication directly within the eProcurement

platform chosen by the public buyer remains permitted where it complies with the

rules for electronic communication.

(53) An important element of the simplification of procurement procedures is to lower the

administrative burden contained in the check of the eligibility of the economic

operator. To this end, the Commission should set up an electronic eligibility service,

which provides information from the up-to-date digital business credential tool of the

economic operator as well as any consortium member or subcontractor participating in

EN 29 EN

the individual procurement procedure. Through the connection from the tool to

national databases, public buyers may receive current information on the eligibility of

the economic operator.

(54) Procurement-related data, including contract data, has many important uses and

purposes: it can provide indications on the functioning of the internal market and help

with the detection of fraud, corruption, collusion and misconduct. Where there is more

flexibility provided for public buyers in the conduct of procurement procedures, it is

important to have better quality of data overall to improve monitoring. Member States

should therefore set up National Public Procurement Data Spaces. While the access to

procurement data is highly relevant, it is not necessary to require the duplication of

data in different sources, as that comes with increased costs without discernible

benefit. That is why the national data spaces should provide access to data, including

data which may be stored in other databases, only storing or retrieving information

when necessary. When there are pre-existing procurement databases, they should form

the basis of national public procurement data spaces. The Public Procurement Data

Space was set up by the Commission to contain and share information about public

procurement and should receive procurement information from the National Public

Procurement Data Spaces.

(55) eProcurement platforms constitute critical infrastructure underpinning public

procurement across the Union. The information processed through such systems is of a

highly sensitive nature. The concentration of such data within platforms that are

subject to third-country ownership, control, or undue influence poses significant risks

to the security and public safety interests of the Union or one or more of its Member

States. Such risks include unauthorised access to sensitive procurement data,

interference with the integrity or availability of procurement platforms, exposure to

cyberattacks or espionage facilitated by foreign state actors, and the potential

exploitation of procurement information for economic or strategic purposes adverse to

the Union. Ensuring that eProcurement service providers as well as National Public

Procurement Data Spaces remain free from ownership structures or control

arrangements that bear risks of undue interference is therefore essential to

safeguarding the security and resilience of public procurement infrastructure.

(56) The effectiveness of this Regulation depends not only on clear rules but also on strong

governance arrangements at national level. Member States should therefore ensure

structured and evidence-based monitoring frameworks for the functioning of their

procurement systems, based on the data available in their National Public Procurement

Data Spaces, in order to identify shortcomings, assess performance and competition,

detect systemic risks and evaluate progress towards the objectives of this Regulation.

Such monitoring should support the continuous improvement of national procurement

systems and should cover, inter alia, barriers to competition and market access,

including for SMEs, vulnerabilities to corruption and fraud, supply-chain

dependencies, and the uptake of sustainability, innovation and digitalisation. The

results of that monitoring should be made public on a regular basis and should feed

into periodic reporting to the Commission.

(57) Member States should also designate a national coordinating authority to ensure

effective coordination among the relevant national authorities, facilitate cooperation

and the exchange of information between those authorities and act as a single contact

point for the Commission, the competent authorities of other Member States and

relevant stakeholders.

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(58) Professionalisation is a key factor in ensuring effective, efficient and integrity-based

public procurement. It requires a long-term and strategic approach to develop and

maintain the skills and competencies of public buyers throughout the whole public

procurement cycle. The national strategy should provide a coherent framework for

setting priorities, coordinating measures, monitoring progress and adapting

professionalisation efforts over time. Professionalisation measures should take into

account the different needs of public buyers at each level of governance, with

particular attention to those with limited administrative capacity. Such measures

should also facilitate the participation of economic operators, in particular SMEs, and

support other actors contributing to the functioning of the public procurement system.

Appropriate support structures, such as competence centres, training bodies, advisory

services or helpdesks, play an important role in strengthening the professionalisation

of public buyers and improving the overall performance of the public procurement

system.

(59) Fraud, favouritism, collusion, corruption and conflicts of interest continue to pose

significant risks to the integrity and effectiveness of public procurement. Therefore, in

order to avoid any distortion of competition and ensure equal treatment of all

economic operators, including in the contract implementation. Public buyers should be

required to take appropriate, proportionate and effective measures to prevent, identify

and remedy such risks throughout the preparation, award and execution of contracts.

Member States should support those efforts through appropriate tools, including data-

based risk analysis instruments such as Arachne+ which is the Commission’s

corporate data-mining and risk-scoring tool designed to help detect and prevent fraud,

conflicts of interest, and irregularities affecting the EU budget. The new digital

ecosystem for procurement in the Union aims at ensuring transparency and

accountability, thereby contributing to diminishing risks to the integrity of the

procedures.

(60) In order to adapt to rapid technical, economic and regulatory developments, the power

to adopt acts in accordance with Article 290 of the Treaty should be delegated to the

Commission in respect of a number of non-essential elements of this Regulation:

amending the public procurement thresholds every two years to account for variations

in SDR equivalences, imposing environmental requirements for procurement of

certain products, amending the list of Union legislation introducing product or

technology sustainability requirements, where necessary following the adoption on

new relevant Union legal acts, amending the threshold for the use of BIM in public

procurement, adopting mandatory specifications and other public procurement criteria

where those elements address identified security and public safety interests of the

Union, or where strategic dependencies or risks are identified, amending the definition

of covered economic operators, goods, services or works, or supplementing this

Regulation by requiring public buyers to apply any of the voluntary restrictive

measures set out in this Regulation, amending or extending the required procurement

information, designating or establishing the interoperability network, and setting up

the rules for the management of the electronic eligibility system and designating the

digital business credential tool and the related network. It is of particular importance

that the Commission carry out appropriate consultations during its preparatory work,

including at expert level, and that those consultations be conducted in accordance with

the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better

Law-Making9. In particular, to ensure equal participation in the preparation of

9 OJ L 123, 12.05.2016, p. 1, http://data.europa.eu/eli/agree_interinstit/2016/512/oj.

EN 31 EN

delegated acts, the European Parliament and the Council receive all documents at the

same time as Member States' experts, and their experts systematically have access to

meetings of Commission expert groups dealing with the preparation of delegated acts

(61) In order to ensure uniform conditions for the implementation of this Regulation,

implementing powers should be conferred on the Commission for the adoption of

decisions regarding the competition levels in certain markets and the feasibility of

exempting certain types of public buyers from public procurement rules; to specify

what type of specific information should be contained in each public summary and to

establish the connection of public summaries and the sequencing of specific

information contained in multiple public summaries, as well as related requirements

for public buyers and eProcurement service providers to reuse information; the

implementation arrangements for the interoperability network, the electronic eligibility

service and the data exchange; to establish common specifications covering

requirements for the semantic data model of the procurement procedures; and, to

determine the procurement information that should be made available to the National

Public Procurement Data Space (NPPDS) and Public Procurement Data Space

(PPDS), its designation as publicly available, the publication terms such as the date of

publication for not initially publicly available information, and the source of the

technical validation requirements. Those powers should be exercised in accordance

with Regulation (EU) No 182/201110 of the European Parliament and of the Council.

(62) Since the objective of this Regulation, namely the harmonisation of rules for public

procurement procedures, cannot be sufficiently achieved by the Member States but can

rather, by reason of its scale and effects, be better achieved at Union level, the Union

may adopt measures, in accordance with the principle of subsidiarity as set out in

Article 5 of the Treaty on European Union. In accordance with the principle of

proportionality, as set out in that Article, this Regulation does not go beyond what is

necessary in order to achieve that objective.

(63) This Regulation undertakes a regulatory deep cleaning, consolidating relevant rules on

public procurement from sectoral legislation into a single reference legislation, this

Regulation. It provides a general framework for public procurement rules of more than

sector-specific relevance, and will thereby greatly simplify the application of these

rules in practice. In order to delete and integrate into this Regulation relevant rules on

public procurement which apply regardless of the type of product concerned, it is

therefore necessary to amend Regulations (EU) 2023/154211, (EU) 2024/115712, (EU)

2024/125213, (EU) 2024/173514, (EU) 2024/178115, (EU) 2024/284716, (EU)

10 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011

laying down the rules and general principles concerning mechanisms for control by Member States of

the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13, ELI:

http://data.europa.eu/eli/reg/2011/182/oj). 11 Regulation (EU) 2023/1542 of the European Parliament and of the Council of 12 July 2023 concerning

batteries and waste batteries, amending Directive 2008/98/EC and Regulation (EU) 2019/1020 and

repealing Directive 2006/66/EC (OJ L 191, 28.7.2023, p. 1, ELI:

http://data.europa.eu/eli/reg/2023/1542/2025-07-31). 12 Regulation (EU) 2024/1157 of the European Parliament and of the Council of 11 April 2024 on

shipments of waste, amending Regulations (EU) No 1257/2013 and (EU) 2020/1056 and repealing

Regulation (EC) No 1013/2006 (OJ L, 2024/1157, 30.4.2024, ELI:

http://data.europa.eu/eli/reg/2024/1157/oj). 13 Regulation (EU) 2024/1252 of the European Parliament and of the Council of 11 April 2024

establishing a framework for ensuring a secure and sustainable supply of critical raw materials and

amending Regulations (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1724 and (EU) 2019/1020 (OJ L,

2024/1252, 3.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1252/oj).

EN 32 EN

2024/311017 and (EU) 2025/4018, and Directives 2008/98/EC19, (EU) 2019/88220, (EU)

2022/238121, (EU) 2023/179122 and (EU) 2024/176023. Regulation (EC) No

1370/2007 should be amended, in order to make applicable for that Regulation the

rules provided for in this Regulation on security, security of supply and European

preference.

(64) Directives 2014/23/EU, 2014/24/EU and 2014/25/EU should be repealed.

(65) In view of the scale and novelty of the reforms introduced by this Regulation,

including the establishment of a common digital ecosystem and data spaces, the

strengthening of strategic procurement rules, and the new governance and monitoring

requirements, the application of this Regulation should be deferred by two years.

(66) The European Data Protection Supervisor was consulted in accordance with

Article 42(1) of Regulation (EU) 2018/172524 and delivered its opinion on [INSERT],

HAVE ADOPTED THIS REGULATION:

14 Regulation (EU) 2024/1735 of the European Parliament and of the Council of 13 June 2024 on

establishing a framework of measures for strengthening Europe’s net-zero technology manufacturing

ecosystem and amending Regulation (OJ L, 2024/1735, 28.6.2024, ELI:

http://data.europa.eu/eli/reg/2024/1735/oj). 15 Regulation (EU) 2024/1781 of the European Parliament and of the Council of 13 June 2024 establishing

a framework for the setting of ecodesign requirements for sustainable products, amending Directive

(EU) 2020/1828 and Regulation (EU) 2023/1542 and repealing Directive 2009/125/EC (OJ L,

2024/1781, 28.6.2024, ELI: http://data.europa.eu/eli/reg/2024/1781/oj). 16 Regulation (EU) 2024/2847 of the European Parliament and of the Council of 23 October 2024 on

horizontal cybersecurity requirements for products with digital elements and amending Regulations

(EU) No 168/2013 and (EU) 2019/1020 and Directive (EU) 2020/1828 (Cyber Resilience Act) (OJ L,

2024/2847, 20.11.2024, ELI: http://data.europa.eu/eli/reg/2024/2847/oj). 17 Regulation (EU) 2024/3110 of the European Parliament and of the Council of 27 November 2024

laying down harmonised rules for the marketing of construction products and repealing Regulation

(EU) No 305/2011 (OJ L, 2024/3110, 18.12.2024, ELI: http://data.europa.eu/eli/reg/2024/3110/oj). 18 Regulation (EU) 2024/1735 of the European Parliament and of the Council of 13 June 2024 on

establishing a framework of measures for strengthening Europe’s net-zero technology manufacturing

ecosystem and amending Regulation (EU) 2018/1724 (OJ L, 2024/1735, 28.6.2024, ELI:

http://data.europa.eu/eli/reg/2024/1735/oj). 19 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste

and repealing certain Directives (OJ L 312, 22.11.2008, p. 3, ELI:

http://data.europa.eu/eli/dir/2008/98/oj). 20 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public

procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65, ELI:

http://data.europa.eu/eli/dir/2014/24/oj). 21 Directive (EU) 2022/2381 of the European Parliament and of the Council of 23 November 2022 on

improving the gender balance among directors of listed companies and related measures (OJ L 315,

7.12.2022, p. 44, ELI: http://data.europa.eu/eli/dir/2022/2381/oj). 22 Directive (EU) 2023/1791 of the European Parliament and of the Council of 13 September 2023 on

energy efficiency and amending Regulation (EU) 2023/955 (recast) (OJ L 231, 20.9.2023, p. 1, ELI:

http://data.europa.eu/eli/dir/2023/1791/oj). 23 Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate

sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859,

(OJ L, 2024/1760, 5.7.2024, ELI: http://data.europa.eu/eli/dir/2024/1760/oj). 24 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the

protection of natural persons with regard to the processing of personal data by the Union institutions,

bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No

45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39, ELI:

http://data.europa.eu/eli/reg/2018/1725/oj).

EN 33 EN

Part I

General provisions

Title I

Subject-matter and scope

Article 1

Subject-matter and scope

1. This Regulation establishes rules on public contracts for works, supplies or services

and concessions for works or services procured by one or more public buyers from

one or more economic operators, the value of which is equal to or greater than the

thresholds established in Article 2.

2. This Regulation lays down the procedural rules that apply to the award of public

contracts and concessions as well as the procurement-related aspects of the planning

and the execution of such contracts and concessions, sets out strategic objectives to

be taken into account and establishes a framework for a common digital ecosystem to

be used in their planning, award and implementation as well as mechanisms to

ensure efficiency and accountability of public procurement.

3. This Regulation does not regulate matters pertaining to general administrative or

contract law in the Member States beyond the matters referred to in paragraphs 1 and

2. It does not affect the way in which the Member States organise their public

administration, including financial and budgetary control of public spending, or the

organisation of their social security systems.

4. The application of this Regulation is subject to Article 346 of the Treaty. This

Regulation does not preclude the adoption or enforcement of national measures

necessary for the protection of Member States’ national security in accordance with

the Treaty.

5. This Regulation does not affect the freedom of Member States under Article 4 of the

Treaty to establish, in conformity with Union law, services of general economic

interest, and how those services are organised and financed, provided that they are in

compliance with State aid rules, and the specific obligations to which they are

subject. Furthermore, this Regulation does not affect any decision of public

authorities as to whether, how and to what extent they wish to perform public

functions themselves pursuant to Article 14 of the Treaty and Protocol No. 26 of the

Treaty.

6. Agreements, decisions or other legal instruments that organise the transfer of powers

and responsibilities for the performance of public tasks between public buyers and

that do not provide for remuneration to be given for contractual performance are

considered to be a matter of internal organisation of the Member State concerned

and, as such, are not affected in any way by this Regulation.

Article 2

Thresholds

EN 34 EN

1. This Regulation applies to public contracts and concessions with a value net of

value-added tax (VAT) estimated to be equal to or greater than the following

thresholds:

(a) EUR 5 404 000 for public works contracts and for concessions;

(b) EUR 140 000 for public supply contracts and public service contracts awarded

by the central government authorities listed in Annex I;

(c) EUR 216 000 for public supply contracts and public service contracts awarded

by sub-central contracting authorities;

(d) EUR 432 000 for public supply contracts and public service contracts awarded

by contracting entities operating in the sectors covered by Part II, Title I,

Chapter 2;

(e) EUR 750 000 for contracts for social, health and educational services awarded

pursuant to Article 58.

2. The Commission is empowered to adopt delegated acts in accordance with

Article 141, or, in cases of urgency, with Article 142, amending the thresholds set

out in paragraph 1 of this Article in accordance with the conditions set out in Article

3.

Article 3

Revision of thresholds

1. Every two years from … [OP please insert the date = the last day of the month of

August after the date of entry into force of this Regulation], the Commission shall

verify that the thresholds set out in Article 2(1) correspond to the thresholds

established in the World Trade Organization Agreement on Government

Procurement (GPA) and shall, where necessary, revise those thresholds in

accordance with this Article.

2. The Commission shall revise the thresholds set out in Article 2 in accordance with

the calculation method set out in the GPA. The Commission shall calculate the value

of these thresholds on the basis of the average daily value of the euro in terms of the

special drawing rights (SDRs), over a 24-month period terminating on 31 August

preceding the revision with effect from 1 January. The value of the revised

thresholds shall, where necessary, be rounded down to the nearest thousand euros to

ensure that the thresholds in force provided for by the GPA, expressed in SDRs, are

observed.

3. From 1 January 202X [OP please insert year after the year of entry into force of this

Regulation], and every two years thereafter, the Commission shall determine the

values, in the national currencies of the Member States whose currency is not the

euro, of the thresholds set out in Article 2 of this Regulation.

4. In accordance with the calculation method set out in the GPA, the Commission shall

determine the values referred to in paragraph 3 on the basis of the average daily

values of those currencies corresponding to the applicable threshold expressed in

euros over the 24-month period terminating on 31 August preceding the revision

with effect from 1 January of the following year.

EN 35 EN

5. The Commission shall publish the revised thresholds, and their corresponding values

in the national currencies of the Member States whose currency is not the euro, in the

Official Journal of the European Union at the beginning of the month of November

following their revision.

6. Where it is necessary to revise the thresholds set out in Article 3 and where

imperative grounds of urgency prevent the use of the procedure laid down in

Article 141 and therefore imperative grounds of urgency so require, the procedure

referred to in Article 142 shall apply to delegated acts adopted pursuant to

Article 2(2).

Title II

Principles, policy objectives and definitions

Article 4

Principles of procurement

1. Procurement shall be guided by the principle of best quality for public money,

thereby serving the objective of efficient public spending and investment.

2. Public buyers shall treat economic operators originating from the Union and

economic operators which are covered economic operators in accordance with

Article 70(1) equally and without discrimination, giving full effect to the free

movement of persons, goods and services and the freedom of establishment in the

Union's internal market. They shall act in a transparent and proportionate manner.

3. Public buyers shall take appropriate measures to ensure the integrity of the

procurement process and to prevent circumstances that may compromise its

impartiality and fairness.

Public buyers shall not design their procurement in such a way as to exclude it from

the scope of this Regulation or to unduly restrict competition.

4. Public buyers shall take appropriate measures to ensure that, in the performance of

public contracts, economic operators comply with applicable obligations relating to

the policy objectives set out in Article 5, including applicable obligations in the

fields of environmental, social and labour law as established by Union law, national

law, collective agreements, or by the international environmental, social and labour

law conventions listed in Annex II.

Article 5

Policy objectives

Public procurement shall be guided by the strategic policy objectives of the Union, in

particular:

(a) boosting the Union’s competitiveness through a thriving internal market, advancing

innovation and reinforcing the Union’s manufacturing and clean industrial base;

(b) the achievement of environmental and climate objectives of the Union;

(c) the pursuit of social justice, fair working conditions and an inclusive society,

including as fostered by social dialogue;

EN 36 EN

(d) the Union's safety, security, resilience and economic security, including through

strategic independence.

Article 6

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘classified information’ means any information or material, regardless of the form,

nature or mode of transmission thereof, to which a certain level of security

classification or protection has been attributed, and which, in the interests of national

security and in accordance with the laws, regulations or administrative provisions in

force in the Member State concerned, requires protection against any

misappropriation, destruction, removal, disclosure, loss or access by any

unauthorised individual, or any other type of compromise;

(2) ‘day’ means calendar day;

(3) ‘digital business credential tool’ means a digital tool allowing for the verification,

exchange and storage of evidence related to the exclusion grounds, selection criteria,

origin and other requirements set out pursuant to this Regulation in the procurement

procedure and available through the tool;

(4) ‘economic operator’ means any natural or legal person, or public entity or group of

such persons and/or entities, such as joint ventures, consortia or other including any

temporary associations without legal personality, which offers the execution of a

work or works, the supply of products or the provision of services on the market;

(5) ‘eligibility profile’ means a compiled document generated by the electronic

eligibility service referred to in Article 133 which contains information about the

economic operator, including information regarding its compliance with exclusion

grounds, selection criteria and origin;

(6) ‘eProcurement platform’ means a digital tool which allows for the electronic

communication between public buyers and economic operators through the

interoperability network;

(7) ‘eProcurement service provider’ means an economic operator that provides an

eProcurement platform;

(8) ‘functional requirement’ means a requirement that describes the performance,

desired function, capability, outcome or result that works, products or services are

intended to achieve, without referring to specific technical means, design, or methods

by which those functions or outcomes are achieved;

(9) ‘harmonised standard’ means a harmonised standard as defined in Article 2,

point (1)(c), of Regulation (EU) No 1025/201225;

25 Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on

European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives

94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and

2009/105/EC of the European Parliament and of the Council and repealing Council Decision

87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316,

14.11.2012, p. 12, ELI: http://data.europa.eu/eli/reg/2012/1025/oj).

EN 37 EN

(10) ‘labour-intensive contract’ means a contract with a subject-matter for which the cost

of labour normally accounts for at least 50 % of the total contract value;

(11) ‘life-cycle’ means all possible consecutive or interlinked stages, or both, including

research and development to be carried out, production, trading and its conditions,

transport, use and maintenance, throughout the existence of the product, works or

services, from the acquisition of raw materials or the generation of resources, to

disposal, clearance and end of service or use;

(12) ‘micro, small or medium-sized enterprise’ (SME) means a micro, small or medium-

sized enterprise as defined in the Annex to Commission

Recommendation 2003/361/EC26;

(13) ‘pre-commercial procurement’ means the procurement of research and development

services that involves risk-benefit sharing under market conditions and competitive

development in phases;

(14) ‘procurement detail’ means any information produced or referred to by the public

buyer to describe elements of the procurement before the award, including public

summaries, technical specifications, the draft contract, templates for the presentation

of information by economic operators, information on generally applicable

obligations and any additional information;

(15) ‘procurement information’ means any data provided by the public buyer covering the

full procurement life cycle including before and after the award of the contract;

(16) ‘procurement of research and development services’ (‘R&D procurement’) means

the procurement of fundamental research, industrial research and experimental

development up to original development. Original development of a first product,

service or work may include limited production or supply in order to incorporate the

results of field testing and to demonstrate that the product, service or work concerned

is suitable for production or supply in quantity to acceptable quality standards, but

shall not include quantity production or supply to establish commercial viability or to

recover research and development costs. R&D procurement may include obtaining

the ownership of prototypes or first products, services or works that are developed at

the public buyer’s request in the course of and for a particular research and

development services procurement contract, but shall not include the commercial

deployment of end-products, services or works.

(17) ‘public buyer’ means a contracting authority in accordance with Article 7 or a

contracting entity in accordance with Article 8;

(18) ‘public contract’ means a contract, for pecuniary interest, concluded in writing

between one or more economic operators and one or more public buyers and having

as its object the execution of works, the supply of products or the provision of

services;

(19) ‘public service contracts’ means a public contract having as its object the provision

of services other than those referred to in point (22);

(20) ‘public summary’ means an overview of the procurement at a given time published

by the public buyer;

26 Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-

sized enterprises (notified under document number C (2003) 1422), (OJ L 124, 20.5.2003, p. 36, ELI:

http://data.europa.eu/eli/reco/2003/361/oj)

EN 38 EN

(21) ‘public supply contract’ means a public contract having as its object the purchase,

lease, rental or hire-purchase, with or without an option to buy, of products. Products

may be new, used, refurbished, remanufactured and product-as-service. A public

supply contract may include, as an incidental matter, siting and installation

operations;

(22) ‘public works contract’ means a public contract having as its object one of the

following:

(a) the execution, or both the design and execution, of works related to one of the

activities within the meaning of Annex V;

(b) the execution, or both the design and execution, of a work;

(c) the realisation, by whatever means, of a work corresponding to the

requirements specified by the contracting authority exercising a decisive

influence on the type or design of the work;

(23) ‘societal challenge’ means a development or situation that has implications for the

effective and efficient delivery of public tasks, impacting the functioning of the

public buyer or buyers concerned, or the persons who rely on those services;

(24) ‘innovative solution proposal’ means a proposal from an economic operator outlining

their innovative approach to address a societal challenge, including the risks

involved, the potential impact and benefits, and their vision for developing, testing

and implementing the innovative solution in cooperation with the public buyer;

(25) ‘subcontractor’ means an economic operator that acquires through contractual means

the responsibility to perform a part of the public contract – excluding the mere

provision of goods or parts that are necessary for the provision of a work or service –

from an economic operator that has been awarded such public contract;

(26) ‘subject-matter of the contract’ means the works, services or supplies that the public

buyer intends to acquire through the procurement with a view to meeting its needs;

(27) ‘work’ means the outcome of building or civil engineering works taken as a whole

which is sufficient in itself to fulfil an economic or technical function.

EN 39 EN

Part II

Relevant actors

Title I

Public buyers

Chapter 1

Identification of public buyers

Article 7

Contracting authorities

1. For the purpose of this Regulation, contracting authorities shall be the central

government authorities, sub-central government authorities, bodies governed by

public law, or associations formed by one or more such contracting authorities,

irrespective of whether the procurement procedure is conducted by one or more

specific administrative units within them.

2. For the purposes of this Regulation, central government authorities shall be the

authorities listed in Annex I and, in so far as corrections or amendments have been

made at national level, those authorities’ successor entities.

Where corrections or amendments are made at national level, Member States shall

notify the Commission thereof within three months.

3. Sub-central government authorities shall mean any of the following:

(a) State, regional or local authorities other than those listed in Annex I;

(b) central purchasing bodies who are not themselves central government

authorities;

(c) bodies governed by public law as described in paragraph 4.

4. For the purpose of this Regulation, bodies governed by public law shall be bodies

that meet all the following conditions:

(a) they have the specific purpose of meeting needs in the general interest, and not

having an industrial or commercial character;

(b) they have legal personality;

(c) they are financed, for more than 50 % by the State, regional or local

authorities, or by other bodies governed by public law; or are subject to the

management and supervision by those authorities or bodies; or have an

administrative, managerial or supervisory board where more than half of their

members are appointed by the State, regional or local authorities or by other

bodies governed by public law.

5. The Commission is empowered to adopt delegated acts in accordance with Article

141 to amend Annex I by updating the list of central government authorities based on

the notifications received from Member States pursuant to paragraph 2 of this

Article.

EN 40 EN

Article 8

Contracting entities

1. For the purpose of this Regulation, contracting entities shall be contracting

authorities, public undertakings, and entities that operate on the basis of special or

exclusive rights, and which carry out one or more of the activities referred to in

Articles 12 to 18 or any combination thereof, unless the activity is directly exposed

to competition on markets to which access is not restricted within the meaning of

Article 19.

2. A public undertaking shall be any undertaking over which one or more contracting

authorities may exercise, directly or indirectly, a dominant influence by virtue of

their ownership of it, their financial participation therein, or the rules which govern

it.

Contracting authorities shall be presumed to exercise a dominant influence in any of

the following cases in which they, directly or indirectly:

(a) hold the majority of the undertaking's subscribed capital;

(b) control the majority of the votes attaching to shares issued by the undertaking;

(c) can appoint more than half of the undertaking's administrative, management or

supervisory body.

3. For the purpose of this Regulation, special or exclusive rights shall be rights granted

by a competent authority of a Member State by way of any legislative, regulatory or

administrative provision the effect of which is to limit the exercise of the activities

referred to in Articles 12 to 18 to one or more entities, and which substantially

affects the ability of other entities to carry out such activity.

Rights which have been granted by means of a procedure in which adequate publicity

has been ensured and where the granting of those rights was based on objective

criteria shall not constitute special or exclusive rights within the meaning of the first

subparagraph.

The procedures referred to in the second subparagraph shall include, but are not

limited to:

(a) procurement procedures with a prior call for competition in conformity with

Directive 2009/81/EC27 or a public summary of competition pursuant to this

Regulation;

(b) procedures pursuant to other legal acts of the Union that ensure adequate prior

transparency for granting authorisations on the basis of objective criteria,

including but not limited to the procedures under the Union legal acts listed in

Annex III.

27 Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the

coordination of procedures for the award of certain works contracts, supply contracts and service

contracts by contracting authorities or entities in the fields of defence and security, and amending

Directives 2004/17/EC and 2004/18/EC (OJ L 216, 20.8.2009, p. 76, ELI:

http://data.europa.eu/eli/dir/2009/81/oj).

EN 41 EN

Article 9

Central purchasing bodies

1. Public buyers may organise their procurement activities through the creation and use

of central purchasing bodies in accordance with the rules set out in this Article.

2. For the purpose of this Regulation, central purchasing bodies shall be any public

buyer carrying out the following activities:

(a) acting as a wholesaler by buying and re-selling solutions purchased on the

market for public buyers;

(b) acting as an intermediary by publishing summaries and awarding contracts for

public buyers;

Central purchasing bodies may also, in addition to the activities set out above, carry

out or take part in joint procurement activities, or provide ancillary purchasing

support services to public buyers, including technical assistance, technical

infrastructure or advice.

3. Public buyers shall indicate in the public summaries pursuant to Article 110 when

they are acting as a central purchasing body.

4. Any public buyer may acquire solutions from or through any central purchasing body

established in the Union without applying the procedures laid down in this

Regulation for the provision of the services of the central purchasing body.

5. A public buyer acquiring a solution from or through a central purchasing body,

which for that solution was obliged to and has applied this Regulation, shall be

deemed to comply with this Regulation in respect of the procurement for that

solution.

6. A public buyer acquiring a solution from or through a Union institution, body, office

or agency which carries out joint procurement, acts on behalf of the Member States

or acts as a central purchasing body pursuant to Regulation (EU, Euratom)

2024/250928 or other Union legal acts other than this Regulation which provide for

carrying out joint procurement or acting on behalf of the Member States or as central

purchasing body, shall be deemed to comply with this Regulation in respect of the

procurement for that solution.

Article 10

Joint procurement

1. Two or more public buyers, including those from different Member States, may act

jointly in the award of certain specific public contracts.

2. The joint procurement procedure shall be regulated by an agreement between the

parties, determining, among other things:

28 Regulation (EU, Euratom) 2024/2509 of the European Parliament and of the Council of 23 September

2024 on the financial rules applicable to the general budget of the Union (recast), OJ L, 2024/2509,

26.9.2024, ELI: http://data.europa.eu/eli/reg/2024/2509/oj).

EN 42 EN

(a) the respective responsibilities of the concerned parties, the responsibility for

the management of the joint procedure, the distribution of the works, supplies

or services to be jointly procured or rights to be transferred; and

(b) where the public buyers are from different Member States, the legal system

governing the procedure and, consequently, the legislation applicable to

disputes, the competent review body and applicable jurisdiction, and the law

governing the resulting public contracts.

The allocation of responsibilities and the applicable national law shall be referred to

in the procurement detail for the jointly procured public contracts.

3. This Article is without prejudice to Articles 9(6) and 69(3), point (f), of this

Regulation and Article 168(2) and (3) of Regulation (EU, Euratom) 2024/2509 or

other Union legal acts.

Chapter 2

Activities in the field of utilities

SECTION 1

COVERED ACTIVITIES

Article 11

Common provisions

1. For the purposes of Articles 12, 13 and 14, ‘supply’ shall include generation or

production, wholesale and retail sale.

2. The production of gas in the form of extraction shall fall within the scope of Article

18.

Article 12

Gas and heat

1. In relation to gas and heat, this Regulation applies to the following activities:

(a) the provision or operation of fixed networks intended to provide a service to

the public in connection with the production, transport or distribution of gas or

heat;

(b) the supply of gas or heat to the networks referred to in point (a).

2. The supply by a contracting entity other than a contracting authority of gas or heat to

fixed networks which provide a service to the public shall not constitute a relevant

activity within the meaning of paragraph 1 of this Article where both of the

following conditions are met:

(a) the production of gas or heat by that contracting entity is the unavoidable

consequence of carrying out activities other than those referred to in paragraph

1 of this Article or in Articles 13, 14 or 15;

(b) the supply to the public network is aimed only at the economic exploitation of

such production and amounts to not more than 20 % of the contracting entity's

EN 43 EN

turnover on the basis of the average for the three years preceding the one in

which the supply is made.

Article 13

Electricity

1. In relation to electricity, this Regulation applies to the following activities:

(a) the provision or operation of fixed networks intended to provide a service to

the public in connection with the production, transport or distribution of

electricity;

(b) the supply of electricity to the networks referred to in point (a).

2. The supply by a contracting entity other than a contracting authority of electricity to

fixed networks which provide a service to the public shall not be considered to be a

relevant activity within the meaning of paragraph 1 of this Article where both of the

following conditions are met:

(a) the production of electricity by that contracting entity takes place because its

own consumption is necessary for carrying out activities other than those

referred to in paragraph 1 of this Article or in Articles 12, 14 or 15;

(b) the supply to the public network depends only on that contracting entity's own

consumption and has not exceeded 30 % of that contracting entity's total

production of energy, on the basis of the average for the three years preceding

the one in which the supply is made.

Article 14

Water

1. In relation to water, this Regulation applies to the following activities:

(a) the provision or operation of fixed networks intended to provide a service to

the public in connection with the production, transport or distribution of

drinking water;

(b) the supply of drinking water to the networks referred to in point (a).

2. This Regulation shall also apply to contracts awarded by contracting entities which

pursue an activity referred to in paragraph 1 and which are connected with one of the

following activities:

(a) hydraulic engineering projects, irrigation or land drainage, provided that the

volume of water to be used for the supply of drinking water represents more

than 20 % of the total volume of water made available by such projects or

irrigation or drainage installations;

(b) the disposal or treatment of sewage.

3. The supply by a contracting entity other than a contracting authority of drinking

water to fixed networks which provide a service to the public shall not be considered

to be a relevant activity within the meaning of paragraph 1 of this Article where both

of the following conditions are met:

EN 44 EN

(a) the production of drinking water by that contracting entity takes place because

its consumption by that contracting entity is necessary for carrying out an

activity other than those referred to in Articles 14 to 17;

(b) the supply to the public network depends only on that contracting entity's own

consumption and has not exceeded 30 % of that contracting entity's total

production of drinking water, on the basis of the average for the three years

preceding the one in which the supply is made.

Article 15

Transport Services

1. This Regulation applies to the provision or operation of networks providing a service

to the public in the field of transport by railway, automated systems, tramway, trolley

bus, bus or cable.

2. As regards transport services, a network shall be considered to exist where the

service is provided under operating conditions laid down by a competent authority of

a Member State, such as conditions on the routes to be served, the capacity to be

made available or the frequency of the service.

Article 16

Ports and airports

This Regulation applies to the exploitation of a geographical area for the purpose of providing

airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland

waterway.

Article 17

Postal services

1. This Regulation applies to activities relating to the provision of the following

services:

(a) postal services;

(b) services other than postal services, on condition that such services are provided

by an entity which also provides postal services as defined in paragraph 2,

point (b), of this Article and provided that the conditions set out in Article 19

are not satisfied in respect of those services.

2. For the purpose of this Article and without prejudice to Directive 97/67/EC29 of the

European Parliament and of the Council:

(a) ‘postal item’ means an item addressed in the final form in which it is to be

carried, irrespective of weight. In addition to items of correspondence, such

items also include for instance, books, catalogues, newspapers, periodicals and

29 Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common

rules for the development of the internal market of Community postal services and the improvement of

quality of service (OJ L 15, 21.1.1998, p. 14, ELI: http://data.europa.eu/eli/dir/1997/67/oj).

EN 45 EN

postal packages containing merchandise with or without commercial value,

irrespective of weight;

(b) ‘postal services’ means services consisting of the clearance, sorting, routing

and delivery of postal items, including services falling both within and outside

the scope of the universal service obligation provided for in Article 3 of

Directive 97/67/EC;

(c) ‘services other than postal services’ means services provided in the following

areas:

(i) mail service management services both preceding and subsequent to

despatch, including mailroom management services;

(ii) services concerning postal items not included in point (a), such as direct

mail bearing no address.

Article 18

Energy sources extraction and exploration

This Regulation applies to the exploitation of a geographical area for the purpose of:

(a) extracting oil or gas;

(b) exploring for, or extracting, coal or other solid fuels.

SECTION 2

EXEMPTING PARTICULAR UTILITY ACTIVITIES

Article 19

Activities directly exposed to competition

1. This Regulation does not apply to contracts for the pursuit of activities listed in

Articles 12 to 18, with regard to a given geographical area if the activity is directly

exposed to competition on markets to which access is not restricted in that

geographical area, where that is established by an implementing act adopted pursuant

to Article 20(4).

2. For the purposes of paragraph 1, the question of whether an activity is directly

exposed to competition shall be decided on the basis of criteria that are in conformity

with the provisions on competition of the Treaty, and without prejudice to the

application of competition law to the situation subject to the decision. Those criteria

may include the following:

(a) the characteristics of the products or services concerned;

(b) the existence of alternative products or services considered to be substitutable

on the supply side or demand side;

(c) the prices; and

(d) the actual or potential presence of more than one supplier of the products or

provider of the services in question on the relevant market.

EN 46 EN

The activity concerned may form part of a larger sector or be exercised only in

certain parts of the territory of the Union, including certain parts of Member States.

3. The geographical area on the basis of which direct exposure to competition is

assessed shall consist of an area in which the undertakings concerned are involved in

the supply of and demand for products or services, in which the conditions of

competition are sufficiently homogeneous and which can be distinguished from

neighbouring areas because, in particular, the conditions of competition are

appreciably different in those areas. That assessment shall primarily take into

account appreciable differences in the undertakings’ market shares and the existence

of market entry barriers or consumer preferences. It shall also take into account

factors such as the nature and characteristics of the products or services concerned

and any substantial price differences between the area concerned and neighbouring

areas. The territorial scope of the area on the basis of which exposure to competition

is assessed shall be limited to the territory of the Member State.

4. For the purposes of paragraph 1, access to a market is deemed not to be restricted if

the Member State has implemented and applied the Union legal acts listed in Annex

IV. Otherwise, it shall be established that access to the market in question is free in

law and in fact.

Article 20

Exemption procedure

1. Where a Member State or a contracting entity considers that a given activity is

directly exposed to competition on markets to which access is not restricted, it may

submit to the Commission, as a preparatory step to a possible formal exemption

request, a preliminary question on the applicability of Article 19 pursuant to

paragraph 2 of this Article, or, directly, a formal exemption request pursuant to

paragraph 3 of this Article, to establish that the activity in question is not covered by

this Regulation.

2. During the optional preparatory phase following the submission of a preliminary

question, the Commission, in a spirit of loyal cooperation, shall carry out an initial

assessment of the conditions set out in Article 19. Such assessment shall be based on

all information relevant to that activity already in the possession of or available to the

Commission. To complement the information already in its possession, the

Commission may request additional information from the contracting entity or

Member State concerned, or any other party competent in relation to the activity and

market concerned. The Commission may invite the contracting entity, Member State

and other concerned parties to further written or oral exchanges to explore whether

the conditions for granting an exemption are met, including as regards clarification of

missing facts, data or reasoning.

The Commission shall provide a reply to the preliminary assessment question within

180 calendar days after the submission. If the information collected in assessing the

preliminary question is sufficient to conclude that the conditions set out in Article 19

are met, the Commission shall end the preparatory phase, waive the submission of a

formal exemption request and adopt an implementing act declaring that the relevant

activity was exempted pursuant to paragraph 4 of this Article.

EN 47 EN

The Member State or contracting entity concerned may submit a formal request at

any time before the end of the period referred to in the second subparagraph.

If the information collected in assessing the preliminary question is not sufficient to

conclude that the conditions set out in Article 19 are met, the Commission shall

inform the Member State or the contracting entity concerned, after which the

Member State or the contracting entity may decide to submit a formal exemption

request pursuant to paragraph 3 of this Article.

3. Following the submission of a formal exemption request, either directly or following

an inconclusive, negative or partially negative outcome of the preparatory phase, the

Commission shall carry out a full assessment of the conditions set out in Article 19.

The formal exemption request shall include all relevant facts, and in particular

information on any law, regulation, administrative provision or agreement

concerning compliance with these conditions. It may include a position adopted by

an independent national authority that is competent in relation to the activity

concerned. Form, content and other details of the exemption request shall follow the

requirements in the implementing act based on paragraph 10 of this Article.

4. Following its assessment of the information submitted, the Commission shall, by

means of implementing acts adopted within the periods set out in the second

subparagraph of this paragraph, establish whether an activity is directly exposed to

competition on the basis of the criteria set out in Article 19. Those implementing acts

shall be adopted in accordance with the procedure referred to in Article 143(2).

The activity shall cease to be subject to this Regulation when:

(a) the Commission has adopted an implementing act establishing that the activity

is directly exposed to competition within the period provided for in point (b);

(b) the Commission has not adopted the implementing act within the following

periods:

(i) in case the exemption request is not accompanied by a position adopted by

an independent national authority:

(1) 90 days;

(2) 120 days where the Commission exceptionally informs the

contracting entity and Member State concerned that the degree of

complexity of the request for exemption requires more time to

analyse the competitive situation on the relevant market or activity;

(ii) in case the exemption request is accompanied by a position adopted by an

independent national authority:

(1) 60 days;

(2) exceptionally 80 days, where the Commission informs the

contracting entity and Member State concerned that the degree of

complexity of the request for exemption requires more time to

analyse the competitive situation on the relevant market or activity.

Those deadlines shall commence on the first working day following the date on

which the Commission receives the exemption request or, where the information to

be supplied with the exemption request is incomplete, on the working day following

the receipt of the complete information.

EN 48 EN

The periods set out in point (b) may be extended by the Commission with the

agreement of the Member State or of the contracting entity concerned.

The Commission may request from the Member State or the contracting entity

concerned or the independent national authority or any other competent national

authority information that it considers necessary to carry out its assessment,

including related additional information or clarifications to information already

provided. The periods set out in point (b) shall be suspended until the receipt of the

complete and correct information.

5. After the submission of an exemption request, the Member State or the contracting

entity concerned may, with the Commission's agreement, substantially modify its

exemption request, in particular as regards the activities or the geographical areas

concerned. In such case, a new period for the adoption of the implementing act shall

apply, which is to be calculated in accordance with paragraph 4, point (b), unless a

shorter period is agreed on by the Commission and the Member State or contracting

entity concerned.

6. If, in the context of an exemption request, the Commission issues a request for

information to the Member State or the contracting entity concerned which remains

unanswered for 180 days, the exemption request shall be deemed to be withdrawn.

7. Where an activity in a given Member State is already the subject of a procedure

under paragraphs 1 and 5, further exemption requests concerning the same activity in

the same Member State before the expiry of the period opened in respect of the first

exemption request shall not be considered as new procedures but shall be treated in

the context and period of the first exemption request.

8. The Commission may, ex officio, carry out a new analysis of the conditions for

granting an exemption, including following information from a third party, or in case

of a formal request from a Member State.

9. Information on the applicability of Article 19(1) to covered activities for a given

market and activity shall be made available by the Commission, including the fact of

the submission of an exemption request, the applicable periods for its assessment and

any prolongations or suspensions thereof. The Commission shall also publish

information on preliminary questions and new analyses carried out pursuant to

paragraph 8.

10. The Commission is empowered to adopt implementing acts establishing detailed

rules for the application of paragraphs 1 to 9, including at least rules relating to:

(a) implementing provisions concerning the form, content and other details of

preliminary questions and exemption requests pursuant to paragraphs 1 and 3;

(b) publication pursuant to paragraph 9.

That implementing act shall be adopted in accordance with the advisory procedure

referred to in Article 143(2).

EN 49 EN

Title II

Economic operators

Chapter 1

General provisions

Article 21

Economic operators

1. Public buyers shall not require economic operators to have a specific legal form in

order to participate in the procurement procedure.

2. Economic operators that, under the law of the Member State in which they are

established, are entitled to provide the relevant supplies, works or services, shall not

be rejected solely on the ground that, under the law of the Member State in which the

contract is to be awarded, the economic operator would have been required to be

either a natural or legal person.

3. Public buyers may, in the case of services, works or siting and installation

operations, require legal persons to indicate before the start of the execution of the

tasks concerned, the names and relevant qualifications of the staff responsible for the

performance of the contract in question.

Article 22

Groups of economic operators

1. Public buyers shall not set out selection criteria pursuant to Article 27 for groups of

economic operators that differ from those for other economic operators, unless

otherwise laid down in this Article.

A group of economic operators shall be deemed to fulfil a selection criterion where:

(a) one economic operator in the group possesses the necessary technical and

professional ability or economic and financial standing; or

(b) where such ability or standing can be established by combining the relevant

technical and professional ability or economic and financial standing from two

or several members of the group, unless such combination would not achieve

the same level of ability or standing.

2. When justified by the nature of the contract and in accordance with the principle of

proportionality, public buyers may:

(a) derogate from paragraph 1, second subparagraph, point (a) or (b), for selection

criteria relevant for certain critical tasks;

(b) require that certain critical tasks be performed directly by the member of the

group that fulfils the selection criterion relevant for that task.

Public buyers shall identify the critical tasks and related, requirements, clearly

indicating them and their justification in the procurement detail.

EN 50 EN

3. Conditions for the performance of the contract by groups of economic operators may

be permitted to differ from those imposed on other economic operators only where

justified by objective reasons, which are proportionate and clearly indicated in the

procurement detail.

4. Without prejudice to Member States’ competence to organise their social security

systems, public buyers shall not require a group of economic operators to assume a

specific legal form, including once they have been awarded the contract.

5. Public buyers shall give particular consideration not to create unjustified or

disproportionate barriers related to the size of the economic operators participating in

a group, in particular for SMEs.

Article 23

Reliance on the capacity of other entities

1. With regard to selection criteria set by the public buyer pursuant to Article 27,

economic operators may rely on the capacities of other entities, regardless of the

legal nature of the links which it has with them or of their legal form.

2. The public buyer shall verify whether the entities, whose capacity the economic

operator intends to rely on regarding one or more selection criteria fulfil the relevant

selection criteria and whether there are grounds for their exclusion. The public buyer

shall require that the economic operator replace an entity which does not meet a

relevant selection criterion, or in respect of which there are mandatory grounds for

exclusion. The public buyer may require that the economic operator substitute an

entity in respect of which there are optional grounds for exclusion.

3. Public buyers may request in the procurement detail that the economic operator

proves that it will have the relevant resources of the entity it intends to rely on at its

disposal throughout the period of execution of the contract, for example by a

statement to that effect by those entities.

4. Where an economic operator relies on the capacities of other entities with regard to

criteria relating to economic and financial standing, the public buyer may require that

the economic operator and those entities be jointly liable to the public buyer for the

execution of the contract.

5. Where an economic operator relies on the capacities of other entities to prove

technical and professional ability, the public buyer may require in the procurement

detail that such other entity will perform the works or services for which these

capacities are required.

Article 24

Subcontracting

1. Parts of the public contract may be subcontracted. A contract awarded to an

economic operator shall not be subcontracted in its entirety, nor be further

subcontracted in its entirety.

EN 51 EN

2. Public buyers shall require economic operators to indicate in their tender any share of

the contract that they envisage to subcontract to third parties, and any proposed

subcontractors.

They may require the main contractor to inform them after the award of the contract

and before the start of the contract performance of the tasks and activities it intends

to subcontract. They may also require information about the identity of any

subcontractors.

Public buyers shall require the main contractor to provide the information referred to

in the second subparagraph in the following cases:

(a) public works contracts;

(b) services to be provided at a facility under the direct oversight of the public

buyer;

(c) contracts identified as presenting or including a risk for security or public

safety set out in Article 66;

(d) contracts making use of the European preference requirements referred to in

Article 73.

The public buyer shall require the main contractor to notify the public buyer as soon

as possible of any changes to the information provided pursuant to the third

subparagraph during the course of the contract.

3. The public buyer shall require the economic operator to replace a subcontractor in

respect of which there are mandatory grounds for exclusion pursuant to Article 25.

The public buyer may require the economic operator to replace a subcontractor in

respect of which there are optional grounds for exclusion under Article 26.

4. Where the public buyer has made use of any of the European preference

requirements referred to in Article 73 or has included security measures in

accordance with Article 66, the economic operator may introduce or replace a

subcontractor only provided that the subcontractor complies with the European

preference requirements or security measures established by the public buyer.

5. When justified by the nature of the contract and in accordance with the principle of

proportionality, public buyers may require that certain critical tasks be performed

directly by the main contractor. Public buyers shall identify the critical tasks and

related requirements, clearly indicating them and their justification in the

procurement detail.

6. Subcontracting under the provisions in this Article is without prejudice to the main

contractor’s liability.

7. Observance of the obligations referred to in Article 4(4) by subcontractors is ensured

through appropriate action by the competent national authorities acting within the

scope of their responsibility and remit. Member States may adopt or retain additional

proportionate measures limiting subcontracting where they have identified a duly

substantiated higher risk of non-compliance with social and labour law obligations.

EN 52 EN

Chapter 2

Exclusion grounds and selection criteria

Article 25

Mandatory exclusions

1. Public buyers shall at any time during the procedure exclude an economic operator,

including individual members of a group of economic operators, from participation

in a procurement procedure where that economic operator, or a key person in the

functioning of a legal person as defined in the second subparagraph, has been the

subject, in any Member State, of a conviction by final judgment for any of the

offences listed in this subparagraph, or, regarding Member States not bound by the

relevant Union legal act, offences as laid down in equivalent national legislation:

(a) participation in a criminal organisation, as defined in Article 1, point 1, of

Council Framework Decision 2008/841/JHA30;

(b) corruption offences, within the meaning of Directive (EU) 2026/102131;

(c) fraud affecting the Union’s financial interests within the meaning of Article 1

of the Convention on the protection of the European Communities’ financial

interests and criminal offences referred to in Articles 3, 4 and 5 of Directive

(EU) 2017/137132;

(d) terrorist offences and offences related to a terrorist group, as well as offences

related to terrorist activities, as referred to in Articles 3 to 12 of Directive (EU)

2017/54133;

(e) money laundering withing the meaning of Article 3 of Directive (EU)

2018/167334;

(f) trafficking in human beings within the meaning of Article 2 of Directive (EU)

2011/3635;

(g) criminal offences concerning the employment of illegally staying third-country

nationals, as referred to in Articles 2, 3 and 9 of Directive 2009/52/EC36;

30 Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime

(OJ L 300, 11.11.2008, p. 42, ELI: http://data.europa.eu/eli/dec_framw/2008/841/oj). 31 Directive (EU) 2026/1021 of the European Parliament and of the Council of 29 April 2026 on

combatting corruption, replacing Council Framework Decision 2003/568/JHA and the Convention on

the fight against corruption involving officials of the European Communities or officials of Member

States of the European Union and amending Directive (EU) 2017/1371 of the European Parliament and

of the Council (OJ L, 2026/1021, 11.5.2026, ELI: http://data.europa.eu/eli/dir/2026/1021/oj). 32 Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight

against fraud to the Union's financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29,

ELI: http://data.europa.eu/eli/dir/2017/1371/oj). 33 Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on

combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council

Decision 2005/671/JHA (OJ L 88, 31.3.2017, p. 6, ELI: http://data.europa.eu/eli/dir/2017/541/oj). 34 Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on

combating money laundering by criminal law (OJ L 284, 12.11.2018, p. 22, ELI:

http://data.europa.eu/eli/dir/2018/1673/oj). 35 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and

combating trafficking in human beings and protecting its victims, and replacing Council Framework

Decision 2002/629/JHA (OJ L 101, 15.4.2011, p. 1, ELI: http://data.europa.eu/eli/dir/2011/36/oj).

EN 53 EN

(h) environmental criminal offences as referred to in Articles 3 and 4 of Directive

(EU) 2024/120337;

(i) criminal offences concerning the violation of Union restrictive measures as

referred to in Articles 3 and 4 of Directive (EU) 2024/122638;

(j) fraudulent use of non-cash payment instruments as referred to in Articles 3 to 8

of Directive 2019/713/EU39;

(k) offences in the area of sexual abuse and sexual exploitation of children as

referred to in Articles 3 to 9 of Directive (EU) 2011/9340.

A key person in the functioning of a legal person means a personhaving a leading

position within the legal person, based on any of the following:

(a) a power of representation of the legal person;

(b) an authority to take decisions on behalf of the legal person;

(c) an authority to exercise control within the legal person.

2. The exclusion grounds set out in this Article shall apply for five years from the date

of the delivery of the final judgment, except where the period of exclusion has been

set by the final judgment, meaning that no exclusion decision shall be taken after the

expiry of the periods referred to in this sentence.

3. Public buyers shall at any time during the procedure exclude an economic operator

from participation in a procurement procedure when it becomes aware that the

economic operator or contractor is in breach of its obligations relating to the payment

of taxes or social security contributions and this has been established by final judicial

or administrative decision, except if by that moment in time, the economic operator

has concluded a binding arrangement on paying the taxes or social security

contributions due, including, where applicable, any interest accrued or fines.

Public buyers may derogate from the mandatory exclusion provided for in

subparagraph 1 where an exclusion would be clearly disproportionate, in particular

where only minor amounts are unpaid.

4. Public buyers may decide to derogate from the mandatory exclusion provided for in

this Article on an exceptional basis, for overriding reasons relating to the public

interest such as public health or protection of the environment Any decision to

36 Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024 on the

protection of the environment through criminal law and replacing Directives 2008/99/EC and

2009/123/EC (OJ L, 2024/1203, 30.4.2024, ELI: http://data.europa.eu/eli/dir/2024/1203/oj). 37 Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024 on the

protection of the environment through criminal law and replacing Directives 2008/99/EC and

2009/123/EC (OJ L, 2024/1203, 30.4.2024, ELI: http://data.europa.eu/eli/dir/2024/1203/oj). 38 Directive (EU) 2024/1226 of the European Parliament and of the Council of 24 April 2024 on the

definition of criminal offences and penalties for the violation of Union restrictive measures and

amending Directive (EU) 2018/1673 (OJ L, 2024/1226, 29.4.2024, ELI:

http://data.europa.eu/eli/dir/2024/1226/oj). 39 Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating

fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision

2001/413/JHA (OJ L 123, 10.5.2019, p. 18, ELI: http://data.europa.eu/eli/dir/2019/713/oj). 40 Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on

combating the sexual abuse and sexual exploitation of children and child pornography, and replacing

Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1, ELI:

http://data.europa.eu/eli/dir/2011/93/oj.

EN 54 EN

derogate and the justification therefore shall be documented in the individual

documentation pursuant to Article 109.

Article 26

Optional exclusion grounds

1. Public buyers may at any time during the procedure exclude an economic operator,

including individual members of groups of economic operators, from participation in

a procurement procedure, where:

(a) the public buyer can demonstrate by any appropriate means that the economic

operator has breached applicable obligations under relevant Union legislation,

as referred to in Article 4(4);

(b) the economic operator is bankrupt or is the subject of insolvency or winding-up

proceedings or a comparable situation;

(c) the public buyer can demonstrate by appropriate means grave professional

misconduct by the economic operator, which renders its integrity or reliability

questionable;

(d) the public buyer has sufficiently plausible indications to conclude that the

economic operator has entered into agreements with other economic operators

aimed at distorting competition;

(e) the economic operator has shown significant or persistent deficiencies in the

performance of a substantive requirement under a prior public contract, which

led to early termination of that prior contract, damages or other comparable

sanctions by the public buyer;

(f) the economic operator, in the context of the concerned procedure, has been

found accountable of serious misrepresentation with regard to the information

required for the verification of the absence of grounds for exclusion or the

fulfilment of the selection criteria; or has otherwise undertaken to unduly

obtain advantages in the public procurement procedure;

(g) the public buyer can demonstrate by any appropriate means including but not

limited to classified information or non-publicly disclosable assessments

provided by competent national authorities, that the economic operator does

not possess sufficient reliability to exclude risks to the security and public

safety interests of the Union or of one or more Member States;

(h) the economic operator has benefitted from foreign subsidies distorting the

internal market, established by an implementing act adopted by the

Commission pursuant to Article 31 (2) of Regulation (EU) 2022/256041, in the

three years preceding the public procurement procedure, and the public buyer

has sufficiently plausible indications to conclude that the foreign subsidies

concerned are likely to have an impact on the tender of the economic operator.

2. Any economic operator subject to an exclusion pursuant to paragraph 1 may provide

evidence to rebut the existence of the exclusion ground or to demonstrate that it has

41 Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on

foreign subsidies distorting the internal market (OJ L 330, 23.12.2022, p. 1, ELI:

http://data.europa.eu/eli/reg/2022/2560/oj).

EN 55 EN

taken sufficient measures to demonstrate its reliability despite the existence of the

exclusion ground.

For this purpose, the economic operator shall, in particular, prove that it has

(a) paid or undertaken to pay compensation in respect of any damage caused by

the misconduct;

(b) clarified the facts and circumstances in a comprehensive manner by actively

cooperating with the investigating authorities; and

(c) taken concrete technical, organisational and personnel measures that are

appropriate to prevent further misconduct.

If the public buyer considers the evidence provided as sufficient, the economic

operator concerned shall not be excluded from the procurement procedure.

The measures taken by the economic operators shall be evaluated taking into account

the gravity and particular circumstances of the misconduct. In assessing the measures

taken by the economic operator public buyers shall take into account the nature,

extent and timing of the cooperation with the relevant investigating authorities.

Where the measures are considered to be insufficient, the economic operator shall

receive a statement of the reasons thereto.

An economic operator which has been excluded by final judgment in any Member

State from participating in procurement procedures shall not be entitled to make use

of the possibility provided for under this paragraph during the period of exclusion

resulting from that judgment.

Member States may designate a national authority competent to evaluate the

evidence and decide whether it is sufficient for the purposes of this paragraph. Public

buyers shall rely on a positive decision of the national competent authority for the

purpose of their procurement procedures.

3. Where no measures as specified in paragraph 2 are taken and where the period of

exclusion has not been set by final judgment, public buyers may exclude economic

operators pursuant to this Article during a period of five years from the date of the

conduct giving rise to exclusion or, in the case of continued or repeated acts, the date

on which the conduct ceases, but not after that maximum period.

4. Where a public buyer excludes an economic operator on the basis of paragraph 1,

point (h), it shall inform the Commission thereof.

Article 27

Selection criteria

1. Where public buyers decide to make use of selection criteria, they shall lay down

such criteria in accordance with the conditions in this Article.

2. Selection criteria shall only relate to:

(a) technical and professional ability within the meaning of paragraphs 4, 5 and 6;

(b) legal, economic and financial standing within the meaning of paragraph 7.

3. Public buyers shall limit any requirements to those that are appropriate to ensure that

an economic operator has the legal, economic and financial capacities and the

EN 56 EN

technical and professional abilities to perform the contract to be awarded. All

requirements shall be related and proportionate to the complexity of and the risks

associated with the subject-matter of the contract.

4. When justified by the subject-matter of the contract, public buyers may require

economic operators to be enrolled in one of the professional or trade registers

established in the country where the economic operator conducts its main activity.

In procurement procedures for services, insofar as economic operators are required to

hold a particular authorisation or to be members of a particular organisation in order

to be able to perform in their country of origin the service concerned, the public

buyer may require them to prove that they hold such authorisation or membership.

Certified registration on official lists by the competent bodies or a certificate issued

by the certification body shall constitute a presumption of compliance with regard to

the requirements set out pursuant to this paragraph.

5. Any references to qualifications or qualification levels included in selection criteria

shall mention the European Qualifications Framework levels set out in Annex II to

Council Recommendation of 22 May 201742.

6. Public buyers may impose requirements ensuring that economic operators possess

the necessary human and technical resources and experience to perform the contract

to an appropriate quality standard.

Unless justified due to the complexity of the contract or the nature of the subject-

matter, public buyers shall not require prior experience in public contracts as a

condition for participation in the procurement procedure.

A public buyer may assume that an economic operator does not possess the required

professional abilities where:

(a) the public buyer has established by appropriate means that the economic

operator has conflicting interests which may negatively affect the performance

of the contract; or

(b) the public buyer has been made aware by appropriate means that the economic

operator presents a security concern for a Member State or the Union as a

whole.

7. Public buyers may require economic operators to satisfy any of the following

criteria:

(a) to have an appropriate minimum yearly overall turnover;

(b) to have an appropriate minimum turnover in the area covered by the contract;

(c) to provide information on their annual accounts, including on the ratios

between assets and liabilities;

(d) to have an appropriate level of professional indemnity insurance.

The minimum turnovers referred to in the first subparagraph shall not exceed 50 %

of the estimated annual contract value, except in duly justified cases such as relating

to the special risks attached to the nature of the works, services or supplies.

42 Council recommendation of 22 May 2017 on the European Qualifications Framework for lifelong

learning and repealing the recommendation of the European Parliament and of the Council of 23 April

2008 on the establishment of the European Qualifications Framework for lifelong learning (OJ C 189,

15.6.2017, p.15).

EN 57 EN

The public buyer shall indicate the main reasons for such a requirement in the

procurement detail.

Information from the annual accounts may be taken into consideration only where

the public buyer has specified the methods and criteria for such consideration in the

procurement detail. Such methods and criteria shall be transparent, objective and

non-discriminatory.

8. Information that can be determined from existing national databases established by a

public body, or from the registration on official lists or certifications shall not be

questioned without sufficient justification.

Chapter 3

Means of proof of eligibility and database access

Article 28

Means of proof of the eligibility of economic operators

1. Public buyers shall require economic operators to use the electronic eligibility

service established pursuant to Article 133 as the means of proof for the following:

(a) absence of exclusion grounds pursuant to Articles 25 and 26;

(b) compliance with selection criteria pursuant to Article 27.

Where the economic operator relies on the capacities of other entities pursuant to

Article 23 or proposes to make use of subcontractors in the execution of the contract

pursuant to Article 24, the economic operator shall also provide the information

referred to in the first subparagraph for those entities through the electronic

eligibility service.

2. Where the electronic eligibility service provides for an automated verification of the

existence of an exclusion ground or compliance with a selection criterion, public

buyers shall use that verification for their decision on eligibility.

3. Economic operators shall use the digital business credential tool as provided for in

Article 133. Where an economic operator does not have access to that tool or where

the relevant evidence is not available through that tool, the economic operator shall

declare, through the electronic eligibility service, whether it complies with the

requirements set out for exclusion grounds and the selection criteria and whether it

would be able to submit the required evidence (self-declaration).

In that case, the public buyer may, at any time during the procedure, require evidence

that is not available through the electronic eligibility service where it is necessary for

the assessment of the public buyer’s requirements.

4. Economic operators shall indicate their country of origin, in accordance with Article

74, in the electronic eligibility service referred to in Article 133.

If required for applying requirements under Article 73(2), economic operators shall

indicate the country of origin of the goods that compose their tender, incorporating it,

where applicable, into the digital product passport of the goods pursuant to

Regulation (EU) 2024/1781.

Where public buyers conduct a procurement procedure by applying one or more

measures set out in Part III, Title II, Chapter 5, they may, at any time during the

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public procurement procedure, request the economic operator to supplement, clarify

or complete information or documentation related to the verification of the origin of

the economic operator, or the goods, services or works offered, provided that such

requests comply with the principles of equal treatment and transparency.

Where the economic operator fails to provide the information or documentation

referred to in the third subparagraph, without reasonable explanation, and thereby

prevents the verification of the origin by a public buyer or makes such verification

practically impossible or very difficult, the economic operator, or the tender it has

submitted, may be excluded from participating in the public procurement procedure

concerned.

Article 29

Connection of databases to the electronic eligibility service

1. Member States shall, by 15 June 2029, provide free of charge access for the digital

business credential tool pursuant to Article 133 to the national databases in which:

(a) final judgements for the offences referred to in Article 25(1) are recorded, in

particular to the national criminal registers for legal and those for natural

persons;

(b) information on key persons pursuant to Article 25(1), second subparagraph, is

recorded, in particular in the national professional or trade registers;

(c) evidence regarding the outstanding payment of taxes or social security

contributions pursuant to Article 25(2) is recorded, in particular in the national

professional or trade registers and in taxation databases and social security

databases;

(d) evidence regarding bankruptcy, insolvency and restructuring pursuant to

Article 25(4) point (b), is recorded, in particular in the national professional or

trade registers and the national registers of bankruptcy, insolvency and

reorganisations, including court registers;

(e) evidence regarding the compliance with selection criteria set pursuant to

Article 27 of this Regulation and for the assessment of origin pursuant to

Article 74 of this Regulation is stored, in particular in national professional or

trade registers and the beneficial ownership registers established pursuant to

Article 12 of Directive (EU) 2024/1640;

(f) any other structured evidence relevant within the scope of this Regulation is

recorded, such as labels, specifications including security requirements or

means of proof for product requirements pursuant to Article 92.

2. Access pursuant to paragraph 1 shall, where possible, be provided in such a manner

that the electronic eligibility service may automate the verification as set out in

Article 28(2). An automated verification shall in particular be provided for national

criminal registers, taxation databases and social security databases, as well as

national registers of bankruptcy, insolvency and reorganisations. Such verification

shall be subject to suitable measures to safeguard the rights of freedoms of data

subjects pursuant Articles 10 and 22 of Regulation (EU) 2016/679. The personal data

shall only be used for the purpose of ensuring that the economic operator meets the

requirements of this Regulation.

EN 59 EN

3. Member States shall inform the Commission of any newly established national

databases capable of providing means of proof through use of the digital business

credential tool and shall provide free of charge access for the digital business

credential tool to such national databases.

EN 60 EN

Part III

Procedures for public contracts

Title I

Public procurement procedures

Chapter 1

Preliminary steps and general provisions

Article 30

Market consultations

1. Public buyers may conduct market consultations to prepare their procurement and

gain market knowledge, including about the availability of, or potential of

developing, innovative solutions.

2. Where public buyers conduct market consultations pursuant to paragraph 1 of this

Article, they shall announce those consultations in accordance with Article 110.

3. During the market consultations, public buyers may seek or accept information and

advice from the general public, independent experts, public authorities, market

participants or other relevant parties. The information and advice may take the form

of written or verbal exchanges, demonstration of prototypes, live demonstrations, or

other suitable objective formats. Such information and advice may be used in the

planning and conduct of the procurement procedures, respecting the principles of

equal treatment, non-discrimination, fair competition and transparency.

4. The participation of an economic operator in a market consultation does not prejudge

its eligibility for the procurement procedure.

Article 31

Choice of procedures

1. Public buyers may use the open procedure set out in Article 34 and the dynamic

procedure set out in Article 36 irrespective of the type of works, supplies or services

needed.

2. Public buyers may use the innovation procedure to address a societal challenge for

which they have not identified an existing appropriate or desirable solution, which is

to be developed by the successful tenderer(s) in the course of the innovation

procedure.

3. Public buyers may use the special procedure described in Article 46 only in the

specific cases and circumstances laid down in Articles 47 and 48.

Article 32

Estimation of the value of the contract

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1. Public buyers intending to award a contract shall estimate the value of the contract

based on the estimated costs of the solution that meets the needs of the public buyer.

The estimation shall be based on the maximum amount to be spent on the satisfaction

of the needs over the entire duration of the contract, whether awarded to one or more

economic operators, including all forms of payments and benefits, such as:

(a) premiums, fees, commissions and interests;

(b) the total value of options or renewals, where the contract provides for the

possibility of options or renewals.

2. Where public buyers conclude more than one successive contract to satisfy their

need, the calculation of the estimated value shall be based on:

(a) the value of recurring contracts for the same type of purchase during the

preceding 12 months or the buyer’s preceding fiscal year, adjusted, where

possible, to take into account anticipated changes in the quantity or estimated

value of the solution to be procured over the following 12 months;

(b) the estimated value of recurring contracts for the same type of purchase during

the 12 months following the initial contract or the public buyer’s preceding

fiscal year.

Article 33

Conduct of negotiations

1. Public buyers shall respect the principles of proportionality and equal treatment in

the conduct of negotiations and shall ensure that in any given round of negotiations

the number of solutions discussed allows for genuine competition. Public buyers

shall ensure that any disclosure of information during negotiations does not affect the

commercial interests of the economic operators taking part in such negotiations.

2. Without prejudice to other relevant Union legislation, public buyers may negotiate

all non-essential characteristics of the works, supplies and services intended for

purchase, which may include certain elements related, for instance to technical merit,

quantity, delivery conditions and other commercial aspects, but does not include

exclusion grounds, selection criteria and award criteria.

Public buyers shall clearly indicate in the public summary of competition the

characteristics of the works, supplies and services that are not subject to negotiation.

These indications shall be sufficiently precise and comprehensive to circumscribe the

subject-matter of the contract and shall contain the essential conditions of the

contract, on which economic operators would legitimately rely in order to take the

decision whether to participate in the award procedure.

The negotiations shall not substantially alter the subject-matter of the contract.

3. Public buyers may conduct negotiations in one or more rounds. After each round, the

economic operators participating in the negotiations shall be invited to submit a

tender and public buyers may decide to reduce the number of participants based on

the award criteria set pursuant to Article 98.

Public buyers shall inform economic operators when a new round of negotiations

will start and whether or not they will be invited. Public buyers shall inform all

tenderers, whose tenders have not been eliminated, of any changes to the

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specifications or changes to other parts of the procurement detail as a result of the

negotiations.

Public buyers shall provide sufficient time for tenderers to modify and re-submit

amended tenders, as appropriate. Economic operators may submit revised tenders

depending on the outcome of the negotiations.

Where a public buyer has decided to conclude the negotiations and proceed to the

award of the contract, it shall invite each of the remaining economic operators to

submit a final tender.

Chapter 2

Open procedure

Article 34

Launch and conduct of the open procedure

1. In the open procedure, public buyers shall make their procurement needs known

through a public summary of competition published pursuant to Article 110 setting

out whether and which selection criteria apply, and whether they intend to negotiate.

2. Any interested economic operator may express its interest and submit a tender (‘first

tender’) using the electronic eligibility service referred to in Article 133. The

expression of interest shall be submitted together with a tender specifying in

particular how the economic operator proposes to address the needs of the public

buyer. The deadline for receiving expressions of interest with tenders shall be no less

than 20 days from the publication of the public summary of competition.

3. Where a public buyer has indicated that it intends not to negotiate, it shall award the

contract in accordance with Article 98 to one or more economic operators that are

not in a situation of exclusion, and, where applicable, fulfil the selection criteria set

pursuant to Article 27. The contract shall be awarded on the basis of the first tenders

submitted pursuant to paragraph 2.

4. Where the public buyer has indicated that it intends to negotiate, it shall send an

invitation to negotiate to all interested economic operators that are not in a situation

of exclusion, and, where applicable, that fulfil the selection criteria set pursuant to

Article 27.

5. Negotiations shall be carried out in accordance with Article 33. Where the public

buyer has decided to conclude the negotiations and has invited each of the remaining

economic operators to submit a final tender, the contract shall be awarded on the

basis of those final tenders.

6. Public buyers may decide not to negotiate, despite having indicated their intention to

do so, but instead proceed to award the contract on the basis of the first tenders,

provided that they have reserved the possibility of doing so in the public summary of

competition.

Article 35

Finalisation of the procedure and award of the contract

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1. Public buyers shall award the contract to the tenderer or tenderers that have

submitted the tender offering the best quality for money in accordance with Article

98.

2. Without prejudice to the standstill period established in Directives 89/665/EEC43 and

92/13/EEC44, the contract shall be concluded in accordance with the applicable law

of the Member State of the public buyer.

Chapter 3

Dynamic procedure

Article 36

Dynamic procedure

Public buyers may use a dynamic procedure, in which only economic operators that have

joined a given procedure are invited to express interest, submit a tender or participate in

negotiations for individual contracts based on that procedure. Economic operators may

request to join the procedure at any point during its validity.

Article 37

Launch and validity of the dynamic procedure

1. Public buyers conducting a dynamic procedure shall publish a public summary of

competition on the launch of a dynamic procedure pursuant to Article 110, which

shall indicate the duration of validity of the procedure, during which interested

economic operators may request to join the procedure and during which acquisitions

on the basis of the procedure may be made. The dynamic procedure shall remain

open to all interested economic operators throughout its validity.

2. Public buyers may choose between conducting a dynamic procedure without

selection criteria pursuant to Article 38 or a dynamic procedure with selection

criteria pursuant to Article 39, and whether to negotiate in accordance with Article

33. The choices made shall be indicated the public summary of competition on the

launch of a dynamic procedure.

3. Where public buyers intend to award an individual contract for the first time on the

basis of the dynamic procedure, the invitation to express an interest in the specific

contract shall take place not earlier than 25 days after the publication of the public

summary of competition on the launch of a dynamic procedure.

Article 38

Conduct of the dynamic procedure without selection criteria

43 Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and

administrative provisions relating to the application of review procedures to the award of public supply

and public works contracts (OJ L 395, 30.12.1989, p. 33, ELI: http://data.europa.eu/eli/dir/1989/665/oj). 44 Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative

provisions relating to the application of Community rules on the procurement procedures of entities

operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p. 14,

ELI: http://data.europa.eu/eli/dir/1992/13/oj).

EN 64 EN

1. Upon the publication of the public summary of competition, and until the validity of

the procedure has expired, economic operators may join the procedure by sharing

their profile with the public buyer trough the eligibility system established pursuant

to Article 133. By sharing their profile, the economic operators declare that they are

qualified to perform the contract.

2. Where public buyers intend to award individual contracts based on the dynamic

procedure, they shall inform all economic operators that have until that point joined

the procedure about the individual contract to be awarded, including the precise

description, quantity and timing of the purchase in question. Public buyers shall

invite all economic operators participating in the dynamic procedure to express their

interest in the specific contract to be awarded, setting a reasonable time limit for

expressions of interest.

3. After the expiry of the time limit referred to in paragraph 2, public buyers shall invite

the economic operators that have expressed their interest in the specific contract to be

awarded, either to submit a tender, or to submit a first tender followed by

negotiations.

Where the number of expressions of interest is more than five, the public buyer may,

instead of inviting all economic operators that have expressed their interest, invite

only five or certain more economic operators selected through the electronic

eligibility service by means of random indiscriminate algorithmic determination, and

shall inform through the eligibility system all those not invited.

4. Only economic operators that have submitted a tender shall be considered to be

tenderers concerned within the meaning of Directives 89/665/EEC and 92/13/EEC.

Article 39

Conduct of the dynamic procedure with selection criteria

1. Upon the publication of the public summary of competition, and until the validity of

the procedure has expired, economic operators may request to join the procedure, by

sharing their profile with the public buyer trough the eligibility system established

pursuant to Article 133. By sharing their profile, the economic operators declare that

they are qualified to perform the contract.

2. The public buyer shall admit economic operators to the procedure on the basis of the

selection criteria indicated in the public summary of competition.

3. Where public buyers intend to award individual contracts based on the dynamic

procedure, they shall inform all economic operators that have until that point been

selected for joining the procedure about the individual contract to be awarded,

including the precise description, quantity and timing of the purchase in question.

Public buyers shall invite all economic operators participating in the dynamic

procedure to express their interest in the specific contract to be awarded, setting a

reasonable time limit for expressions of interest.

4. After the expiry of the time limit referred to in paragraph 3, public buyers shall invite

all economic operators that have expressed their interest in the specific contract to be

awarded either to submit a tender, or to submit a first tender followed by

negotiations.

EN 65 EN

By way of derogation from the first subparagraph, public buyers may decide to only

invite a subset of the economic operators having expressed their interest in the

specific contract to be awarded, on the basis of objective and non-discriminatory

criteria or rules, provided that they have indicated these in the public summary of

competition on the launch of the dynamic procedure.

Article 40

Finalisation of the procedure and award of the contract

1. Public buyers shall evaluate the final tenders in accordance with Article 98 and

establish a ranking of all economic operators that have submitted a final tender.

Public buyers shall award the contract to one or more economic operators that are not

in a situation of exclusion. The results of this evaluation, including the ranking, shall

be disclosed to the tenderers.

2. Public buyers shall, for every contract signed under a dynamic procedure, publish a

public summary of result pursuant to Article 110.

Chapter 4

Innovation procedure

Article 41

Design and conduct of the innovation procedure

1. Public buyers may use the innovation procedure as set out in this Chapter to address

a societal challenge.

2. The innovation procedure shall be conducted according to the following phases:

(a) determination of the societal challenge and design of the value assessment

framework;

(b) launch of the procedure;

(c) the selection of innovative solution proposals;

(d) testing, validation and assessment of innovative solution proposals;

(e) the award of the public contract.

3. Public buyers shall determine the societal challenge to which they need an innovative

solution proposal and define a value assessment framework that will be used during

the course of the procedure for the assessment of the added value of the innovative

solution proposal addressing the societal challenge. The value assessment framework

shall use performance indicators to measure how much the proposed innovative

solution proposal contributes to addressing the societal challenge in an objective and

measurable way. It shall include a score system and indicate the minimum scores

needed for innovative solution proposals to proceed to the different phases of the

innovation procedure.

4. Elements of the value assessment framework may refer in particular to:

(a) enhanced user and process value, such as feedback gathered from citizens

during the testing and validation of the innovative solution proposal;

EN 66 EN

(b) key performance indicators pertaining to increase efficiency or lower nuisance

in the performance of public services, improved sustainability performance,

improved health protection, reduced environmental impacts or increased

security and resilience, such as safer cybersecurity systems;

(c) cost savings for the public buyer as compared with traditional or previously

applied solutions.

Article 42

Launch of the innovation procedure

1. Before the launch of an innovation procedure, public buyers shall conduct a market

consultation according to Article 30 which shall last at least two months, unless a

shorter duration is justified given the specificities of the contract.

2. The public buyer shall make the following information available in the market

consultation:

(a) a preliminary description of the societal challenge;

(b) a preliminary value assessment framework;

(c) an invitation for feedback and dialogue.

3. Upon the closure of the market consultation, public buyers shall, on the basis of the

feedback received, prepare and launch the innovation procedure with a public

summary of competition in accordance with Article 110.

The public buyer shall indicate in the procurement detail:

(a) the final description of the societal challenge;

(b) the minimum functional requirements that the innovative solution proposals

need to meet;

(c) the final value assessment framework;

(d) any cash or in-kind contributions that the public buyer intends or may make

available during the phases of the procedure,

(e) the expected procurement volumes;

(f) draft outlines for the contracts for testing, validation and assessment and for

deployment of the innovative solution proposal, indicating topics for

negotiation on deployment,

(g) information regarding the allocation of intellectual property rights arising in

accordance with Article 64(4).

4. Any economic operator may submit an innovative solution proposal in response to a

public summary of competition together with any information necessary for the

selection of innovative solution proposals.

Article 43

Selection of innovative solution proposals

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1. For the selection of innovative solution proposals, the public buyer shall perform an

eligibility assessment in two phases.

2. In the first phase, the public buyer shall:

(a) verify the absence of any exclusion applicable to the economic operator and,

where the public buyer choses to use selection criteria, proof of selection

criteria;

(b) confirm that the innovative solution proposal submitted by the economic

operator complies with the minimum functional requirements pursuant to

Article 42(3), point (b).

3. In the second phase, the innovative solution proposals of economic operators that

have passed the assessment pursuant to paragraph 2 of this Article, shall be selected

according to the criteria of the value assessment framework and the evaluation score

referred to in Article 42(3), point (c), based on:

(a) a positive evaluation of the innovation potential of the proposal, as well as its

innovation capacity to address the societal challenge; and

(b) a positive evaluation of the feasibility and scalability of the proposal.

The second phase may be conducted by an interview with the economic operator, or

by way of written exchanges with the economic operator.

4. Where the innovative solution proposal submitted by an economic operator attains at

least the minimum total score for overall positive evaluation, that economic operator

shall proceed to the next phase of the procurement procedure. The public buyer may

limit the number of economic operators to proceed if it indicates such number in the

procurement detail; in that case, the economic operators with the highest scores shall

proceed.

Article 44

Testing, validation and assessment of innovative solution proposals

1. The public buyer shall invite economic operators found eligible pursuant to Article

43 to the testing, validation and assessment phase.

2. The duration of this phase shall not exceed two years from the date of selection of

the innovative solution proposals, unless duly justified.

3. It shall consist of a structured and systematic process conducted by or on behalf of

the public buyer based on the value assessment framework with the purpose of an

overall assessment of the proposal, which shall include, where relevant:

(a) assessing the technical, operational, and functional feasibility of the innovative

solution proposal in addressing the specified societal challenge;

(b) verifying compliance of the innovative solution proposal with the minimum

functional requirements and applicable regulatory frameworks;

(c) evaluating the added value of the innovative proposal in a real-world or

simulated environment;

(d) identifying any risks, limitations, or areas for improvement prior to full-scale

implementation or procurement of the innovative solution proposal.

EN 68 EN

It may include laboratory testing, field trials, pilot deployments, user feedback

collection, and comparative analysis.

4. Where Union legislation provides a framework for the assessment of the suitability

of the innovative solution proposal to address the societal challenge, the public buyer

shall rely on that assessment.

5. Any payments for each defined milestone of the testing, validation and assessment

phase shall be upfront.

6. During this phase, economic operators may adjust and enhance their proposals with

the objective of securing compliance with minimum functional requirements and

increasing the added value of their proposal.

7. The public buyer shall make a final assessment of the improved proposal on

compliance with minimum functional requirements and its added value pursuant to

the value assessment framework and minimum scores.

8. The final assessment, indicating a positive or negative decision to proceed to the

phase of awarding the public contract, shall be published as the public summary of

result for the testing, validation and assessment phase.

Article 45

Award of the public contract for deployment of the innovative solution proposal

1. The public buyer shall send an invitation to negotiate to each economic operator that

has received a positive decision to proceed pursuant Article 44(8).

2. In addition to the provisions in Article 33, the public buyer shall indicate the

structure of the negotiations and shall determine how the negotiation is finalised,

including a clear exit strategy for ending the procedure without award by

determining objective criteria in which case negotiations are considered to have

failed.

3. The description of the societal challenge, the minimum functional requirements and

the value assessment framework shall not be subject to negotiation.

4. The negotiation shall focus on deployment of the innovative solution proposal and

may include, but is not limited to:

(a) scope of commercial supply;

(b) rights to exploit in wider markets;

(c) pricing and final procurement volumes, not exceeding the volumes announced

pursuant to Article 42(3), point (e);

(d) future upgrades, maintenance and service conditions of the innovative solution

proposal;

(e) allocation of technical and commercial risks in deployment of the innovative

solution proposal.

5. In case of a successful negotiation with an economic operator, the public buyer shall

award the public contract for deployment of the solution proposal directly to that

economic operator or, in the case of several successful solutions, to those economic

EN 69 EN

operators. Awards may take place for up to five years after publication of the positive

decision pursuant Article 44(8).

Chapter 5

Special procedures and tools

Article 46

Contracts requiring only publication of public summary of result

1. In the specific cases and circumstances laid down in Articles 47 and 48, public

buyers may use a special procedure to award a public contract by requesting a

solution directly from one or more economic operators without the need for a

competitive process or prior publication of information on the tender. This request

may take the form of an invitation to negotiate, a request to submit a tender, or a

request to deliver the solution against invoice. Public buyers shall publish a public

summary of result pursuant to Article 110.

2. The award of these contracts shall follow the principles of non-discrimination, equal

treatment and transparency, taking due account of the specific needs and

circumstances of the public buyers in the specific cases and circumstances described

in Article 47 and 48.

Article 47

Conditions for the use of contracts with publication of a public summary of result only

Public buyers may use the procedure described in Article 46 in any of the following

situations, in compliance with the Union’s international commitments:

(a) the solution needed can be supplied only by a particular economic operator and

no reasonable alternative or substitute exists for any of the following reasons:

(i) the aim of the procurement is the creation or acquisition of a unique work of

art or artistic performance;

(ii) competition is absent for technical reasons that cannot be attributed to the

design of a prior procurement procedure or an artificial narrowing down of the

parameters of the procurement;

(iii) the protection of exclusive rights, including intellectual property rights;

(iv) where the opening up of the contract to competition could negatively affect

essential national security interests of the Union or the Member State of the

public buyer and there is no possibility of applying less intrusive measures.

(b) in the case of public supply contracts that concern:

(i) additional deliveries during not more than two years by the original supplier

which are intended either as a partial replacement of supplies or installations or

as the extension of existing supplies or installations, where a change of supplier

would entail disproportionate costs or technical difficulties for the public

buyer;

(ii) for supplies quoted and purchased on a commodity market;

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(iii) for the purchase of supplies or services on particularly advantageous terms

that only arise in the very short term in the case of unusual disposals such as

those arising from winding down or insolvency proceedings.

(c) in the case of public service contracts that concern:

(i) administrative social, educational, healthcare and cultural service contracts

under Common Procurement Vocabulary (CPV) codes 79950000-8

[Exhibition, fair and congress organisation services], 79951000-5 [Seminar

organisation services], 79952000-2 [Event services], 79952100-3 [Cultural

event organisation services], 79953000-9 [Festival organisation services],

79954000-6 [Party organisation services], 79955000-3 [Fashion shows

organisation services], 79956000-0 [Fair and exhibition organisation services],

92100000-2 [Motion picture and video services], 92200000-3 [Radio and

television services], 92400000-5 [News-agency services];

(ii) Hotel and restaurant services under CPVs 55100000-1 to 55410000-7;

55521000-8 to 55521200-0 [55521000-8 Catering services for private

households, 55521100-9 Meals-on-wheels services, 55521200-0 Meal delivery

service] 55520000-1 Catering services, 55522000-5 Catering services for

transport enterprises, 55523000-2 Catering services for other enterprises or

other institutions, 55524000-9 School catering services 55510000-8 Canteen

services, 55511000-5 Canteen and other restricted clientele cafeteria services,

55512000-2 Canteen management services, 55523100-3 School-meal service.

Article 48

Emergency and crisis

1. Public buyers may make use of the procedure described in Article 46, where, for

reasons of extreme urgency not attributable to the public buyer, the time limits for

the procedures in this Regulation cannot be complied with.

2. Without prejudice to any joint procurement activities organised by the Union

institutions, bodies, offices and agencies where an emergency mode has been

activated pursuant Regulation (EU) 2024/274745, the emergency framework has been

activated pursuant Council Regulation (EU) 2022/237246, serious cross-border

threats to health pursuant to Regulation (EU) 2022/237147 exist, or the Commission

has declared a crisis or a state of emergency, the condition set out in paragraph 1

shall be deemed to be fulfilled for the type of solutions concerned and for as long as

the state of emergency or the serious cross-border threat exist.

45 Regulation (EU) 2024/2747 of the European Parliament and of the Council of 9 October 2024

establishing a framework of measures related to an internal market emergency and to the resilience of

the internal market and amending Council Regulation (EC) No 2679/98 (Internal Market Emergency

and Resilience Act) (OJ L, 2024/2747, 8.11.2024, ELI: http://data.europa.eu/eli/reg/2024/2747/oj). 46 Council Regulation (EU) 2022/2372 of 24 October 2022 on a framework of measures for ensuring the

supply of crisis-relevant medical countermeasures in the event of a public health emergency at Union

level (OJ L 314, 6.12.2022, p. 64, ELI: http://data.europa.eu/eli/reg/2022/2372/oj). 47 Regulation (EU) 2022/2371 of the European Parliament and of the Council of 23 November 2022 on

serious cross-border threats to health and repealing Decision No 1082/2013/EU (OJ L 314, 6.12.2022,

p. 26, ELI: http://data.europa.eu/eli/reg/2022/2371/oj).

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Article 49

Qualification list for contracting entities

1. Contracting entities may establish and operate a qualification list. They may award

individual contracts based on it.

2. Contracting entities shall publish a public summary of competition pursuant to

Article 110 on the existence of the qualification list. They shall ensure that economic

operators are at all times able to request to be admitted to the list during its duration

indicated in the public summary of competition.

3. Contracting entities shall establish objective rules and criteria for admission of

economic operators in the qualification list, and objective criteria and rules for the

management of the qualification list, covering matters such as admission, periodic

updating of the qualifications, if any, and the duration. They may divide the

qualification list into different categories according to the subject-matter of

individual contracts based on the qualification list.

4. Rules and criteria for admission to the qualification list shall include the exclusion

criteria pursuant to Article 25 and may relate to exclusion criteria pursuant to

Article 26, selection criteria pursuant to Article 27 and specifications pursuant to

Article 88. Contracting entities shall apply the rules on means of proof in Articles 28,

91 and 92, respectively. Contracting entities shall ensure that the provisions of Title

II of this Part are applied for admission to the list and for the award of individual

contracts, as applicable.

5. Contracting entities awarding contracts based on a qualification list shall invite

economic operators admitted to the qualification list or to the relevant categories

thereof to submit a tender. Contracting entities may conduct negotiations pursuant to

Article 33 followed by an award pursuant to Article 98, or award the contract without

negotiations pursuant to Article 98. They shall publish a public summary of result

pursuant to Article 110 regarding each individual contract awarded.

6. The process of admission to the qualification list, and of awarding individual

contracts based on the system may be carried out in several successive stages.

7. Any charges that are billed in connection with qualification or with updating or

conserving an already obtained qualification shall be proportionate to the generated

costs.

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

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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

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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)

2017/136948, Directive 2010/30/EU49 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/EC50, 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

screeningcriteria on the substantial contribution to climate change mitigation

provided in the Commission DelegatedRegulation (EU) 2021/213951, 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.

48 Regulation (EU) 2017/1369 of the European Parliament and of the Council of 4 July 2017 setting a

framework for energy labelling and repealing Directive 2010/30/EU (OJ L 198, 28.7.2017, p. 1, ELI:

http://data.europa.eu/eli/reg/2017/1369/oj). 49 Directive 2010/30/EU of the European Parliament and of the Council of 19 May 2010 on the indication

by labelling and standard product information of the consumption of energy and other resources by

energy-related products (recast) (OJ L 153, 18.6.2010, p. 1, ELI:

http://data.europa.eu/eli/dir/2010/30/oj). 50 Directive 2009/125/EC of the European Parliament and of the Council of 21 October 2009 establishing

a framework for the setting of ecodesign requirements for energy-related products (recast) (OJ L 285,

31.10.2009, p. 10, ELI: http://data.europa.eu/eli/dir/2009/125/oj). 51 Commission Delegated Regulation (EU) 2021/2139 of 4 June 2021 supplementing Regulation (EU)

2020/852 of the European Parliament and of the Council by establishing the technical screening criteria

for determining the conditions under which an economic activity qualifies as contributing substantially

to climate change mitigation or climate change adaptation and for determining whether that economic

activity causes no significant harm to any of the other environmental objectives (OJ L 442, 9.12.2021,

p. 1, ELI: http://data.europa.eu/eli/reg_del/2021/2139/oj).

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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;

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(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;

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(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:

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(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;

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(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;

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(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.

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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:

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(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;

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(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;

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(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:

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(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)

2022/255552 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

52 Directive (EU) 2022/2555 of the European Parliament and of the Council of 14 December 2022 on

measures for a high common level of cybersecurity across the Union, amending Regulation (EU) No

910/2014 and Directive (EU) 2018/1972, and repealing Directive (EU) 2016/1148 (NIS 2 Directive)

(OJ L 333, 27.12.2022, p. 80, ELI: http://data.europa.eu/eli/dir/2022/2555/oj).

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Article 6 of Directive (EU) 2022/255753, 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;

53 Directive (EU) 2022/2557 of the European Parliament and of the Council of 14 December 2022 on the

resilience of critical entities and repealing Council Directive 2008/114/EC (OJ L 333, 27.12.2022, p.

164, ELI: http://data.europa.eu/eli/dir/2022/2557/oj).

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(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)

2019/124254 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

54 Regulation (EU) 2019/1242 of the European Parliament and of the Council of 20 June 2019 setting

CO2 emission performance standards for new heavy-duty vehicles and amending Regulations (EC) No

595/2009 and (EU) 2018/956 of the European Parliament and of the Council and Council Directive

96/53/EC (OJ L 198, 25.7.2019, p. 202, ELI: http://data.europa.eu/eli/reg/2019/1242/oj).

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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;

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(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

inthe 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

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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) 2022/103155.

2. The origin of goods shall be determined in accordance with Title II, Chapter 2,

Section 1 of Regulation (EU) No 952/201356.

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:

55 Regulation (EU) 2022/1031 of the European Parliament and of the Council of 23 June 2022 on the

access of third-country economic operators, goods and services to the Union’s public procurement and

concession markets and procedures supporting negotiations on access of Union economic operators,

goods and services to the public procurement and concession markets of third countries (International

Procurement Instrument – IPI) (OJ L 173, 30.6.2022, p. 1, ELI:

http://data.europa.eu/eli/reg/2022/1031/oj). 56 Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying

down the Union Customs Code (recast) (OJ L 269, 10.10.2013, p. 1, ELI:

http://data.europa.eu/eli/reg/2013/952/oj).

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(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.

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

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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:

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(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.

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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

1059/200357, 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.

57 Regulation (EC) No 1059/2003 of the European Parliament and of the Council of 26 May 2003 on the

establishment of a common classification of territorial units for statistics (NUTS) (OJ L 154, 21.6.2003,

p. 1, ELI: http://data.europa.eu/eli/reg/2003/1059/oj).

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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/EU58;

(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.

58 Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual

financial statements, consolidated financial statements and related reports of certain types of

undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and

repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19, ELI:

http://data.europa.eu/eli/dir/2013/34/oj).

EN 95 EN

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

2018/197259;

(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)

2024/108360;

(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/EU61 and Regulation (EU) No 600/201462, the administration of

59 Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018

establishing the European Electronic Communications Code (Recast) (OJ L 321, 17.12.2018, p. 36,

ELI: http://data.europa.eu/eli/dir/2018/1972/oj). 60 Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024

establishing a common framework for media services in the internal market and amending Directive

2010/13/EU (European Media Freedom Act) (OJ L, 2024/1083, 17.4.2024, ELI:

http://data.europa.eu/eli/reg/2024/1083/oj). 61 Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in

financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (recast) (OJ L

173, 12.6.2014, p. 349, ELI: http://data.europa.eu/eli/dir/2014/65/oj).

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benchmarks within the meaning of Regulation (EU) 2016/101163, 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/EU64;

(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

62 Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on

markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p.

84, ELI: http://data.europa.eu/eli/reg/2014/600/oj). 63 Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices

used as benchmarks in financial instruments and financial contracts or to measure the performance of

investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No

596/2014 (OJ L 171, 29.6.2016, p. 1, ELI: http://data.europa.eu/eli/reg/2016/1011/oj). 64 Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a

framework for the recovery and resolution of credit institutions and investment firms and amending

Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC,

2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU)

No 648/2012, of the European Parliament and of the Council (OJ L 173, 12.6.2014, p. 190, ELI:

http://data.europa.eu/eli/dir/2014/59/oj).

EN 97 EN

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

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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;

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(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

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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 66/201065. In the absence of EU Ecolabel criteria for the

purchased works, products or services, the required ecolabel shall be a third party-

65 Regulation (EC) No 66/2010 of the European Parliament and of the Council of 25 November 2009 on

the EU Ecolabel (OJ L 27, 30.1.2010, p. 1, ELI: http://data.europa.eu/eli/reg/2010/66/oj).

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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 765/200866 of the

European Parliament and of the Council.

66 Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out

the requirements for accreditation and market surveillance relating to the marketing of products and

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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

repealing Regulation (EEC) No 339/93 (OJ L 218, 13.8.2008, p. 30, ELI:

http://data.europa.eu/eli/reg/2008/765/oj).

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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

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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

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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:

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(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.

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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:

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(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.

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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.

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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

EN 111 EN

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.

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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.

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Article 108

Payments

1. Without prejudice to their obligations under Directive 2011/7/EU67 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

67 Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating

late payment in commercial transactions (recast) (OJ L 48, 23.2.2011, p. 1, ELI:

http://data.europa.eu/eli/dir/2011/7/oj).

EN 114 EN

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;

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(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

EN 116 EN

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.

EN 117 EN

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.

EN 118 EN

Part IV

Concessions

Title I

General provisions

Article 114

Scope

1. This Part applies to concessions for the execution of works and provision of services

as defined in Article 115.

2. Unless otherwise provided for in this Part, all the provisions of this Regulation

applicable to public contracts apply to concessions.

Article 115

Definition and characteristics of concessions

1. For the purposes of this Regulation, the following definition shall apply:

(a) ‘concession’ means a contract for pecuniary interest, regardless of its formal

designation, where one or more public buyers entrust the execution of works or

the provision and management of services to one or more economic operators

(‘concessionaire’) for benefit of users and that complies with the following

conditions:

(i) the remuneration of the concessionaire consists either solely in the right to

exploit the works or services that are the subject of the contract or in that right

together with payment by the public buyer; and

(ii) it entails the transfer to the concessionaire of an operating risk in exploiting

those works or services to which the public buyer would be exposed if it was to

execute the works or perform the services itself.

(b) The concession provides for legally enforceable obligations under which the

public buyer determines the nature, scope and conditions for the execution of

the works or the provision and management of services by establishing specific

requirements to ensure that the concessionaire performs those tasks in pursuit

of the objectives defined by that public buyer and complies with those

requirements, throughout the duration of the concession.

(c) The concession has as its subject-matter the performance of those works or

services and shall not consist merely in the entitlement of all operators

fulfilling certain conditions to perform a given task without any selectivity.

Agreements the sole or predominant subject-matter of which is the granting of

a right to occupy or exploit public domain or resources, including leases or

other rights relating to public property, as well as rights of way or other

permissions allowing the use of the public domain for infrastructure or network

deployment, and in respect of which the public buyer establishes only general

EN 119 EN

conditions of use without entrusting the performance of specific works or

services, shall not constitute concessions within the meaning of this

Regulation.

2. For the purpose of paragraph 1, ‘operating risk’ means the risk that the

concessionaire will not recoup, under normal operating conditions, the investments

made and the costs incurred in the execution of the works or the provision and

management of the services which are the subject-matter of the concession, so that

the concessionaire bears the risk of losses attached to the performance of the

concession, such as risks linked to uncertainties affecting demand, revenues,

operating costs, availability, technical and operational conditions or performance.

The operating risk shall involve genuine exposure to the changing market conditions,

and any potential estimated loss incurred by the concessionaire shall not be

economically insignificant.

Article 116

Mixed concession contracts

1. In addition to Articles 86 and 87, the applicable legal regime for contracts containing

elements of concessions and of other public contracts (‘mixed concession contracts’)

shall be determined in accordance with paragraphs 2 and 3 of this Article.

2. Where the different parts of a mixed concession contract are objectively separable,

but are not procured separately by the public buyer, the mixed concession contract

shall be awarded in accordance with Part III.

3. Where the different parts of a mixed concession contract are objectively not

separable, the applicable legal regime shall be determined on the basis of the main

subject-matter of that contract.

Where such a contract contains elements of a services concession and of a supply

contract, the main subject-matter of that contract shall be determined in accordance

with the higher of the estimated values of the respective services or supplies.

Article 117

Excluded concessions

1. In addition to the exclusions provided for in Part III, Title II, Chapter 1, this

Regulation does not apply to the following concessions:

(a) for air transport services based on the grant of an operating licence within the

meaning of Regulation (EC) No 1008/200868 of the European Parliament and

of the Council;

(b) for public passenger transport services within the meaning of Regulation (EC)

No 1370/2007;

68 Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008

on common rules for the operation of air services in the Community (Recast) (OJ L 293, 31.10.2008, p.

3, ELI: http://data.europa.eu/eli/reg/2008/1008/oj).

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(c) for provision or operation of fixed networks intended to provide a service to

the public in connection with the production, transport or distribution of

drinking water, or to supply drinking water to such networks;

(d) having one or both of the following subject-matters where they are connected

with an activity referred to in point (c):

(i) hydraulic engineering projects, irrigation or land drainage, provided that the

volume of water to be used for the supply of drinking water represents more

than 20 % of the total volume of water made available by those projects or

installations for irrigation or drainage installations;

(ii) the disposal or treatment of sewage;

(e) for lottery services, which are covered by CPV code 92351100-7, awarded by a

Member State to an economic operator on the basis of an exclusive right;

(f) awarded to an economic operator on the basis of an exclusive right which has

been granted in accordance with the Treaty and Union legislation laying down

common rules on access to the market applicable to the activities referred to in

Annex III, unless that Union legislation does not provide for sector-specific

transparency obligations, in which case Article 20 shall apply.

2. Where a Member State grants an exclusive right to an economic operator for the

exercise of one of the activities referred to in Annex IV, it shall inform the

Commission thereof within one month of granting that exclusive right.

Article 118

Threshold and estimation of the value of a concession

1. This Regulation applies to concessions with an estimated value equal to or greater

than the threshold specified in Article 2(1), point (a).

2. The estimated value of a concession shall be the projected total turnover, net of

VAT, that the concessionaire may generate over the maximum duration of the

concession, as estimated by the public buyer, in consideration for the works and

services that are the subject-matter of the concession, and for the supplies incidental

to such works and services.

3. The estimated value of the concession shall be calculated using an objective method

specified in the procurement detail. In calculating the estimated value of the

concession, the public buyers shall, where applicable, take into account in particular:

(a) the value of any form of option and any extension of the duration of the

concession;

(b) revenue from the payment of fees and fines by the users of the works or

services other than those collected on behalf of the public buyer;

(c) payments or any financial advantage in whatever form, granted by the public

buyer or any other public authority to the concessionaire, including

compensation for performance of a public service obligation and public

investment subsidies;

(d) the value of grants or any other financial advantages, in whatever form, granted

by third parties for the performance of the concession;

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(e) revenue from the sale of any assets forming part of the concession;

(f) the value of all the supplies and services that are made available to the

concessionaire by the public buyers, provided that they are necessary for the

execution of the works or provision of the services;

(g) any prizes, payments, compensation or reimbursement granted to economic

operators in connection with the procedure for the award of a concession.

Title II

Preparation, design and procedure

Article 119

Contractual obligations relating to public needs

1. Public buyers shall determine in the procurement detail mandatory conditions

governing the performance of the concession, they deem necessary, having regard to

the nature and subject-matter of the works or services concerned, including those

aiming at ensuring the continuity, quality, accessibility, safety, and effectiveness of

the works and services provided to users.

2. Where appropriate, the mandatory conditions governing the performance of the

concession, referred to in paragraph 1 shall be established as clear, objective and

measurable performance requirements, including indicators relating to the following:

(a) the quality of service;

(b) the availability and continuity of the service;

(c) the efficiency and reliability;

(d) the sustainability and resilience.

3. Where performance requirements are established in accordance with paragraph 2, the

procurement detail shall enable effective monitoring of the performance and may in

particular include the applicable key performance indicators, the methods for

monitoring and verifying performance, and, where appropriate, the consequences of

performance outcomes, including incentives or deductions.

Article 120

Structured risk assessment

1. Before initiating a procedure for the award of a concession, public buyers shall carry

out an assessment of the main economic risks related to the performance of the

concession, taking into account the nature, duration and economic characteristics of

the works or services concerned.

The assessment shall identify the principal categories of risks associated with the

performance of the concession, distinguishing between, on the one hand, operating

risks relating to the exploitation of the works or services and to exposure to market

uncertainties, and, on the other hand, general contractual risks. The risk assessment

shall determine, on the basis of objective elements, the allocation of those risks

between the parties.

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2. The procurement detail may provide for adjustment mechanisms in accordance with

Article 125 intended to re-allocate or mitigate the risks between the parties where

necessary, having regard to the nature of those risks. The existence of such

mechanisms shall not, in itself, preclude the qualification of the contract as a

concession, provided that the concessionaire continues to bear the operating risk

inherent in the exploitation of the works and services.

Article 121

Parameters for assessing performance

1. Public buyers shall include in concession contracts provisions aimed at ensuring the

long-term efficiency of the works or services, including by promoting environmental

sustainability and technological innovation throughout the duration of the

concession.

The provisions referred to in the first subparagraph shall be directly linked to the

performance of the concession and may in particular include requirements relating to

the contribution to the environmental and climate-related objectives pursuant to

Article 50 or to promote technological development and innovation as well as the

continued improvement of services.

2. Public buyers shall, where relevant, include in concession contracts provisions aimed

at ensuring the security, resilience and continuity of the works or services throughout

the duration of the concession.

Those provisions shall be directly linked to the performance of the concession and

may in particular include requirements ensuring the continuity of essential services

under conditions of disruption, obligations to manage risks affecting the security and

operational resilience, and measures to protect critical infrastructure, systems or data,

or cybersecurity safeguards.

3. Public buyers shall include in concession contracts provisions requiring

concessionaires to maintain adequate records for five years from the date of the

award and reporting mechanisms enabling the public buyer to monitor the

performance and implementation of the concession, to verify compliance with

contractual and legal obligations, and to enable verification of compliance by

competent supervisory, audit and review bodies.

Those provisions may in particular relate to the completeness, accuracy and integrity

of the records, periodic performance information, and the timely notification of

incidents affecting the performance or compliance with legal, safety or

environmental requirements.

4. Where the performance of the concession involves rights over assets, infrastructure

or public property necessary for the operation of the concession, public buyers shall

ensure that the contractual, property or occupancy, arrangements governing the

transfer, return or takeover of those assets upon expiry or termination of the

concession are clear, proportionate, non-discriminatory and are specified in the

procurement detail. Those arrangements shall not create unjustified barriers to

competition or unduly favour the incumbent concessionaire and shall ensure that the

successor operator is able to continue the performance of the concession under

effective and non-discriminatory conditions.

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The procurement detail may in particular specify the conditions governing the use,

transfer or return of the assets upon expiry or termination, including for any

compensation payable, and conditions relating to the transfer or takeover of

personnel.

Article 122

Duration of concessions

1. The duration of a concessions shall be limited to the period necessary for the

concessionaire to recoup the investment made for operating the works or services,

together with a return on invested capital under normal operating conditions, taking

into account the investments required to achieve the specific contractual objectives.

2. The duration of a concession shall be determined having regard to the subject-matter

of the concession and to the public interest in preserving competition and market

access.

3. In determining the duration of a concession, the public buyer shall take into account:

(a) the investments required for the performance of the concession, both initially

and throughout the duration of the concession, including investment in

infrastructure, equipment and intellectual property;

(b) the operating and maintenance costs associated with the exploitation of the

works or services;

(c) the allocation of risks between the parties, provided that the duration of the

concession does not result in the elimination of the operating risk born by the

concessionaire;

(d) the mandatory conditions governing the performance of the concession;

(e) the expected revenues and the period reasonably necessary for the

concessionaire to recover the investments and operating costs together with a

reasonable return;

(f) the need to ensure periodic exposure to competition.

Where appropriate, the duration of the concession shall also take into account the

expected technological, regulatory, and environmental lifecycle relevant to the

subject-matter of the concession.

The determination of the duration of the concession shall not result in a guarantee

that the concessionaire will obtain a predetermined or minimum return on invested

capital. A concession may be awarded for a duration shorter than that required for the

recovery of investments, provided that any financial arrangements linked to that

duration, including compensation or guarantees, do not eliminate or substantially

reduce the operating risk borne by the concessionaire.

4. The public buyer may determine the duration of the concession in the procurement

detail or may provide that the duration forms part of the tender.

5. Where the duration forms part of the tender, the procurement detail shall specify:

(a) the method for determining the duration of the concession, including any

minimum or maximum duration or permissible range;

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(b) the rules governing the evaluation and verification of the duration proposed by

tenderers, including the relationship between that duration and:

(i) the investments to be made;

(ii) the financial structure of the concession;

(iii) the allocation of risks;

(iv) the economic balance of the concession;

(c) the extent to which the proposed duration constitutes an award criterion.

6. The public buyer may include in the procurement detail provisions allowing for the

potential adjustment, extension, reduction or contingent determination of the duration

of the concession.

Any mechanism permitting the adjustment, extension, reduction, or contingent

determination of the duration of the concession shall comply with the following

requirements:

(a) be set out in a clear, precise, and unequivocal manner in the procurement

detail;

(b) specify the conditions under which such adjustments may occur, the applicable

methodology and the maximum duration of the concession, having regard to

the factors referred to in the paragraph 3.

Any adjustment to the duration of the concession that is not provided for in the

procurement detail or is not implemented in accordance with the methodology and

conditions set out pursuant to the second subparagraph, point (b), shall constitute a

modification of the concession and shall be subject to Article 125

Article 123

Procedures for the award of a concession

1. Public buyers shall award concessions in accordance with the procedures provided

for in this Regulation.

2. The public summary of competition for the award of the concession pursuant to

Article 34 shall, in addition, include a summary of the following information:

(a) the main components of the estimated value of the concession, including the

estimated investment costs and operating revenues;

(b) the allocation of the key risks, including, where applicable, the demand,

construction, and regulatory risks.

Title III

Management of concessions

Article 124

Adjustment mechanisms

EN 125 EN

1. Public buyers may include in the procurement detail clauses establishing

mechanisms for the adjustment of the conditions of the concession throughout its

duration, provided that those mechanisms:

(a) are objectively justified having regard to the nature, duration and risk profile of

the concession;

(b) maintain the economic balance of the concession;

(c) preserve the transfer of an operating risk to the concessionaire;

(d) 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 125.

Article 125

Modifications of concessions during their term

1. Public buyers may modify concessions 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

modifications shall respond to objective needs arising during the performance of the

concession, be limited to what is necessary and appropriate to ensure its performance

and continuity and does not alter the initial economic balance of the concession in

favour of the concessionaire.

2. Modification, the value of which does not exceed 15 % of the value of the initial

concession 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 concession.

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 condition of the

contract, such as the scope of the concession, , the contractual obligations laid down

in accordance with Article 119, the initial economic balance in favour of the

concessionaire, or the identity of the original concessionaire, in cases other than

those referred to in paragraph 4, point (c).

EN 126 EN

4. Provided that they do not alter the initial economic balance of the concession in

favour of the contractor, substantial modifications shall be permissible, within the

meaning of paragraph 1, in the following cases:

(a) where additional works, services, or supplies become necessary during the

performance of the concession, provided that a change of concessionaire 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 for the award of the concessions, and which

significantly affect the performance or feasibility of the concession, 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 concessionaire is replaced by another entity due to:

(a) a merger, takeover, acquisition, insolvency or other corporate

restructuring, where another economic operator succeeds, wholly or

partly, to the rights and obligations of the initial concessionaire, provided

that the new entity fulfils the original qualitative selection criteria; that no

other substantial modifications are made to the concession and that the

replacement is not intended to circumvent the application of this

Regulation;

(b) the public buyer assuming the main concessionaire’s obligations towards

its subcontractors where that possibly is provided for under national law.

5. Before modifying a concession, 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

on the allocation of economic advantages and operating risks under the concession,

in order to justify the decisions to modify the concession and to enable verification of

compliance with this Article by competent supervisory, audit and review bodies.

6. Before any modification of a concession that exceeds 50 % of the value of the initial

concession, 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 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 a case, public buyers shall publish a public

summary of modification in accordance with paragraph 7 of this Article.

EN 127 EN

7. Where public buyers substantially modify a concession under the conditions set out

in paragraph 5, and the modification does not exceed 50 % of the value of the initial

concession, 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. Where several successive modifications are made that do not

exceed 50 % of the value of the initial concession, this obligation shall apply to each

modification. Consecutive modifications shall not be aimed at circumventing this

Regulation.

8. Where the improper performance of the concession or the failure of the

concessionaire to provide the works or services threatens the continuity of an

essential service provided under the concession and defined in the concession

document, the public buyers may adopt or require strictly necessary temporary

measures to ensure the uninterrupted provision of that service. The public buyers

shall ensure that those measures are limited to what is objectively necessary to

maintain the continuity of the essential service, are proportionate to the seriousness

of the disruption, and do not result in a modification of the economic balance of the

concession or in a transfer of operating risk from the concessionaire to the public

buyers, except to the extent strictly necessary to ensure the temporary continuation of

the essential service.

9. For the purpose of the calculation of the value referred to in 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.

10. Modifications of a concession contract shall not be used to remedy deficiencies in the

performance of the concessionaire that are not justified by circumstances beyond its

control, except under condition laid down in paragraph 8.

Article 126

Termination of concessions

1. In addition to Article 107, public buyers may terminate a concession contract before

its expiry, where provided for under Union or national law and where such

termination is justified by overriding reasons of public interest.

2. Any termination pursuant to paragraph 1 shall:

(a) comply with the principles of proportionality and equal treatment;

(b) be duly reasoned and based on objective and verifiable grounds;

(c) be exercised only where the objective pursued cannot reasonably be achieved

by less restrictive measures, including by modifying the concession in

accordance with this Regulation.

3. In the event of termination under this Article, the concessionaire shall be entitled to

appropriate compensation.

4. The justification for the termination and the compensation shall be duly documented

and made available for verification by competent supervisory, audit and review

bodies for a minimum of five years.

EN 128 EN

Part V

Digital ecosystem

Title I

Digital tools

Chapter 1

Electronic communication and interoperability

Article 127

Electronic communication

1. Public buyers shall use electronic communication tools in all their exchanges with

the economic operator in the procurement procedure. They shall use only generally

available and non-discriminatory tools, and their communication shall be in

conformity with the harmonised standard for procurement detail pursuant to Article

129(1) point (b).

2. Notwithstanding paragraph 1, public buyers may use other means of communication

to the extent that electronic communication is not possible due to the specific

technical requirements of the procurement procedure or to the extent that this is

necessary for one of the following reasons:

(a) a breach of security of the electronic communication; or

(b) the protection of the particularly sensitive nature of data requiring such a high

level of protection that it cannot be properly ensured by using electronic

communication tools.

3. In all communication, exchange and storage of data, public buyers shall ensure that

the integrity of data and the confidentiality of expressions of interest, tenders and

innovative solution proposals are preserved and that they are able to exchange data

with the economic operator through the interoperability network pursuant to Article

128. They shall examine the content of expressions of interest, tenders and

innovative solution proposals only after the time limit set for submitting them has

expired and shall ensure that any unauthorised access is detectable.

4. Notwithstanding paragraph 1 of this Article and Article 65, public buyers may

require the use of electronic communication tools which are not generally available

and non-discriminatory only where this is necessary for the conduct of the

procurement procedure and where they provide free and equal access to such tools to

all economic operators intending to participate in the procurement procedure.

5. In accordance with Articles 27 and 37 of Regulation (EU) 910/201469, public buyers

may require the use of advanced electronic signatures or seals, advanced electronic

69 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on

electronic identification and trust services for electronic transactions in the internal market and

repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73, ELI:

http://data.europa.eu/eli/reg/2014/910/oj).

EN 129 EN

signatures or seals based on a qualified certificate or qualified electronic signatures

or seals for the signature of electronic communication by the economic operator.

Article 128

Interoperability network

1. The Commission shall establish or designate a secure network for data exchange, to

enable public buyers and economic operators to communicate using electronic means

in procurement procedures using different eProcurement service providers

(‘interoperability network’).

2. The Commission shall adopt delegated acts in accordance with Article 141, to

supplement this Regulation in order to establish or designate such an interoperability

network.

The Commission shall ensure that the interoperability network meets the following

requirements:

(a) it complies with the harmonised standards referred to in Article 129 and the

common specifications referred to in Article 130;

(b) it takes into account existing Union tools and standards;

(c) it complies with the requirement for protection of personal data in accordance

with Regulations (EU) 2016/67970 and (EU) 2018/1725, and ensures ‘data

protection by design' and by default as laid down in Article 25 of Regulation

(EU) 2016/679 and Article 27 of Regulation (EU) 2018/1725;

(d) it allows for the establishment of a secure, practical, easily implementable,

flexible, configurable and cost-efficient data exchange in all procurement

procedures;

(e) it considers the particular needs of SMEs;

(f) it considers the eProcurement ontology as a semantic framework standardising

the concepts of Union public procurement; and

(g) it considers the public summaries and their technical implementation in

accordance with Article 110.

3. The Commission is empowered to adopt implementing acts laying down the detailed

arrangements for the implementation and operation of the interoperability network,

including, where appropriate, the rules on the re-use of existing networks for the

purposes of this Article. Those implementing acts shall specify at least the following:

(a) technical information on the connection to the interoperability network;

(b) data format and structure including configuration and syntax;

(c) semantic repository;

(d) interoperability requirements;

(e) scalability and performance;

70 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the

protection of natural persons with regard to the processing of personal data and on the free movement of

such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,

p. 1, ELI: http://data.europa.eu/eli/reg/2016/679/oj).

EN 130 EN

(f) security and accountability requirements;

(g) data ownership and access management;

(h) qualification of eProcurement service providers;

(i) organisational and technical measures for processing personal data;

(j) arrangements to tackle inappropriate or fraudulent use of the interoperability

network;

(k) availability of the interoperability network and data; and

(l) interconnections made via the interoperability network, including the

interconnection to the digital business credential tool and to the NPPDS.

The implementing acts referred to in the first subparagraph of this paragraph shall be

adopted in accordance with the advisory procedure referred to in Article 143(2).

4. The Commission may require the interoperability network operator to deny or

remove access to the network for eProcurement service providers where those

providers do not, or no longer, fulfil the requirements laid down in Article 131. The

Commission shall provide appropriate prior notice to eProcurement service providers

of the denial of or loss of access to the network. The interoperability network shall

provide the Commission with the information necessary for assessing the compliance

with the requirements laid down in Article 131.

Article 129

Harmonised standards for public procurement

1. The Commission may adopt a standardization request in accordance with Regulation

(EU) No 1025/2012 for the drafting of harmonized standards, for the semantic data

model and interoperability of the core elements of the following:

(a) the procurement procedures in accordance with this Regulation (the

‘harmonised standard for procurement procedures’); and

(b) at least the main elements of the procurement detail (the ‘harmonised standard

for procurement detail’).

2. Standards adopted in accordance with paragraph 1 shall comply at least with the

following criteria:

(a) they take into account existing Union tools and standards;

(b) they meet the requirement for the protection of personal data in accordance

with Regulations (EU) 2016/679 and (EU) 2018/1725, in particular respecting

the principles of ‘data protection by design’ and by default as laid down in

Article 25 of Regulation (EU) 2016/679 and Article 27 of Regulation (EU)

2018/1725;

(c) they allow for the establishment of a secure, easily implementable, flexible,

configurable and cost-efficient data exchange in all procurement procedures;

(d) they consider the particular needs of SMEs; and

(e) they consider the eProcurement ontology as a semantic framework

standardising concept of Union public procurement.

EN 131 EN

3. Where the harmonised standard for procurement procedures or the harmonised

standard for procurement detail, delivered following the request referred to in

paragraph 1, complies with the requirements set out therein, the Commission shall

publish the reference to that harmonised standard in the Official Journal of the

European Union.

Article 130

Common specifications

1. The Commission may adopt implementing acts establishing common specifications

as referred to in Article 88(4), point (a), covering the essential requirements for the

semantic data model of the core elements of the procurement procedures referred to

in Article 129(1), point (a).

Those implementing acts may be adopted where the Commission has requested,

pursuant to Article 10(1) of Regulation (EU) No 1025/2012, one or more European

standardisation organisations to draft or to revise European standards for those

requirements and:

(a) the request has not been accepted by any of the European standardisation

organisations to which the request was addressed; or

(b) the request has been accepted by at least one of the European standardisation

organisations to which the request was addressed, but the European standards

requested:

(i) are not delivered within the deadline set in the request;

(ii) do not comply with the request; or

(iii) do not satisfy the requirements they aim to cover.

2. Where the references of a harmonised standard are published in the Official Journal

of the European Union, the Commission shall repeal the implementing acts adopted

pursuant to paragraph 1, or the relevant parts thereof, to the extent they cover the

same requirements.

3. When a Member State or the European Parliament considers that a common

specification or parts thereof do not entirely satisfy the requirements which it covers,

it shall inform the Commission thereof by submitting a detailed explanation. The

Commission shall assess that detailed explanation and may, if appropriate, amend the

implementing act establishing the common specification in question.

Chapter 2

eProcurement service providers

Article 131

Obligations of eProcurement service providers

1. eProcurement service providers shall ensure that their eProcurement platforms

comply with the harmonised standards referred to in Article 129, the references of

which have been published in the Official Journal of the European Union, or with the

common specifications adopted pursuant to Article 130.

EN 132 EN

2. eProcurement service providers shall, where relevant, enable the use of the European

Business Wallets established pursuant to Regulation [OP – please add proposal on

the establishment of the European Business Wallets] for the services they provide to

economic operators and public buyers.

3. eProcurement service providers shall ensure that their eProcurement platforms

connect to the interoperability network in accordance with the implementation

arrangements provided in the implementing acts in accordance with Article 128(3).

4. eProcurement service providers shall not be in an exclusion situation pursuant to

Article 25. eProcurement service providers shall be established in the European

Economic Area (EEA), shall be owned and controlled by natural or legal persons that

are established in the EEA and no natural or legal person, established in a third

country shall exercise, directly or indirectly, decisive influence over them.

eProcurement service providers shall store all data related to public procurement

procedures conducted by public buyers pursuant to this Regulation in the EEA.

5. eProcurement service providers shall ensure access to the procurement detail

pursuant to Article 97 and shall not charge any fees for access to any electronic

communication conducted through the interoperability network.

6. eProcurement service providers shall ensure that their eProcurement platform is

compliant with the technical arrangements provided in the implementing act adopted

pursuant to Article 133(5).

7. eProcurement service providers shall connect to an NPPDS established in accordance

with Article 134, unless they provide their services exclusively to economic

operators.

8. Member States shall designate one or more competent authorities responsible for

verifying whether eProcurement service providers comply with the obligations set

out in this Article. They shall provide for penalties applicable to infringement of

those obligations which shall include the temporary prohibition to provide those

eProcurement services. Those penalties shall be effective, proportionate and

dissuasive.

Article 132

Commission eProcurement platform

1. The Commission shall set up and operate an eProcurement platform (‘Commission

eProcurement platform’) and make it available to public buyers, for the purpose of

conducting procurement procedures, and to economic operators, for the purpose of

participating in procurement procedures.

2. The Commission eProcurement platform shall comply with the requirements

applicable for eProcurement service providers set out in Article 131(1) to (6). The

Commission shall make the solution developed for the Commission eProcurement

platform available as open-source software.

3. Member States may require public buyers to use the Commission eProcurement

platform. They shall notify the Commission of that decision at least 12 months in

advance before the date from which public buyers are required to use the

Commission eProcurement platform.

EN 133 EN

Chapter 3

Electronic eligibility

Article 133

Electronic eligibility service

1. The Commission shall set up and operate an electronic eligibility service. The

electronic eligibility service shall provide an electronic verification service for

exclusion grounds, selection criteria and requirement of origin for each procurement

procedure by means of the European Business Wallets established pursuant to

Regulation [OP – please add proposal on the establishment of the European Business

Wallets] or by alternative electronic means which shall be interoperable with the

European Business Wallets.

2. For each procurement procedure, public buyers shall specify the applicable exclusion

grounds, selection criteria and requirements of origin, in the electronic eligibility

service. Economic operators shall create an eligibility profile in the electronic

eligibility service corresponding to the procurement procedure they wish to

participate in. The eligibility profile shall allow public buyers to verify if the

economic operator fulfils the requested requirements through use of the digital

business credential tool.

3. The Commission is empowered to adopt delegated acts in accordance with Article

142 to supplement this Regulation, laying down detailed rules of the management the

electronic eligibility service and designating the digital business credential tool and

the related network to be used by economic operators for the purpose of determining

eligibility.

4. When preparing the delegated acts referred to in paragraph 3, the Commission may

select one or more of the following instruments, including any combination thereof,

or any successor thereto:

(a) the European Business Wallets pursuant to [OP: please add Regulation on the

European Business Wallets];

(b) the Once-Only Technical System pursuant to Article 14 of Regulation (EU)

2018/172471;

(c) the European Digital Identity Wallet pursuant to Regulation (EU) No

910/201472;

(d) Member States services where they fulfil the applicable requirements pursuant

to paragraph 5, point (b) to (f), of this Article.

5. The digital business credential tools listed in paragraph 4 of this Article shall fulfil

the following requirements:

71 Regulation (EU) 2018/1724 of the European Parliament and of the Council of 2 October 2018

establishing a single digital gateway to provide access to information, to procedures and to assistance

and problem-solving services and amending Regulation (EU) No 1024/2012 (OJ L 295, 21.11.2018, p.

1, ELI: http://data.europa.eu/eli/reg/2018/1724/oj). 72 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on

electronic identification and trust services for electronic transactions in the internal market and

repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73, ELI:

http://data.europa.eu/eli/reg/2014/910/oj).

EN 134 EN

(a) for instruments set out at Union level, they shall, by 30 June 2028, be

technically implemented in all Member States and be generally available to

economic operators;

(b) they shall be based on existing Union tools and standards;

(c) they shall comply with the requirement for protection of personal data in

accordance with Regulations (EU) 2016/679 and (EU) 2018/1725, and ensure

‘data protection by design’ and by default as laid down in Article 25 of

Regulation (EU) 2016/679 and Article 27 of Regulation (EU) 2018/1725 and

provide for appropriate safeguards for the rights and freedoms of data subjects

pursuant to Article 10 and Article 22 of Regulation (EU) 2016/679;

(d) they shall ensure a secure, easily implementable, flexible, configurable and

cost-efficient data exchange in all procurement procedures;

(e) they shall be adapted to the particular needs of SMEs; and

(f) they shall consider the eProcurement ontology as a semantic framework

standardising the concepts of Union public procurement.

6. The Commission is empowered to adopt implementing acts specifying the technical

arrangements for the electronic eligibility service. Those implementing acts shall

specify in particular the following:

(a) technical set-up and structure of the digital business credential tool network;

(b) technical information on the connection to the digital business credential tool;

(c) data format and structure including configuration and syntax;

(d) semantic repository;

(e) interoperability requirements;

(f) set-up of the algorithmic tool required for the dynamic procedure, including

definition of the algorithm;

(g) scalability and performance;

(h) security and accountability requirements;

(i) data ownership and access management;

(j) technical information on national access points of the digital business

credential tool and the access point of the Commission;

(k) organisational and technical measures for processing personal data;

(l) arrangements to tackle inappropriate or fraudulent use of the digital business

credential tool network;

(m) technical audits;

(n) availability of the digital business credential tool network and data;

(o) obligations of the digital credential business tool network; and

(p) detailed rules on the obligations of the Member States and the Commission

regarding the electronic eligibility service, including handling the exclusion

grounds set out in Articles 25 and 26, and selection criteria set out pursuant to

Article 27.

EN 135 EN

The implementing acts referred to in the first subparagraph of this paragraph shall be

adopted in accordance with the advisory procedure referred to in Article 143(2).

7. For the purposes of Regulation (EU) 2018/1725 the Commission shall be regarded as

the processor as defined in Article 3, point (12), of that Regulation, in relation to the

processing of any personal data that may result from the setting up and management

of the electronic eligibility service.

8. Member States shall inform the Commission within 30 days of the creation of any

new certificates or other forms of documentary evidence to be provided through the

electronic eligibility service.

EN 136 EN

Part VI

Transparency and governance

Title I

Data spaces

Article 134

National Public Procurement Data Spaces

1. Each Member State shall establish or designate a National Public Procurement Data

Space (‘NPPDS’) as the central national data access point for procurement

information related to the public procurement and contract life-cycle and other

related national procurement information covered by this Regulation and shall act as

the Member State’s contact point to the Public Procurement Data Space pursuant to

Article 135.

2. Each Member State shall designate the authority or authorities responsible for the

operation of the NPPDS referred to in paragraph 1 (‘the NPPDS authority’).

The NPPDS shall be established in the EEA, shall be owned and controlled by

natural or legal persons that are established in the EEA and no natural or legal

person, established in a third country, shall exercise, directly or indirectly, decisive

influence over the NPPDS. Procurement information shall be stored within the EEA.

3. The NPPDS authority shall ensure that the following procurement information is

made available through the NPPDS:

(a) procurement information relating to procurement procedures above the

thresholds referred to in Article 2, corresponding to the public summaries

specified in the implementing act adopted pursuant to Article 110;

(b) procurement information relating to procurement procedures below the

thresholds referred to in Article 2, where this procurement information is

provided in the format corresponding to public summaries specified in the

implementing act adopted pursuant to Article 110; and

(c) procurement information relating to public contracts awarded based on the

exclusions pursuant to Articles 80, 81, 83 and 84 in particular information on

the organisations relevant to the contract, the purpose and result of the contract

as well as a justification for the exclusion.

The procurement information referred to in point (a) and (b) shall be made available

through the NPPDS at the same time as it is made available at the Union level or

where it is not made available at the Union level, at the same time as it is made

available at national level. The procurement information referred to in point (c) shall

be made available within 20 days after contract conclusion and contract completion,

respectively.

4. The NPPDS authority shall ensure that procurement information from concluded

contracts and from completed contracts with a value of at least EUR 10 000, where

the preceding procurement would have been covered by this Regulation if its value

had exceeded the relevant threshold laid down in Article 2 is made available through

EN 137 EN

the NPPDS. It shall include information on the organisations relevant to the contract

and the purpose and result of the contract.

The information shall be made available through the NPPDS no later than 20 days

after contract conclusion and contract completion, respectively.

5. The NPPDS authority shall ensure that the following information is made available

through the NPPDS:

(a) information on participants in the procurement procedure, including on the

outcome of their participation;

(b) information on subcontractors and ancillary service providers;

(c) procurement detail, tenders, contracts and handover documents;

(d) information on budget, including information on EU funds;

(e) information on contracts and on individual payments;

(f) information that is relevant for the assessment of the compliance by public

buyers with this Regulation;

(g) information relevant for the assessment of the extent to which public buyers

pursue strategic procurement objectives such as environmental, social or

innovation objectives, and of their contribution to the attainment of those

objectives;

(h) information on the participation of SMEs in public procurement;

(i) information relating to risk factors in public procurement, including corruption,

fraud, collusion, or unfair competition practices;

(j) information on the functioning of national review systems; and

(k) information on the functioning of national procurement markets below and

above the thresholds, including information on national, cross-border and third

country participation including origin of goods and information on beneficial

ownership.

The procurement information shall be made available through the NPPDS as soon as

possible, but not later than 20 days after the occurrence of the respective information

Where the information is related to an ongoing review procedure, it shall be made

available through the NPPDS 20 days from the conclusion of the respective review

procedure.

6. The procurement information shall be considered to be available only once it has

been validated according to the technical validation requirements set up by the

Union. Upon successful validation, the NPPDS shall transmit a validation

confirmation to the entity that made the procurement information available. The

procurement information shall remain available through the NPPDS for at least ten

years from the date it has been made available.

7. The Commission is empowered to adopt delegated acts in accordance with Article

141, specifying further categories of procurement information to be made available

to the NPPDS.

8. The Commission is empowered to adopt implementing acts in accordance with

Article 143(2) specifying the procurement information which shall be made available

through the NPPDS as well as its technical format, the designation and modalities of

EN 138 EN

such designation of specific procurement information as publicly or not publicly

available procurement information , the source of the technical validation

requirements according to paragraph 7, as well as 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.

Where procurement information is not designated as publicly available, Member

States shall ensure that certain categories of users such as public buyers, competition

authorities, courts of auditors and national Financial Intelligence Units have direct

and comprehensive access rights corresponding to their respective needs and

purposes.

9. Member States shall establish rules ensuring the complete, correct and timely

provision of access to procurement information for the NPPDS in accordance with to

this Regulation, as well as rules providing for data governance that assign clear

responsibilities for the management and use of the available procurement

information, including access for the user categories set out in paragraph 10. Member

States may also establish rules assigning the obligation to provide procurement

information to the NPPDS to specific legal entities, including rules regarding the

provision by or retrieval of procurement information from other national databases.

Member States shall impose effective, proportionate and dissuasive fines in respect

of infringements related to the obligation to provide access to procurement

information. Member States shall communicate these rules to the Commission within

12 months of the adoption of this Regulation.

10. Where a Member State so requests it, the Commission shall provide the Member

States with the source code of the Public Procurement Data Space for purpose of

setting-up the NPPDS.

Article 135

Public Procurement Data Space

1. The Public Procurement Data Space (the ‘PPDS’) established by the Commission

and built on the eProcurement ontology and the Findability, Accessibility,

Interoperability, and Reuse of digital assets (FAIR) principles, shall be a central

repository of procurement information originating from all NPPDS for the

monitoring of public procurement procedures and contracts at Union level.

2. Member States shall provide procurement information available through the NPPDS

to the PPDS within ten days from availability of the procurement information

pursuant to Article 134.

The procurement information shall be considered to be received only once it has

been validated according to the technical validation requirements set up by the

Union. To this end, the NPPDS shall receive a confirmation of the validation. The

procurement information shall remain available to the PPDS at least ten years from

the date it has been made available.

3. The Commission is empowered to adopt implementing acts specifying the

procurement information which shall be provided by the Member States through the

PPDS including its technical format, the minimum publication terms for procurement

EN 139 EN

information not designated as publicly available and the source of the technical

validation requirements according to paragraph 2.

Those implementing acts shall be adopted in accordance with the advisory procedure

referred to in Article 143(2).

4. Access to procurement information that is not designated as publicly available shall

be restricted to persons having the necessary access rights granted by the

Commission. Where a Member State requests access rights for a national public

authority to procurement information from another Member State, it shall obtain

access rights only once the other Member State approves the access.

5. The Commission may grant access to the PPDS to Union institutions within the

meaning of Article 2, point (73) of Regulation (EU, Euratom) 2024/2509, Executive

Agencies and Union bodies within the meaning of Articles 68, 69 and 70 of that

Regulation, to the European Public Prosecutors Office, to the European Anti-Fraud

Office and to the European Central Bank, corresponding to their respective needs and

purposes.

Article 136

PPDS data exchange

1. The Commission shall establish a data exchange for the management of access to

PPDS and NPPDS procurement information.

2. The Commission shall manage the data exchange and shall ensure that procurement

information is exchanged securely. To this end, the Commission may adopt

implementing acts in accordance with the advisory procedure referred to in Article

143(2) specifying the following implementation arrangements of the data exchange

pursuant to Union law:

(a) technical information on the connection to the data exchange;

(b) data format and structure including configuration and syntax;

(c) semantic repository;

(d) interoperability requirements;

(e) scalability and performance;

(f) security and accountability requirements;

(g) data ownership and access management;

(h) organisational and technical measures for processing personal data;

(i) arrangements to tackle inappropriate or fraudulent use of the data exchange;

(j) availability of the data exchange and data; and

(k) interconnections made via the data exchange, such as to the NPPDS.

EN 140 EN

Title II

Governance

Article 137

Monitoring of the performance of public procurement markets

1. Member States shall monitor and assess the performance of their public procurement

systems, on the basis of the data in their NPPDS. They shall identify potential

shortcomings and possible improvements, thereby supporting the continuous

enhancement of their public procurement system.

Member States shall as a minimum:

(a) assess the barriers to competition and access to procurement opportunities, in

particular for SMEs;

(b) identify and assess the main vulnerabilities and risks affecting the integrity and

efficiency of the public procurement system;

(c) assess the application of security, resilience and European preference

mechanisms, including identifying any indications of circumvention by

economic operators for the latter;

(d) evaluate progress in achieving the strategic procurement objectives, including

environmental, social and innovation considerations;

(e) monitor the performance, adjustments and modifications of large infrastructure

projects and long-running contracts such as concessions.

The results of the assessment referred to in the second subparagraph shall be made

publicly available through appropriate means of information, at least once a year.

Where structural shortcomings have been identified, the measures to address them

shall be underpinned by Member States developing and implementing a

comprehensive, country-specific action plan.

2. Every three years, Member States shall report to the Commission on the results of the

assessment and, where the structural shortcomings are identified, on the measures

taken, planned or envisaged to address those shortcomings, with the first report due

by … [OP please insert the date three years after the entry into force of this

Regulation].

3. The Commission shall monitor and analyse the functioning of public procurement in

the Union, in particular the competition in procurement markets, on the basis of the

data in the Public Procurement Data Space. The Commission shall every three years

provide an analysis of the public procurement system across the Union.

Article 138

National coordinating authority

1. Each Member State shall designate one authority, body or structure as national

coordinating authority for the purposes of this Regulation.

2. The national coordinating authority shall:

EN 141 EN

(a) ensure effective coordination among the national authorities responsible for

carrying out the tasks and exercising the powers provided for under this

Regulation;

(b) facilitate cooperation and the exchange of information between those

authorities;

(c) make available standardised contract documents, guidance or advice for large

infrastructure projects and long-running contracts such as concessions,

including guidance, methodologies or model provisions relating to risk

allocation and financial adjustment mechanisms;

(d) act as the single contact point for the Commission, the competent authorities of

other Member States and, where appropriate, relevant stakeholders in matters

relating to this Regulation.

Member States may provide that modifications of large infrastructure projects and long-

running contracts such as concessions involving an increase in the value exceeding 50 % of

the value of the initial contract shall be subject to a structured and transparent prior review

procedure by the national coordinating authority.

3. The designation of a national coordinating authority pursuant to paragraph 1 shall not

affect the allocation of tasks and powers among competent authorities under national

law.

4. Member States shall notify the Commission of the national coordinating authority

designated pursuant to paragraph 1 and of any subsequent changes thereto.

Article 139

Professionalisation and capacity building

1. Member States shall ensure that the professionalisation of public procurement is a

long-term and strategic element of public governance by taking appropriate

measures, including institutional, organisational, financial and human resources

arrangements.

2. The measures adopted pursuant to this Article shall support the professionalisation of

public buyers throughout the public procurement cycle.

3. In addition, Member States shall promote measures to enhance the ability of

economic operators to effectively participate in public procurement procedures, in

particular SMEs, as well as measures supporting other actors contributing to the

functioning of the public procurement system, such as oversight authorities.

4. Member States shall adopt, implement and periodically update a national strategy for

the professionalisation of public procurement. The strategy shall include at least the

objectives, measures and appropriate monitoring arrangements for the development

of the skills and competencies of public buyers at national, regional and local level.

5. Member States shall review and update the strategy in light of paragraph 6.

6. Member States shall ensure that appropriate support structures are available to public

buyers throughout the public procurement cycle, at national, regional and local level,

with particular attention to public buyers with limited administrative capacity.

EN 142 EN

These support structures shall provide to public buyers guidance, advice, assistance

and other capacity-building measures, in particular in relation to:

(a) procurement planning and needs assessment;

(b) market engagement and dialogue with economic operators;

(c) risk assessment and risk management;

(d) integrity, transparency and the prevention of conflicts of interest, fraud and

corruption;

(e) the preparation and conduct of procurement procedures;

(f) sustainable, innovation and strategic procurement;

(g) contract management and performance monitoring;

(h) collection and dissemination of good practices;

(i) digitalisation and use of electronic procurement systems and data;

(j) supply chain management and resilience.

7. The support structures may also provide guidance, advice, assistance and other

capacity-building measures to economic operators, in particular SMEs, with a view

to facilitating their access to public procurement, as well as to other actors

contributing to the functioning of the public procurement system.

8. The Commission shall assist Member States in their efforts to strengthen the

professionalisation of public procurement, including by promoting cooperation

between national support structures, the exchange of knowledge and good practices,

peer learning, the use of capacity-building tools and, where appropriate, the

development of additional measures.

9. Member States shall monitor and assess the implementation and effectiveness of the

measures adopted pursuant to this Article, including their impact on the performance

of the public procurement system, and shall report as part of the reporting referred to

in Article 137(2).

Article 140

Integrity governance

1. Public buyers shall take appropriate, proportionate, and effective measures to combat

fraud, favouritism, collusion, and corruption, and to effectively prevent, identify, and

remedy conflicts of interest arising in the conduct of procurement procedures and in

the execution of public contracts. Those measures shall be designed to avoid any

distortion of competition, to ensure the transparency of the procedure, and to

guarantee the equal treatment of all economic operators originating from the Union

and covered economic operators in accordance with Article 70(1) participating in the

procurement procedure.

2. To support the measures referred to in paragraph 1 of this Article, public buyers shall

use, before award and where relevant during contract execution, appropriate data-

based risks analysis tools, such as Arachne+ or an equivalent tool made available at

national level, to prevent and detect irregularities, fraud, collusion, corruption and

conflict of interest. Member States shall ensure that the tools referred to in the first

EN 143 EN

sentence are effectively accessible to public buyers and, where appropriate,

interoperable with the National Public Procurement Data Spaces referred to in

Article 134.

3. Where the use of the tools referred to in paragraph 2 of this Article identifies a high-

risk pattern, including indications of collusion, conflicts of interest or other integrity

risks, the public buyer shall record in the individual documentation pursuant to

Article 109 appropriate measures taken to remedy the situation or explain why no

such measures were considered necessary.

Where, in accordance with paragraph 2 of this Article, a public buyer identifies a

high risk of irregularities, all procurement personnel involved in the preparation,

evaluation, or award of the public contract shall be required to complete and submit

an electronic integrity declaration. The public buyer shall take appropriate measures

to remedy any irregularities that it has identified and recorded in the individual

documentation pursuant to Article 109 the follow-up carried out.

EN 144 EN

Part VII

Final provisions

Title I

Exercise of delegation and other cross-cutting provisions

Article 141

Exercise of delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the

conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Articles 2(2), 7(5), 54(2) and (4),

65(4), 66(6), 69(4), 72(1), 75, 110(6), 128(2), 133(3) and 134(7) shall be conferred

on the Commission for an indeterminate period of time from … [OP please insert

date of entry into force of this Regulation].

3. The delegation of power referred to in Articles 2(2), 7(5), 54(2) and (4), 65(4), 66(6),

69(4), 72(1), 75, 110(6), 128(2), 133(3) and 134(7) may be revoked at any time by

the European Parliament or by the Council. A decision to revoke shall put an end to

the delegation of the power specified in that decision. It shall take effect the day

following the publication of the decision in the Official Journal of the European

Union or at a later date specified therein. It shall not affect the validity of any

delegated acts already in force.

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to

the European Parliament and to the Council.

5. A delegated act adopted pursuant to Articles 2(2), 7(5), 54(2) and (4), 65(4), 66(6),

69(4), 72(1), 75, 110(6), 128(2), 133(3) and 134(7) shall enter into force only where

no objection has been expressed either by the European Parliament or by the Council

within a period of two months of notification of the act to the European Parliament

and the Council or if, before the expiry of that period, the European Parliament and

the Council have both informed the Commission that they will not object. That

period shall be extended by two months at the initiative of the European Parliament

or of the Council.

Article 142

Urgency procedure

1. Delegated acts adopted under this Article shall enter into force without delay and

shall apply as long as no objection is expressed in accordance with paragraph 2. The

notification of a delegated act to the European Parliament and to the Council shall

state the reasons for the use of the urgency procedure.

2. Either the European Parliament or the Council may object to a delegated act in

accordance with the procedure referred to in Article 141(5). In such case, the

Commission shall repeal the act without delay following the notification of the

decision to object by the European Parliament or by the Council.

EN 145 EN

Article 143

Committee procedure

1. The Commission shall be assisted by the Advisory Committee on Public Contracts

established by Council Decision 71/306/EEC. That committee shall be a committee

within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No

182/2011 shall apply.

3. Where reference is made to this paragraph, Article 5 of Regulation (EU) No

182/2011 shall apply.

Article 144

Outermost regions

Where the specific needs of the public procurement markets of the outermost regions of the

Union within the meaning of Article 349 of the Treaty cannot be met without the adaptation

of certain procedures laid down in this Regulation, Member States may adapt the application

of specific aspects of Part III of this Regulation in line with the Union’s international

obligations and without affecting the principles of equal treatment, non-discrimination and

transparency. Member States shall notify to the Commission and to the other Member States

the national laws, regulations and administrative provisions providing for such adaptations as

well as their detailed justification. The adaptations concerned shall not apply before three

months after that notification. The Commission shall publish the adaptations in the Official

Journal of the European Union without delay.

Article 145

Procurement with Union support

In addition to any rules set out in this Regulation, for the award and execution of contracts

supported by a Union programme or instrument, public buyers shall apply any conditions

necessary to comply with the requirements for Union support in all management modes

established in Article 62 of Regulation (EU, EURATOM) 2024/2509.

Title II

Amendments, repeals, transitional provisions, entry into force

and application

Article 146

Repeal

1. Directive 2014/23/EU, Directive 2014/24/EU and Directive 2014/25/EU are

repealed.

EN 146 EN

2. References to the repealed Directives shall be construed as references to this

Regulation and shall be read in accordance with the correlation table in Annex VIII,

Part A.

Article 147

Amendments to horizontal public procurement provisions

(1) Regulation (EU) 2024/1781 is amended as follows:

(a) Article 65 is deleted;

(b) in Article 74(3), point (b) is deleted.

References to Article 65 and Article 74(3), point (b), of Regulation 2024/1781 shall

be construed as references to Article 54 and Article 26(1), point (a) of this

Regulation, respectively;

(2) Article 25 of Regulation (EU) 2024/1735 is amended as follows:

(a) paragraphs 4 and 5 are deleted;

(b) the following paragraph is added:

“This Article does not apply to public procurement procedures for net-zero

technologies that are used in a project awarded in an auction pursuant to

Article 26.”.

References to Article 25(4) and (5) of Regulation (EU) 2024/1735 shall be construed

as references to Article 54 of this Regulation;

(3) Article 85 of Regulation (EU) 2023/1542 is deleted.

References to Article 85 of Regulation (EU) 2023/1542 shall be construed as

references to Article 54 of this Regulation;

(4) Article 83 of Regulation (EU) 2024/3110 is deleted.

References to Article 83 of Regulation (EU) 2024/3110 shall be construed as

references to Article 54 of this Regulation;

(5) Article 63 of Regulation (EU) 2025/40 is deleted.

References to Article 63 of Regulation (EU) 2025/40 shall be construed as references

to Article 54 of this Regulation;

(6) Directive 2023/1791 is amended as follows:

(a) Article 7 is deleted;

(b) Annex IV is deleted.

References to Article 7 and Annex IV of Directive 2023/1791 shall be construed as

references to Article 52 of this Regulation;

(7) in Article 11(1) of Directive 2008/98/EC the words ‘procurement criteria’ are

deleted;

(8) in Article 26(1) of Regulation (EU) 2024/1252, point (d) is replaced by the

following:

EN 147 EN

“(d) increase the use of secondary critical raw materials, including through

measures such as taking recycled content into account in financial incentives

for the use of secondary critical raw materials;”

References to Article 26(1), point (d) of Regulation (EU) 2024/1252 shall be

construed as references to Article 51 of this Regulation, as far as they concern award

criteria related to public procurement;

(9) in Article 24 of Directive 2019/882, paragraph 1 is deleted.

References to Article 24(1) of Directive 2019/882 shall be construed as references to

Article 56 of this Regulation;

(10) in Article 8 of Directive 2022/2381, paragraph 3 is deleted.

References to Article 8(3) of Directive 2022/2381 shall be construed as references to

Article 4(4) of this Regulation;

(11) Article 5 of Regulation (EU) 2024/2847 is deleted.

References to Article 5 of Regulation (EU) 2024/2847 shall be construed as

references to Article 68 of this Regulation;

(12) Article 31 of Directive (EU) 2024/1760 is deleted.

References to Article 31 of Directive (EU) 2024/1760 shall be construed as

references to Article 55 of this Regulation;

(13) in Article 63(3) of Regulation (EU) 2024/1157, point (c) is deleted.

References to Article 63(3), point (c) of Regulation (EU) 2024/1157 shall be

construed as references to Article 26(1), point (a) of this Regulation;

(14) in Article 5(1) of Regulation (EU) 1370/2007 the following subparagraph is added:

“Public service contracts pursuant to this Regulation shall be subject to the

provisions on “Security and Resilience” and “European preference”, laid down

in Part III, Title II, Chapter 4 and 5 of … [OP please adapt with the number of

this Regulation]”.

Article 148

Review

1. Every seven years after … [OP please insert the date of entry into force of this

Regulation], the Commission shall carry out an evaluation of this Regulation.

2. The Commission shall present a report on the main findings of the evaluation carried

out in accordance with paragraph 1 to the European Parliament, the Council, the

European Economic and Social Committee and the Committee of the Regions.

Member States shall provide the Commission with the necessary information for the

preparation of the report.

Article 149

Entry into force and application

EN 148 EN

This Regulation shall enter into force on the twentieth day following that of its publication in

the Official Journal of the European Union.

It shall apply from … [OP please insert date two years following the entry into force of this

Regulation].

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President

[...] [...]

EN 149 EN

LEGISLATIVE FINANCIAL AND DIGITAL STATEMENT

1. FRAMEWORK OF THE PROPOSAL/INITIATIVE

1.1. Title of the proposal/initiative

Regulation of the European Parliament and of the Council on public contracts and

concessions, repealing Directive 2014/23/EU, Directive 2014/24/EU and Directive

2014/25/EU, and amending Regulation (EU) 2024/1157, Regulation (EU)

2024/1781, Regulation (EU) 2024/3110, Regulation (EU) 2023/1542, Regulation

(EU) 2025/40, Directive (EU) 2023/1791, Directive (EU) 2024/1760, Directive

2008/98/EC, Regulation (EU) 2024/1252, Directive (EU) 2019/882, Directive (EU)

2022/2381, Regulation (EU) 2024/1735, and Regulation (EU) 2024/2847.

1.2. Policy area(s) concerned

Public Procurement; Internal Market; Communications Networks, Content and

Technology

1.3. Objective(s)

1.3.1. General objective(s)

The general objectives are to make public procurement a more efficient public

investment instrument, supporting policy objectives, in particular single market

integration, strategic economic autonomy, social and ecological sustainability and

innovation. The general objectives contribute to the achievement of SDG goals, in

particular #9 Industry, Innovation and Infrastructure, #12 Responsible consumption

and production and #8 Decent work and economic growth.

1.3.2. Specific objective(s)

Four specific objectives have been derived from the general objectives, providing

practical detail on how the latter will be achieved.

Specific objective No 1:

Simplify and promote flexibility in procurement procedures and increase legal clarity

and coherence of applicable rules, so as to facilitate public procurement processes

and access to them for economic operators across the single market, including for

SMEs.

Specific objective No 2:

Increase the uptake of environmental, social and innovation public procurement in

support of strategic policy objectives of the Union and provide a more coherent legal

framework in this regard.

Specific objective No 3:

Improve EU economic security and strategic autonomy in public procurement,

promoting a coherent legal framework in this regard.

Specific objective No 4:

Facilitate access to public procurement information, data and IT solutions so as to

reduce administrative burden and increase transparency and monitoring, thereby

preventing and reducing irregular practices and enabling policy-making choices.

EN 150 EN

1.3.3. Expected result(s) and impact

Specify the effects which the proposal/initiative should have on the

beneficiaries/groups targeted.

This Regulation is expected to bring several positive outcomes for the three main

stakeholders related to public procurement, namely policymakers, public buyers and

economic operators. The main expected results are an easier access to negotiations,

the increase level of competition, and the reduction of administrative burden.

1.3.4. Indicators of performance

Specify the indicators for monitoring progress and achievements.

Monitoring and

evaluation aspect

and relevant

objectives

Indicator(s) Responsibility for

collection Source(s)

Specific Objective 1: Simplify, increase flexibility and coherence of public

procurement rules and procedures

Has the public

procurement

framework become

more simple,

flexible and

coherent?

Length of

procedures in days

counting from the

moment of

publication of the

contract notice

until the award;

Length of

procedures in days

counting from the

moment of

publication of the

contract notice

until the signature

of the contract;

Cancellation rate;

Share of

procedures using

negotiations

European

Commission

Single Market and

Competitiveness

Scoreboard;

PPDS;

New IT tools and

systems foreseen

Specific Objective 2: Increase the uptake of environmental, social and

innovation public procurement

Has the number of

procedures that

Share of

procedures (value

European

Commission Single Market and

Competitiveness

EN 151 EN

Monitoring and

evaluation aspect

and relevant

objectives

Indicator(s) Responsibility for

collection Source(s)

include

environmental,

social and

innovation

elements

increased?

and count) that

include

environmental,

social and

innovation

procurement/share

of BPQR

procedures;

Share of

environmental

procurement using

EU Ecolabel

Scoreboard;

PPDS;

New IT tools and

systems foreseen

Specific Objective 3: Improve EU economic security and strategic autonomy in

public procurement

Has the EU

economic security

and strategic

autonomy in public

procurement

improved?

Share of

participation of

third country

operators (direct +

indirect);

Share of EU origin

of goods procured

in selected sectors

(understood as in

the UCC)

European

Commission

Single Market and

Competitiveness

Scoreboard;

PPDS;

New IT tools and

systems foreseen

Specific Objective 4: Facilitate access to public procurement information, data

and IT tools

Has access to

information on

public procurement

improved?

Transparency rate

(eg. % of GDP

published in

TED/MPL);

Accessibility and

searchability of

databases;

Data quality (e.g.

European

Commission

Single Market and

Competitiveness

Scoreboard;

PPDS;

New IT tools and

systems foreseen

EN 152 EN

Monitoring and

evaluation aspect

and relevant

objectives

Indicator(s) Responsibility for

collection Source(s)

completeness of

data provided);

Data integration

with other

databases (e.g.

company register,

tax register)

General Objectives

For public

buyers:

Facilitate public

procurement

processes and the

implementation of

strategic

objectives,

improve legal

certainty

Share of

procedures (value

and count) that

include

environmental,

social and

innovation

procurement;

Number of first

instance public

procurement

review decisions in

relation to number

of call for

competitions

European

Commission

Single Market and

Competitiveness

Scoreboard;

PPDS;

New IT tools and

systems foreseen

For economic

operators

Facilitate access to

public procurement

(also cross-border)

for EU businesses,

including SMEs

Number of tenders

per procedure;

Number of

contracts awarded

to an economic

operator in a

different MS;

Number of

contracts including

a subcontractor

from a different

MS;

European

Commission

Single Market and

Competitiveness

Scoreboard;

PPDS;

New IT tools and

systems foreseen

EN 153 EN

Monitoring and

evaluation aspect

and relevant

objectives

Indicator(s) Responsibility for

collection Source(s)

Number of

contracts awarded

to SMEs

Horizontal

Reduce

administrative

burden, increase

transparency,

facilitate the

monitoring to

avoid irregularities

and enable policy

choices

Cost per procedure

(for public buyers);

Cost per procedure

(for economic

operators);

Length of

procedure from

planning until the

award of the

contract;

Number of

economic operators

using the digital

tools;

Number of public

buyers using the

digital tools;

Cancellation rate;

Share of

procedures using

negotiation

European

Commission

Single Market and

Competitiveness

Scoreboard;

PPDS;

New IT tools and

systems foreseen

1.4. The proposal/initiative relates to:

☑ a new action

☐ a new action following a pilot project/preparatory action1

☐ the extension of an existing action

☐ a merger or redirection of one or more actions towards another/a new action

1 As referred to in Article 58(2), point (a) or (b) of the Financial Regulation.

EN 154 EN

1.5. Grounds for the proposal/initiative

1.5.1. Requirement(s) to be met in the short or long term including a detailed timeline for

roll-out of the implementation of the initiative

This Regulation aims to simplify the whole public procurement market. This

includes the public procurement digital ecosystem. It requires eProcurement service

providers to ensure interoperability in their services in accordance with the upcoming

standards. Additionally, it will mandate that Member States integrate and connect

their digital business credential tool to the electronic eligibility service and their

respective national registries. This will enable economic operators to fully utilise the

digital business credential tool. Member States will also be required to establish and

connect their National Public Procurement Data Spaces to the PPDS data exchange.

1.5.2. Added value of EU involvement (it may result from different factors, e.g.

coordination gains, legal certainty, greater effectiveness or complementarities). For

the purposes of this section 'added value of EU involvement' is the value resulting

from EU action, that is additional to the value that would have been otherwise

created by Member States alone.

Reasons for action at EU level (ex-ante)

While significant efforts have been made in the last 50 years, a single market for

public procurement is not yet achieved. Fragmentation persists in the form of

divergent policy approaches across initiatives, gold-plating at Member State level,

and the use of different digital tools and platforms. These issues make the current EU

public procurement framework an area of perceived administrative burden and

bureaucracy, instead of an instrument for sustainable economic growth. To leverage

public procurement as a driver for competitiveness and efficient and effective public

investment, also supporting EU policy objectives, EU action is needed. Simplifying

the EU public procurement framework and implementing strategic objectives is only

possible through EU action that ensures a consistent change across Member State.

Absence of EU action would perpetuate the inefficiencies in the system and prevent

public buyers from meeting their needs faster and strategically, and economic

operators from accessing procurement contracts across the single market. A coherent

legal framework for public procurement can only be achieved at EU level. In

addition, in absence of EU action, the EU public procurement legislation will

continue to underperform in key strategic aspects, such as advancing on

sustainability, fostering resilient supply chains or ensuring the strategic autonomy of

the EU. Likewise, joint investment in strategic sectors would be limited, while

coordinated action will enable leveraging demand better. Finally, the lack of EU

actions also creates a missed opportunity, as the legislation becomes outdated in light

of current developments (e.g. accelerating digital change and hyper connectivity) and

evolving threats. (e.g. changing security paradigms).

Expected generated EU added value (ex-post)

The proposal aims at amending EU legislation, directly touching upon the EU-wide

procurement market. The same could not be accomplished at Member State level, in

particular considering the need for ensuring a harmonised approach across Member

States, such an approach being of critical importance for effective simplification.

There is a strong value added of EU-level action because the problems that this

proposal tackles are not limited to the territory of a single Member State. Only EU

action can regulate the access of third country bidders and goods to the EU

EN 155 EN

procurement market, as this is an exclusive competence of the EU. Similarly, insofar

as the commitments of the EU under the GPA remain, Member States may not

introduce procedural simplification beyond the level that is set at EU level because

the public procurement thresholds and procedures are governed by EU rules

implementing the procedural commitments under the GPA.

1.5.3. Lessons learned from similar experiences in the past

Previous reforms have shown that digital tools like eProcurement can streamline

processes, but these need to be standardised across all member states to avoid

fragmentation. The new rules should establish clear core requirements while

allowing flexibility in how they are implemented.

Experience has demonstrated that simplified procedures and digital pre-qualification

systems help small and medium-sized businesses participate more effectively in

public procurement. Automated data collection has proven valuable for improving

transparency and enabling better monitoring of procurement processes.

Finally, past reforms have shown that successful implementation requires early

engagement with all stakeholders and providing clear guidance throughout the

process.

1.5.4. Compatibility with the multiannual financial framework and possible synergies with

other appropriate instruments

The revision of the Public Procurement Directives supports the EU’s simplification

and competitiveness goals by enabling economic operators with digital tools and

harmonised processes, enabling trusted, secure, and user-friendly compliance with

administrative requirements. This includes streamlined identification, authentication,

and data exchange, ensuring seamless interactions between businesses and public

authorities. Hence, it is fully in line with the objectives of the MFF 2028-2034.

The inclusion of the Commission and Member States in implementing this

Regulation will have financial implications, which could be predominantly covered

by the EU budget under the MFF 2028-2034, depending on the outcome of the

ongoing negotiations on the Commission’s proposal for the next MFF. These costs

are mainly associated with:

1. The digital transformation of procurement processes, including the development

and deployment of eProcurement platforms.

2. The integration of existing IT systems with new digital tools to ensure

interoperability.

3. The establishment of supervisory and monitoring mechanisms to ensure

compliance with the revised Regulation.

1.5.5. Assessment of the different available financing options, including scope for

redeployment

The staff needs in the amount of 17 additional FTEs (8 ADs for DG GROW, 4 ADs

for Publications Office, and 5 ENDs for DG GROW) will partly be met by

redeploying existing allocations of the DG. Nevertheless, despite the considerable

efforts made by the Commission to redeploy its human resources in the past year, to

ensure successful delivery and proper implementation of this proposal, an additional

reinforcement of Commission staffing will be required to meet the full need.

With regard to financing, the needs will strictly be met through redeployment.

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The estimated impact on expenditure and staffing for 2028 and beyond is added for

illustrative purposes only and does not pre-judge the next Multiannual Financial

Framework. The source of financing and scope of Union financial commitment in the

post-2027 period remain subject to the outcome of interinstitutional negotiations on

the MFF 2028-2034 and thereafter shall be determined through the annual budgetary

procedure. All appropriations and staffing allocations as of 2028 are indicative.

1.6. Duration of the proposal/initiative and of its financial impact

☐ limited duration

☐ in effect from [DD.MM]YYYY to [DD.MM]YYYY

☐ financial impact from YYYY to YYYY for commitment appropriations

and from YYYY to YYYY for payment appropriations.

☑ unlimited duration

Implementation with a start-up period from 2028 to 2030,

followed by full-scale operation.

1.7. Method(s) of budget implementation planned(2)2

☑ Direct management by the Commission

☑ by its departments, including by its staff in the Union delegations;

☐ by the executive agencies

☐ Shared management with the Member States

☐ Indirect management by entrusting budget implementation tasks to:

☐ third countries or the bodies they have designated;

☐ international organisations and their agencies (to be specified);

☐ the European Investment Bank and the European Investment Fund;

☐ bodies referred to in Articles 70 and 71 of the Financial Regulation;

☐ public law bodies;

☐ bodies governed by private law with a public service mission to the

extent that they are provided with adequate financial guarantees;

☐ bodies governed by the private law of a Member State that are entrusted

with the implementation of a public-private partnership and that are

provided with adequate financial guarantees;

☐ bodies or persons entrusted with the implementation of specific actions in

the common foreign and security policy pursuant to Title V of the Treaty

on European Union, and identified in the relevant basic act

☐ bodies established in a Member State, governed by the private law of a

Member State or Union law and eligible to be entrusted, in accordance

2 Details of budget implementation methods and references to the Financial Regulation may be found on

the BUDGpedia site: https://myintracomm.ec.europa.eu/corp/budget/financial-rules/budget-

implementation/Pages/implementation-methods.aspx.

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