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 (Text with EEA relevance)

Section 2 Time-limits

Article 33

Time-limits for receipt of requests to participate and for receipt of tenders

In the case of restricted procedures, the minimum time-limit for the receipt of tenders shall be 40 days from the date on which the invitation is sent.

The time-limit shall run from the date on which the invitation to tender was sent.

The shortened time-limits referred to in the first subparagraph shall be permitted, provided that the prior information notice has included all the information required for the contract notice set out in Annex IV, insofar as that information is available at the time the notice is published and that the prior information notice was sent for publication between 52 days and 12 months before the date on which the contract notice was sent.

This reduction may be added to that referred to in paragraph 4.

• — a time-limit for receipt of requests to participate which may not be less than 15 days from the date on which the contract notice is dispatched, or less than 10 days if the notice was sent by electronic means, in accordance with the format and procedure for sending notices set out in point 3 of Annex VI; and

• — in the case of restricted procedures, a time-limit for receipt of tenders which shall not be less than 10 days from the date of the invitation to tender.

Section 3 Information content and means of transmission

Article 34

Invitations to tender, negotiate or participate in a dialogue

• — a copy of the contract documents or of the descriptive document and any supporting documents, or,

• — a reference to accessing the documents referred to in the first indent when they are made directly available by electronic means in accordance with Article 33(5),

• (a) a reference to the contract notice published;

• (b) the deadline for receipt of tenders, the address to which the tenders must be sent and the language or languages in which the tenders must be drawn up. In the case of a competitive dialogue, this information shall not be contained in the invitation to take part in the dialogue, but in the invitation to submit a tender;

• (c) in the case of a competitive dialogue, the date and the address set for the start of the consultation stage and the language or languages used;

• (d) an indication of any documents to be annexed, either to support the verifiable statements provided by the candidate in accordance with Article 38, or to supplement the information provided for in that Article under the same conditions as those laid down in Articles 41 and 42;

• (e) the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance of the criteria used to define the economically most advantageous tender, if they are not given in the contract notice, the contract documents or the descriptive document.

Article 35

Information for candidates and tenderers

• (a) any unsuccessful candidate of the reasons for the rejection of the application;

• (b) any unsuccessful tenderer of the reasons for the rejection of the tender, including, in particular, for the cases referred to in Article 18(4) and (5) the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements, and in the cases referred to in Articles 22 and 23, the reasons for its decision of non-conformity with the requirements of security of information and security of supply;

• (c) any tenderer which has made an admissible tender that has been rejected, of the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer or the parties to the framework agreement.

Section 4 Communication

Article 36

Rules applying to communication

• (a) information regarding the specifications necessary for the electronic submission of tenders and requests to participate, including encryption, shall be available to interested parties. Moreover, devices for the electronic receipt of tenders and requests to participate shall conform to the requirements of Annex VIII;

• (b) Member States may, in compliance with Article 5 of Directive 1999/93/EC, require electronic tenders to be accompanied by an advanced electronic signature, in conformity with paragraph 1 thereof;

• (c) Member States may introduce or maintain voluntary arrangements for accreditation intended to improve the level of the certification service provided for such devices;

• (d) candidates shall undertake to submit, before expiry of the time-limit laid down for submission of tenders or requests to participate, the documents, certificates and declarations referred to in Articles 39 to 44 and Article 46, if they do not exist in electronic format.

• (a) requests to participate in procedures for the award of contracts may be made in writing or by telephone;

• (b) where requests to participate are made by telephone, a written confirmation must be sent before expiry of the time-limit set for their receipt;

• (c) contracting authorities/entities may require that requests for participation made by fax must be confirmed by post or electronic means where this is necessary for the purposes of legal proof. Any such requirement, together with the time-limit by which it must be met, must be stated by the contracting authority/entity in the contract notice.

Section 5 Reports

Article 37

Content of reports

• (a) the name and address of the contracting authority/entity and the subject and value of the contract or framework agreement;

• (b) the award procedure chosen;

• (c) in the case of a competitive dialogue, the circumstances justifying the use of this procedure;

• (d) in the case of a negotiated procedure without prior publication of a contract notice, the circumstances referred to in Article 28 which justify the use of this procedure; if appropriate, justification for exceeding the time-limits laid down in the second subparagraph of Article 28(3)(a) and the third subparagraph of Article 28(4)(b) and for exceeding the 50 % limit laid down in the second subparagraph of Article 28(4)(a);

• (e) if appropriate, the reasons for the framework agreement lasting more than seven years;

• (f) the name of the candidates chosen and the reason for this choice;

• (g) the name of the candidates excluded and the reasons for their rejection;

• (h) the reasons for the rejection of tenders;

• (i) the name of the successful tenderer and the reasons why its tender was selected, and, if known, the share of the contract or framework agreement which the successful tenderer intends, or will be required, to subcontract to third parties;

• (j) if necessary, the reasons why the contracting authority/entity decided not to award a contract or framework agreement.

CHAPTER VII Conduct of the procedure

Section 1 General provisions

Article 38

Verification of the suitability and choice of participants and award of contracts

The extent of the information referred to in Articles 41 and 42 and the minimum levels of ability required for a specific contract must be related and proportionate to the subject-matter of the contract.

These minimum levels shall be indicated in the contract notice.

• — the contracting authorities/entities shall indicate in the contract notice the objective and non-discriminatory criteria or rules they intend to apply, the minimum number of candidates they intend to invite and, where appropriate, the maximum number. The minimum number of candidates they intend to invite may not be less than three;

• — subsequently, the contracting authorities/entities shall invite a number of candidates at least equal to the minimum number set in advance, provided a sufficient number of suitable candidates is available,

Where the number of candidates meeting the selection criteria and the minimum levels of ability is below the minimum number, the contracting authority/entity may continue the procedure by inviting the candidate or candidates with the required capabilities.

If the contracting authority/entity considers that the number of suitable candidates is too low to ensure genuine competition, it may suspend the procedure and republish the initial contract notice in accordance with Article 30(2) and Article 32, fixing a new deadline for the submission of requests to participate. In this case, the candidates selected upon the first publication and those selected upon the second shall be invited in accordance with Article 34. This option shall be without prejudice to the ability of the contracting authority/entity to cancel the ongoing procurement procedure and launch a new procedure.

Section 2 Criteria for qualitative selection

Article 39

Personal situation of the candidate or tenderer

• (a) participation in a criminal organisation, as defined in Article 2(1) of Joint Action 98/733/JHA ([^E0001]);

• (b) corruption, as defined in Article 3 of the Act of 26 May 1997 ([^E0002]) and Article 2(1) of Framework Decision 2003/568/JHA ([^E0003]);

• (c) fraud within the meaning of Article 1 of the Convention relating to the protection of the financial interests of the European Communities ([^E0004]);

• (d) terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Framework Decision 2002/475/JHA ([^E0005]) respectively, or inciting, aiding or abetting or attempting to commit an offence, as referred to in Article 4 of that Framework Decision;

• (e) money laundering and terrorist financing, as defined in Article 1 of Directive 2005/60/EC ([^E0006]).

Member States shall specify, in accordance with their national law and having regard to Community law, the implementing conditions for this paragraph.

They may provide for a derogation from the requirement referred to in the first subparagraph for overriding requirements in the general interest.

For the purposes of this paragraph, the contracting authorities/entities shall, where appropriate, ask candidates or tenderers to supply the documents referred to in paragraph 3 and may, where they have doubts concerning the personal situation of such candidates or tenderers, also apply to the competent authorities to obtain any information they consider necessary on the personal situation of the candidates or tenderers concerned. Where the information concerns a candidate or tenderer established in a State other than that of the contracting authority/entity, the contracting authority/entity may seek the cooperation of the competent authorities. Having regard for the national laws of the Member State where the candidates or tenderers are established, such requests shall relate to legal and/or natural persons, including, if appropriate, company directors and any person having powers of representation, decision or control in respect of the candidate or tenderer.

• (a) is bankrupt or is being wound up, where its affairs are being administered by a court, where it has entered into an arrangement with creditors, where it has suspended business activities or is in any analogous situation arising from a similar procedure under national laws and regulations;

• (b) is the subject of proceedings for a declaration of bankruptcy, for an order for compulsory winding up or administration by a court or of an arrangement with creditors or of any other similar proceedings under national laws and regulations;

• (c) has been convicted by a judgment which has the force of res judicata in accordance with the legal provisions of the country of any offence concerning its professional conduct, such as, for example, infringement of existing legislation on the export of defence and/or security equipment;

• (d) has been guilty of grave professional misconduct proven by any means which the contracting authority/entity can supply, such as a breach of obligations regarding security of information or security of supply during a previous contract;

• (e) has been found, on the basis of any means of evidence, including protected data sources, not to possess the reliability necessary to exclude risks to the security of the Member State;

• (f) has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which it is established or with those of the country of the contracting authority/entity;

• (g) has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country in which it is established or with those of the country of the contracting authority/entity;

• (h) is guilty of serious misrepresentation in supplying the information required under this Section, or has not supplied such information.

Member States shall specify, in accordance with their national law and having regard for Community law, the implementing conditions for this paragraph.

• (a) as regards paragraph 1 and paragraph 2(a), (b) and (c), the production of an extract from the ‘judicial record’ or, failing that, of an equivalent document issued by a competent judicial or administrative authority in the country of origin or provenance, showing that these requirements have been met;

• (b) as regards paragraph 2(f) and (g), a certificate issued by the competent authority in the Member State concerned.

Where the country in question does not issue such documents or certificates, or where these do not cover all the cases specified in paragraph 1 and paragraph 2(a), (b) and (c), they may be replaced by a declaration on oath or, in Member States where there is no provision for declarations on oath, by a solemn declaration made by the person concerned before a competent judicial or administrative authority, a notary or a competent professional or trade body, in the country of origin or provenance.

Article 40

Suitability to pursue the professional activity

Where a candidate is required to be enrolled on a professional or trade register in its Member State of origin or establishment in order to pursue its professional activity, it may be requested to prove its enrolment on such a register or to provide a declaration on oath or a certificate as described in Part A of Annex VII for works contracts, Part B of Annex VII for supply contracts and Part C of Annex VII for service contracts. The lists set out in Annex VII are indicative. Member States shall notify the Commission and the other Member States of any changes to their registers and of the means of evidence referred to in these lists.

In procedures for the award of service contracts, insofar as candidates have to possess a particular authorisation or be a member of a particular organisation in order to be able to perform the service concerned in their country of origin, the contracting authority/entity may require them to prove that they hold such authorisation or membership.

This Article shall be without prejudice to Community law on the freedom of establishment and the freedom to provide services.

Article 41

Economic and financial standing

• (a) appropriate statements from a bank or, where appropriate, evidence of professional risk indemnity insurance;

• (b) the presentation of balance sheets or extracts from balance sheets, where publication of the balance sheet is required under the law of the country in which the economic operator is established;

• (c) a statement of the undertaking’s overall turnover and, where appropriate, of turnover in the area covered by the contract for a maximum of the last three financial years available, depending on the date on which the undertaking was set up or the economic operator started trading, insofar as information on such turnovers is available.

Article 42

Technical and/or professional ability

• (a) - (i) a list of the works carried out over the past five years, accompanied by certificates of satisfactory execution for the most important works. These certificates shall indicate the value, date and location of the works and shall specify whether they were carried out according to the rules of the trade and properly completed. Where appropriate, the competent authority shall submit these certificates to the contracting authority/entity directly;
• (ii) a list of the principal deliveries effected or the main services provided, as a general rule, in the past five years, with the sums, dates and recipients, whether public or private, involved. Evidence of delivery and services provided shall be given:
• — where the recipient was a contracting authority/entity, in the form of certificates issued or countersigned by the competent authority,
• — where the recipient was a private purchaser, by the purchaser’s certification or, failing this, simply by a declaration by the economic operator,

• (b) an indication of the technicians or technical bodies involved, whether or not they belong directly to the economic operator’s undertaking, especially those responsible for quality control and, in the case of works contracts, those upon which the contractor can call in order to carry out the work;

• (c) a description of the technical facilities and measures used by the economic operator to ensure quality and the undertaking’s study and research facilities, as well as internal rules regarding intellectual property;

• (d) a check carried out by the contracting authorities/entities or on their behalf by a competent official body of the country in which the economic operator is established, subject to that body’s agreement, on the production capacities of the supplier or the technical capacity of the economic operator and, if necessary, on the means of study and research which are available to it and the quality control measures it will operate;

• (e) in the case of works contracts, service contracts or supply contracts also covering siting and installation operations or services, the educational and professional qualifications of the economic operator and/or those of the undertaking’s managerial staff and, in particular, those of the person or persons responsible for providing the services or managing the work;

• (f) for works contracts and services contracts, and only in appropriate cases, an indication of the environmental management measures that the economic operator will be able to apply when performing the contract;

• (g) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years;

• (h) a description of the tools, material, technical equipment, staff numbers and know-how and/or sources of supply — with an indication of the geographical location when it is outside the territory of the Union — which the economic operator has at its disposal to perform the contract, cope with any additional needs required by the contracting authority/entity as a result of a crisis or carry out the maintenance, modernisation or adaptation of the supplies covered by the contract;

• (i) with regard to the products to be supplied, provision of:
• (i) samples, descriptions and/or photographs, the authenticity of which must be certified if the contracting authority/entity so requests;
• (ii) certificates drawn up by official quality control institutes or agencies of recognised competence attesting the conformity of products, clearly identified by references to specifications or standards;

• (j) in the case of contracts involving, entailing and/or containing classified information, evidence of the ability to process, store and transmit such information at the level of protection required by the contracting authority/entity. In the absence of harmonisation at Community level of national security clearance systems, Member States may provide that this evidence has to comply with the relevant provisions of their respective national laws on security clearance. Member States shall recognise security clearances which they consider equivalent to those issued in accordance with their national law, notwithstanding the possibility to conduct and take into account further investigations of their own, if considered necessary. The contracting authority/entity may, where appropriate, grant candidates which do not yet hold security clearance additional time to obtain such clearance. In this case, it shall indicate this possibility and the time-limit in the contract notice. The contracting authority/entity may ask the national security authority of the candidate’s Member State or the security authority designated by that Member State to check the conformity of the premises and facilities that may be used, the industrial and administrative procedures that will be followed, the methods for managing information and/or the situation of staff likely to be employed to carry out the contract.

Article 43

Quality management systems standards

Should they require the production of certificates drawn up by independent accredited bodies attesting the compliance of the economic operator with certain quality management systems standards, contracting authorities/entities shall refer to quality management systems based on the relevant European standards certified by independent accredited bodies conforming to the European standards concerning accreditation and certification. They shall recognise equivalent certificates from independent accredited bodies established in other Member States. They shall also accept other evidence of equivalent quality management systems from economic operators.

Article 44

Environmental management standards

Should contracting authorities/entities, in the cases referred to in Article 42(1)(f), require the production of certificates drawn up by independent bodies attesting the compliance of the economic operator with certain environmental management standards, they shall refer to the Community Eco-Management and Audit Scheme (EMAS) or to environmental management standards based on the relevant European or international standards certified by bodies conforming to Community law or the relevant European or international standards concerning certification. They shall recognise equivalent certificates from bodies established in other Member States. They shall also accept other evidence of equivalent environmental management measures from economic operators.

Article 45

Additional documentation and information

The contracting authority/entity may invite economic operators to supplement or clarify the certificates and documents submitted pursuant to Articles 39 to 44.

Article 46

Official lists of approved economic operators and certification by bodies established under public or private law

Member States shall adapt the conditions for registration on these lists and for the issue of certificates by certification bodies to the provisions of Article 39(1) and (2)(a) to (d) and (h), Article 40, Article 41(1), (4) and (5), Article 42(1)(a) to (i), (2) and (4), Article 43 and, where appropriate, Article 44.

Member States shall also adapt them to Article 41(2) and Article 42(2) as regards applications for registration submitted by economic operators belonging to a group and claiming resources made available to them by the other companies in the group. In such a case, these operators must prove to the authority establishing the official list that they will have these resources at their disposal throughout the period of validity of the certificate attesting to their being registered in the official list, and that throughout the same period these companies must continue to fulfil the qualitative selection requirements laid down in the Articles referred to in the second subparagraph on which operators rely for their registration.

The contracting authorities/entities of other Member States shall apply paragraph 3 and the first subparagraph of this paragraph only to economic operators established in the Member State holding the official list.

However, economic operators from other Member States may not be obliged to undergo such registration or certification in order to participate in a contract. Contracting authorities/entities shall recognise equivalent certificates from bodies established in other Member States. They shall also accept other equivalent means of proof.

Section 3 Award of the contract

Article 47

Contract award criteria

• (a) when the award is made to the most economically advantageous tender from the point of view of the contracting authority/entity, various criteria linked to the subject-matter of the contract in question: for example, quality, price, technical merit, functional characteristics, environmental characteristics, running costs, lifecycle costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, security of supply, interoperability and operational characteristics; or

• (b) the lowest price only.

The weightings can be expressed by providing for a range with an appropriate maximum spread.

Where, in the opinion of the contracting authority/entity, weighting is not possible for demonstrable reasons, the contracting authority/entity shall indicate in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents) the criteria in descending order of importance.

Article 48

Use of electronic auctions

In the same circumstances, an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in the second indent of the second subparagraph of Article 29(4).

The electronic auction shall be based:

• — solely on price, where the contract is awarded to the lowest price; or,

• — on price and/or on the new values of the features of the tenders indicated in the contract documents, where the contract is awarded to the most economically advantageous tender,

The contract documents shall include, inter alia, the following details:

• (a) the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages;

• (b) any limitations on the values which may be submitted, as they result from the specifications relating to the subject of the contract;

• (c) the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them;

• (d) the relevant information concerning the electronic auction process;

• (e) the conditions under which tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding;

• (f) the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.

All tenderers which have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and/or new values; the invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out.

The invitation shall also state the mathematical formula to be used in the electronic auction to determine automatic re-rankings on the basis of the new prices and/or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced in advance to a specified value.

Where variants are authorised, a separate formula shall be provided for each variant.

• (a) in accordance with the date and time fixed in advance, as indicated in the invitation to take part in the auction;

• (b) when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities/entities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before closing the electronic auction;

• (c) when the phases in the auction, fixed in the invitation to take part in the auction, have been completed.

When the contracting authorities/entities decide to close an electronic auction in accordance with point (c), possibly in combination with the arrangements laid down in point (b), the invitation to take part in the auction shall indicate the timetable for each phase of the auction.

Contracting authorities/entities may not have improper recourse to electronic auctions, nor may they use them in such a way as to prevent, restrict or distort competition or to change the subject-matter of the contract, as put up for tender in the published contract notice and defined in the contract documents.

Article 49

Abnormally low tenders

Those details may relate in particular to:

• (a) the economics of the construction method, manufacturing process or services provided;

• (b) the technical solutions chosen and/or any exceptionally favourable conditions available to the tenderer for the execution of the work or for the supply of the goods or services;

• (c) the originality of the work, supplies or services proposed by the tenderer;

• (d) compliance with the provisions relating to employment protection and working conditions in force at the place where the work, service or supply is to be performed;

• (e) the possibility of the tenderer obtaining State aid.

TITLE III RULES APPLICABLE TO SUBCONTRACTING

CHAPTER I Subcontracts awarded by successful tenderers which are not contracting authorities/entities

Article 50

Scope

The tenderer shall include the exhaustive list of such undertakings in the tender. That list shall be updated following any change in the relationship between the undertakings.

Article 51

Principles

The successful tenderer shall act transparently and treat all potential subcontractors in an equal and non-discriminatory way.

Article 52

Thresholds and rules on advertising

Subcontract notices shall be drawn up in accordance with the standard form adopted by the Commission in accordance with the advisory procedure referred to in Article 67(2).

Subcontracts based on such a framework agreement shall be awarded within the limits of the terms laid down in the framework agreement. They may only be awarded to economic operators that were originally party to the framework agreement. When awarding contracts, the parties shall in all circumstances propose terms consistent with those of the framework agreement.

The term of a framework agreement may not exceed seven years, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause.

Framework agreements may not be used improperly or in such a way as to prevent, restrict or distort competition.

Article 53

Criteria for qualitative selection of subcontractors

In the subcontract notice, the successful tenderer shall indicate the criteria for qualitative selection prescribed by the contracting authority/entity, as well as any other criteria it will apply for the qualitative selection of subcontractors. All these criteria shall be objective, non-discriminatory and consistent with the criteria applied by the contracting authority/entity for the selection of the tenderers for the main contract. The capabilities required must be directly related to the subject of the subcontract, and the levels of ability required must be commensurate with it.

The successful tenderer shall not be required to subcontract if it proves to the satisfaction of the contracting authority/entity that none of the subcontractors participating in the competition or their proposed bids meet the criteria indicated in the subcontract notice and thereby would prevent the successful tenderer from fulfilling the requirements set out in the main contract.

CHAPTER II Subcontracts awarded by successful tenderers which are contracting authorities/entities

Article 54

Rules to be applied

Where successful tenderers are contracting authorities/entities, they shall comply with the provisions on main contracts laid down in Titles I and II when they award subcontracts.

TITLE IV RULES TO BE APPLIED TO REVIEWS

Article 55

Scope and availability of review procedures

Member States shall decide on the appropriate means of communication, including fax or electronic means, to be used for the application for review provided for in the first subparagraph.

The suspension referred to in the first subparagraph shall not end before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contracting authority/entity has sent a reply if fax or electronic means are used, or, if other means of communication are used, before the expiry of either at least 15 calendar days with effect from the day following the date on which the contracting authority/entity has sent a reply, or at least 10 calendar days with effect from the day following the date of the receipt of a reply.

Article 56

Requirements for review procedures

• (a) to take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further injury to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a contract or the implementation of any decision taken by the contracting authority/entity, and to set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure in question; or

• (b) to take, at the earliest opportunity, if possible by way of interlocutory procedures and if necessary by a final procedure on the substance, measures other than those provided for in point (a) with the aim of correcting any identified infringement and preventing injury to the interests concerned; in particular, making an order for the payment of a particular sum, in cases where the infringement has not been corrected or prevented.

In both the above cases, the powers provided for shall include the power to award damages to persons injured by the infringement.

A decision not to grant interim measures shall not prejudice any other claim of the person seeking such measures.

Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract in accordance with Article 55(6), paragraph 3 of this Article or Articles 57 to 62, the powers of the body responsible for review procedures shall be limited to awarding damages to any person harmed by an infringement.

The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The decisions taken by the independent body shall, by means determined by each Member State, be legally binding.

To this end, Member States may decide that a specific body has sole jurisdiction for the review of contracts in the fields of defence and security.

In any case, Member States may provide that only the members of review bodies personally authorised to deal with classified information may examine applications for review involving such information. They may also impose specific security measures concerning the registration of applications for review, the reception of documents and the storage of files.

Member States shall determine how review bodies are to reconcile the confidentiality of classified information with respect for the rights of the defence, and, in the case of a judicial review or of a review by a body which is a court or tribunal within the meaning of Article 234 of the Treaty, shall do so in such a way that the procedure complies, as a whole, with the right to a fair trial.

Article 57

Standstill period

Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and either has been considered lawful by an independent review body or can no longer be subject to a review procedure.

Candidates shall be deemed to be concerned if the contracting authority/entity has not made available information about the rejection of their application before the notification of the contract award decision to the tenderers concerned.

The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:

• — a summary of the relevant reasons as set out in Article 35(2), subject to Article 35(3), and,

• — a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing this paragraph,

Article 58

Derogations from the standstill period

Member States may provide that the periods referred to in Article 57(2) do not apply in the following cases:

• (a) where this Directive does not require prior publication of a contract notice in the Official Journal of the European Union;

• (b) where the only tenderer concerned within the meaning of Article 57(2) is the one which is awarded the contract and there are no candidates concerned;

• (c) in the case of a contract based on a framework agreement as provided for in Article 29. If this derogation is invoked, Member States shall ensure that the contract is ineffective in accordance with Articles 60 and 62 where:
• — there is an infringement of the second indent of the second subparagraph of Article 29(4), and,
• — the contract value is estimated to be equal to or to exceed the thresholds set out in Article 8,

Article 59

Time-limits for applying for review

Where a Member State provides that any application for review of a decision of a contracting authority/entity taken in the context of, or in relation to, a contract award procedure falling within the scope of this Directive must be made before the expiry of a specified period, this period shall be at least 10 calendar days with effect from the day following the date on which the decision of the contracting authority/entity is sent to the tenderer or candidate if fax or electronic means are used or, if other means of communication are used, this period shall be either at least 15 calendar days with effect from the day following the date on which the decision of the contracting authority/entity is sent to the tenderer or candidate or at least 10 calendar days with effect from the day following the date of the receipt of the decision of the contracting authority/entity. The communication of the decision of the contracting authority/entity to each tenderer or candidate shall be accompanied by a summary of the relevant reasons. In the case of an application for review concerning decisions referred to in Article 56(1)(b) that are not subject to a specific notification, the time period shall be at least 10 calendar days from the date of the publication of the decision concerned.

Article 60

Ineffectiveness

• (a) where the contracting authority/entity has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with this Directive;

• (b) in the case of an infringement of Article 55(6), Article 56(3) or Article 57(2), where this infringement has deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies where such an infringement is combined with another infringement of Titles I or II, if that infringement has affected the chances of the tenderer applying for a review to obtain the contract;

• (c) in the cases referred to in the second subparagraph of Article 58(c), where Member States have invoked the derogation from the standstill period for contracts based on a framework agreement.

Economic interests in the effectiveness of the contract may only be considered as overriding reasons relating to a general interest within the meaning of the first subparagraph, if ineffectiveness would lead to disproportionate consequences.

However, economic interests directly linked to the contract concerned shall not constitute overriding reasons relating to a general interest within the meaning of the first subparagraph. Economic interests directly linked to the contract include, inter alia, the costs resulting from the delay in the execution of the contract, the costs resulting from the launching of a new procurement procedure, the costs resulting from the change of the economic operator performing the contract and the costs of legal obligations resulting from the ineffectiveness.

In any event, a contract may not be considered ineffective if the consequences of this ineffectiveness would seriously endanger the very existence of a wider defence or security programme which is essential for a Member State’s security interests.

In all the abovementioned cases, Member States shall provide for alternative penalties within the meaning of Article 61(2), which shall be applied instead.

• — the contracting authority/entity considers that the award of a contract without prior publication of a contract notice in the Official Journal of the European Union is permissible in accordance with this Directive,

• — the contracting authority/entity has published in the Official Journal of the European Union a notice as described in Article 64 expressing its intention to conclude the contract, and,

• — the contract has not been concluded before the expiry of a period of at least 10 calendar days with effect from the day following the date of the publication of this notice,

• — the contracting authority/entity considers that the award of a contract is in accordance with the second indent of the second subparagraph of Article 29(4),

• — the contracting authority/entity has sent a contract award decision, together with a summary of reasons as referred to in the first indent of the fourth subparagraph of Article 57(2), to the tenderers concerned, and,