Subject matter and scope of application
1. This Regulation establishes measures regarding non-covered procurement, intended to improve the access of Union economic operators, goods and services to the public procurement and concession markets of third countries. It lays down procedures for the Commission to undertake investigations into alleged third-country measures or practices against Union economic operators, goods and services, and to enter into consultations with the third countries concerned.
This Regulation provides for the possibility for the Commission to impose IPI measures in relation to such third-country measures or practices to restrict the access of economic operators, goods or services from third countries to Union public procurement procedures.
2. This Regulation shall apply to public procurement procedures covered by the following acts:
(a)
Directive 2014/23/EU;
(b)
Directive 2014/24/EU;
(c)
Directive 2014/25/EU.
3. This Regulation shall be without prejudice to any international obligations of the Union or to measures that Member States or their contracting authorities or contracting entities may take in accordance with the acts referred to in paragraph 2.
4. This Regulation shall apply to public procurement procedures launched after its entry into force. An IPI measure shall apply only to public procurement procedures which are covered by the IPI measure and have been launched between the entry into force of that IPI measure and its expiry, withdrawal or suspension. Contracting authorities and contracting entities shall include a reference to the application of this Regulation and any applicable IPI measure in the public procurement documents for procedures falling within the scope of an IPI measure.
5. Environmental, social and labour requirements shall apply to economic operators in accordance with Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, or other Union law.
Definitions
1. For the purposes of this Regulation, the following definitions apply:
(a)
‘economic operator’ means an economic operator as defined in Directives 2014/23/EU, 2014/24/EU and 2014/25/EU;
(b)
‘goods’ means goods referred to in the object of a public procurement procedure and in the specifications of the relevant contract, but does not cover any input, material or ingredient incorporated in the supplied goods;
(c)
‘estimated value’ means the estimated value of a contract calculated in accordance with Directives 2014/23/EU, 2014/24/EU and 2014/25/EU;
(d)
‘score adjustment’ means the relative diminution by a given percentage of the score of a tender, resulting from its evaluation by a contracting authority or a contracting entity, on the basis of the contract award criteria defined in the relevant public procurement documents. In cases where price or cost is the only contract award criterion, the score adjustment means the relative increase, for the purpose of the evaluation of tenders, by a given percentage of the price offered by a tenderer;
(e)
‘evidence’ means any information, certificate, supporting document or statement that aims to prove compliance with the obligations set out in Article 8, such as:
(i)
documents showing that the goods are originating in the Union or a third country;
(ii)
a description of manufacturing processes, including samples, descriptions or photographs, for goods to be supplied;
(iii)
an extract of relevant registers or of financial statements for the origin of services, including a value-added tax (VAT) identification number;
(f)
‘contracting authority’ means a contracting authority as defined in Directives 2014/23/EU, 2014/24/EU and 2014/25/EU;
(g)
‘contracting entity’ means a contracting entity as defined in Directives 2014/23/EU and 2014/25/EU;
(h)
‘interested party’ means any person or entity whose interest might be affected by a third-country measure or practice, such as undertakings, associations of undertakings or the main cross-industry organisations representing social partners at Union level;
(i)
‘third-country measure or practice’ means any legislative, regulatory or administrative measure, procedure or practice, or combination thereof, adopted or maintained by public authorities or individual contracting authorities or contracting entities in a third country, at any level, that results in a serious and recurrent impairment of access of Union economic operators, goods or services to the public procurement or concession markets of that third country;
(j)
‘IPI measure’ means a measure adopted by the Commission in accordance with this Regulation limiting the access of economic operators, goods or services originating in third countries to the Union public procurement or concession markets in the area of non-covered procurement;
(k)
‘non-covered procurement’ means public procurement procedures for goods, services or concessions regarding which the Union has not undertaken market access commitments in an international agreement in the field of public procurement or concessions;
(l)
‘contracts’ means public contracts as defined in Directive 2014/24/EU, concessions as defined in Directive 2014/23/EU and supply, works and service contracts as defined in Directive 2014/25/EU;
(m)
‘tenderer’ means a tenderer as defined in Directives 2014/23/EU, 2014/24/EU and 2014/25/EU;
(n)
‘country’ means any State or separate customs territory, without such term having implications for sovereignty;
(o)
‘subcontracting’ means arranging the execution of a part of a contract by a third party and does not include the mere delivery of goods or parts that are necessary for the provision of a service.
2. For the purpose of this Regulation, except for Article 6(3) and (7) thereof, the execution of works or a work within the meaning of Directives 2014/23/EU, 2014/24/EU and 2014/25/EU shall be considered as the provision of a service.
Determination of origin
1. The origin of an economic operator shall be deemed to be:
(a)
in the case of a natural person, the country of which the person is a national or where that person has a right of permanent residence;
(b)
in the case of a legal person, either of the following:
(i)
the country under the laws of which the legal person is constituted or otherwise organised and in the territory of which the legal person is engaged in substantive business operations;
(ii)
if the legal person is not engaged in substantive business operations in the territory of the country in which it is constituted or otherwise organised, the origin of the legal person is to be that of the person or persons who may exercise, directly or indirectly, a dominant influence on the legal person by virtue of their ownership of that legal person, their financial participation therein, or the rules which govern that legal person.
For the purposes of the first subparagraph, point (b)(ii), that person or persons shall be presumed to have a dominant influence on the legal person in any of the following cases in which they, directly or indirectly:
(a)
hold the majority of the legal person’s subscribed capital;
(b)
control the majority of the votes attaching to shares issued by the legal person; or
(c)
can appoint more than half of the legal person’s administrative, management or supervisory body.
2. Where an economic operator is a group of natural or legal persons, public entities or any combination thereof, and at least one of such persons or entities originates from a third country whose economic operators, goods or services are subject to an IPI measure, that IPI measure shall also apply to tenders submitted by that group.
However, where the participation of such persons or entities in a group amounts to less than 15 % of the value of a tender submitted by that group, that IPI measure shall not apply to that tender, unless those persons or entities are necessary in order to fulfil the majority of at least one of the selection criteria in a public procurement procedure.
3. Contracting authorities or contracting entities may, at any time during the public procurement procedure, request the economic operator to submit, supplement, clarify or complete the information or documentation related to the verification of the economic operator’s origin within an appropriate time limit, provided that such requests are made in compliance with the principles of equal treatment and transparency. Where the economic operator fails to provide such information or documentation without any reasonable explanation, and thereby prevents the verification of the economic operator’s origin by contracting authorities or contracting entities or makes such a verification practically impossible or very difficult, that economic operator shall be excluded from participation in the public procurement procedure concerned.
4. The origin of a good shall be determined in accordance with Article 60 of Regulation (EU) No 952/2013, and the origin of a service shall be determined on the basis of the origin of the economic operator providing it.
Exemption for goods and services originating in least developed countries
The Commission shall not initiate an investigation in respect of least developed countries listed in Annex IV to Regulation (EU) No 978/2012, unless there is evidence of a circumvention of any IPI measure imputable to the listed third country or their economic operators.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
