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6.3.

2003 EN Official Journal of the European Union C 52 E/217

When using a negotiated procedure with a call for competition, this principle of substantially
unchangeable tenders does not apply, precisely because the procedure allows for substantial changes to
tenders during the negotiations. As the Directive does not lay down any detailed provisions regarding the
conduct of a negotiated procedure, the determination of what is or is not possible must be based on an
evaluation of whether the underlying principles of equal treatment, non-discrimination and transparency
have been observed. This implies for instance that any modification or new element should respect the
parameters of the tender notice and the contract documents, as these have been defined by the contracting
authority. In addition, tenderers should be treated equally; the contracting authority should not, for
example, discriminate by providing information which may give some tenderers an advantage over others
or to allow some tenderers more latitude when proposing modifications over others. Finally, the contract
to be signed should not present characteristics which are fundamentally different from those initially
published. To assess whether these principles were adhered to is therefore a matter to be evaluated taking
into account the specifics of each individual case. It is therefore not possible to determine in the abstract
whether each and any change to prices or other elements that are agreed with the preferred bidder in a
negotiated procedure constitute a violation of these principles.

(1) OJ L 297, 29.10.1990 subsequently replaced by the current Utilities Directive, Council Directive 93/38/EEC of
14 June 1993, OJ L 199, 9.8.1993, which is unchanged on this issue.

(2003/C 52 E/240) WRITTEN QUESTION E-2799/02


by Caroline Lucas (Verts/ALE) to the Commission

(7 October 2002)

Subject: Public procurement: tender evaluation

Could the Commission confirm that a utility, subject to the procurements rules set forth in Directive 93/
38/EEC (1), and employing the negotiated procedure, is bound to evaluate tenders on an objective, non-
discriminatory basis and to select the lowest or most economically advantageous offer?

(1) OJ L 199, 9.8.1993, p. 84.

Answer given by Mr Bolkestein on behalf of the Commission

(4 November 2002)

Pursuant to Article 34 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement
procedures of entities operating in the water, energy, transport and telecommunications sectors, and
whichever award procedure has been chosen, the criteria on which the contracting entities shall base the
award of contracts shall be either the most economically advantageous tender or the lowest price only.
As with all other provisions of the Directive, application of this rule must be guided by the principles on
which the Directive is based: the principles of equality of treatment, of which the principle of non-
discrimination is no more than a specific expression, mutual recognition, proportionality, transparency and
the opening-up of public procurement to competition.

(2003/C 52 E/241) WRITTEN QUESTION P-2805/02


by Christos Folias (PPE-DE) to the Commission

(30 September 2002)

Subject: Directive 2000/35/EC on combating late payment in commercial transactions

Article 6 of Directive 2000/35/EC (1) on combating late payment in commercial transactions states that
‘Member States shall bring into force the laws, regulations and administrative provisions necessary to
comply with this Directive before 8 August 2002.’