title: Council Decision of 24 July 1973 amending the Decision of 29 September 1970 on the association of the Overseas Countries and Territories with the European Economic Community

text:
 14 . 10 . 73                             Official Journal of the European Communities                          No L 287/ 1
                                                                 II
                                            (Acts whose publication is not obligatory)
                                                         COUNCIL
                                                      COUNCIL DECISION
                                                          of 24 July 1973
                   amending the Decision of 29 September 1970 on the association of the Overseas
                           Countries and Territories with the European Economic Community
                                                           (73/313/EEC)
THE COUNCIL OF THE EUROPEAN                                          Act ( 4 ) concerning the Conditions of Accession and
COMMUNITIES ,                                                        the adjustments to the Treaties, they do not apply to
                                                                     the relations between the new Member States and the
                                                                     Associated Overseas Countries and Territories and
Having regard to the Treaty establishing the EEC,                    the French Overseas Departments ;
and in particular Article 136 thereof;
                                                                     Whereas the Council, by adopting this Decision,
Having regard to the Internal Agreement (x) on the                   emphasises its concern to see the public opening of
Financing and Administration of Community Aids,                      tenders gradually become the rule for all categories
signed at Yaounde on 29 July 1969, and in particular                 of invitations to tender,
Article 1 thereof;
                                                                     HAS DECIDED AS FOLLOWS :
Whereas it had not been possible, in the Council
Decision of 29 September 1970 (2) on the association
of the Overseas Countries and Territories with the                                             Article 1
European Economic Community, amended by the
Decision of 18 October 1971 (3), to lay down the                     The following shall be substituted for Article 14 of
general clauses and conditions applicable to the                     Annex VI to the Decision of 29 September 1970 :
award and execution of public works and supply
contracts financed by the European Development                           'The general clauses and conditions applicable to
Fund in the Associated Overseas Countries and                            the award and execution of public works
Territories and the French Overseas Departments ;                        contracts financed by the Fund in the Countries
                                                                         and Territories shall be adopted in Annex XI.'
Whereas the necessary provisions have since been
drawn up and should be inserted in this Decision                                               Article 2
provided that, in accordance with Article 119 of the
                                                                     The following shall be substituted for Article 26 of
                                                                     the Decision of 29 September 1970 :
H OJ No L 282, 28 . 12. 1970, p . 47.
(2) OJ No L 282, 28 . 12 . 1970, p . 83 .
(3) OJ No L 243 , 29 . 10. 1971 , p . 27.                            (4) OJ No L 73 , 27. 3 . 1972, p . 14.
 ---pagebreak--- No L 287/2                         Official Journal of the European Communities                        14. 10 . 73
    'The provisions of this Title and of Annexes V,                                 Article 4
    VI, VII, X and XI to this Decision shall also apply
    to the French Overseas Departments.'                      This Decision shall apply to all public works and
                                                              supply contracts financed by the Community, and
                                                              concluded as from 1 October 1973 .
                       Article 3
                                                                                Article 5
An Annex XI shall be added to the Decision of 29
September 1970, the text of which is annexed to the           This Decision shall be published in the Official.
present Decision.                                             Journal of the European Communities.
              Done at Brussels, 24 July 1973 .
                                                                                For the Council
                                                                                The President
                                                                                I. N0RGAARD
 ---pagebreak--- 14 . 10 . 73                         Official Journal of the European Communities                           No L 287/3
                                                         ANNEX
                                                       ANNEX XI
              GENERAL CONDITIONS FOR PUBLIC WORKS AND SUPPLY CONTRACTS
                           FINANCED BY THE EUROPEAN DEVELOPMENT FUND
               Applied to contracts financed in the Associated Overseas Countries and Territories
                                                       CONTENTS
                                                         TITLE I
             PROVISIONS RELATING TO PUBLIC WORKS AND SUPPLY CONTRACTS FINANCED
                                      BY THE EUROPEAN DEVELOPMENT FUND
             CHAPTER I :      PRINCIPLES AND DEFINITIONS (Articles 1 to 15 )                              5
             CHAPTER II :     PROCEDURE FOR PREPARATION AND AWARD OF CONTRACTS
                              (Article 16)                                                                8
             Section I :      CONTRACTS BASED ON INVITATION TO TENDER (Articles 17
                              to 51 )                                                                     8
                              —  Publication (Articles 18 and 19 )                                        8
                              —  Invitation to tender (Articles 20 to 37)                                 9
                              —  Grouping into lots (Article 38)                                         12
                              —  Submission of tenders (Articles 39 to 41 )                              12
                              —   Opening of tenders (Articles 42 and 43 )                               13
                              —  Selection of contractor (Articles 44 and 45)                            14
                              —  Variations (Article 46)                                                 15
                              —  Notification of acceptance of contract (Article 47)                     15
                              —  Invitation to tender with competition (Articles 48 to 51 )              16
             Section II :     MUTUAL AGREEMENT CONTRACTS (Articles 52 to 54)                             16
                              — Instrument of contract (Article 54)                                      17
             CHAPTER III : SETTLEMENT OF DISPUTES (Article 55 )                                          17
                                                         TITLE II
                          CONTRACTUAL, ADMINISTRATIVE AND TECHNICAL CLAUSES
             CHAPTER I :      CLAUSES COMMON TO ALL CONTRACTS                                            17
             Section I:       PERFORMANCE OF CONTRACTS (Articles 56 to 93 )                              17
                              — Official responsible for directing performance of the contract (Ar
                                 ticles 56 and 57)                                                       17
                              — Plans, documents and objects (Article 58)                                18
                              — Detailed plans and performance plans (Article 59)                        18
                              — Quality of works and supplies (Article 60)                               18
                              — Supervision and inspection of preparations and manufacture (Ar
                                  ticle 61 )                                                             19
                              — Guarantee of contract by means of a deposit or a directly liable
                                  guarantor (Articles 62 to 64)                                          19
                              — Failure to establish a deposit or to provide a directly liable guarantor
                                  (Article 65 )                                                          19
                              — Right of the administration over the deposit or the directly liable
                                 guarantor (Article 66)                                                  20
                              — Return of deposit or discharge of the directly liable guarantor (Ar
                                 ticle 67)                                                               20
                              — Assignment, sub-contracting and sub-ordering (Article 68)                20
                              — Simultaneous contracts (Article 69 )                                     21
 ---pagebreak--- No L 287/4                     Official Journal of the European Communities                              14. 10. 73
                         —  Order to commence performance of contract (Article 70)                   21
                         —  Orders of the Administration (Article 71 )                               21
                         —  Patents and licences (Article 72)                                        21
                         —  Payment of contracts (Articles 73 and 74)                                21
                         —  Advances ( Article 75 )                                                  22
                         —  Reimbursement of advances (Article 76)                                   22
                         —  Partial payments (Articles 77 and 78)                                    22
                         —  Revision of prices (Articles 79 to 82)                                   22
                         —  Rules for payment (Articles 83 to 88)                                    23
                            — Payment for works (Article 83)                                         23
                            — Payment for supplies (Article 84)                                      23
                            — Payment in the event of attachment (Article 85)                        24
                            — Interest in respect of delay in payments (Article 86)                  24
                            — Payment for the benefit of third parties (Article 87)                  24
                            — Notification to third parties (Article 88)                             24
                         —  Preliminary technical acceptance (Article 89)                            24
                         —   Claims by the contractor (Articles 90 and 91 )                          25
                         —  Period of guarantee : maintenance, repair and replacement (Article 92)   25
                         —   Cessation or postponement of performance of contract (Article 93) ....  26
           Section II :  COMPLETION OF CONTRACTS (Articles 94 to 96)                                 27
                         — Non-performance of contract (Article 94)                                  27
                         — Decease (Article 95 )                                                     27
                         — Specific grounds for remission (Article 96)                               27
           CHAPTER II :  CLAUSES      RELATING      SPECIFICALLY      TO    WORKS   CONTRACTS
                         (Articles 97 to 122)                                                        28
           Section I :   PRELIMINARY PROVISIONS (Articles 97 and 98 )                                28
                         — Address for service of the contractor and representation (Article 99)     29
           Section II :  PERFORMANCE OF CONTRACT (Articles 100 to 116)                               29
                         — Checking of materials and supplies (Article 100)                          29
                         — Special situations (Article 101)                                          31
                         —   General measures (Article 102)                                          31
                         —   Outline of works (Article 103 )                                         32
                         —   Occupation of land or premises (Article 104)                            32
                         —   Materials obtained from demolition (Article 105 )                       32
                         —   Temporary works and soil studies (Article 106)                          32
                         —   Staff for the undertaking (Article 107)                                 33
                         — Record of work — Daily statements of materials used and work done
                             (Article 108)                                                           33
                         —   Insurance (Article 109 )                                                33
                         —   Unforeseen work and modifications to the contract (Article 110) ... .   34
                         —   Increase in the volume of work (Article 111 )                           34
                         —   Reduction in the volume of work (Article 112)                           34
                         — Change in the quantities of the various items in the itemized estimate
                             (Articles 113 and 114)                                                  34
                         — Use of works by the administration (Article 115)                          35
                         — Acceptance (Article 116)                                                  35
           Section III :  COMPLETION OF CONTRACTS (Articles 117 to 122)                               36
                         —   Responsibility of the contractor (Article 117)                          36
                         —   Fraud and faulty workmanship (Article 118)                              36
                         —   Non-performance of contract by contractor (Article 119)                 36
                         —   Finding of non-performance attributable to the contractor (Article 120) 36
 ---pagebreak--- 14. 10. 73                              Official Journal of the European Communities                               No L 287/5
                                  — Sanctions for non-performance attributable to the contractor (Ar
                                     ticle 121 )                       .                                        36
                                  — Recovery of penalties (Article 122)                                         37
               CHAPTER III :      CLAUSES        RELATING   SPECIFICALLY         TO    SUPPLY    CONTRACTS
                                  (Articles 123 to 137)                                                         38
               Section I :        PRELIMINARY PROVISIONS (Articles 123 to 126)                                  38
                                  — Elements included in the prices of all supply contracts (Article 123 ) . .  38
                                  — Verification by contractor of technical documents made available to
                                     him (Article 124)                                                          38
                                  — Address for service of the contractor and representation (Article 125)      38
                                  — Overlapping contracts (Article 126)                                         38
               Section II:        PERFORMANCE OF CONTRACTS ( Articles 127 to 130)                               38
                                  — Identifications (Article 127)                                               38
                                  — Technical modifications during execution of contract (Article 128 ) . .     38
                                  — Tests and check-tests (Article 129)                                         39
                                  — Delivery (Article 130)                                                      40
               Section III :      TERMINATION OF CONTRACTS — ACCEPTANCE (Articles 131
                                  to 137                                                                        40
                                  —  Verification operations (Article 131)                                      40
                                  —  Postponements, price reduction penalties, rejections (Article 132) ....    40
                                  —  Marking and removal of postponed or rejected supplies (Article 133 )       41
                                  —  Acceptance (Article 134)                                                   42
                                  —  Non-performance of contract by contractor (Article 135)                    42
                                  —  Sanctions for non-performance attributable to the contractor
                                      (Article 136)                                                             42
                                  — Recovery of penalties (Article 137)                                         43
                                                            TITLE 1
                 PROVISIONS RELATING TO PUBLIC WORKS AND SUPPLY CONTRACTS
                             FINANCED BY THE EUROPEAN DEVELOPMENT FUND
                         CHAPTER I                                   2 . General administrative and technical contractual
                                                                           clauses relating to the performance of contracts.
            PRINCIPLES AND DEFINITIONS                                     These clauses shall apply to all contracts and
                                                                          reference shall be made to them in the Special
                                                                           Conditions .
                           Article 1
Public works and supply contracts financed by the
                                                                                Article 3
European Development Fund shall be governed by :
1 . These general conditions ;                                       The Special Conditions shall comprise :
2 . The Special Conditions.                                          ( a ) special contractual clauses applicable to each
                                                                            contract :
                           Article 2                                 ( b ) all references to technical conditions applicable
                                                                            to contracts relating to the same type of works or
These general conditions shall comprise:                                    supplies ;
1 . Regulations laying down the principles and                       ( c) an indication of those contractual provisions of
    conditions for the preparation and award of                             the general conditions which are not applicable,
    contracts ; no derogation may be made from these                        taking into account the special requirements of
    provisions ;                                                            the contract concerned.
 ---pagebreak--- No L 287/ 6                           Official Journal of the European Communities                             14. 10 . 73
                          Article 4                                 by determining the value of each item for overall
                                                                    price contracts, or by applying unit prices to the
For the purpose of implementing these general                       quantities planned for the same items for unit
conditions, irrespective of the manner in which con                price contracts.
tracts are awarded, the following definitions shall
apply :                                                             The firm quantity shall be the quantity stated by
                                                                    the administration in the itemized estimate and for
1 . Contract: any contract awarded by the State, any                which the contractor has submitted an overall
     regional or local authority or any legal person                price, which shall be paid to him irrespective of
     governed by public law, having as its objective the            the quantity actually supplied.
     construction of works or the provision of supplies ;
                                                                    The estimated quantity shall be a quantity stated
     — Works contracts                                              by the administration in the itemized estimate. It
         Contracts, the object of which is the building             shall be a quantitative estimate of the work to be
         of    infrastructural    works   or    immovable           carried out and shall be a contributory factor in
         property, in which the provision of supplies is            determining the unit price to be applicable to the
         only of secondary importance and the                       quantities actually supplied.
         assessment of the value of supplies is included
         in the cost of the work;
     — Supply contracts                                                                  Article S
          Contracts, the object of which is the provision
         of movable property which may be used either            1.    Any natural or legal person having the
         in its existing state or in conjunction with            nationality of a Member State or Associated State
         works, the nature and value of which are of             shall be eligible to participate on equal terms in
         secondary importance in relation to the main            contracts financed by the European Development
         object of the contract ;                                Fund .
2 . Member       States :  the   Member    States  of   the
                                                                 2.    The tenders shall be adjudicated on equal terms
     European Economic Community ;                               in order to avoid any obstacle to participation in
                                                                 invitations to tender and the allocation of contracts .
3 . Associated States :      the  Overseas   Countries   of
     Territories associated with the European                    To this end, documents inviting tenders may not
     Economic Community and the French Overseas                  contain any specification such as may give rise to
     Departments which are recipients of aid from the            discrimination between tenderers .
     European Development Fund ;
4. Administration : the State, regional or local                 3.    Works contracts may however be awarded by
     authority or any legal person governed by public            an accelerated procedure for inviting tenders when,
     law on behalf of which or whom the contract is              by reason of the small amount involved, they are of
     concluded ;                                                 principal interest to the undertakings of a benefiting
                                                                 Associated State or another Associated State in the
                                                                 same region .
5 . Tenderer: any natural or legal person submitting a
     tender with a view to concluding a contract;
                                                                 4.    Invitations to tender for supply contracts may
6 . Contractor : the tenderer with whom the contract             lay down the degree of protection to be provided for
     is concluded ;                                              in the adjudication of tenders of an equal economic
                                                                 and technical quality, in order to encourage the
7. Price list: the document containing the statement             participation of the industrial or small craft
     of the unit prices applicable to the undertaking in         undertakings of the benefiting Associated State or
     respect of each of the various categories of work           another Associated State in the same region.
      to be carried out ;
 8 . Itemized estimate: the document containing a                                        Article 6
     breakdown , item by item, of the firm or estimated
     quantities together with a definite price, and an           Contracts concluded by the administration shall be
      assessment of the total expenditure obtained either         awarded on a competitive basis .
 ---pagebreak---  14. 10 . 73                         Official Journal of the European Communities                               No L 287/7
                         Article 7                              ( a) notwithstanding the completion of a procedure
                                                                      prior to the conclusion of the contract, either
1.      The contracts concluded by the administration                 decide not to       award the contract or order
shall be awarded at an agreed price.                                  recommencement of the procedure, if necessary
                                                                      using another method;
2.      The fact that contracts are to be awarded at an
                                                                (b) in the event of the contract comprising two or
agreed price shall not preclude prices being revised in               more lots, only award some lots and, possibly,
keeping with specific fiscal, economic or social                      decide that the other lots will be the subject of
factors . The procedures for revising the prices shall                another contract or other contracts, if necessary
be expressly laid down in the contract documents .                    using another method.
3 . In addition, and by way of exception, contracts
may be awarded without prices being fixed by                    2 . The annulment of the procedure for inviting
agreement :
                                                                tenders, provided for in paragraph 1 ( a) and (b) may
                                                                only be applied in the following cases :
( a) for work or supplies of a complex nature or                — if     no    tender   is   received   which   meets   the
      involving     a    new     technique     presenting            conditions set out in the invitation to tender;
      considerable technical hazards which necessitate
      commencing work before all the conditions for             — if the economic or technical data of the project
      completing it can be determined ;                              have been fundamentally altered ;
( b ) in   the  event   of exceptional,     unforeseeable       — if      exceptional     circumstances   render   normal
      circumstances, when the contracts relate to work               performance of the contract impossible ;
      or supplies which are urgent, and for which it is
      impossible to determine the nature and the                — if the tenders received do not correspond to the
      means of execution .                                           financial resources set for the contract, or
                                                                — if       the    tenders     received   contain   serious
                                                                     irregularities preventing         competition    from
                                                                     functioning normally.
                         Article 8
1.      Contracts may not provide for part payments             3.     In the event of the procedure for inviting
except where a service has been given and accepted.             tenders being annulled, the tenderers shall not be
According to the provisions laid down in the                    entitled to compensation .
contract, part payments shall also be allowed in
respect of supplies provided for the execution of the
contract and inspected by the administration.                                             Article 11
Nevertheless, advances may be granted in accordance
with the conditions and procedures laid down in                While the contract is being executed, the
these general terms and conditions.                             administration may unilaterally amend the initial
                                                                project, provided that it does not change the purpose
                                                                of the contract and that it gives fair compensation
2.      Payments for the work carried out by the                where appropriate .
contractor shall be made either by instalment or as a
final payment as and when the work is completed.
                                                                                Article 12
                         Article 9
                                                                The contracts may be classified as follows, according
                                                                to the way in which the prices are determined :
The payment of advances or instalments shall not be
regarded as final payments ; the recipient shall owe           — overall price contracts ;
them until final settlement of the contract.
                                                                — unit price contracts ;
                                                                — repayment contracts, and
                        Article 10                              — composite contracts .
1.     Before awarding the contract, the administra            1 . In an overall price contract the agreed price covers
tion may :                                                          all the services provided for in the contract.
 ---pagebreak--- No L 287/ 8                         Official Journal of the European Communities                              14 . 10 . 73
2 . In a unit price contract the works or services are         time-limit fixed in months not having a day with the
    broken down into separate items, stating the unit          same number as the date which it began, the
    price proposed for each item.                              time limit shall end on the last day of that month.
    The unit price shall be agreed. The price of the           If the last day of a time limit falls on a Sunday or a
    contract shall be determined by applying the unit          public holiday established by law, the time limit shall
    prices to the quantities of works or services              be extended until the end of the next working day.
    provided for.
3 . In a repayment contract the works or services                                     CHAPTER II
    carried out are paid for by the administration,
                                                                       PROCEDURE FOR PREPARATION AND
    after inspection by them, on the basis of the cost
                                                                              AWARD OF CONTRACTS
    price and the supplements in lieu of profit.
4. In a composite contract the prices are fixed by two                                 Article 16
    or more of the methods referred to under 1 , 2
    and 3 .
                                                               Contracts shall be awarded on invitation to tender.
                                                               By way of exception, they may be awarded by
                       Article 13                              mutual agreement in the cases provided for in
                                                               Article 53 .
In the cases provided for in Article 7 (3 ), the contract
shall be concluded :                                                                    Section I
1 . on a repayment basis in           accordance     with               CONTRACTS BASED ON INVITATION
    paragraph 3 of Article 12 ; or                                                    TO TENDER
2 . on the basis of provisional prices initially and then
    of agreed prices . The agreed prices shall be                                      Article 17
    determined not later than the time at which the
    conditions for performing the contract are known ;         The invitation to tender shall be open or restricted.
    or
                                                               The open invitation to tender shall involve a public
3 . partly on repayment basis and partly on an agreed          invitation to competition.
    prices basis.
                                                               The restricted invitation to tender shall be made only
                                                               to those applicants which the administration decides
                       Article 14                              to consult, possibly following a preselection
                                                               procedure decided on with particular reference to the
1.     If the invitation to tender so provides, the            special nature or the quantity of the services to be
                                                               carried out.
administration may ask tenderers to supply any
information which will allow it to assess the prices
tendered .
                                                                                Publication
2. The contractor shall be obliged to supply the
administration with any information to enable the                                       Article 18
settlement price in the cases provided for in Article
13 to be verified .                                            1.     The notice of open invitation to tender, drawn
                                                               up by the administration, shall be published in
                                                               accordance with the rules appropriate for providing
                       Article 15                              the widest distribution of information .
The time limits referred to in these general terms and         2.     In the event of a restricted invitation to tender,
conditions, the Special Conditions and the contract            if a preselection procedure is envisaged, the notice of
documents shall begin to run at the beginning of the           invitation to tender shall set out the terms of the
day following the date of the act or deed which                procedure and shall be published in accordance with
serves as the point of commencement for this time              paragraph 1 .
limit.
Where the time limit is fixed in days, it shall expire at                               Article 19
the end of the last day of the time limit laid down.
                                                               The notice of invitation to tender shall state in
Where the time limit is fixed in months, it shall end          particular :
on the day having the same number as the day on
which it began. In the event of the last month of a              1 . the nature of the invitation to tender;
 ---pagebreak---  14. 10 . 73                           Official Journal of the European Communities                              No L 287/9
   2 . the purpose of the contract ; the location of the
        works and supplies, its source of financing and                — means of access ;
        the time limit within which it is to be executed ;             — situation of the works site ;
   3 . the    administration   on   behalf   of  which   the           — customs and fiscal regulations, in order to
        contract is to be concluded;                                        allow the tenderer to calculate their incidence
                                                                            on the amount of his tender, and
  4. the place where the invitation to tender may be
        inspected and the terms on which it may be made                — wage scales, including an indication of
        available ;                                                         minimum wage levels laid down by national
                                                                            law or customary in the place where the
  5 . the place at which and the time limit within                          contract is to be performed, corresponding to
        which the tenders are to be received ;                              the main local categories of labour required for
                                                                            the work;
  6 . the time-limit, reckoned from the final date set
        for the receipt of tenders, during which tenderers         6 . the address of the relevant departments from
        shall remain bound by their tenders ; except in                which the tenderer may obtain any additional
        special cases, this time limit shall be of three                information which it would be in his interest to
        months ;                                                       obtain .
  7. the date, time and place of opening of the
                                                                                Article 21
        tenders ;
   8 . the conditions for taking part in the invitation to        Four months in the case of works contracts and three
        tender ;                                                   months in the case of supply contracts shall elapse
                                                                   between the date of publication of the notice of
  9 . the possibility of submitting variations when                invitation to tender and the final date for the receipt
        authorized and                                            of tenders .
                                                                  Nevertheless, this period may be reduced or extended
 10 . possibly, in the case of works contracts, the
                                                                  to correspond with the nature of the invitation to
        approximate estimate of the work total .
                                                                  tender and the subject of the contract.
                    The invitation to tender                                                Article 22
                                                                  1.       Any natural or legal person who is a national of
                           Article 20                             a Member State or of an Associated State and able to
                                                                  prove that he meets the necessary legal, technical and
The invitation to tender must contain the following :             financial requirements, may participate in the
                                                                  invitation to tenders .
1 . the notice of the invitation to tender;
                                                                  In the case of supply contracts, participation in the
2 . the Special Conditions, the annexes thereto, and a            invitation to tenders is also open to any natural or
      sample tender ;                                             legal person who is a national of a third country and
                                                                  who can prove that he is in possession of a contract
3 . for a unit price contract : an outline price list and         by virtue of which, at the date of the invitation to
      an outline itemized estimate ;                              tender, he is sole agent for products originating in the
                                                                  Member States or the associated countries .
4. for an overall price contract : an outline of the
      breakdown of the overall price ;                            2.      The following natural or legal persons shall not
                                                                  be entitled to participate in the invitation to tender :
5 . by way of information, and without being binding
      upon the administration, a 'General Information             ( a) any who are bankrupt ;
      Sheet' brought up-to-date at the time of                    ( b ) any who are in a situation of suspension of
      publication or distribution of the invitation to                   payments established by judgment of a court
      tender and containing, in particular, the following                other than bankruptcy, and resulting, in
      points :                                                           accordance with their national laws, in the total
      — geographical notes ;                                             or partial loss of the right to administer and
                                                                         dispose of their property ;
      — notes and the climate ;
                                                                  ( c) any against whom legal proceedings have been
      — monetary system and organization of banks ;                      instituted involving a declaration of suspension
 ---pagebreak--- No L 287/ 10                          Official Journal of the European Communities                             14. 10 . 73
      of payments and which may result, in accordance            tender. This permit shall expire at the end of a period
      with their national laws, in a declaration of              of one month following the publication of the name
      bankruptcy or in any other situation entailing the         of the successful competitor by the administration .
      total or partial loss of the right to administer and
      dispose of their property ;
                                                                                Article 25
( d) any who have been convicted, under a final
      judgment, of any offence affecting their
      professional conduct ;                                     The tender, which shall be drawn up in the language
                                                                 prescribed in the invitation to tender, shall be signed
(e) any who are guilty of serious misrepresentation              by the tenderer or by his agent. It shall be drawn up
      with regard to information required for                    in a single original bearing the word 'original'.
      participation in the invitation to tender.
                                                                 The special conditions shall state in addition the
                                                                 number of copies to be supplied by the tenderer. The
                         Article 23
                                                                 copies shall be signed in the same way as the original
                                                                 and shall bear the word 'copy'.
In order to provide proof of his standing and ability,
the tenderer shall, if the administration so requires,
                                                                                Article 26
supply the following :
1 . any document dated not more than three months                Tenders submitted by agents must state the name of
    previously, which establishes, in accordance with            the principal or principals on whose behalf they are
    his national law, that he meets the conditions               acting. No agent may represent more than one
    listed in Article 22 ( 1 ), and that none of the             tenderer. The agents shall attach to the tender
    situations referred to in Article 22 (2) ( a), (b), (c)      the probative instrument or the informally executed
    and ( d) applies to him ;                                    document which empowers them to act on behalf of
                                                                 the tenderers. The signatures to the deed under
                                                                 private seal must be legalized.
2. references certifying to the financial resources
    available to him for the purpose of executing the
    contract and, in the case of a company or firm, a
    copy of its articles of association and the                                          Article 27
    credentials of the person authorized to enter into
    commitments on its behalf ;                                  Where the tender is submitted by a group without
                                                                 legal personality, made up of several natural or legal
3 . a statement setting out his technical resources,             persons, it shall be signed by each of those persons,
    indicating work which he has carried out and                 who shall accept joint and several liability and
    supplies which he has delivered or in the                    appoint one of their number to represent the group
    execution of which he has participated; he shall             vis-à-vis the administration .
    attach to this statement any certificates referring to
    and assessing his activities and, where applicable,          The representative or representatives of this group
    certificates issued by a qualifying and classifying          must, in so far as each is concerned, provide the
    body approved by the administration of the                   proof required under Article 23 , as if they were
                                                                 themselves the tenderer.
    Member State or associated country of which he is
    a national or in which he has a permanent branch ;
                                                                                Article 28
4. a statement concerning the labour force and
    equipment that he intends to use to fulfil the
     contract ;
                                                                 Any erasures, interlineations, additional details or
                                                                  amendments, both in the tender and in its annexes,
                                                                 which could influence the basic terms of the contract,
5 . any relevant information about his producers,                such as prices, time limits and technical conditions,
     suppliers and the origin of his supplies.
                                                                 must be subject to alterations approved and signed
                                                                  by the tenderer or his agent.
                          Article 24
                                                                                Article 29
 For the purpose of carrying out studies in
 preparation for the tenders, the associated country              1.    Where the invitation to tender for a works
 shall grant a temporary residence permit to any                  contract contains an outline itemized estimate, the
 person, or his agent, participating in an invitation to          latter shall specify whether the quantities indicated
 ---pagebreak--- 14 . 10 . 73                         Official Journal of the European Communities                          No L 287/ 11
for each item are firm or estimated quantities . The            Save where there is express authorization in        the
tenderer shall make good any omissions in the                   Special Conditions the quantities referred to in    the
itemized estimate and correct such errors as he may             itemized estimate may not be amended by             the
find in the firm quantities, taking into account the            tenderer, regardless of whether such quantities     are
plans, the special conditions, his knowledge or                 firm or estimated .
personal findings. He shall attach to his tender a note
setting out the reason for such amendments .
                                                                2 . A supply contract for which the itemized
                                                                estimate comprises only items with constant
He shall adopt a similar procedure for the correction           quantities shall constitute an overall price
of the estimated quantities in respect of which the             undertaking.
specific conditions authorize such a correction,
provided that the proposed rectification amounts to
at least 10 % of the item under consideration .                 If the itemized estimate does not refer to any
                                                                quantity, or if the quantities therein are only
                                                                estimated, in particular where the Special Conditions
The administration has the right to decide :                    provide for a certain margin in respect of the
( a) that the estimated quantity thus reduced becomes           quantities to be supplied, or where the administration
      binding upon the originator of the reduction ;            reserves the right to adapt its orders to its
                                                                requirements, the contract shall be a unit price
( b ) that the unit price stated in the itemized estimate       contract .
      for the quantity which has become firm does not
      constitute the basis for determining the
      deductions necessitated by modifications ordered                                 Article 31
      during the performance of the contract.
The contractor who is the author of the reduction
                                                                Tenders in respect of public works contracts shall be
shall be informed of these decisions when notification
                                                                expressed in the currency of the country.
is given of approval of the contract.
                                                                                Article 32
2.     The    tenderer   shall   include   the   requisite
information in the itemized estimate, make the
necessary calculations, sign the document and attach            Tenders in respect of supply contracts shall be
it to his tender, in which he shall mention the overall         expressed either in the currency of the country or in
amount of the itemized estimate .                               the currency of the Member State or Associated State
                                                                of which the tenderer is a national or in which he has
                                                                his registered place of business, or in the currency of
3.     The unit prices must be determined in such a             the Member State or Associated State in which the
way as to correspond with the relative value of each            supplies are produced.
item in relation to the total amount of the tender.
They must in particular not be of such a nature as to
distort the comparison of tenders or to result in the                                  Article 33
payment of part payments which are clearly
disproprortionate to the normal value of the services
rendered .                                                      For the comparison of tenders, prices submitted in a
                                                                currency other than the currency of the country shall
                                                                be converted on the basis of the parity declared to
                                                                the International Monetary Fund.
                        Article 30                              However, in the absence of a declared parity or in the
                                                                event of the application to current payments of rates
1.     Tenders relating to supply contracts shall state         of exchange which diverge from this parity by a
the unit price, the amount per article and the total            margin greater than that authorized by the
amount of each lot.                                             International Monetary Fund, prices of tenders will
                                                                be compared on the basis of the rates of exchange
Where the invitation to tender contains an itemized             applicable for current payments .
estimate, the tenderer shall include therein the
requisite     information ,    make      the    necessary       These parities or rates of exchange shall be those in
arithmetical calculations, sign the document and                force on the first working day of the month
attach it to his tender, in which he shall mention the          preceding the month in which the date fixed for the
overall amount of the itemized estimate.                        opening of tenders occurs .
 ---pagebreak---   No L 287 / 12                      Official Journal of the European Communities                              14 . 10 . 73
                         Article 34                              number which may be offered by one and the same
                                                                tenderer.
 With regard to public works contracts, the price
 offered by the tenderer shall include all entry duties,         A tender shall be submitted in respect of each lot.
 charges and taxes payable in the Associated State in
  connection with the performance of the contract as            However, the tenderer may submit a tender relating
 defined in the ' General Information Sheet' referred to        to several lots, provided that he tenders therein for
 in item 5 of Article 20 .                                      each lot separately. This condition need not be
                                                                observed, however, if the lots are identical.
                         Article 35
                                                                Unless the Special Conditions otherwise prescribe, the
                                                                tenderer may supplement his offers by referring to
                                                                the overall rebate he would grant in the event of
With regard to supply contracts, the tenderer shall,            certain lots for which he has submitted individual
 when calculating his tender, exclude stamp duty and            tenders being amalgamated .
 registration duty on contracts . Customs duties, entry
 duties and indirect charges on the import into or
 manufacture of the supplies in the Associated State            2.    Each lot shall be the subject of a separate
                                                                contract .
 shall be those referred to in Article 3 of Annex X.
                                                                However, the Special Conditions may lay down that
                                                                lots apportioned to the same tenderer, even if they
                        Article 36
                                                                differ, shall form a single contract, the period for the
                                                                performance of which it shall specify.
The total amount of the tender and the unit prices in
 the price list shall be written out in full . The same         3.    Where works or supply lots are apportioned to
 applies to the overall amount of each item of the              different contractors, the Special Conditions may
itemized estimate if the Special Conditions so require.         provide for the nomination of one contractor as joint
Where a price is stated in figures and in words and             agent to ensure coordination in the carrying out of
 there is a discrepancy between the two, the price              such works or supplies .
expressed in words shall be authentic.
                                                                The Special Conditions shall stipulate whether the
                                                                lots are the subject of separate contracts or whether
                        Article 37
                                                                they are grouped together in a single contract.
                                                                The allottees shall appoint one of their number to be
Persons tendering for a public works contract shall             the joint agent. He shall be jointly and severally
specifiy in their tender the percentage of the price of        liable with them for the performance of the lot or
the tender for which they request payment, on the               lots apportioned to each.
basis of the parities defined in Article 33 , in the
currency of the Member State or Associated State of
which they are nationals or in which they have their
registered place of business . They must be able to                               Submission of tenders
give reasons justifying the choice of this percentage.
Settlement of supply contracts shall be made in the
currency of the tender.                                                                 Article 39
                                                               1 . The tender, together with its annexes as laid
                    Grouping into lots                         down in the Special Conditions, shall be placed in a
                                                               sealed envelope called the inner envelope.
                        Article 38
                                                               This     envelope,    and the    supporting    documents
                                                               referred to in Article 23 , shall be put into another
1.      Should it be decided to divide up an invitation
to    tender  for   economic    and   technical  reasons,      sealed envelope, called the outer envelope, bearing
                                                               the address indicated in the notice of invitation to
account shall be taken of the advantage of grouping
                                                               tender, the reference to the notice of invitation to
the works and supplies into homogeneous lots which             tender to which it is a reply, where appropriate the
are as large as possible.                                      number of the lots referred to and the following
The Special Conditions shall stipulate the number of            words :    ' to    be    opened    only    during        an
lots , the nature or size of each lot and shall indicate,      envelope-opening session ', drafted in the language of
where appropriate, the minimum and maximum                     the invitation to tender .
 ---pagebreak---  14. 10 . 73                         Official Journal of the European Communities                             No L 287 / 13
 Envelopes containing tenders must be sent by post or            opened at the place, on the date and at the time fixed
 transmitted by any other means. The tenderer may                in the notice of invitation to tender, by a committee
 request an acknowledgement.                                     whose composition and operating procedures shall be
                                                                 laid down by the Associated State.
 On receipt, the envelopes, which must not bear any
 reference to the tenderer, shall be entered in a special
 register in the order of their arrival . The registration      Only those envelopes may qualifiy which have been
 number and the date and time of arrival shall be                received in accordance with the conditions specified
                                                                 in Articles 39 and 40 not later than the final date
recorded on the envelope. These envelopes must
 remain sealed until they are opened under the                   fixed for the receipt of tenders, without prejudice to
 conditions referred to in Article 42 .                          the provisions of paragraph 3 .
2.     With regard to supply contracts, the supporting          Minutes of the envelope-opening operations shall be
documents referred to in Article 23 shall be placed in          drawn up, giving details of:
the inner envelope.                                             — the number and condition of the envelopes
                                                                      received ;
                        Article 40
                                                                — the identity of the tenderers ;
Any tender may be withdrawn, supplemented or                     — the documents contained in the envelopes ;
 amended prior to the date fixed for the receipt of
tenders .                                                       — the amount of the tenders ;
Withdrawals , additions or amendments shall be                  — possible amendments or withdrawals of tenders .
stated in writing and signed by the tenderer or his
agent.                                                          The Minutes shall be signed by the Chairman, who
                                                                shall also endorse the documents contained in the
On pain of rendering the tender null and void,
amendments and additions must indicate precisely the            envelopes . These Minutes may not be made public or
intention and the extent of the desired change.                 communicated to any candidate.
Withdrawal must be unconditional .
                                                                2.       With regard to supply contracts, the envelopes
The provisions of Articles 28 and 39 relating to                shall be opened during a public session, at the
tenders shall be applicable to withdrawals, additions           conclusion of which the Chairman of the Committee
or amendments .                                                 shall read aloud the names of the tenderers, the
If a tenderer who has withdrawn his tender files a              amounts of the tenders, price amendments and
                                                                withdrawals . After this announcement the Committee
new one in the proper manner, he may refer therein
                                                                 shall continue its work in camera .
to the documents attached to the first tender which
he intends to use in support of the second .
                                                                3.       Envelopes arriving after the final date fixed for
                                                                the receipt of tenders shall be taken into
                        Article 41                              consideration only if :
                                                                ( a ) they were posted by registered mail no later than
Tenderers shall be bound by their tenders, where                       ten days before the final date fixed for the receipt
necessary corrected by the administration in                           of tenders ; and
accordance with Article 44 (2 ) and (3 ), during the
period laid down in the notice of invitation to tender.         ( b ) they reach the Chairman of the Committee
If, during the period, the administration considers that               responsible for opening the envelopes before he
it is not in a position to make a choice, it may                       has declared the session open .
propose, by means of a registered letter, the extension
of such period . The agreement of the tenderers must            If possible, envelopes which arrive late shall be
be conveyed to the administration by registered letter.         entered in the register by the Committee in
                                                                accordance with Article 39 .
                   Opening of tenders
                                                                                Article 43
                        Article 42
                                                               Without prejudice to the invalidity of any tender, the
1.    The      envelopes    containing     the   tenders ,      provisions of which might conflict with the essential
withdrawals,     amendments or additions shall be               requirements of these general conditions, in particular
 ---pagebreak--- No L 287/ 14                           Official Journal of the European Communities                                    14 . 10 . 73
those set out in Article 28 , the Committee may                             estimate, the Committee shall establish that
consider tenders which do not conform with the                              the correction was justified and, where neces
provisions of Articles 22 to 40, which express                              sary, rectify it according to its own calculations .
reservations or the elements of which clearly do not
                                                                            Tenderers who have not rectified omissions
correspond with reality, to be irregular and, hence, to
be null and void .                                                          shall   be   invited    by    registered   letter     to
                                                                            complete       their     tenders,     taking      into
                                                                            consideration the correction that has been
                                                                            allowed ;
                    Selection of contractor
                                                                      ( c) Where the Committee, on the basis of Article
                                                                            29 (3 ), finds the unit prices of a tender to be
                           Article 44
                                                                            apparently abnormal, it shall invite the
                                                                            tenderer concerned by registered letter to
                                                                            furnish an explanation of his unit prices .
1 . Before classifying the tenders, the Committee
shall eliminate candidates not qualified to tender or
whose qualifications are judged insufficient, in
                                                                                Article 45
accordance with the provisions of Articles 22 and 23 .
The reasons for acceptance or rejection given by the              1.      The    Committee      shall   recommend the most
Committee         shall be   mentioned      in   the    Minutes   economically          advantageous        tender      to      the
provided for in Article 45 (2).                                   administration, taking into account, in particular, the
                                                                  price of the services, the cost of their utilization, their
                                                                  technical value and the financial guarantees .
2.      The Committee shall then verify the results of
the arithmetical calculations contained in these                  2.      The discussions of the Committee shall be the
tenders . It shall correct obvious material errors or
                                                                  subject of Minutes which may not be made public or
mistakes in calculation and, in case of doubt, shall              communicated to any candidate. These Minutes shall
invite the tenderer by registered letter, to give further         be endorsed by the members of the Committee.
details of his tender.
                                                                  By way of information, the administration shall
The administration shall not be held responsible as a             notify the tenderer it has selected of its choice by
 result of the existence of errors which have not been
                                                                  registered letter, with acknowledgement of receipt, to
 detected .
                                                                  be posted before the expriy of the period laid down
                                                                  in Article 41 .
The tenderers may not take advantage of possible
defects of form in the tender, nor of any errors or               The selected tenderer shall remain bound by his offer
 omissions that it may contain .                                  for a further period of 40 days following the date of
                                                                  signature of the acknowledgement of receipt.
3 . ( a) Where a tenderer has amended the quantity of
          one or more items in the itemized estimate in           The administration shall also notify the other
          application of Article 29 , the Committee shall         tenderers by registered letter of the rejection of their
                                                                  tenders .
          check such amendments, rectify them
          according to its own calculations and apply
          them to the other tenders .                             The administration is not obliged to state the reasons
                                                                  for its choice .
          Should the Committee not be in a position to
          verify by its own calculations the                      The name of the contractor and the overall amount
          amendments to the quantities submitted for an           of      his    tender     shall    be    published     by      the
          item in a unit price contract, the special              administration .
          conditions    for which have         authorized the
          correction, it shall reduce to the proposed
          initial quantity tenders containing quantities          3.      The administration shall not enter into any
          greater than the proposed initial quantity, and         discussion with the candidates, save to request them
          shall leave unchanged any reductions made by            to specify or supplement the terms of their tenders.
          the tenderers, without prejudice to the
          provisions of Article 29 ( 1 ) ( a ) and ( b );         4.      Where      the   administration      decides    not      to
                                                                  proceed with an invitation to tender it shall notify the
    ( b ) Where a tenderer, in application of Article 29          tenderers thereof. It is not obliged to give reasons for
          ( 1 ), has rectified omissions in the itemized          its decision .
 ---pagebreak--- 14 . 10 . 73                          Official Journal of the European Communities                               No L 287/ 15
                          Variations                                  — the breakdown of the overall amount,
                                                                     — a technical note on the concept of the
                          Article 46                                        variation and, where necessary, a summary of
                                                                            the calculations .
If the invitation to tender has made provision for the
submission of variant solutions, the special conditions
must specify the subject, limits and basic conditions
thereof; in particular, it must state whether or not the                       Notification of acceptance of contract
submission of variations exempts the tenderer from
submitting a tender for the administrative solution .
                                                                                Article 47
Variant solutions may not derogate from the
requirements of the general conditions . They shall be
binding on the contestant in his capacity as author of                1 . ( a ) The contract shall be concluded when the
                                                                                tenderer is notified that his tender has
the project.
                                                                                been accepted. This notification must be
                                                                                within the period of 40 days laid down in
Submission of any variant solution must include :                                Article 45 (2) at the latest ;
( a ) for unit price contracts :                                          (b ) This notification shall be made by
                                                                                registered letter with acknowledgement of
      — an individual tender for each variation,                                 receipt. It shall be deemed to have been
                                                                                made by the mere act of posting the letter;
      — the draft amendments to the special
           conditions necessitated by the variation                       ( c) The letter of contract shall include in
           submitted by the tenderer,
                                                                                particular :
      — the price list as modified by the variation,                      — a list of the documents relating to the
                                                                                contract, together with their references,
      — the itemized estimate as modified by the
           variation,
                                                                          — all departures of the contract from these
                                                                                documents,
      — the preliminary survey of works provided for
           in the administration draft but not affected by
                                                                          — the contractual performance period,
           the variant solution,
                                                                          — the       amount     of  the   contract and   the
      — the preliminary survey of works affected by                             manner of payment,
           the variant solution,
                                                                          — the decisions taken by the administration
      — a technical note on the concept of the
                                                                                pursuant to Article 29,
          variation and, where appropriate, summary of
           the calculations .
                                                                          — the designation of the official instructed to
                                                                                direct performance of the contract, the
If the variant solution is adopted by the                                       administration to which he belongs and his
administration, the preliminary survey of works to                              authority regarding the performance of the
which it relates shall become a term of the contract                            contract,
and fixed . However, this preliminary survey shall
cease to be so in respect of variations in quantities                     — all other factors necessary for determining
which the implementation of the administrative                                  the obligations arising from the contract.
solution would in any case have entailed as a result
of the alteration of the basic suppositions ;
                                                                 2.    After the expiry of the period laid down in
                                                                 paragraph 1 ( a ), if notification of acceptance of the
( b ) for overall price contracts :                              contract has not been given, the tenderer selected
                                                                 shall be free to withdraw from the undertaking. This
      — an individual tender for each variation,                 withdrawal shall be addressed to the administration
                                                                 by registered letter with acknowledgement of receipt.
      — the draft amendments to the Special
           Conditions necessitated by the variation              Should the date of the belated notification of
           submitted by the tenderer,                            acceptance of the contract be the same as that of the
 ---pagebreak---  No L 287/ 16                       Official Journal of the European Communities                             14. 10 . 73
selected tenderer's withdrawal, the withdrawal shall           4. The schedule shall establish precisely the
be deemed to precede the notification.                         respective rights of the administration and the
                                                               competitors to the ownership and use of the projects .
In the event of withdrawal by the selected tenderer,
the administration may apply in turn to the other
tenderers according to the order of classification of                                 Article 50
their tenders or initiate a new procedure for the
invitation of tenders or, if necessary, negotiate a            The notice of invitation to tender with competition
contract by mutual agreement if the contract                   and the compilation of the file must comply with the
corresponds to one of the cases referred to in Article         provisions of Articles 18 , 19 and 20.
53 .
                                                                                Article 51
3 . If the tenderer has not taken the option of
withdrawal provided for in paragraph 2 before
notification of acceptance of the contract has been            The preparation of tenders, the procedure for their
given, he shall be bound by such notification.                 scrutiny, their classification and the notification of
However, if such notification is given more than               approval of the plan adopted shall comply with the
three months after the expiry of the period laid down          corresponding provisions relating to invitation to
in paragraph 1 , the tenderer shall be bound only if he        tender without competition, save which the schedule
records his agreement by registered letter within a            otherwise provides.
period of 15 days from the date of notification of
acceptance of the contract.
                                                                                Section II
                                                                         MUTUAL AGREEMENT CONTRACTS
          Invitation to tender with competition
                                                                                Article 52
                         Article 48
                                                               1 . The contract shall be designated a contract by
The invitation to tender may take the form of a               mutual agreement where the administration enters
competition.                                                  freely into such discussions as it may consider useful
                                                               and allots the contract to the undertaking or supplier
A competition procedure shall be adopted where                 whom it has accepted.
special investigations are justified for technical,
aesthetic or financial reasons .                              2. The administration shall be bound to arrange a
                                                               competition, as far as possible and by all appropriate
The competition shall take place on the basis of a            means, for undertakings or suppliers capable of
schedule drawn up by the administration.                       carrying out the service which is the subject of such
                                                               contract .
                        Article 49
                                                                                Article 53
1 . The competition shall be for the preparation of
a project and for its execution.                               Contracts by mutual agreement may be negotiated :
                                                                 1 . where the minor importance of the subject of the
2.    The committee instructed to examine tenders                    contract does not justify recourse to the normal
shall be called 'the board'. The composition of this                 procedure of prior competition ;
board shall be laid down in the competition schedule.
                                                                 2 . where no regular tenders have been received or
3 . The award of the contract shall be decided by                    where only unacceptable prices have been
the administration after receiving the opinion of the                proposed;
board .                                                          3 . for works or supplies the execution or
                                                                     manufacture of which is reserved exclusively for
The schedule may make provision for projects which                   persons holding patents or licences for
receive the best classifications, after the project                  inventions, improvements or importation, or for
adopted for the contract, to be granted prizes. Such                 works or supplies which can only be obtained
prizes shall be laid down in the schedule and allotted               from a single undertaking or supplier;
to the authors of such projects in accordance with the
order drawn up by the board. Prizes may be withheld              4. for works or supplies the execution of which
if the projects are not adjudged satisfactory.                       may, for reasons of technical necessity or
 ---pagebreak--- 14 . 10 . 73                          Official Journal of the European Communities                            No L 287/ 17
      significant prior investment, be entrusted to one                                 CHAPTER III
      specific undertaking or supplier only ;
                                                                               SETTLEMENT OF DISPUTES
 5 . where the works or supplies are carried out only
      in the form of research, tests, studies or
      improvements ;                                                                     Article 55
 6 . for works or supplies for which, in cases of                1.    Any     dispute    arising   either   between   the
      emergency, compliance with the time limits of              administration and a tenderer in connection with the
      the procedure for invitation of tenders is                 procedure for the award of a contract or between the
      impossible;                                                administration and the contractor resulting from the
  7 . where the prices submitted are, in fact, outside           interpretation or execution of a contract shall be
      the normal play of market forces ;                         settled by arbitration in accordance with the rules of
                                                                 arbitration adopted by the Council of the European
  8 . for additional works or supply contracts which             Communities acting unanimously on the basis of a
      cannot, for technical and economic reasons, be             draft from the Commission .
      separated from the principal contract or the cost
      of which does not exceed 20 % of that contract;            No dispute may be submitted to arbitration until all
  9 . for works or supply contracts in which, pursuant           possibility of review by administrative procedure, as
       to Article 13 , the prices can be determined only         laid down by national law have been exhausted. Such
      provisionally ;                                            possibilities shall be deemed to have been exhausted
                                                                 if no final decision by the administration has been
10 . in cases where, pursuant to Article 47, the                 taken within a period of four months from the date
       tenderer has withdrawn his tender.                        when the application for a review was lodged by the
                                                                 tenderer or contractor.
                  Instrument of contract                         The rules of arbitration provided for in the first
                                                                 subparagraph shall fix the period during which the
                                                                 request for a dispute to be settled must be introduced
                          Article 54                             under penalty of preclusion, before the arbitrating
                                                                 authority.
The instrument of a contract by mutual agreement
shall be a registered letter with acknowledgement of
receipt, by which the administration accepts the                 2.    The parties to a dispute arising in connection
tender of the undertaking or supplier.                           with the award or performance of contracts con
                                                                 cluded prior to the entry into force of these general
The letter of contract shall comply with Article 47 ( 1 )        conditions may also agree to submit such dispute to
                                                                 the arbitration procedure referred to in paragraph 1 .
                                                         TITLE II
                        CONTRACTUAL, ADMINISTRATIVE AND TECHNICAL CLAUSES
                         CHAPTER I                               administration to the contractor in the letter notifying
                                                                 him of award of the contract. This letter of contract
       CLAUSES COMMON TO ALL CONTRACTS                           shall also state, in accordance with Article 47 ( 1 ) (c),
                                                                 the authority of the official responsible for directing
                           Section I                             performance of the contract.
             PERFORMANCE OF CONTRACTS
                                                                                Article 57
 Official responsible for directing performance of the           The    contractor     shall   ensure   that  the  official
                           contract
                                                                 responsible for directing performance of the contract
                                                                 has free access to the place where the services of the
                           Article 56                            contract are performed, and shall provide him with
                                                                  any information that he requires. In the performance
The official responsible for directing performance of            of his duties, the official responsible for directing
the contract shall be made known by the                          performance of the contract shall be subject to the
 ---pagebreak--- No L 287/ 18                        Official Journal of the European Communities                              14 . 10 . 73
same . obligations as those laid down for the                  must be given. The same shall apply to the timetable
representative of the administration in the last               of performance and to the documents and objects
paragraph of Article 61 .                                      which must be submitted to the administration for
                                                               endorsement or acceptance.
                                                               Any delay by the contractor in submitting these
              Plans, documents and objects                     plans, documents and objects may, without formal
                                                               notice being given, result in the application of a
                        Article 58
                                                               penalty for each day of delay, the rate for which shall
                                                               be determined in the Special Conditions .
1.    After giving notification of acceptance of the           Any delay by the administration in approving or
contract, the administration shall provide the                 accepting these plans, documents or objects shall,
contractor, free of charge, with a verified and where          upon a substantiated request by the contractor, result
relevant corrected copy of the tender, the Special             in an extension of the period of performance equal
Conditions and the annexes thereto .                           to the length of the delay. If such extension of the
                                                               period of performance does not make good the injury
At the request of the contractor, the administration           suffered by the contractor, the latter may claim a
shall forward to him free of charge and postage paid           longer extension of the period of performance or
a complete set of copies of the plans it has drawn up          possibly an indemnity.
with a view to the performance of the contract. The
administration shall be responsible for the conformity         The Special Conditions may provide for a period of
of such copies with the originals .                            time during which the contractor must submit all or
                                                               part of these plans, documents and objects.
2.    The Special Conditions shall state the                   The Special Conditions may provide that the start of
documents and objects which may also be placed at             performance of the contract shall be subject to the
the disposal of the contractor at his request, in order        submission of all or part of the plans, documents and
to facilitate his work.                                        objects, and to the approval or acceptance thereof,
                                                               without this provision affecting the initial date of the
3 . After the expiry of eight days following the               contractual period .
provision of these documents and objects, the                  Unless otherwise specified in the Special Conditions,
contractor shall be deemed to have verified that they          the detailed plans, other documents and objects
conform with those which served as the basis for the
                                                               prepared by the contractor may not be reproduced or
invitation to tender and which are held by the                 used by the administration for another purpose nor
administration     for  use   in  connection   with  the
                                                               communicated to third parties .
acceptance of the works and supplies.
4.    The Special Conditions shall specify the date
and conditions for the return of these documents and                       Quality of works and supplies
objects .
                                                                                Article 60
5.    The contractor may purchase additional copies
of these plans, documents or objects, in so far as they       The works and objects or materials to be supplied
are available .                                                must correspond in all points to the technical
                                                              specifications laid down in the Special Conditions .
6.    The administration may not hand over these              They must conform in all respects with the plans,
plans, documents and objects prior to the                     drawings, surveys, models, samples, patterns, etc.,
establishment of the deposit or the commitment of              which have been held at the disposal of the
the directly liable guarantor provided for in Article         contractor for identification, in accordance with the
62 .                                                           Special Conditions, during the period of one month
                                                              following the date of notification of acceptance of the
                                                              contract .
          Detailed plans and performance plans                 Where materials and objects to be supplied are
                                                               defined at the same time by plans, samples and
                                                               models, and if the Special Conditions contain no
                        Article 59                             stipulation to the contrary, the plan shall determine
                                                               the form of the object, its dimensions and the
Detailed plans which the contractor must draw up               material from which it is made ; as regards the
and submit for the approval of the administration              finished article and the sample the model is to be
shall be referred to in the Special Conditions, which          taken into consideration only in respect of the quality
shall also state the time limit within such approval           of the material .
 ---pagebreak--- 14 . 10 . 73                        Official Journal of the European Communities                           No L 287/ 19
     Supervision and inspection of preparations and            clauses where the contract does not include a guaran
                      manufacture                              tee period and by 10 % where the contract contains
                                                               a guarantee period.
                       Article 61                              Within the above limits, and in accordance with the
                                                               provisions of the Special Conditions, the deposit or
The administration may arrange for the preparation             the commitment of the directly liable guarantor may
and manufacture of everything to be delivered to it to         be established progressively, as the contract is
be supervised and inspected.                                   executed .
To this end, it may have recourse to such tests as it
considers necessary from among those provided for                                       Article 63
in these contractual clauses, supplemented or
amended, where appropriate, by the Special                     The deposit shall be established in the currency of
Conditions, in order to establish whether the                  the contract. It shall be deposited in accordance with
materials, objects and supplies are of the requisite           national regulations.
quality and quantity. It may require the replacement
or repair, as the case may be, of items which do not           The directly liable guarantor shall be any body under
conform with the contract, even after they have been           public or private law established in an associated
placed in position.                                            country or in a Member State and empowered to
                                                               issue such a guarantee by the authorities under whose
The contractor may not seek to rely on the fact that           control it operates .
such supervision and inspection have been exercised
in order to avoid his responsibility in the event of the
works or supplies being rejected by reason of any                                       Article 64
defect whatsoever.
                                                               Save when there are special provisions in the Special
The contractor shall place at the disposal of the              Conditions, the establishment of the deposit or the
administration, provisionally and free of charge, the          commitment of the directly liable guarantor must
patterns and instruments specified in the Special              take place within one month from the date of the
Conditions which are considered necessary for                  notification of acceptance of the contract.
verifying and inspecting the work to be carried out
and the objects to be supplied.                                No payment may be made in favour of the contractor
                                                               prior to the establishment of the deposit or the
The representative of the administration, kept                 commitment of the directly liable guarantor.
informed by his supervisory and inspection activities
of the methods of manufacture and operation of the
undertakings, shall be under an obligation not to
disclose such information except to those members of
the administration who need to know of it.                      Failure to establish a deposit or to provide a directly
                                                                                liable guarantor
                                                                                Article 65
   Guarantee of contract by means of a deposit or a
                directly liable guarantor
                                                               If the contractor does not produce proof of the
                                                               establishment of the deposit or the commitment of
                        Article 62                             the directly liable guarantor within the period laid
                                                               down in Article 64, the administration shall have the
                                                               option of applying as of right the measures provided
Save where the Special Conditions otherwise provide,           for in Article 121 , point 2 and Article 136 (2).
the contractor shall be obliged to establish a deposit
or, if he so wishes, provide a directly liable guarantor
as guarantee of the sums of money which he is                  Before applying these measures, the administration
acknowledged as owing under the contract.                      shall send the contractor a registered letter giving
                                                               formal notice regarding the establishment of the
                                                               deposit or the commitment of the directly liable
The amount of the deposit or commitment of the                 guarantor. Such formal notice shall introduce a new
direcdy liable guarantor may not exceed 3 % of the             time-limit which may not be less than 10 calendar
original amount of the contract, increased where               days and which shall take effect from the date of
appropriate bv the amount set out in the additional            despatch of the letter.
 ---pagebreak--- No L 287/ 20                        Official Journal of the European Communities                              14. 10 . 73
    Right of the administration over the deposit or            half of the deposit will be returned or one half of the
                directly liable guarantor                      commitment of the directly liable guarantor be
                                                               discharged within one month of the date of the
                                                               provisional acceptance.
                        Article 66
                                                               In this case, paragraph 1 shall apply to that part of
1 . The administration shall as of right levy on the           the deposit not yet returned or to that part of the
deposit any amounts due from the contractor under              commitment of the directly liable guarantor not yet
the contract .                                                 discharged.
The deposit shall continue to be applied to meet the
obligations of the contractor until the contract has                Assignment, sub-contracting and sub-ordering
been performed completely.
Should a deposit guaranteeing performance of the                                      Article 68
contract cease to be constituted in full and should the
contractor remain in default in making good the
deficit, a deduction equal to the amount of the latter         1.    An assignment shall be an agreement by which
may be made on future payments and used to                     the contractor transfers his contract to a third party.
re-establish the deposit.                                      A sub-contract shall be an agreement by which the
                                                               contractor entrusts the performance of a part of his
2.    The directly liable guarantor shall pay off the          contract to a third party.
sums due from the contractor under the contract,
without being able to defer payment or raise any               A sub-order shall be an order made to a third party
objection for any reason whatsoever.                           by the contractor or by that third party himself to
                                                               another third party, with a view either to the
During the performance of the contract, if the                 manufacture of intermediate objects or materials
directly liable guarantor is not in a position to abide        which are to be incorporated in the works carried out
by its commitments, the administration shall treat it          or the supplies provided, or to the performance of
as terminated. It shall invite the contractor to provide       certain operations affecting the carrying out of such
a new guarantor which shall undertake liability                services .
within the same limits as the previous one.
Should the contractor fail to provide a new                   2.     The contractor may not assign or sub-contract
guarantor, the administration may cause the                    the contract without the express authorization of the
provisions of Article 65 to be applied.                        administration. Assignees or sub-contractors may be
                                                               only natural or legal persons who are nationals of the
                                                               Member States or Associated States .
   Return of deposit or discharge of the directly liable      Sub-orders may be concluded freely. Nevertheless,
                        guarantor                             the Special Conditions may make provision for the
                                                               prior authorization of the administration in respect of
                        Article 67                             certain sub-orders .
1.    The deposit shall be returned or the directly            3.    In all cases of sub-contracts and sub-orders the
liable guarantor discharged as a result of a                   administration shall acknowledge no legal connection
cancellation order issued by the administration within         with the sub-contractors and persons with whom
a period of one month following the date of final              sub-orders are placed, and the latter may not claim
acceptance of the works or supplies, in so far as the          settlement from the administration in respect of
contractor has by that date fulfilled his obligations          works or supplies which they have performed.
towards the administration .
                                                               The administration may make use of the rights laid
Upon the expiry of this period, the liability of the           clown in Article 61 with regard to services carried out
guarantor shall cease to have effect, even in the              or provided by sub-contractors or persons with
absence of a cancellation order, unless the                    whom sub-orders are placed.
administration has stated in a registered letter
addressed to the guarantor that the contractor has            4.     If, without being authorized to do so, the
not fulfilled all his obligations. In this case, the           contractor has assigned his contract, concluded a
guarantor may be discharged only by a cancellation             sub-contract or placed a sub-order for which
order issued by the administration .                           authorization was necessary, the administration may,
                                                               without giving formal notice thereof, apply as of
2.    However, in view of the special features of the          right the measures laid down in Article 121 point 2
contract, the Special Conditions may provide that one          and Article 136 (2).
 ---pagebreak---   14 . 10 . 73                      Official Journal of the European Communities                          No L 287/21
                  Simultaneous contracts                                    Orders of the Administration
                                                                                Article 71
                         Article 69
                                                               Orders of the administration must be in writing.
 1.      Subject to the application of such rules             They shall be dated, numbered and entered in a
 governing legal compensation as may be laid down              register.
 by national law, and without prejudice to the
 provisions of Article 126, each works or supply              The contractor shall comply with the orders of the
 contract and its performance by the contractor shall         administration drawn up by the official responsible
 be independent of all other works or supply contracts        for directing execution of the contract or by any
 of which the contractor is holder.                           other authorized representative of the administration.
                                                    *         Where the contractor considers that the requirements
 2.      Any difficulties arising with regard to one          of an order of the administration go beyond the
 contract may in no case authorize the contractor to          obligations under the contract, he must, on pain of
 amend or delay execution of the other contracts ;            being time barred, submit notice thereof in writing to
 similarly, the administration may not take advantage         the administration within 15 days . Unless the
 of such difficulties to suspend payments due under           administration orders otherwise, execution of the
 another contract.                                            order of the administration shall not be suspended
                                                              because of the objection.
        Order to commence performance of contract                               Patents and licences
                                                                                Article 72
                         Article 70
                                                              The contractor shall guarantee the administration
 The administration may not fix the date on which             against any claim resulting from the use, during the
 performance of the contract is to commence later             performance of the contract, of patents, licences,
 than the 120th day following notification of                 drawings, models, or factory or trade marks.
 acceptance of the contract.
                                                              Where the administration gives a description of all or
The order to commence performance of the contract             part of the works or supplies, without referring to the
 shall result either from the notification of acceptance      existence of a patent, licence, drawing, model, trade
 of the contract or from orders of the administration.        mark or trade name whose use is necessary in the
                                                              execution of such works or supplies, it shall bear all
                                                              costs and charges ; in this case, it shall guarantee the
Where the order to commence performance of the                successful tenderer against any appeal by the holder
contract results from the notification of acceptance of       resulting from such use.
the contract, a period of 20 days must elapse between
the notification of acceptance of the contract and the
beginning of the contractual period of performance .                           Payment of contracts
Where the order to commence performance of the                                       Article 73
contract results from orders of the administration, a
period of at least 20 days must elapse between the
date of notification of the orders of the administration     The      Special  Conditions     shall   determine    the
                                                              administrative   or  technical   conditions   to  which
and the beginning of the contractual period of
performance.                                                  payment of advances, instalments or payment of
                                                             balance is subject, in accordance with the rules of
                                                             entitlement set out below.
If the date fixed for the beginning of performance of
the contract does not fall within the period of 120
days provided for in the first paragraph, the                                       Article 74
contractor may demand the rescission of the contract
and/or reparation for damage he has suffered . The           Where the prices of works or supplies or the exact
contractor shall forfeit this right unless he makes use       conditions for determining them are not immediately
of it not later than 30 days following expiry of the          evident from the provisions of the contract, the latter
period of 120 days .                                         must, for the purpose of making its funds available
 ---pagebreak--- No L 287/22                           Official Journal of the European Communities                              14 . 10 . 73
and the payment of instalments, state a provisional              contract has reached 90 % of the original amount of
price which is either an overall price or a price                the latter .
corresponding with the basic services or the technical
stages or execution .                                            In all cases of rescission of the contract, for any
                                                                 reason whatsoever, the advances shall be settled
                                                                 immediately.
                           Advances                              The directly liable guarantor provided for in Article
                                                                 75 (5 ) shall be released as and when the advances are
                           Article 75                            reimbursed.
1.      Advances may be granted to the contractor for
operations preparatory to the performance of the                                      Partial payments
works or supplies which are the subject of the
contract, in the cases listed hereinafter :                                              Article 77
 ( a) as a lump-sum advance enabling him to meet                 Under the conditions laid down in the Special
      expenditure resulting from the start of the                Conditions, the administration must make partial
      contract ;
                                                                 payments to the contractor if the latter furnishes
 (b ) if he affords proof of the conclusion of a contract        proof that he has carried out one of the following
      for the purchase or order of plant, machines,              services :
      tools and materials necessary for the performance          1 . delivery at the building site or place of
      of the contract and of any other prior expenses                manufacture of materials which are to form part
      of a major kind, such as the acquisition of                    of the works or supplies stipulated in the contract,
      patents and study costs .                                      provided that they have been fully acquired and
                                                                     paid for by the contractor, that they have been
2.      The amount of the advances may not exceed                    recognized a c conforming to the requirements of
10 % of the original amount of the contract in                       the contract and that they are set out in batches in
respect of the lump-sum allowance and 20 % for all                   such a way that they may be checked by the
other advances .
                                                                     administration ;
3.      The particular conditions for granting and               2 . performance of operations intrinsic to the carrying
reimbursing advances shall be laid down in the                       out of works or supplies inspected by the
Special Conditions .                                                 administration .
4.      No advance may be made before the contractor
has furnished proof of the establishment of the                                          Article 78
deposit or the commitment of the directly liable
guarantor.                                                       Materials for which partial payments have been made
                                                                 shall remain the property of the contractor who may
5.      Any advance granted must be guaranteed in its            in no circumstances make use of them for other
entirety by the commitment of a directly liable                  works or supplies.
guarantor satisfying the conditions of Article 63 .
                                                                 However, the Special Conditions may lay down that,
                                                                 to set off partial payments, the ownership of the
                 Reimbursement of advances                       materials corresponding to such partial payments
                                                                 shall be transferred to the administration . In this
                           Article 76                            case, the contractor shall, nevertheless, assume the
                                                                 responsibility of trustee in respect of these materials .
Reimbursement of the lump-sum advance referred to
in Article 75 ( 1 ) ( a ) shall begin when the amount of                              Revision of prices
sums due under the contract has reached 60 % of the
original amount of the latter. It must be completed                                      Article 79
when 80 % of this amount has been reached .
Reimbursement of the advances referred to in Article             1.    Provision may be made for the revision of prices
75 ( 1 ) ( b ) shall be made by means of a deduction             with regard both to works contracts and supply
from the instalments and possibly from the balance               contracts .
owing to the contractor in accordance with the
procedure laid down in the Special Conditions .                  2.    Where prices may be revised under a . contract,
Reimbursement of such advances must be completed                 revision shall take place either at the request of the
at the latest when the amount of sums due under the              contractor or on the initiative of the administration,
 ---pagebreak---  14 . 10 . 73                        Official Journal of the European Communities                           No L 287/23
 by applying the procedures set out in the Special                                   Rules for payment
 Conditions . Such procedures may take into account a
 variation in the prices of manpower, services,
 materials and supplies, as well as of charges laid                                      Article 83
 down by law or administration action forming part
 of the unit prices .                                                           Payment for works
 Prices contained in the contractor's tender shall be
 deemed to have been arrived at on the basis of the             1.      Payment of both the instalments and the
 economic conditions in force on the reference date.            balance of the contract shall be made only when the
 This date shall be the first working day of the month           contractor has produced a statement of credit, dated,
 preceding that in which the final date for the receipt         signed and supported by a detailed work progress
 of tenders occurs .                                            report which, according to the contractor justifies the
                                                                requested payment.
3.      In the event of a delay in execution of the
works, which is attributable to the successful                  This progress report, compiled on the basis of the
tenderer, the lowest of the following three                     daily statements provided for in Article 108 , may
 coefficients will be applied during the period between         include :
the contractual date for the completion of the works
 and the actual date of completion (provisional                 ( a) quantities carried out in excess of the estimated
 acceptance):                                                         quantities contained in the itemized estimate of a
                                                                      unit price contract ;
— arithmetical average of the monthly coefficients
      for the last 12 months of the contractual period ;
                                                                ( b ) additional works performed in accordance with
— variation coefficient for the last month of the                     an order of the administration made by the
      contractual period ;                                            official responsible for directing performance of
                                                                      the contract ;
— variation coefficient established by applying the
      price variation procedure during the actual period        ( c ) works carried out at prices proposed by the
      of execution of the works .
                                                                      contractor and not yet accepted by the
                                                                      administration .
                         Article 80
                                                               2.      The administration shall verify and where
Application of the revision procedures shall be                necessary correct the work progress report; should
governed by the degree of variation of the contract             such report contain quantities the unit prices for
price, which must be equal to or more than the                  which have not yet been agreed by the parties, it shall
percentage of variation laid down in the Special                automatically determine the prices, all rights of the
Conditions . This percentage shall form the revision           contractor remaining unaffected .
threshold .
Once this threshold has been reached, the variation             After receiving each statement of credit it shall
resulting from application of the procedure shall be            prepare a certificate of payment at the earliest
fully taken into account.                                       opportunity, setting out the amount which it
                                                               considers effectively due, and shall inform the
                                                                contractor of the works for which payment is being
                         Article 81                            made .
Where advances have been granted and where,
pursuant to the second paragraph of Article 76, they           3.      Payment of sums due to the contractor shall be
are reimbursed by deduction from sums due for                  made within 90 calendar days of the date of receipt
partial payment or from the balance, the price                  of the statement of account by the administration .
revision clause shall apply only to the difference
between the initial amount of the instalment or
balance and the amount of the advance to be
deducted .                                                                   Payment for supplies
                         Article 82                                                     Article 84
The . periods for settling sums due in application of          With regard to supplies , payment shall be made
the price variation procedures shall be laid down in           within 90 calendar days of the due date as laid down
the Special Conditions .                                       in the Special Conditions .
 ---pagebreak--- No L 287/24                         Official Journal of the European Communities                             14. 10 . 73
Payment in the event of attachment                             performance of the contract, seek from the
                                                               administration either a summary progress report of
                       Article 85                              the work and supplies carried out, accompanied by
                                                               an estimate which shall not be binding upon the
In the event of a judgment ordering attachment                 administration, or a detailed account of rights
against the contractor, and without prejudice to the           enjoyed by the contractor; they may also request a
periods of 90 days laid down in Articles 83 and 84,            statement of the advances and instalments paid and a
the administration shall be given a period of 15               detailed report on information received relating to
                                                               such contract.
calendar days, starting from the day when it receives
notification of the lifting of the obstacle to payment,
to resume payments to the contractor.                          If a creditor, giving evidence of his capacity as such,
                                                               should make such a request by registered letter, the
                                                               administration shall be obliged to notify him, at the
Interest        in    respect       of     delay      in       same time as the contractor, of all amendments to the
                     payments                                  contract which affect the guarantee resulting from the
                                                               transfer of credit or collateral security.
                       Article 86
                                                               Beneficiaries of transfers of credit and collateral
If the period laid down for payment has been                   securities may not call for any information other than
exceeded, although the contract has not given rise to          that provided for in the first and second paragraphs,
dispute, the contractor shall benefit fully and without        nor may they intervene in the performance of the
formal notice from interest calculated pro rata on the         contract.
basis of the number of calendar days' delay at the
rediscount rate of the issuing institute of the
associated country, increased by 1 % per annum.                           Preliminary technical acceptance
This supplement to the rate shall be increased to
4-5 % per year as from the 91st day of delay.                                         Article 89
However, payment of the interest on delay shall be
subject to the submission by the contractor, not later         1.    If the Special Conditions lay down technical
than the 60th calendar day following the day for               conditions for the acceptance of materials or items
payment of the balance of the contract, of a written           which the contractor must incorporate in connection
                                                               with the works to be carried out or for the
request having the effect of a statement of account.
                                                               manufacture of objects that he must supply, such
A remission of the penalties for delay occurring after         materials or items must be received by the
payment of the balance may not be regarded as                  administration prior to their incorporation in the
constituting the payment of a new balance and shall            works .
not re-open the period provided for in the preceding
paragraph.                                                     The same shall apply if the Special Conditions make
                                                               provision for the manufacture of one or more
                                                               standard items and the examination of samples
Payment         for    the     benefit       of   third        before manufacture is to commence.
                        parties
                                                               Any preliminary technical acceptance shall be the
                        Article 87                             subject of a request sent by registered post by the
                                                               contractor to the administration ; such request shall
All orders for payment to third parties may be                 be made in accordance with the forms laid down by
carried out only after a transfer of credit or a               the administration, which must act upon it within
collateral security, in accordance with the relevant           the period provided for in the Special Conditions.
provisions of the laws of the Associated State where
the contract is performed .                                    The request shall indicate the specification of the
The transfer of credit or the collateral security shall        materials, items or samples submitted for acceptance
be notified to the administration by registered letter         and shall also indicate the number of the Special
with acknowledgement of receipt.                               Conditions, the number of the lot and the location
                                                               where acceptance is to take place.
     Notification to third parties                             Even if materials or items to be incorporated in the
                                                               works to be executed or in the manufacture of
                        Article 88                             objects to be supplied have been accepted in this way,
                                                               they may still be rejected and must be replaced
The contractor and the beneficiaries of transfers of           immediately by the contractor if a further
credit and collateral securities may, during the               examination reveals defects or faults .
 ---pagebreak---  14. 10 . 73                        Official Journal of the European Communities                            No L 287/25
2. The Special Conditions shall make provision for              ( a) before expiry of the contractual periods, in order
 all the procedures relating to preliminary technical                 to obtain an extension of the periods of
 acceptance, in particular, the period of time during                 performance or cancellation of the contract;
which the administration must take its decision to
 accept for reject materials, standard items and               ( b ) in order to obtain a variation of the contract or
samples, and also, in the event of this period being                  damages not later than 60 days after
exceeded, the administration's option to extend the
period of performance at the request of the                           — provisional acceptance of all works or sup
contractor .                                                              plies, or
                                                                      — acceptance of all supplies, where the contract
                 Claims by the contractor                                 provides for only one acceptance.
                        Article 90                                                         Article 91
1 . The contractor may avail himself of facts                  1 . The contractor shall have the right to obtain
 alleged against the administration and which would            remission of the penalties for delay referred to in
 involve him in delay and/or detriment in order to             Article 121 point 1 ( c) and Article 136 ( 1 ):
 obtain, where appropriate, an extension of the
periods of performance, the revision or rescission of          ( a) in whole or in part, if he proves that the delay is
the contract and/or damages.                                          due wholly or in part to acts by the
                                                                      administration or to the circumstances referred to
2.     In principle, the contractor shall not be entitled             in Article 90 ( 1 ) and (2);
to    make any amendment to the contractual
conditions as a result of circumstances which remain           (b) partially, if the administration considers that the
unknown to the administration .                                       amount of the penalties is disproportionate to the
                                                                      minimal importance of the works or supplies
However, an extension of the periods shall be                         thus delayed , provided however that the works
justified by circumstances which the contractor could                 and supplies carried out are capable of being
not reasonably foresee when the tender was filed or                   used normally and that the contractor has made
 the contract concluded, which he could not avoid                     every effort to complete his services in the
 and the consequences of which he was unable to                       shortest possible time.
 avert even though he had taken every necessary step
to that end .
                                                               2. The contractor must, under penalty of being
Furthermore, if the contractor has suffered very               time-barred , submit any request for the remission of
considerable detriment, he may avail himself of the            penalties by registered letter within a period of 60
same circumstances to obtain          the  variation   or      days from :
rescission of the contract.
                                                               — the payment of the balance, in the case of works
Various natural phenomena and their consequences,                    contracts , or
where they are recognized by the administration as
being abnormal for the place or the season, shall, in          — the payment of the invoice to which the penalty
particular, be regarded as circumstances within the                  was applied, in the case of supply contracts .
meaning of the second and third subparagraphs .
The contractor may invoke the default of a                            Period of guarantee: maintenance, repair and
sub-contractor or a person with whom a sub-order                                          replacement
has been placed only in so far as the latter would
avail himself of the circumstances which the                                               Article 92
contractor would have been able to invoke in a
similar situation .
                                                               1.      Without prejudice to the special provisions
                                                               relating to the acceptance of works and supplies, the
3 . The contractor shall be obliged to report to the           contractor shall be obliged during the period of
administration, by registered letter, the facts and            guarantee to carry out maintenance, repair and
circumstances referred to in paragraphs ( 1 ) and (2) as       replacement covering all services under the contract,
soon as he would normally expect to be aware of                subject to normal conditions of use.
them and not later than 30 days after their
occurrence .                                                   Deteriorations resulting from the circumstances
                                                               provided for in Article 90 or from abnormal use shall
4.     Claims by the contractor must, under penalty of         be excluded from the guarantee unless they reveal a
being time-barred, be made by registered letter within         fault or defect such as to justify the request for repair
the following periods :                                        or replacement.
 ---pagebreak---   No L 287/26                        Official Journal of the European Communities                               14 . 10 . 73
 The guarantee may be the subject of stipulations in            2.      Where     the   administration      orders       the
 the Special Conditions and of technical specifications         postponement of the contract outside the specific
 which shall determine the period and conditions                cases that may be provided for in the Special
 thereof.                                                       Conditions, for more than six months either before
                                                                or after performance, the contractor shall be entitled
 Where the Special Conditions or the contract provide           to the cancellation of the contract and indemnity for
 for a period of guarantee, they may fix the duration,          any injury which he may have suffered .
 thereof. If not otherwise specified, the duration of
 this period shall be one year.
                                                                The same shall apply in the case of successive
                                                                postponements, the total duration of which exceeds
 The period of guarantee shall commence on the date             six months, even if performance of the contract has
 of provisional acceptance in the case of works and             been resumed in the meantime .
 supply contracts . Where a supply contract
 accompanied by a period of guarantee includes one
 acceptance only, the period of guarantee shall                 The request for cancellation shall be acceptable only
 commence as from that acceptance.                              if it is submitted by registered letter by the contractor
                                                                within two months of the date of receiving the order
 Where necessary, the period of guarantee shall be              of the administration involving the postponement of
 extended by the time during which it has not been              performance of the contract for more than six
 possible to use a product or an element of the                 months , or as from the expiry of the sixth month of
 contract because of deterioration for reasons for              postponement if such order has not fixed the
 which the contractor must assume responsibility.               duration of the postponement.
 All items provided in replacement shall be subject to
 the full period of guarantee .                                If performance of the contract has commenced, the
                                                                contractor may require that acceptance of services
                                                                should take place forthwith.
 2.    The contractor shall repair or replace at his
 own expense any item which has deteriorated or fails
 to function in the course of normal use during the            If the contractor limits his request to an indemnity, it
 period of guarantee.                                           must be submitted by registered letter not later than
                                                                60 days after :
 3.    Any statement regarding deterioration or failure        — provisional acceptance of all works or supplies, or
 to function must be made in the form of a report
 drawn up by the official in charge or by any other            — acceptance of all supplies, where the contract
 representative authorized by the administration,                    provides for only one acceptance.
 before the expiry of the period of guarantee. A copy
 of the report shall be sent to the contractor within
                                                               3.      Where     the    administration      orders      the
 one month .
                                                               postponement of performance of the contract for less
                                                               than six months , the contractor shall be entitled to an
4.     Should the interests of the service so require, the     indemnity for any injury which he may have
 administration may have the repairs carried out at the        suffered . He must submit his request by registered
expense of the contractor, the latter having been duly         letter not later than 60 days after :
informed by the copy of the report.
                                                               — provisional acceptance of all works or supplies, or
                                                               — acceptance of all supplies, where the contract
                                                                     provides for only one acceptance .
     Cessation or postponement of performance of
                         contract
                                                               4.      During the period of the postponements, the
                                                               contractor shall take all such protective measures as
                       Article 93
                                                               may be necessary to safeguard the portion of the
                                                               contract already executed .
1.     Where the administration unilaterally orders the
final cessation of performance of the contract, the
latter shall be immediately reminded . The contractor          Expenses incurred in connection with such protective
shall be entitled to an indemnity for any injury which         measures shall be reimbursed to the contractor,
he may have suffered by reason of such ommission               without prejudice to the indemnity which he may
for which he is not responsible.                               claim in accordance with paragraphs 2 and 3 .
 ---pagebreak---  14. 10 . 73                         Official Journal of the European Communities                              No L 287 / 27
                          Section II                                             Specific grounds for remission
              COMPLETION OF CONTRACTS
                                                                                Article 96
               Non-performance of contract                       1 . Without prejudice to the measures provided for
                                                                in Articles 121 and 136, the administration may
                                                                 rescind the contract in the following cases :
                         Article 94
                                                                — bankruptcy of the contractor,
 In the event of non-performance of the contract, the           — any situation involving suspension of payments,
 contractor shall be subject to the measures laid down                 other than bankruptcy, established by entailing
in the special contractual clauses relating to the                     judgment of a court and resulting in accordance
works and supplies provided for in this Title and in                   with his national law in the total or partial loss of
the Special Conditions.                                                the contractor's right to administer and dispose of
                                                                       his property,
 Recovery of outstanding sums in connection with
 these measures shall be made by means of levies on             — any final judgment of a court or tribunal of the
 amounts due to the contractor, on the deposit or by                   Associated State justifying the rescission of public
 contribution from the directly liable guarantor.                      contracts in accordance with national law,
                                                                — any other legal disability hindering performance
                                                                       of the contract,
                          Decease
                                                                — any organizational modification that must be
                                                                       notified to the administration involving a change
                         Article 95                                    in the legal personality of the contractor, unless
                                                                       such modification is recorded in an endorsement
                                                                       to the contract .
1.      Where the contract is given to one natural
person, it shall be automatically rescinded if that
person dies .                                                   2.        in the event of a works contract being
                                                                rescinded :
However, the administration shall examine any
proposal made by the heirs if they have notified it of           ( a ) The contractor or his representatives being
their intention to continue the contract. The decision
of the administration shall be notified to those
                                                                        present or duly convened, a report shall be
                                                                        drawn up of work performed, and inventories
concerned within one month of receipt of such                           prepared of materials supplied, and of the plant
proposal.                                                               and site installations of the undertaking.
2 . Where the contract is given to several natural                      Statements shall also be drawn up of emoluments
persons and one or several of them die, a control                       still owed by the contractor to workers employed
report shall be agreed between the parties on the                       on the building site, and of sums owed by the
                                                                        contractor to the administration .
progress of the works and supplies and the
administration shall decide whether to rescind or
continue the contract in accordance with the                    (b ) The administration shall have the option of
undertaking of the survivors and possibly of the                        acquiring, wholly or in part :
heirs .
                                                                        — temporary items of work which have been
                                                                             approved by the administration,
3.      In the cases provided for in paragraphs 1 and 2,
persons offering to continue to perform the contract                    — materials specially constructed in connection
shall notify the administration thereof by registered                        with the execution of work under            the
letter within ten days of the date of decease.                               contract and which cannot be re-used .
They must accept joint and several liability in                 ( c ) The purchase price of the temporary items of
accordance with the first paragraph of Article 27.                      work and materials referred to above shall be
                                                                        equal to the unpaid portion of the expenditure
Continuation of the contract shall be subject to the                    incurred by the contractor, such expenditure
rules relating to establishment of the deposit or the                   being limited, where necessary, to that
commitment of the directly liable guarantor in                          corresponding to the normal performance of the
accordance with Article 62 .                                            contract .
 ---pagebreak---  No L 287/28                         Official Journal of the European Communities                             14 . 10 . 73
( d) The administration shall purchase at market                contingency which is most advantageous to him,
     prices the materials and items supplied or                 unless the itemized estimate gives more precise details
     ordered     on    conditions    that   it  considers       on this matter.
     appropriate.
3 . In the event of the recession of a supply                                          Article 98
 contract, the account shall be settled solely on the
 basis of supplies delivered and accepted.                       1.   The    contractor   shall be   deemed    to   have
                                                                prepared his tender on the basis of the data, in
4. However, the administration may without                      particular hydrological, climatic and physical data,
waiting for the definitive settlement, and if it is so          provided by the administration in the invitation to
requested, pay the contractor up to 80 % of the credit          tender. However, as a result of his own investigations
balance shown by the provisional settlement.                    and the on-the-spot visits organized by the
 Likewise, if the provisional settlement shows a credit         administration in cases where the importance of the
balance in favour of the administration, the latter             work so justifies, he shall be deemed to have
may require the contractor to return 80 % of the                ascertained, as far as possible, before filing his
amount of such balance.                                         tender, the characteristics of the location, the nature
                                                                of the work, the quantities to be produced, the
                                                                amount of the materials to be provided, the ways and
                                                                means of access to the building sites, the necessary,
                                                                equipment, and, in a general manner, to have
                       CHAPTER II                               obtained all information concerning risks, hazards
                                                                and circumstances likely to influence his tender.
       CLAUSES RELATING SPECIFICALLY TO
                  WORKS CONTRACTS                               2.    Even if they are not the subject of an item on
                                                                the itemized estimate, all works, measures and
                                                                expenses relating to execution of the contract shall be
                         Section I                              the responsibility of the contractor, in particular the
                                                                preservation, removal and possible replacement of
                                                                the cables, conduits and installations specified by the
              PRELIMINARY PROVISIONS                            administration in the contract plans and documents.
                                                                Where the presence of cables, conduits and
                        Article 97                              installations has not been specified in the contract
                                                                plans and documents but is revealed by benchmarks
In overall price contracts, the contractor shall be             and references, the contractor shall be bound by a
considered to have prepared the sum contained in his            general duty of care and similar obligations regarding
tender according to his own operations, calculations            preservation, removal and replacement. In this case,
and estimates .                                                 the administration shall compensate him for
                                                                expenditure relating to such work, to the extent to
After the final date fixed for filing tenders he shall no       which this is necessary for the execution of the
                                                                contract.
longer be allowed to enter any claim concerning
possible errors or omissions in the itemized estimate
furnished by the administration.                                However, the obligation to remove and replace
                                                                cables, conduits and installations and the expenditure
Details included in this document by the                        resulting therefrom shall not be the responsibility of
administration are given solely for purposes of                 the contractor if the administration decides to accept
information and may be invoked, if necessary, only              the same itself. The same shall apply where this
to make good any inadequacy in the Special                      obligation and the expenditure resulting thereform
Conditions and in the approved plans .                          devolve upon another specialist administration or on
                                                                an agent.
In the event of a discrepancy between the details of
the plans and the Special Conditions or the itemized            Damage caused by the contractor to cables, conduits
estimate, the plans shall prevail.                              and installations which have not been notified, or
                                                                marked, and of which he could not reasonably have
Should the plans contain discrepancies, the                     been aware, shall be regarded as being the result of a
contractor may claim to have provided for the                   circumstance provided for in Article 90 (2).
 ---pagebreak---  14 . 10 . 73                         Official Journal of the European Communities                           No L 287/29
3 . The contractor shall carry out, at his expense,              2 . Provision and acceptance of materials and supplies
any works whatsoever which, by their nature, are
dependent upon or bound up with those defined in                 The contractor' shall be required to take the necessary
the approved plans and which are described, in                   steps to ensure that the plant, materials and supplies
addition, by the requirements of the Special                     are conveyed to the site in good time and that the
Conditions and the itemized estimate.                            administration has the necessary time at its disposal
                                                                 to proceed with the formalities of accepting the
Since the contractor is deemed to have determined his            materials and supplies irrespective of the state of the
 prices on the basis of his own calculations ,                   means of communication and the mode of transport
operations, and estimates, he must carry out, free of            used . Since the contractor is deemed to have fully
charge, any work which is the subject of any item                appreciated the difficulties which he might encounter
whatsoever, for which he neither indicates a unit                in this respect, he shall not be permitted to put
price nor a firm sum.                                            forward grounds for delay in taking these steps,
                                                                 without prejudice to the provisions of Article 90.
          Address for service of the contractor and              The materials and supplies may not be used unless
                       representation                            they have first been accepted by the official
                                                                 responsible for directing performance of the contract
                         Article 99                              or his representative.
The contractor shall give an address for service close
to the works and shall notify the administration of              3 . Tests
that address. Should he fail to fulfil this obligation
within a period of two months from notification of               The tests required for technical verification of
award of the contract, all notifications concerning the          materials and supplies shall be laid down in the
contract shall be valid where these are made to the              Special Conditions . These shall specify whether the
address designated for this purpose in the Special               tests are to take place :
Conditions .
                                                                 ( a) on the work site or at the place of delivery,
After final acceptance of the works, the contractor
shall be relieved of this obligation. Should he fail to          ( b ) at the manufacturer's factories,
give notice of his new address to the administration,
notifications concerning the contract, made to the               ( c) in the administration's laboratories,
address given in the Special Conditions shall be valid.          ( d ) in laboratories approved by the administration.
The contractor shall himself carry out and supervize
the works or he shall appoint a representative for this
purpose; in any case, he shall be responsible for                In the case of verification on site or at the place of
carrying out the works satisfactorily.                           delivery as provided for under (a), the contractor
                                                                 shall place at the disposal of the administration, at
The representative shall be deemed to have his                   his own expense, the workmen and the tools and
address at the address for service given by the                  articles normally used on sites, needed for the
contractor .                                                     verification and acceptance of the materials.
The administration shall be entitled at any time, to
call for replacement of the representative.                      In the case of verification at the factory as provided
                                                                 for under (b ), the test samples or parts to be tested,
                                                                 ready for testing shall be made available to the
                                                                 representative of the administration within five
                          Section II
                                                                 calendar days of being marked. The tests shall be
                                                                 carried out in the presence of this representative ; the
              PERFORMANCE OF CONTRACT                            contractor shall bear the costs of preparing parts,
                                                                 test samples, and the costs of the tests themselves .
              Checking of materials and supplies
                                                                 In the case of verification in the laboratories as
                        Article 100                              provided for under (c) and ( d), immediately after the
                                                                 parts to be tested or the substances to be used in
1 . Identification                                               preparing the test samples have been selected and
                                                                 marked by the representative of the administration,
The Special Conditions may require all articles and              they shall be sent by the contractor, free of charge,
supplies, where possible, to bear the contractor's               to the laboratory responsible for the tests, under the
mark in a specified place.                                       supervision of the representative of the administration.
 ---pagebreak---    No L 287/ 30                       Official Journal of the European Communities                             14 . 10 . 73
  The administration shall bear the costs of preparing           entitled to request a check test. This shall be carried
  parts and test samples. It shall also bear the cost of         out in a laboratory selected by common consent from
  tests carried out in its laboratories or in an approved        the laboratories approved by the administration.
  laboratory, with the exception of tests which should
  have been carried out by the contractor in the
  manufacturer's factories . The residue of test samples,        If the objection concerns an item which is incapable
  broken parts and surplus samples shall remain the              of exact evaluation, each of the parties shall be
  property of the administration .                               entitled to request an expert opinion. The expert
                                                                 shall be selected by common consent. The expert
                                                                 shall conduct his examination at a place nominated
  The contractor may be present when the tests are               by the expert and approved by the administration .
  carried out in one of the administration 's laboratories
  or in a laboratory approved by the administration.
                                                                 The report drawn up by the laboratory or by the
                                                                 expert shall be submitted to the administration,
  In any case, the markings must be present until the            which shall communicate it, without delay, to the
 time of testing.                                                contractor by registered mail . The results of the
                                                                 check test or the expert opinion shall be conclusive.
  Where tests carried out to ascertain the quality of            The costs of the check test or the expert opinion shall
 supplies involve the destruction of certain parts or            be borne by the party for whom the result is
  certain quantities of materials, these must be replaced        unfavourable.
 by the contractor, at his expense.
 The extent to which the tests may involve such
 destruction shall be indicated in the Special                  7 . Period for check tests
 Conditions .
                                                                   m
                                                                Under penalty of being time-barred, the contractor
                                                                shall address the request for a check test or an expert
                                                                opinion to the administration by registered letter not
 4. Test period                                                 later than the fifteenth calendar day following the
                                                                day on which the decision of rejection is notified.
 The period which extends from the date of despatch
 to the date of arrival in the establishment responsible
 for testing shall not be included in the period laid           Paragraph 4 shall apply to the period for notifying
 down in the Special Conditions for notifying the               the decision of acceptance or rejection resulting from
 contractor of the decision of approval or rejection.           the check test or the expert opinion .
 5 . Verifications                                              8 . Extension of the period of performance
 Weighing required to verify the articles and materials         An extension of the period of performance may be
 for which theoretical weights or weight tolerances are         granted to the contractor where the check test or the
laid down shall be carried out at the contractor's              expert opinion is in his favour.
 factory ; the contractor shall place the weighing
 instruments at the disposal of the administration, free
 of charge, in accordance with Article 61 .
                                                                9 . Materials and supplies which have been accepted
The same shall apply in the case of duly verified               Materials an4 supplies which have been accepted and
measuring equipment and test machinery required for             which are on site may not be removed without the
the test provided for in the contractor's factories and         authorization of the administration .
on site.
6 . Check tests                                                 10 . Rejects
In the event of an objection by one or other party to           Materials and supplies which are not of the required
the result of the tests, each of the parties shall be           quality shall be rejected.
 ---pagebreak---  14 . 10 . 73                          Official Journal of the European Communities                           No L 287/ 31
A special mark may be applied to the latter; this may             3 . Overlapping contracts
not be such as to alter the supplies, nor may it
modify their commercial value.                                    Where     other   contracts    must   be   carried   out
                                                                  simultaneously on the same site or in the same
 Materials and supplies which have been rejected shall            building, the contractor shall comply with orders
be removed by the contractor from the sites, if the               given to him by the official responsible for directing
 administration so requires, within a period which it             the performance of the contract, so as to enable the
                                                                  contracts to be carried out.
 shall specify, failing which the administration shall as
of right effect their removal at the expense and risk
of the contractor.
Making use of rejected materials and supplies shall
result in a refusal to accept the works .                                             General measures
                      Special situations                                                 Article 102
                        Article 101                               1.     The contractor shall comply with national rules,
                                                                  especially those governing building, highways,
1 . Suspension of works for climatic reasons                      hygiene, and the protection of work.
The administration may suspend execution of the
works for a certain period, where it considers that               The contractor shall have the right to forbid any
they cannot be carried out without difficulty by                  person not involved in the performance of the
reason of climatic conditions or the results thereof.             contract to have access to the site, with the exception,
                                                                  however, of persons authorized by the administration
During the periods of suspension, the contractor shall            in accordance with Article 57 .
take, at his expense, all protective measures to
safeguard works and materials .
                                                                  He shall ensure that sites are policed as long as work
The periods of suspension may in no case be                       is in progress, and shall be responsible for taking the
aggregated with the periods of postponement                       necessary steps, both in the interests of his servants,
provided for in Article 93 .                                      agents of the administration and third parties, to
                                                                  prevent any loss or accident which may result from
                                                                  carrying out the works . In particular, he shall see to
2 . Discoveries while work is in progress                         it that the works and installations of his undertaking
                                                                  cause neither difficulties nor obstacles to traffic on
The administration reserves the right of ownership of             roads, railways, waterways, aerodromes etc., other
materials found during the excavation and                         than those permitted by the Special Conditions .
demolition work carried out on land belonging to it,
subject to compensating the contractor for any
special efforts .                                                 Any work which the administration indicates to the
                                                                  contractor, or which appears of itself as being
Discoveries of any interest whatsoever made in these              capable of causing damage or disturbance to a public
excavations or in this demolition work shall be                   utility service shall be the subject of a notice issued
brought       immediately    to   the   attention   of the        by the contractor and lodged with the operating
administration .                                                  body, at least 10 calendar days prior to the
                                                                  commencement of the works .
Objets d'art, antiques, natural history, numismatic, or
other objects which are of scientific interest, and also          This obligation shall be laid upon the contractor
rare objects or objects made of precious materials                without prejudice to the application of the national
found in these excavations or in this demolition work
                                                                  rules governing telecommunications .
shall be the property of the administration and shall
be held at the disposal of the official responsible for
directing performance of the contract or his                      Where, in the course of carrying out the works, the
representative.                                                   contractor encounters benchmarks indicating the
                                                                  course of underground conduits, he shall be required
In the event of dispute, the administration shall have            to keep such benchmarks in position or to replace
sole authority to decide as to the characteristics set            them should execution of the works have necessitated
out in the second and third subparagraphs .                       their temporary removal .
 ---pagebreak--- No L 287/ 32                          Official Journal of the European Communities                              14 . 10 . 73
2 . The contractor shall take all essential steps, on            part, this shall be stipulated in the Special Conditions
his own responsibility, and at his expense, to ensure            or in the contract plans .
that existing structures and installations are
protected , preserved and maintained ; he shall also             The contractor may not make use of land procured
take all the precautions required by building practice           for him by the administration, without authorization
and by the special circumstances to safeguard                    in writing.
neighbouring properties and to avoid causing any
disturbance therein .                                            2 . Use of premises belonging to the administration
                                                                 If premises are placed at his disposal for any use
                                                                 whatsoever, the contractor shall be required to keep
                      Outline of works                           them in a good state of preservation while he is in
                                                                 occupation and to restore them to their original state,
                         Article 103                             on completion of the contract, if called upon to do
                                                                 so .
Before starting to carry out the works the contractor            No payment may be claimed for improvements
shall produce an outline of the work and shall set up            resulting from installation work carried out by the
an adequate number of benchmarks to which the                    contractor of his own accord, if the administration
relative height of the various parts of the work must            decides to retain them .
be exactly related . He shall have pegs, stakes, profile
battens, etc., positioned wherever the administration
shall judge it necessary.                                                  Materials obtained from demolition
When these operations are completed he shall inform                                     Article 10S
the administration thereof in writing. The latter shall
verify them without delay and, where necessary, shall
                                                                 Where     the   contract   includes   demolition    work,
rectify them in the presence of the contractor or his            materials and articles obtained therefrom shall be the
representative .
                                                                 property of the contractor subject to the provisions
The contractor shall see to it that pegs, stakes, profile        of Article 101 (2).
battens etc. remain in the position and at the height            Should the Special Conditions depart from this rule
thus fixed ; he shall be responsible, in any event, for          and reserve to the administration the right of
the consequences which could result from their being             ownership of materials or all or part of the articles
moved or disturbed .
                                                                 obtained from the demolition work, the contractor
The contractor shall place the pegs, lines,                      shall take all the necessary precautions to ensure that
boards, stakes, set-squares, profile battens, water and          these are preserved . He shall be answerable for any
spirit levels, levelling rods, chains, etc., at the disposal     destruction of or damage to such materials caused by
                                                                 him or his servants .
of the administration , on each occasion that it needs
them, together with all the articles necessary to the            Irrespective of the use to which the administration
operations which have to be carried out so that it               intends to put the materials or articles, in respect of
may be ascertained that the works are being carried              which it reserves the right of ownership, all costs
out in accordance with the approved plans and the                incurred in storing them at the place indicated by the
conditions of the contract.                                      official responsible for directing the contract shall be
                                                                 borne by the contractor for any carriage not
The administration may select from among                 the     exceeding 100 metres .
contractor's staff, and with the latter's consent,       the
workmen most capable of assisting him in                 the     Where the Special Conditions do not otherwise
operations in question . The contractor shall bear       the     provide, the contractor shall progressively remove
cost of the wages of these workmen .                             rubble and other demolition materials, rubbish and
                                                                 debris in accordance with the instructions of the
                                                                 administration .
             Occupation of land or premises
                                                                            Temporary works and soil studies
                         Article 104
                                                                                Article 106
 1 . Use of land belonging to the administration
                                                                 1 . Temporary works
Apart from the actual building land, the contractor
shall himself procure the land he considers necessary            The contractor shall carry out at his expense all the
for carrying out the works . If the administration               temporary works to enable the construction work to
proposes to provide him with such land, wholly or in             be carried out.
 ---pagebreak--- 14 . 10 . 73                          Official Journal of the European Communities                          No L 287/33
He shall submit the plans for such temporary works,                   working order, tests carried out in situ, samples
such as coffer-dams, scaffolding, trusses, shuttering                 despatched, unforeseen circumstances etc., as well
etc., which he intends to use, to the administration .                as orders given to the contractor which are
He shall take account of any observations made to                     purely occasional and of little importance ;
him, while assuming sole responsibility for these
plans .                                                          ( b) Detailed daily statements of all the quantitative
                                                                      and qualitative elements of the work done and
2 . Soil studies                                                      the supplies effected, capable of inspection on the
                                                                      site and relevant in calculating the payments to
In accordance with the Special Conditions the                         be made to the contractor.
contractor shall hold at the disposal of the
administration the personnel and equipment                            The contractor shall ensure that daily statements
necessary for carrying out any soil survey which the                  are drawn up, in good time and in accordance
 administration shall judge necessary. He shall be                    with the provisions of the Special Conditions, in
compensated for the cost of the manpower and                          respect of work, services and supplies which
equipment used in this work.                                          could not be traced or verified subsequently ;
                                                                      failing this, he must accept the decisions of the
                                                                      administration unless he provides evidence to
                 Staff for the undertaking                            the contrary, at his own expense.
                         Article 107
                                                                      These daily statements shall form an integral part
                                                                      of the record of work but they may, where
                                                                      appropriate, be recorded in separate documents .
The agents and workmen employed by the contractor
must be sufficient in number, and each must be
suitably qualified in his own field to ensure steady             2.    Entries made in the record of work, as work
progress and satisfactory execution of the works . The           progresses, shall be signed by the representative of
contractor shall immediately replace all persons                 the administration and countersigned by the
indicated by the administration as capable of                    contractor or his representative.
jeopardizing satisfactory execution of the works .
                                                                 The contractor shall communicate his views to the
The general bases of remuneration and the general                administration by registered letter within 15 calendar
working conditions as laid down in national law                  days of the date on which the entry or the statements
shall apply to staff on the site of the undertaking.             objected to are recorded.
In the event of delay being duly ascertained in the
payment of wages and salaries and the allowances                 Should he fail to countersign or to submit his views
and contributions laid down in national law, the                 within the period allowed, the contractor shall be
administration may, as of right, after giving notice to          deemed to agree with the notes shown in the record .
the contractor, pay arrears of wages and salaries,
allowances and contributions out of amounts due to               The contractor may examine the record of work at
the contractor or, failing this, by making a deduction           any time and may, without removing the document,
from the deposit, or obtaining a contribution from               make or receive a copy of entries which he considers
the directly liable guarantor.                                   necessary for his own information .
                                                                 3.    At the request of the representative of the
Record of work — Daily statements of materials used              administration, the contractor shall provide him with
                       and work done
                                                                 the information needed to keep the record of work in
                                                                 good order.
                         Article 1 OS
1.      A record of work shall be kept on each building                                  Insurance
site by the representative of the administration who
shall     enter in   it, in    particular,  the  following                               Article 109
information :
( a ) An indication of the atmospheric conditions,               Within 15 days following notification of the award of
      interruptions of work owing to inclement                   the contract, the contractor shall take out insurance,
      weather, hours of work, number and type of                 to take effect from the actual commencement of the
      workmen employed on the site, materials                    work, covering his liability with regard to accidents
      supplied, equipment in use, equipment not in               at work and civil liability in the event of accidents
 ---pagebreak---  No L 287/34                       Official Journal of the European Communities                              14. 10 . 73
caused to third parties as a result of the works ; he         not object if such reduction, calculated on the basis
shall be obliged to furnish proof of regular payment          of the original prices, does not exceed one fifth of the
of premiums each time he is required to do so.                amount originally provided for in the contract unless
                                                              the Special Conditions otherwise provide.
  Unforeseen work and modifications to the contract
                                                              Where the reduction, calculated in the same manner,
                                                              exceeds one fifth, the contractor may, when the final
                      Article 110                             detailed statement is drawn up, request compensation
                                                              for any loss incurred by him as a result of the
Where the administration, without changing the                modifications to the original project.
subject matter of the contract, considers it necessary
to carry out unforeseen work or to effect changes in          Where this reduction, calculated in the same manner,
the work to be done, the contractor shall comply              exceeds one third, the contractor shall, within a
with the orders of the administration he receives in          period of two months of the order of the
this respect.                                                 administration stipulating such reduction, request
                                                              compensation for the loss incurred by him as a result
The price of such work shall be determined in                 of the modifications to the original project. Where,
accordance with Article 83 .                                  within two months following the lodging of the
                                                              request for compensation, no agreement has been
                                                              reached with the administration as to the amount of
                                                              the compensation, the contractor shall be entitled to
            Increase in the volume of work
                                                              rescind the contract and to receive compensation for
                                                              any lose caused by such rescission .
                       Article 111
In the event of an increase in the volume of work
required by the administration, the contractor may               Change in the quantities of the various items in the
not object if such increase, calculated on the basis of                           itemized estimate
the original prices, does not exceed one fifth of the
amount originally provided for in the contract unless
the Special Conditions otherwise provide. In that
                                                                                Article 113
case, the contractor shall, on application, be entitled
to an extension of the contractual period of
performance ; he must give reasons for the length of          1 . Without prejudice to the application of Articles
the extension he requires .                                   111 and 112, where the contract contains an itemized
                                                              estimate showing, for each item, the quantities of the
                                                              various works and the respective price for each of
Where the increase, calculated in the same manner,            these items, and where the alterations required by the
exceeds one fifth, the contractor may, when the final         administration modify the quantities of certain of
detailed statement is drawn up, request compensation          these works in such a way that the quantity shown
for any loss incurred by him as a result of the               for any item differs by more or less than one fifth,
modifications to the original project. He shall also be       the contractor may, when the final detailed statement
entitled to an extension of the contractual period of         is drawn up, request compensation for any loss
performance.                                                  incurred by him as a result of the modifications to
                                                              the original project, in this respect.
Where this increase, calculated in the same manner,
exceeds one third, the contractor shall be entitled to
                                                              2.    Where the price list shows items with prices for
refuse to carry out any work over and above this              reference purposes only for which no quantity is
fraction .  In   this  case    he  shall   inform   the
                                                              indicated in the itemized estimate, the provision
administration of his decision by registered letter           contained in paragraph 1 may not be invoked by the
within a period of two months of the order of the             contractor .
administration stipulating that increase.
                                                                                Article 114
           Reduction in the volume of work
                                                              1 . Without prejudice to the application of Articles
                      Article 112
                                                              111 , 112 and 113 , where, independently of any
                                                              modification made by the administration to the
In the event of a reduction in the volume of work             contract, any volume of work actually carried out,
required by the administration , the contractor may           which is covered by an item in the itemized estimate
 ---pagebreak---   14. 10 . 73                        Official Journal of the European Communities                         No L 287/35
 and which is provided with a separate unit price,             2. Rejection of works
 exceeds four times the estimated volume or is less
 than one half of such volume, the administration or           Works which do not satisfy the terms and conditions
 the contractor may request revision of this price             of the contract or which are not carried out in
 and/or the original time limits .                             accordance with trade practices shall be demolished
                                                               and rebuilt by the contractor; otherwise this shall
 This revision shall be subject to it being shown that         be done, as of right, at his expense, by order of the
 the estimated quantities have been modified in such a         administration, in one or other of the ways indicated
 way that the price and/or the time limits no longer           in Article 121 .
 correspond with the new situation thus created.
 In cases where the administration and the contractor          The administration may also require the demolition
 are unable to agree on the fixing of the new unit             and reconstruction by the contractor, under the same
 price, the administration shall determine this as of          conditions as those laid down in the preceding sub
 right, without prejudice to any rights of the                 paragraph, of structures in which materials have been
 contractor .
                                                               used which have not been accepted, or of those
                                                               carried out in a period of suspension, as laid down
                                                               in Article 101 ( 1 ).
 2. The provisions of paragraph 1 may also be
 invoked where, in the case of a particular item in the
itemized estimate, the variation in the quantity of           3 . Provisional acceptance
work carried out by comparison with the estimated
quantity entails an upward or downward variation in            The contractor must ' advise the administration of
 excess of 20 % of the volume calculated on the basis          completion of the works, by registered letter.
of the original prices.
                                                              Within 30 calendar days of the date of receipt of the
                                                              communication from the contractor, or within a
            Use of works by the administration                 longer period if so provided in the Special
                                                               Conditions, the administration shall draw up a
                        Article 115                            statement of provisional acceptance of the works or
                                                               of rejection, and shall forward a copy thereof to the
                                                               contractor .
Immediately after provisional acceptance, the
administration may make use of all the works
completed by the contractor.                                  If this time-limit is exceeded, and the delay is not
                                                              attributable to the contractor, the administration
However, if the Special Conditions so allow, the              shall become liable to pay him compensation equal to
administration may make use of the various                    0-5 % per week of delay on the amounts, payment of
structures forming part of the contract as and when           which is dependent upon provisional acceptance, up
they are completed, on condition that an inventory is         to a limit of 5 % of the total of such sums .
drawn up as appropriate.
Should the administration take over the work, this            However, the payment of this compensation shall be
shall not count as provisional acceptance.                    subject to submission by the contractor of a request
                                                              in writing within 30 calendar days from the date of
Once the administration has taken possession of a             provisional acceptance.
structure or a part thereof, the contractor shall no
longer be required to make good damage resulting              Works which are subject to provisional acceptance
from use .
                                                              shall, unless the contrary is proved, be deemed to
                                                              have been so accepted on the completion date
                                                              indicated by the contractor in his registered letter.
                        Acceptance
                        Article 116                           4. Final acceptance
                                                              Upon      expiry     of the   guarantee    period,    the
1 . Verification and testing                                  administration shall draw up, as soon as possible,
The works shall not be accepted until the prescribed          and within a maximum of 30 days, a statement of
verifications and tests have been carried out at the          final acceptance of the works or of rejection and shall
expense of the contractor.                                    forward a copy thereof to the contractor.
 ---pagebreak--- No L 287/36                          Official Journal of the European Communities                              14 . 10 . 73
In the case of a statement of rejection of the works, it                     Fraud and faulty workmanship
shall be imcumbent upon the contractor subsequently
to give notice to the administration, by registered                                    Article 118
letter, that all the works of the undertaking are
ready for final acceptance, and acceptance of the               If fraud or faulty workmanship is suspected, the
works shall take place within 20 calendar days from             contractor may be reuqired, either while work is in
receipt of the registered letter.                               progress or after final acceptance, to demolish the
                                                                works carried out and to rebuild them . The costs of
5 . Clauses applicable in respect of both provisional           such demolition and reconstruction shall be borne by
    and final acceptance                                        the contractor or the administration, according to
                                                                whether the suspicion is confirmed or not.
Verification of works with a view to provisional or
final acceptance shall take place in the presence of
the contractor. The absence of the latter shall not be                Non-performance of contract by contractor
a bar to acceptance on condition that he has been
summoned in due form by registered letter posted at                                    Article 119
least 20 calendar days prior to the date of acceptance.
                                                                Non-performance of the contract by the contractor
Should     one    or    several   of   the     exceptional      occurs :
circumstances referred to in Article 90 make it
                                                                1 . where the work is not carried out in accordance
impossible to ascertain the state of the works during
the period of 20 days fixed for provisional or final                with the provisions of the contract;
acceptance, a statement certifying such impossibility           2 . where the work is not completed within the
shall be drawn up after summoning the contractor.                   contractual period of performance or where, at
The statement of acceptance or rejection shall be                   any time it is not proceeded with, in any respect
drawn up within 20 calendar days from the date on                   whatsoever, so as to be capable of being entirely
which such impossibility ceases to exist.                           completed within this period;
The contractor shall not be entitled to invoke these            3 . where the contractor departs from             written
circumstances in order to avoid the obligation of                   instructions given by the administration.
presenting the works in a state suitable for
acceptance .                                                        Finding of non-performance attributable to the
                                                                                contractor
The works shall not be regarded as completed until
the contractor has had removed any goods in storage,                                   Article 120
litter or redressed any change in the condition of the
premises, resulting solely from the requirements for
performing his contract.                                        Non-performance of the contract shall be established
                                                                by means of an entry in the record of work.
                                                                This entry shall constitute formal notice to put an
                        Section III                             end to the failure to perform the contract.
                                                                Within 15 days of the date of entry in the record of
         COMPLETION OF THE CONTRACTS
                                                                work, the contractor shall be obliged to submit the
                                                                grounds of his defence to the administration by
            Responsibility of the contractor                    registered letter. At the end of this period, silence on
                                                                his part shall be deemed to constitute admission of
                                                                the facts established.
                       Article 117
                                                                The administration shall give a ruling on the defence
Without prejudice to the guarantee obligation laid              submitted by the contractor, without delay, and shall
down in Article 92, the contractor shall no longer be           inform him of its decision by registered letter.
responsible, after provisional acceptance, for risks
which may affect the works which are the subject of
the contract and which result from causes not                      Sanctions for non-performance attributable to the
attributable to him .                                                                   contractor
However, the contractor shall be responsible, as from                                  Article 121
the date of provisional acceptance, for the soundness
of the structures, in accordance with the provisions of         If no ground for non-performance of the contract is
the national law.                                               accepted or furnished within the period laid down in
 ---pagebreak--- 14 . 10 . 73                          Official Journal of the European Communities                            No L 287 / 37
Article 120, the contractor shall be subject to one or                    applies, the contractor shall be authorized to
more of the measures defined in, and governed by the                      observe the operations without, however,
following paragraphs :                                                    being able to interfere with the execution of
                                                                          instructions given by the administration.
1 . Penalties                                                             Supervision by the administration may be
                                                                          terminated if he furnishes proof of the
    ( a ) Special penalties for specific failures in                      necessary means to resume the work and to
          performing the contract ;                                       bring it to a satisfactory conclusion .
     (b ) Penalty per calendar day for any form of                        Additional expenses resulting from supervi
          non-performance of the contract which must                      sion by the administration or from the new
          be terminated immediately.                                      contract shall be borne by the contractor.
          This penalty shall be applied as from the date                  If supervision by the administration or the new
          on which non-performance of the contract has                    contract results in a reduction in the expenses,
          been established by an entry in the record of                   the contractor may not claim any part of the
          work in accordance with Article 120, up to                      profit thus derived, which shall be the
          and including the date on which such                            property of the administration ;
          non-performance has been ended by the
          contractor or by the administration ;                     ( c) rescission of all or part of the contract,
                                                                          decided against the contractor;
    ( c) Penalties for delay where non-performance
          results from non-completion of the contract               ( d) temporary or permanent exclusion from the
                                                                          award of contracts .
          within     the     contractual     time     limits .
          Notwithstanding Article 120, these penalties
          shall be due without formal notice ;                  3 . Rules governing concurrence of sanctions for
                                                                    non-performance of the contract
     (d) General       penalty    for     any    form      of
          non-performance of the contract other than                For the application of the measures laid down in
          those laid down under ( a), (b ) and ( c).                points 1 and 2, the following rules shall be
                                                                    applied :
          The amount of and the detailed procedures
          relating to these penalties shall be stipulated in        ( a ) a single failure to perform the contract may
          the Special Conditions .                                        only give rise to the application of a single
                                                                          penalty ;
2. Measures to be taken as of right
                                                                    ( b ) supervision by the administration may be
    A decision of the administration relating to the                      combined with penalties for delay and with
    application of measures taken as of right shall be                    exclusion ;
    notified to the contractor by registered letter.
                                                                    (c ) a contract to the account of the contractor
    These measures shall be the following :                               may be combined with exclusion ;
    (a ) execution of all or part of the works under the            ( d) cancellation arising from the fault of the
          supervision of the administration ;                             contractor may be combined with exclusion
                                                                          and penalties for delay relating to the period
     (b ) conclusion of a contract with a third party, to                 prior to the date of cancellation ;
          the account of the contractor, after prior
          rescission of the original contract.                      (e) exclusion       may    be   combined      with any
                                                                          measures by the administration.
          In applying one or other of these measures,
          the administration shall make any necessary
          arrangements to ensure the protection or                                  Recovery of penalties
          satisfactory execution of the works .
          After the contractor has been summoned by                                      Article 122
          registered letter, the works shall be checked,
          an inventory of plant and materials shall be
          drawn up, and a statement of the wages and            Recovery of penalties and recovery of amounts
          salaries due and the amounts owed by the              relating to damages, disbursements or expenses
          contractor to the administration shall be made        resulting from the application of the measures
          out .
                                                                provided for in point 2 of Article 121 shall be
                                                                effected by deduction from the sums due to the
          In the event of supervision by the                    contractor, from the deposit, or by contribution of
          administration, and while that procedure              the directly liable guarantor.
 ---pagebreak---   No L 287/38                            Official Journal of the European Communities                             14. 10 . 73
                         CHAPTER III                                Where the person concerned has changed this address
           CLAUSES RELATING SPECIFICALLY TO                         without advising the administration thereof, all
                    SUPPLY CONTRACTS                                notifications relating to the contract deemed made to
                                                                    the address designated for this purpose in the Special
                                                                     Conditions shall be valid .
                           Section I
                                                                    Furthermore, the Special Conditions may provide
                 PRELIMINARY PROVISIONS                             that the contractor shall be required to give an
                                                                    address for service within a specific period, or to
         Elements included in the prices of all supply              establish a representative in a place designated for
                           contracts
                                                                    this purpose.
                          Article 123                               Where the contractor does not fulfil this obligation
                                                                    within the time limit laid down, all notifications
 1.      Subject to any special conditions for which                relating to the contract made to the address shown in
 provision may be made in the Special Conditions, the               the Special Conditions shall be valid.
 contractor shall be deemed to have included in his
 prices all costs charged on supplies, in particular :
 ( a) The costs of transport and insurance;                                          Overlapping contracts
 (b ) The costs of packing, transhipment, unloading,
       transit, unpacking and making available at the                                      Article 126
       place of delivery.
                                                                   Where the contractor is party to several contracts
       The packing materials shall be the property of               relating to like supplies, the deliveries which he
       the administration unless the Special Conditions             makes shall be ascribed to one or other of the
       otherwise provide ;                                          contracts in the order in which delivery dates fail
 ( c ) The cost of documents relating to the supplies               due .
       where such documents are required by the
       administration .                                            Where the contractor is the holder of a contract for
                                                                   several like lots but at different prices, the deliveries
 2. The contractor shall bear the expense of                        shall be paid for at the average price.
 assembling the supplies and putting them into
 working order where the Special Conditions so
 provide.
                                                                                Section II
     Verification by contractor of technical documents                        PERFORMANCE OF CONTRACTS
                    made available to him
                                                                                Identifications
                          Article 124
 The contractor shall be obliged to verify the technical                                   Article 127
documents submitted to him by the administration
and to give notice, without delay, of errors, omissions            The Special Conditions may require all articles and
or contradictions which these documents may
                                                                   supplies, where possible, to bear the contractor's
contain, and which are evident to a person skilled in
                                                                   mark in a specified place.
the art. Adjustments to prices and time limits which
may       result  therefrom     shall   be     negotiated in
accordance with Article 128 .
                                                                          Technical modifications during execution of
                                                                                contract
         Address for service of the contractor and
                        representation                                                     Article 128
                         Article 125                               During execution of the contract, the administration
                                                                   may require the contractor to carry out modifications
The      administration    shall   send    all   notifications     of a technical nature to the extent that these are
relating to the contract to the address for service                compatible with the technical capacity of his under
given by the contractor for this purpose in his tender.            taking, or accept modifications proposed by him.
 ---pagebreak--- 14 . 10 . 73                        Official Journal of the European Communities                          No L 287/39
The contractor must provide a detailed estimate, if so        In any case, the markings must be present the time of
requested by the administration, within the time limit        testing.
prescribed for this purpose, showing the increase or
decrease in price, and the alterations to the period of       Where tests carried out to ascertain the quality of
performance for which provision is to be made.                supplies involve the destruction of certain parts of
                                                              certain quantities of materials, these must be replaced
Without prejudice to the provisions of Article 71 , the       by the contractor, at his expense.
administration shall notify its decision by order sent
by registered mail.                                           The extent to which the tests may involve such
                                                              destruction shall be indicated in the Special
                                                              Conditions .
                   Tests and check tests
                                                               2. Test period
                                                              The period which extends from the date of despatch
                        Article 129                            to the date of arrival in the establishment responsible
                                                               for testing shall not be included in the period laid
 1 . Tests                                                     down in the Special Conditions for notifying the
                                                               contractor of one decision of approval or rejection.
The tests required for technical verification of
materials and supplies shall be laid down in the
Special Conditions . These shall specify whether the           3 . Verifications
tests are to take place :
                                                              Weighing required to verify the articles and materials
 ( a ) at the manufacturer's factories,                        for which theoretical weights or weight tolerances are
                                                               laid down shall be carried out at the contractor's
(b ) in the administration's laboratories,
                                                               factory ; the contractor shall place the weighing
 ( c) in laboratories approved by the administration.          instruments at the disposal of the administration, free
                                                               of charge, in accordance with Article 61 .
 In the case of verification at the factory as provided        The same shall apply in the case of duly verified
 for under ( a), the test samples or parts to be tested,       measuring equipment and test machinery required for
ready for testing, shall be made available to the              the test provided for in the contractor's factories or at
 representative of the administration within five              the place of delivery.
 calendar days of being marked. The tests shall be
 carried out in the presence of this representative; the
 contractor shall bear the costs of preparing parts, test
                                                               4 . Check tests
 samples, and the costs of the tests themselves.
                                                               In the event of an objection by one or other party to
In the case of verification in the laboratories as             the result of the tests, each of the parties shall be
provided for under ( b) and (c), immediately after the         entitled to request a check test. This shall be carried
parts to be tested or the substances to be used in             out in a laboratory selected by common consent from
preparing the test samples have been selected and              the laboratories approved by the administration.
marked by the representative of the administration,
they shall within five calendar days be sent by the            If the objection concerns an item which is incapable
contractor, free of charge, to the laboratory                  of exact evaluation, each of the parties shall be
 responsible for the tests , under the supervision of the      entitled to request an expert opinion . The expert
 representative     of    the     administration.    The       shall be selected by common consent. The expert
 administration shall bear the costs of preparing parts        shall conduct his examination at a place nominated
and test samples . It shall also bear the cost of tests        by the expert and approved by the administration.
carried out in its laboratories or in an approved
laboratory, with the exception of tests which must be
carried out by the contractor in the manufacturer's            The report drawn up by the laboratory or by the
factories . The residue of test samples, broken parts          expert shall be submitted to the administration,
                                                               which shall communicate it, without delay, to the
and surplus samples shall remain the property of the
administration . The contractor may be present when            contractor, by registered mail .
the tests are carried out in one of the administration 's
laboratories or in a laboratory approved by the                The results of the check test or the expert opinion
administration.                                                shall be conclusive .
 ---pagebreak---  No L 287/40                        Official Journal of the European Communities                               14. 10. 73
The costs of the check test or the expert opinion shall         absence of indications to the contrary, it shall contain
be borne by the party for whom the result is                    a list of its contents. The delivery of the supplies shall
 unfavourable .                                                 be confirmed by the issue of a receipt to the
                                                                contractor .
5 . Period for check tests                                     Where the supplies are delivered to an establishment
                                                               of the administration, the latter shall bear the
Under penalty of being time-barred, the contractor             responsibility of bailee during the time which elapses
shall address the request for a check test or an expert        between their being delivered for storage and
opinion to the administration by registered letter not         acceptance.
later than the fifteenth calendar day following the
 day on which the decision of rejection is notified.
                                                                                Section III
Paragraph 2 shall apply to the period -for notifying
the decision of acceptance or rejection resulting from
                                                                            TERMINATION OF CONTRACTS
the check test or the expert opinion .
                                                                                ACCEPTANCE
6 . Extension of the period of performance                                       Verification operations
An extension of the period of performance may be
granted to the contractor where the check test or the                                   Article 131
expert opinion is in his favour.
                                                                1 . The supplies presented by the contractor shall
7. Rejects                                                     be subjected to qualitative and quantitive
                                                               verifications intended to establish that they satisfy the
Materials and supplies which are not of the required           contract specifications .
quality shall be rejected.
                                                               2.      The Special Conditions shall indicate :
A special mark may be applied to the latter; this may
not be such as to alter the supplies, nor may it              — the nature of and detailed procedures for
modify their commercial value.                                      verifications ,
                                                              — the administrative authorities responsible therefor,
Making use of rejected materials and supplies shall
result in a refusal to accept the supplies .                  —: the place where they are to be carried out,
                                                              — the period available to the administration for
                                                                    effecting the verifications and notifying its
                         Delivery                                   decision .
                       Article 130                             3.     This period shall begin on the first working
                                                               day following the date of delivery on condition that
The supplies shall be delivered to the place, within           the administration is in possession of the statement
the time limits and in accordance with the conditions          provided for in Article 130.
stipulated in the contract.                                    Unless the Special Conditions provide otherwise, the
                                                               length of this period shall be twenty days .
Each delivery must be accompanied by a statement
drawn up by the contractor. This statement, the form          4.      The authority responsible for verifications shall
of which may be prescribed by the administration,              advise the contractor, in good time, of the date and
shall contain, in particular :                                 time fixed for them so as to enable him to be present
— the date of delivery,                                        or to be represented . However, the absence of the
                                                               contractor or his representative shall not prevent the
— the reference number of the contract,                        verifications being carried out.
— the indentification of the contractor,
— particulars of the goods supplied and, where                   Postponements, price reduction penalties, rejections
    appropriate, details of how they were divided for
    packing .                                                                           Article 132
Each package must be clearly marked with its order             1.     Where the authority responsible for the
number as shown on the relevant statement; in the              verifications considers that the supplies could be
 ---pagebreak---  14 . 10 . 73                        Official Journal of the European Communities                            No L 287/41
accepted if certain adjustments were carried out, it            3 . Where the supplies presented give rise to
shall declare a postponement and shall invite the               reservations such that adjustments do not seem
contractor to present them again within a specific              practicable and that their use in their existing state
period after having carried out these adjustments .             does not seem possible, the administration shall
Where the contract does not specifically provide                notify the contractor of its intention to reject them.
otherwise, the administration must be informed of
the acceptance of the contractor within a period of 15          The administration must be informed of any
days from notification of the postponement decision .           objection of the contractor within 15 days of
                                                                notification of the proposed price reduction penalty.
In the event of refusal or silence on the part of the           At the end of that period, the administration shall
                                                                make a decision .
contractor within this period, or of failure to present
the supplies again within the period allowed for their
adjustment, such supplies shall be accepted subject to          The time limit stipulated in the preceding
a price reduction penalty or shall be rejected in               subparagraph shall not be taken into account when
accordance with the conditions set out below.                   making that decision, where it follows a refusal on
                                                                the part of the contractor to accept a price reduction
                                                                penalty or where, because of their nature, supplies
The work of adjusting postponed supplies may only               could not be stored separately in the administration's
be carried out inside the establishments of the                 warehouses .
administration with the special authorization of the
latter and at the contractor's expense.
                                                                4. If postponement is granted in respect of the
                                                                supplies, the whole of the period laid down for
Except in special cases which shall be decided upon             effecting the verifications shall be available to the
by the administration, no supply may be the subject             administration, from the date on which the supplies
of more than two postponements.                                 are again presented by the contractor. The same shall
                                                                apply in the event of rejection, where the
                                                                administration has authorized the          contractor to
2.      At the end of the verifications, supplies which         present new supplies .
do not entirely satisfy the conditions of the contract
but which nevertheless seem to be usable in their
existing state may be accepted subject to price                 The period available to the contractor for submitting
reduction penalties which shall consist of:                     any objections, and the period which he requires to
                                                                present the supplies again following postponement or
— a reduction in price if the defects found affect all          rejection, do not is themselves constitute grounds for
      or part of the delivery,                                  requesting an extension of the period of performance.
— a reduction in quantities in the event that the               5.    The decisions taken by the administration shall
      supplies exhibit localized blemishes.                     give the reasons for rejection, postponement or price
                                                                reduction penalties. They shall be notified to the
The administration shall inform the contractor of the           contractor, without delay, by registered letter with
price reduction penalties which it proposes to apply.           acknowledgement of receipt.
The administration must be informed of any
objection of the contractor within 15 days of                       Marking and removal of postponed or rejected
notification of the proposed price reduction penalty.                                   supplies
At the end of that period, the administration shall
make a decision. If the contractor does not accept
this decision, the supply shall be rejected.                                           Article 133
However, where the contractor is not in a position to           1 . The Special Conditions may stipulate that
replace forthwith the supplies adjudged to be                   materials or articles which have been postponed or
defective, he shall be obliged to submit to such price          finally rejected will be marked with a special sign by
reduction penalty :                                             the administration and that, where appropriate,
                                                                rejects will be denatured or destroyed.
— where the supply is urgently required,
— where, because of their nature, supplies could not            2 . The handling and transport costs which may
      be stored separately in the administration's              result from the postponement or rejection of supplies
      warehouses .                                              shall be borne by the contractor.
 ---pagebreak--- No L 287/42                           Official Journal of the European Communities                                14 . 10 . 73
3.     Should the verification operations have been              1 . where supplies are not carried out in accordance
carried out in the administration's warehouses, the                    with the provisions of the contract;
decision to reject the supplies shall stipulate a time
limit for their removal, if the Special Conditions have          2. where the supplies are not delivered within the
not already done so.                                                   contractual period of performance or where, at
                                                                       any time, performance is not proceeded with, in
4.     On expiry of that time limit, the administration                any respect whatsoever, so as to be capable of
is relieved of its responsibility as bailee and may :                  being entirely completed within this period;
— either send back as of right the supplies in
     question at the expense and risk of the contractor,         3 . where the contractor departs from written
     or
                                                                       instructions given by the administration.
— have them sold by public auction in accordance
     with the national law.
                                                                        Sanctions for non-performance attributable to
                                                                                contractor
The proceeds of the sale, less expenses, shall be held
at the disposal of the contractor unless they should
serve to pay off debts which he may be found liable                                        Article 136
to pay to the administration under the contract.
                                                                 1 . Penalties for delay
                        Acceptance                               The contractor shall, without formal notice, be liable
                                                                 for penalties for late deliveries solely by the fact of
                        Article 134                              the expiry of the period of performance.
1.     At the end of the verifications, where the                The amount of and the detailed procedures relating
supplies satisfy the contract specifications, or on the          to these penalties shall be stipulated in the Special
date of the decision to apply a price reduction                  Conditions .
penalty, where they are accepted solely on that
condition, the administration shall draw up a
statement of acceptance by which transfer of                     2. Measures to be taken as of right
ownership is effected and shall forward a copy                   Where the administration decides to apply to the
thereof to the contractor .
                                                                 contractor one or more of the measures taken as of
                                                                 right listed below, it shall first give him formal
2.     Where the Special Conditions on the contract              notice, by registered letter with acknowledgement of
have made provision for a guarantee period, the                  receipt, to put an end to the non-performance of the
acceptance referred to in paragraph 1 shall constitute           contract. The contractor may present any objections,
provisional acceptance. At the end of this period, the           by registered letter, within 15 days from the date of
administration shall draw up a statement of final                receipt of the formal notice. Upon expiry of a period
acceptance and shall forward a copy thereof to the               of 25 days from receipt of such formal notice, the
contractor. The final acceptance may be tacit if the             administration shall inform the contractor of its
supplies have not given rise to any claim during this            decision by registered letter.
period.
                                                                 The following measures may be taken as of right :
3.     Where     one   or   more     of the     exceptional
circumstances referred to in Article 90 make it                  ( a ) rescission of all or part of the contract, decided
impossible to carry out the verifications laid down in                   against the contractor;
paragraph 1 , a statement shall be drawn up
establishing such impossibility, after summoning the              ( b ) execution of the supplies outstanding under the
contractor or his representative. The statement of                      supervision of the administration up to the
acceptance or rejection shall be drawn up once this                     quantity not delivered, or only a part thereof;
impossibility ceases.
                                                                 ( c) conclusion of a contract with a third party, to
                                                                        the account of the contract or for all or part of
       Non-performance of contract by contractor                        the supplies still to be delivered, after prior
                                                                         cancellation of the original contract.
                        Article 135                                     The contractor may no longer take part in the
                                                                         execution of that part of the contract covered by
Non-performance of the contract by the contractor                       the measure taken of right, once this has been
occurs :                                                                notified.
 ---pagebreak--- 14. 10 . 73                        Official Journal of the European Communities                         No L 287/ 43
     It it is not possible for the administration to          (b ) a contract to the account of the contractor may
     obtain    raw    materials   or    articles  which            be combined with exclusion ;
     correspond exactly with those delivered and laid
     down in the Special Conditions, under conditions         ( c) cancellation decided against the contractor may
     which are appropriate to its needs, it may                    be combined with exclusion and penalties for
     substitute equivalent materials or articles.                  delay relating to the period prior to the date of
                                                                   cancellation ;
     Additional expenses resulting from supervision
     by the administration or from the new contract           (d) exclusion may be combined with any measures
     shall be borne by the contractor.                             by the administration.
(d) temporary or permanent exclusion from the
     award of contracts.                                                        Recovery of penalties
3 . Rules governing concurrence of sanctions for                                     Article 137
    non-performance of the contract
                                                              Recovery of penalties and recovery of amounts
For the application of the measures laid down in              relating to damages, disbursements or expenses
points 1 and 2, the following rules shall be applied :        resulting from the application of the measures
                                                              provided for in paragraph 2 of Article 136 shall be
(a) supervision by the administration nay be                  effected by deduction from the sums due to the
     combined with penalties for delay and with               contractor, from the deposit, or by contribution from
     exclusion ;                                              the directly liable guarantor.
              Declaration relating to Article 5 of the general terms and conditions of public works
                         and supply contracts financed by the European Development Fund
              'The word "may" used in paragraphs 3 and 4 of Article 5 means that the provisions of
              these two paragraphs will only apply to the European Development Fund referred to in
              Article 17 of the Council Decision of 29 September 1970, on the association of the
              Overseas Countries and Territories with the European Economic Community.'