>1. Framework Agreement - Minimum number of economic operators/tenders.

>
>As regards, your first question, art.32.4 of Directive 2004/18 provides
that: "Where a framework agreement is concluded with several economic operators,
the latter must be at least three in number, insofar as there is a sufficient
number of economic operators to satisfy the selection criteria and/or of
admissible tenders which meet the award criteria".
>
>This means that, by way of exception, when there is not a sufficient
number of economic operators to satisfy the selection criteria and/or of
admissible tenders which meet the award criteria, the framework agreement may be
concluded with less than three operators (i.e. with only the economic operator(s)
that satisfy the selection criteria and/or the admissible tender(s) which meet
the award criteria).
>
In case there is only one economic operator to satisfy the selection
criteria or only one admissible tender which meets the award criteria, and the
contracting authority signs a framework agreement with this single economic
operator/tenderer, the contracting authority shall take into account the
provisions of art. 32(3) of the Directive 2004/18/EC and any other provisions
applicable to framework agreements concluded with a single economic operator
(such as art. 32(2) 3rd paragraph of the same Directive).

>2. Subcontracting
>
>As regards the second part of your question on subcontracting, article
>25
of the Directive 2004/18, expressly envisages the possibility for a tenderer to
subcontract a part of the contract to third parties, as that provision states
that the contracting authority may ask that tenderer to indicate in its tender
any share of the contract which it may intend to subcontract. Furthermore,
articles 48.2(b) and 48.2(i) of the Directive
2004/18 make express provision for the possibility of providing evidence of the
technical capacity of the service provider (i) by means of an indication of the
technicians or technical bodies involved, whether or not belonging directly to
the undertaking of that service provider, and which the latter will have
available to it, or (ii) by indicating the proportion of the contract which the
service provider may intend to subcontract.
>
>
>The Directive 2004/18/EC does not contain any provisions prohibiting
>the
subcontracting of 100% of the contract.
>
However, according to ECJ case law, the Directive 2004/18/EC "does not
preclude a prohibition or a restriction on the use of subcontracting for the
performance of essential parts of the contract precisely in the case where the
contracting authority has not been in a position to verify the technical and
economic capacities of the subcontractors when examining the tenders and
selecting the lowest tenderer" (for additional information, please see ECJ
judgement in the case C314-01 Siemens).
NB. The above considerations represent solely the opinion of the competent
services of the Commission. This opinion does not prejudge the interpretation
that the Court of Justice of the European Communities, which is responsible in
the final instance for interpreting the Treaty and secondary legislation, might
place on the matters at issue.

>Kind regards,
>
>
>Elena Puiu
>
>Legal Officer
>
>EUROPEAN COMMISSION
>Internal Market and Services DG
>PUBLIC PROCUREMENT POLICY
>Formulation and enforcement of public procurement law II Tel. (32-2)
>298.41.51 Fax (32-2) 296.09.62 mailto:Elena-Loredana.Puiu@ec.europa.eu