S.L. 601.5 Art. 42Procurement involving contracting entities from different Member States.

(1) A contracting entity may, with the approval of the Director and subject to the conditions the latter may impose, participate in procurement procedures involving contracting authorities from different Member States.

(2) Where the estimated value of the joint procurement falls under the threshold established under regulation 30(1)(b), the application of this regulation shall be subject to what is established under regulations 25 and 35(n).

(3) A contracting entity may make use of centralised purchasing activities offered by central purchasing bodies located in another Member State: Provided that contracting entities shall not use the means provided in this regulation for the purpose of avoiding the application of mandatory public law provisions in conformity with Union law to which they are subject.

(4) The provision of centralised purchasing activities by a central purchasing body located in another Member State shall be conducted in accordance with the national provisions of the Member State where the central purchasing body is located.

(5) The national provisions of the Member State where the central purchasing body is located shall also apply to the following:

(a) the award of a contract under a dynamic purchasing system;

(b) the conduct of a reopening of competition under a framework agreement.

(6) Several contracting entities from different Member States may jointly award a public contract, conclude a framework agreement or operate a dynamic purchasing system.

(7) Unless the necessary elements have been regulated by an international agreement concluded between the Member States concerned, the participating contracting entities shall conclude an agreement that determines:

(a) the responsibilities of the parties and the relevant applicable national provisions;

(b) the internal organisation of the procurement procedure, including the management of the procedure, the distribution of the works, supplies or services to be procured, and the conclusion of contracts.

(8) A participating contracting entity fulfils its obligations pursuant to these regulations when it purchases works, supplies or services from a contracting entity which is responsible for the procurement procedure.

(9) When determining responsibilities and the applicable national law as referred to in sub-regulation (7)(a), the participating contracting entities may allocate specific responsibilities among them and determine the applicable provisions of their respective national laws.

(10) The allocation of responsibilities and the applicable national law shall be referred to in the procurement documents for jointly awarded public contracts.

(11) Where several contracting entities from different Member States have set up a joint entity, including European Groupings of territorial cooperation under Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European grouping of territorial cooperation or other entities established under Union law, the participating contracting entities shall, by a decision of the competent body of the joint entity, agree on the applicable national procurement rules of one of the following Member States:

(a) the national provisions of the Member State where the joint entity has its registered office;

(b) the national provisions of the Member State where the joint entity is carrying out its activities.

(12) The agreement referred to in sub-regulation (11) may either apply for an undetermined period, when fixed in the constitutive act of the joint entity, or may be limited to a certain period of time, certain types of contracts or to one or more individual contract awards.

Mixed Procurement