Vade mecum on Public Procurement in the Commission.pdf

Ref. Ares(2023)1147315 - 16/02/2023

EUROPEAN COMMISSION
Budget

Central Financial Service

VADE-MECUM
ON PUBLIC PROCUREMENT
IN THE COMMISSION

February 2016

Updated August 2022

Disclaimer

This Vade-mecum on public procurement procedures in the Commission has been produced for internal use.
The  aim  is  to  provide  contracting  authorities  in  the  European  institutions  and  agencies  with  practical
assistance in preparing and implementing these procedures.

This Vade-mecum does not apply to external actions which are covered by a separate guide (the PRAG from
DG INTPA).

It  does  not  claim  to  cover  every  single  matter  that  might  arise  in  connection  with  public  procurement.
Because of the number and variety of contracts involved, specific questions are bound to arise that cannot
be covered in what, by nature, is only a general guide. It does, however, give advice on how to find answers
to them.

Finally, it must be borne in mind that, although the Vade-mecum provides information and explanations that
are in strict compliance with the rules and regulations in force, it cannot be relied on in law.  The rules and
regulations and any clarification provided by Court judgments take precedence.

Abbreviations
used in the Vade-mecum

English
Meaning
French
ABAC
Accrual-Based  Accounting  and  financial  IT  system  of  the  European
Commission;  one  of  its  modules  is  the  register  of  contracts  called
“ABAC contracts”
AO
Authorising Officer
ordonn
ateur
CEI
Call for expressions of interest (“appel à manifestations d’intérêt”)
AMI
CPV
Common Procurement Vocabulary

EDES
Early Detection and Exclusion System

EMAS
Environmental Management and Audit Scheme

EURM
EU Restrictive Measures

FR
Financial Regulation
RF
FWC
Framework Contract
CC
FTS
Financial Transparency System

GPA
Government Procurement Agreement

IPR
Intellectual Property Rights

ISO
International Organisation for Standardization

LCC
Life-cycle costing

MEAT
Most economically advantageous tender

MS
Member States
EM
NACE
French acronym for Statistical Classification of Economic Activities in  NACE
the  European  Union  (“Nomenclature  générale  des  activités
économiques dans l'Union européenne”)
OJ S
Supplement  to  the  Official  Journal  of  the  European  Union,  where  JO S
procurement notices are published
PO
Publications Office
OP
PPMT
Public Procurement Management Tool

TED
Tenders Electronic Daily

TFEU
Treaty on the Functioning of the European Union
TFUE
TEU
Treaty on the European Union
TUE

7

Glossary

English
Meaning
French
request to
the first step in two-step procurement procedures
candidature
participate
award notice   advertisement  published  in  the  OJ  S  to  inform  avis
interested  parties  that a  contract  has  been  awarded or  d'attribution
is to be awarded
buyer profile  part of the web page of the contracting authority where  profil d’acheteur
information concerning its procurement is published
call for
a public procurement procedure (regardless of the type
appel d’offres,
tenders
of procedure)
appel à la
concurrence
candidate
any  economic  operator  who  submits  a  request  to  candidat
participate in a two-step procedure
concession
type  of  contract  used  when  purchasing  a  service  or  contrat de
contract
works concession (as opposed to public contract)
concession
contract
generic term that may refer to any type of contract and  contrat
includes both public contract and concession contract

contract
advertisement  launching  the  procurement  procedure  avis de marché
notice
published in the OJ S
contracting
public body launching a procurement procedure
pouvoir
authority
adjudicateur
day
unless specified otherwise,  “day” means a calendar day  jour
(not a working day)
direct
contract  containing  all  the  details  necessary  to  contrat direct
contract
implement it (as opposed to FWC)
(the)
the  Public  Procurement  Directive  –  Directive  la directive
Directive
2014/24/EU  of  the  European  Parliament  and  of  the
Council of 26 February 2014
thresholds
thresholds  as  from  which  the  Directive  applies,  which  seuils de la
set in the
are updated on 1 January of even years
directive
Directive
economic
any natural or legal person, including a public entity or  opérateur
operator
group thereof that offers supplies, services or works on  économique
the market
framework
contract establishing the general outline of the services  contrat cadre
contact
or  supplies  to  be  delivered  and  requiring  an  additional
(FWC)
step to make the actual purchase
invitation to
letter  giving  the  necessary  details  for  tender  invitation à
tender
submission; it is part of procurement documents
soumissionner
order form
simplified  form  of  specific  contract,  used  under  a  bon de
framework contract
commande
prior
optional  advertisement  in  the  OJ  S  announcing  the  avis de pré-
information
intention of launching the procurement procedure in the  information
notice
near future
purchase
simplified  form  of  direct  contract  used  for  simple  bon d'achat
order
purchases of low value
8

specific
contract  specifying  details  of  a  particular  purchase  contrat
contract
based on a framework contract
spécifique
technical
document  describing  the  subject  of  the  procurement  spécifications
specifications  (part of the tender specifications)
techniques
tender
offer,  bid;  sometimes  incorrectly  used  as  public  offre
procurement procedure
procurement  set of documents presented by the contracting authority  documents
documents
to economic operators to enable them to submit tenders  d’appel à la
(includes  notice,  tender  specifications,  draft  contract  concurrence
and invitation to tender)
public
type of contract used when purchasing services, supplies  contrat public
contract
or works (as opposed to concession contract)
tender
document  or  set  of  documents  giving  full  details  of  the  cahier des
specifications  subject  matter,  conditions  and  organisation  of  the  charges
procurement
procedure
(includes
technical
specifications and criteria)
tenderer
an economic operator who has submitted a tender
soumissionnaire

9

Part 1. Introduction and definitions
1.1. Scope of this Vade-mecum
This Vade-mecum applies only to public contracts for services, supplies, works and buildings
or concession contracts for services or works concluded by the European institutions on their
own account, as defined in Title VII, Chapter 2 of the Financial Regulation.
It does not cover operations such as staff recruitment, to which different rules apply.
Nor does it cover contracts concluded by the Commission on behalf of and on the account of
one or more beneficiaries in connection with external actions (see Practical Guide to contract
procedures  for  EU  external  actions),  as  defined  in  Title  VII,  Chapter  3  of  the  Financial
Regulation.  The  award  of  such  contracts  is  subject  to  the  special  provisions  laid  down  in
Chapter 3 of Annex 1 to the Financial Regulation.
Throughout this Vade-mecum, “EU procurement”, “EU public contracts” or “awarded by the
contracting authority” mean public contracts awarded by the Commission, other institutions,
executive agencies,  decentralised agencies or the European External Action Service on their
own account, as defined above.

EU
budget
expenditure
of EU institutions
External
Grants
experts
Staff
External actions
employment
Administrative
procurement
arrangements
Commission
procurement

10

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1.2. Procurement at a glance
1.2.1. Does this Vade-mecum apply?

I want to buy something. Do I need to follow the rules in this Vade-mecum?

Am I going to spend EU money?

No 
Follow the rules laid down by the owner of
Yes
the money.
Go to the next question.


Am I going to pay money and receive something in

It is most probably a grant: see Vade-
No 
mecum, Chapter 1.5.1.
return for the contracting authority's needs?

Yes

It  may  be  also  interest  for  late  payments,
Go to the next question.
compensation ordered by a court, a penalty

or a fine.

Am I paying for something that could be considered to

be employment of staff?
Yes 
See Vade-mecum, Chapter 1.5.2.

No
Go to the next question.


Am I paying an individual expert a fixed fee to

evaluate tenders, proposals or projects or to provide

Yes 
See Vade-mecum. Chapter 1.5.3.
advice?

No
Go to the next question.


Am I buying on behalf of the European institutions?

If I am buying on behalf of a  state outside
No 
the  EU,  different  rules  apply.  For  further
Yes

information  see  the  Practical  Guide  to
Go to the next question.
contract  procedures  for  EC  external

actions.

Am I buying from another European institution or

You  are  going  to  sign  an  administrative
another service of the Commission?
Yes 
agreement  which  is  not  a  public

procurement contract.
No



Your answers to the questions above indicate that you do need to follow the procurement
rules in this manual.

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1.2.2. Before launching the procurement procedure
Before you start your procurement procedure, answer the following further questions:


Maybe I already have what I need?

You  may  consult  ABAC  LCK  or
It is advisable to make sure that no-one else – in your or another DG – has already
Yes   Budgpedia  to  look  for  existing
signed a contract covering your needs.
contracts or framework contracts or

the Official Journal on TED to look
No
for  existing  Calls  for  Expression  of
Go to the next question.
Interest  (see  Chapter  3.6)  or

contact  colleagues  who  may  be
dealing with similar issues.

You  have  to  identify  the  budget
Do I have the money available?
No   line, make sure that the legal basis
You have to be sure that you are indeed allowed to make the budgetary commitment

and  budget  comments  permit
(not in case of framework contract).

procurement  and  verify  how  much

time  you  have.  E.g.  administrative
Yes
expenditure  (chapter  01  of  each
Go to the next question.
title  of  the  budget)  is  qualified  as

non-differentiated  and  thus  should

be  contracted  in  the  current  year
(N)  and  spent  until  the  end  of  the
fol owing year (N+1).
Is there a framework contract that I can use?

It is advisable to consult the ABAC contract system to identify whether there is a valid

framework contract covering your field of interest. If there is, contact the department
Yes   See Chapter 2.7.

managing it to verify whether the level of use made of it allows an additional specific
contract.

No
Go to the next question.


Do I have a financing decision covering my needs (for

You  cannot  launch  the  procedure
No   without  a  financing  decision.  See
operational expenditure only)?

Chapter 2.1.

Yes
Go to the next question.


Do I know who is responsible for my procurement?

You  have  to  know  which
You have to know the main parties involved in your procedure.

contracting  authority  wil   sign  the

No   contract  and  who  the  authorising
Yes

officer is.
Go to the next question.


Do I know what type of contract I need?

See Chapter 2.6.
You have to know whether you are going to buy services, supplies or works or to sign a
No 
building contract or whether you need a concession contract.

Yes
Go to the next question.

Do I know what principles I need to follow?

See Chapter 1.4.1.
No 
Yes

Go to the next question.

Do I know the value of my purchase?

No   See Chapter 2.2.4.
Yes


Now you should start preparing your procurement procedure. Please continue with choosing
the type of the procedure.
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1.2.3. What procedure to use?

Do you want an “all-in-one” procedure, where any interested economic operators will get all
the information they need for preparing a tender and then you will evaluate all the tenders
in one go and choose the best one? Then you might opt for an:
3.3 Open procedure

Do you want to pre-select operators who have the economic and technical capacity necessary
for  implementing  your  contract  and  ask  only  them  to  send  you  a  tender?  Then  you  might
choose a:
3.4 Restricted procedure

You are in a situation where you can negotiate with tenderers, e.g.:
you need a concession contract;
you need training or hotel or restaurant services;
Then you might be interested in a:
3.5 Competitive procedure with negotiation

Do you need a series of similar services or supplies over a period of time and do not yet know
exactly when nor all the details, but are sure that the yearly value will be below Directive
threshold? Then the best way to deal with this situation might be to launch one of these two
procedures:
3.6.3. List of pre-selected candidates

3.6.4 List of vendors

The value of your procurement is below the Directive threshold? Then you may use the:
3.7. Negotiated procedure for middle or low- value contracts

You are in exceptional circumstances, e.g.:
You have received no tender in response to your open or restricted procedure and this is
definitely not due to bad timing or imprecise tender specifications.
There is a monopoly situation on the market.
Then you might be interested in a:
3.8. Negotiated procedure without publication

You  intend  to  procure  a  particularly  complex  product  or  service  and  you  want  to  hold
discussions  with  pre-selected  candidates  to  come  up  with  options  for  the  best  solution  and
then ask them to send you their tender based on the outcome of this dialogue? Then you are
entitled to use a:
3.9. Competitive dialogue

You intend to procure something which does not exist so you will finance research services
and purchase the end-product. Then you should use an:
3.10. Innovation partnership

You need fresh ideas in a field where creativity is a must and where you have to ask for
proposals without previously giving details of every aspect of the future contract? In this case
you could go for a:
3.11. Design contest

13

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1.2.4. What kind of contract to choose?
Before launching the procurement procedure you also have to decide what kind of contract
you will use. Depending on its subject, repetitiveness and value you may choose one of the
following:

Type of
contract
Direct
Framework
Concession
Subject
Direct service contract
Framework service contract
Concession
If  you  are  procuring  services  If  you  are  procuring  series  of  contract
and  the  precise  volume  and  services but the precise volume and
timing  of  delivery  can  be  timing of delivery cannot be defined
defined at the outset:
at the outset, the volume and other
Services
model  direct  contract  or,  for  a  specific conditions will be laid down
low  or  middle  value,  model  in  “specific  contracts”  or  “order
purchase order
forms”:
(It  is  a  simplified  direct  model framework contract
contract)
Direct supply contract
Framework supply contract
Not applicable
If  you  are  procuring  supplies  If  you  are  procuring  series  of
and  the  precise  volume  and  supplies but the precise volume and
timing  of  delivery  can  be  timing of delivery cannot be defined
defined  at  the  outset:  model  at the outset, the volume and other
Supplies
direct contract
specific conditions will be laid down
or,  for  a  low  or  middle  value,  in “order forms”:
model purchase order
model framework contract
(It  is  a  simplified  direct
contract)
Work contract
Framework work contract
Concession
If  you  are  executing  works  to  If you are procuring a series of
contract
construct  all  or  part  of  a  works to construct all or part of

Works
building (provided by OIB):
buildings.
model contract
Used mainly by OIB and OIL, there
is no model contract provided.
Model contract
Building contract

Buildings
If you are buying or renting all
or part of a building
1.2.5. Sales of assets
The  sale  of  assets  follows  a  procedure  similar  to  procurement  procedures,  on  the  basis  of
Article 87(2) of the FR. The obligation of transparency is based on the value of the purchase
of the asset.
The contracting authority must obtain the highest price for these sales, in respect of sound
financial management principle.
The principles applicable to procurement can be used for sales.
As an exception, these rules don't apply to sales between Union Institutions and their bodies
referred to in Article 70 of the FR.
14

1.3. How to use this Vade-mecum?
This Vade-mecum is structured in a way that will allow you to consider the key factors which
determine the choice of procedure right at the start of the procurement operation and then to
go straight to the relevant parts:
–  Part  1  “introduction  and  definitions”  sets  out  the  scope  of  this  Vade-mecum,  the  basic
concepts  which  apply  to  all  contracts,  sales  and  other  types  of  expenditure  which  are  not
procurement.
–  Part  2  “Conceiving  the  purchase  and  the  contract”  presents  the  obligations  as  regards
financing  decisions,  the  factors  which  services  must  take  into  account  when  defining  the
characteristics  of  a  purchase,  joint  and  interinstitutional  procurement  and  the  different
types of contracts.
–  Part  3  “Procurement  procedures  and  systems”  presents,  one  by  one,  the  different
procedures  which  apply,  depending  on  the  nature  and  value  of  the  contracts,  as  well  as
specific electronic systems that may be used in procedures.
– Part 4 “Stages in the procurement procedure” gives a detailed description of the steps in
the procedure.
–  Part  5  “Contract  management”  gives  information  about  basic  concepts  and  dealing  with
potential problems with contract implementation.
This structure makes it possible to refer directly to the chapter(s) concerning any particular
part  of  the  procurement  exercise.  It  also  avoids  repetition  of  chapters  common  to  several
types of procedure.

The  Vade-mecum  also  offers  a  facility  to  go  straight  to  the  description  of  any  particular
aspect of the procedure, using the links in the overview table at the end of the description of
each procedure.

This symbol is used to explain how eProcurement supports the process.

15

1.4. What is public procurement?
1.4.1. Basic information about EU public procurement
“Public  procurement”  means  the  purchasing  of  works,  supplies  and  services  by  public  bodies  at  either  national  or
Union level. Public procurement within the European Union is governed by Directive 2014/24/EU, while the legal
basis for Commission procurement is laid down in the Financial Regulation (FR).

The goal of procurement rules
EU  public  procurement  plays  an  important  part  on  the  single  market  and  is  governed  by  rules  intended  to  remove
barriers and open up markets in a non-discriminatory and competitive way. The objective of public procurement is
to  increase  the  choice  of  potential  contractors  to  public  bodies,  thereby  allowing  achieving  a  most
economically advantageous tender, while at the same time developing market opportunities for companies.
The following rules should be followed:

Accountability:  effective  mechanisms  must  be  in  place  in  order  to  enable  authorising  officers  of  the  contracting
authority to discharge their personal responsibility on issues of procurement risk and expenditure.
Competition: procurement should be carried out by competition, unless there are justified reasons to the contrary.
Consistency: economic operators should be able to expect the same general procurement policy across the public
sector.
Effectiveness:  the  contracting  authority  should  meet  its  commercial,  regulatory  and  socio-economic  goals  in  a
balanced manner.
Efficiency: procurement processes should be carried out as cost effectively as possible.
Equal  treatment:  economic  operators  should  be  treated  fairly  and  without  discrimination,  including  protection  of
commercial  confidentiality  where  required.  The  contracting  authority  should  not  impose  unnecessary  burdens  or
constraints on economic operators.
Informed decision-making: the contracting authority needs to base decisions on accurate information and to monitor
requirements to ensure that they are being met.
Integrity: there should be no corruption or collusion with or between economic operators.
Legality: the contracting authority must conform to European Union law and other legal requirements.
Responsiveness: the contracting authority should endeavour to meet the aspirations, expectations and needs of the
community served by the procurement.
Transparency: the contracting authority should ensure that there is openness and clarity on procurement policy and
its delivery.

Advertising the contract
Most contracts covered by the public procurement rules must be subject to a call for tenders in the form of a notice in
the OJ S.

Choosing the right award procedure
The notice published in the OJ S must specify the  procurement procedure that the contracting authority will follow.
There are three main award procedures: open, restricted and negotiated. The contracting authority has a free choice
between the open and restricted procedure, but may use the negotiated procedure only in specific circumstances.

Conclusion
Any contracting authority awarding a contract should remember the following key principles:
Be open and transparent – allow tenderers to understand what you are going to do and how
you are going to do it.
Be objective and ensure equal treatment of tenderers – allow all tenderers a fair and equal
chance of winning the contract.
Be consistent – do what you said you were going to do.
Tenderers should ensure that they understand the procedure and, if in doubt, seek clarification from the contracting
authority.

16

1.4.2. Legal basis and general principles
The  legal  basis  for  EU  procurement  consists  of  the  relevant  articles  of  the  Financial
Regulation (FR) and its Annex 1. Please note that all legal references to the FR should point
to the initial act only, which include by definition all subsequent amendments (dynamic legal
reference)1.
  Financial  Regulation  –  Regulation  (EU,  Euratom)  No  2018/1046  of  the  European
Parliament  and the  Council  of  18  July  2018 on  the  financial rules  applicable  to  the
general  budget  of  the  Union2,  Part  One,  Title  V  (Common  rules),  Title  VII  (Public
procurement and concessions) and Annex 1.
  Judgments, mainly of the General Court in procurement cases.
The  FR  incorporates  the  rules  from  Directive  2014/24/EU3  on  public  procurement  (“the
Directive”) and Directive 2014/23/EU on concessions4.
The provisions of the FR will be described in detail, with examples, in each chapter of this
Vade-mecum.  At  this  stage  it  is  important  to  look  at  some  of  the  fundamental  concepts
underlying  procurement  which  contracting  authorities  must  keep  in  mind  throughout  the
procedure.
  All EU procurement must comply with the principles of transparency, proportionality,
equal treatment and non-discrimination and sound financial management.
  The  basic  rule  underlying  public  procurement  is  to  ensure  competition  between
economic operators. Cases where a contracting authority can approach an operator of
its  choice  without  launching  a  competitive  procedure  are  the  exception  and  are
reserved for specific, clearly defined situations.
  Competitive procedures are based first on a precise definition of the subject and terms
and conditions of the contract and, second, on a variety of criteria, of which operators
must be notified so that they can draw up their tender accordingly.
  The  EU  institutions  are  not  legally  bound  vis-à-vis  an  economic  operator  until  the
contract  is  signed.  This  should  be  made  clear  in  all  contacts  with
candidates/tenderers.  Up  to  the  time  of  signature,  the  contracting  authority  may
cancel  the  procedure  without  the  candidates/tenderers  being  entitled  to  any
compensation.  Reasons  must,  of  course,  be  given  for  the  decision  and  the
candidates/tenderers must be notified.
Complying with the legal requirements relating to public procurement should not be seen as
a  mere  formality  or  bureaucratic  requirement  with  no  real  implications,  as  any  economic
operator who is eliminated from a procurement procedure can use failure to comply with any
one  of  these  requirements  as  grounds  to  challenge  the  decision  awarding  the  contract  and
possibly have it annulled. Moreover, failure to comply may lead to non-contractual liability
(damages) against the contracting authority. Compliance is also essential for administrative

1    See  the  DAP  (Drafter's  Assistance  Package):  Home  -  DAP  -  EC  Extranet  Wiki  (europa.eu)  (only
Commission access)
2 Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018
on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No
1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No
1316/2013,  (EU)  No  223/2014,  (EU)  No  283/2014,  and  Decision  No  541/2014/EU  and  repealing
Regulation (EU, Euratom) No 966/2012, OJL 193, 30.7.2018, p. 1, see  https://eur-lex.europa.eu/legal-
content/EN/TXT/?uri=uriserv:OJ.L_.2018.193.01.0001.01.ENG&toc=OJ:L:2018:193:TOC
3 OJ L 94, 28.03.2014, p. 65, see http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32014L0024&from=EN
4 OJ L 94, 28.03.2014, p. 1, see http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32014L0023&from=EN

17

and political reasons (scrutiny by the European Parliament’s Budgetary Control Committee,
the Ombudsman, the Court of Auditors, etc.).
1.5. What is not public procurement – other types of expenditure
1.5.1. Grants
This Vade-mecum does not apply to grants paid from the Union's budget. Still it is helpful to
look  at  the  definition  of  grants  in  order  to  draw  a  clear  distinction  between  them  and
contracts.
“Grants  are direct financial  contributions,  by way  of donation, from the  budget  in  order  to
finance:
a)  either  an  action  intended  to  help  achieve  an  objective  forming  part  of  a  European
Union policy;
b)  or the functioning of a body which pursues an aim of general European interest or has
an objective forming part of a European Union policy.”
As a general rule, the difference between a public contract and a grant is fairly clear. Briefly,
in the case of a contract the Commission obtains a product or service it needs in return for
payment, while in the case of a grant it makes a contribution either to a project carried out
by an external organisation or directly to that organisation because its activities contribute
to Union policy aims.
Generally,  the  legal  basis,  financing  decisions  and  budget  lines  include  comments  that
determine whether the expenditure should be classified as procurement or grant.
The table below explains into which category the proposed operation falls into by virtue of its
main characteristics.
Please  note  that  if  an  economic  operator  is  a  beneficiary  of  a  grant,  it  does  not  prevent  it
from being awarded a contract.
Comparison of procurement and grants

Public contract
Grant
Purpose
To acquire a supply, service, work or building which the
To encourage action recognised by the Commission as useful
contracting authority needs for its own activities.
for Union policies, but which fal s primarily within the scope of
the beneficiary’s activities.
Initiative and  Lie entirely with the contracting authority (CA): the CA
The application for financing originates with the beneficiary,
control
produces the detailed specifications. The successful
who submits a proposal for support for activities it is carrying
tenderer must comply with the specifications.
out or plans to carry out in response to a Commission call for
proposals. The proposal sets out the specifications for the
action to be performed within the framework laid down in
advance by the Commission.
Ownership
Ownership as a rule remains with the contracting
Ownership as a rule remains with the beneficiary of the grant.
authority.
Union
The contracting authority pays 100% of the contract price.  The grant may not finance the total cost of the action, save in
contribution
exceptional cases.

The contract is bilateral: it imposes reciprocal obligations
Conditions are attached to the grant awarded, but there is no
Mutual
on the CA and on the contractor
direct specific link between individual obligations on either side
obligations
The CA monitors the delivery of the purchase.
(Commission and beneficiary).
and
The Commission has the right to monitor technical
monitoring
implementation of the action and the use made of the funds
granted.
Profit
It is natural that the contractor's remuneration should
In principle the grant must not have the purpose or effect of
include an element of profit.
producing a profit for the beneficiary.
Procedures
Tenders are received in response to a call for tenders.
Grant applications are normally received in response to a call
for proposals.
Legal
The outcome of a procurement procedure is a contract.
The outcome of a grant award procedure takes usual y the form
instrument
of a grant agreement.

For further information on awarding grants see the Grants Vade-mecum.

18

1.5.2. Employment contracts
The  confusion  between  employment  contract  and  provision  of  services  can  lead  to  difficult
legal  situations,  since  the  link  between  the  contracting  authority  and  the  contractor  can
sometimes be misconstrued as an employment contract.
In fact, despite the diversity of national law, the national courts will almost always take into
account a range of factors, including:
  working  on  Commission  premises,  using  Commission  infrastructure  and,  especially,
having an e-mail address ending in “@ec.europa.eu” instead of “… @ext.ec.europa.eu”, a
job  description  in  Sysper,  the  right  to  use  a  parking  space  in  Commission  buildings,
etc.;
  the existence of a hierarchical link, whether formal (clauses in a contract or references
in  specifications)  or  de  facto  (authorisation  of  leave  or  organisation  of  working  time,
attendance requirements (hours or days), services provided expressed in terms of hours
per month, taking instructions from and reporting to a “hierarchical superior”, etc.);
  payment  for  services  comparable  with  a  salary  (fixed  monthly  amount  rather  than
payments for individual specifically defined tasks);
  the  nature  of  the  tasks  actually  performed  (as  compared  with  the  description  of  the
service purchased under the procurement procedure);
  the duration and continuous nature of the services. DG HR insists that natural persons
should not provide services for the Commission for more than six years over a period of
twelve  years5.  However,  this  precaution  is  not,  in  itself,  enough  to  prevent  confusion.
Application of this restriction must be checked (in principle by DG HR).
Using  loose  terminology  can  also  create  a false  impression  of  the  nature of  the  contractual
link: a service provider operating under a service contract is not “recruited”, does not have a
“job” or “duties” at the Commission, is not paid a “salary”, does not “take leave” and does not
“resign”. All these terms imply employment, and hence obligations for the institution as an
employer, rather than performance of a public contract.
Consequently,  special  attention  must  be  paid  to  these  aspects  when  drawing  up  the
procurement documents and during performance of the contract.

1.5.3. External experts
For  contracts  with  a  value  below  the  threshold  set  in  the  Directive,  a  procedure  based  on
Article 237 FR (call for expression of interest) may be used to select experts needed to assist
in evaluation of grant proposals or procurement tenders, in project follow-up and in ex-post
evaluation and for providing opinion and advice in specific cases.
The  procedure  for  the  selection  and  use  of  experts  is  different  from  the  procurement
procedures.  The  remunerated  external  experts  represent  a  separate  instrument  for
implementing  the  Union  budget,  such  as  grants,  procurements,  financial  instruments  etc.
The    the  remunerated  external  experts’  contracts  are  therefore  different  compared  to  the
procurement contracts, despite the fact that the general principles, of transparency and non-
discrimination  for  example,  also  apply.  The  main  difference  is  that  there  is  nocompetitive
tendering based on price, since the price is fixed by the institution.
Moreover, it is only aimed at natural persons who are selected "ad personam" and does not
require  submission  of  tenders.  The  selection  of  experts  relies  on  the  evaluation  of  their
professional capacity as needed depending on the tasks they will execute.
It  is  however  possible  to  contract  the  services  of  external  experts  under  a  framework
contract, provided the framework contract covers this type of tasks. The experts may be staff
of  the  contractor  or  sub-contractors.  It  does  not  matter  whether  the  experts  providing

5 http://intracomm.ec.testa.eu/guide/publications/infoadm/2004/ia04075_en.html.

19

services  under  existing  contracts  are  delivering  them  extra  muros  or  intra  muros,  because
they  are  considered  as  outside  experts  in  the  meaning  that  they  are  not  employed  by  the
contracting  authority.When  external  experts'  services  are  contracted  under  a  framework
contract, the tasks are performed under the responsibility of the contractor and the payment
of the services is made to the contractor according to the provisions of the contract.
The  authorising  officer  responsible  must  ensure  that  these  external  experts  satisfy  the
obligations  concerning  conflict  of  interests  and  confidentiality.  For  this  purpose,  each
external expert must sign a declaration of no-conflict of interests as well as a code of conduct.
These  must  be  attached  to  the  specific  contract  concluded  with  the  contractor  under  a
framework contract or to the expert's contract if there is no framework contract involved.
It should also be pointed out that remunerated external experts are not a category of staff.
Their  tasks  cannot  include  executive  powers  of  the  institution  and  cannot  lead  them  to
exercise discretionary power6 . When their tasks consist in evaluating proposals submitted in
a  call  for  proposals  or  tenders,  the  external  experts  are  not  members  of  the  evaluation
committee7, but they only assist the committee. Therefore, they should not participate in the
meetings of the committee (except on request of the evaluators for clarifying their opinion if
necessary)  and  cannot  be  involved  in  the  drafting  of  the  evaluation  report.  The  role  of
external  experts  is  to  provide  an  opinion  in  writing  about  all  the  tenders  or  proposals
received,  but  limiting  their  opinion  to  their  field  of  expertise.  External  experts  do  not  sign
the evaluation report including the award recommendation by the committee.
For further details, see the Interpretative Note on Remunerated External Experts published
on BUDGpedia.
1.6. Conflict of interests in procurement
The term "conflict of interests" is used with different meanings in different contexts. To avoid
confusion, four main cases can be distinguished:
(1) conflict of interest for the contracting authority,
(2) grave professional misconduct,
(3) involvement in drafting tender specifications and distortion of competition,
(4) professional conflicting interests.
(1)  The  notion  of  conflict  of  interests  refers  normally  to  situations  where  an  agent  of  the
contracting authority is in one of the cases listed in Article 61 FR, i.e. where the impartial
and  objective  exercise  of  the  function  of  the  person  is  compromised  for  reasons  involving
family,  emotional  life,  political  or  national  affinity,  economic  interest  or  any  other  interest
with a candidate, tenderer or contractor.
If this situation happens or if there is a risk that this situation may happen, the person has
the obligation to inform its hierarchy in writing and the hierarchy will decide the appropriate
action.  This  includes  finding  that  there  is  no  conflict,  removing  the  person  from  a  specific
activity, etc.
In procurement, this applies to the persons and authorising officer in charge of the procedure
as well as to persons involved in opening and evaluation phases.
The term "conflict of interests" does not apply to economic operators and should not be used
with reference to them. It can only refer to the contracting authority. For economic operators
please see paragraph 4 below on professional conflicting interests.
(2) There are specific situations for economic operators which qualify as "grave professional
misconduct" and not as conflict of interests, e.g.:

6 Article 62 FR.
7 Article 150(3).
20

-  where  the  operator  attempts  to  unduly  influence  the  decision-making  of  the  contracting
authority during a procurement procedure;
-  where  the  operator  enters  into  agreement  with  other  operators    in  order  to  distort
competition;
-  where  the  operator  tries  to  obtain  confidential  information  that  may  give  it  undue
advantages in the procedure.
These cases are listed in Article 136(1) (c) FR and are a basis for exclusion of the operator.
(3) There are cases where the contracting authority used a technical assistance contract to
help drafting the tender specifications of a subsequent procurement procedure. In this case,
it is the responsibility of the contracting authority to ensure equality of treatment between
the  operator  involved  in  the  technical  assistance  and  other  economic  operators.  The
contractor  involved  in  the  preparation  of  procurement  documents  can  be  rejected  from  the
subsequent procedure only if its participation entails a distortion of competition and that this
cannot be remedied otherwise (Article 141(1) (c) FR).
It is up to the contracting authority to prove the distortion of competition and to prove that it
has  taken  all  possible  measures  to  avoid  the  rejection.  Such  rejection  is  subject  to  a
contradictory procedure, so the tenderer must be given the opportunity to prove that its prior
involvement cannot distort competition.
In practice, it is strongly recommended to avoid the rejection and to prepare the necessary
measures to avoid distortion of competition from the beginning, i.e. from the first contract.
In  particular,  the  information  given  to  the  technical  assistance  contractor  during  the
preparation  of  the  tender  specifications  should  also  be  communicated  to  other  economic
operators in the second procedure.
Besides, the time limit for receipt of tenders of the second procedure should be long enough
(well  above  the  legal  minimum)  to  ensure  that  all  operators  can  absorb  the  relevant
information.  A  short  time  limit  would  indeed  give  an  undue  advantage  to  the  technical
assistance contractor.
(4) Finally, there are specific cases where the operator has a professional conflicting interest,
which negatively affects its capacity to perform a contract (Point 20.6 Annex 1 FR). This is
treated at the selection stage, under the technical and professional capacity. This provision is
meant to avoid any situations in which the previous or ongoing professional activities of an
economic  operator  or  even  the  personal  situation  of  a  key  manager  affects  its  capacity  to
perform  a  contract  in  an  independent,  impartial  and  objective  manner.  Examples  of  such
situations are cases where an operator is awarded a contract:
- to evaluate a project in which it has participated or has vested interests;
-to audit accounts which it has previously certified;
-to evaluate a programme under which it has previously received subsidies;
-to conduct a study providing input to a Union policy regulating a sector where the operator
has its business interests;
Where the contracting authority has established that the operator is in such a situation, the
corresponding tender is to be rejected. These cases often arise in contracts for the provisions
of services where the objectivity is of great importance such as contracts for evaluation, audit
framework  contracts,  contracts  for  the  provision  of  consultancy  services  as  well  as  policy
related contracts.
For more information, see Chapter 4.7.5.4.
21

1.7. eProcurement
The  eProcurement  programme  is  a  corporate  IT  programme,  which  is  running  under  the
SEDIA  (Single  Electronic  Data  Interchange  Area)  programme8.  Other  corporate  IT
programmes  that  are  currently  running  under  the  SEDIA  umbrella  are  eGrants  and
eExperts projects, which were developed to serve all participants and recipients involved in
EU grants and procurement.
The  eProcurement  programme  is  a  fully  integrated,  automated  and  paperless  solution,
limiting to the strict minimum the manual input of data and covering the entire procurement
process (all procedures, contract types and procurement steps): from the preparation of the
procedure,  to  the  execution,  the  contract  implementation  and  up  to  the  inventory  and
logistics  management  of  the  material.  It  provides  a  smooth  user  experience  and  full
integration with the financial, budgetary and accounting processes (ABAC / SUMMA). With
this  programme,  the  Commission  takes  a  decisive  step  towards  harmonisation  and
simplification.
The current eProcurement landscape consists of the following systems supporting the
procurement process:
  ePreparation (PPMT- Public Procurement Management Tool): supports the planning,
preparation  and  monitoring  of  all  types  of  procurement  procedures  under  the  FR.
PPMT  is  mandatory  for  all  procedures  with  eSubmission.  The  system  creates  Ares
procurement  (sub)files,  draft  notices  in  eNotices,  draft  calls  in  eTendering  and
supports the  nomination  of procurement  committees.  PPMT  is  currently  used  by  all
DGs and Executive Agencies. Other institutions and decentralised agencies are in the
process of onboarding. For detailed PPMT user guidance check the  PPMT section of
the eProcurement wiki.
  eNotices: supports the preparation and publication of all types of contract notices. It is
mandatory for use in all procedures where a contract (award) notice is to be published
in the Official Journal. eNotices is used by all EU institutions, bodies and agencies.
PPMT creates and pre-fills the draft notices in eNotices.
  TED  eTendering: supports  the  publication  of  call  for  tenders  and  procurement
documents,  the  management  and  publication  of  questions  and  answers  in  the
submission  phase.  It  is  mandatory  for  all  procedures  with  a  contract  notice  and  all
procedures with eSubmission. TED eTendering is used by almost all EU institutions,
bodies and agencies. PPMT creates, pre-fills and transfers procurement documents to
all  types  of  TED  eTendering  calls.  You  can  find  helpful  eLearning  videos  on  TED
eTendering  click here  (available  for  eTendering  users  -  keep  in  mind  that
the integration with PPMT is not reflected in those videos).
  Funding  &  Tenders  Portal: entry  point  for  participants  and  experts  in  funding
programmes  and  tenders  managed  by  the  European  Commission  and  other  EU
bodies.  All  public  calls  for  tenders  published  on  TED  eTendering  are  also  displayed
and  searchable  in  Funding  &  Tenders  Portal.  For  more  information  check  the
Funding&Tenders eProcurement wiki.
  eSubmission: supports  the submission  of  requests  to  participate/tenders  in
procurement  procedures.  eSubmission  is  mandatory  for  all  procedures  supported  by
eSubmission  (check  here  which  procedures  are  supported  at  the  moment).
eSubmission is used by most EU institutions, bodies and agencies.
  MyWorkplace: corporate  user  centric  platform  guiding  users  through  their  tasks  in
eSubmission  back-office  (e.g.  opening  of  requests  to  participate/tenders,  access  to
tenders)  and  the  new  eProcurement  contract management solution (currently  under
development,  available  only  for  external  action  procurement).  For  more  information
check MyWorkplace wiki.

8  The  SEDIA  (Single  Electronic  Data  Interchange  Area)  Programme  was  set  up  in  2017  with  the
objective  to  offer  a  single  'electronic  data  interchange  area'  for  all  participants  in  EU  grants  and
procurement as foreseen in Article 147(1) FR.
22

More information on the eProcurement programme and detailed guidance on how to use the
eProcurement tools can be found in the eProcurement wiki.

23

Part 2. Conceiving the purchase and the contract
2.1. Financing decision
Contracts  must  be  covered  by  a  “financing  decision”,  as  provided  for  by  Article 110  FR,  in
case  of  operational  appropriations.  This  is  not  necessary  in  the  case  of  administrative
appropriations including technical support lines (of the form XX 01, also called ex-BA lines).
The  financing  decision  is  needed  for  framework  contracts,  even  if  no  appropriations  are
needed at this stage, and for direct/specific contracts.
It must indicate:
-
the total budget reserved for the procurements during the year;
-
the  indicative  number  and  type  of  contracts  envisaged  and,  if  possible,  their
subject in generic terms;
-
the indicative timeframe for launching the procurement procedures.
Further information is available in the Financing decision and annual work programme circular.
2.2. Characteristics of the purchase
For  departments  considering  launching  a  procurement  procedure,  the  first  step  is  to
determine the characteristics of the contract, i.e. its subject, duration and value.
Note that as a matter of principle, to ensure transparency and sound financial management,
a framework contract should not be envisaged if the same subject matter is already covered
by another existing framework contract (inter institutional or not) to which the contracting
authority has access.
Union  institutions  and  bodies  are  deemed  to  be  contracting  authorities  except  where  they
conclude service-level  agreements  (SLAs) with  each  other.  In  other words,  the  Commission
and  the  Parliament  or  the  Commission  and  an  executive  or  decentralised  agency  can
conclude  SLAs.  SLAs  can  also  be  agreed  upon  between  departments  of  Union  institutions.
For instance, two Commission DGs or an Office and an agency can conclude SLAs.
When  the  JRC  participates  in  a  procurement  procedure  and  is  awarded  the  contract,  the
contract will also take the form of an SLA9.
2.2.1. Subject matter and type of purchase
It is essential to identify the subject matter in order to select the procurement procedure to
be followed and the type of contract. A more detailed description of the various subjects can
be found in the reference nomenclature provided by the CPV established by Regulation (EC)
No 2195/200210, amended by European Commission Regulation (EU) No. 213/2008.
The  subject  matter  must  be  clear,  giving  a  full  and  accurate  description  of  what  is  being
procured.  The technical  content must  be clearly  set  out,  indicating  the  duration,  estimated
value and type of contract.
Procurement can be used for four different types of purchases:
 'service' covers all intellectual and non-intellectual services other than those covered by
supply contracts, works contracts and buildings contracts;
 'supply' covers the purchase, leasing, rental or hire purchase, with or without option  to
buy, of goods (it may also include siting, installation and maintenance);

9  Please  consult  the  Commission  circular  of  9  July  2004  on  JRC  participation  in  procurement  and
grant procedures, available on BUDGpedia.
10 OJ L 340, 16.12.2002, p. 1, as amended by Regulation (EC) No 2151/2003 (OJ L 329, 17.12.2003, p.
1).
24

link to page 29 link to page 29 link to page 30
 'works' cover either the execution, or both the execution and design, of works related to
one of the activities referred to in Annex II to Directive 2014/24/EU or the  execution or
both the execution and design of a work corresponding to the requirements specified by
the  contracting  authority.  A  “work”  means  the  outcome  of  building  or  civil  engineering
works  taken  as  a  whole  that  is  sufficient  of  itself  to  fulfil  an  economic  or  technical
function;
 'building'  covers  the  purchase,  exchange,  long  lease,  usufruct,  leasing,  rental  or  hire
purchase, with or without option to buy, of land, buildings or other real estate. It covers
both existing buildings and buildings before completion provided that the candidate has
obtained a valid building permit for it. It does not cover buildings designed in accordance
with the specifications of the contracting authority that are covered by works contracts.
2.2.2. Lots
Contracts covering  a set  of supplies  or services serving  a similar  purpose, whose  combined
value is such that few operators would be able to provide them all in their entirety, should be
split into lots, so that any operator who is interested can tender for one or more lots (Point 33
Annex 1 FR). Each lot has a maximum value.
Dividing a contract into lots increases competition and make it easier for small and medium-
sized companies to participate. Indeed, in the case of very highvalue- contracts competition
can only be achieved by splitting the contract, since only a small number of operators would
be able to offer all the products or services requested, thus placing the contracting authority
in a position of dependence.
Splitting into lots is also appropriate when a contract for a single global purchase is made up
of a variety of products or services offered by companies operating in different sectors of the
economy  (for  example,  information  and  communication  activities  often  include  managing  a
website, producing videos, publishing written material, etc.). In such cases, a company which
is highly efficient within its own sector but is not able to provide all the products or services
would be unfairly prevented from competing.
2.2.3. Duration of the contract
The  direct  contract  (see  Chapter  2.6.1)  stipulates  a  limited  duration  for  performance
(duration of execution of the tasks). It is recommended that this duration includes both the
execution of tasks and the approval of interim deliverables if any, since the approval of an
interim deliverable usually conditions the continuation of the execution of the tasks by the
contractor. In addition, the time taken for the contracting authority to approve a deliverable
should  not  be  at the  detriment  of  the time  given  to the  contractor  to perform  the contract.
The  period  of  approval  of  the  final  deliverable  can  be  outside  that  duration  since,  at  that
moment,  the  contractor  has  finished  performance.  A  direct  contract  itself  does  not  have  a
fixed  duration;  the  contract  ends  when  both  parties  have  fulfilled  their  obligations:  the
contractor has delivered according to the terms of the contract and the contracting authority
has made the final payment; in addition, some conditions linked to confidentiality and access
for auditors are still in force long after performance.
The  duration  of  framework  contracts  (see  Chapter  2.6.2)  shall  be  stipulated  and  may  not
exceed four years, save in exceptional cases justified, in particular, by the subject matter of
the contract. For instance, a FWC for maintenance of a machine expected to last for 10 years
should  be  10  years  as  this  is  justified  by  the  nature  of  the  required  service.  A  specific
contract (see Chapter 2.6.3) under a framework contract shall stipulate the duration for its
performance,  like  a  direct  contract.  The  framework  contract  shall  continue  to  apply  to  the
specific contract after its expiry. The framework contract must set a maximum duration for
performance of specific contracts after its expiry (usually 6 months).
Contracts  awarded  for  multi-annual  operations  on  administrative  appropriations  normally
include a clause allowing them to be renewed subject to certain conditions (e.g. availability of
25

budget),  usually  at  the  end  of  the  first  year.  This  renewal  is  not  subject  to  procurement
procedure as it is part of the contract from the outset.
Following  the  principle  of  broadest  possible  competition  and  by  analogy  with  framework
contracts, the performance of direct contracts should not exceed a four year duration.
2.2.4. Estimating the value of a contract
The contracting authority must estimate the value of a purchase (Point 34 Annex 1 FR) on
the  basis  of  previous  experience,  previous  similar  contracts  and/or  on  the  basis  of  a
preliminary market research. It is possible to consult specialised services (e.g. DG COMM for
communication services), to obtain information on the value of the purchase.
This estimate is made at the very beginning, in any event before the contracting authority
launches  the  procurement  procedure.  Indeed,  the  value  is  the  basis  for  the  choice  of
procedure.
The  estimated  value  of  a  contract  may  not  be  established  in  such  a  way  as  to  avoid  the
competitive  tendering  procedure  or  to  circumvent  the  rules  which  apply  to  certain
procurement  procedures  or  above  a  certain  threshold.  Nor  may  a  contract  be  split  for  that
purpose.
The  estimated  value  is  based  on  the  total  volume  of  the  services  /  supplies  /works  to  be
purchased  for  the  full  duration  of  the  intended  contract  including  all  options,  phases  or
possible  renewals.  It  must  be  calculated  without  VAT.  It  includes  the  total  estimated
remuneration  of  the  contractor,  including  all  types  of  expenses  (for  instance,  travel  and
subsistence expenses).
As  a  result,  thought  must  be  given  to  whether  the  product  or  service  requires  a  one
off- operation or is of a permanent or repetitive nature and will have to be renewed over a
given  period.  For instance,  it should  be  checked whether  the  contract stands  on  its own  or
covers a product or service which forms part, with others, of a technical or financial whole
(e.g. the various services which must be ordered when organising a conference) and another
question  is  whether  the  purchase  of  a  product  would  also  create  a  need  for  services
(e.g. maintenance).
If the contract is split into lots, the combined value of all lots should be taken into account.
In the case of works contracts, account must be taken not only of the value of the works but
also  of  the  estimated  total  value  of  the  supplies  needed  to  carry  out  the  works  and  made
available to the contractor by the contracting authority.
If the contract includes revenues
The value of the contract takes into account not only the expenses but also the revenues of
the contract. In the case of banking or financial services, the fees, commissions, interest and
other types of remuneration must be taken into account in the estimation. The same applies
to  insurance  services  and  design  contracts.  In  practice,  the  sum  of  all  revenues  and  all
possible expenses (in absolute value) should be used for estimation.
Regarding framework contracts
  The basis for calculating the total value of FWCs is the maximum value of all the specific
contracts envisaged during the total duration of the framework contract (FWC) including
all renewals, reimbursable expenses and margins for indexation and security.
Regarding joint and interinstitutional contracts
For joint contracts with contracting authorities from MS, EFTA states or candidate countries
or  interinstitutional  contracts  or  contracts  involving  several  departments,  the  estimated
value is based on the total volume of the services / supplies /works to be purchased by the
users of the contract.
Regarding long-term purchases
26

In  the  case  of  service  contracts  which  do  not  specify  a  total  price  or  supply  contracts  for
leasing, rental or hire purchase of products, the basis for calculating the estimated value is:
  in the case of fixed-term contracts:
  if their duration is 48 months or less in the case of services or 12 months or less
in the case of supplies, the total contract value for their duration;
  if  their  term  is  more  than  12  months  in  the  case  of  supplies,  the  total  value,
including the estimated residual value;
  in the case of contracts for an indefinite period, or in the case of services for a period
exceeding 48 months, the monthly value multiplied by 48.
Regarding repetitive purchases
In the case of service or supply contracts which are awarded regularly or are to be renewed
within a given period, the contract value is established on the basis of any of the following:
  the  total  actual  value  of  successive  contracts  of  the  same  type  awarded  during  the
preceding 12 months, adjusted, where possible, to take account of changes in quantity
or value which would occur in the 12 months following the initial contract;
  the  total  estimated  value  of  successive  contracts  of  the  same  type  to  be  awarded
during the financial year.
Regarding concessions:
The value of a concession is an estimate of the total turnover of the concessionaire generated
over the duration of the concession. This value must be estimated using an objective method
which  must  be  announced  in  the  procurement  documents.  The  method  must  take  into
account:
(a)   the  revenue  from  the  payment  of  fees  and  fines  by  the  users  of  the  works  or
services other than those collected on behalf of the contracting authority;
(b)   the  value  of  grants  or  any  other  financial  advantages  from  third  parties  for  the
performance of the concession;
(c)   the revenue from sales of any assets which are part of the concession;
(d)  the  value  of  all  the  supplies  and  services  that  are  made  available  to  the
concessionaire  by  the  contracting  authority  provided  that  they  are  necessary  for
executing the works or services;
(e)   the payments to candidates or tenderers.
2.3. Risk Management
Projects are inherently exposed to certain risks, in other words, there are things that could
go wrong and have a negative impact on the outcome of the project.
In  the  procurement  process,  the  stage  of  analysis  and  planning  (assessment  of  needs,
evaluation of value, timetable) and preparation of the contract (drafting tender specification
and  contract  documents,  defining  the  selection  and  award  criteria)  are  key  steps  when  to
consider  potential  risks  and  how  to  mitigate  the  significant  ones.  It  is  key  to  identify
inherent risks and assess them at an early stage, while it is still possible to setup measures
that  could  mitigate  their  impact.  The  impact  and  likelihood  of  inherent  risks  should  be
assessed and mitigating measures put forward for the most significant risks.
Some sources for risks identification could be:
  feedback  from  the  preparation  and  implementation  of  previous  projects  (‘lessons
learned’).  Such  feedback  should  be  collected  throughout  the  lifetime  of  previous
contracts (e.g. issues identified by users of the contract and solutions proposed) and
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not only at the end of a contract/ project, as the historical memory may often be lost
(e.g. due to change of staff dealing with the contract).
  risk register of the DG
  critical  analysis  of  the  project  (tender)  documentation,  by  a  colleague  not  directly
involved in its preparation, and/or legal service
In  a  nutshell,  risk  management  should  be  integrated  from  the  start  of  the  procurement
process and continued throughout the lifetime of the contract. For detailed explanations on
this  topic,  please  refer  to  the  Risk  management  in  the  Commission  implementation  guide
and  the  Risk  management  on  the  Commission  specific  guidance  for  procurement  and
contracts. The Guidance on the avoidance and management of conflicts of interest under the
Financial Regulation (2021/C 121/01) details how the risk of conflict of interest should also
be considered throughout the entire process.

2.4. Interinstitutional procurement
First, a procedure carried out by several DGs of the Commission is not an interinstitutional
procedure since only one institution is involved.
The  main  reason  for  securing  interinstitutional  cooperation  in  public  procurement
procedures is that economies of scale can be achieved by pooling the purchasing power and
resources  of  the  European  institutions,  bodies,  offices  and  other  agencies  involved  (Article
165 (1) FR).
Consequently, the contracting authorities must seek to carry out procurement procedures on
an interinstitutional basis whenever there is a possibility of achieving efficiency gains. This
is especially possible in the case of framework contracts for horizontal services (IT systems,
audit, communication, etc.). Nevertheless direct contracts (not only framework contracts) can
also be subject to an interinstitutional procurement procedure.
There  is  no  permanent  interinstitutional  structure  that  manages  public  contracts.  All
potentially interested institutions and agencies should be informed about procurement plans
well  in  advance  of  the  publication  of  the  call.  The  list  of  contact  points  in  decentralised
agencies  and  Public-Private  Partnerships  should  be  used  to  organise the  consultation  as  it
provides the most efficient access points.
The list of institutions participating has to be published in the contract notice. No institution
can be added later.
The  lead  institution  (in  most  cases  the  Commission)  will  be  the  sole  representative  of  the
contracting  authorities  during  the  procurement  procedure  up  to  signature  of  the  contract,
and the sole manager of the framework contract.
Although  in  the  case  of  interinstitutional  procedures  the  award  decision  is  taken  by  the
authorising  officer  of  the  lead  institution,  each  authorising  officer  bears  ultimate
responsibility  for  the  specific  contracts  used  by  his  or  her  institution.  Only  one  framework
contract is signed for all participating institutions.
After  signature  of  the  contract,  the  lead  institution  remains  responsible  for  overall
management  of  the  framework  contract  (e.g.  extension,  price  revision,  amendments,  etc.).
The  institutions  participating  are  responsible  for  execution  of  their  own  specific  contracts,
ordering, receipt of deliverables and payments.
For further information see the Guidelines on interinstitutional tenders and the Guidance on the participation
of EU decentralised agencies in the Commission procurement procedures as well as the Secretariat General
page on agencies.
2.5. Joint procurement
If a public contract or a framework contract is necessary to implement a joint action between
an  EU  contracting  authority  and  a  contracting  authority  from  one  or  more  MS,  EFTA  or
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candidate country, the procurement procedure may be carried out jointly. In the case of third
states,  the  joint  procurement  is  possible  only  when  it  has  been  foreseen  in  a  bilateral  or
multilateral Treaty (Article 165 (2) FR).
In  the case  of  joint procurement with  one  or more  MS,  procurement  should in principle  be
carried out by the EU institution  using its procedures. Procurement may  be carried out by
the contracting authority from a Member State if its share of the contract exceeds 50% or in
other justified cases, provided the Member State’s procedures are equivalent to those of the
EU  institution.  Nevertheless,  practical  arrangements  should  be  agreed  in  advance
(evaluation  of  the  requests  to  participate  or  the  tenders,  award  of  the  contract,  the  law
applicable to the contract and the competent court for hearing disputes) in a so-called Joint
Procurement Agreement signed by the parties before launching the procedure.
2.6. Types of contracts
A written contract must be drawn up for each public or concession contract awarded by the
contracting  authority,  except  for  payments  against  invoices  equal  to  or  less  than  €1000
(Point 14.5 Annex 1 FR).
The type of purchase (services, supplies, works and buildings) as well as the characteristics
of the purchase (one-off, repetitive, long-term exploitation) determine the type of contract to
be used.
It should be noted that the Commission (as well as the other institutions like the Council and
the EP) is not a distinct legal entity but a European Union institution which acts on behalf of
the Union (and possibly of the Atomic Energy Community) (Articles 47 TUE and 335 TFUE).
Consequently,  the  contract  should  be  established  in  the  name  of  the  European  Union,
represented by the Commission.
The various model contracts are available on BUDGpedia.
2.6.1. Direct contracts or purchase orders
The subject matter, remuneration and duration of performance of the contract are defined at
the  outset,  as  well  as  all  other  necessary  legal  conditions.  As  such,  a  direct  contract  is
definitive  and  self-sufficient  in  that  the  contract  can  be  implemented  without  further
formalities.
A  purchase  order  is  a  simplified  form  of  direct  contract  which  may  be  used  for  simple
purchases  below  the  Directive  threshold.  It  is  not  recommended  to  use  it  when  acquiring
intellectual property rights.
Direct contracts can be used for all types of purchases (services, supplies or works) and for
buildings  although  in  this  last  case  there  are  several  types  of  contracts  and  they  are  not
standard.
2.6.2. Framework contracts (FWCs)
Unlike direct contracts, FWCs stipulate the subject matter of the purchase, the price list, the
parties,  the legal setup,  the  duration  and  the method  of  making  particular purchases.  The
other  necessary  elements  of  the  contractual  relationship  are  defined  at  a  later  stage  in  a
specific contract indicating e.g. the quantities and date of delivery. FWCs therefore give rise
to no direct obligation for the contracting authority. Consequently, only the specific contracts
concluded under a framework contract must be preceded by a budgetary commitment.
FWCs can be used for services and supplies. They are rarely used for works and they do not
apply to buildings.
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link to page 76
2.6.3. Specific contracts or order forms
A  framework  contract  is  implemented  via  specific  contracts,  which  are  preceded  by  a
budgetary commitment and create the legal obligation for the purchase. They usually specify
the date and quantity of delivery, as well as any other term not defined at FWC level.
An order form is a simplified form of specific contract, used, whatever the value, when only
the quantity ordered and place of delivery need to be indicated.
2.6.4. Concession contracts
Concession  contracts  are  a  specific  form  of  direct  contract  where  the  subject  matter  is  to
entrust the execution of works or the provision and management of services to a contractor
('the concessionaire') over a long period of time, in particular when there is a need for return
on investment. The payment term usually consist in the right of the concessionaire to exploit
the works  or services, although  there  may  also  be  an  actual  payment  from  the  contracting
authority.
The  main  characteristic  of  the  concession  is  that  the  operating  risk  is  transferred  to  the
concessionaire.  In  other  words,  there  will  be  no  extra  payment  if  the  revenue  from  the
exploitation of the concession is smaller than anticipated/calculated by the concessionaire.
For instance, a service concession would cover the cafeterias and canteens, vending machines
or  press  shop  within  an  institution  building.  A  work  concession  would  cover  the  right  to
exploit a building or other work after constructing it to get a return on investment.
2.6.5. Mixed contracts
In  the  case  of  contracts  combining  works  and/or  supplies  and/or  services  or  in  the  case  of
contracts  combining  procurement  and  concessions,  the  estimated  value  of  the  particular
parts of the contract should be taken into the account and the following rules apply (Article
162 FR):
  if the contract combines concession and procurement, it should be awarded according to
its main subject; if the concession is the main subject, it allows for the possibility to use
a competitive procedure with negotiation;
  contracts which combine supplies and services are classified on the basis of which of the
two accounts for the greater estimated value;
  if the contract combines works and services, it should be awarded according to its main
subject:  if  services  are minor,  the works  threshold will  apply; if the works  are minor,
the service threshold will apply.
2.6.6. Building contracts
Building contracts cover the purchase, exchange, long lease, usufruct, leasing, rental or hire
purchase, with or without option to buy, of land, buildings or other real estate. It covers both
existing buildings and buildings before completion provided that the candidate has obtained
a  valid  building  permit  for  it.  It  does  not  cover  buildings  designed  in  accordance  with  the
specifications  of  the  contracting  authority  that  are  covered  by  works  contracts.  These
contracts are not standard and vary according to the type of contractual relation and to the
location of the building.
For information about the negotiated procedure for building contracts see Chapter 3.12.

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2.7. Use of framework contracts
2.7.1. Functions and limitations of framework contracts
A framework contract (FWC) is concluded between one or more contracting authorities and
one or more economic operators to lay down the basic terms for a series of specific contracts
to be concluded over a given period, particularly the duration, subject, price, implementing
conditions  and  quantities  envisaged  (Article  2  (31)  FR,  Point  1.1  Annex  1  FR).  Signing  a
FWC does not commit the authorising officer to purchasing.
In  practice,  FWC  are  for  a  precisely  defined  subject,  but  where  the  exact  quantities  and
delivery times cannot  be  indicated  in  advance.  The  rules  state  that  contracting  authorities
may  not  misuse  framework  contracts  in  order  to  hinder,  limit  or  distort  competition.  This
situation would arise:
-
if the subject of the contract, the quantities involved and the work schedule cannot be
precisely  indicated  when  the  specifications  are  drawn  up.  Use  of  a  FWC  would  not
satisfy the obligation to provide a comprehensive, clear and accurate definition of the
subject  of  the  contract.  Some  economic  operators  may  fail  to  respond  to  the  call  for
tenders because of, say, uncertainty concerning the work schedule in the light of their
work planning. Note that as a matter of principle, to ensure transparency and sound
financial  management,  a  framework  contract  should  not  be  envisaged  if  the  same
subject  matter  is  already  covered  by  another  existing  framework  contract  (inter
institutional or not) to which the contracting authority has access;
-
if  the  practical  conditions  for  a  multiple  FWC  were  not  met,  use  of  these
arrangements could be challenged by an operator who considers it was able to meet
any work requirements during performance of the contract.
It  is  strongly  advised  to  use  FWC  only  in  the  specific  situations  in  which  this  approach  is
justified and does not infringe public procurement rules.
Framework contracts are treated like any other procurement contracts as regards the award
procedure,  including  the  publicity  arrangements.  The  duration  of  framework  contracts
should  not  exceed four years,  save where  duly  justified  by the  nature  of  the  purchase.  For
instance,  a  FWC  for  maintenance  of  a  machine  expected  to  last  for  10  years  should  be  10
years as this is justified by the nature of the required service. The value of the FWC over its
total  duration  must  be  estimated.  A  maximum  total  amount  in  EUR  (the  ceiling)  must  be
indicated  in  the  award  decision,  in  the  award  notice  and  in  the  FWC  itself.  The  FWC  can
then be "consumed" up to that ceiling.
For calculation of the ceiling, see the circular on framework contracts.
Specific contracts or order forms based on FWC are awarded in accordance with the terms of
the FWC and only between the contracting authorities and the contractors originally party to
the FWC.
A  list  of  specific  contracts  over  €15 000  based  on  a  FWC  during  a  financial  year  must  be
published  on  the  Internet  site  of  the  contracting  authority  not  later  than  30  June  of  the
following year.
For  the  Commission,  this  publication  can  be  done  via  the  Financial  Transparency  System
(FTS)  for  all  specific  contracts  exceeding  €15 000.  Below  that  amount,  there  is  no  ex-post
publication.
For more information see Chapter 4.14.2.
The  contracting  authority  may  conclude  multiple  framework  contracts,  which  are  separate
but  identical  contracts  concluded  with  a  number  of  contractors.  The  maximum  number  of
operators  with  which  the  contracting  authority  intends  to  conclude  contracts  must  be
indicated in the tender specifications. In multiple FWC, the minimum number of economic
operators must be at least two (for cascade) or three (for reopening of competition), provided

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enough  tenderers  satisfy  the  selection  criteria  and/or  enough  tenders  satisfy  the  award
criteria.
2.7.2. Single FWC
If  a  FWC  is  concluded  with  a  single  economic  operator,  the  award  of  the  order  forms
(simplified specific contracts) is based on the direct application of the terms of the FWC. The
order  forms  specify  the  quantity  requested,  unit  prices  (as  stated  in  the  FWC)  and  total
amount.
2.7.3. Multiple FWC in cascade
The award of the order forms (simplified specific contracts) is based on the direct application
of  the  terms  of  the  FWC.  FWC  in  cascade  are  best  suited  where  security  of  supply  is
endangered, either because of the large volume of purchase in the light of what the market
can provide or because the delivery is urgent and contractors have an extremely short time
in which to respond. The minimum number of contractors is two.
The contracting authority ranks the tenderers in descending order according to the outcome
of the evaluation of the submitted offers with a view to establishing the list of contractors (in
line with the maximum number announced beforehand) and the sequence in which they will
be offered orders. The contracting authority always contacts the contractor at the top of the
list. If that contractor is unavailable or incapable to respond for reasons which do not entail
terminating the contract, the second contractor may be contacted, and then, if necessary and
under the same conditions, the third, and so on and so forth.
2.7.4. Multiple FWC with reopening of competition
In the case where not all the terms can be precisely laid down in the FWC, or if the prices
can fluctuate unpredictably (IT hardware or services, paper, raw materials, etc.), or in order
to  reduce  possible  dependence  on  contractors,  competition  between  contractors  makes  it
possible  to  obtain  the  best  tender  for  each  specific  contract.  The  pressure  of  competition
between  contractors  under  the  same  FWC  helps  to  maintain  the  quality  and  speed  of
response of the contractors and to avoid the possibility of a contractor abusing its position as
sole contractor or first contractor in the cascade.
FWCs  with  reopening  of  competition  are  awarded  on  the  basis  of  indicative  tenders  and
without  any  priority  amongst  contractors.  The  minimum  number  of  contractors  is  three
(provided  enough  tenderers  satisfy  the  selection  criteria  and/or  enough  tenders  satisfy  the
award  criteria)  but  it  is  recommended  to  have  more to  avoid collusion  between  contractors
and  to  ensure  that  the  minimum  number  is  always  present  in  case  the  FWC  would  be
terminated with one contractor. The FWC contains two different sets of award criteria, one
for awarding the FWC, and one for awarding specific contracts.
When sending the request for service to all contractors, the contracting authority may refine
the  terms  of  the  FWC  and  formulate  them  more  precisely,  although  without  substantial
change. Contractors are put into competition to provide a specific tender within a reasonable
time limit. It must be long enough to allow them to prepare their specific tenders but there is
no  legal  minimum  period.  Confidentiality  of  tenders  must  be  respected.  Although  specific
tenders must be evaluated, it is not necessary to nominate an evaluation committee for that
purpose.
Independently  from  the  value  of  the  specific  contract,  requests  for  services  and  specific
tenders  may  be  sent  by  e-mail  if  this  option  has  been  opted  for  in  the  implementation
conditions of the FWC. This requires that the authorising officer has established procedures
and technical tools for keeping specific tenders integer and confidential. It is recommended to
use a functional mailbox.
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2.7.5. Multiple FWC with both cascade and reopening of competition
The contracting authority may envisage a FWC in which some of the specific contracts will
be  awarded  according  to  the  cascade  system  and  others  will  be  awarded  by  reopening
competition  between  contractors.  The  tender  specifications  must  explain  exactly  which
services will be subject to one or the other award mechanism (transparency principle). The
choice  cannot  take  place  during  FWC  implementation  at  the  discretion  of  the  contracting
authority.  Such mixed FWC  can  be  used when  the  FWC covers standard  purchases  (direct
order  of  the  necessary  quantity  by  the  cascade  system)  and  purchases  which  require  a
specific tender from contractors (based on their estimation of necessary resources to perform
the specific contract – by reopening competition).
For more information on framework contracts, see the Circular on framework contracts.
2.7.6. Benchmarking and mid-term review
In  sectors  subject  to  rapid  price  movements  and  technological  change,  FWC  without
reopening  of  competition  must  contain  a  clause  either  on  a  mid-term  review  or  on  a
benchmarking system. After the mid-term review, if the conditions initially laid down are no
longer geared to the new prices or technology, the contracting authority may no longer use
the FWC concerned and must take the appropriate measures to terminate it.
This clause is available in the model framework contract for supplies.
2.8. Special contracts
Some contracts are subject to special procedures governed by specific rules.
2.8.1. IT contracts
The IT Directorate-General (DG DIGIT) has several FWCs which cover a substantial part of
EU  institutions'  needs  and  can  be  activated  by  signing  specific  contracts  (thus  saving  the
time and work which launching a procedure in each service would entail). It has drawn up a
special standard FWC and also provides technical assistance.  It is advised to consult it for
contracts  concerning  IT  supplies  or  services  (hardware,  software  and  related  services,
including telecommunications).
For  further  information,  see  http://ec.europa.eu/dgs/informatics/procurement/useful_documents/index_en.htm  or
contact the IRM (Information Resource Manager) network local correspondents.
2.8.2. External relations
DG  INTPA  has  drawn  up  a  series  of  standard  contracts  and  procedures  for  contracts
awarded  on  behalf  of  third  country-  recipients  and  taking  account  of  the  specific  nature  of
the  external  relations  field.  The  principles  governing  these  contracts  and  the  award
procedures are outlined in Title VII, Chapter 3 of the FR and Chapter 3 of Annex 1 to the
FR.  This  Vade-mecum  concerns  contracts  awarded  by  the  EU  institutions  on  their  own
account,  including  those  awarded  by  Commission  Delegations  in  non-EU  countries  in
connection  with  routine  administrative  work  (rental  contracts,  purchases,  works,  cleaning,
security services, etc.). The above-mentioned special provisions are outside its scope.
For  more  information,  see  INTPA's  Practical  Guide  at:  ePRAG  -  EXACT  External  Wiki  -  EN  -  EC
Public Wiki (europa.eu)
2.8.3. Legal assistance services
The Legal Service has drawn up, for its own purposes, a simplified model contract for legal
assistance  services  (“legal  assistance  agreement”)  with  legal  experts,  lawyers  and  other
specialists. This contract may be obtained from the Commission Legal Service directly.
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2.8.4. Subscription contracts
In  the case  of  economic  operators  which  offer standard  services  to  the  public (e.g.  utilities,
newspapers,  data  bases,  news  agencies,  etc.)  and  which  use  a  publicly  available  standard
contract  (subscription  contracts),  such  contracts  often  have  to  be  accepted  by  the  EU
contracting authority.
These contracts may be signed with some adaptation.
Selected clauses of the model contract should be included: there must be provision for terms
of payment, the VAT exemption clause should be added, an applicable law and court must be
defined, preferably within the EU, and there must be provision for checks and audits. Those
clauses  should  be  quoted  in  the  tender  specifications  and  it  should  be  explained  that  the
operator’s standard contract must be amended accordingly.
Moreover,  the  general  conditions  of  the  model  service  contract  may  be  attached  to  the
operator’s  contract  with  a  clause  stating  that  the  attached  general  conditions  apply  in
situations not regulated by the main contract.
At the same time, assessment of the quality of the tenderer’s model contract (legal security,
termination clauses, etc.) may be used as one of the award criteria if there is more than one
economic operator on the market.
2.9. Purchase of studies
A  study  is  the  product  of  intellectual  services  necessary  to  support  the  institution's  own
policies or activities. A study is financed through the EU budget. It may be produced inside
the  institution  (e.g.  JRC)  or  commissioned  from  an  external  provider,  generally  through
procurement procedures.
In most cases the subject of the study is production of a scientific, technical, economic, legal
or other analysis of a  de facto or de jure situation in the form of a report. The focus of the
study  may  vary  depending  on  the  sector  of  activities  and  on  the  specific  objectives  of  the
study.
The  EU  institutions,  although  legally  and  administratively  obliged  to  keep  records  of
contracts  and  administrative  documents  for  a  certain  period,  have  no  legal  obligation  to
preserve  studies  as  such.  However,  in  order  to  avoid  overlap  and  to  allocate  resources
adequately,  services  should  have  a  clear  overview  of  their  study  portfolio  (completed  and
planned studies). The planning of intended studies must be provided as part of the Annual
Management Plan of each DG/service.
Tender  specifications  should  cover  all  aspects  of  the  study:  scope,  background,  data  needs,
analysis,  recommendations,  final  presentation  format  (abstract,  executive  summary,
electronic  format,  visual  identity,  standard  disclaimer)  and  intellectual  property  rights
("IPR", in the draft contract). Special effort should be devoted to the description of what the
contracting authority would like to buy, especially where the results are to be published on
paper  on  internet,  or  publicly  used  in  any  other  way,  modified  or  made  available  to  third
parties.
Technical  specifications  should  provide  information  regarding  the  format  of  the  study
deliverables. They should also contain as standard technical requirements an abstract of no
more  than  200  words  and,  as  a  separate  document,  an  executive  summary  of  maximum  6
pages, both in at least EN and FR.
The  purpose  of  the  abstract  is  to  act  as  a  reference  tool  helping  the  reader  to  quickly
ascertain the study's subject. Using keywords is a vital part of abstract writing, to facilitate
electronic information retrieval.
An  executive  summary  is  a  succinct  overview  of  the  whole  study,  which  is  published  in
isolation  from  the  main  text  and  should  therefore stand  on  its  own and  be  understandable
34

without reference to the study itself. It should report the latter's essential facts. Its purpose
is to act as a reference tool, enabling the reader to decide whether or not to read the full text.
Special attention should be paid to the elaboration of the list of deliverables as well as the
definition of their format. Electronic format should be considered as standard requirement in
order to fulfil obligation of studies preservation.
Each  study  is  uniquely  identified  by  a  catalogue  number  and  other  identifiers  provided  by
the Publications Office.
Please  note  that  the  "study  report"  is  the  main  contract  "deliverable"  and,  as  a  rule,  is
different from the technical implementation “progress reports” that the service provider may
be required to present (in accordance with the model service contract).
All Commission publication including studies shall apply the EC Visual Identity.
For more information see the circular on contracts for studies and the Secretariat General page on managing
studies

35

Part 3. Procurement procedures and systems

36

3.1. Choice of procedure
Now  that  the  characteristics  of  the  contract  are  defined,  it  is  possible  to  identify  the
procedure to be followed using this table:
Estimated value of contract
Type of standard procedure
Special
minimum applicable procedure
procedures
Services or supplies
Works
Dynamic
Simple payment against invoice
€0.01 - €1 000
Point 14.5 Annex 1 FR
purchasing
system for
Negotiated procedure with a single tender
commonly used
€1 000.01 - €15 000
Point 14.4 Annex 1 FR
purchases
Negotiated procedure with at least three
Point 9 Annex 1
€15 000.01 - €60 000
candidates, without a contract notice
FR
Point 14.3 Annex 1 FR
Competitive
€60 000.01 to
€60 000.01
Negotiated procedure with at least five
dialogue for
<€140 000
< €5 382 000
candidates, without a contract notice
particularly
Point 14.2 Annex 1 FR
complex
contracts
Point 10 Annex
Procedures following a call for expressions of  1 FR
interest  (list  of  pre-selected  candidate  or  list  Negotiated
of vendors)
procedure
(Procedure useful if a number of contracts are  without prior
planned over a period of several years.)
publication of a
Point 13 Annex 1 FR
contract notice
> €140 000*
> €5 382 000*  Open or restricted procedure with publication  for exceptional
of a contract notice in the Official Journal
cases
Article 164(5) (a) FR
Point 11 Annex
1 FR
Design contest
Point 8 Annex 1
FR
Innovation
partnership for
research
Point 7 Annex 1
FR

Services under Annex XIV
N/A
Competitive procedure with negotiation

to Directive 2014/24/EU,
Point 12 Annex 1 FR
concessions, certain
research services and
certain audio-visual or
media services, without
limit
*The Directive thresholds indicated in the table are the euro equivalents of the amounts laid
down in SDR (special drawing rights – a virtual currency made up of a number of currencies
(euro,  dollar,  yen  and  pound  sterling)  and  used  as  a  unit  of  account  by  the  International
Monetary Fund).
130 000 SDR  These  amounts  in  euro  may  be  revised  every  two  years;  they
5 000 000 SDR  are applicable from 1st of January of even years.

37

Notes to the table on choice of procedure
  Use of the open or restricted procedure with publication of a contract notice in the Official
Journal is always an option. The other procedures  are the minimum11 to be followed in
each case.
  In specific circumstances, the competitive procedure with negotiation may be used.
  In  exceptional  cases  the  negotiated  procedure  without  prior  publication  of  a  contract
notice in the Official Journal may be used.
  The  possibility  of  using  a  dynamic  purchasing  system  (theoretical  at  the  moment)
depends not on the value of the contract but on its subject: commonly used purchases.
  The  competitive  dialogue  is  an  option  available  to  the  contracting  authority  when  a
contract is particularly complex.
  The estimated value or type of contract must not be established in such a way as to evade
the procedure that would apply if that value or type were defined correctly.
  If there are doubts concerning the estimated value of the contract or if the value is close
to a threshold, it is advised to use a procedure for a higher level, as what counts for the
validity of the procedure is not the initial estimate but the actual final price.
  In the case of buildings contracts, the negotiated procedure without prior publication of a
contract  notice  after  prospecting  the  local  market  may  be  used  (Point  11.1  (g) Annex  1
FR).
Check here how the different procurement procedure types are supported by
eProcurement.

11 To be understood as the lowest level of flexibility allowed by the FR as regards the legal basis for the
procurement procedure.
38

3.2. Time limits for receipt of requests to participate and tenders

Legal minimum time limits in days (Point 24 Annex 1 FR)

Procedure
Request to participate
Tender
If procurement documents not electronic: + 5 days
If free text in contract notice is longer than 500 words: + 5 days
If e-submission of tenders is allowed: - 5 days (only for tenders, for open or restricted
procedure)
-
37
Open
(urgent: 15)
32
30
Restricted
(urgent: 15)
(urgent: 10)
Competitive procedure with negotiation
32
30
Competitive dialogue,
32
Reasonable time
Innovation partnership
Open for maximum
10
Dynamic purchasing system
48 months
Call for expressions of interest
10
10
(one or two steps)
(if applicable)
Notes on time limits
  Time limits run from the day following the date of dispatch of the contract notice to the
Publications Office or the day following the date of dispatch of the invitation to tender to
selected candidates and are given in calendar days12.
  The  Publications  Office  has  up  to  7  days  after  dispatch  to  publish  the  notice  in  the
Official  Journal  provided  the  free  text  in  the  contract  notice  is  less  than  500  words,
otherwise it is 12 days and the 5 extra days must be added to the legal minimum.
  If the last day of a time limit falls on a Commission holiday, a Saturday or a Sunday, the
period allowed must include the next (Commission) working day.
  The time limits set out above are the minimum. The actual limits must be long enough to
allow interested parties a reasonable and appropriate time to prepare their tenders and
for the contracting authority to receive them, taking particular account of the complexity
of  the  contract.  Longer  time  limits  must  be  allowed  where  a  prior  visit  to  the  site  is
required. Longer deadlines mean wider competition and higher-quality tenders. It is also
advisable to take into the account the period of the year and to give proportionally longer
time if tender is launched e.g. before Christmas, Easter or summer holidays.


12   By  application  of  the  Regulation  (EEC,  Euratom)  1182/71  of  the  Council  of  3  June  1971
determining the rules applicable to periods, dates and time limits.

39

3.3. Open procedure

40

3.3.1. Scope and characteristics
This is a standard procedure in one step that may be used for any contract.
In this procedure, any economic operator who is interested may submit a tender.
The  procedure  starts  with  publication  of  a  contract  notice  in  the  S  series  of  the  Official
Journal.  The  procurement  documents  are  made  available  in  electronic  format  from
publication of the contract notice.
One  of  the  specific  features  of  this  procedure  is  that  the  opening  session  is  public,  i.e.
tenderers are invited to attend.
Check here how open procedures are supported by eProcurement.

3.3.2. Applicable time-limits
The  time-limit  for  receipt  of  tenders  is  minimum  37  days  counting  from  the  day  after
dispatch of the contract notice to the Publications Office.
The  time-limit  for  sending  the  contract  award  notice  for  publication  is  maximum  30  days
after signature of the contract.
Where  the  urgency  of  the  situation  renders  the  normal  time  limits  impracticable,  the
contracting authority may use an accelerated procedure. It must duly justify the existence of
objective circumstances giving rise to urgency and making it genuinely impossible to comply
with the normal time limits. This is announced in the contract notice. Since the time limit is
much shorter, there is a fairly high risk of ending up with little or inadequate competition.
Indeed,  attempting  to  reduce  the  time  to  award  the  contract  could  even  result  in  a  longer
procedure because no application is received.
In  cases  of  urgency,  the  minimum  time  limit  for  receipt  of  tenders  is  15  days  from  the
dispatch of the contract notice to the Publications Office.

41

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Overview of the open procedure
Step of the
Short description,
Time requirement
References:
Model documents
Legal basis
procedure
requirements, limitations or remarks
Vade-mecum, circulars
Articles
Points
FR
Annex 1
Financing decision

Chapter 2.1

110
--
[optional]
To be published in the OJ S or
maximum 12 months before
Chapter 4.2
To be submitted via
--
2.2
Prior information
buyer profile
dispatch of contract notice
eNotices
notice

Contract notice
Published in the OJ S.
PO has 7 days for publication
Chapter 4.3.4
To be submitted via
163(1)(a)
2.1
Full, direct electronic access to the

eNotices
procurement documents

Procurement
Procurement documents consist of:
From the time the contract notice is
Chapter 4.5.4
Model invitation to
166(2)
16
documents available  - invitation to tender,
published at least until the deadline
tender
in e-Tendering
- tender specifications,

- draft contract,
Model contracts
- contract notice
[optional]
Must be published at the place where
Must be published ASAP and no
Chapter 4.5.1

169
25.2, 25.3
Clarifications,
the procurement documents are
later than six days before the
answers to
published
deadline. Requests less than six
questions,
working days before the deadline
corrigenda
do not have to be answered
Receipt of tenders
The mechanism for registering the
Not earlier than 37 days after
Chapter 4.5.5

168(1)
24.2
exact date and time of receipt should
dispatch of the contract notice
be established.

Opening
Public opening
Reasonable time after deadline for
Chapter 4.6
Model record of
168(3)
28
Writ en record signed by opening
receipt of tenders, allowing tenders
opening of tenders
committee members
sent by mail to reach the
contracting authority
Checking of
By an evaluation committee or by other

Chapter 4.7

136, 137,
29
exclusion criteria
means ensuring there is no conflict of
141, 167
and selection
interest
criteria
Evaluation of award
Evaluation report signed by the

Chapter 4.7
Model evaluation
167
29, 30
criteria
evaluation committee and if applicable,
report
persons involved in assessing
exclusion and selection

[optional]
Request of additional material for

Chapter 4.7.4

151, 169
--
Submission of
exclusion or selection. Correction of
additional materials
clerical errors. In no circumstances
or clarifications by
may the tenders be altered
tenderer
Award decision
Taken by the AO on the basis of

Chapter 4.9
Model award
170(1)
30
recommendations of the evaluation
decision
report
Notification of
By electronic means
ASAP after award decision is taken
Chapter 4.11
Model information
170(2)
31
tenderers
let ers
170(3)
Signature of the
Only after adoption of the budgetary
Not earlier than 10 calendar days
Chapter 4.13
Model contracts
175(2)
35
contract
commitment (except framework
after electronic dispatch of
175(3)
contract)
notification to tenderers
[optional]
If tenderers were requested to provide

Chapter 5.6

168(2)
--
Release of the
guarantees
tender guarantees
Beginning of
Cannot start before the contract is

172(1)
--
implementation of
signed
the contract
Award notice
To be sent to PO for publication in the
Not later than 30 days after
Chapter 4.14.1
To be submitted via
163(1)(b)
2.3, 2.4
OJ S
signature of the contract
e-Notices
Archiving
Proper filing of the documentation of
To be kept for 10 years following
Chapter 4.15
Reference file for
74(6), 75
--
the procedure
signature of the contract or
public procurement
cancellation of the procedure
42

3.4. Restricted procedure

43

link to page 113 link to page 119 link to page 90

3.4.1. Scope and characteristics
This is a standard procedure in two steps that may be used for any contract. It has the same
legal value as the open procedure.
The  procedure  starts  with  publication  of  a  contract  notice  in  the  S  series  of  the  Official
Journal.  The  procurement  documents  are  made  available  in  electronic  format  from
publication of the contract notice.
Contrary  to  the  open  procedure,  the  restricted  procedure  is  organised  in  two  steps:  in  the
first  step  only  the  exclusion  and  selection  criteria  are  assessed  and  in  the  second  step  the
award criteria are evaluated. Any interested economic operator may ask to take part in the
first step of this procedure, but only those invited can submit a tender that will be evaluated
in the second step.
A restricted procedure may be useful:
-  if  a  large  number  of  tenders  is  expected  in  order  to  receive  tenders  only  from  selected
economic operators and to avoid that economic operators not fulfilling the selection criteria
do an unnecessary effort for preparing a tender;
-  for  practical  reasons,  to  know  in  advance  the  maximum  number  of  tenders  and  plan
evaluation accordingly;
- if the contracting authority needs to limit circulation of the procurement documents (e.g. for
security or confidentiality reasons) (see Chapters 4.3.4.1 and 4.5.4).;
- if a site visit is necessary for economic operators to submit a tender (see Chapter 4.3.1.4).
  Check here how restricted procedures are supported by eProcurement.
3.4.2. Applicable time-limits
The time-limit for receipt of requests to participate is  minimum 32 days counting from the
day after dispatch of the contract notice to the Publications Office.
The  time-limit  for  receipt  of  tenders  is  minimum  30  days  counting  from  the  day  after
dispatch of the invitation to tender to selected candidates.
The  time-limit  for  sending  the  contract  award  notice  for  publication  is  maximum  30  days
after signature of the contract.
Where  the  urgency  of  the  situation  renders  the  normal  time  limits  impracticable,  the
contracting authority may use an accelerated procedure. It must duly justify the existence of
objective circumstances giving rise to urgency and making it genuinely impossible to comply
with the normal time limits. This is announced in the contract notice. Since the time limit is
much shorter, there is a fairly high risk of ending up with little or inadequate competition.
Indeed,  attempting  to  reduce  the  time  to  award  the  contract  could  even  result  in  a  longer
procedure because no application is received.
In cases of urgency, the minimum time limit for receipt of requests to participate is 15 days
from  the  dispatch  of  the  contract  notice  to  the  Publications  Office  and  10  days  from  the
dispatch of the invitation to tender to selected candidates.

44

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Overview of the restricted procedure

Step of the
Short description,
Time requirement
References:
Model documents
Legal basis
procedure
requirements, limitations or
Vade-mecum, circulars
Articles
Points
remarks
FR
Annex 1
Financing decision

Chapter 2.1

110
--
[optional]
To be published in the OJ S or
maximum 12 months before
Chapter 4.2
To be submitted via
--
2.2
Prior information notice  buyer profile
dispatch of contract notice
eNotices
Contract notice
Published in the OJ S.
PO has 7 days for publication
Chapter 4.3.4
To be submitted via
163(1)(a)
2.1
Full, direct electronic access to the
eNotices
procurement documents

Procurement
Procurement documents consist of:
From the time the contract notice is  Chapter 4.5.4
Model invitation to
166(2)
16
documents available in
- invitation to tender,
published at least until the deadline
tender
eTendering
- tender specifications,

- draft contract,
Model contracts
- contract notice
Receipt of requests to
The mechanism for registering the
Not earlier than 32 days after
Chapter 4.5.2

168(1)
24.3, 24.4
participate
exact date and time of receipt should
dispatch of the contract notice
be established.
Selection of
Only the exclusion and selection

Chapter 4.5.3
Model evaluation
136, 137,
29
candidates
criteria are checked by an evaluation
report
167,
committee or other means ensuring
168(4),
there is no conflict of interest
169
Not fewer than five economic
operators to be selected
Report on the selection of candidates
should be prepared
Possible request of additional
material for exclusion or selection.
Notification to rejected
By electronic means
ASAP after selection of candidates
Chapter 4.5.3
Model information
170(2)
30, 31
candidates
let ers
Dispatch of
Only in cases where, for technical or
ASAP after selection of candidates
Chapter 4.5.4
Model invitation to
166(2)
16
procurement
confidentiality reasons, procurement
tender
documents to selected
documents are not made available

candidates
from publication of the contract notice
Model contracts
[optional]
Must be published at the place where
Must be published ASAP and no
Chapter 4.5.1

169
25.2, 25.3
Clarifications, answers
the procurement documents are
later than six days before the
to questions,
published or (if technical issues or
deadline. Requests less than six
corrigenda
confidentiality), sent simultaneously
working days before the deadline
to invited candidates
do not have to be answered
[optional]
Minutes must be prepared and sent
Separate dates for each candidate
Chapter 4.3.1.4

168(1)
24.1, 24.3,
Site visit
to all candidates
to avoid collusion
24.4
Receipt of tenders
The mechanism for registering the
Not earlier than 30 days after
Chapter 4.5.5

168(1)
24.2
exact date and time of receipt should
dispatch of the invitation to tender
be established.
Opening
Writ en record signed by opening
Reasonable time after deadline for
Chapter 4.6
Model record of
168(3)
28
committee members
receipt of tenders, allowing tenders
opening of tenders
sent by mail to reach the
contracting authority
Evaluation of award
Evaluation report signed by the

Chapter 4.7
Model evaluation
167
29, 30
criteria
evaluation committee and if
report
applicable, persons involved in
assessing exclusion and selection
[optional]
Correction of clerical errors. In no

Chapter 4.7.4

151, 169
--
Submission of
circumstances may the tenders be
additional materials or
altered
clarifications by
tenderer
Award decision
Taken by the AO on the basis of

Chapter 4.9
Model award
170(1)
30
recommendations of the evaluation
decision
report
Notification of
By electronic means
ASAP after award decision is taken  Chapter 4.11
Model information
170(2),
31
tenderers
let ers
170(3)
Signature of the
Only after adoption of the budgetary
Not earlier than 10 calendar days
Chapter 4.13
Model contracts
175(2)
35
contract
commitment (except framework
after electronic dispatch of
175(3)
contract)
notification to tenderers
[optional]
If tenderers were requested to

Chapter 5.6

168(2)
--
Release of the tender
provide guarantees
guarantees
Beginning of
Cannot start before the contract is

172(1)
--
implementation of the
signed
contract
Award notice
To be sent to PO for publication in
Not later than 30 days after
Chapter 4.14.1
To be submitted via
163(1)(b)
2.3, 2.4
the OJ S
signature of the contract
eNotices
Archiving
Proper filing of the documentation of
To be kept for 10 years following
Chapter 4.15
Reference file for
74(6), 75
--
the procedure
signature of the contract or
public procurement
cancellation of the procedure

45

3.5. Competitive procedure with negotiation

46

link to page 43 link to page 137

3.5.1. Scope and characteristics
The  competitive  procedure  with  negotiation  is  similar  to  a  restricted  procedure  (see
Chapter 3.4.).
This  is  a  standard  procedure  in  two  steps  that  may  be  used  only  under  specific  cases
regardless  of  the  value  of  the  purchase.  In  practice,  it  is  mostly  used  as  from  Directive
thresholds since there are lighter procedures (negotiated procedure for middle or low value
contracts) available below the thresholds.
The  procedure  starts  with  publication  of  a  contract  notice  in  the  S  series  of  the  Official
Journal.  The  procurement  documents  are  made  available  in  electronic  format  from
publication of the contract notice.
In the first step only the exclusion and selection criteria are assessed and in the second step
the award criteria are evaluated. Any interested economic operator may ask to take part in
the  first  step  of  this  procedure,  but  only  those  invited  can  submit  a  tender  that  will  be
evaluated in the second step.
Unlike  the  open  or  restricted  procedure,  the  submitted  tenders  can  be  negotiated,  more
specifically the technical and the financial offers. The contract may be awarded on the basis
of the initial tender without negotiation if this possibility was indicated in the procurement
documents.
For more information on the negotiation phase, see Chapter 4.8.
Check here how competitive procedures with negotiation are supported by
eProcurement.
3.5.2. Applicable time-limits
The time-limit for receipt of requests to participate is minimum 32 days counting from the
day after dispatch of the contract notice to the Publications Office.
The  time-limit  for  receipt  of  tenders  is  minimum  30  days  counting  from  the  day  after
dispatch of the invitation to tender to selected candidates.
The  time-limit  for  sending  the  contract  award  notice  for  publication  is  maximum  30  days
after signature of the contract.
3.5.3. Conditions for use
This competitive procedure with negotiation can be used:
(a) Where  only  irregular  or  unacceptable  tenders  have  been  submitted  in  response  to  an
open or restricted procedure after that procedure has been completed, provided that the
original procurement documents are not substantially altered.
A tender is deemed irregular if:
- it does not comply with the time limit for receipt; or
- it was received already open; or
-  it  does  not  comply  with  the  minimum  requirements  specified  in  the  procurement
documents; or
- it has been rejected during the opening phase; or
- the tenderer has been rejected due to misrepresentation of information; or
-  the  tenderer  has  been  rejected  due  to  previous  involvement  in  the  preparation  of
procurement documents which entailed distortion of competition; or
- it has been declared abnormally low.

47

link to page 86

A tender is deemed unacceptable if:
-  the  price  exceeds  the  planned  budget  (in  this  case,  the  planned  budget  must  be
documented internally before the launch of the procedure); or
- it has failed to meet the minimum quality levels for award criteria.
The  initial  (open  or  restricted)  procedure  is  deemed  completed  when  the  cancellation
notice has been published in the OJ.
In addition, the contracting authority may waive the obligation to publish a contract notice if
it  includes  in  the  competitive  procedure  with  negotiation  all  tenderers  and  only  tenderers
satisfying the exclusion and selection criteria except those who submitted an abnormally low
tender.
Check here how this special case of competitive procedure with negotiation
(competitive procedure with negotiation without publication) is supported by eProcurement.
It  is  necessary to ensure  that  all  received  tenders  really were  irregular  or  unacceptable.  If
tenders  were  found  to  be  irregular  or  unacceptable  because  of  errors  made  in  the
procurement  documents  (including  the  definition  of  minimum  requirements),  or  if
substantial alterations need to be made to the tender specifications, a new open or restricted
procedure must be organised.
(b)  With regard to works, supplies or services fulfilling one or more of the following criteria:
(i) the needs of the contracting authority cannot be met without adaptation of a readily
available solution;
(ii) they include design or innovative solutions;
(iii)  the  contract  cannot  be  awarded  without  prior  negotiations  because  of  specific
circumstances related to the nature, the complexity or the legal and financial make-up or
the risks attached to the subject matter of the contract;
(iv)  the  technical  specifications  cannot  be  established  with  sufficient  precision  by  the
contracting authority with reference to a standard, as set out in point 17.3 Annex 1 FR;
In practice, this legal basis (point 12.1(b)(iv)) justifies the use of a competitive dialogue, i.e. a
very complex purchase where the tender specifications are impossible to establish. Given the
type of services purchased by the institutions, this is rarely used. The inability to establish
tender specifications with sufficient precision must not be due to any lack of expertise on the
part of the contracting authority or to any failure to carry out a sufficiently detailed analysis
of needs.
In  this  regard,  it  should  be  borne  in mind that  it  is  possible  to call  in  outside  expertise  to
analyse  needs  and  help  drafting  the  technical  specifications.  However  the  contracting
authority  may  not  exclude  the  operator  who  provided  the  expertise  from  the  subsequent
procurement  procedure  and  must  ensure  equal  information  and  equal  treatment  of  all
tenderers (See Chapter 4.3.1.2).
(c) For concession contracts
In case of concession contracts, this procedure can be used instead of the open or restricted
procedure.
(d) For the service contracts referred to in Annex XIV of the Directive
This article covers for instance hotel and restaurants, education services including training,
legal services (except litigation and pre-litigation cases), cultural services, libraries, etc.
(e) For certain types of research and development services provided that the results do not
belong  exclusively  to  the  contracting  authority  for  use  in  its  own  affairs  or  where  the
service provided is not remunerated in full by the contracting authority.
48

(f) For service contracts concerning the purchase, development, production or co-production
of programmes for audiovisual media services as defined in Directive 2010/13/EU or radio
media services or contracts for broadcasting time or programme provision.

49

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Overview of the competitive procedure with negotiation
Step of the
Short description,
Time requirement
References:
Model documents
Legal basis
procedure
requirements, limitations or remarks
Vade-mecum,
Articles
Points
circulars
FR
Annex 1
Financing decision

Chapter 2.1

110
--
[optional]
To be published in the OJ S or
maximum 12 months before dispatch
Chapter 4.2
To be submitted via
--
2.2
Prior information notice  buyer profile
of contract notice
eNotices
Contract notice
Published in the OJ S.
PO has 7 days for publication
Chapter 4.3.4
To be submitted via
163(1)(a)  2.1
Full, direct electronic access to the

eNotices
procurement documents
Drafting notice
Procurement
Procurement documents consist of:
From the time the contract notice is
Chapter 4.5.4
Model invitation to
166(2)
16
documents available in
- invitation to tender,
published at least until the deadline
tender
eTendering
- tender specifications,

- draft contract,
Model contracts
- contract notice
Receipt of requests to
The mechanism for registering the
Not earlier than 32 days after dispatch
Chapter 4.5.2

168(1)
24.3
participate
exact date and time of receipt should be
of the contract notice
24.4
established.
Selection of
Only the exclusion and selection criteria

Chapter 4.5.3
Model evaluation
136
29
candidates
are checked by an evaluation
report
137
committee or other means ensuring
167
there is no conflict of interest
168(4)
Not fewer than three economic
169
operators to be selected
Report on the selection of candidates
should be prepared
Request of additional material for
exclusion or selection.
Notification to rejected
By electronic means
ASAP after selection of candidates
Chapter 4.5.3
Model information
170(2)
30, 31
candidates
let ers
Dispatch of
Only in cases where, for technical or
ASAP after selection of candidates
Chapter 4.5.4
Model invitation to
166(2)
16
procurement
confidentiality reasons, procurement
tender
documents to selected
documents are not made available from
candidates
publication of the contract notice
Model contracts
[optional]
Must be published at the place where
Must be sent or published ASAP and
Chapter 4.5.1

169
25.2
Clarifications, answers
the procurement documents are
no later than six days before the
25.3
to questions,
published or (if technical issues or
deadline. Requests less than six
corrigenda
confidentiality), sent simultaneously to
working days before the deadline do
invited candidates
not have to be answered
[optional]
Minutes must be prepared and sent to
Separate visits for each candidate to
Chapter 4.3.1.4

168(1)
24.1, 24.3
Site visit
all candidates
avoid collusion
24.4

Receipt of tenders
The mechanism for registering the
Not earlier than 30 days after dispatch
Chapter 4.5.5

168(1)
24.2
exact date and time of receipt should be
of the invitation to tender
established.
Opening
Writ en record signed by opening
Reasonable time after deadline for
Chapter 4.6
Model record of
168(3)
28
committee members above Directive
receipt of tenders, allowing tenders
opening of tenders
threshold
sent by mail to reach the contracting
authority
Evaluation of award
Evaluation of initial tenders and

Chapter 4.7
Model evaluation
167
29, 30
criteria
feedback to tenderers
report
Negotiation phase
Contacts in writing or with written record

Chapter 4.8

164(4)
6.5
with all tenderers, complying with
169(2)
confidentiality requirements and the
principle of equal treatment
Evaluation of award
Evaluation report signed by the

Chapter 4.7
Model evaluation
167
29, 30
criteria
evaluation committee (above Directive
report
threshold) and if applicable, persons
involved in assessing exclusion and
selection
Award decision
Taken by the AO on the basis of

Chapter 4.9
Model award
170(1)
30
recommendations of the evaluation
decision
report
Notification of
By electronic means
ASAP after award decision is taken
Chapter 4.11
Model information
170(2),
31
tenderers
let ers
170(3)
Signature of the
Only after adoption of the budgetary
Not earlier than 10 calendar days after
Chapter 4.13
Model contracts
175(2)
35
contract
commitment (except framework
electronic dispatch of notification to
175(3)
contract)
tenderers above Directive threshold
[optional]
If tenderers were requested to provide

Chapter 5.6

168(2)
--
Release of the tender
guarantees
guarantees
Beginning of
Cannot start before the contract is

172(1)
--
implementation of the
signed
contract
Award notice
To be sent to PO for publication in the
Not later than 30 days after signature
Chapter 4.14.1
To be submitted via
163(1)(b)  2.3, 2.4
OJ S
of the contract
eNotices
Archiving
Proper filing of the documentation of the
To be kept for 10 years following
Chapter 4.15
Reference file for
74(6), 75
--
procedure
signature of the contract or
public procurement
cancellation of the procedure
50

link to page 19 link to page 26
3.6. Procedures following a call for expressions of interest
3.6.1. Scope and characteristics
A call for expressions of interest (CEI) serves to invite economic operators to put themselves
forward to be included either on a list of pre-selected candidates or on a list of vendors (Point
13 Annex 1 FR). It can be seen as a way of generating shortlists which may be used many
times for many different procurement procedures. It must be prepared and put into action in
line  with  the  principles  of  public  procurement  (transparency,  proportionality,  equal
treatment and nondiscrimination-). The different procurement procedures following a call for
expression  of  interest  (list  of  pre-selected  candidates  and  list  of  vendors)  are  explained  in
turn below. Please note that calls for expressions of interest, using the same model referred
below, can also be used to select experts based on Article 237 FR (see Chapter 1.5.3).
In practical terms, it is only worth using a call for expressions of interest when a series of
similar  contracts  are  planned.  If  there  are  only  few  contracts  planned,  it  will  generally  be
more  efficient  for  the  contracting  authority  to  use  an  open  or  restricted  procedure  or
negotiated procedure for middle value contracts.
It is highly recommended to establish sub-lists, linked to possible future procurement subject
matters.  The  scope  of  the  sub-lists  must  be  clearly  defined  in  the  call  for  expressions  of
interest. Using sub-lists avoids the problem of consulting economic operators whose interest
or  capacity  is  limited  to  a  general  or  parallel field that  has  no direct  link with  the subject
matter of a particular contract. One economic operator can be included in one or more sub-
list(s).
There  is  no  standard  eNotice  form  for  calls  for  expressions  of  interest  for  dispatch  to
thePublications  Office.  It  is  advised  to  use  the  model  call  for  expression  of  interest  and  to
send it to the dedicated Secretariat General functional mailbox for publication in the Official
Journal S series ("SG PUBLICATIONS AU JO").
TED (ted.europa.eu) can be consulted to check whether there is a CEI of another Commission
service which might correspond to the same purchase. The general principle that a contract
cannot be split in order to avoid use of the proper procurement procedure applies. Thus, it is
not possible to award multiple contracts for the same purpose and for a total value exceeding
the Directive threshold on the basis of a CEI.
A list of pre-selected candidates or a list of vendors  resulting from  a call for expressions of
interest may be used for contracts below the Directive thresholds.
In these cases a procedure following CEI may be used but not the negotiated procedure for
middle or low value contracts (no mixing of procedures).
The  value  of  the  contract  must  be  calculated  in  accordance  with  the  principles  set  out  in
Chapter 2.2.4. In particular, contracts may not be split into parts in order to avoid applying
the open or restricted procedure.
For the pre-selection of candidates, the threshold applies per year and per sub-list, because
in practice the call for expression of interest is the first step of a restricted procedure so all
candidates  on  a  sub-list  respond  to  the  same  selection  criteria  (i.e.  they  are  selected  for
similar purchases as set out in Point 34.5 Annex 1 FR).
For the list of vendors, it is possible to apply the threshold per contract, provided there is no
artificial  split  of  purchase  (i.e.  the  procedure  is  chosen  by  estimating  the  total  value  of  all
similar  purchases  over  one  year).  Indeed  there  is  no  check  of  the  economic  operators  for
exclusion  and  selection  criteria  before  they  register  on  the  (sub)lists.  Therefore  contracts
awarded to vendors on the same sub-list may be for different subject matters.
In  any  procedure,  the  list  used  must  be  relevant  to  the  subject  of  the  contract  and  used
during  its  period  of  validity.  The  list  of  pre-selected  candidates  or  the  list  of  vendors
established  by  one  Commission  department  may  be  used  by  another  department,  provided
the scope of the list fits the procurement need.

51

3.6.2. Applicable time limits
The  minimum time  limit  for  receipt  of  tenders  is  10  days  from  the  day  after  simultaneous
dispatch of the procurement documents to all the pre-candidates on the (sub-)list drawn up
following the call for expressions of interest and to all the vendors on the (sub-)list in a one-
step procedure.
For  the  two-step  procedure  with  a  list  of  vendors,  the  minimum  time-limit  for  receipt  of
requests to participate (Step 1) is 10 days, and the minimum time limit for receipt of tenders
(Step 2) is 10 days.
The time limits indicated above are the minimum. The actual limit must be long enough to
allow invited candidates a reasonable and appropriate time to prepare their tenders and for
the contracting authority to receive them, taking particular account of the complexity of the
contract and the need to visit the site or consult documents on the spot.

52

3.6.3. List of pre-selected candidates

53

The  French  term  for  call  for  expressions  of  interest  is  “appel  à  manifestations  d’intérêt”
(AMI) and the list of pre-selected candidates is often called the “AMI list”.
The  list  of  pre-selected  candidates  is  established  following  evaluation  of  exclusion  and
selection  criteria.  All  candidates  who  are  not  in  exclusion  situation  and  who  fulfil  the
selection criteria are included on the list or sub-list(s). Whenever a contract is to be awarded,
the contracting authority invites all the candidates on the relevant sub-list to tender.
There  must  be  minimum  five  candidates  on  a  given  list  or  sub-list  to  be  able  to  use  it,
provided  that  a  sufficient  number  of  candidates  satisfy  the  selection  criteria.  It  is
recommended to wait for a reasonable time before using the list, in order to ensure genuine
competition between the economic operators.

Do not mix up a list of pre-selected candidates with a framework contract
The  restricted  procedure  following  a  call  for  expressions  of  interest  is  clearly  distinct  from
the framework contract in that:
 it  results  in  a  contract  that  is  enforceable  immediately  after  it  is  signed,  unlike  a
framework contract, which is implemented by “specific contracts” or order forms in the case
of standard orders;
 it is confined to contracts below the Directive thresholds, unlike a framework contract, for
which the procurement procedure used is adapted to its value whereas there is no limit of
value for specific contracts under a framework contract;
 the list shall remain open to new candidates throughout its duration while the framework
contract identifies the contractor(s) once and for all.

The call for expressions of interest is open and the list of pre-selected candidates is valid for
up to four years from the date on which the call is published in the Official Journal. Anyone
who is interested may apply at any time during this period, except the last three months.
The  contracting  authority  should  evaluate  the  applications  it  has  received  at  regular
intervals (for example, every quarter). Evaluation is to be carried out by person(s) nominated
by the authorising officer. An evaluation committee is not necessary at this stage. Due to the
length of the process it may not be possible that requests are assessed by the same people for
the whole duration of the call for expression of interest. Nevertheless, as far as possible the
evaluators should be the same.
Pre-selected candidates (who have successfully passed the exclusion and selection phase) are
put on one or more sub-lists as appropriate. The contracting authority will notify candidates
that  they  have  been  included  on  the  list,  generally  within  15 days  of  the  evaluation,  as
dictated by good administrative practice.
Unsuccessful  candidates  should  be  informed  by  the  contracting  authority  within  the  same
time limit as pre-selected candidates.
When  a  contract  is  to  be  awarded,  the  contracting  authority  invites  all  pre-selected
candidates of the relevant sub-list to submit a tender and will send them the  procurement
documents.
Given that a company’s economic and financial situation can change very quickly, it is good
practice  to  ensure  that  the  candidates  selected  send  in  updated  documents  every  year,  in
order to check their economic and financial situation against the selection criteria set out in
the call for expressions of interest, using the latest accounts.

54

3.6.4. List of vendors

55

The call for expressions of interest only includes the subject matters of future procurement
as  sub-lists,  but  no  exclusion,  selection  or  award  criteria.  So  any  economic  operator  can
register on the sub-list(s) of their choice without having to put together an application. The
registration system including acknowledgement of inclusion on the list can be automated.
Whenever  a  contract  is  to  be  awarded  in  a  topic  covered  by  the  list  of  vendors,  the
contracting  authority  invites  all  the  vendors  on  the  relevant  sub-list  to  tender,  and  there
must be minimum five economic operators on that sub-list to be able to use it.
The contracting authority can choose to do a one-step or a two-step procedure:
(i)  one-step  works  like  an  open  procedure:  all  procurement  documents  (including
exclusion, selection and award criteria) are sent to all vendors of the relevant sub-list, and
full tenders are received and evaluated.
(ii)  two-step  works  like  a  restricted  procedure:  only  the  subject  matter  of  the  purchase,
exclusion  and selection  criteria  are sent  to  all  vendors  of  the relevant sub-list,  and  they
submit  requests  to  participate.  Only  those  who  pass  exclusion  and  selection  criteria  are
then invited to tender in a second step.
The call for expressions of interest and the list of vendors are valid for up to four years from
the date on which the call is published in the Official Journal. Anyone who is interested may
register to the list at any time during this period, except the last three months.
3.6.5. Comparison between list of pre-selected candidates and list of
vendors
- Establishing the lists:
  for pre-selected candidates it can take several months (drafting and sending out the call
for  expressions  of  interest,  reviewing  and  processing  the  applications  regularly,  pre-
selecting a sufficient number of candidates per sub-list). Only once this process has been
completed will the list be ready to be used for the first time;
  for  vendors, the  process (drafting  and sending  out  the call  for  expressions  of  interest)  is
faster since there is no evaluation at this stage. In addition, an IT system can be set up to
facilitate management of the requests. Registration is automatic so the list is ready to use
relatively quickly.
- Using the lists:
  for the list of pre-selected candidates the threshold applies per sub-list per year (similar
purchases over 12 months), so it is easily reached.
  for  the  list  of  vendors,  the  threshold  may  be  applied  per  contract  provided  there  is  no
artificial split of purchase.

56

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Overview of the procedures following a call for expressions of interest

Step of the procedure
Short description,
Time requirement
References:
Model documents
Legal basis
requirements, limitations or remarks
Vade-mecum,
Articles
Points
circulars
FR
Annex 1
Financing decision

Chapter 2.1

110
--
[optional]
To be published in the OJ S or
maximum 12 months before
Chapter 4.2
To be submitted via
--
2.2
Prior information notice
buyer profile
dispatch of notice
eNotices
Call for expressions of
Published in the OJ S.
PO has 7 days for publication
Chapter 4.4
Model call for
163
3.1
interest

expression of
164
13
For pre-selected candidates: must indicate
interest

the deadline for submitting requests and the

exclusion and selection criteria

For vendors: must indicate the deadline for
registering on the list, no criteria.

Receipt of expressions
The mechanism for registering the exact
Any time, except the last three

164
13
of interest / registration
date and time of receipt should be
months of validity of call for
established.
expressions of interest
For vendors: send acknowledgement of
receipt of registration
Checking of exclusion
Only for pre-selected candidates: the

Chapter 4.7

136,
29
criteria and selection
exclusion and selection criteria are checked
137,
criteria
(evaluation committee not compulsory)
167
Establishing a list
List can be divided into sub-lists
List is valid for maximum four
Chapter 3.6.2

164
13

years following publication of the
Not fewer than five candidates to be
notice
included on the list or sub-list before it can
be used

Request of additional material for exclusion
or selection.

Notification to rejected
Only for list of pre-selected candidates, by
ASAP after selection of
Chapter 4.5.3
Model information
170(2)
30, 31
candidates
electronic means
candidates
let ers
Registration in the list of vendors has no
restriction
Dispatch of
Not fewer than five economic operators to

Chapter 4.5.4
Model invitation to
166(2)
16
procurement
be invited
tender
documents to selected
Vendors can be invited to tender (one step)

candidates
or invited to submit requests to participate
Model contracts
and then only selected candidates are
invited to tender (two steps)
[optional]
Must be sent simultaneously to all invited
Must be sent ASAP and no later
Chapter 4.5.1

169
25.2
Clarifications, answers
candidates or tenderers
than six days before the
25.3
to questions, corrigenda
deadline. Requests less than six
working days before the
deadline do not have to be
answered
Receipt of tenders
The mechanism for registering the exact
Not earlier than 10 days after
Chapter 3.6.2

168(1)
24.6
date and time of receipt should be
dispatch of the tender
established.
documents
For list of vendors in two steps,
10 days for requests to
participate and 10 days for
tenders
Opening
Writ en record signed by persons
Reasonable time after deadline
Chapter 4.6
Model record of
168(3)
28.4,
responsible for opening (committee not
for receipt of tenders, allowing
opening of tenders
28.6
compulsory)
tenders sent by mail to reach the
contracting authority
Evaluation of award
Evaluation report signed by the persons

Chapter 4.7
Model evaluation
167
29, 30
criteria
involved (committee not compulsory)
report
[optional]
Clarification or correction of clerical errors.

Chapter 4.7.4

151
31
Submission of
In no circumstances may the tenders be
169
additional material or
altered
clarification by tenderer
Award decision
Taken by the AO on the basis of

Chapter 4.9
Model award
170(1)
30
recommendations by the evaluation report
decision
Notification of tenderers
By electronic means
ASAP after award decision is
Chapter 4.11
Model information
170(2),
31
taken
let ers
170(3)
Signature of the
Only after adoption of the budgetary
No standstill below Directive
Chapter 4.13
Model contracts
175(2)
35
contract
commitment (except framework contract)
threshold
175(3)
Beginning of
Cannot start before the contract is signed

172(1)
--
implementation of the
contract
Publication of the list of
To be published on Internet (FTS)
Before 30 June of the following
Chapter 4.14.2

163(2)
3.3
contractors
year
Archiving
Proper filing of the documentation of the
To be kept for 10 years following
Chapter 4.15
Reference file for
74(6)
--
procedure
signature of the contract or
public procurement
75
cancellation of the procedure

57

3.7. Negotiated procedure for middle and low value contracts

58

link to page 137

3.7.1. Scope and characteristics
In the case of repetitive purchases of middle or low value over a financial year, the procedure
must be chosen in view of the total annual value of similar contracts (Point 14 Annex 1 FR).
The  thresholds  do  not  apply  per  contractor  or  per  contract,  only  per  subject  matter  of  the
purchases  (similar  contracts  for  the  same  type  of  services  /  supplies).  In  case  of  recurrent
needs  over  several  years,  the  services  should  not  launch  a  procedure  every  year  (sound
financial management).
When  the  duration  of  the  contract  (direct  or  framework)  exceeds  one  year,  the  value  to  be
taken into account is the estimated total amount corresponding to the whole duration of the
contract (including the possible renewals).
The  contracting  authority  must  invite  to  tender  the  economic  operators  who  have  shown
their  interest  during  ex-ante  publicity.  In  case  this  ex-ante  publicity  is  unsuccessful  or  in
addition to it, the contracting authority may invite candidates of its choice. These may come
from  an  ongoing  list  of  vendors  or  list  of  pre-selected  candidates  with  the  same  subject
matter as the purchase at hand, provided that the possibility of using this list for middle or
low-value procedure has been announced in the initial CEI.
It  is  good  practice  to  document  the  reason  of  the  choice  of  candidates  (note  to  the  file)  in
particular to justify that the chosen candidates fulfil the intended selection criteria.
The contracting authority must invite to tender a minimum number of candidates depending
on the value of the contract.

Value
Amount
Minimum number of
Ex ante publicity
candidates to be invited
N/A
€0.01 - €1000
None -  no procedure –
Not obligatory
payment against invoice
Very low value
€1000.01 - €15 000
At least one
Not obligatory
Low value
€15 000.01 - €60 000
At least three
On Internet
Middle value
€60 000.01 – Directive
At least five
On Internet
threshold

The procedure is still valid if not all invited candidates submit a tender, as long as at least
one tender passes all criteria and can lead to contract signature.
After  evaluating  the  initial  tenders  received,  the  contracting  authority  may  negotiate  the
technical or financial offers submitted.
After  negotiation,  it  is  possible  that  a  tender  originally  below  minimum  levels  of  quality
becomes good enough to be considered.
Finally, there is no limit for the number of rounds of negotiation, but it is not recommended
to use a lot of time and resources for a middle or low-value purchase.
For more information on the negotiation phase, see Chapter 4.8.
  Check  here  how  negotiated  procedures  for  middle  and  low  value  contracts
are  supported  by  eProcurement.  For  negotiated  very  low  value  procedures  PPMT  offers  a
simplified module.
3.7.2. Minimum time limits
The  rules  lay  down  no  minimum  time  limit  for  receiving  tenders  in  procedures  for  middle
and  low  value  contracts,  but  tenderers  should  be  given  reasonable  time  to  prepare  good
tenders. Depending on the value and complexity of the contract, it is recommended to leave

59

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at least 10 days between the day after dispatch of procurement documents and the deadline
for receipt of tenders.
3.7.3.  Adequate publicity for middle and low value contracts
Ex-ante publicity
Ex-ante  publicity  on  the  institutions’  websites  is  compulsory  for  contracts  with  a  value
between €15 000 and the Directive threshold.
Departments can fulfil these conditions as follows:
1.
They should publicise, as soon as available:
  either the annual work programme (see Chapter 4.2.3) on their website (ensuring that
it is accessible directly from the buyer profile);
  or a list of their needs for middle or low value contracts on their buyer profile (with
the indicative number of such contracts, their subject matter and the indicative time
schedule for launching the procedure).
Check here how ex-ante publicity for negotiated procedures for middle
and low value contracts is supported by eProcurement.
2.  A  contact  point  (functional  mailbox  –  several  persons  should  be  able  to  access  it  to
ensure  continuous  check)  should  be  provided  where  economic  operators  may  express
their  interest  or  ask  for  information.  In  order  to  limit  the  number  of  requests,  it  is
recommended  to  indicate  that  specific  information  will  be  provided  later  on  the  same
webpage for each procurement procedure listed in the buyer profile / work programme,
and that economic operators are invited to consult the page regularly.
3.  When getting close to the actual launch of a specific procedure listed in the buyer profile
/  work  programme,  more  detailed  information  can  be  provided.  It  may  include  more
details on the subject matter  of  the  purchase,  or the  selection criteria, or  even the  full
tender  specification  so  that  economic  operators  can  determine  whether  they  are
interested  or  not.Furthermore,  making  the  selection  criteria/minimum  requirements
known at the stage of the publication of the ex ante publicity notice enables the economic
operators  to  ascertain  whether  they  are  going  to  need  to  tender  as  a  consortium.  In
general, the more information is provided the more targeted the publicity. In addition, a
deadline  for economic  operators  to  express their  interest  should  be  provided.  Since the
objective  of  ex-ante  publicity  is  to  increase  transparency  and  competition,  it  should  be
publicised for a reasonable time. It is recommended to leave at least two weeks between
publicity and the start of the procedure. For procedures using PPMT to publish the ex-
ante  publicity  notice  on  eTendering  please  see  the  ex-ante  publicity  notice  that  is
automatically added as a hyperlink in the Description of the eTendering call.
4.  The  actual  procedure  is  launched  by  sending  the  invitation  to  tender  to  all  economic
operators who expressed interest, if any, as well as to any other economic operator that
the contracting authority wishes to invite. The deadline for receipt of tenders is indicated
in the invitation letter, as for any other procedure.
It is good practice to maintain closed publications on the website, for transparency purposes
and  to  provide  information  on  purchasing  habits  to  economic  operators  (which  is  the  main
objective of a buyer profile). Therefore an ex-ante publicity may be marked as "closed", or it
may  be  moved  to  an  archive  page  when  the  contracting  authority  launches  the  negotiated
procedure.
Alternatively,  instead  of  a middle or  low-value  negotiated  procedure, it  is  possible  to carry
out a procedure following a CEI by using a relevant and valid list of pre-selected candidates
or a list of vendors (see Chapter 3.6).
Ex-post publicity
60

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The contracts between €15 000 and Directive threshold awarded in one financial year must
be published on the internet site of the institution before 30 June of the following year.
For  the  Commission,  for  direct  and  specific  contracts  correctly  entered  in  ABAC  workflow
(with  a  meaningful  title),  the  publication  is  done  via  the  Financial  Transparency  System.
(See Chapter 4.14.2)
3.7.4. Easing the formalities below Directive thresholds
For  exclusion  criteria,  the  European  Single  Procurement  Document  (ESPD  -  see  Chapter
4.3.1.18)  or,  failing  that,  a  declaration  on  honour  is  sufficient  between  €15 000  and  the
Directive threshold. Up to €15 000, the ESPD or declaration is not necessary.
Evidence  may  be  asked  to  the  successful  tenderer  in  case  of  doubt  before  awarding  the
contract.
For selection criteria, the ESPD or, failing that, a declaration on honour should be requested.
For contracts with a value up to €15 000, the contracting authority may decide not to require
the ESPD or declaration. Indeed, when choosing the tenderer, the authorising officer should
already  ensure  that  it has  the  necessary  capacity.  Evidence  should  be  requested only  from
the  successful  tenderer  and  this  is  not  even  obligatory  for  contracts  below  Directive
threshold, depending on the risk analysis of the authorising officer. For middle or low-value
contracts,  the  tender  documents  can  be  shortened  or  simplified  (e.g.  use  of  the  purchase
order  for  low-value  contracts,  instead  of  the  standard  contract),  provided  all  the  relevant
elements  necessary  to  submit  tenders  are  included).  Award  criteria  must  always  be
indicated.
As for use of electronic means, procurement documents can be sent by e-mail for middle and
low-value procedures.
Tenders can be accepted by e-mail for contracts below the Directive threshold, provided the
authorising  officer,  after  a  risk  assessment,  has  established  procedures  and  technical  tools
for  keeping  tenders  integer  and  confidential.  In  addition,  it  is  recommended  to  use  a
functional mailbox and have it checked regularly at all times.
Neither  an  opening  committee  nor  an  evaluation committee  need to  be  nominated,  but  the
authorising  officer  can  nominate  them  if  the  subject  is  sensitive  or  complex.  Otherwise
opening and evaluation can be carried out by one person. A written record of opening should
be kept for audit trail and the evaluation report is always compulsory as it is the basis for
feedback to the tenderer. If an evaluation committee is nominated, its members should sign
the  evaluation  report  so  the  report  and  the  award  decision  cannot  be  merged  into  one
document.
Below  Directive  threshold,  if  only  one  tender  was  received,  the  evaluation  report  and  the
award decision can be merged into one single document signed by the authorising officer.
The  standstill  period  is  not  applicable  to  middle  and  low-value  procedures  (See  Chapter
4.11.2).

61

Middle and low value contracts
Overview of the procedure
Dispatch of
Possibility
Award
Contract
Ex-ante publicity
Number
Contents of
procurement  Submission of
Opening
Evaluation
Compliance
Compliance
to
decision
Information
Model
Post-award
value
and selection of
of
procurement
tenders
with exclusion
with selection
to al
candidates
candidates
documents
documents
committee
committee
negotiate
(formal
contract
publicity
by e-mail
by e-mail
criteria
criteria
tenders
document)
tenderers
Publication on the
< Directive
DG’s buyer profile
threshold
Minimum five
(AO may invite
other candidates
Full or
ESPD or
ESPD or
of his choice) or
simplified
declaration
declaration
Annual list of
use of list of pre-
tender
suf icient
from all
contractors,
selected
dossier
Yes
Purchase
via FTS for
Not
(evidence
tenderers;
candidates or list
depending
the
Possible, if
obligatory.
requested in
Evidence not
Can be
order or
of vendors
on
merged
standard
Commission
≤ €60 000
Minimum
three
confidentiality
May be
case of doubt)
obligatory
following CEI (call
complexity
Possible
and integrity
Not
used if
Yes
with
Yes
model
for expressions of
obligatory.
evaluation
contract13
can be
required
interest)
maintained
by
report if no
depending
evaluation
on
complexity
committee
complexity
No
No (tenderer
Chosen by
(in general, but
chosen so
authorising of icer
Minimum
ESPD or
should already
≤ €15 000
with justification
one
Simplified
declaration or
have
No
(audit trail)
evidence
necessary
requested in
case of doubt)
capacity)
Chosen by
≤ €1000
authorising of icer
One
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A14
N/A

13 Purchase order should not be used for complex projects e.g. if they include purchase of intellectual property rights.
14 In some cases such as local purchases in Belgium, not using a purchase order would prevent VAT exemption (a contract is required).
62

3.8. Negotiated procedure without prior publication of a contract
notice

63

link to page 145

3.8.1. Scope and characteristics
The negotiated procedure without prior publication is an exception which can only be used
under the cases exhaustively  listed  in  Point  11  Annex  1  FR,  regardless  of  the  value of  the
purchase.
The contracting authority must be able to demonstrate that it is in one of those exceptional
situations by virtue either of the subject of the contract or of the circumstances. The reasons
must be set out in the authorising officer’s decision awarding the contract. It is good practice
to draft a note for the file before launching this negotiated procedure to justify its use (audit
trail).
In addition, as a way of preventing its overuse, the procedures used on the basis of points (a)
to  (f) of  Point  11  Annex  1  FR,  must  be  included  in  the  Annual  Activity  Report  of  the
authorising officer (see Chapter 4.14.3).
The  submitted  tenders  can  be  negotiated,  more  specifically  the  technical  and  the  financial
offers. The contract may be awarded on the basis of the initial tender without negotiation if
this possibility was indicated in the procurement documents.
  Check  here  how  negotiated  procedures  without  prior  publication  of  a
contract notice are supported by eProcurement.
3.8.2. Minimum time-limits
The  rules  lay  down  no  minimum  time  limit  for  receiving  tenders  in  negotiated  procedures
without prior publication of a contract notice, but tenderers should be given reasonable time
to  prepare  good  tenders,  taking  particular  account  of  the  complexity  of  the  contract  or  the
need for on-site visit.
The  time-limit  for  sending  the  contract  award  notice  for  publication  is  maximum  30  days
after signature of the contract for points (a) and (c) to (f) below.

3.8.3. Conditions for use
This negotiated procedure without prior publication of a contract notice can be used:
(a) Where no tenders, no suitable tenders or no request to participate or no suitable request
to  participate  have  been  submitted  in  response  to  an  open  procedure  or  restricted
procedure  after  that  initial  procedure  has  been  completed,  provided  that  the  original
procurement documents are not substantially altered.
A tender is considered unsuitable if it is irrelevant to the subject matter of the contract in
question.  It  is  therefore  totally  inadequate  for  the  contracting  authority’s  purposes  as
defined in the specifications. This is consequently considered equivalent to an absence of
tenders.  A  request  to  participate  is  considered  unsuitable  if  the  candidate  is  in  an
exclusion situation or if it does not meet the selection criteria.
The  initial  procedure  is  deemed  completed  when  the  cancellation  notice  has  been
published  in  the  OJ.  The  negotiation  takes  place  with  minimum  one  candidate.  The
standstill period does not apply. Publication of a contract award notice is compulsory.
(b) Where  the  works,  supplies  or  services  can  only  be  provided  by  a  particular  economic
operator for technical or artistic reasons, or for reasons connected with the protection of
exclusive rights.
(i) the aim of the procurement is the creation or acquisition of a unique work of art
or an artistic performance;
(ii) competition is absent for technical reasons;
64

(iii) the protection of exclusive rights including intellectual property rights must be
ensured;
The  exceptions  set  out  in  points  (ii)  and  (iii)  shall  only  apply  when  no  reasonable
alternative or substitute exists and the absence of competition is not the result of an
artificial narrowing down of the parameters when defining the procurement.
This provision must be interpreted strictly. According to established case law15, it is not
sufficient  for  the  products  in  question  to  be  protected  by  exclusive  rights;  it  is  also
necessary that they are manufactured or delivered by only one particular operator. This
condition  is  met  only  in  the  case  of  products  for  which  there  is  no  competition  on  the
market  at  all  (monopoly)  independently  from  the  contracting  authority's  purchasing
habits.
The  negotiation  takes  place  with  one  candidate.  The  standstill  period  applies  as  from
publication  of  the  award  notice  in  the  OJ,  after  the  award  decision  is  taken  and,  of
course, before signature of the contract.
(c) In so far as is strictly necessary, where, for reasons of extreme urgency brought about by
events  unforeseeable  by  the  contracting  authority,  it  is  impossible  to  comply  with  the
time  limits  set  for  the  other  procedures;  the  circumstances  invoked  to  justify  extreme
urgency shall not in any event be attributable to the contracting authority.
Three  conditions  must  be  met:  there  must  be  an  unforeseeable  event,  it  must  not  be
attributable to the contracting authority and it must be impossible to follow an ordinary
procedure.  The  negotiation  takes  place  with  minimum  one  candidate.  The  standstill
period does not apply. Publication of a contract award notice is compulsory.
“Unforeseeable event” means an occurrence absolutely atypical for normal economic and
social life, such as an earthquake, flooding or terrorist attack. In situations like these the
contracting  authority  has  to  act  promptly  and  efficiently  from  the  moment  the
unforeseeable event happens.
In such situations a negotiated procedure may be used only “as strictly necessary”. This
implies  that  any  contract  emerging  from  the  negotiated  procedure  can  cover  only  the
period necessary to carry out a new standard procedure covering the same procurement.
(d) Where a service contract follows a design contest and is to be awarded to the winner or
one of the winners; in the latter case, all  winners must  be invited to participate  in the
negotiations.
All  winners  of  the  contest  must  be  invited  to  negotiate.  The  standstill  period  does  not
apply. Publication of a contract award notice is compulsory.
(e) For  new  services  or  works  consisting  in  the  repetition  of  similar  services  or  works
entrusted to the economic operator to which the same contracting authority awarded an
original  contract,  provided  that  these  services  or  works  are  in  conformity  with  a  basic
project for which the original contract was awarded after publication of a contract notice.
In this case the basic project shall indicate the extent (amount in absolute value or as a
percentage  of  the  initial  contract)  of  possible  new  services  or  works  and  the  conditions
(triggering  event  or  situation)  under  which  they  will  be  awarded.  As  soon  as  the  basic
project  is  put  up  for  tender,  the  possible  use  of  the  negotiated  procedure  shall  be
disclosed, and the total estimated amount for the subsequent services or works must be
taken  into  consideration  in  applying  the  thresholds.  This  procedure  may  be  used  only
during  the  execution  of  the  original  contract  and  at  the  latest  during  the  three  years
following its signature.
The  negotiation  takes  place  with  one  candidate,  the  incumbent  contractor  (all
contractors  in  case  of  multiple  FWC).  This  procedure  can  be  used  to  increase  the

15   See  cases  C-57/94  Commission  v.  Italy  §23,  Joined  Cases  C-20/01  and  C-28/01  Commission  v.
Germany §59 and Case C-394/02 Commission v. Greece §34.
65

link to page 76 link to page 145 link to page 145
maximum  ceiling  of  a  FWC.  It  cannot  be  used  to  extend  the  duration  of  a  FWC.  The
standstill period does not apply. Publication of a contract award notice is compulsory.

(f)  For supply contracts:
i)  for  additional  deliveries  which  are  intended  either  as  a  partial  replacement  of
supplies  or  installations  or  as  the  extension  of  existing  supplies  or  installations,
where  a  change  of  supplier  would  oblige  the  contracting  authority  to  acquire
supplies  having  different  technical  characteristics  which  would  result  in
incompatibility  or  disproportionate  technical  difficulties  in  operation  and
maintenance; the duration of such contracts may not exceed three years;
The  negotiation  takes  place  with  one  candidate,  the  incumbent  contractor.  The
standstill  period  does  not  apply.  Publication  of  a  contract  award  notice  is
compulsory.
ii)  where  the  products  are  manufactured  purely  for  the  purpose  of  research,
experimentation, study or development, however such contracts shall not include
quantity production to establish commercial viability or to recover research and
development costs;
The  negotiation  takes  place  with  minimum  one  candidate.  The  standstill  period
does not apply. Publication of a contract award notice is compulsory.
iii) for supplies quoted and purchased on a commodity market;
The  negotiation  takes  place  with  minimum  one  candidate.  The  standstill  period
does not apply. Publication of a contract award notice is compulsory.
iv)  for  purchases  of  supplies  on  particularly  advantageous  terms,  from  either  an
economic operator  which  is definitively winding  up  its  business  activities, or  the
liquidators  in  an  insolvency  procedure,  an  arrangement  with  creditors,  or  a
similar procedure under national law.
The  negotiation  takes  place  with  one  candidate.  The  standstill  period  does  not
apply. Publication of a contract award notice is compulsory.
(g) For building contracts, after prospection of the local market (see Chapter 3.12) .
All  candidates  selected  after  the  prospection  of  the  local  market  must  be  invited  to
negotiate.  The  standstill  period  does  not  apply.  Ex-post  publication  takes  place  in  the
Annual Activity Report (see Chapter 4.14.3).
(h) For contracts for:
i)  legal  representation  by  a  lawyer  within  the  meaning  of  Article  1  of  Council
Directive 77/249/EEC in arbitration or conciliation or judicial proceedings;
ii)  legal advice given in the preparation of the proceedings referred to above or where
there  is  tangible  indication  and  high  probability  that  the  matter  to  which  the
advice  relates  will  become  the  subject  of  such  proceedings,  provided  that  the
advice  is  given  by  a  lawyer  within  the  meaning  of  Article  1  of  Directive
77/249/EEC;
iii) arbitration and conciliation services
iv)  document  certification  and  authentication  services  which  must  be  provided  by
notaries;
This procedure should be interpreted strictly and does not cover legal analysis or legal
studies. The negotiation takes place with minimum one candidate. The standstill period
does not apply. Ex-post publication takes place on internet by 30 June of the following
year (see Chapter 4.14.2).
(i)  For  contracts  declared  to  be  secret  or  for  contracts  whose  performance  must  be
accompanied  by  special  security  measures,  in  accordance  with  the  administrative
provisions  in  force  or  when  the  protection  of  the  essential  interests  of  the  Union  so
requires,  provided  the  essential  interests  concerned  cannot  be  guaranteed  by  other
66

link to page 145 link to page 145 link to page 145 link to page 145 link to page 145 link to page 145
measures; these measures may consist in requirements to protect the confidential nature
of  information  which  the  contracting  authority  makes  available  in  the  procurement
procedure.
The negotiation takes place with minimum one candidate. The standstill period does not
apply.  Ex-post  publication  takes  place  in  the  Annual  Activity  Report  (see  Chapter
4.14.3).
(j)  for financial services in connection with the issue, sale, purchase or transfer of securities
or  other  financial  instruments  within  the  meaning  of  Directive  2014/65/EU  of  the
European Parliament and of the Council, central bank services and operations conducted
with the European Financial Stability Facility and the European Stability Mechanism;
The negotiation takes place with minimum one candidate. The standstill period does not
apply. Ex-post publication takes place on internet by 30 June of the following year (see
Chapter 4.14.2).
(k)  loans,  whether  or  not  in  connection  with  the  issue,  sale,  purchase  or  transfer  of
securities or other financial instruments within the meaning of Directive 2014/65/EU;
The negotiation takes place with minimum one candidate. The standstill period does not
apply. Ex-post publication takes place on internet by 30 June of the following year (see
Chapter 4.14.2).
(l)  for  the  purchase  of  public  communication  networks  and  electronic  communications
services with the meaning of Directive 2002/21/EC
The negotiation takes place with minimum one candidate. The standstill period does not
apply. Ex-post publication takes place on internet by 30 June of the following year (see
Chapter 4.14.2).
(m)services  provided  by  an  international  organisation  where  it  cannot  participate  in
competitive procedures according to its statute or act of establishment.
This procedure may  be  used  in  particular with  the  World  Bank,  which  cannot  reply to
competitive  tendering.  On  the  other  hand,  United  Nations  agencies  can  usually
participate in calls for tenders so they should not be subject to this procedure.
The negotiation takes place with minimum one candidate. The standstill period does not
apply. Ex-post publication takes place on internet by 30 June of the following year (see
Chapter 4.14.2).

67

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Overview of the negotiated procedure without prior publication of a contract notice
Step of the
Short description,
Time requirement
References:
Model
Legal basis
procedure
requirements, limitations or remarks
Vade-mecum,
documents
Articles
Points
circulars
FR
Annex 1
Financing decision

Chapter 2.1

110
--
Dispatch of
One economic operator to be invited in

Chapter 4.5.4
Model invitation to  166(2)
16
procurement
accordance with the conditions for using
tender
documents to
the negotiated procedure without a

qualified economic
contract notice
Model contracts
operators

For buildings and design contests,
minimum three economic operators.

Procurement documents consist of:
- invitation to tender,
- tender specifications,
- draft contract.
[optional]
Must be sent  simultaneously to all
Must be sent ASAP and no
Chapter 4.5.1

169
25.2
Clarifications,
economic operators invited
later than six days before
25.3
answers to
the deadline. Requests less
questions,
than six working days
corrigenda
before the deadline do not
have to be answered
[optional]
Minutes must be prepared and sent to
Separate visits for each
Chapter 4.3.1.4

168(1)
24.1, 24.3,
Site visit
all candidates
candidate to avoid collusion
24.4
Receipt of tenders
The mechanism for registering the
Reasonable time
Chapter 4.5.5

168(1)
24.2
exact date and time of receipt should be
established
Opening
Writ en record signed by opening
Reasonable time after
Chapter 4.6
Model record of
168(3)
28.4
committee members
deadline for receipt of
opening of
28.6
tenders, allowing tenders
tenders
sent by mail to reach the
contracting authority
Evaluation of award
Evaluation of initial tenders and

Chapter 4.7
Model evaluation
167
29, 30
criteria
feedback to tenderers
report
Negotiation phase
Contacts in writing or with written record

Chapter 4.8

164(4)
6.5
with all tenderers, complying with
169(2)
confidentiality requirements and the
principle of equal treatment
Evaluation of award
Evaluation report signed by the

Chapter 4.7
Model evaluation
157
29,30
criteria
evaluation committee and if applicable,
report
persons involved in assessing exclusion
and selection
Award decision
Taken by AO on the basis of

Chapter 4.9
Model award
170(1)
30
recommendations of the evaluation
decision
report
Notification of
By electronic means
ASAP after award decision
Chapter 4.11
Model information
170(2)
31
tenderers
is taken
let ers
170(3)
Award notice
Case 134(1)(b) only: to be published in
Before contract signature
Chapter 4.14.1
To be submitted
163(1)b)
2.3
the OJ S if the value of the contract
for standstill period
via eNotices
2.4
exceeds  Directive thresholds
Signature of the
Only after adoption of the budgetary
Not earlier than 10 calendar  Chapter 4.11.2
Model contracts
175(2)
35
contract
commitment (except framework
days after award notice is

175(3)
contract)
published in the OJ for
Chapter 4.13
case 134(1)(b)
Award notice or
For certain cases: to be published in the
Not later than 30 days after
Chapter 4.14.1
To be submitted
163
2.3,
Internet publication
OJ S if the value of the contract
signature of the contract

via e-Notices
2.4
exceeds  Directive thresholds

3.3
Other cases: Internet publication
Before 30 June of the
Chapter 4.14.2
following year
[optional] Release
If tenderers were requested to provide

Chapter 5.6

168(2)
--
of the tender
guarantees
guarantees
Beginning of
Cannot start before the contract is

173(1)
--
implementation of
signed
the contract
Archiving
Proper filing of the documentation of the
To be kept for 10 years
Chapter 4.15
Reference file for
74(6)
--
procedure
following signature of the
public
75
contract or cancellation of
procurement
the procedure

68

3.9. Competitive dialogue

69

3.9.1. Scope and characteristics
Contracting  authorities  who  undertake  complex  projects  might  be  objectively  unable  to
define the means of meeting their needs or of assessing what the market can offer in terms of
technical  or  financial  or  legal  solutions.  This  can  arise  with  major  integrated  transport
infrastructure,  large  computer  networks  or  projects  involving  complex  and  structured
financing, for which the financial and legal make-up cannot be determined in advance.
Given that open or restricted procedures could not be used to award such contracts, a flexible
procedure is required which guarantees competition between economic operators and meets
the  need  for  the  contracting  authorities  to  discuss  every  aspect  of  the  project  with  each
candidate (Point 10 Annex 1 FR). However, this procedure must not be used in such a way as
to  restrict  or  distort  competition,  in  particular  by  changing  basic  elements  of  the
specifications.
Besides,  this  procedure  requires  intense  use  of  internal  resources  as  it  is  deals  with  a
complex  subject  matter  and  it  is  time-consuming.  A  high  level  technical  expertise  on  the
subject matter is necessary in-house for the contracting authority to carry out the procedure
with  the  best  chances  of  success  and  to  be  able  to  hold  the  dialogue  with  the  selected
candidates.
Use of a competitive dialogue does not depend on the thresholds set in the Directive but on
the particular circumstances of the purchase, especially the complexity of the contract which
makes it impossible to award it by the open or restricted procedure.
These circumstances are expressly set out in Point 12 Annex 1 FR. This legal basis allows for
the  use  of  a  competitive  procedure  with  negotiation  or  a  competitive  dialogue  as  they  are
treated as equivalent procedures. Nevertheless, Point 12.1 (b) Annex 1 FR provides the basis
which is most frequently used for competitive dialogues.
A  competitive  dialogue  can  be  used  for  works,  supplies  or  services  in  one  of  the  following
cases:
(i) the needs of the contracting authority cannot be met without adaptation of a readily
available solution;
(ii) the purchase includes design or innovative solutions;
(iii)  the  contract  cannot  be  awarded  without  prior  negotiations  because  of  specific
circumstances related to the nature, the complexity or the legal and financial make-up or
the risks attached to the subject matter of the contract;
(iv)  the  technical  specifications  cannot  be  established  with  sufficient  precision  by  the
contracting authority with reference to a standard, as foreseen in Point 17.3 Annex 1 FR;
In  practice,  given  the  resources  needed  for  a  competitive  dialogue,  the  principle  of
proportionality should apply: this procedure should only be used where the purchase is really
complex, i.e. if the contracting authority is not objectively able to define the technical means
capable of satisfying the needs or objectives or not able to specify the legal or financial make-
up of the project.
As  it  is  a  procedure  subject  to  its  own  rules,  the  nature  of  the  contract  must  be  examined
case  by  case,  making  due  allowance  for  the  capabilities  of  the  contracting  authority  to  see
whether use of the competitive dialogue would be justified. In other words, the contracting
authority must show due diligence: if, by reasonable means, it is able to define the technical
means required or to specify the legal or financial make-up, the competitive dialogue cannot
be used.
The fact that a contract involves aspects of technical innovation does not automatically mean
that  it  requires  a  competitive  dialogue.  For  instance,  a  contracting  authority  would  be
perfectly capable of setting technical specifications limiting the power consumption of lamp
bulbs to be purchased to x W/h even if this limit were well below the power consumption of
the most efficient lamp bulb on the market.
70

When,  for  the  purposes  of  carrying  out  a  project,  it  is  necessary  or  desirable  to  involve
private  capital,  the  contracting  authorities might  be  unable to say  in  advance  whether  the
economic operators will be prepared to accept the risk, with the result that the contract will
be a concession contract, or whether, in the end, it will be a public contract.
3.9.2. Minimum time-limits
The time-limit for receipt of requests to participate is minimum 32 days counting from the
day after dispatch of the contract notice to the Publications Office.
There is no minimum legal time-limit for receipt of tenders.
The  time-limit  for  sending  the  contract  award  notice  for  publication  is  maximum  30  days
after signature of the contract.
3.9.3. Procedure for competitive dialogue
First step: selection
In  the  contract  notice  or  in  the  so-called  “descriptive  document”,  the  contracting  authority
must provide:
- its “needs and requirements”,
- the exclusion and selection criteria
- the award criteria,
- the indicative timeframe of the dialogue,
It is strongly recommended to keep the contract notice to a minimum and to provide the full
information  in  the  descriptive  document.  These  substantial  elements  cannot  be  changed
during the whole procedure.
The award method must be best price-quality ratio in a competitive dialogue.
The  competitive  dialogue  is  a  two-step  procedure,  so  the  contracting  authority  initially
receives  requests  to  participate.  There  must  be  at  least  three  selected  candidates  to  be
invited  to  the  dialogue,  unless  there  are  not  enough  candidates  meeting  exclusion  and
selection criteria.
If the contracting authority intends to limit the number of candidates, it must indicate the
objective  and  non-discriminatory  selection  criteria  to  be  applied,  the  minimum  and  the
maximum number of candidates to be invited. The contracting authority may not include in
the procedure economic operators who have not sent a request to participate.
If the contracting authority intends to make use of the possibility of reducing the number of
solutions  during  the  dialogue  by  applying  the  award  criteria,  it  must  announce  it  in  the
contract notice or the descriptive document.
Second step: dialogue
After  expiry  of  the  time  limit  for  receipt  of  requests  to  participate  and  after  selection,  the
contracting  authority  opens  the  dialogue  with  the  selected  candidates,  with  a  written
invitation to tender.
The  objective  of  the  dialogue  is  to  identify  and  define  the  means  that  will  best  satisfy  its
needs.  The  candidates  submit  an  initial  tender  with  the  proposed  (draft)  solution.  During
this  dialogue  it  can  discuss  every  aspect  of  the  future  contract  with  the  tenderers,  but  it
cannot alter its initial needs and requirements and the award criteria as provided above.
The  starting  point  is  that  the  dialogue  must  be  conducted  with  each  of  the  tenderers
individually on the basis of the ideas and solutions put forward by the candidate concerned.
Confidentiality of the solutions proposed or of other information must be guaranteed unless
the parties agree to disclosure. The contracting authority must ensure equal treatment of all
tenderers during the dialogue.
71

The contracting authority continues the dialogue until it can identify one or several solutions
that respond to its needs and requirements.
It is possible to provide for payments to the candidates in view of the large investment that
they may have to make.
Final tender and award
The  contracting  authority  declares  the  dialogue  concluded  and  informs  the  tenderers.  It
invites them to submit their final tenders on the basis of the solution or solutions presented
and specified during the dialogue. These tenders must contain all the elements required and
necessary for performance of the project.
After the final tenders have been received, the contracting authority may ask that they be
clarified, specified and optimised, provided this does not involve substantial changes to the
tender or the procurement documents.
The final tenders are then evaluated against the award criteria and the tender offering best
price-quality ratio is identified.
The explanatory note provides further information on competitive dialogue:
DocsRoom - European Commission (europa.eu)

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Overview of the competitive dialogue
Step of the
Short description,
Time requirement
References:
Model
Legal basis
procedure
requirements, limitations or remarks
Vade-mecum,
documents
Articles
Points
circulars
FR
Annex 1
Financing decision

Chapter 2.1

110
--
[optional]
To be published in the OJ S
maximum 12 months before
Chapter 4.2
To be submitted
--
2.2
Prior information notice  or buyer profile
dispatch of contract notice
via eNotices
Contract notice
Published in the OJ S
PO has 7 days for publication
Chapter 4.3.4
To be submitted
163(1)(a)
2.1

via eNotices
Must indicate the deadline for
Drafting notice
submitting requests and the exclusion
and selection criteria
Procurement
Procurement documents consist of:
From the time the contract notice is  Chapter 4.5.4
Model invitation to  166(2)
16
documents available in
- invitation to tender,
published at least until the deadline
tender
eTendering
- descriptive document,

- draft contract,
Model contracts
- contract notice
Receipt of requests to
The mechanism for registering the
Not earlier than 32 days after
Chapter 4.5.2

168(1)
24.3
participate
exact date and time of receipt should be
dispatch of the contract notice
24.4
established.
Selection of
Only the exclusion and selection criteria

Chapter 4.5.3
Model evaluation
136
29
candidates
are checked by an evaluation
report
137
committee or other means ensuring
167,
there is no conflict of interest
168(4)
Not fewer than three economic
169
operators to be selected
Report on the selection of candidates
should be prepared
Request of additional material for
exclusion or selection.
Notification to rejected
By electronic means
ASAP after selection of candidates
Chapter 4.5.3
Model information
170(2)
30, 31
candidates
let ers
Inviting selected
Descriptive document may be at ached

Chapter 3.9

166(2)
16
candidates to dialogue
Dialogue procedure
Dialogue may be organised in

Chapter 3.9

164
10
successive stages
Documentation of dialogue in writing
Choice of suitable
Preparation of the final procurement

Chapter 4.3

166(2)
12
solution(s)
documents on the basis of suitable
16
solution(s)
Dispatch of
Procurement documents consist of:

Chapter 4.5.4
Model invitation to  166(2)
12
procurement
- invitation to tender,
tender
16
documents to selected
- tender specifications,

candidates
- draft contract.
Model contracts
[optional]
Must be sent simultaneously to invited
Must be sent ASAP and no later
Chapter 4.5.1

169
25.2
Clarifications, answers
candidates
than six days before the deadline.
25.3
to questions,
Requests less than six working
corrigenda
days before the deadline do not
have to be answered
[optional]
Minutes must be prepared and sent to
Separate visits for each candidate
Chapter 4.3.1.4

168(1)
24.1, 24.3,
Site visit
all candidates
to avoid collusion
24.4
Receipt of tenders
The mechanism for registering the
Reasonable time
Chapter 4.5.5

168(1)
24.1
exact date and time of receipt should be
24.3
established.
Opening
Writ en record signed by opening
Reasonable time after deadline for
Chapter 4.6
Model record of
168(3)
28
committee members
receipt of tenders, allowing tenders
opening of
sent by mail to reach the
tenders
contracting authority
Evaluation of award
Evaluation report signed by the

Chapter 4.7
Model evaluation
167
29
criteria
evaluation committee and if applicable,
report
30
persons involved in assessing exclusion
and selection
Award decision
Taken by AO on the basis of

Chapter 4.9
Model award
170(1)
30
recommendations of the evaluation
decision
report
Notification of tenders
By electronic means
ASAP after award decision is taken  Chapter 4.11
Model information
170(2)
31
let ers
170(3)
Signature of the
Only after adoption of the budgetary
Not earlier than 10 calendar days
Chapter 4.13
Model contracts
175(2)
35
contract
commitment (except framework
after electronic dispatch of
175(3)
contract).
information to tenderers
[optional]
If tenderers were requested to provide

Chapter 5.6

168(2)
--
Release of the tender
guarantees
guarantees
Beginning of
Cannot start before the contract is

172(1)
--
implementation of the
signed
contract
Award notice
To be sent to PO for publication in the
Not later than 30 days after
Chapter 4.14.1
To be submitted
163(1)(b)
2.3, 2.4
OJ S
signature of the contract
via eNotices
Archiving
Proper filing of the documentation of the
To be kept for 10 years following
Chapter 4.15
Reference file for
74(6), 75
--
procedure
signature of the contract or
public
cancellation of the procedure
procurement
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3.10. Innovation partnership
3.10.1.  Scope and characteristics
The  objective  of  the  innovation  partnership  is  to  develop  an  innovative  product  (supply,
service or works) and to guarantee its subsequent purchase by the contracting authority, on
the condition that:
- the product corresponds to the performance levels and maximum costs agreed between the
contracting authorities and the partners; and
- no equivalent product becomes available on the market during the partnership.
Before launching an innovation partnership (Point 7 Annex 1 FR), the contracting authority
must carry  out  a  preliminary  market  analysis  (see  Chapter  4.1)  to ensure  that  the desired
product is not already available on the market or has not been already developed and is close
to commercial phase.
3.10.2.  Minimum time-limits
The time-limit for receipt of requests to participate is minimum 32 days counting from the
day after dispatch of the contract notice to the Publications Office.
There is no minimum legal time-limit for receipt of tenders.
The  time-limit  for  sending  the  contract  award  notice  for  publication  is  maximum  30  days
after signature of the contract.
3.10.3.  Procedure for innovation partnership
First step: selection
In  the  procurement  documents,  the  contracting  authority  identifies  its  need  for  innovative
works,  supplies  or  services  and  includes  which  elements  of  this  description  define  the
minimum requirements. It also defines the arrangements applicable to intellectual property
rights.
The contracting authority may decide to set up the innovation partnership with one partner
or with several partners conducting separate research and development activities.
The award method must be best price-quality ratio.
The  innovation  partnership  is  a  two-step  procedure,  so  the  contracting  authority  initially
receives  requests  to  participate.  There  must  be  at  least  three  selected  candidates  to  be
invited  in  the  second  step,  unless  there  are  not  enough  candidates  meeting  exclusion  and
selection criteria.
If the contracting authority intends to limit the number of candidates, it must indicate the
objective  and  non-discriminatory  selection  criteria  to  be  applied,  the  minimum  and  the
maximum number of candidates to be invited. The contracting authority may not include in
the procedure economic operators who have not sent a request to participate.
If  the  contracting  authority  intends  to  make  use  of  the  possibility  to  terminate  the
partnership  or  to  reduce  the  number  of  partners  in  each  phase  of  the  partnership  on  the
basis  of  intermediary  targets,  it  must  announce  it  in  the  procurement  document  together
with the conditions for applying this possibility.
Second step: contract award and partnership
The procedure largely follows the competitive procedure with negotiation.
The contract is awarded to one or more selected candidates on the basis of their final tenders.
For more information on negotiation phase, see Chapter 4.8.
The  partnership  is  structured  in  different  phases  which  follow  the  various  steps  of  the
research and innovation process. These steps may include the completion of the works, the
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manufacturing  of  the  products  or  the  provision  of  the  services  and  it  must  include
intermediate targets to be attained by the partners.
The structure of the partnership and, in particular, the duration and value of the different
phases must reflect the degree of innovation of the proposed solution and the sequence of the
research  and  innovation  activities  required.  The  remuneration  must  be  proportionate  and
paid in appropriate instalments.
The partnership contract covers both the research and the delivery stages. It must include
all these elements, as well as the possibility to terminate the contract with partners on the
basis  of  intermediary  targets  or  if  the  initial  targets  (performance  and  maximum  cost)  are
exceeded.
3.11. Design contest
3.11.1. Definition
Design contests are procedures which enable the contracting authority to acquire, mainly in
the fields of architecture and civil engineering or data processing, a plan or design proposed
by a jury after competitive procedure with or without the award of prizes (Point 8 Annex 1
FR). The winner or winners are then invited to negotiate before signature of the subsequent
contract. The negotiated procedure without prior publication of a contract notice can be used
for that purpose (see Chapter 3.8).
For more information on negotiation phase, see Chapter 4.8.
Check here how design contests are supported by eProcurement.
3.11.2. Calculation of the estimated value of the design contest
For  the  purpose  of  calculating  the  amount  of  the  contest,  account  should  be  taken  of  any
prizes  that  may  be  awarded.  The  total  amount  of  the  contest  will  include  any  prizes  and
payments received by the participants.
3.11.3. Organisation and procedure
Generally  speaking,  design  contests,  like  any  other  public  procurement  procedure,  must
comply  with  the  principles  of  transparency,  proportionality,  equal  treatment  and
nondiscrimination-.  This  means,  for  instance,  that  there  can  be  no  requirement  that
participants  must  be  either  natural  or  legal  persons;  similarly,  clear  and
nondiscriminatory- criteria must be laid down.
A  design  contest  notice  must  be  published  for  contract  values  as  from  the  Directive
threshold. The standard form must be used for the design contest notice (see instruction to
use the standard forms).
The  rules  governing  organisation  of  a  design  contest  are  made  available  to  anybody
interested in participating.
The  minimum  number  of  candidates  invited  to  participate  is  not  laid  down  in  the
regulations.  It  must,  however,  be  sufficient  to  ensure  genuine  competition  so  it  is
recommended to be at least five.
The  jury  is  appointed  by  the  authorising  officer  responsible.  It  is  made  up  exclusively  of
natural  persons  having  no  connection  with  participants  in  the  design  contest.  If  a  specific
professional qualification is required for participation in the contest, at least one third of the
members of the jury must have the same or an equivalent qualification.
The  jury  is  fully  autonomous  in  its  opinions.  These  opinions  are  adopted  on  the  basis  of
projects submitted to it anonymously by the candidates and solely in the light of the criteria
set out in the design contest notice.
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The proposals of the jury, based on the merits of each project, and its observations, shall be
recorded  in  a  report  signed  by  its  members. Candidates  shall  remain  anonymous  until the
jury has given its opinion.
Candidates may be asked by the jury to answer the questions recorded in the report in order
to clarify a project. A full report of the ensuing dialogue must be drawn up.
The contracting authority then takes an award decision giving the name and address of the
candidate selected and the reasons for the choice by reference to the criteria  announced in
the  design  contest  notice,  especially  if  it  diverges  from  the  proposals  made  in  the  jury’s
opinion.
An award notice (the results of the contest, whatever the outcome) must be published, using
the standard form (see instruction to use the standard forms), for contract values above the
Directive threshold.
The  award  notice  must  be  sent  to  the  Publications  Office  no  later  than  30  days  after  the
contract has been signed. The contracting authority must be able to provide evidence of the
date of dispatch.
For reasons of transparency, it may also be advisable to publish an award notice for design
contests  where  a  contest  notice  was  published  on  a  voluntary  basis  below  Directive
threshold.
Public  contracts  awarded  after  a  design  contest  for  which  it  is  not  necessary  to  publish  a
design award notice are included in the annual list of contractors (see Chapter 4.14.2).
3.12. Negotiated procedure for building contracts
Building contracts cover the purchase, exchange, long lease, usufruct, leasing, rental or hire
purchase, with or without option to buy, of land, buildings or other real estate. It covers both
existing buildings and buildings before completion provided that the candidate has obtained
a  valid  building  permit  for  it.  It  does  not  cover  buildings  designed  in  accordance  with  the
specifications of the contracting authority that are covered by works contracts.
Given the uniqueness of each building and/or location, the contract specifications cannot be
established with sufficient precision to allow the award of the contract by choosing the best
tender  according  to  the  rules  governing  open  or  restricted  procedures.  That's  why  building
contracts  can  be  concluded  by  negotiated  procedure  without  prior  publication  of  a  contract
notice, after the local market has been prospected (Point 11.1 (g) Annex 1 FR).
The negotiated procedure taking place after the prospection of the market is subject to the
rules on procurement.
For more information on the negotiation phase, see Chapter 4.8.
Building  contracts  are  subject  to  Articles 266  and  267  FR.  Each  institution  must  submit  a
communication to the budgetary authority16 presenting all relevant information (as provided
for  in  Article  266(2)  FR)  on  the  planned  building  project  with  significant  financial
implications (as defined in Article 266(5) FR). This allows the budgetary authority to give its
opinion on the project.
In order to satisfy transparency requirements, the list of contractors is sent to the budgetary
authority. In the case of the Commission, it is annexed to the summary of the annual activity
reports in the same way as the report on negotiated procedures (see Chapter 4.14.3).
3.13. Dynamic purchasing system
The dynamic purchasing system (DPS) is a completely electronic process for commonly used
purchases, which is open throughout its duration to any economic operator who satisfies the

16  The  standard  consultation  form  is  available  on  BUDGpedia  (only  accessible  to  the  Commission):
Buildings (europa.eu)
76

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selection criteria. It is a variant of the restricted procedure making exclusive use of electronic
means (Point 9 Annex 1 FR).
The DPS is very similar to a list of pre-selected candidates following a call for expressions of
interest except that the value of the purchases under a DPS is not limited.
The  DPS  can  facilitate  the  management  of  the  procurement  procedure  and  represent  a
saving in terms of the resources needed to manage commonly used purchases. The choice of
this system depends on the subject of the contract. Examples of standard purchases are office
supplies and laboratory chemicals (JRC).
The main advantages for the contracting authorities are:
-  wholly electronic process;
-  transparency and competitiveness within the selection procedure;
-  flexibility in meeting the specific requirements of individual authorities.
The procedure may be divided into (sub-) categories of works, supplies or services depending
on the characteristics of the procurement to be undertaken under the category concerned.
In this case, selection criteria must be defined for each category.
In  order  to  procure  through  a  DPS,  the  contracting  authority  must  follow  the  rules  of  the
restricted procedure. The DPS is published as a restricted procedure on TED. The number of
candidates shall not be limited. The period of validity of the DPS must be indicated in the
contract notice. It may not last for more than four years, except in duly justified exceptional
cases.
The procurement documents must indicate:
-  the nature and the estimated quantity of the purchases envisaged;
-   the exclusion and selection criteria;
-   the award criteria for the future calls for tenders;
-  all the necessary information concerning the purchasing system;
-  the electronic equipment used;
-  the technical connection arrangements and specifications.
The contracting authority shall give any economic operator, throughout the period of validity
of  the  DPS,  the  possibility  of  requesting  to  participate  in  the  system.  As  in  a  restricted
procedure, the request to participate includes exclusion and selection criteria.
The contracting authority shall complete its evaluation of such requests within 10 working
days  following  their  receipt.  This  deadline  may  be  prolonged  to  15  working  days  where
justified. However, the contracting authority may extend the evaluation period provided that
no invitation to tender is issued in the meantime. The contracting authority shall inform the
candidate as soon as possible of whether or not it has been admitted to the DPS.
When the contracting authority wishes to use the DPS, it shall invite all candidates admitted
to the system under the relevant category to submit a tender within a reasonable time.
An electronic auction (see Chapter 3.14) may  be  used for contracts  to  be  awarded  under the
dynamic purchasing system.
The  contracting  authority  shall  award  the  contract  to  the  tenderer  who  has  submitted  the
most  economically  advantageous  tender  on  the  basis  of  the  award  criteria  set  out  in  the
contract  notice.  Those  criteria  may,  if  appropriate,  be  formulated  more  precisely  in  the
invitation to tender.
3.14. Electronic auction
An electronic auction is a process using electronic means for presenting an electronic tender
(Point 22 Annex 1 FR). It is not a procurement procedure.
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Electronic  auctions  should  be  used  only  for  works,  supply  and  service  contracts  where  the
specifications  can  be  established  with  precision.  The  use  of  electronic  auctions  enables  the
contracting  authority  to  ask  tenderers  to  revise  prices  downwards,  to  rank  them
automatically  and,  when  the  contract  is  awarded  following  the  best  price-quality  ratio,  to
improve features of the tender other than price.
In order to ensure compliance with the principle of transparency, only features that can be
evaluated automatically by electronic means, with no intervention and/or assessment by the
contracting  authority,  can  be  open  to  electronic  auction,  i.e.  only  features  that  are
quantifiable and can be expressed in figures or percentages. Consequently some works and
service  contracts  involving  intellectual  services,  such  as  design,  should  not  be  open  to
electronic auctions.
An  electronic  auction  may  be  used  in  an  open  or  restricted  procedure,  a  competitive
procedure  with  negotiation,  in  the  reopening  of  competition  among  the  parties  to  a
framework  contract  and  in  the  contracts  to  be  awarded  under  the  dynamic  purchasing
system  (see  Chapter  3.13)  when  the  procurement  documents  can  be  established  with
precision.
The electronic auction is based on one of the three award methods: lowest price, lowest cost
or  best  price-quality  ratio  (see  Chapter  4.3.1.12)  and  must  be  announced  in  the  contract
notice.
The procurement documents must include the following details:
a) the  value  of  the  features  which  will  be  the  subject  of  electronic  auction,  provided  that
those features are quantifiable and can be expressed in figures or percentages;
b) any limits on the values which may be submitted, as they result from the specifications
relating to the subject matter of the contract;
c)  the information which will be made available to tenderers in the course of the electronic
auction and, where appropriate, when it will be made available to them;
d) the  relevant  information  concerning  the  electronic  auction  process  including  whether  it
includes phases and how it will be closed;
e)  the  conditions  under  which  the  tenderers  will  be  able  to  tender  and,  in  particular,  the
minimum  differences  which  will,  where  appropriate,  be  required  when  submitting  the
tender;
f)  the relevant information concerning the electronic equipment used and the arrangements
and technical specifications for connection.
Before  proceeding  with  an  electronic  auction,  the  contracting  authority  must  make  a  full
initial  evaluation  of  the  tenders  in  accordance  with  the  award  criteria  set  out  in  the
procurement documents.
All  tenderers  who  have  submitted  admissible  tenders  shall  be  invited  simultaneously  by
electronic means to participate in the electronic auction using, as  of the specified date and
time,  the  connections  in  accordance  with  the  instructions  set  out  in  the  invitation.  The
invitation to participate in the electronic auction shall be accompanied by the outcome of the
evaluation of the relevant tender.
The invitation shall also state the mathematical formula (including weighting) to be used in
the  electronic  auction  to  determine  automatic  re-rankings  on  the  basis  of  the  new  prices
and/or  new  values  submitted.  Where  variants  are  authorised,  a  separate  formula  shall  be
provided for each variant.
The  electronic  auction  may  take  place  in  a  number  of  successive  phases.  It  may  not  start
sooner than two working days after the date on which invitations are sent out.
Throughout  each  phase  of  an  electronic  auction  the  contracting  authority  shall
instantaneously communicate to all tenderers at least sufficient information to enable them
to  ascertain  their  relative  rankings  at  any  moment.  It  may  also,  where  this  has  been
previously  indicated,  communicate  other  information  concerning  other  prices  or  values
submitted  as  well  as  announce  the  number  of  participants  in  any  specific  phase  of  the
78

auction. In no case, however, may it disclose the identities of the tenderers during any phase
of an electronic auction.
The  contracting  authority  shall  close  an  electronic  auction  in  one  or  more  of  the  following
ways:
a) at the previously indicated date and time;
b) when  it  receives  no  more  new  prices  or  new  values  which  meet  the  requirements
concerning minimum differences, provided that it has previously stated the time which it
will  allow  to  elapse  after  receiving  the  last  submission  before  it  closes  the  electronic
auction;
c)  when the previously indicated number of phases in the auction has been completed.
After closing an electronic auction, the contracting authority shall award the contract on the
basis of the results of the electronic auction.
At present there are no IT solutions allowing use of this award system by the Commission.
3.15. Electronic catalogue
The  electronic  catalogue  is  a  form  of  technical  and  financial  offer  in  electronic  format
submitted by a tenderer (Point 27 Annex 1 FR). It is not a procurement procedure or linked
to  a  particular  procurement  procedure  or  type  of  contract  or  a  specific  award  method.  An
electronic  catalogue  may  be  used  for  supplies  and  standardised  products  or  services  (e.g.
office supplies, training).
If the presentation of tenders in the form of electronic catalogues is required,  this must be
specified in the contract notice. The procurement documents must indicate all the necessary
information concerning the required format, the electronic equipment used and the technical
connection  arrangements.  Tenderers  cannot send  their  general catalogue  of products.  They
must  prepare  their  e-catalogue  exactly  like  a  tender,  by  responding  precisely  to  the
requirements of the contracting authority, i.e. listing only relevant products and prices. If a
product  does  not  correspond  to  a  requirement,  the  e-catalogue  may  be  rejected  for  non-
compliance.
In  the  case  of  a  framework  contract  with  reopening  of  competition  concluded  following
submission of tenders in the form of electronic catalogues, the reopening of competition for
specific  contracts  may  take  place  on  the  basis  of  updated  catalogues  by  using  one  of  the
following methods:
-  invite  contractors  to  resubmit  their  electronic  catalogues,  adapted  to  the  requirements  of
the specific contract in question;
-  notify  contractors  that  the  information  needed  will  be  collected  from  the  electronic
catalogues  already  submitted  to  constitute  tenders  adapted  to  the  requirements  of  the
specific contract in question, provided that the use of that method has been announced in the
procurement documents for the framework contract.
When using the second method, the contracting authority must notify contractors of the date
and  time  at  which  they  intend  to  collect  the  information  needed  to  constitute  tenders
adapted  to  the  requirements  of  the  specific  contract  in  question  and  give  contractors  the
possibility to refuse such collection of information, allowing for an adequate period between
the notification and the actual collection of information.
Before  awarding  the  specific  contract,  the  contracting  authority  must  present  the  collected
information to the contractor concerned so as to give it the opportunity to contest or confirm
that the tender constituted does not contain any material errors.

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Part 4. Stages in the procurement procedure
4.1. Preliminary market analysis
The  contracting  authority  may  conduct  a  preliminary  market  analysis  with  a  view  to
preparing  the  procurement  procedure  (Article  166  (1)  and  Point  15  Annex  1  FR).  Gaining
prior knowledge and understanding of the relevant market, thereby saving time and efforts
by bringing a precise focus to the planned procurement, derives from the principle of sound
financial management.
The  preliminary  market  analysis  is  mandatory  in  the  case  of  innovation  partnerships,
considering that it is necessary to ensure that the innovation partnership is used only when
the  desired  product  does  not  exist  on  the  market  since  its  objective  is  to  finance  research
(Point 7.2 Annex 1 FR).
It  is  advisable  to  conduct  a  preliminary  market  analysis  when  envisaging  a  negotiated
procedure without prior publication for a contract that can be awarded only to a particular
economic operator (Point 11.1 (b) Annex 1 FR) (see Chapter 3.8).

Purpose
The main purpose is to allow the contracting authority:
-   developing general market knowledge (established market - market in development phase
- existence of sufficient suppliers to ensure effective competition);
-   assessing  the  capability  of  the  market  to  deliver  what  is  required,  within  the  required
time-limits and on the required scale, and consequently the feasibility of the procurement;
-   gaining knowledge of the terms and conditions usually applied to contracts in the relevant
market  and  identifying  potential  market  constraints  (for  instance,  for  a  specific  market
the contracting authority's standard terms may deter economic operators from submitting
a tender);
-   refining  and  further  clarifying  its  requirements  and  specifications  without,  however,
having its needs influenced and determined by what the market offers;
-   making a correct estimate of the contract value;
-   defining appropriate selection and award criteria;
-   gaining understanding of potential risks of contract performance;
-   providing for sufficient time-limit as regards the preparation of tenders;
-  understand a possible low response rate to the call for tenders;
-  identify new economic operators with a view to icreasing competition and obtaining best
value for money.

Method
There is no uniform method for consulting the market, but the most commonly used one is
the "desk research" (based on internet, mail and phone). Frequent sources of information are:
-   catalogues of producers, distributors, dealers
-   press publication (specialized journals, magazines, newsletters, etc.)
-   trade associations/organizations and/or chambers of Commerce
-   market studies prepared by consultancy companies
-    procurement  procedures  with  the  same  subject  matter  conducted  by  other  contracting
authorities.
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When  relevant  or  necessary,  other  more  active  market  prospecting  activities  can  be
envisaged, such as:
-   participation in conferences, fairs, seminars;
-   interviews  of  market  actors  or  contacts  with  knowledgeable  persons/experts  in  the
relevant  market,  e.g.  seeking  advice  from  independent  experts,  specialised  bodies  or
economic operators;
-   conduct a survey via emailing or by using online tools (such as EU survey) and advertise it
on  the  contrating  authority’s  website  or  in  the  ex-ante  publicity  documents.  EU  survey
can be used for example for publishing questionnaires and invite relevant market parties
to reply in detail to specific questions from the contracting authority e.g. about the ability
of  solutions  on  the  market,  the  status  of  ongoing  product  developments  and  their  IPR
protection as well as other more solution specific and/or business confidential aspects. The
questions  must be clear  and  they  should  allow the collection  of meaninglful  information
for the call;
-  organisation of info days to present planned procurement procedures and collect feedback
from economic operators.
The decision on which method to be chosen depends on the objective of the market analysis,
the specificities of each market as well as the time and the resources available. The activities
mentioned  above  may  be  online  or  through  physical  meetings,  with  economic
operators/experts/knowledgable  persons  either  in  group  or  individually.  For  individual
contacts attention should be paid not to distort competition. Furthermore, when consulting
experts attention should be paid to ensure that the information received is not biased. Group
meetings could enable the contracting authority to do polls to gauge what the majority of the
participants/the  market  thinks  about  the  risks  or  feasibility  of  going  for  approach  a  or  b.
However, in group meetings economic operators will not reveal detailed confidential/business
sensitive  information  about  their  solution  as  they  are  in  front  of  their  competitors.  In
addition,  group  meetins  may  facilitate  collusion  between  interested  economic  economic
operators.  For  obtaining  more  detailed  /  sensitive  information,  individual  meetings  or
written questionnaires are more appropriate.

Staff involved
Regarding the staff that perform the preliminary market analysis, there are three models.
A  first  model  considers  a  centralised  approach  where  ususally  in  larger  organisations  a
dedicated team/unit that has the mandate to understand and communicate with the market
with the support of the procurement and the operational units.
A  second  model  defines  that  the  preliminary  market  analysis  is  carried  out  by  the
procurement staff, in collaboration with the operational unit.
A third and last model consists of a decentralised approach in the operational unit. In this
model,  the  procurement  function  makes  available  guidelines  and  assistance  to  the
operational  unit,  which  is  the  one  that  undertakes  the  market  analysis.  In  general,
centralised  models  1  and  2  described  above  are  recommended,  in  particular  when  market
analysis includes engagement with economic operators.

General principles
Even  though  there  are  no  specific  rules  regulating  the  process  of  market  consultation,  the
fundamental  principles  of  non-discrimination,  equal  treatment  and  transparency  must
always  be  respected.  This  is  particularly  important  in  case  the  contracting  authority
undertakes to seek or accept advice from external persons or entities.
Particular  care  must  be  taken  not  to  impair  fair  competition  by  providing  some  economic
operators with early knowledge of a planned procurement procedure and/or its parameters.
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Competition  could  be  also  impaired  if  the  technical  specifications  may  be  perceived  as
influenced or "mirroring" the specifications of a particular product or service on the market.
The information shared during the market analysis should be the same to all involved actors
and  in  order  to  ensure  equal  treatment  of  all  economic  operators  (even  those  that  did  not
participate  to  the  survey)  the  same  information  should  be  included  to  the  procurement
documents.
In  any  case,  all  actions  (whether  mandatory  or  not)  linked  to  the  preliminary  market
analysis will have to be properly documented and reported in writing for each procurement
file,  preferably  in  a  digital  environment/database,  in  order  to  ensure  transparency  and
auditability.  The  market  analysis  must  demonstrate  that  an  effort  was  made  to  identify  a
broad  range  of  potential  suppliers  that  can  provide  the  required  goods/services  thus
stimulating the competition, make a correct budget/price estimate and facilitate the decision
of the Authorising Officer. The record should include:
- the justification/objective of the market analysis;
-the staff involved;
-the entities that have been consulted, the method used;
- clear sources from where the data has been retrieved (links and other types of supporting
evidence;
-comparison between the potential candidates with supporting evidence (e.g. company’s price
list,  budget  estimate,  catalogues  of  producers,  press  publications,  timetable),  where  and  if
applicable;
-the  considerations  used  to  select  final  shortlist  of  candidates  to  be  invited,  where  and  if
applicable;
-the conclusions reached.
4.2. Ex-ante publicity
4.2.1. Prior information notice
The  prior  information  notice  serves  to  make  it  known  to  economic  operators  that  a
contracting authority is planning to award one or more contracts (Point 2.2 Annex 1 FR). It
is published ahead of the procedure, before a contract notice is published (see Chapter 4.3.4)
and obviously before the procurement documents are made available to potential tenderers.
Publication  of  a  prior  information  notice  creates  no  obligation  towards  the  contracting
authority and consequently no financing decision or budgetary commitment is needed at this
stage.
Publication  of  a  prior  information  notice  is  not  compulsory.  It  enables  operators  to  make
preparations  (for  example,  to  gather  the  necessary documentation  and plan  how  to  free  up
sufficient resources) so that they are ready to produce a tender as soon as the contract notice
is published. It is therefore a way of increasing the chance of obtaining (good) tenders. It can
also contain information to inform the market about a preliminary market consultation/info
day/survey,  that  the  contracting  authority  is  organising  in  preparation  of  an  upcoming
procurement.  It  is  especially  advisable  to  use  a  prior  information  notice  in  the  case  of  big
projects that,  by  nature, would probably entail  joint tendering:  international  projects to  be
implemented  in several  countries,  complex  multidisciplinary  projects,  large-scale  contracts,
big works contracts, etc.
4.2.1.1. Arrangements for publication
There are two methods of publishing a prior information notice:
(a)   publication in the Official Journal "S" series (OJ S),
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(b)   publication  on  the  buyer  profile17  plus  information  in  the  OJ  S  indicating  where  the
prior information can be found.
The  eNotice  form  as  indicated  in  the  instruction  on  drafting  notice  must  be  used  for
publication  of  a  prior  information  notice.  The  instruction  explains  the  arrangements  for
sending  the  notice  to  the  Publications  Office,  along  with  best  practices  and  advice  on
completing the forms online via eNotices.
  Check  here  how  eProcurement  supports  ex-ante  publicity  through
publication in the Official Journal.
In cases where the prior information is published in the buyer profile, a Notice on a Buyer
Profile must be sent to the Publications Office.
The  prior  information  notice  will  be  published  by  the  Publications  Office  within  7  days  of
dispatch.
The contracting authority must be able to provide evidence of the date of dispatch.
Particular  care  should  be  taken  with  the  following  aspects  when  drafting  the  prior
information notice:
-    provide the most accurate description possible of the subject of each contract;
-    give an estimated value for each of the contracts referred to;
-    indicate  the  estimated  date  of  publication  of  the  contract  notice  within  the  next
12 months, for each of the contracts in question.
4.2.1.2. Other forms of publicity
In  addition,  but  not  as  an  alternative  to  publication  of  the  prior  information  notice,  the
contracting authority may use any other form of publicity, including electronic.
Such publicity must not precede publication of the prior information notice, which is the only
authentic  version,  and  must  refer  to  the  notice.  Nor  must  it  introduce  any  discrimination
between  candidates  or  tenderers  or  contain  any  information  other  than  that  in  the  prior
information notice.
This additional publicity might, for example, take the following forms:
–  publication on the contracting authority's website;
–  publication in the general or specialist press;
–  letter  to  the  professional  associations  or  organisations  representing  businesses,  drawing
their attention to the prior information notice and asking them to circulate it among their
members, etc.,
–  mailshot  based  on  transparent  and  not  discriminatory  criteria,  e.g.  list  constructed  by  a
webpage subscription mechanism. Mailshots must not be limited to only a few economic
operators known to the contracting authority.
4.2.2. Call for expressions of interest
4.2.2.1. Publication of calls for expressions of interest
The  text  of  calls  for  expressions  of  interest  should  be  sent  by  electronic  means  only  to  the
Secretariat-General  at  “SG  PUBLICATIONS  AU  JO”,  in  one  language  only.  It  should  be
accompanied by a formal request for publication, signed by the Head of Unit and addressed
to the Head of Unit SG.A.3.

17  Buyer  profile  must  be  understood  as  an  internet  web  site  clearly  identified  as  a  place  where  the
contracting authority publishes information about its procurement procedures.
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The  Secretariat-General  is  responsible  for  sending  it  to  the  Publications  Office,  which
provides  for  translation  into  all  languages  of  the  European  Union  and  publication  in  the
Official Journal (within 12 days).
The contracting authority must be able to provide evidence of the date of dispatch.
After publication in the Official Journal, the call for expressions of interest may be published
on the Internet site of the contracting authority.
See the model of notice of call for expressions of interest.
4.2.2.2. Other forms of publicity
In addition to publishing the call for expressions of interest, the  contracting authority may
use  any  other  form  of  publicity  that  it  chooses,  including  electronic.  Indeed,  it  is  in  its
interest to do so, given that the aim is to encourage requests.
Such publicity must not predate publication of the notice in the Official Journal, which is the
only  authentic  version,  and  must  refer  to  the  notice.  Nor  must  it  introduce  any
discrimination between candidates or tenderers or contain any information other than that
in the call for expressions of interest.
This additional publicity might, for example, take the following forms:
  publication on other websites;
  publication in the general or specialist press;
  letters to the professional associations or organisations representing businesses, drawing
their  attention  to  the  call  for  expression  of  interests  and  asking  them  to  circulate  it
among their members;
  mailshot based on transparent and not discriminatory criteria, e.g. list constructed by a
webpage subscription mechanism. Mailshots must not be limited to only a few economic
operators known to the contracting authority.

4.2.3. Publicity on the website
Ex-ante  publicity  on  the  institutions'  websites  is  compulsory  for  middle  and  low-value
contracts  above  €15  000  for  which  no  call  for  expressions  of  interest  was  published.  Such
publicity can take the form of publication of the annual work programme directly accessible
from the buyer profile. It may also take the form of specific publicity on the buyer profile per
procedure, or in advance as a list of intended procedures (see Chapter 3.7.3).
Check here how ex-ante publicity for negotiated procedures for middle and
low value contracts is supported by eProcurement.
4.3. Preparation of the procurement documents
After  defining  the  type  of  contract  (see  Chapter  2.6),  possibly  conducting  a  preliminary
market analysis (see Chapter 4.1) and choosing the appropriate procedure, and making ex-
ante publicity where applicable (see Chapter 4.2) the contracting authority’s first task is to
draft the procurement documents.
The procurement documents consist of:
-
(i)  the  contract  notice  published  in  the  Official  Journal  or  other  publication  if
applicable;
-
(ii) the invitation to tender;
-
(iii) the tender specifications or the descriptive document for a competitive dialogue;
-
(iv) the draft contract.
They are designed to achieve a number of distinct and complementary objectives:
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–   (i) to advertise the procurement procedure
–  (ii) to lay down the conditions governing submission of requests to participate or tenders;
–  (iii) to provide an exact definition of the characteristics of the supply or service required by
the contracting authority and to announce the criteria and method on the basis of which
the contracting authority will award the contract;
–  (iv)  to  describe  the  contractual  terms  on  which  the  contracting  authority  is  prepared  to
acquire the supply or service.
Procurement documents are mandatory for all types of public procurement procedures.
In  the  case  of  procedure  in  two  steps,  economic  operators  will  first  be  invited  to  submit  a
request  to  participate.  The  invitation  to  tender  will  be  sent  in  the  second  step  only  to  the
selected candidates.
In the case of negotiated procedures involving just one tenderer and for low-value contracts
(see Chapter 3.7), the content of the procurement documents may be simplified.
The  procurement  documents  must  be  regarded  as  a  set  in  which  the  various  elements
complement each other to ensure compliance with the rules.
These  documents  constitute  the  cornerstone  of  transparent  and  competitive  procedures.
Tenders  must  be  received,  opened  and  evaluated  and  the  contract  awarded  in  accordance
with the arrangements set out in these documents. These are the rules which the contracting
authority itself has laid down and is therefore bound to comply with.
It  is  particularly  important  to  ensure  total  consistency:  there  should  be  no  divergence
between  the  various  documents.  The  contract  notice  (or  other  publication  if  applicable)
should provide an exact summary of the other  documents or a link to the other documents
where they are accessible on line. It is recommended not to repeat identical information in
the  tender  specifications  or  descriptive  document,  the  draft  contract  and  the  invitation  to
tender.
It is recommended to prepare the procurement documents in the following order:
The  tender specifications  (see  Chapter  4.3.1) will be  prepared  first. The  draft contract  (see
Chapter 4.3.2)  will  then  be  prepared  by  filling  in  the  model  contract  with  the  appropriate
elements in view of the tender specifications. The invitation to tender (see Chapter 4.3.3) will
be prepared in the third  place as it contains the deadline for receipt which can be set  only
when the procedure is almost ready for launching. The contract notice or other publication if
applicable (see Chapter 4.3.4) will be prepared in the last place as it will essentially refer to
the content of the other procurement documents.
In  the  case  of  procedures  in  one  or  two  steps  with  publication  of  a  contract  notice,  the
procurement documents must be published on internet from the date of publication of the
contract notice (see Chapter 4.5.4).
Check here which BUDG templates can be generated from eProcurement.
4.3.1. Tender specifications
4.3.1.1. Title, purpose and context of the procurement
This must include the reference number of the procurement procedure.
Where appropriate, a description of each lot must be given.
This section provides operators with background information including through web links to
the  departments’  activities,  ongoing  Union's  programmes,  political  events,  etc.  It  helps
operators to understand the subject of the contract.
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4.3.1.2. Subject of the contract and technical specifications
The  technical  specifications  describe  what  the  contracting  authority  is  going  to  buy.  The
quality of the description determines not only the quality it will get, but also the price that it
will  pay.  Therefore,  it  is  essential  that  sufficient  time  is  spent  on  drafting  the  technical
specifications.
The technical specifications must be comprehensive, clear and precise. They define, lot by lot
where  appropriate,  the  characteristics  required  of  supplies,  services  or  works,  taking  into
account the purpose for which they are intended by the contracting authority.
General requirements concerning technical specifications:
The  technical  specifications  must  afford  equal  access  to  tenderers  and  must  not  have  the
effect of creating unjustified obstacles to competitive tendering.
They  define  the  characteristics  required  of  products,  services,  materials  or  works,
considering  the  purpose  for  which  they  are  intended  by  the  contracting  authority.  In
particular, save in exceptional cases which must be justified, they may not refer to a specific
make or source, or to a particular process, or to trade marks, patents or types, or to a specific
origin or production which would have the effect of favouring or eliminating certain products
or operators.
In  marginal  cases  where  it  is  not  possible  to  provide  sufficiently  detailed  and  intelligible
specifications,  the description  must be  followed  by  the  words  “or  equivalent”.  For instance,
the specifications may ask for a report "on MS Word or equivalent".
The  tasks  entrusted  to  contractors  may  not  involve  exercising  public  authority  power  or
budgetary  implementation  tasks  (Article  62(3)  FR).  For  instance,  the  task  may  include
administrative tasks such  as managing  the  reimbursement of  participants  in  a conference,
but the contractor may not decide the list of guests or the rules for reimbursement.
Opinions may be sought or accepted when drawing up technical specifications. However, the
contracting  authority  must  ensure  that  such  advice  will  not  be  biased  and  the  resulting
tender specifications will ensure equal treatment and as wide competition as possible.
There  is  no  ground  for  automatically  rejecting  an  operator who was  previously  involved  in
the preparation of the technical specifications from the resulting procurement procedure. The
economic operator shall only be rejected from the given procedure when there are no other
means to ensure compliance with the principle of equal treatment (see  Chapter 4.7.5.4 and
Chapter 1.6).
The duration of execution of tasks must be specified. It is recommended that this duration
includes both the execution of tasks and the approval of interim deliverables if any. Indeed,
the  time  taken  for  the  contracting  authority  to  approve  a  deliverable  should  not  be  at  the
detriment of the time given to the contractor to perform the contract. The period of approval
of the final deliverable can be outside that duration since, at that moment, the contractor has
finished  performance.  A  direct  contract  does  not  have  a  fixed  duration;  the  contract  ends
when both parties have fulfilled their obligations: the contractor has delivered according to
the  terms  of  the  contract  and  the  contracting  authority  has  made  the  final  payment;  in
addition,  some  conditions  linked  to  confidentiality  and  access  for  auditors  are  still  in  force
long after performance. Only framework contracts have an expiry date.
Any  conditions  for  approval  of  deliverables  should  be  specified  (quantitative,  qualitative,
provisional and/or definitive).
Technical specifications for services may include:
-  a  full  and  comprehensive  description  of  the  starting-point:  the  current  state  of  play,
information and knowledge already possessed by the contracting authority;
-  full  and  appropriate  information  in  cases  where  previous  contracts  have  been  delivered
concerning the same topic; providing tenderers with the fullest possible information is the
only way to avoid possible unequal treatment;
-  a full description of the tasks;
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-  a full description of the expected output;
-  if appropriate, requirements concerning the methodology;
-  requirements concerning the time schedule (imposed or to be proposed); If it is imposed,
the time schedule should be relative to start date (i.e. X months after start date) unless an
external  fixed  event  (e.g.  a  Presidency)  is  relevant  to  the  tender  specifications.  At  the
beginning of contract execution, any deadline for delivery should be clarified as fixed date
in order to facilitate management and prevent disputes.
-  technical and organisational information (e.g. place of delivery);
-  information  about  additional  requirements  (e.g.  in  the  case  of  training,  if  the contractor
has  to  provide  participants  with  materials  or  organise  transport  for  them  and  any
participant/client satisfaction survey to be conducted);
-  the resources required of the contractor and any other requirements;
-  the  necessary  phasing-in,  phasing-out  and  handover  requirements  in  case  of  recurrent
contracts  (contracts  which  are  put  into  competition  on  a  regular  basis)  for  purchases
needed on a continuous basis (e.g. IT contracts for exchange information systems).
Technical specifications for supplies may include:
-  a full description of the requirements imposed on the product (making sure that this is not
discriminatory);
-  the required functional characteristics;
-  conditions of delivery (packaging, transport, safety, assembly, etc.);
-  delivery schedule and destination(s);
-  arrangements for receipt of deliveries;
-  installation and user training, where appropriate;
-  requirements concerning after-sales services and technical assistance;
-  requirements concerning the warranty (there may be minimum requirements with which
tenderers must comply, but also extra warranty beyond this minimum may be offered and
be the subject of an award criterion).
Minimum requirements to be met by the tender
Minimum  requirements  are  the  requirements  to  be  met  by  the  tender  for  considering  it
compliant  with  the  technical  specifications.  These  minimum  requirements  must  be  clearly
specified. They may relate to part of or all the technical specifications. It is not obligatory to
“list” them as a separate item of the specifications, as they can be included in the text and
may  be  expressed  as  a  minimum,  a  range,  a  maximum  or  an  obligation  (“the  tenderer
must…”) depending on the context.
Minimum requirements may relate to e.g.:
-  the  time  schedule  for  the  execution  of  tasks  (e.g.  final  delivery  within  maximum  10
months);
-  the geographic coverage (e.g. at least 8 EU countries);
-  the language and format of the deliverable (e.g. must be delivered in English);
-  functional characteristics of the supplies;
-  the warranty.
The minimum requirements must always include compliance with applicable environmental,
social  and  labour  law  obligations  established  by  Union  law,  national  legislation,  collective
agreements  or  the  international  environmental,  social  and  labour  conventions  listed  in
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Annex  X  to  the  Directive,  as  well  as  compliance  with  data  protection  obligations  resulting
from Regulation (EU) 2016/67918.
By  submitting  a  tender,  the  tenderer  accepts  the  terms  and  conditions  set  out  in  the
procurement  documents  and  this  includes  the  requirement  of  compliance  with  law
obligations. It is not necessary to repeat it in a declaration on honour or to require specific
confirmation in the tender.
Regarding  the  evaluation,  compliance  with  law  obligations  is  not  subject  to  systematic  ex-
ante  verification.  It  is  only  in  case  of  doubts  that  it  should  be  verified  (e.g.  in  the  case  of
abnormally low tender – Point 23 Annex 1 FR).
4.3.1.3. Sustainability aspects
EU  institutions  should  lead  by  example  and  ensure  that  their  procurement  is  green19.
Wherever  possible  and  cost-effectiveenvironmental  and  social  aspects  should  be  taken  into
account in the whole procurement process, from the assessment of needs, to the definition of
selection criteria, technical specifications, award criteria, contract performance clauses and
then during the execution of the contract. The procurement process should include a timely
market consultation and engagement (e.g. the market should be informed in advance that a
procurement  process  will  come  up  with  certain  green  requirements,  so  that  interested
economic operators have the time to adapt their products to those requirements) in order to
increase  the  number  and  suitableness  of  tenders.  Where  applicable,  EU  green  public
procurement  criteria20,  should  be  used  for  the  definition  of  environmental  requirements.
Wherever  relevant  and  applicable,  products  and  services  that  have  been  awarded  the  EU
Ecolabel should be prioritised. Environmental and social aspectsmay include:
-    environmental  performance  characteristics  (e.g.  durability,  reparability,  reusability,
energy  and  resource  efficiency,  waste  reduction,  avoidance  of  hazardous  substances,
implementation of an environmental management scheme, recycling, short-circuits…);
-   climate performance characteristics (carbon-reduction target…);
-    aspects  related  to  social  and  professional  inclusion,  such  as  requirements  to  employ
disadvantaged people or people with disabilities in the performance of the contract;
-    equality  and  gender-related  considerations,  such  as  considerations  related  to  work-life
balance conditions, gender equality in the staff performing the contract and a user-based,
inclusive approach in the performance of the contract;
-    requirements  ensuring  the  compliance  with  labour  rules  and  collective  agreements
applicable to the staff performing the contract;
-    requirements  to  foster  transparency  on  the  environmental  and  social  impact  throughout
the  supply  chain;  requirements  to  prevent,  mitigate  and  address  environmental  and
human rights issues in the supply chain (notably through the application of due diligence
principles);
-   design for all types of users.
For  the  latter,  where  relevant  in  view  of  the  subject  matter  of  the  contract,  accessibility
criteria  for  people  with  disabilities  must  be  included.  The  only  exception  is  for  contracts
where the subject matter is irrelevant (i.e. not for users, such as printer cartridges or petrol).
This  obligation  includes  for  instance:  for  works,  accessibility  of  a  future  building;  for

18 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection  of  natural  persons  with  regard  to  the  processing  of  personal  data  and  on  the  free
movement  of  such  data,  and  repealing  Directive  95/46/EC  (General  Data  Protection  Regulation)
(Text with EEA relevance), OJ L 119, 4.5.2016, p. 1–88.
19  The  European  Green  Deal  Communication,  COM  (2019)  640  final  of  11.12.2019;  EUR-Lex  -
52019DC0640 - EN - EUR-Lex (europa.eu)
20 At the moment of writing, EU GPP criteria are available for 20 product groups - EU criteria - GPP -
Environment - European Commission (europa.eu)
88

supplies, telephones, printers which include accessibility features; for transport services, the
possibility  to  carry  wheelchairs;  for  IT  services,  adapted  software  (for  use  by  partially-
sighted or deaf people);, for information (website, documents, publications, multimedia…) the
possibility to be used by all users; for event organisation, the conference building should be
accessible and the information should be accessible to all (e.g. sign language translator).
Environmental  and  social  specifications  may  be  formulated  in  any  of  the  following  ways
(Point 17.3 Annex 1 FR):
(a)   in  order  of  preference,  by  reference  to  European  standards,  European  technical
assessments,  common  technical  specifications,  international  standards,  other  technical
reference systems established by European standardisation bodies or, failing this, their
national equivalents; every reference shall be accompanied by the words "or equivalent";
(b)   in  terms  of  performance  or  of  functional  requirements,  including  environmental
characteristics, provided that the parameters are sufficiently precise to allow tenderers
to determine the subject matter of the contract and to allow the contracting authority to
award the contract;
(c)   by a combination of those two formulation methods.
A specific label (, EU Ecolabel, labels for certified organic products, fair trade labels) or the
specific  requirements  from  a  label  may  also  be  used  in  selection  criteria,  technical
specifications  (with  the  exception  of  social  and  trade  labels),  award  criteria  and  contract
clauses under the following conditions (Point 17.6 Annex 1 FR):
(a)   the label requirements only concern criteria which are linked to the subject matter of the
contract;
(b)   the  label  requirements  are  based  on  objectively  verifiable  and  non-discriminatory
criteria;
(c)   the  labels  are  established  in  an  open  and  transparent  procedure  in  which  all  relevant
stakeholders may participate;
(d)   the labels are accessible to all interested parties;
(e)   the  label  requirements  are  set  by  a  third  party  over  which  the  economic  operator
applying for the label cannot exercise a decisive influence.
A tender cannot be rejected if the proposed solution satisfies the requirements defined in the
technical specifications in an equivalent manner.
In order to check whether companies can perform the environmental management measures
associated  with  a  contract,  contracting  authorities  may  ask  them  to  demonstrate  their
technical  capacity  to  do  so.  Environmental  management  systems  such  as  EMAS  or  ISO
14001  can  serve  as  a  (non-exclusive)  means  of  proof  for  that  technical  capacity.
Environmental  management  requirements  can  also  be  set  as  contract  performance  clauses
for the provision of works or services. In order to identify the MEAT, it is recommended to
consider the life cycle costing (LCC) of a certain work, product or service. Life-cycle costing
(LCC)  means  considering  all  the  costs  that  will  be  incurred  during  the  lifetime  of  the
product, work or service:
  Purchase price and all associated costs (delivery, installation, insurance, etc.
  Operating costs, including energy, fuel and water use, spares, and maintenance
  End-of-life costs (such as decommissioning or disposal) or residual value (i.e. revenue
from sale of product)
When addressing the sustainability aspects of a procurement, it is worth considering the use
of award criteria based on quality considerations which prioritize offers delivering the best
environmental and social performance. To ensure that such considerations make a difference
in the evaluation of the offer, they should be given appropriate weight, especially in relation
to the weight given to price criteria.
89

For more information and practical tips, DG Environment provides a website on Green Public Procurement
which includes the green public procurement criteria,training toolkit and tools for LCC calculation.
4.3.1.4. Site visit
If it is necessary to invite the tenderers for a site visit, it should be announced in the contract
notice for the sake of transparency (for instance security contracts that require knowing the
disposition  of  a  building  to  draft  the  tender).  This  can  in  no  way  replace  the  obligation  to
draft  the  technical  specifications  in  detail.  Transparency  also  requires  that  a  record  be
produced of the organised site visit and sent to all candidates. Due to the organisation and
timing requirements a restricted procedure should be used.
Attention  must  be  drawn  to  the  risk  of  concerted  practices,  collusion  or  distortion  of
competition, so it is recommended to organise several visits to avoid all competitors meeting
each other.
4.3.1.5. Variants
If  the  contract  is  awarded  to  the  tender  offering  the  best  price-quality  ratio,  the  contract
notice must indicate whether or not variants are accepted. If there is no indication, variants
will not be authorised.
“Variant”  means  a  solution  technically  or  economically  equivalent  to  a  model  solution
described  by  the  contracting  authority.  Variants  may  relate  to  the  whole  contract  or  to
certain  parts  or  aspects  of  it.  Variants  must  be  submitted  separately  and  identified  as
variants.
If  variants  are  accepted,  the  minimum  requirements  which  they  must  fulfil  must  be
indicated  in  a  separate  section  of  the  technical  specifications.  The  assessment  framework
that will be used to compare the model solution with the variant must also be specified.
For detailed information see the note on variants.
4.3.1.6. Access to the market
Participation  in  procurement  procedures  is  open  on  equal  terms  to  all  natural  and  legal
persons falling within the scope of the Treaties. This includes all legal entities registered in
the EU and all natural persons having their domicile in the EU. Participation is also open to
all natural and legal persons registered or having their domicile in a non-EU country which
has  an  agreement  with  the  European  Union  in  the  field  of  public  procurement  on  the
conditions laid down in that agreement (Article 176 FR).
When an agreement (such as the GPA) does not apply to a call for tenders either because the
procurement  is  conducted  by  an  EU  Agency  or  when  the  subject  matter/value  of  the
procurement is not covered by the agreement, it should be clearly stated in the procurement
documents (contract notice when applicable & tender specifications).
Contracting authorities can choose either not to limit subcontracting based on the rules on
access to procurement or limit subcontracting and require economic operators to choose their
subcontractors only from countries that have access to the market. However, this limitation
should be used with caution since it may have a negative impact on the procedure and reduce
the number of offers received, since tenderers would be obliged to choose their subcontractors
only from a country with access to procurement. Therefore, authorising officers should assess
on a case by case basis whether such limitation is justified considering the subject matter of
the  contract.  For  example,  this  would  be  justified  for  sensitive  services  or  goods  (i.e.  IT
services, security related services) where the EU security must be safeguarded.
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However, subcontracting may not be used with the intent or effect to circumvent the rules on
access to procurement. This is in line with case T-474/1021, where the Commission established
rules according to which subcontractors from third states can participate “provided that the
rules  of  the  Agreement  on  Government  Procurement  were  not  de  facto  circumvented”,  the
Court ruled that it was sufficiently clear and transparent.

For  information  on  supporting  documents  concerning  access  to  the  market  (see  Chapter
4.3.1.17).
For further information please consult the note on the access of candidates and tenderers from third countries

4.3.1.7. Joint tenders and subcontracting
The  principle  is  that  economic  operators  on  the  market  are  free  to  organise  themselves  as
they so wish.  As a rule, groups of economic operators are authorised to submit a tender or
request to participate  to a joint tender and subcontracting is allowed22. A joint tender may
also  involve  subcontracting.  The  number  of  entities  in  a  joint  tender  or  the  number  of
subcontractors or the share of subcontracting may not be limited.
However,  in  order  to  prevent  distortions  of  competition  (i.e.  collusions)  the  contracting
authority  may  limit  the  participation  of  economic  operators  in  procurement  procedures  by
defining specific rules in the tender specifications.
Although  subcontracting  cannot  be  refused,  it  is  possible  to  require  tenderers  to  provide
information  about  intended  subcontractors  and  set  rules  on  subcontracting  in  the  tender
specifications (ie. restriction of cross-subcontracting in a procurement procedure). Awarding
the  contract  to  a  tenderer  who  included  named  subcontractors  in  its  tender  amounts  to
agreeing  to  the  listed  subcontractors.  No  separate  agreement  is  necessary  or  disagreement
possible.
The  contracting  authority  must  ensure  that  tenders  are  drawn  and  submitted  in  complete
independence  and  autonomously  from  the  other  tenders23.  For  this  reason,  the  contracting
authority can impose the following conditions:
-
the  same  economic  operator  cannot  participate  within  the  same  procedure  as  a
single tenderer and be involved in one or more groups of economic operators at the
same  time.  In  other  words,  one  economic  operator  may  submit  a  tender  in  one
configuration,  either  as  a  sole  tenderer,  or  as  a  member  of  a  group  of  economic
operators  in  a  joint  tender.  If  an  economic  operator  does  not  comply  with  this
prohibition  and  submits  several  tenders  in  different  configurations  (i.e.  as  a  sole
tenderer as well as a member of the group in a joint tender) all tenders in which he
participated will be rejected.
-
in order to ensure the principle of autonomy of tenders, cross subcontracting among
tenderers  may  be  forbidden  in  the  tender  specifications.  More  precisely  an  entity
“A” may participate as tenderer (either as sole tenderer or as member of a group of
economic operators) and as subcontractor to another tenderer “B” within the same
procurement procedure. However, in this case it is forbidden that tenderer “B” (or
any of its participating members in case of a group of economic operators) is at the
same time subcontractor for tenderer “A” (or for the group of economic operators in
which  “A”  participates)  within  the  same  procurement  procedure.  In  this  scenario,
cross  subcontracting  being  prohibited,  both  tenders  A  and  B  shall  be  rejected
according to the provisions of the tender specifications.

21  See  Judgment  of  the  General  Court  of  15  October  2013,  Evropaïki  Dynamiki  v  Commission,
T-474/10.
22 See  in  particular  the  Judgments  of  the  Court  of  Justice  of  18  March  2004,  Siemens  and  ARGE
Telekom, C-314/01 and of 2 December 1999, Holst Italia, C-176/98.
23 See Judgment of the Court of Justice of 17 May 2018, Specializuotas transportas, C-531/16.
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link to page 93 link to page 93 Rejection of tenders based on the aforementioned specifications should be done with caution.
Such  a  decision  should  be  motivated,  following  a  proper  assessment  to  ensure  that
the contracting  authority  rejects  only  tenders  that,  without  a  doubt,  do  not  comply  with
the tender  specifications  (ex.  when  the  same  economic  operator  participates  within  the
same  procedure  as  a  single  tenderer  and  is  involved  in  one  or  more  groups  of  economic
operators at the same time). In case of doubt, if the relationship between the tenderers is not
clear to the contracting authority, then the contracting authority should send a request for
clarifications to the tenderers before rejecting them.24
In  addition,  the  contracting  authority  should  refrain  from  automatically  rejecting
tenders  submitted  by  economic  operators  linked  by  a  relationship  of  control  or  of
association  (e.g.  belonging  to  the  same  economic/corporate  group,  a.k.a  sister
companies  or  parent  and  subsidiaries).  Tenderers  in  such  a  situation  are  allowed  to
submit  different  and  separate  tenders  provided  that  each  tenderer  is  able  to
demonstrate  that  its  tender  was  drawn independently and autonomously.25
Exclusion criteria (see Chapter 4.3.1.9) apply to each entity in a joint tender.
The contracting authority is entitled to demand that exclusion criteria be applied also to any
subcontractors  proposed  (whether  during  the  procedure  or  during  performance  of
the contract). In some cases, the number of subcontractors may be high  for a non-essential
part  of  the  contract  (e.g.  a  study  with  translations,  with  translation  subcontracted  to
freelancers) so it is possible to apply the exclusion criteria only for subcontractors that are
meant  to  earn  a  significant  proportion  of  the  budget  (e.g.  5%,  10%...  depending  on  the
case) so as to avoid having to check a very large number of subcontractors.
As for selection criteria (see Chapter 4.3.1.10), they are generally applied on the candidate or
tenderer  as  a  whole  (one  legal  entity,  several  entities  submitting  a  joint  request
to  participate  or  tender,  or  one  or  several  entities  and  subcontractors)  and  they  may
apply individually  only  where  it  is  relevant  in  view  of  their  nature.  For  technical  and
financial capacity,  it  must  be  assumed  that  the  very  purpose  of  subcontracting  and  joint
requests  to participate or tenders is to come up to the  required minimum capacity  level. A
candidate  or  tenderer  cannot  therefore  be  rejected  for  the  sole  reason  that  a  single
subcontractor  alone  is  not  up  to  the  level  set.  The  combined  capacity  of  the  entities
participating in the contract has to be considered.
For  submission  of  a  tender  or  a  request  to  participate,  contracting  authorities  may
not  require  groups  of  economic  operators  to  take  any  specific  legal  form,  but  the
selected grouping may be required to adopt a given legal form once it has been awarded the
contract if this change is necessary for proper performance of the contract.
The  tender  specifications  have  to  explain  clearly  that  if the  economic  operator  is  relying
on  other  entities  (e.g.  subcontractors,  parent  company,  other  company  in  the  same
group,  or  third  party)  in  order  to  achieve  the  required  level  of  economic,  financial,
technical  and professional  capacity, it  must  prove  in  its  tender  or  request  to  participate
that  it  will  have  their  resources  at  its  disposal.  This  obligation  may  be  fulfilled  by
presenting statements from those entities or the grouping agreement.
If  a  third  party  provides  the  whole  or  a  large  part  of  the  financial  capacity,  the
contracting  authority  may  demand  that  that  entity  signs  the  contract,  or  alternatively,
the  third  party  may  commit  itself  to  be  jointly  and  severally  with  the  contractor  by
providing  a  letter  or intent to that effect. When such entity is signatory to the contract, it
will be jointly liable for the  performance  of  the  contract.  Such  entity  will  not  be  required
to  perform  the  contract itself. More precisely, any financial liability of the contractor
24 See Judgment of the General Court of 14 February 2006, TEA-CEGOS and Others v Commission, T-
376/05.
25 See Judgment of the Court of Justice of 17 May 2018, Specializuotas transportas, C-531/16.
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link to page 105 arising  in  connection  with  the  performance  of  the  contract  can  be  enforced  by  the
contracting authority against such entity in the same terms as against the contractor.
For detailed information see the circular on subcontracting and joint tenders.
4.3.1.8. Criteria
The  criteria  for  choosing  the contractor  are  divided  in  three  categories:  exclusion, selection
and award. Exclusion and selection criteria are related to the candidate or tenderer, whereas
award  criteria  are  related  to  the  tender.  Exclusion  and  selection  criteria  are  verified  on  a
pass/fail  basis.  Award  criteria  are  meant  to  rank  the  tenders  according  to  their  merits
(MEAT)  after  verifying  that  the  tender  complies  with  the  minimum  requirements  of  the
procurement  documents.  These  criteria  are  applicable  in  all  procurement  procedures  and
must  be  announced.  No  modification  of  criteria  is  allowed  during  the  procedure.  In  a
procedure  in  two  steps,  the  exclusion  and  selection  criteria  will  be  used  to  select  the
candidates who will be invited to tender.
The criteria may be applied in no particular order (e.g. starting with the award criteria in a
procedure  in  one  step);  if  the  tenderer  or  tender  does  not  pass  a  category,  it  will  not  be
evaluated under the other categories. The tender specifications must indicate the method for
applying  the  criteria  (in  no  particular  order  or  in  a  pre-defined  order  for  each  of  the  three
categories).
4.3.1.9. Exclusion criteria
The sole purpose of the exclusion criteria is to determine whether an operator is allowed to
participate in the procurement procedure or to be awarded the contract.
The  exclusion  criteria  must  be  included  in  the  tender  specifications  through  a  reference  to
the  declaration  on  honour  (which  contains  the  list),  except  in  procedures  in  two  steps
following  the  publication  of  a  notice  of  call  for  expressions  of  interest,  in  which  cases  they
appear only in the call for expressions of interest and will already have been checked before
the invitations to tender are sent out. For procedures involving the publication of a contract
notice,  the  notice  will  refer  to  the  tender  specifications  published  as  from  the  date  of
publication of the contract notice.
The  only  criteria  which  should  be  applied  are  set  out  in  Articles 136  and  141 FR,  with
nothing added, deleted or altered.
For more information on cases where entities are excluded on the grounds of articles 136 (1) or 136 (2) of the
FR see the Guidelines on procurement procedures and contract management with excluded entities.
For information on supporting documents concerning exclusion criteria, see Chapter 4.3.1.18.
4.3.1.10. Selection criteria
The sole purpose of the selection criteria is to determine whether a tenderer has the capacity
necessary to implement the contract. This includes the legal and regulatory capacity where
applicable, the economic and financial capacity and the technical and professional capacity.
All  selection  criteria  must  be  clear,  nondiscriminatory-,  appropriate  and  proportionate  in
view of the subject, value and possibly other aspects of the contract.
The selection criteria must be included in the tender specifications, except in procedures in
two  steps  following  the  publication  of  a  notice  of  call  for  expressions  of  interest,  in  which
cases  they  appear  only  in  the  call  for  expressions  of  interest  and  will  already  have  been
checked  before  the  invitations  to  tender  are  sent  out.  For  procedures  involving  the
publication of a contract notice, the notice will refer to the tender specifications published as
from the date of publication of the contract notice.
The  contracting  authority  should  opt  for  selection  criteria  which  enable  it  to  determine
whether  a  tenderer  has  the  capacity  required  for  the  contract  in  question,  rather  than  in
general.  It  should  also  make  sure  that  it  imposes  criteria  that  can  be  easily  verified.  The
93

right balance must be struck between the need for targeted selection criteria and the need to
attract enough tenders to ensure genuine competition.
Minimum capacity level
A selection criterion must consist in three elements: (i) the criterion, (ii) the minimum level
or  minimum  requirement  and  (iii)  the  relevant  supporting  documents  (Point  18.2  Annex  1
FR). It is not sufficient to require "sufficient financial capacity" without any precise criteria,
or  to  require  experience  with  no  minimum  number  of  years  of  experience  or  without
specifying its precise field. Selection criteria are not scored and do not necessitate marking;
they are just “pass or fail”.
The minimum capacity level set for each of the criteria defines the capacity below which the
candidate  or  tenderer  will  not  be  selected  because  it  is  considered  as  not  capable  of
implementing  the  future  contract.  Therefore,  below  these  levels,  the  candidate  will  not  be
invited to submit a tender (procedures in two steps) or the tender will be rejected (procedure
in one step).
Where  a  contract  is  divided  into  lots,  it  is  possible  to  set  additional  minimum  levels  of
capacity in the case several lots are awarded to the same contractor. The case of a candidate
or tenderer not fulfilling the capacity requirements for all the lots for which it requests to
participate  or  submits  a  tender  should  be  provided  for  in  the  tender  specifications.  The
candidate  or  tenderer  should  be  requested  to  indicate  its  order  of  priority  for  the  different
lots.  In  case  it  fails  to  give  such  order,  a  pre-defined  order  applicable  in  the  absence  of
indication of priority should be set in the tender specifications.
The  information  requested  and  the  minimum  capacity  levels  demanded  should  respect  the
legitimate  interests  of  economic  operators,  especially  as  regards  protection  of  companies’
technical and business secrets.
Individual vs. consolidated assessment
Selection criteria can be applied:
- to the tenderer as a whole (including all members of a joint tender, subcontractors and
third parties on which the tenderer relies to fulfil some selection criteria);
- to each economic operator involved in a request to participate or tender separately;
-  to  at  least  one  economic  operator  involved  in  a  request  to  participate  or  tender;  this
includes application of a selection criterion to the entity or entities performing a specific
task or part of the contract.
In any case, selection criteria must be proportionate to the subject matter of the contract and
not create discrimination among tenderers. The tender specifications must be very precise in
this respect.
Selection criteria are generally applied to the candidate or tenderer as a whole and they may
apply individually only where it is relevant in view of their nature.
If  selection  criteria  are  applied  individually  to  subcontractors,  it  is  recommended  to  do  so
only for subcontractors representing a significant part (e.g. 5%, 10%, etc.) of the value of the
contract.  Otherwise,  the  criterion  may  be  discriminatory  and  verification  of  each
subcontractor may lead to a disproportionate workload.
Legal and regulatory capacity
Where relevant in view of the subject matter of the contract, the contracting authority may
require economic operators to be enrolled in a relevant trade or professional register or, for
service contracts, to hold a particular authorisation proving that it is authorised to perform
the  contract  in  its  country  of  establishment  or  to  be  a  member  of  a  specific  professional
organisation.
In addition, following the adoption of EURM it is worth clarifying that the tenderer and the
involved  entities  must  not  be  subject  to  EURM    adopted  under  Article  29  of  the  TEU  or
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Article  215  of  the  TFEU26  that  constitute  a  legal  impediment  to  perform  the  contract  (ie.
prohibition to provide direct and indirect support, including financing, or assets freeze e.t.c.).
This prohibition may constitute new selection criteria as per the model tender specifications
that  applies  whether  or  not  the  contracting  authority  requires  evidence  for  the  legal  and
regulatory capacity. This requirement will be assessed by reference to the EURMin force.

For more information please BUDGpedia page on EURM.
Technical and professional capacity
It is frequent to request past projects carried out by the tenderer (e.g. 2 projects on a specific
subject  matter  of  at  least  X  thousand  euros  covering  X  countries).  Therefore,  current
contractors may ask the contracting authority for such project reference to use in future calls
for tenders. A model for project reference letter is available on BUDGpedia.
The rules provide for a long list of possible evidence of technical and professional capacity. In
particular, the contracting authority may require the tenderer to explain the environmental
measures  that  it  will  be  able  to  apply  during  contract  performance  and  to  request  a
certificate  drawn  up  by  an  independent  body  attesting  the  compliance  with  certain
environmental management systems or standards. In these cases, the contracting authority
must refer to the EU Eco-Management and Audit Scheme (EMAS) provided for in Regulation
(EC)  No  1221/2009  or  other  standards  based  on  European  or  international  standards.  It
must  also  accept  other  evidence  of  equivalent  environmental  management  measures  from
economic operators.
The  contracting  authority  should  announce  in  the  tender  specifications  that  any  tenderer
with  a  professional  conflicting  interest  which  prevents  it  from  performing  the  contract
adequately may be rejected (see Chapter 1.6).
The contracting authority may announce in the tender specifications that it may require that
certain  critical  tasks  be  performed  directly  by  the  tenderer  itself  or,  where  a  tender  is
submitted  by  a  consortium  of  economic  operators,  a  participant  in  the  consortium.  This
provision is to be used with caution, as it could be interpreted as a restriction to the market.
It assumes that all tasks are very well defined and that one or two of them are critical for the
contracting  authority.  In  this  case,  there  will  be  a  direct  contractual  link  between  the
contracting  authority  and  the  entity  performing  these  tasks.  This  provision  is  not  to  be
understood as the possibility to cap subcontracting.
The  selection  criteria remain  applicable  throughout  the whole performance  of the  contract,
i.e.  the  contractor  must  comply  with  these  criteria  at  all  times.  This  is  used  in  particular
when replacing staff in charge of delivering services. If one expert leaves the project, he/she
will  have  to  be  replaced  with  another  expert  complying  with  the  selection  criteria.  A
contrario, if selection criteria are not precise enough, change of members of the delivery team
can cause problems since the minimum profile is not guaranteed.
Economic and financial capacity
The  yearly  turnover  is  the  most  commonly  used  criterion.  The  minimum  value  may  not
exceed two times the annual value of the contract, except in duly justified cases linked to the
nature of the purchase, which must be explained in the procurement documents.
If the economic and financial selection criteria are fulfilled  for a large part  by relying on a
third party, the contracting authority may demand, if that tender wins the contract, that this
third  party  signs  the  contract  or,  alternatively,  commits  itself  to  be  jointly  and  severally
liable with the contractor for the performance of the contract by providing a letter of intent to
that  effect.  Imposing  liability  of  the  third  party  who  provides  the  financial  capacity  allows
better  protection  of  the  Union's  financial  interests.  It  should  be  announced  in  the  tender

26  Please  note  that  the  EU  Official  Journal  contains  the  official  list  and,  in  case  of  conflict,  its
contentprevails over that of the EU Sanctions Map.
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specifications. In any case, the third party should not be in an exclusion situation  , so this
should also be indicated clearly.
In this case, the entity on whose capacity the tenderer relies would not become a contractor
in the same way as the tenderer, and would not be committing itself to directly perform the
contract  (ie.  deliver the  goods  or  perform  the works)  but  would  be  committing itself  to pay
any financial liabilities arising from a lack of performance or incorrect performance.

Using  financial  ratios  can  be  done  only  if  one  expects  the  potential  tenderers  to  be
homogeneous  enough  to  ensure  comparability  of  their  financial  statements  (and  derived
ratios).  It  also  implies  to  have  enough  internal  expertise  when  analysing  the  market,
defining ratios and setting up relevant  minimum thresholds. Ratios and related thresholds
must in any case be clearly defined in the tender specifications, for the sake of transparency.
In particular, they must specify whether ratios will be applied on each member of the group
in  case  of  joint  tender,  or  to  at  least  one  of  them,  to  subcontractors  or  to  third  parties
providing capacity and under which conditions. When the financial capacity is verified using
financial ratios, the following conditions should be fulfilled:
-  make  sure  that  the  necessary  expertise  in-house  is  available  when  drafting  the  related
part of the tender specifications and then when checking the criteria;
-  evaluate if the set of ratios fits the expected type of tenderers (sector / size …);
-  respect the general principles of non-discrimination and proportionality;
-  use as simple, understandable and meaningful ratios and thresholds as possible;
-  be ready to justify potential rejection decisions and or to deal with potential challenges /
disputes.
Given  that  a  company’s  economic  and  financial  situation  can  change  rapidly,  it  could  be
useful, as part of managing the list of pre-selected candidates produced following a call for
expressions  of  interest,  to  require  the  selected  candidates  to  send  in  updated  supporting
documents for the economic and financial capacity every year in order to check again their
economic and financial situation.
For information on supporting documents concerning selection criteria, see Chapter 4.3.1.19.
4.3.1.11. Award criteria
The  award  criteria  are  not  related  to  the  tenderer  but  to  the  tender.  The  purpose  of  the
award  criteria  is  to  evaluate  the  technical  and  financial  offer  with  a  view  to  choosing  the
most economically advantageous tender (Point 21 Annex 1 FR).
As  a  rule  the  contracting  authority  must  announce  the  relative  importance  of  each  of  the
quality award criteria and of the price (if a weighting between quality and price is applied –
see Chapter 4.3.1.12). If exceptionally the weighting is not possible for objective reasons, the
criteria must be indicated in decreasing importance. If this exception is used, it must be duly
justified and documented in a note to the procurement file.
Quality award criteria must be clear, complete and related to the technical specifications and
expected  content  of  the  tender.  They  may  be  divided  into  sub-criteria.  Criteria  and  sub-
criteria should include the maximum number of points (maximum score) to be awarded for
each of them. It is also recommended to include the minimum number of points (minimum
level)  below  which  the  criterion  (or  sub-criterion)  is  considered  as  failed.  They  must  be
sufficiently  detailed  and  fully  described  with  complete  sentences:  the  link  with  a  specific
aspect of the technical specifications, the expected input from the tender to pass the award
criteria. The number of criteria depends on the level of complexity of the subject matter, and
there should be as many as necessary (usually at least 5 of them) because the evaluation is
easier when criteria are very precise and targeted. For instance, a criterion such as "quality
of the methodology" or "organisation of the work" is vague by itself and requires more precise
textual explanation of the specific elements to be addressed in the tender.
Depending  on  the  subject  of  the  purchase,  quality  criteria  may  include  time  for  delivery,
reaction  time,  method  of  communication,  after  sale  service,  packaging,  etc.  In  general  all
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elements  requested  from  tenderers  in  their  tenders  should  be  evaluated  and  weighted
according  to  the  needs  of  the  contracting  authority.  The  criteria  should  encourage
elaborating further  on the  issue  and/or  proposing  more  or  better  solutions;  in other  words,
the criteria should be about the value-added brought by the tender.
In the case of award based on the best quality-price ratio method, the rules provide examples
of the type of technical criteria which may be taken into account, but it is for the contracting
authority to opt for those best suited to the tender in question.
The  technical  award  criteria  generally  used  for  service  contracts  /  studies  may  cover,  for
example, the following areas:
-  quality  and  relevance  of  the  methodology  set  out  in  the  tender  (subdivided  according  to
particular elements or tasks of the project);
-  management and coordination of the future contract;
-  organisation of the work for delivery of the service (i.e. organisation of responsibility for
the tasks, contacts with the Commission, etc.);
-  balance of profiles and breakdown of tasks (i.e. which profile is going to do which task, and
how  much  time  each  profile  will  spend  on  each  task),  but  only  for  the  purposes  of
providing  the  service  requested.  It  is  no  longer  possible  to  evaluate  qualifications  and
experience of the team at this stage, but the way in which the tenderer plans to use the
human resources to provide the service is part of the tender (see Chapter 4.3.1.13);
-  efficiency, quality and usefulness of the proposed products or solutions (where the subject
of the contract is such that it is for the tenderers to provide the details);
-  match between the work programme and the intended completion schedule;
-  efficiency  and  effectiveness  of  data  collection-  methods  (where  the  contract  involves
activities of this type).
The  technical  award  criteria  for  supply  contracts  may  cover,  for  example,  the  following
areas:
-  efficiency (e.g. speed of printer);
-  functional characteristics;
-  duration of warranty;
-  after-sale service and technical assistance;
-  delivery time;
-  environmental performance (e.g. possibility of recycling the machine or materials);
-  comfort of work (e.g. noise);
-  aesthetics.
Award criteria that should not be used:
-  “quality  of  the  presentation”:  this  refers  to  the  tender  itself,  whereas  criteria  should  be
about the actual subject matter of the purchase and future performance of the contract;
-  “understanding  of  the  tender  specifications”:  if  a  tender  shows  no  understanding  or  a
misunderstanding  of  the  tender  specifications,  it  can  be  eliminated  for  non-compliance
with  the  tender  specifications  or  for  insufficient  quality  when  evaluating  other  quality
criteria  (e.g.  methodology).  Indeed,  a  stand-alone  criterion  on  “understanding”  is  easy
points to get for all tenderers just by copying or rewording the tender specifications, and
this will not be helpful for evaluators to make the difference between the various tenders
received. So understanding is in fact evaluated via other more precise criteria;
-  criteria on items which are fixed in the tender specifications (e.g. a criterion on schedule
when all the deadlines for delivery are already fixed: if there is no room for improvement
for the tenderer, there should be no corresponding criterion).
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These technical criteria must be announced in advance. Please note that it is not appropriate
to  copy-paste  any  or  all  of  the  above  examples.  Award  criteria  must  correspond  to  the
technical  specifications.  The  award  criteria  send  a  strong  message  to  the  tenderers  about
which  aspects  are  the  most  important  and  how  their  tenders  will  be  judged.  Generic,
imprecise award criteria are unhelpful or can even be a hindrance.
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4.3.1.12. Award methods
The  award  of  contracts  is  based  on  the  most  economically  advantageous  tender,  which
consists in one of three award methods: lowest price, lowest cost or best price-quality ratio
(Article 167(4) FR). The method chosen must be announced in the procurement documents. It
is not possible to mix the methods.
Lowest  price:  the  contract  is  awarded  to  the  lowest  tender  that  satisfies  the  minimum
requirements set in the technical specifications.
This method may be used for all types of contracts but in practice is used only for supplies or
services whose technical  content  is  defined  in  full  in  the specifications,  thus  ruling  out  the
need to evaluate the quality of the tender but requiring only a check of the conformity of the
technical tender.
If the lowest price method is used, no award criterion other than price can be defined.
Lowest  cost:  the  contract  is  awarded  based  on  a  cost-effectiveness  approach  including  life-
cycle costing. Life-cycle costing covers costs over the life cycle (acquisition, use, maintenance
and end of life costs) as well as costs attributed to environmental externalities.
The tender specifications must include the data to be provided by tenderers and the method
that will be used to determine the life-cycle costs on the basis of those data.
The method used for the assessment of costs attributed to environmental externalities must
be based on objectively verifiable and non-discriminatory criteria. It must be described in the
tender  specifications  and  economic  operators  should  be  able  to  provide  the  required  data
with reasonable effort.
Mandatory common methods for the calculation of life-cycle costs are provided for in Annex
XIII of the Directive. Each time a new method is approved at EU level for a particular supply
or service, the list of Annex XIII will be updated. Currently, the sole method available refers
to the Clean Vehicle Directive.
If the lowest cost method is used, no award criterion other than cost can be defined.
Best  price-quality  ratio:  the  contract  is  awarded  taking  into  account  the  price  or  cost  and
other quality criteria.
Best price-quality ratio method
This is the method most frequently used by the EU institutions.
This method entails defining detailed award criteria to determine quality.
The  tender  specifications  (or  the  descriptive  document  for  a  competitive  dialogue)  must
indicate the maximum score that will be applied to each of the quality criteria and possibly
sub-criteria.
The  tender  specifications  (or  the  descriptive  document  for  a  competitive  dialogue)  must
indicate  the  ranking  formula  to  calculate  the  final  score  taking  into  account  quality  and
price. The formula may set a weighting between quality and price.
The formula chosen to calculate the final score must reflect the concept of best price-quality
ratio:  the  method  used  must  not  only  make  it  possible  to  choose  a  quality  tender  but  also
place an obligation on tenderers to compete on price. Accordingly, it is possible to:
-  set  a  minimum  score  (e.g.  50  %  or  65  %  of  the  maximum  possible  mark)  for  the  whole
quality evaluation, as well as for each of the quality criteria and sub-criteria. Tenderers
falling below those levels will be eliminated, so their final score is not calculated;
-   set  a  weighting  to  respectively  quality  and  price.  For  instance,  a  60/40  weighting  of
quality / price can be set to give a higher importance to quality.
The weighting applied by the contracting authority to each of the criteria set for determining
the tender offering the best price-quality ratio must be maintained throughout all stages of
the  evaluation.  A  precise  definition  of  the  method  used  must  be  given  in  the  tender
specifications.
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In  exceptional  cases  in  which  weighting  is  not  technically  possible,  mainly  because  of  the
subject of the contract, it is sufficient to indicate the various criteria in descending order of
importance. This wording – technical impossibility of establishing a weighting – conveys that
this situation is extremely rare and not normally justified for public contracts concluded by
the institutions.
In case of procedures with a single tenderer, the award criteria must be defined and applied
to evaluate whether:
-   the quality of the technical offer is acceptable (based on the weighted quality criteria and
minimum scores announced in the tender specifications);
-  the price is reasonable in view of the level of quality.
Weighting
If  a  weighting  is  applied  to  price  in  relation  to  the  other  criteria  it  must  not  result  in
neutralisation of price in the choice of contractor. For example, a weighting of less than 30%
for price is normally too low to have a significant impact on the result. In addition, it is also
not recommended to have at the same time high minimum levels for quality (e.g. 70% of the
maximum score) and a high weighting on quality vs. price in the ranking formula (e.g. 65%
for quality, 35% for price), as this may neutralise price.
Formula
Unlike technical quality, which is usually evaluated by means of a mark, the price quoted by
a tenderer is an objective element and cannot be marked.
The formula used to rank tenders and to calculate which tender offers the best price-quality
ratio should incorporate the quality mark and the price, expressed in the form of indices. The
method used must be indicated in the procurement documents and must remain unchanged
during the whole procedure.
N.B.:  The  use  of  formula  only  makes  sense  when  several  tenders  have  passed  the  quality
thresholds, so that they can be ranked. A single tender cannot be ranked so the formula is
not applied.
There is no unique way to define the best price-quality ratio but two formulae are commonly
used:
a) the most simple method (no weighting between price and quality):
cheapest price
Score for tender X  =
*
total quality score (out of 100) for all criteria of tender X
price of tender X

b) the method applying a weighting for quality and price expressed in percentage (e.g.
60%/40%):
cheapest price
price weighting
total quality score (out of 100)
quality criteria
score for tender X  =
*  100  *
price of tender X
(in %)
+  for all award criteria of tender X  *  weighting (in %)
The weighting factor determines how much extra money the contracting authority is ready to
spend  in  order  to  award  the  contract  to  an  economic  operator  whose  tender  is  of  a  higher
technical value.
Both  formulae  give  a  mark  out  of  100.  All  tenders  passing  minimum  quality  levels  are
ranked. The tender with the highest mark wins.

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The example given below shows the difference in calculation of results and ranking between
the 2 methods for the case of 3 valid tenders (A – B – C) with the following prices and having
received the following scores (out of 100) for quality:
Tender
Price
Quality
No weighting -
Weighting: 40% for price and 60%
formula (a)
for quality - formula (b)
A
100
62
100/100*62 = 62 points
100/100*40  +  62*0,6  =  77,20
First
points
Second
B
140
84
100/140*84 = 60 points
100/140*40  +  84*0,6  =  78,97
Second
points
First
C
180
90
100/180*90 = 50 points
100/180*40  +  90*0,6  =  76,22
Third
points
Third
Evaluating prices for framework contracts
If the price is quoted in the form of a list of unit prices (as is usually the case for FWCs, the
contracting  authority  must  indicate  in  advance  which  method  will  be  used  to  ensure
comparability.
Usually  this  is  done  by  indicating  a  realistic  purchase  scenario  for  using  the  FWC.
Quantities  of  resources  corresponding  to  the  unit  prices  will  be  specified  in  the  scenario,
without this  implying any  commitment  on  the  part  of  the  contracting  authority  as regards
the actual volume of work. For instance, if the specifications require a tender expressed  in
terms of fees per day worked for each category of staff involved, the tender specifications will
give a scenario specifying how many working days, by category, will be used for purposes of
comparison. For example, if unit prices are required for each of (a) delivery of training, (b)
preparation  of  training  and  (c)  supply  of  training  materials,  the  evaluation  scenario  could
indicate  that the  comparison will  be  based  on,  say,  100  days  of  (a),  10  days  of  (b)  and  200
units of (c).
In some cases, the tender requested may include specifications for one or more case studies.
In such cases, tenderers will be required to submit a technical and financial offer for the case
study  or  studies.  When  case  studies  are  used,  they  should  cover  all  the  price  items  in  the
price list for the framework contract and tenderers must apply the maximum unit prices of
the price list to the case studies.
If  the  tender  specifications  do  not  provide  precise  information  about  the  method  for
comparing  the  price,  tenderers  will  be  unable  to  submit  a  competitive  tender  in  full
knowledge  of  all  the  parameters  used  to  determine  the  most  economically  advantageous
tender.  Experience  suggests  that,  when  this  information  is  not  available,  tenders  are  not
comparable and it is not possible to award the contract.

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4.3.1.13. Distinction between selection and award criteria
One of the main difficulties encountered by the services when drafting tender specifications
consists in finding adequate selection criteria for the evaluation of the capacity of tenderers
and  quality  award  criteria  for  the  evaluation  of  tenders.  The  distinction  must  be  made  at
each stage of the procedure: when preparing the tender specifications and when tenders are
evaluated.  Each  type  of  criteria  serves  its  own  specific  purpose  in  the  evaluation  process.
Therefore  the  criteria  must  be  drafted  so  that  the  contract  goes  to  the  most  economically
advantageous tender (as defined by the chosen award method), and not to the tenderer who
appears to be best by reason of factors connected with its capacity to potentially perform the
contract.
Confusing  selection  and  award  criteria  constitutes  a  procedural  defect  which  is  likely  to
result  in  the  procedure  being  annulled  in  the  event  of  a  dispute.  As  a  matter  of  fact,  the
confusion  could  favour  certain  economic  operators  at  the  detriment  of  others  regardless  of
the quality of their technical offer. This has been confirmed by the case-law of the Court27.
The Financial Regulation (Article 167(2) and (3) FR) is not aligned with the Directive on this
point. In particular, qualification and experience of staff assigned to performing the contract
should be used as a selection criterion only and not as an award criterion. Indeed, this would
introduce  a  risk  of  overlap  and  double-evaluation  of  the  same  element.  Besides,  during
contract  performance,  a  change  in  the  staff  assigned  to  performing  the  contract,  even  if
justified  (by  e.g.  sickness  or  change  of  position),  would  call  into  question  the  conditions  of
award of the contract, thereby creating legal uncertainty.
At the stage of evaluation of award criteria, the contracting authority can no longer review
the capacity or ability of the tenderers. Anything to do with experience, expertise, references
for  past  projects,  work  already  done  and  resources  available  have  already  been  evaluated
since  all these  are  covered  by  the  selection  criteria. Only  the  technical  and  financial  offers
must be evaluated at this stage, by reference to the award criteria which are directly related
to  the  tender  specifications  and  which  are  used  to  assess  their  intrinsic  quality  without
reference to the capacity of the tenderer.
The following list of terms should be banned when drafting quality criteria or the evaluation
report on award criteria because they refer exclusively to the capacity of the tenderers:
- CVs
- Profiles
- Qualifications (education, background)
- Skills (language, IT, other)
- Experience
- Expertise
- Knowledge (of the subject, of languages…)
- Familiarity (with the subject)
- Resources (human, technical)
- Technical ability

27 See Judgment of the Court of Justice of  20 September 1988,  Beentjes v State of the Netherlands,
C-31/87, §15-16; Judgment of the Court of Justice of 19 June 2003, GAT, C-315/01, §65-67; Judgment
of  the  General  Court  of  24  January  2008,  Lianakis  and Others,  C-532/06,  §30-32;  Judgment  of  the
General Court of 8 December 2011, Evropaïki Dynamiki v Commission, T-39/08, §21-24 and §40-42.
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- References (list of previous contracts)
- Examples of previous deliverables
4.3.1.14. Value of the contract
The value of the contract in the tender specifications must be consistent with the information
published  in  the  contract  notice,  which  only  allows  for  an  “estimated  total  value”  of  the
contract.
It is not possible to publish a range so it is recommended not to use this method in the tender
specifications.
If  the  contracting  authority  has  a  limited  budget  available  or  in  the  case  of  middle  or  low
value  contracts to  avoid exceeding  the  threshold  for  the  procedure,  it may  need to  indicate
that  the  “estimated  total  value”  in  the  contract  notice  is  a  maximum  and  that  tenders
exceeding  it  will  be  rejected.  When  the  estimated  value  is  close  to  a  threshold,  it  is
recommended to use the procedure valid above this threshold.
When  indicating  a  maximum for  a direct  contract,  the  contracting  authority must  be  clear
about  what  is  included  in  this  maximum  budget,  i.e.  price,  renewals,  reimbursement  of
expenses (excluding indexation), so that tenderers can take this into account when defining
their financial offer.
Setting a maximum value has disadvantages as it tends to weaken price competition.
4.3.1.15. Price and reimbursement of expenses
An indication should be given of whether the price quoted must be fixed and not subject to
revision.  Otherwise,  the  specifications  must  lay  down  the  conditions  and  formula  for
reviewing the price  during  the  validity  of  the contract,  taking  account  of  the  nature  of  the
contract and the economic situation in which it will be performed, the nature and duration of
the tasks involved and the EU financial interest.
Under  Articles 3  &  4  of  the  Protocol  on  the  Privileges  and  Immunities  of  the  European
Union,  the  Union  is  exempt  from  all  charges,  taxes  and  duties,  including  value-added  tax;
such  charges  may  not,  therefore,  be  included  in  the  calculation  of  the  price  quoted;  the
amount  of  VAT  must  be  indicated  separately.  As  regards  the  relations  with  Belgian
contractors, the Belgian ministry of finance requests that the name of the authorising officer
signing the contract be part of the nominative list as maintained by DG HR – Unit B.1 and
granting the delegation of signature. The Belgian authorities ask moreover that the contract
specifies that the authorising officer acts on behalf and for the account of an EU Institution
covered by the PPI for the VAT purpose.
It  should  also  be  specified  that  the  price  tendered  must  be  all  inclusive  and  expressed  in
euros,  including  for  countries  which  are  not  in  the  euro  zone.  For  tenderers  in  countries
which  are  not in the  euro  zone,  the  price  quoted  may  not  be  revised  in  line with  exchange
rate movements. It is up to the tenderer to select an exchange rate and  accept the risks or
benefits  resulting  from  any  variation.  However,  since  payments  in  some  non-EU  countries
(delegations) cannot be made in euros in certain cases, national currencies may be used on a
cash basis if instructions to that effect are given to the accounting officer in ABAC (workflow)
or from imprest accounts.
Any  ambiguity  in  the  formulation  of  the  financial  offer  may  cause  rejection  of  the  whole
tender. The financial offer must be clear and in compliance with the tender specifications. In
particular, reductions of the offered prices (discounts) based upon conditions not specified in
the  tender  documents  (e.g.  following  ordered  quantities)  are  to  be  avoided.  Indeed,  any
clarification request on the submitted price may imply a modification of the tender.
If there is a list of unit prices, the tender specifications must clearly state which price will be
used if there is a discrepancy between the total of the unit prices (verified during evaluation)
and the aggregate price in the financial offer.
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As a rule, travel expenses should be included in the global price offered by the tenderer. For
that,  the  contracting  authority  must  indicate  precisely  the  required  travel  in  the  tender
specifications (e.g. number and location of  all meetings). Travel and accommodation should
be  reimbursed  separately  from  the  global  price  only  when  necessary,  i.e.  where  it  is  not
possible to identify the amount or place of travel required within the project. In this case, the
contracting  authority  should  provide  the  reimbursement  rates  for  travel  and  subsistence,
based  on  the standard Commission rules,  and  a  maximum  amount  (in  euro)  for  travel  and
subsistence expenses payable under the whole contract. It should be estimated by using the
maximum rates and the estimated necessary travel for performance of the contract.
The  same  principle  applies  to  any  specific  expenditure  incurred  in  performance  of  the
contract, which  cannot be  priced  by  the tenderer  during the  procedure,  such  as the  cost of
translating  various  reports  of  unknown  length  into  the  languages  indicated  in  the
specifications. In any case, the amount of reimbursable expenses compared to the price of the
contract should be minor.
In direct non-renewable contracts, the price is usually fixed and not subject to revision.
In the case of multi-annual contracts (e.g. framework contracts), where a fixed price does not
seem feasible, it is best for prices not to be revised before twelve months. The indexes used
should  be  expressed  in  the  same  currency  as  the  contract;  indexes  published  by  Eurostat
should be used where possible.
See the Circular on price revision.
4.3.1.16. Contents of the tender
When drafting instructions for tenderers in relation to the presentation and contents of the
request to participate or tender, the following points should be considered:
Documents which are not relevant and necessary for the evaluation should not be requested.
All  and  only  the  documents  necessary  for  the  evaluation  (exclusion,  selection  and  award
criteria) must be indicated, e.g. in a list.
It  is  strongly  recommended  to  draw  a  clear  distinction  between  the  documents  required
under  the  exclusion,  selection  and  award  criteria  respectively  to  avoid  the  risk  of  criteria
being confused when tenders are evaluated.
Tenderers can be invited to organise their technical offer  under headings or to structure it
following  a  template  to  ensure  that  it  includes  the  expected  contents  and  meets  the
requirements  set  out  in  the  technical  specifications  as  closely  as  possible.  This  is  likely  to
favour a straightforward evaluation of tenders in the light of the award criteria.
It  is  advisable  to  require  that  tenderers  submitting  joint  tenders  and  /  or  including
subcontracting specify the role, qualifications and experience of each  entity involved in the
tender.
It  is  also  necessary  to  require  an  itemised  use  of  human  resources  per  task  if  there  is  an
award criterion on allocation of resources or organisation of the work.
In  case  information  concerning  subcontractors  is  requested,  the  scope  of  this  information
should be clear. In addition to information on exclusion criteria for identified subcontractors
and  information  about  any  part  intended  to  be  subcontracted,  information  on  selection
criteria  may  be  requested  as  well.  Normally,  the  tenderer  provides  this  as  part  of  the
consolidated information for overall assessment of capacity. In any case, it is recommended
to  limit  this  requirement  to  certain  overall  and/or  individual  value  of  subcontracting.  For
framework contracts, it does not necessarily make sense to request the part intended to be
subcontracted (as a percentage) given that there are repetitive purchases and they are not
necessarily all identical.
Tenderers  should  be  asked  to  submit  their  financial  offer  as  a  global  price.  An  itemised
budget may be requested to facilitate the management of the contract in case of difficulties in
its performance (e.g. detailing the price of the different tasks or per deliverable will make it
easier to implement proportionate protective measures if necessary).
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In the case of framework contracts, the financial offer takes the form of a list of unit prices
which  will  be  applied  to  the  specific  contracts  implementing  the  framework  contract.  The
prices  of  the  list  are  maximum  prices  in  the  case  of  multiple  framework  contracts  with
reopening  of  competition.  Care  should  be  taken  that  all  price  items  to  be  used  when  the
framework contract is implemented are incorporated into the price list. It is recommended to
attach a template on which to submit the prices to the tender specifications.
It is a good practice to provide tenderers with standard forms for submission of tenders. They
may  be  useful  in  particular  when  tenderers  are  requested  to  present  a  set  of  precise
information, e.g. technical parameters or organisational details, price list.
4.3.1.17. Identification, legal status and access to the market
Tenderers should be asked to provide the following information and documents:
Identification and legal status:
Usually,  the  Commission  requests  submission  of  a  signed  Legal  Entity  Form  and  of  the
relevant  evidence  listed  in  the  LEF  itself.  It  is  recommended  to  provide  the  following  web
address  rather  than  copy  the  LEF  in  annex  to  the  tender  specifications  because  there  are
three different templates, available in all languages:
http://ec.europa.eu/budget/contracts_grants/info_contracts/legal_entities/legal_entities_en.cf
m
Access to the market:
Tenderers  must  indicate  the  state  in  which  they  have  their  registered  office  or  domicile,
providing  the  necessary  supporting  documents  in  accordance  with  their  national  law  (see
Chapter 4.3.1.6).
SMEs
Each tenderer (and each member of the group in case of joint tender) must declare whether it
is  a  Small  or  Medium  Size  Enterprise  in  accordance  with  Commission  Recommendation
2003/361/EC. This should be clearly requested in the tender specifications. This information
must be published in the award notice and is used for statistical purposes only.
4.3.1.18. Declaration and evidence on exclusion criteria
The contracting authority must request the candidates or tenderers to provide the European
Single  Procurement  Document  (ESPD)  or,  as  long  as  the  ESPD  is  not  available  for  EU
institutions, a declaration on honour, signed and dated, stating that they are not in one of
the exclusion situations (see Chapter 4.3.1.9). The contracting authority must provide a link
to the ESPD or the model declaration as an annex.
An economic operator may reuse an ESPD or a declaration which has already been used in a
previous  procedure.  In  this  case,  it  must  confirm  that  the  information  contained  in  the
document continues to be correct.
The purpose is to alleviate the workload of tenderers having to submit and of the contracting
authority  having  to  check  supporting  documents  for  all  tenderers.  For  procedures  as  from
Directive  thresholds,  the  candidates  or  tenderers  must  provide  evidence  confirming  the
ESPD  or  declaration  upon  request  of  the  contracting  authority  at  any  time  where  this  is
necessary to ensure the proper conduct of the procedure (Article 137(2) FR).
In practice, for contracts with a value as from the thresholds set in the Directive, we strongly
recommend28  verification  of  the  evidence  confirming  the  above  mentioned  ESPD  or
declaration, at least from the proposed winner29. This should be requested  at the latest as a
last step of the evaluation before the evaluation report is signed.

28 See Judgment of the General Court of 8 July 2020, Securitec vs Commission, T-661/18.
29 The tenderer who submitted the most economically advantageous tender.
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Afterwards, the authorising officer adopts the award decision and notifies at the same time
and simultaneously all tenderers of the results of the procedure.
In  the  procurement  procedures  in  two  steps  with  publication  of  a  contract  notice,  if  the
contracting authority specified a maximum number of candidates to be invited to tender and
some  candidates  may  have  to  be  rejected  in  order  not  to  exceed  this  number,  all  the
candidates  must  provide  the  evidence  on  non-exclusion  in  addition  to  the  ESPD  or
declaration.For  contracts  with  a  value  below  the  thresholds  set  in  the  Directive,  the
contracting authority may, if it has doubts about whether the tenderer to whom the contract
is  to  be  awarded  is  in  one  of  the  situations  leading  to  exclusion,  require  the  tenderer  to
provide the evidence on non-exclusion.
For contracts with a value up to €15 000, the contracting authorities may decide, depending
of their risk assessment, not to require the above-mentioned ESPD or declaration.
The  contracting  authority  must  waive  the  obligation  for  a  candidate  or  tenderer  to  submit
the  documentary  evidence  if  it  has  already  been  submitted  for  another  procurement
procedure  of  the  same  contracting  authority  and  provided  the  documents  were  issued  not
more than one year earlier and are still valid at the date of their request by the contracting
authority.  In  such  cases,  the  candidate  or  tenderer  must  declare  on  its  honour  that  the
documentary  evidence  has  already  been  provided  in  a  previous  procurement  procedure,
provide reference to that procedure  and confirm that that there has been no change in the
situation. This information must be included in the tender specifications.
The  contracting  authority  must  also  waive  the  obligation  for  a  candidate  or  tenderer  to
submit the documentary evidence if it can access it on a national database free of charge or
in the case of material impossibility to provide such evidence.
The  documents  to  be  requested  are  listed  in  Article  137(3)  FR  and  consist  mainly  in  an
extract  of  judicial  record,  a  certificate  on  payment  of  social  security  and  a  certificate  on
payment of taxes.
The extract from the judicial record and administrative certificates can be regarded as recent
if they are not more than one year old starting from their issuing date and are still valid at
the date of their request by the contracting authority.
Lists  of  certificates  issued  by  the  MS  can  be  found  on  the  e-CERTIS  website:
http://ec.europa.eu/markt/ecertis.  If  a  certificate  is  not  issued  in  the  country  concerned,  it
may  be  replaced  by  a  sworn  statement  (made  before  a  person  authorised  by  law).  Failing
that, it may be replaced by a solemn statement made by the interested party before a judicial
or administrative authority, a notary or a qualified professional body (chamber of commerce,
etc.). Normally, solemn statements are not made before an authority; this is a requirement
added by the FR.
If  contracting  authorities  have  doubts  about  the  personal  situation  of  candidates  or
tenderers, they may themselves apply to the competent authorities to obtain any information
they consider necessary about their situation. The list of these authorities can also be found
on the website referred to above.
Depending  on  the  national  legislation  of  the country  in which  the tenderer  or candidate  is
established,  the  documents  must  relate  to  legal  persons  and/or  natural  persons,  including
company directors or any person with powers of representation, decision-making or control in
relation to the candidate or tenderer.

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4.3.1.19. Declaration and evidence on selection criteria
The contracting authority must request the candidates or tenderers to provide the European
Single  Procurement  Document  (ESPD)  or,  as  long  as  the  ESPD  is  not  available  for  EU
institutions, a declaration on honour, signed and dated, stating that they fulfil the selection
criteria (see Chapter 4.3.1.10). The contracting authority must provide a link to the ESPD or
the model declaration as an annex.
The purpose is to alleviate the workload of tenderers having to submit and of the contracting
authority  having  to  check  supporting  documents  for  all  tenderers.  For  procedures  as  from
Directive  thresholds,  the  candidates  or  tenderers  must  provide  evidence  confirming  the
ESPD or declaration. The contracting authority may request all or part of the documentation
at any time, to ensure the proper conduct of the procedure (Point 18.4 Annex 1 FR).
In practice, for two-step procedures, the contracting authority may ask for evidence with the
request to participate to ensure that selected candidates have proven capacity. For one-step
procedures, the contracting authority may request all or part of the evidence with the tender
or during the evaluation, but in any case before the award decision (i.e. as a last step of the
evaluation)30. However, for the proposed winner, the contracting authority shall request the
evidence  as  referred  to  in  the  procurement  documents,  at  the  latest  before  the  evaluation
report is signed (i.e. as a last step of the evaluation).
The  contracting  authority  must  waive  the  obligation  for  a  candidate  or  tenderer  to  submit
documentary evidence if such evidence has already been submitted for another procurement
procedure of the same contracting authority and provided the documents are up-to-date. In
such  cases,  the  candidate  or  tenderer  must  declare  on  its  honour  that  the  documentary
evidence has already been provided in a previous procurement procedure, provide reference
to  that  procedure,  and confirm  that  there  has been  no  change in  the situation.  The  above-
mentioned information must be included in the tender specifications.
The contracting authority may, depending on its assessment of the risks, choose not to ask
candidates  or  tenderers  to  provide  documentary  evidence  of  their  legal  and  regulatory,
financial and economic and technical and professional capacity in the following cases:
- procedures for contracts with a value below the Directive thresholds;
- negotiated procedures without prior publication of a contract notice in cases under (b), (e),
(f), (i) and (iv), (h) and (m) of Point 11.1 Annex 1 FR (see Chapter 3.8).
In  such  case  the  selection  criteria  are  assessed  on  the  basis  of  the  tenderers  declarations
only. For  lists  of  pre-selected  candidates,  the  contracting  authority  may  ask  only  for  the
ESPD  or  declaration  when  putting  candidates  on  the  list  and  may  request  evidence  when
using the list depending on its assessment of the risks.
For contracts with a value up to €15 000, the contracting authority may decide not to require
the  above-mentioned  ESPD  or  declaration.  Indeed,  when  choosing  the  tenderer,  the
authorising officer should already ensure that it has the necessary capacity.
If the contracting authority decides not to require evidence of the legal, regulatory, financial,
economic,  technical  and  professional  capacity  of  candidates  or  tenderers,  no  pre-financing
can be foreseen except in duly justified cases.
Verification of the legal and regulatory capacity:
The authorisation for the tenderer to perform the contract proven by inclusion in a trade or
professional  register  (e.g.  the  bar  for  lawyers),  membership  of  an  organisation,  VAT
registration or an express authorisation (e.g. inclusion on a national decree or law for certain
professions) as indicated in Point 18.3 Annex 1 FR.

30  For  instance,  it  may  be  appropriate  to  ask  for  CVs  at  tender  stage;  or  to  request  evidence  to  the
successful  tenderer  and  to  the  second  best  tenderer  during  the  evaluation  to  ensure  fast  contract
signature in case of problem with the successful tenderer while not raising legitimate expectations.
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Verification of economic and financial capacity:
Point  19  Annex  1  FR  provides  a  non-exhaustive  list  of  possible  documents,  but  it  is  not
obligatory  to  request  them  all.  Only  the  documents  necessary  to  check  the  criteria  (and
minimum  levels)  indicated  in  the  tender  specifications  should  be  requested,  e.g.  financial
statements of the past two years (max. three) if there is a criterion on minimum turnover for
that period. When  requesting  professional  risk  indemnity  insurance,  the  tender
specifications must specify the amount to be insured as it constitutes a substantial element
of the criterion.
Tenderers who, for exceptional reasons, are unable to produce the references requested can
prove their economic and financial capacity by any other means deemed appropriate by the
contracting  authority.  For  instance,  a  company  created  less  than  two  years  before  the
procedure may only provide financial statements for the past year instead of past two years
and a business plan for the current year.
The possibility for economic operators to rely on the capacity of other entities, as provided for
in  Point  18.6  Annex  1  FR,  must  be  mentioned  in  the  tender  specifications.  If  the  tenderer
uses  this  possibility,  the  contracting  authority  may  request  the  legal  entity  providing
financial backing to be jointly liable for the execution of the contract, e.g. by requesting it to
sign the contract or, failing that, to provide a joint and several first-call financial guarantee.
Verification of technical and professional capacity:
Point  20.2  Annex  1  FR  provides  an  exhaustive  list  of  possible  documents,  several  of which
relate  to supplies  or works  contracts,  but  it  is  not obligatory  to request them  all. Only  the
documents  necessary  to  check  the  criteria  (and  minimum  levels)  indicated  in  the  tender
specifications should be requested. Generally, it is recommended to have the following:
-  Criteria and minimum levels on services (or supplies) provided in the last three years, and
request the list of these projects;
-  Criteria and minimum levels of qualifications and professional experience of the person(s)
directly involved in delivering the service (usually not applicable for supplies), and request
the corresponding CVs.
In  justified  cases,  the  authorising  officer  may  ask  for  evidence  for  both  exclusion  and
selection criteria from the beginning.
4.3.2. Draft contract
The draft contract is the third tender document. The model contract available on BUDGpedia
should be filled in as far as possible, including data on the contracting authority, the subject
matter  of  the  procurement,  the  terms  of  payment,  requirements  concerning  guarantees  if
applicable  and  intellectual  property  rights.  The  contractor  and  the  price  can  only  be  filled
once the successful tenderer is known. All the terms of the contract should generally not be
repeated  in  the  tender  specifications  in  order  to  avoid  inconsistencies;  it  is  better  to  make
references to the draft contract.
The contract must stipulate the position (e.g. Head of Unit, Director, etc.) and corresponding
organisational  entity  of  the  person  responsible  as  data  controller  for  processing  of  all
personal data during the procurement procedure and the contract performance. This can be
the  authorising  officer  responsible  in  charge  of  the  procurement  in  question  or  the
corresponding  authorising  officer  by  Delegation  or  a  specific  function  that  covers  all  data
processing  for  procurement,  e.g.  Head  of  Unit  of  Unit  XXX  or  Director  of  Directorate  on
Resources or Director General of DG XXX. The relevant person can be found by contacting
the local Data Protection Coordinator.
For more information see the note on protection of personal data in procurement and the website of the
Secretariat General including the list of Data Protection Coordinators:
https://myintracomm.ec.europa.eu/sg/dpo/Pages/index.aspx
The model contracts are on BUDGpedia: Model contracts and other model documents.
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4.3.2.1. Use of the DG BUDG model contracts
DG  BUDG  model  contracts  are  in  three  parts:  special  conditions,  general  conditions  and
annexes, which form an integral part of the contract.
By definition, the special conditions are the variable part of the contract. They consist of a
number  of  blanks  which  must  be  filled  in  carefully,  beginning  with  the  particulars  of  the
parties.  They  also  include  a  number  of  mandatory  clauses,  to  be  chosen  from  versions
proposed in square brackets, and optional clauses which can be kept or discarded. In order to
avoid renumbering, it is advised to indicate "not applicable" in the relevant clauses instead of
deleting them.
On  the  other  hand,  the  general  conditions  should  not  be  changed  and,  in  normal
circumstances,  are  incorporated  without  amendment.  In  the  case  of  a  simplified  contract
(purchase order), they are to be found on the Europa website indicated on that contract. It is
sometimes  necessary  to  modify  the  general  conditions.  Extra  care  should  be  taken  in  such
cases  not  to  delete  an  essential  guarantee  or  to  create  incompatibilities.  Generally,
derogations  to  general  conditions  are  listed  in  the  special  conditions,  with  a  clause  stating
“By derogation to Article XX of the general conditions, etc.”
Authorising officers can make whatever changes they consider necessary to adapt a contract
to  the  specific  subject  and  circumstances.  DG  BUDG  (Central  Financial  Service,  Unit
BUDG.D.3,  Financial  rules  2  and  Programme  management)  may  be  consulted  on  the
changes made.
4.3.2.2. Terms of payment
The  draft  contract  includes  the  payment  schedule.  It  must  be  in  full  coherence  with  the
tender  specifications,  or  the  tender  specifications  may  only  refer  to  the  contract  clause  to
avoid inconsistencies.
Pre-financing is meant to provide a float to the contractor, and normally it is used in grants,
not  so  much  in  procurement  because  it  is  considered  as  a  risk  for  the  Union's  budget
(payment  with  nothing  in  return).  It  should  be  exceptional  in  procurement  and  be  used  in
justified  cases  (procurement  requiring  high  start-up  costs  e.g.  for  works  contracts,  or
purchase of patents or practice of the sector such as booking of conference rooms).
Interim payments are made in exchange of receiving something of equivalent value (e.g. raw
data  from  a  survey,  the  first  draft  of  a  report,  the  per  country  situation  of  5  out  of  28
countries…). In order to facilitate access to SMEs to EU contracts, it is recommended to pay
an interim payment fairly early in the payment schedule, but it should still be in exchange of
a deliverable of equivalent value. Apart from reducing the risk to the budget, it is also useful
in case of termination of the contract, as it ensures that the contracting authority does not
pay more than what the deliverable is worth.
The  payment  schedule  should  be  reasonable,  i.e.  payments  should  not  be  too  frequent  to
minimize  workload  and  should  be  linked  to  the  milestones  of  the  implementation  of  the
contract.
4.3.2.3. Reimbursement of expenses
Travel  and  subsistence  expenses  should,  as  a  rule,  be  included  in  the  global  price  of  the
contract and not be reimbursed separately. Therefore the tender specifications must include
in detail all necessary travel (e.g. number and place of meetings) so that tenderers can make
their  own  cost  estimates  and  incorporate  them  in  their  all-in  financial  offer.  Separate
reimbursement  must  be  foreseen  only  when  the  place  of  performance  is  not  known  at  the
time of drafting the tender specifications (e.g. framework contract for audits in and outside
the  EU,  where  the  volume  of  services  to  be  performed  in  each  country  is  not  known).  The
same  argument  can  be  applied  to  reimbursement  of  other  costs  directly  linked  to
performance of the contract (e.g. cost of translations).
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4.3.2.4. Guarantees
There are four types of guarantees (Article 152, 168(2) and 173 FR). In all cases, they must
be  announced  in  the  procurement  documents.  The  conditions  for  release  of  the  guarantees
should be announced as well. Where contractors are required to submit a guarantee, it must
be for an amount and a period that are sufficient for it to be called.
Tender guarantee
The  tender  guarantee  ensures  that  tenders  are  maintained  until  contract  signature.  It  is
rarely  used  in  the  EU  institutions,  but  if  so  it  must  be  announced  in  the  tender
specifications.  The  tender  guarantee  is  to  be  provided  with  the  tender.  It  is  equivalent  to
1% to 2%  of  the  total  value  of  the  contract.  It  is  called  in  if  the  tender  submitted  is
withdrawn before contract signature. The tender guarantee is released after information on
the outcome of the procedure for tenders rejected based on the exclusion or selection criteria,
and when the contract is signed for tenders ranked for the award of the contract.
Guarantee for pre-financing
In  case  of  pre-financing,  a  guarantee  may  be  requested  on  a  case-by-case  basis  if  it  is
justified by a risk assessment documented internally. The assessment will take into account
in  particular  the  value  of  the  contract,  its  subject  matter,  duration  and  pace,  and  the
structure of the market. Pre-financing guarantees are not allowed for contracts not exceeding
€60 000.
Performance guarantee
On  a  case-by-case  basis  and  subject  to  a  risk-analysis,  a  performance  guarantee  may  be
required  from  the  contractor  in  order  to  ensure  compliance  with  substantial  contractual
obligations  in  the  case  of  works,  supplies  or  complex  services.  The  performance  guarantee
amounts to a maximum of 10 % of the total value of the contract and is to be released after
final  acceptance  of  the works,  supplies  or  complex services.  It may  be  released  partially or
fully upon provisional acceptance. Performance guarantees are not allowed for contracts not
exceeding €60 000.
Retention money guarantee
The  use  of  a  retention  money  guarantee  is  restricted  to  a  particular  situation:  it  may  be
requested, on a case-by-case basis and subject to a risk analysis, in order to ensure that the
works, supplies or services have been fully delivered and when final acceptance according to
the terms of the contract cannot be given upon final payment by the authorising officer. In
other words, if all tasks can be finalised and approved before payment of the balance, there is
no  retention  money  guarantee.  Otherwise,  the  guarantee  will  cover  the  period  between
provisional  acceptance  (at  payment  of  the  balance)  and  final  acceptance  (which  can  be
several months later) and this is referred to as contract liability period. This is used e.g. for
software development (the software is delivered but bugs may be detected for a period after
final  delivery)  or  for  works  contracts.  It  may  take  the  form  of  a  retention  on  payment  of
maximum  10 %  (which  is  recommended  as  it  is  easy  to  manage).  If  10%  is  not  considered
adequate,  the  authorising  officer  may  set  a  lower  percentage  according  to  the  usual
commercial  terms.  It  shall  be  proportionate  with  regard  to  the  nature  of  the  purchase,  its
organisation  and  risk.  Retention  money  guarantees  are  not  allowed  for  contracts  not
exceeding €60 000.
If  the  contractor  so  requests  and  subject  to  approval  by  the  contracting  authority,  the
retention on payment can be replaced by a financial guarantee.
Contractual guarantees, when required, must be provided for in the draft contract.
For financial guarantees, the model guarantee must be provided.
For information on management and release of guarantees see Chapter 5.6.
For further information see the Circular on guarantees.
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4.3.2.5. Intellectual property rights
For  services,  the  draft  contract  should  include  all  the  necessary  information  about
intellectual property rights, in particular about the rights to be purchased and the intended
use  of  these  rights  in  the  future.  It  is  always  necessary  to  adapt  the  clause  to  the  specific
subject matter of the contract.
More information is available in the Explanatory note on intellectual property rights.
4.3.2.6. Contract phases, renewal or options
A  contract with phases  includes several steps in  a  project, whereby  one step only  begins  if
specific conditions are fulfilled at the end of the previous step. The value of the contract must
be  calculated  over  the  whole  duration,  including  all  phases,  and  the  financial  commitment
should include all phases, unless the condition is the availability of budget itself. The award
criteria  (including  the ranking  formula)  must  take  account of  all phases,  and the  financial
tenders  should  include  prices  for  each  phase.  For  instance,  a  contract  could  include  an
information  campaign  with  reporting  of  its  impact  (phase  1).  If  the  impact  is  positive,  the
campaign is pursued with a wider scope (phase 2), otherwise it is stopped. If the condition is
fulfilled the second phase starts automatically.
This  is  different  from  a  contract  with  renewal  because  in  this  case  each  phase  contains
different tasks. In a contract with renewal, the tasks described in the tender specifications
for  the first period  are repeated  over the  second period, with for instance conditionality on
budget availability. It is recommended to use automatic contract renewal, i.e. if the condition
is fulfilled  the  contract  is  renewed  with  no  action  by  the  parties,  and  if the contract  is  not
renewed,  the  party  refusing  renewal  should  notify  the  other  party  at  least  three  months
before  the  anniversary  date  of  the  contract.  When  renewal  is  not  automatic,  the  renewal
must  be  notified  to  the  contractor,  and  if  it  is  forgotten  then  contract  terminates
automatically.  Again,  the  value  of  the  contract  and  the  award  criteria  must  cover  the  full
duration of the contract including all renewals.
Options are qualitative or quantitative extras, ancillary to the main purchase, and which are
optional for the contracting authority - it has the right to buy them or not – but not to the
tenderers, who have to include them in their technical and financial tender. For instance, a
contract for a study may include the option of translating the main report. Again, the value
of the contract and the award criteria must cover the full duration of the contract including
all options.
4.3.2.7. Recovery of established debts by offsetting
In  accordance  with  Article  102  FR  and  the  conditions  set  out  in  the  draft  contract,  the
contracting  authority  may  offset  any  established  debt(s)  owed  to  the  Union,  the  European
Atomic  Energy  Community  or  an  executive  agency  (when  the latter  implements the  Union
budget) against any payment due under a contract.
In order to enhance transparency about possible offsetting of debts the contracting authority
should: i) inform economic operators about the possibility of offsetting in the tender specs, ii)
ask them to declare any outstanding debts, iii) in case of identification of outstanding debts
inform  successful  tenderer(s),  before  the  signature  of  the  contract,  about  that  there  are
outstanding debts and that any future payment may be offset.
i)  The  model  tender  specifications  include  a  paragraph  reminding  tenderers  about:  a)  the
possibility of offsetting of established debts against any payments due under the contract, b)
the fact that the existence of such debts will be verified by the contracting authority and c)
the obligation of the group leader (in case of a joint tender) to inform all the group members
before  signing  the  contract  should  an  outstanding  debt  is  identified  before  the  contract
signature.
ii) Tenderers/candidates should declare in the declaration on honour whether they have any
outstanding debts towards the Commission.
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iii)  Before  the  signature  of  the  contract  the  authorising  officer  should  check  via  the
searchable  file  with  the  list  of  debtors  on  Budgpedia  whether  the  proposed  successful
tenderer  (including  any  member  of  a  consortium  in  a  joint  tender)  has  any  overdue  debts.
When  the  successful  tenderer  or  any  of  the  members  of  the  consortium  (in  case  of  a  joint
tender)  is  found  to  have  overdue  debts  a  letter  should  be  sent  before  the  signature  of  the
contract, to  the successful  tenderer or  to the  leader  of  the  consortium informing  them  that
there are outstanding debts and that any future payment would be offset. At this point, the
tenderer(s) may reconsider whether the contract is still implementable under the conditions
of offsetting and decide whether a contract signature still makes sense.
Recovery of debts by offsetting also applies to pre-financing payments. New pre-financing to
debtors  should  be  preferably  avoided  –  or  at  least  limited  (in  the  latter  case,  a  financial
guarantee for the pre-financing should be requested). For transparency purposes, this should
be communicated appropriately in advance in the context of the call for tenders.

For further information see BUDGpedia page on offsetting.
4.3.3. Invitation to tender
An  invitation  to  tender  (Point  16.2  Annex  1  FR)  is  the  procurement  document  giving  the
administrative  details  for  submitting  tenders,  outlining  the  procedural  requirements  for
contacts  with  the  contracting  authority  (Article  169  FR)  and  providing  extra-legal  clauses.
These clauses do not need to be repeated in the tender specifications, and they include:
-   Submission of a tender implies acceptance of all the terms and conditions set out in this
invitation to tender, in the tender specification and in the draft contract;
-   All costs incurred during the preparation and the submission of tenders are to be borne by
the tenderers and will not be reimbursed;
-   The invitation to tender is in no way binding on the contracting authority. Its contractual
obligations commence only upon signature of the contract with the successful tenderer;
-   Once  the  contracting  authority  has  opened  the  tender,  the  document  shall  become  its
property and it shall be treated confidentially.
In addition, the invitation to tender specifies the duration of validity of the tenders, i.e. the
period  between  receipt  of  tenders  and  signature  of  contracts,  during  which  the  tenderers
cannot modify their tenders, in particular price. The contract must be signed before the end
of this validity, so it is recommended to be realistic with the time needed for evaluation (e.g.
about six months for an open procedure).
There is no need for a blue ink signature of the invitation to tender by the authorising officer.
In  the  case  of  procedure  in  two  steps,  economic  operators  will  be  first  invited  to  submit  a
request  to  participate.  The  invitation  to  tender  will  be  sent  in  the  second  step  only  to  the
selected candidates.
See model invitation to tender.

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4.3.4. Contract notice
The  purpose  of  the  contract  notice  is  to  inform  all  potentially  interested  operators  that  a
procurement  procedure  is  launched,  providing  them  with  the  essential  details  and  all  the
information required in order to participate.
The  contract  notice  is published  in  the Official  Journal  and  is  designed  to  attract  as many
tenders as possible. It can therefore be regarded as the most important form of publicity for
public procurement.
A contract notice is published for the following procedures only: open procedures, restricted
procedures,  competitive  procedures  with  negotiation,  competitive  dialogues  and  innovation
partnerships.
It is not used for specific contracts based on framework contracts.
Contracting authorities wishing to organise a contest make their intention known by means
of a design contest notice (see Chapter 3.11).
    Check  here  how  eProcurement  supports  the  creation  and  preparation  of
contract notices in the Official Journal.
4.3.4.1. Content
The contract notice must be drafted in one language using the standard eNotice. The choice
of the language version must correspond to the language of the form used. The Publications
Office will have the notice translated into all the EU official languages.
The  contract  notice  must  be  consistent  with  the  prior  information  notice,  if  one  has  been
published.
The  textual  information  should  be  kept  to  a  minimum  and  must  not  exceed  500  words.
Information already contained in the other procurement documents should not be repeated
in  the  contract  notice.  Instead  of  copying  such  information,  the  contract  notice  should  use
eTendering or, failing that, provide the link to the documents available on line (see Chapter
4.4).
In  justified  cases,  the  contracting  authority  may  transmit  the  procurement  documents  by
other  means  if  direct  access  by  electronic  means  is  not  possible  for  technical  reasons.  For
instance, there would be no direct access if the volume of the tender specifications does not
allow for downloading or the format of the document is not generally accessible or if access
would require specialised office equipment.
There  would  also  be  no  direct  access  to  the  whole  procurement  documents  if  they  contain
confidential  information  (e.g.  details  of  security  systems);  in  this  case,  all  non-confidential
parts of the procurement documents are provided with a caveat that confidential parts will
only be provided to selected candidates.
When it is necessary to repeat information, the contract notice must be fully consistent with
the  other  procurement  documents  (e.g.  the  final  date  for  receipt  of  tenders  or  requests  to
participate must be identical in the contract notice and the invitation letter).
In the case of procedures in two steps, the indicative date for sending the invitation to tender
to  the  selected  candidates  must  be  calculated  with  due  allowance  for  the  time  taken  to
process the requests to participate.
Under  an  open  procedure,  representatives  of  tenderers  may  attend  the  opening  session  so
that they can ensure that their tender arrived closed and they can know their competitors.
The contract notice must therefore specify who may attend and the date, time and place of
opening.  The  department  concerned  must  make  all  the  necessary  practical  arrangements
(book a sufficiently large room for a sufficient length of time, give instructions to guards on
the  door  in  buildings,  prepare  a  presence  list,  etc.).  Any  tenderer  who  does  not  attend  the
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opening session can ask for this information and should be given the opening report (without
the names of persons in charge of opening).
The instruction on drafting notices sets out the arrangements for sending the notice to the
Publications Office, together with advice on completing the forms online via eNotices.
4.3.4.2. Additional publicity
In addition, but not as an alternative, to publication of the contract notice, the contracting
authority may use any other form of publicity.
Such  publicity  must  not  precede  publication  of  the  contract  notice,  which  is  the  only
authentic  version,  and  must  refer  to  the  notice.  Nor  must  it  introduce  any  discrimination
between candidates or tenderers or contain any information other than that in the contract
notice.
This additional publicity might, for example, take the following forms:
– publication on the DirectorateGeneral’s- website;
– publication in the general or specialist press;
–  letter  to  the  professional  associations  or  organisations  representing  businesses,  drawing
their attention to the contract notice and asking them to circulate it among their members,
etc.;
–  mailshot  based  on  transparent  and  not  discriminatory  criteria,  e.g.  list  constructed  by  a
webpage  subscription  mechanism.  Mailshots  must  not  be  limited  to  only  a  few  economic
operators known to the contracting authority.
4.3.4.3. Correction of a contract notice
If a contract notice already published  must be amended prior to the  deadline for receipt of
tenders or requests to participate, a corrigendum must be published by the same procedure
as  the  original,  using  a  specific  model  (notice  for  changes  or  additional  information).  If
necessary,  the  time  allowed  for  submitting  tenders  or  requests  to  participate  should  be
extended.  Such  an  extension  is  necessary  if  substantial  changes  are  made.  The  number  of
extra days to be allowed should be based on the extra work which will be necessary for the
tenderers. For example, a significant change made just before the deadline may require an
additional  period  of several weeks  (e.g.  because  of  the  different scope  of the work, types  of
cost,  staff  needed  and,  probably,  different  composition  of  the  consortium).  In  the  case  of
substantial amendment, the time should start running from the beginning.
An extension is also compulsory if:
-   access to the other procurement documents is not provided from the date of publication of
the contract notice (see Chapter 4.5.4);
-   additional information requested no less than 6 working days before the closing date was
not provided at the latest six days before the closing date;
-   translation  of  the  procurement  documents  was  not  provided  within  6  working  days.
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4.4. Launching of the call for tenders
The  first  phase  in  the  procurement  procedure  is  the  preparation  of  the  procurement
documents (see Chapter 4.3). Once they are ready, the call for tenders can be launched.
4.4.1. Procedures with a contract notice
In  all  procedures  requiring  the  publication  of  a  contract  notice  in  the  Official  Journal  the
procedure  is  launched at  the  moment  of  dispatch  of  the  contract  notice  to  the  Publications
Office.
The Publications Office has up to 7 days after dispatch to publish the contract notice in the
Official Journal provided the free text in the whole contract notice is maximum 500 words.
All contract notices published are available on the TED (Tenders Electronic Daily) database
at  http://ted.europa.eu  .  The  contracting  authority  must  be  able  to  provide  evidence  of  the
date of dispatch.
At the moment of publication of a contract notice, the procurement documents must be made
available by electronic means to all economic operators (see Chapter 4.5.4).
  Check  here  how  eProcurement  supports  launching  procedures  with
publication of a contract notice.
4.4.2. Procedures without prior publication of a contract notice
For  negotiated  procedures  without  prior  publication  of  a  contract  notice  (see  Chapter  3.8),
dispatch of the invitation to tender to the candidate(s) marks the launch of the procedure.
Procedures  involving  a  call  for  expressions  of  interest  (see  Chapter  3.6)  do  not  require  a
specific publication in addition to the notice of call for expressions of interest published ex-
ante  in  the  OJ  S  (see  Chapter  4.2.2).  For  these  procedures,  dispatch  of  the  invitation  to
tender to the pre-selected  candidates or to the vendors on the list marks the launch of the
procedure.
For  negotiated  procedures  for  middle  and  low-value  contracts,  specific  information  may  be
published on the website (see Chapter 3.7.3). For very low value contracts (up to € 15 000)
there  is  no  publication  requirement.  These  procedures  are  launched  by  the  dispatch  of  the
invitation to tender to potential tenderers.
Check here how eProcurement supports launching procedures without prior
publication of a contract notice.
4.4.3. Translation
The contract notice is translated by the Publications Office in all EU official languages. For
the  Commission,  translation  of  the  other  procurement  documents  must  be  organised  in
advance with DGT.
The  contracting  authority  may  choose  the  official  language(s)  in  which  it  publishes  the
procurement documents (except the contract notice, which is prepared in one language and
published in all EU languages). However, in case of request for another official language, the
translation  must  be  provided  within  6  working  days.  For  the  Commission,  DGT  would
provide  the  translation  within  the  requested  deadline,  provided  that  the  procurement
documents have been included in the planning of potential needs. A request for translation is
not  as  such  a  ground for  extending  the  deadline  for  receipt  of  tenders  but  the  receipt  date
should be postponed by at least the number of days of delay if the translation is not provided
within the 6 working days.

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4.5. Submission phase
4.5.1. Contacts during the submission phase
Such contacts are allowed, by way of exception, in the following circumstances only (Article
169 FR):
-  at  the  request  of  economic  operators,  the  contracting  authority  may  supply  additional
information solely for the purpose of clarifying the procurement documents;
-  on  its  own  initiative,  the  contracting  authority  may  inform  interested  parties  if  it  spots
any error, inaccuracy, omission or other clerical error in the procurement documents.
As  the  model  invitation  to  tender  includes  the  same  wording,  the  contracting  authority
should receive no objections from economic operators seeking other information.
Contacts  must  always  take  place  in  writing.  All  records  of  contacts  with  tenderers
(correspondence),  in  any  of  the  situations  described  above,  must  be  kept  in  the  public
procurement file, a model for which is available on BUDGpedia.
Any  additional  information  provided  at  the  request  of  an  economic  operator  and  any
information  provided  by  the  contracting  authority  on  its  own  initiative  must  be  accessible
simultaneously to  all  operators  by the  same  means  as for  the procurement documents (see
Chapter 4.5.4).
If  requested  no  less  than  six  working  days  before  the  deadline  for  receipt  of  tenders  or
requests to participate, additional information on the procurement documents and additional
documents are provided as soon as possible. In practice, the information is provided as soon
as the response is prepared and if several questions must be answered, the answers prepared
fast should be provided earlier than those taking more time (good administration).
In any case, the answers must be provided no later than six days before the deadline. If the
information  is  given  less  than  6  days  before  the  deadline,  the  contracting  authority  must
extend the time limit for receipt of tenders or requests to participate proportionally.
Contracting authorities are not bound to reply to requests for additional information made
less than six working days before the deadline for receipt of tenders or requests to participate
but  may  do  so  if  at  all  possible.  In  case  the  deadline  for  receipt  of  requests  for  additional
information does not fall on a working day, requests submitted on the first following working
day should be accepted.
In the open or restricted procedure for urgent cases, additional information, if requested in
time, is provided no later than four days before the deadline.
If the contracting authority needs to correct the procurement documents with  a significant
change,  it  should  extend  the  time  limit  for  receipt  of  tenders  or  requests  to  participate  so
that  operators  can  take  these  changes  into  account.  This  extension  will  have  to  be  made
known in the same way as the original procurement documents, including correction of the
contract  notice.  When  this  happens  very  close  to  the  deadline,  the  corrigendum  may  be
announced with a warning message where the procurement documents are made available.
If  the  change  is  minor  and  has  no  impact  on  the  preparation  of  tenders  or  requests  to
participate,  then  a  new  version  of  the  corrected  procurement  documents  and  a  message
concerning the change may be provided by the same means as for the original procurement
documents, without corrigendum in the Official Journal.
eTendering users can check here how eProcurement supports questions and
answers during the submission phase.

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4.5.2. Receipt of requests to participate
In  procedures  in  two  steps,  the  first  stage  after  publication  of  the  notice  is  the  receipt  of
requests  to  participate,  followed  by  the  selection  of  the  candidates  who  will  be  invited  to
submit  a  tender.  In  the  procedure  for  pre-selection  of  candidates following  publication  of  a
call  for  expressions  of  interest,  requests  to  participate  can  be  received  and  candidates
preselected at any time (see Chapter 3.6.3).
The  arrangements  for  submission  of  requests  to  participate  are  determined  by  the
contracting authority, which may choose a single exclusive method of submission. Requests
to participate are sent by post, courier service or electronic means.
The date of receipt consists in the date at which the candidate can no longer alter its request
to participate, i.e.:
  For submission by post, the postmark;
  For submission by courier, the deposit slip of the courier service;
  For submission by hand, the receipt of the Central Mail Service;
  For electronic submission, the time stamp generated by the system.
If the contracting authority authorises the submission of requests to participate by electronic
means,  the  tools  used  and  their  technical  characteristics  shall  be  non-discriminatory,
generally available and interoperable with technology in general use, and shall not restrict
access of economic operators to the procurement procedure.
In  practice,  below  the  Directive  threshold,  the  contracting  authority  should  guarantee
confidentiality  and  integrity  of  the  requests  to  participate.  Submission  with  non-secure
electronic means (i.e. e-mail to a functional mailbox - several persons should be able to access
it to ensure continuous check) may present some risks, so it is up to the authorising officer to
decide whether, and up to which value, these means can be used.
As  from  the  Directive  threshold,  the  device  for  electronic  receipt  of  requests  to  participate
must fulfil a number of conditions laid down in Article 149(3) FR.
    Check  here  how  the  submission  and  receipt  of  requests  to  participate  is
supported by eProcurement.
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4.5.3. Selection of candidates
Opening
In  procedures  in  two  steps,  it  is  compulsory  to  open  requests  to  participate  (Article  168(3)
FR).  There  is  no  opening  committee  for  requests  to  participate.  It  is  up  to  the  responsible
authorising  officer  to  decide  about  the  appropriate  organisation.  The  persons  in  charge  of
opening check whether the requests to participate have been  received on time. Requests to
participate which satisfy this condition are considered to be in order. Although the rules lay
down no obligation, it is advised to produce an opening record of this step to be signed by the
relevant person(s). The model record of opening of tenders can be taken as a basis.
Evaluation
It is compulsory to assess requests to participate (Article 168(4) FR). There is no evaluation
committee. The responsible authorising officer may decide that requests to participate are to
be evaluated by appropriate means (e.g. appoint one or two persons to do it).
The evaluator(s) evaluate the requests to participate by reference solely to the exclusion and
selection criteria specified in the procurement documents.
Requests to participate which do not contain all the requested information and documents or
do not satisfy the specific requirements cannot be eliminated outright, on the basis of good
administration (Article 151 FR). The evaluators shall ask the candidate to provide additional
supporting documents or clarifications relating to the exclusion and selection criteria, setting
a final date for replying (see Chapter 4.7.4).
If  requests  to  participate  are  sent  before  the  deadline  but  arrive  late  to  the  contracting
authority  (delay  caused  by  distance  or  strikes,  for  instance),  the  evaluator(s)  should
reconvene in the same composition to ensure that all requests to participate are given equal
treatment.
After  this  stage,  only  the  candidates  selected  will  be  invited  to  tender.  In  the  restricted
procedure  and  in  procedures  in  two  steps  involving  a  call  for  expressions  of  interest  the
number may not be fewer than five, provided a sufficient number of candidates satisfy the
exclusion and selection criteria.
In  a  restricted  procedure  with  publication  of  a  contract  notice  or  following  a  call  for
expressions of interest there may be a maximum number of candidates invited, announced in
the  procurement  documents,  but  this  is  not  recommended  as  it  is  very  difficult  to  do  in
practice.
In  the  competitive  procedure  with  negotiation,  the  competitive  dialogue,  the  innovation
partnership  and  the  prospection  of  the  local  market  for  building  contracts,  the  number
required is at least three. In any event, the number of candidates allowed to tender must be
sufficient for there to be real competition.
Selection
There  is  no  formal  decision  on  selection  by  the  authorising  officer.  The  report  on  selection
signed  by  the  relevant  persons  involved  is  sufficient.  The  authorising  officer  responsible
must  inform  non-selected  candidates  of  the  reasons  for  rejection  of  their  request  to
participate as soon as possible after the report on selection is finalised based on the exclusion
and selection criteria. There is no standstill period.
Model notification letters are available on:  Model contracts and other model documents.
At the same time, the invitations to tender are sent to the selected candidates.
If any candidate requests information about the selection of other candidates, it should not
be given this information until the time limit for receipt of tenders has elapsed. Indeed, there
is  a  risk  of  collusion  between  selected  candidates  and  a  risk  of  transmission  of  this
information from non-selected candidates to selected candidates.
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For  procedures  with  publication  of  a  contract  notice,  the  invitation  letter  will  refer  to  the
other  procurement  documents  already  published.  For  procedures  without  publication  of  a
contract notice, the other procurement documents will be attached to the invitation letter.
  Check here how the opening of requests to participate and the selection of
candidates is supported by eProcurement.
4.5.4. Dispatch of procurement documents
The  means  of  communication  chosen  must  be  generally  available  and  must  not  have  the
effect of restricting access by economic operators to the procurement procedure.
Procedure with publication of a contract notice
For all procedures in one or two steps with publication of a contract notice, the set of other
procurement  documents —  i.e.  the  invitation  to  tender,  the  tender  specifications  and  the
draft contract — must be made available by electronic means from the date of the publication
of the contract notice (Point 25.1 Annex 1 FR).
  Check  here  how  eProcurement  supports  the  publication  of  procurement
documents.
The  eTendering  platform  should  be  used.  This  platform  is  an  extension  to  TED  (Tenders
Electronic Daily), the online version of the OJ S.
For the contracting authority eTendering provides:
-  synchronization  with  the  calls  for  tenders  elaborated  on  eNotices  and  published  on  TED
portal;
- possibility to process and organise answers to economic operators' questions;
- possibility to process changes in the procurement documents.
For economic operators eTendering provides:
- access to all publicly available tender documents, including answers to questions;
- additional services as notification related to changes in procurement documents;
For more information please see the eTendering site page.
Failing  that,  the  procurement  documents  should  be  made  available  for  download  from  the
internet  site  of  the  contracting  authority  ("buyer  profile").  In  all  cases,  the  contract  notice
must indicate the address from which the documents can be downloaded.
In  justified  cases,  the  contracting  authority  may  transmit  the  procurement  documents  by
other  means  if  direct  access  by  electronic  means  is  not  possible  for  technical  reasons  (e.g.
architecture  plans,  specific  IT  formats  not  commonly  available)  or  if  the  procurement
documents contain confidential information (for more details see Chapter 4.3.4.1). Only parts
of  the  procurement  documents  which  cannot  be  accessible  from  the  outset  (i.e.  parts  with
actual  technical  restrictions  or  parts  which  are  really  confidential)  should  be  subject  to
restricted  access,  so  in  practice  there  will  always  be  parts  of  the  procurement  documents
published with the contract notice (the invitation to tender, the draft contract, the subject,
the tasks, the criteria…). The technical specifications should include a caveat explaining
-  how  the  rest  of  the  documents  is  made  accessible,  in  case  of  technical  restrictions  (e.g.
access to a specific software, on-site visit, paper format, etc.);
-  that  the  confidential terms will  only  be provided  later  to selected  candidates  and explain
how (e-mail sending, paper, on site consultation, etc.).
Procedures without publication of a contract notice
For  all  procedures  in  one  or  two  steps  without  publication  of  a  contract  notice  (procedures
following a call for expressions of interest, negotiated procedures under Point 11.1 Annex 1,
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negotiated procedures below the Directive thresholds), access to the procurement documents
must be provided simultaneously by electronic means.
It  is  recommended  to  use  separate  e-mails  so  that  candidates  do  not  learn  who  their
potential competitors are.
In  procedures  in  two  steps,  the  procurement  documents  must  under  no  circumstances  be
provided to operators other than the selected candidates (candidates who have presented a
request to participate and who satisfy the exclusion and selection criteria).
  Check  here  how  eProcurement  supports  the  dispatch  of  procurement
documents in procedures without prior publication of a contract notice.
4.5.5. Receipt of tenders
Before  the  deadline  for  receipt  of  tenders  the  procedure  for  registering  the  exact  date  and
time of receipt should be established.
Arrangements for the submission of tenders are set in the invitation to tender.
The date of receipt is the date as of which the tenderer can no longer alter its tender, i.e.:
  For submission by post, the postmark;
  For submission by courier, the deposit slip of the courier service;
  For  submission  by  hand,  the  receipt  of  the  Central  Mail  Service  for  Commission
departments in Brussels and Luxembourg;
  For electronic submission, the time stamp generated by the system.
For information, see the model invitation to tender.
If  the  contracting  authority  authorises  the  submission  of  tenders  by  electronic  means,  the
tools used and their technical characteristics shall be non-discriminatory, generally available
and  interoperable with  technology  in  general use,  and shall  not  restrict  access of  economic
operators to the procurement procedure.
In  practice,  below  the  Directive  threshold,  the  contracting  authority  should  guarantee
confidentiality  and  integrity  of  the  tenders.  Submission  with  non-secure  electronic  means
(i.e.  e-mail  to  a  functional  mailbox  -  several  persons  should  be  able  to  access  it  to  ensure
continuous  check)  may  present  some  risks,  so  it  is  up  to  the  authorising  officer  to  decide
whether, and up to which value, these means can be used.
As  from  the  Directive  threshold,  the  device  for  electronic  receipt  of  tenders  must  fulfil  a
number of conditions laid down in Article 149(3) FR.
The  contracting  authority  must  make  arrangements  in  advance  to  receive  and  store  the
tenders,  including  all  the  items  for  verifying  the  date  of  receipt,  in  particular  the  receipts
issued when tenders are submitted by hand. It is essential that tenders remain sealed until
the  opening  session.  In  case  a  tender  is  accidentally  opened  by  the  institution's  services
before the opening session this error should be documented in a note for the file which should
explain all the circumstances including how integrity and confidentiality was ensured.
With a view to the stages of the procedure which will follow the opening of tenders, it is best
to make arrangements early in the procedure to:
-  organise the opening of tenders
-   organise the evaluation of tenders;
-  set  up  an  evaluation  committee  for  contracts  of  a  value  as  from  the  Directive  threshold
(see Chapter 4.7.2).
Any  specific  methods  to  be  used  in  subsequent  stages  of  the  procedure  (opening  and
evaluation)  must  be  laid  down  before  that  stage  begins.  It  is  also  strongly  advised  to  lay
down the evaluation method before tenders are opened, in order to avoid any dispute.
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The purpose of this working method for opening or evaluation is to lay down an operational
practice.  Under  no  circumstances  may  it  alter  the  rules  for  determining  whether  tenders
satisfy the requirements at the time of opening or the rules applying to evaluation.
It  is  possible,  for  example,  to  establish  a  grid  for  all  evaluators  for  marking  the  technical
aspects of  each  tender but  there can,  of  course,  be  no  question  of  altering  or  adjusting  the
criteria and weightings set out in the specifications or the contract notice.
When preparing the evaluation, it should be made clear to evaluators what principles are to
be applied to avoid confusing exclusion criteria, selection criteria and award criteria.

4.6. Opening phase
4.6.1. Opening of tenders
The contracting authority must make arrangements in advance to hold a session for opening
tenders a sufficient time after the closing date for  receipt of tenders considering that some
tenders  sent  by  post  may  arrive  after  the  closing  date  despite  being  sent  before  the  time
limit.
In the case of open procedures, tenderers or their representatives are allowed to attend the
opening of the tenders as specified in the contract notice.
If tenders arrive after the opening, a second session must be organised along the same lines
as the first. In particular, if the first session was public, the second must be public too, and
all  tenderers who submitted  tenders,  including  the  persons who  attended the  first  session,
must be invited to the second.
The  department  concerned  must  make  all  the  necessary  practical  arrangements  (book  a
sufficiently large room for a sufficient length of time, give instructions to guards on the door
in buildings, prepare a presence list, etc.).
Check here how eProcurement supports the opening of tenders.
4.6.2. Opening committee
For  all  contracts  with  a  value  as  from  the  Directive  threshold,  tenders  are  opened  by  an
opening  committee  appointed  by  the  responsible  authorising  officer. This  requirement  may
be  waived  on  the  basis  of  a  risk  analysis  when  reopening  competition  within  a  framework
contract and for negotiated procedures without prior publication of a contract notice (except
where the contract follows a design contest or for building contracts).
The  opening committee  is  appointed  by formal  decision  of the  authorising officer  using  the
model for Appointment of opening / evaluation committee.
  Check  here  how  eProcurement  supports  the  appointment  of  opening
committees.
Composition
The requirements for the opening committee are as follows:
It must be made up of at least “two persons representing at least two organisational entities
of  the  Union  institution  concerned  with  no  hierarchical  link  between  them".  The  use  of
“persons”  here  rather  than  “officials"  or  "other  servants”  means  that  seconded  national
experts or contract agents may be appointed. It can also be concluded that the members of
the  committee  can  be  chosen  from  within  the  same  directorate,  provided  they  belong  to
different units and the responsible authorising officer for the contract is at the Director level.
In  representations  and  delegations  or  in  units  isolated  in  a  Member  State,  if  there  are  no
separate  entities,  the  obligation  to  use  organisational  entities  with  no  hierarchical  link
between them does not apply.
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Duties and tasks
In  order  to  prevent  any  conflict  of  interest,  the  persons  appointed  are  bound  by  the
obligations  set  out  in  Article 61 FR.  Accordingly  each  member  of  the  opening  committee
should  sign  a  declaration  of  absence  of  conflict  of  interest  before  opening  the  tenders.  Any
member  discovering  that  he  has  a  conflict  of  interest  is  under  an  obligation  to  inform  the
authorising officer immediately.
In  the  case  of  open  procedures,  the  opening  committee  must  check  the  credentials  of  the
persons  wishing  to  attend  as  representatives  of  tenderers.  These  persons  must  sign  an
attendance list which will be annexed to the record of the opening.
The  date  of  receipt  of  each  tender  is  checked  against  the  deadline  set  in  the  procurement
documents.  In case  of  doubt,  a tenderer may be  asked  to  provide proof  of dispatch. One or
more members of the opening committee will initial the proof of the date and time of receipt
for each tender.
Tenders received before the deadline and in a closed envelope are deemed to be in order and
are opened; however, in a procedure in two steps, any tender from an operator who has not
been invited to submit a tender is rejected.
In cases where two separate envelopes are required (one for the technical offer and the other
for the financial offer) both must be opened.
Where the opening is public, the names of the operators who have submitted a tender closed
and on time are read out in the presence of the tenderers or their representatives.
If the contract is awarded based on the lowest price or lowest cost method, the prices or costs
shown in the tenders found to be in order are read out loud.
After the opening, one or more members of the committee will initial either each page of each
tender (the usual solution) or the cover page and each page of the financial  offer, in which
case the integrity of the original tender is guaranteed by any appropriate technique applied
by a department independent of the authorising department (except in the representations
and local units and where there are no separate entities).
After the opening session
It  is  not  compulsory  to  scan  full  tenders  and  register  them  in  ARES.  At  least  the  opening
record should be registered in ARES and this is sufficient. It is also important to know where
tenders are stored after opening.
Tenders  submitted  without  respecting  the  deadline  should  be  stored  or  sent  back  to  the
economic operator if requested. A written track of the return ought to be kept.
Tenders  suspected  of  not  being  in  conformity  with  the  tender  specifications  should  still  be
registered as submitted, provided they meet the two basic conditions (received before date of
receipt and integrity preserved).
4.6.3. Reasons for rejection
Since rejection of a tender for not being in order might have legal implications, it should be
borne  in  mind  that  only  the  following  conditions  count:  tenders  must  be  received  by  the
deadline and must be in a closed envelope (Article 168(3) FR).
The opening committee will under no circumstances consider the quality or completeness of
the tenders.
A tender received after the deadline must be rejected without opening it.
A tender received already open must be rejected without examining its contents.
In a procedure in two steps, any tender from a tenderer who has not been invited to submit a
tender must be considered not to be in order.
The following (nonexhaustive-) list cannot be considered grounds for rejection:
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  the tender was sent in a single envelope rather than the two envelopes required, provided
the envelope is sealed (the confidentiality of the tender has been preserved);
  only one copy of the tender was sent, instead of the three (or more) required;
  the tender combines the technical part and the financial part;
  the tender  has not used the  requested  standard  presentation;  However, the limitation of
pages is possible as long as it is applied equally to all tenderers (i.e. there is no breach of
the  equal-treatment  principle).  This  limitation  must  be  included  in  the  tender
specifications, must be applied equally to all tenderers, and must allow the candidates to
present  a  comprehensive  offer,  i.e.  the  limitation  of  pages  is  not  so  strict  that  makes  it
impossible  to  present  an  appropriate  offer  according  to  the  requirements  of  the  tender
specifications.
  certain parts of the tender are clearly missing or the tender is clearly totally unrealistic;
  the tenderer does not have access to the market (see Chapter 4.3.1.6);
If the tenderer has failed to sign the tender, the signature can be requested subsequently.
When a tender has to be rejected, the tenderer must be notified in writing. There is no formal
decision on rejection by the responsible authorising officer, the opening report is sufficient.
The responsible authorising officer must inform tenderers of the reason for rejection of their
tender immediately after the opening session. There is no standstill period.
4.6.4. Opening record
A  record  of  the  opening  of the  tenders  is drawn  up  and signed  by  the  persons  in charge  of
opening.
The record contains:
-   the names of the tenderers (specifying the name of each participating entity in the case of
a joint tender);
-   the tenders which comply or not with submission rules, giving the reasons for rejection by
reference  to  one  or  the  other  of  the  two  conditions  provided  above  (see  model  Record  of
opening of tenders);
-   in case of award on the basis of lowest price or lowest cost, the price or cost of each opened
tender.
If  a  tenderer  does  not  attend  the  opening  session  and  subsequently  requests  the  name  of
competitors, it should be provided with this information or with a copy of the opening record
(without the names of the persons in charge of the opening phase).
  Check  here  how  eProcurement  supports  the  preparation  of  the  opening
record.

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4.7. Evaluation phase
4.7.1. Evaluation of tenders
All opened tenders are evaluated. This means that all tenders for a given contract must be
read  and  evaluated  by  all  evaluators  in  order  to  guarantee  equal  treatment  and  non-
discrimination.
The evaluation is based exclusively on the exclusion, selection and award criteria set out in
the procurement documents with nothing added, removed or altered. For a description of the
criteria,  see  Chapter  4.3.1.9  to  Chapter  4.3.1.11.  For  procedures  in  one  step,  the  three
categories  of  criteria  will  be  evaluated  in  no  particular  order  or  in  a  pre-defined  order,  as
announced in the tender specifications. Compliance with the minimum requirements in the
procurement documents will also be verified.
For  procedures  in  two  steps,  the  exclusion  and  selection  criteria  will  be  evaluated  at  the
stage of evaluation of the requests to participate (see Chapter 4.5.3) and the award criteria
at the stage of the evaluation of tenders.
In order to ensure, during the evaluation of the tenders in procedures in one step, that there
is  no danger of confusion  in  application  of  the  exclusion, selection  and  award criteria,  it  is
advised to separate clearly these phases in the evaluation process and also to ensure that the
evaluators  examine  only  the  relevant  documents  for  each  phase.  The  principles  governing
the distinction between the criteria (see Chapter 4.3.1.13) also apply to evaluation.
In order to help the evaluators in their work, it may be useful to lay down a method for the
evaluation, and it is strongly recommended that this be done before the tenders are opened
in order to rule out any dispute. The method must in no way alter or adjust the criteria set in
the procurement documents.
It is important to keep timing under control and to reserve evaluation time in advance. If the
evaluation lasts for too long (i.e. several months), the validity period of tenders may elapse
before signature of the contract. In this case, the contracting authority will have to request
all  tenderers  whether  they  accept  to  prolong  the  validity  of  their  tender  (including  their
price) beyond that originally intended.
Check here how eProcurement supports the evaluation process.
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Tips for the evaluations
It  is  good  practice  for  the  authorising  officer  to  draft  an  evaluation  method  to  be
communicated  to  the  evaluators  before  tenders  are  received.  It  may  include  the  following
aspects:
-  Evaluators  should  receive,  read  and  understand  fully  the  procurement  documents
(including  possible  corrigenda,  additional  information  and  all  questions  and  answers)
before  the  evaluation  starts.  They  should  be  given  an  evaluation  schedule  (meetings,
deadlines). There is always a holiday period (Christmas, Easter or summer) to be taken into
account  when  scheduling  an  evaluation.  Details  on  organisation  should  be  provided  (e.g.
use  of  a reading room, copies  provided  to  evaluators, reading  of tenders required  prior  to
the meeting, with or without individual assessment sheets…).
- A meeting may also be organised by the authorising officer to provide details (e.g. difference
between selection and award criteria, criteria cannot be modified, tenders must be assessed
against  the  tender  specifications  but  not  compared  with  each  other,  etc.),  answer  any
questions  the  evaluators  may  have  and  clarify  their  availability  and  deadlines  for
evaluation.
- Evaluators may evaluate the technical offer without having access to the financial offer, in
order not to be influenced by the price in the technical award criteria.
- When tenders are evaluated by a committee (see Chapter 4.7.2), there should be no specific
role of the members of the evaluation committee (president, secretary, voting/non-voting…)
since this is not foreseen in the legislation.
-  Individual  assessment  sheets  may  be  provided  to  ease  and  frame  the  work  of  the
evaluators. These should be considered as working documents only. They are not part of the
evaluation report and should not be attached to it.
- Information on the use of marks should be clarified ex ante as this element depends very
much on the education system the evaluator grew up with (some evaluators would use the
whole  range  of  marks,  others  not,  the  same  mark  does  not  have  the  same  value  for  all
evaluators, and this is unavoidable in an international institution).
-  Evaluation  should  start  with  agreeing  comments  on  each  criterion  of  each  tender,  and
marks  will  follow.  It  is  always  easier  to  accept  a  modification  of  initial  comments  than
initial marks.
-  The  discussion  between  evaluators  should  enable  to  reach  a  consensus  opinion  on  each
criterion of each tender (no voting, no average!).
-  The  evaluation  report  should  be  drafted  during  the  evaluation  meetings  to  ensure
consensus on the comments. The text should also be checked to  ensure the use of neutral
language and the full coherence of the comments and marks for each tender and between
the tenders.
4.7.2. Evaluation committee
For all contracts with a value as from the Directive thresholds, tenders are evaluated by an
evaluation  committee  appointed  by  the  responsible  authorising  officer  (Article  150(2)  FR).
This requirement may be waived on the basis of a risk analysis when reopening competition
within  a  framework  contract.  It  may  also  be  waived  in  the  following  cases  of  negotiated
procedures without prior publication of a contract notice (Article 168(5) FR):
- extreme urgency (Point 11.1 (c) Annex 1 FR);
- repetition of similar services or works (Point 11.1 (e) Annex 1 FR);
- additional supplies (Point 11.1 (f) (i) Annex 1 FR);
- supplies quoted and purchased on a commodity market (Point 11.1 (f) (iii) Annex 1 FR);
- legal services (Point 11.1 (h) Annex 1 FR).
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For  the  other  cases  under  Point  11.1  Annex  1  FR  no  waiver  is  provided  as  the  evaluation
committee is considered as a safeguard to secure the evaluation.
The responsible authorising officer may decide that the evaluation committee is to evaluate
only the award criteria and that the exclusion and selection criteria are to be evaluated by
other  appropriate  means  (e.g.  one  or  two  persons)  guaranteeing  the  absence  of  conflict  of
interest.  It  is  recommended  to  use  this  set  up  because  it  alleviates  the  workload  of  the
evaluation committee and ensures strict separation between selection and award criteria. In
this  case,  the  evaluation  committee  will  not  evaluate  the  requests  to  participate  in  a
procedure in two steps.
The evaluation committee is appointed by formal decision of the authorising officer using the
model for Appointment of opening / evaluation committee.
  Check  here  how  eProcurement  supports  the  appointment  of  evaluation
committees.
The evaluation committee must be made up of at least “three persons representing at least
two organisational entities of the Union institutions with no hierarchical link between them,
at  least  one  of  which  does  not  come  under  the  authorising  officer  responsible”.  The  use  of
“persons” here rather than “officials or other servants” means that seconded national experts
or  contract  agents  can  be  members  of  the  evaluation  committee.  In  principle,  people  on
contracts  from  temporary  agencies  ("intérimaires")  can  be  members  too  but  this  is  not
recommended because they are normally within the Commission for a limited period of time
and  often  for  menial  tasks,  so  this  may  cause  problems  of  continuity  in  the  service
(evaluations  are  sometimes  long)  and  level  of  expertise.  In  addition,  they  are  often  in  fact
directly employed by private companies, and as such they, as representatives of an external
private party, would have access to internal evaluation procedures.
Members  of  the  committee  can  be  chosen  from  within  the  same  directorate,  provided  they
belong to different units and responsible authorising officer for the contract is at unit's level.
The main thing is that the two entities must be independent of each other and that one of
them  at  least  must  be  independent  of  the  authorising  officer.  The  members  can  also  come
from different institutions, not necessarily from the institution carrying out the procurement
procedure.  This  can  be  a  useful  way  to  find  experts  on  the  subject  and  should  be  used  for
appointment  of  evaluation  committee  members  on  top  of  the  minimum  requirements
required by the FR on the committee composition.
For example, as far as the appointment of a neutral member in the evaluation committee is
concerned, in the case of one director being AOD and acting director for another directorate
(or  AOD due  to  its  acting  position  in  the  other  directorate),  it  is  enough  if  members of  the
evaluation  committee  are  appointed  only  from  these  2  directorates,  no  need  to  have  an
additional one.
If  the  AOD  of  the  procedure  is  director  A  (who  happens  to  be  also  acting  director  of
directorate  B),  it  is  sufficient  that  there  is  at  least  one  member  outside  directorate  A,  this
member can even be from dir. B.
If the AOD of the procedure is director B (and acting director B is the director of directorate
A), it is sufficient that there is at least one member outside directorate B, this member can
even be from dir. A.
If the AOD of the procedure is director A (and also acting director of directorate B (due to its
acting position in the other directorate), it is enough if members of the evaluation committee
are appointed only from these 2 directorates, no need to have an additional one.
In  cases  where  there  are  no  separate  entities  (e.g.  in  representations,  delegations,  unit
isolated in a MS, etc.), the obligation to use organisational entities with no hierarchical link
between them does not apply.
In the case of interinstitutional procurement, the evaluation committee will be appointed by
the authorising officer from the institution responsible for the procedure and its composition
will reflect, as far as possible, the interinstitutional character of the procedure.
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The evaluation committee may be made up of the same members as the opening committee
(if  any).  However,  it  is  not  recommended  because  the  evaluation  requires  expertise  in  the
subject  of  the  purchase,  whereas  opening  of  tenders  is  a  formal  procedure  requiring  no
particular expertise.
In order to prevent any conflict of interest, the evaluation committee members are bound by
the obligations set out in Article 61 FR. Accordingly, each member should sign a declaration
before  evaluating  the  tenders  (see  the  declaration  of  absence  of  conflict  of  interest  and
confidentiality).
The  authorising  officer  must  ensure  appropriate  means  guaranteeing  the  absence  of  any
conflict of interest to evaluate the exclusion and selection criteria if that responsibility was
not given to the evaluation committee. In practice the evaluators designated should also sign
the declaration of absence of conflict of interest and confidentiality.
There may be other persons present at the meetings of the committee such as an observer
who checks that the procedure is followed according to the rules. This function of observer is
part of management supervision to ensure that the implementation of activities is running
efficiently  and  effectively  while  complying  with  applicable  provisions  (see  Internal  Control
Principle 10). An observer is not appointed as member of the evaluation committee and does
not  evaluate  tenders.  Additionally,  the  observer's  activities  are  not  documented  in  the
evaluation report but reported in the context of internal control activities. An AOD may also
decide to appoint a chairperson or a secretary in the evaluation committee. The chairperson
may  be  appointed  as  a  guarantor  of  the  legality  and  conformity  of  the  procedure.  The
appointment  of  a  chairperson  or  a  secretary  is  not  mandatory,  since  there  is  no  legal
obligation under the FR or the CIR regulation31. If appointed by the AOD, the chairperson or
secretary is not considered to be a voting member of the evaluation committee but does have
the  obligation  to  sign  a  declaration  on  confidentiality  and  non-conflict  of  interest.  The
chairperson or secretary (who is therefore, not a member of the evaluation committee) is not
considered when checking the requirements of Article 150 FR. Other administrative support
staff (handling correspondence with tenderers, preparing evaluation documents, helping on
formal aspects of the evaluation, etc.) are not evaluators as such and should not be appointed
as members either.
The  committee  gives  an  advisory  opinion,  and  it  is  for  the  authorising  officer  to  take  the
decision. If the decision diverges from the committee’s opinion, the exclusion, selection and
award criteria must still be complied with.
For further information on conflict of interest see Chapter 1.6.
4.7.3. External experts in evaluation
External experts are persons not working for the contracting authority that may assist with
the  evaluation.  They  are  appointed  ad  personam  by  decision  of  the  authorising  officer
responsible. They must therefore be natural persons (see Chapter 1.5.3).
It  is  however  possible  to  contract  the  services  of  external  experts  under  a  framework
contract, provided the framework contract covers this type of tasks. The experts may be staff
of  the  contractor  or  sub-contractors.  It  does  not  matter  whether  the  experts  providing
services  under  existing  contracts  are  delivering  them  extra  muros  or  intra  muros,  because
they  are  considered  as  outside  experts  in  the  meaning  that  they  are  not  employed  by  the
contracting authority.
When  external  experts'  services  are  contracted  under  a  framework  contract,  the  tasks  are
performed under the responsibility of the contractor and the payment of the services is made
to  the  contractor  according  to  the  provisions  of  the  contract.  The  authorising  officer
responsible  must  ensure  that  these  external  experts  satisfy  the  obligations  concerning

31  Regulation  (EU)  No  236/2014  of  the  European  Parliament  and  of  the  Council  of  11  March  2014
laying  down  common  rules  and  procedures  for  the  implementation  of  the  Union's  instruments  for
financing external action
127

conflict  of  interests  and confidentiality.  For this  purpose,  each external  expert must sign  a
declaration of non-conflict of interests as well as a code of conduct. These must be attached to
the  specific  contract  concluded  with  the  contractor  under  a  framework  contract  or  to  the
expert's contract if there is no framework contract involved.
External  experts  are  not  members  of  the  evaluation  committee.  Therefore  they  should  not
participate  in  the  meetings  of  the  committee  (except  on  request  of  the  evaluators  for
clarifying their opinion if necessary) and cannot be involved in the drafting of the evaluation
report. The role of external experts is to provide an opinion in writing about all the tenders
received,  but  limiting  their  opinion  to  their  field  of  expertise.  External  experts  do  not  sign
the evaluation report including the award recommendation by the committee.
For further information see the Interpretative note on remunerated external experts.
4.7.4. Contacts with tenderers
After  the  tenders  have  been  opened,  contacts  with  tenderers  must  remain  exceptional  and
can be made only on the initiative of the contracting authority. Such contacts can take place
only in the following circumstances:
-  if  obvious  clerical  errors  in  the  drafting  of  the  tender  need  to  be  corrected  or  specific  or
technical elements require confirmation;
- to request additional information or documents  on exclusion or selection criteria.
If the tenderers contact the contracting authority, they should be reminded that they are not
allowed  to  do  so  as  indicated  in  the  invitation  to  tender,  and  no  information  on  the
evaluation results or timeline should be given. If the contact at the initiative of the tenderer
was not made in writing, it should be documented in a note to the procurement file.
In the above-mentioned situations the authorising officer or the evaluation committee should
take  the  initiative  of  contacting  the  tenderer  in  writing  exclusively,  but  any  such  contact
must in no way alter the terms of the tender. For any contact which does not take place in
writing, a “note for the file” must be produced when the contact takes place.
These contacts are laid down in Article 169 FR.
In line with good administration, it is obligatory to contact the candidates or tenderers to ask
for missing information or documents in relation to exclusion or selection criteria or missing
signatures. The absence of contact in these cases must be duly justified and documented by
note in the procurement file (Article 150 FR).
For obvious clerical errors in the tender itself, the contracting authority cannot correct them
on behalf of the tenderer without its prior written consent. The principle of equal treatment
demands  that  if  one  tenderer  is  asked  to  provide  missing  information  or  documents  or
clarifications or to correct obvious clerical errors, the same must apply to all tenderers in the
same situation. In order to avoid any problems, questions or requests sent to a tenderer must
be  very  precise:  they  must  be  purely  factual  (e.g.  request  specific  missing  documents  by
referring to the tender specifications, request confirmation about the correction of a clerical
error  in  wording  or  calculation).  Tenderers  should  not  be  given  an  opportunity  to  provide
extra  information  that  may  modify  the  technical  offer  or  the  price.  Such  contacts  should
leave a reasonable time limit for response, which should be short (e.g. 2 or 3 working days)
since all information was supposed to be included in the initial tender and the correction of
errors requires only confirmation of an obvious mistake.
The  request  should  remind  the  tenderer  that  the  tender  submitted  cannot  be  altered.
Requests for “clarification” must not lead to any amendment of the terms of the tender. This
means  that  tenderers’  replies  must  serve  solely  to  provide  the  contracting  authority  with
clarification of the elements already mentioned in the tender, without altering the content of
the tender. It should be borne in mind at this point that most doubts could be removed if the
tender  documents  contained  clear  instructions  for  tenderers,  in  particular  a  detailed
summary  of  the  different  documents  required  for  evaluation  of  the  tenders  against  the
criteria and, if applicable, a clear price schedule for the presentation of the financial offer.
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There can be no negotiation of the tenders, except in procedures where negotiation is allowed
(see Chapter 4.8). In all cases, there can be no negotiation of the procurement documents.
4.7.5. Reasons for rejection
In the opening phase, tenders are to be considered irregular and therefore rejected if they do
not comply with the requirements for submission (see Chapter 4.6.3).
In the evaluation phase, tenders must be rejected in the following cases:
Unsuitable tender
-   The tender is irrelevant to the subject of the contract;
-   The tenderer is in an exclusion situation under Article 136(1) FR;
-   The tenderer does not meet the selection criteria.
Irregular tender
-   The tender does not comply with the minimum requirements specified in the procurement
documents (this includes the case of incomplete tender); in case of negotiated procedure,
the tender may still be negotiated to bring it in line with minimum requirements;
-   The  tenderer  has  misrepresented  or  failed  to  supply  the  information  required  as  a
condition to participate in the procurement procedure (Article 141(1)(b) FR);
-   The  tenderer  was  previously  involved  in  the  preparation  of  the  procurement  documents
where  this  entails  distortion  of  competition  that  cannot  be  remedied  otherwise  (Article
141(1)(c)  FR).  Prior  to  such  exclusion,  the  economic  operator  must  be  given  the
opportunity  to  prove  that  its  prior  involvement  is  not  capable  of  distorting  competition
(see Chapter 1.6 and Chapter 4.3.1.2).
-   The price of the tender is abnormally low (see Chapter 4.7.5.1).
Unacceptable tender
The price of the tender exceeds the maximum amount set in the procurement documents or
the  contracting  authority's  maximum  budget  as  determined  and  documented32    prior  to
the launching of the procedure;
-   The  tender  fails  to  meet  the  minimum  quality  levels  for  award  criteria;  in  case  of
negotiated procedure, the tender may still be negotiated to bring it in line with minimum
levels of quality.
Depending  on  the  order  of  evaluation  of  the  three  categories  of  criteria,  the  tenderer  will
receive  feedback  on  all  criteria  evaluated  before  the  rejection  stage  (principle  of
transparency).  For  instance,  if  the  selection  criteria  have  been  evaluated  after  the  award
criteria and the tenderer is to be rejected because it does not meet the selection criteria, it
will  be  informed  of  the  ground  for  rejection  (unsuitable  tender:  tenderer  not  meeting  the
selection criteria) and will receive feedback on the evaluation of the award criteria.
In cases where the ground for rejection of the tender is not linked to the award criteria (e.g.
non-compliance with  minimum  requirements) there  is  no  evaluation  of  the  tender  as such.
The tenderer will be informed of the ground for rejection without being given feedback on the
content of the tender other than on the elements justifying the rejection.
Tenders may be rejected if tenderers do not accept the terms of contract or other conditions
contained  in  the  procurement  documents  and  seek  to  impose  their  own,  but  only  after  the
contracting authority has contacted them in writing to warn them that this is a ground for
rejection.
A  tender  which  does  not  fall  under  any  of  the  above  defined  grounds  for  rejection  is
admissible,  i.e.  it  is  ranked  according  to  the  formula  announced  in  the  procurement
documents.

32 Option applicable only when the maximum budget is published.
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To sum up:

Definition
Annex 1 FR
Reason
Unsuitable
Point 11.2
- Irrelevant tender
- Exclusion under Article 136(1) FR
- Non-selection
Irregular
Point 12.2
- Non-compliant with minimum requirements
- Received late
- Rejected  under Article 141(1)(b) and (c) FR
(misrepresentation and distortion of competition)
- Abnormally low
Unacceptable
Point 12.3
- Price above maximum
- Minimum quality level not reached
Admissible
Point 29.3
- Suitable
- Not irregular
- Not unacceptable

The above reasons for rejection and their respective legal grounds apply to all procurement
procedures.
Tenders cannot be rejected if:
  missing  information  or  documents  relating  to  the  exclusion  or  selection  criteria  can  be
requested, or obvious clerical errors can be corrected  without going beyond the contacts
authorised (see Chapter 4.7.4);
  they contain the information requested, but not on the standard form(s);
  the  price  exceeds  the  estimated  amount  indicated,  without  being  of  a  significantly
different magnitude;
   they  are  submitted  as  the  basic  tender,  complying  with  the  tender  specifications,
together with unauthorised variants (which must be rejected).
4.7.5.1. Abnormally low tenders
In  order  to  assess  whether  a  “tender  appears  to  be  abnormally  low”,  the  contracting
authority should be careful for any evidence that could raise suspicion as to the abnormally
low  character  of  a  tender.  Evidence  that  could  raise  suspicion  that  a  tender  might  be
abnormally  low  are  in  particular  the  following:  if  does  not  appear  certain  whether,  first,  a
tender complies with the legislation of the country in which the services are to be provided
regarding the remuneration of staff, contributions to the social security scheme, compliance
with occupational safety and health standards and selling at a loss and, secondly, whether
the price proposed includes all the costs generated by the technical aspects of the tender. The
same applies where the price proposed in a tender submitted is considerably less than that of
the  other  tenders  submitted  or  the  normal  market  price  or  when  there  is  a  considerable
difference between the price proposed and the estimated value of the procurement. It is also
very important to keep in mind that the contracting authority needs to be prepared to state
reasons  on  why  it  concluded  that  the  tender  does  not  appear  to  be  abnormally  low  (see
Chapter 4.12).
If the price or cost of a tender appears to be abnormally low, before rejecting tenders for this
reason  alone,  the  contracting  authority  must  request  in  writing  whatever  explanations  it
considers appropriate on the components of the tender and check, taking due account of the
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reasons given by the tenderer, whether the tender can be considered regular (Point 23 Annex
1 FR).
The explanations requested and observations provided by the tenderer could relate to:
(a)  the  economics  of  the  manufacturing  process,  of  the  provision  of  services  or  of  the
construction process;
(b)  the technical solutions chosen or exceptionally favourable conditions available to the
tenderer;
(c)  the originality of the tender;
(d) compliance of the tenderer with applicable obligations in the fields of environmental,
social and labour law;
(e)  compliance  of  subcontractors  with  applicable  obligations  in  the  fields  of
environmental, social and labour law;
(f)  the possibility of the tenderer obtaining State aid in compliance with applicable rules.
The tender may be rejected only where the evidence supplied does not satisfactorily account
for the low level of price or cost offered.
The  tender  must  be  rejected  where  the  contracting  authority  has  established  that  it  is
abnormally  low  because  it  does  not  comply  with  applicable  obligations  in  the  field  of
environmental, social and labour law.
The  tender  may  be  rejected  where  the  contracting  authority  has  established  that  it  is
abnormally low because the tenderer has obtained State aid, only if the tenderer is unable to
prove,  within  a  sufficient  time  limit  fixed  by  the  contracting  authority,  that  the  aid  in
question was compatible with the internal market within the meaning of Article 107 TFUE.
For detailed information, see Note on abnormally low tenders.

4.7.5.2. Non admissible tenders
A tender is not admissible if it is unsuitable, irregular or unacceptable (see Chapter 4.7.5).
Grounds  must  be  given  for  any  decision  to  reject  a  tender.  As  such  a,  decision  may  be
challenged it is important to define all the conditions clearly in the procurement documents.
If  no  tender  is  admissible,  the  procedure  should  be  closed  and,  if  necessary,  restarted.
Provided  the  original  procurement  documents  are  not  substantially  altered,  the  following
procedures without prior publication of a contract notice may be used:
-   a negotiated procedure where no suitable tenders were received in the initial procedure
(Point 11.1 (a) Annex 1 FR);
-   a  competitive  procedure  with  negotiation  where  no  regular  or  acceptable  tenders  were
received  in  the  initial  procedure  if  it  includes  all  and  only  the  tenderers  of  the  initial
procedure who satisfy the exclusion and selection criteria, except those who submitted a
tender declared to be abnormally low (Points 12.1 (a) and 12.4 Annex 1 FR).
See also Chapter 3.5 and Chapter 3.8.
4.7.5.3. Non-selection of tenderers
The  non-selection  of  tenderers  requires  some  caution.  First,  it  is  possible  to  eliminate
tenderers on  this  basis  if  the selection  criteria  themselves  are  very clear (for  transparency
and  equal  treatment  reasons).  Second,  it  is  compulsory  for  the  contracting  authority  to
contact  the  tenderer  to  ask  for  missing  information  or  documents  (e.g.  CVs,  financial
statements…)  before  rejection  (Article  151  FR).  This  is  for  reasons  of  proportionality
(eliminating  a  tender  because  a  document  is  missing  would  be  disproportionate)  and  good
administration. Indeed after leaving a few extra days to provide the missing information, it
will be difficult for the tenderer to contest the rejection. If the contracting authority decides
to  reject  on  the  grounds  of  selection  without  having  contacted  the  tenderer,  it  must  duly
justify it in the procurement file.
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4.7.5.4.  Professional conflicting interest
‘Professional  conflicting  interest’  means  a  situation  in  which  the  previous  or  ongoing
professional activities of an economic operator affect or risk affecting its capacity to perform
a contract in an independent, impartial and objective manner.
In  cases  where  the  contracting  authority  has  established  that  a  candidate/tenderer  has
conflicting interests33 that may affect its capacity to perform the contract in an independent,
impartial and objective manner, the candidate/tenderer may be rejected for not meeting the
selection criteria of technical and professional capacity.
The following two conditions should be fulfilled before rejecting a candidate/tenderer under
the above grounds.
A)  The  tender  specifications34  must  include  as  part  of  the  selection  criteria  a  requirement
that all involved entities must not be subject to professional conflicting interests, which may
negatively affect the contract performance.
B) In case of rejection, the notification letter sent to a candidate/tenderer should state in a
clear  and  unequivocal  way  the  reason(s)  of  the  decision.  This  is  in  order  to  allow  the
candidate/tenderer to verify whether the decision is well founded and enable them to defend
their rights.
This  conflicting  interest  is  different  from  the  situation  where  contractor  involved  in  the
preparation of procurement documents can be rejected from the subsequent procedure if its
participation  entails  a distortion  of  competition  that  cannot  be  remedied  otherwise  (Article
141(1)(c) FR).
For more information on conflict of interests in procurement, see Chapter 1.6.
Evaluation and consequences of professional conflicting interest
During the evaluation phase (selection procedure)
When  foreseen  in  the  tender  specifications,  the  presence  of  conflicting  interests  shall  be
examined  by  the  evaluation  committee  based  on  the  statements  made  by  the
candidates/tenderers  through  the  Declarations  on  Honour  and,  where  applicable,  the
commitment letters signed by identified subcontractors. For contracts where the impartiality
of the contractor is of importance due to their subject matter (e.g. where contract deliverables
have an impact on policymaking), it is recommended to assess the absence of such interests,
on the basis of specific information to be provided by the tenderers / candidates in their offer,
as  requested  in  the tender  specifications.  For example,  depending  on  the  subject  matter  of
the call for tenders, the following specific information may be requested.
  The group or mother company to which the tenderer belongs.
  Subsidies received for actions in the sector of the call for tenders.
  Other  contracts  implemented  in  the  same  sector  or  other  business  activities  in  the
same sector.
  Information on the staff executing the contract: a list of projects (related to the policy
area/subject  matter  of  the  call  for  tenders)  with  their  corresponding  economic
operators for which they have worked.

33 Examples of such conflicting interests are provided in Chapter 1.6, paragraph 4.
34 See tender specifications model published in BUDGpedia.
132

However,  if  specific  information  had  not  been  foreseen  in  the  tender  specifications,  but
doubts arose regarding a potential conflicting interest, the AOD could still request additional
information or clarification, within the limits of Article 151 FR.
It  is  for  the  authorising  officer  who  knows  best  his/her  sector  of  activity  to  include  all
necessary  requirements  in  the  tender  specifications,  in  order  to  be  able,  at  the  tender
evaluation stage, to properly exclude the existence of professional conflicting interests.
It  is  possible  to  define  in  the  tender  specification  objective  criteria  considered  as  a
professional conflicting interest. For instance, it is possible to request that an auditing firm
should not have had any contracts with the auditee for the last X years. Since it is impossible
to  cover  all  possible  situations,  this  objective  criteria  should  not  be  written  in  a  way  that
would exclude other potential situations regarding professional conflicting conflict.
The tender specifications should clearly demonstrate how the requested information is linked
to  the  verification  of  the  compliance  with  the  selection  criteria  whilst  respecting  the
procurement  principles  (e.g.  increased  competition,  proportionality).  In  other  words,  the
requested  information  should  be  relevant  for  the  assessment  of  potential  conflicting
interests.
The  evaluation  committee  should  take  into  consideration  the  following  elements35  while
assessing the existence of professional conflicting interests.
-  The  conflicting  interest  does  not  necessarily  have  to  exist  at  the  time  the  contracting
authority  takes  its  decision  to  award  the  contract.  An  actual  risk  of  conflicting  interest,
already present at the stage of the award of the contract, is sufficient to exclude a tenderer.
A  finding  that  there  is  a  serious  risk  of  a  conflicting  interest  'in  the  future'  (when  the
contract is to be performed) is to be considered as an actual risk of conflicting interest in the
context of the award of the contract. Therefore, the contracting authority will have to assess
the potential risk as indicated below.
- It is required that the risk of conflicting interest is real and not hypothetical – that is, “the
risk  must  actually  be  found  to  exist,  following  a  specific  assessment  of  the  tender  and  the
tenderer’s  situation,  for  that  tenderer  to  be  excluded  from  the  procedure.  The  mere
possibility of a conflicting interest cannot suffice for that purpose”36.
-For  the  award  of  multiple  framework  contracts  the  existence  of  professional  conflicting
interests  compromising  the  independence  and  objectivity  of  experts  have  to  be  established
vis-à-vis  the  majority  of  potential  assignments  to  be  performed  under  the  framework
contract.  If  such conclusion  cannot  be  reached  before  the  award  of the  multiple  FWCs,  the
existence  of  professional  conflicting  interests  should  be  checked  again,  on  a  case-by  case
basis, before the award of each specific contract and if necessary, during the performance of
the contract. Both the Contracting Authority and the contractor are obliged to detect, inform
and avoid such situation before concluding a specific contract and during the performance of
FWC and / or specific contract.
For  instance,  if  a  FWC  for  auditing  grant  beneficiaries  (the  specific  beneficiary  having  not
yet been selected for audit) is signed with contractor X (an auditing firm), it is impossible at
the stage of the award of the FWC to know if such contractor has a professional conflicting
interest with each potential grant beneficiary.
In cases where the conflicting interest cannot be established in relation to the entire FWC
but  only  in  relation  to  some  envisaged  specific  contracts,  the  AOD  may  not  exclude  the

35 See case T-195/05 Deloitte Business Advisory NV vs Commission
36 T‑195/05, Deloitte Business Advisory NV v. Commission §67
133

tenderer / candidate at this stage and should offer them the opportunity to set up acceptable
solutions to mitigate or avoid such conflicting interest (see below).
-The  evaluation  should  propose  the  rejection  of  the  tenderer  when  in  view  of  the  subject
matter of the contract, there are serious and reasonable doubts that the impartial and object
performance  of  the  contract  would  be  compromised.  It  should  be  noted  that  the  concept  of
“conflicting  of  interests”  is  objective  in  nature  and,  in  order  to  characterize  it,  it  is
appropriate to disregard the intentions of those concerned, in particular whether they acted
in good faith”37.
At  the  stage  of  the  evaluation  of  the  tender  procedure,  the  rejection  of  a  tenderer  or
candidate for not meeting the selection criteria does not need to be subject to a prior formal
adversarial procedure. However, and unless the case is obvious and could not be subject to
interpretation  (for  instance  when  the  objective  criteria  laid  down  in  the  technical
specifications are not met) , it is still recommended to request additional information (and/or
clarifications)  from  the  tenderer  /  candidate  in  order  to  have  all  elements  at  disposition  to
assess the presence or absence of such conflicting interests.
If so, tenderers should be given the opportunity to demonstrate measures they might propose
to  avoid/mitigate  such  conflicting  interests  provided  that  it  does  not  modify  the  essential
elements  of  the  offer.    For  instance,  if  one  employee  of  the  contractor  has  a  conflicting
interest, the candidate could offer to set-up a “Chinese wall” and entrust the contract to other
employees not directly subordinated to him or her, without altering the price or quality of the
services.  However, such possibility should not be offered when the contractor knew or should
have known, at the time of submitting the tender,  that he had or would have a professional
conflicting interest. In these cases, either the contractor should abstain from participating or
should have declared and proposed the mitigating measures already from the beginning (in
its  offer).    In  addition,  such  situation  could  lead  to  a  rejection  of  the  offer  based  on  article
141.1.b FR (misrepresentation or failure to supply information) – in addition to the fact that
it may be considered as modifying the essential elements of the offer.
Where  the  tenderers  include  in  their  tenders  sufficient  information  regarding  possible
measures adopted to resolve possible conflicting interests, the contracting authority will have
to  assess  those  measures  and  more  specifically  to  what  extend  they  are  adequate  in
addressing  the  issue  and  they  provide  assurance  that  the  conflicting  interests  could  be
avoided/eliminated.
At the time of awarding a specific contract
When  awarding  a  framework  contract,  account  must  be  taken  of  the  fact  that  specific
contracts will later be awarded.
The conclusion of specific contracts should also be subject to a check of conflicting interests
(in accordance with Article II.7 of the model contracts) both by the Contracting Authority as
well as by the contractor. The contractor is bound during the performance of the framework
contract  to  avoid  such  situation  (and,  if  not  possible,  to  detect  and  inform  the  Contracting
Authority  about  the  occurrence  of  any  conflicting  interest).  Again,  mitigating  or  avoiding
measures should be envisaged as first solution.
At the time of awarding a specific contract, the AOD should inform and invite the contractor
to present its observations. In any case, additional information and/or documents as well as
any  mitigation  measures  (that  the  contractor  could  have  put  into  place)  should  also  be
requested.

37  See Case T‑415/10, Nexans France § 115
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Sometimes the only possible solution may be not to sign that specific contract – which may
justify  to  activate  the  cascade  (in  case  of  multiple  framework  contracts)  or  to  launch  a
negotiated procedure to find another contractor to carry out that specific contract.  As long as
the contractor has not acted in bad faith on this matter, such professional conflicting interest
should not be considered as a contractual fault and shall not be used as a reason to terminate
the framework contract.
During the performance of a contract or a specific contract
The  requirement  for  absence  of  professional  conflicting  interests  also  applies  during  the
performance of the contract. In fact, it may happen that such professional conflicting interest
only  appears  during  the  performance  of  the  contract  (e.g.  the  contractor  is  acquired  by  a
firm).
More specifically, the contractor’s obligations in that respect are set out in Article II.7 of the
model  contracts.  Furthermore,  Article  II.18.1  (h)  of  the  model  contracts  refers  to  the
possibility of terminating the contract if a contractor is in a situation that could constitute a
professional conflicting interest. Should such situation arise or should the authorising officer
have any suspicion of existence of professional conflicting interests, he/should take any of the
actions  referred  to  in  article  II.7.2  of  the  contract  and  ultimately,  initiate  a  contradictory
procedure to terminate the contract if he/she comes to the conclusion that the contractor is
indeed in a situation that could constitute a professional conflicting interest.
If the conflicting interest only affects a specific contract, the principle of proportionality calls
for the termination of such specific contract not of the framework contract– provided that the
contractor has acted in good faith.
4.7.5.5. Rejection from a given procedure
A contract for a given procedure may not be awarded to economic operators who:
–   are in one of the situations leading to exclusion defined in (Article 136 FR) (see Chapter
4.3.1.9 Exclusion criteria).
–  have misrepresented the information required by the contracting authority as a condition
for participating in the procedure or failed to supply this information;
–  were previously involved in the preparation of procurement documents where this entails
distortion of competition that cannot be remedied otherwise (see Chapter 1.6 and Chapter
4.3.1.2).
In  the  case  of  misrepresentation  in  supplying  the  required  information,  the  candidate  or
tenderer  is  not  required  to  submit  any  specific  evidence.  The  authorising  officer  or  the
evaluation  committee  must  check  that  the  information  provided  is  complete  in  the  light  of
the requirements of the procedure and, if necessary, identify any false statements. Rejection
from  the  given  procedure  on  this  ground  may  have  serious  consequences  for  the  operators
concerned  as  it  may  result  in  administrative  and  financial  penalties  based  on  grave
professional misconduct (Article 136(1)(c)(i) FR).
4.7.6. Consultation of the early detection and exclusion system
The  contracting  authority  is  required  to  consult  the  early  detection  and  exclusion  system
(EDES) when checking exclusion criteria, before taking an award decision and before signing
a contract.
The check in the EDES must cover intended contractors, the legal entities involved in a joint
tender  and  possibly  envisaged  subcontractors  depending  on  the  risk  assessment  connected
with  subcontracting  (taking  into  account,  for  example,  the  value  of  the  part  to  be
subcontracted  and  the  principal/ancillary  character  of  the  services/supplies/works).  It  also
applies  to  the  decision  on  authorisation  of  the  subcontracting  to  be  taken  during
implementation  of  the  contract.  The  obligation  to  consult  the  EDES  may  also  extend  to
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natural persons with powers of representation, decision-making or control over the entities
concerned, particularly in case of doubt on one of these persons.
For more information see Early Detection and Exclusion System (EDES).
4.7.7. Evaluation report
A report on the evaluation of exclusion, selection and award criteria and ranking of tenders
must  be  drawn  up,  dated  and  signed  by  all  the  evaluators  if  no  evaluation  committee  was
appointed or all members of the evaluation committee (and persons evaluating the exclusion
and  selection criteria  if  those roles  are separate).  It  must  be kept for  future reference.  For
procedures  in  two  steps,  a  separate  evaluation  report  will  be  drawn  at  the  stage  of  the
evaluation of respectively the requests to participate and the tenders.
The evaluation should contain at least the:
–  working method of the evaluation (e.g. date of meetings);
–  name and address of the contracting authority;
–  the subject of the contract or framework contract;
–  names of candidates or tenderers rejected from the procedure based on Article 141 FR (see
Chapter 4.7.5.5) or by reference to the selection criteria ;
–  tenders rejected and the reasons for their rejection by reference to:
  (i)  non-compliance  with  the  minimum  requirements  set  in  the  procurement
documents;
  (ii) not meeting the minimum quality levels;
  (iii) tenders found to be abnormally low;
–  names of the candidates and tenderers that passed the exclusion criteria;
–  names of the candidates and tenderers selected;
–  tenders to be ranked with the scores obtained and their justification;
–  name of the contractor proposed and reasons for this choice and, if known, the proportion
of the (framework) contract that the contractor intends to subcontract;
–  value of the contract or maximum value of the framework contract.
In the case of a joint tender or request to participate, the report must indicate the name of
each participating entity.
As  the  record  serves  as  a  reference  for  the  subsequent  stages  of  the  procedure  and  in  the
event of a dispute, its content should be exhaustive and provide all relevant details. Indeed,
the  final  evaluation  report  signed  by  all  members  of  the  committee  is  the  only  document
providing grounds for the outcome of the evaluation and justifying the award decision by the
responsible  authorising  officer.  No  other  justification  can  be  provided  a  posteriori.  In
particular, precise and adequately developed arguments must be set out for cases of rejection
(see Chapter 4.7.5) and for the marks and comments given for the technical quality of each
tender when quality award criteria are applied (including when quality thresholds have been
set and were not reached).
For  the  comments  on  the  award  criteria,  which  will  be  the  only  feedback  provided  to
tenderers, it is recommended to:
–  not just describe the tender, but actually comment on the quality of the content;
–  make  factual  and  precise  reference  to  parts  of  the  tenders  where  relevant  and  in
particular  for  cases  leading  to  rejection  of  the  tender  (e.g.  non-compliance  with  the
minimum requirements or quality below the minimum level set);
–  pay attention to the relevance of comments (e.g. no confusion between selection and award
criteria,  comments  relating  only  to  aspects  covered  by  the  criteria);  for  instance  avoid
using words such as "CVs, profile, qualification, skill, experience, expertise, knowledge of
the subject, technical capacity, reference to previous projects…" since these clearly refer to
selection criteria; also avoid inappropriate or irrelevant comments such as appreciation of
the performance of previous contracts;
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–  cross-check  the  consistency  of  comments  and  marks  not  only  for  each  tender  but  also
across different tenders (guarantee of equal treatment);
–  if  individual  evaluation  sheets  have  been  used,  these  should  not  be  kept  after  the
evaluation is concluded and in any case not attached to the evaluation report, because the
report  is  based  only  on  the  consensus  of  the  evaluation  committee,  and  individual
members may change their mind during the evaluation process.
The  evaluation  report  is  a  document  accessible  to  the  public  after  the  signature  of  the
contract (see Chapter 4.12). For this reason too, special attention should be given to careful
preparation of the report.
In  some  cases  the content  of  the  evaluation  report  and the  award  decision  may  be  merged
into a single document signed by the responsible authorising officer (see Chapter 4.9).
See the model evaluation report.
4.8. Negotiation phase
In  the  case  of  procedures  involving  negotiation  (competitive  procedure  with  negotiation,
negotiated procedures for middle and low value contracts, negotiated procedure without prior
publication  of  a  contract  notice  and  innovation  partnership),  the  contracting  authority
negotiates the proposed price(s) in order to obtain a lower price and/or the received technical
tenders in order to improve their content to adapt them to the requirements set out in the
procurement documents.
The negotiation may not modify the minimum requirements and the criteria specified in the
procurement documents. A contrario, what is not defined as minimum requirements in the
tender specifications may be negotiated. It is necessary to clearly announce these minimum
requirements  ex  ante  in  the  procurement  documents,  in  particular  concerning  contractual
provisions  (some  may  be  open  to  negotiation,  e.g.  intellectual  property  rights),  technical
aspects, etc.
In practice, the negotiation consists in providing feedback to each tenderer on the evaluation
of its initial tender, indicating elements not compliant with the minimum requirements and
other  aspects  which  should  or  could  be  improved.  The  tenderer  may  of  course  improve
aspects  not  raised  in  the  feedback  when  submitting  a  revised  tender.  The  feedback  should
never contain elements of comparison with the other tenders.
There is no limit as to the number of rounds of negotiation. The effort and resources should
be proportionate to the subject and value of the contract (sound financial management).
During  the  negotiation  the  contracting  authority  must  ensure,  that  tenderers  are  treated
equally.  The  contracting  authority  must  not  discriminate  by  supplying  information  that
could be of more benefit to some tenderers than to others.
After  receipt  of  the  tenders,  the  contracting  authority  may  arrange  for  the  negotiated
procedure to take place in stages in order to reduce the number of tenders to be negotiated,
by  applying  the  award  criteria  set  out  in  the  procurement  documents.  This  consists  in
evaluating  the  received  tenders  (in  a  second  round)  and  rejecting  those  below  the  pre-
announced quality thresholds; tenders above thresholds are invited to negotiate further. The
contract notice or the tender specifications must stipulate the use of this option.
The  contracting  authority  must  inform  tenderers  who  are  not  in  an  exclusion  situation,
whose  tender  is  compliant  with  the  procurement  documents  and  who  make  a  request  in
writing, of the progress of negotiation. Such information should not prejudice the legitimate
commercial interest of tenderers or distort fair competition between them.
The  contract  may  be  awarded  on  the  basis  of  the  initial  tender  without  negotiation  if  this
possibility was indicated in the procurement documents.
  Check  here  how  eProcurement  supports  the  submission,  opening  and
evaluation of revised tenders in negotiated procedures.

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4.9. Award decision
After  the  evaluation  has  been  completed  and  the  evaluation  report  has  been  produced,  the
authorising  officer  responsible  draws  up  the  reasoned  award  decision  (Point  30.3  Annex  1
FR).
The award decision must contain at least:
-  an approval of the evaluation report (see Chapter 4.7.7);
-   the name of the chosen contractor and the reasons for that choice by reference to the pre-
announced selection and award criteria, including where appropriate the reasons for not
following the recommendation provided in the evaluation report;
-   value of the contract or maximum value of the framework contract;
-   circumstances justifying the use of a competitive procedure with negotiation, a negotiated
procedure  without  prior  publication  of  a  contract  notice  or  a  competitive  dialogue;  in
particular, the award decision must duly justify the use of the negotiated procedure for a
contract that can be awarded only to a particular economic operator (Point 11.1 (b) Annex
1  FR)  (see  Chapter  3.8),  since  the  award  of  the  contract  may  be  challenged  if  the
conditions are not fulfilled;38
-   where  appropriate,  the  reasons  why  the  contracting  authority  has  decided  not  to  award
the contract.
The  award  decision  is  a  formal  instrument  (see  the  Model  award  decision)  by  which  the
authorising  officer  takes  responsibility  for  the  choice  of  contractor,  following  the
recommendation indicated in the evaluation report, whatever the value of the contract. If, for
duly  justified  reasons,  the  authorising  officer  does  not  follow  the  recommendation  of  the
evaluation  committee,  he/she  must  decide  how  to  proceed  further  (request  the  evaluation
committee to review its recommendation, appoint a new evaluation committee, etc.).
In the case of an inter-institutional procurement procedure, the award decision is taken by
the contracting authority responsible for the procedure.
In the case of contracts with lots, the award decision may cover all lots or only some of them,
if some of the lots have been evaluated faster. Also, if one lot has been cancelled, this can be
done independently from the pursuit of the procedure for other lots.
The  responsible  authorising  officer  may  merge  the  content  of  the  evaluation  report  and
award decision into a single document and sign it in the following cases:
-   for procedures for contracts of a value below the Directive thresholds where only one
tender was received;
-   when  reopening  of  competition  within  a  framework  contract  where  no  evaluation
committee was nominated;
-   for  the  following  cases  of  negotiated  procedures  without  prior  publication  of  a  contract
notice where no evaluation committee was nominated:
- extreme urgency (Point 11.1 (c) Annex 1 FR)
- repetition of similar services or works (Point 11.1 (e) Annex 1 FR).
- additional supplies (Point 11.1 (f)(i) Annex 1 FR)
- supplies quoted and purchased on a commodity market (Point 11.1 (f)(iii) Annex 1 FR)
- legal services (Point 11.1 (h) Annex 1 FR)


38 See Judgment of the Court of Justice of 11 September 2014, Fastweb, C-19/13.

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4.10. Cancellation of procedure
It may happen that the contract or framework contract is not awarded because no tenders or
no admissible tenders (see Chapter 4.7.5.2) were received, or that the needs giving rise to the
procurement become obsolete due to a change of political priority.
In this case the procedure must be cancelled. Cancellation of the procedure can take place up
until signature of the contract (Article 171 FR).
Candidates or tenderers must always be informed as soon as possible if it is decided, in the
course of the procedure, to cancel it. Reasons must be given, and means of redress must be
provided too. This is indicated in the model notification letters.
If the procedure is cancelled after tenders or requests to participate have been received but
before opening, it is good practice to send them back to the candidates or tenderers.

4.11. Notification of the outcome of the procedure
4.11.1. Information letter
The  contracting  authority  must  inform  candidates  and  tenderers,  simultaneously  and
individually,  by  electronic  means  of  decisions  reached  concerning  the  outcome  of  the
procedure as soon as possible at the following stages (Article 170(2) FR and Point 31 Annex 1
FR):
-
after  the  opening  phase  for  requests  to  participate  received  after  the  deadline  for
procedures in two steps;
-
after the opening phase for tenders received after the deadline or received already open
for procedures in one step;
-
after  the  selection  phase  for  candidates  who  failed  to  meet  the  exclusion  and  selection
criteria for procedures in two steps;
-
after  the  award  decision  for  all  procurement  procedures  and  for  the  award  of  specific
contracts  with  reopening  of  competition,  specifying  in  each  case  the  grounds  for  the
decision.
It is recommended to include the full reason motivating the decision (marks and comments
per  criterion,  final  score  and  ranking  of  the  tender  concerned  exactly  as  written  in  the
evaluation report) in order to avoid that the tenderer requests more details later on.
The information provided to the successful tenderer must specify that the decision notified
does not imply any commitment on the part of the contracting authority.
As from the Directive thresholds, before the award decision and the notification letters, the
Contracting Authority should require the successful tenderer to submit, within a given time
limit, evidence that it is not in exclusion situation and evidence of selection if not requested
before,  as  stated  in  the  ESPD  or  declaration  on  honour  (see  Chapter  4.3.1.18  and  Chapter
4.3.1.19).  The  evidence  submitted  should  be  checked  before  the  adoption  of  the  award
decision.
In  order to  save  time,  the draft contract  for signature may  be  attached  as a pdf file  to  the
electronic notification, indicating to the future contractor to print it and sign it in two copies
without making any changes and send them back to the contracting authority (see Chapter
4.13).  At  reception,  the  contracting  authority  should  check  that  the  contract  has  not  been
modified before signature by the authorising