WRITTEN QUESTION E-1644/97 by Marlies Mosiek-Urbahn (PPE) to the Commission (14 May 1997)

Subject: Public invitations to tender by EU authorities

1. To what extent are the conditions in public invitations to tender by the EU authorities binding?

2. After a contract has been awarded, under what circumstances may conditions still be altered by the tenderer or the EU authority, and on what legal basis?

3. At what point must an entirely new invitation to tender be issued?

4. Where a public invitation to tender has been drawn up and is subsequently amended, what account is taken of specific market data or of prior studies of the invitation to tender's impact on the market, in order to avoid market distortions?

5. Where public invitations to tender are issued and in the event that these are subject to change, are the tenderers liable to evaluation by independent experts with a view to establishing their fitness?

6. Where the EU authority pays in kind and the tenderer has insufficient capacity to take up and utilize such payment, can the balance be claimed subsequently when the tenderer is in such a position? If so, until when?

7. Is the tenderer free to decide whether he will use payment in kind for his own purposes or offer it for sale on the free market at a price fixed by himself?

Answer given by Mr Liikanen on behalf of the Commission (16 July 1997)

1. With regard to public procurement and invitations to tender, the EU authorities must act in accordance with the provisions of the Financial Regulation of 21 December 1977 ((OJ L 356, 31.12.1977. )) and of Regulation (Euratom, ECSC, EC) No 3418/93 of 9 December 1993 ((OJ L 315, 16.12.1993. )) laying down detailed rules for the implementation of certain provisions of the Financial Regulation, which distinguish between contracts awarded for the institutions' own requirements (Title IV, Article 56 et seq.) and contracts financed under the heading of external aid, which are governed by special provisions under Title IX, Article 105 et seq.

The rules governing the awarding of public supply, works and services contracts awarded under Title IV of the Financial Regulation can be summed up as follows: in the case of contracts which exceed a certain amount, Community institutions must comply with the obligations set out in the Council Directives coordinating procedures for awarding public contracts (Directive 92/50/EEC for public service contracts ((OJ L 209, 24.7.1992. )); Directive 93/36/EEC for public supply contracts ((OJ L 199, 9.8.1993. )) and Directive 93/37/EEC for public works contracts (4)), in the same way as must Member States. Each institution has an Advisory Committee on Procurement and Contracts (CCAM) to ensure that the rules have been adhered to before a final decision is taken.

The tender specifications are normally accompanied by a model contract. Contracts are usually governed by the general terms and conditions applicable to contracts, unless there are special clauses, which must be mentioned separately.

There is also a specific general clause stipulating that the submission of any tender implies acceptance of the general terms and conditions, whereby the tenderer waives his/her own terms of business.

The Commission and the Council must also act in accordance with the provisions of the World Trade Organisation Agreement on government procurement, adhering to the conditions laid down in the agreement in relation to the type of contracts concerned.

2. and 3. In principle, neither the tender specifications nor the contractual conditions may be altered after the contract has been awarded without a new call for tenders being published. However, in very exceptional cases the awarding authority may request additional services that were not originally part of the project and are not mentioned in the first contract concluded.

For amounts below the threshold for the application of the Directives, Article 59 of the Financial Regulation stipulates the conditions for the use of the private treaty procedure (when additional services cannot be separated from the main contract). In the case of public procurement contracts for amounts above the Directive threshold, Articles 11(3)(e) (92/50/EEC), 6(3)(e) 93/36/EEC and 7(3)(d) (93/37/EEC) set out the conditions for the use of a negotiated procedure (when additional services cannot be technically or economically separated from the main contract without great inconvenience to the contracting authorities or when such services, although separable from the performance of the original contract, are strictly necessary for its completion).

It should be noted that the value of the additional services must not exceed 50% of the value of the main contract. Anything above that limit must be subject to a new invitation to tender.

The above exceptions must be interpreted in a very narrow sense, with competitive bidding being the rule.

4. In principle, no study into the impact of an invitation to tender on the market is carried out prior to issuing the invitation.

However, Article 112 of the implementing Regulation stipulates that the Advisory Committee on Procurement and Contracts can make recommendations on general procurement policy within or outside the Community or can have the necessary investigations and studies carried out.

5. The suitability of tenderers is evaluated with the aid of award criteria that must be included in the contract notice and the tender specifications. There is no provision in the Regulation for precise rules covering organisational aspects of the evaluation, which in practice is carried out by a committee of officials. The involvement of several units or services is recommended (see Vade-mecum of the Commission's Advisory Committee on Procurement and Contracts).

The award criteria are assessed on a yes/no basis (yes = the tenderer satisfies the criterion or no = the tenderer does not satisfy the criterion).

6. and 7. These two questions are redundant, since Community institutions do not make payment in kind for contracts under Title IV of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (contracts other than external aid).