Proposal for a Council Decision on the position to be adopted by the Community in the ACP-EC Council of Ministers regarding the implementation of Articles 28, 29 and 30 of Annex IV to the Cotonou Agreement
Date: 2002-04-12
Institutions: European Commission
Subjects: ACP-EU Council of Ministers, European Development Fund, agreement (EU), award of contract, cooperation policy

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Proposal for a Council Decision on the position to be adopted by the Community in the ACP-EC
Council of Ministers regarding the implementation of Articles 28, 29 and 30 of Annex IV to the
Cotonou Agreement

(2002/C 291 E/02)

COM(2002) 183 final

(Submitted by the Commission on 12 April 2002)

EXPLANATORY MEMORANDUM

Articles 28, 29 and 30 of Annex IV to the ACP-EC Partnership Agreement signed in Cotonou on 23 June
2000 provide for the ACP-EC Council of Ministers to adopt a number of decisions in connection with the
implementation of contracts financed by the European Development Fund.

1. General regulations for contracts

Article 28 of Annex IV to the Cotonou Agreement provides that the award of contracts financed from
the resources of the European Development Fund shall be governed by Annex IV and the procedures to
be adopted by decision of the Council of Ministers following a recommendation by the ACP-EC
Development Finance Cooperation Committee. These procedures must comply with the provisions of
Annex IV and the Community's procurement rules for cooperation with third countries.

On 10 November 1999 the Commission adopted a Manual of Instructions for contracts concluded in
the line of Community cooperation with third countries. It covers service, supply and works contracts
and establishes simplified contract award procedures applicable to all Community cooperation
programmes with third countries except — initially — contracts financed by the European Devel-
opment Fund.

With the exception of some Articles in Annex IV, which implement specific aspects of the ACP-EC
partnership (e.g. preferences and emergency aid contracts), the provisions of Annex IV broadly resemble
those of the Manual.

As required by the said Article 28, the proposed new general regulations submitted to the ACP-EC
Council of Ministers therefore comply with both the Manual and the specific requirements of the
ACP-EC partnership set out in other Articles of Annex IV. The regulations may be revised to ensure
they are consistent with the rules applicable to other external Community cooperation
that
programmes whilst at the same time taking account of the particular nature of the ACP-EC partnership.

2. General conditions applicable to all contracts

Article 29 of Annex IV to the Cotonou Agreement provides that performance of works, supply and
service contracts financed from the resources of the European Development Fund shall be governed by
the general conditions applicable to contracts financed by the Fund which shall be adopted by decision
of the Council of Ministers upon the recommendation of the ACP-EC Development Finance Coop-
eration Committee.

By its Decision No 3/90 of 29 March 1990, the ACP-EC Council of Ministers adopted general
conditions for works, supply and service contracts financed by the European Development Fund.
They have been used since then to the satisfaction of the ACP States, the Commission and traders.

On the basis of these general conditions for EDF contracts, the Commission then drew up general
conditions for works, service and supply contracts financed by the European Community. They apply to
all cooperation programmes involving the Community and third countries except - initially - those
financed by the European Development Fund. The new conditions represent progress compared with
those annexed to Decision No 3/90 but they are still in the process of being revised to take account of
experience gained in their first year of application. It is therefore not yet appropriate to apply them to
contracts financed by the European Development Fund.

It is therefore proposed that the ACP-EC Council of Ministers extend application of the conditions
adopted by Decision No 3/90 of 29 March 1990 since they are still appropriate to ACP-EC coop-
eration. When the general conditions applicable to contracts financed by the European Community
have been revised, a draft decision substituting the new texts for those annexed to Decision No 3/90
will be forwarded to the ACP-EC Council.

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3. Settlement of disputes

Article 30 of Annex IV of the Cotonou Agreement provides that any dispute arising between the
authorities of an ACP State and a contractor, supplier or provider of services during the performance of
a contract financed by the European Development Fund shall be settled by arbitration in accordance
with procedural rules to be adopted by decision of the Council of Ministers upon the recommendation
of the ACP-EC Development Finance Cooperation Committee.

By Decision No 3/90 of 29 March 1990 the ACP-EC Council of Ministers adopted a Regulation on a
conciliation and arbitration procedure for contracts financed by the European Development Fund. This
Regulation which is specific to projects financed by the Fund, has been used since then to the satis-
faction of the ACP States, the Commission and traders.

It is therefore proposed that the ACP-EC Council of Ministers extend application of the rules governing
the conciliation and arbitration procedure for contracts financed by the European Development Fund in
the form adopted by Decision No 3/90 of 29 March 1990.

4. Follow-up

in the introduction of

the Commission
To assist
departments concerned drew up a Practical Guide to awarding European Community external aid
contracts. The Guide contains detailed explanations of the procedures referred to in the Manual and
shows specimens of
the procedure.
Commission staff and personnel in the recipient countries have also been given training.

the documents that have to be used at various stages of

the abovementioned Manual of

Instructions,

A similar approach will be followed to assist in the application of the new general regulations on
contracts financed by the European Development Fund. A practical guide specifically on such contracts
is to be drawn up. It will include specimens of the relevant documents. Seminars and other types of
training will be provided to ensure that those concerned are better informed about the procedures to be
followed.

The Commission therefore proposes that the Council adopt the annexed proposal.

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 310 and the second
paragraph of Article 300(2) thereof,

Having regard to the proposal from the Commission,

Whereas:

(1) Article 28 of Annex IV to the Cotonou Agreement
provides that the award of contracts financed from the
resources of
the European Development Fund shall be
governed by Annex IV and the procedures to be adopted
by decision of the Council of Ministers following a recom-
mendation by the ACP-EC Development Finance Coop-
eration Committee.

(2) Article 29 of Annex IV to the Cotonou Agreement
provides that performance of works, supply and service
contracts financed from the resources of
the European
Development Fund shall be governed by the general
conditions applicable to contracts financed by the Fund
the Council of
which shall be adopted by decision of
Ministers upon the recommendation of the ACP-EC Devel-
opment Finance Cooperation Committee.

of an ACP State and a contractor, supplier or provider of
services during the performance of a contract financed by
the European Development Fund shall be settled by arbi-
tration in accordance with procedural rules to be adopted
by decision of the Council of Ministers upon the recom-
mendation of
the ACP-EC Development Finance Coop-
eration Committee.

(4) The Community must agree its position within the ACP-EC
Council of Ministers with a view to adoption by the latter
of a Decision on the implementation of Articles 28, 29 and
30 of the abovementioned Annex IV,

HAS DECIDED AS FOLLOWS:

Article 1

The position on the implementation of Articles 28, 29 and 30
of Annex IV to the Cotonou Agreement to be adopted by the
Community within the ACP-EC Council of Ministers shall be
based on the annexed draft decision of the ACP-EC Council of
Ministers.

Article 2

(3) Article 30 of Annex IV of

the Cotonou Agreement
provides that any dispute arising between the authorities

Minor amendments to the draft decision may be agreed
without a further Council decision first having to be adopted.

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Proposal for a Decision of the ACP-EC Council of ministers regarding the implementation of
Articles 28, 29 and 30 of Annex IV to the Cotonou Agreement

THE ACP-EC COUNCIL OF MINISTERS,

Having regard to the ACP-EC Partnership Agreement signed in
Cotonou on 23 June 2000, and in particular Articles 28 to 30
of Annex IV thereto,

Having regard to the Opinion of the ACP-EC Development
Finance Cooperation Committee referred to in the said Articles,

Whereas:

(1) Article 28 of Annex IV to the Cotonou Agreement
provides that the award of contracts financed from the
resources of
the European Development Fund shall be
governed by Annex IV and the procedures to be adopted
by decision of the Council of Ministers following a recom-
mendation by the ACP-EC Development Finance Coop-
eration Committee.

(2) Article 29 of Annex IV to the Cotonou Agreement
provides that performance of works, supply and service
the European
contracts financed from the resources of
Development Fund shall be governed by the general
conditions applicable to contracts financed by the Fund
which shall be adopted by decision of
the Council of
Ministers upon the recommendation of the ACP-EC Devel-
opment Finance Cooperation Committee.

(3) Article 30 of Annex IV of

the Cotonou Agreement
provides that any dispute arising between the authorities
of an ACP State and a contractor, supplier or provider of
services during the performance of a contract financed by
the European Development Fund shall be settled by arbi-
tration in accordance with the procedural rules to be
adopted by decision of the Council of Ministers upon the
recommendation of
the ACP-EC Development Finance
Cooperation Committee.

(4) Provision should be made for applying the general regu-
lations, the general conditions and the rules governing the
conciliation and arbitration procedure referred to in the
previous recitals to contracts financed from the resources
of the ninth European Development Fund and any future
Fund.

(5) New general regulations complying with the Community
rules on the award of public contracts should be adopted
and applied to cooperation with third countries, as required
by the abovementioned Article 28.

(7) Provision should be made for a procedure for adapting the
general regulations and general conditions to ensure that
they are consistent with the rules applicable to other
European Community external cooperation programmes,
whilst
the
ACP-EC partnership.

the specific nature of

taking into account

(8) Certain measures such as seminars and a practical guide to
the award of contracts should be introduced to familiarise
those concerned with the abovementioned general regu-
lations and general conditions,

HAS DECIDED AS FOLLOWS:

Article 1

General regulations

The preparation and awarding of contracts financed from the
the European Development Fund shall be
resources of
governed by the annexed general
regulations on works,
supply and service contracts financed by the European Devel-
opment Fund.

Article 2

General conditions

Except where otherwise stated in Article 29 of Annex IV to the
ACP-EC Partnership Agreement, the performance of contracts
financed from the resources of
the European Development
Bank shall be governed by:

(a) the general conditions for works contracts financed by the

European Development Fund,

(b) the general conditions for supply contracts financed by the

European Development Fund, or

(c)

the general conditions for service contracts financed by the
European Development Fund

in the form adopted by Decision No 3/90 of the ACP-EC
Council of Ministers of 29 March 1990.

Article 3

Review

(6) By contrast, the general conditions applicable to contracts
and the rules governing the conciliation and arbitration
procedure adopted by the ACP-EC Council of Ministers
by Decision No 3/90 of 29 March 1990 are still appro-
priate to ACP-EC cooperation and it is therefore desirable
to extend the period of application of the texts in question.

regulations and general conditions may be
The general
reviewed by decision of the ACP-EC Council of Ministers to
ensure that they are consistent with the rules applicable to
other European Community external cooperation programmes,
whilst taking the specific nature of the ACP-EC partnership
into account.

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Article 4

Dispute settlement

from any
Agreement.

future

Fund under

the ACP-EC Partnership

Disputes regarding contracts financed from the resources of the
European Development Fund which, under the general regu-
lations and general conditions governing such contracts, must
be settled in accordance with the conciliation and arbitration
procedure for the said contracts, shall be settled in accordance
with the procedure adopted by Decision No 3/90 of the ACP-EC
Council of Ministers of 29 March 1990.

Article 6

Entry into force

This Decision shall enter into force on the same date as the
ACP-EC Partnership Agreement.

Article 5

Application

the general

the ACP-EC Council of Ministers decides
Except where
otherwise,
regulations and general conditions
referred to in Articles 1 and 2 shall apply to contracts
financed from the resources of
the ninth European Devel-
opment Fund. They shall also apply to contracts financed

Article 7

Implementing Measures

the Member States of

The ACP States,
the European
Community and the Community shall be required to take the
necessary measures for the application of this Decision, each
acting on their own behalf. In particular, the ACP States and
the Commission shall take whatever follow-up measures are
necessary to facilitate the application of the general regulations
and general conditions referred to in Articles 1 and 2.

GENERAL REGULATIONS FOR SERVICE, SUPPLY AND WORKS CONTRACTS FINANCED BY THE
EUROPEAN DEVELOPMENT FUND (EDF)

P A R T I

— any other international general conditions for contracts,

BASIC RULES GOVERNING ALL CONTRACTS

and

1.

INTRODUCTION

(c)

the special conditions.

The award of service, supply and works contracts financed by
the resources of the European Development Fund (EDF) shall
be governed by these general regulations.

general

regulations

and
These
conditions
to
tenderers, and the principles and conditions for the award of
contracts.

for participation in contracts,

the principles

instructions

comprise

The performance of service, supply and works contracts shall
be governed by:

(a) the general conditions applicable to each category of

contracts financed by the EDF, or

(b) in the case of cofinanced projects and programmes, or
where derogation to third parties has been granted or in
other appropriate cases, such other general conditions as
may be agreed by the ACP States concerned and the
Community, i.e.:

— the general conditions prescribed by the national legis-
lation of the ACP State concerned or its established
practices regarding international contracts, or

The general conditions governing a particular category of
contract comprise contractual clauses of and administrative,
financial, legal and technical nature relating to the performance
of contracts.

The special conditions applicable to each contract comprise
amendments to the general conditions, special contractual
clauses, technical specifications and any other matter related
to the contract.

In all matters that are not covered by these general regulations,
the national law of the State of the contracting authority shall
apply.

2. ELIGIBILITY FOR CONTRACTS

The provisions governing who may participate in tender
procedures
termed ‘eligibility criteria’.
are
Hence the rule on the nationality of natural and legal
persons and the origin of supplies.

and contracts

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2.1. The rule on nationality and origin

2.2. Exceptions to the rule on nationality and origin

(a) Participation in invitations to tender and in the award of
the contracts financed by the EDF shall be open on equal
terms to:

— natural persons, companies or firms or public or semi-
public agencies of the ACP States and the Member
States,

— cooperative societies and other legal persons governed
by public or private law, of the Member States and/or
the ACP States and

— joint ventures or groupings of companies or firms of

ACP States and/or of Member States.

This nationality rule also applies to the experts proposed by
service providers
in tender procedures or
service contracts financed by the Community.

taking part

For
the purposes of verifying compliance with the
nationality rule, the tender dossier requires tenderers to
state the country of which they are nationals by presenting
the documents usual under that country's law.

(b) All supplies purchased under a supply contract must
originate in the Community and/or the ACP States. The
same goes for supplies and equipment purchased by a
contractor for works or service contracts if the supplies
and equipment are destined to become the property of
the project once the contract is completed.

In this context, the definition of the concept of ‘originating
products’ shall be assessed by reference to the relevant
international agreements (1) and supplies originating in
the Community shall
include supplies originating in the
Overseas Countries, Territories and departments.

In his tender, a tenderer must state the origin of supplies.
Contractors must present a certificate of origin to the
contracting authority when bringing supplies into the
ACP State, when provisional acceptance of the supplies
takes place or when the first invoice is presented. Which
of these options is to apply will be specified in the contract
concerned.

Origin certificates must be made out by the competent
authorities of the supplies' or supplier's country of origin
and comply with the international agreements to which
that country is a signatory.

It is up to the contracting authority of the ACP State to
check that there is an origin certificate. Where there are
serious doubts about origin, it will be for the Commission's
departments in Brussels to decide on the course of action.

to ensure the optimum cost-effectiveness of

In order
the
system, natural or legal persons from non-ACP developing
countries may be authorized to participate in contracts
financed by the Community at the request of the ACP States
concerned. The ACP States concerned shall, on each occasion,
provide the Head of Delegation with the information needed
for
the Community to decide on such derogation, with
particular attention being given to:

(a) the geographical location of the ACP State concerned;

(b) the

competitiveness

and
consultants from the Member States and the ACP States;

contractors,

suppliers

of

(c)

the need to avoid excessive increases
performance of the contract;

in the cost of

(d) transport difficulties or delays due to delivery times or

other similar problems; and

(e)

technology that is the most appropriate and best suited to
local conditions.

Participation by third countries in contracts financed by the
Community may also be authorised:

(a) where the Community participates in the financing of
regional or inter-regional schemes involving such countries;

(b) in the case of co-financing projects and programmes;

(c)

in the case of emergency assistance.

In exceptional cases and in agreement with the Commission,
consultancy firms with experts who are nationals of
third
countries may participate in service contracts.

Moreover, during the execution of operations and subject to
the requirement
the
contracting authority shall decide on:

to inform the Head of Delegation,

(a) purchase of goods, irrespective of their origin, on the local

market;

(b) use of construction equipment and machinery not orig-
inating in the Member States or ACP States provided
there is no production of comparable equipment and
machinery in the Community and the ACP States.

2.3. Grounds for exclusion from participation in contracts

(1) Especially in comparison with the Protocol 1 included in Annex V

of the ACP-EU Partnership Agreement.

Natural or legal persons are not entitled to participate in
competitive tendering or be awarded contracts where:

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(a)

they are bankrupt or being wound up, are having their
affairs administered by the courts, have entered into an
arrangement with creditors, have
suspended business
activities or are in any analogous situation arising from a
legislation or
similar procedure provided for in national
regulations;

2.4. Participation on equal terms

The ACP States and the Commission shall take the necessary
measures to ensure the widest possible participation on equal
terms in invitations to tender for service, supply and works
contracts, including, as appropriate, measures to:

(b) they are the subject of proceedings for a declaration of
for administration by the
for any
legislation or

bankruptcy,
courts,
similar procedure provided for in national
regulations;

for an arrangement with creditors or

for winding-up,

(c)

they have been convicted of an offence concerning
professional conduct by a judgment which has the force
of res judicata;

(d) they are guilty of grave professional misconduct proven by
any means which the contracting authority can justify;

(e)

they have not fulfilled obligations relating to the payment
of social security contributions in accordance with the legal
provisions of the country where they are established;

(f)

they have not fulfilled obligations relating to the payment
of taxes in accordance with the legal provisions of the
country where they are established;

(g) they are guilty of serious misrepresentation in supplying
the information required by the contracting authorities as
a condition of participation in a tender procedure or
contract;

(h) they have been declared to be in serious breach of contract
for failure to comply with obligations in connection with
another contract with the same contracting authority or
another contract financed with Community funds;

(i)

they are in one of the situations allowing exclusion referred
to in section 7 (‘Ethics clauses’)
in connection with the
tender or contract.

Candidates (in the first stage of a restricted tender procedure)
must supply with their applications a sworn statement that
they do not fall into any of the categories listed above.

(a) ensure publication of invitations to tender in the Official
Journal of the European Communities, the Internet, the Official
Journals of all the ACP States and any other appropriate
information media;

(b) eliminate discriminatory practices or

specifi-
cations which might stand in the way of widespread
participation on equal terms;

technical

(c) encourage co-operation between the companies and firms

of the Member States and of the ACP States;

(d) ensure that all the award criteria are specified in the tender

dossier;

(e) ensure

the

that

to the
requirements of the tender dossier and meets the award
criteria stated therein.

conforms

selected

tender

3. CONTRACT AWARD PROCEDURES

The basic principle governing the award of contracts
competitive tendering. The purpose is twofold:

is

(a) to ensure the transparency of operations and

(b) to obtain the desired quality of services, supplies or works

at the best possible price.

There are several different procedures for awarding contracts,
each allowing for a different degree of competition:

3.1. Open procedure

tendering. The

The open procedure involves an open invitation to take part in
competitive
is given maximum
publicity through the publication of a notice in the Official
Journal of the European Communities, in the Official Journals of
all the ACP States, on the Internet and in any other appropriate
media.

contract

Tenderers (in the second stage of a restricted tender procedure
or in the single stage of an open tender procedure) must
supply with their tenders the proof usual under the law of
the country where they are established that they do not fall
into categories (a), (b), (c), (e) or (f) listed above. The date on
the evidence or documents provided must be no earlier than
180 days before the deadline for submission of
tenders.
Tenderers must, in addition, provide a sworn statement that
their situations have not altered in the period that has elapsed
since the evidence in question was drawn up.

Under the open procedure, any natural or legal person wishing
to tender receives, upon request, the tender dossier (which may
have to be paid for), in accordance with the procedures laid
down in the procurement notice. When the tenders received are
examined, the contract is awarded by conducting the selection
procedure (i.e. verification of the eligibility and of the financial,
economic, technical and professional standing of tenderers) and
the award procedure (i.e. comparison of tenders), in accordance
with section 4, ‘Selection and award criteria’. No negotiation is
allowed.

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3.2. Restricted procedure

3.6. Humanitarian and emergency assistance

the restricted procedure,

Under
the contracting authority
invites a limited number of candidates to tender. Before
launching a tender procedure,
it will draw up a shortlist of
candidates selected as a result of their qualifications on the
basis of a published procurement notice.

The selection procedure, by which the long list (all candidates
responding to the published notice) is cut down to a shortlist,
involves examining responses to, in most cases, a procurement
notice published in the Official
the European
Communities, on the Internet,
Journals of all
the ACP States and in any other appropriate media.

of
in the Official

Journal

In the second stage of the procedure, the contracting authority
invites tenders from shortlisted candidates, sending them the
tender dossier. The successful tenderer is chosen by the award
procedure once the tenders have been analysed (see section 4,
‘Selection and award criteria’). No negotiation is allowed.

Contracts under humanitarian and emergency assistance shall
be undertaken in such a way as to reflect the urgency of the
situation. To this end, for all operations relating to humani-
tarian and emergency assistance undertaken by the ACP State,
the latter may,
in agreement with the Head of Delegation,
authorise:

(a) the conclusion of contracts by direct agreement using a

negotiated procedure,

(b) the performance of direct labour operations,

(c)

implementation through specialised agencies and

(d) direct implementation by the Commission.

The Community shall administer and implement the humani-
tarian and emergency assistance operations it undertakes under
its procedures permitting operations that are rapid, flexible and
effective.

3.3. Simplified procedure

3.7. Tendering arrangements

the simplified procedure,

the contracting authority
Under
consults candidates of
its choice and establishes contract
conditions with them on the basis of the specifications. At
the end of the procedure,
the contracting authority selects
the most economically advantageous tender.

3.4. Framework contracts

Under the framework contract arrangements, the Commission
launches a restricted tender procedure, selects the candidates,
examines the framework bids made, and draws up a list of
potential contractors on whom it can call to supply experts
for specific assignments in the areas of specialisation put out to
tender.

the contracting
For each individual contract
authority invites the contractors on the list
to submit an
offer within the bounds of their framework contracts. It then
selects the most economically advantageous tender.

(assignment),

3.5. Direct labour operations (programme estimate)

In case of direct labour operations, projects and programmes
shall be implemented through public or semi-public agencies
or departments of the ACP State or States concerned (direct
labour) or by the person responsible for executing the
operation.

The Community shall contribute to the costs of the department
involved by providing the equipment and/or materials that it
lacks and/or resources to allow it to acquire additional staff
required in the form of experts from within the ACP States
concerned or other ACP States. The participation of
the
Community shall cover only costs incurred by supplementary
measures and temporary expenditure relating to execution
strictly confined to the requirements of the project in question.

The arrangements for competitive tendering and publicising
contracts for works, supplies and services depend on the
contract value. They are set out in Annex I.

supplies or

the contracting authority,

In the case of mixed contracts covering a combination of
in
works,
services,
agreement with the Commission, determines
award
the
procedure to be used. This will depend on which of
components (works, supplies or services) predominates, an
assessment which will be made on the basis of its value and
strategic importance relative to the contract as a whole.

the

No contract may be split simply to evade compliance with the
procedures set out in these general regulations. If there is any
doubt about how to estimate the value of the contract, the
contracting authority must consult
the Head of Delegation
embarking on the procurement
on the matter before
procedure.

(especially

Whatever the procedure used, the contracting authority must
ensure that conditions are such as to allow fair competition.
Wherever there is an obvious and significant disparity between
the prices proposed and the services offered by a tenderer, or a
significant disparity in the prices proposed by the various
in which publicly-owned
tenderers
companies, non-profit
associations or non-governmental
organisations are taking part in a tender procedure alongside
private companies), the contracting authority must carry out
checks and request any additional information necessary. The
information
contracting authority must keep such additional
their
that
state
confidential. Tenderers must
financial offers cover all their costs, including overheads.

in cases

routinely

3.8. Preferences

the natural and legal persons of ACP States

Measures shall be taken to encourage the widest participation
of
in the
performance of contracts financed by the EDF in order to
permit the optimisation of the physical and human resources
of those States. To this end:

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(a)

for works contracts of a value of less than EUR 5 000 000,
tenderers of the ACP States, provided that at least one
quarter of the capital stock and management staff orig-
inates from one or more ACP States, shall be accorded a
10 % price preference where tenders of an equivalent
economic,
are
compared;

administrative

technical

quality

and

(b) for supply contracts,

the value of

irrespective of

the
supplies, tenderers of the ACP States who offer supplies
of at least 50 % in contract value of ACP origin, shall be
accorded a 15 % price preference where
tenders of
equivalent economic, technical and administrative quality
are compared;

(c)

in respect of service contracts, preference shall, where
tenders of equivalent economic and technical quality are
compared, be given to:

— experts, institutions or consultancy companies or firms

from ACP States,

— offers submitted by an ACP firm in a consortium with

European partners, and

— offers presented by European tenderers with ACP

sub-contractors or experts.

(d) where subcontracting is envisaged, preference shall be
given by the successful
to natural persons,
companies and firms of ACP States capable of performing
the contract required on similar terms; and

tenderer

(e) the ACP State may, in the invitation to tender, propose to
the prospective tenderers the assistance of other ACP States'
companies or firms or national experts or consultants
selected by mutual agreement. This co-operation may
take the form either of a joint venture, or of a subcontract
or of on-the-job training of trainees.

4. SELECTION AND AWARD CRITERIA

Whether
procedure, the following operations are always performed:

awarded by open or

contracts

are

restricted

(b) Comparison of tenders on the basis of the award criteria
stipulated in the procurement notice or tender dossier,
using price and other pre-established criteria enabling the
most economically advantageous tender to be identified.

Under the open procedure, both (a) and (b) are carried out
when tenders are examined.

Under the restricted procedure, (a) is carried out during the
first stage, when candidatures are examined (drawing-up of a
shortlist), and (b) during the second stage (invitation to tender),
when tenders are examined.

5. TENDER PROCEDURE WITH ‘SUSPENSION CLAUSE’

In exceptional and duly justified cases, tender procedures may
be published with a ‘suspension clause’. This means that a
tender procedure is issued before a financing decision is
issued or
signed between the
Commission and the ACP State; the award of that contract is
therefore subject to the conclusion of the financing agreement
and the provision of funding.

agreement

financing

a

Because of its implications, the existence of a suspension clause
must be explicitly mentioned in the procurement notice.

The tender procedure will
the
Commission's decision-making procedure is not completed or
the financing agreement is not signed.

invariably be cancelled if

6. CANCELLATION OF AWARD PROCEDURES

If a contract award procedure is cancelled, all tenderers must be
notified in writing and as soon as possible of the reasons for
the cancellation. Cancellation may occur where:

(a) the tender procedure has remained unsuccessful,

i.e. no
qualitatively or financially worthwhile tender has been
received or there is no response at all;

(b) the economic or technical data of the project have been

fundamentally altered;

(a) Selection procedure based on selection criteria published in

the procurement notice:

(c) exceptional circumstances, or force majeure, render normal

performance of the contract impossible;

— verification of the eligibility of tenderers or candidates
as laid down in section 2, ‘Eligibility for contracts’,

(d) where all technically compliant tenders exceed the financial

resources available;

— verification of the financial and economic standing of

tenderers or candidates,

(e) where

there have been serious

procedure,
normal competition.

in particular where

irregularities

in the
these have prevented

— verification of the technical and professional capacities
of tenderers, candidates and their managerial staff.

After cancelling a tender procedure, the contracting authority
may decide:

The procurement notice or the tender dossier must specify
the reference criteria for these checks.

(a) to launch a new tender procedure;

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(b) to open negotiations with one or more tenderers who
comply with the selection criteria and have submitted
technically compliant tenders, provided that the original
terms of the contract have not been substantially altered;

The contract shall govern the contracting parties' use of all
reports and documents drawn up, received or presented by
them during the execution of the contract.

(c) not to award the contract.

taken by the
Whatever
contracting authority with the agreement of the Commission.

final decision is

the case,

the

The contractor shall refrain from any relationship likely to
compromise his independence or that of his staff.
the
supplier ceases to be independent, the contracting authority
terminate the contract without
may,
further notice and without the supplier having any claim to
compensation.

regardless of

injury,

If

7. ETHICS CLAUSES

Any attempt by a candidate or tenderer to obtain confidential
information, enter into unlawful agreements with competitors
or influence the committee or the contracting authority during
the process of examining, clarifying, evaluating and comparing
tenders will lead to the rejection of his candidacy or tender and
may result in administrative penalties.

The Commission reserves the right to suspend or cancel project
financing if corrupt practices of any kind are discovered at any
stage of the award process and if the contracting authority fails
to take all appropriate measures to remedy the situation. For
the purposes of this provision, ‘corrupt practices’ are the offer
of a bribe, gift, gratuity or commission to any person as an
inducement or reward for performing or refraining from any
act relating to the award of a contract or implementation of a
contract already concluded with the contracting authority.

Without the contracting authority's prior written authorisation,
a contractor and his staff or any other company with which
the contractor is associated or linked may not, even on an
ancillary or subcontracting basis, supply other services, carry
the project. This
out works or
prohibition also applies to any other programmes or projects
that could, owing to the nature of the contract, give rise to a
conflict of interest on the part of the contractor.

supply equipment

for

More specifically, all tender dossiers and contracts for works,
supplies and services must include a clause stipulating that
tenders will be rejected or contracts terminated if it emerges
that the award or execution of a contract has given rise to
unusual commercial expenses.

When putting forward a candidacy or tender, the candidate or
tenderer must declare that he is affected by no potential
conflict of interest, and that he has no particular link with
other tenderers or parties involved in the project. Should
such a situation arise during performance of the contract, the
contractor must immediately inform the contracting authority.

Such unusual commercial expenses are commissions not
mentioned in the main contract or not stemming from a
properly concluded contract referring to the main contract,
commissions not paid in return for any actual and legitimate
service, commissions remitted to a tax haven, commissions
paid to a recipient who is not clearly identified or commissions
paid to a company which has every appearance of being a
front company.

times act

impartially and as a
The contractor must at all
faithful adviser in accordance with the code of conduct of
his profession. He must refrain from making public statements
about
contracting
authority's prior approval. He may not commit the contracting
authority in any way without its prior written consent.

services without

the project or

the

For the duration of the contract, the contractor and his staff
must respect human rights and undertake not to offend the
political, cultural and religious mores of the recipient state.

The contractor may accept no payment connected with the
contract other than that provided for therein. The contractor
and his staff must not exercise any activity or receive any
advantage inconsistent with their obligations to the contracting
authority.

and his

contractor

The
are obliged to maintain
staff
professional secrecy for the entire duration of the contract
and after its completion. All reports and documents drawn
up or received by the contractor are confidential.

The contractor undertakes to supply the Commission on
request with supporting evidence regarding the conditions in
which the contract is being executed. The Commission may
carry out whatever documentary or on-the-spot checks it
deems necessary to find evidence in cases of
suspected
unusual commercial expenses.

Contractors found to have paid unusual commercial expenses
on projects funded by the Community are liable, depending on
the seriousness of the facts observed, to have their contracts
terminated or to be permanently excluded from receiving
Community funds.

Failure to comply with one or more of the ethics clauses may
result in the exclusion of the candidate, tenderer or contractor
from other Community contracts and in penalties. The indi-
vidual or company in question must be informed of the fact in
writing.

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8. APPEALS

Tenderers believing that they have been harmed by an error or
irregularity during the award process may petition the
contracting authority directly and informing the Commission.
The contracting authority must reply within 90 days of receipt
of the complaint.

Where informed of such a complaint, the Commission must
communicate its opinion to the contracting authority and do
all
it can to facilitate an amicable solution between the
complainant (tenderer) and the contracting authority.

If the above procedure fails, the tenderer may have recourse to
procedures established under the national
legislation of the
State of the contracting authority.

European citizens also have the right
to complain to the
European Ombudsman, who investigates complaints of malad-
ministration by the European Community institutions.

Should the contracting authority fail to adhere to the contract
award procedures provided for in these general regulations, the
Commission reserves the right to suspend, withhold or recover
funding for the contracts under suspicion.

P A R T I I

SPECIFIC RULES GOVERNING SERVICE CONTRACTS

9.

INTRODUCTION

Technical and economic support in the course of cooperation
policy involves recourse to outside know-how on the basis of
service contracts, most of
technical
assistance.

studies or

them for

the resources and services actually provided. The contractor
does, however, have a duty of care under the contract: he
must warn the
contracting authority in good time of
anything that might affect the proper execution of the project.

Some service contracts may, however, combine both types,
specifying both the means and the outcome.

The contracting authority, which is always specified in the
procurement notice, is the authority empowered to conclude
the contract. Service contracts are concluded by the ACP State
with which the Commission as a general rule draws up a
financing agreement.

the

The contracting authority and the Head of Delegation will draw
in close consultation with each other. The
up shortlists
Commission shall prepare
contracting
and send to the
authority the international tender dossiers for approval and
launching of the procedure. The contracting authority must
submit the other tender dossiers to the Head of Delegation
for approval before issuing them. On the basis of decisions
thus approved and in close consultation with the Head of
for
contracting authority is
Delegation,
launching
tenders,
tender procedures,
chairing tender-examination sessions and deciding on the
results of tender procedures. The contracting authority then
submits
this examination and the contract
award proposal
to the Head of Delegation for approval.
Once the award is approved, the contracting authority will
and notify the Head of Delegation
sign the
accordingly. As a general rule, the Head of Delegation will
be represented when tenders are opened and evaluated and
must always be formally invited.

the result of

responsible

contracts

receiving

the

all

The ACP States may also request the Commission to negotiate,
draw up, conclude and implement service contracts on their
behalf directly or through its relevant agency.

Study contracts include studies for the identification and prep-
aration of projects, feasibility studies, economic and market
studies, technical studies, evaluations and audits.

Audit and evaluation contracts and framework contracts are
always concluded by the Commission acting for and on
behalf of the ACP State or States concerned.

specify an outcome,

Study contracts generally
the
contractor must provide a given product: the technical and
operational means by which he
specified
lump-sum
outcome
contracts and the contractor will be paid only if the specified
outcome is achieved.

irrelevant. These

therefore,

achieves

are,

the

are

i.e.

‘Service provider’ describes any natural or legal person offering
services. A service provider who has applied to take part in a
restricted or simplified procedure is termed a ‘candidate’; a
service provider submitting a tender is termed a ‘tenderer’.

Technical assistance contracts are used where a service provider
is called on to play an advisory role, to manage or supervise a
project, to provide the experts specified in the contract or to
procure works, supplies or services for and on behalf of the
contracting authority.

10. AWARD PROCEDURES

10.1. Contracts of EUR 200 000 or more

10.1.1. Restricted procedure

Technical assistance contracts often only specify the means, i.e.
the contractor is responsible for performing the tasks entrusted
to him in the terms of reference and ensuring the quality of the
services provided. Payment for these contracts is dictated by

As a rule, all service contracts worth EUR 200 000 or more
have to be awarded by international restricted tender procedure
following publication of a contract forecast and a procurement
notice as laid down in section 11.1, ‘Publicity’.

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10.1.2. Negotiated procedure

With the prior agreement of the Commission, service contracts
may be awarded in the following situations using a negotiated
procedure:

(a) Where

the

oblige

events

unforeseeable

restricted or

laid down for

contracting
authority to act with an urgency incompatible with the
simplified
the
periods
procedures described in sections 11 and 12.2. The circum-
stances invoked to justify extreme urgency must in no way
be attributable to the contracting authority. In this context,
the latter shall enter freely into such discussions as it may
consider appropriate with the prospective tenderers whom
it has short-listed in agreement with the Head of Delegation
and award the contract
to the tenderer whom it has
selected.

institutions or associations; non-profit

(b) Where services are being provided by public entities or
non-profit
insti-
tutions or associations cannot automatically be presumed
to be contractors with no profit motive, and cannot
therefore always be dealt with through a negotiated
procedure — the latter is admissible only where the aim
of
is not motivated by economic or
commercial considerations, and would include cases in
which the operation was
in nature or
sought,
to provide individuals with social
for example,
assistance.

institutional

contract

the

(c)

In the case of contracts extending activities already under
way; there are two scenarios for this:

— complementary services not

included in the main
contract but which, because of unforeseen circum-
stances, are necessary to perform the contract. This
provision is subject to the following conditions: (i) the
supplementary services must be technically or econ-
omically inseparable from the main contract without
causing major
contracting
authority, and (ii) the estimated cost must not exceed
50 % of the value of the main contract;

inconvenience

to the

— additional services repeat services performed by the
supplier under an earlier contract. This provision is
subject to two conditions: (i) the earlier contract must
have been awarded after publication of a procurement
notice and (ii) the possibility of further services being
procured by negotiated procedure and their estimated
cost must have been clearly indicated in the notice
published for the earlier service contract. Such further
services could, for example, include the second phase of
a study or operation. The contract can be extended only
once, with its maximum value and duration not
exceeding that of the earlier contract.

(d) Where the tender procedure has remained unsuccessful, i.e.
where no qualitatively or financially worthwhile tender has
in such cases, after cancelling the tender
been received;

procedure, the contracting authority may negotiate with
one or more tenderers of its choice, from among those
that took part in the tender procedure, provided that the
initial
are not
‘Cancellation of award
substantially altered (see section 6,
procedures’). The Commission's approval must be sought
first.

tender procedure

conditions of

the

(e) Where the contract concerned follows a design competition
and must, under the rules applying, be awarded to the or a
winner. In the latter case, all winners must be invited to
participate in the negotiations.

10.2. Contracts under EUR 200 000

10.2.1. Framework contracts and simplified procedure

Contracts of a value of under EUR 200 000 may be awarded
either under the framework contract procedure or under a
simplified procedure involving at least three candidates. This
does not apply to cases in which section 10.1.2 provides for
the negotiated procedure.

11.

INTERNATIONAL RESTRICTED TENDER PROCEDURES (FOR
CONTRACTS OF EUR 200 000 OR MORE)

11.1. Publicity

to ensure the widest possible participation in
In order
competitive tendering and the requisite transparency,
the
Commission must publish contract forecasts and procurement
notices for all service contracts of EUR 200 000 or over.

11.1.1. Publication of contract forecasts

Once a year, the Commission must publish forecasts of service
contracts to be put out
to tender for the twelve months
following publication and, once every three months, any
amendments to the above forecasts.

forecasts must give a brief

The contract
the
subject, content and value of the contracts concerned. Given
forecasts, publication does not bind the
that
Commission to finance the contracts proposed, and suppliers
are not expected to submit expressions of interest at that stage.

indication of

they are

The contract forecasts are published in the Official Journal of the
European Communities, on the Internet and in any other appro-
priate media.

11.1.2. Publication of service procurement notices

In addition to forecasts, all service contracts of EUR 200 000
or more must also be the subject of a restricted tender
procedure procurement notice published in the Official Journal
of the European Communities, in the Official Journals of all the
ACP States, on the Internet and in any other appropriate
media. A minimum of 30 days must be allowed to elapse
between the publication of
the indicative notice and the
procurement notice.

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the contract

the intended operation and the forecast

The notice must state clearly, precisely, and completely what
the subject of
is, and who the contracting
authority is. It must specify the maximum budget available
for
timetable of
activities. It must provide would-be service providers with the
information they need to determine their capacity to fulfil the
contract in question. The time allowed for candidates to submit
their tenders must be sufficient to permit proper competition.
The minimum deadline for submitting tenders is 30 days from
the date of the notice's publication in the Official Journal of the
European Communities and on the Internet. The actual deadline
will be determined by the contract's size and complexity.

The procurement notice published locally must be identical to
those published in the Official
the European
Communities and on the Internet and appear at
the same
time. The Commission is responsible for publication in the
the European Communities and on the
Official
Internet, while the ACP States must see to any local publi-
cation.

Journal of

Journal

of

11.2. Establishment of shortlists

Would-be service providers must accompany their candidatures
(individually or as part of a consortium) with the information
required in the notice so that
the
contract in question can be assessed. The selection procedure
involves:

their capacity to fulfil

— eliminating candidates who are ineligible (see section 2,
‘Eligibility for contracts’) or fall into one of the situations
described in section 7, ‘Ethics clauses’,

— checking that the candidates' financial situation (financial
for
is
and economic standing)
example, by balance sheets and turnover for the previous
three years,

sound, as backed up,

— verifying the candidates' technical and professional capa-
bilities, backed up (i) where applicable, by the candidates'
average annual staffing levels and the size and professional
experience of their management and (ii) by the references
to the main services supplied in the field in question over
the previous years.

After examination of the responses to the procurement notice,
the service providers offering the best guarantees for the satis-
factory performance of the contract will be shortlisted. The
shortlist should contain a minimum of four candidates and a
maximum of eight. Every procurement notice should specify a
maximum and minimum number of candidates to be short-
listed.

Once a shortlist has been approved by the contracting
shortlisted service
authority and the Head of Delegation,
form alliances or
providers or consortia may no longer
subcontract to each other for the contract in question.

that

the subcontractor complies with the eligibility
for it,
‘Eligibility for contracts’, and
conditions set out in section 2,
section 7,
‘Ethics clauses’, and that subcontracting does not
account for an excessive proportion of the tender. The tender
dossier must stipulate what the proportion is.

selected will be

Candidates not
fact.
Candidates who are selected will receive a letter of invitation
to tender and the tender dossier. At the same time, the final list
will be posted on the Internet.

informed of

that

11.3. Drafting and contents of the tender dossier

It is vital that tender documents be carefully drafted not only
for the sound functioning of the award procedure but also for
the proper execution of the contract.

contain all

These documents must
and
information that candidates invited to tender need to present
their tenders:
the documents to
provide, cases of non-compliance, award criteria and their
weightings, stipulations regarding subcontracting, etc.

the procedures to follow,

the provisions

responsible

The Commission is
for drawing up these
documents. The contracting authority will send only the short-
listed candidates a letter of invitation to tender accompanied by
the
following
documents:

approved tender dossier

comprising

the

— instructions to tenderers, which must include:

(i) the type of contract,

(ii) the award criteria and their weightings,

(iii) whether interviews are possible and when they are

likely to be held,

(iv) whether variants are allowed,

(v) whether, and in what proportion, subcontracting is

permitted,

(vi) the maximum budget available for the contract and

(vii) the currency of the tenders,

— the shortlist of candidates (stipulating that they cannot form

alliances),

— the general conditions for service contracts financed by the

EDF,

— special conditions, which amplify, supplement or derogate
from the general conditions and, where they conflict,
override them,

— terms of reference, with a forecast schedule for the contract
and forecast dates from which the main experts must be
available,

The contracting authority may allow subcontracting with other
suppliers provided that the tenderer's tender clearly provides

— price schedule (for completion by the tenderer),

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— tender form,

— contract form,

— guarantee form from a bank or similar institution for

payment of advances.

11.4. Award criteria

The criteria for the award of the contract serve to identify the
most economically advantageous tender. These criteria cover
both the technical quality and price of the tender.

technical

The technical criteria allow the quality of technical offers to be
assessed. The two main types of
technical criteria are the
methodology and the curriculum vitae (CV) of the experts
proposed. The
criteria may be divided into
subcriteria. The methodology, for example, may be examined
in the light of the terms of reference, the optimum use of the
technical and professional resources available in the recipient
the
country,
resources to the tasks, the support proposed for experts in
the field etc. CVs may be awarded points for such criteria as
qualifications, professional experience, geographical experience,
language skills, etc.

the appropriateness of

the work schedule,

Each criterion is allotted a number of points out of 100
distributed between the different subcriteria. Their respective
weightings depend on the nature of the services required and
are determined on a case-by-case basis in the tender dossier.

The points must be related as closely as possible to the terms
of reference describing the services to be provided and refer to
if
parameters that are easy to identify in the tenders and,
possible, quantifiable.

the technical
The tender dossier must contain details of
evaluation grid, with its criteria and subcriteria and their
weightings.

11.5. Additional information during the procedure

tender dossier

The
enough to prevent
should be clear
candidates invited to tender from having to request additional
information during the procedure. If the contracting authority,
either on its own initiative or in response to the request of a
candidate, provides additional
information on the tender
dossier, it must send such information in writing to all other
candidates at the same time.

Tenderers may submit questions in writing up to 21 days
before the deadline for submission of tenders. The contracting
authority must reply to all tenderers' questions at least 11 days
before the deadline for receipt of tenders.

11.6. Deadline for the submission of tenders

letter of invitation to tender. The period for submission must
be sufficient to guarantee the quality of tenders and so permit
truly competitive tendering. Experience shows that too short a
period prevents candidates from tendering or causes them to
submit incomplete or ill-prepared tenders.

The minimum period between the dispatch of the letter of
invitation to tender and the deadline for receipt of tenders is
in urgent cases, with prior authorisation
50 days. However,
from the Commission, periods may be shorter.

11.7. Period during which tenders are binding

Tenderers are bound by their tenders for the period specified in
the letter of invitation to tender. This period must be sufficient
to allow the contracting authority to examine tenders, approve
the contract award proposal, notify the successful tenderer and
conclude the contract. The period of validity of tenders is fixed
at 90 days from the deadline for the submission of tenders.

In exceptional cases, before the period of validity expires, the
contracting authority may ask tenderers to extend the period
for a specific number of days, which may not exceed 40.

The successful tenderer must maintain his tender for a further
60 days from the date of notification of award.

11.8. Submission of tenders

Tenders must be submitted in accordance with the double
envelope system, i.e. in an outer parcel or envelope containing
two separate,
sealed envelopes, one bearing the words
‘Envelope A — technical offer’ and the other ‘Envelope B —
financial offier’.

Any infringement of these rules (e.g. unsealed envelopes or
references to price in the technical offer) is to be considered
a breach of the rules, and will lead to rejection of the tender.

This system enables the technical offer and the financial offer
to be evaluated successively and separately: it ensures that the
technical quality of a tender is considered independently of the
price.

The outer envelope should carry:

— the address for submission of tenders specified in the tender

dossier,

— the reference of the tender procedure to which the tenderer

is responding,

— where applicable, the numbers of the lots tendered for,

Tenders must reach the contracting authority at the address
and, at the very latest, the date and time indicated in the

— the words ‘not to be opened before the tender-opening

session’ in the language of the tender dossier.

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11.9. Opening of tenders

— the names of any tenderers who withdrew their tenders.

On receiving tenders, the contracting authority must register
them and provide a receipt for those delivered by hand. The
envelopes containing the tenders must remain sealed and be
kept in a safe place until they are opened.

11.10. Evaluation of tenders

11.10.1. Evaluation of technical offers

Tenders are opened and evaluated by a committee made up of
an odd number of members (at least three) possessing the
technical and administrative capacities necessary to give an
informed opinion on the tenders. The members of
the
committee must sign a declaration of impartiality.

Before tenders are opened, the chairman of the committee
that all members are familiar with the technical
checks
evaluation grid set out in the tender dossier to make sure
that tenders are evaluated by the different members of the
committee in a consistent manner.

The Head of Delegation must be informed automatically. He is
present as an observer at
the tender-opening session and
receives a copy of each tender.

Only tenders contained in envelopes received by the date and
time indicated in the tender dossier are considered for
evaluation.

Initially only the technical offers are opened. The sealed
envelopes containing the financial offers are retained by the
the
contracting authority once
committee.

signed by members of

The committee checks the compliance of tenders with the
instructions given in the tender dossier. Any formal errors or
major restrictions affecting performance of
the contract or
distorting competition result
in the rejection of the tender
concerned.

Minutes are taken of the tender-opening session and signed by
all members of the evaluation committee. They must state:

— the date, time and place of the session,

— the persons present,

— the names of the tenderers who submitted tenders within

the stipulated deadline,

— whether tenders were submitted using the double-envelope

system,

— whether the originals of the tenders were duly signed, and
whether technical offers were sent in the requisite number
of copies,

— the names of any tenderers whose tenders were found to be

non-compliant at the opening session,

The committee then opens the technical offers, the financial
offers remaining sealed. The committee's members receive
copies of
the technical offers. When evaluating technical
offers, each member awards each offer a score out of a
maximum 100 points
in accordance with the technical
evaluation grid (setting out the technical criteria, subcriteria
and weightings) laid down in the tender dossier (see section
11.4, ‘Award criteria’). In no circumstances may the committee
evaluation grid
the
or
communicated to the tenderers in the tender dossier.

its members

technical

change

it is recommended that tenders be scored for a
In practice,
given criterion one after another, rather than scoring each
tender for all criteria before moving on to the next. Where
the content of a tender is incomplete or deviates substantially
from one or more of the technical award criteria laid down in
the tender dossier, the tender is automatically rejected and no
points awarded.

If the tender dossier expressly permits variants, such variants
are scored separately.

On completion of the technical evaluation, the points awarded
by each member are compared at the committee's session.
Besides the numerical score, a member must explain the
reasons for his choice and defend his scores before the
committee. The committee discusses each technical offer and
each member awards it a final score. The aggregate final score
is the arithmetic average of the individual scores.

evaluation of

If
the
interviews were provided for in the tender dossier,
committee may, after writing up its provisional conclusions
and before definitively concluding its
the
technical offers, decide to interview the key members of the
team of experts proposed in technically compliant tenders. In
this case the experts are interviewed by the committee, pref-
erably collectively in the case of a team, at intervals close
enough to permit comparison.
follow a
standard format agreed beforehand by the committee and
applied to all experts or teams called to interview. Tenderers
must be given at least ten days' advance notice of the date and
time of the interview. Where a tenderer is prevented from
attending an interview by force majeure, he is given another
appointment.

Interviews must

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On completion of these interviews, the evaluation committee,
without modifying either the composition or the weighting of
the criteria laid down in the technical evaluation grid, decides
whether it is necessary to adjust the scores of the experts who
have been interviewed. Any adjustments must be substantiated.

11.11. Award of the contract

11.11.1. Choice of contractor

The most economically advantageous tender is established by
weighing technical quality against price on an 80/20 basis. This
is done by multiplying:

This procedure entails considerable costs both for tenderers
and the contracting authority and should therefore be used
with restraint. It must be recorded in a report, which may
lead to revision of
the
tender. The need for interviews must be accepted by the
Head of Delegation. The
these
interviews must be given in the tender dossier.

technical evaluation of

the initial

indicative

timetable

for

Once the committee has established each technical offer's final
score (the arithmetic average of the scores awarded by each
member), any tender falling short of the 80-point threshold is
automatically rejected. If no tender achieves 80 points or more,
the tender procedure is cancelled.

— the scores awarded to the technical offers by 0,80,

— the scores awarded to the financial offers by 0,20.

The resulting technical and financial scores are then added
together, and the contract is awarded to the tender achieving
the highest score.

Where two tenders are acknowledged to be equivalent, pref-
erence shall be given:

The committee considers only tenders that have obtained at
least 80 points. Of these tenders, the best technical offer is then
awarded 100 points. The others receive points calculated using
the following formula:

(a) to the tenderer of an ACP State or

(b) if no such tender is forthcoming, to the tenderer who:

Points = (initial score of the tender in question/initial score of
the best technical offer) × 100.

11.10.2. Evaluation of financial offers

Upon completion of the technical evaluation, the envelopes
containing the financial offers for tenders which were not
eliminated during the technical evaluation are opened and
signed by the committee at the session. At the session, the
committee
contain no
arithmetic errors. Any arithmetic errors are corrected without
prejudice to the tenderer.

financial offers

checks

that

the

(fees, direct or

Comparison of the financial offers takes account of all contract
lump-sum costs, etc.) with the
expenses
exception of expenses repayable on presentation of proof of
payment. The tender dossier, which includes a price schedule,
requires the tenderer to classify these costs. The committee
must nevertheless check the conformity of this classification
and correct it where necessary. Fees are set by the tenderer
alone.

Financial offers exceeding the maximum budget allocated for
the contract are eliminated.

The lowest financial offer receives 100 points. The others are
awarded points by means of the following formula:

Points = (lowest financial offer/financial offer being considered)
× 100.

— permits the best possible use of the physical and human

resources of the ACP States,

— offers the greatest subcontracting possibilities to ACP

companies, firms or natural persons or

— is a consortium of natural persons, companies and

firms from ACP States and the Community.

is
The entire procedure (technical and price evaluation)
the
recorded in minutes to be signed by all members of
committee and approved by the contracting authority. The
the tender evaluation and a
latter
contract award proposal
to the Head of Delegation for
approval.

submits the result of

The Head of Delegation shall approve within 30 days the
contracting authority's proposal for the placing of all service
contracts, including direct agreement contracts and emergency
assistance contracts.

The entire evaluation procedure, including notification of the
successful tenderer, must be completed while the tenders are
still valid. It is important to bear in mind that the successful
tenderer might be unable to maintain his tender (availability of
experts) if the evaluation procedure takes too long.

to the notification of

from the drawing-up of

the
The entire tender procedure,
shortlist
is
strictly confidential. The committee's decisions are collective
and its deliberations must
remain secret. The committee
members are bound to secrecy.

the successful

tenderer,

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in particular, are for
The evaluation reports and minutes,
official use only and may be divulged neither to tenderers
nor to any party outside the authorised departments of the
ACP State or States concerned, the Commission and the super-
visory authorities (Court of Auditors, etc.).

specified in the tender. This specification may take various
forms. Whatever the form,
(head of project,
long-term experts, project administrator, accountant, etc.) to
be provided by the contractor must be identified and named
in the contract.

the key staff

11.11.2. Notification of award of contract

tenders expires,

After the Commission has given its formal approval and before
the period of validity of
the contracting
authority notifies the successful tenderer in writing that his
tender has been accepted.
It must also send the other
candidates a standard letter informing them that their tenders
have been unsuccessful. This letter states any shortcomings in
the detailed score achieved by that
the addressee's tender,
tender and the aggregate
scores achieved by the other
tenderers.

Where a contract is awarded under a financing agreement, the
contracting authority must not notify the successful tenderer
unless
the financing agreement has been concluded (see
section 5, ‘Tender procedure with suspension clause’).

Once the contract has been signed, the Commission publishes
the results of the tender procedure (contract award notice) in
the Official Journal of the European Communities, on the Internet
and in any other appropriate media. Post-award notices must
state the number of tenders received, the date of award of the
contract, the name and address of the successful tenderer and
the contract price.

11.11.3. Signing of the contract

Once signed by the contracting authority the contract is sent to
the successful tenderer, who must countersign and return it
within 30 days of receipt.

The contract must be dated. It cannot cover earlier services or
enter into force before the date on which it is signed. The
parties are bound by the contract
is
signed. Hence the importance of carefully selecting the date.

from the moment it

11.12. Approval of experts

Where the Commission acting for and on behalf of an ACP
State concludes a contract, the Head of Delegation is required
to notify the ACP State of the name of the successful tenderer
and obtain its approval of the experts proposed. Such a request
is not a request for approval of the Commission's evaluation.

Should a company and/or proposed experts deliberately
conceal the fact that all or some of the team proposed in
their tender are unavailable from the date specified in the
tender dossier for the start of the assignment, they may be
excluded from the tender procedure by the committee.
Should the contracting authority and the Commission learn
that such facts have been concealed after the contract has
been awarded, they may decide either to cancel the award of
the contract and recommence the tender procedure or to
award the contract to the tender awarded second place by
the committee. Such behaviour may lead to a tenderer's
exclusion from other Community contracts.

However, the contract must not only identify the key staff to
be provided but specify the qualifications and experience
required of them. This is important if the contractor wishes
to replace staff after
the contract has been signed and
concluded. This situation may arise before performance of
In
the contract has even begun or while it is in progress.
both cases, the contractor must first obtain the contracting
authority's written approval by substantiating his request for
replacement. The contracting authority has 30 days from the
date of receipt of the request in which to reply.

The contractor must, on his own initiative, propose a
replacement where:

(a) a member of staff dies, falls ill or suffers an accident;

(b) it becomes necessary to replace a member of staff for any
other reasons beyond the contractor's control (e.g. resig-
nation etc.).

In the course of performance, the contracting authority may
also submit a substantiated written request for a replacement
where it considers a member of staff incompetent or unsuitable
for the purposes of the contract.

The ACP State may not withhold its approval unless it submits
duly substantiated and justified objections to the proposed
experts in writing to the Head of Delegation within 30 days
of the date of the request for approval.

11.13. Provision and replacement of experts

Where the tender procedure involves the provision of technical
assistance staff, the contractor is bound to provide the staff

Where a member of staff has to be replaced, the replacement
must possess at least equivalent qualifications and experience
and his remuneration may in no circumstances exceed that of
the expert replaced. Where the contractor is unable to provide
a replacement possessing equivalent qualifications and/or
experience,
the contracting authority may either terminate
the contract, if it feels that its performance is jeopardised, or,
if it feels that this is not the case, accept the replacement, in
which case the latter's fees are to be negotiated downwards to
reflect the proper level of remuneration.

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functions,

Any additional expenses resulting from the replacement of staff
are borne by the contractor. Where an expert is not replaced
immediately and some time elapses before the new expert takes
the contracting authority may ask the
up his
to the project
contractor
pending the new expert's arrival or to take other steps to
bridge the gap. Whatever the case may be, the contracting
authority will make no payment for the period of absence of
the
temporary or
permanent).

to assign a temporary expert

expert or his

replacement

(whether

12. PROCEDURES FOR THE AWARD OF CONTRACTS UNDER

EUR 200 000

12.1. Framework contract

service

For
performance period of under 12 months,
authority may opt to use framework contracts.

contracts under EUR 200 000 and with a
the contracting

Under this procedure,
the Commission, acting for and on
behalf of all the beneficiary countries of the external aid of
the Community, uses a restricted tender procedure (see
section 11 above) with lots covering several different areas of
technical specialisation to draw up lists of potential service
providers valid for three to five years. This saves having to
draw up a shortlist of service providers for each ensuing
contract.

For the purposes of specific contracts under EUR 200 000 and
with a performance period of under 12 months,
the
the ACP State
Commission, acting for and on behalf of
concerned, sends the profile(s) of
the expert(s) required to
three service providers bound by a framework contract and
figuring on the shortlist for the lot relating to the requisite
area of specialisation.

The three companies approached have eight days in which to
propose experts matching the profile sought at a rate within
the bracket
framework contract was
concluded. The Commission chooses the most economically
advantageous tender and notifies the chosen contractor.

agreed when the

To ensure fair competition between companies shortlisted for
each lot of the framework contract, the Commission should
make sure that it consults them in rotation.

12.2. Simplified procedure

If recourse to the framework contract is unsuccessful or not
the contracting authority may award a service
possible,
contract
simplified procedure,
under
without publication.

EUR 200 000 by

The contracting authority draws up a list of at least three
service providers of its choice, drawing in particular on data
in the Commission's databases of experts and consultancy
firms. The candidates are sent a letter of invitation to tender
accompanied by a tender dossier.

Tenders must reach the contracting authority at the address
given in the letter of invitation to tender and by the date

and time specified. The chosen candidates must be allowed at
least 30 days from the dispatch of the letter of invitation to
tender in which to submit their tenders.

Tenders must be sent in two envelopes, one containing the
technical offer and the other the financial offer.

Tenders are opened and evaluated by a committee possessing
the requisite technical and administrative capacities. The
members of the committee must sign a declaration of impar-
tiality. After evaluating the tenders, the committee identifies the
tender on the basis of
most economically advantageous
the contracting authority
If
technical quality and price.
receives fewer than three compliant tenders,
the procedure
must be cancelled and started again.

the contracting authority may place orders

However
for
services of a value of EUR 5 000 or less on the basis of a
single quote.

P A R T I I I

SPECIFIC RULES GOVERNING SUPPLY CONTRACTS

13.

INTRODUCTION

Supply contracts concern the design, manufacture, delivery,
assembly and commissioning of goods together with any
e.g. maintenance,
other
repairs, training and after-sales services.

specified in the

contract,

tasks

‘Supplier’ describes any natural or legal person furnishing
is known as a
submitting a tender
supplies. A supplier
‘tenderer’ and one applying to take part
in a simplified
procedure as a ‘candidate’.

The contracting authority, which is always specified in the
procurement notice, is the authority empowered to conclude
the contract. Supply contracts are concluded by the ACP
Statewith which the Commission draws up a financing
agreement.

all

the

the

The Commission shall prepare and send to the contracting
authority the international tender dossiers for approval and
launching of the procedure. The contracting authority must
submit the other tender dossiers to the Head of Delegation
for approval before issuing them. On the basis of decisions
thus approved and in close consultation with the Head of
Delegation,
for
contracting authority is
tenders,
tender procedures,
launching
chairing tender-examination sessions and deciding on the
results of tender procedures. The contracting authority then
submits
this examination and the contract
to the Head of Delegation for approval.
award proposal
Once the award has been approved, the contracting authority
signs
the Head of Delegation
accordingly. The Head of Delegation is normally represented
when tenders are opened and evaluated and must always be
formally invited.

the contracts and notifies

the result of

responsible

receiving

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14. AWARD PROCEDURES

14.2.2. Negotiated procedure

14.1. Contracts above EUR 150 000

14.1.1. Open procedure

With the Commission's agreement, the contracting authority
may award supply contracts by negotiated procedure in the
situations given in section 14.1.2.

As a rule, supply contracts are the subject of an international
open tender procedure following publication of a procurement
notice.

14.3. Contracts under EUR 30 000

14.3.1. Simplified procedure

14.1.2. Negotiated procedure

However, with the prior agreement of the Commission, the
supply contracts may be awarded by negotiated procedure in
the following situations:

Supply contracts under EUR 30 000 are awarded by simplified
consulted, but no
procedure. Three
suppliers must be
procurement notice need
the
contracting authority may place orders for supplies of a
value of EUR 5 000 or less on the basis of a single quote.

be published. However,

(a) Where

the

oblige

events

unforeseeable

contracting
authority to act with an urgency incompatible with the
periods laid down for the open or simplified procedures
described in sections 15, 16 and 17. The circumstances
invoked to justify extreme urgency must in no way be
attributable to the contracting authority. In this context,
the latter shall enter freely into such discussions as it
may consider appropriate with the prospective tenderers
whom it has short-listed in agreement with the Head of
Delegation and award the contract to the tenderer whom it
has selected.

(b) Where the nature or particular characteristics of

the
supplies warrant, e.g. where performance of the contract
is exclusively reserved for the holders of patents or licences
to use patents.

(c) For additional deliveries by the original supplier intended
either as a partial replacement of normal supplies or instal-
lations or as the extension of existing supplies or instal-
lations where a change of supplier would oblige the
recipient
technical
to acquire goods having different
characteristics which would result in either incompatibility
or disproportionate technical difficulties in operation and
maintenance.

after

In such cases,

(d) Where a tender procedure has been unsuccessful, i.e. where
no qualitatively or financially worthwhile tender has been
tender
received.
procedure, the contracting authority may, with the prior
approval of the Commission, negotiate directly with one or
more suppliers chosen by it from among those that took
the initial
part
requirements of the tender dossier are not substantially
‘Cancellation of award procedures’).
altered (see section 6,

in the tender procedure, provided that

cancelling the

14.2. Contracts between EUR 30 000 and EUR 150 000

14.2.1. Local open procedure

In this case,
supply contracts are awarded by an open
procedure in which the procurement notice is published only
in the ACP State or States concerned. The Commission
publishes the references of such tender procedures (dossier
number, country, contracting authority and type of contract)
on the Internet with the address of the Delegation from which
firms can obtain further information.

15.

INTERNATIONAL
CONTRACTS ABOVE EUR 150 000)

OPEN

TENDER

PROCEDURE

(FOR

15.1. Publicity

to ensure the widest possible participation in
In order
competitive
a
procurement notice must be published for every open tender
procedure.

tendering and the

transparency,

requisite

15.1.1. Publication of supply procurement notices

The procurement notice is published in the Official Journal of
the European Communities, in the Official Journals of all the ACP
States, on the Internet and in any other appropriate media. The
Commission is responsible for publication in the Official Journal
of the European Communities and on the Internet, while the ACP
States must see to local publication.

The notice must identify clearly, precisely, and completely the
contracting authority and the subject of
the contract. The
procurement notice published locally must be identical to the
procurement notice published in the Official
the
European Communities and on the Internet and appear at the
same time.

Journal of

to
The tender dossier for the contract
would-be
the
Commission (delegations, offices in the Member States or head-
quarters).

contracting authority or

in question is sent

suppliers by the

15.2. Drafting and contents of the tender dossier

It is vital that tender documents be carefully drafted not only
for the sound functioning of the award procedure but also for
the proper execution of the contract.

These documents must
and
information that tenderers need to present their tenders: the
procedures to follow,
the documents to provide, cases of
non-compliance, award criteria, etc.

the provisions

contain all

Responsibility in this regard falls to the Commission, which
shall send to the contracting authority the tender dossier for
approval and launching of the procedure. The tender dossier
must contain the following documents:

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— instructions to tenderers, which must include:

(i) the contract award criteria,

(ii) whether variants are authorised and

(iii) the currency of the tender,

— the general conditions for supply contracts financed by the

EDF,

— special conditions, which amplify, supplement or derogate
from the general conditions and, where they conflict,
override them,

— technical annexes, containing plans, technical specifications

and provisional timetable for performance,

— price schedule (for completion by the tenderer),

— tender form,

— contract form,

— guarantee forms from a bank or similar institution for:

— the tender
contract),

(1-2 % of

the budget available for

the

— the payment of advances,

— performance (10 % of the contract value).

Unless warranted by the nature of the contract, technical spec-
ifications mentioning products of a given brand or origin and
thereby favouring or excluding certain products are prohibited.
However, where products cannot be described in a sufficiently
clear or intelligible manner, they may be named as long as they
are followed by the words ‘or equivalent’.

15.3. Selection and award criteria

The selection criteria concern the tenderer's capacity to execute
similar contracts. In certain cases, where the contract includes
works or installation services, the tender dossier may include
selection criteria concerning the tenderer's technical capa-
bilities.

The award criteria applied to technically compliant tenders are
price and, where proposals are requested for after-sales services
and/or training, the quality of such proposals.

15.4. Additional information during the procedure

tender dossier

The
contractors from having to request additional

should be clear

enough to prevent
information

during the procedure. If the contracting authority, either on its
own initiative or in response to a request from a tenderer,
provides additional information on the tender dossier, it must
send such information in writing to all tenderers at the same
time.

If it proves impossible to identify potential tenderers in the case
of an open tender procedure, a notice setting out the changes
to the tender dossier must be published as laid down in section
15.1.1,
supply procurement notices’. The
deadline for the submission of tenders may be extended to
allow tenderers to take account of the change.

‘Publication of

Tenderers may submit questions in writing up to 21 days
before the deadline for submission of tenders. The contracting
authority must reply to all tenderers' questions at least 11 days
before the deadline for receipt of tenders.

15.5. Deadline for the submission of tenders

Tenders must reach the contracting authority at the address
and, at the very latest, the date and time indicated in the
tender dossier. The period for submission must be sufficient
truly
to guarantee the quality of
competitive tendering. Experience shows that
too short a
period prevents candidates from tendering or causes them to
submit incomplete or ill-prepared tenders.

tenders and so permit

The minimum period between the date of publication of the
procurement notice and the deadline for receipt of tenders is
60 days. In exceptional cases, and with the prior authorisation
of the Head of Delegation, periods may be shorter.

15.6. Period during which tenders are binding

Tenderers are bound by their tenders for the period specified in
the tender dossier. This period must be sufficient to allow the
contracting authority to examine the tenders, approve the
contract award proposal, notify the successful tenderer and
conclude the contract. The period of validity of tenders is
fixed at 90 days from the deadline for the submission of
tenders.

In exceptional cases, before the period of validity expires, the
contracting authority may ask tenderers to extend the period
for a specific number of days, which may not exceed 40.

The successful tenderer must maintain his tender for a further
60 days from the date of notification of award.

15.7. Submission of tenders

Technical and financial offers must be placed in separate sealed
envelopes within a package or outer envelope bearing:

— the address for submission of

tenders indicated in the

tender dossier,

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— the reference of the tender procedure to which the tenderer

— whether tenders have been duly signed and the requisite

is responding,

number of copies sent,

— where applicable, the numbers of the lots tendered for,

— the tender prices,

— the words ‘not to be opened before the tender-opening
session’ written in the language of the tender dossier.

— the names of tenderers whose tenders were found to be

non-compliant at the opening session,

15.8. Opening of tenders

— the names of any tenderers who withdrew their tenders,

On receiving tenders, the contracting authority must register
them and provide a receipt
for those delivered by hand.
Envelopes must remain sealed and be kept in a safe place
until they are opened.

Tenders are opened and evaluated by a committee made up of
an odd number of members (at least three) possessing the
technical and administrative capacities necessary to give an
informed opinion on tenders. The members must sign a
declaration of impartiality.

— any declarations made by the tenderers.

15.9. Evaluation of tenders

Before conducting a detailed evaluation of the tenders, the
contracting authority checks
they comply with the
essential requirements of the tender dossier.

that

The evaluation committee opens the tenders in public at the
place and time fixed in the tender dossier. The following are
announced at the tender-opening session: the names of the
tenderers,
the requisite
tender guarantee and any other formality which the contracting
authority thinks appropriate.

the tender prices,

the provision of

The Head of Delegation must be informed automatically. He is
present as an observer at
the tender-opening session and
receives a copy of each tender.

Only tenders in envelopes received by the date and time
indicated in the tender dossier are considered for evaluation.

The purpose of the tender-opening session is to check that the
tenders are complete, that the requisite tender guarantee has
been provided, that the documents have been duly signed and
that the tenders are generally in order.

Minutes are taken of
the tender-opening session. They are
signed by all members of the evaluation committee and state:

— the date, time and place of the session,

— the persons present,

— the names of the tenderers who have replied within the

deadline,

— whether tenders have been submitted in sealed envelopes,

A tender is deemed to comply if it satisfies all the conditions,
procedures and specifications in the tender dossier without
substantially departing from or attaching restrictions to them.
Substantial departures or restrictions are those which affect the
scope, quality or execution of the contract, differ widely from
the terms of
the
contracting authority or the tenderer's obligations under the
contract or distort competition for tenderers whose tenders
do comply.

the tender dossier,

the rights of

limit

Tenders which do not comply with the tender dossier must be
rejected by the contracting authority and may not subsequently
be made to comply by undergoing corrections or having
discrepancies or restrictions removed.

admissibility of

the committee rules on the
Having evaluated the tenders,
as
technical
contracts
technically compliant or non-compliant. Where
technical
the
include
quality of such services is also assessed during the technical
evaluation.

classifying it

each tender,

after-sales

training,

service

and/or

the

technical

evaluation has been completed,

the
Once
committee checks that
the tenders contain no arithmetic
errors. Any errors are corrected without prejudice to the
tenderer.

15.10. Award of the contract

15.10.1. Choice of contractor

(a) Price is the sole criterion for awarding supply contracts not
involving after-sales
services. All non-compliant offers
having already been eliminated, the contract is awarded
to the tenderer submitting the least expensive, compliant
tender.

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(b) Where

a

services

includes

account of

supply contract

such as
after-sales and/or training, the technical evaluation must
take
such services. All
the quality of
non-compliant offers having already been eliminated, the
contract is awarded to the tender that is most economically
advantageous in terms of
the
services offered and the price proposed.

the technical quality of

In either case,
the tender selected exceeds the budget
allocated for the contract, the provisions of section 14.1.2 (d)
apply.

if

The rule described in section 3.8 (b),
‘Preferences’, must be
applied. Moreover, where two tenders are acknowledged to
be equivalent, preference shall be given:

(a) to the tenderer of an ACP State or

Delegation. Where the price of the selected tender exceeds
the sum earmarked for the contract, the Commission shall,
upon giving approval
to the award, make the necessary
financial commitment.

The entire evaluation procedure, including notification of the
successful tenderer, must be completed while the tenders are
still valid. It is important to bear in mind that the successful
the
tenderer might be unable to maintain his
evaluation procedure takes too long.

tender

if

the
The entire tender procedure up to the notification of
tenderer is strictly confidential. The committee's
successful
decisions are collective and its deliberations must
remain
secret. The members of the committee are bound to secrecy.

(b) if no such tender is forthcoming, to the tenderer who:

— permits the best possible use of the physical and human

resources of the ACP States,

The evaluation reports and minutes,
in particular, are for
official use only and may be divulged neither to tenderers
nor to any party outside the authorised departments of the
ACP State or States concerned, the Commission and the super-
visory authorities (Court of Auditors, etc.).

— offers the greatest subcontracting possibilities to ACP

companies, firms or natural persons or

15.10.2. Notification of award of contract

— is a consortium of natural persons, companies and

firms from ACP States and the Community.

The entire evaluation procedure must be recorded in an
evaluation report
to be signed by all the members of the
committee. This report must state why tenders were deemed
technically non-compliant and how they fell short of
the
technical specifications laid down. The contracting authority
then transmits the evaluation report and a contract award
proposal to the Head of Delegation for approval.

The Head of Delegation shall approve within 30 days the
contracting authority's proposal
the placing of direct
agreement contracts, emergency assistance contracts and all
other supply contracts with a value less than EUR 1 000 000.

for

For all other supply contracts not covered by the above, the
the
Head of Delegation shall approve within 30 days
contracting authority's proposal
the
the placing of
contract wherever the following conditions are fulfilled:

for

tenderer in writing that

After the Commission has given its formal approval and before
the period of validity expires, the contracting authority notifies
the successful
its tender has been
It must also send the other tenderers a standard
accepted.
letter informing them that their tenders have been unsuccessful.
This letter states whether tenders were technically compliant
and indicates any technical shortcomings.

Where a contract is awarded under a financing agreement, the
contracting authority must not notify the successful tenderer
unless
the financing agreement has been concluded (see
section 5, ‘Tender procedure with suspension clause’).

Once the contract has been signed, the Commission publishes
the results of the tender procedure (contract award notice) in
the Official Journal of the European Communities, on the Internet
and in any other appropriate media. Post-award notices must
state the number of tenders received, the date of award of the
contract, the name and address of the successful tenderer and
the contract price.

— the tender selected is the lowest of those conforming to the

requirements of the tender dossier,

15.10.3. Signing of the contract

— the tender selected meets all the selection criteria stated in

the tender dossier and

Once signed by the contracting authority the contract is sent to
the successful tenderer, who must countersign it within 30
days of receipt and return it with the performance guarantee.

— the tender selected does not exceed the sum earmarked for

the contract.

Where the conditions are not fulfilled, the Head of Delegation
shall forward the proposal to the Commission who shall decide
the Head of
thereon within 60 days of

the receipt of

The contract must be dated. It cannot cover earlier services or
enter into force before the date on which it is signed by the
parties. The parties are bound by the contract
from the
moment
signed, hence the importance of carefully
selecting the date.

is

it

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16. LOCAL OPEN TENDER PROCEDURE

(FOR CONTRACTS

BETWEEN EUR 30 000 AND EUR 150 000

‘tenderer’ and one invited to take part in a restricted tender
procedure or simplified procedure as a ‘candidate’.

In this case, the procurement notice is published only in the
ACP State or States concerned. The Commission publishes the
references of such tender procedures (dossier number, country,
contracting authority and type of contract) on the Internet with
the address of the Delegation from which firms can obtain
further information.

Note that a local open tender procedure must provide other
eligible suppliers with the same opportunities as local firms. No
conditions seeking to restrict the participation of other eligible
suppliers are allowed (e.g. obliging such firms to be registered
in the recipient country or to have won contracts there in the
past).

In this procedure,
there must be a minimum of 30 days
between the date of publication of the procurement notice in
the local press and the deadline for receipt of tenders.

The measures applicable to an international open procedure, as
described in section 15, apply by analogy to the local open
procedure.

17. SIMPLIFIED

PROCEDURE

(FOR

CONTRACTS

UNDER

EUR 30 000)

contracting

The
award contracts under
EUR 30 000 by simplified procedure, without publication. It
must consult at least three firms of its choice.

authority may

The contracting authority draws up a list of at least three firms.
The candidates receive a letter of invitation to tender accom-
panied by the relevant
technical specifications. No tender
guarantee is required in this case.

The contracting authority, which is always specified in the
procurement notice, is the authority empowered to conclude
the contract. Works contracts are concluded by the ACP State
with which the Commission draws up a financing agreement.

all

the

The Commission shall prepare and send to the contracting
authority the international tender dossiers for approval and
launching of the procedure. The contracting authority must
submit the other tender dossiers to the Head of Delegation
for approval before issuing them. On the basis of decisions
thus approved and in close consultation with the Head of
for
contracting authority is
Delegation,
launching
tenders,
tender procedures,
chairing tender-examination sessions and deciding on the
results of tender procedures. The contracting authority then
submits
this examination and the contract
award proposal
to the Head of Delegation for approval.
Once the award has been approved, the contracting authority
signs
the Head of delegation
accordingly. The Head of Delegation is normally represented
when tenders are opened and evaluated and must always be
formally invited.

the contracts and notifies

the result of

responsible

receiving

the

19. AWARD PROCEDURES

19.1. Contracts above EUR 5 000 000

19.1.1. Open procedure

The general rule for the award of works contracts is the inter-
national open tender procedure following publication of a
procurement notice.

Tenders must reach the contracting authority at the address,
and, at the very latest, the date and time indicated in the letter
of invitation to tender.

19.1.2. Negotiated procedure

The contracting authority has an evaluation report drawn up
on the tenders received, stating the technical compliance and
contractual terms of the tenders. If the contracting authority
the procedure
receives fewer than three compliant tenders,
must be cancelled and started again.

the contracting authority may place orders

However,
for
supplies of a value of EUR 5 000 or less on the basis of a
single quote.

P A R T I V

SPECIFIC RULES GOVERNING WORKS CONTRACTS

18.

INTRODUCTION

Works contracts are concluded between a contractor and a
the
contracting authority for
building of a structure.

the execution of works or

‘Contractor’ describes any natural or legal person carrying out
the works. A contractor submitting a tender is known as a

With the prior agreement of the Commission, works contracts
may be awarded by negotiated procedure. This may be done in
the following situations:

(a) Where

the

oblige

events

unforeseeable

contracting
authority to act with an urgency incompatible with the
periods laid down for the open, restricted or simplified
procedures described in sections 20, 21 and 22. The
circumstances
invoked to justify the extreme urgency
must in no way be attributable to the contracting authority.
In this context,
the latter shall enter freely into such
discussions as it may consider appropriate with the pros-
pective tenderers whom it has short-listed in agreement
with the Head of Delegation and award the contract to
the tenderer whom it has selected.

(b) For additional works not included in the first contract but
through unforeseen circumstances, become
which have,
necessary for the carrying-out of
the works described
therein, provided that the award is made to the contractor
already carrying out such work:

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— where such works cannot be technically or econ-
omically separated from the main contract without
major inconvenience to the recipient,

States, on the Internet and in any other appropriate media. The
Commission is responsible for publication in Europe while the
ACP States must see to local publication.

— where

such works,

although separable

from the
the original contract, are absolutely

execution of
necessary to its completion.

the aggregate cost of contracts awarded for
However,
additional works must not exceed 50 % of the amount of
the main contract.

(c) Where the tender procedure has been unsuccessful,

i.e.
where no qualitatively or financially worthwhile tender
has been received.
In such cases, after cancelling the
tender procedure, the contracting authority may, with the
prior approval of the Commission, negotiate directly with
one or more tenderers chosen by it from among those that
took part in the tender procedure, provided that the initial
terms of
the contract are not substantially altered (see
section 6, ‘Cancellation of award procedures’).

19.2. Contracts between EUR 300 000 and EUR 5 000 000

19.2.1. Local open procedure

Such contracts are awarded after an open tender procedure
published locally, a procedure in which the procurement
notice is published only in the ACP State or States concerned.
The Commission publishes
the references of such tender
procedures (dossier number, country, contracting authority
and type of contract) on the Internet with the address of the
Delegation from which firms can obtain further information.

19.2.2. Negotiated procedure

With the agreement of
the contracting
authority may also award works contracts by negotiated
procedure in the situations given in section 19.1.2.

the Commission,

19.3. Contracts under EUR 300 000

19.3.1. Simplified procedure

contracts under EUR 300 000 are

Works
awarded by
simplified procedure. Three contractors must be consulted,
but no procurement notice need to be published.

20.

INTERNATIONAL
TENDER
CONTRACTS ABOVE EUR 5 000 000)

OPEN

PROCEDURE

(FOR

20.1. Publicity

to ensure the widest possible participation in
In order
competitive
a
procurement notice must be published for every open tender
procedure.

tendering and the

transparency,

requisite

20.1.1. Publication of works procurement notices

The notice must identify clearly, precisely, and completely the
contracting authority and the subject of
the contract. The
procurement notice published locally must be identical to the
procurement notice published in the Official
the
European Communities and on the Internet and appear at the
same time.

Journal of

send tender dossiers

The contracting authority must
to
would-be tenderers. Because of their size and printing costs,
tender dossiers for works contracts are usually sent out for a
flat
fee by the consultancy firm responsible for compiling
them. The consultancy firm in question must sign an under-
taking of secrecy.

The tender dossier will also be available for consultation at the
premises of
the contracting authority and the Commission
(delegation, offices in the Member States or headquarters).

20.2. Drafting and contents of the tender dossier

It is vital that tender documents be carefully drafted not only
for the sound functioning of the award procedure but also for
the proper execution of the contract.

These documents must
and
information that tenderers need to present their tenders: the
procedures to follow,
the documents to provide, cases of
non-compliance, award criteria, etc.

the provisions

contain all

Responsibility in this regard falls to the Commission, which
shall send to the contracting authority the tender dossier for
approval and launching of the procedure. The tender dossier
must contain the following documents:

— instructions to tenderers, which must include:

(i) the selection and award criteria,

(ii) whether variants are allowed and

(iii) the currency of the tender,

— the general conditions for works contracts financed by the

EDF,

— special conditions, which amplify, supplement or derogate
from the general conditions and, where they conflict,
override them,

— technical annexes, containing plans, technical specifications

and provisional timetable for performance,

— price schedule (for completion by the tenderer) and

breakdown,

— tender form,

The procurement notice is published in the Official Journal of
the European Communities, in the Official Journals of all the ACP

— contract form,

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— guarantee forms from a bank or similar institution for:

— the tender
contract),

(1-2 % of

the budget available for

the

contracting authority to examine the tenders, approve the
contract award proposal, notify the successful tenderer and
conclude the contract. The period of validity of tenders is
fixed at 90 days from the deadline for the submission of
tenders.

— the payment of advances,

— performance (10 % of the contract value).

In exceptional cases, before the period of validity expires, the
contracting authority may ask tenderers to extend the period
for a specific number of days, which may not exceed 40.

20.3. Selection and award criteria

The selection criteria concern the tenderer's capacity to execute
similar contracts, with particular reference to works executed
in recent years.

Following selection and the elimination of all non-compliant
offers, the sole criterion for award is the tender price.

The successful tenderer must maintain his tender for a further
60 days from the date of notification of award.

20.7. Submission of tenders

Technical and financial offers must be placed in separate sealed
envelopes within a package or outer envelope bearing:

20.4. Additional information during the procedure

— the address for submission of

tenders indicated in the

tender dossier,

tender dossier

should be clear

enough to prevent
The
contractors from having to request additional
information
during the procedure. If the contracting authority, either on
its own initiative or in response to a request from a tenderer,
provides additional information on the tender dossier, it must
send such information in writing to all tenderers at the same
time.

If it proves impossible to identify potential tenderers in the case
of an open procedure, a notice setting out the changes to the
tender dossier must be published as laid down in section
20.1.1,
‘Publication of works procurement notices’. The
deadline for the submission of tenders may be extended to
allow tenderers to take account of the change.

Tenderers may submit questions in writing up to 21 days
before the deadline for submission of tenders. The contracting
authority must reply to all tenderers' questions at least 11 days
before the deadline for receipt of tenders.

20.5. Deadline for submission of tenders

Tenders must reach the contracting authority at the address
and, at the very latest, the date and time indicated in the
tender dossier. The period for submission must be sufficient
truly
to guarantee the quality of
competitive tendering. Experience shows that
too short a
period prevents candidates from tendering or causes them to
submit incomplete or ill-prepared tenders.

tenders and so permit

The minimum period between the date of publication of the
procurement notice and the deadline for receipt of tenders is
90 days. In exceptional cases, and with the prior authorisation
of the Head of Delegation, periods may be shorter.

20.6. Period during which tenders are binding

— the reference of the tender procedure to which the tenderer

is responding,

— where applicable, the numbers of the lots tendered for,

— the words ‘not to be opened before the tender-opening
session’ written in the language of the tender dossier.

20.8. Opening of tenders

On receiving tenders, the contracting authority must register
them and provide receipt of delivery for those delivered by
hand. Envelopes must remain sealed and be kept in a safe
place until they are opened.

Tenders are opened and evaluated by a committee made up of
an odd number of members (at least three) possessing the
technical and administrative capacities necessary to give an
informed opinion on tenders. The members must sign a
declaration of impartiality.

The evaluation committee opens the tenders in public at the
place and time fixed in the tender dossier. The following are
announced at the tender-opening session: the names of the
tenderers,
the tender
formality which the
guarantee
contracting authority thinks appropriate.

the tender prices,
required and any other

the provision of

The Head of Delegation must be informed automatically. He is
the tender-opening session and
present as an observer at
receives a copy of each tender.

Tenderers are bound by their tenders for the period specified in
the tender dossier. This period must be sufficient to allow the

Only tenders in envelopes received by the date and time
indicated in the tender dossier are considered for evaluation.

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The purpose of the tender-opening session is to check that the
tenders are complete, that the requisite tender guarantee has
been provided, that the documents have been duly signed and
that is the tenders are generally in order.

Minutes are taken of
the tender-opening session. They are
signed by all members of the evaluation committee and state:

— the date, time and place of the session,

— the persons present,

20.10. Award of the contract

20.10.1. Choice of contractor

The successful tenderer is the one submitting the ‘most econ-
i.e. the least expensive tender
omically advantageous’ tender,
classified as ‘technically compliant’ during technical evaluation.
This must be declared the successful tender if it is equal to or
lower than the budget allocated for the contract.

the chosen tender exceeds the budget allocated for the

If
contract, the provisions set out in section 19.1.2 (c) apply.

— the names of the tenderers who have replied within the

deadline,

‘Preferences’, must be
The rule described in section 3.8 (a),
applied. Moreover, where two tenders are acknowledged to
be equivalent, preference shall be given:

— whether tenders have been submitted in sealed envelopes,

— whether tenders have been duly signed and the requisite

number of copies sent,

(a) to the tenderer of an ACP State or

(b) if no such tender is forthcoming, to the tenderer who:

— the tender prices,

— the names of tenderers whose tenders were found to be

non-compliant at the opening session,

— the names of any tenderers who withdrew their tenders,

— any declarations made by the tenderers.

20.9. Evaluation of tenders

Before conducting a detailed evaluation of the tenders, the
contracting authority checks
they comply with the
essential requirements of the tender dossier.

that

A tender is deemed to comply if it satisfies all the conditions,
procedures and specifications in the tender dossier without
substantially departing from or attaching restrictions to them.
Substantial departures or restrictions are those which would
affect the scope, quality or implementation of the contract,
limit the
differ widely from the terms of the tender dossier,
rights of the contracting authority or the tenderer's obligations
under the contract or distort competition for tenderers whose
tenders do comply.

Tenders which do not comply with the tender dossier must be
rejected by the contracting authority and may not subsequently
be made to comply by undergoing corrections or having
discrepancies or restrictions removed.

Having evaluated the tenders,
technical
admissibility of
technically compliant or non-compliant.

the committee rules on the
as

classifying it

each tender,

the

technical

evaluation has been completed,

the
Once
committee checks that
the tenders contain no arithmetic
errors; any errors are corrected without prejudice to the
tenderer.

— permits the best possible use of the physical and human

resources of the ACP States,

— offers the greatest subcontracting possibilities to ACP

companies, firms or natural persons or

— is a consortium of natural persons, companies and

firms from ACP States and the Community.

The entire evaluation procedure must be recorded in an
to be signed by all the members of the
evaluation report
committee. This report must state why tenders were deemed
technically non-compliant and how they fell short of
the
technical specifications laid down. The contracting authotity
then transmits the evaluation report and the contract award
proposal to the Head of Delegation for approval.

The Head of Delegation shall approve within 30 days the
the placing of direct
contracting authority's proposal
agreement contracts, emergency assistance contracts and all
other works contracts with a value less than EUR 5 000 000.

for

For all other works contracts not covered by the above, the
the
Head of Delegation shall approve within 30 days
contracting authority's proposal
the
the placing of
contract wherever the following conditions are fulfilled:

for

— the tender selected is the lowest of those conforming to the

requirements of the tender dossier,

— the tender selected meets all the selection criteria stated in

the tender dossier and

— the tender selected does not exceed the sum earmarked for

the contract.

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Where the conditions are not fulfilled, the Head of Delegation
shall forward the proposal to the Commission who shall decide
thereon within 60 days of
the Head of
Delegation. Where the price of the selected tender exceeds
the sum earmarked for the contract, the Commission shall,
upon giving approval
to the award, make the necessary
financial commitment.

the receipt of

The entire evaluation procedure, including notification of the
successful tenderer, must be completed while the tenders are
still valid. It is important to bear in mind that the successful
tenderer might be unable to maintain his
the
evaluation procedure takes too long.

tender

if

the
The entire tender procedure up to the notification of
tenderer is strictly confidential. The committee's
successful
decisions are collective and its deliberations must
remain
secret. The members of the committee are bound to secrecy.

The evaluation reports and minutes,
in particular, are for
official use only and may be divulged neither to tenderers
nor to any party outside the authorised departments of the
ACP State or States concerned, the Commission and the super-
visory authorities (Court of Auditors, etc.).

20.10.2. Notification of award of contract

tenders expires,

After the Commission has given its formal approval and before
the contracting
the period of validity of
authority notifies the successful tenderer in writing that his
tender has been accepted.
It must also send the other
tenderers a standard letter informing them that their tenders
have been unsuccessful. This letter states whether tenders were
technically compliant and indicates any technical shortcomings.

Where a contract is awarded under a financing agreement, the
contracting authority must not notify the successful tenderer
the financing agreement has been concluded (see
unless
section 5, ‘Tender procedure with suspension clause’).

Once the contract has been signed, the Commission publishes
the results of the tender procedure (contract award notice) in
the Official Journal of the European Communities, on the Internet
and in any other appropriate media. Post-award notices must
state the number of tenders received, the date of award of the
contract, the name and address of the successful tenderer and
the contract price.

20.10.3. Signing of the contract

Once signed by the contracting authority the contract is sent to
the successful tenderer, who must countersign it within 30
days of receipt and return it with the performance guarantee.

parties. The parties are bound by the contract
moment
selecting the date.

from the
signed, hence the importance of carefully

is

it

21. LOCAL OPEN TENDER PROCEDURE

(FOR CONTRACTS

BETWEEN EUR 300 000 AND EUR 5 000 000)

In this case, the procurement notice is published only in the
ACP State or States concerned. The Commission publishes the
references of such tender procedures (dossier number, country,
contracting authority and type of contract) on the Internet with
the address of the Delegation from which firms can obtain
further information.

Note that a local open tender procedure must provide other
eligible contractors with the same opportunities as local firms.
No conditions seeking to restrict the participation of other
eligible contractors are allowed (e.g. obliging such firms to
to have won
be registered in the recipient country or
contracts there in the past).

In this procedure,
there must be a minimum of 60 days
between the date of publication of the procurement notice in
the local press and the deadline for receipt of tenders.

The measures applicable to an international open procedure, as
described in section 20, apply by analogy to the local open
procedure.

22. SIMPLIFIED

PROCEDURE

(FOR

CONTRACTS

UNDER

EUR 300 000)

contracting

award contracts under
The
EUR 300 000 by simplified procedure, without publication.
It must consult at least three firms of its choice.

authority may

The contracting authority draws up a list of at least three firms.
The candidates receive a letter of invitation to tender accom-
panied by the relevant technical specifications.

Tenders must reach the contracting authority at the address,
and, at the very latest, the date and time indicated in the letter
of invitation to tender. The chosen candidates must be allowed
at least 30 days from the dispatch of the letter of invitation to
tender in which to submit their tenders.

Tenders are opened and evaluated by an evaluation committee
possessing the requisite technical and administrative capacities.
Tenders are evaluated as they would be in an open tender
procedure.
the contracting authority receives fewer than
three compliant tenders, the procedure must be cancelled and
started again.

If

The contract must be dated. It cannot cover earlier services nor
enter into force before the date on which it is signed by the

However, the contracting authority may place orders for works
of a value of EUR 5 000 or less on the basis of a single quote.

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ANNEX I

COMPETITION RULES

SERVICES

SUPPLIES

WORKS

x ‡ EUR 200 000

x > EUR 150 000

x > EUR 5 000 000

International restricted tender procedure

International open tender procedure

International open tender procedure

4 to 8 service providers invited

EUR 30 000 £ x £ EUR 150 000

EUR 300 000 £ x £ EUR 5 000 000

Local open tender procedure

Local open tender procedure

x < EUR 200 000

x < EUR 30 000

x < EUR 300 000

1. Framework contract, or

2. Simplified procedure with consul-
tation of at least 3 service providers

3. x £ EUR 5 000: a single quote

1. Simplified procedure with consul-

1. Simplified procedure with consul-

tation of at least 3 suppliers

tation of at least 3 contractors

2. x £ EUR 5 000: a single quote

2. x £ EUR 5 000: a single quote

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ANNEX II

DEFINITIONS

Community: The European Community.

EDF: The European Development Fund.

ACP States: The African, Caribbean and Pacific States signatories of the ACP-CE Partnership Agreement signed in
Cotonou on 23 June 2000.

Member State: Member States of the European Community.

Commission: The Commission of the European Communities.

Head of Delegation: The representative of the Commission in the ACP States.

Contracting authority: The State or the public or private legal person concluding the contract, as provided for in the
financing agreement.

Study contract: A service contract between a service provider and the contracting authority concerning, for example,
identification and preparatory studies for projects, feasibility studies, economic and market studies, technical studies,
evaluations and audits.

Technical assistance contract: A contract between a service provider and the contracting authority under which the
service provider exercises an advisory role, directs or supervises a project, provides the experts stipulated in the contract
or acts as a procurement agent.

Supply contract: A contract between a supplier and the contracting authority for the purchase, lease, hire or hire-
purchase, with or without an option to buy, of goods. It may also cover such tasks as installation, servicing, repairs,
training and after-sales service.

Works contract: A contract between a construction firm and the contracting authority for the execution of works or
the building of a structure.

Hybrid contract: A contract between the contracting authority and a service provider, supplier or construction firm
covering two or more of the following: works, supplies and services.

Framework contract: A fixed-term contract for the provision of an undetermined volume of a specific category of
services or supplies.

Candidate: Any natural or legal person or group thereof applying to take part in a restricted procedure.

Tenderer: Any natural or legal person or group thereof submitting a tender with a view to concluding a contract.

Contractor: The tenderer selected at the end of the procedure for the award of the contract.

Open procedure: Procedure in which any natural or legal person or group thereof may submit a tender in response to
a procurement notice.

Restricted procedure: Procedure in which, after publication of a procurement notice, only candidates invited by the
contracting authority may submit a tender.

Simplified procedure: Procedure without prior publication of a procurement notice, in which only candidates invited
by the contracting authority may submit tenders.

Negotiated procedure: Procedure without prior publication of a procurement notice,
in which the contracting
authority consults the candidate or candidates of its choice and negotiates the terms of the contract with one or
more of them (see sections 10.1.2, 14.1.2, 14.2.2 and 19.1.2).

labour operations: Projects and programmes implemented through public or semi-public agencies or

Direct
departments of the ACP State or States concerned or by the person responsible for executing the operation.

Relevant media: Publication in the Official Journal of the European Communities and on the Internet is obligatory for all
contracts covered by these general regulations. Publication in the Official Journals of the ACP States and, if need be,
specialised publications is necessary.

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Tender dossier: The dossier, either prepared by the Commission and sent to the contracting authority for approval and
launching of the procedure (international tenders) or submitted by the contracting authority for approval to the Head of
Delegation before issuing it (all the other tenders) and containing all the documents needed to prepare and submit a
tender.

General conditions: The general contractual provisions setting out the administrative, financial, legal and technical
clauses governing the execution of contracts.

Special conditions: The special conditions laid down by the contracting authority as an integral part of the tender
dossier, including amendments to the general conditions, clauses specific to the contract, the terms of reference (for a
service contract) or technical specifications (for a supply or works contract) and any other point regarding the contract.

Terms of reference: The document drawn up by the contracting authority setting out its requirements and/or
objectives in respect of the provision of services, specifying, where relevant, the methods and resources to be used
and/or results to be attained.

Evaluation committee: A committee made up of an odd number of members (at least three) possessing the technical
and administrative capacities necessary to give an informed opinion on tenders.

Day: Calendar day.

Period: A period begins the day after the act or event chosen as its starting point. Where the last day of a period is not
a working day, the period expires at the end of the next working day.

Conflict of interests: Any event influencing the capacity of a candidate, tenderer or contractor to given an objective
and impartial professional opinion, or preventing it, at any moment, from giving priority to the interests of the
contracting authority. Any consideration relating to possible contracts in the future or conflict with other commitments,
past or present, of a candidate, tenderer or contractor. These restrictions also apply to subcontractor and employees of
the candidate, tenderer or contractor.

Most economically advantageous tender: The best tender by the criteria laid down for the contract in question, e.g.
quality, technical properties, aesthetic and functional qualities, after-sales service and technical assistance, delivery date or
performance period, the price or lowest price. These criteria must be published in the procurement notice or stated in
the tender dossier.