2002/911/EC: Decision No 2/2002 of the ACP-EC Council of Ministers of 7 October 2002 regarding the implementation of Articles 28, 29 and 30 of Annex IV to the Cotonou Agreement
Date: 2002-10-07
Institutions: ACP Council of Ministers
Subjects: ACP-EU Council of Ministers, European Development Fund, agreement (EU), award of contract, cooperation policy, financial legislation, financial market, public contract

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II

(Acts whose publication is not obligatory)

COUNCIL

DECISION No 2/2002 OF THE ACP-EC COUNCIL OF MINISTERS

of 7 October 2002

regarding the implementation of Articles 28, 29 and 30 of Annex IV to the Cotonou Agreement

(2002/911/EC)

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, 29
and 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)

(2)

(3)

(4)

Article 28 of Annex IV to the Cotonou Agreement
provides that the award of contracts financed from the
resources of the European Development Fund is to be
governed by Annex IV and the procedures adopted by
decision of the ACP-EC Council of Ministers following a
recommendation by the ACP-EC Development Finance
Cooperation Committee.

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 is to be governed by the general
conditions applicable to contracts financed by the Fund
which are to be adopted by decision of the ACP-EC
Council of Ministers upon the recommendation of the
ACP-EC Development Finance Cooperation Committee.

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 transnational
contract financed by the European Development Fund
shall be settled by arbitration in accordance with the
procedural
the
ACP-EC Council of Ministers upon the recommendation
of
Finance Cooperation
Committee.

rules to be adopted by decision of

the ACP-EC Development

Provision should be made for applying the general
rules
regulations,

the general

conditions

and the

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.

regulations

complying with

New general
the
Community rules on the award of public contracts and
applying to cooperation with third countries should be
adopted as required by Article 28 of Annex IV to the
Cotonou Agreement.

applicable

conditions

the general

By contrast,
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 appropriate to ACP-EC cooperation. It is therefore
desirable to extend the period of application of the texts
in question.

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 Community external cooperation programmes,
whilst taking into account the specific nature of the
ACP-EC partnership.

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 regulations and general conditions,

(5)

(6)

(7)

(8)

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

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governed by the annexed general regulations on works, supply
and service contracts financed by the European Development
Fund.

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 2

General conditions

Article 5

Application

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

the performance of

(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

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

the general

the ACP-EC Council of Ministers decides
Except where
regulations and general conditions
otherwise,
referred to in Articles 1 and 2 shall apply to contracts financed
from the resources of the ninth European Development Fund.
They shall also apply to contracts financed from any future
fund under the Cotonou Agreement.

Article 6

Entry into force

This Decision shall take effect on the date of entry into force
of the Cotonou Agreement.

Article 7

Implementing measures

The ACP States, the Member States of the Community and the
Community shall be required to take the measures necessary to
implement this Decision, each acting on its own behalf.
In
particular,
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.

the ACP States and the Commission shall

Article 4

Dispute settlement

Done at Brussels, 7 October 2002.

Disputes regarding contracts financed from the resources of
the European Development Fund which, under the general
regulations and general conditions governing such contracts,
must be settled in accordance with the conciliation and

The Chairman of the ACP-EC Committee of
Ambassadors by delegation, for the ACP-EC
Council of Ministers

Sutiawan GUNESSEE

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ANNEX

GENERAL REGULATIONS

For service, supply and works contracts financed by the European Development Fund (EDF)

I

BASIC RULES GOVERNING ALL CONTRACTS

CONTENTS

1.

2.

2.1.

2.2.

2.3.

2.4.

3.

3.1.

3.2.

3.3.

3.4.

3.5.

3.6.

3.7.

3.8.

4.

5.

6.

7.

8.

Introduction

Eligibility for contracts

The rule on nationality and origin

Exceptions to the rule on nationality and origin

Grounds for exclusion from participation in contracts

Participation on equal terms

Contract award procedures

Open procedure

Restricted procedure

Simplified procedure

Framework contracts

Direct labour operations (programme estimate)

Humanitarian and emergency assistance

Tendering arrangements

Preferences

Selection and award criteria

Tender procedure with (cid:145)suspension clause(cid:146)

Cancellation of award procedures

Ethics clauses

Appeals

II

SPECIFIC RULES GOVERNING SERVICE CONTRACT

9.

10.

Introduction

Award procedures

10.1.

Contracts of EUR 200 000 or more

10.1.1.

Restricted procedure

10.1.2.

Negotiated procedure

10.2.

Contracts under EUR 200 000

10.2.1.

Framework contracts and simplified procedure

11.

11.1.

International restricted tender procedures (for contracts of EUR 200 000 or more)

Publicity

11.1.1.

Publication of contract forecasts

11.1.2.

Publication of service procurement notices

11.2.

11.3.

11.4.

11.5.

11.6.

11.7.

11.8.

Establishment of shortlists

Drafting and contents of the tender dossier

Award criteria

Additional information during the procedure

Deadline for the submission of tenders

Period during which tenders are binding

Submission of tenders

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11.9.

Opening of tenders

11.10.

Evaluation of tenders

11.10.1.

Evaluation of technical offers

11.10.2.

Evaluation of financial offers

11.11.

Award of the contract

11.11.1.

Choice of contractor

11.11.2. Notification of award of contract

11.11.3.

Signing of the contract

11.12.

11.13.

12.

12.1.

12.2.

Approval of experts

Provision and replacement of experts

Procedures for the award of contracts under EUR 200 000

Framework contract

Simplified procedure

III

SPECIFIC RULES GOVERNING SUPPLY CONTRACTS

13.

14.

Introduction

Award procedures

14.1.

Contracts above EUR 150 000

14.1.1.

Open procedure

14.1.2.

Negotiated procedure

14.2.

Contracts between EUR 30 000 and EUR 150 000

14.2.1.

Local open procedure

14.2.2.

Negotiated procedure

14.3.

Contracts under EUR 30 000

14.3.1.

Simplified procedure

15.

15.1.

International open tender procedure (for contracts above EUR 150 000)

Publicity

15.1.1.

Publication of supply procurement notices

15.2.

15.3.

15.4.

15.5.

15.6.

15.7.

15.8.

15.9.

Drafting and contents of the tender dossier

Selection and award criteria

Additional information during the procedure

Deadline for the submission of tenders

Period during which tenders are binding

Submission of tenders

Opening of tenders

Evaluation of tenders

15.10.

Award of the contract

15.10.1.

Choice of contractor

15.10.2. Notification of award of contract

15.10.3.

Signing of the contract

16.

17.

Local open tender procedure (for contracts between EUR 30 000 and EUR 150 000)

Simplified procedure (for contracts under EUR 30 000)

IV

SPECIFIC RULES GOVERNING WORKS CONTRACTS

18.

19.

Introduction

Award procedures

19.1.

Contracts above EUR 5 000 000

19.1.1.

Open procedure

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19.1.2.

Negotiated procedure

19.2.

Contracts between EUR 300 000 and EUR 5 000 000

19.2.1.

Local open procedure

19.2.2.

Negotiated procedure

19.3.

Contracts under EUR 300 000

19.3.1.

Simplified procedure

20.

20.1.

International open tender procedure (for contracts above EUR 5 000 000)

Publicity

20.1.1.

Publication of works procurement notices

20.2.

20.3.

20.4.

20.5.

20.6.

20.7.

20.8.

20.9.

Drafting and contents of the tender dossier

Selection and award criteria

Additional information during the procedure

Deadline for submission of tenders

Period during which tenders are binding

Submission of tenders

Opening of tenders

Evaluation of tenders

20.10.

Award of the contract

20.10.1.

Choice of contractor

20.10.2. Notification of award of contract

20.10.3.

Signing of the contract

21.

22.

Local open tender procedure (for contracts between EUR 300 000 and EUR 5 000 000)

Simplified procedure (for contracts under EUR 300 000)

Annexes:

Annex 1:

Annex 2:

Competition rules

Definitions

1.

INTRODUCTION

PART I

BASIC RULES GOVERNING ALL CONTRACTS

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.

These general regulations comprise the principles and conditions for participation in contracts, instructions
to tenderers, and the principles and conditions for the award of contracts.

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.:

(cid:151) the general conditions prescribed by the national

legislation of the ACP State concerned or its

established practices regarding international contracts, or

(cid:151) any other international general conditions for contracts, and

(c)

the special conditions.

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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
contracting authority shall apply.

law of the State of the

2.

ELIGIBILITY FOR CONTRACTS

The provisions governing who may participate in tender procedures and contracts are termed (cid:145)eligibility
criteria(cid:146). Hence the rule on the nationality of natural and legal persons and the origin of supplies.

2.1.

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:

(cid:151) natural persons, companies or firms or public or semi-public agencies of the ACP States and the

Member States,

(cid:151) cooperative societies and other legal persons governed by public or private law, of the Member

States and/or the ACP States and

(cid:151) 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 taking part in tender
procedures or service contracts financed by the Community.

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 (cid:145)originating products(cid:146) shall be assessed by reference to
the relevant
include
supplies originating in the Overseas Countries, Territories and Departments.

international agreements (1) and supplies originating in the Community shall

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.

2.2.

Exceptions to the rule on nationality and origin

In order to ensure the optimum cost-effectiveness of the system, natural or legal persons from non-ACP
developing countries may be authorised 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

(1) Especially in comparison with the Protocol 1 included in Annex V of the ACP-EU Partnership Agreement.

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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 of contractors, suppliers and consultants from the Member States and the ACP
States;

(c)

the need to avoid excessive increases in the cost of performance of the contract;

(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
Delegation, the contracting authority shall decide on:

to inform the Head of

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

(b) use of construction equipment and machinery not originating 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

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

(a)

(b)

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 similar procedure provided for in national legislation or regulations;

they are the subject of proceedings for a declaration of bankruptcy, for winding-up, for administration
by the courts, for an arrangement with creditors or for any similar procedure provided for in national
legislation or regulations;

(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)

(f)

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;

they have not
provisions of the country where they are established;

fulfilled obligations relating to the payment of

taxes in accordance with the legal

(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;

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(i)

they are in one of the situations allowing exclusion referred to in point 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.

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). 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.

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:

(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

technical specifications which might stand in the way of

widespread participation on equal terms;

(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 that the tender selected conforms to the requirements of the tender dossier and meets the award

criteria stated therein.

3.

CONTRACT AWARD PROCEDURES

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

(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

The open procedure involves an open invitation to take part in competitive tendering. The contract 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.

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
technical and professional
standing of tenderers) and the award procedure (i.e. comparison of tenders), in accordance with point 4,
(cid:145)Selection and award criteria(cid:146). No negotiation is allowed.

the financial, economic,

the eligibility and of

3.2.

Restricted procedure

Under the restricted procedure, 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.

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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 Journal of the European Communities, on the Internet, in the Official Journals of all the ACP States and
in any other appropriate media.

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 point 4, (cid:145)Selection and award criteria(cid:146)). No negotiation is allowed.

3.3.

Simplified procedure

Under the simplified procedure, the contracting authority 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.

For each individual contract (assignment), the contracting 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.

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.

3.6.

Humanitarian and emergency assistance

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 humanitarian 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 humanitarian and emergency assistance operations it
undertakes under its procedures permitting operations that are rapid, flexible and effective.

3.7.

Tendering arrangements

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.

In the case of mixed contracts covering a combination of works, supplies or services, the contracting
authority, in agreement with the Commission, determines the award procedure to be used. This will depend
on which of the 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.

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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 on the matter before embarking on the procurement procedure.

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 tenderers
(especially in cases in which publicly-owned 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 contracting authority must
keep such additional information confidential. Tenderers must routinely state that their financial offers cover
all their costs, including overheads.

3.8.

Preferences

Measures shall be taken to encourage the widest participation of the natural and legal persons of ACP States
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:

(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 originates from one or more ACP States,
shall be accorded a 10 % price preference where tenders of an equivalent economic, technical and
administrative quality are compared;

(b)

for supply contracts, irrespective of the value 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;

(cid:151) experts, institutions or consultancy companies or firms from ACP States,

(cid:151) offers submitted by an ACP firm in a consortium with European partners, and

(cid:151) offers presented by European tenderers with ACP sub-contractors or experts.

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

(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 cooperation 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 contracts are awarded by open or restricted procedure,
performed:

the following operations are always

(a) Selection procedure based on selection criteria published in the procurement notice:

(cid:151) verification of the eligibility of tenderers or candidates as laid down in point 2, Eligibility for

contracts;

(cid:151) verification of the financial and economic standing of tenderers or candidates;

(cid:151) verification of the technical and professional capacities of tenderers, candidates and their managerial

staff.

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

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(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 (cid:145)SUSPENSION CLAUSE(cid:146)

In exceptional and duly justified cases, tender procedures may be published with a (cid:145)suspension clause(cid:146). This
means that a tender procedure is issued before a financing decision is issued or a financing agreement 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.

Because of
procurement notice.

its implications, the existence of a suspension clause must be explicitly mentioned in the

The tender procedure will invariably be cancelled if the Commission’s decision-making procedure is not
completed or the financing agreement is not signed.

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;

(c) exceptional circumstances, or force majeure, render normal performance of the contract impossible;

(d) where all technically compliant tenders exceed the financial resources available;

(e) where there have been serious irregularities in the procedure, in particular where these have prevented

normal competition.

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

(a)

to launch a new tender procedure;

(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;

(c) not to award the contract.

Whatever the case, the final decision is taken by the contracting authority with the agreement of the
Commission.

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.

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 out works or supply equipment for the project. This 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.

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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 contractor must
immediately inform the contracting authority.

the contract,

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

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.

The contractor and his staff are obliged to maintain 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 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.

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

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, (cid:145)corrupt practices(cid:146) 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.

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.

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.

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 individual or company in
question must be informed of the fact in writing.

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.

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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 maladministration 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.

PART II

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 them for studies or technical assistance.

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

Study contracts generally specify an outcome, i.e. the contractor must provide a given product: the technical
and operational means by which he achieves the specified outcome are irrelevant. These are, therefore,
lump-sum contracts and the contractor will be paid only if the specified outcome is achieved.

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.

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 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 contracting authority and the Head of Delegation will draw up shortlists in close consultation with each
other. 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, the contracting authority is responsible for launching
all the tender procedures, receiving tenders, chairing tender-examination sessions and deciding on the results
of tender procedures. The contracting authority then submits the result of this examination and the contract
award proposal to the Head of Delegation for approval. Once the award is approved, the contracting
authority will sign the contracts and notify the Head of Delegation 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 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.

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.

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(cid:145)Service provider(cid:146) 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 (cid:145)candidate(cid:146); a service provider submitting a
tender is termed a (cid:145)tenderer(cid:146).

10.

AWARD PROCEDURES

10.1.

Contracts of EUR 200 000 or more

10.1.1.

Restricted procedure

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
point 11.1, (cid:145)Publicity(cid:146).

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 unforeseeable events oblige the contracting authority to act with an urgency incompatible with
the periods laid down for the restricted or simplified procedures described in points 11 and 12.2. The
circumstances invoked to justify extreme urgency must in no way be attributable to the contracting
authority.
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;

In this context,

(b) where services are being provided by public entities or non-profit institutions or associations; non-profit
institutions or associations cannot automatically be presumed to be contractors with no profit motive,
and cannot therefore always be dealt with through a negotiated procedure (cid:151) the latter is admissible
only where the aim of the contract is not motivated by economic or commercial considerations, and
would include cases in which the operation was institutional
in nature or sought, for example, to
provide individuals with social assistance;

(c)

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

(cid:151) complementary services not

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

to two conditions:

(cid:151) additional services repeat services performed by the supplier under an earlier contract. This
provision is subject
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;

(i)

(d) where the tender procedure has remained unsuccessful,

i.e. where no qualitatively or financially
worthwhile tender has been received;
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 conditions of the tender procedure are not
substantially altered (see point 6, Cancellation of award procedures). The Commission’s approval must be
sought first;

in such cases, after cancelling the tender procedure,

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

awarded to the or a winner.
negotiations.

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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
point 10.1.2 provides for the negotiated procedure.

11.

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

11.1.

Publicity

In order to ensure the widest possible participation in 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.

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

The contract forecasts are published in the Official Journal of the European Communities, on the Internet and in
any other appropriate 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.

The notice must state clearly, precisely, and completely what the subject of the contract is, and who the
contracting authority is. It must specify the maximum budget available for the intended operation and the
forecast 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 Journal of the
European Communities and on the Internet and appear at the same time. 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 any local publication.

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 their capacity to fulfil the contract in question can be assessed.
The selection procedure involves:

(cid:151) eliminating candidates who are ineligible (see point 2, Eligibility for contracts) or fall into one of the

situations described in point 7, Ethics clauses,

(cid:151) checking that the candidates’ financial situation (financial and economic standing) is sound, as backed

up, for example, by balance sheets and turnover for the previous three years;

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(cid:151) verifying the candidates’ technical and professional capabilities, 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 satisfactory 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 shortlisted.

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

The contracting authority may allow subcontracting with other suppliers provided that the tenderer’s tender
clearly provides for it, that the subcontractor complies with the eligibility conditions set out in point 2,
Eligibility for contracts, and point 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.

Candidates not selected will be informed of that 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.

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.

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

The Commission is responsible for drawing up these documents. The contracting authority will send only
the shortlisted candidates a letter of invitation to tender accompanied by the approved tender dossier
comprising the following documents:

(cid:151) instructions to tenderers, which must include: (i) the type of contract, (ii) the award criteria and their
(iv) whether
the
(vi)

weightings,
variants are allowed,
maximum budget available for the contract and (vii) the currency of the tenders,

(iii) whether interviews are possible and when they are likely to be held,

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

(cid:151) the shortlist of candidates (stipulating that they cannot form alliances),

(cid:151) the general conditions for service contracts financed by the EDF,

(cid:151) special conditions, which amplify, supplement or derogate from the general conditions and, where they

conflict, override them,

(cid:151) terms of reference, with a forecast schedule for the contract and forecast dates from which the main

experts must be available,

(cid:151) price schedule (for completion by the tenderer),

(cid:151) tender form,

(cid:151) contract form,

(cid:151) 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.

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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 technical 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 country,
the work schedule, the appropriateness of the 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.

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 parameters that are easy to identify in the tenders and, if possible, quantifiable.

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

11.5.

Additional information during the procedure

The tender dossier should be clear enough to prevent 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

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 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 50 days. However, in urgent cases, with prior authorisation 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

in an outer parcel or
Tenders must be submitted in accordance with the double envelope system,
envelope containing two separate, sealed envelopes, one bearing the words (cid:145)Envelope A (cid:151) technical offer(cid:146)
and the other (cid:145)Envelope B (cid:151) financial offer(cid:146).

i.e.

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.

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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:

(cid:151) the address for submission of tenders specified in the tender dossier,

(cid:151) the reference of the tender procedure to which the tenderer is responding,

(cid:151) where applicable, the numbers of the lots tendered for,

(cid:151) the words (cid:145)not to be opened before the tender-opening session(cid:146) in the language of the tender dossier.

11.9.

Opening of 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.

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.

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 contracting authority once signed by members of the committee.

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:

(cid:151) the date, time and place of the session,

(cid:151) the persons present,

(cid:151) the names of the tenderers who submitted tenders within the stipulated deadline,

(cid:151) whether tenders were submitted using the double-envelope system,

(cid:151) whether the originals of the tenders were duly signed, and whether technical offers were sent in the

requisite number of copies,

(cid:151) the names of any tenderers whose tenders were found to be non-compliant at the opening session,

(cid:151) the names of any tenderers who withdrew their tenders.

11.10.

Evaluation of tenders

11.10.1. Evaluation of technical offers

Before tenders are opened, the chairman of the committee checks that all members are familiar with the
technical 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.

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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 point 11.4., Award criteria).
In no circumstances may the committee or its members change the technical evaluation grid communicated
to the tenderers in the tender dossier.

In practice, it is recommended that tenders be scored for a 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.

If interviews were provided for in the tender dossier, the committee may, after writing up its provisional
conclusions and before definitively concluding its evaluation of 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, preferably collectively in the case of a team, at intervals close enough to
permit comparison. Interviews must 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 10 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.

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.

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 initial
technical evaluation of the tender. The need for interviews must be accepted by the Head of Delegation. The
indicative timetable for these interviews must be given in the tender dossier.

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 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:

Points = (initial score of the tender in question/initial score of the best technical offer) (cid:215) 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 checks that the financial offers contain no arithmetic errors. Any arithmetic
errors are corrected without prejudice to the tenderer.

Comparison of the financial offers takes account of all contract expenses (fees, direct or lump-sum costs, etc.)
with the 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.

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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) (cid:215) 100.

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:

(cid:151) the scores awarded to the technical offers by 0,80,

(cid:151) 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, preference shall be given:

(a)

to the tenderer of an ACP State or

(b)

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

(cid:151) permits the best possible use of the physical and human resources of the ACP States,

(cid:151) offers the greatest subcontracting possibilities to ACP companies, firms or natural persons, or

(cid:151) is a consortium of natural persons, companies and firms from ACP States and the Community.

The entire procedure (technical and price evaluation) is recorded in minutes to be signed by all members of
the committee and approved by the contracting authority. The latter submits the result of the tender
evaluation 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 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.

The entire tender procedure, from the drawing-up of the shortlist to the notification of the successful
tenderer, is strictly confidential. The committee’s decisions are collective and its deliberations must remain
secret. The committee members 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 supervisory authorities (Court of Auditors, etc.).

11.11.2. Notification of award of contract

After the Commission has given its formal approval and before the period of validity of tenders expires, 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 addressee’s tender, the detailed score achieved by that tender and
the aggregate scores achieved by the other tenderers.

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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 point 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
countersign and return it within 30 days of receipt.

is sent

to the successful

tenderer, who must

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 from the moment it is signed. Hence the importance of
carefully selecting the date.

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.

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

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 the contract has even begun or
while it is in progress. In 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. resignation, 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.

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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.

Any additional expenses resulting from the replacement of staff are borne by the contractor. Where a expert
is not replaced immediately and some time elapses before the new expert takes up his functions, the
contracting authority may ask the contractor to assign a temporary expert to the project 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 expert or his replacement (whether temporary or
permanent).

12.

PROCEDURES FOR THE AWARD OF CONTRACTS UNDER EUR 200 000

12.1.

Framework contract

For service contracts under EUR 200 000 and with a performance period of under 12 months,
contracting authority may opt to use framework contracts.

the

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 point 11) 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 Commission, acting for and on behalf of the ACP State 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 agreed when the framework contract was concluded. The Commission chooses the
most economically advantageous tender and notifies the chosen contractor.

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 possible, the contracting authority may award a
service contract under EUR 200 000 by simplified procedure, without publication.

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 impartiality. After evaluating the
tenders, the committee identifies the most economically advantageous tender on the basis of technical quality
and price. If the contracting authority receives fewer than three compliant tenders, the procedure must be
cancelled and started again.

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

PART III

SPECIFIC RULES GOVERNING SUPPLY CONTRACTS

13.

INTRODUCTION

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

(cid:145)Supplier(cid:146) describes any natural or legal person furnishing supplies. A supplier submitting a tender is known
as a (cid:145)tenderer(cid:146) and one applying to take part in a simplified procedure as a (cid:145)candidate(cid:146).

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 State with which the Commission
draws up a financing agreement.

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, the contracting authority is responsible for launching all the
tender procedures, receiving tenders, chairing tender-examination sessions and deciding on the results of
tender procedures. The contracting authority then submits the result of 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 contracts and notifies the Head of Delegation accordingly. The Head of Delegation is
normally represented when tenders are opened and evaluated and must always be formally invited.

14.

AWARD PROCEDURES

14.1.

Contracts above EUR 150 000

14.1.1.

Open procedure

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

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:

(a) Where unforeseeable events oblige the contracting authority to act with an urgency incompatible with
the periods laid down for the open or simplified procedures described in points 15, 16 and 17. The
circumstances invoked to justify extreme urgency must in no way be attributable to the contracting
authority.
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.

In this context,

(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 installations or as the extension of existing supplies or installations where a change of
supplier would oblige the recipient to acquire goods having different technical characteristics which
would result
in either incompatibility or disproportionate technical difficulties in operation and
maintenance.

(d) Where a 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 suppliers chosen
by it from among those that took part in the tender procedure, provided that the initial requirements of
the tender dossier are not substantially altered (see point 6, Cancellation of award procedures).

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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.

14.2.2.

Negotiated procedure

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

14.3.

Contracts under EUR 30 000

14.3.1.

Simplified procedure

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

15.

INTERNATIONAL OPEN TENDER PROCEDURE (FOR CONTRACTS ABOVE EUR 150 000)

15.1.

Publicity

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

15.1.1.

Publication of supply procurement notices

The procurement notice is published in the Official
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 European Communities,

Journal of

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 Journal of the European Communities and on the Internet and appear at the same time.

The tender dossier for the contract in question is sent to would-be suppliers by the contracting authority or
the Commission (delegations, offices in the Member States or headquarters).

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

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:

(cid:151) instructions to tenderers, which must include: (i) the contract award criteria, (ii) whether variants are

authorised and (iii) the currency of the tender,

(cid:151) the general conditions for supply contracts financed by the EDF,

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(cid:151) special conditions, which amplify, supplement or derogate from the general conditions and, where they

conflict, override them,

(cid:151) technical annexes, containing plans, technical specifications and provisional timetable for performance,

(cid:151) price schedule (for completion by the tenderer),

(cid:151) tender form,

(cid:151) contract form,

(cid:151) guarantee forms from a bank or similar institution for:

(cid:151) the tender (1 to 2 % of the budget available for the contract),

(cid:151) the payment of advances,

(cid:151) performance (10 % of the contract value).

Unless warranted by the nature of the contract, technical specifications 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 (cid:145)or equivalent(cid:146).

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 capabilities.

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

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

from a tenderer, provides additional

information on the tender dossier,

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 point 15.1.1, (cid:145)Publication of
supply procurement notices(cid:146). 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.

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 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 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.

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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:

(cid:151) the address for submission of tenders indicated in the tender dossier,

(cid:151) the reference of the tender procedure to which the tenderer is responding,

(cid:151) where applicable, the numbers of the lots tendered for,

(cid:151) the words (cid:145)not to be opened before the tender-opening session(cid:146) written in the language of the tender

dossier.

15.8.

Opening of 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.

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 prices, the
provision of the requisite tender guarantee and any other formality which the contracting authority thinks
appropriate.

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
committee and state:

the tender-opening session. They are signed by all members of

the evaluation

(cid:151) the date, time and place of the session,

(cid:151) the persons present,

(cid:151) the names of the tenderers who have replied within the deadline,

(cid:151) whether tenders have been submitted in sealed envelopes,

(cid:151) whether tenders have been duly signed and the requisite number of copies sent,

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(cid:151) the tender prices,

(cid:151) the names of tenderers whose tenders were found to be non-compliant at the opening session,

(cid:151) the names of any tenderers who withdrew their tenders,

(cid:151) any declarations made by the tenderers.

15.9.

Evaluation of tenders

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

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 tender dossier, limit the 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, the committee rules on the technical admissibility of each tender, classifying it
as technically compliant or non-compliant. Where contracts include after-sales service and/or training, the
technical quality of such services is also assessed during the technical evaluation.

Once the technical evaluation has been completed, the 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

services. All
non-compliant offers having already been eliminated, the contract is awarded to the tenderer submitting
the least expensive, compliant tender.

involving after-sales

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

take account of

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

The rule described in point 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

(b)

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

(cid:151) permits the best possible use of the physical and human resources of the ACP States,

(cid:151) offers the greatest subcontracting possibilities to ACP companies, firms or natural persons, or

(cid:151) 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.

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

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

(cid:151) the tender selected is the lowest of those conforming to the requirements of the tender dossier,

(cid:151) the tender selected meets all the selection criteria stated in the tender dossier, and

(cid:151) 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 thereon within 60 days of the receipt 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 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 if the evaluation procedure takes too long.

The entire tender procedure up to the notification of the successful tenderer is strictly confidential. The
committee’s 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 supervisory authorities (Court of Auditors, etc.).

15.10.2. Notification of award of contract

After the Commission has given its formal approval and before the period of validity expires, the contracting
authority notifies the successful tenderer in writing that its 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 unless the financing agreement has been concluded (see point 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.

15.10.3. Signing of the contract

Once signed by the contracting authority the contract
to the successful
countersign it within 30 days of receipt and return it with the performance guarantee.

is sent

tenderer, who must

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 it is signed, hence the
importance of carefully selecting the date.

16.

LOCAL OPEN TENDER PROCEDURE (FOR CONTRACTS BETWEEN EUR 30 000 AND EUR 150 000)

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.

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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 point 15, apply by analogy to
the local open procedure.

17.

SIMPLIFIED PROCEDURE (FOR CONTRACTS UNDER EUR 30 000)

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

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

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 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 receives fewer than three
compliant tenders, the procedure must be cancelled and started again.

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

PART IV

SPECIFIC RULES GOVERNING WORKS CONTRACTS

18.

INTRODUCTION

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

(cid:145)Contractor(cid:146) describes any natural or legal person carrying out the works. A contractor submitting a tender is
known as a (cid:145)tenderer(cid:146) and one invited to take part in a restricted tender procedure or simplified procedure as
a (cid:145)candidate(cid:146).

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.

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, the contracting authority is responsible for launching all the
tender procedures, receiving tenders, chairing tender-examination sessions and deciding on the results of
tender procedures. The contracting authority then submits the result of 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 contracts and notifies the Head of Delegation accordingly. The Head of delegation is
normally represented when tenders are opened and evaluated and must always be formally invited.

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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 international open tender procedure following
publication of a procurement notice.

19.1.2.

Negotiated procedure

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 unforeseeable events oblige the contracting authority to act with an urgency incompatible with
the periods laid down for the open, restricted or simplified procedures described in points 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 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) For additional works not

through unforeseen
circumstances, become necessary for the carrying-out of the works described therein, provided that the
award is made to the contractor already carrying out such work:

included in the first contract but which have,

(cid:151) where such works cannot be technically or economically separated from the main contract without

major inconvenience to the recipient,

(cid:151) where such works, although separable from the execution of the original contract, are absolutely

necessary to its completion.

However, the aggregate cost of contracts awarded for 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 point 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 Commission, the contracting authority may also award works contracts by
negotiated procedure in the situations given in point 19.1.2.

19.3.

Contracts under EUR 300 000

19.3.1.

Simplified procedure

Works contracts under EUR 300 000 are awarded by simplified procedure. Three contractors must be
consulted, but no procurement notice need be published.

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20.

INTERNATIONAL OPEN TENDER PROCEDURE (FOR CONTRACTS ABOVE EUR 5 000 000)

20.1.

Publicity

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

20.1.1.

Publication of works procurement notices

The procurement notice is published in the Official
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. The ACP
States must see to local publication.

the European Communities,

Journal of

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 Journal of the European Communities and on the Internet and appear at the same time.

The contracting authority must send tender dossiers 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 undertaking 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 contain all the provisions and information that tenderers need to present their
tenders: the procedures to follow, the documents to provide, cases of non-compliance, award criteria, etc.

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:

(cid:151) instructions to tenderers, which must include: (i) the selection and award criteria, (ii) whether variants

are allowed and (iii) the currency of the tender,

(cid:151) the general conditions for works contracts financed by the EDF,

(cid:151) special conditions, which amplify, supplement or derogate from the general conditions and, where they

conflict, override them,

(cid:151) technical annexes, containing plans, technical specifications and provisional timetable for performance,

(cid:151) price schedule (for completion by the tenderer) and breakdown,

(cid:151) tender form,

(cid:151) contract form,

(cid:151) guarantee forms from a bank or similar institution for:

(cid:151) the tender (1 to 2 % of the budget available for the contract),

(cid:151) the payment of advances,

(cid:151) performance (10 % of the contract value).

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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.

20.4.

Additional information during the procedure

The tender dossier should be clear enough to prevent 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
it must send such
information in writing to all tenderers at the same time.

from a tenderer, provides additional

information on the tender dossier,

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 point 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 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 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

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.

20.7.

Submission of tenders

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

(cid:151) the address for submission of tenders indicated in the tender dossier,

(cid:151) the reference of the tender procedure to which the tenderer is responding,

(cid:151) where applicable, the numbers of the lots tendered for,

(cid:151) the words (cid:145)not to be opened before the tender-opening session(cid:146) written in the language of the tender

dossier.

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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 prices, the
provision of the tender guarantee required and any other formality which the contracting authority thinks
appropriate.

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 is the tenders are generally
in order.

Minutes are taken of
committee and state:

the tender-opening session. They are signed by all members of

the evaluation

(cid:151) the date, time and place of the session,

(cid:151) the persons present,

(cid:151) the names of the tenderers who have replied within the deadline,

(cid:151) whether tenders have been submitted in sealed envelopes,

(cid:151) whether tenders have been duly signed and the requisite number of copies sent,

(cid:151) the tender prices,

(cid:151) the names of tenderers whose tenders were found to be non-compliant at the opening session,

(cid:151) the names of any tenderers who withdrew their tenders,

(cid:151) any declarations made by the tenderers.

20.9.

Evaluation of tenders

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

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, differ widely
the contracting authority or the tenderer’s
the rights of
from the terms of
obligations under the contract or distort competition for tenderers whose tenders do comply.

the tender dossier,

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.

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Having evaluated the tenders, the committee rules on the technical admissibility of each tender, classifying it
as technically compliant or non-compliant.

Once the technical evaluation has been completed, the committee checks that the tenders contain no
arithmetic errors; any errors are corrected without prejudice to the tenderer.

20.10.

Award of the contract

20.10.1. Choice of contractor

The successful tenderer is the one submitting the (cid:145)most economically advantageous(cid:146) tender, i.e. the least
expensive tender classified as (cid:145)technically compliant(cid:146) during technical evaluation. This must be declared the
successful tender if it is equal to or lower than the budget allocated for the contract.

If the chosen tender exceeds the budget allocated for the contract, the provisions set out in point 19.1.2(c)
apply.

The rule described in point 3.8(a), 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

(b)

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

(cid:151) permits the best possible use of the physical and human resources of the ACP States,

(cid:151) offers the greatest subcontracting possibilities to ACP companies, firms or natural persons, or

(cid:151) 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 the contract award proposal to the Head of Delegation for approval.

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

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

(cid:151) the tender selected is the lowest of those conforming to the requirements of the tender dossier,

(cid:151) the tender selected meets all the selection criteria stated in the tender dossier and

(cid:151) 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 thereon within 60 days of the receipt 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 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 if the evaluation procedure takes too long.

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The entire tender procedure up to the notification of the successful tenderer is strictly confidential. The
committee’s 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 supervisory authorities (Court of Auditors, etc.).

20.10.2. Notification of award of contract

After the Commission has given its formal approval and before the period of validity of tenders expires, the
contracting 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 unless the financing agreement has been concluded (see point 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
to the successful
countersign it within 30 days of receipt and return it with the performance guarantee.

is sent

tenderer, who must

The contract must be dated. It cannot cover earlier services nor enter into force before the date on which it
is signed by the parties. The parties are bound by the contract from the moment it is signed, hence the
importance of carefully selecting the date.

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 be registered in the recipient country or to have won 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 point 20, apply by analogy to
the local open procedure.

22.

SIMPLIFIED PROCEDURE (FOR CONTRACTS UNDER EUR 300 000)

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

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The contracting authority draws up a list of at least three firms. The candidates receive a letter of invitation
to tender accompanied 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.
If the
contracting authority receives fewer than three compliant tenders, the procedure must be cancelled and
started again.

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.

SERVICES

x ¯ EUR 200 000

ANNEX 1

COMPETITION RULES

SUPPLIES

x > EUR 150 000

WORKS

x > EUR 5 000 000

International restricted tender procedure.

International open tender procedure.

International open tender procedure.

Four to eight 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.

2.

Framework contract, or

Simplified procedure with consultation of at least three
service providers.

3.

x ˜ EUR 5 000: a single quote.

1.

Simplified procedure with consultation of at least three
suppliers.

1.

Simplified procedure with consultation of at least three
contractors.

2.

x ˜ EUR 5 000: a single quote.

2.

x ˜ EUR 5 000: a single quote.

.

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3
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7

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ANNEX 2

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.

lease, hire or
Supply contract: a contract between a supplier and the contracting authority for the purchase,
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 points 10.1.2., 14.1.2, 14.2.2 and 19.1.2).

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Direct labour operations: projects and programmes implemented through public or semi-public agencies or 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.

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.