2007/497/EC: Decision of the European Central Bank of 3 July 2007 laying down the Rules on Procurement (ECB/2007/5)
Date: 2007-07-03
Institutions: European Central Bank
Subjects: administrative procedure, award of contract, invitation to tender, services contract, supplies contract, tendering, works contract

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EUROPEAN CENTRAL BANK

DECISION OF THE EUROPEAN CENTRAL BANK

of 3 July 2007

laying down the Rules on Procurement

(ECB/2007/5)

(2007/497/EC)

THE EXECUTIVE BOARD OF THE EUROPEAN CENTRAL BANK,

(3)

The ECB respects the general principles of procurement
law as reflected in the Procurement Directive and the
Financial Regulation,

Having regard to Article 11.6 of the Statute of the European
System of Central Banks and of the European Central Bank,

HAS DECIDED AS FOLLOWS:

Having regard to Decision ECB/2004/2 of 19 February 2004
adopting the Rules of Procedure of
the European Central
Bank (1), and in particular Article 19 thereof,

CHAPTER I

GENERAL RULES

Article 1

Definitions

Whereas:

For the purposes of this Decision, the following definitions shall
apply:

(1)

(2)

The European Central Bank (ECB) is committed to the
principle of cost-efficiency and seeks the best value for
money from the procurement of goods, services and
works.

(a)

‘contracts’ are contracts for pecuniary interest concluded in
writing between the ECB with one or more suppliers and
having as their object the execution of works, the supply of
products or the provision of services;

Directive 2004/18/EC of the European Parliament and of
the Council of 31 March 2004 on the coordination of
procedures for the award of public works contracts,
public supply contracts and public service contracts (2)
(Procurement Directive) and Council Regulation (EC,
Euratom) No 1605/2002 of 25 June 2002 on the
Financial Regulation applicable to the general budget of
the European Communities (3) (Financial Regulation) do
not apply to the ECB.

(1) OJ L 80, 18.3.2004, p. 33.
(2) OJ L 134, 30.4.2004, p. 114. Directive as last amended by Council

Directive 2006/97/EC (OJ L 363, 20.12.2006, p. 107).

(3) OJ L 248, 16.9.2002, p. 1. Regulation as amended by Regulation

(EC, Euratom) No 1995/2006 (OJ L 390, 30.12.2005, p. 1).

(b)

‘works contracts’ are contracts having as their object either
the execution, or both the design and execution, of works.
A ‘work’ means the outcome of building or civil engi-
neering works taken as a whole which is sufficient of
itself to fulfil an economic or technical function;

(c)

‘supply contracts’ are contracts, other than those referred to
in paragraph b, having as their object the purchase, lease,
rental or hire purchase, with or without option to buy, of
products. A contract having as its object the supply of
products and which also covers, as an incidental matter,
siting and installation operations shall be considered to be
a ‘supply contract’;

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(d)

‘service contracts’ are contracts other than works or supply
contracts having as their object the provision of services. A
contract having as its object both products and services
shall be considered to be a ‘service contract’
the
estimated value of the services in question exceeds that
of
the products covered by the contract. A contract
having as its object services including activities related to
works that are only incidental to the principal object of the
contract shall be considered to be a service contract;

if

(e) A ‘framework agreement’ is an agreement between the ECB
and one or more suppliers, the purpose of which is to
establish the terms governing contracts to be awarded
during a given period,
in particular with regard to price
and, where appropriate, the quantity envisaged;

(l) An ‘electronic auction’ is a repetitive process involving an
electronic device for the presentation of new prices, revised
downwards, and/or new values concerning certain elements
of tenders, which occurs after an initial full evaluation of
the tenders, enabling them to be ranked using automatic
evaluation methods;

(m) ‘invitation to tender’ is the invitation sent to candidates or
suppliers to submit a tender and specifying the procedure,
the ECB’s requirements and the contractual
terms and
conditions;

(n)

‘written’ or ‘in writing’ means any expression consisting of
words or figures which can be read, reproduced and subse-
quently communicated. It may include information which
is transmitted and stored by electronic means;

(f) A ‘supplier’ is any natural or legal person or public entity
or group of such persons and/or bodies which offers on
the market, respectively, the execution of works, products
or services;

(o)

‘days’ mean calendar days.

A supplier who has submitted an application to participate
in a restricted or negotiated procedure or a competitive
dialogue shall be designated a ‘candidate’. A supplier who
has submitted a tender shall be designated a ‘tenderer’;

(g)

‘open procedure’ is a tender procedure where any interested
supplier may submit a tender;

(h)

‘restricted procedure’ means a procedure in which any
supplier may request
to participate and whereby only
those candidates invited by the ECB may submit a tender;

Article 2

Scope

1.
The ECB shall tender supply, service and works contracts
for its own account in accordance with the rules laid down in
this Decision.

The ECB may also carry out

2.
in accordance with this
Decision joint tender procedures for its own account and for
the account of one or several national central banks (NCBs)
and/or Community institutions and bodies and/or international
organisations. In such cases, the ECB shall specify in the tender
documentation which other contracting authorities participate
in the tender procedure and the envisaged structure of the
contractual relationships.

‘negotiated procedure’ means a procedure in which the ECB
consults the suppliers of its choice and negotiates the terms
of contract with one or more of them;

3.

This Decision shall not apply to contracts for:

‘competitive dialogue’ is a procedure in which any supplier
may request to participate and whereby the ECB conducts a
dialogue with the candidates admitted to that procedure,
with the aim of developing one or more suitable alter-
natives capable of meeting its requirements;

(k) A ‘dynamic purchasing system’ is a completely electronic
process for making commonly used purchases, the charac-
teristics of which, as generally available on the market,
meet the requirements of the ECB. The system is limited
in duration and open throughout
its validity to any
supplier which satisfies
the selection criteria and has
submitted an indicative tender that complies with the speci-
fication;

(a)

the provision of services and the supply of goods by NCBs
their Eurosystem/ESCB
to the ECB in the fulfilment of
public tasks;

(b) procurement procedures organised by NCBs or Community
institutions and bodies or international organisations in
which the ECB participates provided that
rules
governing these procurement procedures are in line with
the general principles of procurement law;

the

(c) agreements with other Community institutions and bodies
or international organisations that the ECB enters into in
the fulfilment of its public tasks;

(i)

(j)

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(d) the procurement of banknotes which is governed by
Guideline ECB/2004/18 of 16 September 2004 on the
procurement of euro banknotes (1);

(b) EUR 5 300 000 for works contracts.

(e)

the issue, sale, purchase or transfer of securities or other
financial
instruments and financial services in connection
with these transactions;

(f)

the acquisition or rental, by whatever financial means, of
land, existing buildings or other immovable property or
concerning rights thereon;

Article 5

Calculation of the estimated value of a contract

1.
The calculation of the value of a contract shall be based
on the total amount payable, net of VAT, as estimated by the
ECB. The calculation shall
in
particular costs in relation to option clauses, renewals of the
contract, premium payments,
interest, commission, travel and
accommodation costs, prizes or payments to candidates or
tenderers.

include all ancillary costs,

(g) employment contracts between the ECB and its

staff
concluded in accordance with the ECB’s Conditions of
Employment;

The estimate must be valid at the moment at which the

2.
ECB decides on the appropriate procurement procedure.

(h) arbitration and conciliation services; and

(i)

research and development
the benefits
related to the services accrue exclusively to the ECB for its
own use and the services provided are wholly remunerated
by the ECB.

services unless

Article 3

General principles

Any procurement procedure shall be carried out in accordance
with the general principles of transparency and publicity, equal
access and equal treatment, as well as the principles of non-
discrimination and fair competition.

Article 4

Thresholds

No procurement may be split up with the intention of
in this

the procedures set out

3.
avoiding the application of
Decision.

4.
The calculation of the estimated value of works contracts
shall take account of the total costs related to the execution of
the work including the value of supplies necessary for executing
the works and placed at the contractor’s disposal by the ECB.
The costs related to the design and planning of the work shall
also be included if they form part of the works contract.

5. With regard to contracts for the continuous supply of
goods and services, the value to be taken as a basis for calcu-
lating the estimated contract value shall, where appropriate, be
the following:

Contracts the estimated value of which, net of VAT, equals
1.
or exceeds the threshold amounts set out in paragraph 3, shall
be tendered in accordance with the procedures laid down in
Chapter II.

(a)

in the case of fixed-term contracts: the total value for the
full term;

Contracts the estimated value of which, net of VAT,

2.
is
below the threshold amounts shall be tendered in accordance
with the procedures laid down in Chapter III.

(b) in the case of contracts without a fixed term: the monthly

value multiplied by 48.

3.

The following threshold amounts shall apply:

(a) EUR 211 000 for supply and service contracts;

(1) OJ L 320, 21.10.2004, p. 21.

6.
In the case of successive supply, service or works contracts
of the same type the calculation of the estimated contract value
shall be based on the total actual value of
the successive
contracts awarded during the preceding 12 months. The
estimate shall be adjusted,
if possible, to take account of the
changes in quantity or value which are expected to occur in the
course of the 12 months following the initial contract.

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If a contract

the total value of all

lots, or if several
is divided into several
7.
contracts to be awarded are strictly interrelated and have the
same tasks as their objective,
lots or
individual contracts shall be considered. If the total value is
equal to or exceeds the threshold amounts set out in Article
4(3), the procedures laid down in Chapter II of this Decision
shall apply to all lots and contracts. The ECB may, however,
apply the procedure laid down in Article 29 or, if applicable, in
Article 31 in respect of lots/individual contracts the estimated
for
value of which is less than EUR 80 000, net of VAT,
supplies and services and less than EUR 1 million, net of
VAT, for works, provided that the total estimated value of all
lots exempted does not exceed 20 % of the total estimated value
of all lots.

Irrespective of the contract value, the ECB may tender a
2.
contract in accordance with Article 29 if the main object of the
contract is one of the following services:

(a) hotel and restaurant services;

(b) legal services;

(c) personnel placement and supply services;

8.
The value of framework contracts shall be calculated on
the basis of the maximum estimated value, net of VAT, of all
the contracts envisaged for the total term of the framework
agreement.

(d) investigation and security services;

Article 6

Exceptions

(e) education and vocational education services;

(f)

recreational, cultural and sporting services.

1.
In the following cases the ECB may award a contract
directly to one supplier or deviate from specific procedural
requirements:

(a) when, for mandatory reasons, the contract can be awarded
only to a particular supplier. The reasons may be of
technical, artistic or legal nature, but not of economic
nature;

(b) when, for reasons of extreme urgency brought about by
events unforeseeable for the ECB, the time limits for the
procurement procedures cannot be complied with;

(c) when the ECB has classified the contract as secret or when
the performance of the contract must be accompanied by
special security measures, in accordance with the ECB’s rules
on security or when the protection of the ECB’s essential
interests so requires;

Article 7

Duration and extensions

The term of a contract shall as a rule not exceed four

1.
years except in duly justified cases.

If a contract is concluded for a fixed-term, its term may be
following

term under

initial

the

2.
extended beyond that
conditions:

(a)

the contract notice or,
in the case of a procedure under
Chapter III, the request for a proposal, provided for the
possibility of extensions; and

(b) the possible extensions are duly justified; and

(d) in the case of supplies when the products involved are
manufactured purely for the purpose of research, experi-
mentation, study or development; this provision does not
extend to quantity production to establish commercial
viability or to recover research and development costs;

(c)

the possible extensions were taken into account when calcu-
lating the value of the contract in accordance with Article 5
of this Decision.

(e)

for the purchase of supplies on particularly advantageous
terms, from either a supplier which is definitively winding
up its business activities, or the receivers or liquidators of a
bankruptcy, an arrangement with creditors, or a similar
procedure under national laws or regulations.

The totality of all extensions shall not exceed the term of the
initial contract.

Otherwise, the term of a fixed-term contract may only be

3.
extended under the conditions laid down in Article 6.

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Article 8

Additional supplies, services and works

1.
The ECB may order additional supplies, services or works
from the contractor to whom the initial contract was awarded
provided that:

(a)

the tender documentation provided for additional supplies,
services or works as an option; and

(b) the additional supplies, services or works were taken into
in

account when calculating the value of
accordance with Article 5 of this Decision.

the contract

In addition, the ECB may order from the initial contractor
2.
additional supplies, services or works which become necessary
for
the contract due to
the purpose of
unforeseen circumstances, provided that:

the fulfilment of

(a)

the additional supplies, services or works cannot be tech-
nically or economically separated from the initial contract
without major inconvenience; or

(b) the supplies, services or works, although separable from the
performance of the initial contract, are strictly necessary for
its completion.

However, the aggregate value of additional supplies, services or
works shall as a rule not exceed 50 % of the amount of the
initial contract.

3.
If the conditions set out in paragraphs 1 and 2 are not
met, contracts for additional supplies, services or works may
only be awarded in accordance with Articles 4 and 6 of this
Decision.

CHAPTER II

PUBLIC TENDER PROCEDURES

SECTION 1

Types of procedure

Article 9

Overview

basis in accordance with the conditions set out below in
Articles 15 and 16 respectively.

3.
The procedures set out in paragraphs 1 and 2 may be
supplemented by an electronic auction as described below in
Article 17.

4.
The ECB may also carry out design contests. The
procedure for the design contest shall be laid down in the
contest notice and comply with the general principles for
design contests.

Article 10

Publication of procurement opportunities

place

1.
If the ECB intends to carry out a tender procedure in
accordance with the rules laid down in this Chapter II it shall
publish a contract notice in the Official Journal of the European
Union and via the ECB website. Whenever appropriate, the ECB
may
relevant media.
Announcements on the website and/or other media shall not
precede publication of the notice in the Official Journal. In the
the
case of discrepancies between the different versions of
notice,
is
Journal
the version published in the Official
authentic and shall take precedence over other versions.

advertisements

other

in

2.
The ECB may also publish a prior information notice
indicating the estimated total value of contracts, by category
of service or groups of products, and the essential characteristics
to award during a
of works contracts which it
budgetary year.
the
submission of applications and tenders in accordance with
Article 18(4) may be shortened for all procurements indicated
in the notice.

In such a case,

the time limits

intends

for

Article 11

Open procedure

1.
On publication of a contract notice, all interested suppliers
may request the delivery of the invitation to tender if not made
available by electronic means. The ECB shall provide the invi-
tation to tender within six days from the receipt of the request
provided that the request was made in good time before the
time limit for the submission of tenders.

1.
The ECB shall award contracts the estimated value of
which exceeds the threshold amounts set out above by open
procedure.
In justified cases the ECB may apply a restricted
procedure, a negotiated procedure or competitive dialogue
under the conditions set out below.

2.
Interested tenderers shall submit their tender within the
time limits set by the ECB and include all documentation
requested by the ECB.

2.
The ECB may also set up framework agreements or
dynamic purchasing systems and award contracts on that

3.
The ECB shall award the contract to the tenderer who best
meets the award criteria set out in the contract notice/invitation
to tender.

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Article 12

Restricted procedure

1.

The ECB may apply the restricted procedure if:

(a)

the ECB’s requirements can be defined in such detail that
tenders can be compared against each other and the
contract can be awarded without further negotiations with
the tenderers; and

(b) it is necessary to restrict the number of tenders for admin-
the

reasons or because of

the nature of

istrative
procurement.

according to the
procedures.

rules governing open or

restricted

2.
The ECB may also use the negotiated procedure where no
acceptable tenders have been obtained in response to an open
or restricted procedure or a competitive dialogue insofar as the
original terms of the contract are not substantially altered. The
ECB may refrain from publishing a new contract notice if it
includes in the negotiated procedure exclusively all the tenderers
who participated in the previous procedure, met the selection
criteria and submitted their tenders in accordance with the
formal tender requirements. If no tenders have been obtained
or no tenders that meet the formal tender requirements the ECB
may also start a negotiated procedure without notice in
accordance with Article 29.

2.
On publication of a contract notice interested suppliers
may apply for participation in the restricted procedure. They
must submit their application within the deadline specified in
the contract notice and provide the documentation requested by
the ECB.

On publication of a contract notice,

3.
interested suppliers
may apply for participation in the negotiated procedure. They
must submit their application within the deadline specified in
the contract notice and provide the documentation requested by
the ECB.

The ECB shall verify the eligibility of candidates and
3.
evaluate the applications against the selection criteria set out
in the contract notice. The ECB shall
five
eligible candidates who satisfy the selection criteria to submit
a tender, provided that a sufficient number of candidates
meeting the selection criteria is available. The invitation to
tender shall be sent
in writing and simultaneously to all
candidates invited to submit a tender.

invite at

least

4.
The ECB shall verify the eligibility of candidates and
evaluate the applications against the selection criteria set out
in the contract notice. The ECB shall
three
eligible candidates who satisfy the selection criteria to submit
a tender, provided that a sufficient number of candidates
meeting the selection criteria is available. The invitation to
tender shall be sent
in writing and simultaneously to all
candidates invited to submit a tender.

invite at

least

4.
The tenderers invited shall submit their tender within the
time limit set by the ECB and include all documentation
requested by the ECB.

5.
The ECB shall award the contract to the tenderer best
meeting the award criteria set out in the invitation to tender.

5.
Following the evaluation of the tenders, the ECB may
negotiate with tenderers in order to bring their tender in line
with the ECB’s requirements. The ECB may start negotiations
either:

Article 13

Negotiated procedure

(a) with the best-ranked tenderer. If the negotiations with the
best-ranked tenderer fail, the ECB may take up negotiations
with the next ranked tenderer; or

The ECB may apply a negotiated procedure in the

1.
following exceptional cases:

(a) when the nature of the works, supplies, or services or the
risks attaching thereto do not permit prior overall pricing;
or

(b) simultaneously with all tenderers having submitted a tender
that essentially meets the ECB’s technical and commercial
requirements. In that case, the number of tenderers admitted
to the negotiations may be reduced in successive stages by
applying the award criteria set out in the contract notice or
the invitation to tender.

(b) where the nature of the services is such that specifications
cannot be established with sufficient precision to permit the
tender
award of

the contract by selection of

the best

Before starting negotiations, the ECB shall inform all tenderers
on how the negotiations will be conducted.

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The scope of the negotiations may include the tenderers’
6.
technical offers, commercial offers and the contractual terms
and conditions provided that
tender
procedure is not
substantially altered. The ECB may also
invite tenderers to submit a revised tender. During the nego-
tiations the ECB shall ensure the equal treatment of all tenderers
invited for negotiations.

scope of

the

the

7.
Once the negotiations are closed, the ECB shall award the
contract to the tenderer best meeting the award criteria set out
in the contract notice or the invitation to tender.

Article 14

Competitive dialogue

1.
The ECB may carry out a competitive dialogue in the case
of particularly complex contracts where it is not possible to
define the ECB’s requirements in a way that
the contract
could be awarded through an open or restricted procedure.

On publication of a contract notice,

2.
interested suppliers
may apply for participation in the dialogue. They must submit
their application within the deadline specified in the contract
notice and provide the documentation requested by the ECB.

3.
The ECB shall verify the eligibility of candidates and
evaluate the applications against the selection criteria set out
in the contract notice. The ECB shall
three
eligible candidates to participate in the dialogue and provide
the ECB’s
them with a request
needs. The aim of the dialogue is to identify and define the
solution best suited to satisfying the ECB’s needs. The ECB may
discuss all aspects of the contract with the chosen candidates.

for a proposal setting out

invite at

least

Having declared that the dialogue is concluded, the ECB
6.
shall ask the candidates participating in the dialogue to submit
their final tenders on the basis of the solutions presented and
specified during the dialogue.

7.
The ECB shall evaluate the tenders received against the
award criteria laid down in the contract notice or the request
for a proposal. The ECB may request the tenderers to clarify or
specify certain aspects of their tender or confirm commitments
contained in the tender provided this does not have the effect of
modifying substantial aspects of the tender and does not risk
distorting competition or causing discrimination. Once the
evaluation is completed, the ECB shall award the contract to
the most economically advantageous tender.

Article 15

Framework agreements

The ECB may use framework agreements in cases where it
1.
regularly concludes contracts for similar supplies, services or
works without being able to define the exact delivery times
and/or the detailed requirements.

If

For

that

the ECB intends

2.
is a
the purpose of concluding a contract
framework agreement, the ECB shall follow the procedures set
out above for all phases up to the award of the framework
agreement.
to conclude a framework
agreement with several suppliers it shall award at least three
agreements provided that a sufficient number of suppliers
meet
the selection and award criteria. The contract notice
shall specify the scope and number of framework agreements
to be awarded.

The contracts based on the framework agreement shall be
awarded in accordance with the procedures laid down in this
Article.

4.
During the dialogue, the ECB shall ensure equal treatment
of all candidates. Furthermore, the ECB shall not reveal to the
other candidates solutions proposed or other confidential infor-
mation communicated by a candidate participating in the
dialogue without their written agreement.

3. Where a framework agreement is concluded with a single
supplier, contracts based on that agreement shall be awarded
within the limits of the terms laid down in the framework
the
agreement.
supplier in writing to supplement
tender. Such
supplementary offers shall not entail substantial changes to
terms and conditions laid down in the framework agreement.

the ECB may request

Insofar as necessary,

their initial

The ECB shall continue the dialogue until it can identify
5.
the solution or solutions,
if necessary after comparing them,
which are capable of meeting its needs. If so provided for in
the contract notice or the request for a proposal, the ECB may
carry out the dialogue in successive stages to reduce the number
of solutions to be discussed during the dialogue stage. The ECB
shall select the solutions to be considered by applying the award
criteria set out
for a
proposal.

in the contract notice or the request

4. Where framework agreements are concluded with several
suppliers, contracts may be awarded either:

(a) by application of the criteria laid down in the framework

agreements without reopening a competition; or

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(b) where no such criteria are defined, the ECB may reopen a
competition among the suppliers with which a framework
agreement exists.

provided that
conditions. No charges shall be levied from the tenderers.

they continue to comply with the tender

In the latter case,
accordance with the following procedure:

the ECB shall award the contract

in

— the ECB shall

invite the suppliers in writing to submit a
tender within the time limit specified in the request for a
proposal. The request for a proposal shall also specify the
criteria on the basis of which the contract will be awarded,
and

— the suppliers must submit their tenders in writing within the

time limit set by the ECB, and

— the ECB shall award the contract to the tenderer who has
submitted the best tender on the basis of the award criteria
set out in the request for a proposal.

Article 16

Dynamic purchasing systems

1.
The ECB may procure commonly used goods, services and
works through dynamic purchasing systems. Unless specified
otherwise in this Article, the procedure shall follow the open
procedure rules.

For the purposes of setting up a dynamic purchasing

2.
system, the ECB shall:

(a) publish a contract notice stating that a dynamic purchasing
system is being used and containing a reference to the
Internet address where the tender conditions can be
found; and

(b) offer by electronic means, on publication of the notice and
up to the expiry of the system, unrestricted, direct and full
access to the tender conditions and to any additional
documents; and

(c)

selection and award criteria,

indicate in the tender conditions, amongst other matters,
the
the
purchases envisaged under that system, as well as all the
necessary information concerning the purchasing system,
the electronic equipment used and the technical connection
arrangements and specifications.

the nature of

the

time

reasonable

On receipt of

indicative tenders,

4.
within a
compliance with the selection criteria.
whether
The ECB shall
opportunity of
system or of their rejection.

the ECB shall verify
and
eligibility
shall also check
the tender conditions.
the earliest possible
inform the tenderers at
their admittance to the dynamic purchasing

the indicative tenders meet

tenderers’

It

5.
Each specific contract the value of which is above the
thresholds set out in Article 4(3) shall be the subject of a
separate invitation to tender. Before issuing this invitation, the
ECB shall publish a simplified contract notice in the Official
Journal inviting all interested suppliers to submit an indicative
tender, within a time limit that may not be less than 15 days
from the date on which the simplified notice is sent. The ECB
may not proceed with tendering until
it has completed
evaluation of all the indicative tenders received by that time
limit.

On completion of the evaluation, the ECB shall invite all
6.
tenderers admitted to the system to submit a tender within a
reasonable time. The ECB shall award the contract
to the
tenderer which submitted the best tender on the basis of the
award criteria set out
in the contract notice for the estab-
the dynamic purchasing system. Those criteria
lishment of
may, if appropriate, be formulated more precisely in the invi-
tation to tender.

7.
If the value of a specific contract is below the thresholds
set out in Article 4(3) the ECB may invite five or three tenderers
admitted to the system in accordance with the procedure set
out in Article 29.

A dynamic purchasing system may not last for more than

8.
four years, except in duly justified cases.

Article 17

Electronic auctions

for

Except

competitive

1.
ECB may
supplement the tender procedures set out above by an elec-
tronic auction provided that the specifications can be estab-
lished with precision.

dialogues,

the

3.
The system shall be open throughout its duration to any
supplier who satisfies the selection criteria and has submitted an
indicative tender that complies with the tender conditions.
Tenderers may improve their indicative tenders at any time

(a) either solely on prices when the contract is awarded to the

lowest price; or

The electronic auction shall be based:

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(b) on prices and/or on the new values of the features of the
tenders indicated in the specification when the contract is
awarded to the most economically advantageous tender.

notice or in the tender documents; for that purpose, any ranges
shall, however, be reduced beforehand to a specified value.
Where variants are authorised, a separate formula shall be
provided for each variant.

2.
If the ECB intends to carry out an electronic auction it
shall state that fact in the contract notice. Furthermore, the
invitation to tender shall include, inter alia, the following details:

(a)

the features, the values for which will be the subject of
electronic auction, provided that such features are quanti-
fiable and can be expressed in figures or percentages;

(b) any limits on the values which may be submitted, as they
result from the specifications relating to the subject of the
contract;

(c)

the information which will be made available to tenderers in
the course of the electronic auction and, where appropriate,
when it will be made available to them;

(d) the relevant information concerning the electronic auction

process;

(e)

the conditions under which the tenderers will be able to bid
and,
the minimum differences which will,
where appropriate, be required when bidding;

in particular,

(f)

relevant

information

the
electronic
equipment used and the arrangements and technical speci-
fications for connection.

concerning

the

the invitation shall contain all relevant

3.
The electronic auction shall only be initiated after the
submission and initial evaluation of the tenders. All tenderers
who have submitted admissible tenders shall be invited simul-
taneously by electronic means to submit new prices and/or new
values;
information
concerning individual connection to the electronic equipment
being used and shall state the date and time of the start of the
electronic auction. The electronic auction may take place in a
number of successive phases. The electronic auction may not
start sooner than two working days after the date on which
invitations are sent out.

4. When the contract is to be awarded on the basis of the
most economically advantageous tender, the invitation shall be
accompanied by the outcome of a full evaluation of the relevant
tenderer. The invitation shall also state the mathematical
formula to be used in the electronic auction to determine
automatic rerankings on the basis of the new prices and/or
new values
incorporate the
weighting of all
the criteria fixed to determine the most
economically advantageous tender, as indicated in the contract

submitted. That

formula shall

Throughout each phase of an electronic auction the ECB
5.
tenderers at
least
instantaneously communicate to all
shall
them to ascertain their
information to enable
sufficient
It may also communicate
relative rankings at any moment.
values
other
concerning
other
information
submitted, provided that
tender
is
that
documents. It may also at any time announce the number of
the auction. The ECB shall,
participants in that phase of
however, not disclose the identities of
the tenderers during
any phase of an electronic auction.

prices
or
stated in the

6.
The ECB shall close an electronic auction after expiry of
the time limit indicated in the invitation to participate in the
auction. The time limit may be expressed as a specific date and
time or as a time period that has to elapse after submission of
the last offer with new prices or values. The ECB shall specify in
the invitation the timetable for any auctions carried out in
phases.

7.
After closing an electronic auction the ECB shall award
the contract on the basis of the results of the electronic auction.

Article 18

Time limits for receipt of applications and for receipt of
tenders

1. When fixing the time limits for the receipt of tenders and
applications, the ECB shall take account in particular of the
complexity of the contract and the time required for drawing
up tenders, without prejudice to the minimum time limits set
by this Article.

In the case of open procedures, the minimum time limit
2.
for the receipt of tenders shall be 52 days from the date on
which the contract notice is sent.

In the case of restricted procedures, negotiated procedures

3.
and the competitive dialogue:

(a)

the minimum time limit for receipt of applications shall be
37 days from the date on which the contract notice is sent;
and

(b) the minimum time limit for the receipt of tenders shall be
40 days from the date on which the invitation to tender is
sent.

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4. When the ECB has published a prior information notice in
accordance with Article 10(2), which was sent at least 52 days
before the contract notice, the minimum time limit for the
receipt of tenders may, as a general rule, be shortened to 36
days, but under no circumstances to less than 22 days.

5. Where contract notices are drawn up and transmitted by
electronic means in accordance with the format and procedures
for transmission prescribed by the Office for Official Publi-
cations of the European Communities, the time limits for the
receipt of tenders and applications may be shortened by seven
days.

The time limits for receipt of tenders may be reduced by
6.
five days if the ECB offers unrestricted and direct access by
electronic means to the invitation to tender from the date of
publication of the contract notice and if the text of the notice
specifies the Internet address at which this documentation is
accessible. This reduction may be added to that referred to in
paragraph 5.

If, in an open procedure, the invitation to tender, although
7.
requested in good time,
is not supplied within six days, or
where tenders can be made only after a visit to the site or
after on-the-spot inspection of the documents supporting the
invitation to tender, the time limits for the receipt of tenders
shall be extended so that all suppliers have sufficient time to
prepare tenders.

In the case of

8.
procedures,
where urgency renders
down in this Article.
time limits shall apply:

restricted procedures and negotiated
the ECB may apply an accelerated procedure,
laid
In such case the following minimum

impracticable the time limits

(a) a time limit for the receipt of applications which may not
be less than 15 days from the date on which the contract
notice was sent, or less than 10 days if the notice was sent
by electronic means,
in accordance with the format and
procedure for sending notices; and

(b) a time limit for the receipt of tenders which shall be not less
than 10 days from the date of receipt of the invitation to
tender.

SECTION 2

Conduct of the procedure

Article 19

Communication with candidates and tenderers

During the tender procedure, candidates and tenderers
1.
shall communicate only with the contact person(s)
indicated
by the ECB. The ECB shall specify in the contract notice
and/or invitation to tender the means of communication to
be used. The means of communication shall be generally
available and non-discriminatory.

Candidates/tenderers

2.
applications/
tenders in writing in accordance with the requirements set
out in the contract notice/invitation to tender.

submit

their

shall

3.
The ECB may carry out electronic tender procedures in
line with the general requirements for electronic procurement as
in
reflected in Article 42 of
connection with its Annex X.
the contract
notice shall specify in particular the formal requirements to
be observed by the candidates/tenderers and how to access
the electronic platform. The ECB may determine that it will
accept only electronic applications/tenders.

the Procurement Directive

In such case,

4.
Candidates or tenderers may submit in writing questions
concerning the contract notice, the invitation to tender or the
supporting documents to the ECB in accordance with the
conditions laid down in the contract notice or the invitation
to tender. The ECB shall
reply to such questions within
reasonable time limits, and shall communicate the answers to
all candidates/tenderers on an anonymous basis if they are of
relevance to all of them.

5.
The ECB shall ensure that the information provided by
candidates and tenderers is treated and stored in accordance
with the principle of
extent
personal data is provided, with Regulation (EC) No 45/2001
the Council on data
of
protection (1).

the European Parliament and of

confidentiality and,

to the

Article 20

Requests for additional documentation and clarification

After the ECB has opened applications or tenders,
it may
request candidates and tenderers to supplement the documen-
tation provided or to clarify specific points. Such requests must
not distort fair competition between or give rise to unequal
treatment of the candidates/tenderers and must not lead to an
alteration of the terms of the applications or tenders.

9.
Prior to the expiry date, the ECB may extend the time
limits set out in the contract notice or tender documentation
if it modifies the tender documentation or in other duly justified
cases.

(1) Regulation (EC) No 45/2001 of the European Parliament and of the
Council of 18 December 2000 on the protection of individuals with
regard to the processing of personal data by the Community insti-
tutions and bodies and on the free movement of such data (OJ L 8,
12.1.2001, p. 1).

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Article 21

2.

The invitation to tender shall include:

Rectification of tender documentation

1.
If the ECB discovers, before the expiry of the time limits
for the submission of applications or tenders, an error, a lack of
precision, an omission or any other type of error in the text of
the
supporting
documents, it shall rectify the error and inform all candidates
or tenderers in an appropriate manner.

invitation to tender or

contract notice,

If

that

consider

tenderers

candidates or

the ECB’s
2.
requirements laid down in the contract notice, the invitation
to tender or supporting documents are incomplete, inconsistent
or illegal they shall notify their concerns to the ECB in writing.
The candidate/tenderer must notify its concerns without undue
delay after they became aware of the irregularity or could have
it. The ECB may then either correct or
become aware of
supplement
the
request
indicating the reasons therefore. Objections to the
ECB’s requirements which were not communicated to the ECB
without undue delay may not be raised at a later stage.

requested or

requirements

reject

the

as

Article 22

Invitation to tender

1.

As a rule, the invitation to tender shall contain at least:

(a) a reference to the contract notice published;

(b) the formal tender requirements, in particular the time limit
for the receipt of the tenders, the address to which the
tenders must be sent, the language or languages in which
the tenders must be drawn up, the form in which the tender
shall be submitted and the period during which a tender
must remain valid; and

(a) a copy of the specifications defining the ECB’s requirements
in the case of a competitive dialogue, a copy of the

or,
request for a proposal defining the ECB’s needs; and

(b) a copy of the draft contract, of the ECB’s general terms and
conditions or of the document specifying the key features of
the contract; and

(c) any other documentation which the ECB considers to be of

relevance.

If these documents are made available by electronic means the
invitation to tender shall specify how the tenderers can access
them.

SECTION 3

Evaluation

Article 23

General

The ECB shall evaluate all

1.
criteria as referred to in Article 26 after having:

tenders against

the award

— verified the formal tender requirements, and

— verified the eligibility of tenderers as referred to in Article

24, and

— assessed the fulfilment of the selection criteria referred to in

Article 25.

(c) options concerning supplementary works,

services and
supplies, as well as the number of possible renewals and
extensions, if any; and

The ECB shall award the contract to the tenderer best

2.
meeting the award criteria.

(d) the list of documents to be submitted by the tenderers; and

3.
The applications and tenders shall not be opened before
expiry of the date for submission. The applications and tenders
shall be opened in the presence of at least two members of staff;
the opening shall be minuted. Unless
specified otherwise,
candidates or tenderers may not attend the opening.

(e)

the relative weighting of criteria for the award of
contract or, where appropriate,
importance for such criteria,
contract notice.

the
the descending order of
if they are not given in the

The evaluation process and outcome shall be documented

4.
in an evaluation report.

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Article 24

Eligibility of candidates/tenderers

1.
Subject to the following paragraphs, all natural or legal
persons resident or located in the EU are eligible to participate
in tender procedures. Tender procedures shall also be open on
equal terms to all natural and legal persons resident or located
in a third country which has ratified the World Trade Organi-
sation Agreement on Government
Procurement or has
concluded with the EU a bilateral agreement on procurement
under
laid down in the said agreements.
Suppliers from other third countries may be admitted to parti-
cipate at the ECB’s sole discretion.

the conditions

Temporary groupings of suppliers may participate in
2.
tender procedures under
in the
contract notice or the invitation to tender. The ECB may
require temporary groupings to adopt a specific legal form if
the contract is awarded to them, if this form is necessary for the
proper performance of the contract.

conditions

set out

the

3.
The ECB shall exclude candidates or tenderers from parti-
cipation in a tender procedure if they have been the subject of a
fraud,
the force of
judgment which has
corruption, money laundering, involvement in a criminal orga-
nisation or any other illegal activity detrimental to the financial
interests of the Communities, of the ECB or of the NCBs.

judicata for

res

The ECB may exclude candidates or tenderers from parti-

4.
cipation at any time if they:

the

courts, have

(a) are bankrupt or being wound up, are having their affairs
into an
administered by
suspended business
arrangement with creditors, have
activities, are the subject of proceedings concerning those
matters, or are in any analogous situation arising from a
similar procedure provided for in national
legislation or
regulations;

entered

(b) have been convicted of an offence concerning their profes-
sional conduct by a judgment which has the force of res
judicata;

(c) have been guilty of grave professional misconduct;

(d) have not fulfilled obligations relating to the payment of
social security contributions or the payment of taxes in
accordance with the legal provisions of
the country in
which they are established or with those of the country
of
the country
the contracting authority or
where the contract is to be performed;

those of

(e) have been declared by a court or an arbitration tribunal to
be in serious breach of contract for failure to comply with
their
tender
procedure;

contractual obligations

following another

(f)

their management, staff or agents are subject to a conflict of
interest;

(g) they are guilty of misrepresentation in supplying the infor-

mation required by the ECB;

(h) they contact other candidates or tenderers with the purpose

of restraining competition.

Candidates or tenderers must certify that they are not in
5.
one of the situations listed above and/or provide the evidence
specified in the contract notice or invitation to tender. If such
circumstances arise in the course of the procedure the candi-
date/tenderer concerned shall
inform the ECB without undue
delay thereof.

Article 25

Selection criteria

1.
The ECB shall specify in the contract notice the selection
criteria for assessing the candidate’s/tenderer’s capacity to
perform the contract. The selection criteria shall relate to the
candidate’s or tenderer’s economic, financial, technical or profes-
sional capacity.

2.
The ECB may lay down minimum capacity levels below
which it cannot select candidates or tenderers. These minimum
levels shall be specified in the contract notice.

3.
Furthermore, the ECB may ask candidates or tenderers to
prove that they are authorised to perform the contract under
national
law, as evidenced by inclusion in a trade or profes-
sional register, or a sworn declaration or certificate, membership
of a specific organisation, express authorisation, or entry in the
VAT register.

specify in the

contract notice

The ECB shall

the
4.
tenderers as
documents to be submitted by candidates or
proof of their financial, economic, technical and professional
capacity. The documentation requested shall not go beyond
the subject of
the
legitimate interests of the suppliers as regards in particular the
protection of their technical and business secrets.

the contract and shall

take account of

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If, for some exceptional reason which the ECB considers
5.
justified, the tenderer or candidate is unable to provide the
documents requested,
it may prove its capacity by any other
means which the ECB considers appropriate.

Before rejecting such tenders, the ECB shall request in
2.
writing the details of the constituent elements of the tender
which it considers relevant. The details may relate in particular
to:

6.
A supplier may, where appropriate and for a particular
contract, rely on the capacities of other entities, regardless of
the legal nature of the links which it has with them. It must in
that case prove to the ECB that it will have at its disposal the
resources necessary for performance of the contract. Under the
same conditions, a temporary grouping of suppliers may rely on
the capacities of participants in the group.

Article 26

Award criteria

(a)

economics of

the
provision of services or of the construction method; or

the manufacturing process, of

the

(b) the

technical

solutions

chosen or

any

exceptionally

favourable conditions available to the tenderer; or

(c)

the originality of the tender; or

1.
The ECB shall specify in the contract notice or the invi-
tation to tender whether it intends to award the contract to the
tenderer who submits the most economically advantageous
tender or to the tenderer offering the lowest price.

(d) compliance with the provisions relating to employment
protection and working conditions in force at the place
where the work, service or supply is to be performed.

2. Where the award is made to the most economically
advantageous tender,
the ECB shall specify in the contract
notice or the invitation to tender or, in the case of a compe-
titive dialogue, in the request for a proposal:

(a)

the qualitative criteria against which the tenders will be
evaluated. Such criteria must be linked to the subject-
matter of the contract in question and may include for
example quality, technical merit, aesthetic and functional
characteristics, environmental characteristics, running costs,
cost-effectiveness, after-sales service and technical assistance,
delivery date and delivery period or period of completion;
and

The ECB shall verify those constituent elements taking into
account the explanations and the evidence received.

3.
If the tenderer has obtained State aid, the ECB may reject
the tender on that ground alone unless the tenderer is able to
prove, within a sufficient time limit fixed by the ECB, that the
aid was granted legally in accordance with the procedures and
decisions specified in the Community rules on State aid.

Article 28

Notification of decisions on the selection and award

At

its earliest convenience,

the ECB shall notify its
1.
decision in writing to all candidates or tenderers whose appli-
cations or tenders are rejected.

(b) the relative weighting which it gives to each of the criteria
chosen to determine the most economically advantageous
tender. Those weightings can be expressed by providing for
a range with an appropriate maximum spread.

The notification shall be issued at least 15 days prior to

2
the signature of the contract by the ECB.

Where, in the opinion of the ECB, weighting is not possible for
demonstrable reasons, it shall indicate the criteria in descending
order of importance.

Article 27

Abnormally low tenders

The ECB may reject

1.
to be
abnormally low in relation to the goods, works or service
offered.

tenders which appear

3.
Candidates and tenderers may within 15 days on receipt
of the notification request the ECB to provide the reasons for
rejecting their application or their tender. Unsuccessful tenderers
whose tender was admissible may also ask for the name of the
successful tenderer as well as the key characteristics and relative
advantages of its offer.

4.
However, the ECB may decide to withhold certain infor-
mation where the release of such information would affect
other suppliers’
interests, would hinder
application of the law or would otherwise be contrary to the
public interest.

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In addition, the ECB shall publish an award notice in the
5.
Official Journal on the outcome of the procurement procedure.
The notice shall be sent within 48 days after signature of the
contract.

of the written tenders, the ECB may enter negotiations with the
tenderers if that possibility was announced in the request for a
proposal. The negotiations may be carried out as consecutive
negotiations in the order of the tenderers’ ranking or as parallel
negotiations with all tenderers.

CHAPTER III

PROCUREMENTS BELOW THE THRESHOLDS

Article 29

Procedure without publication of a notice

Contracts the total estimated value of which is below the
1.
thresholds specified in Article 4(3) and service contracts listed in
Article 6(2) shall be awarded in accordance with the following
procedure.

The ECB shall award the contract to the tenderer best

6.
meeting the criteria set out in the request for a proposal.

7.
The procedure shall be carried out in accordance with the
general principles set out in Article 3. Articles 19, 20, 21, 24
and 27 shall apply accordingly.

Article 30

2.
If the value of the contract exceeds or is equal to EUR
50 000 for goods and services or EUR 500 000 for works the
ECB shall invite at least five suitable suppliers, if available, to
submit a tender within the time limit set by the ECB.

Notification of tenderers and list of contractors

Following the award decision, the ECB shall

1.
inform the
other tenderers within a reasonable time and in writing of the
outcome of the tender procedure.

If the value of contract is below these thresholds but equal or
above EUR 10 000 the ECB shall invite at least three suitable
suppliers, if available, to submit a tender.

Tenderers may within 15 days on receipt of the notifi-
2.
cation request the ECB to provide the main reasons for rejecting
their tender. Article 28(4) shall apply accordingly.

In both cases, the ECB shall provide the suppliers with a request
for a proposal specifying the ECB’s requirements and the criteria
for the award of the contract. When fixing the time limit for the
submission of
the
complexity of the contract and the time required to prepare a
tender.

tenders the ECB shall

take account of

3.
The ECB shall publish annually a list of contracts with a
value of above EUR 50 000 that were awarded in accordance
with Article 29 or for which an exception was granted in
accordance with Article 6(1). The list shall specify the name
the
of
subject and the value of the contracts.

to whom contracts were awarded,

the contractors

3.
The ECB shall select the suppliers invited to participate in
the tender procedure either among the tenderers admitted to a
dynamic purchasing system or, where no such system is in
place, from a list of registered suppliers or, where no such list
is established, on the basis of a proper market analysis. The pre-
selection of suitable suppliers is at the sole discretion of the
ECB. The lists of registered suppliers shall be open to any
interested supplier providing the type of supplies, services and
works for which the list is established. The ECB shall regularly
advertise by appropriate means the possibility to register for
these lists.

Alternatively, the ECB may publish a contract notice on its
4.
website or using other appropriate media.
In that case, the
request for a proposal shall be sent to all suppliers that have
declared their interest to participate within the time limit set by
the ECB.

Article 31

Outright award

The ECB may award contracts on the basis of a single tender if
the estimated value of the contract is less than EUR 10 000, net
of VAT, or if an exception was granted in accordance with
Article 6(1).

CHAPTER IV

FINAL PROVISIONS

Article 32

Cancellation of tender procedures

The ECB may cancel a tender procedure at any time
the candidates or
signed without

1.
before the contract
tenderers being entitled to claim any compensation.

is

5.
The tenders received shall be evaluated against the criteria
set out in the request for a proposal. Following the evaluation

The ECB’s decision to cancel shall respect

2.
principles set out in Article 3.

the general

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The ECB shall substantiate the decision and bring it to the

3.
attention of the candidates or tenderers.

Article 33

Appeal procedure

1.
In public tender procedures under Chapter II, candidates/-
tenderers may challenge in writing the ECB’s decision to reject
their application or tender within 15 days from the receipt of
the information specified in Article 28(3) or, if no information
is requested, within 15 days from the receipt of the notification.
The appeal
supporting information and
reasoned objections.

include all

shall

The appeal shall be addressed by the ECB’s Procurement
2.
Review Body (PRB). If the PRB considers that the decision to
reject the appellant’s application or tender infringes this decision
or general principles of procurement law it shall either order
that the tender procedure or parts of it are reiterated or take a
final decision. Otherwise the appeal shall be rejected. The PRB
shall notify the appellant in writing of its decision within one
month following the receipt of the appeal. The decision shall
state the reasons on which it is based.

The appeal shall not have suspensive effect.

3.
If deemed
appropriate, the PRB may suspend the procurement procedure
or the award of the contract.

Article 34

Jurisdiction

supplier relating to this Decision or a specific procurement
procedure.
If an appeal procedure is available under Article
33 the appellant shall await the ECB’s decision on the appeal
before bringing the matter to the Court of Justice. Time limits
set out in the Treaty shall begin to run from receipt of the
appeal decision.

Article 35

Entry into force

1.
This Decision shall enter into force on 1 August 2007 and
shall repeal and replace Administrative Circular 05/2006 of 27
June 2006 on ECB procurement.

2.
Tender procedures that were started before the entry into
force of this Decision shall be completed in accordance with
Administrative Circular 05/2006. For
this
provision a tender procedure is deemed to be started on the
to the Official
day on which the contract notice was sent
Journal or, in cases where no such notice is required, on the
day when the ECB invited one or several suppliers to submit a
tender.

the purpose of

Done at Frankfurt am Main, 3 July 2007.

The Court of Justice of the European Communities shall have
exclusive jurisdiction in any dispute between the ECB and a

The President of the ECB

Jean-Claude TRICHET