2009/154/EC: Decision of the European Central Bank of 27 January 2009 amending Decision ECB/2007/5 laying down the Rules on Procurement (ECB/2009/2)
Date: 2009-01-27
Institutions: European Central Bank
Subjects: administrative procedure, framework agreement, invitation to tender, services contract, supplies contract, tendering, works contract

L 51/10

EN

Official Journal of the European Union

24.2.2009

EUROPEAN CENTRAL BANK

DECISION OF THE EUROPEAN CENTRAL BANK

of 27 January 2009

amending Decision ECB/2007/5 laying down the Rules on Procurement

(ECB/2009/2)

(2009/154/EC)

THE EXECUTIVE BOARD OF THE EUROPEAN CENTRAL BANK,

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

candidates or tenderers who are guilty of such acts or
have conflicting interests should be excluded from future
tender procedures carried out by the ECB. The rules for
specified in Decision
such exclusion need to be
ECB/2007/5.

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,

(4)

For the sake of clarity, some of the rules laid down in
Decision ECB/2007/5 need to be refined further,

Whereas:

(1)

(2)

(3)

The thresholds for public tender procedures laid down in
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)
have been changed by Commission Regulation (EC) No
1422/2007 of 4 December 2007 amending Directives
2004/17/EC and 2004/18/EC of the European Parliament
their application
and of
award of
thresholds
contracts (3).
(ECB),
Bank
intends
although not subject to Directive 2004/18/EC,
to apply the same thresholds
its public tender
procedures.

in respect of
for

European Central

the procedures

the Council

The

the

for

for

in
To further enhance transparency and competition,
particular
thresholds
for procurements below the
provided for in Decision ECB/2007/5 of 3 July 2007
laying down the Rules on Procurement (4),
the ECB
intends to establish lists of suitable suppliers who may
be invited to submit a tender for procurements below the
thresholds or to participate in public tenders. The lists
will be established following the publication of calls for
the
expressions of
European Union.

in the Official

Journal of

interest

To prevent irregularities, combat fraud and corruption
efficient management,
and
and

promote

sound

(1) OJ L 80, 18.3.2004, p. 33.
(2) OJ L 134, 30.4.2004, p. 114.
(3) OJ L 317, 5.12.2007, p. 34.
(4) OJ L 184, 14.7.2007, p. 34.

HAS DECIDED AS FOLLOWS:

Article 1

Amendments

Decision ECB/2007/5 is amended as follows:

1.

in Article 1 the following definition is added:

‘(p) “call

for expressions of

establish a list of
invited to participate in procurement procedures.’;

interest”

is a procedure to
suitable suppliers who may be

2. Article 2 is amended as follows:

(a) paragraph 3(b) is replaced by the following:

‘(b) procurement procedures in which the ECB parti­
(i)
cipates organised by any of
inter­
Community institutions
national
government
organisations;
agencies, provided that the rules governing these
procurement procedures
in line with the
general principles of Community procurement law;’;

and bodies;
or

the following:

(iii)

are

(ii)

(b) paragraph 3(c) is replaced by the following:

‘(c) agreements with other Community institutions and
bodies,
international organisations or government
agencies, which the ECB enters into in the fulfilment
of its public tasks;’;

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Official Journal of the European Union

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3. Article 4(3) is replaced by the following:

6. the following Article 16a is added:

‘3.

The following threshold amounts shall apply:

‘Article 16a

(a) EUR 206 000 for supply and service contracts;

Call for expressions of interest

(b) EUR 5 150 000 for works contracts.’;

4. Article 13 is amended as follows:

(a) paragraph 2 is replaced by the following:

‘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. The ECB may refrain from
publishing a new contract notice if it includes in the
negotiated procedure exclusively all the tenderers who
the
participated in the previous procedure, met
selection criteria
in
tenders
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.
the
contract shall not be substantially altered.’;

and submitted their

In all cases,

the original

terms of

(b) paragraph 5 is replaced by the following:

‘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:

(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

(b) simultaneously with several

tenderers who best
meet the award criteria. 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.

Before starting negotiations, the ECB shall
inform all
tenderers who are eligible for negotiations on how
the negotiations will be conducted.’;

5.

in Article 15 the following sentence is added at the end of
paragraph 4:

‘Article 30(1) and (2) shall apply accordingly.’;

1.
The ECB may apply a call for expressions of interest if
it intends to award several contracts which cover the same
or similar subject-matter. Unless specified otherwise in this
Article, the procedure shall follow the restricted procedure
rules.

Journal of

2.
For the purpose of establishing a list of suitable
suppliers, the ECB shall publish a contract notice in the
Official
the European Union specifying as a
minimum the subject of the contracts to be awarded, the
eligibility and selection criteria and the deadline for receipt
of applications to be considered for the first use of a list of
suitable suppliers (hereinafter the list).

3.
The list shall be valid for no more than four years
from the date on which the contract notice is sent to the
Office for Official Publications of the European Commu­
nities. A supplier may submit an application to be included
in the list at any time during the period of validity of the
list, with the exception of the last three months of that
period. The application shall be accompanied by the docu­
mentation specified in the contract notice. To be considered
for the first use of the list, suppliers shall submit their
application within the deadline specified in the contract
notice.

4.
Following the receipt of applications, the ECB shall
verify the eligibility of candidates and evaluate the appli­
cations against the selection criteria set out in the contract
include all candidates meeting the
notice. The ECB shall
eligibility and selection criteria in the list. The ECB shall
inform the candidates at the earliest possible opportunity of
their inclusion in the list or of their rejection.

eligibility or

Suppliers included in the list shall

5.
inform the ECB
without undue delay of any substantial changes affecting
contract.
their
Moreover, suppliers included in the list may provide the
ECB with updated or additional documentation,
they
deem it necessary.

capacity to perform the

if

6.
If the ECB intends to award a contract the estimated
value of which is below the thresholds laid down in
it shall invite at least three or five suppliers
Article 4(3),
included in the list,
to submit a tender in
accordance with the procedure set out in Article 29. The
ECB shall invite the suppliers who best meet the selection
criteria set out
the
contract to be awarded.

in the contract notice in view of

if available,

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Official Journal of the European Union

24.2.2009

If the ECB intends to award a contract the estimated
7.
laid down in
the thresholds
value of which exceeds
Article 4(3),
it shall publish a simplified contract notice
in the Official Journal describing the scope of this specific
contract. Interested suppliers who are not yet included in
the list may submit an application to be included in the list
within the deadline specified in the simplified contract
notice, which shall not be less than 15 days from the
date on which the simplified contract notice is sent.
Following evaluation of the applications received, the ECB
shall invite at least five suitable suppliers included in the list
to submit a tender provided that a sufficient number of
suppliers is available. The ECB shall select the suppliers who
in the contract
best meet
awarded.
notice
Article 12(4) and (5) shall apply accordingly.

the selection criteria set out
to
the

in view of

contract

be

8.
In the cases described in paragraphs 6 and 7, the ECB
may request the suppliers included in the list to provide
updated information and documentation relevant for the
fulfillment of the eligibility and selection criteria.’;

7. Article 21(2) is replaced by the following:

If candidates or tenderers consider that

‘2.
the ECB’s
requirements laid down in the contract notice, the invi­
tation to tender or supporting documents are incomplete,
inconsistent or illegal or that the ECB or another candida­
te/tenderer has infringed the applicable procurement rules,
they shall notify their concerns to the ECB in writing
to run
without undue delay. The time limit shall start
from the moment they become aware of the irregularity
or could reasonably have become aware of it. The ECB may
then either correct or supplement
the requirements or
remedy the irregularity as requested, or reject the request
indicating the reasons therefor. Objections which were not
communicated to the ECB without undue delay may not be
raised at a later stage.’;

8. Article 24 is amended as follows:

(a) paragraphs 3 to 5 are replaced by the following:

‘3.
Candidates and tenderers shall submit only one
application or tender. The ECB may exclude from parti­
cipation any
a
separate application or tender and who:

candidates/tenderers who submit

(a) are members of the same group of affiliated under­

takings as another candidate/tenderer;

(b) are members of a temporary grouping together

with other candidates/tenderers;

if there are indications that they have received infor­
mation regarding the application or tender prepared by
another candidate/tenderer or
the submission of
separate applications/tenders distorts otherwise free
competition among candidates/tenderers.

if

4.
The ECB shall exclude candidates or tenderers
from participation if they have been the subject of a
judgment which has the force of res judicata for fraud,
corruption, money
in a
laundering,
criminal organisation or any other illegal activity detri­
mental to the financial interests of the Communities, of
the ECB or of the NCBs.

involvement

The ECB may exclude candidates or tenderers

5.
from participation at any time if:

(a)

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

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

(c)

they have been guilty of
misconduct;

grave professional

(d) they 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 estab­
the
lished or with those of
contracting authority or
the country
where the contract is to be performed;

country of

those of

the

(e)

(f)

they have been declared by a court or an arbitration
tribunal to be in serious breach of contract for
failure to comply with their contractual obligations
following another tender procedure;

they or
subject to a conflict of interest;

their management,

staff or agents are

or

(g) they are guilty of

serious misrepresentation in

supplying the information required by the ECB;

(c) offer a substantial part of

to be
awarded to another candidate/tenderer as subcon­
tractor,

the contract

(h) they contact other candidates or tenderers with the

purpose of restraining competition.’;

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(b) the following paragraphs 6 and 7 are added:

‘6.
Candidates or tenderers shall certify that they are
not in one of the situations listed in paragraphs 4 and
5 and/or provide the evidence specified in the contract
If such circumstances
notice or invitation to tender.
the procedure the candidate/
arise in the course of
tenderer concerned shall
inform the ECB without
undue delay thereof.

the duration and recurrence of

7.
The ECB may exclude a supplier that is in one of
the situations described in paragraphs 4 and 5 from
participation in any future tender procedure for a
reasonable period of time. The ECB shall decide on
the exclusion and determine the period of its duration
applying the principle of proportionality, taking into
account in particular the seriousness of the offence,
the time which has elapsed since the offence was
committed,
the
offence, the intention or degree of negligence of the
supplier concerned and the measures taken by the
supplier to avoid similar offences in the future. The
period of exclusion shall not exceed 10 years. Prior
to taking a decision to exclude a supplier, the ECB
shall give the supplier an opportunity to express its
views unless the facts justifying the exclusion are laid
down in a judgment which has the force of res judicata.
The ECB shall notify the supplier in writing of
its
decision and the main reasons therefor.’;

9. Article 28(2) is replaced by the following:

‘2.
The notification shall be sent at least 10 days prior to
the signature of the contract by the ECB if the notification
is sent by fax or electronic means, or at least 15 days prior
to the signature of the contract if other means of commu­
nication are used.’;

10. Article 29 is amended as follows:

(a) paragraph 3 is replaced by the following:

‘3.
The ECB shall select the suppliers invited to parti­
cipate 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
for
suitable
expressions of interest or, where no such list is estab­
lished, on the basis of a proper market analysis. In the
latter case, the pre-selection of suitable suppliers shall
be at the ECB’s sole discretion.’;

suppliers drawn up following a call

(b) paragraph 5 is replaced by the following:

‘5.
The tenders received shall be evaluated against
the criteria set out
for a proposal.
in the request
Following the evaluation 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 several tenderers who best
meet the award criteria.’

Article 2

Entry into force

1.

This Decision shall enter into force on 1 March 2009.

2.
Tender procedures started before the entry into force of
this Decision shall be completed in accordance with the original
provisions of Decision ECB/2007/5. For the purpose of this
provision a tender procedure is deemed to be started on the
day on which the contract notice was sent to the Official Journal
of
in cases where no such notice is
required, on the day when the ECB invited one or several
suppliers to submit a tender.

the European Union or,

Done at Frankfurt am Main, 27 January 2009.

The President of the ECB

Jean-Claude TRICHET