Special Report No 17 // 2016#The EU institutions can do more to facilitate access to their public procurement #(pursuant to Article 287(4), second subparagraph, TFEU)
Date: 2016-05-24
Institutions: European Court of Auditors
Subjects: EU competition policy, EU institution, administrative formalities, invitation to tender, tendering, transparency in decision-making

EN 

2016 

NO 17

Special Report  The EU institutions can do 
more to facilitate access to 
their public procurement

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EN 

2016 

NO 17

Special Report

The EU institutions can do 
more to facilitate access to 
their public procurement

(pursuant to Article 287(4), second subparagraph, TFEU)

Audit team

02

The ECA’s special reports set out the results of its performance and compliance audits of specific budgetary areas or 
management topics. The ECA selects and designs these audit tasks to be of maximum impact by considering the risks 
to performance or compliance, the level of income or spending involved, forthcoming developments and political and 
public interest.

This report was produced by Audit Chamber IV — headed by ECA Member Baudilio Tomé Muguruza — which specialised 
in auditing revenue, research and internal policies, financial and economic governance and the European Union’s institu‑
tions and bodies. The audit was led by ECA Member Alex Brenninkmeijer, supported by the Head of his private office,  
Antonius Moonen, and Raphael Debets, Attaché; Paul Stafford, Principal Manager; Peter Schönberger, Head of Task;  
Tomasz Kapera and Jurgen Manjé, Auditors.

From left to right: A. Moonen, J. Manjé, P. Stafford, A. Brenninkmeijer, T. Kapera, P. Schönberger, R. Debets.

Contents

03

Paragraph

Glossary

Abbreviations

I - IX 

Executive summary

1 - 6 

4 - 5 

6 

Introduction

The framework for public procurement by the EU institutions

Public procurement procedures: how do they work?

7 - 13 

Audit scope and approach

7 - 11 

Audit scope

12 - 13  Audit approach

14 - 99  Observations

14 - 25 

Section I — The EU institutions manage to keep the number of serious errors low in their 
procurement procedures but participation therein is not systematically monitored

15 - 17 

In contrast to the situation in shared management with Member States, few serious errors or irregularities 
are reported in connection with the EU institutions’ procurement 

18 - 22 

The EU institutions have robust systems and capable staff to keep the risk of errors and irregularities under 
control

23 - 25  Most EU institutions do not systematically measure the level of participation in their procurement 

procedures

26 - 55 

Section II — The rules to be followed and the procedural choices made at the start of the 
procurement process are not sufficiently geared towards increasing participation

26 -35  When revising their procurement rules in 2015, the EU institutions did not facilitate access to procurement 

by simplifying rules and clarifying grey areas to the fullest extent possible

36 - 55  Not all procedural choices fostered competition on the broadest possible basis

 
 
Contents 

04

56 - 88 

Section III — Unnecessary hurdles make life difficult for potential tenderers who want to identify 
procurement opportunities offered by the EU institutions and benefit from them

58 - 68 

The visibility of the EU institutions’ procurement activities on the internet is poor

69 - 75 

For e‑tendering and e‑submission the EU Institutions create unnecessary hurdles for economic operators by 
not using harmonised solutions in a swift manner

76 - 88 

For economic operators who consider that they have been unfairly treated it is difficult to obtain a rapid 
review of their complaints and compensation for damages

89 - 99 

Section IV — Transparency of results and mutual learning are not systematically enforced

89 -97 

Information on the outcome of the EU institutions’ procurement activities is not accessible in a way which 
would allow effective monitoring by the discharge authority and the wider public

98 - 99 

Learning from best practices is not fully exploited

100 - 109  Conclusions and recommendations

Annex I  —  Users of TED eTendering (April 2016)

Annex II  —  Summary of survey results

Replies of the European Parliament

Replies of the Council of the European Union

Replies of the European Commission, including the replies of OLAF and 
the Publications Office of the European Union
Replies of the European Central Bank

Replies of the European Ombudsman

 
 
 
 
 
 
 
Glossary

05

Contractor: an economic operator that has been awarded a contract.

Economic operator: any natural or legal person or public entity or consortium of such persons and/or bodies which 
offers to execute works, supply products and provide services.

Electronic procurement (e‑procurement): use of electronic communication and transaction processing by public 
sector organisations when buying supplies and services or tendering public works.

E‑notification: electronic publication of notices announcing public procurement opportunities including 
a hyperlink to an e‑tendering platform.

E‑submission: electronic submission of tenders by economic operators when responding to a call for tenders.

E‑tendering (also called e‑access): platform for internet publication of public procurement documentation, such as 
terms of reference, and electronic communication between the tenderers and the contracting organisation.

EU agencies and other EU bodies: distinct bodies from the EU institutions — separate legal entities set up to 
perform specific tasks under EU law. In total 52 agencies and other EU bodies exist.

EU Financial Regulation: sets out the principles and procedures governing the establishment and implementation 
of the EU budget and the control of the European Union’s finances.

Financial Transparency System (FTS): publicly accessible online database managed by the Commission which 
publishes the recipients of EU funding paid by the Commission directly.

Framework contract: is concluded with one or more economic operators to lay down the basic terms for a series of 
specific contracts to be concluded over a given period (normally 4 years).

Institutions of the European Union: Article 13 of the TEU lists the institutions of the European Union: the 
European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the 
European Union, the European Central Bank and the Court of Auditors. In addition, the EU Treaties refer to a number 
of other bodies that play a specialised role such as the European External Action Service and the European 
Investment Bank.

Nomenclature of Territorial Units for Statistics (NUTS): single, coherent system for dividing up the EU’s territory; 
set up in order to produce regional statistics for the EU. 

OLAF: European Anti‑Fraud Office (part of the European Commission); it investigates fraud against the EU budget, 
corruption and serious misconduct within the EU institutions, and develops anti‑fraud policy for the European 
Commission.

Procurement directives: establish common rules which contracting authorities in EU Member States have to follow 
above a certain value. The EU institutions have adopted their own rules which are broadly in line with the directives 
but do not include all its provisions.

Procurement procedures: an overview of the procurement procedures is given in Box 1.

Glossary 

06

Publications Office: interinstitutional office whose task is to publish the publications of the institutions of the 
European Union among which TED.

Public procurement: the purchasing of works, supplies and services by public authorities and bodies at local, 
regional, national or Union level.

Rules of application (RAP): supplement the EU Financial Regulation with more detailed rules.

SMEs: small and medium‑sized enterprises are defined in Commission recommendation 2003/361. Medium‑sized 
enterprises have a headcount lower than 250 and a turnover equal to or less than 50 million euros or a balance total 
equal to or less than 43 million euros. Small enterprises have a headcount lower than 50 and a turnover equal to or 
less than 10 million euros or a balance total equal to or less than 10 million euros.

Statement of assurance: annual financial and compliance audit exercise where the European Court of Auditors 
audits the reliability of the EU’s accounts and the regularity of the transactions underlying them (sometimes 
referred to as the ‘DAS’ from the French ‘déclaration d’assurance’).

TED: TED (Tenders Electronic Daily) is the online version of the ‘Supplement to the Official Journal’ of the EU, 
dedicated to European public procurement.

TED eTendering: e‑tendering platform offered by the Publications Office that allows contracting authorities to 
publish tender documents and to answer questions from tenderers electronically.

Tender: the offer submitted by an economic operator.

Tenderer: an economic operator that has submitted a tender. 

Abbreviations

07

CPO: Central Procurement Office (ECB)

CPV: Common Procurement Vocabulary

DAS: statement of assurance (from French ‘déclaration d’assurance’)

DG Budget: Directorate‑General for Budget (European Commission)

DG COMM: Directorate‑General for Communication (European Parliament)

DG Communication: Directorate‑General for Communication (European Commission)

DG FINS: Directorate‑General for Finance (European Parliament)

DG Internal Market, Industry, Entrepreneurship and SMEs: Directorate‑General for Internal Market, Industry, 
Entrepreneurship and SMEs (European Commission)

DG INLO: Directorate‑General for Infrastructure and Logistics (European Parliament)

DG Research and Innovation: Directorate‑General for Research and Innovation (European Commission)

DG Taxation and Customs Union: Directorate‑General for Taxation and the Customs Union (European Commission)

DG Informatics: Directorate‑General for Informatics (European Commission)

ECB: European Central Bank

EuropeAid: Directorate‑General for International Cooperation and Development (DG DEVCO)

JRC: Joint Research Centre (European Commission)

NUTS: Nomenclature of Territorial Units for Statistics

OIB: Office for Infrastructure and Logistics, Brussels (European Commission)

OIL: Office for Infrastructure and Logistics, Luxembourg (European Commission)

OJ: Official Journal of the European Union

OLAF: European Anti‑Fraud Office

RAP: Rules of application of the EU financial regulation

SMEs: Small and medium‑sized enterprises

TED: Tenders Electronic Daily

TEU: Treaty on European Union

TFEU: Treaty on Functioning of the European Union

Executive  
summary

08

I
Public procurement is a significant element of the national economies in the EU. Approximately one fifth of the 
EU’s GDP is spent every year by public authorities in procuring works, supplies and services. The Court has recently 
published Special Report No 10/15 which focused on the public procurement by the Member States in the area of 
Cohesion expenditure co‑financed from the EU budget. The current report looks at procurement by the four largest 
EU institutions which together amounted to some 4 billion euros in 2014.

II
EU legislation on public procurement plays an important role in developing the single market and in ensuring the 
efficient and effective use of public funds. Whilst EU procurement directives apply to procurement activities of the 
Member States, including Cohesion expenditure, the institutions have their own procurement rules. These rules 
are broadly in line with the directives but there are some significant differences which the Court considers to be 
unwarranted.

III
The EU institutions are required to put procurement contracts out to tender on the broadest possible basis to 
maximise competition. In our audit we examined to what extent the EU institutions facilitate access to their public 
procurement.

IV
We found that the management and control arrangements of the EU institutions are robust and in general mitigate 
the risk of errors which could otherwise adversely affect the possibility for economic operators to participate and 
their fair treatment. However most EU institutions do not systematically monitor the level of participation.

V
In 2014 the European Parliament and the Council adopted reformed directives to render procurement easier and 
administratively less burdensome, in particular with a view to increasing participation of small and medium‑sized 
enterprises. However we found that, when revising their own procurement rules in 2015, the EU institutions did not 
facilitate such access by simplifying rules and clarifying grey areas to the fullest possible extent.

VI
Not all procedural choices fostered competition on the broadest possible basis. Most EU institutions had no policy 
to undertake market consultation prior to starting the formal procurement procedure. Moreover contracts could 
have been divided into lots more frequently in order to stimulate participation, which would have had a positive 
effect in terms of access for economic operators such as SMEs.

Executive summary  

09

VII
Unnecessary hurdles make life difficult for potential tenderers who want to identify procurement opportunities 
offered by the EU institutions. The visibility of the EU institutions’ procurement opportunities on the internet is 
poor. The information available is patchy and spread over many different websites. The search function of TED 
(Tenders Electronic Daily) did not always produce satisfactory results. Tools which allow tenders to be submitted 
electronically have not yet been rolled out in a comprehensive and harmonised manner.

VIII
Economic operators who consider that they have been unfairly treated find it difficult to obtain a rapid review of 
their complaints and compensation for damages. Information on the outcome of the EU institutions’ procurement 
activities is not accessible in a way that allows effective monitoring by the public.

IX
The Court concludes that the EU institutions can do more to facilitate access to their public procurement and there‑
fore makes the following recommendations so that they adopt a policy to systematically foster wider participation:

(a)  In order to facilitate the monitoring of the accessibility of their procurement activities, all EU institutions should 
collect and analyse data both on the initial number of requests to participate and offers received and the num‑
ber of offers which were taken into account for the final award decision.

(b)  For the upcoming 2016 revision of the EU Financial Regulation the Commission should consolidate all relevant 
provisions into a single rulebook for public procurement. Participation of small and medium‑sized enterprises 
should be explicitly encouraged.

(c)  The EU institutions should proactively use preliminary market consultations wherever appropriate with a view 

to preparing the procurement and informing economic operators of their procurement plans.

(d)  The EU institutions should divide contracts into lots wherever possible to increase participation in their procure‑

ment procedures.

(e)  The EU institutions should create a common electronic one‑stop shop for their procurement activities allowing 
economic operators to find all relevant information in a single online location and to interact with the EU insti‑
tutions through this website.

(f)  The Commission should propose a mechanism for a rapid review of complaints from economic operators who 
consider that they have been unfairly treated. Such a review should take place before economic operators may 
turn to the EU Ombudsman or to the EU Courts.

(g)  To allow effective ex post monitoring of their procurement activities the EU institutions should set up a single 
public repository of information related to their procurement contracts which could be developed as part of 
TED eTendering.

(h)  The European Anti‑Fraud Office OLAF should produce reports and statistics on the different types of allegations 

under investigation and the outcome of these investigations.

(i)  The EU institutions should use peer reviews for mutual learning and exchange of best practice.

Introduction

10

1 

See Article 102(2) of the EU 
Financial Regulation which 
allows exceptions to this rule 
only when use is made of the 
negotiated procedure.

01 
This report begins with a short overview of the framework for public procure‑
ment (tendering for works, supplies and services) by the EU institutions and of 
our audit approach. We explain the internal controls that the EU institutions 
apply to reduce the number of irregularities to a minimum. We then consider 
the different stages of the procurement process to assess the degree of acces‑
sibility of the institutions’ procedures. Have clear and good rules been defined? 
Are these rules applied in a pro‑competitive manner when EU staff prepare 
procurement procedures? Will economic operators find it easy to identify those 
procurement opportunities they might be interested in amongst the thousands 
of procurement opportunities that are published every week? Is it unnecessar‑
ily complicated to submit an offer? What happens if an economic operator feels 
that he has been treated in an unfair manner? And finally, do the EU institutions 
report on the results of their procurement activities in a way which ensures 
accountability?

02 
Public procurement policy is a key instrument in developing the single market 
and in achieving smart, sustainable and inclusive growth while ensuring the most 
efficient and effective use of public funds. Public procurement rules are designed 
to benefit both economic operators and contracting authorities. The objective is 
to develop market opportunities for the former whilst at the same time increas‑
ing the choice of potential contractors available to the latter. If the contracting 
authorities facilitate access to their public procurement, this is likely to trigger 
more offers in response to their procurement needs. More competition should 
then result in better value for money for the taxpayer (see Figure 1). The EU in‑
stitutions are required to put public procurement contracts out to tender on the 
broadest possible basis1.

03 
In 2014 the European Parliament and the Council agreed to reform public pro‑
curement policy in the EU. Amongst the main features of the reform package 
were measures to remove barriers to market access, in particular for small and 
medium‑sized enterprises (SMEs). Our report examines to what extent the EU 
institutions´ procurement practices facilitate such access.

Introduction 

11

1
e
r
u
g
i
F

Better access for economic operators, better value for money for the taxpayer

Better accessibility

More offers

More competition

Better value for money

Source: European Court of Auditors.

The framework for public procurement by the EU 
institutions

04 
The award of public contracts has to comply with the principles of the Treaties, 
and in particular the free movement of goods, freedom of establishment and the 
freedom to provide services, as well as the principles deriving therefrom, such 
as equal access and equal treatment, non‑discrimination, mutual recognition, 
proportionality, fair competition, publicity and transparency.

05 
Public procurement in EU Member States is governed by Directive 2014/24/EU2 
(hereinafter referred to as the ‘2014 Procurement Directive’) and a number of 
other directives which establish common rules which contracting authorities 
have to follow for procurements above a certain value. These rules have to be 
transposed in national legislation. Directives are not legally binding upon EU in‑
stitutions. The latter have adopted their own rules which are broadly in line with 
the 2014 Procurement Directive with some important exceptions3. For the EU 
institutions financed from the general budget procurement rules are laid down 
in the financial rules as last amended in October 20154 (hereinafter referred to as 
the ‘EU Financial Regulation’) and in their rules of application as last amended in 
October 20155 (hereinafter referred to as the ‘RAP’). The procurement rules of the 
European Central Bank are set out in a decision6 (hereinafter referred to as the 
‘ECB rules on procurement’), adopted by its Executive Board in February 2016. 
Figure 2 shows the legal framework for EU public procurement.

2  Directive 2014/24/EU of the 
European Parliament and of 
the Council of 
26 February 2014 on public 
procurement and repealing 
Directive 2004/18/EC (OJ L 94, 
28.3.2014, p. 65).

3 

See paragraphs 29 to 31.

4  Regulation (EU, Euratom) 

2015/1929 of the European 
Parliament and of the Council 
of 28 October 2015 amending 
Regulation (EU, Euratom) No 
966/2012 on the financial rules 
applicable to the general 
budget of the Union (OJ L 286, 
30.10.2015, p. 1).

5  Commission Delegated 

Regulation (EU) 2015/2462 of 
30 October 2015 amending 
Delegated Regulation (EU) 
No 1268/2012 on the rules of 
application of Regulation (EU, 
Euratom) No 966/2012 of the 
European Parliament and of 
the Council on the financial 
rules applicable to the general 
budget of the Union (OJ L 342, 
29.12.2015, p. 7).

6  Decision (EU) 2016/245 of the 
European Central Bank of 
9 February 2016 laying down 
the rules on procurement (OJ 
L 45, 20.2.2016, p. 15).

 
Introduction 

12

2
e
r
u
g
i
F

Legal framework of EU public procurement

EU Directives on public procurement;
adopted by European Parliament
and Council

Serving as a reference for:

transposed in:

Legislation on public procurement;
adopted by national legislator

Financial Regulation;
adopted by European Parliament
and Council

Rules of Application;
adopted by European Commission

ECB procurement rules;
adopted by ECB Executive Board

Member States

EU institutions

Source: European Court of Auditors.

Public procurement procedures: how do they work?

06 
Based on the EU Financial Regulation the Commission’s internal procurement 
guide7 distinguishes 10 different procedures for procurement (see Box 1). The 
choice to be made depends on various factors, in particular on the estimated 
value of the contract. The most important steps of the procurement process are 
shown in Figure 3.

7  Vade‑mecum on public 
procurement in the 
Commission (November 2015, 
unpublished); made available 
to other EU institutions, 
bodies, offices and agencies.

 
Introduction 

13

1
x
o
B

The procedural options under the EU Financial Regulation

Open procedure: Standard procedure that may be used for any contract starting with publication of a con‑
tract notice in the Official Journal (OJ). Any economic operator who is interested may tender.

Restricted procedure: Standard procedure in two steps starting with publication of a contract notice in the OJ 
that may be used for any contract. Any interested economic operator may ask to participate, but only those in‑
vited may submit a tender that will be evaluated in the second step. A variant of this procedure is the dynamic 
purchasing system with exclusive use of electronic means.

Competitive procedure with negotiation: A procedure which is similar to the restricted procedure and that 
may be used only under specific cases regardless of the value of the purchase. The submitted tenders (techni‑
cal and financial offers) can be negotiated.

Procedures following a call for expressions of interest (CEI): The CEI preselects candidates or registers ven‑
dors who may later be invited to submit offers in different procurement procedures.

Negotiated procedure without publication of a contract notice: Exceptional procedure that can only be 
used in certain cases or circumstances (for example extreme urgency).

Negotiated procedure for middle and low value contracts: The contracting authority must invite economic 
operators to tender who have shown their interest during ex ante publicity, and can, in addition invite candi‑
dates of its choice. For very low value contracts negotiation with a single candidate chosen by the contracting 
authority is allowed.

Competitive dialogue: Used for complex procurements where the contracting authority is unable to define 
the means of meeting its needs or of assessing what the market can offer in terms of technical or financial or 
legal solutions without a dialogue with potential tenderers.

Innovation partnership: Two step procedure for the acquisition of an innovative product that still has to be 
developed and for which no equivalent product is available on the market.

Design contest: This enables the contracting authority to acquire a plan or design proposed by a jury after 
a competitive procedure with or without the award of prizes. The winner or winners are then invited to nego‑
tiate before signature of the subsequent contract.

Negotiated procedure for building contracts: Building contracts (purchase, long lease, usufruct, leasing, 
rental or hire purchase, with or without option to buy, of land, existing buildings or other real estate) can be 
concluded by negotiated procedure without publication of a contract notice, after the local market has been 
prospected.

 
Introduction 

14

3 Overview of the procurement process under the EU Financial Regulation
e
r
u
g
i
F

Asses needs for procurement

Seek advice from independent experts, other authorities or market participants

Deﬁne subject matter, type of purchase (works, supplies or services), value of contract

Draft procurement documents
(including technical speciﬁcations and exclusion, selection and award criteria)

Inform potential contractors

If estimated value above threshold
or in case of calls for expressions of interest:

If estimated value below threshold:

By notice in 
the Oﬃcial Journal

Directly in speciﬁc cases
or exceptional
circumstances
(minimum 1 candidate)

By publicity on the
institution's website for
middle and low-value
contracts (minimum 5
or 3 candidates)

Directly for very low-
value contracts
(minimum 1 candidate)

In 2-step procedure: Receive requests to participate, assess them against exclusion and
selection criteria and invite selected candidate(s) to submit tenders

Receive tender and evaluate them against award criteria in 2-step procedure, against
exclusion, selection and award criteria in any order in 1-step procedures

Award contracts by lowest price, lowest cost or best price-quality ratio

Inform successful and unsuccessful tenderers simultaneously

Sign contract, for value as from Directive threshold after standstill period

Publish award notice in the Oﬃcial Journal or
(mainly for middle- and low-value contracts) annual list of contractors on internet

Note: Boxes with dotted lines indicate a procedural step that is optional. The thresholds of the EU Procurement Directive are 5 225 000 euros 
for works and 135 000 euros for services or supplies. Middle‑value between 60 000.01 euros and 5 224 999.9 euros for works and between 
60 000.01 euros and 134 999.9 euros for services or supplies. Low‑value between 15 000.01 and 60 000 euros. Very low value between 1 000.01 
and 15 000 euros. For amounts up to 1 000 euros no procurement procedure is required.

Source: European Court of Auditors.

 
Audit scope  
and approach

15

Audit scope

07 
We examined to what extent the EU institutions facilitate access to their public 
procurement. See Figure 4 for the prerequisites for facilitating access to public 
procurement.

4
e
r
u
g
i
F

Prerequisites for facilitating access to public procurement

2. Clear rules 
and choosing 
pro-competitive 
procedures

3. No unnecessary
hurdles for
economic 
operators

1. Few errors, 
robust systems,
capable staﬀ and
monitoring of
participation

Facilitating
ACCESS to public
procurement

4. Being
transparent and
learning from
one another

Source: European Court of Auditors.

08 
We therefore considered the following four questions:

(a)  Do the EU institutions have robust systems that foster participation whilst 

protecting the Union’s financial interests?

(b)  Do the EU institutions make the right procedural choices to increase partici‑

pation in their procurement procedures?

(c)  Do the EU institutions to the greatest extent possible remove hurdles that 

make life difficult for potential tenderers?

(d)  Do the EU institutions ensure in a comprehensive and systematic manner that 
the outcomes of their procurement procedures are transparent and that they 
learn from one another?

 
Audit scope and approach  

16

09 
We covered the procurement activities of the four largest EU institutions: the 
European Commission, the European Parliament, the Council of the European Un‑
ion and the European Central Bank (ECB). In 2014 the total value of all contracts 
above 15 000 euros (above 10 000 euros for the ECB) of these four institutions is 
presented in Table 1:

8 

Specific rules apply which are 
laid down in Part Two, Title IV 
of the EU Financial Regulation.

1 Value of contracts in 2014
e
l
b
a
T

Institution

Commission

Parliament

ECB

Council1

Total

In million euro

3 034

497

515

171

4 217

1  Council’s estimated value of procedures launched in 2014.
Source: European Court of Auditors based on data provided by the audited institutions.

10 
In addition, the following EU institutions and bodies were included in our audit to 
examine specific issues: the Court of Justice of the European Union for its juris‑
prudence in relation to public procurement by the EU institutions, the European 
Ombudsman who deals with maladministration in procurement procedures, 
the European Anti‑Fraud Office (OLAF) for its investigations in connection with 
irregularities in procurement procedures and the Publications Office which man‑
ages online services giving access to information on public procurement.

11 
We did not look into public contracts concluded by the Commission on behalf of 
and on the account of beneficiaries in connection with external actions8, nor at 
procurements where the management of EU spending involves other organisa‑
tions or bodies (so‑called ‘indirect management’ by the Commission) or where 
the management is shared with Member States.

 
Audit scope and approach  

17

Audit approach

12 
We based our observations on the following main sources of audit evidence:

(a)  We carried out preliminary research with representatives of business organi‑
sations, national procurement experts and experts from the academic world;

(b)  We reviewed documentation relating to procurement policies, procedures 

and tools;

(c)  We analysed samples of procurement files covering the years 2013–2015 from 
the European Parliament (DG INLO and DG COMM), from the General Sec‑
retariat of the Council, from the Commission (DG Internal Market, Industry, 
Entrepreneurship and SMEs, Joint Research Centre (JRC)) and from the ECB;

(d)  We tested the EU institutions’ online tools which are meant to assist in the 

identification of procurement opportunities;

(e)  We interviewed EU staff;

(f)  We analysed the EU institutions’ replies to our questionnaires.

13 
In addition, we surveyed 47 smaller EU bodies to obtain their opinions and views 
with regard to procurement policies and processes. 40 replies were received 
(response rate 85 %). Results are summarised in Annex II.

Observations

18

9 

See for example the most 
recent annual report of the 
Court of Auditors on the 
implementation of the budget 
concerning the financial year 
2014, together with the 
institutions’ replies (OJ C 373, 
10.11.2015), paragraph 1.29.

10  Errors in direct management 
mostly occurred with grants 
financed from the EU budget.

11  See our Special Report 

10/2015 ‘Efforts to address 
problems with public 
procurement in EU cohesion 
expenditure should by 
intensified’, in particular 
paragraphs 19 to 24 and Table 
1 which provide a typology of 
errors. The works, supplies and 
services procured in 
connection with cohesion 
expenditure in Member States 
include items such as road 
construction or waste water 
treatment plants which are 
normally not to be found in 
the procurement portfolio of 
the EU institutions (http://eca.
europa.eu).

Section I — The EU institutions manage to keep the 
number of serious errors low in their procurement 
procedures but participation therein is not 
systematically monitored

14 
The EU institutions should be able to demonstrate that they ensure accessibility 
in their procurement activities. To that end, they need information on the level of 
participation of economic operators in their procurement procedures. They must 
also prevent serious errors and irregularities whose occurrence could adversely 
affect the possibility for economic operators to participate and undermine their 
confidence and hence their interest in the EU institutions’ procurement. We ex‑
amined the information available on serious errors and irregularities, the systems 
to prevent them and the participation by economic operators in the EU institu‑
tions’ procurement procedures.

In contrast to the situation in shared management with 
Member States, few serious errors or irregularities are 
reported in connection with the EU institutions’ procurement

15 
In our annual Statement of Assurance9 we detect few serious public procurement 
errors in the transactions directly managed by the EU institutions10. As in previous 
years, this contrasts with the situation in shared management with the Member 
States11.

16 
At our request OLAF analysed its information on alleged irregularities received 
between 1 January and 30 April 2015 to identify cases related to public procure ‑
ment. In total, OLAF counted 503 different incoming information items. Only 
20 out of 503 notifications concerned procurement by the EU institutions, 16 of 
these were dismissed at the initial case selection phase and four led to the open‑
ing of an investigation. These figures imply that, compared to the total number 
of procurement procedures launched by EU institutions, the share of cases with 
potentially serious irregularities is in the order of 1 %, if one takes into account 
the approximately 2 000 procedures per year where a contract award notice is 
published in the Official Journal by the EU institutions.

Observations 

19

17 
OLAF only produced these statistics at our specific request and they only repre‑
sent a snapshot at a given point in time in order to have an idea of the number 
of potential cases brought to OLAF’s attention. It would have been more useful if 
OLAF had been able to provide statistics which allow trends to be identified and 
the outcome of its investigations to be assessed.

12  See paragraph 9.

The EU institutions have robust systems and capable staff to 
keep the risk of errors and irregularities under control

Procedural expertise and assistance is available to the operational 
services

18 
Successful procurement requires a combination of technical expertise concerning 
the specific works, supplies and services being procured and sound knowledge 
of the rules and procedures to be applied.

19 
All entities whose procurement procedures we examined12 have dedicated units 
of procurement experts who advise and assist the operational services on their 
procurement activities. We found that the procedural expertise of the procure‑
ment experts complements the technical expertise of the operational services 
and that the staff resources dedicated to procurement activities are appropriate. 
Furthermore, procedural advice and expertise is available from the EU institu‑
tions’ legal services and/or central financial units.

20 
Most of the audited entities have internal committees in place that aim to 
strengthen governance and control over procurement procedures. Typically 
these committees are composed of staff from other parts of the organisation. 
Such committees have decision‑making powers or can issue recommendations 
and they tend to deal with the larger procurements and/or with procurements 
with a more limited form of competition. Prior to the signature of a contract, 
these committees provide additional assurance that applicable rules have been 
followed. Furthermore, their interdisciplinary composition makes them a plat‑
form for the exchange of views in the larger institutions where procurement is 
decentralised.

Observations 

20

Advice from internal audit services played an important role

21 
The current organisational set‑up and procedures for procurement activities are 
to a considerable extent the result of recommendations made by the internal 
audit services some years ago. In the meantime, most internal audit services have 
focussed their attention on other areas of their institutions’ activities and allo‑
cated limited resources to public procurement. However, the internal audit ser‑
vices will have to revisit procurement to assess the implementation of the recent 
revision of the procurement rules and, based on the results of this reassessment, 
adjust their work programmes accordingly.

The ECB obtained external certification of its procurement 
activities 

22 
In addition to internal advice, external certification can help to bring in outside 
knowledge and perspective and can be a driver for improvement. The Central 
Procurement Office (CPO) of the ECB applied for and obtained an external certifi‑
cation of its activities. The certification was awarded by the Chartered Institute of 
Purchasing & Supply (CIPS) in 2011. The ECB’s certification, called the ‘PPP Award’ 
(Processes, Policies and Procedures) for achieving the standard of excellence in 
these fields, expired at the end of 2015 and the CPO has planned to undergo 
a full recertification process in the first quarter of 2016.

Most EU institutions do not systematically measure the level 
of participation in their procurement procedures

Simply counting the number of offers received is not enough to 
reliably monitor the level of participation

23 
When they publish a contract award notice in the Official Journal, the EU institu‑
tions have to indicate the number of offers received for the contract in question. 
However, this information alone is not a sufficient basis to reliably assess the level 
of competition in a procedure. Competition might be weak even in cases where 
several offers have been received. This is in particular the case when only one of‑
fer can be taken into account for an assessment against the award criteria and the 
others have been eliminated before they reach the final stage of the evaluation. 
Offers can be eliminated from the final evaluation for various reasons, notably 
when they are incomplete or do not comply with the exclusion or selection 
criteria.

Observations 

21

JRC data show that in half of the procedures only one offer could 
be taken into account for the final award decision

24 
Only the Commission’s JRC compiles data, collected procedure by procedure and 
for each type of procedure, on the number of offers received, the number of of‑
fers in order, the number offers admissible, the number of offers found compliant 
and the number of offers ranked.

13  Most notably negotiated 
procedures where the 
contract could be awarded 
only to a particular economic 
operator for technical or 
artistic reasons, or because of 
the protection of exclusive 
rights.

25 
We analysed JRC’s statistics for 2013 and 2014 to compare the number of offers 
received with the number of offers which had made it to the final stage and 
could be assessed against the award criteria. 468 procedures for contracts over 
60 000 euros were included in the analysis. In 50 of these procedures only one 
candidate could be taken into account from the outset, constituting an exception 
to the principle of broadest possible competition13. For the remaining 418 proce‑
dures in half of the cases (49 %) only one offer could be taken into account for the 
final award decision (see Figure 5).

5 Frequency of procedures by number of offers taken into 
e
r
u
g
i
F

account for the final award decision (418 JRC contracts 
signed in 2013 and 2014 over 60 000 euros)

250

200

150

100

50

0

0 offers

1 offer

2 offers

3 offers

4 offers

5 to 9 offers

10 offers and
more

Source: European Court of Auditors based on data provided by the JRC.

 
Observations 

22

Section II — The rules to be followed and the 
procedural choices made at the start of the 
procurement process are not sufficiently geared 
towards increasing participation

When revising their procurement rules in 2015, the EU 
institutions did not facilitate access to procurement by 
simplifying rules and clarifying grey areas to the fullest 
extent possible

14  See paragraph 8 of the Opinion 

(OJ C52, 13.2.2015, p. 1).

15  Article 96 of the EU Financial 

Regulation on good 
administration provides inter 
alia that the institution has to 
ask the applicant or tenderer 
to provide missing 
information or clarify 
supporting documents in case 
of obvious clerical errors.

The EU Financial Regulation and its rules of application have 
not been consolidated into a single document and remain an 
unnecessarily complex piece of legislation

26 
The 2015 revision of the EU Financial Regulation has maintained the division of 
public procurement rules between, on the one hand, the Financial Regulation 
itself and, on the other, its rules of application. As we pointed out in our Opinion 
No 1/201514 this division was detrimental to the objective of clarification un‑
derlying the revision. Furthermore, there is no discernible advantage from this 
division. It renders the understanding of already complicated rules even more 
difficult, not only for EU staff but a fortiori for economic operators.

27 
Further complication is added by the fact that not all relevant provisions are to 
be found in the titles and chapters of the EU Financial Regulation which specifi‑
cally address public procurement issues. Important provisions feature elsewhere 
in the text, for example the provision concerning ‘good administration’, which is 
of particular importance to economic operators15.

28 
The ECB rules on procurement demonstrate that it is possible to consolidate all 
relevant rules in a single text.

23

16  See recital 2 of the 2014 
Procurement Directive.

17 

In its communications with 
potential tenderers, DG 
Internal Market, Industry, 
Entrepreneurship and SMEs 
stresses that SMEs are 
particularly invited to 
participate. SMEs are 
encouraged to submit alone, 
in a consortium or as 
a sub‑contractor.

18  See Article 40 of the 2014 
Procurement Directive.

19  The ECB rules on procurement 
do not mention preliminary 
market consultations.

Observations 

Important deviations from the 2014 Procurement Directive are not 
explained

29 
Although the procurement rules of the EU institutions broadly follow the provi‑
sions of the 2014 Procurement Directive, there are deviations from these provi‑
sions which are not explained. Two of these deviations are important for the 
accessibility of the EU institutions’ procurement. One relates to the participation 
of SMEs, the other to the purpose of preliminary market consultations.

Participation of SMEs is not specifically encouraged

30 
One of the major objectives of the 2014 Procurement Directive is ‘facilitating in 
particular the participation of small‑ and medium‑sized enterprises (SMEs) in 
public procurement’16. In this connection, the legislator explicitly warned against 
the risks of excessive concentration of purchasing power from an aggregation 
of demand by public purchasers. Throughout the 2014 Procurement Directive, 
the term ‘SMEs’ appears more than 20 times. By contrast, the amendments made 
to the EU Financial Regulation and the recast ECB rules on procurement do not 
refer to SMEs at all. In our audit, we found that, with the exception of DG Internal 
Market, Industry, Entrepreneurship and SMEs17, none of the entities audited had 
issued specific guidance or instructions on how to facilitate the participation of 
SMEs or to monitor the level of their participation. In our survey only one out of 
40 respondents indicated that SME participation was one of their priorities. Nev‑
ertheless some procurement procedures clearly provided opportunities for SMEs 
(see Box 2).

Preliminary market consultations with the objective of informing economic 
operators are not mentioned

31 
The 2014 Procurement Directive explicitly allows for preliminary market consul‑
tations before the procurement procedure itself and defines the principles to 
be respected18. The contracting authorities may seek or accept the advice from 
independent experts or authorities or from market participants to be used in the 
planning and conduct of the procurement procedure, provided that such advice 
does not have the effect of distorting competition and does not result in a viola‑
tion of the principles of non‑discrimination and transparency. The 2014 Procure‑
ment Directive states that such market consultations are conducted not only with 
a view to preparing the procurement but also to informing economic operators 
of the contracting authorities’ procurement plans and requirements (see Box 3). 
The latter objective has not been taken over in the EU Financial Regulation19.

Observations 

24

2
x
o
B

3
x
o
B

Examples of procedures easily accessible for SMEs

In 2014 the European Parliament needed expert advice for its Committee on Environment, Public Health and 
Food Safety. The total estimated value of the services was 2.5 million euros over a period of 4 years. Rather 
than looking for a single contractor, Parliament split up the services into five lots: environmental policy, 
climate change, sustainable development, public health and food safety. For each lot, several suitable contrac‑
tors were identified. In total the Parliament concluded contracts with 17 different companies.

In 2014 the Council procured promotional products for a total value of 122 566 euros. The procurement was 
divided into 12 lots depending on the type of products needed (such as watches, t‑shirts or pens). Competi‑
tion between tenderers was possible on the level of each lot and contracts were signed with three different 
companies.

For its new premises in Frankfurt the ECB had at first failed to find a ‘general contractor’, as what was offered 
considerably exceeded the ECB’s budget. The ECB then decided to tender the construction works in 14 pack‑
ages with 4 to 10 lots within each package. As a result of the revised tendering strategy, SMEs could partici‑
pate and were awarded contracts. The ECB was able to manage some 60 construction companies working in 
parallel.

An unwarranted deviation from the 2014 Procurement Directive in the 2015 EU 
Financial Regulation

‘Before launching a procurement procedure, contracting authorities may conduct market consultations with 
a view to preparing the procurement and informing economic operators of their procurement plans and re‑
quirements.’ (from Article 40 of the 2014 directive, emphasis added)

‘Before launching a procurement procedure, the contracting authority may conduct a preliminary market con‑
sultation with a view to preparing the procedure.’ (from Article 105 of the 2015 EU Financial Regulation).

 
 
Observations 

25

How to prospect the local market for real estate has not been 
clarified

32 
The 2014 Procurement Directive does not apply to the acquisition or rental of 
land, existing buildings or other immovable property. Nevertheless, the proce‑
dures applied for such contracts should comply with the principles of the Treaty, 
and in particular with the principles of equal treatment and transparency.

20  See COM(2007) 501 final of 

5 September 2007 on Policy 
for the accommodation of 
Commission services in 
Brussels and Luxembourg; in 
particular the section 
‘Increased competition on the 
marketplace: A revised 
methodology for buying and 
rental of buildings’.

33 
Neither the EU Financial Regulation nor the ECB rules on procurement set out 
how potential vendors or contractors are to be informed and contacted when the 
EU institutions are looking for land or for existing buildings. As a consequence 
this remains largely left to the discretion of the institutions’ managers. In our 
audit, we found cases where the latter explored the market themselves and 
contacted potential vendors or contractors of their choice directly, cases where 
external consultants were used to help identify suitable offers as well as cases 
where a prospection notice was published in the Official Journal.

34 
Only the Commission has made a public commitment20 that it will guarantee 
transparency by systematically publishing prospection notices in the Official 
Journal which indicate the minimum requirements of each specific project and 
the exclusion and prospection criteria that apply and also by publishing the 
outcome of the procedures. In our audit, we saw that the procedure was used for 
Commission building contracts in Brussels but not in Luxembourg. The European 
Parliament last issued a prospection notice in the Official Journal when it was 
seeking buildings in the Brussels‑Capital Region in 2010.

26

21  The ECB rules provide that 

procurement procedures are 
conducted in English, unless 
there are exceptional 
circumstances relating to the 
procedure or the subject 
matter of the contract that 
require the use of other 
languages.

Observations 

Only the ECB has set out the applicable language regime in its 
procurement rules

35 
The languages to be used for public procurement are not set out in the EU Finan‑
cial Regulation. Only the ECB rules on procurement set out a language regime21.
The procedures applied by most EU institutions risk creating an expectation 
gap with potential tenderers. The EU institutions publish their notices in TED in 
all official languages. In addition, economic operators may request translation 
of the detailed tender documents and may submit their tenders in any official 
language. Once the tenderers have become contractors, however, they often 
cannot continue in the official language of their choice but must fulfil the needs 
of the contracting authority as provided in the tender specifications. This usually 
includes a specific language for contacts (communication during contract execu‑
tion) and for deliverables.

Not all procedural choices fostered competition on the 
broadest possible basis

36 
We found that many procurement officers are under pressure to avoid litigation 
and/or to reduce the time and resources needed to carry out procurement pro‑
cedures. This may lead to procedural choices which are defendable from a legal 
point of view but where a more pro‑competitive interpretation of the rules would 
be desirable from a sound financial management perspective.

Only the ECB had a policy to undertake preliminary market 
consultation prior to starting the formal procurement procedure

37 
Thorough market consultation before starting the formal procurement process is 
important for optimising the requirements and technical specifications set out in 
tender documents and for verifying the availability and willingness of potential 
tenderers to participate in a procedure.

27

22  See the study ‘SMEs’ access to 
public procurement markets 
and aggregation of demand in 
the EU’ of February 2014 made 
at the request of the 
Commission by external 
consultants.

Observations 

38 
Until the most recent revisions of the Procurement Directive and the EU Financial 
Regulation, market consultation prior to launching calls for tenders was not men‑
tioned in procurement rules (see paragraph above). Moreover, with the notable 
exception of the ECB, internal guidance or instructions issued by the EU institu‑
tions with regard to market consultation put much emphasis on the risks associ‑
ated with this approach and set restrictive conditions or even discouraged the 
option of approaching potential bidders. For example the Parliament’s internal 
Vade Mecum on public procurement procedures (November 2014) recommended 
not to seek or accept opinions from individuals or operators with an interest in 
the relevant contract, as this might hinder competition.

39 
This may trigger a risk‑averse attitude amongst procurement officers. In the 
procurement files examined, we found little evidence that comprehensive mar‑
ket consultation had taken place. This was also confirmed by our survey. Many 
respondents indicated that they rarely made use of market consultation prior to 
launching a procurement procedure.

40 
In contrast to the other EU institutions, the ECB’s procurement unit has issued 
and implemented internal guidelines for a proactive approach with suppliers 
before starting the formal procurement process in order to get better value for 
money. This involves in particular holding informal meetings with both incum‑
bent and potential contractors in order to gain market intelligence, to explain the 
ECB’s requirements and to foster competition.

Contracts were not divided into lots as often as they could have 
been

41 
Dividing a contract into lots increases competition and makes it easier for small 
and medium‑sized enterprises to participate. The larger a contract, the less likely 
it will be awarded to SMEs22.

Observations 

28

42 
Article 168 of the RAP provides that ‘whenever appropriate, technically feasible, 
and cost efficient’ contracts are to be awarded in the form of separate lots within 
the same procedure. This wording leaves authorising officers with broad discre‑
tion whether or not to use lots. We found that dividing contracts into lots was not 
used to the fullest extent possible. Examples where lots could have been used 
are given in Box 4. Compared to the situation at central state level in Member 
States the share of contract notices with lots published in TED was markedly 
lower for EU institutions (see Figure 6).

4
x
o
B

Cases where contracts could have been divided into lots

In 2014 the Council awarded a framework contract for 10 years and a value of over 93 million euros for man ‑
agement, maintenance, repair and adaptation of technical installations in its present or future buildings to 
a single company without splitting it into lots. The services to be provided include such diverse domains as: 
heating, ventilation, air conditioning, water and sanitary installations, electricity, emergency networks, pho‑
tovoltaic, collective protective equipment, culinary equipment, emptying of grease separators, monitoring of 
consumption, technical assistance and works to adapt the installations.

The Commission did not use lots in 2015 for the 5‑year contract ‘ “Your Europe Advice” — the European Un‑
ion’s free legal advice service’ with a value of over 8.9 million euros. This service is very complex as it concerns 
legal advice in all EU languages and expertise in all EU legal systems is required. The only tender was present‑
ed by the incumbent service provider as it was probably the only economic operator in a position to present 
a ready‑made offer for such a wide scope of the service. However, the number of downloads of the tender 
documents (211 downloads) showed a big interest in this call. Splitting it into lots, for example by groups of 
countries, might have facilitated the participation of other economic operators.

In 2014 the European Parliament contracted a company for the cleaning of its buildings in Strasbourg with 
a value of over 19.8 million euros for a period of 5 years. The services requested were described as ‘Cleaning of 
offices, windows, joinery and metal cladding (interior and exterior), and other general hygiene services in the 
European Parliament buildings in Strasbourg’ and all placed in one lot. The window cleaning could have been 
awarded in a separate lot, increasing the number of companies that could have benefited from this opportu‑
nity. Window cleaning is often performed as an activity separate from office cleaning by different staff, with 
a different frequency and requiring different experience, skills and tools.

 
Observations 

29

6
e
r
u
g
i
F

Share of procedures with lots — comparison between contract notices of EU 
institutions and central national authorities

25 %

20 %

15 %

10 %

5 %

0 %

2010

2011

2012

2013

2014

Ministry or any other national or federal authority

European institution, agency or international organisation

Note: When no information on the use of lots was provided in the contract notice, we assumed that no division into lots had taken place. The TED 
reporting category ‘European institution, agency or international organisation’ includes a very small number of contract notices of international 
non‑EU organisations.

Source: ECA based on data from the Publications Office.

43 
Whereas dividing contracts into lots and publishing them simultaneously can 
increase the accessibility of procurement procedures, EU institutions must not ar‑
tificially split a procurement in order to avoid the need to apply a more competi‑
tive procedure. For example, the European Parliament purchased office furniture 
in 2014 from one supplier through four different negotiated procedures with 
a single tenderer in a period covering less than 2 months. The four procedures all 
had contract values under the applicable threshold for wider publicity, ranging 
from 8021 to 14 110 euros and totalling 43 345 euros. All four procurements were 
very similar, each of them dealing with office furniture for directors and direc‑
tors‑general housed in one specific building.

The use of restricted procedures risked discouraging potential 
tenderers

44 
The EU Financial Regulation provides that the contracting authority may use the 
open or the restricted procedure for any purchase. The ECB rules on procurement 
give priority to the open procedure as they provide that the open procedure is 
the standard procedure.

 
30

23  Contrary to the open 

procedure, the restricted 
procedure is organised in two 
phases. In the first phase any 
interested economic operator 
may ask to take part, but only 
those who meet the selection 
criteria can submit a tender.

Observations 

45 
A restricted procedure23 presents certain advantages, in particular if there is 
a need to limit the circulation of the tender documents for security/confidential‑
ity reasons. However, at least before the latest revision of the procurement rules, 
there was a risk that potential tenderers refrained from participating because 
the invitation to tender with the detailed specifications were not available in the 
first phase and it was therefore difficult for them to get a clear view of what was 
expected by the contracting authority. Whether this will change with the revised 
RAP in force as from 2016 remains to be seen. The RAP provide that the procure‑
ment documents including the full tender specifications should also be made 
available from the start in the case of two‑step procedures such as restricted 
procedures. The RAP include, however, an exception clause which allows deroga‑
tions from this rule in justified cases, for example where there are confidentiality 
or technical issues.

46 
Furthermore, a restricted procedure usually takes longer than an open proce‑
dure, which in itself might discourage potential tenderers. The minimum time 
limit for submissions under an ordinary open procedure with electronic access 
to tender documents is 47 days, for the restricted procedure it is 37 plus 35 days. 
In addition, the two steps of a restricted procedure are disrupted by the time 
needed for the processing of requests to participate. Further delays might occur 
when applications to participate are rejected and the operators concerned object 
to their exclusion. Finally, no flexibility is possible to assess tenders against the 
award criteria first without prior check on exclusion or selection criteria which 
will lengthen the process further as compared to the open procedure.

47 
Over the years 2010 to 2014, for all EU institutions taken together, the number of 
contract awards following an open procedure has consistently been about three 
times higher than the number of awards under a restricted procedure. By con‑
trast, the Council used restricted procedures in the vast majority of cases during 
that period. The length of these procedures was a major issue. During the period 
from 2011 to 2013 their average duration was almost 1 year, including an aver‑
age of 170 days between the publication of the contract notice and the receipt of 
offers.

Observations 

31

The use of negotiated procedures was in general closely 
monitored

48 
The 2014 reform of the procurement rules has increased the scope for pro‑
curement procedures which involve negotiations with tenderers, in particular 
through the new ‘competitive procedure with negotiation’. For our audit it was 
too early to assess the impact of the new rules.

49 
In the past, negotiated procedures without prior publicity have been used four 
times more frequently than negotiated procedures with publicity in the Official 
Journal. The main reason for negotiated procedures without prior publicity was 
that the works, supplies or services could only be provided by a single economic 
operator and no reasonable alternative or substitute existed.

5
x
o
B

Cases where wider publicity would have been appropriate

The European Parliament used a negotiated procedure to conclude a ‘building contract’ for 133.6 mil‑
lion euros for a building in Brussels although the building did not exist when the contract was signed on 
27 June 2012. As we explained in our Special Report No 2/2007 24, only existing buildings are covered by the 
exception from tendering on the broadest possible basis provided in Article 134(1) of the RAP. Unfinished 
buildings or buildings not yet constructed should be subject to open and competitive award methods.

The ECB’s Executive Board expressed the need for organisational consultancy services in order to fulfil the 
new mission of the Bank in the field of banking supervision just a few months before the start of the Single 
Supervisory Mechanism in November 2014. Five potential tenderers were directly approached and invited to 
submit offers, but no contract notice was published based on the exception ‘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’. However, in 2013 already it was foreseeable that the creation of the Single Super‑
visory Mechanism would pose an organisational challenge to the ECB; and it was not demonstrated that the 
time limits for an accelerated restricted procedure (10 days for the receipt of applications, 10 days for the 
receipt of tenders) could not be complied with within the available timeframe. The value of the contract was 
3.49 million euros.

24  OJ C 148, 2.7.2007, p. 1, see paragraph 21.

 
Observations 

32

50 
The use of negotiated procedures without prior publicity was closely monitored 
by the audited institutions, as required by the EU Financial Regulation. However, 
at the European Parliament and the ECB we found two cases where wider public‑
ity would have been appropriate (see Box 5).

Duty to negotiate in negotiated procedures

51 
Contrary to what the name suggests negotiated procedures did not always 
involve negotiations. This was in particular the case in low‑value procedures. 
Directorates‑General of the Commission and of the Parliament dealt with negoti‑
ated procedures in such a way that the best offer amongst those submitted was 
chosen but no attempt was made to improve the offer by way of negotiations.

52 
Tenderers might however expect that they will be given an opportunity to adjust 
their initial offer in price or quality following initial submission. In the absence of 
such a possibility these tenderers are deprived of a chance to win the contract 
and the institution might be missing out on a better deal.

53 
Since its revision in 2015, the EU Financial Regulation explicitly provides that the 
contracting authority may award a contract in a negotiated procedure on the 
basis of the initial tender without negotiation where it has indicated in the pro‑
curement documents that it reserves the possibility to do so. From the perspec‑
tive of a tenderer, this new provision does not however remove the uncertainty 
described above, as negotiation may or may not take place.

33

25  The contractual relationship 
with the economic operator 
may last longer than 4 years as 
the duration of the individual 
contracts based on the 
framework contract does not 
need to coincide with the 
duration of that framework 
contract.

Observations 

Excessively long duration of framework contracts risks hampering 
competition

54 
Framework contracts create a long‑term relationship with one or more supplier(s) 
or service provider(s). It can be useful to conclude such contracts for the repeti‑
tive acquisition of supplies or services, when the contracting authority knows 
what it needs but does not know when and what quantity it will need during 
a certain period of time. As a rule, the maximum duration of framework contracts 
is 4 years25 to avoid anti‑competitive effects. Only in exceptional cases duly justi‑
fied in particular by the subject of the framework contract may its duration ex‑
ceed 4 years. Reducing administrative costs for the contracting authority should 
not be considered a valid reason.

55 
In contrast to the other entities audited, during the years 2013 to 2015 the Council 
has frequently used the exception clause to extend considerably the duration of 
framework contracts awarded in connection with its buildings. Box 6 lists such 
contracts with a duration of seven years or more.

6
x
o
B

Ongoing Council framework contracts with a duration of seven years or more

UCA 093/13: Management, maintenance, repair and adaptation of technical installations in the Council’s pre‑
sent or future buildings with a maximum duration of 10 years. Total value: 94 million euros.

UCA 14/048: Modernisation and all‑purpose maintenance of lifts at the Council of the European Union’s Justus 
Lipsius Building with a duration of 10 years. Total value: 3.35 million euros.

UCA 14/100: Partitioning and finishing works in the buildings of the General Secretariat of the Council of the 
European Union with a maximum duration of 7 years. Total value: 6.66 million euros.

UCA 15/010: Replacement and maintenance of supervision and management equipment for electrical and 
electromechanical installations in the Justus Lipsius Building with a duration of 17 years. No contract award 
notice published.

UCA 15/011: Improvement and maintenance works for Council of the European Union buildings with a dura‑
tion of 7 years. Total value: 31.2 million euros.

UCA 034/15: Purchase and maintenance of mobile explosive detection devices with a duration of 10 years. No 
contract award notice published.

Source: European Court of Auditors.

 
Observations 

34

Section III — Unnecessary hurdles make life difficult 
for potential tenderers who want to identify 
procurement opportunities offered by the EU 
institutions and benefit from them

56 
We examined how easy it was to identify procurement opportunities offered by 
the EU institutions and whether tools were available to help potential tenderers 
to submit their bid without unnecessary cost and to obtain an effective review in 
case of procedural problems.

57 
Best practice would be to offer a one‑stop shop allowing economic operators to 
find all relevant information in a single online location (platform) and to interact 
with the EU institutions through this website. Ideally, procurement procedures 
including communication on rules applicable, business opportunities, relevant 
procurement documents, submission of tenders and all other communication 
between the institutions and economic operators should be handled via one 
electronic channel. Electronic procurement (see Box 7) provides the tools to 
meet this objective.

7 Electronic procurement — terminology explained
x
o
B

Electronic (public) procurement (e‑procurement) is the use of electronic communication and transaction pro‑
cessing by public sector organisations when buying supplies and services or tendering public works.

All phases of the procurement process can be executed or supported by electronic means. Currently the focus 
is on:

e‑notification: electronic publication of notices announcing public procurement opportunities including a hy‑
perlink to an e‑tendering platform

e‑tendering (also e‑access): platform for internet publication of public procurement documentation, such as 
terms of reference, and for electronic communication between the tenderers and the procuring organisation

e‑submission: electronic submission of tenders by economic operators when responding to a call for tenders

See the COM(2012) 179 final ‘A strategy for e‑procurement’ and COM(2013) 453 final ‘End‑to‑end e‑procurement to 
modernise public administration’.

 
Observations 

35

The visibility of the EU institutions’ procurement activities 
on the internet is poor

58 
From the perspective of an economic operator, good visibility of the procure‑
ment activities of the EU institutions is important for three reasons: it facilitates 
access to information on contract opportunities, it helps to understand the rules 
and how to best submit an offer and it generates trust in a fair outcome of the 
procedures through transparency which will encourage operators to participate.

26  http://europa.eu/

abouteuropa/index_en.htm

27  http://ec.europa.eu/
contracts_grants/
contracts_en.htm

The information available is patchy and spread over many 
different websites

59 
Europa.eu is the official website of the European Union. According to its own 
brief, it should be ‘a good starting point if you are looking for information and 
services provided by the EU but you don’t know your way around our sites’26. 
Beyond referring to the existence of procurement by EU institutions, Europa.eu 
does not give any introductory information on the EU institutions’ procurement 
activities and the applicable rules. The visitor to the website will only find links to 
the procurement sections of the different EU institutions (a total of 11 links) and 
to the EU Bookshop for a free download of a 2009 booklet ‘Doing business with 
the European Commission’.

60 
Another website which is likely to be visited as a first contact with the EU institu‑
tions’ procurement is the Commission’s central public procurement page27. This 
website shows a list of policy areas where the Commission might have procure‑
ment needs with links to the websites of the different directorates‑general in 
charge of these policies. No further information is provided.

61 
In contrast to the central websites, the websites of the Commission’s directo‑
rates‑general and of the other EU institutions provide more information. How‑
ever, the scope of the topics covered varies significantly, as can be seen from 
Table 2, which summarises the results of our analysis of 11 different websites.

Observations 

36

2
e
l
b
a
T

Analysis of procurement sections of the EU institutions’ websites

Commission

t
n
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Y

Y

Y

R

Y

Y

Y

Y

Y

Y

R

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

11

6

3

8

13

Y

Y

Y

Y

Y

5

Y

Y

Y

Y

Y

Y

Y

Y

8

Y

Y

Y

Y

Y

Y

Y

Y

P

Y

Y

Y

Y

9

4

Y

Y

Y

Y

Y

5

Y

Y

Y

Y

Y

Y

Y

Y

8

Y

Y

Y

Y

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Y

Y

7

y
r
o
g
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t
a
c
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p

l

a
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T

6

5

8

8

3

8

8

12

3

12

4

6

4

Key:
Y – yes
P – partly
R – only after registration 

General information about the EU institution’s 
procurement

Guide for suppliers on how to submit a bid

Information about the legal basis of EU institutions’ 
procurement

General terms and conditions and/or template 
documents

Additional training or learning tools  
(e‑learning, guide for internet users)

Opportunity to submit questions related to 
procurement

Registration for alerts about new opportunities

Tender documents available electronically

Additional search options within website available

Information about current procurement opportunities 
of high value

Indication of future or planned procedures of high 
value

Information about current procurement opportunities 
of low value

Indication of future or planned procedures of low 
value

Total per website examined 

Note: The analysis took place between 24 June and 6 July 2015.

Source: European Court of Auditors.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
37

28 

‘Procurement And Grants for 
European Union external 
actions — A Practical Guide’.

29  http://ted.europa.eu

Observations 

62 
Among the websites analysed, EuropeAid’s website is an example of best prac‑
tice, as all necessary information is available. There is a user‑friendly advanced 
system for searching for procurement opportunities with many search options. 
In addition, guidance and e‑learning are available. Another important differ‑
ence in comparison to other websites is that detailed guidelines for procurement 
procedures are published on EuropeAid’s website28. Elsewhere such guidelines 
are treated as internal documents and not published on the official websites. 
This is for example the case with the Vade‑mecum on Public Procurement in the 
Commission produced by the Central Financial Service of DG Budget. The latest 
version of this Vade‑mecum is from November 2015, but only earlier versions of it 
can be found on the internet and then only because they have been published by 
a private law firm and a civil society organisation.

The search function of TED (Tenders Electronic Daily) did not 
always produce satisfactory results

63 
TED (Tenders Electronic Daily) is the online version of the ‘Supplement to the 
Official Journal’ of the EU, dedicated to European public procurement. Every day, 
from Tuesday to Saturday, around 1 800 public procurement notices are pub‑
lished on TED29. The bulk of these notices originate from contracting authorities 
of EU Member States. Contract notices from the EU institutions are also published 
via TED when their estimated value is equal to or above the thresholds of the 
2014 Procurement Directive, except in the case of a negotiated procedure with‑
out publication of a contract notice, as provided for in Article 134 RAP.

64 
Given the high number of procurement notices, an effective, intuitive search 
function is crucial for the user‑friendliness of TED. Notices in TED can be sorted 
and searched by country, business sector, place of delivery and a number of 
other criteria. The TED search function allows different criteria to be combined 
to search for potentially interesting contract notices. Through tests we identified 
several issues concerning search options which returned unsatisfactory results. 
Examples are given in Box 8.

Observations 

38

8 Examples of unsatisfactory search results of TED search in ongoing contract notices
x
o
B

A search in ongoing contract notices combining the business sector ‘Construction and real estate’ with ‘Eu‑
ropean institution/agency or international organisation’ provided a total of 124 hits. However, the elements 
displayed included numerous contract notices which clearly had nothing to do with ‘Construction and real 
estate’, e.g. contract notices related to the ‘translation services’, to a ‘study to support the fitness check of EU 
consumer law’ or to ‘SME instrument business community and academy’.

Another search in ongoing contract notices limited to the business sector ‘Mining and Ores’ in combination 
with ‘European institution/agency or international organisation’ gave such unrelated elements as ‘Sun protec‑
tion devices’ or ‘Construction work for buildings relating to railway transport’. We tested this combination of 
search criteria on different dates. Several times the search function only retrieved contract notices which had 
nothing to do with ‘Mining and Ores’.

The full text search function did not always produce satisfactory results. We followed the instructions to use 
inverted commas and typed in for example ‘security services’ in combination with ‘European institution/
agency or international organisation’ and obtained 147 hits including such unrelated elements as ‘Support for 
developing better country knowledge on public administration and institutional capacity building’ or ‘Techni‑
cal assistance for water ambassador education and awareness‑raising project’.

TED’s search functionality for notices of a given EU institution was improved in December 2015 but was 
still not fully reliable. For example, ticking the box for Council of the European Union gave a mix of notices 
published by the Council and by the European External Action Service (EEAS). However, some of these EEAS 
notices were not shown when one directly ticked the box for the EEAS. Furthermore, finding contract notices 
of a given EU agency continued to be cumbersome.

(Test searches carried out in January/February 2016)

Tools to identify business opportunities such as the ‘Common 
Procurement Vocabulary’ and the ‘Nomenclature of Territorial 
Units’ were not always correctly used

65 
The accuracy of TED results depends on the correct input of data by the contract‑
ing authorities, in particular as regards the classification tools used by TED.

66 
The ‘Common Procurement Vocabulary’ (CPV) is the most important classification 
tool. The purpose of the CPV is to make it easier for bidders to identify relevant 
tender notices by business sector. There are about 10 000 codes structured in 
a five‑level tree hierarchy. Each code is made up of eight digits and a wording 
that describes the type of works, supplies or services forming the subject of the 
contract.

 
Observations 

39

67 
A study commissioned by the European Commission30 revealed that a relatively 
high proportion of contract notices contain inaccurate codes. A test with a sam‑
ple of 405 contract notices showed that the code was inaccurate in about 23 % of 
the notices. In around 10 % of cases the code applied did not describe the work/
supply/service procured; in some 8 %, the code applied was too general, and in 
about 4 %, the code was too specific. In our audit, we identified contract notices 
of the Commission with inaccurate codes. Examples are given in Box 9.

30 

‘Review of the functioning of 
the CPV Codes/System’, 
December 2012, for DG 
Internal Market and Services.

9
x
o
B

Examples of inaccurate CPV codes used by the Commission

For a study contract related to ‘Statistics and forecasts analysis of different markets for motor vehicles’ the 
contracting authority used the code for ‘public road transport services’ (code 60112000). Value of the contract 
awarded: 429 300 euros.

For a study contract ‘in the fields of emissions and competitiveness and economic analysis of the automotive 
industry’ the code for ‘transport equipment and auxiliary equipment to transportation’ (code 34000000) was 
used. Value of the contract awarded: 5 000 000 euros.

For a contract ‘Collection of key qualitative and quantitative information on the European Commission’s 
merger decisions’ the code for ‘market research’ (code 79310000) was used. The procedure was unsuccessful, 
no contract awarded.

68 
The Nomenclature of Territorial Units for Statistics (NUTS) was established by Eu‑
rostat, the EU’s statistical office, in order to provide a single uniform breakdown 
of territorial units for the production of regional statistics for the European Un‑
ion. In contract notices it can be used to indicate the place of execution/perfor‑
mance of the works, for supply of products or of the provision of services. Most 
Commission services did not use NUTS codes in their contract notices. If a con‑
tracting authority has not specified a NUTS code indicating the place of delivery 
of the contract, it might escape the attention of potential tenderers.

 
Observations 

40

For e‑tendering and e‑submission the EU institutions create 
unnecessary hurdles for economic operators by not using 
harmonised solutions in a swift manner

31 

In addition, TED eTendering 
also provides access to 
lower‑value calls for tenders if 
the contracting authority 
decides to publish them.

The TED eTendering platform is only used on a voluntary basis

32 

In force since October 2012.

69 
The TED eTendering platform can be used by all EU institutions and agencies 
and has the potential to become the central point of access to all their calls for 
tender. It is managed by the Publications Office and registration is free of charge 
for interested economic operators. The platform is synchronised with the TED 
website31 and gives:

(a)  electronic access to all publicly available tender documents;

(b)  the opportunity to submit questions in any EU official language and to view 

other questions and answers;

(c)  real‑time notifications when updates in selected calls for tenders are 

published.

70 
Using TED eTendering has been possible since April 2011 but is not compul‑
sory for the Commission’s directorates‑general (DGs) and executive agencies, 
although DG Budget encourages them to use the system. The same holds for 
the European Parliament, where the aim is that all DGs use TED eTendering. The 
Council intends to start using TED eTendering in 2016. The ECB has no plans to 
use TED eTendering. Annex I provides a list of all entities which had used TED 
eTendering by mid‑April 2016. The limited number of EU bodies and agencies on 
the list confirms the finding of our survey that about two thirds of them rarely or 
never use TED eTendering.

The EU institutions are struggling with the introduction of 
e‑submission and lack a common approach

71 
Article 95(2) of the EU Financial Regulation32 requires the institutions and bodies 
to establish and apply uniform standards for the electronic exchange of informa‑
tion with third parties participating in procurement and grant procedures. The 
objective is to put in place a single ‘electronic data interchange area’ for appli‑
cants, candidates and tenderers. Article 111(2) tasks the Commission with ensur‑
ing that tenderers may enter the contents of the tenders and any supporting 
evidence in an electronic format.

Observations 

41

72 
At the Commission testing of e‑submission started in November 2014. The full 
roll‑out has not yet taken place and is planned to begin in July 2016.

73 
At the European Parliament e‑submission is possible for low value contracts only. 
For high value contracts, submission by electronic means is hindered by the fact 
that Parliament’s e‑mail system does not fulfil all requirements set out in the EU 
Financial Regulation (see Box 10). Since 2014 DG INLO has encouraged tenderers 
to submit parts of their tender files electronically on a memory stick.

0
1
x
o
B

The requirements for e‑submission

‘(…) devices for the electronic receipt of tenders and requests to participate shall guarantee, through techni‑
cal means and appropriate procedures, that:

(a) 

the economic operator can be authenticated with certainty;

(b)  the exact time and date of the receipt of tenders and requests to participate can be determined precisely;

(c) 

it may be reasonably ensured that, before the time limits laid down, no one can have access to data trans‑
mitted under these requirements;

(d)  only authorised persons may set or change the dates for opening data received;

(e)  during the different stages of the procurement procedure only authorised persons may have access to all 

data submitted and may give access to these data as needed for the procedure;

(f) 

it may be reasonably ensured that any attempt to infringe any of the conditions set out in points (a) to (e) 
can be detected.’

(Article 155(2) of the rules of application of the EU Financial Regulation)

 
42

33  There are two directives laying 

down remedies in relation to 
public procurement: Council 
Directive 89/665/EEC of 
21 December 1989 on the 
coordination of the laws, 
regulations and administrative 
provisions relating to the 
application of review 
procedures to the award of 
public supply and public 
works contracts (OJ L 395, 
30.12.1989, p. 33), which covers 
the public sector; and Council 
Directive 92/13/EEC of 
25 February 1992 coordinating 
the laws, regulations and 
administrative provisions 
relating to the application of 
Community rules on the 
procurement procedures of 
entities operating in the water, 
energy, transport and 
telecommunications sectors 
(OJ L 76, 23.3.1992, p. 14), 
which covers the utilities 
sector. Both Directives were 
amended by Directive 
2007/66/EC of the European 
Parliament and of the Council 
of 11 December 2007 
amending Council Directives 
89/665/EEC and 92/13/EEC 
with regard to improving the 
effectiveness of review 
procedures concerning the 
award of public contracts (OJ 
L 335, 20.12.2007, p. 31).

Observations 

74 
Among the EU institutions the Council has been the pioneer of e‑submission 
but with mixed results. E‑submission has been possible since May 2009 with the 
introduction of the dedicated ‘Consilium tendering’ website. However submitting 
offers electronically was optional: procurement managers could decide not to 
use this option. Where the option was available, tenderers nevertheless were al‑
lowed to submit their offers on paper. According to the Council, less than half of 
the offers were submitted electronically. ‘Consilium tendering’ is no longer used 
and the Council is interested in joining the Commission’s e‑submission system.

75 
The ECB plans to gradually roll out an electronic tendering system in 2016 which 
allows tenderers to submit offers electronically via a user account (user name 
plus password). When tenderers submit their offers electronically, the system will 
generate a standard unique identifier cover sheet that the tenderers can print 
out, sign and submit to the ECB in hardcopy to confirm that their offer is valid 
and legally binding.

For economic operators who consider that they have been 
unfairly treated it is difficult to obtain a rapid review of their 
complaints and compensation for damages

76 
Effective tools to deal with cases where economic operators consider that they 
have been unfairly treated are important both for the EU institutions and for 
the economic operators concerned. Such tools enhance the credibility of the 
EU institutions and strengthen the confidence of economic operators that they 
will be fairly treated and that it is therefore worth the effort to work with the EU 
Institutions.

Provisions of the Remedies Directives which could enhance the 
review process have not been incorporated in the procurement 
rules

77 
The Remedies Directives33 set common standards to ensure that rapid and effec‑
tive means of redress are available in all EU countries when bidders believe that 
contracts have been awarded unfairly. The review may be carried out by existing 
judicial or administrative review bodies. Alternatively an independent specialised 
non‑judicial Review Body may be set up whose decisions can be subjected to 
judicial review. Another option foreseen in these directives is that the economic 
operator concerned first has to seek review with the contracting authority before 
he can resort to the Courts.

43

34  See the Commission’s final 
study report ‘Economic 
efficiency and legal 
effectiveness of review and 
remedies procedures for 
public contracts’, April 2015, 
p. 137.

35  There is no standstill period in 

the case of specific contracts 
based on framework contracts 
and of exceptional negotiated 
procedure under Article 134(1) 
RAP (except 134(1)(b)(one 
possible operator). There is 
also no standstill period if only 
one tender has been 
submitted.

36  The suspension will not end 
before the expiry of a period 
of at least 10 calendar days 
with effect from the day 
following the date on which 
the contracting authority has 
sent a reply.

Observations 

78 
As is the case with all directives, the Remedies Directives do not apply directly to 
the EU institutions. Some elements from the directives have been incorporated in 
the EU Financial Regulation and in the ECB’s Rules on Procurement whilst oth‑
ers have been left aside. In particular, no independent specialised non‑judicial 
Review Body has been established to deal with procurement issues related to the 
EU institutions and whose decisions can be subjected to judicial review despite 
the fact that such bodies generally have a shorter review length for interim re‑
views and pre‑contractual remedies34.

79 
In line with the Remedies Directives, the EU Financial Regulation provides for 
a standstill period of 15 calendar days before signature of the contract. This 
period is reduced to 10 days where the contracting authority uses electronic 
means to notify the successful and unsuccessful tenderers of its intention to sign 
a contract35. If unsuccessful or aggrieved tenderers or candidates submit requests 
or comments during the standstill period, the contracting authority may sus‑
pend the signing of the contract for additional examination. This provision of the 
Financial Regulation is less favourable for unsuccessful tenderers than the provi‑
sions of the Remedies Directives under which the submission of an application 
for review to the contracting authority results in the automatic suspension of the 
possibility to conclude the contract36.

80 
Among the audited entities, only the ECB had a robust internal review mecha‑
nism to deal with complaints. This so‑called ‘appeal procedure’ is described in 
Box 11.

1
1
x
o
B

The appeal procedure of the ECB

The ECB’s rules on procurement allow unsuccessful candidates/tenderers to address an appeal to its Pro‑
curement Review Body (PRB). The PRB is an internal body composed of senior managers and supported by 
the Bank’s legal service. If the PRB considers that the decision to reject the appellant’s application or tender 
infringes the Rules on Procurement or general principles of procurement law it must either order that the ten‑
der procedure or parts of it are repeated or take a final decision. The PRB notifies the appellant in writing of its 
decision within 1 month following the receipt of the appeal.

Since 2007, 35 appeals have been received, of which one was pending as at December 2015, six were upheld, 
20 were rejected and eight were forwarded to the responsible Procurement Committee and not further pur‑
sued by the appellant.

 
44

If one compares the number 
of cases relating to public 
procurement with the number 
of award decisions published 
by the EU institutions and 
bodies in Tenders Electronic 
Daily (TED), it can be 
concluded that the ratio 
between General Court cases 
and procurement procedures 
carried out by EU institutions 
and bodies is below 1 %. This 
is lower than in Member States 
where the ratio of review 
procedures to the total 
number of procurement 
procedures varied between 
2 and 12.3 % according to the 
Annual Public Procurement 
Implementation Review 2013 
(Commission staff working 
document SWD(2014) 262 final 
of 1 August 2014, p. 26).

Observations 

Procedures before the EU Courts take a long time and 
compensation for alleged damages is rarely granted

37 

81 
The General Court has inter alia jurisdiction to hear and determine at first in‑
stance actions brought by economic operators against acts or failures to act by 
the EU institutions. In the 6‑year period from 2009 to 2014 the General Court 
completed 3 419 cases of which 106 dealt with public procurement by the EU 
institutions (3.1 %), or on average 17.6 cases per year37. The 106 cases relating to 
public procurement gave rise to a total of 123 decisions: 66 judgments and 57 or‑
ders. The breakdown by EU institutions or bodies concerned is shown in Table 3.

Judgments and orders of the General Court by  
EU institution or body concerned

3
e
l
b
a
T

Judgments

Orders

European Commission

European Parliament

Council 

European Maritime Safety Agency

Court of Justice of the European Union

European Food Safety Authority

European Medicine Agency

European Central Bank 

European Investment Bank

European Centre for Drugs and Drug Addiction

European Institute for Gender Equality

Frontex

European Environmental Agency

Fusion for Energy Joint Undertaking

Europol

European Court of Auditors

European External Action Service

Office for Harmonisation in the Internal Market

European Chemicals Agency

European Centre for Disease Prevention and Control

Source: European Court of Auditors.

41

5

3

3

2

2

2

1

1

1

1

1

1

1

1

40

4

3

2

3

1

1

1

1

1

 
Observations 

82 
During the period examined, actions for annulment were successful in 13 cases, 
based on the finding that the contracting authority decided unlawfully38. The av‑
erage duration of proceedings of the General Court in the area of public procure‑
ment (judgments) was around 35 months.

83 
The most important damage suffered by participants in a tendering procedure is 
the loss of profit which they would have gained had they been awarded the con‑
tract. During the period examined (2009‑2014) there were no successful actions 
for damages. However, in two more recent cases39 the General Court ordered 
the contracting authority to pay compensation for the damages suffered by the 
economic operator for the loss of an opportunity to be awarded a contract. This 
may suggest that the General Court is now more inclined to award damages in 
such cases.

84 
During the period examined there were no successful applications for interim 
measures40 and all 16 appeals brought by economic operators to the Court of Jus‑
tice against decisions of the General Court were unsuccessful. However, in one of 
the most significant decisions of 2015 concerning EU institutions’ public procure‑
ment procedures41, the Vice‑President of the Court of Justice ruled that, even if 
the harm invoked is not irreparable, the sufficiently manifest and serious nature 
of the illegalities identified prima facie may justify the imposition of interim 
measures. The Vice‑President of the Court of Justice thus favourably received 
the General Court’s new and more flexible approach as regards the conditions to 
grant interim measures referring to the right to effective judicial protection42.

The Ombudsman sometimes found friendly solutions but rapid 
reaction in procurement cases is hampered by procedural rules

85 
The European Ombudsman investigates complaints of maladministration in the 
EU institutions and bodies, including complaints concerning public procure‑
ment activities. Through a search on the Ombudsman’s website, we identified 60 
decisions related to public procurement over the period from 18 February 2008 43 
to 17 February 2015 44. The majority of these 60 decisions (34 cases) related to 
procurement activities outside the EU, frequently involving EU Delegations. The 
analysis of the 60 decisions is summarised in Table 4.

45

38 

It is settled case‑law that the 
EU institutions have broad 
discretion with regard to the 
factors to be taken into 
account for the purpose of 
awarding a contract. Review 
by the General Court must be 
limited to checking that the 
rules governing the procedure 
and statement of reasons are 
complied with, the facts are 
correct and there is no 
manifest error of assessment 
or misuse of powers. In 10 out 
of the 13 cases the reason for 
annulment of the decision was 
non‑compliance of the 
contracting authority with its 
duty to state reasons.

39  Case T‑299/11 of 7 October 
2015 (European Dynamics v 
OHIM) (subject to appeal in 
pending case C‑677/15 P) and 
Case T‑199/14 of 29 October 
2015 (Vanbreda Risk & Benefits 
v Commission).

40  Except for one order which 
was subsequently annulled 
after appeal. Furthermore, in 
two cases the contracting 
authority annulled the tender 
procedure prior to the 
decision of the General Court.

41  C‑35/15 P(R), European 

Commission v Vanbreda Risk & 
Benefits.

42  However, in the case at hand 

the Vice‑President rejected 
the application for interim 
measures as the Commission 
had complied with the 
standstill period before the 
signature of the contract and 
the contract in question was 
concluded long before the 
application for interim 
measures was made.

43  First occurrence of a decision 

related to public procurement 
under the subject matter 
‘Award of tenders or grants’.

44  During this 7‑year period the 
Ombudsman received 86 
admissible complaints 
concerning tenders. These 
included the 60 decisions 
available from the internet 
database, 22 cases where the 
Ombudsman did not find 
grounds to launch an inquiry 
and 4 cases which were 
dropped by the complainants.

Observations 

46

4
e
l
b
a
T

Ombudsman’s decisions concerning public procurement — overview of results

Category

Number of 
occurrences

Explanation

Total number of decisions

No maladministration

Friendly solution implemented

Information provided

Payment of costs

Solution not specified (under negotiation)

Maladministration

Friendly solution rejected

Friendly solution not possible

Friendly solution not necessary

Court of Justice case — not examined further 

Case withdrawn by complainant

Source: European Court of Auditors.

60

30

8

6

1

1

20

5

13

2

1

1

Total number of decisions related to public procurement published on 
the Ombudsman’s website under subject matter ‘Award of tender or 
grants’.

The Ombudsman found no maladministration

A friendly solution or remedy action has been agreed and implemented. 
This category includes the following subcategories:

The friendly solution consisted of making available satisfactory infor‑
mation or explanation of reasons.

The friendly solution consisted of reimbursement of justified costs 
borne by the complainant.

Negotiations on a friendly solution took place but the result is not 
known.

The Ombudsman found maladministration in at least one of the aspects 
of the case. This category includes the following subcategories:

The proposed friendly solution was rejected by the institution con‑
cerned in four out of the five cases.

A friendly solution was no longer possible.

A friendly solution was not necessary because the claim was not exam‑
ined as the procedure had been cancelled or it was not needed because 
it had no consequence on the outcome of the procedure.

The case was not examined by the Ombudsman because it was subject 
to proceedings by the General Court.

Case was withdrawn by the complainant without further explanation.

 
Observations 

47

86 
The average duration from the opening of a case to the decision was 20 months 
which is less than the duration of a Court case (see paragraph 82). However, 
complaints ‘must be preceded by the appropriate administrative approaches to 
the institutions and bodies concerned’45 before the Ombudsman may launch an 
enquiry. This means that the economic operator has first to address his complaint 
to the institution concerned and wait for a reply. This lengthens the process and 
virtually rules out a swift intervention of the Ombudsman before a contract is 
signed.

45  See Article 2(4) of the Decision 
of the European Parliament of 
9 March 1994 on the 
regulations and general 
conditions governing the 
performance of the 
Ombudsman’s duties (OJ L 113, 
4.5.1994, p. 15).

46  See Article 44 of the Charter of 
Fundamental Rights of the 
European Union.

87 
When a friendly solution was agreed on the basis of a proposal by the Ombuds‑
man, it usually consisted of granting the complainant access to information 
or giving a satisfactory explanation of the reasons for rejecting his tender. No 
Ombudsman’s inquiries have ever resulted in the cancellation of an award deci‑
sion and the reopening of a procurement procedure by an EU institution. Reme‑
dial action has never consisted of compensation to the complainant for loss of 
a procurement opportunity or loss of profit. Reimbursement of costs incurred by 
the complainant because of his participation in a procurement procedure was 
granted once. The Ombudsman is proactive and includes in her decisions ‘further 
remarks’ which are recommendations that are intended to encourage the EU 
institutions to change their practices in the future. Examples of ‘further remarks’ 
are in Box 12.

The Committee on Petitions of the European Parliament excluded 
petitions against EU institutions

88 
The right to petition is one of the fundamental rights of European citizens46. Any 
citizen and any natural or legal person residing or having its registered office in 
a Member State has the right to petition the European Parliament. However, the 
Committee on Petitions of the European Parliament stated on its Petitions Portal 
that petitions concerning cases of maladministration by the EU institutions would 
be inadmissible: ‘Inadmissibility of a petition (…) Please note that questions 
concerning maladministration within the Institutions or bodies of the EU should 
be addressed to the European Ombudsman.’ In this way it excluded petitions 
concerning allegations of maladministration in public procurement by the EU 
institutions.

Observations 

48

2 Examples of Ombudsman’s further remarks
1
x
o
B

‘Subject to the terms of the contract, in future cases in which contractors ask whether or not their contract will 
be renewed, the Publications Office could at least indicate the approximate timeframe within which it intends 
to take a decision.’ (Decision of the European Ombudsman closing the inquiry into complaint 1922/2010/(VIK)ER 
against the Publications Office of the European Union (19/12/2013))

‘In cases, such as the present one, where, after having cancelled a tender procedure, an EU Delegation choos‑
es to proceed to a negotiated procedure with some of the initial tenderers, the Delegation would be well 
advised to consider informing the unsuccessful tenderers openly and proactively about that development. 
Doing so would further strengthen the perception of legality and transparency of tender procedures imple‑
mented by EU Delegations’. (Decision of the European Ombudsman closing his inquiry into complaint 1325/2011/
VL against the European Commission (17/05/2013))

‘In view of the terminological confusion that the present case revealed and in order to avoid any possible 
misunderstandings in the future, the Ombudsman considers it useful to invite the Commission to review the 
documentation it provides in the context of its procurement procedures, so as to eliminate any lack of preci‑
sion and terminological inconsistency and to ensure that tenderers are clearly and unambiguously informed 
of the eligibility conditions relating to their establishment/incorporation/registration/nationality. It would also 
be useful if, in the context of this review, the Commission could ensure that such key terms in the procure‑
ment process are clearly defined either in the procurement notice itself or in a document to which it makes 
clear reference and which is easily accessible.’ (Decision of the European Ombudsman closing his inquiry into 
complaint 920/2010/VIK against the European Commission (18/07/2011))

 
Observations 

49

Section IV — Transparency of results and mutual 
learning are not systematically enforced

Information on the outcome of the EU institutions’ 
procurement activities is not accessible in a way which would 
allow effective monitoring by the discharge authority and 
the wider public

89 
One of the most effective ways of fighting corruption and malpractice in public 
procurement and of preventing unjustified restrictions on competition is by in‑
creasing the transparency of processes and procedures. Transparency is not only 
important for economic operators but also for the discharge authority and the 
wider public who can contribute to improving the performance of the EU institu‑
tions by monitoring procurement activities.

Effective monitoring requires harmonised information to be found 
in a single place on the internet

90 
To allow effective monitoring by stakeholders the following minimum infor‑
mation needs to be available in a single place on the internet and continually 
updated for every contract above 15 000 euros once it has been signed by an EU 
institution, indicating:

(a)  the subject of the contract;

(b)  the type of contract;

(c)  the value of the contract;

(d)  the duration of the contract;

(e)  the type of award procedure (with a justification in the case of the negotiated 

procedure without prior publication);

(f)  the award criteria and their weighting;

(g)  the number of tenders received and the number of tenders taken into con‑

sideration for the final award decision (with a breakdown by Member States/
third countries and indicating the number of tenders from SMEs);

Observations 

50

(h)  the name and address of the successful tenderer including information 

whether the successful tenderer is an SME;

(i) 

the proportion of the contract likely to be subcontracted to third parties.

91 
Such a repository of information related to EU contracts should also provide 
relevant links to other documents (e.g. procurement documents, notices in TED, 
copies of the contracts signed).

Information is provided piecemeal

 92 
Currently there are no tools which allow an overall view of the outcome of the EU 
institutions’ procurement activities. Information is provided piecemeal and most 
of the time not in a harmonised manner. Not all closed procurement procedures 
can be found in TED as the publication of contract award notices is not manda‑
tory in all cases. Searching for those procedures which are included in TED is 
difficult as the search results are not always satisfactory (see paragraphs 63 to 
65). The TED eTendering platform is not used by all EU institutions. Furthermore, 
some institutions block the possibility to download tender documents from the 
platform once the deadline for submitting tenders has elapsed.

93 
The European Parliament publishes a complete annual list on its website of all its 
contractors who obtained contracts with a value of more than 15 000 euros. This 
list indicates the name and address of the contractor, the type and subject of the 
contract, its duration, its value, the procedure followed and the relevant directo‑
rate‑general. The list is part of the annual report on the contracts awarded by the 
European Parliament. It is more comprehensive and detailed than the consolidat‑
ed information published by the other institutions audited and goes beyond the 
transparency requirements set out in the EU Financial Regulation.

Observations 

51

94 
As procurement activities at the Commission are decentralised, reporting takes 
place in the annual activity reports (AAR) of the different directorates‑general 
but in a standardised manner. However, not all the information from the different 
AARs is consolidated into a single report at central Commission level. At Commis‑
sion level, the Commission includes in its Annual Synthesis of the Commission’s 
management achievements an analytical report on the negotiated procedures. 
The Commission’s Financial Transparency System (FTS) is designed to provide 
information on recipients of EU funds. However, it does not include any informa‑
tion on the type of procurement procedure which led to the award of contracts.

95 
The ECB publishes on its website annual lists of contracts with a value above 
50 000 euros that were awarded without publication of a contract notice. The 
lists specify the name of the contractors to whom contracts were awarded, the 
subject and the estimated value of the contracts and indicate whether the dura‑
tion of a contract was longer than 12 months. Past contract notices and contract 
award notices from TED and past voluntary contract notices are centrally avail‑
able in the archive section.

96 
The Council’s secure tendering website for contracts above 60 000 euros provid ‑
ed a search function not only for calls in progress but also for closed calls and for 
cancelled calls. However, not all closed calls were retrieved when we tested the 
search function. Annual lists of contracts for which no specific award notice was 
published have been published via TED. However, there was no link to these lists 
on the Council’s website.

97 
The EU Open Data Portal, which is managed by the Publications Office, holds 
datasets relating to public procurement. The most comprehensive datasets are 
directly based on TED. These datasets suffer from the same issues as described in 
paragraphs 63‑64, i.e. not always producing satisfactory results and sometimes 
incompleteness of data.

Observations 

52

Learning from best practices is not fully exploited

98 
As the public procurement of the EU institutions is largely decentralised, co‑
operation between different organisations can bring improvements thanks to 
mutual learning and cross‑fertilisation. We noted considerable cooperation and 
exchange of experience between the different institutions and, in the case of the 
bigger institutions, between the different procurement units. Interinstitutional 
procurement procedures take place. Channels for asking questions and discus‑
sion fora exist.

99 
Peer reviews permit a structured exchange of best practices between participat‑
ing organisations. In the field of EU procurement this tool has not yet been ap‑
plied. A good example of improvements introduced thanks to peer reviews is the 
European Statistical System47. The JRC periodically carries out ex post checks of its 
procurement files in the framework of checks of payments. The set‑up of these ex 
post checks has some similarities with peer reviews48.

47  See our Special Report No 

12/2012 ‘Did the Commission 
and Eurostat improve the 
process for producing reliable 
and credible European 
statistics?’ (http://eca.europa.
eu).

48 

In 2014, such checks were 
carried out on 55 procurement 
files. These checks concerned 
the respect of rules and 
requirements. They were 
carried out by nine groups of 
three staff to cover all JRC 
locations. The controllers 
came from different units and 
locations. Inside each team 
there was a designated team 
leader. The different teams 
used the same detailed 
checklists and applied 
standardised reporting.

Conclusions and 
recommendations

53

100 
Public procurement in the EU is governed by rules which are intended to remove 
barriers and open up markets in a non‑discriminatory and transparent way to 
foster competition. The objective of public procurement is to increase the choice 
of potential contractors available to public bodies, resulting in better value for 
money, whilst at the same time developing market opportunities for companies.

101 
The Court concludes that the EU institutions can do more to facilitate access to 
their public procurement.

102 
The EU institutions have robust systems and capable staff to keep the risk of 
errors and irregularities under control. We detect few serious public procure‑
ment errors in the transactions directly managed by the EU institutions which we 
examine as part of our annual Statement of Assurance. Few allegations are sent 
to OLAF which suggests that the number of serious irregularities and fraud cases 
is limited in this field (see paragraphs 15 to 22).

103 
To monitor and demonstrate the accessibility of their procurement activities the 
EU institutions need information on the level of participation by economic opera‑
tors in their procurement procedures. Most EU institutions do not systematically 
measure the level of participation in their procurement procedures. Among the 
entities we audited only the Joint Research Centre of the Commission collects 
comprehensive statistics on this. The others comply with the minimum require‑
ment to indicate the number of offers received in the contract award notices 
published in TED (see paragraphs 23 to 25).

Recommendation 1

In order to facilitate the monitoring of the accessibility of their procurement 
activities, all EU institutions should collect and analyse data, procedure by 
procedure and for each type of procedure, not only on the number of offers or 
requests to participate initially received but also on the number of offers which 
were taken into account for the final award decision.

Target implementation date: As from 2017

Conclusions and recommendations 

54

104 
When revising their procurement rules in 2015, the EU institutions did not facili‑
tate access to their public procurement by simplifying rules and clarifying grey 
areas to the fullest extent possible (see paragraphs 26 to 35):

(a)  the EU Financial Regulation and its rules of application have not been con‑

solidated into a single document and remain an unnecessarily complex piece 
of legislation;

(b)  deviations from the new procurement directive are not always clearly indi‑

cated or explained;

(c)  participation of small and medium‑sized enterprises is not explicitly 

encouraged;

(d)  how to prospect the market prior to the conclusion of building contracts has 

not been clarified;

(e)  only the ECB has set out the language regime applicable to its procurement 

procedures in its procurement rules.

Recommendation 2

For the upcoming 2016 revision of the EU Financial Regulation the Commission 
should propose a single rulebook for public procurement. Therein, participation 
of small and medium‑sized enterprises should be explicitly encouraged. Further‑
more, rules on market prospection prior to building contracts and on the lan‑
guage regime for procurement procedures should be included. Deviations from 
the 2014 Procurement Directive should be justified.

Target implementation date: 2017 as part of the revised EU Financial Regulation

105 
Not all procedural choices fostered competition on the broadest possible basis. 
Most EU institutions had no policy for preliminary market consultations prior 
to starting the formal procurement procedure. Such consultation is important 
to inform potential tenderers and to optimise requirements to be set out in the 
tender documents. EU institutions must not artificially split a procurement in or‑
der to avoid the need to apply a more competitive procedure. However dividing 
contracts into lots and publishing them simultaneously can increase the acces‑
sibility of procurement procedures, in particular for SMEs. This practice was not 
sufficiently used by the EU institutions (see paragraphs 37 to 55).

Conclusions and recommendations 

55

Recommendation 3

The EU institutions should proactively use preliminary market consultations 
wherever appropriate with a view to preparing the procurement procedure and 
informing economic operators of their procurement plans and requirements.

Target implementation date: Immediately

Recommendation 4

The EU institutions should divide contracts into lots wherever possible to in‑
crease participation in their procurement procedures.

Target implementation date: Immediately

106 
Unnecessary hurdles make life difficult for potential tenderers who want to 
identify procurement opportunities offered by the EU institutions and benefit 
from them. The visibility of the EU institutions’ procurement opportunities on the 
internet is poor. The information available is patchy and spread over many differ‑
ent websites. The search function of TED (Tenders Electronic Daily) did not always 
produce satisfactory results. Tools which allow tenders to be submitted electroni‑
cally have not yet been rolled out in a comprehensive and harmonised manner 
(see paragraphs 56 to 75).

Recommendation 5

The EU institutions should create a common electronic one‑stop shop for their 
procurement activities allowing economic operators to find all relevant informa‑
tion in a single online location and to interact with the EU institutions through 
this website. Procurement procedures including communication on rules appli‑
cable, business opportunities, relevant procurement documents, submission of 
tenders and all other communication between institutions and economic opera‑
tors should all be managed via such a one‑stop shop.

Target implementation date: 2018

Conclusions and recommendations 

56

107 
For economic operators who consider that they have been unfairly treated it 
is difficult to obtain a rapid review of their complaints and compensation for 
damages. Only the ECB has a robust internal complaint procedure in place (see 
paragraphs 76 to 88).

Recommendation 6

The Commission should propose amendments to the EU Financial Regulation to 
allow for a rapid review of complaints from economic operators who consider 
that they have been unfairly treated. Such a review should take place before eco‑
nomic operators may turn to the EU Ombudsman or to the EU Courts.

Target implementation date: 2017 as part of the revised EU Financial Regulation

108 
Information on the outcome of the EU institutions’ procurement activities is not 
accessible in a way that allows effective monitoring by the discharge authority 
and the wider public in order to increase transparency and build up confidence. 
Such information is only provided piecemeal and most of the time not in a har‑
monised manner (see paragraphs 89‑97). OLAF’s reporting on its investigations 
does not allow trends over time to be assessed (see paragraphs 16 to 17).

Recommendation 7

To allow effective ex post monitoring of their procurement activities the EU in‑
stitutions should set up a single public repository of information related to their 
procurement contracts which could be developed as part of TED eTendering.

Target implementation date: 2018

Recommendation 8

OLAF should improve its case management system to produce reports and statis‑
tics on the different types of allegations under investigation and the outcome of 
these investigations.

Target implementation date: 2017

Conclusions and recommendations 

57

109 
As the procurement activities of the EU institutions are largely decentralised co‑
operation amongst them can bring improvements thanks to mutual learning and 
cross‑fertilisation. We noted considerable cooperation and exchange of experi‑
ence between the different institutions and, in the case of the bigger institutions, 
between the different procurement units. However peer reviews, which are the 
most advanced tool for a structured exchange of best practices, were not used 
(see paragraphs 98 to 99).

Recommendation 9

The EU institutions should use peer reviews for mutual learning and exchange of 
best public procurement practice.

Target implementation date: First peer review to start in 2018

This report was adopted by Chamber IV, headed by Mr Baudilio TOMÉ 
MUGURUZA, Member of the Court of Auditors, in Luxembourg at its meeting of 
24 May 2016.

For the Court of Auditors

Vítor Manuel da SILVA CALDEIRA
President

 
 
 
Annexes

58

I
x
e
n
n
A

Users of TED e‑tendering (April 2016)

European Parliament, DG Communication
European Parliament, DG Infrastructure and Logistics
European Parliament, DG Innovation and Technological support

Council of the European Union

European Commission, DG Agriculture and Rural Development
European Commission, DG Budget
European Commission, DG Communication
European Commission, DG Communications Networks, Content and Technology
European Commission, DG Environment + DG Climate Action
European Commission, DG Employment, Social Affairs and Inclusion
European Commission, DG Energy
European Commission, DG Financial Stability, Financial Services and Capital Markets Union
European Commission, DG Health and Food Safety
European Commission, DG Human Resources and Security
European Commission, DG Humanitarian Aid and Civil Protection
European Commission, DG Informatics
European Commission, DG Internal Market, Industry, Entrepreneurship and SMEs
European Commission, DG International Cooperation and Development
European Commission, DG Justice and Consumers
European Commission, DG Mobility and Transport
European Commission, DG Regional and Urban Policy
European Commission, DG Research and Innovation
European Commission, DG Trade
Joint Research Centre
Office for Infrastructure and Logistics in Brussels
Office for Infrastructure and Logistics in Luxembourg
Executive Agency for Small and Medium Sized Enterprises (EASME)

European Court of Auditors

European Investment Bank

European Anti‑Fraud Office (OLAF)
Eurostat
Publications Office of the European Union

EUROJUST
European Agency for the Management of Operational Cooperation at the External Borders (Frontex)
European Centre for Disease Prevention and Control (ECDC)
European Chemicals Agency (ECHA)
European Defence Agency (EDA)
European Environment Agency (EEA)
European Fisheries Control Agency (EFCA)
European Food Safety Authority (EFSA)
European Insurance and Occupational Pensions Authority (EIOPA)
European Medicines Agency (EMA)
European Police Office (EUROPOL)
European Railway Agency (ERA)
European Securities and Markets Authority (ESMA)
European Union Agency for Network and Information Security (ENISA)
Fusion for Energy (F4E)
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

 
Annexes 

59

I
I
x
e
n
n
A

Summary of Survey results

Context

In connection with the performance audit on public procurement of the EU institutions, it was deemed valu‑
able to include the opinions and views on the procurement processes of smaller EU bodies in order to obtain 
a broader picture. The survey was sent to 47 such bodies, with a response rate of 85 %.

I.  Procurement policies

01 
Procurement policies are relevant because they show the thinking behind EU institutions’ procurement prac‑
tices. They are particularly relevant in terms of improving access to the procurement process and building 
confidence, as they increase the accountability of the tendering institutions and the trust of those interested in 
submitting bids.

02 
The three main priorities listed by agencies, joint undertakings and other EU institutions were (in descending 
order): achieving a high price/quality ratio, ensuring impartiality and simplifying administration.

03 
When asked whether they had a procurement policy, a majority of respondents (57 %) answered in the affirma‑
tive. However, the remaining respondents (43 %) had no policy at all.

04 
With regards to public availability, 56 % of the respondents made their policies publicly available.

II. Streamlining public procurement

01 
There are various ways of making procurement easier and less burdensome, such as providing guidance on ten‑
dering methods, using eProcurement tools, monitoring participation or conducting market consultation.

02 
When asked whether they provided documents to procurement staff offering guidance on selecting tendering 
methods, a majority (60 %) replied they made use of this practice.

03 
eProcurement is recognised by the Commission as a key to making procurement easier. It includes e‑Submission 
of tenders, e‑Tendering and e‑Contracting, among other things. However, only 35 % of respondents used any of 
these tools.

 
Annexes 

60

I
I
x
e
n
n
A

III. Market consultation

01 
It is vital to conduct market consultation prior to starting a tender process, in order to know the market and 
prepare a successful tendering process. However, almost half of the agencies surveyed either did not conduct or 
rarely conducted market consultation. In this regard, the use of market consultation templates is also relevant, 
but only three respondents made use of such templates.

02 
Monitoring participation and keeping lists of suppliers can also help to make the pre‑tendering phase less 
burdensome. 15 % of respondents said they kept lists of suppliers and over 75 % stated that they monitored 
average participation.

IV. Participation

01 
From the outset, participation did not pose a particular problem to respondents, but they sought to improve it 
nevertheless. They identified the following problems with participation: poor competition, complex legislation 
and the fact that local markets are often too small.

02 
In order to counter the detrimental impact of these problems on participation, respondents provide ethi‑
cal guidance to their staff, aim to make their administrative processes less complex and standardise their 
requirements.

V. Transparency

01 
Transparency is key to achieving impartiality — one of the procurement priorities.

02 
Disclosure of subsidiaries and parent companies could help to make the process more transparent, and 94 % of 
the respondents agreed that this should be mandatory.

03 
Almost half of the respondents (47 %) still do not publish their procurement policies.

 
Replies of the European 
Parliament

61

38
A legal basis clarifying the regime for a preliminary market consultation has only been introduced by the modifica‑
tions of the Financial Regulation (FR) and Rules of Applications (RAP) and entered into force on 1st January 2016. 
Since the involvement of potentially interested economic operators in drafting the tender documents raised several 
questions concerning equal treatment, non‑discrimination and transparency, the EP was very prudent in using this 
possibility also with regard to Article 107 FR. 

39
Parliament is adapting the Vademecum on public procurement and has adapted trainings, emphasizing the use of 
preliminary market research, yet informing about risks and stressing procedures to avoid risks. 

42
The choice of a single lot facilitates the organisation of the services before and during the Parliamentary ses‑
sion, which is peculiarly intense given that the bulk of services are concentrated on 4 days per month. This in turn 
allowed for the introduction of a productivity plan of 1% per year. This means that there will be a yearly reduction of 
the prices by 1%, starting from the second year. Moreover, given the large number of tenders received (6), the single 
lot has not reduced the competition.

Parliament notes the emphasis of the revised rules on the use of lots and will take it into account in revised guid‑
ance, but as also point n° 43 of the Observations shows, a decision on any division always depends on the circum‑
stances of the case in view of the nature of the deliverable, taking into account a fair balance between access for 
SME’s on the one hand, and cost‑efficiency on the other hand.

43
These purchases for comparatively small amounts were made in exceptional circumstances when certain services 
had moved to a new building in which works were still ongoing and represent one‑off purchases to satisfy specific 
needs. Moreover, the limit of EUR 60.000 was respected. The institution's future needs in this area will be covered by 
a framework contract, to be awarded under a competitive procedure which is still ongoing.

50
As indicated in point n° 34 of the Observations, the prospection for inter alia this building was published in the 
OJ. From a legal point of view, the contractual setup whereby this ‘turn key’ project was offered complies with the 
applicable provisions (Article 121 of the RAP and its predecessor, applicable then). 

It is noted that within the parameters set by the institution and in view of the particularities of the market, the 
prospection was as wide as possible and within the legal limits, rightly with a view to increase participation, which is 
a key parameter in the audit scope (point n° 8, sub b of the Observations).

51
Parliament’s services have issued guidance on negotiations. However, when conducting negotiations, the Parlia‑
ment must also take into consideration the principle of proportionality, and respect the balance between the 
resources used and the value of the contract. Pursuing negotiations might be time and resources consuming, espe‑
cially in case of low and very low value contracts. 

Replies of the European Parliament

62

73
Parliament has already established internal recommendations and DGs have prepared internal policies to use elec‑
tronic means for the communications with the tenderers for all contracts below Directive threshold. The use of TED‑
e‑tendering is gradually rolled out and the use of a comprehensive e‑tendering platform is in a preparatory stage.

Until this issue is resolved, the use of the EP’s internal mail system is in general against the rules of the RAP.

88
Public procurement by the EU institutions falls under the activities of the European Union and petitions in this field 
are admissible under the rules.

However, each petition is assessed on its own, individual content. Depending on the content of the petition, the 
Committee on Petitions may recommend to the petitioner to lodge a complaint with the European Ombudsman. In 
such cases, the petition is usually declared admissible, but the petitioner himself needs to lodge a complaint with 
the Ombudsman; the Ombudsman does not carry out investigations for the Committee on Petitions.

Rather than discouraging, the information in this section aims at informing the citizen on follow‑up and appropriate 
accessible remedies in individual cases in the absence of a review mechanism which requires a legal basis. 

Recommendation 1
Parliament takes note of this Recommendation. Its existing contract management and reporting tool WebContracts 
provides already for the possibility of collecting data, compulsory in negotiated procedures. A further develop‑
ment in retrieving metadata will however also need to be assessed in the light of cost‑effectiveness seen the limited 
resources available.

Recommendation 3
See the reply to points n° 38 and n° 39 of the Observations. Parliament is adapting the Vademecum on public pro‑
curement and has adapted trainings, emphasizing the use of preliminary market research, yet informing about risks 
and stressing procedures to avoid risks.

Recommendation 4
Parliament notes the emphasis of the revised rules on the use of lots and will take it into account in revised guid‑
ance, but any division always depends on the circumstances of the case in view of the nature of the deliverable, 
taking into account a fair balance between access for SME’s on the one hand, and cost‑efficiency on the other hand.

Recommendation 5
Parliament takes note of this Recommendation and will look in a first stage on the improvement of the infor‑
mation on its Website in the framework of a revamping in preparation, and the introduction and roll‑out of an 
e‑tendering‑system. 

Replies of the European Parliament

63

Recommendation 7
Parliament takes note of this Recommendation.

Recommendation 9
Parliament takes note of this Recommendation and will focus on existing structures of cooperation between its 
services and, as mentioned in the Observations as to JRC), ex‑post verifications. Further measures will be assessed 
under the requirements of cost‑efficiency and effectiveness as foreseen in the FR. 

Replies of the Council

64

The Council welcomes the report of the Court. It brings up a number of issues important to the field of public pro‑
curement. The spirit underlying the report, namely that the EU institutions can do more to facilitate access to their 
public procurement is fully shared with the Court. The Council will study the Report with great care and do its best 
to put the recommendations addressed to it into practice. It looks forward to receiving the final observations of the 
Court in due course.

On some specific issues, the Council wishes to make the following comments.

The Council has changed its internal rules on public procurement twice within the last year. The first change led to 
a simplified procedure and strengthening the legality internally. The second change was made to ensure that the 
internal rules are compatible with the new Financial Regulation. When the internal rules need to be changed next 
time, the Council expects that the Report of the Court will be able to be taken into account, for instance in relation 
to market consultations. Work on this will already begin. In the meantime, it is expected, for instance, to draw up 
guidelines on market consultation before starting with formal procurement procedures. This should be done both 
with a view to preparing the procurement and informing economic operators of their procurement plans.

The Council also intends to examine how it can make the visibility on the internet better. It notes however that 
among the institutions it seems to have a well functioning website according to the Report.

The Council also intends to reflect on how it can collect and analyse data on the initial number of requests to par‑
ticipate and offers received which were taken into account for the final award decision. Peer reviews should also be 
reflected upon.

The issue of division into lots is constantly examined within the Council’s procedures and where possible this is also 
done. One on‑going procedure (on IT) has 17 lots.

The Council has noted the Report’s comments on the use of restricted procedures. It considers that more open pro‑
cedures will be undertaken with the new Financial Regulation which provides for a publication of all procurement 
documents at the same time.

As regards the length of framework contracts in connection with its buildings, the Council has taken note of the 
Court’s comments. This issue has been argued extensively by the General Secretariat. The Financial Regulation 
accepts that contracts can be concluded for a longer period than four years in duly justified cases. The Council 
maintains that for reasons of sound financial management and in cases which are duly justified in particular by the 
object of the Framework Contract, sometimes a longer period than 4 years may be justified. In relation to contracts 
regarding buildings, this has often been the case. The Council will keep the matter under review.

In so far as the Recommendations addressed inter alia to the Council, the following comments can be made.

Recommendation 1
(monitoring of procurement activities). The Recommendation is accepted. The Council will reflect on how to organ‑
ise this in practice.

Recommendation 3
(market consultations). The Recommendation is accepted. A Circular will be issued and the matter will be raised in 
internal training.

Recommendation 4
(division into lots). The Recommendation is accepted. The issue will form part of specific guidelines which will be 
issued.

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65

Recommendation 5
(common electronic one‑stop shop). The Recommendation is accepted in principle. The Council will participate in 
any work initiated to this effect.

Recommendation 7
(ex‑post monitoring). The Recommendation is in principle accepted. The Council will participate in any work initi‑
ated to this effect.

Recommendation 9
(peer reviews). The Recommendation is in principle accepted. Reflection needs to be undertaken on how this could 
be organised.

Other Recommendations are not addressed to the Council.

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66

Executive summary

II
Procurement rules in the Financial Regulation (FR) and Rules of Application (RAP) as recently amended are mostly 
in line with the directives. The divergences constitute for the vast majority stricter rules based on the principle of 
sound financial management. 

In case of significant difference an explanation is provided in the recitals where necessary. One such example is 
recital (23) RAP on the distinction between selection and award criteria.

V
The purpose of the revision of 2015 was to align the procurement rules with the directives of 2014. Simplification 
and clarification in the directives are reflected in the revised rules.

The objective of widening competition remains one of the driving principles in procurement. However, the objec‑
tive of reaching targeted economic operators, notably SMEs, should not prevent economies of scale and must be 
weighed against the principle of sound financial management of the FR as well as the principle of equal treatment 
of tenderers which must be applied to all companies regardless of their size. 

VI
Procedural choices should be based on a balanced approach taking into account not only broadest possible compe‑
tition but also the other principles applicable to procurement: sound financial management, transparency, propor‑
tionality, equal treatment and non‑discrimination.

The procurement rules clearly link the choice of the procedure to the value of the contract (and in some cases its 
subject matter) in application of the principle of proportionality. 

The Commission draws attention to the provision applicable from 1.1.2016 on preliminary market consultation intro‑
duced in Article 105 FR that is to take place where relevant in view of the subject matter of the contract. Division 
into lots is also to be envisaged only where appropriate, as provided in Article 102(2) FR and is often applied by the 
Commission services. 

VII
The information is not fully harmonised because procurement procedures are decentralised in the Commission.

However, the Commission is committed to delivering effective, user‑centred online services and is currently devel‑
oping improved centralised pages on funding as part of its digital transformation programme for websites (see 
Commission replies to paragraphs 58‑59).

Moreover, the institutions use the same website as Member States (Tenders Electronic Daily‑TED) for large procure‑
ment and provide an entry point1  for procurement below the threshold laid down in the Procurement directive. 

As regards the search functionality of TED, please refer to the Commission's reply to paragraph 106.

1  http://ec.europa.eu/contracts_grants/contracts_en.htm

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67

In addition, the Commission is currently working on the implementation of an e‑procurement system for the end‑
to‑end management of procurement procedures and contracts (from the publication of the call for tenders to the 
payment of invoices with a number of intermediary modules). The implementation of such a system, to be used by 
all Commission services, will contribute to facilitating access for economic operators to public procurement and as 
to increase transparency.

VIII
Administrative and judicial means of redress are included in the procurement documents and the notification of the 
outcome of procurement procedures. Information on the award of contracts is published in TED or on the contract‑
ing authorities' website. The Commission and executive agencies publish relevant information on recipients of EU 
funds on the Financial Transparency System (FTS) in accordance with the principle of transparency as laid down in 
Article 35 FR. 

IX (a)
As far as it is concerned by it, the Commission partially accepts this recommendation and will implement it as out‑
lined below and explained in its reply to Recommendation 1.

The Commission will perform a cost‑benefit analysis to assess the feasibility, the costs and the potential benefits 
from the centralisation of information on procurement for the purpose of monitoring participation. The action as 
recommended will be implemented subject to the outcome of this assessment.

As procurement is decentralised in the Commission at the level of authorising officers there is no centralised infor‑
mation system on procurement procedures to monitor participation and there is no legal obligation to do so.

IX (b)
The Commission partially accepts this recommendation as explained in its reply to Recommendation 2.

The Commission accepts the part of the recommendation that concerns the proposal of a single rulebook.

One of the major pillars of the upcoming 2016 proposal for revision of the FR is to propose a "single rule book" 
which would improve the overall readability and could lead to a substantial shortening of the text, fully in line with 
the concept of better regulation.

This single rule book will consolidate, in a unique legislative act, both the procurement rules presently laid down in 
the FR and the more detailed rules of the RAP. Furthermore, specific provisions related to procurement in external 
action presently in Part Two of the FR would be merged with the general procurement rules to further facilitate the 
reading to all economic operators. 

The Commission does not accept the part of the recommendation which refers to the participation of SMEs. The 
Commission considers that the Financial Regulation is not a policy instrument for this purpose and therefore should 
not proactively encourage participation of SMEs.

As regards the language regime and the market prospection, the Commission does not accept the recommendation 
(see Commission reply to Recommendation 2).

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68

IX (c)
As explained in its reply to recommendation 3, the Commission partially accepts the part of the recommendation 
which refers to the proactive use of preliminary market consultations whenever it's adapted to the tender proce‑
dure to be launched, for the purpose of preparing the procurement procedure as it is already implemented by the 
Commission in some areas like acquisition or rental of real estate projects (as foreseen by the methodology detailed 
in COM (2008)2299) and decommissioning.

However the Commission considers that preliminary market analysis should not be used for informing economic 
operators of procurement plans and requirements in view of the risk of distortion of competition. 

IX (d)
Insofar as it is concerned by it, the Commission partially accepts this recommendation as explained in the Commis‑
sion reply to Recommendation 4.

Division in lots is justified to increase competition but this division must be weighed against the principle of sound 
financial management of the Financial Regulation. Large contracts may lead to economies of scale (lower prices) 
and lighter administration (fewer contracts to manage). 

IX (e)
Insofar as it is concerned by it, the Commission accepts this recommendation as a long‑term target and it will imple‑
ment it as outlined below and as explained in the Commission reply to Recommendation 5.

The Commission will carry out an assessment to appraise the feasibility, the costs and the potential benefits of such 
a system. The action as recommended will be implemented subject to the outcome of this assessment and with the 
agreement of the other institutions.

The Commission underlines that the partial implementation of the Court's recommendation as regards the Com‑
mission's procurement procedures has already started. As explained in its replies to paragraphs 58 – 62, under the 
Web rationalisation – Digital Transformation Programme the Commission has already started to work on the trans‑
formation of its online content from an organisational chart ‑based structure into a thematic one. This structure will 
include the theme 'Funding, Tenders' that is already under conception.

Access to business opportunities and relevant procurement documents is available via existing tools and platforms ‑ 
TED and TED eTendering, which give access to procurement notices and procurement documents of the institutions. 
The Commission will assess to what extent further features could be offered to provide for access to a wider range 
of information, taking into account budgetary and human resources constraints.

IX (f)
As explained in its reply to Recommendation 6, the Commission does not accept this recommendation. 

The Commission does not consider necessary to propose amendments to the FR on the review of complaints. 

The Financial Regulation already provides that the unsuccessful tenderers are notified of the grounds and details 
reasons for their rejection and they may request additional information in accordance with Articles 113(3) FR and 
161(2) RAP. Such requests are subject to a strict deadline: the contracting authority must provide this information as 
soon as possible and in any case within 15 days of receiving the request. 

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69

IX (g)
As far as it is concerned by it, the Commission partially accepts this recommendation and will assess to what extent 
TED eTendering can provide cost‑efficient collection of this data, as explained in the Commission reply to Recom‑
mendation 7.

IX (h)
The Commission accepts this recommendation. 

OLAF is currently in a transitional phase in improving its capacity in reporting and analyses. The new OLAF Content 
Management system (OCM) is expected to be in place by July 2016. The module foreseen for statistics and reports 
will be available with a later release in 2017. In the meantime OLAF is exploring possibilities to improve the use of 
the current reporting tools and options. 

IX (i)
Insofar as it is concerned by it, the Commission accepts this recommendation under the condition that the peer 
review is conducted on a need basis and does not become a permanent process that would require additional 
budgetary and/or human resources.

Introduction

02
EU institutions are also required to apply the principle of sound financial management as well as the procurement 
principles of transparency, proportionality, equal treatment and non‑discrimination.

06
The Vademecum on public procurement in the Commission is available to all the other Union institutions, bodies, 
offices and agencies.

Observations

17
The current OLAF Case Management System in place is primarily a management tool, therefore only a small num‑
ber of pre‑defined reports are available in it. Any additional reports or more complex analyses, such as the one 
requested by the Court, need to be produced manually and therefore require resources which unfortunately are not 
currently available.

23
The Commission emphasises that there is no automatic link between the number of offers and the existence of 
competition.

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70

26
The purpose of the revision of 2015 was to align the procurement rules with the procurement directives of 2014. 
Simplification and clarification in the directives are reflected in the revised Financial Regulation (FR) and Rules of 
Application (RAP) amended in 2015.

One of the major pillars of the upcoming 2016 proposal for revision of the FR is to propose a "single rule book" 
which will improve the overall readability, will reduce the length of the text and will mainly seek simplification, fully 
in line with the concept of better regulation.

This single rule book will consolidate, in a unique legislative act, both the procurement rules presently laid down in 
the FR and the more detailed rules of the RAP. Furthermore, specific provisions related to procurement in external 
action presently in Part Two of the FR would be merged with the general procurement rules to further facilitate the 
reading to all economic operators. 

27
The upcoming 2016 proposal for FR revision will create a common set of rules to be applied to more than one EU 
budget instrument (procurement, grants, prizes, etc.) with the aim to remove unjustified inconsistencies, align pro‑
visions and improve the readability of the text. The provisions concerning good administration do not apply only to 
procurement and would be moved to these common set of rules. 

29
Procurement rules in the FR and the RAP as recently amended are mostly in line with the directives. The divergences 
constitute for the vast majority stricter rules based on the principle of sound financial management. 

In case of significant difference an explanation is provided in the recitals where necessary. One such example is 
recital (23) RAP on the distinction between selection and award criteria.

30
The FR is not the appropriate instrument to target specific economic operators.

Equal treatment should apply to all companies whatever their size. The purpose of the procurement rules under the 
Financial Regulation is not to foster a particular policy objective. SMEs, like other economic operators, may partici‑
pate in procurement procedures as a single tenderer or in a joint tender, or as subcontractors.

SMEs are de facto favoured by simplification and lighter rules even if they are not specifically mentioned. 

Please also refer to paragraph IX (b).

31
It is on purpose that preparation of the procedure and publicity measures are clearly separated in the procurement 
rules.

In addition to the risk of distortion of competition, equal treatment would not be respected if some economic 
operators contacted for preliminary consultation of the market would have access to early information about the 
planned procurement.

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71

The procurement rules provide the necessary publicity measures for advertising contracts in full respect of the 
equal treatment principle. 

The publication of the Commission's annual and multiannual work programmes and financing decisions further 
facilitates the access to information for economic operators. 

32
Pursuant to art. 134.1 g) of the RAP, the institutions may use the negotiated procedure without prior publication of a 
contract notice "for building contracts, after prospecting the local market". 

The Commission adopted a methodology for the implementation of these provisions (C(2008)2299), in order to 
enhance the information to the market and transparency. As such, the market is informed of Commission's real 
estate needs and prospecting notices.

At present, this methodology is being reviewed to address the difficulties in the current real estate market while 
ensuring transparency and continuing to ensure equal treatment. 

34
In the last 4 years, three building prospection procedures were launched in Luxembourg, including the multiple 
building prospection for moving out of the Jean Monnet building. For all of these building prospection procedures, 
the derogation foreseen by the (C(2008)2299) was applied and building prospection notices were not published in 
the Official Journal. The Real Estate Committee gave a positive opinion on these derogations.

35
The Commission considers that there is no need to lay down a specific linguistic regime at the level of the FR since 
there is a general EU legislation ‑ Regulation 1/1958 ‑ which has defined the linguistic regime of the institutions and 
which applies also to procurement. 

36
Procedural choices are to be made in view of the value and subject matter of the contract, respecting the applicable 
procurement rules.

Common Commission reply for paragraphs 37 to 40 
Preliminary market consultation is regulated under "preparation of the procedure". Where necessary, its main 
purpose is to gain knowledge of the market for drafting appropriate tender specifications and correctly estimat‑
ing the value of the contract. Using the market consultation as a pre‑information tool involves the risk of impairing 
competition.

Informing economic operators of procurement plans is regulated by "publicity measures". Prior information, ex‑ante 
publicity and other forms of advertising provide information on planning and launching of procurement procedures 
on an equal basis.

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72

The publication of the Commission's annual and multiannual work programme and financing decisions further 
facilitates the access to information for economic operators.

The preliminary market consultation is particularly relevant for non‑standard or non‑recurrent purchases. 

Contacting potential tenderers involves the risk of breaching the principles of transparency and equal treatment 
and may impair fair competition.

The legislator has made market analysis mandatory in the specific case of innovative partnerships where the objec‑
tive is to finance research and where the market consultation will aim at ensuring that the product does not yet 
exist on the market. 

42
The division into lots is widely used in practice by the Commission yet only where appropriate in line with Articles 
102 FR and 168 RAP as recently amended. 

Procedural choices should be based on a balanced approach taking into account not only the broadest possible 
competition but also the other principles applicable to procurement: sound financial management, transparency, 
proportionality, equal treatment and non‑discrimination.

Box 4 ‑ Cases where contracts could have been divided into lots ‑ Second indent
The Commission considers that for this contract, using lots was not an option for the following reasons:

‑ 

‑ 

There needs to be a single entry point for enquiries and a single management tool for the attribution of the 
enquiries to the experts.

The attribution of enquiries to the experts is based on a mix of several criteria: language of the enquiry and 
language chosen for the reply, specific legal expertise for certain issues as well as Member State(s) concerned (it 
should be noted that some enquiries concern more than a Member State). The division of this contract into lots 
according to unambiguous geographical or other criteria was therefore neither possible nor advisable.

‑  Working with more than one contractor could lead to different unit prices to be paid by the Commission which 

may be seen as unfair, create tensions and affect good cooperation;

‑  When lots are inter‑dependant, the risk of affecting the performance of the contract must be taken into account 

(risk of dilution of responsibility delayed execution).

44
Next to the Financial Regulation, the procurement directive 2014/24/EU also considers the open and restricted pro‑
cedures to be equivalent.

46
The time‑limits are indeed slightly longer in a two‑step procedure, but this difference can be negligible compared 
to its overall duration.

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73

As for the assessment of criteria, flexibility has been introduced in the revised Financial Regulation (2015) which 
provides that no particular order has to be followed when evaluating the exclusion, selection and award criteria.

However, it is clear that in two ‑step procedures it will always be necessary to first check the exclusion and selection 
criteria as this is the basis for selecting the candidates who will be invited to submit a tender.

47
The Commission underlines in its internal guidelines that giving more time for tendering would in principle favour 
participation regardless of the choice of procedures and the minimum time limits set in the rules.

51
Negotiation was never indicated as an obligation for the contracting authority or a right of the tenderer. Negotiat‑
ing can only be decided in view of the tenders received. 

52
It is expected from tenderers, in the context of competitive tendering, that they submit their best offer from the 
outset. If the submitted tenders are of sufficiently good quality and below the expected budget, entering into 
negotiation, especially for low value contracts, would be disproportionate in view of the time and resources needed 
on both the contracting authority's and the tenderers' side.

53
The contracting authority should not commit itself to negotiate the tenders received in all cases but where it is con‑
sidered appropriate and necessary. In any case, equal treatment is always to be respected.  

58
The Court's observation regarding importance of good visibility of procurement activities is consistent with the 
results of a recent research done by the Commission to understand the most important reasons why people want 
to interact with the Commission online. 'Funding and tenders' (including procurements) was identified as one of the 
most important reasons. 

Transparency of the procurement process and its outcome has been identified as a prominent institutional goal for 
the Commission, through interviews with 12 of its Directorates‑General (DGs) and Executive Agencies.

Common reply to paragraphs 59 to 62
The Commission takes note of the Court's analysis concerning the websites of its departments from a procurement 
point of view, and will consider the relevant observations in the framework of the Digital Transformation pro‑
gramme outlined below.

The Commission started in 2013 an ambitious initiative called "Web Rationalisation – Digital Transformation" to 
improve its external digital communication. The overall objectives of the initiative are to bring about more coher‑
ence, both in messaging and in navigation/look and feel, relevance to users and cost effectiveness in the Commis‑
sion's web presence.

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74

The Commission will take account of the Court's observation on the official website of the EU and review the rel‑
evant pages on europa.eu in relation to the structure and content of the Commission's new web presence under 
construction in order to avoid duplication and ensure consistency A first beta/test version of the new website is 
available online on beta.ec.europa.eu, which contains newly arranged content on procurement in the structure 
outlined in paragraph 58 ( (http://beta.ec.europa.eu/funding‑tenders_en ).

60
The website with new content will replace the current central public procurement page2  referred to by the Court.

Box 8 ‑ Examples of unsatisfactory search results of TED search in ongoing contract 
notices
This problem may have one of two causes: 

1)  CPV code grouping issue; indeed there was a problem in the way TED functioned, which in the meantime was 

corrected to allow search at code level only; 

2)  CPV code input mistake by contracting authority: the data entered by the contracting authority is incorrect, which 

has a negative impact as regards search results.

The first possible cause has already been corrected.

After a preliminary analysis it appears that the error may have been caused by mistakes at data input. The Commis‑
sion will further analyse the issue and take the necessary measures.

As regards results involving the European External Action Service (EEAS), it should be noted that in the past EEAS 
was considered to be an entity dependent of the Council (thus a search by "Council" would include also notices of 
the EEAS). Later it was decided that EEAS should be dealt with as an autonomous entity. Previous notices of the 
EEAS continue to be linked to the Council.

Box 9 ‑ Examples of inaccurate CPV codes used by the Commission
Search results depend heavily on the correct input of data by the contracting authorities. The cases mentioned refer 
to situations where the code chosen by the contracting authority were inappropriate.

72
In 2015 e‑Submission was rolled‑out in six DGs/agencies (each of these having launched at least one call for tender 
using e‑Submission during the year). The roll‑out of e‑Submission will continue (10 additional DGs/agencies are 
foreseen in 2016).

78
As far as the EU institutions are concerned, the Commission considers that the setting‑up of a non‑judicial review 
body, in addition to the already existing review mechanism provided for in the Financial Regulation, is neither 
needed nor appropriate as it would generate disproportionate costs for the benefits sought. 

2  http://ec.europa.eu/contracts_grants/contracts_en.htm

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75

The Financial Regulation already provides that the unsuccessful tenderers are notified of the grounds and details 
reasons for their rejection and they may request additional information in accordance with Articles 113(3) FR and 
161(2) RAP. Such requests are subject to a strict deadline: the contracting authority must provide this information as 
soon as possible and in any case within 15 days of receiving the request. 

In addition, whenever an act adversely affecting the rights of the candidates or tenderers is notified to the eco‑
nomic operators in the course of a procurement procedure (e.g. rejection), such notification will refer to the avail‑
able means of redress (Ombudsman complaint and judicial review). 

The Commission considers that the limited number of actions before the General court which dealt with procure‑
ment by the Union institutions (17) and the fact that compensation for alleged damages is rarely granted by the 
Court are strong indicators that the system in place is efficient and fit for purpose. Hence, the setting up of the sug‑
gested rapid review is not only not needed but it would also represent a disproportionate measure, not in line with 
cost‑efficiency and not a good use of administrative resources.

79
The submission of requests or comments to the contracting authority (under the Financial Regulation) and the 
application for review to the contracting authority (under Article 1(5) of the Remedies Directives) are different 
actions, since only the latter is, under the Remedies Directives, a prerequisite for asking the review from an external 
independent body. 

The consequences of such actions as to the signing of the contract are therefore different: 

‑ 

‑ 

under the Remedies Directives: the application for review automatically suspends the signing of the contract in 
order for the review to be effective. 

under the FR: after an assessment of the requests or comments, the contracting authority may suspend the 
signing of the contract if this is the appropriate response to the requests or comments. A systematic suspension 
for any type of request or comments made by unsuccessful tenderers during the standstill period would have 
been disproportionate as such suspension is to be decided by the contracting authority on a case‑by‑case basis 
and where justified by the nature of the submitted requests or comments. 

90
Procurement is decentralised in the Commission at the level of each responsible authorising officer. There is no 
legal obligation for a "single repository" so there is no budget appropriations to develop such a system. Depending 
on the value, information on the award of contracts is published in TED or on the contracting authorities' website 
(or made available through the FTS for the Commission and executive agencies), in line with publicity rules. How‑
ever the FTS is designed to provide information on recipients of EU funds, and not on the specific budget imple‑
mentation instrument it was financed from, or on the type of expenditure the funds incurred.

91
A platform serving this purpose is already available, namely the TED database. The Commission agrees that this 
database is an appropriate entry point for information on procurement as it contains a lot of information, including 
procurement documents via eTendering. These contain the draft contract that will be signed with the successful 
tenderer. The tenders are also part of the final contract but the Commission treats them as confidential documents 
in accordance with Article 4(2) of Regulation 1049/2001 (where disclosure would undermine the protection of com‑
mercial interests of a natural or legal person.)

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76

92
It should be noted that although the use of eTendering is currently not compulsory, all Commission Directorates‑
General and all institutions are encouraged to use this application. 

The functionality to download tender documents from the TED eTendering platform has been modified since Janu‑
ary 2016. The default option offered by the system enables the downloading of documents after the deadline for 
submitting tenders. It is up to the contracting authorities to choose to switch it off. 

94
As regards reporting, the summary of the annual activity reports referred to in Article 66(9) FR includes, as annex, 
the list of negotiated procedures without prior publication of a contract notice. See also the Commission reply to 
paragraph 90.

97
As a metadata catalogue, the Open Data Portal registers the existing TED dataset offered via the TED site as well as 
some derived datasets produced by DG GROW of the Commission. 

99
The Commission provides, through the Central Financial Service of DG BUDG, central information, guidance and 
models as well as helpdesk and training services on procurement which is open to, and largely used by, the con‑
tracting authorities – not only the Commission services but also by other institutions, agencies and bodies. Informa‑
tion and documentation provided includes recommendations and highlights best practices.

Other fora for the exchange of information between the Commission and the other Union contracting authorities 
already exist, notably the Network of Finance Units (RUF) which meets every month and the NAPO network of the 
agencies' procurement officers which covers also the decentralised agencies and the other Union bodies (PPPs) and 
which meets at least once a year. 

The Commission considers that further structured exchange of best practices would be of interest in particular for 
high amounts procedures. However, setting up the suggested peer reviews on a permanent basis would require 
additional budgetary and human resources which a not available at present. Ad hoc meetings could be organised 
on an ad‑hoc basis whenever the need arises. 

Conclusions and recommendations

101
Access to public procurement of contracting authorities is granted through publicity measures in compliance with 
the applicable rules. Furthermore, procurement in the Commission is decentralised (see Commission replies to para‑
graphs VII, 58 to 72 and recommendation 1).

103
The Commission underlines that there is no legal obligation for such monitoring. 

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77

In any case, considering that economic operators may participate in a call for tenders in different ways (by means 
of joint tenders or with subcontractors), monitoring of the number of requests to participate or tenders can never 
provide complete information on the composition of candidates or tenderers.

Recommendation 1
As far as it is concerned by it, the Commission partially accepts this recommendation and will implement it as out‑
lined below.

Considering the significant administrative burden that would result from the setting‑up of such centralised infor‑
mation system as well as the resources constraints, the Commission will perform a cost‑benefit analysis to assess 
the feasibility, the costs and the potential benefits from the centralisation of information on procurement for the 
purpose of monitoring participation. The action as recommended will be implemented subject to the outcome of 
this assessment.

As procurement is decentralised in the Commission at the level of authorising officers there is no centralised infor‑
mation system on procurement procedures to monitor participation. There is neither a legal obligation to do so, nor 
the budget and human resources needed for such large scale data analysis.

The level of participation in procurement procedures may depend on various factors. Therefore the number or 
tenders or the number of admissible tenders would not constitute as such valid indicators for demonstrating the 
accessibility of procurement activities. For any type of procedure and type of purchase (services, supplies, works, 
buildings) there is no restriction on economic operators as to how they participate to a call for tenders (through 
joint tenders or as subcontractor). Therefore the number of tenders cannot systematically provide complete infor‑
mation on the number of participating economic operators. 

104
The purpose of the revision of 2015 was to align the procurement rules with the directives of 2014. Simplification 
and clarification in the directives are reflected in the revised FR and RAP as amended in 2015 and further improve‑
ments will be reflected in the upcoming 2016 proposal for revision of the FR.

104 (a)
See Commission reply to paragraph 26. 

104 (b)
The Commission considers that deviations are explained in the recitals of the FR where necessary. 

104 (c)
Equal treatment should apply to all companies whatever their size. The purpose of the procurement rules under the 
Financial Regulation is not to foster a particular policy objective. SMEs, like other economic operators, may partici‑
pate in procurement procedures as a single tenderer or in a joint tender, or as subcontractors.

SMEs are de facto favoured by simplification and lighter rules even if they are not specifically mentioned.

104 (e)
There is no need to lay down a specific language regime at the level of the FR as the language policy applicable 
derives directly from Regulation 1/1958.

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78

Recommendation 2
The Commission partially accepts this recommendation.

The Commission accepts the part of the recommendation that concerns the proposal of a single rulebook.

Indeed, one of the major pillars of the upcoming 2016 proposal for revision of the FR is to propose a "single rule 
book" which will improve the overall readability, would reduce the length of the text and will mainly seek simplifica‑
tion, fully in line with the concept of better regulation.

This single rule book will consolidate, in a single legislative act, both the procurement rules presently laid down in 
the FR and the more detailed rules of the RAP. Furthermore, specific provisions related to procurement in external 
action presently in Part Two of the FR would be merged with the general procurement rules to further facilitate the 
reading to all economic operators. 

The Commission does not accept the part of the recommendation which refers to the participation of SMEs. The 
Commission considers that the Financial Regulation is not a policy instrument for this purpose and therefore should 
not proactively encourage participation of SMEs.

As regards the language regime and the market prospection, the Commission does not accept the recommenda‑
tion. As regards the former, the language regime as laid down in Regulation 1/1958 must apply. As regards the latter, 
clarifications will be provided in the context of the upcoming revision of the methodology for the implementation 
of the provisions of art. 134.1 g) of the RAP (C(2008)2299) as explained in paragraph 32. See also Commission replies 
to paragraphs 32‑34.

As regards justifying the deviations from the 2014 Directive, the Commission agrees with the recommendation in 
principle and considers it to be partially implemented. Deviations are explained in the recitals of the revised Finan‑
cial Regulation where it was considered necessary. The need for further deviations will be explored and indicated or 
explained, as necessary, in the course of the on‑going revision of the Financial Regulation.

Recommendation 3
The Commission partially accepts the part of the recommendation which refers to the proactive use of preliminary 
market consultations whenever it's adapted to the tender procedure to be launched, for the purpose of preparing 
the procurement procedure as it is already implemented by the Commission in some areas like acquisition or rental 
of real estate projects (as foreseen by the methodology detailed in COM (2008)2299) and decommissioning.

However the Commission considers that preliminary market analysis should not be used for informing economic 
operators of procurement plans and requirements. In fact, the preparation of the procedure and the publicity meas‑
ures are clearly separated in the existing procurement rules. 

In addition to the risk of distortion of competition, transparency and equal treatment would not be respected if 
some economic operators contacted for preliminary consultation of the market were given access to early informa‑
tion about the planned procurement.

The procurement rules provide the necessary publicity measures for advertising contracts in full respect of the 
procurement principles. 

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79

Recommendation 4
Insofar as it is concerned by it, the Commission partially accepts this recommendation and will continue implement‑
ing it to the extent it is appropriate..

The Commission considers that, when dividing contracts into lots, it already follows an approach that balances 
the need to increase competition with other principles applicable to procurement, in particular sound financial 
management and proportionality. Division into lots is therefore indeed ensured where appropriate, in view of the 
subject matter and value of the contract, as well as the risk for the implementation of the contract in case of inter‑
dependent lots.

106
Search results of any tool, including TED, heavily depends on the quality of the input data recorded. In the case 
of the public procurement notices, non‑mandatory fields are often not filled in and sometimes the contracting 
authorities input data incorrectly.

Nevertheless, the Commission is aware that the search experience in TED can be improved. The Publications Office 
conducted a user survey in March 2016 and a usability study on TED is currently ongoing. The findings of both exer‑
cises will be implemented later this year to improve users’ experience and satisfaction with TED services. 

Recommendation 5
Insofar as it is concerned by it, the Commission accepts this recommendation, as a long‑term target (beyond 2018) 
and will implement it as outlined below. 

Having regard to the significant administrative burden that would result from the setting‑up of such a system, and 
the fact that the inter‑institutional dimension is not budgeted under the current MFF, the Commission will carry 
out an assessment to appraise the feasibility, the costs and the potential benefits of such a system. The action as 
recommended will be implemented subject to the outcome of this assessment and with the agreement of the other 
institutions. 

With respect to the Commission procurement activities, the Commission has already started implementing the 
Court's recommendation: a single entry point for the Commission's procurement is currently being developed by 
the Commission, as part of the Digital Transformation. It will include links to all relevant information on procure‑
ment (communication on applicable rules and business opportunities) and to the existing tools for accessing pro‑
curement documents and submitting tenders.

Please refer to the related page on the test version of the new Commission web presence: http://beta.ec.europa.eu/
funding‑tenders_en 

This new web presence is due to go live in 2016, including this page. Work is on‑going in order to produce the 
related content, in coordination with the SEDIA initiative (assessment made by Commission services to identify the 
corporate solution to support the full funding and tenders life cycles) and Participant Portal (IT solution currently 
supporting call for proposals and grant management for several important EU programs, including Horizon 2020) 
team.

Access to business opportunities and relevant procurement documents is available via existing tools and platforms ‑ 
TED and TED eTendering, which give access to procurement notices and procurement documents of the institutions. 
The Commission will assess to what extent further features could be offered to provide for access to a wider range 
of information, taking into account budgetary and human resources constraints. 

Replies of the Commission

80

Recommendation 6
The Commission does not accept this recommendation.

The Commission does not consider necessary to propose amendments to the FR on the review of complaints 

The Financial Regulation already provides that the unsuccessful tenderers are notified of the grounds and details 
reasons for their rejection and they may request additional information in accordance with Articles 113(3) FR and 
161(2) RAP. Such requests are subject to a strict deadline: the contracting authority must provide this information as 
soon as possible and in any case within 15 days of receiving the request. 

In addition, whenever an act adversely affecting the rights of the candidates or tenderers is notified to the eco‑
nomic operators in the course of a procurement procedure (e.g. rejection), such notification will refer to the avail‑
able means of redress (Ombudsman complaint and judicial review). 

See also the Commission replies to paragraphs 78 and 79. 

Recommendation 7
As far as the Commission is concerned, it partially accepts this recommendation and will implement it as outlined 
below. 

Considering the significant administrative burden that would result from the setting‑up of such monitoring system, 
the Commission will assess to what extent TED eTendering can provide cost‑efficient access to further procurement 
data, taking into account budgetary and human resources constraints. 

Recommendation 8
The Commission accepts this recommendation. 

OLAF is currently in a transitional phase in improving its capacity in reporting and analyses. The new OLAF Content 
Management system (OCM) is expected to be in place by July 2016. The module foreseen for statistics and reports 
will be available with a later release in 2017. In the meantime OLAF is exploring possibilities to improve the use of 
the current reporting tools and options. 

Recommendation 9
Insofar as it is concerned by it, the Commission accepts this recommendation under the condition that the peer 
review is conducted on a need basis and does not become a permanent process that would require additional 
budgetary and/or human resources.

Replies of the European  
Central Bank

81

50
The ECB is of the view that the procurement procedure was conducted in compliance with the ECB procurement 
rules. In this respect, the ECB notes that the urgency argumentation was used in a sound and adequate manner 
and diligently reasoned. The underlying event causing the extreme urgency was not attributable to the ECB and 
there was an evident causal link between the unforeseeable developments and the urgency resulting therefrom. 
Due to the extreme urgency of the matter the time limits for an accelerated public tender, which in practice still 
requires three to four months at the best from dispatch of the contract notice until contract signature, could not 
be complied with. In fact, in the chosen competitive five quotes tender procedure the contract was awarded and 
signed within six weeks as of the date of tender dispatch. Moreover, the chosen procedure ensured a sound level of 
competition and the resulting contract was strictly limited to address the immediate needs. The ECB would also like 
to recall that once it became evident that the respective type of consultancy services may be required on a more 
continuous supply basis, it tendered out these services via a public tender procedure.

Furthermore, please find below the ECB’s comments on some of the recommendations issued by the ECA.

Recommendation 1
The ECB in principle agrees with the recommendation. The ECB plans to gradually roll out an electronic tendering 
system in the course of 2016. In this context the ECB will investigate how to measure, in a more systematic yet still 
efficient manner, the level of participation in its public tender procedures with regard to the number of applications 
and tenders received.

Recommendation 3
The ECB agrees with the recommendation to follow a more proactive approach with regard to market consultation 
prior to starting the formal procurement process in order to gain market intelligence, facilitate requirements engi‑
neering and eventually obtain better value for money. 

Recommendation 4
The ECB in principle agrees with the recommendation, subject to the understanding that the division of contracts 
in lots must be effective and efficient from a business perspective in terms of contract execution and management. 
If dividing contracts into lots, whilst theoretically possible, could imply the risk that the contract execution would 
become technically too complex or would not ensure good value for money, or that the coordination of several con‑
tractors would undermine the sound management and execution of the contract, the division in lots is not deemed 
effective.

Recommendation 5
The ECB procurement section of the ECB website provides the public with a central, single repository of notices and 
publications (‘one‑stop‑shop’), published by the ECB in the context of procurement, in an easily accessible manner. 
In addition, the ECB plans to gradually roll out an electronic tendering system in the course of 2016. Furthermore 
the ECB has its own dedicated procurement rules.

Replies of the European Central Bank 

82

Therefore, the ECB partially agrees with the recommendation, provided that the envisaged website would be a sim‑
ple and straight forward information portal, avoiding any additional overhead and complexity layers. Regarding the 
ECB, such a portal would simply link to the procurement section of the ECB’s website for further information about 
ECB procurements. This would avoid duplication and proliferation of information and related inefficiencies. Eco‑
nomic operators interested in ECB procurements would continue to interact with the ECB via the ECB’s website and 
the established communication channels.

Given that TED (Tenders Electronic Daily) is the official and central online version of the 'Supplement to the Offi‑
cial Journal' of the EU, dedicated to European public procurement, it may also be advisable to investigate how 
TED could be further improved to provide for an appropriate overview on the procurement opportunities of the 
institutions.

Recommendation 7
See the ECB reply to recommendation 5.

The ECB partially agrees with the recommendation, provided that the envisaged repository would be a simple tool 
that would not add additional overhead and complexity layers. Regarding the ECB, the public repository would sim‑
ply link to the procurement section of the ECB’s website that entails relevant information regarding its procurement 
activities.

Recommendation 9
The ECB agrees with the notion to facilitate and foster mutual learning and exchange best practices. The instru‑
ments that would be most effective in meeting that purpose would need to be further investigated.

For example, the ECB participates in an active network of procurement experts across the European System of Cen‑
tral Banks that permits for a structured exchange of best practices. 

Moreover, the ECB’s central procurement unit has undergone an external certification related to best procurement 
practices in the past, and is currently undergoing a recertification process.

Replies of the European 
Ombudsman

83

The European Ombudsman is at present the only external non‑judicial review body accessible to economic opera‑
tors who consider they were unfairly treated in the public procurement procedures organised by EU institutions 
and bodies. If necessary, the European Ombudsman investigates such complaints and addresses recommendations 
to the institutions and bodies concerned. Neither Article 228 TFEU nor the Ombudsman's Statute1 provides for an 
appeal or other remedy against the Ombudsman's decisions. 

Paragraph 85 ‑87 
The factual findings concerning the European Ombudsman made in paragraphs 85, 86 and 87 are accurate and pro‑
vide a fair picture of the Ombudsman's activity on complaints relating to public procurement. 

The Ombudsman agrees that the procedural requirement from Article 2.4 of the European Ombudsman's Statute 
may indeed hamper the Ombudsman's quick reaction to a complaint concerning a public procurement proce‑
dure. However, an effective internal complaints mechanism can help to narrow down and clarify the issues to be 
addressed in the event of a referral to the Ombudsman. 

Recommendation 6 
The Ombudsman welcomes the Court's recommendation, that the Commission should propose amendments to 
the EU Financial Regulation to allow for a rapid review of complaints about public procurement procedures, and 
that such a review should take place before economic operators may turn to the EU Ombudsman or to the Courts. 
The public interest in efficient and speedy administration would be better served by setting up internal review 
mechanism accessible for tenderers who have concerns about the procurement process. In the Ombudsman's view, 
once the institutions, bodies and agencies do have robust internal review mechanisms, the procedural requirement 
from Article 2.4 of the Statute would have been complied with before any complaint was made to the Ombudsman. 
In fact, if the internal mechanism itself were truly effective, the need to complain to the Ombudsman would be 
avoided. 

 In taking this work forward, the Ombudsman would be willing to offer advice and assistance on the design of an 
effective complaint mechanism based on our extensive experience.

1  European Parliament decision 94/262 of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman’s 

duties, OJ 1994, L 113/15.

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Event

Adoption of the Audit Planning Memorandum/Start of audit

Official sending of draft report to Commission (or other auditee)

Adoption of the final report after the adversarial procedure

Commission’s (or other auditee’s) official replies received in all languages

Date

10.2.2015

31.3.2016

24.5.2016
EP: 23.5.2016
Council: 3.6.2016
EC: 14.6.2016
ECB: 27.5.2016
Ombudsman: 11.5.2016

 
EU institutions procurement rules are broadly in line with 
the general EU legislation on public procurement which 
requires putting procurement contracts out to tender on 
the broadest possible basis to maximise competition. The 
management and control arrangements of the EU 
institutions are robust and in general mitigate the risk of 
errors. We found however that EU institutions can do more 
to facilitate access of economic operators (especially of 
small and medium-sized enterprises) for example by 
simplifying the rules to the fullest possible extent and by 
removing unnecessary hurdles which make life difficult for 
potential tenderers who want to identify procurement 
opportunities offered by the EU institutions.

EUROPEAN
COURT
OF AUDITORS