Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2016/0282 (COD)**

**PROPOSAL**

**Brussels, 14 September 2016**
**(OR. en)**

**12187/16**
**ADD 1**

**CADREFIN 62**
**POLGEN 104**
**FIN 556**
**CODEC 1255**
**INST 365**
**FSTR 57**
**FC 48**
**REGIO 71**
**SOC 519**
**AGRISTR 46**
**PECHE 315**
**TRANS 344**
**ESPACE 37**
**TELECOM 162**

From: Secretary-General of the European Commission,
signed by Mr Jordi AYET PUIGARNAU, Director

date of receipt: 14 September 2016

To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council of
the European Union

No. Cion doc.: COM(2016) 605 final - ANNEX 1

Subject: ANNEX to the proposal for a REGULATION OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL on the financial rules applicable to
the general budget of the Union and amending Regulations (EU) No
1296/2013, (EU) No 1299/2013, (EU) 1301/2013, (EU) No 1303/2013, EU
No 1304/2013, (EU) No 1305/2013, (EU) No 1306/2013, (EU) No
1307/2013, (EU) No 1308/2013, (EU) No 1309/2013, (EU) No 1316/2013,
(EU) No 223/2014,(EU) No 283/2014, (EU) No 652/2014 of the European
Parliament and of the Council and Decision No 541/2014/EU of the
European Parliament and of the Council

Delegations will find attached document COM(2016) 605 final - ANNEX 1.

Encl.: COM(2016) 605 final - ANNEX 1

12187/16 ADD 1

## DPG EN

EUROPEAN

COMMISSION

**ANNEX**

**to the**

Brussels, 14.9.2016
COM(2016) 605 final

ANNEX 1

**proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE**

**COUNCIL**

**on the financial rules applicable to the general budget of the Union and amending**

**Regulations (EU) No 1296/2013, (EU) No 1299/2013, (EU) 1301/2013, (EU) No**
**1303/2013, EU No 1304/2013, (EU) No 1305/2013, (EU) No 1306/2013, (EU) No**
**1307/2013, (EU) No 1308/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No**
**223/2014,(EU) No 283/2014, (EU) No 652/2014 of the European Parliament and of the**
**Council and Decision No 541/2014/EU of the European Parliament and of the Council**

# **EN EN**

**ANNEX**

**to the**

**proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE**
**COUNCIL**

**on the financial rules applicable to the general budget of the Union and amending**
**Regulations (EU) No 1296/2013, (EU) No 1299/2013, (EU) 1301/2013, (EU) No 1303/2013,**
**EU No 1304/2013, (EU) No 1305/2013, (EU) No 1306/2013, (EU) No 1307/2013, (EU) No**
**1308/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014,(EU) No 283/2014,**
**(EU) No 652/2014 of the European Parliament and of the Council and Decision No**
**541/2014/EU of the European Parliament and of the Council**

### **Chapter 1** **Common provisions**

#### **S ECTION 1** **F RAMEWORK CONTRACTS AND PUBLICITY**

**1.** **Framework contracts and specific contracts**

1.1. The duration of a framework contract may not exceed four years, save in exceptional
cases duly justified in particular by the subject matter of the framework contract.

Specific contracts based on framework contracts shall be awarded in accordance with
the terms of the framework contract.

When awarding specific contracts, the parties may not make substantial changes to
the framework contract.

1.2. Where a framework contract is concluded with a single economic operator, the
specific contracts shall be awarded within the limits of the terms laid down in the
framework contract.

In duly justified circumstances, contracting authorities may consult in writing the
contractor, requesting it to supplement its tender if necessary.

1.3. Where a framework contract is to be concluded with several economic operators
(‘multiple framework contract’), it may take the form of separate contracts signed in
identical terms with each contractor.

Specific contracts based on framework contracts concluded with several economic
operators shall be implemented in one of the following ways:

# EN 2 EN

(a) following the terms of the framework contract: without reopening of
competition, where it sets out all the terms governing the provision of the
works, supplies or services concerned and the objective conditions for
determining which of the contractors shall perform them;

(b) where not all the terms governing the provision of the works, supplies or
services concerned are laid down in the framework contract: through reopening
of competition among the contractors, in accordance with point 1.4 and on the
basis of any of the following:

(i) the same and, where necessary, more precisely formulated terms,

(ii) where appropriate, on the basis of other terms referred to in the
procurement documents relating to the framework contract.

(c) partly without reopening of competition in accordance with point (a) and partly
with reopening of competition amongst the contractors in accordance with
point (b), where this possibility has been stipulated by the contracting authority
in the procurement documents relating to the framework contract.

The procurement documents referred to in point (c) of the second subparagraph shall
also specify which terms may be subject to reopening of competition.

1.4. A multiple framework contract with reopening of competition shall be concluded
with at least three economic operators, provided that there is a sufficient number of
admissible tenders as referred to in point 29.3 of the Annex.

When awarding a specific contract through reopening of competition among the
contractors, the contracting authority shall consult them in writing and fix a time
limit which is sufficiently long to allow specific tenders to be submitted. Specific
tenders shall be submitted in writing. The contracting authority shall award each
specific contract to the tenderer who has submitted the most economically
advantageous specific tender on the basis of the award criteria set out in the
procurement documents relating to the framework contract.

1.5. In sectors subject to a rapid price and technological evolution, framework contracts
without reopening of competition shall contain a clause either on a mid-term review
or on a benchmarking system. After the mid-term review, if the conditions initially
laid down are no longer adapted to the price or technological evolution, the
contracting authority shall not use the framework contract concerned and shall take
appropriate measures to terminate it.

**2.** **Specific contracts based on framework contracts shall be preceded by a**
**budgetary commitment.**

2.1. Advertising of procedures equal to or greater than the thresholds under
Article 169(1) or for contracts falling within the scope of Directive 2014/24/EU

2.2. The notices for publication in the Official Journal of the European Union shall
include all the information set out in the relevant standard forms referred to in
Directive 2014/24/EU to ensure transparency of the procedure.

# EN 3 EN

2.3. The contracting authority may make known its intentions of planned procurement for
the financial year through the publication of a prior information notice. It shall cover
a period equal to or less than 12 months from the date on which the notice is sent to
the Publications Office.

The contracting authority may publish the prior information notice either in the
Official Journal of the European Union or on its buyer profile. In the latter case, a
notice of publication on the buyer profile shall be published in the Official Journal of
the European Union.

2.4. The contracting authority shall send to the Publications Office an award notice on the
results of the procedure no later than 30 days after the signature of a contract or
framework contract with a value equal to or greater than the thresholds laid down in
Article 169(1).

However, notices relating to contracts based on a dynamic purchasing system may be
grouped together on a quarterly basis. In such cases, the contracting authority shall
send the notice no later than 30 days after the end of each quarter.

2.5. The contracting authority shall publish an award notice:

(a) before signing a contract or a framework contract with a value equal to or
greater than the thresholds laid down in Article 169(1) and awarded pursuant to
the procedure under point 11.1(b);

(b) after signing a contract or a framework contract with a value equal to or greater
than the thresholds laid down in Article 169(1) including awarded pursuant to
the procedures under points (a) and (c) to (f) of point 11.1 .

2.6. The contracting authority shall publish in the Official Journal of the European Union
a notice of modification of contract during its duration in the cases set out in points
(a) and (b) of Article 166(3) where the value of the modification is equal to or greater
than the thresholds set in Article 169(1) or is equal to or greater than the thresholds
set in Article 172(1) for procedures in the field of external actions.

2.7. In case of interinstitutional procedure, the contracting authority responsible for the
procedure shall be in charge of the applicable publicity measures.

**3.** **Advertising of procedures falling below the thresholds under Article 169(1) or**
**falling outside the scope of Directive 2014/24/EU**

3.1. Procedures with an estimated contract value below the thresholds laid down in
Article 169(1) shall be advertised by appropriate means. Such advertising shall
involve appropriate ex ante publicity on the internet or a contract notice or, for
contracts awarded in accordance with the procedure set out in point 13, the
publication of a notice for a call for expressions of interest in the Official Journal of
the European Union. This obligation shall not apply to the procedure set out in
point 11 and the negotiated procedure for very low value contracts under point 14.4.

3.2. For contracts awarded in accordance with points (g) and (i) of point 11, the
contracting authority shall send a list of contracts no later than 30 June of the
following financial year, to the European Parliament and Council. In the case of the

# EN 4 EN

Commission, it shall be annexed to the summary of the annual activity reports
referred to in Article 73(9).

3.3. Contract award information shall contain the name of the contractor, the amount
legally committed and the subject matter of the contract and, in the case of direct and
specific contracts, it shall comply with Article 36(3).

The contracting authority shall publish a list of contracts on its internet site no later
than 30 June of the following financial year for:

(a) contracts below the thresholds laid down in Article 169(1);

(b) contracts awarded in accordance with points (h) and (j) to (m) of point 11;

(c) modifications of contracts as set out in point (c) of Article 166(3);

(d) modifications of contracts as set out in points (a) and (b) of Article 166(3)
where the value of the modification is below the thresholds laid down in
Article 169(1);

(e) specific contracts under a framework contract.

For the purposes of point (e) of the second subparagraph the published information
may be aggregated per contractor for the same subject matter.

3.4. In case of interinstitutional framework contracts, each contracting authority shall be
responsible for advertising its specific contracts and their modifications under the
conditions set in point 3.3.

**4.** **Publication of notices**

4.1. The contracting authority shall draw up and transmit the notices referred to in
points 2 and 3 by electronic means to the Publications Office.

4.2. The Publications Office shall publish the notices referred to in points 2 and 3 in the
_Official Journal of the European Union_ no later than:

(a) seven days after their dispatch if the contracting authority uses the electronic
system for filling the standard forms referred to in point 2.1 of the Annex and
limits free text to 500 words;

(b) 12 days after their dispatch in all other cases.

4.3. The contracting authority must be able to provide evidence of the date of dispatch.

**5.** **Other forms of advertising**

In addition to the advertising provided for in points 2 and 3 procurement procedures
may be advertised in any other way, notably in electronic form. Any such advertising
shall refer to the notice published in the Official Journal of the European Union if the
notice has been published, and may not precede the publication of that notice, which
alone is authentic.

# EN 5 EN

Such advertising may not introduce any discrimination between candidates or
tenderers nor contain details other than those contained in the contract notice, if the
notice has been published.

#### **S ECTION 2** **P ROCUREMENT PROCEDURES**

**6.** **Minimum number of candidates and arrangements for negotiation**

6.1. In a restricted procedure and in the procedures referred to in points (a) and (b) of
point 13.1 and in point 14.2, the minimum number of candidates shall be five.

6.2. In the competitive procedure with negotiation, the competitive dialogue, the
innovation partnership, the prospection of the local market under point 11.1(g) and
the negotiated procedure for low value contracts under point 14.3 the minimum
number of candidates shall be three.

6.3. Points 6.1 and 6.2 shall not apply in the following cases:

(a) negotiated procedures for very low value contracts under point 14.4;

(b) negotiated procedures without prior publication under point 11 except for
design contests under point 11.1(d) and prospection of the local market under
point 11.1(g).

6.4. Where the number of candidates meeting the selection criteria is below the minimum
number specified in points 6.1 and 6.2, the contracting authority may continue the
procedure by inviting the candidates with the required capacities. The contracting
authority may not include other economic operators that did not initially request to
participate or that it did not initially invite.

6.5. During a negotiation, the contracting authority shall ensure equal treatment for all
tenderers.

6.6. A negotiation may take place in successive stages in order to reduce the number of
tenders to be negotiated by applying the award criteria specified in the procurement
documents. The contracting authority shall indicate whether it will use that option in
the procurement documents.

6.7. For the procedures laid down in points (d) and (g) of point 11.1 and points 14.2 and
14.3, the contracting authority shall invite at least all economic operators who have
expressed interest following ex ante publicity as set out in point 3.1 or prospection of
the local market or a design contest.

**7.** **Innovation partnership**

7.1. The innovation partnership shall aim at the development of an innovative product,
service or innovative works and the subsequent purchase of the resulting works,

# EN 6 EN

supplies or services, provided that they correspond to the performance levels and
maximum costs agreed between the contracting authorities and the partners.

The innovation partnership shall be structured in successive phases following the
sequence of steps in the research and innovation process, which may include the
completion of the works, the manufacturing of the products or the provision of the
services. The innovation partnership shall set intermediate targets to be attained by
the partners.

Based on those intermediate targets, the contracting authority may decide after each
phase to terminate the innovation partnership or, in the case of an innovation
partnership with several partners, to reduce the number of partners by terminating
individual contracts, provided that the contracting authority has indicated in the
procurement documents those possibilities and the conditions for their use.

7.2. Before launching an innovation partnership, the contracting authority shall consult
the market as provided for in point 15 in order to ascertain that the work, supply or
service does not exist on the market or as near-to-market development activity.

The arrangements on negotiation set out in Article 158(4) and in point 6.5 shall be
followed.

In the procurement documents, the contracting authority shall identify the need for
innovative works, supplies or services that cannot be met by purchasing works,
supplies or services already available on the market. It shall indicate which elements
of this description define the minimum requirements. The information provided shall
be sufficiently precise to enable economic operators to identify the nature and scope
of the required solution and decide whether to request to participate in the procedure.

The contracting authority may decide to set up the innovation partnership with one
partner or with several partners conducting separate research and development
activities.

The contracts shall be awarded on the sole basis of the best price-quality ratio as set
out in Article 161(4).

7.3. In the procurement documents, the contracting authority shall specify the
arrangements applicable to intellectual property rights.

In the framework of the innovation partnership, the contracting authority shall not
reveal to the other partners solutions proposed or other confidential information
communicated by a partner without its agreement.

The contracting authority shall ensure that the structure of the partnership and, in
particular, the duration and value of the different phases reflect the degree of
innovation of the proposed solution and the sequence of the research and innovation
activities required for the development of an innovative solution not yet available on
the market. The estimated value of works, supplies or services shall not be
disproportionate in relation to the investment required for their development.

**8.** **Design contests**

# EN 7 EN

8.1. Design contests shall be subject to the rules on advertising set out in point 2 and may
include the award of prizes.

Where design contests are restricted to a limited number of candidates, the
contracting authority shall lay down clear and non-discriminatory selection criteria.

The number of candidates invited to participate must be sufficient to ensure genuine
competition.

8.2. The jury shall be appointed by the authorising officer responsible. It shall be
composed exclusively of natural persons who are independent of candidates in the
contest. Where a particular professional qualification is required from candidates in a
contest, at least one third of the members of the jury must have the same or an
equivalent qualification.

The jury shall be autonomous in its opinions. Its opinions shall be adopted on the
basis of projects submitted to it anonymously by the candidates and solely in the
light of the criteria set out in the contest notice.

8.3. The proposals of the jury, based on the merits of each project, and its ranking and
remarks, shall be recorded in a report signed by its members.

Candidates shall remain anonymous until the jury has given its opinion.

Candidates may be asked by the jury to answer the questions recorded in the report in
order to clarify a project. A full report of the resulting dialogue shall be drawn up.

8.4. The contracting authority shall then take an award decision giving the name and
address of the candidate selected and the reasons for the choice by reference to the
criteria announced in the contest notice, especially if it departs from the proposals
made in the jury's opinion.

**9.** **Dynamic purchasing system**

9.1. The dynamic purchasing system is a completely electronic process for making
commonly used purchases, which is open throughout its duration to any economic
operator who satisfies the selection criteria. It may be divided into categories of
works, supplies or services that are objectively defined on the basis of characteristics
of the procurement to be undertaken under the category concerned. In this case,
selection criteria must be defined for each category.

9.2. The contracting authority shall indicate in the procurement documents the nature and
estimated quantity of the purchases envisaged and all the necessary information
concerning the purchasing system, the electronic equipment used and the technical
connection arrangements and specifications.

9.3. The contracting authority shall give any economic operator, throughout the period of
validity of the dynamic purchasing system, the possibility of requesting to participate
in the system. It shall complete its evaluation of such requests within 10 working
days of receipt of that request. This deadline may be prolonged to 15 working days
where justified. However, the contracting authority may extend the evaluation period
provided that no invitation to tender is issued in the meantime.

# EN 8 EN

The contracting authority shall inform the candidate at the earliest possible
opportunity of whether or not it has been admitted to the dynamic purchasing system.

9.4. The contracting authority shall invite all candidates admitted to the system under the
relevant category to submit a tender within a reasonable time. The contracting
authority shall award the contract to the tenderer who has submitted the most
economically advantageous tender on the basis of the award criteria set out in the
contract notice. Those criteria may, if appropriate, be formulated more precisely in
the invitation to tender.

9.5. The contracting authority shall indicate the period of validity of the dynamic
purchasing system in the contract notice.

A dynamic purchasing system may not last for more than four years, except in duly
justified exceptional cases.

The contracting authority may not resort to this system to prevent, restrict or distort
competition.

**10.** **Competitive dialogue**

10.1. The contracting authority shall specify its needs and requirements, the award criteria
and an indicative timeframe in the contract notice or in a descriptive document.

It shall award the contract to the tender offering the best price-quality ratio.

10.2. The contracting authority shall open a dialogue with the candidates satisfying the
selection criteria in order to identify and define the means best suited to satisfying its
needs. It may discuss all aspects of the procurement with the selected candidates
during this dialogue but it cannot alter its needs and requirements and award criteria
as provided for in point 10.1.

During the course of dialogue, the contracting authority shall ensure equality of
treatment among all tenderers and shall not reveal the solutions proposed or other
confidential information communicated by a tenderer without its agreement to waive
that confidentiality.

The competitive dialogue may take place in successive stages in order to reduce the
number of solutions to be discussed by applying the announced award criteria if
provision is made for this possibility in the contract notice or the descriptive
document.

10.3. The contracting authority shall continue the dialogue until it can identify the solution
or solutions which are capable of meeting its needs.

After informing the remaining tenderers that the dialogue is concluded, the
contracting authority shall ask each of them to submit their final tenders on the basis
of the solution or solutions presented and specified during the dialogue. These
tenders shall contain all the elements required and necessary for the performance of
the project.

# EN 9 EN

At the request of the contracting authority, these final tenders may be clarified,
specified and optimised provided this does not involve substantial changes to the
tender or to the procurement documents.

The contracting authority may negotiate with the tenderer having submitted the
tender offering the best price-quality ratio to confirm commitments contained in the
tender provided this does not have the effect of modifying substantial aspects of the
tender and does not risk distorting competition or causing discrimination.

10.4. The contracting authority may specify payments to the selected candidates taking
part in the dialogue.

**11.** **Use of a negotiated procedure without prior publication of a contract notice**

11.1. When the contracting authority uses the negotiated procedure without prior
publication of a contract notice, it shall follow the arrangements on negotiation set
out in Article 158(4) and in point 6.5.

The contracting authority may use the negotiated procedure regardless of the
estimated value of the contract, in the following cases:

(a) where no tenders, or no suitable tender, or no request to participate or no
suitable request to participate as provided for in point 11.2 have been submitted
in response to an open procedure or restricted procedure after this procedure
has been completed, provided that the original procurement documents are not
substantially altered;

(b) where the works, supplies or services can only be provided by a single
economic operator under the conditions set out in point 11.3 and for any of the
following reasons:

(i) the aim of the procurement is the creation or acquisition of a unique work
of art or artistic performance;

(ii) competition is absent for technical reasons;

(iii) the protection of exclusive rights including intellectual property rights
must be ensured;

(c) in so far as is strictly necessary where, for reasons of extreme urgency brought
about by unforeseeable events, it is impossible to comply with the time limits
laid down in points 24, 26 and 41 and where the justification of such extreme
urgency is not attributable to the contracting authority;

(d) where a service contract follows a design contest and is to be awarded to the
winner or to one of the winners; in the latter case, all winners must be invited
to participate in the negotiations;

(e) for new services or works consisting in the repetition of similar services or
works entrusted to the economic operator to which the same contracting
authority awarded an original contract, provided that these services or works
are in conformity with a basic project for which the original contract was

# EN 10 EN

awarded after publication of a contract notice, subject to the conditions set out
in point 11.4;

(f) for supply contracts:

(i) for additional deliveries which are intended either as a partial
replacement of supplies or installations or as the extension of existing
supplies or installations, where a change of supplier would oblige the
contracting authority to acquire supplies having different technical
characteristics which would result in incompatibility or disproportionate
technical difficulties in operation and maintenance; when the institutions
award contracts on their own account, the duration of such contracts may
not exceed three years;

(ii) where the products are manufactured purely for the purpose of research,
experimentation, study or development; however such contracts shall not
include quantity production to establish commercial viability or to
recover research and development costs;

(iii) for supplies quoted and purchased on a commodity market;

(iv) for purchases of supplies on particularly advantageous terms, from either
an economic operator which is definitively winding up its business
activities, or the liquidators in an insolvency procedure, an arrangement
with creditors, or a similar procedure under national law;

(g) for building contracts, after prospecting the local market;

(h) for contracts for any of the following:

(i) legal representation by a lawyer within the meaning of Article 1 of
Council Directive 77/249/EEC [1] in arbitration or conciliation or judicial
proceedings;

(ii) legal advice given in the preparation of the proceedings referred to above
or where there is tangible indication and high probability that the matter
to which the advice relates will become the subject of such proceedings,
provided that the advice is given by a lawyer within the meaning of
Article 1 of Directive 77/249/EEC;

(iii) for arbitration and conciliation services;

(iv) document certification and authentication services which must be
provided by notaries;

(i) for contracts declared to be secret or for contracts whose performance must be
accompanied by special security measures, in accordance with the
administrative provisions in force or when the protection of the essential

1 Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of
freedom to provide services (OJ L 78, 26.3.1977, p. 17).

# EN 11 EN

interests of the Union so requires, provided the essential interests concerned
cannot be guaranteed by other measures; these measures may consist of
requirements to protect the confidential nature of information which the
contracting authority makes available in the procurement procedure;

(j) for financial services in connection with the issue, sale, purchase or transfer of
securities or other financial instruments within the meaning of Directive
2004/39/EC of the European Parliament and of the Council [2], central bank
services and operations conducted with the European Financial Stability
Facility and the European Stability Mechanism;

(k) loans, whether or not in connection with the issue, sale, purchase or transfer of
securities or other financial instruments;

(l) for the purchase of public communication networks and electronic
communications services within the meaning of Directive 2002/21/EC of the
European Parliament and of the Council [3] ;

(m) services provided by an international organisation where it cannot participate in
competitive procedures according to its statute or act of establishment.

11.2. A tender shall be considered unsuitable where it does not relate to the subject matter
of the contract and a request to participate shall be considered unsuitable where the
economic operator is in an exclusion situation under Article 132(1) or does not meet
the selection criteria.

11.3. The exceptions set out in points (ii) and (iii) of point (b) of point 11.1 shall only
apply when no reasonable alternative or substitute exists and the absence of
competition is not the result of an artificial narrowing down of the parameters when
defining the procurement.

11.4. In the cases referred to in point (e) of point 11.1, the basic project shall indicate the
extent of possible new services or works and the conditions under which they will be
awarded. As soon as the basic project is put up for tender, the possible use of the
negotiated procedure shall be disclosed, and the total estimated amount for the
subsequent services or works shall be taken into consideration in applying the
thresholds referred to in Article 169(1) or in Articles 172(1) in the field of external
actions. When the institutions award contracts on their own account, that procedure
may only be used during the performance of the original contract and at the latest
during the three years following its signature.

**12.** **Use of a competitive procedure with negotiation or competitive dialogue**

2 Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in
financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive
2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC
(OJ L 145, 30.4.2004, p. 1).
3 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common
regulatory framework for electronic communications networks and services (Framework Directive) (OJ
L 108, 24.4.2002, p. 33).

# EN 12 EN

12.1. When the contracting authority uses the competitive procedure with negotiation or
the competitive dialogue, it shall follow the arrangements on negotiation set out in
Article 158(4) and in point 6.5. The contracting authority may use these procedures
regardless of the estimated value of the contract, in the following cases:

(a) where only irregular or unacceptable tenders as specified in points 12.2 and
12.3 have been submitted in response to an open or restricted procedure after
this procedure has been completed provided that the original procurement
documents are not substantially altered; the publication of a contract notice
may be waived under the conditions set out in point 12.4;

(b) with regard to works, supplies or services fulfilling one or more of the
following criteria:

(i) where the needs of the contracting authority cannot be met without the
adaptation of a readily available solution;

(ii) the works, supplies or services include design or innovative solutions;

(iii) the contract cannot be awarded without prior negotiations because of
specific circumstances related to the nature, complexity or the legal and
financial make-up of the contract or the risks attached to the subject
matter of the contract;

(iv) the technical specifications cannot be established with sufficient
precision by the contracting authority with reference to a standard, as set
out in point 17.3;

(c) for concession contracts;

(d) for the service contracts referred to in Annex XIV to Directive 2014/24/EU;

(e) for research and development services other than those covered by CPV codes
73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5 unless
the benefits accrue exclusively to the contracting authority for its use in the
conduct of its own affairs, or unless the service provided is wholly remunerated
by the contracting authority;

(f) for service contracts for the acquisition, development, production or coproduction of programme material intended for audiovisual or radio media
services as defined in Directive 2010/13/EU of the European Parliament and of
the Council [4] or contracts for broadcasting time or programme provision.

12.2. A tender shall be considered irregular in any of the following cases:

(a) when it does not comply with the minimum requirements specified in the
procurement documents;

4 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the
coordination of certain provisions laid down by law, regulation or administrative action in Member
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)
(OJ L 95, 15.4.2010, p. 1).

# EN 13 EN

(b) when it does not comply with the requirements for submission set out in
Article 162(3) ;

(c) when the tenderer is rejected under points (b) or (c) of Article 137(1);

(d) when the contracting authority has declared the tender to be abnormally low.

12.3. A tender shall be considered unacceptable in any of the following cases:

(a) when the price of the tender exceeds the contracting authority's maximum
budget as determined and documented prior to the launching of the
procurement procedure;

(b) when the tender fails to meet the minimum quality levels for award criteria.

12.4. In the cases referred to in point (a) of point 12.1, the contracting authority shall not
be required to publish a contract notice if it includes in the competitive procedure
with negotiation all those tenderers who satisfied exclusion and selection criteria
except those who submitted a tender declared to be abnormally low.

**13.** **Procedure involving a call for expressions of interest**

13.1. For contracts with a value below the thresholds referred to in Article 169(1) or in
Article 172 (1) and without prejudice to points 11 and 12 the contracting authority
may use a call for expressions of interest to do either of the following:

(a) to pre-select candidates to be invited to submit tenders in response to
future restricted invitations to tender;

(b) to collect a list of vendors to be invited to submit requests to participate
or tenders.

13.2. The list drawn up following a call for expressions of interest shall be valid for not
more than four years from the date on which the notice referred to in point 3.1 is
published.

The list referred to in the first subparagraph may include sub-lists.

Any interested economic operator may express interest at any time during the period
of validity of the list, with the exception of the last three months of that period.

13.3. Where a contract is to be awarded, the contracting authority shall invite all
candidates or vendors entered on the relevant list or sub-list to do either of the
following:

(a) to submit a tender in the case referred to in point (a) of point 13.1;

(b) to submit, in case of the list referred to in point (b) of point 13.1, either of the
following:

(i) tenders including documents relating to exclusion and selection criteria;

# EN 14 EN

(ii) documents relating to exclusion and selection criteria and, in a second
step, tenders, for those fulfilling these criteria.

**14.** **Middle, low and very low value contracts**

14.1. Middle, low and very low value contracts may be awarded by negotiated procedure
following the arrangements on negotiation set out in Article 158(4) and in point 6.5.
Only candidates invited simultaneously and in writing by the contracting authority
may submit an initial tender.

14.2. A contract of a value exceeding EUR 60 000 and below the thresholds referred to in
Article 169(1) shall be deemed of middle value. Point 3.1 and points 6.1 and 6.4 shall
apply to such procedures.

14.3. A contract of a value not exceeding EUR 60 000 shall be deemed of low value.
Points 3.1 and points 6.2 and 6.4 shall apply to such procedures.

14.4. A contract of a value not exceeding EUR 15 000 shall be deemed of very low value.
Point 6.3 shall apply to such procedures.

14.5. Payments of amounts not exceeding EUR 1 000 in respect of items of expenditure
may consist simply in payment against invoices, without prior acceptance of a
tender.

**15.** **Preliminary market consultation**

15.1. For preliminary market consultation, the contracting authority may seek or accept
advice from independent experts or authorities or from economic operators. That
advice may 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 violation of the principles of non-discrimination and transparency.

15.2. Where an economic operator has advised the contracting authority or has otherwise
been involved in the preparation of the procurement procedure, the contracting
authority shall take appropriate measures as set out in Article 137 to ensure that
competition is not distorted by the participation of that economic operator.

**16.** **Procurement documents**

16.1. The procurement documents shall include the following:

(a) if applicable, the contract notice or other advertising measure as provided for in
points 2 to 5;

(b) the invitation to tender;

(c) the tender specifications or the descriptive documents in the case of a
competitive dialogue; they shall include the technical specifications and the
relevant criteria;

(d) the draft contract based on the model contract.

# EN 15 EN

Point (d) of the first subparagraph shall not apply to cases where, due to exceptional
and duly justified circumstances, the model contract cannot be used.

16.2. The invitation to tender shall contain the following:

(a) specify the rules governing the submission of tenders, including in particular
the conditions to maintain them confidential until opening, the closing date and
time for receipt and the address to which they must be sent or delivered or the
internet address in case of electronic submission;

(b) state that submission of a tender implies acceptance of the terms and conditions
set out in the procurement documents and that this submission binds the
contractor to whom the contract is awarded during performance of the contract;

(c) specify the period during which a tender will remain valid and may not be
modified in any respect;

(d) forbid any contact between the contracting authority and the tenderer during
the procedure, save, exceptionally, under the conditions laid down in
Article 163, and, where provision is made for an on-the-spot visit, specify the
arrangements for such a visit;

(e) specify the means of proof for compliance with the time-limit for receipt of
tenders;

(f) state that submission of a tender implies acceptance of receiving notification of
the outcome of the procedure by electronic means.

16.3. The tender specifications shall contain the following:

(a) the exclusion and selection criteria;

(b) the award criteria and their relative weighting or, where weighting is not
possible for objective reasons, their decreasing order of importance, which
shall also apply to variants if they are authorised in the contract notice;

(c) the technical specifications referred to in point 17;

(d) if variants are authorised, the minimum requirements which they must meet;

(e) information whether the Protocol on the Privileges and Immunities of the
European Union or, where appropriate, the Vienna Convention on Diplomatic
Relations or Vienna Convention on Consular Relations applies;

(f) the evidence of access to procurement;

(g) in the case of a dynamic purchasing system or electronic catalogues, the
electronic equipment used and the technical connection arrangements and
specifications needed.

16.4. The draft contract shall contain the following:

(a) specify the liquidated damages for failure to comply with its clauses;

# EN 16 EN

(b) specify the details which must be contained in invoices and in the relevant
supporting documents in accordance with Article 109;

(c) state that, when the institutions award contracts on their own account, the law
which applies to the contract is Union law complemented, where necessary, by
a national law or, if necessary for building contracts, exclusively national law;

(d) specify the competent court for hearing disputes;

(e) specify that the contractor shall comply with applicable obligations in the fields
of environmental, social and labour law established by Union law, national
law, collective agreements or by the international environmental, social and
labour law provisions listed in Annex X of Directive 2014/24/EU;

(f) specify whether the transfer of intellectual property rights will be required;

(g) state that the price quoted in the tender is firm and non-revisable or lay down
the conditions or formulas for revision of prices during the lifetime of the

contract.

For the purposes of point (g) of the first subparagraph, if a revision of prices is
set out in the contract, the contracting authority shall take particular account of:

(i) the subject matter of the procurement and the economic situation in
which it is taking place;

(ii) the type of contract and tasks and its duration;

(iii) its financial interests.

Points (c) and (d) of the first subparagraph may be waived for contracts signed in
accordance with point (m) of point 11.1.

**17.** **Technical specifications**

17.1. Technical specifications shall allow equal access of economic operators to the
procurement procedures and not have the effect of creating unjustified obstacles to
the opening up of procurement to competition.

Technical specifications shall include the characteristics required for works, supplies
or services, including minimum requirements, so that they fulfil the use for which
they are intended by the contracting authority.

17.2. The characteristics referred to in point 17.1 may include as appropriate:

(a) the quality levels;

(b) environmental performance and climate performance;

(c) for purchases intended for use by natural persons, the accessibility criteria for
people with disabilities or the design for all users, except in duly justified

cases;

# EN 17 EN

(d) the levels and procedures of conformity assessment;

(e) performance or use of the supply;

(f) safety or dimensions, including, for supplies, the sales name and user
instructions, and, for all contracts, terminology, symbols, testing and test
methods, packaging, marking and labelling, production processes and methods;

(g) for works contracts, the procedures relating to quality assurance and the rules
relating to design and costing, the test, inspection and acceptance conditions
for works and methods or techniques of construction and all the other technical
conditions which the contracting authority is in a position to prescribe under
general or specific regulations in relation to the finished works and to the
materials or parts which they involve.

17.3. The technical specifications shall be formulated in any of the following ways:

(a) in order of preference, by reference to European standards, European technical
assessments, common technical specifications, international standards, other
technical reference systems established by European standardisation bodies or,
failing this, their national equivalents; every reference shall be accompanied by
the words ‘or equivalent’;

(b) in terms of performance or of functional requirements, including environmental
characteristics, provided that the parameters are sufficiently precise to allow
tenderers to determine the subject matter of the contract and to allow the
contracting authority to award the contract;

(c) by a combination of the two methods set out in points (a) and (b).

17.4. Where the contracting authority uses the option of referring to the specifications
provided for in point (a) of point 17.3, it shall not reject a tender on the grounds that
it does not comply with those specifications once the tenderer proves, by any
appropriate means, that the solution proposed satisfies in equivalent manner the
requirements defined in the technical specifications.

17.5. Where the contracting authority uses the option provided for in point (b) of point
17.3, to formulate technical specifications in terms of performance or functional
requirements, it shall not reject a tender which complies with a national standard
transposing a European standard, a European technical approval, a common technical
specifications, an international standard or technical reference systems established by
a European standardisation body, if those specifications address the performance or
functional requirements which it has laid down.

The tenderer shall prove by any appropriate means that the work, supply or service in
compliance with the standard meets the performance or functional requirements set
by the contracting authority.

17.6. Where a contracting authority intends to purchase works, supplies or services with
specific environmental, social or other characteristics, it may require a specific label
or specific requirements from a label, provided that all of the following conditions
are satisfied:

# EN 18 EN

(a) the label requirements only concern criteria which are linked to the subject
matter of the contract and are appropriate to define the characteristics of the
purchase;

(b) the label requirements are based on objectively verifiable and nondiscriminatory criteria;

(c) the labels are established in an open and transparent procedure in which all the
relevant stakeholders may participate;

(d) the labels are accessible to all interested parties;

(e) the label requirements are set by a third party over which the economic
operator applying for the label cannot exercise a decisive influence.

The contracting authority may require that economic operators provide a test report
or a certificate as means of proof of conformity with the procurement documents
from a conformity assessment body accredited in accordance with Regulation (EC)
No 765/2008 of the European Parliament and of the Council [5] or an equivalent
conformity assessment body.

17.7. The contracting authority shall accept any other appropriate means of proof than
those referred to in point 17.6, such as a technical dossier from the manufacturer,
where the economic operator had no access to the certificates or test reports, or no
possibility of obtaining them or obtaining a specific label within the relevant time
limits, for reasons that are not attributable to that economic operator and provided
that the economic operator concerned proves that the works, supplies or services to
be provided fulfil the requirements of the specific label or specific requirements
indicated by the contracting authority.

17.8. Unless justified by the subject matter of the contract, technical specifications shall
not refer to a specific make or source, or a particular process which characterises the
products or services provided by a specific economic operator, or to trade marks,
patents, types or a specific origin or production with the effect of favouring or
eliminating certain products or economic operators.

Such reference shall be permitted on an exceptional basis where a sufficiently
detailed and intelligible description of the subject matter of the contract is not
possible. Such reference shall be accompanied by the words ‘or equivalent’.

**18.** **Exclusion and selection criteria**

18.1. For the purpose of Article 133, the contracting authority shall accept the European
Single Procurement Document (ESPD) referred to in Directive 2014/24/EU, or,
failing that, a declaration on honour signed and dated.

5 Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out
the requirements for accreditation and market surveillance relating to the marketing of products and
repealing Regulation (EEC) No 339/93 (OJ L 218, 13.8.2008, p. 30).

# EN 19 EN

An economic operator may reuse an ESPD which has already been used in a
previous procedure, provided that the economic operator confirms that the
information contained therein continues to be correct.

18.2. The contracting authority shall indicate in the procurement documents the selection
criteria, the minimum levels of capacity and the evidence required to prove this
capacity. All requirements shall be related and proportionate to the subject matter of
the contract.

The contracting authority shall specify in the procurement documents how groups of
economic operators are to meet the selection criteria taking into account point 18.6.

Where a contract is divided into lots, the contracting authority may set minimum
levels of capacity for each lot. It may set additional minimum levels of capacity in
case several lots are awarded to the same contractor.

18.3. With regard to capacity to pursue the professional activity, the contracting authority
may require an economic operator to fulfil at least one of the following conditions:

(a) be enrolled in a relevant professional or trade register, except for international
organisations;

(b) for service contracts, hold a particular authorisation proving that it is authorised
to perform the contract in its country of establishment or be a member of a
specific professional organisation.

18.4. When receiving requests to participate or tenders, the contracting authority shall
accept the ESPD or, failing that, a declaration on honour stating that the candidate or
tenderer fulfils the selection criteria. The request for ESPD or declaration on honour
may be waived for very low value contracts.

The contracting authority may ask tenderers and candidates at any moment during
the procedure to submit an updated declaration or all or part of the supporting
documents where this is necessary to ensure the proper conduct of the procedure.

The contracting authority shall require the candidates or successful tenderer to
submit up-to-date supporting documents except where it has already received them
for the purpose of another procedure and provided that the documents are still up-todate or it can access them on a national database free of charge.

18.5. The contracting authority may, depending on its assessment of risks, decide not to
require evidence of the legal, regulatory, financial, economic, technical and
professional capacity of economic operators in the following cases:

(a) procedures for contracts awarded by the institutions on their own account, with
a value not exceeding the value referred to in Article 169(1);

(b) procedures for contracts awarded in the field of external actions, with a value
not exceeding the thresholds referred to in Articles 172(1);

(c) procedures under points (b), (e), points (i) and (iv) of point (f), (h) and (m) of
point 11.1.

# EN 20 EN

Where the contracting authority decides not to require evidence of the legal,
regulatory, financial, economic, technical and professional capacity of economic
operators, no pre-financing shall be made except in duly justified cases

18.6. An economic operator may, where appropriate and for a particular contract, rely on
the capacities of other entities, regardless of the legal nature of the links which it has
with them. It must in that case prove to the contracting authority that it will have at
its disposal the resources necessary for the performance of the contract by producing
a commitment by those entities to that effect.

With regard to technical and professional criteria, an economic operator may only
rely on the capacities of other entities where the latter will perform the works or
services for which these capacities are required.

Where an economic operator relies on the capacities of other entities with regard to
criteria relating to economic and financial capacity, the contracting authority may
require that the economic operator and those entities be jointly liable for the
performance of the contract.

The contracting authority may request information from the tenderer on any part of
the contract that the tenderer intends to subcontract and on the identity of any
subcontractors.

For works or services provided at a facility directly under the oversight of the
contracting authority, the contracting authority shall require the contractor to indicate
the names, contacts and authorised representatives of subcontractors involved in the
performance of the contract, including any changes of subcontractors.

18.7. The contracting authority shall verify whether the entities on whose capacity the
economic operator intends to rely and the envisaged subcontractors, when
subcontracting represents a significant part of the contract, fulfil the relevant
selection criteria.

The contracting authority shall require that the economic operator replaces an entity
or subcontractor which does not meet a relevant selection criterion.

18.8. In the case of works contracts, service contracts and siting or installation operations
in the context of a supply contract, the contracting authority may require that certain
critical tasks be performed directly by the tenderer itself or, where the tender is
submitted by a group of economic operators, a participant in the group.

18.9. The contracting authority shall not demand that a group of economic operators have
a given legal form in order to submit a tender or request to participate, but the
selected group may be required to adopt a given legal form after it has been awarded
the contract if this change is necessary for proper performance of the contract.

**19.** **Economic and financial capacity**

19.1. To ensure that economic operators possess the necessary economic and financial
capacity to perform the contract, the contracting authority may require in particular
that:

# EN 21 EN

(a) economic operators have a certain minimum yearly turnover, including a
certain minimum turnover in the area covered by the contract;

(b) economic operators provide information on their annual accounts showing
ratios between assets and liability;

(c) economic operators provide an appropriate level of professional risk indemnity
insurance.

For the purposes of point (a) of the first subparagraph, the minimum yearly turnover
shall not exceed two times the estimated annual contract value, except in duly
justified cases linked to the nature of the purchase, which the contracting authority
shall explain in the procurement documents.

For the purposes of point (b) of the first subparagraph, the contracting authority shall
explain the methods and criteria for such ratios in the procurement documents.

19.2. In the case of dynamic purchasing systems, the maximum yearly turnover shall be
calculated on the basis of the expected maximum size of specific contracts to be
awarded under that system.

19.3. The contracting authority shall define in the procurement documents the evidence to
be provided by an economic operator to demonstrate its economic and financial
capacity. It may request in particular one or more of the following documents:

(a) appropriate statements from banks or, where appropriate, evidence of relevant
professional risk indemnity insurance;

(b) financial statements or their extracts for a period equal to or less than the last
three years for which accounts have been closed;

(c) a statement of the economic operator's overall turnover and, where appropriate,
turnover in the area covered by the contract for a maximum of the last three
financial years available.

If, for any valid reason, the economic operator is unable to provide the references
requested by the contracting authority, it may prove its economic and financial
capacity by any other document which the contracting authority considers
appropriate.

**20.** **Technical and professional capacity**

20.1. The contracting authority shall verify that candidates or tenderers fulfil the minimum
selection criteria concerning technical and professional capacity in accordance with
points 20.2 to 20.5.

20.2. The contracting authority shall define in the procurement documents the evidence to
be provided by an economic operator to demonstrate its technical and professional
capacity. It may request one or more of the following documents:

# EN 22 EN

(a) for works, supplies requiring siting or installation operations or services, the
educational and professional qualifications, skills, experience and expertise of
the persons responsible for performance;

(b) a list of the following:

(i) of the principal services provided and supplies delivered in the past three
years, with the sums, dates and clients, public or private accompanied
upon request by statements issued by the clients;

(ii) of the works carried out in the last five years, accompanied by certificates
of satisfactory execution for the most important works;

(c) a statement of the technical equipment, tools or plant available to the economic
operator for performing a service or works contract;

(d) a description of the technical facilities and means available to the economic
operator to for ensuring quality, and a description of available study and
research facilities;

(e) a reference to the technicians or technical bodies available to the economic
operator, whether or not belonging directly to it, especially those responsible
for quality control;

(f) in respect of supplies: samples, descriptions or authentic photographs or
certificates drawn up by official quality control institutes or agencies of
recognised competence attesting the conformity of the products clearly
identified by references to technical specifications or standards;

(g) for works or services, a statement of the average annual manpower and the
number of managerial staff of the economic operator for the last three years;

(h) an indication of the supply chain management and tracking systems that the
economic operator will be able to apply when performing the contract;

(i) an indication of the environmental management measures that the economic
operator will be able to apply when performing the contract.

For the purposes of point (i) of point (b) of the first subparagraph, where necessary in
order to ensure an adequate level of competition, the contracting authority may
indicate that evidence of relevant supplies or services delivered or performed more
than three years before will be taken into account.

For the purposes of point (ii) of point (b) of the first subparagraph, where necessary
in order to ensure an adequate level of competition, the contracting authority may
indicate that evidence of relevant works delivered or performed more than five years
before will be taken into account.

20.3. Where the supplies or services are complex or, exceptionally, are required for a
special purpose, evidence of technical and professional capacity may be secured by
means of a check carried out by the contracting authority or on its behalf by a
competent official body of the country in which the economic operator is established,

# EN 23 EN

subject to that body's agreement. Such checks shall concern the supplier's technical
capacity and production capacity and, if necessary, its study and research facilities
and quality control measures.

20.4. Where the contracting authority requires the provision of certificates drawn up by
independent bodies attesting the compliance of the economic operator with certain
quality assurance standards, including on accessibility for disabled persons, it shall
refer to quality assurance systems based on the relevant European standards series
certified by accredited bodies. The contracting authority shall also accept other
evidence of equivalent quality assurance measures from an economic operator that
has demonstrably no access to such certificates or has no possibility of obtaining
such certificates within the relevant time limits, for reasons that are not attributable
to that economic operator and provided that the economic operator proves that the
proposed quality assurance measures comply with the required quality assurance
standards.

20.5. Where the contracting authority requires the provision of certificates drawn up by
independent bodies attesting that the economic operator complies with certain
environmental management systems or standards, it shall refer to the European
Union Eco-Management and Audit Scheme or to other environmental management
systems as recognised in accordance with Article 45 of Regulation (EC)
No 1221/2009 of the European Parliament and of the Council [6] or other
environmental management standards based on the relevant European or
international standards by accredited bodies. Where an economic operator had
demonstrably no access to such certificates, or no possibility of obtaining them
within the relevant time limits for reasons that are not attributable to that economic
operator, the contracting authority shall also accept other evidence of environmental
management measures, provided that the economic operator proves that these
measures are equivalent to those required under the applicable environmental
management system or standard.

20.6. A contracting authority may conclude that an economic operator does not possess the
required professional capacity to perform the contract to an appropriate quality
standard where the contracting authority has established that the economic operator
has conflicting interests which may negatively affect its performance.

**21.** **Award criteria**

21.1. Quality criteria may include elements such as technical merit, aesthetic and
functional characteristics, accessibility, design for all users, social, environmental
and innovative characteristics, production, provision and trading process and any
other specific process at any stage of their life cycle, organisation of the staff
assigned to performing the contract, after-sales service, technical assistance or
delivery conditions such as delivery date, delivery process and delivery period or
period of completion.

6 Regulation (EC) No 1221/2009 of the European Parliament and of the Council of 25 November 2009
on the voluntary participation by organisations in a Community eco-management and audit scheme
(EMAS), repealing Regulation (EC) No 761/2001 and Commission Decisions 2001/681/EC and
2006/193/EC (OJ L 342, 22.12.2009, p. 1).

# EN 24 EN

21.2. The contracting authority shall specify, in the procurement documents the relative
weighting which it gives to each of the criteria chosen to determine the most
economically advantageous tender except when using the lowest price method.
Those weightings may be expressed as a range with an appropriate maximum spread.

The weighting applied to price or cost in relation to the other criteria must not result
in the neutralisation of price or cost.

If weighting is not possible for objective reasons, the contracting authority shall
indicate the criteria in decreasing order of importance.

21.3. The contracting authority may lay down minimum levels of quality. Tenders below
those levels of quality shall be rejected.

21.4. Life-cycle costing shall cover parts or all of the following costs, to the extent
relevant, over the life cycle of works, supplies or services:

(a) costs, borne by the contracting authority or other users, such as:

(i) costs relating to acquisition;

(ii) costs of use, such as consumption of energy and other resources;

(iii) maintenance costs;

(iv) end of life costs, such as collection and recycling costs;

(b) costs attributed to environmental externalities linked to the works, supplies or
services during their life cycle, provided their monetary value can be
determined and verified.

21.5. Where the contracting authority assesses the costs using a life-cycle costing
approach, it shall indicate in the procurement documents the data to be provided by
the tenderers and the method which it will use to determine the life-cycle costs on the
basis of those data.

The method used for the assessment of costs attributed to environmental externalities
shall fulfil the following conditions:

(a) it is based on objectively verifiable and non-discriminatory criteria;

(b) it is accessible to all interested parties;

(c) economic operators can provide the required data with reasonable effort.

Where applicable, the contracting authority shall use the mandatory common
methods for the calculation of life- cycle costs provided for in Annex XIII of
Directive 2014/24/EU.

**22.** **Use of electronic auctions**

22.1. The contracting authority may use electronic auctions, in which new prices, revised
downwards or new values concerning certain elements of tenders are presented.

# EN 25 EN

The contracting authority shall structure the electronic auction as a repetitive
electronic process, which occurs after an initial full evaluation of the tenders,
enabling them to be ranked using automatic evaluation methods.

22.2. In open, restricted or competitive procedures with negotiation, the contracting
authority may decide that the award of a public contract is preceded by an electronic
auction when the procurement documents can be established with precision.

An electronic auction may be held on the reopening of competition among the parties
to a framework contract as referred to in point 1.3(b) and on the opening for
competition of contracts to be awarded under the dynamic purchasing system
referred to in point 9.

The electronic auction shall be based on one of the award methods set out in
Article 161(4).

22.3. The contracting authority which decides to hold an electronic auction shall state that
fact in the contract notice.

The procurement documents shall include the following details:

(a) the values of the features which will be the subject of electronic auction,
provided that those features are quantifiable and can be expressed in figures or
percentages;

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

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

(d) the relevant information concerning the electronic auction process including
whether it includes phases and how it will be closed, as set out in point 22.7;

(e) the conditions under which the tenderers will be able to tender and, in
particular, the minimum differences which will, where appropriate, be required
when submitting the tender;

(f) the relevant information concerning the electronic equipment used and the
arrangements and technical specifications for connection.

22.4. All tenderers who have submitted admissible tenders shall be invited simultaneously
by electronic means to participate in the electronic auction using the connections in
accordance with the instructions. The invitation shall specify the date and time of the
start of the electronic auction.

The electronic auction may take place in a number of successive phases. The
electronic auction may not start sooner than two working days after the date on
which invitations are sent out.

# EN 26 EN

22.5. The invitation shall be accompanied by the outcome of a full evaluation of the
relevant tender.

The invitation shall also state the mathematical formula to be used in the electronic
auction to determine automatic re-rankings on the basis of the new prices and/or new
values submitted. That formula shall incorporate the weighting of all the criteria
fixed to determine the most economically advantageous tender, as indicated in the
procurement documents. For that purpose, any ranges shall, however, be reduced
beforehand to a specified value.

Where variants are authorised, a separate formula shall be provided for each variant.

22.6. Throughout each phase of an electronic auction the contracting authority shall
instantaneously communicate to all tenderers at least sufficient information to enable
them to ascertain their relative rankings at any moment. It may also, where this has
been previously indicated, communicate other information concerning other prices or
values submitted as well as announce the number of tenderers in any specific phase
of the auction. It may not however disclose the identities of the tenderers during any
phase of an electronic auction.

22.7. The contracting authority shall close an electronic auction in one or more of the
following ways:

(a) at the previously indicated date and time;

(b) when it receives no more new prices or new values which meet the
requirements concerning minimum differences, provided that it has previously
stated the time which it will allow to elapse after receiving the last submission
before it closes the electronic auction;

(c) when the previously indicated number of phases in the auction has been
completed.

22.8. After closing an electronic auction, the contracting authority shall award the contract
on the basis of the results of the electronic auction.

**23.** **Abnormally low tenders**

23.1. If, for a given contract, the price or cost proposed in a tender appears to be
abnormally low, the contracting authority shall request in writing details of the
constituent elements of the price or cost which it considers relevant and shall give the
tenderer the opportunity to present its observations.

The contracting authority may, in particular, take into consideration observations
relating to:

(a) the economics of the manufacturing process, of the provision of services or of
the construction method;

(b) the technical solutions chosen or the exceptionally favourable conditions
available to the tenderer;

# EN 27 EN

(c) the originality of the tender;

(d) compliance of the tenderer with applicable obligations in the fields of
environmental, social and labour law;

(e) compliance of subcontractors with applicable obligations in the fields of
environmental, social and labour law;

(f) the possibility of the tenderer obtaining state aid in compliance with applicable
rules.

23.2. The contracting authority may only reject the tender where the evidence supplied
does not satisfactorily account for the low level of price or costs proposed.

The contracting authority shall reject the tender, where it has established that the
tender is abnormally low because it does not comply with applicable obligations in
the fields of environmental, social and labour law.

23.3. Where the contracting authority establishes that a tender is abnormally low because
the tenderer has obtained state aid, it may reject the tender on that sole ground only if
the tenderer is unable to prove, within a sufficient time limit fixed by the contracting
authority, that the aid in question was compatible with the internal market within the
meaning of Article 107 TFEU.

**24.** **Time limits for receipt of tenders and requests to participate**

24.1. The time limits shall be longer than the minimum time limits set out in this Article
where tenders can only be drawn after a visit to the site or after an on-the-spot
consultation of the documents supporting the procurement documents.

The time limits shall be prolonged by five days in any of the following cases:

(a) the contracting authority does not offer direct access free of charge by
electronic means to the procurement documents;

(b) the contract notice is published in accordance with point (b) of point 4.2.

24.2. In open procedures, the time limit for receipt of tenders shall be no less than 37 days
from the day following dispatch of the contract notice.

24.3. In restricted procedures, in competitive dialogue in competitive procedures with
negotiation, in dynamic purchasing systems and in innovation partnerships, the time
limit for receipt of requests to participate shall be no less than 32 days from the day
following dispatch of the contract notice.

24.4. In restricted procedures and in competitive procedures with negotiation, the time
limit for receipt of tenders shall be no less than 30 days from the day following
dispatch of the invitation to tender.

24.5. In a dynamic purchasing system, the time limit for receipt of tenders shall be no less
than 10 days from the day following dispatch of the invitation to tender.

# EN 28 EN

24.6. In the procedures after a call for expressions of interest referred to in point 13.1, the
time limit shall be:

(a) no less than 10 days from the day following dispatch of the invitation to tender
for receipt of tenders in the case of the procedure referred to in point 13.1(a)
and point 13.3(b)(i);

(b) no less than 10 days for receipt of requests to participate and no less than 10
days for receipt of tenders in the case of the two-step procedure referred to in
point 13.3(b)(ii).

24.7. The contracting authority may reduce the time limits for receipt of tenders by five
days for the open or restricted procedures if it accepts that tenders may be submitted
by electronic means.

**25.** **Access to procurement documents and time limit to provide additional**
**information**

25.1. The contracting authority shall offer direct access free of charge by electronic means
to the procurement documents from the date of publication of the contract notice or,
for the procedures without contract notice or under point 13, from the date of
dispatch of the invitation to tender.

In justified cases, the contracting authority may transmit the procurement documents
by other means it specifies if direct access by electronic means is not possible for
technical reasons or if the procurement documents contain information of a
confidential nature. In these cases, the second subparagraph of point 24.1 shall apply
except in urgent cases as provided for in point 26.1.

The contracting authority may impose on economic operators requirements aimed at
protecting the confidential nature of information contained in the procurement
documents. It shall announce these requirements as well as how access to the
procurement documents concerned can be obtained.

25.2. The contracting authority shall provide additional information linked to the
procurement documents simultaneously and in writing to all interested economic
operators as soon as possible.

The contracting authority shall not be bound to reply to requests for additional
information made less than six working days before the deadline for receipt of
tenders.

25.3. The contracting authority shall extend the time limit for receipt of tenders where:

(a) it did not provide additional information at the latest six days before the
deadline for the receipt of tenders although the economic operator requested it
in good time;

(b) it makes significant changes to the procurement documents.

**26.** **Time limits in urgent cases**

# EN 29 EN

26.1. Where duly substantiated urgency renders impracticable the minimum time limits
laid down in points 24.2 and 24.3 for open or restricted procedures, the contracting
authority may set:

(a) a time limit for the receipt of requests to participate or tenders in open
procedures which shall not be less than 15 days from the date on which the
contract notice was dispatched;

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

26.2. In urgent cases, the time limit set out in the first subparagraph of point 25.2 and in
point 25.3(a) shall be four days.

**27.** **Electronic catalogues**

27.1. Where the use of electronic means of communication is required, the contracting
authority may require tenders to be presented in the format of an electronic catalogue
or to include an electronic catalogue.

27.2. Where the presentation of tenders in the form of electronic catalogues is accepted or
required, the contracting authority shall:

(a) state so in the contract notice;

(b) indicate in the procurement documents all the necessary information
concerning the format, the electronic equipment used and the technical
connection arrangements and specifications for the catalogue.

27.3. Where a multiple framework contract has been concluded following the submission
of tenders in the form of electronic catalogues, the contracting authority may provide
that the reopening of competition for specific contracts takes place on the basis of
updated catalogues by using one of the following methods:

(a) the contracting authority invites contractors to resubmit their electronic
catalogues, adapted to the requirements of the specific contract in question;

(b) the contracting authority notifies contractors that it intends to collect from the
electronic catalogues which have already been submitted the information
needed to constitute tenders adapted to the requirements of the specific contract
in question, provided that the use of that method has been announced in the
procurement documents for the framework contract.

27.4. When using the method under point (b) of point 27.3, the contracting authority shall
notify contractors of the date and time at which they intend to collect the information
needed to constitute tenders adapted to the requirements of the specific contract in
question and shall give contractors the possibility to refuse such collection of
information.

The contracting authority shall allow for an adequate period between the notification
and the actual collection of information.

# EN 30 EN

Before awarding the specific contract, the contracting authority shall present the
collected information to the contractor concerned so as to give it the opportunity to
contest or confirm that the tender thus constituted does not contain any material

errors.

**28.** **Opening of tenders and requests to participate**

28.1. In open procedures, authorised representatives from tenderers may attend the
opening session.

28.2. Where the value of a contract is equal to or greater than the thresholds laid down in
Article 169(1), the authorising officer responsible shall appoint a committee to open
the tenders. The authorising officer may waive this obligation on the basis of a risk
analysis when reopening competition within a framework contract and for the cases
set out in point 11.1 except points (d) and (g) of that point.

The opening committee shall be made up of at least two persons representing at least
two organisational entities of the institution concerned with no hierarchical link
between them. To avoid any conflict of interests, those persons shall be subject to the
obligations laid down in Article 59.

In the representations or local units referred to in Article 145 or isolated in a Member
State, if there are no separate entities, the requirement of organisational entities with
no hierarchical link between them shall not apply.

28.3. In the case of a procurement procedure launched on an interinstitutional basis, the
opening committee shall be appointed by the responsible authorising officer from the
institution responsible for the procurement procedure.

28.4. The contracting authority shall verify and ensure the integrity of the original tender
including the financial offer and of the evidence of date and time of its receipt as
provided for in points 2 and 4 of Article 144 by any appropriate method.

28.5. In open procedures, where the contract is awarded under the lowest price or lowest
cost methods in accordance with Article 161(4), the prices quoted in tenders
satisfying the requirements shall be read out loud.

28.6. The written record of the opening of the tenders received shall be signed by the
person or persons in charge of opening or by members of the opening committee. It
shall identify those tenders which comply with the requirements of Article 144 and
those which do not, and shall give the grounds on which tenders were rejected as set
out in Article 162(4). That record may be signed in an electronic system providing
sufficient identification of the signatory.

**29.** **Evaluation of tenders and requests to participate**

29.1. The authorising officer responsible may decide that the evaluation committee is to
evaluate and rank the tenders on the basis of the award criteria only and that the
exclusion and selection criteria are to be evaluated by other appropriate means
guaranteeing the absence of conflicts of interests.

# EN 31 EN

29.2. In the case of a procurement procedure launched on an interinstitutional basis, the
evaluation committee shall be appointed by the responsible authorising officer from
the institution responsible for the procurement procedure. The composition of the
evaluation committee shall reflect, in so far as possible, the interinstitutional
character of the procurement procedure.

29.3. Requests to participate and tenders which are suitable under point 11.2, not irregular
or unacceptable under points 12.2 and 12.3 shall be considered admissible.

**30.** **Results of the evaluation and award decision**

30.1. The outcome of the evaluation shall be an evaluation report containing the proposal
to award the contract. The evaluation report shall be dated and signed by the person
or persons who carried out the evaluation or by the members of the evaluation
committee. That report may be signed in an electronic system providing sufficient
identification of the signatory.

If the evaluation committee was not given responsibility to verify the tenders against
the exclusion and selection criteria, the evaluation report shall also be signed by the
persons who were given that responsibility by the authorising officer responsible.

30.2. The evaluation report shall contain the following:

(a) the name and address of the contracting authority, and the subject matter and
value of the contract, or the subject matter and maximum value of the
framework contract;

(b) the names of the candidates or tenderers rejected and the reasons for their
rejection by reference to a situation set out in Article 137or to selection criteria;

(c) the references to the tenders rejected and the reasons for their rejection by
reference to any of the following:

(i) non-compliance with minimum requirements as set out in point (a) of
Article 161(1);

(ii) not meeting the minimum quality levels laid down in point 21;

(iii) tenders found to be abnormally low as referred to in point 23;

(d) the names of the candidates or tenderers selected and the reasons for their
selection;

(e) the names of the tenderers to be ranked with the scores obtained and their
justifications;

(f) the names of the proposed candidates or successful tenderer and the reasons for
that choice;

(g) if known, the proportion of the contract or the framework contract which the
proposed contractor intends to subcontract to third parties.

30.3. The contracting authority shall then take its decision providing any of the following:

# EN 32 EN

(a) an approval of the evaluation report containing all the information listed in
point 30.2 complemented by the following:

(i) the name of the successful tenderer and the reasons for that choice by
reference to the pre-announced selection and award criteria, including
where appropriate the reasons for not following the recommendation
provided in the evaluation report;

(ii) in the case of negotiated procedure without prior publication, competitive
procedure with negotiation or competitive dialogue, the circumstances
referred to in points 11, 12 and 39 which justify their use;

(b) where appropriate, the reasons why the contracting authority has decided not to
award a contract.

30.4. The authorising officer may merge the content of the evaluation report and award
decision into a single document and sign it in any of the following cases:

(a) for procedures below the thresholds set out in Article 169(1) where only one
tender was received;

(b) when reopening competition within a framework contract where no evaluation
committee was nominated;

(c) for cases under points (c), (e), (f)(i), (f)(iii) and (h) of point 11.1 where no
evaluation committee was nominated.

30.5. In the case of a procurement procedure launched on an interinstitutional basis, the
decision referred to in point 30.3 shall be taken by the contracting authority
responsible for the procurement procedure.

**31.** **Information for candidates and tenderers**

31.1. The contracting authority shall inform all candidates or tenderers, simultaneously and
individually, by electronic means of decisions reached concerning the outcome of the
procedure as soon as possible after any of the following stages:

(a) the opening phase for the cases referred to in Article 162(3);

(b) a decision has been taken on the basis of exclusion and selection criteria in
procurement procedures organised in two separate stages;

(c) the award decision.

In each case, the contracting authority shall indicate the reasons why the request to
participate or tender has not been accepted and the available legal remedies.

When informing the successful tenderer, the contracting authority shall specify that
the decision notified does not constitute a commitment on its part.

31.2. The contracting authority shall communicate the information provided for in
Article 164(3) as soon as possible and in any case within 15 days of receipt of a
request in writing. When the contracting authority awards contracts for its own

# EN 33 EN

account, it shall use electronic means. The tenderer may also send the request by
electronic means.

31.3. When the contracting authority communicates through electronic means, information
shall be deemed to have been received by candidates or tenderers if the contracting
authority can prove to have sent it to the electronic address referred to in the tender
or in the request to participate.

In such case, information shall be deemed to have been received by the candidate or
tenderer on the date of dispatch by the contracting authority.

### **CHAPTER 2** **Provisions applicable to contracts awarded by the Union** **institutions on their own account**

**32.** **Central purchasing body**

32.1. A central purchasing body may act as any of the following:

(a) as wholesaler by buying, stocking and reselling supplies and services to other
contracting authorities;

(b) as intermediary by awarding framework contracts or operating dynamic
purchasing systems that may be used by other contracting authorities as
announced in the initial notice.

32.2. The central purchasing body shall carry out all procurement procedures using
electronic means of communication.

**33.** **Lots**

33.1. Whenever appropriate, technically feasible, and cost efficient, contracts shall be
awarded in the form of separate lots within the same procedure.

33.2. Where the subject matter of a contract is subdivided into several lots, each one being
the subject of an individual contract, the total value of all the lots shall be taken into
account for the overall evaluation of the applicable threshold.

Where the total value of all the lots is equal to or greater than the thresholds laid
down in Article 169(1), Articles 157(1), 158 and 159 shall apply to each of the lots.

33.3. Where a contract is to be awarded in the form of separate lots, tenders shall be
evaluated separately for each lot. If several lots are awarded to the same tenderer, a
single contract covering those lots may be signed.

**34.** **Arrangements for estimating the value of a contract**

34.1. The contracting authority shall estimate the value of a contract based on the total
amount payable including any form of options and any renewal.

# EN 34 EN

This estimate shall be made at the latest when the contracting authority launches the
procurement procedure.

34.2. For framework contracts and dynamic purchasing systems the value to be taken into
account shall be the maximum value of all the contracts envisaged during the total
duration of the framework contract or dynamic purchasing system.

For innovation partnerships, the value to be taken into account shall be the maximum
estimated value of the research and development activities to take place during all
stages of the envisaged partnership as well as of the works, supplies or services to be
purchased at the end of the envisaged partnership.

Where the contracting authority provides for payments to candidates or tenderers it
shall take them into account when calculating the estimated value of the contract.

34.3. For service contracts, account shall be taken of the following:

(a) in the case of insurance services, the premium payable and other forms of
remuneration;

(b) in the case of banking or financial services, the fees, commissions, interest and
other types of remuneration;

(c) in the case of design contracts, the fees, commissions payable and other forms
of remuneration.

34.4. In the case of service contracts which do not specify a total price or of supply
contracts for leasing, hire, rental or hire purchase of products, the basis for
calculating the estimated contract value shall be:

(a) in the case of fixed-term contracts:

(i) where their duration is 48 months or less in the case of services or 12
months or less in the case of supplies, the total contract value for their
duration;

(ii) where their duration is more than 12 months in the case of supplies, the
total value including the estimated residual value;

(b) in the case of contracts without a fixed term or, in the case of services, for a
duration exceeding 48 months, the monthly value multiplied by 48.

34.5. In the case of service or supply contracts which are awarded regularly or are to be
renewed within a given period, the basis for calculating the estimated contract value
shall be any of the following:

(a) the total actual value of successive contracts of the same type awarded during
the preceding 12 months or financial year, adjusted, where possible, to take
account of the changes in quantity or value which would occur in the course of
the 12 months following the initial contract;

(b) the total estimated value of successive contracts of the same type to be awarded
during the financial year.

# EN 35 EN

34.6. In the case of works contracts, account shall be taken not only of the value of the
works but also of the estimated total value of the supplies and services needed to
carry out the works and made available to the contractor by the contracting authority.

34.7. In the case of concession contracts, the value shall be the estimated total turnover of
the concessionaire generated over the duration of the contract.

The value shall be calculated using an objective method specified in the procurement
documents, taking into account in particular:

(a) the revenue from the payment of fees and fines by the users of the works or
services other than those collected on behalf of the contracting authority;

(b) the value of grants or any other financial advantages from third parties for the
performance of the concession;

(c) the revenue from sales of any assets which are part of the concession;

(d) the value of all the supplies and services that are made available to the
concessionaire by the contracting authority provided that they are necessary for
executing the works or services;

(e) the payments to candidates or tenderers.

**35.** **Standstill period before signature of the contract**

35.1. The standstill period shall run from either of the following dates:

(a) the day after the simultaneous dispatch of the notifications to successful and
unsuccessful tenderers by electronic means;

(b) where the contract or framework contract is awarded pursuant to point 11.1(b),
the day after the contract award notice referred to in point 2.4 has been
published in the _Official Journal of the European Union_ .

If necessary, the contracting authority may suspend the signature of the contract for
additional examination if this is justified by the requests or comments made by
unsuccessful or aggrieved candidates or tenderers or by any other relevant
information received during the period set in Article 169(3). In the case of
suspension all the candidates or tenderers shall be informed within three working
days following the suspension decision.

Where the contract or framework contract cannot be signed with the successful
envisaged tenderer, the contracting authority may award it to the following best
tenderer.

35.2. The period set in point 35.1 shall not apply in the following cases:

(a) any procedure where only one tender has been submitted;

(b) specific contracts based on a framework contract;

(c) dynamic purchasing systems;

# EN 36 EN

(d) negotiated procedure without prior publications referred to in point 11 except
the procedure under point 11.1(b).

### **CHAPTER 3** **Procurement in the field of external actions**

**36.** **Special provisions relating to thresholds and the arrangements for awarding**
**external contracts**

Point 2 with the exception of point 2.5, points 3, 4 and 6, points (a) and (c) to (f) of
point 12.1, point 12.4, point 13.3, points 14 and 15, points 17.3 to 17.7, points 20.4,
23.3, 24, points 25.2 and 25.3, points 26, 28, and 29 with the exception of point 29.3
shall not apply to procurement contracts concluded by the contracting authorities
referred to in Article 172(2) or on their behalf.

Implementation of the procurement provisions under this Chapter shall be decided by
the Commission, including the appropriate controls to be applied by the responsible
authorising officer where the Commission is not the contracting authority.

**37.** **Advertising**

37.1. If applicable, the prior information notice for calls for tender following the restricted
procedure or the open procedure as referred to, respectively, in points (a) and (b) of
point 38.1, shall be sent to the Publications Office by electronic means as early as
possible.

37.2. The contract award notice shall be sent when the contract is signed except where, if
still necessary, the contract was declared secret or where the performance of the
contract must be accompanied by special security measures, or when the protection
of the essential interests of the European Union, or the beneficiary country so
requires, and where the publication of the award notice is deemed not to be
appropriate.

**38.** **Thresholds and procedures**

38.1. The procurement procedures in the field of external actions shall be as follows:

(a) the restricted procedure as provided for in Article 158(1) (b);

(b) the open procedure as provided for in Article 158(1) (a);

(c) the local open procedure.

(d) the simplified procedure;

38.2. The use of procurement procedures according to thresholds shall be as follows:

(a) the open or restricted procedure may be used for:

# EN 37 EN

(i) the service and supply contracts and the service concession contracts
with a value of at least EUR 300 000;

(ii) works contracts with a value of at least EUR 5 000 000.

(b) the local open procedure may be used for:

(i) supply contracts with a value of at least EUR 100 000 and less than EUR
300 000;

(ii) works contracts and works concessions contracts of a value of at least
EUR 300 000 and less than EUR 5 000 000;

(c) the simplified procedure may be used for:

(i) service contracts, service concession contracts, works contracts and
works concessions contracts with a value of less than EUR 300 000

(ii) supply contracts with a value of less than EUR 100 000

(d) contracts with a value of less than or equal to EUR 20 000 may be awarded on
the basis of a single tender;

(e) payments for amounts less than or equal to EUR 2 500 in respect of item of
expenditure may consist simply in payment against invoices without prior
acceptance of a tender.

38.3. In the restricted procedure referred to in point (a) of point 38.1, the contract notice
shall state the number of candidates who will be invited to submit tenders. For

service contracts at least four candidates shall be invited. The number of candidates
allowed to submit tenders must be sufficient to ensure genuine competition.

The list of selected candidates shall be published on the Commission’s internet site.

If the number of candidates satisfying the selection criteria or the minimum capacity
levels is less than the minimum number, the contracting authority may invite to
submit a tender only those candidates who satisfy the criteria to submit a tender.

38.4. Under the local open procedure referred to in point (c) of point 38.1, the contract
notice shall be published at least in the official gazette of the recipient State or in any
equivalent publication for local invitations to tender.

38.5. Under the simplified procedure referred to in point (d) of point 38.1, the contracting
authority shall draw up a list of at least three tenderers of its choice, without
publication of a notice.

Tenderers for the simplified procedure may be chosen from a list of vendors as
referred to in point 13.1(b) advertised by a call for expressions of interest.

If following consultation of the tenderers, the contracting authority receives only one
tender that is administrative and technically valid, the contract may be awarded
provided that the award criteria are met.

# EN 38 EN

38.6. For legal services not covered under point (h) of point 11.1, the contracting
authorities may use the competitive negotiated procedure, whatever is the estimated
value of the contract.

**39.** **Use of the negotiated procedure for service, supply and works contracts**

39.1. Contracting authorities may use the negotiated procedure with a single tender in the
following cases:

(a) where the services are entrusted to public-sector bodies or to non-profit
institutions or associations and relate to activities of an institutional nature or
designed to provide assistance to peoples in the social field;

(b) where the tender procedure has been unsuccessful, that is to say, where no
qualitatively and/or financially worthwhile tender has been received, in which
case, after cancelling the tender procedure, the contracting authority may
negotiate with one or more tenderers of its choice, from among those that took
part in the invitation to tender, provided that the procurement documents are
not substantially altered;

(c) where a new contract has to be concluded after early termination of an existing

contract.

39.2. For the purposes of point (c) of point 11.1, operations carried out in crisis situations
as referred to in Article 172(2) shall be considered to satisfy the test of extreme
urgency. The authorising officer by delegation, where appropriate in concertation
with the other authorising officers by delegation concerned, shall establish that a
situation of extreme urgency exists and shall review his decision regularly with
regard to the principle of sound financial management.

39.3. Activities of an institutional nature referred to in point (a) of point 39.1 include
services directly linked to the statutory mission of the public sector bodies.

**40.** **Tender specifications**

By derogation to point 16.3, for all procedures involving a request to participate, the
tender specifications may be split according to the two stages of the procedure and
the first step may contain only the information referred to in points (a) and (f) of
point 16.3.

**41.** **Time limits for procedures**

41.1. For service contracts, the minimum time between the day following the date of
dispatch of the letter of invitation to tender and the final date for receipt of tenders
shall be 50 days. However, in urgent cases other time limits may be authorised.

41.2. Tenderers may put questions in writing before the closing date for receipt of tenders.
The contracting authority shall provide the answers to the questions before the
closing date for receipt of tenders.

41.3. In restricted procedures, the time limit for receipt of requests to participate shall be
no less than 30 days from the date following that on which the contract notice is

# EN 39 EN

published. The period between the date following that on which the letter of
invitation is sent and the final date for the receipt of tenders shall be no less than 50
days. However, in certain exceptional cases other time limits may be authorised.

41.4. In open procedures, the time limits for receipt of tenders, running from the date
following that on which the contract notice is published, shall be at least:

(a) 90 days for works contracts;

(b) 60 days for supply contracts.

However, in certain exceptional cases other time limits may be authorised.

41.5. In local open procedures, the time limits for receipt of tenders, running from the date
when the contract notice is published, shall be at least:

(a) 60 days for works contracts;

(b) 30 days for supply contracts.

However, in certain exceptional cases other time limits may be authorised.

41.6. For the simplified procedures referred to in points 38.1(d), candidates shall be
allowed at least 30 days from the date of dispatch of the letter of invitation to tender
in which to submit their tenders.

# EN 40 EN