3. Service contracts.

3.1. Introduction

A service contract is a contract between a service provider and the contracting authority covering all intellectual and non-intellectual services other than those covered by supply contracts and works contracts. Service contracts are meant for studies, technical assistance and are also used for audits or communication services.

A study contract is a service contract which includes studies for the identification and preparation of projects, feasibility studies, economic and market studies, technical studies and audits.

A technical assistance contract is a service contract where the contractor is called on to play an advisory role, to manage or supervise a project, or to provide the expertise specified in the contract.

3.2. Types of service contracts

A service contract may be concluded in two different ways:

3.2.1. Global price

Global price contracts are lump sum contracts where specified output(s) is/are set out. Global price contracts always specify the output(s), i.e. the contractor must provide given output(s). Deliverables capture the implementation steps that contribute to the outputs in the form of reports.

The contracting authority must not request in the terms of reference a required number or amount of inputs for a global price contract, e.g. minimum number of experts or a fixed list of expenses.

The default option is that no minimum requirements for experts are defined. The contractor will select the best possible staff to deliver the expected output(s). It is up to the contractor to define the precise inputs of the experts. In duly motivated cases, minimum requirements can be requested. In some cases, the team needs to have a certain expertise, for instance expertise in statistics. It is however up to the contractor to define which experts will have this expertise and the role of these experts within the team. In this case “statistics” will be part of the minimum requirements of the team of experts as a whole. The Organisation and Methodology may include the name of an expert and his profile. Compliance (yes/no answer) of the team (as a whole) with the requirements will be checked, but there will be no marks given to the experts. The contracting authority cannot request the Expert’s Profile and Statements of Exclusivity and Availability. As a consequence, for a global price contract the same expert may be proposed in more than one offer submitted in reply to the same tender procedure.

The tenderer might be requested to provide an indicative budget breakdown detailing the inputs which compose the global price. The proposed input in the offer relates to the organisation and methodology that will be applied for the successful execution of activities. The indicative budget breakdown detailing the inputs enables the evaluation committee for instance to verify that the tenderer has not forgotten any input in its offer. However, the technical and operational means by which the contractor achieves the specified output(s) are not relevant for the satisfactory implementation of the contract and related payments. Therefore, timesheets for experts or supporting documents for expenses incurred will not be requested to process payments since global price contracts do not entail any reimbursable expenses/incidental expenditure and are not subject to an expenditure verification.

If there is more than one output, and depending on the project, a global price contract with a price breakdown based on outputs makes it possible to make partial payments based on the completion of the outputs (e.g. the outputs could be related to the progress inception report/interim report/final report or to the different parts of a study/report/event). In this case the tenderer might be requested to submit a breakdown indicating the price for each output.

Payments might be totally or partially withheld if the contractual result(s) have not been reached in conformity with the detailed terms of reference. Payment(s) is/are based on the approval of this/these deliverable(s).

3.2.2. Fee-based

Where the output is unpredictable, or where the workload to achieve the specified output is impossible to quantify in advance, fee-based contracts are more appropriate, as it is economically more advantageous to pay the services on the basis of time actually worked.

For fee-based contracts, invoices shall be accompanied by copies of, or extracts from, the corresponding approved timesheets to verify the amount invoiced for the time input of the experts.

Therefore, in case of fee-based contracts, timesheets recording the days or hours worked by the contractor's personnel shall be maintained by the contractor. The timesheets shall be:

• filled in and signed by the experts;

• shall be approved on a monthly basis by any person authorised by the contractor;

• shall also be approved by the project manager, or any person authorised by the contracting authority or the contracting authority itself.

The timesheets shall include at least the following information: the name and the position of the expert; the contract title and number; the month and the year; the days of the month and the days of the week of that month; the days worked; the per diems requested and a description of the activities performed. A minimum of 7 hours worked are deemed to be equivalent to one day worked. If the expert works less than a day, the time shall indicated as part of a day. For the purposes of invoicing, the time input for each reporting period shall be rounded to the nearest whole number of days worked for that period.

The fee rates for all experts must include the remuneration paid to the experts, all the administrative costs of employing the relevant experts, such as equipment, relocation and repatriation expenses (including flights to and from the place of performance upon mobilisation and demobilisation as well as leave), accommodation, expatriation allowances, medical insurance and other employment benefits given to the experts by the contractor. The fee rates should take into account the annual leave entitlement of the expert up to 60 calendar days per year. The fees shall also include any security arrangement except when this is exceptionally included under the incidental expenditure. Furthermore, the fees shall also include the margin, overheads, profit and support facilities.

Lump sum activities

In most cases the whole contract is set out in the form of either a global price contract or a fee-based contract. However, it is possible to include global price activities in a fee-based contract by the inclusion of activities paid under the basis of lump sums. For the payment of lump sums, no supporting documents of the underlying costs must be provided, but evidence of the expected results or deliverables which has been achieved must be presented.

Example 1: training activities, where the trainings would be paid on a fee-based basis, and where the development of the training material would be paid on a lump sum basis. In such cases, each item or each section of the contract should have a clear method of measurement and verification: fee-based or lump sum. It should be clear in the terms of reference and furthermore stipulated in the financial offer template.

Example 2: a design and supervision contract that usually would consist of two distinct sections and terms of reference: 1) the design section is a collection of several global price outputs: geotechnical study, environmental study, socio-economic study, etc.; whereas 2) the supervision section would be fee-based items.

A road supervision contract does indeed mainly consist of fee-based items, since the supervising engineer is affected by many factors that are beyond his control, like additional works, delays of various stakeholders including the contractor herself/himself, the public authority and the donor. However, before the tender launch it is possible to single out tasks within the supervision duties, which may be treated as a global price: for example, studies on technical alternatives that have to be studied by specialists outside the resident team. Once the number of expert days is agreed for the task(s), the item will be accounted for as a global price and be paid as a lump sum activity.

Example 3: technical assistance projects may contain a mix of fee-based and global price for projects that are structured into different phases:

• A first critical phase may consist of a diagnostic, analysing institutions and stakeholders, assessing capacity, facilitating a joint process for defining precise actions and concrete outcomes. This may be a fee-based activity.

• A second phase would consist of the realisation of those specific actions. The individual output may be contracted on a lump sum basis.

3.2.3. Global price versus fee-based service contracts

The use of fee-based service contracts — where statements of exclusivity and availability (SoEA) are obligatory — is justified where the output of the contract is difficult or impossible to define in advance and/or the main objective of the contract is to give support on a continuous basis to, for instance, the administration of a partner country.

Compared to a fee-based contract, global price contracts do not require key experts. In such cases the terms of reference will describe the expertise required and the tenderer will demonstrate in its tender that he/she has access to this expertise. An example where key experts are not deemed necessary is a mission that consists in a well-defined technical output, e.g. design documents for an investment project. In that case, provided the contractor has qualified permanent staff, his professional responsibility should lead him/her to select the best possible staff in order to deliver the expected results.

Global price contracts do not imply verification of timesheets and incidental expenditure and therefore are less resource-intensive for the contracting authority.

3.3. Procurement procedures [1]

3.3.1. Contracts with a value of EUR 300 000 or more

Service contracts worth EUR 300 000 or more may be awarded by restricted tender procedure (see Section 3.4.) or under the framework contract procedure laid down in framework contracts depending on the ceiling established in the framework contract (see Section 3.5.1.).

3.3.2. Contracts with a value of less than EUR 300 000

Service contracts worth under EUR 300 000 may be awarded under a simplified procedure (see Section 3.5.2.) involving at least three candidates, or under the framework contract procedure laid down in framework contracts (see Section 3.5.1.).

3.3.3. Contracts with a value of EUR 20 000 or less

Service contracts with a value of less than or equal to EUR 20 000 may be awarded on the basis of a single tender (see Section 3.5.3.), or under the framework contract procedure laid down in framework contracts (see Section 3.5.1.).

3.3.4. Contracts with a value of EUR 2 500 or less

For services with a value of less than or equal EUR 2 500 the contracting authority may simply pay against invoices without prior acceptance of a tender.

3.3.5. Procedures applicable without ceilings

3.3.5.1. Negotiated procedure

Please see Section 2.6.8. for further details on the use of a negotiated procedure.

The procedures described in Sections 3.4.10. must be followed by analogy and adapted to the context of a negotiated award procedure. The evaluation report for the negotiated procedure (Annex a10a) shall describe the selection of the participant(s), the timetable of the negotiation rounds, and the describe the negotiation process and the result of the negotiation.

The standstill procedure described in 3.4.12.2 shall not apply, with the exception of case b) referred below [2].

The evaluation report for the negotiated procedure must refer to the legal basis of the negotiated procedure and to the applicable case. The evaluation report must demonstrate that the conditions under which a negotiated procedure is allowed are fulfilled. The applicable cases for the negotiated procedure for service contracts are listed below:

• Where no tenders, or no suitable tender, or no request to participate or no suitable request to participate 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 [3].

• A tender must be considered unsuitable where it does not relate to the subject matter of the contract and a tender or request to participate must be considered unsuitable where the economic operator is not eligible, is in an exclusion situation or does not meet the selection criteria [4].

• Where the services can only be provided by a single economic operator and for any of the following reasons [5]:

• the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;

• competition is absent for technical reasons;

• the protection of exclusive rights including intellectual property rights must be ensured.

• The exceptions set out in points (ii) and (iii) must 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 [6].

• 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 applicable time limits and where the justification of such extreme urgency is not attributable to the contracting authority [7].

• Operations carried out in crisis situations must 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, must establish that a situation of extreme urgency exists and must review his decision regularly with regard to the principle of sound financial management [8].

• 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 [9].

• For new services consisting in the repetition of similar services entrusted to the economic operator to which the same contracting authority awarded an original contract, provided that the original contract was awarded after publication of a contract notice that indicated the extent of possible new services, the conditions under which they will be awarded (i.e. the possible use of the negotiated procedure), and the total estimated amount for these subsequent services. This total amount has to be taken into consideration in applying the applicable thresholds to determine the correct procurement procedure to follow for the original contract [10].

• For contracts for any of the following [11]:

• (i) legal representation by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services [12];

• 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;

• for arbitration and conciliation services.

• 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 interests of the European 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 [13].

• Loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments [14].

• For the purchase of public communication networks and electronic communications services within the meaning of Directive 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code [15] [16].

• Services provided by an international organisation, or a Member State organisation, where it cannot participate in competitive procedures according to its statute or act of establishment [17]. A Member State organisation is an entity established in a Member State as a public law body, or as a body governed by private law entrusted with a public service mission provided with adequate financial guarantees from the Member State.

• 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 [18].

• 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 procedure, provided that the original procurement documents are not substantially altered [19].

• Where a new contract has to be concluded after early termination of an existing contract [20].

3.3.5.2. Competitive dialogue

See Section 2.6.7. for further details.

3.3.5.3. Framework contract

See Section 2.6.5. for further details.

3.3.5.4. Dynamic purchasing system

See Section 2.6.6. for further details.

3.4. Restricted tenders (for contracts of EUR 300 000 or more)

See Section 2.6.3. on general information about the restricted procedure.

This section will describe the timeline and the different steps of an international restricted tender procedure for a service contract.

3.4.1. Publicity

To ensure the widest possible participation in competitive tendering and the requisite transparency, the contracting authority must publish a contract notice and additional information about the contract notice for all service contracts of EUR 300 000 or more. The publication must be done in accordance with the guidelines on publication described in Annex a11e. These publication requirements do not apply to request for specific contracts under a framework contract.

3.4.1.1. Publication of prior information notices[21]

It is recommended, but not compulsory, to publish a prior information notice setting out the specific characteristics of the planned tender procedure, at least 30 days — but not more than 12 months — before the publication of the contract notice in the Official Journal of European Union and on the F&T Portal.

The purpose of the prior information notice is to provide greater publicity for calls for tenders. It enables economic operators to make preparations (for example, to gather the necessary documentation and plan how to free up sufficient resources) so that they are ready to produce a tender as soon as the contract notice is published. It is especially advisable to use a prior information notice in the case of big projects that, by nature, would probably entail joint tendering: international projects to be implemented in several countries, complex multidisciplinary projects, large-scale contracts, etc.

Prior information notices have an added value when there is a sufficient period between its publication and the planned publication of the contract notice. If due to time constraints a prior information notice can only be published shortly before the contract notice (e.g. 30 days), an alternative option would be to provide tenderers with a longer submission deadline in the contract notice and not to publish a prior information notice. Providing a longer submission deadline would then provide economic operators with more time to prepare their offers.

The prior information notice must briefly state the subject, content and value of the contracts in question. Publishing a prior information notice does not oblige the contracting authority to award the contracts proposed, and economic operators are not expected to submit requests to participate at this stage. No financing decision or budgetary commitment is needed at this stage.

3.4.1.2. Publication of contract notices

A minimum of 30 days after publication of the prior information notice, if any, a contract notice and the additional information about the contract notice (Annex a5f) must be published in the Official Journal of the European Union, on the F&T Portal (see publication guidelines in Annex a11e) and in any other appropriate media.

The contract notice and the additional information about the contract notice must provide candidates with the information they need to determine their capacity to fulfil the contract in question.

The selection criteria (see Section 2.6.11.) set out in the contract notice and in the additional information about the contract notice must be:

• drafted clearly without any ambiguity;

• easy to check on the basis of the information submitted using the standard request to participate form (see Annex b3);

• devised to allow a clear YES/NO assessment to be made as to whether or not the candidate satisfies a particular selection criterion;

• possible to prove by the candidate.

The presentation of the selection criteria in template of the additional information about the contract notice should be followed, and can be adapted to the nature, cost and complexity of the tendered contract where the template allows so.

The contract notice, and the additional information about the contract notice, must be clear enough to save candidates from requesting clarification or additional information during the procedure.

Candidates may, however, submit questions should they need to. Any request for clarification must be submitted at the latest 21 days before the submission deadline. The contracting authority has no obligation to provide clarification on questions received after this date.

If the contracting authority, either on its own initiative or in response to a request for clarification from a candidate, amends information in the contract notice or in the additional information about the contract notice, it must submit a change notice (formerly referred to as “corrigendum”) stating the changes made. This change notice will also be published on the Funding and Tenders Portal and on the Official Journal of the European Union.

The change notice (or change to the additional information to the contract notice) must be published no later than 8 days before the original submission deadline. Notices are published the next working day (Publications Office, Luxemburg) only when sent before 15h00 (CET) of the previous working day.

The change notice may extend the deadline to allow candidates to take the changes into account. Please note that with a clarification, the contracting authority cannot give an opinion on the assessment of the request to participate.

If information in the contract notice/additional information about the contract notice needs to be clarified but does not require an amendment of the contract notice/additional information about the contract notice, the clarification will only be published on the Funding and Tenders Portal, at the latest 8 days before the submission deadline. Clarifications are published immediately without publication delay.

3.4.2. Evaluation of the requests to participate

See Section 2.9. on the evaluation committee.

The first meeting of the (opening or evaluation) committee is held before the actual evaluation starts. The chairperson presents the purpose of the evaluation and explains the procedures to be followed by the committee.

Candidates are shortlisted by the evaluation committee.

The selection procedure involves:

• compliance with formal submission requirements (see box below);

• drawing up a long list (see template in Annex b4) summarising all the requests to participate received;

• eliminating requests to participate that are inadmissible due to being submitted by candidates not complying with the rule of nationality (see Section 2.3.) or by candidates falling into one of the exclusion situations described in Section 2.4.2.2 or detected in EU Restrictive measures lists [22] (Section 2.4.1.). This is assessed, inter alia, on the basis of their declaration on honour;

• applying the selection criteria exactly as published.

For the supply of supporting documents in relation to the exclusion and selection criteria, see Sections 2.4.2.3. and 2.6.11.

After examining the requests to participate, the evaluation committee shortlists the candidates meeting the selection criteria and complying with the submission requirements.

The shortlist comprises between four and eight candidates.

If the number of eligible candidates meeting the selection criteria is greater than eight, the additional criteria published in the additional information to the contract notice are applied to reduce the number to the eight best candidates. For further details, please see Section 2.6.11. (selection criteria).

If the number of eligible candidates meeting the selection criteria is less than the minimum of four, the contracting authority may invite only those candidates who satisfy the selection criteria to submit a tender, or even the only candidate satisfying the selection criteria. Before accepting a reduced competition of less than four candidates, an event to be reported or a prior authorisation is required depending on the case, as stated in the text box below. Less than the minimum of four candidates may only be invited if all of the following elements are satisfactory:

• sufficient timing has been given for the publication;

• the scope of the services is in line with the budget;

• the selection criteria used and were clear and non-discriminatory and not beyond the scope of the contract satisfactory.

This must be justified in the shortlist report.

The shortlisting process and the final shortlist itself must be fully documented in a shortlist report (see template in Annex b5).

Before the shortlist is approved by the evaluation committee, the contracting authority must check that no candidate (including partners) is in an exclusion situation in the early detection and exclusion system or subject to European Union restrictive measures [23] (see Section 2.4.1.).

The shortlist report is signed by the chairperson, the secretary and all evaluators.

The contracting authority shall notify all candidates whose requests to participate are not shortlisted and of the grounds on which the decision was taken (see Annex b7). If non-shortlisted candidates request further information, they may be given any information that is not confidential, e.g. reasons why a reference does not meet the technical selection criterion, as this may help them to be successful in future tenders.

Shortlisted candidates will receive a letter of invitation to tender and the tender dossier (see Section 3.4.3.).

3.4.3. The tender dossier

3.4.3.1. Drafting

See Section 2.8. for general guidelines on drafting terms of reference.

The contracting authority is responsible for drawing up the tender documents. Tender documents must be carefully drafted, to ensure that the contract is complete, and that the procurement procedure is carried out correctly.

These documents must contain all the provisions and information that candidates need to submit a tender: the procedures to follow, the documents to provide, cases of non-compliance, award criteria and their weightings, etc.

Where the European Commission is the contracting authority, the standard practice is to consult and obtain the approval of the partner country and, where appropriate, of other parties involved, on the terms of reference or technical specifications, in order to strengthen both ownership and quality.

Given the technical complexity of many contracts, the preparation of the tender dossier may require the assistance of one or more external technical specialist(s). Each specialist must sign a declaration of objectivity and confidentiality (see Annex a3).

3.4.3.2. Content

The tender dossier consists of (see Annex b8):

• Instructions to tenderers.

• Draft contract agreement: main and special conditions with annexes.

• Other information (administrative compliance grid, evaluation grid).

• Tender submission form.

The tender dossier must clearly state that the tender must be made with firm, non-revisable prices.

According to the applicable rules, a pre-financing guarantee could be required or not. If required, this must be mentioned in the draft special conditions.

Please find below more background information regarding the following requirements listed in the tender specifications:

Key experts (fee-based contracts)

The minimum requirements for the experts are not selection criteria, but award criteria. Therefore, the purpose of the minimum criteria is not a YES/NO assessment. Instead, the purpose is to evaluate the technical quality of the tenders.

The number of key experts may vary from 1 key expert, which will be typically the team leader, up to a maximum of 4 key experts. The skills required may include professional and technical skills, team management skills, communication and facilitation skills, and/or language skills.

Any minimum requirement should be sufficiently clear, or explained, to avoid any ambiguity and to guarantee a fair technical evaluation. The scores in the evaluation grid should be set accordingly. The precise time inputs of the experts shall be left to the discretion of tenderers as part of their technical proposal. However, it may be useful to identify a minimum time input for the contribution of key experts.

When deciding on the requirements, equal access should be guaranteed and no unjustified obstacles to competitive tendering should be created. The requirements should be clear and non-discriminatory. For example, ‘local expertise’ may be required but not a ‘local expert’ (i.e. a national/resident of a country). Participation in tendering procedures must be open on equal terms to all eligible persons.

The criteria should be as broad as possible taking into consideration the real minimum requirements and the availability of such experts on the market. If an expert does not meet the minimum requirements, he/she must be rejected on the basis of non-compliance. This means that the entire tender is rejected and shall not be evaluated further. Therefore, the more demanding and challenging the minimum requirements are, the fewer experts will meet the minimum requirements and the result is that competition will be restricted.

Skills are the specific abilities a person has learned through life and work. Qualifications are the skills that have been taught to a person. Qualifications are gained through studies or training, and can be assessed through formal documents like degrees or certificates. Therefore, the skills of an expert can therefore be demonstrated through formal qualifications and/or professional experience. As a consequence, the minimum requirements should always provide the equivalence between qualifications and skills obtained through experience.

Non-key experts (fee-based contracts)

Non-key experts are experts who are not defined as instrumental in the terms of reference. Therefore, no expert’s profile (Annex IV) should be submitted for non-key experts. The tenderer will have to demonstrate in their offer that they have access to experts fulfilling the minimum requirements. During the contract implementation, the contractor must select and hire non-key experts. The selected experts must be subject to approval by the contracting authority before the start of their implementation of tasks.

The terms of reference shall provide a profile of the non-key experts that are required for the implementation of the contract. However, the terms of reference shall not define a minimum time input for the contribution of non-key experts.

Incidental expenditure (fee-based contracts)

The fee rates for all experts must include the remuneration paid to the experts and all the administrative costs of employing the relevant experts (see Section 3.2.2.). Moreover, the contractor must ensure that experts are adequately supported and equipped. In particular, it must ensure that there is sufficient administrative, secretarial and interpreting provision to enable experts to concentrate on their primary responsibilities. In addition, no equipment is to be purchased on behalf of the contracting authority/partner country as part of a service contract or transferred to the contracting authority/partner country at the end of a service contract. Any equipment related to a service contract that is to be acquired by the partner country must be purchased by means of a separate supply tender procedure.

As a consequence, incidental expenditure is exceptional and cannot be used for costs that should be covered by the contractor as part of its fee rates. The general rule is that the items included under the incidental expenditures should be kept at a minimum. The incidental expenditure that is allowed should explicitly be described in the terms of reference. The amount given in the terms of reference as the provision for incidental expenditure is simply an upper limit on the incidental costs. It need not be estimated exactly, and it does not matter that the actual costs are more or less than the estimated amounts of the components, within a reasonable margin of error.

No detailed calculation of the provision for incidental expenditure must appear anywhere in the terms of reference or in the tender dossier, otherwise the amounts identified become legally binding.

The provision for incidental expenditure, including provisions for expenditure verification are excluded from the comparison of the financial offers as they are specified in the tender dossier (see Section 3.4.10.3 on the financial evaluation).

All incidental expenditure incurred in the course of the contract as required by the terms of reference is to be invoiced at actual cost (per-diems are fixed flat rates and are considered actual costs). The reimbursement of actual costs shall include costs related to the payment of an incidental expenditure, such as bank charges.

Travel costs in case of missions are recurrent incidental expenditure in external action service contracts. Therefore, the terms of reference should indicate the delivery mode, which is either on the place of performance or home based, and the mission location(s). On delivery mode, travel and per diems see Section 2.5.5.

Reports

The subject and frequency of the reports must be specified in the terms of reference.

For fee-based contracts with a duration of more than 12 months, interim reports must be provided every 6 months. Every report must have a narrative section and a financial section. The financial section must contain detailed information on the time that experts have spent on the contract, on incidental expenditure, and on the provision for expenditure verification. The terms of reference shall describe the content of report and the expected time of submission of each report.

For global price contracts with duration of more than 24 months for which interim payments are foreseen annually, interim reports must accompany the request for payment. These reports must indicate that specific output that has been achieved, and they must be approved by the contracting authority before the payment is made. If the contract has a duration of less than 24 months, with contracts that can be approved independently by the contracting authority, payments shall be done based on the outputs achieved. The terms of reference should define the outputs that must be achieved, and the implementation period for each of these outputs. Therefore, the financial offer submitted by the tenderer shall include a price breakdown based on the expected output listed in the terms of reference.

3.4.4. Award criteria

See Section 2.6.11.4. on award criteria and 2.6.11.5 on the distinction between selection and award criteria.

The contract award criteria serve to identify the best quality-price ratio. These criteria cover both the technical quality and price of the tender.

The technical criteria allow the quality of technical tenders to be assessed. The two types of technical criteria are:

• Organisation and methodology;

• Profiles of the key experts proposed (fee-based contracts only).

The technical criteria may be divided into sub-criteria. The methodology, for example, may be examined in the light of the terms of reference, the optimum use of the technical and professional resources available in the partner country, the work schedule, the appropriateness of the resources to the tasks, the support proposed for experts in the field, the involvement of the consortium members, etc. Experts’ profiles may be awarded points for such criteria as qualifications and skills, general, and professional experience.

The tender evaluation committee is required to ensure that any methodology submitted by the tenderer complies with the requirements of the terms of reference. The methodology may add to the requirements of the terms of reference but must in no way divert from them.

Each criterion is allotted a number of points out of 100 distributed between the different sub-criteria. Their respective weightings depend on the nature of the services required and are determined on a case-by-case basis in the tender dossier as indicated in the evaluation grid.

The points must be related as closely as possible to the terms of reference describing the services to be provided and refer to parameters that are easy to identify in the tenders and, if possible, quantifiable.

The tender dossier must contain full details of the technical evaluation grid, with its criteria and sub-criteria and their weightings. The evaluation grid cannot be modified after the deadline for informing potential tenderers of any clarifications.

3.4.5. Additional information before submission of tenders

The tender dossier must be clear enough to save shortlisted candidates from requesting additional information during the procedure.

Shortlisted candidates may submit questions no later than 21 days before the deadline for submission of tenders. The contracting authority must reply to all tenderers’ questions no later than 8 days before the deadline for submission of tenders. The contracting authority has no obligation to provide clarification on questions received after the date referred above.

Minor changes to the tender dossier must also be published/communicated in the same way. No prior opinion on the assessment of the tender can be given by the contracting authority in reply to a question or a request for clarification.

If the technical content of the tender is complex, the contracting authority may hold an information meeting and/or site visit. This meeting must be announced in the tender dossier and must take place no later than 21 days before the expiry of the deadline for submission of tenders. All costs of attending such a meeting/visit must be met by the tenderers. Individual visits by companies during the tender period cannot be organised by the contracting authority taking into account transparency and equal treatment of the tenderers. Although they are not compulsory, these information meetings are encouraged since they have proven to be an efficient way to clarify many questions related to the tender dossier. Any presentation/documentation to be delivered in the information meeting, as well as the outcome and the minutes, must also be shared with all shortlisted candidates 8 days before the expiry of the deadline for the submission of tenders.

3.4.6. Deadline for submission of tenders

Tenders must be submitted to the contracting authority no later than the date and time referred to in the invitation to tender. The deadline for submission must be long enough to guarantee the quality of tenders and so permit truly competitive tendering. Experience shows that too short a deadline prevents candidates from tendering or causes them to submit incomplete or ill-prepared tenders. Any tender received from an economic operator not invited to tender will be rejected.

3.4.7. Period of validity

See Section 2.9.5.

3.4.8. Submission of tenders

3.4.9. The Evaluation Committee

For the evaluation committee’s composition, impartiality and confidentiality, responsibilities and the timetable, see Section 2.9.

3.4.10. Stages in the evaluation process

3.4.10.1. Receipt and registration of tenders

3.4.10.2. Tender opening session

Part 1: Preparatory phase

The first meeting of the evaluation committee is held before the actual evaluation starts. The tender dossier should have been circulated in advance to the members of the evaluation committee. The chairperson presents the purpose of the tender and explains the procedures to be followed by the evaluation committee, including the evaluation grid, award criteria and weightings specified in the tender dossier.

Part 2: Tender opening

Part 3: Compliance with formal submission requirements

At this stage the evaluation committee must decide whether or not tenders comply with the formal submission requirements. The chairperson must check that no member of the evaluation committee has a potential conflict of interest with any of the tenderers (on the basis of the shortlist, the tenders received, consortium members and any identified subcontractor). See also Sections 2.9.2. and 2.9.3.

3.4.10.3. Evaluation of offers

If requested by a majority of the evaluation committee voting members, the chairperson may write to tenderers whose submissions require clarification, offering them the chance to reply within a reasonable time limit to be fixed by the evaluation committee.

It is important to remind that financial offers remain sealed/unopened.

Part 1: Administrative compliance

The evaluation committee checks that the tenders comply with the instructions given in the tender dossier through the administrative compliance grid (see Annex b8l). Any major formal errors or major restrictions affecting performance of the contract or distorting competition result in the rejection or exclusion of the related tender.

The documentary proof for exclusion and selection criteria as well as for the key experts are not verified during this phase of the evaluation.

Key experts:

The evaluation must check at this stage that any of the key experts identified in the technical offer is not subject to EU Restrictive measures (Section 2.4.1.).

Nationality of subcontractors:

The evaluation committee must check at this stage that any subcontractors identified in the technical offers satisfy the nationality rule (Section 2.3.1.) or are not subject to EU Restrictive measures (Section 2.4.1.).

In this regard, it has to be stressed that according to Article 4.2 of the General Conditions for Service contracts where experts are not directly contracted or employed by the contractor but through a third party, the latter is a subcontractor. The qualification as a subcontractor depends on the existence or not of a legal person acting as an intermediary between the expert and the tenderer/contractor. In the legislation of some Member states, an individual company (also referred to as ‘one person company’, or ‘sole proprietorship’) can be set up that has no distinct legal personality from that of its sole founder. In this case, such company, not being distinct from the natural person who established it, is not a sub-contractor.

However, where the expert and the tenderer/contractor do not have a direct relationship, and the expert is made available through an intermediary, i.e. another company, including cases where the expert owns (or co-owns) a company (e.g. in France an entreprise unipersonnelle or in Belgium a SPRL Unipersonnelle which have a distinct legal personality), the relationship between the intermediary and the tenderer/contractor is subcontracting.

Part 2: Technical evaluation

The evaluation committee then examines the technical offers, while the financial offers remain sealed/unopened. Under no circumstances may the evaluation committee or its members change the technical evaluation grid communicated to the tenderers in the tender dossier.

Process followed by the evaluation committee

When evaluating technical offers, each member gives each offer a technical score out of a maximum of 100 points in accordance with the technical evaluation grid (setting out the technical criteria, sub-criteria and weightings) laid down in the tender dossier (see Section 3.4.4.). In practice, it is recommended that tenders be given points for a given criterion one after another, rather than scoring each tender for all criteria before moving on to the next tender.

Each evaluator must make an initial assessment of the technical offers and award scores on each sub-criterion according to his/her assessment. To this end, the evaluators should follow the instructions in the evaluator’s grid (Annex b12) and the guidance provided on the correlation between scores and qualitative assessment of criteria. All evaluators should independently from each other carry out the evaluation of the technical offers in a consistent manner by applying the same methodology, interpretation and understanding. This does not necessarily mean that the scores of two different evaluators are expected to be identical, but rather that each evaluator applies the same standards and provides a well substantiated opinion supporting his/her individual scores.

Each evaluator completes an evaluator’s grid (see Annex b12) to record his/her assessment of each technical offer to establish a general appreciation of strengths and weaknesses of the individual technical offers.

On completion of the technical evaluation, the points given by each member are compared at the evaluation committee’s session. Besides giving a numerical score, a member must explain the reasons for his/her assessment and defend his/her scores before the evaluation committee. In case of major discrepancies, full justification has to be provided by dissenting members. Once discussed, each evaluator finalises his/her evaluator’s grid (see Annex b12) of the technical offers and signs it before handing it over to the secretary of the evaluation committee.

The secretary then drafts a summary of the comments of the evaluation committee members. The secretary also calculates the average technical score of each technical offer, which is the arithmetical average of the technical scores given by each member for a given offer. For each tender, this information is compiled in the evaluation grid (Annex b8m). The strengths and weaknesses in the evaluation grid must reflect those commonly agreed by the committee amongst all those pointed out by the evaluators in their individual evaluator’s grids. The main strengths and weaknesses commonly agreed by the evaluators for each tender will be included in the evaluation report (Annex b11e).

Before the validity of the tenders expires but after the award decision is taken, the contracting authority notifies the successful tenderer and the unsuccessful tenderer (see Section 2.10.1.1.). These notifications provide details about the grounds for the decision to award or not to award the contract. Moreover, unsuccessful tenderers who are not rejected can make a request in writing to be informed about the name of the tenderers to whom the contract is awarded, the characteristics and relative advantages of the successful tender and the total contract value. For these raisons, the strengths and weaknesses of each tender should be drafted in a clear and unambiguous manner.

The tenders minimum threshold to be considered technically acceptable and qualify for the financial evaluation is the following:

• an overall total score of at least 75 points

• the key experts fulfil the minimum requirements for each criterion (fee-based contracts only).

If no tender achieves 75 points or more, of if none of the key experts fulfils the minimum requirements for each criterion, the tender procedure is cancelled.

Out of the tenders reaching the 75-point threshold, the weighted technical score of each offer is calculated using the following formula:

Weighted technical score = (average technical score of the offer in question/average technical score of the best technical offer) x 100.

The weighted technical score of the best technical offer must always be 100 points.

The specimen tender evaluation summary below provides a practical example of the process followed by the evaluation committee in scoring tenders:

Part 1: Technical evaluation

Evaluation of experts (fee-based contracts)

Civil servants and other staff of the public administration of the partner country shall only be approved to work as experts if well justified. The justification should be submitted with the tender and shall include information on the added value the expert will brin, on any potential interference or conflict of interest of the proposed expert in his/her function as expert and his/her present or previous functions working as civil servant, as well as proof that the expert is seconded or on personal leave.

In the potential case of members of staff of the European Union delegations (local agents) proposed as experts by tenderers, the European Commission must make sure that the contract with the EU institution is officially terminated before the expert starts to work on an EU financed project under a contract with an external organisation/company (see Section 2.5.4.).

Key-experts should be scored against the information provided in the key expert’s profile (Annex IV). The information provided in the key expert’s profile should match the evaluation criteria for the key expert mentioned in the terms of reference. Other information will not be considered.

The tenderers must provide documentary proof for the key experts proposed. The documentary proof includes copies of the diplomas referred to in the key expert’s profiles and employers’ certificates or references proving the professional experience stated in the key expert’s profiles. If missing proofs are requested, as a clarification of the technical offer, it should only be for the relevant experience and diplomas which are among the requirements in the terms of reference. Only diplomas and experience supported by documentary proof should be taken into account.

The key experts must fulfil the minimum requirements for all the criteria. If any of the key experts does not fulfil the minimum requirements in any criterion after the revised assessment (that takes place after the interviews, if any) the offer shall not qualify for the technical evaluation.

The evaluators should as a standard practice verify the information provided in the qualifications and skills tab, and the experience tab, of the key expert’s profile, and the corresponding supporting documents. For this purpose, the contracting authority reserves the right to contact the reference persons mentioned in the key expert’s profile. The evaluation committee must ensure at all times an objective evaluation of the tenders and the principles of equality of treatment and non-discrimination must be respected. For that reason, these verifications will only be used to confirm the accuracy of the information provided by the expert relating to his past experience and will not be used to introduce subjective elements in the evaluation of the experts/tender.

When as a consequence of these verifications, it is proven that the key expert’s profiles do not reflect reality and hence these may affect the evaluation of the key expert by the committee, e.g. by deducting points for the concerned award crite­rion, evidence that these checks have been carried out and its result must be duly substantiated (e.g. minutes of phone conversations and exchange of letters or e-mails; evaluations in database) and reflected in the report of the evaluation committee.

For the non-key experts the aspect to be considered is whether the number of working days estimated for each month for each type of expert proposed in the organisation and methodology is sufficient for the requirements of the terms of reference to be achieved. This is judged on the basis of the profiles identified in the terms of reference. The estimated working days of key experts will be scored in the evaluation grid in the sub-criterion “Timetable of activities” under “organisation and methodology”. Moreover, the tenderers will have to demonstrate in their offers that they have access to experts fulfilling the requirements.

For fee-based contracts, the precise time input of the key expert is left to the discretion of the tenderers as it has to be linked with the methodology provided. The methodology should include the time needed for each key expert to achieve the required outputs of the project.

For global price contracts, no minimum requirements for experts are defined and therefore experts will not be evaluated (see Section 3.2.1. on global price contracts).

Interviews of experts (fee-based contracts)

The evaluation committee may interview the key experts proposed in the technically compliant tenders after having written provisional conclusions but before concluding the technical evaluation.

Interviews should be standard practice whenever the expert proposed has no relevant experience of EU projects, as evidenced by the expert’s profile, and when this experience is a key element for the position and for the project implementation. It is recommended that tenderers that have scored close to the technical threshold also be invited for interview. When the key expert has experience on EU projects, verification/checks within the European Commission may be more appropriate. Interviews must be well prepared when conducted and shall be based on the evaluation criteria. The interview reports shall be included in the tender dossier. Interviews are usually not conducted in case of a global price contract.

The preferred method of conducting interviews is by videoconference or telephone. Exceptionally and only if duly justified, given the cost both to tenderers and the contracting authority, the expert may be interviewed in person.

Any interviews should be held by the evaluation committee at intervals close enough to allow the experts to be compared. Interviews must follow a standard format agreed beforehand by the committee with questions drafted and applied to all experts or teams called to interview. The indicative timetable for these interviews must be given in the tender dossier. Tenderers must be given at least 10 days’ advance notice of the date and time of the interview. If a proposed key expert is prevented from attending an interview by force majeure, a mutually convenient alternative date/time is arranged. If a proposed key expert is unable to attend on this second occasion, its tender may be eliminated.

On completion of the interviews, and without modifying either the composition or the weighting of the criteria laid down in the technical evaluation grid, the evaluation committee decides whether it is necessary to adjust the scores of the experts who have been interviewed. Any adjustments must be substantiated. The procedure must be recorded in the evaluation report.

Availability of experts (fee-based contracts)

Where the tender procedure involves the provision of experts, the tender is expected to provide the experts specified in the tender.

The evaluation committee may recommend that a tenderer be rejected from the tender procedure, and its offer considered irregular, if the tenderer and/or proposed experts deliberately conceal the fact that all or some of the team proposed in their tender are unavailable from the date specified in the tender dossier for the start of the assignment, or if it can be established that this tenderer has proposed names of experts which in fact had not given their consent to participate. This may lead to their exclusion from other contracts funded by the European Union (see Section 2.4.2.).

See also Section 3.4.10.5. on the confirmation of the availability of key experts.

Support facilities

The tenderer shall give a description of the support facilities, including back-stopping, that they will provide to their team of experts during the implementation of the contract.

The description of the support facilities should include a list of staff, units, capacity of permanent staff regularly intervening as experts on similar projects, provision of expertise in the region/country of origin as well as partner countries, organisational structure, etc. which are supposed to ensure that function, as well as the available quality systems and knowledge capitalisation methods and tools, within the respective members of the consortium.

A permanent capacity of staff regularly intervening as experts on similar projects should be considered as an advantage for providing support to experts on the ground. By contrast, a service contractor which is exclusively employing free-lance experts (i.e. non-permanent) should be considered to have a less robust backstopping capacity.

If the tenderer is providing expertise in its region/country of origin as well as in partner countries it may be considered as an ability to disseminate innovation.

If the tenderer has design, research, laboratory or even innovation function, or whether it collaborates with academic research centre, it may be considered an advantage.

Consortium members and SME’s

The tender shall include a description of the input from each member of the consortium and the distribution and interaction of tasks and responsibilities between them. Furthermore, the involvement of all members of the consortium will be considered added value in the tender evaluation.

The involvement of Small and medium-sized enterprises (SME’s), or economic operators registered in the partner country where the contract will be implemented, will be considered an added value in the tender evaluation. SME’s employ fewer than 250 persons and have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR 43 million.

Part 3: Evaluation of financial offers

Upon completion of the technical evaluation, the financial offers that are considered technically acceptable, are opened.

The evaluation committee has to ensure that the financial offer satisfies all formal requirements.

A financial offer not meeting these requirements may be considered irregular and be rejected. Any rejection on these grounds must be fully justified in the evaluation report.

The evaluation committee checks that the financial offers contain no obvious arithmetical errors. Any obvious arithmetical errors are corrected without penalty to the tenderer.

The total contract value consists of the following:

• Fee-based contracts: the fees, lumps (if applicable) and the provision for incidental expenditure, including provisions for expenditure verification [25].

• Global price contracts: the global price only, with, if required, a breakdown of the global price.

Only the price without VAT/indirect taxes should be taken into consideration for the financial evaluation. This total contract value is compared with the maximum budget available for the contract. Tenders exceeding the maximum budget allocated for the contract are considered unacceptable and are rejected.

The evaluation committee then proceeds with:

• Fee based contracts: the financial comparison of the fees and lump sums between the different financial offers. The provision for incidental expenditure, including provisions for expenditure verification are excluded from the comparison of the financial offers as they are specified in the tender dossier.

• Global price contracts: the financial comparison of the global price offers.

For abnormally low tenders, please refer to Section 2.6.10.1.

The tender with:

• Fee based contracts:

• the lowest total fees + lump sums receives 100 points. The others are awarded points by means of the following formula:

• Financial score = (lowest total fees + lump sums / total fees + lump sums of the tender being considered) x 100.

• Global price contracts:

• the lowest global price receives 100 points. The others are awarded points by means of the following formula:

• Financial score = (lowest global price/ global price of the tender being considered) x 100.

The specimen tender evaluation summary below provides a practical example of the process followed by the evaluation committee in the financial evaluation of a fee-based contract:

Part 2: Financial evaluation*

3.4.10.4. The evaluation committee preliminary conclusions

The best value for money is established by weighting technical quality against price on an 80/20 basis. This is done by multiplying:

• the scores awarded to the technical offers by 0.80

• the scores awarded to the financial offers by 0.20.

The specimen tender evaluation summary below provides a practical example of the process followed by the evaluation committee in weighting technical and financial scores:

Part 3: Composite evaluation

The resulting, weighted, technical and financial scores are then added together to determine the tender with the highest score, i.e. the best quality-price ratio. It is essential to make the calculations strictly according to the above instructions.

The evaluation committee’s shall identify the presumed successful tender which is the tender achieving the highest overall score.

3.4.10.5. Verifications with the presumed successful tenderer

The contracting authority shall request the presumed successful tender (Annex b11c) to provide within 7 days from the date of the notification [26] the documentary evidence on exclusion criteria; documentary evidence on selection criteria; and where applicable, confirmation of key experts; confirmation of auditor/practitioner for the provision of the expenditure verification and the original signed Declaration on honour on exclusion and selection criteria [27].

Verification of documentary evidence (exclusion and selection criteria)

If upon verification, the evaluation committee considers the submitted evidence not admissible, it will send the notice in Annex b11c to the next best ranked tenderer, the newly successful tenderer.

Confirmation of the auditor/practitioner (where applicable)

The auditor/practitioner shall meet at least one of the conditions listed in Section 4 of the Terms of Reference for expenditure verification (Annex b8k1).

Confirmation of availability of key experts and proposed replacements

The contracting authority requests the presumed successful tenderer to confirm the availability of the key experts. As declared in the statement of exclusivity and availability, should a key expert receive a confirmed engagement he/she must accept the first engagement that is offered chronologically [28].

Should any of the key experts be unavailable, the presumed successful tenderer will be allowed to propose a replacement expert. This may for example happen in case the expert has been successful in another tender procedure. The presumed successful tenderer must give due justification for the change of expert but acceptance by the contracting authority will not be limited to specific cases. The contracting authority will verify that the replacement expert’s total score in relation to the evaluation criteria is at minimum the same as the scores given in the evaluation to the expert he/she is proposed to replace.

The contracting authority may consult the original evaluation committee and may interview one or more replacement experts by videoconference or telephone. It must be emphasised that the minimum requirements for each evaluation criteria must be met by the replacement expert, who is bound to submit a statement of exclusivity and availability.

The maximum time limit for proposing a replacement should be within 7 days following the date of the notification. Only one time-period to propose replacements will be offered to the successful tenderer, in which they may, if possible, propose up to three candidates for replacement of the same position. The replacement expert cannot be one presented in a bid from another tenderer participating in the same tender. The evaluation committee may choose between these proposed candidates, and the evaluation report shall motivate this choice.

If no replacement expert is proposed or if the proposed replacement expert does not equal or exceed the total scores of the originally proposed expert, the evaluation committee will send the notice in Annex b11c to the next best ranked tenderer, the newly successful tenderer.

Summary of scenarios:

• The key experts are available.

• The presumed successful tenderer confirms that all their key experts are available (and the other requested information is acceptable and the partner country agrees, see below), the evaluation committee finalises its evaluation report.

• One or more of the key experts are not available but replacements are acceptable.

• The presumed successful tenderer confirms that one or more of their key experts are not available. They propose replacement experts within the time limit, submitting the necessary documentary evidence (as requested for the original experts in the tender) and justification for unavailability. The evaluation committee will verify that the replacement fulfils the minimum requirements in the terms of reference and that he/she would have scored minimum the same as the originally proposed expert (total scores). If several experts are proposed for the same position the evaluation committee may choose between the experts. Written justification of the choice is made by the evaluation committee and is part of the evaluation report.

• One or more of the key experts are not available and replacements are NOT acceptable (or not proposed within the seven-day time-limit).

• If none of the replacements can be accepted (minimum requirements in the terms of reference not fulfilled and/or the expert scores less than the original proposed expert) or no replacements are proposed within the time-limit, the evaluation committee will send the notice in Annex b11c to the next best ranked tenderer, the newly successful tenderer. The contracting authority will send a similar notice, if necessary, following the same procedure above procedure to the next best ranked tenderer.

The evaluation committee shall ensure that there is no record of the presumed successful tenderer, including consortium members, subcontractors or capacity providing entities if any, in exclusion situation in the EDES nor in the lists of EU restrictive measures [29] (see Sections 2.4.2.1. and 2.4.1.). The evaluation committee shall verify that key experts are neither subject to EU restrictive measures.

Agreement by the partner country

Where the European Commission is the contracting authority and a representation of the partner country has not been invited to the evaluation committee, the relevant service of the European Union must notify the partner country, if appropriate [30], of the name of the presumed successful tenderer and ask to approve the confirmed key experts proposed before the contract is awarded.

The representative of the partner country must submit duly substantiated and justified objections to reject an expert (e.g. the expert is persona non grata, there are public order issues, or information unknown to the evaluation committee has been disclosed which could have affected the outcome of the evaluation). If the evaluation committee accepts the rejection of the expert, the presumed successful tender is allowed to propose a replacement (following the paragraphs above). If this procedure fails, the evaluation committee will send the notice in Annex b11c to the next best ranked tenderer, the newly successful tenderer. In this case, the representative of the partner country again has the right to approve the experts.

If there is no next best ranked tender or if the experts are rejected again, the evaluation committee shall recommend to cancel the tender. A request for the approval of key experts is not a request for approval of the European Commission’s evaluation. The representative of the partner country may only ask for experts to be replaced if duly substantiated and justified objections are given in writing.

3.4.10.6. Evaluation Committee recommendation

The tender evaluation must be concluded step by step to reach a conclusion. The principle behind requesting separately the technical and financial offers is to ensure that the evaluators do not know the financial offer and thus cannot be influenced by the price when assessing the technical quality of a tender. Consequently, the technical proposals cannot be re-scored once the financial offers have been opened, except if the contracting authority rejects the proposal of the evaluation report (due to a mistake in the evaluation) and ask the evaluation committee to convene again, or on the basis of examination of information received in the standstill period.

The entire evaluation procedure, including notification of the successful tenderer, must be completed while the tenders are still valid. It is important to bear in mind that the successful tenderer might be unable to maintain its tender if the evaluation procedure takes too long. Please see Section 2.9.5.

The evaluation committee finalises the evaluation and makes a recommendation to the contracting authority:

• Award the contract to the tenderer which has submitted a tender:

• that complies with the formal requirements and the eligibility rules;

• whose total budget is within the maximum budget available for the project;

• that meets the minimum technical requirements specified in the tender dossier and experts are confirmed to be available;

• that provides the best value for money (satisfying all of the above conditions);

• where no concerned economic operator is in an exclusion situation in the EDES nor in the lists of EU restrictive measures.

• Cancel the tender procedure (see Section 2.6.13.).

The contracting authority will then take its decision (see Section 3.4.11. for cancellation and 3.4.12 for award).

Subject to the contracting authority’s legislation on access to documents, the entire tender procedure is confidential during the evaluation process. The evaluation committee’s decisions are collective and its deliberations must remain secret. The committee members and any observers are bound to secrecy. If its law conflicts with the confidentiality required, the contracting authority must obtain prior authorisation from the European Commission before disclosing any information.

The evaluation report, in particular, is for official use only and may be divulged neither to tenderers nor to any party outside the authorised services of the contracting authority, the European Commission and the supervisory authorities (e.g. the European Court of Auditors). Extracts from the evaluation report may however be disclosed (see Section 2.12.1.).

3.4.11. Cancelling the tender procedure

See Section 2.6.13 and Annex b11b. A cancellation notice (non award notice) shall be published.

3.4.12. Award decision and signature of the contract

3.4.12.1. Award decision

See Section 2.10.1. See format of letter in Annex b13a) for successful tenderer and in Annex b13c) for unsuccessful tenderers.

The notification letter (Annexes b13a) to the successful tenderer implies that the validity of the successful tender is automatically extended for a period of 60 days irrespective of the date of notification of the award of the contract. This period can be further extended by mutual agreement between the parties.

At the same time the unsuccessful tenderers are informed that their offers could not be retained, but the validity of their tenders is maintained until the end of the validity period, and without prejudice to the possibility to extend such period in the cases explained in Section 2.9.5.

During the tender validity period for the unsuccessful tenderers, the contracting authority reserves the right to send a notification of award to the next best ranked tenderer. The validity of the next best ranked tender will be extended by 60 days, upon notification of the new award decision. This 60-day period is added to the validity period irrespective of the date of notification, which should however be within the validity period.

3.4.12.2. Standstill period

See Section 2.10.1.1.

3.4.12.3. Contract preparation and signature

See Section 2.10.2. The proposed contract must follow Annex b8.

The contract can only be signed upon expiry of the standstill period. Please see Section 2.10.1.1.

The contract takes effect on the date of the later signature. The contract cannot cover earlier services or enter into force before this date.

3.4.12.4. Publicising the award of the contract

An award notice shall be published once the contract has been signed. See Section 2.10.4.1.

In addition the contracting authority must record all statistical information concerning the procurement procedure including the contract value, the names of the other tenderers and the successful tenderer.

3.5. Procedures with no publication requirements

3.5.1. Specific contracts of framework contracts

For a description of different types of framework contracts and their use, see Section 2.6.5.

Specific contracts shall be awarded in accordance with the terms of the framework contract. This means that each framework contract shall specify a method for the award of specific contracts. The contract documents might be complemented by framework contract specific user guides. Since specific contracts are managed through eProcurement, additional information about automated business processes can be found in eProcurement user guides. In case there is a contradiction between these documents, the framework contract agreement and its annexes shall prevail above the user guides. The different documents which compose the framework contract shall be read according to the order of precedence listed in the main conditions.

Each framework contract is managed by a lead directorate-general of the European Commission. The framework contracts managed by external action services apply the PRAG templates. Framework contract managed by central services apply the Vade Mecum and the templates found on BUDGpedia. Since each framework contract operates differently, users have to familiarise themselves with the framework contract and related documents prior to its use.

3.5.1.1. Issues to consider before using an existing framework contract

Before using an existing framework contract, the authorising officer should confirm the following:

• are the services required available under the framework contract?

• does the leading directorate-general agree to give access to its framework contract?

• does the estimated budget for the specific contract fall under the maximum amount allowed for a specific contract?

• is the duration of the specific contract within the maximum duration of framework contract?. When considering duration, take into account that the duration of the framework contract is followed by a survival period. During the survival period no requests for specific contract can be launched and no specific contract can be concluded. However, specific contracts concluded before the expiry of the framework contract can still be implemented;

• is the geographical scope of the services within the scope of the framework contract?

If the answer is no to any of the questions above, the authorising officer must launch its own procedure.

If the answer is yes to all the questions above, the authorising officer has to use the existing framework contract. Not using the framework contract would be against the principle of sound financial management.

3.5.1.2. Request for services with reopening of competition

a) Request for Specific Contract

Sending the request

A request for specific contract must be sent to all the framework contractors within the same lot. The contracting authority should award the specific contract to the contractor which has submitted the most economically advantageous tender on the basis of the award criteria set out in the framework contract. There is no scope at the reopening of competition stage to apply selection criteria related to financial or technical capacity, as these aspects have already been addressed as part of the process to establish the framework contract.

Each request for specific contract must indicate in the specific terms of reference the legal basis of the procedure and the eligibility requirements of the external financing instrument. The funding instrument determines the eligible nationalities of the consortium members and the subcontractors (please refer to Section 2.3.1.).

Submissions deadlines are different according to the terms of each framework contract. The deadlines for submission are always a minimum and it is recommended to foresee a longer period according to the complexity of the assignment, the time of the year (holiday period), and/or the contractual amount.

Expression of willingness

After receiving the request for specific contract, the framework contractors must acknowledge the invitation to participate and express their willingness to submit an offer. Not participating in the request for specific contract must be duly justified. Not participating in request for specific contract repeatedly can be qualified as a breach of contract. If the acknowledgement is not received within the deadline, the contracting authority must contact the framework contractor concerned.

Unsuccessful procedure

If after sending a request for specific contract, no willingness to participate has been expressed, or no offer was admissible, or no offers were received, the relevant authorising officer may cancel the request for specific contract and:

• After analysing the cancelled request for specific contract, relaunch a modified request for specific contract.

• Initiate a negotiated procedure:

• if offers were received: with one or more framework contractors of its choice, amongst those that submitted an offer, with a view to obtaining improved offers. In this case the terms of reference cannot be altered substantially.

• if no offers were received: with any framework contractor of its choice from that lot.

• Initiate, depending on the amount, a procurement procedure outside the framework contract.

Clarifications

The framework contractors can ask for clarifications before the following deadlines:

• Submission period ? 14 calendar days and ? 20 calendar days = submission deadline minus 3 calendar days.

• Submission period > 20 calendar days = submission deadline minus 4 calendar days.

The answers are sent simultaneously to all the framework contractors to whom a request for specific contract has been sent. The deadline for submission must be extended if a substantial change is introduced by a clarification. The deadline can only be extended when the submission deadline has not yet been reached.

Professional conflicting interest

The contracting authority cannot modify the framework contractors selected by eProcurement for a request for specific contract. The only exception is a professional conflicting interest [31]. In this case the contracting authority has to request additional information from the framework contractor to ensure that the fullest possible information is available when assessing the presence or absence of such conflicting interests. If a conflicting interest is identified, the framework contractors must be given the opportunity to propose measures to avoid/mitigate such conflicting interests, provided that these measures do not modify the essential elements of the offer. If a professional conflicting interest is identified and if the proposed mitigating measures (if any) are not considered sufficient, the framework contractor has to be duly notified on the contracting authority’s decision to remove the framework contractor from the list of framework contractors invited to submit an offer/tender. The contracting authority may continue the procedure with the remaining framework contractors. A justification should be provided in eProcurement when removing one of the framework contractors selected.

b) Evaluation of offers

For the appointment and composition of the evaluation committee, see Section 2.9.1.

Compliance with the submission requirements

eProcurement will perform the following automated validation checks:

• The deadline for the submission has been respected.

• The offers were received in the same state as they were submitted and therefore the integrity and confidentiality of the offer has been respected.

Since the deadline for submission is a hard deadline, no offer can be submitted later than the submission deadline. Moreover, eProcurement is designed to guarantee the integrity and confidentiality of offers. Based on these automated validation checks, eProcurement will automatically mark the submissions as "In order".

Evaluation

eProcurement applies the double envelope, whereby the technical evaluation is separated from the financial evaluation.

• For the evaluation of the technical quality, the specific contract’s contracting authority will define the detailed criteria and their respective weights in the evaluation grid attached to the request for specific contract.

• For the final score of the offer, the best price-quality ratio is established by weighing technical quality against price.

The evaluation committee will only evaluate offers that are admissible. The evaluation committee may consider offers not admissible in case of:

• non-compliance with the eligibility rules of the financing instrument which finances the specific contract (see Section 2.3.). The consortium members involved in the assignment and all subcontractors must respect the eligibility rules of the financing instrument which finances the specific contract. In case a consortium member is not eligible according to the fund source of the specific contract, that member shall not be eligible to participate in any task related to that specific contract. The other members of the consortium which are eligible can participate;

• submission of several offers. In that case the last offer submitted will be considered for evaluation and the other offers will not be considered admissible;

• fees exceeding the maximum global fees indicated in the framework contract;

• an offer exceeding the maximum budget amount communicated in the request for specific contract;

• non-compliance of the experts with the minimum requirements for the requested category defined in the global terms of reference or in the specific terms of reference;

• falling short of the number of points required as a technical threshold defined in the global terms of reference or in the specific terms of reference.

The reasons for rejecting the offers that are not admissible must be indicated in eProcurement.

Non-key experts cannot be requested or proposed in eProcurement. Therefore, all experts under a fee-based contract are considered key experts who have to be evaluated by the evaluation committee.

c) Award

The award of each specific contract requires full evaluation of each tender and should be documented in an evaluation report. The authorising officer takes a separate specific award decision further to the initial award decision of the framework contract itself.

All the framework contractors who submitted offers must receive a notification letter with the results of the evaluation and the award decision. The notification is also obligatory in case of cancellation and when a new request for specific contract is relaunched and sent to the same framework contractors. The notifications letters are generated automatically in eProcurement.

The notification letter to unsuccessful framework contractors will have the following elements:

• The name of the successful framework contractor;

• If a technical evaluation took place, their technical scores based on the average technical points awarded by the evaluators;

• In case of rejection, the reasons for the rejection of the offer.

Only upon written request from any of the framework contractors who submitted an admissible offer, the contracting authority will provide their specific scores given for each element of the evaluation grid: organisation and methodology, expert(s), rationale, strategy, etc.

The contracting authority will never provide:

• Any information about the other framework contractors’ characteristics and relative advantages [32];

• The amount of the specific contract;

• The technical score of the other framework contractors;

• The final score of any of the other framework contractors;

• The framework contractor’s own final score.

The basis of not providing this information is that the receipt of such information by parties to the same framework contract each time a competition is reopened might prejudice fair competition between them [33].

Specific contracts are not subject to the standstill period regardless of their value and can be signed immediately. A specific contract can only be concluded during the validity of the framework contract.

There should be mobilisation period between the signature of the Specific Contract and the start of the implementation. It is recommended to allow a longer mobilisation timeframe especially for complex assignment of 3/4 years and of high amounts.

There is no publication of an award notice for specific contracts based on a framework contract.

d) Modifying specific contracts

Modifications cannot change the subject matter of the specific contract or change the award conditions prevailing at the time when the specific contract was awarded. For instance, the fees and, in case of framework contracts managed by central services, rates indicated in the price list of the framework contract, cannot be modified.

An increase in value cannot result in a total contract value that exceeds the ceilings for specific contracts. An extension in duration cannot go beyond the survival period which ends with date on which specific contracts are automatically terminated.

A specific contract can only be modified for the cases which require no negotiated procedure (see Section 2.11.2.2.). Modifications for the repetition of similar services which require a negotiated procedure (see Section 3.3.5.1.) are not applicable to specific contracts. The latter requires a contract notice which indicates the extent of possible new services, while request for specific contract are launched without the publication of a contract notice.

3.5.2. Simplified procedure

See Section 2.6.4. for guidance on the simplified procedure.

For contacts of a value of less than EUR 300 000, the framework contract procedure (see Section 3.5.1.) is the preferred award procedures where the European Commission is the contracting authority (direct management). However, depending on the context, the management mode of the action, and the needs (for instance the availability of required services in the different lots of the framework contract and or in the partner country, time and budget available, etc.), the contracting authority may use the simplified procedure as an alternative to the framework contract procedure.

As an exception the contracting authorities may use the simplified procedure for legal services according to the common procurement vocabulary (CPV) nomenclature [34], regardless of the estimated value of the contract [35].

For the simplified procedure for services specific annexes for simplified tenders must be used (administrative compliance grid, contract notice, invitation letter, instructions to tenderers, and tender form). For any other document of the tender dossier and the contract the regular service annexes must be used.

The procedure for preparing and evaluating the tenders, and awarding the contract, is the same as under the restricted procedure (see Sections 3.4.3, 3.4.4, 3.4.7. to 3.4.12.3.). Please note that in case of simplified procedure, the standstill period does not apply and no award notice is to be published.

3.5.3. Single tender

See Section 2.6.8.2. for guidance on the single tender.

Contracts with a value of less than or equal to EUR 20 000 may be awarded on the basis of a single tender.

For the single tender procedure for services the specific annexes for simplified tenders must be used (administrative compliance grid, contract, contract notice, invitation letter, instructions to tenderer and tender form). They can be adjusted to the procedure, including deleting non-relevant options, without this requiring derogation. For any other document of the tender dossier and the contract the regular service annexes must be used.

3.5.4. Payment against invoice

For services with a value of less than or equal EUR 2 500 the contracting authority may simply pay against invoices without prior acceptance of a tender. See Section 2.6.8.

3.6. Modifying service contracts

See Section 2.11. for general information on modifying contracts. See Section 3.3.5.1.e) on negotiated procedures. See also point d) of Section 3.5.1.2. on the modification of specific contracts of framework contracts.

Administrative order

Administrative orders may take the form of additions, omissions, substitutions, changes in quality, quantity, specified sequence, method or timetable of implementation of the services.

Administrative orders cannot modify the total contract amount. Moreover, in case of global price contracts, administrative orders cannot have an impact on the contractual budget.

The following procedure applies to issuing administrative orders:

• Prior to the issuance of any administrative order, the contracting authority or the contractor shall notify the other party of the contract of the nature and the form of the proposed amendment.

• The contracting parties may review the nature and the form of the proposed amendment.

• Following an agreement between the contracting parties, the contractor shall submit to the project manager a written proposal for an administrative order including all measures required to comply with the requested amendment, an updated timetable for implementation of the tasks, and, if necessary, a proposed financial adjustment to the contract, using the contractual fee rates when the tasks are similar. When the tasks are not similar, the contractual fee rates shall be applied when reasonable.

Following receipt of the contractor's proposal, the project manager shall decide as soon as possible whether or not the amendment shall be carried out.

If the project manager decides that the proposed amendment shall be carried out, it shall notify the contractor through an administrative order stating that the contractor shall carry out the administrative order at the prices and under the conditions given in the contractor's proposal or as modified by the project manager in agreement with the contractor.

Fee-based contracts: budgetary amendment

The budget of fee-based contracts consists of three headings:

• Fees

• Lump sums

• Provision for incidental expenditure, including provisions for expenditure verification

The financial evaluation of the offer is based on the sum of the amounts allocated to fees and to lumps sums. The provision for incidental expenditure is not evaluated and therefore does not constitute an element of the award conditions. A modification of the sum of the amounts allocated to fees and to lumps sumsis a modification of one of the elements of the award conditions prevailing at the time the contract was awarded. Therefore, this modification can only be done in the cases explicitly allowed in the Financial Regulation [36].

Depending on the case, the budget can be amended through an administrative order or through an addendum. In all cases, the provision for expenditure verification cannot be decreased, but can be increased during execution of the contract.

Fee based contracts: budgetary amendment through administrative order

Amendments through administrative orders are only possible for the cases where the amendment does not modify the initial award conditions. In the following case an administrative order can be issued:

• changes of non-key experts;

• reallocations within the heading fees;

• reallocations within the heading lump sums;

• reallocations between the heading fees and the heading lumps sums;

• reallocations within the heading incidental expenditure;

• reallocations from the heading fees and/or heading lump sums towards the heading incidental expenditure.

Administrative orders cannot be issued when they result in:

• an increase or reduction in the initial amount of the contract;

• an increase in the sum of the amounts allocated of fees and lump sums;

• the replacement of a key expert;

• a change in the implementation period of the contract.

Therefore, reallocations from the heading incidental expenditure towards the heading fees and/or the heading lump sums are not allowed through an administrative order. All these cases require an addendum (see below).

Fee based contracts: budgetary amendment through addendum

Modifications of the initial award conditions must be formalised by way of an addendum.

In this regard, it is important to keep in mind that and addendum is necessary:

• when the proposed change results in an increase or decrease in the contract value as regards the initial contract price, or in an increase in the sum of the amounts allocated to fees and to lump sums;

• in case of a replacement of a key expert (see below);

• a change in the implementation period of the contract.

An addendum may also be necessary in case of substantial changes that affect the object or scope of the contract, resulting from budgetary reallocations between headings, even if these changes have no financial impact on the total contract value.

• In case of a modification of the total contract value: the modifications allowed are calculated in relation to the initial contract value.

• In case of reallocating incidental expenditure towards fees and/or lump sums: the reallocations allowed are also to be calculated in relation to the initial value of the sum of the amounts allocated to fees and to lumps sums.

Addenda should comply with either art. 175.3(a), (b), (c) or Annex 11.1.e of the Financial Regulation as described in Section 2.11.2. The explanatory note to the addendum needs to make reference to the case that this applicable and justify the grounds to use the case to modify the contract.

Replacement of experts

As regards experts, during the implementation of a service contract, where an expert has to be removed or replaced, the replacement must possess equivalent or better qualifications and experience and the fee/rate may in no circumstances exceed that of the expert replaced. Where the contractor is unable to provide a replacement possessing equivalent qualifications and/or experience, the contracting authority may either terminate the contract, if it considers that its performance is jeopardised, or, if it considers that this is not the case, accept the replacement, in which case the expert’s fees are to be negotiated downwards to reflect the proper level of remuneration. Except as the contracting authority may otherwise agree, the contractor shall bear all additional travel and other costs arising out of or incidental to any removal and/or replacement of any member of staff. Whatever the case may be, the contracting authority will make no payment for the period of absence of the expert.

The replacement of an expert listed in Annex IV must be proposed within 15 calendar days from the first day of the expert’s absence. Failure of the contractor to propose a replacement within this time limit may result in the application of liquidated damages from the sixteenth day of absence of the expert and until the day a suitable replacement is accepted by the contracting authority, of up to 10% of the remaining fees of the expert to be replaced. In addition, liquidated damages may also be applied when a replacement of a key expert is submitted during the last year of contract implementation and in this case they shall not exceed a maximum amount that correspond to 90 working days of the key expert and shall be due from the first day of absence. The liquidated damages shall be calculated by dividing the remaining amount of the key expert to be replaced, by the remaining number of working days as provided in the budget of the contract for the specific expert’s position.

Note that although Article 17(4) of the General conditions for service contracts provide that liquidated damages can be applied without formal notice, PRAG Annex b14 ‘Pre information on the application of liquidated damages’, allowing the contractor to submit observations, shall be used when the contracting authority wishes to apply liquidated damages.

The contracting authority must approve or reject the proposed replacement within 30 calendar days. The partner country's approval must also be obtained for any replacement key expert proposed by the contractor. The representative of the partner country may not withhold its approval unless it submits duly substantiated and justified objections to the proposed experts in writing to the delegation of the European Union. If the representative of the partner country fails to issue or to reject its approval within 15 days of the date of the request, the expert is deemed to be approved.