3.  Service contracts

3.1.  Introduction

Service contracts are meant for studies, technical assistance and are also used for audits or communication services.

A study contract is a service contract concluded between a contractor and the contracting authority, 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 is a lump sum contract where specified output(s) is/are set out, in the form of clearly defined deliverables like a report or drawings. Global price always specify the output(s), i.e. the contractor must provide given output(s).

The service will be paid on the basis of the delivery of the specified output(s). 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).

Partial payment has to be determined according to the partial implementation of the output(s).

The project manager must not request in the terms of reference a breakdown of inputs for a global price contract, e.g. minimum number of experts (unless Key experts are requested) or a fixed list of expenses.

The contractor might be requested to submit a breakdown of price per deliverable. Indeed, the financial offer for a global price contract may include — where requested, see below — a price breakdown based on outputs/deliverables against which partial payments can be made (e.g. the deliverables could be related to the progress inception report/interim report/final report or to the different parts of a study/report/event) depending on the project in question. 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.

The contracting authority will provide the maximum budget available on the basis of the expertise required or the required category of staff and the number of working days needed, including where necessary travel costs and per diem. Where several results are to be achieved, the tenderers must provide in their offer a detailed breakdown in order to compare the offers and check if no input has been forgotten. However, during and after the implementation, the technical and operational means by which the contractor achieves the specified output(s) are not relevant for the satisfactory implementation of the contract.

Examples of global price activities:

Studies, evaluations, audits, organisation of events such as conferences, training sessions. Studies include a variety of tasks like identification and preparation of projects, feasibility studies, economic and market studies, technical studies, drafting a legal document, evaluations and audits.

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.

Fee-based contracts may also include activities paid on the basis of lump sums. An example could be a fee-based contract for training, 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.

Examples of fee-based activities

Project supervision, technical assistance, facilitation in a multi-stakeholder process (depending of the complexity of the environment).

Technical assistance contracts often only specify the means. For instance, the contractor is responsible for implementing the tasks entrusted to it in the terms of reference and ensuring the quality of the services provided. The contractor should, however, contribute to improve the performance of the institution she/he is seconded to. A service consultant also has a duty of care under the contract: it must warn the contracting authority in good time of anything that might affect the proper implementation of the project.

In most cases the whole contract is set out in the form of either a global price contract or a fee-based contract.

Some contracts may combine global price and fee based. In such cases, each item or each section of the contract should have a clear method of measurement and verification: global price or fee-based. It should be clear in the terms of reference and furthermore stipulated in the financial offer template.

An example of a combined service contract is 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.

Moreover, 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 as global price.

3.2.3.  Increasing the use of global price 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 e.g. the administration of a partner country.

In other cases the use of global price service contracts is encouraged as more appropriate.

The following features are comparative advantages of global price contracts:

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 has/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 to select the best possible staff in order to deliver the expected results. Should key experts be deemed to be indispensable, they would also have to sign a SoEA.

The methodologies contained in the offers must include a work plan indicating the envisaged resources to be mobilised, allowing a better comparison of offers and offering a basis for negotiation in case of amendment to the contract.

Global price contracts generate less micromanagement and dot not imply verification of timesheets and incidental expenditure and therefore will free more time for working on operational and sector issues.

3.3.  Procurement procedures

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

·  Restricted procedure

All service contracts worth EUR 300 000 or more may be awarded by restricted tender procedure following international publication of a prior information notice (not compulsory), a contract notice and additional information about the contract notice (see Section 3.4.1.) [1].

·  Framework contract ‘Services for implementation of external aid 2018’ (FWC SIEA 2018)

Alternatively, contracts worth less than EUR 1 000 000 may be awarded under the framework contract procedure laid down in FWC SIEA 2018. The award of the specific contracts and their signature in direct management is administered electronically in OPSYS.

• Audit framework contract 2018, & Framework contract EVA 2020

The Audit FWC 2018 is a quick tool to contract audit-related services to be carried out on the premises of entities receiving funds from external action programmes or in the form of desk studies. It covers all the types of assignments related to audits and verifications (there is no lot). There is no limit in the amount or the duration of the assignment.

EVA 2020 serves exclusively the purpose of Strategic Evaluations of EU External Strategies, Policies, and Instruments managed by FPI, INTPA, and NEAR evaluation Units. For evaluations of projects and programmes interventions, EU Delegations and HQ Units must use Framework Contract SIEA 2018.

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

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

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

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

For the single tender procedure the specific annexes for simplified tenders must be used (administrative compliance grid, contract, contract notice, invitation letter, instructions to tenderer, terms of reference and tender form) for this procedure. They can be adjusted to the procedure, including deleting non-relevant sections, without this requiring derogation.

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

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.

However, please note that the budgetary commitment against which the invoice is paid has to be validated before the contracting authority enters into the corresponding ‘legal commitment’. In this context, such legal commitment may take the form, inter alia, of an agreement, a pro-forma invoice, a written acceptance of a quotation, a booking confirmation, an order form, etc.

3.3.5.  Procedures applicable without ceilings

3.3.5.1.  Negotiated procedure

For service contracts, contracting authorities may use the negotiated procedure on the basis of one or several tenders in the following cases [2]:

a)       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.

A tender must be considered unsuitable where it does not relate to the subject matter of the contract and a request to participate must be considered unsuitable where the economic operator is in an exclusion situation or does not meet the selection criteria [3].

b)      Where the services can only be provided by a single economic operator and for any of the following reasons:

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

(ii) competition is absent for technical reasons;

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

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.

c)       In so far as is strictly necessary where, for reasons of extreme urgency brought about by unforeseeable events, it is impossible to comply with the applicable time limits and where the justification of such extreme urgency is not attributable to the contracting authority.

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 [4].

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

e)       For new services 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.

f)       For contracts for any of the following:

(i) legal representation by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services [5];

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

(iii) for arbitration and conciliation services;

(iv) document certification and authentication services which must be provided by notaries. For legal services not covered under point f), the contracting authority may use the simplifiedprocedure, whatever is the estimated value of the contract [6].

g)      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.

h)      For financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC [7], central bank services and operations conducted with the European Financial Stability Facility and the European Stability Mechanism.

i)        Loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments.

j)        For the purchase of public communication networks and electronic communications services within the meaning of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) [8].

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

l)        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.

m)    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.

n)      Where a new contract has to be concluded after early termination of an existing contract.

In all cases, a negotiation report must be prepared (see template in Annex A10) justifying the manner in which the negotiations were conducted and the basis for the resulting contract award decision. The procedures described in Section 3.4.12.1. and Section 3.4.12.2. must be followed by analogy. The negotiation report must be included in the contract dossier and the contracting authority must approve it.

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.

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

3.4.1.  Publicity

In order 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 (except for specific contracts under the Framework Contracts, in accordance with the guidelines on publication (see Annex A11e).

3.4.1.1.  Publication of prior information notices

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 and more preparation time for tenderers. Encoding and processing a prior information notices requires time and human resources. 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 not to publish a prior information notice and to provide tenderers with a longer submission deadline in the contract notice. Publishing the contract notice earlier would provide economic operators with more time to submit a good quality offer. Prior information notices on the other hand have an added value when there is a sufficient period between its publication and the planned publication of the Contract Notice.

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.

The contracting authority drafts the prior information notice directly via PPMT in direct management and in case of indirect management using the appropriate template (A5d) and submits it for publication to the relevant delegation of the European Union (see guidelines for publication in Annex A11e).

If necessary, the contracting authority arranges simultaneous local publication and publication in any other appropriate media directly.

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 (except for specific contracts under the FWC SIEA).

The European Commission (acting on behalf of the contracting authority) is responsible for publication in the Official Journal of the European Union and on the F&T portal. If the contract notice is published locally, the contracting authority must arrange local publication directly.

The contract notice and the additional information about the contract notice must provide would-be service providers with the information they need to determine their capacity to fulfil the contract in question.

The selection criteria 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 tenderer.

The criteria given in the annexes to this practical guide are given by way of illustration and must be adapted to the nature, cost and complexity of the contract.

The time allowed for candidates to submit their requests to participate must be sufficient to permit proper competition. The minimum deadline for submitting requests to participate is 30 days from the date of the notice’s publication in the Official Journal of the European Union and on the F&T portal. However, in exceptional cases, this period may be shortened in compliance with internal procedures. Under indirect management this is also subject to prior authorisation by the European Commission. The actual deadline will be determined by the contract’s size and complexity.

If the contract notice and the additional information about the contract notice are also published locally by the contracting authority, these documents must be identical to the ones published in the European Union Official Journal and on the F&T portal and must be published at the same time.

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.

If the contracting authority, either on its own initiative or in response to a request for clarification from a tenderer, amends information in the contract notice or in the additional information about the contract notice, it must submit a corrigendum stating the changes made. The corrigendum to the contract notice will be encoded directly in eNotices in direct management and, in indirect management, the appropriate template (Annex A5b) shall be used and forwarded to the relevant delegation of the European Union, always complying with the deadlines set up in the publication guidelines (see Annex A11e). However, a corrigendum to the additional information about the contract notice might also be published in eTendering, if necessary.

The corrigendum must be published not later than 8 days before the original submission deadline. Be aware that the corrigendum has to be sent to the relevant service not later than 5 days before the expected date for its publication.

The corrigendum 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, the request for clarification must be submitted at the latest 21 days before the submission deadline and the clarification will be published in eTendering, not in the Official Journal of the European Union, at the latest 8 days before the submission deadline.

3.4.2.  Drawing up shortlists#Long list – services;Shortlist – services

The first meeting of the 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.

In eSubmission and only for direct management procedures, there are two types of committees: opening and evaluation committees. It is recommended that for each lot, the composition of both committees is the same. The opening and evaluation committees must be appointed in PPMT before the start of the opening session¹⁰ and the evaluation of requests to participate.

Candidates are shortlisted by the evaluation committee.

The selection procedure involves:

-          compliance with formal submission requirements (see Annex B10) [9]. The committee must decide whether or not candidates comply with the formal submission requirements;

-          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 ineligible candidates (see Section 2.3.) or by candidates falling into one of the situations described in Section 2.6.10.1. 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 2.6.10. and 2.6.11.

After examining the responses to the contract notice/additional information about the contract notice, the evaluation committee shortlists the  candidates offering the best guarantee of satisfactory performance of the contract.

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 contract notice are applied in order 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. This prior authorisation may be granted based on a verification showing that the timing of the publication, the selection criteria used and the scope of the services in relation to the budget were satisfactory. This must be justified in the evaluation 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 (see Section 2.4.).

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

Candidates not selected will be informed in writing by the contracting authority (see Annex B7).

Selected candidates will receive a letter of invitation to tender and the tender dossier (see template in Annex B8).

The contracting authority prepares the shortlist notice and publishes it together with the award notice on TED (section VI.3 of the award notice).  (See guidelines for publication in Annex A11e).

If unsuccessful 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.

3.4.3.  Drafting and content of the tender dossier#Tender Specifications – services;Tender dossier – services;Financial Guarantee – services;Pre-financing - services

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

The contracting authority is responsible for drawing up these documents.

TENDER DOSSIER CONTENT

See Annex B8.

1. Instructions to tenderers
2. Draft contract agreement and special conditions with annexes
3. Other information (administrative compliance grid, evaluation grid)
4. 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 tender dossier.

In case of direct management, the tender dossier will be published on the TED eTendering platform. The shortlisted candidates will receive a notification granting access to the tender. In case of indirect management, the tender dossier will be sent simultaneously to all shortlisted candidates via mail or email. Any tender received from a legal or natural person not invited to tender will be rejected.

3.4.4.  Award criteria#Award criteria - services

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 main types of technical criteria are the methodology, and for fee-based contracts, the curriculum vitae (CV) of the key experts proposed. 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 complementarity of the consortium members, etc. CVs may be awarded points for such criteria as qualifications, professional experience [10], geographical experience, language skills, etc. 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 detract 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.

Abnormally low tenders

Contracting authorities can reject tenders that appear to be abnormally low in relation to services concerned.

However, rejection on that ground alone is not automatic.

The concerned tenderer must be asked, in writing, to provide details of the constituent elements of its tender, notably those relating to compliance with employment protection legislation and working conditions in the location of the contract, such as the service provision process, the technical solutions chosen or any exceptionally favourable condition available to the tenderer, the originality of the tender.

In view of the evidence provided by the tenderer, the contracting authority decides on whether the tender is to be considered irregular and has consequently to be rejected.

Both that decision and its justification must be recorded in the evaluation report.

3.4.5.  Additional information during the procedure

The tender dossier must be clear enough to save shortlisted candidates from requesting additional information during the procedure. If the contracting authority provides additional information [11]on the tender dossier, either on its own initiative or in response to a request from a shortlisted candidate, it must send such information in writing to all other shortlisted candidates at the same time.

Tenderers may submit questions via TED e-Tendering platform (electronic submission - direct management) or in writing (paper submission - indirect management) no later than 21 days before the deadline for submission of tenders. The contracting authority must reply to all tenderers’ questions in TED e-Tendering (electronic submission - direct management) or in writing (paper submission - indirect management) no later than 8 days before the deadline for receipt of tenders.

Clarifications and any minor changes to the tender dossier must also be published on TED e-Tendering (direct management) and, in indirect management, in writing and simultaneously addressed to all shortlisted candidates. 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 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 session, as well as the outcome and the minutes, must also be shared with all shortlisted candidates. In case of direct management, documents will be shared via TED e-Tendering. In case of indirect management, documents will be sent via mail or email.

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.

3.4.7.  Period of validity

See Section 2.9.5.

3.4.8.  Submission of tenders

In case of electronic submission (direct management), tenders must be submitted exclusively via the electronic submission system (eSubmission) available via a link in the TED eTendering platform [12]. Tenders submitted in any other way (e.g. e-mail or by letter) will be disregarded.

In case of paper submission (indirect management), tenders should be submitted in accordance with the double envelope system, i.e. in an outer parcel or envelope containing two separate, sealed envelopes, one bearing the words ‘Envelope A — technical offer’ and the other ‘Envelope B - financial offer’. All parts of the tender other than the financial offer must be submitted in Envelope A.

The technical offer and the financial offer always have to be evaluated successively and separately: the technical offer is evaluated first and financial offer checked only after the evaluation of technical offer.It ensures that the technical quality of a tender is considered independently of the price. The tender must be submitted in accordance with the instructions to tenderers. See Section 2.9.3. for consequences of infringements to formal requirements in the further evaluation process.

3.4.9.  The Evaluation Committee#Evaluation committee - services

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

In eSubmission and only for direct management procedures, there are two types of committees: opening and evaluation committee. It is recommended that for each lot, the composition of both committees is the same. The opening and evaluation committees must be appointed in PPMT before the start of the opening session and the evaluation of tenders.

3.4.10.  Stages in the evaluation process

3.4.10.1.  Receipt and registration of tenders

On receiving tenders, the contracting authority must register them, stating the date and time of submission, and provide a receipt for those delivered by hand or submitted electronically.

In case of paper submission (indirect management), the envelopes containing the tenders must remain sealed and be kept in a safe place until they are opened. The outer envelopes of tenders must be numbered in order of receipt (whether or not they are received before the deadline for submission 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

For tender openings in case of paper submission (indirect management), see tender opening checklist in Annex B9.

Part 3: Compliance with formal submission requirements

See Annex B10.

At this stage the evaluation committee must decide whether or not tenders comply with the formal submission requirements.

In case of electronic submission (direct management), several automatic validation checks take place to ensure that the tenders comply with the deadline and that they were received in the same state as they were submitted, i.e. that their integrity and confidentiality have been preserved. When all tenders for all lots are verified and marked as “In Order" /“Not in Order", the Record of Opening (see Annex B10a_specimen_openrecord_eSubmission) can be generated. After closing the opening session, the evaluation committee members, nominated through PPMT, can access the tenders that are “In Order".

In case of paper submission (indirect management), the summary of tenders received, which is attached to the opening record (see Annex B10), must be used to record whether each of the tenders complies 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.

Part 4: Financial offers

In case of electronic submission (direct management), the financial offers will remain unopened until technical assessment of all the tenders has been completed.

In case of paper submission (indirect management), the envelopes containing the financial offers will remain sealed. All financial offers will be deposited in safe deposit until technical assessment of all the tenders has been completed.

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.

Part 1: Administrative compliance (regularity)

The evaluation committee checks that the tenders comply with the instructions given in the tender dossier and in particular in the administrative compliance grid (see Annex B8). Any major formal errors or major restrictions affecting performance of the contract or distorting competition result in the rejection of the related tender.

Nationality of subcontractors: the evaluation committee must check at this stage that any subcontractors identified in the technical offers satisfy the nationality rule in Section 2.3.1.

The administrative compliance grid included in the tender dossier must be used to record the administrative compliance of each of the tenders.

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

Part 2: Technical acceptance

The evaluation committee then examines the technical offers, while the financial offers remain sealed/unopened. 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.). Only offers that achieve an average technical score of 75/100 or more are declared ‘technically accepted’. Under no circumstances may the evaluation committee or its members change the technical evaluation grid communicated to the tenderers in the tender dossier.

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. Where the content of a tender is incomplete or deviates substantially from one or more of the technical award criteria laid down in the tender dossier (e.g. if an expert does not meet the minimum requirements in the profile), the tender will be automatically rejected, without being given a technical score, but this must be justified in the evaluation report.

For instructions and guidelines how to allocate points  in the evaluation for fee-based and global-price contracts, please see the evaluator’s grid (Annex B12a and Annex B12b, respectively). Experts must be evaluated against the requirements stated in the terms of reference. The key experts must fulfil the minimum requirements for all the criteria. If it is not the case, the offer should be considered inadmissible and be rejected.

The tenderers must provide documentary proof for the key experts proposed. This includes copies of the diplomas referred to in the CV and employers’ certificates or references proving the professional experience stated in the CV. If missing proofs are requested it will only be for the relevant experience and diplomas that are among the requirements in the terms of reference. Only diplomas and experience supported by documentary proof will be taken into account.

 Civil servants or other staff of the public administration of the partner country, or of international/regional organisations based in the country, regardless of their administrative situation, must only be accepted by the European Commission if well justified. The tenderer must in its offer include information on the added value the expert will bring, as well as proof that the expert is seconded or on leave on personal ground.

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.).

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 in order to achieve the required outputs of the project.

Each evaluator completes an evaluation grid (see Annex B12) to record his/her assessment of each technical offer in order 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.

The evaluation committee discusses each technical offer and each member gives each tender a technical score. Evaluators may change their individual evaluation as a result of the general discussion on the merits of each offer.

In case of major discrepancies, full justification has to be provided by dissenting members. Once discussed, each evaluator finalises his/her evaluation grid on each of the technical offers and signs it before handing it over to the secretary of the evaluation committee. The secretary must then compile a summary of the comments of the evaluation committee members as part of the evaluation report.

The secretary 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.

Interviews should be standard practice whenever the expert proposed has no relevant experience of EU projects, as evidenced by the CV, and when this experience is a key element for the position and for the project implementation. In other cases (e.g. under direct management) verification/checks within the European Commission may be more appropriate. Interviews should therefore be provided for in the tender dossier and must be well prepared if conducted.

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

Before definitively concluding its evaluation of the technical offers, the evaluation committee may decide to interview the key experts proposed in technically accepted tenders (i.e. those that have achieved an average technical score of 75 points or more in the technical evaluation). It is recommended that tenderers that have scored close to the technical threshold also be invited for interview. 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 tenderer is prevented from attending an interview by force majeure, a mutually convenient alternative date/time is arranged. If the tenderer 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.

Once the evaluation committee has established each offer's average technical score (the mathematical average of the technical scores given by each voting member), any tender falling short of the 75-points threshold is automatically rejected. If no tender achieves 75/100 points or more, 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.

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

Specimen tender evaluation summary:

Part 1: Technical evaluation

* The score is rounded to two digits after the decimal point.

** Only offers with an average technical score of at least 75 points qualify for the financial evaluation.

3.4.10.4.  Evaluation of financial offers

Upon completion of the technical evaluation, the financial offers for tenders that were not eliminated (i.e. those that scored an average  of 75 points or more) are opened.

In case of indirect management, the chairperson and the secretary of the evaluation committee initial the envelopes containing all the originals of these financial offers

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

A financial offer not meeting these requirements may be considered inadmissible 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.

In case of indirect management, the envelopes containing the financial offers of rejected tenderers following the technical evaluation must remain unopened and are kept. They must be archived by the contracting authority together with the other tender procedure documents.

The total contract value comprises the fees (including employment-related overheads), the incidental expenditure, lump sums (if applicable) and the provision for expenditure verification [13] that are specified in the tender dossier. 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 eliminated.

The evaluation committee then proceeds with the financial comparison of the fees and lump sums between the different financial offers. Both the provision for incidental expenditure and the provision for expenditure verification are excluded from the comparison of the financial offers as they are specified in the tender dossier.

The tender with 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.

When evaluating financial offers, the evaluation committee compares only the total fees and lump sums.

Specimen tender evaluation summary:

Part 2: Financial evaluation*

* Only tenderers with an average technical score of at least 75 points in the technical evaluation qualify for the financial evaluation.

3.4.10.5.  The evaluation committee’s 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.

Specimen tender evaluation summary:

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 recommendation must be to award the contract to the tender achieving the highest overall score on the condition that the documentary evidence submitted by the tenderer for the exclusion and selection criteria is verified and admissible.

As a result of its deliberations, the evaluation committee may make any of the following recommendations:

·      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

-          that provides the best value for money (satisfying all of the above conditions).

·      Cancel the tender procedure

(See Section 2.6.13.).

The evaluation report is drawn up. The verification of documentary evidence for exclusion and selection criteria and eventual clarifications must be carried out during the evaluation and before taking the award decision. The contracting authority will then take its decision.

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.

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.

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.

3.4.12.  Prior verifications and award of the contract#Award of contract – services

3.4.12.1.  Verifications prior notifying the award decision

See section 2.10.1.

At the latest during the evaluation procedure and before taking the award decision, the contracting authority ensures that there is no record of the 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 (see sections 2.6.10.1. and 2.4.).

During the evaluation procedure and before taking the award decision, the evaluation committee will request the original [14]Declaration on honour on exclusion criteria and selection criteria and copies of documentary evidence for exclusion and selection criteria from the potential successful tenderer. If upon verification, the evaluation committee considers the submitted evidence not admissible, it will request the same evidence from the second best ranked tenderer.

See section 2.6.10.1.3 for more details.

The notification letter (Annex B13a) to the successful tenderer implies that the validity of the successful tender is automatically extended for a period of 60 days (if the contracting authority is required to obtain the recommendation of the panel referred to in Section 2.6.10.1.1., the tender validity period can be further extended up to the adoption of that recommendation).

At the same time the second best tenderer is informed about the result (Annex B13b). The contracting authority reserves the right to send a notification of award to the second best tenderer in case of inability to sign the contract with the first ranked tenderer. The validity of the second best tender will therefore be kept and will only be extended with the 60 days in case of notification of award.

The contracting authority will furthermore, at the same time, also inform the remaining tenderers (Annex B13c). The consequence of these letters will be that the validity of their offers must not be retained. In case of request, for further information from the non-successful tenderers, any information which is not confidential may be disclosed to them. An example may be comments regarding their strengths and weaknesses as this may assist them to be successful in future tenders.

As soon as the contract is signed by the successful tenderer, the contracting authority must inform the second best tenderer that she/he will not be awarded the contract.

Availability of key experts and proposed replacements

In the notification of award the contracting authority requests the successful tenderer to confirm the availability/unavailability of the key experts within 5 days of the date of the notification letter. 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.

Should any of the key experts be unavailable the 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 successful tenderer must give due justification for the exchange 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.

The maximum time limit for proposing a replacement should be within 15 days of the date of the notification letter. Only one time-period to propose replacements will be offered to the successful tenderer, in which they may, if possible, propose several candidates for replacement of the same position. The replacement expert cannot be one presented in a bid from an unsuccessful tenderer participating in the same tender. The contracting authority may choose between these proposed candidates. If the contracting authority accepts the proposed replacements the contract dossier must contain the justification for the acceptance.

If no replacement expert is proposed or if the proposed replacement expert does not either meet or exceed the total scores of the originally proposed expert, the contracting authority will decide either to award the contract to the second best tenderer (also giving them a chance to replace an expert in case of unavailability) or to cancel the procedure.

Summary of scenarios:

a)       The key experts are available.

The awarded tenderer confirms that all their key experts are available. When the contracting authority receives the information they proceed with contract preparation and signature, see Section 3.4.12.2.

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

The awarded 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 contracting authority 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 contracting authority may choose between the experts. Written justification of the choice is made by the authorising officer and will be part of the contract dossier, see Section 3.4.12.2.

c)       One or more of the key experts are not available and replacements are NOT acceptable.

The awarded 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 of unavailability. The contracting authority will verify that the expert fulfils the minimum requirements in the terms of reference and that the expert would have scored minimum the same as the originally proposed expert (total scores). If none of the replacements are accepted, the contract may either be awarded to the second best tenderer or the procedure may be cancelled. If the second best tenderer will be notified of the award they must also be given the same possibility to confirm availability/unavailability and to propose replacements of their key experts. The same time limit applies to the replies (i.e. 5 and 15 days).

Where a contract is awarded under a financing agreement that had not been concluded at the time the tender procedure was launched, the contracting authority must not notify the tenderers before the financing agreement has been concluded.

3.4.12.2.  Approval of key experts

Where the European Commission is the contracting authority and a representation of the partner country has not been invited to the evaluation committee as an evaluator, the relevant delegation of the European Union must notify the partner country, if appropriate [15], of the name of the successful tenderer and ask to approve the available key experts proposed before the contract is signed.

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 authorising officer accepts the rejection of the expert, the successful tender is allowed to propose a replacement (see Section 3.4.12.1.). If this procedure fails, the award may go to the second best tender, if any. In this case, the representative of the partner country again has the right to approve the experts. If there is no second best tender or if the experts are rejected again, the tender is cancelled. A request for the approval of key experts is not a request for approval of the European Commission’s evaluation.

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.

The representative of the partner country may only ask for experts to be replaced if duly substantiated and justified objections are given in writing.

3.4.12.3.  Standstill clause (applicable for direct contracts above EUR 300 000)

See Section 2.10.1.

3.4.12.4.  Contract preparation and signature

In preparing the contract for signature, the contracting authority must proceed as follows:

     Prepare a contract dossier (if possible printed recto/verso) using the following structure:

a)       Explanatory note using the format in Annex A6 (if applicable including the justification for acceptance of replacement key experts);

b)      Copy of the financing agreement authorising the project (if there is one);

c)       Copy of the call announcements (prior information notice, contract notice, additional information about the contract notice and shortlist), shortlist report, tender opening record, evaluation report with award decision, and any other relevant information)

d)      Three originals in indirect management; two originals in direct management, of the proposed contract, which is based on the standard contract template

The standard contract annexes for the general conditions and Forms and other relevant documents must be reproduced without modification in every contract. Only the special conditions should need to be completed by the contracting authority.

-          Once the standstill period is passed, sign and date all originals of the contract and initial all pages of the special conditions and the budget.

-          Send the signed originals of the contract to the successful tenderer who must countersign them within 30 days of receipt. The contractor keeps one original, and returns the remaining original(s) to the contracting authority. If the successful tenderer fails to do this within the specified deadline or indicates at any stage that it is not willing or able to sign the contract, the tenderer cannot be awarded the contract. The contract preparation process must be restarted from step 1 with a new contract dossier prepared using the second best tender (provided that that tender is still valid).

The contracting authority must verify the power of representation of the natural person who signs the contract for the legal entity to which the contract has been awarded.

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

Contracting authorities must retain all documentation relating to the award and execution of contract for a minimum period of 7 years after payment of the balance and up to the date of the prescription of any dispute in regard to the law which governed the contract.

During and after this period, the contracting authorities will treat the personal data in conformity with their privacy policy. These documents must be made available for inspection by the European Commission, the European Anti-Fraud Office, the European Public Prosecutor’s Office and the Court of Auditors.

The proposed contract must follow Annex B8.

3.4.12.5.  Contract signature with Qualified Electronic Signature (QES)

Qualified Electronic Signature (QES) is a standard that comes from the eIDAS Regulation (Regulation (EU) No 910/2014 [16]) and is recognised as the digital equivalent to the handwritten (also known as ‘blue-ink’) signature in all EU Member States. QES can only be used by Authorising Officers who have obtained a qualified certificate for electronic signatures.

QES can be used as a solution for signing any document for which a handwritten signature is required. However, QES only applies to contracts managed outside OPSYS (since the digital signatures embedded into OPSYS are equivalent to handwritten signatures) and where both the applicable law and the dispute settlement forum are in an EU Member State.

Currently, QES cannot apply to the following legal commitments:

- Grant contracts or contribution agreements signed with an international organisation;

- Financing Agreements with partner countries.

Moreover, the QES feature is currently not available for indirect management by partner countries.

European Commission staff in Delegations belong from an IT point of view to the EEAS domain. Currently, the EEAS is not yet covered by the DG DIGIT qualified certificates for electronic signatures. Therefore, European Commission staff in Delegations will only be able to apply QES once the DG DIGIT certificates have been extended to the EEAS domain.

For more information on the process to obtain the QES certificate as well as the procedure step-by-step, see Chapter 2.10.3 of the PRAG.

3.4.12.6.  Publicising the award of the contract

Regardless of the type of procedure, the contracting authority informs candidates and tenderers of decisions reached concerning the award of the contract as soon as possible, including the grounds for any decision not to award a contract.

Once the contract has been signed the contracting authority is responsible for preparing the award notice without delay (in indirect management using the template in Annex A5g) and for submitting it for publication in the Official Journal of the European Union  and on the F&T portal (see publication guidelines in Annex A11e). If necessary, the contracting authority must arrange simultaneous local publication in any other appropriate media directly.

The award notice must be published if the value of the contract is above international thresholds (> EUR 300 000), unless the contract was declared secret (and the secrecy is still relevant at the time of the award) or where the performance of the contract must be accompanied by special security measures, or when the protection of the essential interests of the European Union, or the partner country so requires, and where the publication of the award notice is deemed not to be appropriate. Please remember that the list of selected candidates has to be given in section VI.3 of the award notice.

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.

See Section 2.10.

3.4.13.  Provision and replacement of experts #Replacement of expert

Where the tender procedure involves the provision of experts, the contractor is expected to provide the experts specified in the tender. This specification may take various forms.

Whatever the form, the key experts to be provided by the contractor must be identified and named in the contract.

The evaluation committee may recommend that a tenderer be excluded from the tender procedure, and its offer considered irregular, if this company 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 company 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 2.6.10.1.2.).

During the implementation of a service contract, where a member of staff has to be replaced, the replacement must possess at least equivalent 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 latter’s fees are to be negotiated downwards to reflect the proper level of remuneration. Any additional expenses resulting from the replacement of staff are borne by the contractor except in the case of replacement resulting from death or where the contracting authority requests a replacement not provided for by the contract. Where an expert is not replaced immediately and sometime elapses before the new expert takes up his functions, the contracting authority may ask the contractor to assign a temporary expert to the project pending the new expert’s arrival or to take other steps to bridge the gap. Whatever the case may be, the contracting authority will make no payment for the period of absence of the expert or his replacement (whether temporary or permanent).

3.5.  Procedures for the award of contracts under EUR 1 000 000

3.5.1.  Framework contract SIEA 2018#Framework contracts Framework Contracts

Description

The Framework contract ‘Services for the Implementation of External Aid 2018’ (FWC SIEA 2018) is a multiple framework contract with reopening of competition between three or four framework contractors of the concerned lot, to provide short-term technical assistance assignments covering the entire range of project cycle operations with the exception of programmes’ financial audits (which are covered by a dedicated framework contract).

It entered into force on 1 June 2018 and it is valid until 31 May 2023.

The FWC SIEA 2018 in itself has no overall contract amount. No request for services may be issued under the FWC SIEA 2018 if no funds are available to cover the operation.

Services worth less than EUR 1 000 000 may be contracted using the FWC SIEA 2018.

Detailed information on how to use FWC SIEA 2018 can be found in the guidelines available on the internet [17].

Conditions of use

There are 5 main conditions of use:

1. operations have to be in the exclusive interest of third countries benefiting from funding under the external financing instruments or in the interest of the European Commission together with third countries benefiting from such funding;
2. operations have therefore to be financed by external aid funds (Heading IV of the multiannual financial framework or the European Development Fund (EDF));
3. the maximum amount for each specific contract, addenda included, must not exceed EUR 999 999;
4. the total duration of a specific contract may not exceed 3 calendar years, addenda included; There is no set limit on the number of expert input in working days;
5. the use of the dedicated IT tool [18].

Users

The contracting authority for each individual specific contract may be:

- the European Union represented by the European Commission, acting on behalf of partner countries.

- a partner country under indirect management (if authorised by INTPA, and only once the IT system will allow it).

Content

-           Lot 1 – Sustainable management of natural resources and resilience

-           Lot 2 – Infrastructure, sustainable growth and jobs

-           Lot 3 - Human Rights, democracy and peace

-           Lot 4 – Human development and safety net

-           Lot 5 – Budget support

-           Lot 6 – Innovative financing for development

3.5.1.1.  Procedure

A specific contract can only be concluded during the validity of the framework contract.

All the documents for the different steps of the procedure must follow the forms designed for FWC SIEA 2018, available on the dedicated internet site [19]. These forms may be updated during implementation of the framework contract, so users must ensure they use the most up-to-date versions. Users of the framework contract should be aware that there are two distinct procedures that must be used under the framework contract; one for contracts under EUR 300 000 and one for contracts of EUR 300 000 or above and less than EUR 1 000 000, the first being a simpler and shorter procedure

a)       Consultation

A request for services must be sent to three or four [20] framework contractors within the same lot. Providing that at least one offer satisfies the admissibility, quality and financial criteria, the project manager can award the contract on this basis.

If, however, there is no qualitatively and/or financially satisfactory tender received, the relevant authorising officer may simply cancel the consultation, or cancel and either:

1.       Relaunch with different framework contractors under unchanged terms of reference.

2.       Relaunch with the same framework contractors a request for services after analysing/redrafting the specific terms of reference.

3.       Initiate a negotiated procedure with one or framework contractors of its choice, from among those that took part in the request for services with a view to obtain improved offers within the terms of the specific request (N.B. the terms of the specific request cannot be substantially altered).

4.       Initiate the relevant alternative procedure depending on the amount outside the framework contract.

The consultation must comply with the principles of transparency, proportionality, equal treatment, non-discrimination and of sound competition and with the terms of the framework contract.

Offers should be submitted via OPSYS. For those cases where CRIS is still used, offers should be submitted by e-mail to a functional mailbox specified in the request, which is accessible only to those persons authorised by the authorising officer. If the offer is sent to another address, the offer may be rejected. The specific ToR (terms of reference) for the proposed specific contract are attached to the request in order to give the framework contractors all the information they need to submit an offer. Their quality, in particular their clarity, is critical for the quality of the offer and the success of the assignment. The contractual deadline for submission of offers is minimum 14 calendar days for requests < EUR 300 000, and a minimum of 30 calendar days for requests with a maximum budget >= EUR 300 000, from the date of dispatch of the request. It is always possible to allow a longer period of submission of offers. The framework contractors can ask for clarifications. The answers are sent simultaneously to all the framework contractors consulted. If amendments made during the consultation period may have an impact on the selection of the experts, the date for submission of offers must be extended accordingly.

b)      Evaluation of offers

Requests for services < EUR 300 000

Offers are valid for 14 calendar days after the deadline for submission

There must be at least three evaluators. As appropriate, one of them may be a representative of the partner country. However, depending on a risk analysis by the contracting authority, a formal evaluation committee might be appointed.

Requests for services > = EUR 300 000

Offers are valid for 30 calendar days after the deadline for submission

An evaluation committee will be formally appointed by the contracting authority. See Section 2.9.1.

            For all requests for services:

Only offers fulfilling the following criteria of admissibility will be evaluated:

-          the deadline for the submission of offers has been respected;

-          the offer complies with the eligibility rules of the external financing instrument which finances the specific contract; (see Section 2.3.)

-          the fee rates, including those in the budget breakdown of a global price specific contract do not exceed the contractual maxima;

-           the maximum budget is not exceeded (if applicable),

The contracting authority chooses the most economically advantageous offer [21].

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 services.

Unless clearly stated to the contrary in the request for services, if one of the experts does not comply with any minimum requirement set out in the tender specifications, his/her score will be 0 and the whole offer must be rejected. Therefore, it is recommended to pay careful attention to minimum requirements and to the use of terms that imply a minimum requirement (e.g. ‘experience in at least three developing countries’, ‘minimum C1 level of English’, etc.)

Unless otherwise indicated in the evaluation grid, any offer falling short of the technical threshold of 75 out of 100 points, is automatically rejected. Out of the offers reaching the 75-point evaluation threshold, the best technical offer is given 100 technical points (using the automatic formula in the IT system, equivalent to the one explained in Section 3.4.10.3.).

For the financial evaluation of a fee-based specific contract, the provision for incidental expenditure and the provision for expenditure verification will not be taken into account in comparison of the financial offers. For the financial evaluation of a global price based specific contract the total price will be taken into account in the comparison of the financial offers. The offer with the lowest total price (taking above into consideration) receives 100 financial score (using the automatic formula in the IT system, equivalent to the one explained in Section 3.4.10.4.).

For the final score of the offer, the best price-quality ratio is established by weighing technical quality against price (using the automatic formula in the IT system, equivalent to the one explained in Section 3.4.10.5.).

If no offer is selected, the project manager may, after analysing the specific terms of reference, change and relaunch the request with the same framework contractors.

Within 14 days or 30 days of the deadline for receipt of offers, all the framework contractors who submitted offers must be notified of the results of the evaluation and the award decision. The notification is also obligatory when a new request for services is sent to the same framework contractors (relaunch). The contracting authority can sign the contract as soon as notification has taken place. There is no standstill period between notification and signature.

c)       Signature of the specific contract

The specific contract comprises the assignment letter, the specific terms of reference, any methodology used, and the financial offer.

For specific contracts managed in OPSYS, the framework contractor signs first and the contracting authority for the specific contract signs last. For specific contracts managed in CRIS, the contracting authority for the specific contract signs first and the framework contractor signs last.

d)      Assessment of the framework contractor’s performance

The performance assessment form for the framework contractor must be filled in after the end of the assignment. This assessment covers the standard to which the framework contractor has executed the contract and must be sent to the latter for comments.

3.5.2.  Simplified procedure#Simplified procedure – services

For contacts of a value of less than EUR 300 000, depending on the context and the needs (for instance the availability of required services in the different lots of the FWC 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 without publishing the contract notice [22].

Note that the simplified procedure requires more time than the procedure to start an assignment under the framework contract.

In order to start the simplified procedure, the contracting authority creates a procedure in CRIS/PPMT and gets a reference number.

The contracting authority draws up a list of at least three service providers and justifies its choice. The candidates are sent a letter of invitation to tender accompanied by a tender dossier. The specific annexes for simplified tenders must be used (administrative compliance grid, contract, contract notice, invitation letter, instructions to tenderers and tender form) for this procedure. For any other document of the tender dossier the regular service annexes must be used. The contract notice is not published, but it is included in the tender dossier as it contains important information for those service providers that are invited to tender, notably the selection criteria. Tenders must be sent or hand delivered to the contracting authority at the address and by no later than the date and time shown in the invitation to tender. The chosen candidates must be allowed at least 30 days from the dispatch of the letter of invitation to tender to submit their tenders. Tenders must be opened and evaluated by an evaluation committee with the necessary technical and administrative expertise, appointed by the contracting authority.

Tenderers for the simplified procedure may also be chosen from a list of vendors. The list must be drawn up following a call for expression of interest and must be valid for no more than 4 years from the date of advertisement. A legal framework for this procedure will be developed for future use.

If, having consulted the tenderers, the contracting authority receives only one tender that is administratively and technically valid, the contract may be awarded provided that the award criteria are met.

In the event of a failure of the simplified procedure the contract may be concluded by negotiated procedure (see Section 3.3.5.1.). The procedure for evaluating the tenders and awarding the contract is the same as under the restricted procedure (see Sections 3.4.9. to 3.4.12.4.).

As an exception the contracting authorities may use the simplified procedure for legal services according to the common procurement vocabulary (CPV) nomenclature [23], regardless of the estimated value of the contract [24].

3.6.  Modifying service contracts#Addendum - services;Contract modification - services

See Section 2.11. for general information on modifying contracts.

Any justified modification that involves a change in the total value of the contract must be made by means of an addendum.

The purchase of services which consist in the repetition of similar services as those foreseen in the original contract is regarded as a negotiated procedure (see Section 3.3.5.1. under e)), unless the value of the purchase of similar services is within the limits of the ‘double de minimis rule’ (see Section 2.11.1. under (c) or in case of unforeseen circumstances that a diligent contracting authority could not foresee (see Section 2.11.1. under (b)).

3.7.  List of Annexes