4. Supply contracts

4.1. Introduction

Supply contracts means a contract covering the purchase, leasing, rental or hire purchase, with or without option to buy, of products, and which may include, as an incidental matter, siting and installation operations [1].

For mixed contracts, where supply contracts also cover works or services, see Section 2.6.1.

4.2. Procurement procedures[2]

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

All supply contracts worth EUR 300 000 or more must be the awarded through an international open tender procedure (see Section 4.3.).

4.2.2. Contracts of more than EUR 100 000 and less than EUR 300 000

Supply contracts worth under EUR 300 000 and more than EUR 100 000 may be awarded through a local open procedure (see Section 4.4.).

4.2.3. Contracts with a value of less than EUR 100 000

These supply contracts may be awarded through a simplified procedure (see Section 4.5).

4.2.4. Contracts with a value of less than or equal to EUR 20 000

The contracting authority may award supply contracts of a value of EUR 20 000 or less on the basis of a single tender (see Section 4.6.).

4.2.5. Contracts with a value of less than or equal to EUR 2 500

For supplies with a value of less than or equal to EUR 2 500, the contracting authority may pay on the basis of an invoice without prior acceptance of a tender (see section 2.6.8).

4.2.6. Procedures applicable without ceilings

4.2.6.1. Negotiated procedure

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

The procedures set out in Sections 4.3.9. must be followed by analogy, and the evaluation report must be included in the contract dossier. 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 [3].

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 supply contracts are listed below:

1. 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 [4].

   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 [5].

2. Where the supplies can only be provided by a single economic operator and for any of the following reasons [6]:

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

2. competition is absent for technical reasons;

3. 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 [7].

1. 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 [8].

2. For additional deliveries that are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics that would result in incompatibility or disproportionate technical difficulties in operation or maintenance [9].

3. Where the products are manufactured purely for the purpose of research, experimentation, study or development; however, such contracts must not include quantity production to establish commercial viability or to recover research and development costs [10].

4. For supplies quoted and purchased on a commodity market [11].

5. For purchases of supplies on particularly advantageous terms, either from a supplier that is definitively winding up its business activities, or the liquidators in an insolvency procedure, an arrangement with creditors, or a similar procedure under national law [12].

6. For the purchase of medicines for human use or medical countermeasures as well as for products allowing the eradication or containment of certain animal diseases, zoonoses and quarantine pests of plants, provided that one of the following conditions is fulfilled: these products are innovative, not readily available on the market or there is a need to adopt a readily available solution [13].

7. 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 where the protection of the essential interests of the European Union or the partner country 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 [14].

8. For the purchase of public communication networks [15] 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 [16] [17].

9. Where the tender procedure has been unsuccessful, that is to say, where no qualitatively and/or financially worthwhile tender has been received, in which case, after cancelling the tender procedure, the contracting authority may negotiate with one or more tenderers of its choice, from among those that took part in the invitation to tender, provided that the procurement documents are not substantially altered [18].

10. Where a new contract has to be concluded after early termination of an existing contract [19].

4.2.6.2. Dynamic purchasing system

4.2.6.3. Competitive dialogue

See Section 2.6.7. for further details.

4.3. International open tender for contracts of EUR 300 000 or more

See Section 2.6.2. on general information about the open procedure.

4.3.1. 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 supply contracts of EUR 300 000 or more.

The open procedure is a one-step procedure. Therefore, the tender dossier is published together with the contract notice and the additional information about the contract notice.

The publication must be done in accordance with the guidelines on publication described in annex a11e.

4.3.1.1. Publication of prior information notice[20]

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. 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.

4.3.1.2. Publication of contract notices

A minimum of 30 days after the 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 tenderers with the information they need to determine their capacity to fulfil the contract in question.

No estimated value or available budget is to be indicated in the contract notice. Instead, the contracting authority will provide an estimation of the volume of the purchase (e.g. number of supply items) as short description in the contract notice, in order to give the necessary elements allowing the economic operators to prepare and submit offers.

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 tender form (see Annex c4l);

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

• possible to prove by the tenderer.

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. Only presumed successful tenderers must supply supporting documents for the selection criteria before the award of the contract (optional for contracts below EUR 300 000, see Section 2.6.11.).

Tenderers 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 tenderer, 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 tenderers to take the changes into account. Please note that with a clarification, the contracting authority cannot give an opinion on the assessment of the tender.

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.

4.3.2. Drafting and content of the tender dossier

See Section 2.8. for guidelines on drafting technical specifications.

The tender dossier is published at the same time as the contract notice and the additional information about the contract notice. The tender documents will be shared via theFunding & tenders portal.

Tender documents must be carefully drafted to ensure that both the contract and the procurement procedure are carried out correctly. The contractor tasks under the contract should be carefully listed and described in the special conditions and reflected in the technical specifications. If executed by a third party they will be considered subcontracted as per article 6 of the General Conditions (manufacture for instance should only be mentioned when it is part of the supply contract).

Tender documents must contain all the provisions and information that tenderers need to submit their tenders: the procedures to follow, the documents to provide, cases of non-compliance, award criteria, etc.

Technical specifications must afford equal access for candidates and tenderers and not have the effect of creating unjustified obstacles to competitive tendering. They specify what is required of a product, service or material or work to achieve the purpose for which they are intended.

The specifications may include as appropriate:

1. a clear definition of the tasks to be performed;

2. minimal quality levels;

3. environmental and climate performance;

4. for purchases intended for use by natural persons, wherever possible, the accessibility criteria for people with disabilities or the design for all users;

5. the levels and procedures of conformity assessment;

6. performance or use of the supply (fitness for use);

7. safety or dimensions, including the sales name and user instructions, terminology, symbols, testing and test methods, packaging, marking and labelling, production processes and methods.

The contracting authority is responsible for drawing up these documents.

When the contracting authority is the European Commission, it may be desirable to involve representatives of the partner country in preparing the call for tenders at an early stage. Given the technical complexity of many supply contracts, the preparation of the tender dossier —particularly the technical specifications — may require the assistance of one or more external technical specialists. Each such specialist must sign a declaration of objectivity and confidentiality (see Annex a3).

The technical specifications state — where applicable, lot by lot — the exact nature and performance characteristics of the supplies. Where applicable, they also specify conditions for delivery and installation, training and after-sales service.

It is essential that the performance characteristics suit the intended purpose. If there needs to be an information meeting or site visit to clarify technical requirements where the supplies are to be installed, this should be specified in the instructions to tenderers, together with details of the arrangements (see Section 4.3.4.).

The purpose of the technical specifications is to define the required supplies precisely. The minimum quality standards, defined by the technical specifications, will enable the evaluation committee to determine which tenders are technically compliant.

Unless warranted by the nature of the contract, technical specifications referring to or describing products of a given brand or origin and thereby favouring or excluding certain products are prohibited. However, where products cannot be described in a sufficiently clear or intelligible manner, they may be named as long as they are followed by the words ‘or equivalent’.

TENDER DOSSIER CONTENT

The tender dossier consists of (see annex c4):

1. Instructions to tenderers

2. Draft contract agreement: main and special conditions with annexes (including technical specifications)

3. Further information

4. Tender form for a supply contract

Price revision

The tender dossier must clearly state whether a firm, non-revisable price.

The contractor is bound by the rates and prices specified in the contract. She/he assumes the risk of cost increases that may occur during the period of implementation of the tasks. Nevertheless, for contracts extending over several years, and/or when the price of goods is subject to heavy inflation it is possible to make recourse to indexation. None of these cases is common in supply contracts and revision of prices is rarely used.

In specific cases a price revision clause might be justified. In such cases the contracting authority must take particular account of:

1. the object of the procurement procedure and the economic situation in which it is taking place;

2. the type of tasks and contract and their duration;

3. its financial interests.

If the price revision is justified, the tender dossier must lay down the conditions and/or formulas for revision of prices during the lifetime of the contract (Article 26(9) of the special conditions). The price revision clause must be drawn up by the competent services of the European Commission in accordance with their internal procedures.

Tender guarantee

The tender guarantee is optional. A tender guarantee assures the contracting authority that submitted tenders will not be withdrawn. If the contracting authority deems a tender guarantee to be appropriate and proportionate, it may request one, representing 1% to 2% of the overall value of the contract. The contracting authority must return the tender guarantee as foreseen in Sections 4.3.9.3. and 4.3.10. and release it for all tenderers when the contract is signed.

The contracting authority must call in the tender guarantee if the tender is withdrawn before contract signature.

Pre-financing guarantee

According to the applicable rules, pre-financing could be required or not. If required, this must be mentioned in the tender dossier.

Performance guarantee

The contractor must provide the contracting authority with a performance guarantee. The guarantee amount is set by the contracting authority between 5% and 10% of the amount of the contract and any riders. The guarantee must be placed, at the latest, on return of the countersigned contract. It is intended to cover the contractor’s liability for the full and proper performance of the contract.

The performance guarantee is released within 60 days, starting from the date of issue of the final acceptance certificate.

Insurance requirements to cover transport

Transport insurance will vary depending on the nature of transport (land, air or sea) and the nature of the risks to be covered: loading, intermediate storage, unloading, including stowage and protection, theft, damage, loss, wetting, etc.

Clearance through customs, import and export licenses, port regulations, storage and transport regulations are normally the responsibility of the contractor and the contractor should take all necessary steps in sufficient time to meet the requirements of the contract.

The contracting authority should facilitate the contractor in connection with clearances through customs and tax exemptions where applicable although it is the contractor which is ultimately responsible for fulfilling tax and customs obligations.

Delivery conditions are established in the instructions to tenderers where there are two options:

• delivery duty paid (DDP)

• delivered at place (DAP)

Both are Incoterms established by the International Chamber of Commerce in 2020. In the case of use of Incoterms, the contractor shall provide transport insurance to the extent that it assumes transportation risks:

• DDP sets the widest obligation for the seller in respect of transportation and loss risks and damage associated with the goods:

  ‘the seller delivers the goods when the goods are placed at the disposal of the buyer, cleared for import on the arriving means of transport ready for unloading at the named place of destination. The seller bears all the costs and risks involved in bringing the goods to the place of destination and has an obligation to clear the goods not only for export but also for import, to pay any duty for both export and import and to carry out all customs formalities.’

  This means that the seller delivers the goods to the buyer, cleared for import and not unloaded from any arriving means of transport at the named place of destination. The transfer of risks and costs occurs at the place of unloading of the goods at the agreed place of destination.

• DAP:

  ‘the seller delivers when the goods are placed at the disposal of the buyer on the arriving means of transport ready for unloading at the named place of destination. The seller bears all risks involved in bringing the goods to the named place.’

  This means that the buyer bears all risks and costs of import clearance at the port or at the border of the agreed place of destination, whereas customs clearance for export is on the seller, differently from DDP.

DAP proves to be a favoured option when the Financing Agreement foresees an exemption of import duties (usually the case under the EDF), by relieving the seller from often lengthy customs formalities. However, in case there are no exemption of import duties in the Partner Country, DDP is the favoured option.

Unloading is not included in the Incoterms delivery conditions; however it is foreseen in Article 15(1) of the General Conditions for supply contracts. Nevertheless, when it is required, it should also be added in the instructions to tenderers and in the special conditions of the contract. Further requirements for liability and insurance may also be introduced in special conditions Article 12.

In addition to choosing delivery conditions in Article 16 of special conditions, any other element needing to be included or excluded from the tender price can be specified in special conditions Article 15, otherwise Article 15(1) fully applies.

4.3.3. Award criteria

The criteria should be precise, non-discriminatory and not prejudicial to fair competition. All criteria must be applied as specified in the tender dossier and cannot be changed during the procedure.

The technical evaluation will be based on the evaluation grid published in the tender dossier, that must not be changed in any way during the evaluation process. Given the wide variety of supplies and their technical nature, the technical requirements must be tailored to each tender in a yes/no format to allow a clear assessment of whether or not the offer meets the technical specifications set out in the tender dossier.

The award criterion applied to technically compliant tenders is the lowest price or, in exceptional cases mentioned in Section 4.3.3.3., the best price-quality ratio.

4.3.3.1. Supply contracts not including ancillary services

Price is the sole award criterion for awarding supply contracts not including ancillary services (such as after-sales services and training). All non-compliant tenders having already been rejected, the contract is awarded to the tenderer submitting the least expensive, compliant tender.

Where specified in the technical specifications, the financial evaluation may take into account not only the acquisition costs but, to the extent relevant, costs borne over the life cycle of the supplies (such as maintenance costs and operating costs), in line with the conditions set out in Article 20(4)(c) of the instructions to tenderers. If so, the procurement dossier must in advance indicate the data to be provided by the tenderers and the method that will be used to determine the life-cycle costs on the basis of those data.

If the selected tender exceeds the maximum budget available for the contract, Section 4.2.6.1.(k) applies.

4.3.3.2. Supply contracts including ancillary services

Where a supply contract includes ancillary services (such as after sales services and/or training), the technical evaluation should take into account the quality of such services on a yes/no basis. All non-compliant tenders having been eliminated, the contract is awarded to the tenderer offering the lowest price for both equipment and ancillary services together.

If the selected tender exceeds the maximum budget available for the contract, Section 4.2.6.1.(j) applies.

4.3.3.3. Supply contracts including particularly significant ancillary services

Where a supply contract includes particularly significant ancillary services (such as after sales services and/or training), the evaluation may be carried out either as in Section 4.3.3.2. or, subject to prior approval, according to the best price-quality ratio criterion.

4.3.4. Information meetings and site visits

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 at least 21 days before 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 session, as well as the outcome and the minutes, must also be uploaded on F&T portal 8 days before the expiry of the deadline for the submission of tenders.

4.3.5. Deadline for the submission of tenders

Tenders must be submitted to the contracting authority no later than the date and time referred to in the contract notice. 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 period prevents candidates from tendering or causes them to submit incomplete or ill-prepared tenders.

The deadline for submissions must fall on a working day in the country of the contracting authority. It is advised to organise the tender-opening session one week after the deadline for submission to allow tenders submitted on the last day, in paper submission, and tenders guarantees, if applicable, to arrive at the contracting authority premises.

4.3.6. Period of validity

See Section 2.9.5.

4.3.7. Submission of tenders

4.3.8. The evaluation committee

For the committee’s composition, impartiality and confidentiality, responsibilities and 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.

4.3.9. Stages in the evaluation process

4.3.9.1. Receipt and registration of tenders

4.3.9.2. Preparatory meeting

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

4.3.9.3. Tender opening session

Tender opening session

The purpose of the opening session is to check whether the tenders have been submitted in accordance with the submission requirements of the call for tenders. See the tender opening checklist in Annex c5 for the detailed formalities to be carried out by the chairperson with the assistance of the secretary.

The tender opening session is a formal, public process. The evaluation committee opens the tenders in public at the place and time set in the tender dossier and announces the total financial offer, and if any discounts are applicable. Although it is public, participation in the tender opening session is restricted to representatives of the companies that are tendering for the contract. A maximum of two representatives per tender may attend.

In case of a session requiring physical attendance, tenderers’ representatives attending the meeting must sign the presence list which will be attached to the tender opening record, Annex c6. If the tender opening session is organised on-line, the presence list has to be drawn and signed by the secretary after verifying details of the connected representatives (e.g. in chat) and always including the email addresses, in case further correspondence is needed (e.g. discrepancies between information on price in e-submission and Financial offer).

In the case that at the date of the opening session some tenders have not been delivered to the contracting authority, but their representatives can show evidence that it has been sent on time, the contracting authority will allow them to participate in the first opening session and inform all representatives of the tenderers that a second opening session will be organised.

At the tender opening, the tenderers’ names, the tender prices, any discount offered, written notifications of alteration and withdrawal, the presence of the requisite tender guarantee (if required) and such other information as the contracting authority may consider appropriate may be announced.

After the public opening of the tenders, no information relating to the examination, clarification, evaluation of tenders, or recommendations concerning the award of the contract can be disclosed until after the contract has been awarded.

Compliance 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 tenders received, joint tender/consortium members and any identified subcontractor). See Sections 2.9.2. and 2.9.3.

The evaluation committee must decide whether or not tenders comply with the formal requirements.

The minutes of this meeting are included in the tender opening record and the tender opening record must be made available to the tenderers on request.

All tenders received after the deadline for submission specified in the contract notice or these instructions will be kept by the contracting authority. However, any tender guarantee must be returned to the tenderers that do not comply with the formal submission requirements. This implies that tenders that have been submitted, in paper submission, after the submission deadline must also be opened (after the opening session) so that the guarantees can be returned.

4.3.9.4. Evaluation of technical offers

The evaluation committee must use the administrative compliance grid and the evaluation grid published in the tender dossier.

During the technical evaluation, the evaluation committee analyses whether the tenders satisfy the requirements set in the tender dossier. If the tender is divided into lots, the evaluation should be carried out lot by lot. The technical evaluation includes any service components included in the technical specifications. No scoring method should be used. The results are recorded in a yes/no grid for all the items specified in the tender dossier.

In case the tenderer provides documentation, it should clearly indicate the models offered and the options included, if any. Offers that do not permit to identify precisely the models and the specifications may be rejected by the evaluation committee.

If requested by the 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 deadline set by the evaluation committee.

Part 1: administrative compliance

Before conducting a detailed evaluation of the tenders, the contracting authority checks that they comply with the essential requirements of the tender dossier (i.e. the administrative compliance grid).

A tender is deemed to comply if it satisfies all the conditions, procedures and specifications in the tender dossier without substantially departing from or attaching restrictions to them. Substantial departures or restrictions are those that affect the scope, quality or performance of the contract, differ widely from the terms of the tender dossier, limit the rights of the contracting authority or the tenderer’s obligations under the contract or distort competition for tenderers whose tenders do comply.

Each offer is examined for compliance with the tender dossier, in particular that:

• the documentation is complete;

• the language required by the tender dossier has been used;

• for consortia: the confirmation of association and designation of a lead company has been signed by all joint tender/consortium members;

• for tenderers intending to subcontract tasks: the tenderer has included a statement regarding the content and extent of subcontracting envisaged.

The administrative compliance of each of the tenders must be recorded in the evaluation report (see Annex c7).

Part 2: technical compliance

The detailed technical evaluation of the tenders takes place after the administrative compliance check.

The criteria to be applied are those published in the tender dossier and, accordingly, the evaluation grid included in the tender dossier must be used. Under no circumstances may the evaluation committee or its members change the evaluation grid communicated to the tenderers in the tender dossier.

The purpose of this evaluation is to assess whether the competing tenders meet the selection criteria.

The evaluation committee rules on the technical compliance of each tender, classifying it as technically compliant or not technically compliant. Where contracts include after-sales service and/or training, the technical quality of such services is also assessed in accordance with the published criteria.

Rule of origin

See from Section 2.3.4 to Section 2.3.7.

The contractor must declare the origin of goods in the offer. The tenderer will be required to provide proof of origin in the form of a certificate of origin or other official documentation as prima facie evidence, before the contract is signed if possible. It is the responsibility of the tenderer to verify that the provided information is correct.

Origin is the ‘economic’ nationality of goods in international trade. The rule of origin refers to the origin of goods and equipment. The additional information about the contract notice defines the rule of origin. Therefore, it is required to refer additional information about the contract notice and to PRAG Annex a2 in order to assess goods compliance with the rule of origin.

In case of any doubt as to the origin of goods, additional information must be requested. If the European Commission is not the contracting authority and doubts persist, the advice of the European Commission should be sought.

Tenders that clearly fail to satisfy the rule of origin must be rejected.

Nationality of subcontractors

See Section 2.3.1.

The evaluation committee must check at this stage that the nationalities of any subcontractors identified in the technical offers comply with the nationality rule mentioned in the additional information about the contract notice.

4.3.9.5. Evaluation of financial offers

Arithmetical errors

Once the technical evaluation has been completed, the evaluation committee checks that the financial offers contain no obvious arithmetical errors. Any obvious arithmetical errors are corrected without penalty to the tenderer.

• If the evaluation committee discovers a discrepancy in the total amount of the tender inserted in the e-Submission field “Total amount excl. taxes” and in the amount indicated in the uploaded financial offer, only the amount indicated in the financial offer will be taken into account.

• Where there was a discrepancy between amounts in figures and in words, the amount in words prevailed.

• Where there was a discrepancy between a unit price and the total amount derived from the multiplication of the unit price and the quantity, the unit price as quoted prevailed, except where the evaluation committee agreed that there was an obvious error in the unit price, in which case the total amount as quoted prevailed.

• Where unconditional discounts applied to financial offers for individual lots, the discount was applied to the financial offer.

Abnormally low tenders

For abnormally low tenders, please refer to Section 2.6.10.1.

Discounts

In case of lots, a tenderer may include in its tender the overall discount it would grant in the event of some or all of the lots for which it has submitted a tender being awarded. The discount should be clearly indicated for each lot in such a way that it can be announced during the public tender opening session. Contracts will be awarded lot by lot, but the contracting authority may select the most favourable overall solution after taking account of any discounts offered.

An example of how to treat discounts:

Company A offers a discount of 20% if awarded lots 1 and 3, company B offers a discount of 10% if awarded all three lots, company C offers no discount.

After applying the discount:

The 3 combinations possible:

The contracting authority must choose combination 1, awarding contracts for lots 1 and 3 to company A and lot 2 to company B for the initial price offered.

4.3.9.6. Choice of contractor

The successful tenderer is the one submitting the least expensive tender classified as ‘technically compliant’ during the technical evaluation. It must be declared the successful tender if it is equal to or lower than the maximum budget available for the contract.

For the exceptional cases with the best price-quality ratio, see Section 4.3.3.3.

If the chosen tender exceeds the maximum budget available for the contract, Section 4.2.6.1.(k) applies.

4.3.9.7. Evaluation committee’s recommendation

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

• Award the contract to the tenderer that 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;

• is compliant with the technical specifications;

• that is the least expensive tender (or, in exceptional cases mentioned in Section 4.3.3.3., the tender with the best price-quality ratio (satisfying all of the above conditions).

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

At the latest during the evaluation procedure and before taking the award decision, the contracting authority ensures that there is no record of the presumed successful tenderer, including joint tender/consortium members, subcontractors or capacity providing entities, if any, in exclusion situation in the EDES nor in the lists of EU restrictive measures [22] (see sections 2.4.2.1. and 2.4.1.).

During the evaluation procedure and before taking the award decision, the evaluation committee will request copies of documentary evidence for exclusion and selection criteria from the presumed successful tenderer.

If upon verification, the evaluation committee considers the submitted documentary evidence not admissible, it will request the same evidence from the next best ranked tenderer.

The evaluation report is drawn up. The contracting authority will then take its decision. The entire evaluation procedure, including the notification to 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.

Subject to the contracting authority’s legislation on access to documents, the entire tender procedure is confidential from the end of the tender opening session until both parties have signed the contract. The evaluation committee’s decisions are collective and its deliberations must remain secret. The evaluation 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 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 Court of Auditors).

4.3.10. Cancelling the tender procedure

See Section 2.6.13.

A cancellation notice must be published following the guidelines for publication (see Annex a11e).

Tenderers must always be informed as soon as possible if it is decided, in the course of the procedure, to cancel it. Tenderers are entitled to the immediate release of their tender guarantee.

If the tender procedure is cancelled before the opening session, in case of paper submission (indirect management), the unopened and sealed envelopes must be returned to the tenderers.

4.3.11. Award of the contract

4.3.11.1. Notifying the successful and unsuccessful tenderers

See section 2.10.1. See format of letter in Annex c8a) for successful tenderer and in Annex c8b) for unsuccessful tenderers.

The notification letter (Annexes c8a) 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.

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

See Section 2.10.1.

4.3.11.3. Contract preparation and signature

See Section 2.10.2 and 2.10.3. The proposed contract must follow Annex c4.

The performance guarantee, if applicable, must be placed, at the latest, on return of the countersigned contract (see Section 4.3.2.).

Unless specified otherwise in the special conditions of the contract, contracting authority shall inform the contractor by delivery order of the date on which delivery of the goods of the tasks shall begin. See article 18 of the General Conditions.

4.3.11.4. Publicising the award of the contract

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

4.4. Local open tender for contracts between EUR 100 000 and EUR 300 000[23]

In this case, the contract notice is published in the local official journal of the partner country or any equivalent local media, and where necessary in order to ensure an adequate level of competition, in the Official Journal of the European Union, F&T portal. Publication in the local official journal or equivalent media is the responsibility of the partner country.

As the cost of publishing the full contract notice in the local media may be high, the template in Annex c3 gives the minimum information that must be included in a local advertisement. However, the full contract notice must be available from the address referred to in the advertisement, together with the tender dossier.

Note that a local open tender procedure must provide other eligible contractors with the same opportunities as local companies. No conditions seeking to restrict the participation of other eligible contractors are allowed (e.g. obliging such companies to be registered in the partner country or to have won contracts there in the past).

In this procedure, there must be a minimum of 30 days between the date of publication of the contract notice in the local press and the deadline for submission of tenders. However, in exceptional cases, a shorter deadline may be allowed in compliance with internal procedures.

The measures applicable to an international open procedure, as described in Section 4.3., apply by analogy to the local open procedure.

For contracts of EUR 150 000 or below, the contracting authority may decide, on the basis of objective criteria such as the type and value of the contract, not to require a performance guarantee.

4.5. Simplified procedure for contracts under EUR 100 000[24]

See section 2.6.4. for guidance on the simplified procedure.

The contracting authority may award contracts under EUR 100 000 by simplified procedure, without publishing the contract notice. The contracting authority draws up a list of at least three companies with a justification for its choice. The candidates are sent a letter of invitation to tender accompanied by a tender dossier. The contract notice (annex c2) is not published, but it is included in the tender dossier as it contains important information for those companies that are invited to tender.

The remainder of the procedure (preparing the tender dossier, evaluating the tenders, awarding the contract, etc.) is the same as under the international open procedure (see Sections 4.3.2. to 4.3.11.3.).

For contracts under a simplified procedure, the contracting authority may decide, on the basis of objective criteria such as the type and value of the contract, not to require a performance guarantee.

4.6. Single tender procedure for contracts between EUR 20 000 and EUR 2 500

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.

4.7. Modifying supply contracts

See Section 2.11. for general information on modifying contracts. See section 4.2.6.1.d on negotiated procedures.

Administrative order

Administrative orders may take the form of additions, omissions, substitutions, changes in quality, quantity, form, character, kind, as well as in drawings, designs or specifications where the supplies are to be specifically manufactured for the contracting authority, in method of shipment or packing, place of delivery, and in the specified sequence, method or timing of implementation of the tasks.

In case of supply contracts, administrative orders can modify the total contract amount. Moreover, in addition to the provisions in section 2.11.1, administrative orders can already be issued at the time of contracting, before the implementation has started (see general conditions article 22(2)).

The following ceilings are applicable to administrative orders:

• changes in the quantity per lot or per item can increase or decrease with 100%

• the total value of supplies should follow the double de minimis rule: the value of the successive modifications should be below EUR 300 000 and below 10% of the initial contract value (see General Conditions article 22(2) and case (d) in section 2.11.2.3).

If the modifications exceed these ceilings, a modification through addendum is required.

The following procedure applies to issuing administrative orders:

• the project manager shall notify the contractor of the nature and the form of the proposed amendment;

• the contractor shall submit to the project manager a written proposal for an administrative order including a description of all tasks, if any, to be performed, or the measures to be taken, and a programme of implementation of the tasks. It shall also include, if necessary, a proposed financial adjustment to the contract.

Following receipt of the contractor's proposal, the project manager shall decide as soon as possible whether 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 accordance with the General Conditions article 22(7).

Where the tasks are not of a similar character or are not implemented under similar conditions, as far as is reasonable, appropriate rates and prices in the budget should be used as a basis for comparison. If that is not possible, the project manager shall make a fair evaluation. The resulting amount should cover the estimated actual cost to the contractor, as well as overheads and profit.

Sometimes a modification is made necessary by a failure of the contractor or by a deficiency in implementation, which is imputable to her/him. In this case, all the additional costs created by this modification are attributable to the contractor (see General Conditions article 22(7)).

There may be urgent situations where it is necessary to issue oral instructions to the contractor. In such cases, the oral instructions should be promptly confirmed by issuing an administrative order. Alternatively, the contractor may confirm in writing an oral order, which has been given by the project manager or the contracting authority. This is deemed to be an administrative order unless immediately contradicted by the project manager or the contracting authority in writing (see General Conditions article 22(4)(b)).

Modification not requiring an amendment

Modifications resulting from the strict application of the procurement documents or contractual provisions do not constitute a modification of the contract and therefore do not require an administrative order or a contractual addendum (see exception mentioned under case d) in section 2.11.2.4). This type of modifications is not subject to the financial ceilings listed in cases (a), (b) and (c) mentioned in section 2.11.2.2 and 2.11.2.3.

For supply contracts there are two cases where modifications do not therefore require an administrative order or a contractual addendum:

1. Increases or decreases as regards the quantity of any incidental siting or installation that are a result of too low or too high estimates in the budget breakdown (General conditions article 22(4)(c)).

2. An extension of the period of implementation of the tasks as may be justified, either prospectively or retrospectively (General Conditions article 20). The extension of the period of implementation of the tasks can be done by notice.