5.1.  Introduction

Works contracts cover either the execution, or both the execution and design, of works or a work related to one of the activities referred to in Annex II to Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC [1] or the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work. A ‘work’ means the outcome of building or civil engineering works taken as a whole that is sufficient in itself to fulfil an economic or technical function.

Works contracts are usually concluded by the partner country with which the European Commission has a financing agreement (under indirect management).

5.2.  Procurement procedures

5.2.1.  Contracts with a value of EUR 5 000 000 or more

5.2.1.1.  Open procedure

The standard method of awarding works contracts is by means of an international open tender procedure following publication of all relevant notices as stipulated in the publication guidelines (Annex A11e). For details, see Section 5.3.

5.2.1.2.  Restricted procedure

In view of the characteristics of certain works, a restricted tender procedure may be used. The templates for Restricted and Design&Build procedures are not maintained in the current list of annexes. Services which, however, want to use these templates will have to adapt them using the archived PRAG version 2018.0 of the Restricted or Design&Build procedures and inserting all provisions of mandatory application that have been incorporated since the 2018.0 PRAG version, notably in the contract notice, additional information about the contract notice, the instructions to tenderers and the draft contract of the international open procedure. The competent authority of the European Commission must authorise the use of this approach and may provide technical support on a case-by-case basis. Publication of the relevant notice as stipulated in the publication guidelines (Annex A11e) remains mandatory to ensure the widest possible participation. For details, see Section 5.4.

5.2.2.  Contracts with a value of EUR 300 000 or more but less than EUR 5 000 000

5.2.2.1.  Local open procedure

Contracts are awarded after an open tender procedure published locally. The contract notice is published in the local official journal of the partner country or any equivalent media, and where necessary in order to ensure an adequate level of competition, on the Official Journal of European Union, F&T portal. For details, see Section 5.5.

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

5.2.3.1.  Simplified procedure

Works contracts under EUR 300 000 are awarded by the simplified procedure [2]. At least three candidates are sent an invitation to tender. No contract notice needs to be published. For details, see Section 5.6.

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

The contracting authority may award works contracts of a value of EUR 20 000 or less on the basis of a single tender. See Section 2.6.8.

For works less than or equal to EUR 2 500, payments may be made 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, an order form, etc.

5.2.5.  Procedures applicable without ceilings

5.2.5.1.  Negotiated procedure

Works contracts may be awarded by negotiated procedure on the basis of one or several tenders in the following cases [3]:

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.

b)      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].

c)       For new works consisting in the repetition of similar works entrusted to the economic operator to which the same contracting authority awarded an original contract, provided that these works are in conformity with a basic project for which the original contract was awarded after publication of a contract notice that indicate the extent of possible new works and the conditions under which they will be awarded (i.e. the possible use of the negotiated procedure). The total estimated amount for these subsequent works must be taken into consideration in applying the applicable thresholds to determine the correct procurement procedure to follow.

d)      Where the tender procedure has been unsuccessful, that is to say where no qualitatively and/or financially worthwhile tender has been received. In such cases, 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, if they comply with the selection criteria, provided that the original procurement documents are not substantially altered and the principle of equal treatment is observed.

e)       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 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 that the contracting authority makes available in the procurement procedure.

f)       For the purchase of public communication networks [5].

g)      For building contracts, after prospecting the local market.

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

i)          Where the works can only be provided by a single economic operator 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.

The contracting authority must prepare a negotiation report (see template in Annex A10) justifying the manner in which the negotiations were conducted and the basis for the contract award decision resulting from these negotiations. The procedures set out in Section 5.3.11.1. and Section 5.3.11.2. must be followed by analogy, and the negotiation report included in the contract dossier.

5.2.5.2.  Competitive dialogue

See Section 2.6.7. for further details.

5.3.  International open tender (for contracts of EUR 5 000 000 or more)

5.3.1.  Publicity

To ensure the widest possible participation in competitive tendering and the requisite transparency, a contract notice and additional information about the contract notice must be published for every open tender procedure, according to the guidelines on publication (see Annex A11e).

5.3.1.1.  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 notices must give a brief indication of the subject and content of the tenders. Prior information notices are sent as soon as possible after the decision approving the programme for works contracts. Publishing a prior information notice does not bind the contracting authority to finance the contracts proposed and prospective contractors are not expected to submit tenders at this stage. Prior information notices are published in the Official Journal of the European Union, on the F&T portal and in any other appropriate media.

5.3.1.2.  Publication of contract notices

All works contracts of EUR 5 000 000 or more must be the subject of a contract notice and additional information about the contract notice (Annex A5f) published in the Official Journal of the European Union, on the F&T portal and in any other appropriate media. A minimum of 30 days must be given between the publication of the prior information notice, if any, and the contract notice/additional information about the contract notice. The European Commission (acting on behalf of the contracting authority) is responsible for publication in the Official Journal of the European Union and on F&T portal. The contracting authority must arrange local publication and publication in any other appropriate media directly.

The contract notice must state clearly, precisely and completely the subject of the contract and the contracting authority. 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 as short description of the contract notice, in order to give the necessary elements allowing the economic operators to prepare and submit offers. If the contract notice and additional information about the contract notice are also published locally, it must be identical to the ones published on the Official Journal of the European Union, F&T portal and appear at the same time.

If the contracting authority, either on its own initiative or in response to the request of a tenderer, amends information in the contract notice or 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 for direct management. In indirect management the appropriate template (Annex A5b) shall be used and forwarded to the relevant EU delegation for publication, 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 may extend the deadline to allow candidates to take the changes into account.

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.

5.3.2.  Drafting and content of the tender dossier

Tender documents must be carefully drafted to ensure that both the contract and the procurement procedure are carried out correctly.

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. When the contracting authority is the European Commission, it may be appropriate for representatives of the final beneficiaries to participate in preparing the tender dossier at an early stage. See Section 2.8. for guidelines on drafting technical specifications.

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:

a)       quality levels;

b)      environmental performance and climate performance;

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

d)      the levels and procedures of conformity assessment;

e)       performance (fitness for use);

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

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

The contracting authority is responsible for drawing up these documents. The tender documents will be shared via TED e-Tendering.

Given the technical complexity of many works contracts, 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).

As with the terms of reference for service contracts, particular care must be taken when drafting the technical specifications. They are the key to successful procurement, a sound works contract and a successful project.

Technical specifications state — where applicable and lot by lot — the exact nature and performance characteristics of the works. 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 a site visit to clarify technical requirements at the site where the works are to be carried out, this should be specified in the instructions to tenderers, together with details of the arrangements.

The purpose of the technical specifications is to define the required works 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’.

The tender dossier must contain the following documents:

CONTENT OF THE TENDER DOSSIER

Volume 1: Instructions to tenderers and tender submission forms

Volume 2: Draft contract and conditions

Volume 3: Technical specifications

Volume 4: Model financial offer

Volume 5: Design documents and drawings

See Annex D4 for template.

The tender dossier must clearly state whether a firm, non-revisable price must be quoted. A price revision clause might be justified and works contracts are commonly subject to price revision. If that is the case, it is recommended that a price revision formula, following the models given in Article 48 of the special conditions, be included. When taking a decision on price revision, the contracting authority must consider:

a)      the object of the procurement procedure and the economic situation in which it is taking place;

b)      the type of tasks and contract and their duration;

c)      its financial interests.

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 it, representing 1% to 2% of the overall value of the contract. The contracting authority must return the tender guarantee as foreseen in Sections 5.3.9.3. at the end and 5.3.10. 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.

According to the applicable rules, guarantees (pre-financing, retention and/or performance guarantee) could be required or not. If so, this must be mentioned in the tender dossier.

5.3.3.  Selection and 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.

1. The selection criteria

They concern the tenderer’s capacity to execute the contract.

The selection procedure involves:

-    eliminating tenderers who are ineligible in view of their nationality (see Section 2.3.1.), are subject to EU restrictive measures (see Section 2.4) or fall into one of the situations described in Sections 2.6.10.1.1. (exclusion from participation in procurement procedures) and 2.6.10.1.2. (rejection from a given procedure);

-    checking that the tenderers’ financial situation (financial and economic capacity) is sound, as backed up, for example, by balance sheets and turnover for the previous 3 years (see Section 2.6.11.2.) if specifically required in the tender dossier;

-    verifying the tenderers’ technical and professional capacity, for example, by looking at their average annual staffing levels, the size and professional experience of their management, and the main works carried out in the sector in question in recent years (see Section 2.6.11.3.).

The selection criteria specified in the annexes to this practical guide are given by way of illustration and need to be adapted to the nature, cost and complexity of the contract. They must be in a yes/no format to allow a clear assessment of whether or not the offer meets them.

2. Evidence of selection criteria

If, for some exceptional reason that the contracting authority considers justified, the tenderer or candidate is unable to provide the references required by the contracting authority, it may prove its economic and financial capacity by any other means that the contracting authority considers appropriate. Where the works to be implemented are complex or, exceptionally, are required for a special purpose, evidence of technical and professional capacity may be secured by means of a check carried out by the contracting authority or on its behalf by a competent official body of the country in which the tenderer is established, subject to that body’s agreement. These checks will cover the tenderer’s technical capacity and production capacity and, if necessary, its study and research facilities and quality control measures.

3. Technical evaluation

The technical evaluation will be based on the evaluation grid published in the tender dossier, which must not be changed in any way during the evaluation process.

As a rule, the technical requirements for the works are laid down in the design (including plans, drawings, material-specifications, …) previously made by a service provider in engineering/architecture that is annexed to the tender dossier and which to the very detail determines how the works must look like. In such cases, in a yes/no format, a clear assessment can be made of whether or not the offer meets the technical specifications set out in the tender dossier.

Only very exceptionally, subject to derogation [6], the technical requirements for the works will limit themselves to minima above for which the tenderers can propose its own solutions: only in such cases, the offers that comply with those minimum quality levels, should be technically scored in accordance with the technical evaluation grid (setting out the technical criteria, subcriteria and weightings) laid down in the tender dossier.

4. Financial evaluation

As a rule, the award criterion during the financial evaluation of works offers, is the lowest price.

Subject to prior approval, 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 works (such as for instance maintenance costs and operating costs): if so, the tender 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.

5. Most economically advantageous tender

Where no technical scoring is given to the offers, the most economically advantageous tender is the technically compliant tender with the lowest price.

Where exceptionally, subject to derogation, a technical scoring is given to the offers, the most economically advantageous tender is the technically compliant tender with the best price-quality ratio, determined by the results of the technical and financial evaluation in accordance with the weightings laid down in the tender dossier.

5.3.4.  Additional information during the procedure

The tender dossier must be clear enough to save tenderers from requesting additional information during the tender procedure. The contracting authority can provide additional information on the tender dossier, either on its own initiative or in response to a tenderer’s request. It must send that information in writing to all tenderers at the same time.

Tenderers may submit questions via TED e-Tendering platform 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 no later than 8 days before the deadline for receipt of tenders. In case of indirect management with ex ante controls, the European Commission transmits the questions to the partner country. The partner country then submits the clarifications to the European Commission for ex ante approval and publication in TED e-Tendering.

Clarifications and any minor changes to the tender dossier must also be done in TED e-Tendering. 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 questions result in an amendment to the contract notice, a corrigendum must be published as explained in Section 5.3.1.2. The corrigendum must be published before the submission deadline. The deadline for the submission of tenders may be extended to allow tenderers to take account of the changes. The corrigendum must also be published in TED e-Tendering.

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. The contracting authority must state in the tender dossier if attendance at this meeting or site visit is strongly advised or compulsory. All costs of attending the meeting must be met by the tenderers. Individual visits by companies during the tender period cannot be organised by the contracting authority for reasons of 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 at least on the TED e-Tendering.

5.3.5.  Deadline for the submission of tenders

Tenders must be be submitted to the contracting authority no later than the date and time indicated in the contract notice. The period for submission must be sufficient 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 submission 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 case of paper submission, and tender guarantees, if applicable, to arrive at the contracting authority premises.

5.3.6.  Period of validity

See Section 2.9.5.

5.3.7.  Submission of tenders

For electronic submission (direct management), tenders must be submitted exclusively via the electronic submission system (eSubmission) available via a link in the TED eTendering platform [7]. Tenders submitted in any other way (e.g. e-mail or by letter) will be disregarded.

For paper submission (indirect management), each technical and financial offer must be placed in a single sealed envelope, itself placed in a package or outer sealed envelope.

The tender must be submitted in accordance with the instructions to tenderers.

5.3.8.  The evaluation committee

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

5.3.9.  Stages in the evaluation process

5.3.9.1.  Receipt and registration of tenders

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

For 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).

5.3.9.2.  Preparatory meeting

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

5.3.9.3.  Tender opening session

The purpose of the tender opening session is to check that the tenders are complete, that the requisite tender guarantee has been provided and that the tenders are generally in order.

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. Although it is public, participation in the tender opening session is restricted to representatives of the companies that are tendering for the contract.

See the tender opening checklist in Annex D5 for the detailed formalities to be carried out by the chairperson with the assistance of the secretary.

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 Sections 2.9.2 and 2.9.3.

The evaluation committee must decide whether or not tenders comply with the formal 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 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 tender opening record (see Annex D6), must be used to record the compliance of each of the tenders with the formal submission requirements. It must be made available to the tenderers upon request.

Any tender guarantee that does not comply with the formal submission requirements, must be returned to the tenderers. In case of paper submission, this implies that any tenders that have been submitted after the submission deadline, must be opened (after the opening session) so that the guarantees can be returned.

5.3.9.4.  Evaluation of tenders

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

As part of the technical evaluation, the evaluation committee analyses the commercial aspects, and, where applicable, the service component of the tenders to determine whether they satisfy the requirements set in the tender dossier. The results are recorded in a yes/no grid for all elements specified in the tender dossier. Only very exceptionally, subject to derogation, a technical scoring method should be used, in accordance with Section 5.3.3. above. If the tender is divided into lots, the evaluation should be carried out lot by lot.

With the agreement of the majority of the evaluation committee voting members, the chairperson may write to tenderers whose submissions require clarification, asking them to reply within a reasonable deadline set by the evaluation committee.

Part 1: administrative compliance

Before conducting a detailed evaluation of the tenders, the evaluation committee 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 administrative compliance with the tender dossier in accordance with the published administrative compliance grid.

The administrative compliance of each of the tenders must be recorded in the evaluation report (see Annex D7).

Part 2: technical compliance of tenders

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 or not the competing tenders meet the minimum technical requirements and selection criteria.

Rule of origin : (applicable only to contracts financed by a basic act under the multiannual financial framework for the years 2014-2020 (above EUR 100 000 under CIR and independently of the value for other instruments) and to contracts financed by the INSC Regulation 2021/948 of 27 May 2021 under the multiannual financial framework for the years 2021-2027): all tenders must comply with the rule that goods purchased and materials to be incorporated in the permanent works fulfil the requirements referred to in Section 2.3.5. Tenders that fail to satisfy the rule of origin must be rejected. The rule of origin does not apply to the contractor’s equipment used during the construction, unless the tender dossier explicitly stipulates that this equipment becomes the full property of the contracting authority at the end of the contract.

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.

For more details, see Section 2.3.5. and 2.3.8.

For contracts financed by a basic act under the Multiannual Financial Framework 2021-2027, with the exception of the INSC Regulation 2021/948 of 27 May 2021, all supplies and material may originate from any country and no declaration of origin is required.

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

Having evaluated the tenders, the evaluation committee rules on the technical compliance of each tender, classifying it as ‘technically compliant’ or ‘not technically compliant’. Only very exceptionally, subject to derogation, the technically compliant offers are subsequently technically scored in accordance with a technical evaluation grid laid down in the tender dossier (see Section 5.3.3. above).

5.3.9.5.  Evaluation of financial offers

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 tender procedure contains several lots, financial offers are compared for each lot. The financial evaluation must pick out the best financial offer for each lot, taking due account of any discounts offered.

For an example of how to treat discounts, see Section 4.3.9.5.

5.3.9.6.  Choice of contractor

The successful tenderer is the one with the most economically advantageous tender determined in accordance with Section 5.3.3. above. It must be declared the successful tender if it is equal to or lower than the maximum budget available for the contract.

If the chosen tender exceeds the maximum budget available for the contract, the provisions set out in Section 5.2.5.1.(c) may apply.

Abnormally low tenders

Contracting authorities can reject tenders that appear to be abnormally low in relation to the works 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 construction method, 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 to reject the tender or not.

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

5.3.9.7.  The evaluation committee’s conclusions

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;

-          that meets the minimum technical requirements specified in the tender dossier;

-          that is the most economically advantageous tender (satisfying all of the above conditions).

·         Cancel the tender procedure, see Section 2.6.13.

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 to the signature of the contract by both parties. 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 the law of the country of the contracting authority 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).

5.3.10.  Cancelling the tender procedure

See Section 2.6.13.

Tenderers are entitled to the immediate release of their tender guarantee.

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

5.3.11.  Award of the contract

5.3.11.1.  Notifying the successful and unsuccessful tenderers

See Section 2.10. and Section 2.6.12. in case of suspension clause.

5.3.11.2.  Standstill clause (applicable for contracts above EUR 5 000 000)

See Section 2.10.1.

5.3.11.3.  Contract preparation and signature

See Section 2.10.2 and 2.10.3.

The proposed contract must comply with the template in Annex D4.

5.3.11.4.  Publicising the award of the contract

See Section 2.10.3.1.

5.4.  Restricted tender for contracts of EUR 5 000 000 or more

In view of the characteristics of certain works, a restricted tender procedure may be used in justified cases. The relevant services of the European Commission may provide technical support on a case-by-case basis. References to PRAG annexes in this section refer to the archived PRAG version 2018.0.

5.4.1.  Publicity

In order to ensure the widest possible participation in competitive tendering and the requisite transparency, the contracting authority must publish contract notices  and additional information about the contract notices (annex a5f) for all work contracts of EUR 5 000 000 or more.

5.4.1.1.  Publication of prior information notice

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 is to be sent as soon as possible after the decision approving the programme for works contracts and must briefly state the subject and content of the contracts concerned. Publishing a prior information notice does not oblige the contracting authority to finance the contracts mentioned and candidates are not expected to submit applications at this stage.

The contracting authority is responsible for drafting the prior information notice using the relevant template and for submitting it for publication on the F&T portal and in the Official Journal of the European Union in electronic form (see publication guidelines in Annex A11e). If necessary, the contracting authority arranges simultaneous local publication and publication in any other appropriate media directly.

5.4.1.2.  Publication of contract notices

Minimum 30 days after publication of the prior information notice, if any, a contract notice and additional information about the contract notice must be published in the Official Journal of the European Union, on the F&T portal and in any other appropriate media.

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

The selection criteria set out in the contract notice must be:

–        clearly formulated, without any ambiguity

–        easy to check on the basis of the information submitted using the standard application form (see Annex dr3)

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

The time allowed for candidates to submit their applications must be sufficient to permit proper competition. The minimum deadline for submitting applications 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. The actual deadline will be determined by the contract’s size and complexity.

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

The contract notice must be clear enough to save candidates from requesting clarifications or additional information during the procedure. Candidates may however submit questions should they need to. If the contracting authority modifies the contract notice/additional information about the contract notice, either in response to a question or on its own initiative, a corrigendum including the changes must be submitted for publication to the relevant service of the European Commission (see Annex A5b). The corrigendum will be encoded directly in eNotices and, in indirect management the appropriate template (Annex A5b) shall be used and forwarded to the relevant EU delegation for publication, always complying with the deadlines set up in the publication guidelines (see Annex A11e). The corrigendum must be published before the submission deadline and the latter may be extended 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 application.

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, a clarification must be published on the Official Journal of European Union and F&T portal.

5.4.2.  Drawing up shortlists

In eSubmission and only for direct management procedures, there are two types of committees: opening and evaluation committee. For each lot, the composition of both committees should be the same. The opening and evaluation committees must be appointed in PPMT before performing the opening session and the evaluation of requests to participate (or of applications forms if annex dr3 from PRAG 2018 is used).

Candidates are shortlisted by an evaluation committee appointed by the contracting authority comprising a non-voting chairperson, a non-voting secretary and an odd number of voting members (the evaluators).

There must be at least five evaluators. They must have the technical and administrative capacities necessary to give an informed opinion on the applications. Each member must have a reasonable command of the language in which the applications are submitted. All members of the evaluation committee must sign a declaration of impartiality and confidentiality (see Annex A4). For the responsibilities of the evaluation committee members, see Section 2.9.3.

The selection procedure involves:

-  drawing up a long list (see template in Annex dr4) summarising all the applications received;

-  eliminating applications that are inadmissible because submitted by ineligible candidates (see Section 2.3.1. on nationality rules) or fall into one of the situations described in Sections 2.6.10.1.1. (exclusion from participation in procurement procedures) and 2.6.10.1.2. (rejection from a given procedure);

-  applying the selection criteria exactly as published.

For the supply of supporting documents in relation to the exclusion and selection criteria, see points 2.6.10.1.3. and 2.6.11.

After examining the responses to 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 six candidates.

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

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. Before accepting a reduced competition of less than four candidates, prior authorisation of the European Commission is required save in indirect management with ex-post control 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 works in relation with 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 dr5 of the dR1 tender dossier).

Before the shortlist is approved by the evaluation committee, the contracting authority must check that no candidate (including partners) are in an exclusion situation in the early detection and exclusion system (see section 2.6.10.1.1.) or are subject to European Union restrictive measures (see section 2.4.).

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

Candidates not selected will be informed of that fact by the contracting authority by means of a standard letter, the format of which is given in Annex dr7. Candidates who are selected will receive a letter of invitation to tender and the tender dossier (see template in Annex dr8a).

The contracting authority is responsible for preparing the shortlist notice, which will be published together with the award notice in TED (section VI.3 of the award notice).

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.

Tender documents must be carefully drafted, to ensure that the contract is complete and that the procurement procedure is carried out correctly

Between the date of dispatch of the letters of invitation to tender and the deadline for receipt of tenders there must be a minimum of 60 days.

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. Tenders must be submitted exclusively via the electronic submission system (eSubmission) via a link in the TED eTendering platform [9].

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. Tenders should be submitted in accordance with the double envelope system.

The measures applicable to an open procedure, apply by analogy to the rest of the restricted procedure for works contracts, with the caveat that the elements related to the selection phase should not be taken into account. The publication of the tender dossier and way of submission will differ in case of direct or indirect management.

5.5.  Local open tender (for contracts of at least EUR 300 000 and under EUR 5 000 000)

In this case, the contract notice is  published in the local official journal or 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 local 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 D3 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 60 days between the date of publication of the contract notice in the local press and the deadline for receipt of tenders. However, in exceptional cases, a shorter deadline may be allowed in compliance with internal procedures, and subject to prior authorisation of the competent authority of the European Commission.

The measures applicable to an international open procedure, as described in Section 5.3., apply by analogy to the local open procedure. The principal difference is that the minimum number of evaluators in the evaluation committee is three.

Paper submission instructions in tender documents should be followed in local procedures both in direct and indirect management.

5.6.  Simplified procedure

The contracting authority may award contracts under EUR 300 000 using the simplified procedure, without publishing the contract notice. The contracting authority draws up a list of at least three contractors with a justification for its choice. The candidates are sent a letter of invitation to tender accompanied by a tender dossier. The contract notice is not published, but it is included in the tender dossier as it contains important information for those companies that are invited to tender.

Annex dS1 contains a specific tender dossier for the simplified procedures.

Tenders must be sent 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 in which to submit their tenders.

The tenders are opened and evaluated by an evaluation committee with the necessary technical and administrative expertise, appointed by the contracting authority.

If, following consultation of 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 one failure of the simplified procedure, the contract may be awarded by negotiated procedure subject to prior authorisation of the relevant services of the European Commission. The remainder of the procedure (including preparation of the tender dossier, evaluating the tenders and awarding the contract) is the same as under the international open procedure (see Sections 5.3.2. to 5.3.11.2.).

5.7.  Modifying works contracts

See Section 2.11. for general information on modifying contracts.

Where no contract modification is needed

In the vast majority of cases, the works contract stipulates that it is paid by measurement: in such contracts, the quantities indicated in the bill of quantities are estimates, as is the initial contract price derived from these estimated quantities.

Whenever an application for payment is submitted, the supervisor measures, for each item, the actual quantities of the works executed and calculates the amount due by applying the unit rates.

Increases vis-à-vis the initial contract price that are the sole result of the measured actual quantity exceeding the stated bill of quantities or price schedule do not represent a change of the contract and do not require an administrative order to amend the contract or an addendum.

Likewise, the application of the price revision clause of the contract will have the same effect. Again, since the price revision formula is already agreed upon by the contracting parties in the initial contract, the contract does not need to be amended to allow increases vis-à-vis the initial contract price to deal with their effect.

Administrative order

In a works contract, the supervisor has the power to issue an administrative order to change any part of the works if necessary for the proper completion and/or functioning of the works. These changes may include additions, omissions, substitutions, changes in quality, quantity, form, character, kind, position, dimension, level or line and changes in the specified sequence, method or timing of execution of the works. See Article 37 of the general conditions.

The contractor is bound to make the changes ordered. The contractor cannot delay the works ordered pending a decision on the claim he might have either to extend the period of implementation or for additional payment.

Addendum

Changes to the contract not covered by an administrative order must be formalised through an addendum. An addendum must be issued when the change entails an increase or reduction of the total value of the works in excess of 15% of the initial contract price.

The total period of execution of a works contract includes the period of implementation of the works and the defects liability period between provisional and final acceptance. During this time, the period(s) of implementation can be extended by administrative order or by contract addendum, even after the implementation period specified in the contract has expired.

A works contractor is committed to completing the works, and the contracting authority is committed to paying for the certified works. These commitments and the contract remain valid even if the contractor fails to complete the works within the period(s) specified in the contract, the consequence being that liquidated damages for delay can be deducted from the amounts due.

5.8.  List of Annexes