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European Commission

Directorate-General for International Partnerships

Contractual procedures

FOR EUROPEAN UNION EXTERNAL ACTION

A practical guide

Table of Contents

5. Works contracts

5.1. Introduction

Works contracts means a contract covering either [1]:

  1. the execution, or both the execution and design, of a work; or

  2. the execution, or both the execution and design, of 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 [2]; or

  3. 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 [3].

Works contracts are concluded under indirect management by the partner country with which the European Commission has a financing agreement [4].

5.2. Procurement procedures[5]

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

Open procedure

The standard method of awarding works contracts is by means of an international open tender procedure (see Section 5.3).

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

Local open procedure

Work contracts worth under EUR 5 000 000 and more than EUR 300 000 may be awarded through a local open procedure (see Section 5.5).

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

Simplified procedure

Works contracts under EUR 300 000 are awarded by the simplified procedure (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 2.6.8.2.).

For works 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).

5.2.5. Procedures applicable without ceilings

Negotiated procedure

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

The procedures set out in Sections 5.3.9. 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 [6].

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

Prior authorisation by the European Commission must be sought to use of the negotiated procedure. The evaluation report must be endorsed by the European Commission.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

No prior authorisation by the European Commission is required for the use of the negotiated procedure and the evaluation report does not need to be endorsed by the European Commission.

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 works contracts are listed below:

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 [7].

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 [8].

b. Where the works can only be provided by a single economic operator by a single economic operator and for any of the following reasons [9]:

      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 [10].

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

Operations carried out in crisis situations must be considered to satisfy the test of extreme urgency. The authorising officer by delegation, where appropriate in concertation with the other authorising officers by delegation concerned, must establish that a situation of extreme urgency exists and must review his decision regularly with regard to the principle of sound financial management [11].

d. 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 indicated 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 for the original contract [12].

e. For building contracts, after prospecting the local market [13].

f. 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 [14].

g. 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].

h. 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].

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

Competitive dialogue

See Section 2.6.7. for further details.

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

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

5.3.1. 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 work contracts of EUR 5 000 000 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.

5.3.1.1. Publication of prior information notices[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.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS AND INDIRECT MANAGEMENT WITH EX POST CONTROLS

The contracting authority drafts the prior information notice using the appropriate template (Annex a5d) and submits it to the European Commission for prior authorisation and for publication (see guidelines for publication in Annex a11e). If necessary, the contracting authority arranges simultaneous local publication and publication in any other appropriate media directly.

For indirect management with ex post controls, no prior authorisation by the European Commission is required.

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.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

The contracting authority drafts the contract notice using the appropriate template (Annex a5e and a5f) and submits it to the European Commission for prior authorisation and for publication through PPMT (see guidelines for publication in Annex a11e). If necessary, the contracting authority arranges simultaneous local publication and publication in any other appropriate media directly. In such case, the information published must be identical to the ones published on the Official Journal of the European Union and on the Funding and Tenders Portal and must be published at the same time.

In addition to the above, the finalised tender dossier must be submitted to the European Commission for approval.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

The contracting authority drafts the contract notice using the appropriate template (Annex a5e and a5f) and submits it to the European Commission for publication through PPMT (see guidelines for publication in Annex a11e, including for exceptions). If necessary, the contracting authority arranges simultaneous local publication and publication in any other appropriate media directly. In such case, the information published must be identical to the ones published on the Official Journal of the European Union and on the Funding and Tenders Portal and must be published at the same time.

No prior authorisation by the European Commission is required.

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 (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.

In case of works contracts under open procedure, the selection criteria are not described in the additional information about the contract notice, instead they are to be found in Section 12.2 of the instruction to tenderers. See Section 5.3.2. on the content of the tender dossier.

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.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

The contracting authority drafts the change notice using the appropriate template (Annex a5b) or the change to the additional information about the contract notice and submits it to the European Commission for prior authorisation and for publication through PPMT (see guidelines for publication in Annex a11e). If necessary, the contracting authority arranges simultaneous local publication and publication in any other appropriate media directly.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

The contracting authority drafts the change notice using the appropriate template (Annex a5b) or the change to the additional information about the contract notice and submits it to the European Commission for publication through PPMT (see guidelines for publication in Annex a11e). If necessary, the contracting authority arranges simultaneous local publication and publication in any other appropriate media directly.

No prior authorisation by the European Commission is required.

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.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

The contracting authority drafts the clarifications and submits it to the European Commission for prior authorisation and for publication through PPMT. If necessary, the contracting authority arranges simultaneous local publication and publication in any other appropriate media directly.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

The contracting authority drafts the clarifications and submits it to the European Commission for publication through PPMT. If necessary, the contracting authority arranges simultaneous local publication and publication in any other appropriate media directly.

No prior authorisation by the European Commission is required.

5.3.2. 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 the Funding & tenders portal.

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.

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. quality levels;

  2. environmental performance and climate performance;

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

  4. the levels and procedures of conformity assessment;

  5. performance (fitness for use);

  6. 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;

  7. 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.

When the contracting authority is the European Commission, it may be appropriate for representatives of the partner country to participate in preparing the tender dossier at an early stage. 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).

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 (see Section 5.3.4.).

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’.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

The contracting authority must submit the tender dossier to the delegation of the European Union for authorisation prior to issue.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

No prior authorisation of the tender dossier by the European Commission is required.

TENDER DOSSIER CONTENT

The tender dossier consists of (see Annex d4):

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

Selection criteria

The selection criteria (see Section 2.6.11.) set out in the instruction to tenderers must be:

  • drafted clearly without any ambiguity;

  • easy to check on the basis of the information submitted using the standard tender form (see Annex d4c);

  • 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 instruction to tenderers should be followed, and can be adapted to the nature, cost and complexity of the tendered contract where the template allows so. Only the presumed successful tenderers must supply supporting documents for the selection criteria before the award of the contract (see Section 2.6.11.).

Price revision

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

Prices must be revised for contracts:

  • with a total amount above EUR 5 000 000 (excluding VAT) and/or

  • with a duration above 1 year

Therefore, the international open procedure must always allow a revision of prices and the tender dossier must lay down the conditions and/or formulas for revision of prices during the lifetime of the contract (Article 48 of the special conditions).

Revision of prices refers to changes in the contract price that are due to external factors, beyond the control of the contracting authority and the contractor, and takes account of changes in the prices of significant elements in the contractor’s costs such as labour and materials (Article 48(2) of the general conditions and 48(4) of the general conditions). Revision of prices can result in increases or reductions of the contract price.

Revision of prices requires a reference date on which prices are determined. This date is set 30 days prior to the deadline for submission of tenders (Article 48(1) of the special conditions).

The detailed rules for price revision are to be mentioned in the special conditions (article 48(2), which should specify the elements that are subject to price revision. These will normally include the materials to be used in substantial quantities (e.g. cement, aggregates, timber, steel, fuel), often subject of mono-material formulas, and other elements taken into account in the proportional formula, such as labour, grouped in different categories (e.g., office personnel, various trades, plant operators, unskilled). Price revision supposes of course that the basic prices of these elements are clearly mentioned in the contract documents.

If the special conditions refer to the prices effectively paid by the contractor as a basis for price revision, the contractor should supply the invoices. This is not requested where the special conditions refer to price indices as the basis for price revision. This method can only be used for elements for which regular price indices are published in the states concerned. Whilst this method gives only an approximate estimate of the effect of price increases on the contractor’s costs, it is much simpler to use. Full details should be included in the special conditions if this method is to be used.

In the case of changes in laws or public regulations or decisions that cause extra cost to the contractor, price revision is, however, possible even when not stated in the special conditions (Article 48(4) of the general conditions). This refers for example to situations where new taxes are introduced.

Where the contractor fails to complete the works on the date that corresponds to the end of the initial period of implementation of tasks or the extended period, prices are ‘frozen’ in the sense that they cannot be increased. If, however, the prices of the basic elements are reduced after the stated date, appropriate deductions are made from amounts due to the contractor (Article 48(5) of the general conditions).

Tender guarantee

The requirement of a 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 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.

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 addenda. 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 after the final statement of account has been issued by the contracting authority.

Retention sum

The retention sums, which are to be deducted from interim payments, represent further security for the contractor’s performance during the defects liability period. The practical arrangements for retention sums should be described in article 47(1) of the special conditions. Although the maximum retention permitted is 10% of the contract price, a lower percentage may be appropriate depending on the risks inherent to the contract and bearing in mind that such deductions must be financed by the contractor, resulting in higher tender prices.

The contractor may offer a retention guarantee as an alternative to retention sums not later than the date agreed for the commencement of the works (Article 47(2) of the general conditions). The contracting authority’s prior approval is required. This approval is to ascertain, in the same way as for the performance guarantee, mentioned in Article 15 of the general conditions, whether the guarantee is compliant with contractual obligations.

The sum retained or the retention guarantee should be released within 60 days of the issuing of the signed final statement of account.

Insurance requirements to cover transport

For the 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. For more information see Section 4.3.2.

5.3.3. 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, 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 [21], 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.

Lowest price

As a rule, no technical scoring is given to the offers and the most economically advantageous tender is the technically compliant tender with 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.

Best price-quality ratio

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. 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. The instructions to tenderers will specify whether the site visit is strongly advised or obligatory.

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 the meeting must be met by the tenderers. Individual visits by companies during the tender period cannot be organised by the contracting authority taking into account of transparency and equal treatment of the tenderers. As proof of participation, tenderers will receive a certificate of their site visit.

Any presentation/documentation to be delivered in the information session, as well as the outcome and the minutes, must also be uploaded on the F&T portal at least 8 days before the expiry of the deadline for the submission of tenders.

5.3.5. 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, and tenders guarantees, if applicable, to arrive at the contracting authority premises.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

The minimum period between the date of publication of the contract notice and the deadline for submission of tenders is 90 days. However, in exceptional cases, this period may be shortened with a request for derogation and subject to prior authorisation by the European Commission.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

No prior authorisation is required from the European Commission for a shorter deadline.

5.3.6. Period of validity

See Section 2.9.5.

5.3.7. Submission of tenders

INDIRECT MANAGEMENT

The technical and financial offers must be placed together in a sealed envelope. The envelope should then be placed in another single sealed envelope/package, unless their volume requires a separate submission for each lot.

5.3.8. The evaluation committee

The evaluation committee requires a minimum of five evaluators.

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

5.3.9. Stages in the evaluation process

5.3.9.1. Receipt and registration of tenders

INDIRECT MANAGEMENT

On receiving tenders, the contracting authority must register them, stating the date and time of submission. It must provide a receipt for tenders.

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

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 d5 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 d6. 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.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

The European Commission must be informed of the tender opening session. It may be represented as an observer at the tender opening session and receive a copy of each tender.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

The European Commission need not be informed of the tender opening session and does not attend it.

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 shortlist, 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.

INDIRECT MANAGEMENT

In case of paper submission, the summary of tenders received, which is attached to the tender opening record (see Annex d6) has to be followed. The summary of submissions received, which is attached to the opening record, must be used to record whether each of the submissions complies with the formal submission 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 tenderers that do not comply with the formal submission requirements. That 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. If the tender is divided into lots, the evaluation should be carried out lot by lot. 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 requested by 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 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. 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).

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 subcontractors identified in the technical offers comply with the nationality rule mentioned in the additional information about the contract notice.

5.3.9.5. 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.

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

  • Except for lump-sum contracts, 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

On 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.(h) may apply.

EDF-FUNDED PROGRAMMES

(APPLICABLE ONLY TO TENDERS FINANCED UNDER MFF 2014-2020)

When technical offers are evaluated, a preference must be given to tenders submitted by legal or natural persons of ACP States, either individually or in a joint tender/consortium among them.

Where two tenders are acknowledged to be equivalent, preference is given:

  1. to the tenderer of an ACP State; or

  2. if no such tender is forthcoming, to the tenderer who:

    • offers the best possible use of the physical and human resources of the ACP States;

    • offers the greatest subcontracting possibilities to ACP companies, firms or natural persons; or

    • is a joint tender/consortium of natural persons, companies and firms from ACP States and the European Union.

(See also Section 2.6.9.)

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.

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 the original [23] Declaration on honour on exclusion criteria and selection criteria and copies of documentary evidence for exclusion and selection criteria from the presumed successful tenderer.

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

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

The entire procedure (technical and financial evaluation) is recorded in an evaluation report (see template in Annex d7) to be signed by the chairperson, the secretary and all voting members of the evaluation committee. This evaluation report must be submitted to the relevant services of the contracting authority, which must decide whether or not to accept its recommendations. Consequently, the contracting authority must then submit the evaluation report together with its proposed decision to the European Commission. If there is an award proposal and the European Commission has not already received a copy of the tenders, these must be submitted.

If the European Commission does not accept the proposed decision, it must write to the contracting authority stating the reasons for its decision. The European Commission may also suggest how the contracting authority should proceed and give the conditions under which the European Commission may endorse a proposed contract on the basis of the tender procedure.

If the European Commission accepts the proposed decision, the contracting authority will either commence awarding the contract (see Section 5.3.11.) or cancel the tender, as decided.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

No prior authorisation from the European Commission is required before the contracting authority acts on the recommendations of the evaluation committee.

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 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.

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, 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 2.10.1. See format of letter in Annex d8a) for successful tenderer and in Annex d8b) for unsuccessful tenderers.

The notification letter (Annexes d8a) 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.

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.

The performance guarantee must be placed, at the latest, on return of the countersigned contract (see Section 5.3.2.).

The contracting authority shall inform the contractor by commencement order of the date on which the implementation of tasks must start. See article 33 of the General Conditions.

5.3.11.4. Publicising the award of the contract

See Section 2.10.4.1.

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

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

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.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

Prior authorisation by the European Commission is required.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

No prior authorisation by the European Commission is required.

5.4.1. Publicity

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

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

5.4.1.1. Publication of prior information notice

See Section 5.3.1.1.

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.

For the publication of the contract notice and additional information about the contract notice, the request for clarifications from candidates, the publication of a change notice and the publication of clarifications through PPMT, see Section 5.3.1.2.

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 listed in Section 12.2 of the instructions to tenderers should be adapted and inserted in the selection criteria of the additional information about the contract notice.

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.

Only the presumed successful tenderers must supply supporting documents for the selection criteria before the award of the contract (see Section 2.6.11.).

5.4.2. Drawing up shortlists

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.

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

The selection procedure involves:

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

  • rejecting 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 2.4.2.1. (exclusion from participation in procurement procedures) and 2.4.2.2. (rejection from a given procedure);

  • applying the selection criteria exactly as published.

The shortlist comprises between four and six candidates.

If the number of admissible candidates meeting the selection criteria is greater than six, the additional criteria published in the additional information to the contract notice are applied 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. Less than the minimum of four candidates may only be invited if all of the following elements are satisfactory:

  • sufficient timing has been given for the publication;

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

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

This must be justified in the shortlist report.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

Prior authorisation by the European Commission is required.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

No prior authorisation by the European Commission is required.

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.

INDIRECT MANAGEMENT WITH EX ANTE CONTROLS

The shortlist report must be submitted to the contracting authority, which must decide whether or not to accept its recommendations. The contracting authority must then submit the shortlist report together with its recommendation to the European Commission before the shortlisted candidates can be invited to submit a tender.

If the European Commission does not accept the recommendation of the contracting authority, it must write to the contracting authority stating the reasons for its decision.

INDIRECT MANAGEMENT WITH EX POST CONTROLS

The shortlist report must be submitted to the contracting authority, which must decide whether or not to accept its recommendations.

No prior authorisation by the European Commission is required before the contracting authority acts on the recommendations of the evaluation committee.

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).

If non-shortlisted candidates request further information, they may be given any information that is not confidential, e.g. reasons why a reference does not meet the technical selection criterion, as this may help them to be successful in future tenders.

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.

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 international 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.

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 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 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.

INDIRECT MANAGEMENT WITH EX ANTE AND EX POST CONTROLS

Prior authorisation by the European Commission must also be sought for a shorter deadline.

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.

For contracts of EUR 345 000 or below, the contracting authority may decide, on the basis of objective criteria such as type and value of the contract, not to require a performance guarantee.

INDIRECT MANAGEMENT

Tenders must be sent or hand delivered to the contracting authority at the address provided.

EDF-FUNDED PROGRAMMES

(APPLICABLE ONLY TO TENDERS FINANCED UNDER MFF 2014-2020)

For works contracts of a value of less than EUR 5 000 000, tenderers from the ACP States, provided that at least one quarter of the capital stock and management staff originates from one or more ACP States, must be accorded a 10% price preference during the financial evaluation.

In addition, where two tenders for works are acknowledged to be equivalent, preference must be given:

  1. to the tenderer of an ACP State; or

  2. if no such tender is forthcoming, to the tenderer who:

    1. allows for the best possible use of the physical and human resources of the ACP States;

    2. offers the greatest subcontracting possibilities for ACP companies, firms or natural persons; or

    3. is a joint tender/consortium of natural persons, companies and firms from ACP States and the Community.

See also Section 2.6.9.

5.6. Simplified procedure

See Section 2.6.4. for guidance on the simplified procedure.

The contracting authority may award contracts under EUR 300 000 by 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.

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 5.3.11.3.). The only exception are provisions specific to the simplified procedures which can be found in annex ds1 (tender dossier for a simplified procedure):

  • Works contracts under a simplified procedure are lump sum contracts (see article 48.1 special conditions).

  • Prices are fixed and shall not be revised.

  • A performance guarantee is not required.

  • The retention sum retained to guarantee implementation of the contractor’s obligations during the defects liability period is 10 % of the contract price. By derogation to Article 47.1 of the general conditions, that money is not retained from interim payments. The tranches laid down in Article 49.1 of these special conditions are determined so that the retention sum amounts to 10% of the contract price at the moment of the certificate of provisional acceptance.

INDIRECT MANAGEMENT

Tenders must be sent or hand delivered to the contracting authority at the address provided.

EDF-FUNDED PROGRAMMES

(APPLICABLE ONLY TO TENDERS FINANCED UNDER MFF 2014-2020)

For works contracts of a value of less than EUR 5 000 000, tenderers from the ACP States, provided that at least one quarter of the capital stock and management staff originates from one or more ACP States, must be accorded a 10% price preference during the financial evaluation.

In addition, where two tenders for works are acknowledged to be equivalent, preference must be given:

  1. to the tenderer of an ACP State; or

  2. if no such tender is forthcoming, to the tenderer who:

    1. allows for the best possible use of the physical and human resources of the ACP States;

    2. offers the greatest subcontracting possibilities for ACP companies, firms or natural persons; or

    3. is a joint tender/consortium of natural persons, companies and firms from ACP States and the Community.

5.7. Modifying works contracts

See Section 2.11. for general information on modifying contracts. See Section 5.2.5.1.c on negotiated procedures.

Administrative order

Administrative orders may take the form of 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.

In case of work contracts, administrative orders can modify the total contract amount. Moreover, in case work contracts it is the supervisor that has the power to issue administrative orders to order any amendment to any part of the works necessary for the proper completion and/or functioning of the works (see general conditions 37.2). Therefore, it is only the supervisor, and not the contracting authority that can issue administrative orders.

The total value of successive administrative orders should be below the double de minimis rule (see General Conditions article 37.8 and case (d) in Section 2.11.2.3):

  • EUR 5 000 000;

  • 15% of the initial contract

The issuing of administrative orders follows the following process:

  1. Although the supervisor is not obliged to seek the contracting authority’s authorisation before asking proposals from the contractor, it is advisable for the contractor to consult with the contracting authority to make sure that the latter does not disagree. This is particularly important in the event of financial consequences to be borne by the contracting authority.

  2. The supervisor notifies the contractor of his intention to order the modification and gives details of its nature and form. The contractor must then, without delay, submit to the supervisor a written proposal containing:

    1. a description of the tasks to be implemented or the measures to be taken and a programme for execution;

    2. any necessary amendments to the programme of implementation of tasks or to any of the contractor’s obligations resulting from this contract; and

    3. any adjustment to the contract price in accordance with the rules set out in Article 37 general conditions.

  3. If the supervisor is satisfied with the contractor’s proposal and after due consultation with the contracting authority, the supervisor issues the administrative order that will state the technical details of the works to be undertaken, changes to the contract price, any changes to the programme of implementation and, if necessary, the manner in which the works are to be implemented.

  4. If the supervisor is not satisfied with the contractor’s proposal or it falls outside the authorisation given by the contracting authority, the supervisor may either:

    1. consult further with the contracting authority and the contractor; or

    2. issue the administrative order based on his previous consultation with the contracting authority, stating how it is to be valued in accordance with Article 37(6) of the general conditions.

  5. If the contractor disagrees with the changes to the contract price stated in the administrative order, the contractor may claim for additional payment under Article 55 of the general conditions. If the contractor considers that the requirements of an administrative order go beyond the authority of the supervisor or of the scope of the contract, it must give notice, with reasons, to the supervisor (Article 12(4) of the general conditions). If the contractor considers that it is entitled to an extension to the period of implementation greater than any it may have been granted, the contractor may submit a request under Article 35 of the general conditions. In any event, the contractor is required to carry out the variation without waiting for the outcome of his claim or request.

All variations are priced in accordance with the rules set out in Article 37(6) of the general conditions. Wherever possible, appropriate rates and prices in the bill of quantities or price schedule are to be used, at least as a basis. Only when there are no appropriate rate and prices that are applicable, should a reasonable and proper rate be fixed. This consists of an estimate of actual cost together with overheads and profit.

Sometimes a modification is required by a default or a technical breach of contract by the contractor. In such a case, any additional cost attributable to that modification must be borne by the contractor.

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 to the supervisor an oral order that has been given by the supervisor. This is deemed to be an administrative order unless immediately contradicted by the supervisor in writing (Article 37(3) of the general conditions).

In case of oral instructions, where the cost estimate or the details of the modification could not be fully specified before the order, the contractor must keep records of the costs of undertaking the variation and of time spent on it. These records must be open to inspection by the supervisor at all reasonable times (Article 37(7) of the general conditions).

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 works contracts there are three cases where modifications do not therefore require an administrative order or a contractual addendum:

  1. In the majority of cases, the contract provides that it is paid by measurement: in such a case, 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 the respective items, the actual quantities of the works executed and certifies, by applying the unit rates, the amount due. Increases vis-à-vis the initial contract price, which 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 for modification nor a contract addendum.

  2. 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, no modification of the contract is required to allow increases vis-à-vis the initial contract price to deal with their effect.

  3. In addition, an extension of the period of implementation of the tasks as may be justified, either prospectively or retrospectively (see general conditions article 20). The extension of the period of implementation of the tasks can be done by notice issued by the supervisor. The period(s) of implementation can be extended by administrative order, even after the implementation period specified in the contract has expired.

[1] Article 2(78) FR.

[2] OJ L 94, 28.3.2014, p. 65.

[3] Article 2(77) FR.

[4] Works in direct management require a prior approval.

[5] For thresholds and procedures see Section 2.6.1.

[6] Annex I point 36(2)(d) FR.

[7] Annex I point 11(1)(a) FR.

[8] Annex I point 11(2) FR.

[9] Annex I point 11(1)(b) FR.

[10] Annex I point 11(3) FR.

[11] Annex I point 39(2) FR: ‘Emergency assistance’ is another case specific to the EDF and distinct from the ‘extreme urgency’ referred to here, in which the negotiated procedure may be used for actions which are not governed by Article 19c of Annex IV to the 2000/483/EC Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (Cotonou Agreement). Emergency assistance is linked to the application of Articles 72 and/or 73 of the Cotonou Agreement. See also Article 79(5) of Council Decision 2013/755/EU of 25 November 2013 on the association of the overseas countries and territories with the European Union ( ‘Overseas Association Decision’) (OJ L 344, 19.12.2013, p. 1).

[12] Annex I point 11(1)(e) FR.

[13] Annex I point 11(1)(g) FR.

[14] Annex I point 11(1)(i) FR.

[15] ‘Electronic communications network’ means transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed (circuit and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed.

[16] OJ L 321, 17.12.2018, p.36.

[17] Annex I point 11(1)(k) FR.

[18] Annex I point 40(1)(b) FR.

[19] Annex I point 40(1)(c) FR.

[20] Annex I point 38.1 FR.

[21] Such derogation must no longer be required for a design and build (DB) and/or a design, build and operate (DBO) tender dossier if and when such tender dossier templates have been added to the PRAG's annexes.

[22] Please note that the EU Official Journal contains the official list of entities subject to restrictive measures and, in case of conflict, it prevails over the list of the EU Sanctions Map.

[23] The requirement to submit an original Declaration on honour on exclusion criteria and selection criteria is only applicable in case of paper submission.