Decision (EU) 2016/245 of the European Central BankShow full title

Article 12 Negotiated procedure

1. The ECB may apply a negotiated procedure if:

(a) the ECB's needs cannot be met without the adaptation of readily available solutions, or require design or innovative solutions;

(b) the contract cannot be awarded without prior negotiations because of the deliverables' specific nature, complexity, legal and financial character and the corresponding risks; or

(c) the technical specifications cannot be established with sufficient precision with reference to a technical standard or reference.

2. The ECB may also use the negotiated procedure if only irregular or unacceptable tenders have been obtained in response to an open or restricted procedure or a competitive dialogue. The ECB may refrain from publishing a new contract notice if it includes in the negotiated procedure all of, and only, the tenderers that participated in the initial procedure, were eligible, met the selection criteria and submitted their tenders in accordance with the formal tender requirements. If no tenders or no suitable tenders have been obtained, the ECB may also start a negotiated procedure in accordance with Article 35 without publication of a notice. In all cases, the original terms of the contract to be awarded shall not be substantially altered.

3. On publication of a contract notice interested suppliers may apply to participate in the negotiated procedure. They shall submit their application within the time limit specified in the contract notice and provide the documentation requested by the ECB.

4. The ECB shall verify the eligibility of candidates and evaluate the applications against the selection criteria set out in the contract notice. It shall invite at least three eligible candidates satisfying the selection criteria to submit a tender, provided that a sufficient number of candidates meeting the selection criteria are available. The invitation to tender shall be sent simultaneously to all candidates invited to submit a tender.

5. Following the evaluation of the tenders, the ECB may negotiate with tenderers in order to bring their tenders in line with the ECB's requirements. The ECB may start negotiations either:

(a) with the best-ranked tenderer. If the negotiations with the best-ranked tenderer fail, the ECB may take up negotiations with the next-ranked tenderer; or

(b) simultaneously with several tenderers whose tenders best meet the award criteria. The number of tenderers admitted to the negotiations may be reduced in successive stages by applying the award criteria set out in the contract notice or the invitation to tender.

Before starting negotiations, the ECB shall inform all tenderers eligible to participate in negotiations on how the negotiations will be conducted.

6. The scope of the negotiations may include the tenderers' technical offers, financial offers and the contractual terms and conditions provided that the scope of the tender procedure is not substantially altered. The ECB may also invite tenderers to submit a revised tender. During the negotiations, the ECB shall ensure equal treatment of all tenderers invited to participate in negotiations.

7. Once the negotiations are closed, the ECB shall award the contract to the tenderer whose tender best meets the award criteria set out in the contract notice or invitation to tender.