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

CHAPTER I GENERAL RULES

Article 1 Definitions

For the purposes of this Decision, the following definitions apply:

(1)

‘contracts’ means contracts for pecuniary interest concluded in writing between the ECB and one or more suppliers and having as their subject matter the execution of works, the supply of products or the provision of services;

(2)

‘supply contracts’ means contracts having as their subject matter the purchase, lease, rental or hire purchase, with or without an option to buy, of products. A contract having as its subject matter the supply of products and which also covers, as an incidental matter, siting and installation operations shall be considered a supply contract;

(3)

‘service contracts’ means contracts, other than those referred to in point (2), having as their subject matter the provision of services. A contract having as its subject matter the provision of services including activities related to works that are only incidental to the principal subject matter of the contract shall be considered a service contract;

(4)

‘works contracts’ means contracts, other than those referred to in points (2) and (3), having as their subject matter either the execution, or both the design and execution, of works. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function;

(5)

‘concession contracts’ means contracts having as their subject matter either the provision of services or the execution of works, whose reward mainly consists of a permission granted by the ECB to exploit these works or to provide services to others;

(6)

‘deliverables’ means the works to be executed, services to be provided or products to be supplied under a contract;

(7)

‘innovation partnership’ means a procedure in which any supplier may request to participate and where the ECB sets up a partnership with one or more candidates admitted to that procedure with the aim of developing and purchasing innovative products, services or works;

(8)

‘dynamic purchasing system’ means a completely electronic process for purchasing commonly used products, the characteristics of which, as generally available on the market, meet the ECB's requirements;

(9)

‘framework agreement’ means an agreement between the ECB and one or more suppliers, the purpose of which is to establish the terms governing the specific contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged;

(10)

‘supplier’ means any natural or legal person or public entity or group of such persons and/or entities which offers on the market the execution of works, the supply of products or the provision of services;

(11)

‘candidate’ means a supplier that has submitted an application to participate in a restricted or negotiated procedure, a competitive dialogue or an innovation partnership;

(12)

‘tenderer’ means a supplier that has submitted a tender;

(13)

‘research and development contracts in the field of banknote security’ means contracts related to theoretical work or practical experimentation, analysis or research carried out under controlled conditions either:

• for acquiring new knowledge or developing new or improved materials, manufacturing processes or devices for the origination, production, transport, issuance, authentication or destruction of euro banknotes, including the origination materials thereof, or

• for initiating the manufacture of new or improved materials, products or devices for the origination, production, transport, issuance, authentication and destruction of euro banknotes, including the origination materials thereof.

Research and development contracts in the field of banknote security do not include contracts for the pilot printing of euro banknotes;

(14)

‘open procedure’ means a procedure in which any interested supplier may submit a tender;

(15)

‘restricted procedure’ means a procedure in which any supplier may request to participate but only those candidates invited by the ECB may submit a tender;

(16)

‘negotiated procedure’ means a procedure in which the ECB consults the suppliers of its choice and negotiates the terms of any contract with one or more of them;

(17)

‘competitive dialogue’ means a procedure in which any supplier may request to participate and where the ECB conducts a dialogue with the candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting its requirements;

(18)

‘electronic auction’ means a repetitive process involving an electronic system in which new prices, revised downwards, and/or new values concerning certain elements of tenders are presented, which occurs after an initial full evaluation of the tenders, and which enables them to be ranked using automatic evaluation methods;

(19)

‘invitation to tender’ means the invitation sent to candidates or suppliers to submit a tender and specifying the procedure, the ECB's requirements and the contractual terms and conditions;

(20)

‘days’ means calendar days;

(21)

‘written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information transmitted and stored by electronic means;

(22)

‘call for expression of interest’ means a procedure to establish a list of suitable suppliers that may be invited to participate in procurement procedures.

Article 2 Scope

1. The ECB shall award supply, service, works and concession contracts for its own account in accordance with this Decision.

2. The ECB may also carry out in accordance with this Decision joint tender procedures for its own account and on behalf of one or more national central banks (NCBs), national supervisory authorities, Union institutions and bodies and/or international organisations. In such cases, the ECB shall specify in the procurement documents: (a) the other participating contracting authorities; and (b) the envisaged structure of the contractual relationships.

3. This Decision shall not apply to:

(a) cooperation agreements:

(i)

that serve the fulfilment of the public tasks of the Eurosystem or the European System of Central Banks, which are entered into by the ECB and NCBs; or

(ii)

that serve the fulfilment of public tasks, which are entered into by the ECB and other Union institutions and bodies, international organisations or public authorities;

where the cooperation is governed solely by considerations relating to the public interest, in particular the achievement of common, non-commercial objectives and the parties perform less than 20 % of the relevant activities on the open market;

(b) procurement procedures in which the ECB participates organised by any of the following: (i) Union institutions and bodies; (ii) international organisations; or (iii) public authorities, in each case provided that the rules governing these procurement procedures are in line with the general principles of Union procurement law;

(c) the procurement of banknotes, which is governed by Guideline (EU) 2015/280 of the European Central Bank (ECB/2014/44)(1);

(d) the issue, sale, purchase or transfer of securities or other financial instruments and financial services in connection with these transactions;

(e) the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon;

(f) employment contracts between the ECB and its staff concluded in accordance with the ECB's Conditions of Employment;

(g) arbitration and conciliation services;

(h) research and development services unless the benefits related to the services accrue exclusively to the ECB for its own use and the services provided are remunerated by the ECB;

(i) contracts for broadcasting time or programme provision that are awarded to audiovisual or radio media services providers;

(j) contracts relating to the legal representation of the ECB during or in preparation for court or arbitration proceedings and contracts for the exclusive services of notaries, trustees and court officials;

(k) public passenger transport services by rail or metro.

4. This Decision shall not apply to contracts between the ECB and a legal person governed by private or public law over which the ECB exercises control similar to that which it exercises over its own business units, where more than 80 % of the legal person's activities are carried out in the performance of tasks entrusted to it by the ECB and there is no direct private capital participation that ensures a controlling interest in that legal person.

5. In exceptional cases, the ECB may conduct procedures for the selection of natural persons to serve as members on high-level advisory boards assisting the ECB in the fulfilment of its tasks. Such experts shall receive a fixed allowance set in advance, which shall not exceed per expert the threshold set in Article 4(3)(a). They shall be selected on the basis of their professional expertise, using selection criteria that follow the general principles outlined in Article 3. The ECB may adopt a specific decision that sets out in greater detail the procedure and conditions for selection.

6. This Decision shall apply to the following contracts subsidised directly by the ECB by more than 50 %:

(a) works contracts the estimated value of which, net of VAT, is equal to or exceeds the threshold amount set out in Article 4(3) for works contracts, and which have as their subject matter civil engineering activities or building work for facilities intended to be used for administrative, sports, health, recreation and leisure or school and university purposes;

(b) service contracts which are connected to a works contract referred to in point (a) the estimated value of which, net of VAT, is equal to or exceeds the threshold amount set out in Article 4(3) for service contracts.

The ECB shall ensure that such contracts are awarded in accordance with this Decision, even if such contracts are awarded by another entity or if the ECB awards such contracts on behalf of another entity.

7. Mixed contracts whose scope comprises deliverables attributable to different types of contracts shall be awarded in accordance with the rules and provisions applicable to the deliverable that forms the main subject matter of the contract. The main subject matter of a mixed contract shall be determined by the deliverable with the highest estimated value, unless there are exceptional circumstances requiring that another deliverable, due to its specific qualities, should form the main subject matter of the contract.

Article 3 General principles

1. Procurement procedures shall be carried out in accordance with the general principles of transparency and publicity, proportionality, equal access and equal treatment, non-discrimination and fair competition.

2. The ECB shall conduct procurement procedures in English, unless there are exceptional circumstances relating to the procedure or the subject matter of the contract that require the use of different languages. The ECB shall document any such circumstances.

Article 4 Contract value thresholds

1. Contracts the estimated value of which, net of VAT, equals or exceeds the threshold amounts set out in paragraph 3, shall be awarded in accordance with the procedures laid down in Chapter II.

2. Contracts the estimated value of which, net of VAT, is below the threshold amounts set out in paragraph 3 shall be awarded in accordance with the procedures laid down in Chapter III. Contracts with an estimated value of less than EUR 20 000 shall be awarded in line with Article 37.

3. The following threshold amounts shall apply:

(a) EUR 209 000 for supply contracts and service contracts;

(b) EUR 5 225 000 for works contracts and concession contracts.

Article 5 Calculation of the estimated value of a contract

1. The calculation of the estimated value of a contract shall be based on the total amount payable, net of VAT, as estimated by the ECB, including for any form of option and renewals specified in the contract notice. The calculation shall include ancillary costs, in particular premium payments, fees, interest, commission, travel and accommodation costs and prizes, payments and any other form of remuneration to be made to candidates or tenderers.

2. The estimate shall be valid at the time at which the ECB decides on the type of procurement procedure to use.

3. No procurement may be subdivided with the intention of avoiding the application of the procedures set out in this Decision. The calculation of the estimated value of a contract shall not be made with the intention of excluding it from the application of the procedures set out in Chapter II or Article 35.

4. The calculation of the estimated value of works contracts shall take account of the total costs related to the execution of the works including the value of products necessary for executing the works and placed at the contractor's disposal by the ECB. The costs related to the design and planning of the works shall also be included if they form part of the works contract.

5. With regard to contracts for the continuous supply of products and services, the value to be taken as a basis for calculating the estimated contract value shall, where appropriate, be the following:

(a) in the case of fixed-term contracts: the total value for the full term;

(b) in the case of contracts without a fixed term: the monthly value multiplied by 48.

6. In the case of successive supply, service or works contracts of the same type the calculation of the estimated contract value shall be based on the total actual value of the successive contracts awarded during the preceding 12 months. The estimate shall take account of any changes in quantity or value which are expected to occur in the course of the 12 months following the completion of the initial contract.

7. If a contract is divided into several lots, or if several contracts to be awarded are strictly interrelated and have the same objective, the combined value of all lots or individual contracts shall be considered. If the combined value is equal to or exceeds the threshold amounts set out in Article 4(3), the procedures laid down in Chapter II of this Decision shall apply to all lots and contracts. The ECB may, however, apply the procedure laid down in Article 35 or, if applicable, in Article 37 in respect of individual lots and contracts the estimated value of which is less than EUR 80 000, net of VAT, for supply and service contracts and less than EUR 1 million, net of VAT, for works contracts, provided that the total estimated value of all lots awarded pursuant to the procedures laid down in Articles 35 and 37 does not exceed 20 % of the total estimated value of all lots.

8. The value of an innovation partnership shall be calculated taking into account the maximum estimated value net of VAT of the research and development activities to take place during all stages of the envisaged partnership as well as of the products, services or works to be developed and procured at the end of the envisaged partnership.

9. The value of framework agreements and dynamic purchasing systems shall be calculated on the basis of the maximum estimated value net of VAT of all the contracts envisaged for the total term of the framework agreement or the dynamic purchasing system.

Article 6 Exceptions

1. In the following cases the ECB may deviate from specific procedural requirements or award a contract directly to one supplier:

(a) where, for mandatory reasons and in accordance with objective criteria, the contract can be awarded only to one particular supplier. These reasons may be of a technical, artistic or legal nature, including the exercise of exclusive rights established in accordance with applicable law, but not of an economic nature;

(b) where, for reasons of extreme urgency brought about by events unforeseeable to the ECB, the time limits for a procurement procedure cannot be complied with;

(c) where the ECB has classified the contract as secret or where the performance of the contract must be accompanied by special security measures, in accordance with the ECB's rules on security or where protection of the ECB's essential interests so requires. Research and development contracts in the field of banknote security require special security measures and are therefore exempt from the requirements laid down in this Decision;

(d) in the case of supply contracts where the products involved are manufactured purely for the purpose of research, experimentation, study or development; this provision does not extend to quantity production to establish commercial viability or to recover research and development costs;

(e) where deliverables are purchased on particularly advantageous terms from either a supplier which is definitively winding up its business activities or the receivers or liquidators appointed following a bankruptcy, an arrangement with creditors, or a similar procedure under national laws or regulations;

(f) in the case of additional products acquired under a supply contract that replace or extend the initial products or installations, where a change of supplier would lead to disproportionate difficulties in operation and maintenance. The duration of contracts relating to such additional products shall not exceed 3 years; and

(g) in other cases expressly provided for in this Decision.

In all the cases set out in the first subparagraph the ECB shall maintain competition between several suitable suppliers whenever possible.

2. Irrespective of the contract value, the ECB may award a contract in accordance with Article 35 if the main subject matter of the contract is one of the services listed in Annex I.

Article 7 Duration and extension of contracts

1. The term of a contract including any extensions shall not exceed 4 years, except to the extent that its subject matter or another legitimate reason justifies a longer duration.

2. If a contract is concluded for a fixed term, its term may be extended beyond that initial term under the following conditions:

(a) the contract notice or, in the case of a procedure under Chapter III, the request for a proposal, provided for the possibility of extension;

(b) the extension is duly justified; and

(c) the extensions were taken into consideration when determining the applicable procedure in accordance with Article 4.

3. Otherwise, the term of a fixed-term contract may only be extended in the situations described in Article 6(1).

Article 8 Additional products, services and works

1. The ECB may order from the initial contractor additional products, services or works, irrespective of their value, provided that:

(a) the procurement documents include clear and precise review or option clauses that provide for additional products, services or works; and

(b) the additional products, services or works were taken into account when calculating the value of the contract in accordance with Article 5.

The clauses shall state the scope and nature of possible reviews or options and the conditions under which they may be used. They shall not provide for reviews or options that would alter the overall nature of the initial contract.

2. The ECB may order from a contractor additional products, services or works, irrespective of their value, provided that the necessary amendments to the initial contract are not substantial. Amendments shall be considered substantial if they change the overall nature of the contract.

Amendments are presumed not to be substantial if their cumulative value remains below (a) both thresholds set out in Article 4(3), and (b) 10 % of the initial contract value for supply and service contracts or 15 % of the initial contract value for works contracts.

Any amendment beyond these threshold amounts shall be considered substantial, in particular where one or more of the following conditions are met:

(a) the amendment introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of candidates other than those initially selected, or for the acceptance of a tender other than that originally accepted or would have attracted additional participants in the procurement procedure;

(b) the amendment changes the economic balance of the contract in favour of the contractor in a manner which was not provided for in the initial contract;

(c) the amendment extends the scope of the contract considerably;

(d) a new contractor replaces the one to which the initial contract was awarded in cases other than those provided for in paragraph 4.

3. In addition, the ECB may order from the initial contractor additional products, services or works:

(a) if the additional products, services or works become necessary due to circumstances which the ECB, acting diligently, could not have foreseen, provided that the amendment does not alter the overall nature of the initial contract; or

(b) if the additional products, services or works that have become necessary cannot be technically or economically separated from the initial contract without significant inconvenience or substantial duplication of costs.

However, the value of additional products, services or works shall in each single case not exceed 50 % of the initial value of the contract.

4. A contract may be amended by replacing the contractor to which it was awarded with another contractor, as a consequence of either:

(a) an unequivocal, clear and precise review or option clause;

(b) the universal or partial succession into the position of the initial contractor, following corporate restructuring, including takeover, merger, acquisition or insolvency, of another supplier that fulfils the same criteria as were initially applied for the selection of the initial contractor, provided that this does not entail other substantial amendments to the contract and is not aimed at circumventing the application of this Decision; or

(c) the ECB assuming the obligations towards the contractor's subcontractors including the obligation to make payments directly to the subcontractors, where this is provided for in the contract.

5. In connection with initial contracts awarded in accordance with Chapter II, the ECB shall publish a notice in the Official Journal concerning any order of additional products, services or works in accordance with paragraph 3 if the total value of additional products, services or works ordered under such a contract exceeds 50 % of the initial contract value.

6. If none of the conditions set out in paragraphs 1 to 4 are met, contracts for additional products, services or works may only be awarded in accordance with Articles 4 and 6 of this Decision.

(1)

Guideline (EU) 2015/280 of the European Central Bank of 13 November 2014 on the establishment of the Eurosystem Production and Procurement System (ECB/2014/44) (OJ L 47, 20.2.2015, p. 29).