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

SECTION 6 Evaluation

Article 29 General principles

1. Applications and tenders shall not be opened before the expiry of the date for submission. The applications and tenders shall be opened in the presence of at least two members of ECB staff and the opening shall be minuted. Unless specified otherwise, candidates or tenderers may not attend the opening.

2. The ECB shall evaluate all tenders against the award criteria set out in Article 32 after having:

• verified compliance with the formal tender requirements,

• verified the eligibility of tenderers in line with Article 30, and

• assessed the fulfilment of the selection criteria in line with Article 31.

3. The ECB shall award the contract to the tenderer whose tender best meets the award criteria.

4. The evaluation process and outcome shall be documented in an evaluation report.

Article 30 Eligibility of candidates and tenderers

1. Subject to the following paragraphs, all natural and legal persons resident or established in the Union are eligible to participate in tender procedures. Tender procedures shall also be open on equal terms to all natural and legal persons resident or located in a country that has ratified the World Trade Organisation Agreement on Government Procurement, or has concluded with the Union a bilateral agreement on procurement, under the conditions laid down in these agreements. Suppliers from other countries may be admitted to participate at the ECB's sole discretion.

2. Temporary groupings of suppliers may participate in tender procedures under the conditions set out in the contract notice or the invitation to tender. The ECB may require temporary groupings to adopt a specific legal form if the contract is awarded to them, where this form is necessary for the proper performance of the contract. The participants in a temporary grouping shall be jointly and severally liable to perform the contract.

3. Candidates and tenderers shall submit only one application or tender. The ECB may exclude from participation any candidates or tenderers that submit a separate application or tender and which:

(a) are members of the same group of affiliated undertakings as another candidate or tenderer;

(b) are members of a temporary grouping together with other candidates or tenderers; or

(c) offer a substantial part of the contract to be awarded to another candidate or tenderer as subcontractor,

if there are indications that they have received information regarding the application or tender prepared by another candidate or tenderer or if the submission of multiple applications or tenders otherwise distorts free competition among candidates or tenderers.

4. The ECB shall exclude candidates or tenderers from participation if they, or their management bodies, have been convicted by a final judgment of participation in a criminal organisation, corruption, fraud, terrorist offences or financing, money laundering, child labour or human trafficking, as referred to in Article 57(1) of Directive 2014/24/EU, or of any other illegal activity detrimental to the financial interests of the Union, the ECB or the NCBs.

5. The ECB may exclude candidates or tenderers from participation at any time if:

(a) they are bankrupt, being wound up, subject to administration or in any similar situation provided for in national legislation or regulations;

(b) they are guilty of grave professional misconduct, which renders their integrity questionable;

(c) they are in breach of obligations relating to the payment of social security contributions or the payment of taxes in accordance with the legal provisions of the country in which they are established or where the contract is to be performed;

(d) they have shown significant or persistent deficiencies in the performance of another public contract, or with their obligations under environmental, social and labour law;

(e) they or their management, staff or agents are subject to a conflict of interest that cannot be remedied by less intrusive means;

(f) they are guilty of serious misrepresentation in supplying the information required by the ECB; or

(g) they contact other candidates or tenderers with the purpose of restraining competition, or try to unduly influence the decision-making process in the procurement procedure.

6. Candidates or tenderers shall certify that they are not in one of the situations listed in paragraphs 4 and 5 and provide the evidence specified in the contract notice or invitation to tender. If such circumstances arise in the course of the procedure the candidate or tenderer concerned shall inform the ECB thereof without undue delay. Candidates or tenderers may submit evidence to demonstrate their eligibility despite the existence of grounds for exclusion.

7. Where a candidate, or an undertaking related to a candidate, has been involved in the preparation of a procurement procedure, for example by advising on the procurement strategy or developing specifications, the ECB shall take appropriate measures to ensure fair competition and an equal level of information amongst all candidates. The ECB may exclude the candidate or undertaking from the procedure, if this is necessary for those purposes. Prior to exclusion, the candidate or undertaking shall be given the opportunity to prove that their previous involvement does not distort competition.

8. The ECB may exclude a candidate or tenderer that is in one of the situations described in paragraphs 4 and 5 from participation in any future tender procedure for a reasonable period of time. The ECB shall decide on the exclusion and determine the period of its duration applying the principle of proportionality, taking into account in particular: (a) the seriousness of the offence, conduct, breach or act of bankruptcy; (b) the time which has elapsed since the offence, conduct, breach or act of bankruptcy was committed or occurred; (c) the duration and any recurrence of the offence, conduct, breach or act of bankruptcy; (d) the intention or degree of negligence of the supplier concerned; and (e) the measures taken by the supplier to avoid similar offences, conduct, breaches or acts of bankruptcy in the future. The period of exclusion shall not exceed 10 years from the date notice thereof is delivered to the supplier. Prior to taking a decision to exclude a supplier, the ECB shall give the supplier an opportunity to express its views unless the facts justifying the exclusion are laid down in a final judgment. The ECB shall notify the supplier in writing of its decision and the main reasons for doing so.

Article 31 Selection criteria

1. The ECB shall specify in the contract notice the selection criteria for assessing a candidate's or tenderer's capacity to perform the contract. The selection criteria shall relate to the candidate's or tenderer's authorisation and suitability to carry out the relevant professional activity, their economic and financial standing, and their technical or professional ability. The selection criteria shall be necessary and proportionate to ensure fair competition and achieve the contract objectives.

2. The ECB may lay down minimum requirements below which it cannot select candidates or tenderers. These minimum requirements shall be specified in the contract notice.

3. The ECB shall specify in the contract notice the documents to be submitted by candidates or tenderers as proof of their financial, economic, technical and professional capacity. It may require, in particular, submission of a European Single Procurement Document as specified in Article 59 of Directive 2014/24/EU, documents held in eCertis, or certificates issued by national databases of approved suppliers. The documentation requested shall not go beyond the subject of the contract and shall take account of the legitimate interests of the suppliers as regards in particular the protection of their technical and business secrets.

4. If, for some exceptional reason which the ECB considers justified, a tenderer or candidate is unable to provide the documents requested, it may prove its capacity by any other means which the ECB considers appropriate and equivalent.

5. A supplier may, where appropriate and for a particular contract, rely on the capacities of another entity, regardless of the legal nature of the links which it has with them. It shall in that case prove to the ECB that it will have the resources necessary for performance of the contract at its disposal, and that the entity itself is eligible to participate in tender procedures in accordance with Article 30. Under the same conditions, a temporary grouping of suppliers may rely on the capacities of participants in the group.

Article 32 Award criteria

1. The ECB shall award the contract to the tenderer that submitted the most economically advantageous tender.

2. Unless otherwise provided in this Decision, the most economically advantageous tender is identified on the basis of one of the following options:

• the price or costs only,

• the best price-quality ratio, or

• quality only, the relevant price or cost for the products, works and services tendered being fixed.

3. The price or cost element shall, to the extent relevant, take account of life-cycle costs such as costs relating to acquisition, use, maintenance and end-of-life of products, works and services. Costs relating to environmental externalities linked to products, works and services during their life cycle may also be considered. Prices and costs shall be considered only if they can be determined and verified.

4. The best price-quality ratio shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects linked to the subject matter of the contract, such as:

(a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics and trading and the conditions thereof;

(b) organisational structure, qualifications and experience of staff assigned to perform the contract, where staff quality can have a significant impact on the level of performance of the contract; or

(c) after-sales service and technical assistance, delivery conditions such as delivery date, delivery process and delivery period, or period of completion.

5. All of the award criteria shall be linked to the subject matter of the contract which may include the different stages involved in the life cycle of the products, works or services tendered such as the processes of production, provision or trading thereof.

6. The contract notice or the invitation to tender or, in the case of a competitive dialogue, the request for a proposal, shall specify how the most economically advantageous tender shall be identified pursuant to paragraph 2.

Article 33 Abnormally low tenders

1. The ECB shall request in writing explanations of prices or costs proposed in tenders that appear to be abnormally low in relation to the products, works or services tendered. The request may relate in particular to:

(a) the economics of the manufacturing process, of the provision of services or of the construction method;

(b) the technical solutions chosen or any exceptionally favourable conditions available to the tenderer;

(c) the originality of the deliverables proposed in the tender;

(d) compliance with the provisions of environmental, social security and labour law in force at the place where the deliverables are to be executed, provided or supplied; and

(e) the tenderer's possibility to obtain State aid.

2. Following a review of the information submitted by the tenderer, the ECB may reject abnormally low tenders, in particular in the following cases:

• where the information provided by the tenderer does not sufficiently account for the low level of the price or costs,

• where the tender and the additional information provided do not provide sufficient assurance of proper contract performance, or

• where the tenderer has obtained State aid, unless the tenderer proves, within a reasonable time limit fixed by the ECB, that the aid was granted legally in accordance with the procedures and decisions specified in the Union rules on State aid.

3. The ECB shall reject tenders that are abnormally low due to breaches of any of the provisions referred to in paragraph 1(d).