Directive 2009/81/EC of the European Parliament and of the CouncilShow full title

CHAPTER V Procedures

Article 25 Procedures to be applied

In awarding contracts, contracting authorities/entities shall apply the national procedures adjusted for the purposes of this Directive.

Contracting authorities/entities may choose to award contracts by applying the restricted procedure or the negotiated procedure with publication of a contract notice.

Under the circumstances referred to in Article 27, they may award their contracts by means of a competitive dialogue.

In the specific cases and circumstances referred to expressly in Article 28, the contracting authorities/entities may apply a negotiated procedure without publication of a contract notice.

Article 26 Negotiated procedure with publication of a contract notice

1. In negotiated procedures with publication of a contract notice, contracting authorities/entities shall negotiate with tenderers the tenders submitted by them in order to adapt them to the requirements they have set in the contract notice, the contract documents and supporting documents, if any, and to seek out the best tender in accordance with Article 47.

2. During the negotiations, contracting authorities/entities shall ensure the equal treatment of all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.

3. Contracting authorities/entities may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria set out in the contract notice or the contract documents. The contract notice or the contract documents shall indicate whether or not this option has been used.

Article 27 Competitive dialogue

1. In the case of particularly complex contracts, Member States may provide that where contracting authorities/entities consider that use of the restricted procedure or the negotiated procedure with publication of a contract notice will not allow the award of the contract, the latter may make use of the competitive dialogue in accordance with this Article.

A contract shall be awarded on the sole basis of the award criterion for the most economically advantageous tender.

2. Contracting authorities/entities shall publish a contract notice setting out their needs and requirements, which they shall define in that notice and/or in a descriptive document.

3. Contracting authorities/entities shall open with the candidates selected in accordance with the relevant provisions of Articles 38 to 46, a dialogue, the aim of which shall be to identify and define the means best suited to satisfying their needs. They may discuss all aspects of the contract with the chosen candidates during this dialogue.

During the dialogue, contracting authorities/entities shall ensure equality of treatment among all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.

Contracting authorities/entities may not reveal to the other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue, without the agreement of that candidate.

4. Contracting authorities/entities may provide for the procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria set out in the contract notice or the descriptive document. The contract notice or the descriptive document shall indicate that recourse may be had to this option.

5. The contracting authority/entity shall continue such dialogue until it can identify the solution or solutions, if necessary after comparing them, which are likely to meet its needs.

6. Having declared that the dialogue is concluded and having so informed the participants, contracting authorities/entities shall ask them to submit their final tenders on the basis of the solution or solutions presented and specified during the dialogue. These tenders shall contain all the elements required and necessary for the performance of the project.

These tenders may be clarified, specified and fine-tuned at the request of the contracting authority/entity. However, such clarification, specification, fine-tuning or additional information may not involve changes to the basic features of the tender or the call for tender, variations in which are likely to distort competition or have a discriminatory effect.

7. Contracting authorities/entities shall assess the tenders received on the basis of the award criteria laid down in the contract notice or the descriptive document and shall choose the most economically advantageous tender in accordance with Article 47.

At the request of the contracting authority/entity, the tenderer identified as having submitted the most economically advantageous tender may be asked to clarify aspects of the tender or confirm commitments contained in the tender, provided this does not have the effect of modifying substantial aspects of the tender or of the call for tenders and does not risk distorting competition or causing discrimination.

8. The contracting authorities/entities may specify prices or payments to the participants in the dialogue.

Article 28 Cases justifying use of the negotiated procedure without publication of a contract notice

In the following cases, contracting authorities/entities may award contracts by a negotiated procedure without prior publication of a contract notice and shall justify the use of this procedure in the contract award notice as required in Article 30(3):

(1)

for works contracts, supply contracts and service contracts:

(a)

when no tenders or no suitable tenders or no applications have been submitted in response to a restricted procedure, a negotiated procedure with prior publication of a contract notice or a competitive dialogue, provided that the initial conditions of the contract are not substantially altered and on condition that a report is sent to the Commission, if it so requests;

(b)

in the event of irregular tenders or the submission of tenders which are unacceptable under national provisions compatible with Articles 5, 19, 21 to 24 and Chapter VII of Title II, in response to a restricted procedure, a negotiated procedure with publication or a competitive dialogue, insofar as:

(i)

the original terms of the contract are not substantially altered, and

(ii)

they include in the negotiated procedure all of, and only, the tenderers which satisfy the criteria of Articles 39 to 46 and which, during the prior restricted procedure or competitive dialogue, had submitted tenders in accordance with the formal requirements of the tendering procedure;

(c)

when the periods laid down for the restricted procedure and negotiated procedure with publication of a contract notice, including the shortened periods referred to in Article 33(7), are incompatible with the urgency resulting from a crisis. This may apply for instance in the cases referred to in point (d) of the second paragraph of Article 23;

(d)

insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities/entities in question, the time-limit for the restricted procedure or the negotiated procedure with publication of a contract notice, including the shortened time-limits as referred to in Article 33(7), cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authority/entity;

(e)

when, for technical reasons or reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator;

(2)

for service contracts and supply contracts:

(a)

for research and development services other than those referred to in Article 13;

(b)

for products manufactured purely for the purpose of research and development, with the exception of quantity production to establish commercial viability or recover research and development costs;

(3)

for supply contracts:

(a)

for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority/entity to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance.

The length of such contracts, as well as that of recurrent contracts, may not exceed five years, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause;

(b)

for supplies quoted and purchased on a commodity market;

(c)

for the purchase of supplies on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the receivers or liquidators of a bankruptcy, an arrangement with creditors, or a similar procedure under national laws or regulations;

(4)

for works contracts and service contracts:

(a)

for additional works or services not included in the project initially considered or in the original contract but which have, through unforeseen circumstances, become necessary for the performance of the works or services described therein, on condition that the award is made to the economic operator performing such works or services:

(i)

when such additional works or services cannot be technically or economically separated from the original contract without major inconvenience to the contracting authorities/entities, or

(ii)

when such works or services, although separable from the performance of the original contract, are strictly necessary for its completion.

However, the aggregate value of contracts awarded for additional works or services may not exceed 50 % of the amount of the original contract;

(b)

for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to which the same contracting authorities/entities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded according to the restricted procedure, the negotiated procedure with publication of a contract notice or a competitive dialogue.

As soon as the first project is put up for tender, the possible use of this procedure shall be disclosed, and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities/entities when they apply Article 8.

This procedure may be used only during the five years following the conclusion of the original contract, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause;

(5)

for contracts related to the provision of air and maritime transport services for the armed forces or security forces of a Member State deployed or to be deployed abroad, when the contracting authority/entity has to procure such services from economic operators that guarantee the validity of their tenders only for such short periods that the time-limit for the restricted procedure or the negotiated procedure with publication of a contract notice, including the shortened time-limits as referred to in Article 33(7), cannot be complied with.

Article 29 Framework agreements

1. Member States may provide that contracting authorities/entities may conclude framework agreements.

2. For the purpose of concluding a framework agreement, contracting authorities/entities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 47.

Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities/entities and the economic operators originally party to the framework agreement.

When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.

The term of a framework agreement may not exceed seven years, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause.

In such exceptional circumstances, the contracting authorities/entities shall provide an appropriate justification for those circumstances in the notice referred to in Article 30(3).

Contracting authorities/entities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.

3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.

For the award of those contracts, contracting authorities/entities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.

4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators that satisfy the selection criteria and/or of admissible tenders that meet the award criteria.

Contracts based on framework agreements concluded with several economic operators may be awarded either:

• by application of the terms laid down in the framework agreement without reopening competition, or,

• where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the contract documents of the framework agreement, in accordance with the following procedure:

  (a)

  for every contract to be awarded, contracting authorities/entities shall consult in writing the economic operators capable of performing the contract;

  (b)

  contracting authorities/entities shall fix a time-limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to submit tenders;

  (c)

  tenders shall be submitted in writing and their content remain confidential until the stipulated time-limit for reply has expired;

  (d)

  contracting authorities/entities shall award each contract to the tenderer which has submitted the best tender on the basis of the award criteria set out in the contract documents of the framework agreement.