SUB-SECTION 2Award of the Contract
Contract award criteria
80.—(1) A utility must base the award of contracts on the most economically advantageous tender assessed from the point of view of the utility.
(2) Where the utility is a person mentioned in regulation 4(1)(a) (utilities) it must not use price only or cost only as the sole award criteria.
(3) A utility must identify the most economically advantageous tender on the basis of the price or cost using a cost-effectiveness approach (such as life-cycle costing in accordance with regulation 81 (life-cycle costing)) and may include the best price-quality ratio which must be assessed on the basis of criteria linked to the subject-matter of the contract in question.
(4) Criteria referred to in paragraph (3) may comprise or include—
(a)quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics and trading and its conditions;
(b)organisation, qualification and experience of staff assigned to performing the contract, where the quality of the staff assigned can have a significant impact on the level of performance of the contract; and
(c)after-sales service and technical assistance, delivery conditions such as delivery date, delivery process and delivery period or period of completion and commitments with regard to parts and security of supply.
(5) The cost element may also take the form of a fixed price or cost on the basis of which economic operators will compete on quality criteria only.
(6) Award criteria must be considered to be linked to the subject-matter of the contract where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle, including factors involved in—
(a)the specific process of production, provision or trading of those works, supplies or services; or
(b)a specific process for another stage of their life cycle,
even where such factors do not form part of their material substance.
(7) Award criteria must—
(a)not have the effect of conferring an unrestricted freedom of choice upon the utility;
(b)ensure the possibility of effective competition; and
(c)be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria.
(8) In case of doubt, the utility must verify effectively the accuracy of the information and proof provided by the tenderers.
(9) The utility must specify, in the procurement documents, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender.
(10) The weightings referred to in paragraph (9) may be expressed by providing for a range with an appropriate maximum spread.
(11) Where weighting is not possible for objective reasons, the utility must indicate the criteria in descending order of importance.
Life-cycle costing
81.—(1) Life-cycle costing must, to the extent relevant, cover part or all of the following costs over the life cycle of a product, service or works—
(a)costs, borne by the utility or other users, such as—
(i)costs relating to acquisition;
(ii)costs of use, such as consumption of energy and other resources;
(iii)maintenance costs;
(iv)end of life costs, such as collection and recycling costs; and
(b)costs imputed to environmental externalities linked to the works, product or service during its life cycle, provided their monetary value can be determined and verified.
(2) The costs mentioned in paragraph (1)(b) may include the cost of emissions of greenhouse gases and of other pollutant emissions and other climate change mitigation costs.
(3) The method used for the assessment of costs imputed to environmental externalities must fulfil all of the following conditions—
(a)it is based on objectively verifiable and non-discriminatory criteria and, in particular, where it has not been established for repeated or continuous application, it must not unduly favour or disadvantage certain economic operators;
(b)it is accessible to all interested parties;
(c)the data required can be provided with reasonable effort by normally diligent economic operators, including economic operators from third countries party to the GPA or other international agreements by which the EU is bound.
(4) Where a utility assesses costs using a life-cycle costing approach, the utility must indicate in the procurement documents—
(a)the data to be provided by the tenderers; and
(b)the method which the utility will use to determine the life-cycle costs on the basis of those data.
(5) Whenever a common method for the calculation of life-cycle costs has been made mandatory by a legislative act of the EU, that common method must be applied for the assessment of life-cycle costs.
(6) Legislative acts referred to in paragraph (5) include those set out in Annex XV to the Utilities Contracts Directive as amended from time to time.
Abnormally low tenders
82.—(1) A utility must require a tenderer to explain the price or costs proposed in the tender where the tender appears to be abnormally low in relation to the works, supplies or services.
(2) The explanations given in accordance with paragraph (1) may, in particular, relate to—
(a)the economics of the manufacturing process, of the services provided or of the construction method;
(b)the technical solutions chosen or any exceptionally favourable conditions available to the tenderer for the execution of the works or for the supply of the products or services;
(c)the originality of the works, supplies or services proposed by the tenderer;
(d)compliance with obligations referred to in regulation 34(4) (principles of procurement);
(e)compliance with obligations referred to in regulation 85 (subcontracting);
(f)the possibility of the tenderer obtaining State aid.
(3) The utility must assess the information provided by consulting the tenderer.
(4) The utility may only reject the tender where the explanations given and any evidence supplied do not satisfactorily account for the low level of price or costs proposed, taking into account the elements referred to in paragraph (2).
(5) The utility must reject the tender where the utility has established that the tender is abnormally low because it does not comply with applicable obligations referred to in regulation 34(4) (principles of procurement).
(6) Where the utility establishes that a tender is abnormally low because the tenderer has obtained State aid, the tender may be rejected on that ground alone only—
(a)after consultation with the tenderer; and
(b)where the tenderer is unable to prove, within a sufficient time limit fixed by the utility, that the aid in question was compatible with the internal market within the meaning of Article 107 of the TFEU.
(7) Where the utility rejects a tender in the circumstances referred to in paragraph (6), it must inform the Commission.