Guide To Public Procurement Procedures For Contracts Concluded by The European External Action Service

Guide to public procurement procedures for
contracts concluded by
the European External Action Service
Version 1.01 (May 2011)

Document drawn up by the EEAS Contracts Division, MDR.A2
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Guide to public procurement procedures for contracts concluded by the EEAS (Version 1.01, May 2011).
DISCLAIMER
This Guide to public procurement procedures was drawn up by the Contracts Division
for internal use within the European External Action Service, at Headquarters and in the
Delegations. Our aim is to offer authorising departments practical and accessible help in
preparing and conducting public procurement procedures.
It should be borne in mind, however, that although the Guide provides information and
explanations in conformity with the rules in force, it cannot be relied on in law.
The relevant legislation and, where applicable, case-law, will prevail.
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CONTACTS WITH THE CONTRACTS DIVISION EEAS/A2
A number of functional mailboxes are available for contacts with the Contracts Division:
EEAS-Contracts.Exceptions@eeas.europa.eu: for sending requests for exceptions
EEAS-Contracts.Invoices@eeas.europa.eu: for questions in connection with invoices and

monitoring of payments (financial circuits at Headquarters, commitments and decommitments)
EEAS-Contracts.Procurement@eeas.europa.eu: for sending
- notices published in the OJEU (pre-information notices, contract notices, calls for
expressions of interest, notices of award or non-award of contracts, corrigenda, etc.),
validations of opening boards and evaluation committees and any questions about tender
procedures
- reports on the award of contracts following tender or negotiated procedures (except those for
buildings)
EEAS-Contracts.contracts@eeas.europa.eu: for questions of a general nature, including

legal advice (form and substance of contracts, clauses, termination, revision, failure to
perform contract, guarantees, etc.)
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VOLUME 1
Guide to public procurement procedures for contracts concluded by
the European External Action Service
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TABLE OF CONTENTS
List of Acronyms ............................................................................................................................ 9
1. INTRODUCTION.................................................................................................................... 10
2. PROCUREMENT .................................................................................................................... 10
2.1 Definition ............................................................................................................................. 10

2.1.1 Basic information on EU public procurement ............................................................... 10
2.1.2. Types of public contract ............................................................................................... 10
2.1.3 Legal basis and general principles ................................................................................ 11
2.2. What is not public procurement .......................................................................................... 13
2.2.1. Grants .......................................................................................................................... 13
2.2.2. Employment contracts .................................................................................................. 13
2.2.3. External experts ........................................................................................................... 13
2.3 Characteristics of procurement ............................................................................................. 13
2.3.1 Subject ........................................................................................................................... 14
2.3.2. Contract value .............................................................................................................. 14
2.3.3 Duration of contract ...................................................................................................... 15
3. ELIGIBILITY CRITERIA AND OTHER ESSENTIALS.................................................... 15
3.1 Eligibility to participate in tendering procedures .................................................................. 15

3.1.1 Bilateral and specific agreements (Article 106 FR)....................................................... 15
3.1.2 The WTO Agreement on Government Procurement (Article 107 FR)............................ 16
3.1.3 Ad hoc admission of ineligible candidates or tenderers ................................................ 16
3.2 Exclusion situations (Articles 93 and 94 FR) ....................................................................... 16
3.3 Administrative and financial penalties ................................................................................. 18
3.4 Other essential points ........................................................................................................... 18
4. CONTRACTS .......................................................................................................................... 19
4.1 Types of contract .................................................................................................................. 19

4.1.1 Contract types by nature ............................................................................................... 20
4.1.1.1 Framework contracts .............................................................................................. 20
4.1.1.2 Direct contracts ...................................................................................................... 21
4.1.2 Contract types by subject .............................................................................................. 21
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4.2 Drafting of contracts ............................................................................................................ 21
4.2.1 Use of standard contracts.............................................................................................. 21
4.2.2 Adaptation of the standard contracts............................................................................. 21
4.2.3 Drafting of new contracts .............................................................................................. 22
4.3 Amendments to contracts ..................................................................................................... 22
5. PROCUREMENT PROCEDURES ........................................................................................ 23
5.1 Which award procedure to apply? ........................................................................................ 24
5.2 Time limits for submission of requests to participate and tenders ........................................ 24
5.3 Open procedure: a single stage ............................................................................................. 25
5.4 Restricted procedure: two stages .......................................................................................... 25
5.5 Restricted procedure following a call for expressions of interest ......................................... 26
5.6 Negotiated procedure ........................................................................................................... 27

5.6.1 Negotiated procedure following publication of a contract notice in the OJ .................. 28
5.6.2 Negotiated procedure without publication of a contract notice in the Official Journal . 29
5.6.3 Negotiated procedure for low-value contracts .............................................................. 31
5.6.4 Negotiated procedure for service contracts covered by Annex IIB to Directive
2004/18/EC ............................................................................................................................ 32
5.7 Dynamic Purchasing System ................................................................................................ 32
5.8 Competitive dialogue ........................................................................................................... 33
5.9 Fast-track procedure ............................................................................................................. 33
5.10 Contests.............................................................................................................................. 34
6. PROCEDURE .......................................................................................................................... 34
6.1 Ex ante publicity .................................................................................................................. 34

6.1.1 Pre-information notice .................................................................................................. 34
6.1.1.1 Definition ............................................................................................................... 34
6.1.1.2 Arrangements for publication ................................................................................. 34
6.1.1.3 Other forms of publicity ......................................................................................... 35
6.1.2. Call for expressions of interest ..................................................................................... 36
6.1.2.1 Publication ............................................................................................................. 36
6.1.2.2 Other forms of publicity ......................................................................................... 36
6.2 Form and publication of contract notices ............................................................................. 36
6.2.1 Scope ............................................................................................................................. 36
6.2.2 Content .......................................................................................................................... 37
6.2.3 Arrangements for publication ........................................................................................ 38
6.2.4 Other forms of publicity ................................................................................................ 38
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6.2.5. Correction of a contract notice .................................................................................... 38
6.3 Preparation of the tender documents .................................................................................... 39
6.3.1 The letter of invitation to tender and its annexes ........................................................... 39
6.3.2 The specification and its annexes .................................................................................. 40
6.3.2.1 Title, purpose and context of the procurement ........................................................ 40
6.3.2.2 Subject of the contract and technical specifications ................................................ 40
6.3.2.3 Information meeting or site visit............................................................................. 42
6.3.2.4 Variants .................................................................................................................. 42
6.3.2.5 Eligibility to participate in tendering procedures .................................................... 43
6.3.2.6 Consortia and subcontracting ................................................................................. 43
6.3.2.7 Exclusion, selection and award criteria .................................................................. 43
6.3.2.7.1 Exclusion criteria ............................................................................................. 43
6.3.2.7.2 Selection criteria .............................................................................................. 45
6.3.2.7.3 Award criteria .................................................................................................. 48
6.3.2.7.4 Distinction between exclusion, selection and award criteria ............................ 51
6.3.2.8 Drawing up the tender forms .................................................................................. 52
6.3.3 Draft contract and annexes ........................................................................................... 52
6.3.4 Documents to be submitted by the tenderer ................................................................... 52
6.3.5 Other provisions ............................................................................................................ 53
6.3.5.1 Price revision and indexing .................................................................................... 53
6.3.5.2 Bank guarantees ..................................................................................................... 54
6.3.5.3 Quality control of contract performance ................................................................. 54
6.3.5.4 Penalties and claims for damages ........................................................................... 54
6.3.5.5 Payment time limits and default interest ................................................................. 55
6.4.1 Composition .................................................................................................................. 55
6.4.2 Absence of conflict of interest and confidentiality ......................................................... 56
6.4.3 Responsibilities of evaluation-committee members ....................................................... 56
6.4.4 Receipt and opening of requests to participate .............................................................. 57
6.4.5 Selection of candidates invited to submit a tender ......................................................... 57
6.4.6 Dispatch of tender documents ....................................................................................... 58
6.4.7 Contacts with tenderers before the closing date for submission of tenders ................... 58
6.4.8 Receipt of tenders .......................................................................................................... 59
6.4.9 Opening and evaluation of tenders ................................................................................ 59
6.4.9.1 Opening of tenders ................................................................................................. 60
6.4.9.2 Reasons for judging tenders not in order ................................................................ 61
6.4.9.3 Evaluation of tenders .............................................................................................. 61
6.4.9.3.1 Principles ......................................................................................................... 61
6.4.9.3.2 Contacts with tenderers ................................................................................... 62
6.4.9.3.3 Tenders to be rejected at the evaluation stage .................................................. 63
6.4.9.3.4 Special cases .................................................................................................... 63
6.4.9.3.5 Consultation of the early warning system ........................................................ 64
6.4.9.3.6 Evaluation report and ranking of tenders or requests to participate ................. 64
6.4.9.4 Award report and role of the Contracts Division .................................................... 65
6.4.9.5 Award of the contract ............................................................................................. 66
6.4.9.6 Notification of award .............................................................................................. 66
6.4.9.7 Publication of an award notice ............................................................................... 67
6.4.9.8 Public access to information and documents relating to procurement procedures .. 68
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7. CONTRACT MANAGEMENT .............................................................................................. 69
7.1 ABAC contracts ................................................................................................................... 69
7.2 Payment time limits and default interest .............................................................................. 69
7.3 Price revision ....................................................................................................................... 71
7.4 Management of guarantees................................................................................................... 72

7.4.1 Types of guarantee ........................................................................................................ 72
7.4.2 Release of guarantees.................................................................................................... 73
7.5 Amendments to contracts ..................................................................................................... 73
7.5.1 General principles ......................................................................................................... 74
7.5.2 Preparing an addendum ................................................................................................ 74
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List of Acronyms
ABAC Accrual-Based ACcounting system

CEI Call for expressions of interest
EEA European Economic Area
EEAS European External Action Service
EU European Union
EWS Early Warning System
FR Financial Regulation
GPA Agreement on Government Procurement
IR Implementing Rules (Financial Regulation)
OJEU Official Journal of the European Union
OPOCE Publications Office of the European Union
SDR Special drawing rights
SIMAP System of Information on Public Procurement
TED Tenders Electronic Daily (online version of OJEU S)
TFEU Treaty on the Functioning of the European Union
WTO World Trade Organisation
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1. INTRODUCTION
This Guide applies only to public contracts concluded by the EEAS on its own account, as
defined in Part I, Title V of the Financial Regulation1, for services, supplies, works and
buildings.
What this Guide does not cover
It does not cover operations such as staff recruitment or public contracts concluded by the
EEAS on behalf of and for the account of one or more beneficiaries in connection with external
actions, as defined in Part Two, Title IV of the Financial Regulation (see Practical Guide to
Contract procedures for EU External Actions). There are special rules for the award of such
public contracts in the Implementing Rules (Title III, Part II); they are spelt out in greater detail
in the Rules and procedures for services, supply and works contracts financed from the general
budget of the European Communities for the purposes of cooperation with third countries of
24 May 2007.
2. PROCUREMENT
2.1 Definition
2.1.1 Basic information on EU public procurement

'Public procurement' means the purchasing of works, supplies and services by public bodies at
either national or Union level. Public procurement within the European Union is governed by
Directive 2004/18/EC, while the legal basis for EEAS procurement is laid down in the
Financial Regulation (FR) and in its Implementing Rules (IR).
The objective of public procurement is to give public bodies a wider choice of potential
suppliers, thereby enabling them to obtain better value for money, while also developing
market opportunities for companies.
Publicising contracts: Contracts covered by the public procurement rules must be put out to
tender in the form of a notice in the Official Journal of the European Union (S series).
Choosing the right procedure: the notice published in the OJ S must specify the award
procedure that the contracting authority will follow. There are three main award procedures:
open, restricted and negotiated. The contracting authority has a free choice between the open
and restricted procedure but may use the negotiated procedure only in very specific
circumstances that the authorising officers responsible must substantiate.
2.1.2. Types of public contract2
1
Article 88 FR and Article 116 IR.
2
A more detailed description of the various types of subject can be found in the reference nomenclature provided by the common
procurement vocabulary (CPV) established by Regulation (EC) No 2195/2002.
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According to Article 88 FR, 'public contracts are contracts for pecuniary interest concluded in
writing between one or more economic operators and one or more contracting authorities ... in
order to obtain, against payment of a price paid in whole or in part from the budget, the supply
of movable or immovable assets, the execution of works or the provision of services.'
Contracts may take the following forms:
– ‘service contracts for all intellectual and non-intellectual services other than those covered
by supply contracts, works contracts and buildings contracts. Those services are listed in
Annexes IIA and IIB to Directive 2004/18/EC;’
– ‘supply contracts cover the purchase, leasing, rental or hire purchase, with or without
option to buy, of products’ (they may also include fitting, installation and maintenance);
– ‘works contracts for either the execution, or both the execution and design, of works
relating to one of the activities listed in Annex I to Directive 2004/18/EC or the realisation,
by whatever means, of a work corresponding to the requirements specified by the
contracting authority; a 'work' means the outcome of building or civil engineering works
taken as a whole that is sufficient of itself to fulfil an economic or technical function’;
– ‘building contracts cover the purchase, long lease, usufruct, leasing, rental or hire
purchase, with or without option to buy, of land, existing buildings or other real estate.’
They should not be confused with construction contracts belonging to the category of
works contracts.
It is essential to identify the type of contract in order to select the appropriate procurement
procedure.
Mixed contracts
Where a contract combines works and/or supplies and/or services, the estimated value of the
particular parts of the contract should be taken into the account and the following rules apply:
– if the contract relates mainly to works, but also involves services or supplies, it should be
regarded as a works contract; on the other hand, if the works are subsidiary to the main
subject of the contract, the overall contract may not be described as a works contract;
– contracts which include supplies and services are classified according to which of the two
accounts for the greater estimated value;
– a contract having as its subject services covered by Annex IIA and by Annex IIB is
considered to be covered by Annex IIA if the value of the services listed in that Annex
exceeds that of the services listed in Annex IIB.
2.1.3 Legal basis and general principles
The legal basis for EEAS procurement is constituted by the corresponding articles of the
Financial Regulation and its Implementing Rules, namely:
– the Financial Regulation: Council Regulation (EC, Euratom) No 1605/2002 of 25 June
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2002, Part One, Title V (Procurement) (Articles 88 to 107), as amended by Council
Regulation (EC, Euratom) No 1995/2006 of 13 December 2006, Regulation (EC)
No 1525/2007 of 17 December 2007 and Regulation (EU, Euratom) No 1081/2010 of the
European Parliament and the Council of 24 November 2010;
– the Implementing Rules: Commission Regulation (EC, Euratom) No 2342/2002 of

23 December 2002 , Part One, Title V (Procurement) (Articles 116 to 159), as amended by
Commission Regulation (EC, Euratom) No 1261/2005 of 20 July 2005, Commission
Regulation (EC) No 1248/2006 of 7 August 2006 and Commission Regulation (EC,
Euratom) No 478/2007 of 23 April 2007;
– case-law, especially Court of First Instance judgments in public procurement cases.
The relevant articles of the Financial Regulation and the Implementing Rules reproduce,
virtually word for word, the provisions of Directive 2004/18/EC, hereinafter referred to as 'the
Directive'.
It is important at this stage to look at some, though not all, of the fundamental concepts
underlying procurement by the EU, and thus by the EEAS, which the contracting authorities
must keep in mind throughout the procedure.
– All procurement must comply with the principles of transparency, proportionality, equal
treatment and non-discrimination.
– The basic rule underlying public procurement is to ensure competition between economic
operators. The contracting authority must secure the best conditions in terms of price and
quality but it must also ensure that the procedure is transparent and that all economic
operators are placed on an equal footing. Cases where a contracting authority can approach
an operator of its choice without launching a competitive procedure are the exception and
reserved for specific and clearly defined situations.
– Competitive procedures are based first on a precise definition of the subject and terms
and conditions of the contract and, second, on a variety of different criteria, of which
operators must be notified so that they can draw up their tender accordingly. This
competitive procedure, announced in advance, is strictly applied throughout the entire
process up to and including selection of the contractor.
– The EEAS is not legally bound vis-à-vis an economic operator until the contract is signed.
Up to the signing of the contract the EEAS may either abandon the procurement or cancel
the award procedure without the candidates or tenderers being entitled to claim any
compensation. Reasons must, of course, be given for the decision and the
candidates/tenderers notified.
Complying with all the legal requirements relating to public procurement should not be seen as
a mere formality or bureaucratic requirement, as any economic operator who is eliminated
from a procurement procedure can use failure to comply with any one of these requirements as
grounds to challenge the decision awarding the contract and possibly have it annulled.
Moreover, failure to comply may lead to non-contractual liability (damages) for the EEAS.
Compliance is also essential for administrative and even political reasons (scrutiny by the
European Parliament’s Budgetary Control Committee (COCOBU), the Ombudsman, the Court
12
of Auditors, etc.). And, most importantly, meeting these requirements helps improve financial
management by maximising competition and obtaining the best possible value for money.
2.2. What is not public procurement
2.2.1. Grants
This Guide does not apply to grants, which are 'direct financial contributions, by way of
donation, from the budget in order to finance: (i) either an action intended to help achieve an
objective forming part of a European Union policy; (ii) or the functioning of a body which
pursues an aim of general European interest or has an objective forming part of a European
Union policy.'
In the case of a public contract the EU obtains a product or service it needs in return for
payment, while in the case of a grant it makes a contribution either to a project carried out by
an external organisation or direct to that organisation because its activities contribute to EU
policy aims. The fact that an economic operator is a beneficiary of a grant does not prevent it
from receiving a public contract.
2.2.2. Employment contracts
Employment contracts should not be confused with contracts for the provision of services.
Special attention must be paid to the terminology used when drawing up invitations to tender
and contract documents, and during actual performance of the contract: Service providers
performing a service contract are not 'recruited', they do not have a 'job' or 'duties' in the EEAS,
they are not paid a 'fee' or a 'salary', they do not 'take leave' and they do not 'resign'. All these
terms imply paid employment, and hence obligations of the institution as an employer, rather
than performance of a public contract.
2.2.3. External experts
Up to the threshold set in the Directive, a special procedure (call for expressions of interest
and entry on a list of approved experts) may be used to select experts needed to assist in
evaluation of grant applications or tenders, in project follow-up and in ex-post evaluation.
2.3 Characteristics of procurement

For departments considering launching a procurement procedure, the first step is to determine
the characteristics of the contract, i.e. its subject, duration and value. This stage is crucial, since
these characteristics will determine the type of contract and procurement procedure to be
chosen.
Departments of the EU institutions are deemed to be contracting authorities except where they
conclude between themselves administrative arrangements for the supply of services or goods
or the execution of works.
The terms 'contractor', 'supplier' and 'service provider' refer to any natural or legal person or
public entity or consortium of such persons and/or bodies which offers on the market to
execute works, supply products and provide services respectively. The term
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‘economic operator’ covers equally the concepts of contractor, supplier and service provider.
Economic operators who have submitted a tender are referred to as 'tenderers'. Those who have
asked to be allowed to take part in a restricted procedure, a competitive dialogue, or a
negotiated procedure are referred to as ‘candidates’.
2.3.1 Subject
The department concerned must give a clear, full and accurate description of the subject of the
procurement. The technical content must be carefully drafted, also indicating the duration,
estimated volume and type of contract.
2.3.2. Contract value
The estimated value must be based on the volume of the tasks, previous experience and/or
market research and an assessment of the difficulty of achieving particular result. It must be
established as soon as possible and in any case before the start of the procedure. The estimated
value must be calculated without VAT for the total duration of the contract.
Generally speaking, the estimated value of a contract may not be established in such a way as
to avoid the competitive tendering procedure or to circumvent the rules which apply to certain
procurement procedures or above a certain threshold. Nor may a contract be split for that
purpose.
The calculation of the estimated value should include:
– the operator’s total estimated remuneration, including reimbursement of certain types of

expenses (for instance, travel and subsistence expenses);
– where a contract provides for options or possible renewals, the basis for calculation is the
maximum amount authorised, including the options and renewal;
– for joint contracts with contracting authorities from Member States or interinstitutional
contracts or contracts involving several departments, the total volume must be taken into
account;
– the basis for calculating the total value of a framework contract or dynamic purchasing
system is the maximum value of all the contracts planned for the entire duration of the
framework agreement or dynamic purchasing system; failing this, a maximum number of
units to be supplied (number of hours, number of courses, number of vehicles, etc.) can be
used;
– for contracts divided into lots, the total value of all the lots should be taken into account3.
In all the above cases you should take account of the whole picture when deciding on the
contract, and in particular its estimated value.
3
Splitting a contract into lots is relevant if a contract for a single technical or financial unit consists of several products or services
offered by companies belonging to different economic sectors. Splitting into lots can also increase competition and make it easier
for small and medium-sized companies to participate. Consequently, whenever appropriate, technically feasible and cost-efficient,
contracts with a value equal to or greater than the thresholds set in the Directive should be split into separate lots and awarded at the
same time. Indeed, for very high-value contracts, splitting the contract is a prerequisite for competition since only a small number of
operators, perhaps just one, would be able to offer all the products or services requested, thus placing the EEAS/Delegation in a
position of dependency.
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2.3.3 Duration of contract
A direct contract will stipulate a limited period for implementation4.
The duration of framework contracts5 must be specified and may not exceed four years, except
in exceptional cases justified, in particular, by the subject of the contract.
Contracts awarded for multiannual operations normally include a clause authorising their
renewal, subject to certain conditions, usually at the end of the first year.
In accordance with the principle of broadest possible competition laid down in Article 89(2) of
the Financial Regulation and by analogy with framework contracts, the duration of direct
contracts should not exceed four years either.
3. ELIGIBILITY CRITERIA AND OTHER ESSENTIALS
3.1 Eligibility to participate in tendering procedures
3.1.1 Bilateral and specific agreements (Article 106 FR)

According to Article 106 FR 'participation in tendering procedures shall be open on equal
terms to all natural and legal persons coming within the scope of the Treaties (namely all
economic operators registered in the EU and all EU citizens) and to all natural and legal
persons in a third country which has concluded with the European Communities a special
agreement in the field of public procurement under the conditions laid down in that
agreement.'
This provision implies that suppliers established in third countries have the right to participate
in tendering procedures if an international agreement in the field of public procurement grants
them the right to do so. The relevant international agreements in the field of public
procurement are currently (1 January 2011):
– under the Stabilisation and Association Agreements (SAA) Croatia, FYROM, Albania
and Serbia have been granted access to the EU's tendering procedures;
– the Agreement on the European Economic Area. Pursuant to this agreement, suppliers of
Iceland, Norway and Liechtenstein have full access to tendering procedures organised by
the EU institutions;
– the bilateral agreements with Mexico6 and Chile7 8.
To ensure compliance with the nationality rule tenderers must prove their nationality or the
country they are established in by presenting the documents required under their national law.
4
See definition in point 4.1.1.2.
5
See definition in point 4.1.1.1.
6
The scope of the agreement with Mexico is set out in the annexes to Decision 2/2000 of the EC-Mexico Joint Council.
7
The scope of the association agreement with Chile (OJ L 352 of 30.12.2002) is set out in the annexes to the agreement.
8
Chilean and Mexican entities have access above the thresholds of 130.000 SDR for supplies and services and of 5.000.000 SDR
for works and only for contracts awarded by the Commission and the Council; contracts awarded by the EEAS are covered by these
agreements.
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Article 54 of the Treaty on the Functioning of the European Union links the concepts of
establishment and nationality in the EU, providing that 'Companies or firms formed in
accordance with the law of a Member State and having their registered office, central
administration or principal place of business within the Union shall […] be treated in the same
way as natural persons who are nationals of Member States.'
3.1.2 The WTO Agreement on Government Procurement (Article 107 FR)
Article 107 of the Financial Regulation refers to the Multilateral Agreement on Government
Procurement (GPA) concluded within the World Trade Organisation. The GPA grants access
to procurement procedures of EU institutions to nationals of states having ratified this
Agreement9. The following countries have ratified the GPA: Canada, Taipei, Hong Kong
(China), Israel, Japan, Korea, the Netherlands (Aruba), Singapore, Switzerland, and the United
States. Iceland, Norway and Liechtenstein are also parties to the GPA but their suppliers
already enjoy full access under the EEA Agreement.
Origin of goods purchased
The Financial Regulation does not impose restrictions on the origin of goods purchased.
However, as is stipulated in contracts, contractors must comply with customs rules and trade
agreements10.
3.1.3 Ad hoc admission of ineligible candidates or tenderers
If a candidate/tenderer is ineligible under the above agreements, the institutions may, however,
exceptionally agree to their participation in a given procedure without setting a precedent or
obligation for the future. Such an ad hoc admission must be justified by the contracting
authority. Normally this should only happen in the case of specific procurements where there is
no economic operator based in an eligible country or the delivery itself takes place in a country
that is not eligible.
The relevant information must be published at the beginning of the procedure, i.e. in the tender
documents and the contract notice11.
3.2 Exclusion situations (Articles 93 and 94 FR)

The sole purpose of the exclusion criteria is to determine whether an operator is qualified to
participate in the tendering procedure. It is important to establish the difference between
exclusion from participation in the procurement procedure and exclusion from award of a
contract.
Article 93 FR
9
Entities from GPA countries have access only above the thresholds of SDR 130 000 for supplies and services and of
SDR 5 000 000 for works. The SDR is a basket of several currencies. The value in euro of the thresholds fixed in SDR is reviewed
every two years. For the period 2010-2011 SDR 130 000 = €125 000 and SDR 5 000 000 = €4 845 000. The GPA does not cover
all contracts awarded by the institutions of the EU; Appendix I to the GPA sets out which contracts are covered. The full text of the
GPA and its appendices can be found on: http://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm
10
More information can be obtained at:
http://ec.europa.eu/taxation_customs/customs/customs_duties/rules_origin/index_en.htm
11
Point III.2.1 of the contract notice might include text such as 'Participation in this invitation to tender is open to persons
established in ...'.
16
Candidates, tenderers and applicants shall be excluded from participation in procurement
procedures if:
(a) they are bankrupt or being wound up, are having their affairs administered by the courts,
have entered into an arrangement with creditors, have suspended business activities, are the
subject of proceedings concerning those matters, or are in any analogous situation arising from
a similar procedure provided for in national legislation or regulations;
(b) they have been convicted of an offence concerning professional conduct by a judgement
which has the force of res judicata (i.e. against which no appeal is possible);
(c) they have been guilty of grave professional misconduct proven by any means which the
contracting authority can justify;
(d) they have not fulfilled 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 with those of the country of the contracting authority or those of the country
where the contract is to be performed;
(e) they have been the subject of a judgment which has the force of res judicata for fraud,
corruption, involvement in a criminal organisation or any other illegal activity detrimental to
the EU's financial interests12;
(f) they are currently subject to an administrative penalty referred to in Article 96(1) of the
Financial Regulation.
Points (a) to (d) of the first subparagraph shall not apply in the case of purchase of supplies on
particularly advantageous terms from a supplier which is definitively winding up its business
activities, or from the receivers or liquidators of a bankruptcy, through an arrangement with
creditors, or through a similar procedure under national law.
Article 94 FR
Contracts may not be awarded to candidates, applicants or tenderers who, during the
procurement procedure:
(a) are subject to a conflict of interest;

(b) are guilty of misrepresentation in supplying the information required by the contracting
authority as a condition of participation in the contract procedure or fail to supply this
information;
(c) find themselves in one of the situations of exclusion for this procurement procedure.
Exclusion criteria must be included in the specification, except in restricted procedures, in the
competitive dialogue, and in negotiated procedures following publication of a contract notice.
In such cases they appear only in the call for expressions of interest or in the corresponding
contract notice and will have been checked before the specification is sent.
The only criteria to be applied are those set out in Article 93 of the Financial Regulation, with
nothing added, deleted or altered.
Exclusion
12
Point (e) refers to the following situations:
1. cases of fraud as referred to in Article 1 of the Convention on the protection of the European Communities’ financial interests
drawn up by the Council Act of 26 July 1995;
2. cases of corruption as referred to in Article 3 of the Convention on the fight against corruption involving officials of t he
European Communities or officials of Member States of the European Union, drawn up by the Council Act of 26 May 1997;
3. cases of involvement in a criminal organisation, as defined in Article 2(1) of Council Joint Action 98/733/JHA;
4. cases of money laundering as defined in Article 1 of Council Directive 91/308/EEC.
17
Principles such as the rights of defence and proportionality must be borne in mind before
proposing (evaluation committee) or deciding (contracting authority) to exclude a candidate or
tenderer. So, unless the evidence is such that the matter is cut and dried (the candidate or
tenderer explicitly recognises the facts leading to their exclusion, for example), the exclusion
process will be based on the right of reply of the candidate or tenderer concerned (adversarial
procedure).
3.3 Administrative and financial penalties

Without prejudice to the application of penalties laid down in the contract, candidates or
tenderers and contractors who have made false declarations, have made substantial errors or
committed irregularities or fraud, or have been found in serious breach of their contractual
obligations may be excluded from all EU-financed contracts and grants for a maximum of five
years from the date on which the infringement is established as confirmed following an
adversarial procedure with the contractor. This period may be extended to 10 years in the event
of a repeat infringement within five years of the first. This decision is adopted by the
Commission (College) at the end of an adversarial procedure.
Tenderers, candidates or applicants who have made false declarations or perpetrated substantial
errors, irregularities or fraud may also be subject to financial penalties representing 2% to 10%
of the total estimated value of the contract to be awarded. Contractors who have been found in
serious breach of their contractual obligations may be subject to financial penalties
representing 2% to 10% of the total value of the contract in question. That rate may be
increased to between 4% and 20% in the event of a repeat infringement within five years of the
date referred to above.
Where the award procedure is vitiated by substantial errors or irregularities or by fraud, the
contracting authority will suspend the procedure and may take whatever measures are
necessary, including the cancellation of the procedure. Where, after the award of the contract,
the award procedure proves to have been vitiated by substantial errors or irregularities or by
fraud, the contracting authority may, depending on the stage reached in the procedure, refrain
from concluding the contract or suspend performance of the contract or, where appropriate,
terminate the contract. Where such errors, irregularities or fraud are attributable to the
contractor, the EEAS may also refuse to make payments, may recover monies already paid or
may terminate all the contracts concluded with this contractor, in proportion to the seriousness
of the errors, irregularities or fraud.
The purpose of suspending the contract shall be to verify whether presumed substantial errors
and irregularities or fraud have actually occurred. If they are not confirmed, performance of the
contract shall resume as soon as possible. A substantial error or irregularity shall be any
infringement of a contractual or regulatory provision resulting from an act or an omission that
causes or might cause a loss to the EU budget.
3.4 Other essential points

Conflict of interest
There is a conflict of interest where the impartial and objective exercise of the functions of the
18
contracting authority or the position of a candidate/tenderer on award or during the
performance of a contract is compromised for reasons involving family, emotional life,
political or national affinity, economic interest or any other shared interest. There is a risk of
conflict of interest where, for example, persons participating in the procedure (evaluation
committee, contracting authority, etc.) may grant themselves or others unjustified direct or
indirect advantages by influencing the outcome of a procedure or where an expert/company has
a possibility of obtaining inside information leading to unfair competition in subsequent/related
procedures.
Contracts may not be awarded to candidates or tenderers who, during the contract award
procedure, are subject to a conflict of interest. The reasons for exclusion must be examined
case by case. According to established case-law of the Court of Justice of the European Union,
exclusion must be based on the existence of a real risk of conflict of interest, as demonstrated
by the specific circumstances of the case in question. Automatic exclusion deprives the
candidate or tenderer of the right to present supporting evidence which might remove all
suspicion of a conflict of interest. The contracting authority must therefore build up a
compelling case before excluding a candidate or tenderer.
Similarly, if the risk of a conflict of interest arises during performance of a contract, adequate
measures (including, where appropriate, termination of the contract) must be adopted to
forestall this conflict.
Interinstitutional contracts
If a contract or framework contract is necessary to implement a joint action between an

institution and a contracting authority from one or more Member States or another institution,
the procurement procedure may be carried out jointly.
In an interinstitutional procedure the lead institution is the sole representative of the contracting
authority and is responsible for overall management of the contract; other participating
institutions are responsible for the execution of specific contracts concerning them, in
particular orders, receipt of goods/services and payments.
See also the Guidelines for inter-Institutional Calls for Tenders and Contracts (version of 2
September 2005, updated 18 June 2010).
4. CONTRACTS
4.1 Types of contract

A written contract must be drawn up for each public contract awarded by the EEAS (Article 88
of the Financial Regulation)13. Contracts can be characterised:
– by their nature: framework contract or direct contract;
– by their subject: contracts for services, supplies, works or buildings.
13
This does not apply to payments against invoices for €500 or less (Article 129(4) of the Implementing Rules). A purchase order
(a simplified contractual document) can be used for contracts not exceeding €25 000.
19
4.1.1 Contract types by nature
4.1.1.1 Framework contracts

Framework contracts merely set out a performance framework (in general, the characteristics
and price of the goods or services that the contractor is prepared to provide) and the other basic
elements of the contractual relationship are defined at a later stage in a specific contract or an
‘order form’ indicating quantities and performance date. In practice, framework contracts are
suitable for a purpose that is well defined, but where the exact quantities and delivery times
cannot be indicated in advance.
Signing this type of contract therefore gives rise to no direct obligation for the EEAS, which
means that there is no need for budgetary cover before its signing nor for a request for a
budgetary commitment. Only the specific contracts and order forms concluded under a
framework contract must be preceded by a budgetary commitment.
The term of a framework contract may not exceed four years, save in exceptional cases duly
justified in particular by the subject of the framework contract 14. A specific contract or
purchase order may be performed after the expiry of the framework contract, as long as they
were signed before it expired and the execution period does not last more than one year after
the term of the framework contract.
There are a number of different framework contracts:
– Single framework contract: concluded with a single economic operator. When the specific
contract is awarded the parties may not make any substantial changes to the terms of the
framework contract. Before awarding a specific contract the contracting authority may,
however, consult the framework contractor, requesting it to supplement its tender if
necessary.
– Multiple framework contract in order of priority (‘cascade’ system): like a single

framework contract but concluded with at least three successful tenderers 15 ranked
according to the quality of their bids. When specific contracts are awarded, the economic
operator whose tender for the award of the framework contract was considered the best will
be contacted first. If this first operator is not capable of or interested in supplying the
goods, services or works in question, the second will be contacted. If the second operator is
not capable of or interested in supplying the goods, services or works in question, the third
one will be contacted, and so on.
– Multiple framework contract with renewed competitive tendering16: similar to the single
framework contract but concluded with several economic operators (minimum three).
When specific contracts are awarded, the parties will compete again on the basis of the
same and, if necessary, more detailed terms, and, where appropriate, on the basis of other
terms referred to in the specification for the framework contract.
14
Article 117 IR.
15
If fewer than three bids remain in the running for the award of the framework contract, the number of contractors may be reduced
to two.
16
Multiple framework contracts with reopening of competition are awarded on the basis of indicative offers with no order of
priority amongst the contractors. See also the circular on reopening competition under multiple framework contracts (Brussels,
1 February 2006, updated 1 May 2007).
20
4.1.1.2 Direct contracts
In the case of direct contracts the subject, including the length of the contract and the date on
which the work is to be performed, is defined at the outset. As such, they are definitive and
‘self-sufficient’ in the sense that contractors can implement them without further formalities.
Provision should therefore be made for budgetary cover before its signing.
4.1.2 Contract types by subject
See point 2.1.2 Types of contract.
4.2 Drafting of contracts
4.2.1 Use of standard contracts

Departments are encouraged to use the standard contracts drawn up by the EEAS (see standard
contracts in Volume 2). The final decision is, however, for the authorising officer alone.
As a rule, contracts are in three parts: special conditions, general conditions and annexes,
which normally form an integral part of the contract.
– By definition, the special conditions are the variable part of the contract. They contain a
number of blank areas which must be filled in carefully, beginning with the particulars of
the parties. They also include a number of mandatory clauses, to be chosen from versions
proposed in square brackets, and optional clauses which can be kept or discarded.
– On the other hand, the general conditions should not be changed and, in normal
circumstances, are incorporated without amendment. In the case of a simplified contract
(purchase order or order form) they are to be found on the website shown on the contract.
– The tender dossier must include a draft contract, with every section filled in by the
contracting department, except the ones concerning the contractor’s identity and the
financial aspects of the tender (price).
4.2.2 Adaptation of the standard contracts
Standard contracts are for generic use. They cover a variety of situations and incorporate what
are currently considered the best possible solutions for the different aspects of contractual
relationships. However, when applying these generic solutions to specific cases, contract
managers must evaluate whether they are likely to yield the desired result.
Sometimes a standard contract is not the best solution because of the specific subject and
circumstances. In such cases, authorising officers must make whatever changes they consider
necessary after seeking the opinion of the EEAS’s Contracts Division.
Should a model contract be imposed by the legislation of a third country, the delegation should
also check with the Contracts Division that its provisions are consistent with the Financial
Regulation and that none of them are liable to violate the interests of the European Union.
21
4.2.3 Drafting of new contracts
Sometimes no standard contract exists for a given activity. In such cases, authorising officers
must draft the contract themselves and submit it beforehand to the EEAS Contracts Division
for its opinion. The generic standard contracts can be used as the basis for these ad hoc
contracts. Care should be taken not to create incompatibilities between the special conditions
and general conditions.
4.3 Amendments to contracts

Contracts may need to be amended during their period of validity if the circumstances affecting
project implementation have changed since the initial contract was signed. However, it should
be kept in mind that amendment of a contract may not have the effect of altering the eligibility
criteria applicable at the time the contract was awarded.
Contract amendments must be formalised by an administrative order or an addendum to the

contract, in accordance with the general conditions. Substantial amendments to a contract must
take the form of an addendum. This addendum must be signed by the contracting parties.
Changes of address or changes of bank account may simply be notified in writing by the
contractor to the contracting authority, although this does not affect the right of the contracting
authority to oppose the contractor's choice of bank account.
If a contract contains a price revision clause, any new prices arising from the application of the
revision formula may be confirmed by a simple exchange of letters without any need for an
addendum.
For more details on the practicalities, see section 7.5.
22
5. PROCUREMENT PROCEDURES
There are several different procedures for awarding contracts, each allowing for a different
degree of competition.
The basic principle governing the award of contracts is competitive tendering. The purpose is
twofold: (i) to ensure the transparency of operations; and (ii) to obtain the desired quality of
services, supplies or works at the best possible price.
Once the nature of the contract has been established, you can identify the procedure to be
followed using this table.
Estimated value of contract Type of standard procedure Reference to article

Publication
Minimum applicable in OJEU Financial Implementing
Services or supplies Works procedure required Regulation rules
(see notes below)
Simple payment of costs against
≤ €500 NO 91 129(4)
invoices
Negotiated procedure with a
> €500 and ≤ €5 000 NO 91 129(3)
single tender
Negotiated procedure with at
> €5 000 and ≤ €25 000 least three candidates without NO 91 129(2)
contract notice
Negotiated procedure with at
> €25 000 and ≤ €60 000 least five candidates without NO 91 129(1)
contract notice
> €60 000 and Restricted procedure following a Notice of call
< €125 000*¹ call for expressions of interest for
(CEI)*. For just one contract, it is expressions of
> €60 000 and
generally preferable to use an interest. 91 128
> €60 000 and < €4 845 000*
open or restricted procedure with or
< €193 000*²
publication of a specific contract contract
notice. notice
≥ €125 000*¹ Contract 90 and
≥ €4 845 000* Open or restricted procedure 158
≥ €193 000*² notice 91
Contract
notice
Contracts listed in Negotiated procedure after
or
Annex IIB to Directive publication of a contract notice.
notice of call
2004/18/EC with no Restricted procedure following a
for
upper limit call for expressions of interest.
expressions of
interest.
*Euro equivalents of the amounts in SDR (special drawing rights), a basket of currencies used as a unit of account by the International Monetary Fund. These amounts
in euros may be revised every two years and are applicable from 1 of January of even years.
¹ Service contracts in Annex IIA to Directive 2004/18/EC (see 7.1.4, p.175) except for the research and development contracts in category 8 of the annex.
² Research and development contracts in category 8 of Annex IIA to Directive 2004/18/EC.
23
5.1 Which award procedure to apply?
The rules on how to apply contract-award procedures fall into three categories:
– ‘standard’ procedures: open and restricted procedures (see 5.3 Open procedure: a single
stage and 5.4 Restricted procedure: two stages);
– ‘exceptional’ procedures: negotiated procedure and procedures applicable to low-value

contracts (see 5.6 Negotiated procedures);
– procedures introduced with the entry into force of the most recent amendments to the FR
(variant of the open procedures) and the competitive dialogue (variant of the restricted
procedure).
See 5.7 Dynamic purchasing system and 5.8 Competitive dialogue.
The thresholds given in the table below are based on the maximum budget for the contract in
question (including any cofinancing). If a contract is subdivided into several lots, the value of
each lot must taken into account in calculating the total amount (see 2.3.2. Contract value).
You may not artificially split up projects in order to circumvent the thresholds. Whatever
procedure is used, the contracting authority must ensure that the basic principles are upheld
(including eligibility, exclusion and selection rules).
5.2 Time limits for submission of requests to participate and tenders

The minimum time limits to be observed are:
Open procedure Restricted procedure

Tenders Applications Tenders
ordinary 52 37 40
WITHO
UT Electronic access to
Pre- the tender 47 37 35
informatio documentation
n notice (Internet)
ordinary 36 37 36
AFTER Electronic access to
Pre- the tender 31 37 31
informatio documentation
n notice (Internet)
Notes:
– Time limits run from the date of dispatch of the contract notice to the Publications Office
24
or the invitation to tender to selected candidates and are given in calendar days.
– The time limits indicated above are the minimum. The actual time limit must be long
enough to ensure the greatest possible competition and good offers; also taking into
account the complexity of the contract.
– The tender documents, in the requested language, must be sent within six calendar days. If
the contracting authority does not meet this deadline, the overall time limit must be
extended.
5.3 Open procedure: a single stage

This is a standard procedure that may be used for any public contract.
In this procedure, any economic operator who is interested may submit a tender. A contract
notice describing the characteristics of the contract is published in the S series of the Official
Journal. At the request of an economic operator, the contracting authority sends it the tender
documentation (in practice the specification, which, it is important to stress, should be ready
and translated17 when the contract notice is published) setting out in detail the purpose of the
contract, its terms and conditions and the various award criteria, and invites it to submit an
offer on that basis.
The minimum time limit for submitting tenders is 52 days without pre-information and 36 days
with pre-information. These limits may be reduced by five days if the tender documentation is
accessible electronically (see 5.2 Time limits for submission of requests to participate and
tenders).
The tenders received are opened and examined and the contract is awarded by conducting the
selection procedure (verification of the eligibility and of the financial, economic, technical and
professional standing of tenderers) and the award procedure (comparison of tenders). No
negotiation is allowed.
5.4 Restricted procedure: two stages

A restricted procedure is one where all economic operators may ask to take part but only
candidates satisfying the selection criteria may submit a tender.
The restricted procedure has two stages:
– publication of a contract notice in the Official Journal describing the characteristics of the
contract and indicating the criteria which will be used for selecting candidates 18. only the
exclusion and selection criteria are assessed, the award criteria being evaluated at the next
stage;
– invitation to tender: only selected candidates will receive the specification and be invited to
tender.
The time limits are (see 5.2 Time limits for submission of requests to participate and tenders):
17
Provision must be made for translation into all EU languages unless the specification is ultra-technical and/or extremely long, in
which case only the general conditions are to be translated into all languages.
18
Article 135 IR..
25
– For requests to participate: operators have 37 calendar days from the date of dispatch of the
contract notice to OPOCE (not from the date of publication of the notice).
– For tenders: candidates selected by the contracting authority have 36 calendar days from
the date of the day following the dispatch of the specification by the contracting authority
where there has been pre-information; if not, they have 40 days for submission of tenders.
These limits may be reduced by five days if the tender documentation is accessible
electronically.
The number of candidates invited may not be fewer than five, provided a sufficient number of
candidates are selected, and may be restricted to no more than twenty. The range and the
relevant criteria must be announced in the contract notice.
The successful tenderer is chosen by the award procedure, which entails examination and
comparison of the tenders. No negotiation is allowed.
A restricted procedure is particularly recommended:
– if the number of offers expected is so large that practical management of the procurement
procedure could be adversely affected;
– if the contracting authority wishes to limit circulation of the tender documents (e.g. for
security reasons);
– if the volume and/or preparation of the documents must be planned in advance (e.g.
architect’s plans);
– if a site visit or information meeting with economic operators is planned.
– Another advantage of the restricted procedure is that it makes it possible to know in

advance the languages into which the tender documents will have to be translated.
5.5 Restricted procedure following a call for expressions of interest

Calls for expressions of interest (CEI) serve to invite economic operators to present
themselves as candidates for future public procurement procedures by a contracting authority.
They can be seen as a way of generating shortlists which may be used and updated many times
for many different procurement procedures. This is the distinction between a CEI and restricted
procedures published in the OJ, which generate a shortlist which can be used only once. A CEI
also differs from a framework contract, which is a closed system.
In practical terms, a CEI is only worth using when a series of similar contracts are planned. If
only a single contract is planned, it will generally be more efficient for the contracting
authority to use an open or restricted procedure (with publication of a contract notice).
26
Once the applications received in response to the CEI have been evaluated, candidates who
satisfy the specified criteria are pre-selected and put on a list. When a public contract is to be
awarded, the contracting authority, acting on the basis of objective and non-discriminatory
selection criteria specific to that contract, will invite at least five pre-selected candidates to
submit a tender (provided a sufficient number of candidates satisfy the selection criteria for
that contract) and will send them the tender documentation. The number of candidates invited
to take part may be limited to no more than of twenty, in which case the minimum and
maximum numbers must be indicated in the call for expressions of interest.
The minimum time limit for submitting tenders is 21 days from the day following the dispatch
of the specification to the candidates selected from the CEI list.
The CEI is valid for up to three years from the date on which it is sent to the Publications
Office. Anyone who is interested may apply at any time during this period, except the last three
months.
The CEI is therefore not in a public procurement procedure as such; that takes place at a later
stage, when a specific contract is to be awarded. However, it must still be prepared and
implemented on similar lines to those that apply to public procurement generally (transparency,
proportionality, equal treatment and non-discrimination) because the legality of award
procedures based on a list of candidates resulting from a CEI will partly depend on the way the
candidates were pre-selected during the preceding procedure.
The restricted procedure following a CEI:
– is used for contracts worth more than €60 000 but less than the thresholds19 in Annex IIA to
Directive 2004/18/EC;
– is one of the two minimum procedures authorised for service contracts covered by
Annex IIB to Directive 2004/18/EC worth at least €60 000 and without any upper limit20.
5.6 Negotiated procedure

This is a procedure in which the contracting authority consults economic operators of its choice
and negotiates the terms of the contract with one or more of them; it is used only in the limited
number of cases provided for in the legislation (Articles 126 and 127 IR).
The contracting authority must give the reasons for using a negotiated procedure in writing.
Before launching the procedure, the relevant management unit must inform the authorising
officer and provide reasons for using this procedure (it is up to the operational unit responsible
to prove that the circumstances are exceptional).
Negotiated procedures must be the subject of an annual report from the authorising officer. The
procedures used on the basis of Article 126(1), points (a) to (g) and Article 127(1), points (a) to
(d) of the Implementing Rules must be included in the Report on negotiated procedures.
The negotiated procedure has certain peculiarities: the contracting authority may act as an
independent economic operator, and the offer may be changed after submission (an absolute
prohibition on negotiation being the rule for open and restricted procedures).
19
They are 130 000 SDR (200 000 for Category 8) and 5 000 000 for works contracts.
20
See table at the start of Part 5.
27
The contracting authority is nevertheless subject to certain limitations: (i) a specification must
specify the nature and purpose of the contract, the time limits and the technical specifications;
(ii) tenders must be compared and their respective advantages assessed; (iii) the principle of
equal treatment of tenderers must be upheld during the entire procedure.
5.6.1 Negotiated procedure following publication of a contract notice in the OJ 21
Article 127 IR lists the cases where this procedure may be used, regardless of the value of the
contract. It is usually used in the following cases:
– tenders which are irregular or unacceptable in terms of the selection or award criteria
submitted in response to an open or restricted procedure which has already been completed,
provided that the original terms of the contract specified in the tender documentation are
not substantially altered;
– exceptional cases concerning works, supplies or services of a nature that do not lend
themselves to prior overall pricing by the tenderer;
– financial services and intellectual services for which the contract specification cannot be
established with sufficient precision;
– works performed for research, testing or development;
– service contracts covered by Annex IIB to Directive 2004/18/EC (subject to the provisions
on legal services and secret contracts in Article 126 IR??);
– for research and development services other than those whose results belong exclusively to
the contracting authority;
– audiovisual services.
Article 124 IR provides that, under the negotiated procedure following publication of a
contract notice, the contracting authority invites each candidate selected following the
submission of applications to submit a tender. It then negotiates the tenders to adapt them to
the requirements set out in the contract notice or specification and in any additional documents
in order to find the tender offering the best value for money.
A contract notice must be published in the Official Journal, S series using the standard model
that is also used for the open or restricted procedures.
During the negotiations, the contracting authority ensures that all tenderers are treated equally
and that there is no discrimination at any stage of the negotiated procedure. In particular, it
must not discriminate by supplying information that could give some tenderers an advantage
over others.
The negotiated procedure following publication of a contract notice is usually conducted like a
restricted procedure with publication of a contract notice (see Chapter 5.3 Restricted
procedure).
Moreover:
21
The publication of a contract notice is not required in the cases in question here if the contracting authority includes in the
negotiated procedure all the tenderers meeting the selection criteria who, in the earlier phase , submitted a compliant tender ((and
only these tenderers).
28
– at least three candidates must be invited to negotiate, and in any event the number of
candidates invited to tender must be enough to ensure genuine competition. The candidates
must satisfy the exclusion and selection criteria. After receiving the requests to participate,
the evaluation committee must therefore check that the candidates satisfy the criteria before
the invitations to negotiate are sent;
– the minimum time limit for submitting tenders is not laid down in the rules; you are
advised to apply by analogy the time limit for restricted procedures with publication of a
contract notice;
– the procedures in question are not included in the report on negotiated procedures referred
to in Article 54 IR when they cover services under Annex IIB;
– negotiated procedures of this type should not be confused with the ‘competitive dialogue’
provided for in Directive 2004/18/EC.
5.6.2 Negotiated procedure without publication of a contract notice in the Official Journal
According to Article 126 IR, it can be used in the following cases:
– no tenders or no suitable tenders have been submitted in response to an open or restricted

procedure which has already been completed, provided that the initial conditions specified
in the tender documentation are not substantially altered;
– there is only one possible operator because that operator has exclusive rights or for
technical/artistic reasons;
– a case of extreme urgency. In order for this provision to apply, three conditions must be
met: an unforeseeable event not attributable to the contracting authority that it is impossible
to deal with using an ordinary (standard or fast-track) procedure. An ‘unforeseeable event’
is an event absolutely atypical in normal economic and social life, such as an earthquake,
flooding or a terrorist attack. In situations like these the contracting authority has to act
promptly and capably from the moment the unforeseeable event happens. A delay in the
renewal of a contract or in launching the procedure to renew a contract does not constitute
grounds for extreme urgency in any circumstances;
– contracts awarded after a contest;
– for additional services and works not included in the initial contract which, through
unforeseen circumstances, have become necessary for the performance of the services or
works. In such a case they are awarded to the contractor performing the contract under the
following conditions:
o these additional contracts cannot be technically or economically separated from the

main contract without serious inconvenience for the contracting authority, or
o although separable from the performance of the original contract, they are strictly
necessary for its completion.
The aggregate value of additional contracts may not exceed 50% of the amount of the initial
29
contract:
– For new services or works consisting in the repetition of similar services or works entrusted
to the economic operator awarded the initial contract by the same contracting authority,
provided that these services or works conform to a basic project and that this project was
the subject of an initial contract awarded under the open or restricted procedure. in such a
case they are awarded to the contractor performing the contract under the following
conditions:
o the additional services or works must be provided for in the contract notice;
o this procedure may be used for only three years following the conclusion of the
original contract.
– For additional deliveries under a supplies contract subject to the following conditions:
o a change of supplier would oblige the contracting authority to acquire equipment

having different technical characteristics which would result in either
incompatibility or disproportionate technical difficulties in operation and
maintenance;
o this procedure may be used for only three years following the conclusion of the
original contract.
– For supply contracts: where the products are manufactured purely for the purpose of
research, experimentation, study or development; where they are purchased on a
commodity market. Where they are purchased on particularly advantageous terms
(liquidation);
– For building contracts, after prospection of the local market, and contracts for legal services
provided that they are appropriately publicised.
– For contracts declared to be secret or whose performance must be accompanied by special

security measures, or when the protection of the essential interests of the Union so requires.
In negotiated procedures without publication of a contract notice, the contracting authority

invites each candidate selected to submit a tender. After receipt of the tenders it negotiates the
offers in order to adapt them to the requirements set out in the specification and to find the
tender offering the best value for money, while ensuring that tenderers are treated equally.
With the exception of cases where the contract can be awarded to only one trader (additional
services or works, or additional or complementary deliveries, monopoly situation), at least
three candidates must be invited to tender, provided that a sufficient number of candidates
satisfy the selection criteria. In any event, there must be enough candidates to ensure genuine
competition.
The minimum time limit for submitting tenders is not laid down in the rules. It must, however,
be long enough to give interested parties a reasonable and appropriate period to draw up and
submit their tenders.
30
For practical reasons the procedure may be conducted as a restricted procedure (see 5.3
Restricted procedure) either formally in writing (similar to a restricted procedure) or more
informally on the basis of an exchange of correspondence or orally (in principle with each
tenderer individually). For reasons of transparency, evidence of each contact, development or
stage in the negotiation must be kept carefully.
The negotiation covers both the technical and the financial aspects of the tender, but may not
concern the minimum (compulsory) technical or administrative specifications in the tender
documents.
The contracting authority may not reveal to other tenderers any confidential information
provided by a tenderer taking part in the negotiated procedure, in particular technical or
business secrets.
5.6.3 Negotiated procedure for low-value contracts
Low-value contracts may be awarded by a negotiated procedure. Low-value contracts are

contracts worth less than €60 000 and there are four thresholds:
– contracts of between €25 000 and €60 000: at least five candidates must be invited to
negotiate after ex-ante publicity but if the contracting authority receives only one tender
that is valid from the administrative and technical points of view the contract may be
awarded provided that the award criteria are met;
– contracts of between €5 000 and €25 000: at least three candidates must be invited to
negotiate but if the contracting authority receives only one tender that is valid from the
administrative and technical points of view the contract may be awarded provided that the
award criteria are met;
– contracts of between €500 and €5 000: a single tender is allowed;
– payments of amounts not more than €500 may be made against invoice without prior
acceptance of a tender.
The various stages of the negotiated procedure without publication of a contract notice are not
laid down in detail in the rules. Nevertheless, it requires compliance with the principles
common to all public contracts: transparency, proportionality, equal treatment, non-
discrimination and sound financial management. The obligation to publicise a negotiated
procedure is confined to contracts of between €25 000 and €60 000.
In practice, the procedure can be conducted in a formal manner up to the submission of offers
and then, where appropriate (in particular if the contracting authority considers that the offers
can be improved), real negotiations can take place subsequently.
If the value of the contract is up to €5 000, the contracting authority must make sure that it
negotiates with the single candidate the best technical and financial terms on the basis of the
specification and any additional documents.
For contracts up to €500, costs may simply be paid against invoices. Invoices should be made
out in the name of the EEAS/delegation22.
22
In duly substantiated cases invoices in the name of a member of the staff or, exceptionally, cash receipts could be accepted.
31
In view of the small amount involved some formalities may be streamlined:
– the requirement to check the exclusion and selection criteria can, in certain circumstances,
be relaxed (see 6.3.2.7.1 Exclusion criteria and 6.3.2.7.2 Selection criteria) ;
– for contracts worth up to €25 000, the tender documents can be shortened or simplified
(e.g. use of the purchase order for low-value contracts, instead of the standard contract),
provided they include all the relevant elements necessary for candidates to submit an offer.
award criteria must always be indicated;
– as for use of electronic means, tender documents can be sent by e-mail in all cases. offers
can be accepted by e-mail for contracts worth up to €25 000, provided the authorising
officer has established procedures and technical tools (e. g. functional e-mail box) for
keeping tenders confidential. acceptance of offers by e-mail is not recommended for
contracts exceeding €25 000. Below €5 000 there is no technical requirement concerning
the safeguarding of confidentiality.
Neither an opening board nor an evaluation committee need be constituted, but the authorising
officer can do so if the subject is highly sensitive or technically complex.
To ensure tenders are of good quality you are advised to apply the same time limits as the
restricted procedure, i.e. 21 calendar days beginning on the day after the simultaneous dispatch
of the tender documents to all candidates.
The standstill period for signing contracts is not required in any of the low-value procedures.
5.6.4 Negotiated procedure for service contracts covered by Annex IIB to Directive
2004/18/EC
Independently of the minimum procedures for low-value contracts, two types of minimum
procedure are applicable for service contracts covered by Annex IIB to Directive 2004/18/EC,
with no upper limit:
– the restricted procedure involving a call for expressions of interest (see 5.5 Restricted
procedure involving a call for expressions of interest); and
– the negotiated procedure following publication of a contract notice (see 5.6.1 Negotiated
procedure following publication of a contract notice in the OJ).
5.7 Dynamic Purchasing System

The dynamic purchasing system (DPS) is a completely electronic process for purchasing
commonly used items, which is limited in duration and open throughout its validity to any
economic operator meeting the selection criteria, after submitting an indicative tender. There is
no specific threshold.
The contracting authority published a contract notice for each individual contract and invites
all the candidates eligible under the system described above. The contract is awarded to the
32
technically compliant tender offering the best value for money (the quality/price ratio being
thus the only award criterion). The legal framework for using this procedure in future has thus
been established but the electronic tools (confidentiality and security) are not yet in place in
the EEAS.
5.8 Competitive dialogue

For particularly complex contracts, where the contracting authority considers that direct use of
the open procedure or the existing arrangements governing the restricted procedure will not
lead to the contract being awarded to the tender offering best value for money, it may make use
of the competitive dialogue. A contract is considered to be ‘particularly complex’ if the
contracting authority is not objectively able to define the technical means capable of satisfying
the needs or objectives or able to specify the legal or financial make-up of the project.
This definition is to be interpreted restrictively. Use of a competitive dialogue depends not on

the thresholds set in the Directive but on the complexity of the contract which makes it
impossible to award the it by an open or restricted procedure. In practice, after publishing a
contract notice setting out its needs and requirements, the contracting authority will open a
dialogue with candidates satisfying the selection criteria. During the dialogue all aspects of the
contract can be discussed but it is conducted with each candidate individually on the basis of
solutions and ideas proposed by the candidate. Once the dialogue has been concluded, the
candidates are invited to submit their final offer. The contract is awarded to the technically
compliant tender offering the best value for money (the quality/price ratio being thus the only
award criterion).
5.9 Fast-track procedure

Use of the fast-track procedure is confined to exceptional cases where urgency renders
impracticable the time limits of the corresponding usual procedure. The contracting authority
may use it only if it can demonstrate the existence of objective circumstances giving rise to
urgency and making it impossible to comply with the normal time limits laid down for the
procedure in question. Given the time limits that economic operators are given, keep in mind
that there is a fairly high risk of ending up with little or inadequate competition.
The fast-track procedure can be used in the following cases:
– fast-track restricted procedure or fast-track negotiated procedure after publication of a

contract notice: the grounds for opting for the fast-track procedure must be indicated in the
contract notice. The minimum time limit for submitting applications is 15 calendar days
from dispatch of the contract notice to the Publications Office or 10 calendar days if it is
dispatched via SIMAP. In the fast-track restricted procedure the minimum time limit for
submitting tenders is 10 calendar days from the simultaneous dispatch of the tender
documents to all the selected candidates. You are advised to apply the same minimum
period for fast-track negotiated procedures, given that no time limit is laid down in the
rules.
– fast-track restricted procedure without publication of a contract notice: contracts that are
subject to a restricted procedure following a CEI; the procedure is conducted in the same
way as the procedure above.
33
5.10 Contests
Contests are procedures which enable the contracting authority to acquire, mainly in the fields
of architecture, civil engineering or data processing, a plan or design proposed by a selection
board after competitive tendering with or without the award of prizes 23.
The procedure is described in Article 125 IR.
6. PROCEDURE
6.1 Ex ante publicity
6.1.1 Pre-information notice
6.1.1.1 Definition
A pre-information notice lets economic operators know that a contracting authority is planning
to award one or more public contracts. A pre-information notice may also cover framework
contracts. It is published ahead of the procedure, before a contract notice is published.
Publication of a pre-information notice creates no obligation on the part of the contracting
authority and consequently no prior financing decision or budgetary commitment is needed.
Publication of a pre-information notice is not compulsory unless the estimated total amount is
equal to or greater than the thresholds laid down in Articles 157 and 158 IR24 25. It is one of the
conditions that enables the contracting authority to reduce the time allowed for the submission
of offers.
For supply and services contracts the pre-information notice must be sent to the Publications
Office or published in the contracting authority’s buyer profile by 31 March of the relevant
budgetary year and, for works contracts, as soon as possible after the decision authorising the
programme. There must be a period of no less than fifty-two days (and no more than twelve
months) from sending the pre-information notice for publication and sending the contract
notice.
6.1.1.2 Arrangements for publication
There are two ways of publishing a pre-information notice:
– publication in the Official Journal ‘S’ series (OJ S): the operational division sends the draft
pre-information notice to the Contracts Division for approval, and the Contracts Division
then send the notice to the Publications Office.
– publication on the contracting authority’s buyer profile 26 (created on its website) with a link
to the OJ S indicating where the pre-information notice can be found.
23
24
Supply and service contracts of Annex IIA to Directive 2004/18/EC with an aggregate value of €750 000 or more, and works
contracts worth €4 845 000 or more.
25
Article 35, Chapter VI, Title 1 of the Directive.
26
The buyer profile is an internet website clearly identified as a place where the contracting authority publishes information about
its procurement procedures (e.g. sub-page linked to the contractor's main homepage).
34
If the pre-information notice is published in the buyer’s profile, a notice on the buyer profile
must be sent to the Publications Office via SIMAP.
The pre-information notice will be published by the Publications Office within 12 calendar
days of dispatch by the Contracts Division. All pre-information notices published are
available on the TED (Tenders Electronic Daily) database at http://ted.europa.eu.
The contracting authority must be able to provide evidence of the date of dispatch.
Care should be taken to do the following when drafting the pre-information notice:
– provide the most accurate description possible of the subject of each contract; service
contracts must also be classified according to the categories in Annex II to Directive
2004/18/EC;
– give an estimated value for each of the contracts referred to (or an indication of the volume
or quantity of services, supplies or works, if the department concerned does not consider an
estimated value appropriate);
– give the estimated date of publication of the contract notice (within the next 12 months).
In practice, draft pre-information notices should be sent by electronic means only to the
Contracts Division (functional mailbox EEAS-CONTRACTS.Procurement@eeas.europa.eu).
It must be accompanied by a formal publication request drawn up according to the model and
signed by the head of the operational division.
After studying and validating the pre-information notice, and perhaps after amending it, the
Contracts Division will be responsible for sending it to the Publications Office, which will
arrange for its translation into all EU languages and publication in the Official Journal (within
12 days).
After publication in the Official Journal, the call for expressions of interest may be published
on the EEAS/delegation’s website.
6.1.1.3 Other forms of publicity
In addition, but not as an alternative, to publication of the pre-information notice, the

contracting authority may use any other form of publicity, including electronic forms. Such
publicity must not precede publication of the pre-information notice, which is the only
authentic version, and must make reference to the notice. Nor must it introduce any
discrimination between candidates or tenderers or contain any information other than that in
the pre-information notice.
This additional publicity might, for example, take the following forms:
– publication on the institution’s website;
35
– publication in the general or specialist press;
– letter to the professional associations or organisations representing businesses, drawing

their attention to the pre-information notice and asking them to circulate it among their
members, etc.;
– mailshot based on transparent and non-discriminatory criteria, e.g. list constructed by a

webpage subscription mechanism. Mailshots must not be limited to just a few economic
operators known to the contracting authority.
6.1.2. Call for expressions of interest
6.1.2.1 Publication
CEI notices should be sent by electronic means only to the Contracts Division (functional
mailbox EEAS-CONTRACTS.Procurement@eeas.europa.eu). They must be accompanied by a
formal publication request drawn up according to the model and signed by the head of the
operational division.
After studying and validating the CEI notice, and perhaps after amending it, the Contracts
Division will be responsible for sending it to the Publications Office, which will arrange for its
translation into all EU languages and publication in the Official Journal (within 12 days).
After publication in the Official Journal, the CEI may be published on the EEAS/delegation’s
website.
6.1.2.2 Other forms of publicity
See 6.1.1.3 Other forms of publicity.
6.2 Form and publication of contract notices
6.2.1 Scope27
The contract notice is the means by which the contracting authority makes known its intention
to launch a procurement procedure.
Under the Directive it is compulsory for contracts with an estimated value equal to or greater
than the following thresholds28:
 for the supply and service contracts listed in Annex IIA to Directive 2004/18/EC, with the
exception of the research and development contracts listed in Category 8 of that Annex,
worth more than 130 000 SDR or €125 000 over the period 2010-201129;
 or works contracts worth more than 5 000 000 SDR or €4 845 000 over the period
2010-2011.
27
Articles 90 and 105 FR, Articles 118, 120 and 158 IR.
28
29
See footnote 9.
36
In practice, at the European institutions a contract notice is used for contracts worth €60 000 or
more (see table in Part 5. PROCUREMENT PROCEDURES)30
It is not used for specific contracts under framework contracts.
6.2.2 Content
Contract notices must be drafted using the standard form. The contract notice sets out concisely
the gist of the information contained in the specification. It is vital that the contract notice be
perfectly consistent with the specification in all respects. This is why it is important to draw
up the specification before the contract notice.
The contract notice must also be consistent with the pre-information notice if one has been
published.
Special care should be taken to ensure the following:
– The final date for receipt of tenders or requests to participate must comply with the
statutory time limits (see 5.2 Time limits for submission of requests to participate and
tenders).
– For a restricted or negotiated procedure, the date on which an invitation to submit a tender
is sent to the selected candidates must be calculated with due allowance for the time taken
to process and select candidates and organise dispatch of the tender documents.
– Any official language of the European Union may be used for submitting a tender or a
request to participate; no restriction is allowed.
– In an open procedure tenderers or their representatives must be given the opportunity to be

present at the opening of tenders so that they have the possibility of knowing who their
competitors are. The contract notice must therefore specify who may attend and the date,
time and place of opening. The department concerned must therefore make all the
necessary practical arrangements (book a sufficiently large room for a sufficient length of
time, give instructions to guards on the door in buildings, etc.).
– The contracting authority must state whether or not they authorise variants and specify the
minimum capacity demanded for the selection criteria. Variants are considered ‘not
authorised’ if authorisation is not given explicitly in this section of the notice (see 6.3.2.4
Variants).
– The contracting authority sets the selection criteria. If it opts to limit the number of
candidates to be invited to tender for restricted procedures, competitive dialogues and
negotiated procedures following publication of a contract notice, it must give the minimum
number of candidates it plans to invite to tender and, where appropriate, the maximum
number, together with the objective and non-discriminatory criteria it intends to apply in
order to limit the number.
– Where applicable, the contracting authority must specify that the procedure is
interinstitutional and specify: (i) the institutions, executive agencies and bodies involved in
the procurement procedure; (ii) the institution responsible for the procurement procedure;
30
Unless it is a restricted procedure after a CEI, in which case a CEI notice is published.
37
(iii) the overall volume (expressed preferably as a range) of contracts for all those
institutions, executive agencies or bodies (see 3.4 Other essential points).
– Reasons must be given if a fast-track procedure is used (see 5.9 Fast-track procedure).
– Where there is unrestricted, direct and full access to the tender documents via the Internet,
the Internet address at which the documents can be consulted must appear in the contract
notice.
6.2.3 Arrangements for publication
The notice will be published at the latest 12 calendar days after dispatch, reduced to five
calendar days for a fast-track procedure. Draft contract notices should be sent by electronic
means only to the Contracts Division (functional mailbox EEAS-
31
CONTRACTS.Procurement@eeas.europa.eu) . They must be accompanied by a formal
publication request drawn up according to the ad hoc model and signed by the head of the
operational division (authorising officer by subdelegation).
After studying and validating the contract notice, and perhaps after amending it, the Contracts
Division will be responsible for sending it to the Publications Office, which will arrange for its
translation into all EU languages and publication in the Official Journal (within 12 days).
After publication in the Official Journal, the CEI may be published on the EEAS/delegation’s
website.
All contract notices published are available on the TED (Tenders Electronic Daily) database at
http://ted.europa.eu.
6.2.4 Other forms of publicity
See 6.1.1.3 Other forms of publicity.
6.2.5. Correction of a contract notice
If a published contract notice has to be amended prior to the closing date for submission of
tenders or for receipt of requests to participate, a new notice must be published by the same
procedure as the original (including referral to the Contracts Division, which will be
responsible for publishing it after validation of the draft corrigendum). There is specific model
notice for corrections and amendments.
If necessary, the time limit for submitting tenders or applications should be extended. Such an
extension is necessary if substantial changes are made. The number of extra days to be allowed
should be based on the extra work entailed for the tenderers. For example, a significant change
made just before the deadline may require an additional period of several weeks (e.g. because
of the different scope of the work, types of cost, staff needed and, probably, different
membership of the consortium). If the amendment is substantial, the time should start running
from the beginning.
31
See Instruction note No 266385 of 10.3.2011 signed Mr O’Sullivan.
38
An extension is also compulsory if the specifications and additional documents or information
were not provided within the statutory time limits (see 5.2 Time limits for submission of
requests to participate and tenders).
6.3 Preparation of the tender documents32

The tender documents consist of the invitation to tender, to negotiate or to participate in a
competitive dialogue, the specification or the descriptive document for a competitive dialogue,
and the draft contract. They are designed to achieve a number of complementary objectives:
– to provide interested parties with an exact description of the characteristics of the product
or service required by the contracting authority and of the financial and contractual terms
on which it is prepared to acquire them;
– to lay down the conditions governing submission of tenders; and
– to establish all the parameters (product or service content, conditions, criteria, etc.) on the
basis of which the contracting authority will select the proposed contractor.
The tender documents must be regarded as a set in which the various parts complement each
other to ensure compliance with the rules. It is particularly important to ensure total
consistency: there should be no divergence between the documents. All stages of the procedure
are conducted in accordance with the arrangements set out in these documents. These are the
rules which the contracting authority itself has laid down and is therefore bound to comply
with.
After choosing the contract (see 2.1 Definition) and the corresponding procedure (5.1 Which
award procedure to apply), the contracting authority's first task should therefore be to draft the
tender documents, in particular, the specification or the descriptive document for a competitive
dialogue.
Tender documents are mandatory in the following cases, which account for the vast majority of
public procurement procedures:
– open procedures with publication of a contract notice in the OJ;
– all forms of restricted procedure;
– competitive dialogue (the specification is replaced by a descriptive document setting out

the needs and requirements of the contracting authority); and
– negotiated procedures. For negotiated procedures involving just one tender and for low-
value contracts, the content of tender documents may be adapted and simplified.
6.3.1 The letter of invitation to tender and its annexes
An invitation to tender is a cover letter accompanying the tender documentation. It sets out the
arrangements for the submission of tenders. The contracting authority may choose how
32
39
tenderers should submit their tenders but this choice must ensure that: (i) each tender or request
contains all the information required for evaluation; (ii) data integrity is preserved; (iii) the
confidentiality of the tenders is preserved and that the contracting authority will not examine
tenders until after expiry of the time limit for submission.
The specification and the draft contract must be annexed to the letter of invitation to tender,
which must be signed by the contacting authority.
6.3.2 The specification and its annexes
Key points to remember
– In the case of open procedures, which must be published in the OJ:
(a) the specification must be drawn up before the contract notice; the sections of the contract
notice must correspond in substance to the corresponding sections in the specification;
(b) the specification must be completed before the contract notice is published because it may
be requested by operators as soon as the notice has been published and will have to be provided
within a strict deadline.
– The time limit for submission of tenders can be shortened if the specification is available
on the Internet.
– Translation must be organised in advance with DG Translation; The availability of the

specification in the official EU languages is governed by the Commission decision on
language use33.
6.3.2.1 Title, purpose and context of the procurement
This section offers operators more information thanks to links with the department’s activities,
ongoing EU programmes, political events, etc. It helps operators to understand the subject of
the contract. You should include the reference number of the procurement procedure,
including, where appropriate, that of the contract notice and of any other form of publicity, and
a description of the various lots.
6.3.2.2 Subject of the contract and technical specifications
The technical specifications describe what the contracting authority plans to buy. The quality
of the description determines not only the quality the contracting authority will get, but also the
price that it will pay. It is the responsibility of the operational divisions to draw them up.
The general requirements concerning the technical specifications are:
– They must be worded as comprehensively, clearly and in as much detail as possible.
– Article 131 IR provides that technical specifications must afford equal access to operators
and must not have the effect of creating unjustified obstacles to competitive tendering. The
characteristics required of a product, service, material or work must be described with
regard to the purpose for which it is intended and may not, save in exceptional, duly
33
Commission minutes, COM (84) Min 763 (sitting of 19 December 1984).
40
substantiated cases, refer to a specific make or source, or a particular process, or to trade
marks, patents, types, or to a specific origin or production which would have the effect of
favouring or eliminating certain products or operators. In marginal cases where it is not
possible to provide a sufficiently detailed and intelligible description of the subject of the
contract, the description must be followed by the words ‘or equivalent’.
– The subject of the contract must be defined lot by lot, where applicable.
– In accordance with Article 57 FR, the tasks assigned to contractors may not involve
exercising public authority or budgetary implementation.
– Opinions may be sought or accepted when drawing up the specifications. However, they
should not be sought or accepted from individuals or operators with an interest in the
contract in question, as this would hinder competition. The contracting authority must
decide in advance whether such opinions involve a conflict of interest. If so, operators
providing an opinion, regardless of whether or not they receive payment (as in the case of a
study contract to help define the specifications or scope of a principal contract), must be
informed in advance in writing that, if they provide advice, they will be excluded from the
resulting tender.
– The duration of performance must be specified.
– Any conditions for acceptance must be specified (quantitative, qualitative, provisional

and/or definitive).
Environmental characteristics can also be included in the technical specifications.
Technical specifications for services may include:
– a full and comprehensive description of the starting-point: the current state of play,
information, knowledge and skills already possessed by the contracting authority;
– where applicable, information that is as full and appropriate as possible about previous
contracts concerning the same subject;
– a full description of the tasks and the expected results;
– where applicable, requirements concerning the methodology;
– requirements concerning the timetable (given or to be proposed);
– technical and organisational information (e.g. place of delivery in the case of training);
– information about additional arrangements and the costs (e.g. in the case of training, if the
contractor has to provide participants with materials or organise transport for them);
– possible additional requirements connected with the services to be provided (e.g. any
participant/client satisfaction survey to be conducted);
– the resources required of the contractor and any other requirements;
41
– Technical specifications for supplies may include:
– a full description of the requirements imposed on the product to be bought (making sure
that this is not discriminatory);
– the functional characteristics required;
– environmental requirements (recycling arrangements, environmental labels, etc.);
– conditions of delivery (packaging, transport, safety, assembly, etc.);
– delivery schedule and destination(s);
– arrangements for receipt of deliveries;
– installation and user training, where applicable;
– requirements concerning after-sales services and technical assistance;
– requirements concerning the warranty (the requirements may exceed the minimum required
by law governing the contract).
6.3.2.3 Information meeting or site visit
Any information meeting or site visit must be stated in the contract notice for the sake of
transparency. Transparency also requires that a record be produced and sent to all the
candidates. Given organisational and time constraints, it is advisable to use a restricted
procedure if a site visit or information meeting is planned. Attention must be drawn to the risk
of concerted practices or distortion of competition, especially when a site visit or an
information meeting is compulsory.
6.3.2.4 Variants
If the contract is awarded to the tender offering the best value for money, the contract notice
must indicate whether or not variants are accepted. If there is no such indication, variants will
not be authorised.
‘Variant’ means a solution technically or economically equivalent to a model solution known

to the contracting authority. Variants may relate to the whole contract or to certain parts or
aspects of it. Variants must be designated as such and submitted separately. If variants are
accepted, the minimum requirements which they must fulfil must be indicated in a separate
chapter of the technical specifications. The evaluation framework that will be used to compare
the model solution with the variant must also be specified.
If the contracting authority has authorised variants in a service contract, it may not
subsequently reject a variant for the sole reason that it would, if accepted, constitute a supply
contract.
See also Explanatory note on variants (27.2.2007).
42
6.3.2.5 Eligibility to participate in tendering procedures
See 3.1 Eligibility to participate in tendering procedures
6.3.2.6 Consortia and subcontracting
Subcontracting
Court judgments have established that as a rule subcontracting is allowed. Consequently, it

cannot be refused out of hand, but it is possible to require tenderers and candidates to provide
information on the proposed subcontractors. It should be borne in mind that awarding the
contract to a tenderer proposing a subcontractor amounts to agreeing to subcontracting. No
separate agreement is necessary.
The contracting authority is entitled to demand that the selection and exclusion criteria apply
not just to the tenderer but also to any subcontractors proposed (whether in the tender or during
performance of the contract). It is therefore entitled to validate the subcontractors proposed for
performance of a contract.
However, from the standpoint of technical or financial capacity, it must be assumed that the
very purpose of subcontracting (and tendering by a consortium) is to come up to the level of
acceptability demanded by the contracting authority. A tenderer cannot therefore be excluded
for the sole reason that a single subcontractor alone is not up to the level required. The
combined capacity of the entities participating in the contract has to be considered.
If, however, the financial situation of a subcontractor is such that the entire contract could be
jeopardised, the contracting authority is entitled to refuse to award the contract.
Consortia
Consortia of economic operators are authorised to tender or be candidates. For submission of a

tender or a request to participate, the contracting authority may not require consortia of
economic operators to take any specific legal form, but the consortium selected may be
required to adopt a given legal form once it has been awarded the contract if this change is
necessary for proper performance of the contract.
The technical specifications have to explain clearly that if the economic operator is relying on
other entities in order to achieve the required level of economic, financial, technical and
professional capacity, it must prove in its offer or request to participate that it will have their
resources at its disposal. This obligation may by fulfilled by presenting statements from those
entities or the consortium agreement.
6.3.2.7 Exclusion, selection and award criteria
6.3.2.7.1 Exclusion criteria

Candidates and tenderers must provide a declaration on their honour, duly signed and dated,
stating that they are not in one of the situations referred to in Articles 93 and 94 FR (see 3.2
Exclusion situations. This declaration may also be requested from subcontractors. However,
43
depending on its risk assessment, the contracting authority may decide not to require this
declaration for contracts worth €5 000 or less.
Evidence
In a restricted procedure, competitive dialogue or negotiated procedure after publication of a

contract notice, if the contracting authority has specified a maximum number of candidates to
be invited to negotiate or submit a tender, all the candidates must provide the evidence referred
to in Article 134(3) IR in addition to the declaration mentioned earlier. This evidence may also
be requested of subcontractors.
The contracting authority will accept, as satisfactory evidence that the candidate, tenderer or
applicant is not in one of the situations described in points (a), (b) or (e), production of a recent
extract from the judicial record or, failing that, a recent equivalent document issued by a
judicial or administrative authority in the country of origin or provenance showing that those
requirements are satisfied.
The contracting authority will accept, as satisfactory evidence that the candidate, tenderer or
applicant is not in the situation described in (d), a recent certificate issued by the competent
authority of the Member State concerned. Where no such certificate is issued in the country
concerned and in any other case of exclusion referred to in the above list 34, it may be replaced
by a sworn or solemn statement made by the interested party before a judicial or administrative
authority, a notary or a qualified professional body in his country of origin or provenance.
For contracts with a value equal to or greater than the thresholds set in the Directive, the
tenderer to whom the contract is to be awarded must provide, within the time limit stipulated
by the contracting authority and before signing of the contract, evidence confirming the
abovementioned declaration. This must be specified in the specification, together with the time
limits.
For contracts with a value below the thresholds set in the Directive, if the contracting authority
has doubts about whether the tenderer to whom the contract is to be awarded is in one of the
situations leading to exclusion, it may require the tenderer to provide the evidence referred to
in Article 134(3) IR. It is not, however, obliged to request it if it does not seem necessary.
The contracting authority may waive the obligation for a candidate or tenderer to submit
documentary evidence if such evidence has already been submitted to it for another
procurement procedure and provided the documents were not issued more than one year earlier
and are still valid. In such cases, the candidate or tenderer must declare on their honour that the
documentary evidence has already been provided in a previous procurement procedure and
confirm that there has been no change in the situation. The above-mentioned information must
be included in the specification.
If a candidate or tenderer by its very nature (for example, a national government department or
international organisation) does not fall into one of the categories referred to above and/or
cannot produce the documents referred to above, a simple statement explaining its position will
suffice.
34
Information on the certificates provided by Member States and the type of documentary evidence issued/accepted in each of the
Member States is available on the following website of DG Internal Market:
Certificates issued on the eligibility of tenderers and official lists of economic operators -
http://ec.europa.eu/internal_market/publicprocurement/2004_18/index_en.htm.
This list is indicative.
44
If the documents required are not in one of the official languages of the Union a translation into
one of them must be provided. The documents may be originals or copies of the originals. The
originals must be made available at the request of the contracting authority.
Subcontracting, groups or consortia
Subcontractors and other members of a consortium/group may also be asked by the contracting
authority for a declaration on their honour, duly signed and dated, stating that they are not in
one of the situations referred to in Article 93 and 94 FR or for evidence as described above.
6.3.2.7.2 Selection criteria
The sole purpose of the selection criteria is to determine whether an operator has the financial,
economic, technical and professional capacity necessary to carry out the work. Selection
criteria, like exclusion criteria, must be included in the specification, except in restricted
procedures, a competitive dialogue or a negotiated procedure following publication of a
contract notice; in such cases they appear only in the call for expressions of interest or in the
corresponding contract notice and will have been checked before the specification is sent.
The selection criteria to be used are set out in Article 135 IR. Articles 136 and 137 specify
what are appropriate supporting documents and provide additional details about the criteria.
There are many possible selection criteria and many documents that can be chosen as evidence
of fulfilling those criteria. A decision has to be made on which criteria are appropriate for the
kind of purchase to be made, its value and possible other circumstances. A minimum capacity
level must also be set for one or several criteria, below which the contractor would not be able
to deliver the contract. All selection criteria must be clear, non-discriminatory and
proportionate to the contract in question.
When it comes to technical and professional capacity, the contracting authority should draw up
selection criteria which enable it to determine whether a tenderer has the capacity required for
the contract in question, rather than in general. However, care should be taken that this does
not unduly narrow down the field of eligible candidates. The right balance has to be struck
between the need for targeted selection criteria for the tender in question and the need to attract
a sufficient number of tenders to ensure genuine competition (the selection criteria should not
be formulated in such a way that scarcely one or two companies are able to meet them).
It is advantageous to have information that is as recent as possible to verify the entity’s

capacity and the legal basis is clear in this regard: the information used for verifying economic
and financial capacity may not be more than three years old. The professional and technical
capacity required will be dictated by the type of contract. The information should cover
services provided/supplies delivered in the past three years (service and supplies contracts) and
works carried out in the last five years (works contracts).
Examples of selection criteria can be found in the appropriate annexes (contract notice or
instructions to tenderers). Here are some examples of criteria that can pose problems and
should not be used:
– requiring a disproportionate annual turnover, staffing level, number of projects performed,

etc. in relation to the value of the contract;
45
– use of words such as ‘sufficient’, ‘principal’, ‘appropriate’, etc. whose exact meaning in
this context is not clear at all and which do not help to accurately determine whether or not
the experience proposed meets the criterion in question;
– request information dating back more than three years (as defined in the IR). The only
exception is the technical experience required for works contracts, which can go back five
years;
– confine the technical experience taken into account to EU-financed projects as this could be
considered discriminatory.
Before deciding on the appropriate selection criteria, the contracting authority must ensure that
it is possible to demonstrate compliance with these criteria and keep in mind the type of
supporting documents that tenderers can submit as evidence.
For contracts worth €60 000 or less, the contracting authority may, depending on its
assessment of the risks, decide not to require proof of the financial, economic, technical and
professional capacity of candidates or tenderers.
Where the contracting authority decides not to require proof of the financial, economic,
technical and professional capacity of candidates or tenderers, no prefinancing shall be made
unless a financial guarantee of an equivalent amount is provided.
All these observations about selection criteria are also applicable to subcontractors.
Verification of the financial and economic standing of tenderers or candidates
Proof of economic and financial standing may, for instance, be furnished by one or more of the
following documents:
(a) appropriate bank declarations or proof of professional indemnity insurance;
(b) the presentation of balance sheets or extracts from balance sheets for at least the last two
years for which accounts have been closed, where publication of the balance sheet is required
under the company law of the country in which the economic operator is established;
(c) a statement of overall turnover and turnover from the works, supplies or services covered
by the contract during a period which may be no more than the last three financial years.
Verification of the technical and professional capacity of tenderers or candidates
Proof of the candidate/tenderer’s technical and professional capacity may, for instance, be
furnished by one or more of the following documents:
(a) the qualifications, both educational and professional, of the service provider or contractor;
(b) a list of:
– the principal services provided and supplies delivered in the past three years, with the
sums, dates and recipients, public or private. In the case of framework contracts (without a
46
contractual amount) only the specific contracts corresponding to performance of a task
under the framework contract should be taken into consideration. Proof of successful
implementation must be provided in the form of certificates issued or countersigned by the
contracting authority or by the entity that ordered or purchased the services or supplies;
– works performed over the last five years, with the sums, dates and places. The list of
principal works must be accompanied by certificates of satisfactory execution issued by the
contracting authority or by the entity that ordered or purchased the works, specifying
whether they have been carried out in a professional manner and been fully completed;
(c) a description of the technical equipment, tools and plant to be employed by the service
provider or contractor for performing a service or works contract;
(d) a description of the technical equipment and the measures employed to ensure the quality of
supplies and services, and a description of the firm's study and research facilities;
(e) information on the technicians or technical bodies to be involved, whether or not belonging
directly to the firm, especially those responsible for quality control;
(f) in respect of supplies, samples, descriptions and/or authentic photographs and/or certificates
drawn up by official quality control institutes or agencies of recognised competence attesting
the conformity of the products with the specifications or standards in force;
(g) a statement of the average annual manpower and the number of managerial staff of the
service provider or contractor in the last three years;
(h) copies or extracts of payslips or employment contracts;
(i) an indication of the proportion of the contract which the service provider may intend to
subcontract. The contracting authority may also ask the candidate or tenderer for any
information on the financial, economic, technical and professional situation of the
subcontractor proposed, especially when subcontracting accounts for a significant proportion
of the contract.
For service contracts, the candidate/tenderer may refer to part of a project if the contract is not
yet finished, but in this case only the part that has been completed may be taken into account
and the candidate/tenderer must submit supporting documents to certify that this part of the
contract was executed successfully (for example, a statement from the entity that ordered the
service).
If the project was carried out by a consortium, the supporting documents must show clearly
which part was performed successfully by the candidate/tenderer.
Where the services or products to be supplied are complex or, exceptionally, are required for a
special purpose, technical and professional capacity may be demonstrated by means of a check
carried out by the contracting authority or on its behalf by a competent official body of the
country in which the service provider or supplier is established, subject to that body's
agreement. Such checks shall concern the supplier's technical capacity and production capacity
and, if necessary, its study and research facilities and quality control measures.
47
Should the contracting authority require the production of certificates drawn up by independent
bodies attesting to the compliance of the candidate/tenderer with certain quality assurance
standards, it will refer to quality assurance systems based on the relevant European standards
on approvals.
If the contracting authority requires the production of certificates drawn up by independent

bodies attesting to the candidate/tenderer’s compliance with certain environmental
management standards, it will refer to the EU Eco-Management and Audit Scheme (EMAS)
provided for in Regulation (EC) No 761/2001 of the European Parliament and of the Council
or to environmental management standards based on the relevant European or international
standards certified by bodies conforming to EU law or to the relevant European or international
standards on approval. It will recognise equivalent certificates from bodies established in other
Member States. It will also accept from candidates/tenderers other proof of conformity with
environmental management standards. The contracting authority may verify the authenticity of
the certificates supplied.
If the supporting documents requested are not written in one of the official languages of the
European Union, a translation into the language of the call for tender must be attached. Where
the documents are drafted in an official language of the European Union other than the one of
the procedure, it is strongly recommended that you provide a translation into the language of
the invitation to tender in order to facilitate the evaluation of the documents.
If the candidate/tenderer is unable to provide the evidence requested for some exceptional
reason which the contracting authority finds well-founded, it may substantiate its capacity by
any other means that the contracting authority considers appropriate.
If the tenderer provides a declaration it has drawn up itself as a supporting document, the
contracting authority will reserve the right to request additional documentary evidence.
6.3.2.7.3 Award criteria
The sole purpose of the award criteria is to choose the best offer out of those submitted by
tenderers which are not excluded and which meet the selection criteria. The award criteria,
including any subcriteria, should be in the contract notice or, better still, in the specification or
the descriptive document of a competitive dialogue. The award criteria may not be further
supplemented during the evaluation procedure.
One of the two procedures set out below must be used, to the exclusion of all others. It must be
announced in advance.
– Automatic award: the contract is awarded to the lowest bid that is in order and satisfies
the conditions laid down. This method may be used only for goods or services whose
technical content is defined in full in the specification, thus ruling out the need to evaluate
the quality of the tender but requiring only a check of the conformity of the technical bid. If
the automatic award method is used, no award criterion other than price may be used.
– Best value for money35: the contract is awarded to the tender offering best value for
money on the basis of a formula set out in the specification.
35
Articles 93 to 97 FR, Articles 135 to 138 IR.
48
Best-value-for-money method
This method entails defining detailed award criteria to determine quality. The specification (or
the descriptive document for a competitive dialogue) must indicate the relative weighting that
will be applied to each of the criteria (technical criteria and price) selected to determine the
best value for money. The formula chosen to calculate the final score must reflect the concept
of best value for money: the method used must not only make it possible to select a quality
tender but also place an obligation on tenderers to compete on price.
Accordingly, it is possible to:
– set a technical quality threshold (e.g. 50% or 65% of the maximum possible mark) for the
whole quality evaluation, and, where appropriate, for each of the technical criteria).
Tenderers falling below those thresholds will be eliminated; and
– apply a value-for-money indicator, giving a weighting to each criterion, to be applied to

tenders which have exceeded the threshold. However, awarding the contract to the lowest-
priced tender among those attaining the technical quality threshold (technical requirements)
corresponds to an automatic award, not the best-value-for-money method. The relative
weighting applied by the contracting authority to each of the criteria selected for
determining the tender offering the best value for money must be maintained throughout all
stages of the evaluation. A precise definition of the method used must be given in the
specification and, where appropriate, in the contract notice.
In exceptional cases in which weighting is not technically possible, mainly because of the
subject of the contract, it is sufficient to indicate the various criteria in descending order of
importance. This wording – technical impossibility of establishing a weighting – conveys that
this situation is extremely rare and not normally justified for public contracts concluded by the
EEAS.
Sample criteria
The rules for the best-value-for-money procedure provide examples of the type of technical
criteria which may be taken into account, but it is for the contracting authority to choose those
best suited to the contract in question. The technical requirements must be set out in the
specification. They make it clear to tenderers which aspects are the most important and how
their offers will be judged. Generic, vague award criteria are unhelpful or can even be a
hindrance. The criteria must also be designed to ensure that the tenders can be evaluated
objectively.
The technical award criteria generally used for service contracts may cover, for example, the
following areas:
– understanding of the objectives of the contract and the work to be carried out;
– the quality and relevance of the methodology set out in the tender;
– the efficiency, quality and usefulness of the proposed products or solutions (where the
subject of the contract is such that it is for the tenderers to provide the details);
49
– the match between the work programme and the completion schedule;
– the efficiency and effectiveness of data-collection methods (where the contract involves
activities of this type).
The technical award criteria for supply contracts may cover, for example, the following areas:
– efficiency (e.g. speed of printer);
– running costs (e.g. use and cost of printer toner);
– functional characteristics;
– duration of the warranty;
– after-sale service and technical assistance;
– delivery time;
– environmental performance (e.g. possibility of recycling the machine or materials);
– comfort of work (e.g. noise);
– aesthetics.
Weighting
The weighting applied to price in relation to the other criteria must not result in neutralisation
of price in the choice of contractor. For example, a weighting of less than 20 out of 100 for
price is too low to have a significant impact on the result.
Formula
Unlike technical quality, which is usually evaluated by means of a mark, the price quoted by a
tenderer is an objective element and cannot be marked. The formula used to calculate which
tender offers the best value for money should incorporate the quality mark and the price,
expressed in the form of indices. There is no one way of establishing the best quality/price ratio
but two formulae are commonly used:
(a) the simplest method:
Score for tender X = Lowest price Total quality score (out of 100) of tender X for all
× criteria
Price in tender X
(b) the method applying a weighting for the price (e.g. 50/50 or 70/30):
Lowest price Weighting for the Total quality score (out of 100) Weighting for quality
Score for tender X =
× price (in absolute + of tender X for all criteria/100 × criteria (in absolute
value) value)
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Price in tender X
or, if the weightings are expressed in percentages:
Total quality score (out of Weighting for quality

Lowest price Weighting for the
100) of tender X for all the criteria (%)
Score for tender X = × price (%) + ×
Price in tender X award criteria
Both formulas give a mark out of 100. The tender with the highest mark wins.
Evaluating prices for framework contracts
If the price offer is in the form of a price list or unit prices (as is usually the case for framework
contracts), the contracting authority must state in advance which method will be used to ensure
comparability of financial offers.
Usually this is done by describing a realistic scenario for using the framework contract.
Physical quantities of resources corresponding to the unit prices will be specified in the
scenario, without this implying any commitment on the contracting authority’s part as regards
the actual volume of work. For instance, if the bid required by the specification consists of fees
by day worked, for each category of staff concerned, the specification will provide a scenario
showing how many working days, by category, will be used for the purposes of comparison.
Accordingly, if unit prices are required for each of (a) delivery of training, (b) preparation of
training and (c) supply of training materials, the scenario might indicate that the comparison
will be based on, say, 100 days of (a), 10 days of (b) and 200 units of (c).
In some cases, if the contract lends itself, tenderers may be asked to include theoretical work in
the offer for which specifications will be given along with a maximum price. In such cases,
tenderers will be required to submit a technical and financial proposal.
If they are not given the above information, tenderers will be unable to submit a competitive
bid in full knowledge of all the parameters used to determine the best value for money.
Experience suggests that when this information is not available financial offers are not
comparable and it is not possible to award the contract.
6.3.2.7.4 Distinction between exclusion, selection and award criteria
It is essential to draw a clear distinction between the three types of criteria indicated above.
Each category serves its own specific purpose at separate stages in the evaluation process.
Confusing them could result in the procedure being annulled in the event of a dispute. At the
tender evaluation stage, the contracting authority no longer has to reassess the capacities of the
tenderers. Details of experience, expertise, professional references, work already done and
resources available can be ignored as they are part of the selection criteria. Nor should
technical conformity criteria be confused with selection criteria.
51
To sum up, following application of the exclusion criteria:
– the selection criteria are designed to check whether an operator is capable of performing
the contract; this assessment calls for a YES or NO answer;
– technical conformity criteria are used to check whether a tender meets the technical
specifications set out in the tender dossier; this assessment calls for a YES or NO answer;
– award criteria are designed to assess the quality of a tender; this is done using a points
system.
Award criteria should not be confused with selection criteria or with technical conformity
criteria. They must be applied directly and exclusively to whatever is the specific subject of the
contract, never to the qualifications or capacity of the tenderer as shown by past experience.
See also Note BUDG/D/01 No 66001 of 24.10.2001.
6.3.2.8 Drawing up the tender forms
The tender forms, which must be included in the specification, are drawn up by the operational
divisions.
If the contract is awarded to the lowest bid that is in order and satisfies the conditions laid
down, there is normally only one form, the financial tender form. A technical conformity form
to confirm that all the technical specifications are met may nevertheless be added.
If the contract is awarded to the tender offering the best value for money, the specification
must include two forms: a qualitative (or technical) tender form and a financial tender form.
The two forms must comply with the evaluation method chosen when drawing up the
specification. They should be simple, comprehensive and easy to understand: tenderers must
have a clear idea of what is expected of them and how they should fill in these forms avoiding
ambiguity and including all the information needed to submit an offer.
6.3.3 Draft contract and annexes
The terms of the contract must be established during the procurement preparation process. You
should therefore attach a draft contract to the invitation to tender. Before you attach the model
draft contract (see Part 8, Models), you should complete it as far as possible, including
information on the contracting authority, the subject of the procurement, the terms of payment
if already established and any requirement concerning guarantees from the contractors (we
recommend that you give the contractual information only in the draft contract and send this
draft contract with the specification and with the letter of invitation to tender in order to avoid
any discrepancy between the various tender documents.
6.3.4 Documents to be submitted by the tenderer
The following points about submission of tenders should be made clear in the specification:
– Documents which are not necessary for the evaluation procedure should not be requested.
52
– All the documents required for the evaluation (exclusion, selection and award criteria) must
be explicitly indicated, e.g. in a list.
– It is strongly recommended that you clearly distinguish which documents are required to
satisfy the exclusion, selection and award criteria respectively so as to avoid the risk of
criteria being confused when tenders are evaluated. Similarly, state which of the criteria
each document is intended to satisfy.
– For contracts awarded by the automatic procedure the technical substance of the contract is
wholly determined by the contracting authority. The evaluation committee appraises how
well the offer complies with the technical specification requirements.
– The tender may be drafted in any of the official languages of the European Union.
– It is a good practice to provide tenderers with standard forms for submission of tenders.
They may be especially useful when tenderers are asked to present precise information,
such as technical parameters, organisational details or a price list.
– You are advised to demand that tenders from consortia of firms or groups of service
providers (or works contractors or suppliers, depending on the type of contract) must
specify the role, qualifications and experience of each member or of the group.
– If information about subcontractors is requested, the scope of that information should be

made clear. You can also ask for a declaration on their honour for each subcontractor
mentioned in the tender, information on the parts of the tender that would be subcontracted
and information on the subcontractors' professional and financial capacity. In general, it is
better to restrict such requests to a minimum value of outsourcing (overall or individual),
below which no information is requested.
– Proof of eligibility (proof of the tenderer’s registration), a declaration that there is no

conflict of interest and documents relating to the exclusion and selection criteria must be
supplied by each member of a group or consortium submitting a tender.
– For framework contracts the financial offer takes the form of a schedule of the prices or
unit prices applicable for the specific contracts implementing the framework contract,
unless the multiple framework contract provides for competition between the various
contractors on unit prices. Care should be taken that all types of cost used when the
framework contract is implemented are incorporated into the price schedule.
6.3.5 Other provisions
6.3.5.1 Price revision and indexing

Price revision is an upward or downward adjustment of the contract price to bring it into line
with the current value of the contract goods, works or services compared with the value at the
time the contract was signed. It is normally applicable after the 12th month of the contract’s
execution.
53
If the price quoted must be fixed and not subject to revision you must state this clearly. If the
price is revisable, the specification must lay down the conditions and formulas for revising the
price over the life of the contract, taking account of the nature of the contract and the economic
situation in which it will be performed, the nature and duration of the tasks involved and the
Union’s financial interests. If no price revision clause is included in the contract, the price may
not be revised.
Conditions
– The revision clause and its application provisions must be included in the specification.
– Price revision must be expressed in the currency of the contract.
– The departments concerned must take into account the budgetary implications by
earmarking sufficient resources for revision, given that the final amount is not known at the
time of commitment. The calculation of the revised total is given in the award report and
features in the award decision.
See also Chapter 7.3.
6.3.5.2 Bank guarantees
Three types of guarantee are used in public procurement:
1) a tender guarantee36, to ensure that the offers are maintained (optional, equivalent to
1%-2% of the estimated value of the contract);
2) a prefinancing guarantee37: obligatory when total prefinancing is over €150 000;
3) a performance guarantee38 to ensure proper implementation of the contract (obligatory for

works contracts of a value higher than €345 000). The amount of the guarantee is set by the
authorising officer in accordance with the usual commercial terms and must be proportionate to
the nature of the project and its organisation and risks in particular. However, guarantees
constituted by deductions from payments correspond to 10% of the value of the contract.
For the practical arrangements concerning guarantees, see Chapter 7.4.
6.3.5.3 Quality control of contract performance
Practical arrangements for checking contract performance must be spelt out as explicitly as
possible in the draft contract: type of control, tools, frequency, potential consequences
(penalties, termination of the contract, etc.).
6.3.5.4 Penalties and claims for damages
Penalties (Article 96 FR) may take two forms:
– administrative penalties, in the form of exclusion for a specified period not exceeding five
years;
36
37
Article 102(2)(b) FR and Article 152 IR.
38
Article 102(2)(a) FR and Article 151 IR.
54
– financial penalties, in the form of fines which may in no circumstances exceed the value of
the contract in question.
The situations that may give rise to penalties are laid down in Articles 93 and 94 FR. The
authorising officer decides whether or not to impose a penalty (in accordance with the principle
of proportionality laid down in Article 96(3) FR and Articles 133 and 175 IR).
Article 130(4) IR also provides for the possibility of including contractual penalties in the
contract. These contractual penalties necessarily involve liquidated damages (penalties for
failing to comply with the terms of the contract). The authorising officer may increase the
liquidated damages proposed (0.2% a day) by inserting a special clause after checking that the
amount is justified in relation to the contract concerned.
6.3.5.5 Payment time limits and default interest

See Chapter 7.2.
6.4 Opening board and evaluation committee39
6.4.1 Composition
Requests to participate and tenders are opened and evaluated by an evaluation committee
consisting of, in addition to a chairman and a secretary from the EEAS Contracts Division
(non-voting members)40, at least three persons (voting members) representing at least two
organisational entities of the institution concerned with no hierarchical link between them, of
whom one at least should not be hierarchically subordinate to the authorising officer 41 42. The
presence of a non-voting external consultant to assist the committee in its work is also
permitted. To avoid any conflict of interest, these persons are subject to the obligations laid
down in Article 52 FR. The evaluation committee is appointed by formal decision of the
authorising officer responsible using the model for ‘Appointment of opening board/evaluation
committee’ after formal consultation of the Contracts Division 43.
The voting members must possess the technical and administrative capacities necessary to give
an informed opinion on the tenders. The identities of opening-board and evaluation-committee
members must remain confidential. All voting members of the evaluation committee have
equal voting rights.
The evaluation committee may have the same membership as the opening board. The
committee issues an advisory opinion, the decision being taken by the authorising officer. If
the decision departs from the committee’s opinion, the exclusion, selection and award criteria
announced in advance must still be complied with.
39
Articles 98(3) and (4) FR, Articles 145 and 146 IR.
40
Delegations should make provision for participation of a member of the Contracts Division to chair the committee in the case of
works contracts worth more than €5 million or the head of delegation may request it for any particularly complex or risky contract.
41
It must be stressed that the use of the term ‘persons’ here rather than “officials or other servants” as elsewhere in the
Implementing Rules means that seconded national experts can sit on these committees. It can also be concluded that the members of
the committee can be chosen from within the same directorate/department, provided they belong to different units/divisions and the
responsible contracting authority/authorising officer is at unit/division level. The main thing is that the two entities must be
independent of each other and one of them at least must be independent of the authorising officer.
42
In representations and the local units referred to in Article 254 IR and in units isolated in a Member State, if there are no separate
entities, the obligation to use organisational entities with no hierarchical link between them does not apply.
43
Outside experts may assist the committee by decision of the authorising officer responsible. The authorising officer must ensure
that these experts satisfy the obligations concerning conflict of interest (Article 52 FR).
55
6.4.2 Absence of conflict of interest and confidentiality
A declaration of absence of conflict of interest and of confidentiality must be signed by each

member of the opening board and the evaluation committee. Any evaluation-committee or
opening-board member who has a potential conflict of interest with any tenderer or candidate
must declare it and immediately withdraw from the committee or board. They will be excluded
from participating further in any capacity in the opening/evaluation meetings. In the latter case,
the chairman must assess whether the evaluation process should be restarted. The decision
must be well-founded and explained in the evaluation report.
Apart from the tender-opening session, the proceedings of the evaluation committee are
conducted in camera and are confidential. In order to maintain the confidentiality of the
proceedings, participation in evaluation committee meetings is limited to the members of the
committee appointed by the contracting authority. The tenders should not leave the
room/building in which the committee meetings take place before the conclusion of the work
of the evaluation committee. They should be kept in a safe place when not in use.
6.4.3 Responsibilities of evaluation-committee members
The chairman is responsible for coordinating the evaluation process in accordance with the
procedures in this Guide and for ensuring its impartiality and transparency. He or she ensures
that the provisions on the submission of tenders and requests to participate, plus the selection
and award criteria specified in the tender documentation, are complied with. He or she also
checks that the committee members’ marking is objective and verifies arithmetic totals, points
averages and the formulas used to determine final marks for the tenders.
The voting members of the evaluation committee have collective responsibility for decisions
taken by the committee.
The secretary to the committee is responsible for carrying out all administrative tasks
connected with the evaluation procedure:
– circulating and collecting the declarations of impartiality and confidentiality;
– keeping the minutes of all meetings of the evaluation committee and filing them along with
the relevant records and documents; and
– registering attendance at meetings and compiling the evaluation report and its supporting
annexes.
Any request for clarification requiring communication with the tenderers during the evaluation
procedure must be conducted in writing. Copies of any such correspondence must be annexed
to the evaluation report.
If a tender or proposal infringes the formal requirements, the evaluation committee may use its
discretion to decide whether or not it should still be considered during the rest of the evaluation
process, making sure that this is done in such a way to ensure equal treatment of the tenders or
proposals and in conformity with the principle of proportionality.
Whatever the evaluation committee decides must be fully recorded and substantiated in the
56
evaluation report.
6.4.4 Receipt and opening of requests to participate
In restricted procedures with publication of a contract notice, including competitive dialogues,

and in negotiated procedures following publication of a contract notice, the first stage after
publication of the notice is receipt of requests to participate, followed by selection of the
candidates to whom the tender documents will be sent.
Requests to participate are submitted by letter, fax or electronic mail; in the latter two cases,
for the purposes of legal proof, confirmation must be sent by letter or electronically as soon as
possible and, in any event, before the closing date.
Members of the opening board must verify whether the requests to participate are in
conformity with the submission requirements, giving reasons for any rejection. Although the
rules lay down no precise obligations, you are advised to produce a formal record of this step
to be signed by every member of the board.
6.4.5 Selection of candidates invited to submit a tender
The evaluation committee evaluates the compliant requests to participate by reference solely to
the exclusion and selection criteria specified in the contract notice (point III.2 ‘Conditions for
participation’ of the model contract notice).
Requests to participate which do not contain all the essential information required in the
contract notice or do not satisfy the specific requirements laid down are eliminated. The
evaluation committee or the authorising officer may, however, ask the candidate to provide
additional supporting documents or explanations relating to the exclusion and selection criteria,
setting a final date for replying (see 6.4.7 Contacts with tenderers before the closing date for
submission of tenders).
If requests to participate are sent before the closing date but arrive late (delay caused by
distance or strikes, for instance), the committee should be reconvened in the same composition
to ensure that all requests to participate are given equal treatment.
At the end of this stage, only selected candidates will be invited to tender. In the restricted
procedure the number of candidates invited to tender may be not fewer than five, unless fewer
than five satisfy the selection criteria, and not more than 2044. In the negotiated procedure and
in the competitive dialogue the number required is at least three. In any event, the number of
candidates allowed to tender must be enough to ensure real competition.
The contracting authority (normally the authorising officer responsible for the contract, since
the authorising officer has the power of decision, even if this decision is taken implicitly) must
inform every candidate who has been eliminated of the reasons for rejection of their
application shortly after the decision based on the exclusion and selection criteria and before
the award decision. You are advised to ensure that this is done at the latest when the invitations
to submit tenders are sent to the selected candidates.
A report on the evaluation must be drawn up, dated and signed by all members of the
evaluation committee; it should contain the particulars laid down by Article 147 IR.
44
The minimum and maximum numbers and the selection criteria must be given in the contract notice.
57
6.4.6 Dispatch of tender documents
The means of communication chosen must be generally available and must not have the effect
of restricting access by economic operators to the procurement procedure.
For an open procedure with publication of a contract notice, the tender documentation (the
invitation to tender, the specification and the draft contract) are sent to all the economic
operators who request it or who have expressed an interest in submitting a tender. The
documents must be sent within six calendar days of receiving the request45.
For restricted procedures or negotiated procedures with publication of a contract notice, the
tender documentation is sent only to the selected candidates (candidates who have presented a
request to participate that satisfies the exclusion and selection criteria).
6.4.7 Contacts with tenderers before the closing date for submission of tenders
Such contacts are allowed only by way of exception and in the following circumstances:
– at the request of the tenderer, the contracting authority may provide additional information
solely for the purpose of clarifying the nature of the contract;
– on its own initiative, the contracting authority may inform interested parties if it spots any
error, inaccuracy, omission or other clerical error in the contract notice or the tender
documents.
Any such contacts with operators on the initiative of the contracting authority must always be
in writing. You are also strongly advised to accept only written requests for additional
information from operators.
Any additional information supplied at the request of a tenderer and any information provided
by the contracting authority on its own initiative must be sent simultaneously and in the same
manner to all operators who have received the tender documents or who have expressed an
interest in submitting a tender46.
All contacts with tenderers, in one or other of the situations described above, must be recorded
in a ‘note for the file’ to be drawn up preferably at the time of the contact and with all
correspondence attached.
If requested in good time, additional information on the specification (or descriptive document
in the case of competitive dialogues) and additional documents are sent not later than six
calendar days before the closing date for submission of tenders47 or, for requests for
information received less than eight calendar days before this date, as soon as possible after
receiving the request48.
45
If there is electronic access to the tender documentation there must be unrestricted, full and direct access by electronic means to
all the tender documents and any additional material. The contract notice must indicate the Internet address from which those
documents can be downloaded or where they can be consulted.
46
If the call for tenders has been made available to operators electronically, the additional information and information supplied by
the contracting authority must also be made available electronically and with the same conditions of access as soon as it is sent to
the tenderers.
47
In the fast-track restricted or negotiated procedure, additional information about the specification, if requested in time, is sent to
all candidates no later than four calendar days before the closing date for submission of tenders.
48
The contracting authority is not bound to reply to requests for additional information made less than five working days before the
deadline for submission of tenders but may do so if this is possible.
58
If the information supplied by the contracting authority is a sufficiently significant new
element, it may be necessary to allow additional time for submission of tenders so that
operators can take it into account when preparing their tenders. This extension will have to be
made known in the same way as the original tender documents, including amendment of the
contract notice if appropriate. Any amendment of the contract notice requires publication of a
corrigendum by the same procedure.
6.4.8 Receipt of tenders
Tenders must reach the EEAS in the manner specified in the contract notice or tender
documentation.
The contracting authority must make arrangements in advance to receive tenders, including all
the items for verifying the date of submission, in particular receipts issued when tenders are
submitted by hand; It is essential that tenders remain sealed until the opening session
otherwise they will be rejected as not in order. The contracting authority must also make
arrangements in advance to store safely the tenders and evidence of the date of submission
until the opening session, which should take place in reasonable time.
Tenders and requests submitted without respecting the deadline should be stored unopened
with all the tender documentation or returned to the economic operator if so requested. A
written record of the return must be kept.
6.4.9 Opening and evaluation of tenders
The contracting authority must make arrangements in advance to:
– organise contacts with tenderers, in compliance with the conditions set out in 6.4.9.3.2
Contacts with tenderers;
– hold a session for opening tenders leaving sufficient time after the closing date for
submission to allow for the fact that some tenders sent by post may arrive after the closing
date despite being sent before the time limit; in the case of open procedures, the contract
notice will specify when this session is to take place; in this case (open procedure)
representatives of the tenderers may be present;
– set up in advance, for contracts worth more than €60 000, a board to open the tenders.
With a view to the stages of the procedure which will follow the opening of tenders, it is best
to make arrangements at this stage to:
– organise the evaluation of tenders judged to be in conformity;
– constitute, for contracts worth €60 000 or more, an evaluation committee satisfying the
same requirements as the opening board;
Any specific methods to be used in subsequent stages of the procedure (opening and
evaluation) must be laid down before that stage begins. You are also strongly advised to
establish the evaluation method before tenders are opened in order to avoid any dispute. These
methods should be designed to create operational practice, but under no circumstances may
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they entail altering the rules for determining whether tenders satisfy the requirements at the
time of opening or the rules applying to evaluation. You can, for example, establish a grid for
all evaluators to use when marking the technical aspects of each tender but there is obviously
no question of altering or adjusting the criteria or weightings set out in the specification or the
contract notice.
When preparing for the evaluation, it should be made clear to evaluators what principles are to
be applied to avoid any confusion between exclusion criteria, selection criteria and award
criteria.
6.4.9.1 Opening of tenders
In the case of open procedures, tenderers or their representatives must be allowed to attend the
opening of the tenders so that they may know the names of their competitors 49.
Tenders suspected of not being in conformity with the specification should still be registered as
submitted, provided they meet the two basic conditions of confidentiality of the offer and
dispatch before the deadline.
The date of submission of each tender is checked against the indications given in the letter of
invitation to tender or in the contract notice. If there is any doubt, a tenderer may be asked to
provide proof of dispatch. One or more members of the opening board will initial the proof of
the date and time of submission for each tender. Tenders submitted before the deadline and
in a sealed envelope are deemed to be in order and are opened; however, in restricted and
negotiated procedures any tender from an operator who has not been invited to submit a tender
is rejected.
You are advised to provide for submission of tenders in an envelope containing two sealed
envelopes (one for the technical offer and the other for the financial offer); only the envelope
containing the technical offer is opened at this stage.
If the opening is public, the names of the operators who have submitted a compliant tender are
read out in the presence of the tenderers or their representatives. If the contract is awarded by
the automatic procedure (lowest price), the prices shown in the compliant tenders are read out.
After the opening, one or more members of the board will initial either each page of each
tender (the usual solution) or the cover page and each page of the financial bid, in which case
the integrity of the original tender is guaranteed by any appropriate technique applied by a
department independent of the authorising department (except in the representations and local
units and where there are no separate entities).
A record of the opening of the tenders received is drawn up and signed by all the members of
the opening board. The record identifies the tenders which are in order and those which are not,
giving the reasons for rejection by reference to one or other of the two conditions stipulated
above.
Should tenders arrive after the opening, a second session must be organised along the same
lines as the first. In particular, if the first session was public, the second must be too, and all
tenderers who submitted tenders, including the persons who attended the first session, must be
invited to the second.
49
The board must check the credentials of the persons wishing to attend the opening of tenders as representatives of tenderers.
These persons must sign an attendance list which will be annexed to the record of the opening.
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6.4.9.2 Reasons for judging tenders not in order
Since rejecting a tender for not being in order has important implications, it should be borne in
mind that only the following conditions count:
– tenders must be submitted by the deadline and must be in a sealed envelope;
– the opening board will under no circumstances consider the quality of the tenders;
– the opening board does not judge the completeness of a tender or tender documents, nor
their conformity;
– in a restricted or negotiated procedure, any tender from a tenderer who has not been invited
to submit a tender must be considered as not in order.
Tenders in the following situations (non-exhaustive list) should not be rejected:
– tender sent in a single envelope rather than the two envelopes required, provided the
envelope is sealed (the confidentiality of the tender has been preserved);
– only one copy of the tender sent, instead of the three (or more) required;
– tender combines the technical and financial parts or not presented in standard manner;
– tender is wrongly presented, certain parts are clearly missing or the tender is clearly totally
unrealistic;
– in an open procedure, the tender was submitted by a tenderer who had not requested the
tender documents (this is not a condition for participation);
– tender submitted by a tenderer from a third country which has concluded a bilateral or
multilateral agreement with the EU on public procurement in accordance with the terms of
that agreement;
– tender dispatched by ordinary (non-registered) post, provided it is still possible to ascertain,

beyond any doubt, that the tender was submitted before the closing date;
– the tenderer failed to sign the tender - the signature can be requested subsequently.
6.4.9.3 Evaluation of tenders
6.4.9.3.1 Principles
All tenders which, after opening, are found to be in order are to be evaluated in an identical and
non-discriminatory manner. This means that all tenders for a given contract must be
evaluated by the same people.
The evaluation is based exclusively on the exclusion, selection and award criteria set out in
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the specification or the descriptive document in the case of a competitive dialogue and, where
applicable, in the contract notice, after verification of technical conformity, with nothing
added, removed or altered. Should it be necessary to lay down the evaluation methods in order
to facilitate the work of the evaluators, it is strongly recommended that this be done before the
tenders are opened in order to rule out any dispute. These methods must in no way alter or
adjust the abovementioned criteria.
In order to ensure that there is no danger of confusion when applying the exclusion, selection
and award criteria during the evaluation of the tenders, you are advised to clearly separate
these phases in the evaluation process and also to ensure that the evaluators examine only the
relevant documents for each phase. The principles governing the distinction between the
criteria also apply in evaluation. The authorising officer responsible may also decide that the
evaluation committee is to evaluate and rank on the basis of only the award criteria and that the
exclusion and selection criteria should be evaluated by other appropriate means guaranteeing
the absence of any conflict of interest.
6.4.9.3.2 Contacts with tenderers
Once the tenders have been opened contacts with tenderers must remain exceptional and be
made only on the initiative of the contracting authority.
Such contacts may take place only in the following circumstances:
– clarification is needed concerning a tender;
– obvious clerical errors in the drafting of the tender need to be corrected;
– additional material or clarification of the exclusion or selection criteria need to be

requested.
In the above-mentioned situations the authorising officer or the evaluation committee may take
the initiative in contacting the tenderer, but any such contact must in no way alter the terms of
the tender or disclose any information concerning the evaluation.
For each contact a note for the file must be made, preferably when the contact takes place.
Because of the possible consequence, it is in practice necessary for contacts to be exclusively
in writing. The contracting authority cannot correct obvious clerical errors on behalf of the
tenderer without its prior written consent.
Finally, there can, of course, be no negotiation of the tenders (content, price, contract terms,
etc.) during these contacts. Special care should also be taken during any such contacts not to
create any legitimate expectation of award of the contract to the tenderer contacted.
Note that the possibility available to the evaluation committee of contacting a tenderer in the
circumstances stipulated could be considered an obligation to do so should this prove necessary
in order to ensure identical and non-discriminatory evaluation of all tenders that are in order.
Under the principle of equal treatment, if one tenderer is asked to provide clarifications or to
correct obvious clerical errors, the same must apply to all tenderers in the same situation.
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6.4.9.3.3 Tenders to be rejected at the evaluation stage
Tenders are deemed not to meet the contract specifications (as opposed to being found not
compliant at the time of opening) and therefore to be rejected if they:
– differ on a point of substance from the detailed description of the subject of the contract
contained in the specification;
– propose a solution different from the one that is imposed (except in competitive dialogues);
– propose a price above the fixed (non-indicative) maximum indicated in the specification or
contract notice;
– are submitted as variants, if the contract notice or the specification do not authorise them.
Nevertheless, if a basic offer complying with the specification has also been submitted, this
basic offer cannot be rejected.
Tenders are also to be rejected where:
– tenderers do not accept the terms of contract or other conditions contained in the tender
documents and seek to impose their own;
– one or more substantial parts of the documents required are missing;
– they are technically non-compliant.
Conversely, do not reject tenders if :
– certain missing documents (relating to the exclusion or selection criteria) or certain unclear
points (clarifications or correction of obvious clerical errors) can be requested/corrected
without going beyond the contacts authorised;
– they contain the information requested, but not on the standard form(s);
– the price exceeds the estimated amount stipulated, without being of a significantly different
magnitude;
– they have been submitted by a tenderer from a non-member country which has concluded a
bilateral or multilateral agreement with the EU on public procurement and the terms of this
agreement are complied with;
– (in the open procedure only) they have been submitted by a tenderer who had not requested
the tendering documents;
– they are submitted as the basic offer, complying with the specification, together with
unauthorised variants (which must be rejected).
6.4.9.3.4 Special cases
You are recommended to consider the situations described below only at an advanced stage of
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the evaluation procedure, in order to ensure that all tenders are handled in an entirely neutral
manner.
Abnormally low tenders
Before rejecting tenders for this reason alone, the contracting authority must request in writing
whatever explanations it considers appropriate concerning the substance of the tender and
check, taking due account of the reasons given by the tenderer, whether the tender can be
considered valid. These explanations might relate to compliance with the provisions on
employment protection and the working conditions in force at the place where the service is to
be performed.
Unacceptable tenders
On concluding its evaluation the committee may find that tenders are unacceptable because
either their technical quality is inadequate or the price is too high. The authorising officer is not
bound to award the contract and has the option of declaring the tenders to be unacceptable, but
grounds must be given for any such decision, which may also be challenged if one or more of
the tenderers in question met the criteria laid down in the tender documents. This is why it is
important to set out everything clearly in these documents.
If all the tenders are judged unacceptable, the procedure should be closed and, if necessary,
restarted. One possibility is a negotiated procedure following publication of a contract notice,
provided the initial terms of the contract (subject, financing, completion time, specifications,
etc.) are not substantially altered. No contract notice has to be published if the negotiated
procedure covers – to the exclusion of all others – all tenderers meeting the selection criteria
who, in the earlier procedure, submitted tenders complying with the formal requirements.
6.4.9.3.5 Consultation of the early warning system
Before taking an award decision (or, in the two-step procedure where the number of candidates
to be invited is limited, before completing selection), the early warning system (EWS) should
be consulted.
The check in the EWS must cover intended contractors, consortium members and, possibly,
envisaged subcontractors, depending on the risk assessment connected with particular
subcontracting (taking into account, for example, the value of the part to be subcontracted and
the principal/ancillary character of the services/supplies/works). It also applies to the decision
on authorisation of the subcontracting to be taken during implementation of the contract. The
obligation to consult the EWS may also extend to natural persons with powers of
representation, decision-making or control over the entities concerned. The EWS must be
consulted via the department’s designated officer.
The contracting authority is also under an obligation to request entry of information in the
EWS in cases where it excluded an economic operator from the procedure or confirmed a
breach of the contractor’s obligations. Such requests must be submitted to the EEAS
Accounting Officer using the standard form published on the EWS page.
6.4.9.3.6 Evaluation report and ranking of tenders or requests to participate
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For contracts worth more than €60 000, a report on the evaluation and ranking of compliant
tenders must be drawn up, dated and signed by all members of the evaluation committee. The
report must be kept for future reference.
It must contain at least:
– name and address of the contracting authority and the subject and value of the contract, the
framework contract or the dynamic purchasing system;
– names of candidates or tenderers excluded and the reasons why;
– names of the candidates or tenderers considered and the reasons for the choice;
– grounds for rejecting abnormally low tenders;
– names of the candidates or contractor proposed and reasons for this choice and, if known,
the proportion of the (framework) contract that the contractor intends to subcontract.
As the record serves as a reference for the subsequent stages of the procedure and in the event
of a dispute, it is important that the content, while being kept concise, should provide all
relevant details and report anything significant noted during the evaluation. In particular,
detailed and adequately developed arguments must be set out for:
– cases of exclusion from participation in the contract procedure;
– cases where the selection criteria are not met;
– rejection of candidates or tenders;
– the marks given for the technical quality of each tender when the award criteria are applied
and the objective grounds for the marks;
– cases of exclusion from award of the contract.
The evaluation report is accessible to the public and care should therefore be taken in its
drafting.
6.4.9.4 Award report and role of the Contracts Division
The EEAS Contracts Division is responsible for the ex ante verification of all supply, service
and works contracts50 awarded by the EEAS51 that are covered by Part One, Title V, Chapter 2
of the Financial Regulation. In this role it supports authorising officers in all steps of a tender
procedure or negotiated procedure where the contract is worth €60 000 or more and at any time
an authorising officer feels the need for it.
To obtain the Contracts Division’s opinion on the award of a contract the authorising officer
concerned, whether at headquarters or in a delegation, must prepare a file in the required
format (see model in Annex 8) and send it to the Contracts Division. The Division has a
maximum of ten working days to issue its opinion, which may be unfavourable (preventing
award of the contract) or favourable; a favourable opinion may be accompanied by remarks to
50
Except contracts for the purchase or leasing of buildings and all employment contracts.
51
See Instruction note No 266385 of 10.3.2011 signed Mr O’Sullivan.
65
be taken into consideration in future procedures or in awarding the contract in question.
The file should be sent to the Contracts Division's functional mailbox:

mailto:EEAS-CONTRACTS.Procurement@eeas.europa.eu
6.4.9.5 Award of the contract
When the evaluation has been completed and the evaluation record and award (or non-award)
report drawn up, the authorising officer responsible makes a reasoned decision on the award
(or non-award).
The award decision is a formal act which contains points of substance from the evaluation
record.
6.4.9.6 Notification of award
The contracting authority must:
– inform candidates who failed to meet the exclusion and selection criteria shortly after the
decisions on these criteria are taken and before the award decision (in the case of the
two-step procedure);
– inform all unsuccessful tenderers simultaneously and individually as soon as possible after
the award decision and within one week at the latest, by mail, fax or e-mail, that their
application or tender has not been accepted, specifying in each case the reasons why;
– at the same time as the unsuccessful tenderers, inform the successful tenderer of the award
decision, specifying that the decision notified does not imply any commitment on the part
of the contracting authority and requesting evidence of compliance with the exclusion
criteria.
Article 158(1) IR stipulates that the signing of the contract has to be suspended for 14 calendar
days counted from the day after the simultaneous dispatch of notification to tenderers (those
rejected and the successful tenderer). Only at the end of this standstill period may the
authorising officer sign the contract. The standstill period concerns only contracts covered by
Directive 2004/18/EC (i.e. above the thresholds and not outside the scope of the Directive) and
negotiated procedures without prior publication of a contract notice. Any contract signed
before the 14 calendar-day period expires will be null and void.
It is not necessary to wait 14 days before signing the contract in the case of:
– open procedures where only one tender has been submitted;
– restricted or negotiated procedures after prior publication of a contract notice where the
tenderer to whom the contract is to be awarded was the only one who satisfied the
exclusion and selection criteria, provided the other candidates or tenderers were informed
of the grounds for their exclusion or rejection shortly after the relevant decisions were
taken on the basis of the exclusion and selection criteria;
– specific contracts based on framework contracts established by applying the terms of the
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framework contract without reopening competition (single framework contract or ‘cascade’
multiple framework contract);
– extreme urgency as referred to in Article 126(1)(c) IR (see 5.6.2 Negotiated procedure

without publication of a contract notice in the OJ for a description of ‘extreme urgency’).
However, the 14-day standstill must be observed before the contract is signed if only one
tender has been received:
– in the case of restricted procedures in which a number of candidates have been invited to
submit a tender after the selection stage;
– in the case of negotiated procedures (with or without a contract notice) where a number of
candidates have been invited to submit an offer even if they have not submitted an offer;
– in the case of specific contracts based on framework contracts with a reopening of

competition, if the specific contract is covered by the Directive (in particular, contracts of a
value above the threshold set in the Directive).
In those three cases, all selected candidates must be notified of the award decision.
Under the fourth paragraph of Article 263 of the Treaty on the Functioning of the EU (TFEU)
and according to ECJ case-law, a decision can be challenged by both the person to whom it is
addressed and any natural or legal persons directly and individually concerned by the decision,
even if it is not addressed to them. The notification sent to the unsuccessful candidates or
tenderers must refer to the possibility of bringing a court action under Article 263 TFEU and
the relevant practical steps to take.
Model notification letters are available at:

http://www.cc.cec/budg/imp/procurement/imp-080-050_information_en.html.
It is therefore important to allow for this period in the schedule of the procurement procedure.
Special care must be taken not to generate legitimate expectations on the part of the successful
tenderer. The letter of notification to the successful tenderer must always include a reference to
Article 101 FR to the effect that the EEAS/delegation may, until such time as the contract has
been signed, either abandon or cancel the procurement procedure without the successful
tenderer being entitled to any compensation. Where appropriate, contracting authorities may
suspend signing of the contract for additional examination if justified by the requests or
comments made by unsuccessful tenderers or candidates during the 14 calendar days following
the rejection or award decisions or any other relevant information received during that period.
In that event, all the candidates or tenderers must be informed within three working days of the
suspension decision.
6.4.9.7 Publication of an award notice
An award notice must be published in the Official Journal for contracts of a value equal to or
over the relevant thresholds laid down in the Directive (where appropriate, based on a dynamic
purchasing system), even if there was no contract notice52.
The award notice contains the results of the procedure and is therefore applicable, whatever the
52
In the interests of transparency it may also be advisable to publish an award notice for contracts where a contract notice was
published on a voluntary basis.
67
outcome: award, non- award or cancellation of procedure. The notice must be drafted using the
standard form.
The Contracts Division must ensure that the award notice is published in the Official Journal
no later than 48 calendar days from the date on which the contract or framework contract is
signed53.
No award notice has to be published if the contract is below the values indicated above.
For buildings contracts and, without prejudice to Article 90 FR, contracts declared secret, a list
of contractors to whom contracts have been awarded is published once a year, with an
indication of the subject and value of the contracts awarded (Article 119 IR).
For contracts worth less than the amount for which an award notice is compulsory but worth
€60 000 or more, a list of contractors, specifying the subject and amount of the contract
awarded, is drawn up for annual publication, to be sent to the Publications Office by 31 March
of the following year (Article 119 IR).
For contracts worth between €25 000 and €60 000, a list of contractors specifying the subject
and amount of the contract awarded is drawn up for annual publication on the institution’s
internet site by 31 March of the following year (Article 119 IR).
In addition to these official publications, other forms of publicity are possible, in particular in
electronic format (e.g. on the Directorate-General’s website). Such publicity must not precede
publication of the award notice, which is the only authentic version, and must make reference
to the notice.
As is the rule in public procurement procedures, such publicity must not discriminate between
candidates or tenderers.
If the aggregate value of specific contracts based on a framework contract awarded during a
financial year exceeds the thresholds set in Directive 2004/18/EC, information about the value
of the specific contracts and contractors must be published on the website of the contracting
authority by not later than 31 March following the end of the financial year.
Exception
Publication of certain information after the contract has been awarded may be dropped if it
would hinder application of the law, would be contrary to the public interest or would harm the
legitimate business interests of public or private undertakings or could distort fair competition
between them.
6.4.9.8 Public access to information and documents relating to procurement procedures
During the tendering procedure economic operators participating have extensive rights to
information. This is the first and basic mechanism for enforcing the rule of competition.
After receiving a request for information, the contracting authority should first verify the basis
on which information is requested. There are several possibilities:
53
The award notice concerning contracts covered by Directive 2004/18/EC awarded under a negotiated procedure without a
contract notice must be sent to the Publications Office for publication 14 calendar days before the signing of the contract.
68
Economic operators participating in the procurement procedure:
– on the basis of Article 100(2) FR and Article 149 IR, unsuccessful tenderers may request
information after being notified of exclusion, selection or award decisions (for details, see
previous chapters).
Members of the public:
– under the Code of Good Administrative Behaviour any person may request information,
usually only after the contract is signed;
– under Regulation No 1049/2001 and Commission Decision (EC, ECSC, Euratom)

2001/937 implementing it, anyone may request access to documents connected with
procurement, usually only after signing of the contract;
– under Regulation 1367/2006 anyone may request access to environmental information

related to the tender procedure, usually only after signing of the contract.
7. CONTRACT MANAGEMENT
7.1 ABAC contracts

ABAC (Accrual Based ACcounting) is an information system for executing and monitoring all
budgetary and accounting operations of the Commission and the EEAS. ‘ABAC Workflow’ is
an interface of the system.
‘ABAC contracts’ is the central repository containing all contracts.
Authorising departments (headquarters and delegations) are under an obligation to register

their contracts in ABAC contracts as soon as they are signed and before any payment is made.
More information may be found on the website of DG BUDG.
7.2 Payment time limits and default interest

Making payments within the time limits laid down is an essential part of sound financial
management. The central accounting system (ABAC) offers authorising departments the tools
to keep track of their payment deadlines.
The contracting authority has to meet the time limits for reviewing the reports, any checking of
certificates and making payments.
The period for approval of the documents accompanying payment requests is:
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– 20 calendar days for simple contracts for the supply of goods and services;
– 45 calendar days for other contracts;
– 60 calendar days for contracts involving technical services or action requiring complex
assessment.
The authorising officer must inform the beneficiary, by means of a formal document, of any
suspension of the approval period.
The time limit for payment is:
– 30 calendar days for payments under service or supply contracts, unless otherwise provided
for in the contract;
– a maximum of 45 calendar days for other payments.
The time limit for payment does not start until the reports and certificates have been approved.
The authorising officer responsible may decide that a single time limit should apply for both
approval of the report/certificate and payment. This single time limit may not exceed the sum
of the maximum time limits.
The payment period begins only once the payment request is admissible, i.e. once all the
documents required under the contract are present. If they are not, the contractor must be
notified as soon as possible that an essential part of the payment request is missing and that,
consequently, the request is inadmissible.
After receipt of the payment request, the authorising officer may need to:
– request supplementary information or documents relating to the report;
– reject the report (giving reasons) and request submission of a new report.
It is advisable to set a deadline for supplying the supplementary information or documents

requested.
In the first case (supplementary information) the period for assessing the reports and
certificates is suspended and restarts once the documents requested are submitted. In the
second (rejection), the evaluation period starts afresh once the new report is submitted.
The authorising officer also has the option of suspending payment in cases where:
– the amount is not due (e.g. due to a clerical error);
– supporting documents are required for scrutiny of the payment request (e.g. to justify the
eligibility of expenses declared by a contractor);
– the authorising officer has doubts about the eligibility of expenses referred to in the
payment request (e.g. inconsistency between the declared expenses and the technical
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report).
Any such suspension must be communicated to the contractor in writing, giving details of the:
– the reason for the suspension;
– period which is suspended (whether for approval of reports or for payment);
– length of the suspension.
Once the time limit for payment has elapsed the contractor is automatically entitled to interest
for late payment. Exceptionally, when the total does not exceed €200, interest is paid only at
the request of the contractor, which must be submitted within two months of receiving late
payment.
The default interest begins to accrue from the first day following the expiry of the payment
period, with due allowance for the conditions laid down in the contract/agreement for
registering an admissible payment request, from which point the payment period begins to run.
The end date of the period for calculating such interest is the date of payment by DG BUDG
(the date on which the Commission’s bank account is debited).
The interest rate to be used is the rate applied by the European Central Bank (ECB) to its main
refinancing operations, as published in the Official Journal of the European Union (C series),
plus a margin expressed in percentage points.
This margin is:
– seven percentage points when the source of the debt is a public supply or service contract;
– three and a half percentage points in all other cases.
7.3 Price revision

In contracts to supply a single product or service the price is usually fixed and not subject to
revision.
In the case of multiannual contracts (e.g. framework contracts) where a fixed price does not
seem feasible, it is best for prices not to be revised until after twelve months. The indexes used
should be expressed in the same currency as the contract. Indexes published by Eurostat should
be used where possible.
It is up to the contractor to calculate and request the price revision, which is then submitted to
the operational division where it is checked and, if necessary, challenged. The request for price
revision should be lodged in accordance with the terms of the contract, i.e. request from the
contractor in writing and confirmation of acceptance of the revision from the operational
division, also in writing.
A revision may affect all or part of the price.
See also Circular on indexation (version of 8.1.2003, updated 17.12.2010).
71
7.4 Management of guarantees
7.4.1 Types of guarantee

Three types of guarantee are used in public procurement:
1) a tender guarantee54, to ensure that the offers are maintained (optional, equivalent to 1% to
2% of the estimated value of the contract);
2) a prefinancing guarantee55 (obligatory when total prefinancing is over €150 000);
3) a performance guarantee56 to ensure proper implementation of the contract (obligatory for

works contracts of a value higher than €345 000). The volume of the guarantee is set by the
authorising officer in accordance with the usual commercial terms and must be proportionate to
the nature of the project and its organisation and risks in particular. Nevertheless, guaranties
constituted by deductions from payments correspond to 10% of the value of the contract.
A guarantee is a form of financial security making a third party irrevocably liable to pay a sum
of up to the limit of the guarantee at the first request by the recipient of the guarantee.
Guarantees must include an undertaking that the guarantor will stand as ‘first-call guarantor’.
The guarantor’s obligations are independent of the contractor’s underlying contractual
obligations. Consequently, any challenge to the validity or scope of the underlying obligation,
either in the form of legal proceedings or in any other form, does not delay payment by the
guarantor.
The guarantor may be either a bank or an approved financial organisation, i.e. one approved by
the competent national authorities. It may be replaced by a joint and several guarantee from
another reliable third party. The authorising officer may refuse any guarantee considered
unsatisfactory. Reasons must be given for any such decision.
In case of a group (consortium), any member of the group may present a single guarantee for
the whole requested value. Alternatively, several members of the group may present a number
of guarantees adding up to the requested value.
Another form of guarantee, to be used in the case of performance guarantees, is deduction of

10% of the total value of the contract, either progressively from each of the payments or from
the final payment.
The guarantees must be lodged in euros (or in the currency of the contract) and safely stored in
a safe in the operational division so that they can be easily located if needed and are protected
against being lost, destroyed or stolen.
On receipt, the operational division must enter them in ABAC after checking their compliance.
An up-to-date record of bank guarantees must be kept and regularly reconciled with the
physical inventory of guarantees held within the division so as to identify and correct any
discrepancy.
54
55
Article 102(2)(b) FR and Article 152 IR.
56
Article 102(2)(a) FR and Article 151 IR.
72
7.4.2 Release of guarantees
This takes place as follows:
1) Tender guarantees:
– of tenderers who did not meet the exclusion and selection criteria: together with the
notification of the result of the evaluation of their offers;
– of tenderers who passed the selection and exclusion criteria: after signing of the contract.
The guarantee is retained if no tender is submitted or if the tender is withdrawn or if the

contract is not signed, in the case of the successful tenderer.
2) Prefinancing guarantees: when the prefinancing is finally deducted from the interim or final
payments.
3) Performance guarantees: after the final acceptance, ‘save where the contract has not been
performed or has been performed incorrectly or completion is late. In such cases a proportion
of the guarantee shall be retained in proportion to the seriousness of the damage suffered’
(Article 151(3) IR). Obviously, the whole guarantee is retained if the value of the damages is
greater than the sum of the guarantee.
It is therefore important to set the expiry date of the guarantee properly, so that it covers the
whole duration of the activity for which it is intended (e.g. the whole probable evaluation
period) plus the time necessary if the guarantee is to be executed (preparation, approval and
dispatch of the request for payment by registered letter with acknowledgement of receipt). You
are therefore advised to accept only guarantees with no expiry date.
Bank guarantees are released by the operational division as follows:
– it checks that all the conditions necessary for releasing the guarantee are fulfilled (see
above);
– where applicable, it will send a letter to the issuing bank asking it to release the guarantee.
The original of the guarantee is attached to the letter, which should give the guarantee
number and the references of the contract and be signed by the head of the operational
division. A copy is sent to the contractor and the Contracts Division.
7.5 Amendments to contracts

Contracts may need to be amended during their period of validity if the circumstances affecting
project implementation have changed since the initial contract was signed.
Contract amendments must be formalised by an administrative order or an addendum to the

contract, in accordance with the general conditions. Substantial changes to a contract must take
the form of an addendum. This addendum must be signed by the contracting parties. Changes
of address or changes of bank account may simply be notified in writing by the contractor to
the contracting authority, although this does not affect the right of the contracting authority to
oppose the contractor's choice of bank account.
73
7.5.1 General principles
The following general principles always apply:
– Amendment of a contract may not have the effect of altering the eligibility criteria
applicable at the time the contract was awarded. Following this logic, major changes such
as a fundamental revision of the terms of reference/technical specifications may not be
effected by an addendum or service order.
– Requests for contract amendments should not automatically be accepted by the contracting
authority. Reasons must be given for such requests. The contracting authority must
examine the reasons given and reject requests which are ill-founded or unfounded.
– Contracts may be amended only within the period of execution.
– The purpose of the addendum/administrative order must be closely connected with the
nature of the project covered by the initial contract.
– Requests for amendments to contracts must be made (by one contracting party to the other)
well in advance so that the addendum can be signed by both parties before the end of the
execution period of the initial contract.
– If an amendment extends activities already under way, it is treated like a negotiated

procedure.
An addendum must be drawn up in accordance with the procedures described in Chapter 4.3.
7.5.2 Preparing an addendum
In preparing an addendum the contracting authority must proceed as follows:
1) Use the model addendum (see Volume 2 ‘Annexes – Models’)
All references in the proposed addendum to article numbers and/or annexes to be amended
must correspond to the relevant ones in the initial contract. Any addendum amending the
budget must include a replacement budget showing how the full budget breakdown of the
initial contract has been amended by this addendum (and any previous addendums).
If the budget is amended by the proposed addendum, the payment schedule must also be
amended accordingly, taking into account any payments already made in the course of the
contract.
The payment schedule must not be changed unless either the budget is amended or the contract
is being extended.
2) For addendums worth more than €60 000 and addendums having the effect of raising the
value of an existing contract to more than €60 000 (excluding building contracts), submit to the
Contracts Division for approval a file containing: (i) an explanatory memo setting out technical
and financial grounds for the amendments contained in the proposed addendum; (ii) a copy of
the request (or agreement) concerning the proposed amendments; (iii) a copy of the contract
74
and, where applicable, previously approved addendums; (iv) a copy of the draft addendum
drawn up using the model addendum (see Annex 8.23), including any revised annexes.
Any addendum, and indeed any contract, is effective from the date of its last signing, which is
always a signature of the EEAS.
75

Guide To Public Procurement Procedures For Contracts Concluded by The European External Action Service

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Guide To Public Procurement Procedures For Contracts Concluded by The European External Action Service

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Guide to public procurement procedures for

Version 1.01 (May 2011)

The relevant legislation and, where applicable, case-law, will prevail.

EEAS-Contracts.Exceptions@eeas.europa.eu: for sending requests for exceptions

EEAS-Contracts.Invoices@eeas.europa.eu: for questions in connection with invoices and

EEAS-Contracts.Procurement@eeas.europa.eu: for sending

EEAS-Contracts.contracts@eeas.europa.eu: for questions of a general nature, including

List of Acronyms ............................................................................................................................ 9

2.1 Definition ............................................................................................................................. 10

3. ELIGIBILITY CRITERIA AND OTHER ESSENTIALS.................................................... 15

3.1 Eligibility to participate in tendering procedures .................................................................. 15

3.3 Administrative and financial penalties ................................................................................. 18

3.4 Other essential points ........................................................................................................... 18

4.1 Types of contract .................................................................................................................. 19

5. PROCUREMENT PROCEDURES ........................................................................................ 23

5.1 Which award procedure to apply? ........................................................................................ 24

5.3 Open procedure: a single stage ............................................................................................. 25

5.4 Restricted procedure: two stages .......................................................................................... 25

5.5 Restricted procedure following a call for expressions of interest ......................................... 26

5.6 Negotiated procedure ........................................................................................................... 27

5.8 Competitive dialogue ........................................................................................................... 33

5.9 Fast-track procedure ............................................................................................................. 33

6.1 Ex ante publicity .................................................................................................................. 34

7.1 ABAC contracts ................................................................................................................... 69

7.2 Payment time limits and default interest .............................................................................. 69

7.3 Price revision ....................................................................................................................... 71

7.4 Management of guarantees................................................................................................... 72

ABAC Accrual-Based ACcounting system

What this Guide does not cover

2.1.1 Basic information on EU public procurement

2.1.2. Types of public contract2

Contracts may take the following forms:

2.1.3 Legal basis and general principles

– the Financial Regulation: Council Regulation (EC, Euratom) No 1605/2002 of 25 June

– the Implementing Rules: Commission Regulation (EC, Euratom) No 2342/2002 of

– case-law, especially Court of First Instance judgments in public procurement cases.

2.2. What is not public procurement

2.2.2. Employment contracts

2.2.3. External experts

2.3 Characteristics of procurement

2.3.2. Contract value

The calculation of the estimated value should include:

– the operator’s total estimated remuneration, including reimbursement of certain types of

3. ELIGIBILITY CRITERIA AND OTHER ESSENTIALS

3.1 Eligibility to participate in tendering procedures

3.1.1 Bilateral and specific agreements (Article 106 FR)

– the bilateral agreements with Mexico6 and Chile7 8.

3.1.2 The WTO Agreement on Government Procurement (Article 107 FR)

Origin of goods purchased

3.1.3 Ad hoc admission of ineligible candidates or tenderers

3.2 Exclusion situations (Articles 93 and 94 FR)

(a) are subject to a conflict of interest;

3.3 Administrative and financial penalties

3.4 Other essential points

If a contract or framework contract is necessary to implement a joint action between an

4.1 Types of contract

– by their nature: framework contract or direct contract;

– by their subject: contracts for services, supplies, works or buildings.

4.1.1.1 Framework contracts

There are a number of different framework contracts:

– Multiple framework contract in order of priority (‘cascade’ system): like a single

4.1.2 Contract types by subject