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

SECTION 1 Types of procedure and conduct of the procedure

Article 10 Open procedure

1. On publication of a contract notice, all interested suppliers may request the invitation to tender if not made available by electronic means. The ECB shall provide the invitation to tender within 6 days of receipt of the request, provided that the request was made in good time before the time limit for the submission of tenders.

2. Interested suppliers shall submit their tender within the time limit set by the ECB and include all documentation requested by the ECB.

3. The ECB shall award the contract to the tenderer whose tender best meets the award criteria set out in the contract notice or invitation to tender.

Article 11 Restricted procedure

1. The ECB may apply the restricted procedure if:

(a) the ECB's requirements can be defined in such detail that tenders can be compared against each other and the contract can be awarded without negotiations with the tenderers; and

(b) it is necessary to restrict the number of tenders for administrative reasons or because of the nature of the procurement.

2. On publication of a contract notice, interested suppliers may apply for participation in the restricted procedure. They shall submit their application within the time limit specified in the contract notice and provide the documentation requested by the ECB.

3. The ECB shall verify the eligibility of candidates and evaluate the applications against the selection criteria set out in the contract notice. The ECB shall invite at least five eligible candidates that satisfy the selection criteria to submit a tender, provided that a sufficient number of candidates meeting the selection criteria are available. The invitation to tender shall be sent in writing and simultaneously to all candidates invited to submit a tender.

4. The candidates invited shall submit their tender within the time limit set by the ECB and include all documentation requested by the ECB.

5. The ECB shall award the contract to the tenderer whose tender best meets the award criteria set out in the contract notice or invitation to tender.

Article 12 Negotiated procedure

1. The ECB may apply a negotiated procedure if:

(a) the ECB's needs cannot be met without the adaptation of readily available solutions, or require design or innovative solutions;

(b) the contract cannot be awarded without prior negotiations because of the deliverables' specific nature, complexity, legal and financial character and the corresponding risks; or

(c) the technical specifications cannot be established with sufficient precision with reference to a technical standard or reference.

2. The ECB may also use the negotiated procedure if only irregular or unacceptable tenders have been obtained in response to an open or restricted procedure or a competitive dialogue. The ECB may refrain from publishing a new contract notice if it includes in the negotiated procedure all of, and only, the tenderers that participated in the initial procedure, were eligible, met the selection criteria and submitted their tenders in accordance with the formal tender requirements. If no tenders or no suitable tenders have been obtained, the ECB may also start a negotiated procedure in accordance with Article 35 without publication of a notice. In all cases, the original terms of the contract to be awarded shall not be substantially altered.

3. On publication of a contract notice interested suppliers may apply to participate in the negotiated procedure. They shall submit their application within the time limit specified in the contract notice and provide the documentation requested by the ECB.

4. The ECB shall verify the eligibility of candidates and evaluate the applications against the selection criteria set out in the contract notice. It shall invite at least three eligible candidates satisfying the selection criteria to submit a tender, provided that a sufficient number of candidates meeting the selection criteria are available. The invitation to tender shall be sent simultaneously to all candidates invited to submit a tender.

5. Following the evaluation of the tenders, the ECB may negotiate with tenderers in order to bring their tenders in line with the ECB's requirements. The ECB may start negotiations either:

(a) with the best-ranked tenderer. If the negotiations with the best-ranked tenderer fail, the ECB may take up negotiations with the next-ranked tenderer; or

(b) simultaneously with several tenderers whose tenders best meet the award criteria. The number of tenderers admitted to the negotiations may be reduced in successive stages by applying the award criteria set out in the contract notice or the invitation to tender.

Before starting negotiations, the ECB shall inform all tenderers eligible to participate in negotiations on how the negotiations will be conducted.

6. The scope of the negotiations may include the tenderers' technical offers, financial offers and the contractual terms and conditions provided that the scope of the tender procedure is not substantially altered. The ECB may also invite tenderers to submit a revised tender. During the negotiations, the ECB shall ensure equal treatment of all tenderers invited to participate in negotiations.

7. Once the negotiations are closed, the ECB shall award the contract to the tenderer whose tender best meets the award criteria set out in the contract notice or invitation to tender.

Article 13 Competitive dialogue

1. The ECB may carry out a competitive dialogue in the cases outlined in Article 12(1).

2. On publication of a contract notice interested suppliers may apply for participation in the dialogue. They shall submit their application within the time limit specified in the contract notice and provide the documentation requested by the ECB.

3. The ECB shall verify the eligibility of candidates and evaluate the applications against the selection criteria set out in the contract notice. The ECB shall invite at least three eligible candidates to participate in the dialogue and provide them with a request for a proposal setting out the ECB's needs. The aim of the dialogue is to identify and define the solution that is best suited to meet the ECB's needs. The ECB may discuss all aspects of the contract with the candidates. The number of candidates invited shall be sufficient to ensure genuine competition. If the number is below the minimum number, the ECB may continue the procedure with all candidates meeting the selection criteria.

4. The dialogue shall be carried out within the timeframe set out in the contract notice. During the dialogue, the ECB shall ensure equal treatment of all participants. The ECB may not provide any information which may give some participants an advantage over others or reveal to other participants solutions proposed or other confidential information communicated by a candidate participating in the dialogue without their specific written agreement thereto.

5. If the contract notice so provides, the ECB may carry out the dialogue in successive stages to reduce the number of solutions to be discussed during the dialogue stage. The ECB shall continue the dialogue until it can identify the solution or solutions which are capable of meeting its needs. The ECB shall select the solutions to be considered by applying the award criteria set out in the contract notice or the request for a proposal.

6. Having declared that the dialogue is concluded, the ECB shall ask the candidates participating in the dialogue to submit their final tenders on the basis of the solutions presented and specified during the dialogue. The ECB may request the tenderers to clarify, specify or optimise certain aspects of their tenders or to confirm commitments contained in the tender provided that this does not have the effect of modifying substantial aspects of the tender and does not risk distorting competition or causing discrimination.

7. The ECB shall evaluate the tenders received against the award criteria laid down in the contract notice or the request for a proposal. Once the evaluation is completed, the ECB shall award the contract to the tenderer whose tender best meets the award criteria, which must include quality aspects.

Article 14 Innovation partnership

1. The ECB may apply an innovation partnership procedure for the development of innovative products, services or works not available on the market and their subsequent purchase, provided that they comply with the performance level and maximum costs agreed between the ECB and the participants in the partnership.

2. On publication of a contract notice, interested suppliers may apply to participate in the innovation partnership. They shall submit their application within the time limit specified in the contract notice and provide the documentation requested by the ECB.

3. The ECB shall verify the eligibility of candidates and evaluate the applications against the selection criteria set out in the contract notice. The ECB shall invite at least three eligible candidates to participate in the procedure and provide them with a request for a proposal setting out the ECB's needs. The number of candidates invited shall be sufficient to ensure genuine competition. If the number is below the minimum number, the ECB may continue the procedure with all candidates meeting the selection criteria.

4. The ECB may decide to set up an innovation partnership with one partner or with several partners conducting separate research and development activities.

5. The innovation partnership shall be structured in successive phases following the sequence of steps in the research and innovation process, which may include manufacturing of products, provision of services or completion of works. The innovation partnership shall set intermediate targets to be attained by the partners and provide for payment in instalments. If the procurement documents so provide, after each phase the ECB may either terminate the innovation partnership or, in the case of an innovation partnership with several partners, reduce the number of partners by terminating individual contracts.

6. If the procurement documents so provide, negotiations during innovation partnership procedures may take place in successive stages, applying the award criteria specified, in order to reduce the number of tenders to be negotiated. The ECB shall negotiate with tenderers the initial and all subsequent tenders submitted by them, except for the final tender, and changes to the technical specifications shall be communicated to tenderers to allow them to modify and re-submit amended tenders. Minimum requirements and award criteria shall not be subject to negotiations.

7. Article 13(4) shall apply accordingly.