1. Contracts for the purchase or hiring of goods or for the provision of services shall be in writing.
2. All such contracts for which the estimated value equals or exceeds the thresholds set out in Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts(4) or Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts(5) shall be concluded after an invitation to tender has been issued in accordance with the provisions of those Directives, including any further amendments which may be agreed to them (hereinafter the "Council Directives on public procurement procedures").
3. Contracts for which the estimated value of the contract in question does not exceed the thresholds set out in the Council Directives on public procurement procedures may be made by private treaty. In such cases, the Member States referred to in Article 25 shall none the less be bound, as far as possible and by all appropriate means, to enable suppliers who are likely to be able to supply the goods and services in question to compete.
4. Invitations to tender shall, as a general rule, be published by the General Secretariat of the Council on behalf of the Member States referred to in Article 25 in all the Member States.
5. The tendering procedures and selection and award criteria shall be determined and governed by the provisions of the Council Directives on public procurement procedures, as supplemented by the provisions of this Financial Regulation.
6. Every invitation to tender shall be prepared by the General Secretariat of the Council on behalf of the Member States referred to in Article 25 and shall, in particular:
(a) specify the procedure for submitting tenders and stipulate how they are to be presented, including, in particular, any requirement as to the use of a standard reply form;
(b) make reference to the general conditions applicable to the contract concerned (supplies or services), where appropriate, and to any document containing conditions specifically applicable to the particular contract concerned;
(c) include a clause stating that the submission of a tender implies acceptance of the relevant conditions;
(d) specify the terms under which an inspection may be made, where appropriate, to be set out in detail in the case of on-the-spot inspections;
(e) specify the period during which a tender will remain valid and may not be varied in any respect;
(f) specify the penalties for failure to comply with the provisions of the contract;
(g) specify the details which must be contained in the invoices (or in the relevant supporting documents);
(h) prohibit any contact between the Deputy Secretary-General and his staff, representatives of the Governments of the Member States referred to in Article 25, representatives of the Governments of Iceland and Norway and tenderers on matters related to that invitation to tender save, by way of special exception, under the following conditions:
before the closing date for the submission of tenders:
(i) at the instance of tenderers:
additional information solely for the purpose of clarifying the nature of the invitation to tender may be communicated to all tenderers;
(ii) at the instance of the Deputy Secretary-General:
if the Member States referred to in Article 25, or Iceland and Norway, or the General Secretariat of the Council notice an error, a lack of precision, an omission or any other type of clerical defect in the text of the invitation to tender, the General Secretariat may, in a manner identical with that applicable in respect of the original invitation to tender, inform the persons concerned accordingly;
(iii) after the tenders have been opened and at the instance of the Member States referred to in Article 25, Iceland or Norway, or the General Secretariat of the Council, if some clarification is required in connection with a tender, or if obvious clerical errors contained in the tender must be corrected, the General Secretariat may contact the tenderer.
In every case where contact has been made under the conditions provided for in Article 29(6)(h), a "Note for the file" shall be drawn up and such contact shall be mentioned in the report to be submitted subsequently to the Advisory Committee referred to in Article 36.
No discrimination shall be practised between nationals of Member States and of Iceland and Norway on grounds of nationality in respect of contracts entered into by the Deputy Secretary-General on behalf of the Member States referred to in Article 25.
Where there are general conditions applicable to the proposed contract, they shall be attached to the invitation to tender. Any document containing conditions specifically applicable to the particular contract concerned shall also be attached.
Tenderers may submit tenders:
(a) by post:
in which case the invitation to tender must specify that the relevant date shall be that on which the tender is posted, as evidenced by the postmark. Tenders submitted by post must be registered; or
(b) by hand-delivery to the Council General Secretariat direct or by any agent of the tenderer, including private messenger services:
in which case the invitation to tender must state the date by which tenders must be submitted and specify the department within the Council General Secretariat to which they must be delivered against a signed and dated receipt.
The date must be the same in both cases.
In order to maintain secrecy and to avoid any difficulties, the invitation to tender must include a provision as follows:"Tenders must be submitted in a sealed envelope itself enclosed within a second sealed envelope. The inner envelope shall bear, in addition to the name of the department to which it is addressed, as indicated in the invitation to tender, the words 'Call for tenders - Not to be opened by the Registry'. If self-adhesive envelopes are used they must be sealed with adhesive tape and the sender must sign across this tape."
Every tender must be opened.
The tenders shall be opened together by a committee appointed for this purpose by the Deputy Secretary-General. It shall be composed of three high level officials from different directorates of the Council General Secretariat. The financial controller must be informed of the opening of the tenders. The financial controller or his representative shall be present as an observer.
The committee shall draw up a report of the opening of the tender, to be signed by all its members.
Each page of each tender shall be initialled by at least one member of the committee. The committee shall make a written record of the tenders received, listing, in particular, all the documents which have been received from each tenderer in connection with the tender.
Every tender shall be assessed by the Member States referred to in Article 25, together with Iceland and Norway. A report, approved unanimously by these States, shall be presented by the competent official within the Council General Secretariat designated by the authorising officer or by an alternate, also designated by the authorising officer, to the Advisory Committee referred to in Article 36.
This report shall include in particular:
(a) a statement of the reasons for the elimination of any of the tenders;
(b) a technical and financial assessment of each tender, including a comparative table of unit prices;
(c) the grounds for the choice of tenderer recommended.
Contracts to be concluded by the Deputy Secretary-General on behalf of the Member States referred to in Article 25 and by the appropriate representatives of Iceland and Norway after an invitation to tender has been issued shall first be submitted for the opinion of an Advisory Committee on procurements and contracts.
The Advisory Committee referred to in Article 36 shall include one representative from each Member State referred to in Article 25, together with one representative from each of Norway and Iceland. The Member States referred to in Article 25, together with Iceland and Norway, shall ensure that the representatives selected have adequate expertise in informatics and/or financial matters and/or legal matters. Representatives must not have participated in the assessment of the files to be submitted to the Advisory Committee. A representative of the financial controller shall be present as observer.
The Advisory Committee shall, by simple majority, elect a Chairman and a deputy Chairman from among its representatives.
The Advisory Committee shall deliver an opinion as to whether the procedure leading to the selection of tenderer is in order and, in general, on the proposed terms of the contract.
Any other problem concerning the matter forming the subject of this chapter may be referred to the said Advisory Committee for an opinion.
The Advisory Committee shall endeavour to adopt its opinions by consensus. If such consensus is not possible, the Advisory Committee shall adopt its opinions by a simple majority of its representatives. A quorum of 11 shall be required for the proceedings to be valid. In the event of a tied vote, the Chairman shall have the casting vote.
The General Secretariat of the Council shall provide secretarial assistance to the Advisory Committee as necessary.
The Advisory Committee shall draw up its own rules of procedure, by analogy with the rules of procedure of the Advisory Committee on Procurements and Contracts of the Council of the European Union.
The Advisory Committee shall be required to give its opinion, in a purely advisory capacity, on:
(a) all proposed contracts for supplies or services, including studies, for which the estimated value equals or exceeds the thresholds in the Council Directives on public procurement procedures;
(b) any proposed agreement supplementary to any contract as referred to in point (a) whenever there are significant changes, particularly when the effect of such supplementary agreement would be to alter the amount involved in the original contract;
(c) any proposed supplementary agreement the effect of which would be to raise the total amount involved in a contract already concluded above the thresholds referred to in point (a);
(d) questions arising at the time of conclusion or in the course of performance of contracts (e.g. cancellation of orders, requests for remission of penalties for delay, departures from the specifications and general conditions of contract), should the matter be sufficiently serious to justify a request for an opinion;
(e) at the request of one of the Member States referred to in Article 25 or of Iceland or Norway, or of a member of the Advisory Committee, or of the Deputy Secretary-General, proposed contracts involving an amount below the thresholds referred to in point (a), where they consider that such contracts involve questions of principle or are of a special nature.
The files submitted to the Advisory Committee for an opinion pursuant to Article 39(b) to (e), shall also be accompanied by a report approved unanimously by the Member States referred to in Article 25, as well as Iceland and Norway.
The opinions of the Advisory Committee shall be signed by its chairman. In order to avoid delays in the process as a result of the intervention of the Advisory Committee, the Member States referred to in Article 25, as well as Iceland and Norway, may, if they deem it necessary, impose a reasonable deadline by which an opinion must be furnished. Opinions shall be communicated to the Deputy Secretary-General and to the Member States referred to in Article 25, as well as to Iceland and Norway. Following due consideration of that opinion, the Member States referred to in Article 25, as well as Iceland and Norway, shall take a final decision on the case by unanimity. Once that decision has been taken, the contract or contracts which form the subject of each case shall be concluded by the Deputy Secretary-General on behalf of the Member States referred to in Article 25 and by the appropriate representatives of Iceland and Norway.
All the tenderers shall be informed by the General Secretariat of the Council of the decision taken with regard to their tenders.
1. Contracts may be made against an invoice or bill of costs where the expected value of the goods or services does not exceed EUR 2000.
2. By way of guarantee of the performance of contracts, suppliers, contractors or providers of services may be required by a warranty clause to make a preliminary deposit. Such deposit must cover not only the entire period of the guarantee but also a period long enough to allow the guarantee to be invoked. The deposit must, in principle, consist of a payment in euro made to a bank account specifically opened for that purpose in the name of the General Secretariat of the Council. Such deposit may only be lodged with a first-class credit institution in a sight- or short-term deposit account denominated in euro.
3. The amount of the deposit shall be fixed according to the usual trade terms and conditions.
4. The provision of such security shall be obligatory where the value of the contract concerned equals or exceeds the thresholds set out in the Council Directives on public procurement procedures.
5. This security may be replaced by a joint and several personal guarantee given by a third party approved by the accounting officer. The guarantee shall, in principle, be denominated in euro and must comply with the same rules as the guarantee referred to in paragraph 2.
6. Where a contract has not been performed or completion has been late, the Deputy Secretary-General shall ensure that the Member States referred to in Article 25, as well as Iceland and Norway, are adequately compensated in respect of all damages, interests and costs by the deduction of the amount from the deposit, whether this has been lodged directly by the supplier or contractor or by a third party.
The usual supporting documents accompanying the first order to pay drawn up pursuant to a contract requiring the provision of a deposit shall be supplemented by a copy, certified true by the accounting officer, of the receipt issued when the deposit was paid, or by a copy, certified true by the accounting officer, of a declaration from the establishment or third party providing the guarantee.
Deposits shall be repaid, or the guarantees referred to in Article 43 given in place thereof released, by the Deputy Secretary-General in accordance with the provisions of the applicable contract or guarantee, except in cases of non-performance or late performance as referred to in Article 43(6).
CHAPTER VI
Presenting and auditing the accounts
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
