Procurement with support by the Commission
Article 28
1. By way of derogation from Article 168(2), second subparagraph, of the Financial Regulation, Ukraine may request, together with at least one Member State, the Commission to engage in joint procurement as referred to in Article 168(2) of the Financial Regulation, whereby Member States and Ukraine may acquire, rent or lease fully the defence products jointly procured. The other conditions set out in Article 168(2) of the Financial Regulation shall apply to such joint procurement. 2. By way of derogation from Article 168(3) of the Financial Regulation, Ukraine may request, together with at least one Member State, the Commission to act as a central purchasing body as referred to in Article 168(3) of the Financial Regulation to procure defence products on their behalf or in their name. Conditions equivalent to those set out in Article 168(3) of the Financial Regulation shall apply wherever the Commission acts as a central purchasing body. 3. When requesting the Commission to act in accordance with paragraph 1 of this Article, Member States’ contracting authorities shall be deemed to have complied with the requirements laid down in Directive 2009/81/EC. 4. In addition to the conditions set out in the Financial Regulation, the procurement procedure referred to in paragraphs 1 and 2 of this Article shall also comply with the following conditions: (a) participation in the procurement procedure is open to all Member States; (b) the Commission invites at least one expert with experience relevant to the negotiations from each participating country to form a joint negotiation team; (c) participating countries explicitly state whether they decide to run parallel negotiation processes for the product concerned, with that decision being subject to unanimous approval by participating countries. 5. Where the Commission acts as a central purchasing body pursuant to paragraph 2, it may, as part of the procurement, procure components and raw materials necessary for the supply of defence products for the purpose of building strategic reserves by participating countries, including stockpiling. 6. Where duly justified by the extreme urgency of the situation, the Commission may, by way of derogation from Article 175(1) of the Financial Regulation, request the delivery of products from the date on which the draft contracts resulting from the procurement carried out for the purposes of this Regulation are sent. 7. In order to enter into purchase agreements with economic operators, representatives of the Commission, or experts nominated by the Commission, may carry out on-site visits in cooperation with relevant national authorities at the locations of production facilities of relevant defence products. 8. This Article shall be without prejudice to existing Union and national rules governing the ownership, export and transfer of defence products. 9. The Commission shall ensure that participating countries are treated equally when carrying out the procurement procedures and when implementing the resulting agreements. 10. In addition to the conditions set out in the Financial Regulation, criteria equivalent to those laid down in Article 26(1), (3) and (4) of this Regulation shall also apply to tenderers, contractors and subcontractors in contracts resulting from the procurement conducted pursuant to this Article. 11. For procurement conducted pursuant to paragraph 1 of this Article, the rules set out in Article 27(3) and (5) shall apply.