Council Decision (EU) 2022/2409 of 5 December 2022 as regards the revision of the financial rules for the Transport Community

4.1.8.11.

An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It shall in that case prove to the contracting authority that it will have at its disposal the resources necessary for the performance of the contract by producing a commitment by those entities to that effect.

4.1.8.12.

With regard to technical and professional criteria, an economic operator shall only rely on the capacities of other entities where the latter will perform the works or services for which those capacities are required.

4.1.8.13.

Where an economic operator relies on the capacities of other entities with regard to criteria relating to economic and financial capacity, the contracting authority may require that the economic operator and those entities be jointly liable for the performance of the contract.

4.1.8.14.

The contracting authority may request information from the tenderer on any part of the contract that the tenderer intends to subcontract and on the identity of any subcontractors.

4.1.8.15.

For works or services provided at a facility directly under the oversight of the contracting authority, the contracting authority shall require the contractor to indicate the names, contacts and authorised representatives of all subcontractors involved in the performance of the contract, including any changes of subcontractors.

4.1.8.16.

The contracting authority shall verify whether the entities on whose capacity the economic operator intends to rely and the envisaged subcontractors, when subcontracting represents a significant part of the contract, fulfil the relevant selection criteria. The contracting authority shall require that the economic operator replaces an entity or subcontractor which does not meet a relevant selection criterion.

4.1.8.17.

In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, the contracting authority may require that certain critical tasks be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators, a participant in the group.

4.1.8.18.

The contracting authority shall not demand that a group of economic operators have a given legal form in order to submit a tender or request to participate, but the selected group may be required to adopt a given legal form after it has been awarded the contract if such change is necessary for the proper performance of the contract.

4.1.8.19.

Selection criteria are verified on a pass/fail basis.

4.1.8.20.

The selection criteria remain applicable throughout the whole performance of the contract, i.e. the contractor must comply with these criteria at all times.

4.1.9.

Economic and financial capacity

To ensure that economic operators possess the necessary economic and financial capacity to perform the contract, the contracting authority may require in particular that:

(a) economic operators have a certain minimum yearly turnover, including certain minimum turnover in the area covered by the contract;

(b) economic operators provide information on their annual accounts showing ratios between assets and liability; and

(c) economic operators provide an appropriate level of professional risk indemnity insurance.

For the purposes of the first subparagraph, point (a), the minimum yearly turnover shall not exceed two times the estimated annual contract value, except in duly justified cases linked to the nature of the purchase, which the contracting authority shall explain in the procurement documents.

For the purposes of the first subparagraph, point (b), the contracting authority shall explain the methods and criteria for such ratios in the procurement documents.

The contracting authority shall define in the procurement documents the evidence to be provided by an economic operator to demonstrate its economic and financial capacity. It may request in particular one or more of the following documents:

(a) appropriate statements from banks or, where appropriate, evidence of relevant professional risk indemnity insurance;

(b) financial statements or their extracts for a period equal to or less than the last three financial years for which accounts have been closed;

(c) a statement of the economic operator’s overall turnover and, where appropriate, turnover in the area covered by the contract for a maximum of the last three financial years available.

If, for any valid reason, the economic operator is unable to provide the references requested by the contracting authority, it may prove its economic and financial capacity by any other document which the contracting authority considers appropriate

4.1.10.

Technical and professional capacity

The contracting authority shall verify that candidates or tenderers fulfil the minimum selection criteria concerning technical and professional capacity in accordance with the following paragraphs.

The contracting authority shall define in the procurement documents the evidence to be provided by an economic operator to demonstrate its technical and professional capacity. It may request one or more of the following documents:

(a) for works:

(i) supplies requiring siting or installation operations or services, information on the educational and professional qualifications, skills, experience and expertise of the persons responsible for performance, a list of the following:

1. the principal services provided and supplies delivered in the past three years, with the sums, dates and clients, public or private accompanied upon request by statements issued by the clients;

1. the works carried out in the last five years, accompanied by certificates of satisfactory execution for the most important works;

1. a statement of the technical equipment, tools or the plant available to the economic operator for performing a service or works contract;

1. a description of the technical facilities and means available to the economic operator for ensuring quality, and a description of available study and research facilities;

1. a reference to the technicians or technical bodies available to the economic operator, whether or not belonging directly to it, especially those responsible for quality control;

(b) for μsupplies:

(i) samples, descriptions or authentic photographs or certificates drawn up by official quality control institutes or agencies of recognised competence attesting the conformity of the products clearly identified by references to technical specifications or standards;

(c) for woμrks or services:

(i) a statement of the average annual manpower and the number of managerial staff of the economic operator for the last three years;

(ii) an indication of the supply chain management and tracking systems that the economic operator will be able to apply when performing the contract;

(iii) an indication of the environmental management measures that the economic operator will be able to apply when performing the contract.

For the purposes of points a) and b), where necessary in order to ensure an adequate level of competition, the contracting authority may indicate that evidence of relevant supplies or services delivered or performed more than three years before will be taken into account.

For the purposes of point c), where necessary in order to ensure an adequate level of competition, the contracting authority may indicate that evidence of relevant works delivered or performed more than five years before will be taken into account.

A contracting authority may conclude that an economic operator does not possess the required professional capacity to perform the contract to an appropriate quality standard where the contracting authority has established that the economic operator has conflicting interests which may negatively affect its performance.

4.1.11.

Award criteria

The purpose of the award criteria is to evaluate the technical and financial offer with a view to choosing the most economically advantageous tender which consists in lowest price or best price-quality ratio after verifying that the tender complies with the minimum requirements of the procurement documents.

The Secretariat shall announce in the tender document show each criteria will be assessed, the relative importance of each of the quality award criteria and of the price (if a weighting formula between quality and price is applied).

Quality criteria may include elements such as technical merit, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics, production, provision and trading process and any other specific process at any stage of the life cycle of the works, supplies or services, organisation of the staff assigned to performing the contract, after-sales service, technical assistance or delivery conditions such as delivery date, delivery process and delivery period or period of completion.

The contracting authority shall specify in the procurement documents the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender except when using the lowest price method. Those weightings may be expressed as a range with an appropriate maximum spread.

The weighting applied to price or cost in relation to the other criteria shall not result in the neutralisation of price or cost.

If weighting is not possible for objective reasons, the contracting authority shall indicate the criteria in decreasing order of importance.

The contracting authority may lay down minimum levels of quality. Tenders below those levels of quality shall be rejected.

4.1.12.

Time limits

Time limits for receipt of tenders

The time-limit for receipt of tenders for low value contract shall be minimum 10 calendar days counting from the day after the dispatch of the invitation to tender to the potential tenderers.

The time-limit for receipt of tenders for middle value contract shall be minimum 15 calendar days counting from the day after the dispatch of the invitation to tender to the potential tenderers.

Time limits in urgent cases

In the case of urgency, if properly justified and documented, the minimum deadline can be reduced.

4.1.13.

Opening of tenders

The authorising officer shall decide about the appropriate organisation of the opening session by evaluation committee. The person(s) in charge of opening shall verify whether the offers have been received within the deadline.

The procedure shall be still valid if not all invited candidates submit a tender, as long as at least one tender passes all criteria.

Exceptionally, where no tenders or no suitable tenders have been submitted after that initial procedure has been completed, provided that the original procurement documents are not substantially altered, the procedure may be repeated with one invited candidate.

4.1.14.

Evaluation of tenders

Tenders shall be opened and evaluated by an evaluation committee formally and promptly appointed by the authorising officer.

An evaluation committee must be appointed for middle value contracts. For low value contracts, an evaluation committee may be established when there is more than one offer received. There must be a minimum of three evaluators in the evaluation committee.

The content thereof shall be recorded in an evaluation report, which shall be signed by all its members and it should be a separate document to the award decision (it is the basis for feedback to the tenderer). The evaluation report should include conclusion on the awarding the contract.

The tenders must be evaluated in time to allow the procedure to be completed within the validity period of the tenders. Once the evaluation has been completed, the authorising officer may take the award decision.

4.1.15.

Contact with tenderers

A functional mailbox shall be provided where the economic operators may express their interest or ask information on the procurement procedures that have been launched.

Contacts between the Secretariat and potential tenderers are prohibited throughout the procedure except in exceptional circumstances, i.e. during the submission phase.

Contacts with tenderers are allowed during the submission phase, by way of exception, in the following circumstances: at the request of economic operators, the Secretariat may supply additional information solely for the purpose of clarifying the procurement documents; on its own initiative, the Secretariat may inform interested parties if it finds any error, inaccuracy, omission or other clerical error in the procurement documents. If the Secretariat has to correct the procurement documents with a significant change, it shall extend the time limit for receipt of tenders or requests to participate so that tenderers can take these changes into account.

Contacts shall always take place in writing (preferably by electronic means so to guarantee prompt reaction and avoid risk of delays due to issues with postal services).

Any additional information provided at the request of a tenderer and any information provided by the Secretariat on its own initiative must be accessible simultaneously to all tenderers by the same means as for the procurement documents.

The tenderers may request additional information no later than 4 calendar days before the deadline for submission of tenders. The Secretariat shall provide the requested information as soon as possible and no later than 3 calendar days before the deadline for submission of tenders.

If the information is given less than 3 calendar days before the deadline, the Secretariat shall extend the time limit for receipt of tenders.

The Secretariat shall not be bound to reply to requests for additional information made less than 4 calendar days before the deadline for receipt of tenders but may do so if feasible. In case the deadline for receipt of requests for additional information does fall on public holiday, Sunday or Saturday, the period shall end with the expiry of the last hour of the following working day.

In line with good administration, it is obligatory to contact the tenderers to ask for missing information or documents in relation to exclusion or selection criteria or missing signatures. The absence of contact in these cases must be duly justified and documented by a note in the procurement file. However, the request for clarification must not result in alteration of the content or price of the already submitted tender.

4.1.16.

Results of the evaluation and award decision

Following the evaluation, the authorising officer shall decide to whom a contract is to be awarded, in compliance with the selection and award criteria specified in the procurement documents, and sign an award decision.

The Secretariat shall inform the successful tenderer as well as the unsuccessful tenderers of the grounds on which the decision was taken, as well as the duration of the standstill periods referred to in point 4.1.18 of these rules. Afterwards, the authorising officer may sign the contract with the successful tenderer. The successful tenderer shall sign the contract first.

4.1.17.

Information for candidates and tenderers

Contracts between EUR 20001 and the threshold referred to in Directive 2014/24/EU awarded in one financial year shall be published on the Permanent Secretariat of the Transport Community’s website before 30 June of the following year.

4.1.18.

Standstill period before signature of the contract

A standstill period of at least 7 calendar days shall apply to procedures with more than one tenderer. The standstill period shall start from the day after simultaneous dispatch of the notification on outcome of the selection procedure by electronic means to all tenderers (successful and unsuccessful). The authorising officer shall not sign the contract before the end of the standstill period.

Where appropriate, the Secretariat may suspend the signing of the contract for additional examination if justified by the requests or comments made by unsuccessful tenderers during the standstill period or any other relevant information received during that period.

4.1.19.

Cancellation of procurement procedures

The Secretariat may, before the contract is signed, cancel the procedure without the candidates or tenderers being entitled to claim any compensation.

Cancellation is decided when the contract is not awarded (e.g. because no tender was acceptable, no tender complied with the selection criteria or with the technical specifications, no tender reached the minimum quality thresholds, etc.), the needs that triggered the procurement procedure become obsolete (e.g. due to a change in policy priorities) or in case the financing of the expected contract is not secured.

The cancellation decision shall be signed by the authorising officer.

No later than 15 days after the signature of the cancellation decision, the Secretariat shall notify all tenderers in writing (by e-mail or mail) of the reasons for the cancellation.