2004/658/CFSP: Council Decision 2004/658/CFSP of 13 September 2004 on the financial provisions applicable to the general budget of the European Defence Agency

In the cases referred to in points (a), (c) and (d) of Article 43(1), the candidates or tenderers shall be excluded from all contracts and grants for a maximum of two years from the time when the infringement is established, as confirmed after an adversarial procedure with the contractor.

The cases referred to in point (e) of Article 43(1) shall be the following:

The contracting authority shall accept, as satisfactory evidence that the candidate or tenderer is not in one of the situations described in points (a), (b) or (e) of Article 43(1), 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 shall accept, as satisfactory evidence that the candidate or tenderer is not in the situation described in point (d) of Article 43(1), a recent certificate issued by the competent authority of the country concerned.

Depending on the national legislation of the country in which the tenderer or candidate is established, the documents referred to in paragraphs 1 and 2 shall relate to legal persons and/or natural persons including, where considered necessary by the contracting authority, company directors or any person with powers of representation, decision-making or control in relation to the candidate or tenderer.

The Agency shall draw up clear and non-discriminatory selection criteria.

The following selection criteria shall apply in every procurement procedure:

Any tenderer or candidate may be asked to prove that he is authorised to perform the contract under national law, as evidenced by inclusion in a trade or professional register, or a sworn declaration or certificate, membership of a specific organisation, express authorisation, or entry in the VAT register.

The Agency shall specify in the contract notice or in the call for expressions of interest or the invitation to submit a tender, the references chosen to test the status and the legal capacity of tenderers or candidates.

The information requested by the contracting authority as proof of the financial, economic, technical and professional capacity of the candidate or tenderer may not go beyond the subject of the contract and shall take account of the legitimate interests of the economic operators as regards in particular the protection of the firm's technical and business secrets.

Proof of economic and financial capacity may be furnished by one or more of the following documents:

If, for some exceptional reason which the contracting authority considers justified, the tenderer or candidate is unable to provide the references requested by the contracting authority, he may prove his economic and financial capacity by any other means which the contracting authority considers appropriate.

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 must in that case prove to the contracting authority that it will have at its disposal the resources necessary for performance of the contract, for example by producing an undertaking on the part of those entities to place those resources at its disposal.

The technical and professional capacity of economic operators shall be evaluated and verified in accordance with paragraphs 2 and 3. In procurement procedures for supplies requiring siting or installation operations, services and/or works, such capacity shall be assessed with regard in particular to their know-how, efficiency, experience and reliability.

Evidence of the technical and professional capacity of service provider or contractor may, depending on the nature, quantity or scale and purpose of the supplies, services or works to be provided, be furnished on the basis of the following documents:

Where the services or products to be supplied are complex or, exceptionally, are required for a special purpose, evidence of technical and professional capacity may be secured 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 contractor is established, subject to that body's agreement. Such checks shall concern the service provider or contractor's technical capacity and production capacity and, if necessary, its study and research facilities and quality control measures.

The service provider or contractor 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 performance of the contract, for example by producing an undertaking on the part of those entities to place those resources at its disposal.

Contracts shall be awarded in one of the following two ways:

The tender offering the best value for money shall be the one with the best price-quality ratio, taking into account criteria justified by the subject of the contract such as the price quoted, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, profitability, completion or delivery times, after-sales service and technical assistance.

The contracting authority shall specify, in the contract notice or in the specifications, the weighting it will apply to each of the criteria for determining best value for money.

If, for a given contract, tenders appear to be abnormally low, the contracting authority shall, before rejecting such tenders on that ground alone, request in writing details of the constituent elements of the tender which it considers relevant and shall verify those constituent elements, after due hearing of the parties, taking account of the explanations received.

Where the contracting authority establishes that a tender is abnormally low as a result of State aid provided, it may reject the tender on that ground alone only if the tenderer is unable to prove, within a reasonable time determined by the contracting authority, that the aid in question has been awarded definitively and in accordance with the procedures and decisions specified in the Community rules on State aid.

The time limits for the receipt of tenders and requests to participate, laid down in calendar days by the Agency, shall be long enough to allow interested parties a reasonable and appropriate period to prepare and submit their tenders, taking particular account of the complexity of the contract or the need to visit the site or consult on the spot the documents annexed to the specifications.

In open procedures, the time limit for receipt of tenders shall be no less than 52 days from the date on which the contract notice is dispatched.

In restricted and negotiated procedures where a contract notice is published, the time limit for receipt of requests to participate shall be no less than 37 days from the date on which the contract notice is dispatched.

Where the Agency, in accordance with Article 55, have sent for publication a pre-information notice containing all the information required in the contract notice no less than 52 days and no more than 12 months before the date on which the contract notice is dispatched, the time-limit for the receipt of tenders may generally be reduced to 36 days but shall in no circumstances be less than 22 days from the date of dispatch of the contract notice, in the case of open procedures, or may be reduced to 26 days from the date of dispatch of the invitation to submit a tender, in the case of restricted procedures.

Provided that the request was made in good time before the deadline for submission of tenders, the specifications and additional documents shall be sent, within six calendar days of the receipt of the request, to all economic operators who have requested the specifications or expressed interest in submitting a tender.

Provided it has been requested in good time, additional information relating to the specifications shall be supplied simultaneously to all economic operators who have requested the specifications or expressed interest in submitting a tender no later than six days before the deadline for the receipt of tenders or, in the case of requests for information received less than eight calendar days before the deadline for receipt of tenders, as soon as possible after receipt of the request.

If, for whatever reason, the specifications and the additional documents or information cannot be supplied within the time-limits set in paragraphs 1 and 2, or where tenders can be made only after a visit to the site or after on-the-spot consultation of the documents annexed to the specifications, the time-limits for receipt of tenders referred to in Article 79 shall be extended to enable all economic operators to acquaint themselves with all the requisite information for preparing tenders. That extension shall be advertised in appropriate manner, in accordance with Articles 55 to 58.

If all the invitation to tender documents are freely, fully and directly accessible by electronic means, the contract notice referred to in Article 55(3) shall give the Internet address at which those documents can be consulted.

Where duly substantiated urgency renders impracticable the time-limits laid down in Article 79(3), the Agency may set the following time limits, expressed in calendar days:

Provided it has been requested in good time, additional information on the specifications shall be communicated to all candidates no later than four calendar days before the deadline for receipt of tenders.

Requests to participate shall be submitted by letter, fax or electronic mail; requests submitted by fax or electronic mail shall be confirmed by letter before expiry of the time-limits set in Article 79.

Tenderers may submit tenders:

In order to maintain secrecy and to avoid any difficulties where tenders are sent by post, the invitation to tender must include the following provision:

All requests to participate and tenders that satisfy the requirements of Article 82(1) and (2) shall be opened.

Where the value of a contract exceeds the threshold laid down in Article 66(2), the authorising officer responsible shall appoint a committee to open the tenders.

One or more members of the opening committee shall initial the documents proving the date and time of despatch of each tender.

All requests to participate and tenders declared as satisfying the requirements shall be evaluated and ranked by an evaluation committee on the basis of the exclusion, selection and award criteria announced in advance.

The evaluation committee shall be made up of at least three persons representing at least two organisational entities of the Agency concerned with no hierarchical link between them. Those persons shall avoid any conflict of interests. The evaluation committee may be composed of the same members as the committee opening the tenders.

Requests to participate and tenders which do not satisfy all the essential requirements set out in the supporting documentation for invitations to tender or the specific requirements laid down therein shall be eliminated.

In the case of abnormally low tenders referred to in Article 78, the evaluation committee shall request any relevant information concerning the composition of the tender.

An external audit of the expenditure and revenue administered by the Agency shall be carried out following the end of each financial year.

Moreover, the Steering Board, on the basis of a proposal by the Chief Executive or a Member State, may at any time appoint external auditors, whose tasks and conditions of employment it shall determine.

With a view to external audits, a six-member college of auditors shall be established. Each year the Steering Board shall appoint two members for a non-renewable three years period, from candidates proposed by the Member States. The candidates must be members of a national audit body in a Member State and offer adequate guarantees of security and independence. They shall be available to carry out tasks on behalf of the Agency as needed. In carrying out these tasks:

Each year, the College of Auditors shall elect its chairman for the forthcoming financial year. It shall adopt the rules applicable to audits carried out by its members in accordance with the highest international standards. The College of Auditors shall approve the audit reports drawn up by its members before their transmission to the Chief Executive and to the Steering Board.

The persons responsible for auditing the Agency's revenue and expenditure shall, before carrying out their task, have received clearance for access to classified information up to at least ‘secret UE’ level held by the Council, or equivalent clearance from a Member State, as appropriate. Those persons shall ensure that they respect the confidentiality of the information and protect the data of which they acquire knowledge during their audit task, in accordance with the rules applicable to that information and data.

The persons responsible for auditing the Agency's revenue and expenditure shall have access without delay and without giving prior notice to the documents and to the contents of all data supports relating to that revenue and expenditure, and to the premises where those documents and supports are kept. They may make copies. The persons involved in implementing the Agency's revenue and expenditure shall give the Chief Executive and the persons responsible for the audit of that expenditure the necessary assistance in performing their task. The cost of the audits carried out by auditors shall be charged to the Agency's general budget.

By 31 March following the end of the financial year, the Chief Executive, with the assistance of the accounting officer, shall draw up and submit to the College of Auditors, for examination and opinion, the draft annual management accounts, the draft annual balance sheet and a draft activity report.

The annual management accounts shall show for each budget administered by the Agency appropriations, expenditure committed and paid, as well as miscellaneous revenue and revenue from Member States and other parties. The balance sheet shall show as assets all the assets belonging to the Agency, taking account of their depreciation and any losses or decommissioning, and shall show its reserves as liabilities.

The College of auditors shall give its opinion and observations on the documents referred to in paragraph 2 by 15 June following the end of the financial year.

By 31 July following the end of the financial year, the Chief Executive shall submit the documents referred to in paragraph 2, with the College of Auditors' opinion and observations accompanied by his replies, to the Steering Board.

The Steering Board shall approve the annual management accounts and the balance sheets. It shall grant a discharge to the Chief Executive and the accounting officer for the financial year in question.

The annual management accounts and the annual balance sheet, when approved, shall be published in the Official Journal of the European Union.

All accounts and inventories shall be retained by the accounting officer for a period of five years from the date on which the corresponding discharge was granted.

The balance from each financial year shall be entered in the budget for the following financial year as revenue in the case of a surplus or as a payment appropriation in the case of a deficit.

The estimates of such revenue or payment appropriations shall be entered in the budget for the following year during the annual budgetary procedure.

After the accounts for each financial year have been approved, any discrepancy with the estimates shall be entered in the budget for the following year through an amending budget.