Decision (EU) 2016/245 of the European Central Bank of 9 February 2016 laying down the rules on procurement (recast) (ECB/2016/2)

The ECB shall specify in the contract notice the documents to be submitted by candidates or tenderers as proof of their financial, economic, technical and professional capacity. It may require, in particular, submission of a European Single Procurement Document as specified in Article 59 of Directive 2014/24/EU, documents held in eCertis, or certificates issued by national databases of approved suppliers. The documentation requested shall not go beyond the subject of the contract and shall take account of the legitimate interests of the suppliers as regards in particular the protection of their technical and business secrets.

If, for some exceptional reason which the ECB considers justified, a tenderer or candidate is unable to provide the documents requested, it may prove its capacity by any other means which the ECB considers appropriate and equivalent.

A supplier may, where appropriate and for a particular contract, rely on the capacities of another entity, regardless of the legal nature of the links which it has with them. It shall in that case prove to the ECB that it will have the resources necessary for performance of the contract at its disposal, and that the entity itself is eligible to participate in tender procedures in accordance with Article 30. Under the same conditions, a temporary grouping of suppliers may rely on the capacities of participants in the group.

The ECB shall award the contract to the tenderer that submitted the most economically advantageous tender.

Unless otherwise provided in this Decision, the most economically advantageous tender is identified on the basis of one of the following options:

The price or cost element shall, to the extent relevant, take account of life-cycle costs such as costs relating to acquisition, use, maintenance and end-of-life of products, works and services. Costs relating to environmental externalities linked to products, works and services during their life cycle may also be considered. Prices and costs shall be considered only if they can be determined and verified.

The best price-quality ratio shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects linked to the subject matter of the contract, such as:

All of the award criteria shall be linked to the subject matter of the contract which may include the different stages involved in the life cycle of the products, works or services tendered such as the processes of production, provision or trading thereof.

The contract notice or the invitation to tender or, in the case of a competitive dialogue, the request for a proposal, shall specify how the most economically advantageous tender shall be identified pursuant to paragraph 2.

The ECB shall request in writing explanations of prices or costs proposed in tenders that appear to be abnormally low in relation to the products, works or services tendered. The request may relate in particular to:

Following a review of the information submitted by the tenderer, the ECB may reject abnormally low tenders, in particular in the following cases:

The ECB shall reject tenders that are abnormally low due to breaches of any of the provisions referred to in paragraph 1(d).

The ECB shall notify its decision in writing and without undue delay to all candidates or tenderers whose applications or tenders are rejected.

The notification of the award decision shall be sent at least 10 days prior to the signature of the contract by the ECB if the notification is sent by fax or electronic means, or at least 15 days prior to the signature of the contract if other means of communication are used (‘standstill period’). The ECB shall not sign the contract with the successful tenderer until this standstill period has elapsed.

The ECB shall notify all concerned candidates or concerned tenderers whose applications or tenders are rejected of the reasons for rejecting their application or tender as well as the duration of the standstill period referred to in paragraph 2. The ECB shall notify any unsuccessful tenderer that has made an admissible tender, and who makes a request in writing, of the name of the successful tenderer as well as the characteristics and relative advantages of the successful tender.

The ECB may decide to withhold certain information where its release would affect other suppliers' legitimate commercial interests, would hinder the application of the law, might prejudice fair competition between suppliers or would otherwise be contrary to the public interest.

The ECB shall publish a contract award notice in line with the requirements of Directive 2014/24/EU in the Official Journal. The notice shall be sent to the Official Journal within 30 days following signature of the contract.

Following the award decision, the ECB shall inform the tenderers in writing and without undue delay of the results of the tender procedure.

Tenderers may, within 15 days of receipt of the notification, request the ECB to provide the reasons for rejecting their tender.

The ECB shall publish annually a list of contracts with a value in excess of EUR 50 000 that were awarded in accordance with Article 35 or subject to an exception in accordance with Article 6(1). The list shall specify the names of the contractors to whom contracts were awarded, the subject matter and the value of the contracts. For contracts covered by Article 6(2) whose value exceeds EUR 750 000 , the ECB shall publish a contract award notice in the Official Journal.

The ECB may cancel a tender procedure at any time before the contract is signed without the candidates or tenderers being entitled to any compensation.

The ECB's decision to cancel shall comply with the general principles set out in Article 3(1).

The ECB shall substantiate the decision and bring it to the attention of the candidates or tenderers.

In public tender procedures under Chapter II, candidates and tenderers may challenge in writing the ECB’s decision to reject their application or tender within 10 days of receipt of the notification in accordance with Article 34(1) or the first sentence of Article 34(3). The appeal shall include all supporting information and reasoned objections with the exception of any objections which are precluded in accordance with Article 28(2).

The appeal shall be addressed by the ECB's Procurement Review Body (PRB). If the PRB considers that the decision to reject the appellant's application or tender infringes this Decision or general principles of procurement law it shall either order that the tender procedure or parts of it are repeated or take a final decision. Otherwise the appeal shall be rejected. The PRB shall notify the appellant in writing of its decision within 1 month following the receipt of the appeal. The decision shall state the reasons on which it is based.

The appeal shall have suspensive effect in relation to the award of the contract.

If the appeal is rejected, an additional standstill period of at least 10 days prior to the signature of the contract by the ECB if the notification is sent by fax or electronic means, or at least 15 days prior to the signature of the contract if other means of communication are used, shall apply. The PRB shall notify the appellant about the duration of the standstill period.

This Decision shall enter into force on 15 April 2016 and shall repeal and replace Decision ECB/2007/5.

Tender procedures that were started before the entry into force of this Decision shall be completed in accordance with Decision ECB/2007/5. For the purpose of this provision a tender procedure is deemed to be started on the day on which the contract notice was sent to the Official Journal or, in cases where no such notice is required, on the day when the ECB invited one or more suppliers to submit a tender or a proposal.

References to the repealed Decision shall be construed as references to this Decision and be read in accordance with the correlation table set out in Annex II.