Contents
THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty on the Functioning of the European Union, and in particular Article 91 and Article 100(2), in conjunction with Article 218(9) thereof,Having regard to the proposal from the European Commission,Whereas:
(1)The Treaty establishing the Transport Community (the ‘TCT’) was signed by the Union in accordance with Council Decision (EU) 2017/1937note.
(2)The TCT was approved on behalf of the Union on 4 March 2019note and entered into force on 1 May 2019.
(3)The Regional Steering Committee was established by the TCT for the administration and the proper implementation of the TCT. The TCT requires the Regional Steering Committee to adopt rules on the implementation of the budget and for presenting and auditing accounts.
(4)The Regional Steering Committee is soon to adopt decisions on the revision of financial rules and auditing procedures applicable to the Transport Community.
(5)It is appropriate to establish the position to be taken on behalf of the Union within the Regional Steering Committee, as such decisions are necessary for the good functioning of the Permanent Secretariat of the Transport Community, and will be binding upon the Union,
HAS ADOPTED THIS DECISION:
Article 1#
The position to be taken on behalf of the Union in the Regional Steering Committee of the Transport Community as regards the revision of the financial rules applicable to the Transport Community shall be based on the draft decision of the Regional Steering Committee attached to this Decision.Minor changes to the draft decision may be agreed to by the representatives of the Union within the Regional Steering Committee without a further decision by the Council.
To the financial rules and auditing procedures applicable to the transport community
1. Preamble
The present Annex shall apply to the Permanent Secretariat of the Transport Community (‘the Secretariat’) when procuring goods, works or services on its own account below the threshold set out in Directive 2014/24/EU of the European Parliament and of the Council. It does not cover operations such as staff recruitment, to which different rules apply.
2. Section 1
2.1. Scope and principles applicable to contracts
—‘services’, which cover all intellectual and non-intellectual services other than those covered by supply contracts, works contracts and buildings contracts;
—‘supplies’, which cover the purchase, leasing, rental or hire purchase, with or without option to buy, of goods (also including siting, installation and maintenance); and,
—‘works’, which cover either the building, or the design and building, of works corresponding to the requirements specified by the Secretariat. A “work” means the outcome of building or civil engineering works taken as a whole that is sufficient of itself to fulfil an economic or technical function.;
All procurement procedures concluded by the Secretariat on its own account must comply with the budgetary principles of transparency, proportionality, equal treatment and non-discrimination as well as sound financial management. This shall ensure fair competition between economic operators.
Contracts shall be planned on the basis of clearly defined objectives which shall support fulfilling the objectives of the Transport Community Treaty (the ‘Treaty’) and of the bodies established thereunder, as well as to allow the Secretariat to fulfil its mandate as per Article 28 of the Treaty.
The estimated value of a contract shall neither be determined with a view to circumventing the applicable rules, nor shall a contract be split up for that purpose.
The Secretariat shall divide a contract into lots, whenever appropriate, with due regard to broad competition.
The Secretariat shall not use framework contracts improperly or in such a way that their purpose or effect is to prevent, restrict or distort competition.
In general, participation in procurement procedures is open to all natural persons who are nationals of, and all legal persons who are effectively established in a Member State of the European Union, a Member State of the European Economic Area or a South East European signing party of the Treaty. Natural persons who are nationals of, and all legal persons established in, a third country which has a special agreement with the Union in the field of procurement can participate in a procurement procedure under the conditions laid down in such an agreement. Participation is also open to international organisations.
All stages of each procurement procedure shall be properly documented and reported in writing for each procurement file, in order to ensure transparency and auditability.
The Secretariat is not legally bound vis-à-vis an economic operator until the contract is signed. This shall be made clear in all contacts with economic operators. Up to the time of signature, the Secretariat may cancel the procedure without the tenderers being entitled to any compensation. Reasons must be given for the decision and the tenderers must be notified in writing within 15 days from the day when the decision was made.
The tasks entrusted to contractors may not involve exercising public authority powers or budgetary implementation tasks.
Procurement procedures below the threshold set out in Directive 2014/24/EU may be used for the following types of purchase:
3. Section 2
3.1. Framework contracts and publicity
3.1.1. Framework contracts and specific contracts
A framework contract (FWC) is concluded between the contracting authority and one or more economic operators to lay down the basic terms for a series of specific contracts to be concluded over a given period, particularly the duration, subject, price, implementing conditions and quantities envisaged. Signing a FWC does not commit the authorising officer to purchasing.
3.1.2. Advertising of procedures for contracts with a value below the thresholds referred to in Article 49 of the Treaty Financial Rules and forms of advertising
Contracts of a value exceeding EUR 20000 and below the thresholds referred to in Directive 2014/24/EU shall be deemed of middle value. The Secretariat shall apply a simplified tender procedure and at least five candidates/tenderers must be invited. Request for expression of interest shall be published on the website of the Secretariat, at least one month before the launch of the procurement procedure envisaged.
A contract of a value equal to or below EUR 20000 shall be deemed of low value. A simplified tender procedure shall be applied and the Secretariat must invite at least three candidates/tenderers of its choice. Ex ante publicity stated in point 3.1.2 is not mandatory.
Payments of amounts not exceeding EUR 2500 in respect of items of expenditure may be carried out simply as payment against invoices, without prior acceptance of a tender.
By 31 March every year, the Secretariat shall publish on its website a procurement plan containing the list of planned procurements for the current year of a value exceeding EUR 20000, containing: the subject, estimated value and estimated launching time.
4. Section 3
4.1. Middle and low value procurement procedures
4.1.1. Preliminary market consultation
The contracting authority may conduct a preliminary market analysis with a view to preparing the procurement procedure.
4.1.2. Procurement documents
(a)if applicable, the ex-ante publicity;
(b)the invitation to tender;
(c)the tender specifications, including technical specification and the relevant criteria;
(d)the draft contract.
The procurement documents shall consist, as a minimum, of:
In the procurement documents, the Secretariat shall identify the subject matter of the procurement procedure by providing a description of their needs and the characteristics of the works, supplies or services to be acquired. These documents must contain all the provisions and information that candidates need in order to submit a tender: the procedure to follow, the documents to provide, the exclusion, selection and award criteria as well as the duration and the estimated value of the contract. The Secretariat shall also indicate which elements define the minimum requirements to be met by all tenders. Minimum requirements shall include compliance with applicable environmental, social and labour law obligations established by Union law, national law, collective agreements or the applicable international social and environmental conventions listed in Annex X to Directive 2014/24/EU.
The three documents mentioned above (b to d) may be sent by e-mail to the prospective candidates/tenderers.
4.1.3. Invitation to tender
(a)specify the rules governing the submission of tenders, including in particular the conditions to maintain them confidential until opening, the closing date and time for receipt and the address to which they are to be sent or delivered or the internet address in case of electronic submission;
(b)state that submission of a tender implies acceptance of the terms and conditions set out in the procurement documents and that such submission binds the contractor to whom the contract is awarded during performance of the contract;
(c)specify the period during which a tender will remain valid and shall not be modified in any respect;
(d)forbid any contact between the contracting authority and the tenderer during the procedure, save, exceptionally, under the conditions laid down in the procurement documents, and, where provision is made for an on-the-spot visit, specify the arrangements for such a visit;
(e)specify the means of proof for compliance with the time limit for receipt of tenders; and,
(f)state that submission of a tender implies acceptance of receiving notification of the outcome of the procedure by electronic means.
An invitation to tender shall:
4.1.4. Tender specifications
(a)the exclusion and selection criteria;
(b)the award criteria and their relative weighting or, where weighting is not possible for objective reasons, their decreasing order of importance, which shall also apply to variants if they are authorised in the contract notice;
(c)the technical specifications referred to in point 4.1.6; and,
(d)the requirement to indicate in which country the tenderers are established and to present the supporting evidence normally acceptable under the law of that country.
Tender specifications shall contain the following:
4.1.5. Draft Contract
(a)data on the contracting parties;
(b)the subject matter of the procurement;
(c)duration;
(d)the terms of payment;
(e)guarantee requirements (if applicable);
(f)data protection;
(g)intellectual property rights;
(h)the law applicable to the contract and the competent court for hearing disputes.
The draft contract shall contain at least:
4.1.6. Technical specifications
(a)the exclusion and selection criteria;
(b)the award criteria;
(c)the evidence of access to procurement;
(d)the subject matter of the procurement procedure;
(e)background information;
(f)type of tasks;
(g)scope of work;
(h)duration and expected results;
(i)assumption and risks;
(j)logistics and timing;
(k)requirements; and
(l)reports and monitoring of the contract.
The technical specifications shall be comprehensive, clear and precise and shall not have the effect of creating unjustified obstacles to competitive tendering. They shall define (lot by lot where appropriate) the characteristics required of supplies, services or works, taking into account the purpose for which they are intended by the Secretariat. They shall be proportionate to the objective and/or to the budget for the required services, supplies and works.
The technical specifications shall not refer to or describing product of a given brands or origins, and they may not have the effect of creating unjustified obstacle to competitive tendering.
The technical specifications shall include as minimum:
The technical specifications shall serve as the contractor’s mandate during contract implementation. They shall be included as an annex to the resulting contract.
4.1.7. Exclusion criteria
These criteria are applicable in all procurement procedures and must be announced. No modification of the criteria is allowed during the procedure.
The purpose of the exclusion criteria is to determine whether an operator is allowed to participate in the procurement procedure or to be awarded the contract. Potential tenderers are obliged to declare that they are not in one of the exclusion situations through a declaration on honour, signed and dated. To this aim, a template for the declaration on honour must be provided by the Secretariat.
Article 136(1) and Article 137, paragraphs 1 to 4 of Regulation (EU, Euratom) 2018/1046, on exclusion criteria and decision on exclusions, and declaration and evidence of absence of an exclusion situation, shall apply.
Exclusion criteria are verified on a pass/fail basis on the appropriate required evidence.
4.1.8. Selection criteria
4.1.8.1.The purpose of the selection criteria is to determine whether a tenderer has the capacity necessary to implement the contract. To this end, the selection criteria must be clear, non-discriminatory, appropriate and proportionate to the subject matter and value of the contract. The Secretariat shall also make sure that it imposes criteria that can be easily verified.
4.1.8.10.Where the contracting authority decides not to require evidence of the legal, regulatory, financial, economic, technical and professional capacity of economic operators, no pre-financing shall be made except in duly justified cases.
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.
4.1.8.2.The contracting authority shall indicate in the procurement documents the selection criteria, the minimum levels of capacity and the evidence required to prove that capacity. All requirements shall be related and proportionate to the subject matter of the contract.
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.
4.1.8.3.The contracting authority shall specify in the procurement documents how groups of economic operators are to meet the selection criteria.
4.1.8.4.Where a contract is divided into lots, the contracting authority may set minimum levels of capacity for each lot. It may set additional minimum levels of capacity in the event that several lots are awarded to the same contractor.
4.1.8.5.With regard to capacity to pursue the professional activity, the contracting authority may require an economic operator to fulfil at least one of the following conditions:
(a)be enrolled in a relevant professional or trade register, except when the economic operator is an international organisation;
(b)for service contracts, hold a particular authorisation proving that it is authorised to perform the contract in its country of establishment or be a member of a specific professional organisation.
4.1.8.6.When receiving requests to participate or tenders, the contracting authority shall accept a declaration on honour stating that the candidate or tenderer fulfils the selection criteria.
4.1.8.7.The contracting authority may ask tenderers and candidates at any moment during the procedure to submit an updated declaration or all or part of the supporting documents where this is necessary to ensure the proper conduct of the procedure.
4.1.8.8.The contracting authority shall require the candidates or successful tenderers to submit up-to-date supporting documents except where it has already received them for the purpose of another procedure and provided that the documents are still up-to-date or it can access them in a national database free of charge.
4.1.8.9.The contracting authority may, depending on its assessment of risks, decide not to require evidence of the legal, regulatory, financial, economic, technical and professional capacity of economic operators in the procedures for contracts awarded with a value not exceeding the thresholds referred to in 3.1.2.
4.1.9. Economic and financial capacity
(a)economic operators have a certain minimum yearly turnover, including certain minimum turnover in the area covered by the contract;
(a)appropriate statements from banks or, where appropriate, evidence of relevant professional risk indemnity insurance;
(b)economic operators provide information on their annual accounts showing ratios between assets and liability; and
(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)economic operators provide an appropriate level of professional risk indemnity insurance.
(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.
To ensure that economic operators possess the necessary economic and financial capacity to perform the contract, the contracting authority may require in particular that:
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:
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
(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;
2.the works carried out in the last five years, accompanied by certificates of satisfactory execution for the most important works;
3.a statement of the technical equipment, tools or the plant available to the economic operator for performing a service or works contract;
4.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;
5.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.
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:
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.
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