Changes from plenary report to adopted text

Added(d) contracts awarded in a third country, including for civil purchases, carried out when forces are deployed or are in training outside the territory of the Union where operational needs require them to be concluded with economic operators located in the area of operations;’;

Added▌

Added(7) in Article 25, the second and third paragraphs are replaced by the following:

Added‘Contracting authorities/entities may choose to award contracts by applying the open procedure, the restricted procedure or the negotiated procedure with publication of a contract notice.

AddedUnder the circumstances referred to in Article 27 or 27a, they may award contracts by means of a competitive dialogue or an innovation partnership.’;

Added(8) in Article 27, paragraph 1 is replaced by the following:

Added‘1. In the case of particularly complex contracts, Member States may provide that where contracting authorities/entities consider that use of the open procedure, the restricted procedure or the negotiated procedure with publication of a contract notice will not allow the award of the contract, those contracting authorities/entities may make use of the competitive dialogue in accordance with this Article.

AddedA contract shall be awarded on the sole basis of the award criterion for the most economically advantageous tender.’;

Added(9) the following Article is inserted:

Added‘Article 27a

AddedInnovation partnership

Added1. Any economic operator may submit a request to participate in an innovation partnership following a contract notice by providing the information for qualitative selection that is requested by the contracting authority/entity.

AddedIn the procurement documents, the contracting authority/entity shall identify the need for an innovative product, service or works that cannot be met by purchasing products, services or works already available on the market. It shall indicate which elements of this description represent ▌ the minimum requirements to be met by all tenders. The information provided shall be sufficiently precise to enable economic operators to identify the nature and scope of the required solution and decide whether to request to participate in the procedure.

AddedThe contracting authority/entity may decide to set up the innovation partnership with one partner or with several partners conducting separate research and development activities.

AddedThe minimum time limit for receipt of requests to participate shall be 30 days from the date on which the contract notice is sent. The contracting authority/entity shall assess the information provided by the economic operators and shall invite the suitable candidates to participate in the procedure. Contracting authorities/entities may limit the number of suitable candidates to be invited to participate in the procedure. The contracts shall be awarded on the sole basis of the award criterion of the best price-quality ratio in accordance with Article 47.

Added2. The innovation partnership shall aim at the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works, provided that they correspond to the performance levels and maximum costs agreed between the contracting authorities/entities and the participants.

AddedThe innovation partnership shall be structured in successive phases following the sequence of steps in the research and innovation process, which may include the manufacturing of the products, the provision of the services or the completion of the works. The innovation partnership shall set intermediate targets to be attained by the partners and provide for payment of the remuneration in appropriate instalments.

AddedBased on those targets, the contracting authority/entity may decide after each phase to terminate the innovation partnership or, in the case of an innovation partnership with several partners, to reduce the number of partners by terminating individual contracts, provided that the contracting authority/entity has indicated in the procurement documents those possibilities and the conditions for their use.

Added3. Unless otherwise provided for in this Article, contracting authorities/entities shall negotiate with tenderers the initial and all subsequent tenders submitted by them, except for the final tender, to improve the content thereof.

AddedThe minimum requirements and award criteria shall not be subject to negotiations.

Added4. During the negotiations, contracting authorities/entities shall ensure the equal treatment of and fair competition amongst all tenderers. To that end, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others. They shall inform all tenderers whose tenders have not been eliminated, pursuant to paragraph 5, in writing of any changes to the technical specifications or other procurement documents. Following those changes, contracting authorities/entities shall provide sufficient time for tenderers to modify and re-submit amended tenders, as appropriate.

AddedIn accordance with Article 6, contracting authorities/entities shall not reveal to the other participants confidential information communicated by a candidate or tenderer participating in the negotiations without its agreement. Such agreement shall not take the form of a general waiver but shall be given with reference to the intended communication of specific information.

Added5. Negotiations during innovation partnership procedures may take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria specified in the contract notice, in the invitation to confirm interest or in the procurement documents. In the contract notice, the invitation to confirm interest or in the procurement documents, the contracting authority/entity shall indicate whether it will use that option. Before the end of an ongoing phase the contracting authority/entity may specify the award criteria and the maximum costs to be used to select the tenders participating in the following phase. Those award criteria and the maximum costs shall be proportionate to the expected results of the ongoing phase and to the objectives of the innovation partnership. Where a tenderer eliminated in a previous phase becomes eligible for the following phase as a result of those award criteria and the maximum costs such tenderer shall be invited to participate in the following phase.

Added6. In selecting candidates, contracting authorities/entities shall in particular apply criteria concerning the candidates’ capacity in the field of research and development and of developing and implementing innovative solutions.

AddedOnly those economic operators invited by the contracting authority/entity following its assessment of the requested information may submit research and innovation projects aimed at meeting the needs identified by the contracting authority/entity that cannot be met by existing solutions.

AddedIn the procurement documents, the contracting authority/entity shall define the arrangements applicable to intellectual property rights. In the case of an innovation partnership with several partners, the contracting authority/entity shall not, in accordance with Article 6, reveal to the other partners solutions proposed or other confidential information communicated by a partner in the framework of the partnership without that partner’s agreement. Such agreement shall not take the form of a general waiver but shall be given with reference to the intended communication of specific information.

Added7. The contracting authority/entity shall ensure that the structure of the partnership and, in particular, the duration and value of the different phases reflect the degree of innovation of the proposed solution and the sequence of the research and innovation activities required for the development of an innovative solution not yet available on the market. The estimated value of supplies, services or works shall not be disproportionate in relation to the investment required for their development.’;

Added(10) Article 28 is amended as follows:

Added(a) point (1) is replaced by the following:

Added‘(1) for works contracts, supply contracts and service contracts:

Added(a) when no tenders or no suitable tenders or no applications have been submitted in response to an open procedure, a restricted procedure, a negotiated procedure with prior publication of a contract notice, a competitive dialogue or an innovation partnership, provided that the initial conditions of the contract are not substantially altered and on condition that a report is sent to the Commission, if it so requests;

Added(b) in the event of irregular tenders or the submission of tenders which are unacceptable under national provisions compatible with Articles 5, 19, 21 to 24 and Chapter VII of Title II, in response to an open procedure, a restricted procedure, a negotiated procedure with publication, a competitive dialogue or an innovation partnership, insofar as:

Added(i) the original terms of the contract are not substantially altered, and

Added(ii) they include in the negotiated procedure all of, and only, the tenderers which satisfy the criteria of Articles 39 to 46 and which, during the prior open procedure, restricted procedure, competitive dialogue or innovation partnership, had submitted tenders in accordance with the formal requirements of the tendering procedure;

Added(c) when the time-limits laid down for the open procedure, restricted procedure and negotiated procedure with publication of a contract notice, including the shortened time-limits referred to in Article 33(7), are incompatible with the urgency resulting from a crisis. This may apply for instance in the cases referred to in Article 23, second paragraph, point (d);

Added(d) insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities/entities in question, the time-limits for the open procedure, the restricted procedure or the negotiated procedure with publication of a contract notice, including the shortened time-limits as referred to in Article 33(7), cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authority/entity;

Added(e) when, for technical reasons or reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator;’;

Added▌

Added(b) point (4)(b) is replaced by the following:

Added‘(b) for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to which the same contracting authorities/entities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded according to the open procedure, the restricted procedure, the negotiated procedure with publication of a contract notice, a competitive dialogue, or an innovation partnership.

AddedAs soon as the first project is put up for tender, the possible use of this procedure shall be disclosed, and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities/entities when they apply Article 8.

AddedThis procedure may be used only during the seven years following the conclusion of the original contract, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause;’;

Added(c) point (5) is replaced by the following:

Added‘(5) for contracts related to the provision of air and maritime transport services for the armed forces or security forces of a Member State deployed or to be deployed abroad, when the contracting authority/entity has to procure such services from economic operators that guarantee the validity of their tenders only for such short periods that the time-limits for the open procedure, the restricted procedure or the negotiated procedure with publication of a contract notice, including the shortened time-limits as referred to in Article 33(7), cannot be complied with.’;

Added(11) in Article 29(2), the fourth subparagraph is replaced by the following:

Added‘The term of a framework agreement may not exceed 10 years, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause.’;

Added(12) the following Article is inserted in Title II, Chapter V:

Added‘Article 29a

AddedDynamic purchasing system

Added1. For commonly used purchases the characteristics of which, as generally available on the market, meet the requirements of the contracting authorities/entities, contracting authorities/entities may use a dynamic purchasing system. The dynamic purchasing system shall be operated as a completely electronic process and shall be open throughout the period of validity of the purchasing system to any economic operator that satisfies the selection criteria. It may be divided into categories of products, works or services that are objectively defined on the basis of characteristics of the procurement to be undertaken under the category concerned. Such characteristics may include reference to the maximum allowable size of the subsequent specific contracts or to a specific geographic area in which subsequent specific contracts will be performed.

Added2. In order to procure under a dynamic purchasing system, contracting authorities/entities shall follow the rules of the restricted procedure. All candidates satisfying the selection criteria shall be admitted to the system, and the number of candidates to be admitted to the system shall not be limited in accordance with Article 38(3). Where contracting authorities/entities have divided the system into categories of products, works or services in accordance with paragraph 1 of this Article, they shall specify the applicable selection criteria for each category.

AddedNotwithstanding Article 33, the following time limits shall apply:

Added(a) the minimum time limit for receipt of requests to participate shall be 30 days from the date on which the contract notice ▌ is sent. No further time limits for receipt of requests to participate shall apply once the invitation to tender for the first specific procurement under the dynamic purchasing system has been sent;

Added(b) the minimum time limit for receipt of tenders shall be at least 10 days from the date on which the invitation to tender is sent.

Added3. All communications in the context of a dynamic purchasing system shall only be made by electronic means.

Added4. For the purposes of awarding contracts under a dynamic purchasing system, contracting authorities/entities shall:

Added(a) publish a call for competition making it clear that a dynamic purchasing system is involved;

Added(b) indicate in the procurement documents at least the nature and estimated quantity of the purchases envisaged, as well as all the necessary information concerning the dynamic purchasing system, including how the dynamic purchasing system operates, the electronic equipment used and the technical connection arrangements and specifications;

Added(c) indicate any division into categories of products, works or services and the characteristics defining them;

Added(d) offer unrestricted and full direct access, as long as the system is valid, to the procurement documents.