General Regulations for Tenders and the Award of Service Contracts financed from Phare/Tacis Funds

General Regulations for Tenders and the Award of Service Contracts financed from Phare/Tacis Funds

GENERAL REGULATIONS

Tenders and the award of service contracts financed from the resources of the European Community's Phare/Tacis funds shall be governed by these General Regulations.

Article 1

DEFINITIONS

1. The following definitions apply to these General Regulations.

Contract: the service contract signed as the outcome of the procedure for its award.

Contracting Authority: The authority responsible for implementing the rules and procedures for awarding a Contract. The Contracting Authority may be the Partner State, the Programme Management Unit, the Project Beneficiary, the Commission of the European Communities on behalf of the Partner State or of the European Community.

Contracting Party: The Party with whom the Contractor enters into a Contract. This may be the Contracting Authority or any other body or organization which the Contract defines as such.

Partner State: The State receiving assistance under the Phare or Tacis programme.

Phare: European Community aid programme for reconstruction of the economies of Central and Eastern Europe. Originally "Poland and Hungary: Assistance to the Reconstruction of the Economy". See Council Regulation No 3906/89 and subsequent amendments.

Services: Tasks to be performed by the Contractor under the Contract such as studies, designs, provision of short term and long term technical assistance (including monitoring), procurement and tendering operations, certification of quality/quantity aspects and training.

Tacis: European Community aid programme for Technical Assistance to the Commonwealth of Independent States and Mongolia. See Regulation No 1279/96.

Tender: the procedure launched by the Contracting Authority for the award of the Contract.

Tenderer: natural or legal person submitting a bid within the framework of a Tender launched by the Contracting Authority.

Terms of Reference: The document issued by the Contracting Authority giving the definition of its requirements and objectives of the services tendered, including, where applicable, the methods and means to be used and/or results.

2. The headings and titles in these General Regulations shall not be taken as part thereof or be taken into consideration in the interpretation of the Contract.

3. The terms "persons" or "parties" shall include firms and companies and any organisation having legal capacity.

Article 2

COMPUTATION OF TIME-LIMITS

1. The time-limits referred to in these General Regulations shall begin to run from the beginning of the day following the date of the act or deed which serves as the starting point for those time-limits.

2. Where the time-limit is fixed in days, it shall expire at the end of the last day of the period laid down.

3. Where the time-limit is fixed in months, it shall end on the day having the same number as the day on which it began. In the event of the last month of a time-limit fixed in months not having a day with the same number as the date on which it began, the time-limit shall expire at the end of the last day of that month.

4. Where the last day of a time-limit falls on a public or any other general holiday in the State in which the obligation subject to the time-limit is to be performed, the time-limit shall be extended until the end of the next working day.

Article 3

NOTICES AND WRITTEN COMMUNICATIONS

1. Communications between the Contracting Authority and the Tenderers shall be in writing by letter, fax or telex only to the appropriate addresses designated by these parties for the purpose.

2. If the sender requires evidence of receipt, he shall state such requirement in his communication and shall demand such evidence of receipt whenever there is a deadline for the receipt of the communication. In any event, the sender shall take all the necessary measures to ensure receipt of his communication.

Article 4

ELIGIBILITY

1. This article applies to individual Tenderers as well as to all members of a consortium taking part in a joint tender and to all sub-contractors eventually to be associated in the performance of the Contract.

2. Participation in the invitations to tender and in the award of contracts shall be open on equal terms only to natural and legal persons of the Member States of the European Community and of the countries listed in the Instructions to Tenderers.

For Tacis participation by natural and legal persons from the countries benefiting from Phare as well as, in specific cases, from Mediterranean countries with traditional economic, trade or geographical links may be authorized by the Contracting Authority on a case-by-case basis if the programmes or projects concerned require specific forms of assistance specifically available in such countries.

These terms refer to all nationals of said States and to all legal entities, companies or partnerships, constituted under and governed by civil, commercial or public law, formed in accordance with the law of any one of said States and having their statutory office, central administration or principal place of business in one of these States; however a legal entity, company or partnership having only its statutory office there must be engaged in an activity which has an effective and continuos link with the economy of the respective State.

3. Tenderers shall certify that they meet these conditions and prove their eligibility by a document, dated less than 90 days previously, drawn up in accordance with their national law or practice, or copies of the original documents defining the constitution and/or legal status and establishing the place of registration and/or statutory seat and, if it is different, the place of central administration. The Contracting Authority may accept other satisfactory evidence that these conditions are met.

4. Tenderers are not eligible for the award of contracts and the Contracting Authority may either exclude them from the Tender or terminate the Contract, without compensation, as of right and without recourse to legal proceedings where:

a) they are bankrupt;

b) payments to them have been suspended in accordance with the judgment of a court or a judgment declaring bankruptcy and resulting, in accordance with their national laws, in the total or partial loss of the right to administer and dispose of their property;

c) legal proceedings have been instituted against them involving an order suspending payments and which may result, in accordance with their national laws, in a declaration of bankruptcy or in any other situation entailing the total or partial loss of the right to administer and dispose of their property;

d) they are guilty of serious misrepresentation with regard to information required for participation in an invitation to tender;

e) they are in breach of contract on another contract with the Contracting Authority.

Tenderers shall certify and, upon request, provide evidence satisfactory to the Contracting Authority that none of these situations applies to them.

5. In the case of cofinancing, the participation of natural and legal persons from third countries in the invitations to tender and contracts may be authorised by the Contracting Authority, but only on a case-by case-basis, after examination of the case.

6. The Contracting Authority may refuse at its own discretion members of the Tenderer's staff who are not citizens either of a Member State of the European Community or of the States mentioned under point 2 above.

Article 5

APPLICABLE CONDITIONS

1. Except in case of variant solutions, only one tender may be submitted by each Tenderer. No Tenderer or individual staff member thereof may participate in the offer as a key member of another for the same Contract in any capacity whatsoever.

This may lead to the rejection of the tender.

2. The submission of an offer in reply to an invitation to tender entails the Tenderer's accepting in full all the special and general terms and conditions stipulated in the tender dossier, waiving his own conditions of contract. Any clause to the contrary shall be disregarded or entail the rejection of the offer.

Article 6

TERMS OF REFERENCE

The services must in all respects satisfy the requirements laid down in the Terms of Reference which will become Annex A to the Contract.

Article 7

VARIANT SOLUTIONS

1. Unless otherwise specified, Tenderers may submit a variant solution. In this case the Instructions to Tenderers shall specify any limitations or requirements applicable to the variant solution. Unless stated otherwise in the Instructions to Tenderers, a variant solution shall only be acceptable if also an offer based on Terms of Reference is presented.

2. Variant solutions may not derogate from the requirements of these General Regulations. If tenders based on variant solutions are evaluated, they shall be evaluated after the tenders based on the tender dossier.

The submission of any variant solution shall comprise:

a) an individual tender for the variant solution;

b) a demonstration of the benefit of the variant solution over the conforming solution, including quantifiable justification of any economic advantage; if necessary a technical note on the conception of the variant solution and, where appropriate, the calculations;

c) a draft of the amendments to the Terms of Reference necessitated by the variant solution; and

d) all other documents required for tendering in accordance with Article 11.

Article 8

CONTENT OF TENDER DOSSIER

1. The tender dossier shall contain details of the way in which offers are to be presented and the criteria for selection of the economically most advantageous offer. The tender dossier contains the following:

a) the Invitation to Tender;

b) the Instructions to Tenderers;

c) General Regulations;

d) the Draft Contract and its annexes:

- Terms of Reference (the future Annex A to the Contract);

- form of Organisation and Methods (the future Annex B to the Contract);

- form of List of Staff (the future Annex C to the Contract);

- form of Breakdown of Prices (the future Annex D to the Contract); and

- The General Conditions for Service Contracts financed form Phare/Tacis Funds (the future Annex E to the Contract).

- Additional Information.

2. The Tenderer shall carefully examine all instructions, conditions, forms, terms and specifications in the tender dossier. The Tenderer shall be solely responsible for the responses he provides to the requirements in the tender dossier and for any omission or errors in his responses. Failure to furnish all information required by the tender dossier or submission of a tender which is not responsive to the tender dossier in every respect, will be at the Tenderer's own risk and may result in rejection of his offer.

Article 9

CLARIFICATION OF TENDER INFORMATION

Where, in response to a Tenderer's queries or otherwise, information regarding the contract to be performed or other information which may affect the pricing of the tender is supplied to a Tenderer, such information shall also be issued in writing by the Contracting

Authority to the other Tenderers. The Contracting Authority will respond only to those queries or requests for clarification which it receives at least 15 days prior to the deadline for the submission of the offers.

Article 10

AMENDMENTS TO THE TENDER DOSSIER

Any change made to the tender dossier during the tender period by the Contracting Authority shall be communicated forthwith in writing to all prospective Tenderers who have been provided with the tender documents, together with notice of any extension of the tender period which the Contracting Authority may consider necessary to enable Tenderers to take account of such a change.

Article 11

CONTENT OF OFFERS

The offer prepared and submitted by the Tenderer shall, in accordance with the requirements stated in the Instructions to Tenderers and in these General Regulations, comprise:

a) A technical proposal including:

- Statements as requested;

- Terms of Reference;

- Organisation and Method;

- A List of Staff, including Curricula Vitae.

b) A financial proposal:

- A detailed breakdown of prices including, as appropriate, fees, accommodation, direct costs, and reimbursables;

- The bank account to which payments may be made.

Article 12

FAIR COMPETITION

1. Natural and legal persons who have co-operated to prepare the Terms of Reference of the tendered project, or have otherwise contributed to define the activities to be implemented under the Contract, may not participate in the Tender either as Tenderers or as members of a consortium or as sub-contractors or as member of the Tenderer's staff.

2. If, nonetheless, any of the above-mentioned persons participate in a Tender, the relevant offer will be rejected by the Contracting Authority.

3. During six months after the signature of the Contract, a Tenderer who has been awarded a Contract may not employ in any capacity the natural and legal persons who have co-operated to prepare the Terms of Reference of the tendered project, or have otherwise contributed to define the activities to be implemented under the Contract.

4. No Tenderer, member of his staff or any other person anyhow associated to the Tenderer for the purpose of the Tender shall take part in the evaluation of the Tender in question.

5. In the event that a Contract is signed between the Contracting Party and a Tenderer who is in violation of article 12.1, 12.3 and 12.4 above, the Contracting Party may terminate the contract with immediate effect.

Article 13

PRICES

1. Prices shall be expressed in ECU

2. The Tenderer shall provide the information required by the tender dossier for the pricing, make the necessary arithmetical calculations for completing the Breakdown of Prices format and attach the completed format to his tender.

Article 14

DRAFTING OF TENDERS

1. Offers and all correspondence relating to them shall be in the languages stated in the Instructions to Tenderers. In the absence of such instructions, any of the official languages of the E.C. or the respective Partner State may be used.

2. It is not necessary to use officially stamped paper for which a national stamp duty has been paid.

3. The complete tender shall be perfectly legible in order to rule out any doubt whatsoever concerning the words or figures and be without alterations, interlineations or erasures, except those to accord with instructions issued by the Contracting Authority, or necessary to correct errors made by the Tenderer. Alterations and corrections shall be initialled by the person or persons signing the tender.

Article 15

SEALING AND MARKING OF TENDERS

1. The tender, the annexes thereto as stipulated in the Instructions to Tenderers and the supporting documents shall be placed in a sealed envelope. If self-adhesive envelopes are used they shall be closed with adhesive tape and the tender shall sign over the top of the tape, any equivalent method being admitted.

2. The envelope shall bear only:

a) the address designated for submission of offers in the tender dossier;

b) the Tenderer's name and address;

c) the reference to the invitation to tender in reply to which the offer is being submitted;

d) the words "not to be opened before the tender opening session" written as instructed in the Instructions to Tenderers.

3. Inside this envelope referred to in paragraph 1, offers must be presented in two separately sealed envelopes. One of these sealed envelopes shall contain the documents relating to the technical proposal and shall bear the words "Technical Proposal" and the reference to the invitation to tender in reply to which the tender is being submitted. The other of these sealed envelopes shall contain the documents relating to the price proposal and shall bear the words "Financial Proposal" and the reference to the invitation to tender in reply to which the tender is being submitted.

4. Variant solutions shall be submitted separately and be marked with the additional wording "Variant Solution".

Article 16

SIGNING OF TENDERS

1. The offer shall be signed by the Tenderer or by his duly authorised agent. It shall be drawn up in a single original bearing the word "original". The number of copies to be supplied by the Tenderer shall be stated in the Instructions to Tenderers. Copies shall be signed in the same way as the original and shall bear the word "copy".

2. An offer submitted by an agent must state the name of the principal on whose behalf he is acting. No agent may represent more than one Tenderer. Agents shall attach to the tender the authorising contract, notarial act or deed which empowers them to act on behalf of Tenderers. A signature to a deed must be certified in accordance with the national law of the State of the principal.

Article 17

JOINT TENDERS

1. If a Tenderer is a joint venture or consortium of two or more persons, there must be a single offer with the object of securing a single Contract. Each person must sign the tender, and all such persons shall be jointly and severally bound by the tender and any resulting Contract according to the law applicable to the Contract, and shall designate one of such persons to act as leader with authority to bind the joint venture or consortium. The composition or constitution of the joint venture or consortium shall not be altered without the prior consent in writing of the Contracting Authority.

Each member of a joint venture or consortium must comply individually with the eligibility requirements stated in Article 4.

2. The offer may be signed by the representative of the joint venture or consortium only if he has been expressly so authorised in writing by the members of the joint venture or consortium, and the authorising contract, notarial act or deed must be attached to the offer. All signatures to the authorising instrument must be certified in accordance with the national laws and regulations of each of the parties comprising the joint venture or the consortium together with the Powers of Attorney establishing, in writing, that the signatories to the offer are empowered to enter into commitments on behalf of the members of the joint venture or consortium.

Article 18

TRANSMISSION AND RECEIPT OF TENDERS. DEADLINE FOR SUBMISSION

1. Offers may be sent by registered mail with proof of receipt or delivered by hand against receipt to the address stated in the tender dossier. The Contracting Authority shall not be held liable for proof of arrival in case any other method of transmission is used.

2. Offers must be received by the Contracting Authority at the address and no later than the date and time specified in the Instructions to Tenderers. The Tenderer shall bear all risks of transmission, including force majeure.

Offers received at a later date or time than specified shall be rejected and returned to the Tenderer.

3. The Contracting Authority may, in exceptional cases and at its discretion, extend the deadline for the submission of offers. Such extension shall be notified to the Tenderers in the same way as the invitation to tender.

4. On receipt of the tenders, the envelopes shall be entered in a special register in the order in which they arrive. The registration number and the date and time of arrival shall be recorded on the envelope. Envelopes remain sealed and are kept in a safe place until they are opened under the conditions set out in Article 21.

Article 19

PERIOD OF VALIDITY OF THE TENDER

1. Tenderers shall remain bound by their tenders for the period prescribed by the Contracting Authority in the Instructions to Tenderers. Any offer valid for a shorter period may be rejected.

2. In exceptional circumstances, prior to the expiry of the original tender validity period, the Contracting Authority may request the Tenderers for a specified extension in the period of validity. Tenderers agreeing to the request will neither be required nor permitted to modify their tenders.

3. The Tenderer whose offer was considered as the economically most advantageous shall remain bound by his tender for a further period of maximum 90 days following the receipt of the communication notifying him of his selection.

Article 20

WITHDRAWALS AND AMENDMENTS OF TENDERS

1. Any Tenderer may modify or withdraw his offer before the deadline for the submission of tenders, provided that written notice of such modification or withdrawal is received by the Contracting Authority prior to that deadline.

Withdrawals are unconditional and end further participation in the Tender.

The modification notice shall be prepared, sealed, marked and dispatched as the original offer. It shall be identified as modification of the original offer.

Article 21

OPENING OF TENDERS

1. Opening and examination of tenders shall be for the purpose of checking whether the tenders are complete, whether the documents have been properly signed and whether the tenders are generally in order.

2. The envelopes which bear the words "Financial Proposal" shall not be opened until the evaluation of the "Technical Proposals", has been completed.

3. Only the offers contained in those envelopes which have been received not later than the deadline fixed for the receipt of offers shall be taken into consideration in the evaluation.

4. The Contracting Authority shall prepare, for its own records, minutes of the tender opening, including the information disclosed to those present.

5. After the opening of offers, information relating to the examination, clarification, evaluation and comparison of tenders and recommendations concerning the award of the contract shall not be disclosed to Tenderers or other persons not officially concerned with such process.

6. Any attempt by a Tenderer to influence the Contracting Authority in the process of examination, clarification, evaluation and comparison of tenders, and in decisions concerning the award of the contract, shall result in the rejection of his tender.

Article 22

EVALUATION OF TENDERS

1. Prior to the detailed evaluation of tenders, the Contracting Authority shall determine whether each tender substantially conforms with the requirements of the tender dossier.

2. Offers determined to be conforming shall be evaluated technically, and ranked on the basis of their technical qualities.

3. Following the completion of the technical evaluation, offers which are technically responsive shall be evaluated financially. Tenders with prices not stated in ECU may be rejected.

4. To facilitate the examination, evaluation and comparison of tenders, the Contracting Authority may ask each Tenderer individually for clarification of his tender, including breakdowns of unit prices. The request for clarification and the response shall be in writing, but no change in the price or substance of the tender shall be sought, offered or permitted except as required to confirm the correction of arithmetic errors discovered by the Contracting Authority during the evaluation of the offers.

5. Tenders determined to be financially responsive shall be checked by the Contracting Authority for any arithmetic errors in computation and summation. Errors shall be corrected by the Contracting Authority as follows:

a) where there is a discrepancy between amounts in figures and also in words, the amount in words shall prevail; and

b) where there is a discrepancy between the unit-price and the total amount derived from the multiplication of the unit price and quantity, the unit price as quoted shall prevail, unless in the opinion of the Contracting Authority there is an obvious error in the unit price, in which event the total amount as quoted shall prevail and the unit price shall be corrected by the Contracting Authority.

6. The amount stated in the tender, corrected if necessary by the Contracting Authority, in accordance with paragraph 5, shall be considered as binding upon the Tenderer. If the Tenderer does not accept the corrected amount of the tender, his tender shall be rejected.

7. The Contracting Authority will select, as the economically most advantageous offer, the offer:

a) which is found to be responsive to the tender dossier; and

b) which is the most advantageous taking into account both the price and the technical value of the tender including, inter alia, the organisation and the methodology proposed for the provision of the services, as well as the competence, independence and availability of the personnel proposed.

8. The evaluation proceedings shall be recorded in properly signed minutes which shall not be made public or communicated to any Tenderer.

The Contracting Authority shall ensure that all commercially sensitive information relating to a proposed offer remains confidential.

Article 23

INFORMATION TO UNSUCCESSFUL TENDERERS

1. After the conclusion of the Tender unsuccessful Tenderers shall be informed in writing about the grounds of rejection of their offers and about the name of the Tenderer to whom the Contract was awarded.

2. In the event that a Tenderer has serious reasons, he may submit to the Contracting Authority a motivated request that a Tender be considered again.

The Contracting Authority shall provide a reasoned reply in writing.

Article 24

ANNULMENT OF THE TENDERING PROCEDURE

1. The Contracting Authority may, prior to awarding the Contract, without thereby incurring any liability to the Tenderers, and notwithstanding the stage in the procedures leading to the conclusion of the Contract, either decide to close or annul the Tender, or order that the procedure be recommenced, if necessary, on amended terms.

2. A Tender procedure may be closed or annulled in particular in the following cases:

a) if no tender satisfies the criteria for the award of the Contract;

b) if the economic or technical data of the project have been significantly altered;

c) if, for reasons connected with the protection of exclusive rights, the services can only be provided by a particular firm;

d) if exceptional circumstances render normal performance of the tender procedure or contract impossible;

e) if every tender received exceeds the financial resources earmarked for the contract;

f) if the offers received contain serious irregularities resulting in interference with the normal play of market forces;

g) if there has been no competition;

h) if the project has been canceled;

i) if the conditions for a fair competition have not been implemented.

3. In the event of annulment of any tender procedure, Tenderers shall be notified thereof by the Contracting Authority. Such Tenderers shall not be entitled to compensation.

Article 25

AWARD OF CONTRACTS

1. The Contracting Authority may, after negotiations or clarification meetings if appropriate, conclude a contract with the Tenderer or Tenderers whose offers have been considered as the economically most advantageous.

2. The Contract is, as a general rule, composed of the following documents, each of them constituting an integral part of it, in the following order:

a) The Contract itself;

b) Annex A: The Terms of Reference;

c) Annex B: The Organisation and Methods;

d) Annex C: The List of Staff;

e) Annex D: The Breakdown of Prices;

f) Annex E: The General Conditions for Service Contracts financed from Phare/Tacis Funds; and

g) Where necessary, additional information such as standard bank guarantee models.

3. The Contract shall be concluded upon signature by both parties.