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

• Published date: 20 February 2016
• Official Gazette Publication: Diario Oficial de la Unión Europea, L 45, 20 de febrero de 2016

2016D0002 — EN — 01.07.2016 — 001.001

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►B DECISION (EU) 2016/245 OF THE EUROPEAN CENTRAL BANK of 9 February 2016 laying down the rules on procurement (ECB/2016/2) (recast) (OJ L 045 20.2.2016, p. 15)

Amended by:

		Official Journal
		No	page	date
►M1	DECISION (EU) 2016/956 OF THE EUROPEAN CENTRAL BANK of 7 June 2016	L 159	21	16.6.2016

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▼B

DECISION (EU) 2016/245 OF THE EUROPEAN CENTRAL BANK

of 9 February 2016

laying down the rules on procurement (ECB/2016/2)

(recast)

CHAPTER I

GENERAL RULES

Article 1

Definitions

For the purposes of this Decision, the following definitions apply:

(1) ‘contracts’ means contracts for pecuniary interest concluded in writing between the ECB and one or more suppliers and having as their subject matter the execution of works, the supply of products or the provision of services;

(2) ‘supply contracts’ means contracts having as their subject matter the purchase, lease, rental or hire purchase, with or without an option to buy, of products. A contract having as its subject matter the supply of products and which also covers, as an incidental matter, siting and installation operations shall be considered a supply contract;

(3) ‘service contracts’ means contracts, other than those referred to in point (2), having as their subject matter the provision of services. A contract having as its subject matter the provision of services including activities related to works that are only incidental to the principal subject matter of the contract shall be considered a service contract;

(4) ‘works contracts’ means contracts, other than those referred to in points (2) and (3), having as their subject matter either the execution, or both the design and execution, of works. A ‘work’ means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function;

(5) ‘concession contracts’ means contracts having as their subject matter either the provision of services or the execution of works, whose reward mainly consists of a permission granted by the ECB to exploit these works or to provide services to others;

(6) ‘deliverables’ means the works to be executed, services to be provided or products to be supplied under a contract;

(7) ‘innovation partnership’ means a procedure in which any supplier may request to participate and where the ECB sets up a partnership with one or more candidates admitted to that procedure with the aim of developing and purchasing innovative products, services or works;

(8) ‘dynamic purchasing system’ means a completely electronic process for purchasing commonly used products, the characteristics of which, as generally available on the market, meet the ECB's requirements;

(9) ‘framework agreement’ means an agreement between the ECB and one or more suppliers, the purpose of which is to establish the terms governing the specific contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged;

(10) ‘supplier’ means any natural or legal person or public entity or group of such persons and/or entities which offers on the market the execution of works, the supply of products or the provision of services;

(11) ‘candidate’ means a supplier that has submitted an application to participate in a restricted or negotiated procedure, a competitive dialogue or an innovation partnership;

(12) ‘tenderer’ means a supplier that has submitted a tender;

(13) ‘research and development contracts in the field of banknote security’ means contracts related to theoretical work or practical experimentation, analysis or research carried out under controlled conditions either:

— for acquiring new knowledge or developing new or improved materials, manufacturing processes or devices for the origination, production, transport, issuance, authentication or destruction of euro banknotes, including the origination materials thereof, or

— for initiating the manufacture of new or improved materials, products or devices for the origination, production, transport, issuance, authentication and destruction of euro banknotes, including the origination materials thereof.

Research and development contracts in the field of banknote security do not include contracts for the pilot printing of euro banknotes;

(14) ‘open procedure’ means a procedure in which any interested supplier may submit a tender;

(15) ‘restricted procedure’ means a procedure in which any supplier may request to participate but only those candidates invited by the ECB may submit a tender;

(16) ‘negotiated procedure’ means a procedure in which the ECB consults the suppliers of its choice and negotiates the terms of any contract with one or more of them;

(17) ‘competitive dialogue’ means a procedure in which any supplier may request to participate and where the ECB conducts a dialogue with the candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting its requirements;

(18) ‘electronic auction’ means a repetitive process involving an electronic system in which new prices, revised downwards, and/or new values concerning certain elements of tenders are presented, which occurs after an initial full evaluation of the tenders, and which enables them to be ranked using automatic evaluation methods;

(19) ‘invitation to tender’ means the invitation sent to candidates or suppliers to submit a tender and specifying the procedure, the ECB's requirements and the contractual terms and conditions;

(20) ‘days’ means calendar days;

(21) ‘written’ or ‘in writing’ means any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information transmitted and stored by electronic means;

(22) ‘call for expression of interest’ means a procedure to establish a list of suitable suppliers that may be invited to participate in procurement procedures.

Article 2

Scope

1. The ECB shall award supply, service, works and concession contracts for its own account in accordance with this Decision.

2. The ECB may also carry out in accordance with this Decision joint tender procedures for its own account and on behalf of one or more national central banks (NCBs), national supervisory authorities, Union institutions and bodies and/or international organisations. In such cases, the ECB shall specify in the procurement documents: (a) the other participating contracting authorities; and (b) the envisaged structure of the contractual relationships.

3. This Decision shall not apply to:

(a) cooperation agreements:

(i) that serve the fulfilment of the public tasks of the Eurosystem or the European System of Central Banks, which are entered into by the ECB and NCBs; or

(ii) that serve the fulfilment of public tasks, which are entered into by the ECB and other Union institutions and bodies, international organisations or public authorities;

where the cooperation is governed solely by considerations relating to the public interest, in particular the achievement of common, non-commercial objectives and the parties perform less than 20 % of the relevant activities on the open market;

(b) procurement procedures in which the ECB participates organised by any of the following: (i) Union institutions and bodies; (ii) international organisations; or (iii) public authorities, in each case provided that the rules governing these procurement procedures are in line with the general principles of Union procurement law;

(c) the procurement of banknotes, which is governed by Guideline (EU) 2015/280 of the European Central Bank (ECB/2014/44) ( 8 );

(d) the issue, sale, purchase or transfer of securities or other financial instruments and financial services in connection with these transactions;

(e) the acquisition or rental, by whatever financial means, of land, existing buildings or other immovable property or concerning rights thereon;

(f) employment contracts between the ECB and its staff concluded in accordance with the ECB's Conditions of Employment;

(g) arbitration and conciliation services;

(h) research and development services unless the benefits related to the services accrue exclusively to the ECB for its own use and the services provided are remunerated by the ECB;

(i) contracts for broadcasting time or programme provision that are awarded to audiovisual or radio media services providers;

(j) contracts relating to the legal representation of the ECB during or in preparation for court or arbitration proceedings and contracts for the exclusive services of notaries, trustees and court officials;

(k) public passenger transport services by rail or metro.

4. This Decision shall not apply to contracts between the ECB and a legal person governed by private or public law over which the ECB exercises control similar to that which it exercises over its own business units, where more than 80 % of the legal person's activities are carried out in the performance of tasks entrusted to it by the ECB and there is no direct private capital participation that ensures a controlling interest in that legal person.

5. In exceptional cases, the ECB may conduct procedures for the selection of natural persons to serve as members on high-level advisory boards assisting...