The bidding processi Notice
Contracts that come under the procurement regulations must be advertised in the Official Journal of the European Union. In addition, they must be published at a nationwide level. As of 1 March 2019, all domestic advertisements must be executed within the scope of the Open Government Data system. The contract authorities are obliged to communicate the metadata of their procurement procedures accordingly. This should ensure better accessibility to information on tenders. Contracts not exceeding the thresholds may but do not need to be advertised at the EU level.ii Procedures
Contracting authorities must use one of the tender procedures provided for in the BVergG:
- open, restricted or negotiated procedures;
- direct award (with or without prior public market survey);
- competitive dialogue;
- framework agreements;
- a dynamic purchasing system;
- design and realisation contests; or
- innovation partnership procedures.
While the open procedure and the restricted procedure can be chosen regularly, the other procedures are subject to certain conditions. In the open procedure, an unrestricted number of economic operators are publicly invited to submit tenders. In restricted procedures with prior notice, any undertaking may apply for participation, whereupon the contracting authority merely invites a restricted number of qualified undertakings among the applicants to submit tenders. Subsequently, the full scope of the contract is negotiable.
In principle, the negotiated procedure with prior notice may be chosen unless an open or restricted procedure with prior notice has resulted in any tenders or in any tenders appropriate for the purchase. However, the original terms and conditions for the contract must not be modified or amended materially. Moreover, the negotiated procedure may be selected if the special characteristics of the contract do not allow an open or a restricted procedure, or the services of the contract cannot be stipulated in contractual specifications. The BVergG has widened the possibilities to choose the negotiated procedure with prior notice.
In the negotiated procedure without prior notice, the contracting authority calls upon economic operators designated preliminarily to submit an offer. Subsequently, the terms and conditions of the contract are negotiated. The admissibility of this procedure is subject to conditions such as, for instance, extreme urgency, recurrence of similar circumstances or if only one specific economic operator is able to execute the contract.
The competitive dialogue is most appropriate if solutions to particularly complex projects are sought. This is the case when the contracting authority is not capable of determining the technical specifications or legal or financial conditions of the project.
Framework agreements do not entail a purchase obligation, but a non-binding basis for future purchases. A dynamic purchasing system is an entirely electronic process that is restricted to certain services in line with standard market conditions (off-the-shelf products or services).
Design contests are procedures in which plans or designs are selected by a jury. They can be conducted with or without prizes or payments to participants.
Under an innovation partnership procedure, as introduced by the BVergG, the contracting authority uses a negotiation procedure to invite suppliers to submit ideas to develop innovative works, supplies or services aimed at meeting a need for which there is no suitable existing solution on the market.iii Amending bids
Whether amendments to bids are admissible and the scope thereof depends on the tender procedure chosen. In open or restricted procedures, bidders are not allowed to amend their bids after the time limit for receipt of tenders has expired. However, queries to the contracting authority for clarification are admissible provided that all bidders are treated equally. In contrast, in negotiated procedures, generally the entire content of the contract is negotiable. However, these negotiations must not modify the essential characteristics of the contract.