The bidding processi Notice
Most procurement processes are formally commenced by publication of a contract notice.
All official notices under the Directives – such as prior information notices, contract notices and contract award notices – must be submitted electronically for publication in the Official Journal of the European Union, which is accessible free of charge through Tenders Electronic Daily.47ii Procedures
The Directives envisage various contract award procedures:
- open procedure: a one-stage process where bidders must show their good standing and their tender proposals in a single bidding round;48
- restricted procedure: a two-stage process where – based on financial standing, qualification and past experience – at least five bidders are shortlisted to tender;49
- competitive dialogue procedure: a process generally used for complex procurements where the authority knows only the output that it requires and has not yet identified a solution;50
- competitive procedure with negotiation51 or negotiated procedure with advertisement:52 a process generally used for procurements where the authority knows both the output and the likely solution but wishes to negotiate the terms with bidders;
- innovation partnership for the development of innovative products;53 and
- exceptionally, negotiated procedure without advertisement.54
For the procurement of social and other specific services under the light-touch regime, and where the Concession Contracts Directive applies, no procedure is specified.
There are minimum timescales for key stages in most procedures, particularly as regards the minimum period between the contract notice and bidders' initial expressions of interest. These periods may be shortened in some specified cases, and vary depending on the procedure adopted and which of the Directives applies.55iii Amending bids
Once bids have been submitted, equal treatment and fairness significantly limit the scope for bid amendments.
Authorities may, in certain cases, seek clarification or allow bidders to correct obvious errors.56 However, in the case of bids in the open procedure or restricted procedure, or final tenders in the competitive procedure with negotiation or negotiated procedure with advertisement, negotiation or the submission of what should be viewed as a new tender are not allowed.
The competitive dialogue procedure is slightly more flexible: the authority may, before tender evaluation, request that bids be clarified, specified and optimised. However, this must not involve changes to the essential aspects of the tender or the procedure that are likely to distort competition or have a discriminatory effect.57 After selection of the winning bid, negotiations are permitted to confirm aspects of the tender and finalise the contract terms, provided that the essential aspects are not materially modified and, again, that there is no risk of distortion or discrimination.58