Regional Development
Programme in Samsun, Kastamonu and Erzurum NUTS II Regions – Turkey
Grant Contracts Management
& implementation guidelines
July 2006
In consortium with Vakakis,
Dominus, Typsa, Stoa, IBS and Girişim
This publication
has been produced with the assistance of the European Union. The content
of this publication is the sole responsibility of Scott Wilson and partners
(Vakakis, Dominus, Typsa, Stoa, IBS and Girişim) and can in no way
be taken to reflect the views of the European Union.
In the event
of any contentious issues arising, the English version will be binding.
Table of contents
Introduction
Scope
This Guide
explains the contracting procedures applying to all sub-contracts concluded
by grant beneficiaries and contractual obligations of the beneficiaries,
monitoring framework of implementation of grant projects under the Regional
Development Programme in Samsun, Kastamonu and Erzurum NUTS II Regions
(RD SKE Programme), Turkey.
Sub-contracts
are contracts concluded between the grant beneficiaries and respective
contractors, suppliers and/or service providers. These sub-contracts
are necessary to realize the grant beneficiaries’ project, as defined
in their grant contract with the CFCU.
The purpose
of this instrument is to provide all grant beneficiaries with all the
information necessary to undertake a procurement or a grant procedure
from the very first steps to the award of contracts. Guidance is provided
for both the procurement phase and the execution of contracts.
This document
also provides information on how to manage the grant contract, signed
between the CFCU and the grant beneficiaries (see Chapter 6), from the
award of the contract until final report and payment.
Further
separate guidelines are available for the different procurement procedures
for works, services and supplies.
Please
note that:
all procurement
for works under the RD SKE programme’s SSI component should
use EU PRAG models and procedures (as valid from 1 February 2006),
beneficiaries under
RD SKE programme’s LDI component and SME component must use EU PRAG
models as developed in the procurement guidelines.
Legal
basis
This Guide
has been prepared by considering the relevant provisions of the “Practical
Guide to contract procedures for EC external actions (EU PRAG), 2006”.
The full version of EU PRAG (including relevant annexes to PRAG) can
be found on the webpage:
http://europa.eu.int/comm/europeaid/tender/gestion/index_en.htm
Article
3/c of the Turkish Public Procurement Law (No: 4734) permits to apply
other procurement rules for the procurement activities to be realised
with foreign financing pursuant to international agreements. Also, the
Law (No: 5303) on the Approval of Framework Agreement that Determines
the General Framework for the Financial Cooperation between Turkey and
the EU states that EU rules will be used in the EU co-funded projects.
Programme
information
“Regional
Development in Samsun (Amasya, Çorum, Samsun and Tokat), Kastamonu
(Çankırı, Kastamonu and Sinop) and Erzurum (Erzurum, Erzincan and
Bayburt) NUTS II Regions” is an EU co-funded integrated regional development
programme conceived to reduce disparities and to build capacity in the
concerned regions through targeted interventions including the implementation
of three grant schemes: 1) Local Development Initiatives (LDI), 2) SMEs
and 3) Small Scale Infrastructure (SSI).
By operating
at regional level, grant schemes can be seen as tools to support a regional
approach to development. The supporting schemes will transpose successfully
tried tools of regional policy to the regions. They involve the
introduction of regional criteria in the selection of projects, strong
emphasis on monitoring and evaluation and an overall focus on strengthening
economic and social cohesion through support to lagging regions. The
overall allocated support for these three grant schemes amounts to 49.33
MEUR.
The institutional
framework of the Grant Scheme includes the State Planning Organisation
(DPT) and the Central Finance and Contracts Unit (CFCU) of the Republic
of Turkey. DPT is responsible for the coordination of technical implementation
of the programme according to the rules of the Operational Agreement
signed with the CFCU and will also co-ordinate the monitoring of the
grants awarded. The CFCU is the Contracting Authority1
for the programme, and is responsible for the administrative and financial
implementation of the Grant Scheme. The CFCU has the ultimate
responsibility for the correct use of Grant funds and is responsible
for the tendering, contracting and payments to the grant beneficiaries.
Moreover, three Service Unions have been set up and staff the Programme
Implementation Units (hereinafter PIU) exclusively responsible for the
effective implementation of the grant schemes on local level, programme
promotion, extension of support to grant beneficiaries, etc. under the
DPT’s supervision.
Institutional
Framework
Bodies
Involved
Programme
Authorizing Officer: the PAO (= at this moment also the Director
of the CFCU) is responsible for the overall budgeting, tendering, contracting,
payments, accounting and financial reporting aspects of the grants in
the context of the RD SKE Programme.
Contracting
Authority: the Contracting authority for the grant contract with
the grant beneficiary is the CFCU.
The
Delegation of the European Commission to Turkey: the Delegation
of the European Commission to Turkey has the responsibility for ex-ante
approval of the overall activities under the projects financed by the
European Community in the course of co-operation with the Pre-Accession
Financial Assistance Programme for Turkey.
The
State Planning Organization: the State Planning Organization (DPT)
is the Beneficiary of the Programme and is responsible for the coordination
of the technical implementation of the programme and will also co-ordinate
the monitoring of the grants awarded.
Programme
Implementation Units (PIUs): PIUs are responsible for the implementation
of the programme on a daily basis, provision of coordination with grant
beneficiaries, information dissemination and publicity of the programme,
monitoring of the projects and making on-the-spot checks on the projects
in collaboration with the technical assistance team.
Technical
Assistance: the team consisting of Turkish and international experts
which provides technical assistance in the form of support services
and training under the direction of the PIUs for all aspects of the
programme.
Responsibilities
Central
level
The PAO will have
the sole responsibility over the overall budgeting, tendering, contracting,
payments, accounting and financial reporting aspects of the procurement
of services, supplies, works and grants in the context of the EU funded
Programmes in Turkey, as well as submission of documents to be endorsed
by the Delegation of the European Commission to Turkey. CFCU is responsible
for contracting and contract amendments, final approval of reports and
payments to grant beneficiaries.
The Senior Programme
Officer (SPO), based at DPT (State Planning Organisation), ensures that
project inputs are efficiently and effectively used to produce the expected
results and achieve the expected objectives. The SPO is responsible
for the preparation, technical management and monitoring of the RD SKE
Programme.
Regional
level
Programme Implementation
Units (PIU) are established within the Development Unions in the 3 NUTS
II Regions of the programme. They are responsible for introduction of
the programme at local level, the organization of the activities, controlling
and coordinating the operations of technical assistance team, and monitoring
of all the grant projects in their region. PIUs act as principal contact
point for the Grant Beneficiaries during the implementation of their
projects. The PIUs also provide Help Desk support at regional level.
The Technical Assistance
Team (TAT) supports PIUs in all activities related to the implementation
of the three grant schemes. TAT supports Beneficiaries with
training and advising activities under the coordination of PIUs in each
region. TAT experts will also participate in the first monitoring visits
within two months after contract signature and if required in regular
monitoring visits.
Basic
Procurement Dictionary
Addendum
A document modifying
the terms and conditions of a contract.
Appropriate
media (for grant beneficiaries)
Publication on the Beneficiary’s
web site, in the international press and the national or regional press
of the country in which the Action is being carried out, or in other
specialist periodicals.
Assessor
An expert with an in-depth
knowledge of the issues covered by a grant programme who is engaged
by a Contracting Authority to carry out a detailed written assessment
of a grant application using the published evaluation grids. He/she
cannot be a voting member of the Evaluation Committee.
Beneficiary
country
The country or state outside
the European Union with which the European Communities have an agreed
programme of cooperation.
Call for
proposals
A public invitation by the
Contracting Authority, addressed to clearly identified categories of
applicants, to propose actions within the framework of a specific EU
programme.
Candidate
Any natural or legal person
or group thereof that has sought an invitation to take part in a restricted
or negotiated procedure.
Competitive
negotiated procedure
Procedure without prior publication
of a procurement notice, in which only candidates invited by the Contracting
Authority (= the Grant Beneficiary in case of procurement in the frame
of the grant project) may submit tenders.
Consortium
A grouping of eligible natural
and legal persons or public entities which submits a tender or an application,
under a tender procedure. It may be a permanent, legally-established
grouping or a grouping which has been constituted informally for a specific
tender procedure. All members of a consortium (i.e. the leader and all
other partners) are jointly and severally liable to the Contracting
Authority.
Contract
An agreement, between two
or more persons or entities, with specific terms and an undertaking
to provide services and/or supplies in return for a financial consideration.
Contract
award procedure
The procedure followed by
a Contracting Authority to identify, and conclude a contract with, a
suitable contractor to provide defined goods or services.
Contract
budget
A summary of the costs of
performing the contract. The total of these costs is the contract value.
Where grants contracts are concerned, the budget shows all the eligible
costs.
Contract
value
The total budget of a contract.
Contracting
Authority
1. The CFCU, appointed by
the government of the beneficiary country, in the case of grant contracts
following a call for proposals launched by the CFCU.
Or 2. The grant
beneficiary, if the implementation of the action
(= the grant project) requires procurement.
Contractor
The tenderer selected at the
end of the procedure for the award of the contract. The successful tenderer,
once all parties have signed the contract.
Day
Calendar day unless otherwise
specified.
Economic
operator
Covers contractors, suppliers
and service providers.
Evaluation
committee
A committee made up of an
odd number of voting members (at least three) appointed by the Contracting
Authority and possessing the technical, linguistic and administrative
capacities to give an informed opinion on tenders or grant applications.
Expert
A person engaged by a contractor
to provide the expertise required for the proper performance of a contract.
Final
beneficiaries of a grant
Those who will benefit from
the project in the long term at the level of the society or sector at
large.
Financial
offer
The part of a tender which
contains all the financial elements of the tender, including its summary
budget and any detailed price breakdown or cash flow forecast required
by the tender dossier.
Financing
Memorandum
An agreement between the EC
and the beneficiary country which determines the objectives and scale
of a future programme of assistance.
General
conditions
The general contractual provisions
setting out the administrative, financial, legal and technical clauses
governing the execution of all contracts of a particular type (services,
supplies, works or grants).
Grant
A direct payment of a non-commercial
nature by the Contracting Authority to a specific beneficiary to implement
an action intended to help achieve an objective forming part of an European
Union policy.
Operational
grant
Direct financial contribution,
by way of donation, in order to finance the functioning of a body which
pursues an aim of general European interest or has an objective forming
part of a European Union policy.
Grant
beneficiary
The body signing a grant contract
(with the CFCU).
Grant
programme
A programme which determines
the objectives and scale of assistance in the form of grants for actions
promoting EC policy aims.
Guidelines
for applicants
Document explaining the purpose
of a Call for Proposals for grants. It sets out the rules regarding
who may apply, the types of operations and costs which may be financed,
and the evaluation (selection and award) criteria. It also provides
practical information on how to complete the application form, what
documents must be annexed, and rules and procedures for applying.
Invitation
to tender
Letter addressed to potential
candidates in an open tender procedure or letter sent to selected candidates
in a restricted procedure or competitive negotiated procedure inviting
them to submit an offer.
Mixed
contract
A contract between the Contracting
Authority and a service provider, supplier or construction firm covering
two or more of the following: works, supplies and services.
Negotiated
procedure
Procedure without prior publication
of a procurement notice, in which the Contracting Authority consults
the candidate or candidates of its choice and negotiates the terms of
the contract with one or more of them.
Open procedure
Calls for tender are open
where all interested economic operators may submit a tender.
Period
A period begins the day after
the act or event chosen as its starting point. Where the last day of
a period is not a working day, the period expires at the end of the
next working day.
Procurement
strategy
The procurement strategy identifies
the best way of achieving the objectives of the project and value for
money, taking account of the risks and constraints. The aim of a procurement
strategy is to achieve the optimum balance of funding, control and risk
for a particular project
Project
manager
The person responsible for
monitoring the implementation of a project on behalf of the Contracting
Authority.
Restricted
procedure
Calls for tender are restricted
where all economic operators may ask to take part, but only candidates
satisfying the selection criteria and invited simultaneously and in
writing by the Contracting Authorities may submit a tender.
Service
contract
A contract between a service
provider and the Contracting Authority for the provision of services
such as technical assistance or studies.
Service
provider
Any natural or legal person
or public entity or consortium of such persons and/or bodies offering
services.
Special
Conditions
The special conditions laid
down by the Contracting Authority as an integral part of the tender
or dossier, including modifications to the General Conditions, clauses
specific to the contract and the terms of reference (for a service contract)
or technical specifications (for a supply or works contract).
Study
contract
A service contract between
a service provider and the Contracting Authority concerning, for example,
identification and preparatory studies for projects, feasibility studies,
economic and market studies, technical studies, evaluations and audits.
Successful
applicant
The applicant selected at
the end of a call for proposals procedure for the award of contract.
Successful
Tenderer
The tenderer selected at the
end of a tender procedure for the award of contract.
Supervisor
(Engineer as per FIDIC rules)
The legal or natural person
responsible for monitoring the execution of the contract on behalf of
the Contracting Authority
Supplier
Any natural or legal person
or public entity or consortium of such persons and/or bodies offering
to supply goods.
Supply
contract
Supply contracts cover the
purchase, leasing, rental or hire purchase, with or without option to
buy, of products. A contract for the supply of products and, incidentally,
for siting and installation shall be considered a supply contract.
Target
groups
The groups/entities who will
be directly positively affected by the project at the Project Purpose
level.
Technical
offer
The part of a tender which
contains all non-financial elements of the tender, i.e., all elements
other than the financial offer which are required by the tender dossier.
The technical offer must not contain any financial indications.
Tender
A written or formal offer
to supply goods, perform services or execute works for an agreed price.
Tender
dossier
The dossier compiled by the
Contracting Authority and containing all the documents needed to prepare
and submit a tender.
Tender
process
The overall process of putting
a contract out for tender, starting with the publication of a procurement
notice and ending with the award of the tendered contract.
Tenderer
Any natural or legal person
or consortium thereof submitting a tender with a view to concluding
a contract.
Technical
specifications
The document drawn up by the
Contracting Authority setting out its requirements and/or objectives
in respect of the provision of supplies or works, specifying, where
relevant, the methods and resources to be used and/or results to be
achieved.
Terms
of reference
The document drawn up by the
Contracting Authority setting out its requirements and/or objectives
in respect of the provision of services, specifying, where relevant,
the methods and resources to be used and/or results to be achieved.
Value
for money
This is the optimum combination
of whole-life costs and quality to meet the user requirement
Works
contract
Works contracts cover the
execution, the design and execution or the realisation by any means
whatsoever of a work corresponding to the requirements specified by
the Contracting Authority.
Principles
of Good Procurement
There are
certain basic principles which any procurement activity must follow
in order to obtain the best value for money.
What
is procurement ?
Procurement
is the timely acquisition of goods, works and services while addressing
the following:
the objectives of
the organisation concerned
fairness, integrity
and transparency through competition
economy and effectiveness
best value for money.
Procurement
is one of the fundamental functions common to all types of business.
It is fundamental because without it we cannot achieve our core aims
and objectives. Procurement is not just about spending money: it’s
about working in partnership with others including suppliers, to ensure
the provision of cost effective and reliable goods, services and works
to agreed standards.
The function
covers a range of activities such as agreeing the full requirement,
liaising and negotiating with suppliers, seeking and analysing bids,
agreeing contracts, handling problems and maintaining sound records
of all the process.
No
discrimination
There should
be no discrimination against products, services, suppliers, contractors
or service-providers on grounds of nationality. There may well
be discrimination on technical grounds, or against quality or safety
factors, but these can, and should, be objectively assessed.
Competition
There should
always be a competition for the award of contracts, unless there is
a strong and objective reason for not holding a competition. Negotiating
with a single supplier very rarely leads to best value for money.
There must
be no distortion of competition in discussions with actual or potential
participants in contract award procedures. This means that all
tenderers must be given the same information and the same opportunities
to come up with winning bids.
Any firm
or expert participating in the preparation of a project must be excluded
from participating in tenders based on this preparatory work, as this
would constitute unfair competition.
Specification
Tenderers
cannot compete effectively unless they know precisely the requirements
of the purchaser. Therefore, specifications of requirements (“Technical
Specifications” in case of supplies or works tenders, “Terms of
Reference” in case service tenders) should be by reference to recognised
technical specifications and, where required, quality assurance standards,
with appropriate levels of certification.
Effective publicity
Any tendering
process is unlikely to be successful if the best potential tenderers
do not get to hear of requirements. This is particularly important
for publicly funded procurement, as in this grant scheme, where, typically
the purchasers are not experts in the field. This is where use of the
Internet is increasingly important, but it is vital that tenderers know
where to go for their information.
It is also
necessary to publish details of the decisions on contracts awarded.
Further, to improve the skills and efficiency of tenderers, those who
request it should be debriefed on why they were, or were not, selected
to bid, and why they were successful or unsuccessful in winning the
contract.
For publications
in the national or regional press the EU guidelines on visibility should
be followed (see also 4.2.5).
Adequate timescales
Another
vital principle is that bidders are given sufficient time to respond
to advertisements expressing an interest in the purchaser’s requirement,
to respond to invitations to participate in the bidding and to prepare
and submit their offers. Under EU PRAG, for example, local open tenders
(those advertised in Turkey) require at least 30 days between the date
of publication of the advertisement and the submission deadline for
tenders.
Use of relevant objective criteria
It is vital
that the criteria used for the elimination of unsuitable candidates,
the selection of participants in contract award procedures and the award
of contracts on the basis of the offer(s) economically most advantageous
to the purchaser are both objective and relevant to the requirement.
These requirements are defined in the “Terms of Reference” (in the
case of service contracts) or the “Technical Specifications” (for
supply or works contracts).
Evaluation
criteria are included in the tender dossier.
Adequate records
It is also
important to be able to justify decisions later on if there are any
challenges or doubts about the decisions that were made. It is
inevitable that people move on, and therefore good records (reporting,
financial, etc) must be kept to show the reasons behind decisions.
Contracts subject to EU PRAG rules require records to be kept for at
least 7 years following settlement of final payment.
Rapid and effective remedies
From time
to time incorrect decisions will be made, either deliberately or by
accident or omission. It is important that the tenderers who are
harmed by a breach of the principles outlined above have an opportunity
for good, rapid and effective remedies. Remedies must also be
available for those who are at risk of being harmed, because it will
always be better to correct a breach while there is time to correct
matters, rather than at a later stage when the only remedy will be some
form of compensation.
Tenderers
believing that they have been harmed by an error or irregularity during
the award process must have the possibility to petition the Contracting
Authority (= the Grant Beneficiary in case of procurement by the Grant
Beneficiary) directly. The Contracting Authority must reply within 90
days of the complaint. If this procedure fails, the tenderer may have
recourse to the CFCU.
Basic
rules for service, supply & works contracts
Overview
There are
strict rules governing the way in which contracts are awarded. These
help to ensure that suitably qualified contractors are chosen without
bias and that the best value for money is obtained, with the full transparency
appropriate to the use of public funds.
Procedures
established by the European Commission for procurement under the relevant
EC external aid programmes are consolidated in this Guide.
Eligibility criteria and other essentials
The
rule on nationality and origin
Nationality
Participation
in the procurement procedures is open on equal terms to all legal persons
who are established in (a) a Member State of the European Community,
(b) in an official candidate country as recognised by the European Community,
(c) in a Member State of the European Economic Area, or (d) any country
other than those referred in a), b) and c), where reciprocal access
to their external assistance has been established:
Legal persons
established in one of the following countries are eligible for participation
in the procurement procedures:
Member States
of the European Community
Official
candidate countries:
Bulgaria, Croatia,
FYROM (former Yugoslav Republic of Macedonia), Romania, Turkey.
Member States
of the European Economic Area (countries not mentioned above):
Iceland, Liechtenstein,
Norway.
CARDS Countries
(countries not mentioned above):
Albania, Bosnia-Herzegovina,
Serbia, Montenegro.
MEDA Countries:
Algeria, Egypt,
Gaza and the West Bank, Israel, Jordan, Lebanon, Morocco, Syria, Tunisia.
Participation is also opened
to international organisations.
All experts
engaged by tenderers may be of any nationality.
Origin
All supplies
and materials purchased under a contract financed under a Community
instrument must originate from an eligible country (see above ‘nationality’
and below ‘exceptions to the rule on nationality and origin’).
The term origin
is defined in the relevant Community legislation on rules of origin
for customs purposes.
Origin:
A product can not originate in a country in which no production process
has taken place. On the other hand, the country of production is not
necessarily the country of origin. Furthermore, the country of origin
is not necessarily the country from which the goods have been shipped
and supplied. Where there is only one country of production, the origin
of the finished product is easily established. However, in cases where
more than one country is involved in the production of goods it is necessary
to determine which of those countries confers origin on the finished
goods. The country of origin is deemed to be the country in which the
goods have undergone their last, economically justified, substantial
transformation and the provisions of Article 24 of the Community Customs
Code must therefore be applied on a case by case basis to those goods.
If the last substantial transformation has not taken place in a Member
State of the European Union or one of the eligible recipient countries,
the goods cannot be tendered for the project.
The supplier
must certify that the goods tendered comply with the origin requirement
specifying the country or countries of origin. When tendering for systems
comprising more than one item, the origin of each item in the system
must be specified. If requested to do so, the supplier must provide
any additional information and/or a certificate of origin in support
of the origin claimed in the tender.
The rule of
origin applies to all items tendered and supplied. Therefore, it is
insufficient that only a certain percentage of the goods tendered and
supplied or a certain percentage of the total tender and contract value
comply with this requirement.
For products
locally produced in Turkey, a “Certificate of a locally manufactured
good” provided by the local Chamber of Commerce and Industry, is an
acceptable document.
The official
Certificates of Origin must then be submitted before provisional acceptance.
Failing this, the Contracting Authority cannot release any funds to
the contractor.
Certificates
of origin must be made out by the competent authorities of the supplies'
or supplier's country of origin and comply with the international agreements
to which that country is a signatory.
It is up to
the Contracting Authority to check that there is a certificate of origin.
Where there are serious doubts about origin, the PIU Helpdesk should
be contacted. It will be up to the CFCU, after consultation with the
relevant services of the European Commission, to decide on the course
of action.
Exceptions
to the rule on nationality and origin
Exceptions
to the rule on nationality and origin may be made in some exceptional
cases. The award of such derogation is decided on a case-by-case basis
by the CFCU before the procedure is launched.
In duly substantiated
exceptional cases, the CFCU:
- may extend
eligibility to legal persons from a country not eligible.
- may allow
the purchase of supplies and materials originating from a country not
eligible.
Grounds
for exclusion
Candidates
or tenderers will be excluded from participation in a procurement procedure
if:
a)they are
bankrupt or being wound up, are having their affairs administered by
the courts, have entered into an arrangement with creditors, have suspended
business activities, are the subject of proceedings concerning those
matters, or are in any analogous situation arising from a similar procedure
provided for in national legislation or regulations;
b)they have
been convicted of an offence concerning their professional conduct by
a judgment which has the force of res judicata; (i.e. against which
no appeal is possible);
c)they have
been guilty of grave professional misconduct proven by any means which
the Contracting Authority can justify;
d)they have
not fulfilled obligations relating to the payment of social security
contributions or the payment of taxes in accordance with the legal provisions
of the country in which they are established or with those of the country
of the Contracting Authority or those of the country where the contract
is to be performed;
e)they have
been the subject of a judgment which has the force of res judicata for
fraud, corruption, involvement in a criminal organisation or any other
illegal activity detrimental to the Communities' financial interests;
f)following
another procurement procedure or grant financed by the Community budget,
they have been declared to be in serious breach of contract for failure
to comply with their contractual obligations.
The Contracting
Authority will accept, as satisfactory evidence that the candidate or
tenderer is not in one of the situations described in (a), (b) or (e)
production of a recent extract from the judicial record or, failing
that, a recent equivalent document issued by a judicial or administrative
authority in the country of origin or provenance showing that those
requirements are satisfied. The Contracting Authority shall accept,
as satisfactory evidence that the candidate or tenderer is not in the
situation described in (d), a recent certificate issued by the competent
authority of the State concerned. Where no such document or certificate
is issued in the country concerned and for the other cases of exclusion
listed above, it may be replaced by a sworn or, failing that, a solemn
statement made by the interested party before a judicial or administrative
authority, a notary or a qualified professional body in its country
of origin or provenance. Depending on the national legislation of the
country in which the tenderer or candidate is established, the above
documents relate to legal persons and/or natural persons including,
where considered necessary by the Contracting Authority, company directors
or any person with powers of representation, decision-making or control
in relation to the candidate or tenderer. Where they have doubts concerning
the personal situation of candidates or tenderers, Contracting Authorities
may themselves apply to the competent authorities referred to above
to obtain any information they consider necessary about that situation.
Candidates
(first stage of a restricted procedure) and tenderers (second stage
of a restricted procedure for service contracts or the single stage
of an open procedure for works and supply contracts) must sign their
applications including the declaration that they do not fall into any
of the categories cited above
Tenderers who
have been notified the award of a contract must supply the proof usual
under the law of the country in which they are established that they
do not fall into the categories listed above. The date on the evidence
or documents provided must be no earlier than 1 year before the
date of the notification of award. Tenderers must, in addition, provide
a sworn statement that their situations have not altered in the period
that has elapsed since the evidence in question was drawn up. If the
supporting documents are written in a language other than the language(s)
of the call for tenders, a translation into one of those languages must
be attached which will apply for the purposes of interpreting the application
or the bid.
Contracts may
not be awarded to candidates or tenderers who, during the procurement
procedure:
are subject to a
conflict of interest;
are guilty of misrepresentation
in supplying the information required by the Contracting Authority as
a condition of participation in the contract procedure or fail to supply
this information.
Administrative
and financial penalties
Without prejudice
to the application of penalties laid down in the contract, candidates
or tenderers and contractors who have been guilty of making false declarations
or have been found to have seriously failed to meet their contractual
obligations in an earlier procurement procedure will be excluded from
the award of all contracts and grants financed by the Community budget
for a maximum of two years from the time when the infringement is established,
as confirmed after an adversarial procedure with the contractor. That
period may be extended to three years in the event of a repeat offence
within five years of the first infringement.
Penalties and
other sanctions can be taken as specified in the PRAG Section 2.3.5.
Sanctions may include to suspend performance of the contract.
Visibility
The grant beneficiary
and the sub-contractors for services, supplies or works must take the
necessary measures to ensure the visibility of the EU and Turkish Government
co-financing. Such measures must be in accordance with the rules set
out in the EU guidelines on visibility available from the EuropeAid
website at:
http://europa.eu.int/comm/europeaid/visibility/index_en.htm
Any printed material
(e.g. reports, newsletters, leaflets, brochures etc.) produced in the
frame of the RD SKE Programme should contain the following disclaimer:
“The contents of this publication is the sole responsibility of <name
of author/contractor/contracting authority> and can in no way be
taken to reflect the views of the EU”.
Any supplies or
equipment delivered under the RD SKE Programme must visibly carry the
EU and DPT logos and the mention “This project is co-funded
by the European Union and the Government of Republic of Turkey, and
RD SKE Programme is implemented under the coordination of DPT”
Infrastructure-related
projects co-funded by the EU and the Turkish Government must be clearly
identified as such by means of display panels describing the project.
The number and size of display panels must be commensurate with the
scale of operation and must be clearly visible so that those passing
are able to read and understand the nature of the project. Display panels
must visibly carry the EU and DPT logos and the mention “This
project is co-funded by the European Union and the Government of Republic
of Turkey, and RD SKE Programme is implemented under the coordination
of DPT”.
Other
essentials points
Conflict of interest:
Any event influencing the capacity of a candidate, tenderer, contractor
or grant beneficiary to give an objective and impartial professional
opinion, or preventing it, at any moment, from giving priority to the
interests of the Contracting Authority. Any consideration relating to
possible contracts in the future or conflict with other commitments,
past or present, of a candidate, tenderer, contractor or grant beneficiary.
These restrictions also apply to any sub-contractors and employees of
the candidate, tenderer, contractor or grant beneficiary. Any firm or
expert participating in the preparation of a project must be excluded
from participating in tenders based on this preparatory work, unless
they can prove to the Contracting Authority that the involvement in
previous stages of the project does not constitute unfair competition.
Awarding principles:
All contract awards must respect the principles of transparency, proportionality,
equal treatment and non-discrimination. The best tender complying with
the selection and award criteria must be selected.
The
contract must be awarded to the most economically advantageous tender
in accordance with the principles of transparency, fair competition
for potential contractors, and taking care of avoiding any conflict
of interest.
No retroactive
awards: Contracts are considered to take effect from the date of
signature of the last signatory. Contracts or contract addenda cannot
be awarded retroactively (i.e. after the end of the execution period)
under any circumstances. This means that no disbursements can be effected
and no goods and services provided prior to the signature of the contract
and/or addendum.
All
contracts must show the true dates of signature of the contracting parties.
Use of standard
documents: Standard contracts and document formats must be used.
Record keeping:
written records of the entire tendering and contracting procedure must
be kept confidential and retained by the Grant Beneficiary for a period
of seven years from payment of the balance. These must include the originals
of all tenders submitted, together with the corresponding tender dossiers
and any related correspondence.
Procurement
procedures
The basic principle
governing the award of contracts is competitive tendering. The purpose
is twofold:
to ensure the transparency
of operations; and
to obtain the desired
quality of services, supplies or works at the best possible price.
There are several
different procurement procedures, each allowing for a different degree
of competition.
Which
procurement procedure to apply ?
The rules for
applying the standard procurement procedures explained later in this
section are summarised in the table below. They are divided between
those for services (e.g., technical assistance, studies, provision of
know-how and training), supplies (i.e., equipment and materials) and
works (i.e., infrastructure and other engineering works).
The grant beneficiary
being the Contracting Authority should proceed with tendering and contracting
following these standard procedures.
The thresholds
given in the table are based on the maximum budget for the contract
in question (including any co-financing). For example: the purchase
of a machine/equipment of €200.000 (or its equivalent in another currency)
falls under Supplies above €150.000; this means that the machine should
be purchased through an international open tender procedure.
Where contracts
are subdivided in lots, the value of each lot shall be taken into account
when calculating the overall threshold.
Note that projects
must not be split artificially to circumvent the procurement thresholds.
Service
Contracts
Supply Contracts
Works Contracts
Contracts of €150.000
or more
International
open tender procedure following publication of a procurement notice
Contracts of €5.000.000
or more
International
open tender procedure following publication of a procurement notice
Contracts
of €200.000 or more
International
restricted tender procedure following publication of procurement notice
Contracts between €30.000
and €150.000
Open tender
procedure published locally (= only in Turkey)
Contracts between €300.000
and €5.000.000
Open tender
procedure published locally (= only in Turkey)
Contracts
under €200.000 but more than €5.000
Negotiated
procedure without publication
(Beneficiary
consults at least 3 service providers)
Contracts under €30.000
but more than €5.000
Negotiated
procedure without publication
(Beneficiary
consults at least 3 suppliers)
Contracts under €300.000
but more than €5.000
Negotiated
procedure without publication
(Beneficiary
consults at least 3 contractors)
Contracts
with a value of €5.000 or less
Order on basis
of a single tender
Contracts with a value
of €5.000 or less
Order on basis
of a single tender
Contracts with a value
of €5.000 or less
Order on basis
of a single tender
Rules
common to all tender procedures
The tender
documents must be drafted in accordance with EU PRAG. Grant beneficiaries
may use the models (in particular the tender dossier) published on the
European Commission’s web site relating to external actions. The European
Commission will not publish the tender documents established by the
Beneficiary.
The time-limits
for receipt of tenders and requests to participate must be long enough
to allow interested parties a reasonable and appropriate period to prepare
and submit their tenders.
All requests
to participate and tenders declared as satisfying the requirements must
be evaluated and ranked by an evaluation committee on the basis of the
exclusion, selection and award criteria announced in advance. This committee
must have an odd number of members, at least three, with all the technical
and administrative capacities necessary to give an informed opinion
on the tenders.
Any deviation
from the procedures set out in this Guide requires the prior approval
of the CFCU.
Rules
applicable to Service contracts
Contracts of
€200000 or more
Service contracts
worth €200000 or more must be awarded by means of an international
restricted tender procedure following publication of a procurement
notice.
The procurement
notice is to be published in all appropriate media, in particular on
the Beneficiary’s web site, in the international press and the national
press of the country in which the Action is being carried out, or in
other specialist periodicals. It must state the number of candidates
which will be invited to submit tenders. This will be within a range
of four to eight candidates, and must be sufficient to ensure genuine
competition.
All would-be
service providers fulfilling the eligibility conditions may ask to participate
but only candidates satisfying the published selection criteria and
invited in writing by the Beneficiary may submit a tender.
What
is a “restricted procedure” ?
Calls
for tender are restricted where all economic operators may ask to take
part but only candidates satisfying the selection criteria may submit
a tender.
Under
the restricted procedure, the Grant Beneficiary invites a limited number
of candidates to tender. Before launching a tender procedure, it will
draw up a shortlist of candidates selected as a result of their qualifications.
The selection procedure, by which the long list (all candidates responding
to the published notice) is cut down to a shortlist, involves examining
responses to a procurement notice, in which the selection criteria and
a general description of the tasks to be undertaken are set out.
In
the second stage of the procedure, the Grant Beneficiary invites the
short listed candidates and sends them the tender dossier. In order
to ensure fair competition, tenders must be submitted by the same service
provider or consortium which has submitted the application form on the
basis of which it was short-listed and to which the letter of the invitation
to tender is addressed.
The
successful tenderer is chosen by the procurement procedure once the
tenders have been analysed. No negotiation is allowed.
Contracts under
€200 000
Service contracts
worth less than €200000 must be awarded by means of a negotiated
procedure without publication, in which the Beneficiary consults
at least three service providers of its choice and negotiates the terms
of the contract with one or more of them.
What
is a “negotiated procedure” ?
Under
the negotiated procedure, the Grant Beneficiary invites tenders from
candidates of its choice. At the end of the procedure, it selects the
most economically advantageous tender in case of service tenders and
the cheapest compliant offer in case of supplies or works tenders.
For services
of a value of €5000 or less, the Beneficiary may place orders on the
basis of a single tender.
Rules
applicable to Supply contracts
Contracts of
€150000 or more
Supply contracts
worth €150000 or more must be awarded by means of an international
open tender procedure in the English language following publication
of a procurement notice.
The procurement
notice is to be published in all appropriate media, in particular on
the Beneficiary’s web site, in the international press and the national
press of the country in which the Action is being carried out, or in
other specialist periodicals.
Any would-be
supplier which fulfils the eligibility conditions may submit a tender.
What
is an “open procedure” ?
Calls
for tender are open where all interested economic operators may
submit a tender. The contract is given maximum publicity through the
publication of a notice in appropriate media.
Under
the open procedure, any natural or legal person wishing to tender receives
upon request the tender dossier (which may have to be paid for), in
accordance with the procedures laid down in the procurement notice.
When the tenders received are examined, the contract is awarded by conducting
the selection procedure (i.e., verification of the eligibility and of
the financial, economic, technical and professional capacity of tenderers)
and the procurement procedure (i.e., comparison of tenders). No negotiation
is allowed.
Contracts between
€30000 and €150000
Such contracts
are awarded by means of an open tender procedure published
locally: the procurement notice is published in all appropriate media
but only in the country in which the Action is being carried out.
A local open
tender procedure must provide other eligible suppliers with the same
opportunities as local firms. Thus the
tender dossier can be in Turkish, however if a tenderer wants the tender
dossier in English because he/she is of one of the eligible countries
other than Turkey, then a translation of the Turkish tender dossier
should be provided by the grant beneficiary.
Contracts under
€30000
Supply contracts
worth less than €30000 must be awarded by means of a negotiated
procedure without publication, in which the Beneficiary consults
at least three suppliers of its choice and negotiates the terms of the
contract with one or more of them.
For supplies
of a value of €5000 or less, the Beneficiary may place orders on the
basis of a single tender.
Rules
applicable to Works contracts
Contracts of
€5000000 or more
Not applicable
for Grant beneficiaries from the RD SKE NUTS II Regions programme.
Contracts of
between €300000 and €5000000
Such contracts
are awarded by means of an open tender procedure published
locally: the procurement notice is published in all appropriate media
but only in the country in which the Action is being carried out.
A local open
tender procedure must provide other eligible contractors with the same
opportunities as local firms. Thus the tender dossier can be in Turkish,
however if a tenderer wants the tender dossier in English because he/she
is of one of the eligible countries other than Turkey, then a translation
of the Turkish tender dossier should be provided by the grant beneficiary.
Contracts under
€300000
Works contracts
worth less than €300000 must be awarded by means of a negotiated
procedure without publication, in which the Beneficiary consults
at least three contractors of its choice and negotiates the terms of
the contract with one or more of them.
For works of
a value of €5000 or less, the Beneficiary may place orders on the
basis of a single tender.
Use
of the negotiated procedure
The Beneficiary
may use the negotiated procedure on the basis of a single tender in
the following cases:
(a)where,
for reasons of extreme urgency brought about by events which
the Beneficiary could not have foreseen and which can in no way be attributed
to him, the normal time-limit for the procedures cannot be met. The
circumstances invoked to justify extreme urgency must in no way be attributable
to the Beneficiary.
Actions
carried out in crisis situations identified by the CFCU are considered
to satisfy the test of extreme urgency. The CFCU will inform the Beneficiary
if a crisis situation exists and when it comes to an end.
(b)where
the services are entrusted to public-sector bodies or to non-profit
institutions or associations and relate to activities of an institutional
nature or designed to provide assistance to peoples in the social field;
(c)where
contracts extend activities already under way which are not included
in the main contract but which, because of unforeseen circumstances,
have become necessary to perform the contract, or which consist of the
repetition of similar services entrusted to the contractor providing
services under the initial contract;
(d)for
additional deliveries by the original supplier intended either as a
partial replacement of normal supplies or installations or as the extension
of existing supplies or installations, where a change of supplier would
oblige the Beneficiary to acquire equipment having different technical
characteristics which would result in either incompatibility or disproportionate
technical difficulties in operation and maintenance;
(e)for
additional works not included in the initial contract concluded which
have, through unforeseen circumstances, become necessary for carrying
out the works;
(f)where
the tender procedure has been unsuccessful, that is where no qualitatively
and/or financially worthwhile tender has been received. In such cases,
after cancelling the tender procedure, the Beneficiary may negotiate
with one or more tenderers of its choice, from among those that took
part in the tender procedure, provided that the initial terms of the
tender procedure are not substantially altered;
(g)where
the contract concerned follows a contest and must, under the rules applying,
be awarded to the winner of the contest or to one of the winners of
the contest, in which case, all winners shall be invited to participate
in the negotiations;
(h)where,
for technical reasons, or for reasons connected with the protection
of exclusive rights, the contract can be awarded only to a particular
service provider;
(i)where
warranted by the nature or particular characteristics of the supplies,
for example, where performance of the contract is exclusively reserved
for the holders of patents or licences to use patents;
(j)where
the orders are placed with a procurement centre affiliated to the Beneficiary
or to which the Beneficiary is affiliated, or with a humanitarian procurement
centre certified by the competent service of the European Commission;
(k)for
the issue of the expenditure verification report and the financial guarantee
where they are required under the Contract.
Fair
competition
The arrangements
for competitive tendering and publicising contracts for works, supplies
and services depend on the contract value.
In the case
of mixed contracts covering a combination of works, supplies or services,
the Grant Beneficiary determines the procurement procedure to be used
(with the prior agreement of the CFCU). This will depend on which
of the components (works, supplies or services) prevails, an assessment
which must be made on the basis of the value and strategic importance
of each component relative to the contract as a whole.
No contract
may be split simply to evade compliance with the rules set out in this
Guide. If there is any doubt about how to estimate the value of the
contract, the Grant Beneficiary must consult the CFCU (via the PIU)
on the matter before embarking on the procurement procedure.
Whatever the
procedure used, the Grant Beneficiary must ensure that conditions are
such as to allow fair competition. Wherever there is an obvious and
significant disparity between the prices proposed and the services offered
by a tenderer, or a significant disparity in the prices proposed by
the various tenderers (especially in cases in which publicly-owned companies,
non-profit associations or non-governmental organisations are taking
part in a tender procedure alongside private companies), the Grant Beneficiary
must carry out checks and request any additional information necessary.
The Grant Beneficiary must keep such additional information confidential.
Selection
and award criteria
Whether contracts
are awarded by open or restricted procedure, the following operations
are always performed:
Selection criteria
4.3.8.1.1. General principles
The Contracting
Authorities will draw up clear and non-discriminatory selection criteria.
The following selection criteria apply in every procurement procedure:
-the eligibility
of the tenderer or candidate to take part in the procedure, checks
having been carried out on the possible grounds for exclusion;
-criteria for
assessing its financial, economic, technical and professional capacity.
The Grant Beneficiary
may lay down minimum capacity levels below which it cannot select candidates.
Any tenderer or candidate may be asked to prove that it is authorised
to perform the contract under national law, as evidenced by inclusion
in a trade or professional register, or a sworn declaration or certificate,
membership of a specific organisation, express authorisation, or entry
in the VAT register.
The Grant Beneficiaries
shall specify in the procurement notice the references chosen to test
the status and the legal capacity of tenderers or candidates. The information
requested by the Grant Beneficiary as proof of the financial, economic,
technical and professional capacity of the candidate or tenderer and
the minimum capacity levels required fixed by the selection criteria
may not go beyond the subject of the contract and shall take account
of the legitimate interests of the economic operators as regards in
particular the protection of the firm's technical and business secrets.
For service
and supply procedures, only successful tenderers have to supply the
above mentioned proofs before the award of the contract.
For works procedures
the mentioned proofs have to be submitted in accordance with the tender
dossier.
For contracts
with a value of less than €50.000, the Grant Beneficiary may, depending
on its analysis of risks, choose not to ask tenderers to provide documentary
proof of their financial and economic, technical and professional capacity.
In that case no pre-financing or interim payment may be made.
4.3.8.1.2. Verification
of the eligibility of tenderer or candidates
This is done
as laid down in point 2.2, "Eligibility criteria and other essentials".
4.3.8.1.3. Verification
of the financial and economic capacities of tenderers or candidates
Proof of economic
and financial capacity may in particular be furnished by one or more
of the following documents:
appropriate statements
from banks or evidence of professional risk indemnity insurance;
the presentation
of balance sheets or extracts from balance sheets for at least the last
two years for which accounts have been closed, where publication of
the balance sheet is required under the company law of the country in
which the economic operator is established;
a statement of overall
turnover and turnover concerning the works, supplies or services covered
by the contract during a period which may be no more than the last three
financial years.
An economic
operator may, where appropriate and for a particular contract, rely
on the capacities of other entities, regardless of the legal nature
of the links which it has with them. It must in that case prove to the
Grant Beneficiary that it will have at its disposal the resources necessary
for performance of the contract, for example by producing an undertaking
on the part of those entities to place those resources at its disposal.
Under the same conditions, a consortium of economic operators may rely
on the capacities of members of the consortium or of other entities.
4.8.3.1.4. Verification
of the technical and professional capacities of tenderers,
candidates and their managerial staff
The technical
and professional capacity of economic operators must be evaluated and
verified in accordance with the following paragraph. In procurement
procedures for supplies requiring installation operations, services
and/or works etc, such capacity must be assessed