Under the negotiated procedure the contracting authority consults with the selected economic operators (suppliers) and the terms of the contract are negotiated directly with one or more suppliers.
As a general rule, there must be a call for competition with the publication of a contract notice. The notice is published in the OJEU seeking tenders under the Negotiated Procedure. See also Types of Communication.
Where there has been a call for competition, the advertisement will state a date by which requests to participate must be received. When this date has passed, all requests must be assessed against the published grounds for exclusions and the selection criteria. It is permitted to state the number of firms the contracting authority intends to invite for tender. Where possible, the number of suppliers invited to participate should be at least 3 (unless fewer meet the published selection criteria). It is important that there are sufficient suppliers to ensure genuine competition.
Note: It is important that the grounds for exclusion, the selection and the award criteria are not confused and used at the wrong stage of the tendering process. A contracting authority cannot take account of a tenderer's experience, manpower, equipment or ability to perform the contract by an anticipated deadline (which are selection criteria relating to capability) as part of the award criteria. Such criteria should only be taken into account at pre-qualification stage.
Applicants that do not proceed to the tender stage should be so advised and, if they request it, de-briefed within 15 days of their request.
A performance-based specification will be developed and refined during negotiations with the participants and tender documentation will be issued to the selected suppliers who will be invited to submit tenders. The documentation will state the date and time by which the contracting authority must receive completed submissions.
After the stated closing date and time has passed, the submission is evaluated using the award criteria stated in the Contract Notice or in the tender documentation.
Note, however that, in certain specified circumstances, a negotiated procedure may be used without a call for competition.
The use of the negotiated procedure, with or without a published contract notice, is closely defined and the circumstances differ depending on what the tender is for and whether there is a call for competition:
Other considerations in respect of the negotiated procedure are
After the award decision has been made
- all remaining bidders must be advised of the proposed award decision and the mandatory standstill period observed
- a contract award notice must be published in the OJEU within 48 days of the contract award, and
- any request from a supplier to be de-briefed must be completed within 15 days of the request.
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