In certain narrowly defined circumstances a contracting authority may award a contract using the Negotiated Procedure without prior publication. Here the contracting authority would approach one or more suppliers seeking to negotiate the terms of the contract without any advertising.
The Negotiated Procedure without prior publication may be used for works, supplies or services in any of the following cases:
- where no tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission where it so requests
- a tender shall be considered not to be suitable where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the contracting authority’s needs and requirements as specified in the procurement documents.
- a request to participate shall be considered not to be suitable where the economic operator concerned is to be or may be excluded under the grounds for exclusion or does not meet the selection criteria
2. where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons:
i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance,
ii) competition is absent for technical reasons,
iii) the protection of exclusive rights, including intellectual property rights,
but only, in the case of paragraphs (ii) and (iii), where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parametres of the procurement;
3. insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority (not attributable to the contracting authority), the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with.
Additional grounds relevant to public supply contracts
The Negotiated Procedure without prior publication may be used for public supply contracts:
- where the products involved are manufactured purely for the purpose of research, experimentation, study or development, but contracts awarded in reliance on this sub paragraph shall not include quantity production to establish commercial viability or to recover research and development costs;
- for additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance;
In respect of the above the contract shall not, save in exceptional circumstances, exceed 3 years.
- For supplies quoted and purchased on a commodity market;
- For the purchase of supplies or services on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.
Additional ground relevant to new works or services which repeat similar ones
The negotiated procedure without prior publication may be used for new works and services consisting of the repetition of similar works or services entrusted to the economic operator to which the same contracting authority awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded following a procedure in accordance with regulation 26 (1) and (2).
The basis project shall indicate the extent of possible additional works or services and the conditions under which they will be awarded.
As soon as the first project is put up for tender, the possible use of this procedure shall be disclosed and the total estimated of subsequent works or services shall be taken into consideration by the contracting authority when it applies regulation 5.
This procedure may be used only during the 3 years following the conclusion of the original contract.