The Programme is co-funded by the European Union, Instrument for Pre-Accession Assistance (IPA) Training session to final beneficiaries of 2° Call for.

The Programme is co-funded by the European Union, Instrument for Pre-Accession Assistance (IPA)

Training session to final beneficiaries of 2° Call for

ordinary projects

The public procurement theme

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Joint Technical Secretariat

Tirana, on 14 December 2012


Terms of awarding contracts under the

Programme rules

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For the award of service, supply and work contracts, the procurement procedures shall follow the provisions of Chapter 3 of Part 2, Title IV of Regulation (EC, Euratom) No 1605/2002 and Chapter 3 of Part 2, Title III of Regulation (EC, Euratom) No 2342/2002, as well as Commission Decision C(2007) 2034 on the rules and procedures applicable to service, supply and work contracts financed by the general budget of the European Communities for the purposes of cooperation with third countries, with the exclusion of Section II.8.2.Those provisions shall apply in the whole area of the cross-border programme, both on the Member State’s and on the beneficiary countries’ territory.


Reference documentsEU Regulation No 1605/2002

EC Regulation No 2342/2002

EC Decision No 2034/2007

National rules where applicable

EU Regulation No 1605/2002

EC Regulation No 2342/2002

EC Decision No 2034/2007

National rules where applicable

Programme Management and Control Manual

Programme Management and Control Manual

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General Conditions of IPA Subsidy Contract General Conditions of IPA Subsidy Contract

1) PRA.G. version in force2) Interact guide for public procurement in IPA CBC Programmes with MS in shared managment3) JTS guide on EC rules4) JTS guidance on procurement procedure for low value contracts or single tender contracting5) Interact guide for derogation to the rule of origin

1) PRA.G. version in force2) Interact guide for public procurement in IPA CBC Programmes with MS in shared managment3) JTS guide on EC rules4) JTS guidance on procurement procedure for low value contracts or single tender contracting5) Interact guide for derogation to the rule of origin


The key EU enforceable rules

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1) EU Treaty Principles:a) Right of Establishment (art. 49)b) Freedom to provided services (art. 56) and goods (art. 34)c) Prohibition to apply unjustified restrictions for nationality (art. 49, 56, and

Title V)d) Transparency and not discrimination (art. 106)

2) Mutuality recognition for foreign operators and origins of goods provided (COM (2007) 2034, Part II, Section II.2.1. and Section II.2.2.)

3) Modalities of the tender publicity (art. 240, Reg. (CE, Euratom) 2342/2002;4) Thresholds amounts and tender modalities (art. 241, 243, 245 Reg. (CE,

Euratom) 2342/2002);5) Composition of the tender documents (art. 249 Reg. (CE, Euratom)

2342/2002);6) Time limits for procedures (art. 251 Reg. (CE, Euratom) 2342/2002);7) Evaluation Committee: composition, tasks and assessment procedure (art. 252

Reg. (CE, Euratom) 2342/2002);8) Grounds for exclusion from participation in the tender (art. 93 of Reg. (EC,

Euratom) 1605/2002, art. 133, 133a, 134 of Reg. (EC, Euratom) 2342/2002)9) Grounds for exclusion from award of the contract (art. 94 of Reg. (EC,

Euratom) 1605/2002, art. 133, 133a of Reg. (EC, Euratom) 2342/2002);10)Criteria to select the tender (art. 130 (3,b), 241, 243 and 245, Reg. (EC,

Euratom) 2342/2002)11)Start of the contract implementation (art. 149a Reg. (CE, Euratom)

2342/2002).

1) EU Treaty Principles:a) Right of Establishment (art. 49)b) Freedom to provided services (art. 56) and goods (art. 34)c) Prohibition to apply unjustified restrictions for nationality (art. 49, 56, and

Title V)d) Transparency and not discrimination (art. 106)

2) Mutuality recognition for foreign operators and origins of goods provided (COM (2007) 2034, Part II, Section II.2.1. and Section II.2.2.)

3) Modalities of the tender publicity (art. 240, Reg. (CE, Euratom) 2342/2002;4) Thresholds amounts and tender modalities (art. 241, 243, 245 Reg. (CE,

Euratom) 2342/2002);5) Composition of the tender documents (art. 249 Reg. (CE, Euratom)

2342/2002);6) Time limits for procedures (art. 251 Reg. (CE, Euratom) 2342/2002);7) Evaluation Committee: composition, tasks and assessment procedure (art. 252

Reg. (CE, Euratom) 2342/2002);8) Grounds for exclusion from participation in the tender (art. 93 of Reg. (EC,

Euratom) 1605/2002, art. 133, 133a, 134 of Reg. (EC, Euratom) 2342/2002)9) Grounds for exclusion from award of the contract (art. 94 of Reg. (EC,

Euratom) 1605/2002, art. 133, 133a of Reg. (EC, Euratom) 2342/2002);10)Criteria to select the tender (art. 130 (3,b), 241, 243 and 245, Reg. (EC,

Euratom) 2342/2002)11)Start of the contract implementation (art. 149a Reg. (CE, Euratom)

2342/2002).


Rule of origin and rule of nationality

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According to art. 19 of EC Regulation 1085/2006 supplies and materials purchased under a contract financed under this Programme must originate in the Community or in one of the countries eligible for external aid (art. 19, paragraphs 1 and 2 of the same Regulation). Tenderers must then state the origin of the supplies in their tenders.

Additionally, according to the same article, tenderers must be nationals of one of the above mentioned eligible countries and must then state, in their tender, the country of which they are nationals by presenting the proof of nationality usual under their national legislation. This rule does not apply to the experts proposed by the service providers taking part in the calls for tenders or in the service contracts financed by the grant, who may be of any nationality.

A derogation to such rules is possible according to article 1 of EC Decision No 3740/2011. It may be authorized by the MA and required with the appropriate form provided in the Programme website.


The key nationalenforceable rules

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1) Contracting fund provision2) Responsible of the tender procedure3) Tender language4) Grounds for exclusion from participation in the tender in the

matter of crime organization, violation of tax duties and social insurance, violation of prevention of accidents and security in the job place rules

5) National Court competence 6) Form, term for signature and registration duty of the contract7) Only for national and international tenders: the tender national

code and tender tax payment duty for tenders

1) Contracting fund provision2) Responsible of the tender procedure3) Tender language4) Grounds for exclusion from participation in the tender in the

matter of crime organization, violation of tax duties and social insurance, violation of prevention of accidents and security in the job place rules

5) National Court competence 6) Form, term for signature and registration duty of the contract7) Only for national and international tenders: the tender national

code and tender tax payment duty for tenders


The Italian case

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1) Art. 38 of the Legislative Decree n. 163/2006 in the matter of general qualifications that has to be required to the tenders

2) Art. 3 of the Law n. 136/2010 in the matter of compliance with the traceability of payments provisions

3) Decisions n. 8/2010 and n. 10/2010 of the Authority for the Supervision of Public Contracts for works, services and supplies in the matter of due use of the C.I.G. - unique code for tender

4) Art. 2, paragraph 1, D.P.R. 642/1972 in the matter of due stamp (Euro 14,62 stamp for every 4 pages) upon the tender application (see, answer n. 46923/96 October 1999 by Lombardy regional direction of National Tax Agency)

5) Art. 11, par. 13, of the Legislative Decree n. 163/2006 in the matter of form of the contract

1) Art. 38 of the Legislative Decree n. 163/2006 in the matter of general qualifications that has to be required to the tenders

2) Art. 3 of the Law n. 136/2010 in the matter of compliance with the traceability of payments provisions

3) Decisions n. 8/2010 and n. 10/2010 of the Authority for the Supervision of Public Contracts for works, services and supplies in the matter of due use of the C.I.G. - unique code for tender

4) Art. 2, paragraph 1, D.P.R. 642/1972 in the matter of due stamp (Euro 14,62 stamp for every 4 pages) upon the tender application (see, answer n. 46923/96 October 1999 by Lombardy regional direction of National Tax Agency)

5) Art. 11, par. 13, of the Legislative Decree n. 163/2006 in the matter of form of the contract


The phatological causes

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For avoiding the revocation of the tender: article 153 of Reg. (CE, Euratom) 2342/2002, suggests to cancel the tender in the event of errors, irregularities or any violation of law rule or tender provision or omission that had or could be have a prejudice for the EU contributions

For avoiding the revocation of the tender: article 153 of Reg. (CE, Euratom) 2342/2002, suggests to cancel the tender in the event of errors, irregularities or any violation of law rule or tender provision or omission that had or could be have a prejudice for the EU contributions

The voidability of the tender deed: in any case where the deed is effected by illegitimacy, excess of power or incompetence of contracting authority

The voidability of the tender deed: in any case where the deed is effected by illegitimacy, excess of power or incompetence of contracting authority

The nullity of the tender deed: only where it is expressly provided by the law

The nullity of the tender deed: only where it is expressly provided by the law


Contract award declaration

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It is a form which needs to be filled in and uploaded into the M.I.S. in the occasion of reporting of the first expenditure related to the awarded contract.

It has a monitoring meaning in order to ensure that the project activities have been implemented according with the public procurement provisions referred to article 121 of IPA Impl. Reg.

For any awarded contract not exceeding 10,000 EUR, but higher than 500 EUR, Final Beneficiaries are invited to fill in - and upload as a “.pdf” file into the M.I.S. - the “Single tender procedure report” when reporting expenditure.


Checks concerning

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a) the appropriateness of the procurement method being used in accordance with the awarding amount;

b) the appropriateness of the selection and award criteria, the lack of confusion between both and the use of the published criteria during the evaluation process;

c) the compliance of these criteria with the fundamental principles of the EU Treaties (transparency, non-discrimination, equal treatment);

d) the adequateness of the level of advertisement of the tender;

e) the lack of discriminatory technical specifications;

f) the adequateness of the tender evaluation reports prepared by evaluation committees and the existence of complaints submitted to the contracting authority by the excluded tenderers.


Kinds of controls

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Expenditure eligibility controlIt has the aim to verify the really and the conformity of the expenditure with the contract provisions, awarded with a regular tender.A gross infringement of the contract provisions is an ineligibility cause of the expenditure as provided by art. 13 of Reg. (EC) 1828/2006 (103, par. 1, lett. c), Reg. (EC) 718/2007).

Expenditure eligibility controlIt has the aim to verify the really and the conformity of the expenditure with the contract provisions, awarded with a regular tender.A gross infringement of the contract provisions is an ineligibility cause of the expenditure as provided by art. 13 of Reg. (EC) 1828/2006 (103, par. 1, lett. c), Reg. (EC) 718/2007).

Legitimacy controlIt is addressed to verify when an unconformity shall be considered as any gross infringement of a provision of the tender or regulation which causes or might cause a loss to the Community budget.In such case the tender is an infringement of art. 121 of Reg. (EC) 718/2007

Legitimacy controlIt is addressed to verify when an unconformity shall be considered as any gross infringement of a provision of the tender or regulation which causes or might cause a loss to the Community budget.In such case the tender is an infringement of art. 121 of Reg. (EC) 718/2007

Conformity controlIt is addressed to verify the conformity of tender procedure with the enforceable provisions. An unconformity doesn’t mean an infringement of art. 121 Reg. (EC) 718/2007, with considering of the whole effects produced by the tender procedure (effects remedial).

Conformity controlIt is addressed to verify the conformity of tender procedure with the enforceable provisions. An unconformity doesn’t mean an infringement of art. 121 Reg. (EC) 718/2007, with considering of the whole effects produced by the tender procedure (effects remedial).


The in-house providing

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It is a derogation case of public procurement procedure.It could occur when:1) the in-house provider is controlled by the contracting authority exercising on it a control analogous to the one exercised over its own departments (“structural subordination”); and2) at the same time, the in-house provider carries out the essential part of its statutory activities for the controlling authority (“economical dependency”); and3) the in-house provider is owned by the contracting authority and its capital IS NOT intended to be opened to private parties in the course of the performance of the respective public contracts, even if the private partner would have a minority share otherwise the analogous control doesn’t actually exist.Pay attention to: the in-house provider may operate

without making profit

The Programme is co-funded by the European Union, Instrument for Pre-Accession Assistance (IPA) Training session to final beneficiaries of 2° Call for.

Documents

ec regulation

ec rules

ec decision

programme rules

title iv of regulation

tender modalities

tender documents

single tender