European Investment Bank. Guide to Procurement

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2 GUIDE TO PROCUREMENT fr prjects financed by the EIB Updated versin f June 2011

3 TABLE OF CONTENTS Intrductin 1. General Aspects The Bank s Plicy Eligibility f Cntractrs and Suppliers f Gds and Services Bank and Prmters: Respective Rles Ethical Cnduct Cnflict f Interest Transparency f Bank Activities Disclsure f Infrmatin Cmplaints against the Bank Envirnmental and Scial Plicies Operatins within the Eurpean Unin Operatins t which EU Directives apply Operatins t which EU Directives d nt apply Operatins utside the Eurpean Unin General Eligibility f Prviders f Wrks, Gds and Services Financing frm Own Resurces Financing under Resurces frm Third Parties C-financing frm Own Resurces Descriptin f Prcurement Prcedures General Internatinal Prcurement Prcedures Natinal Prcurement Prcedures Selectin f Prcurement Prcedures Operatins in the Public Sectr Operatins in the Private Sectr Cncessin Operatins Specific Operatins Specific Case f Jint C-financing Bank Review f Prcurement Decisins (fr bth public and private peratins) Prhibited Cnduct - Cvenant f Integrity Internatinal Prcurement Prcedures General Aspects Publicatin f the Prcurement Ntice Pre-qualificatin in Restricted Prcedures Tender Dcuments Language Technical Specificatins Tender Prices fr Gds, Wrks and Services Currency Lcal Preference fr Gds Tender Evaluatin Criteria Opening f Tenders Evaluatin f Tenders Award and Signature f the Cntract Award Ntice Cnsultancy Services financed by the Bank Prjects Lcated Within the Eurpean Unin Prjects Lcated Outside the Eurpean Unin Descriptin f Prcedures Selectin f Prcedures Evaluatin f Cnsultants Prpsals Management f the Cntract Annex 1 Specific Prcurement Terms and Practices 26 Annex 2 Review by the Bank f Prcurement Decisins 28 Annex 3 Cvenant f Integrity 30 Annex 4 Eligibility fr Operatins Financed under Resurces frm External Mandates 32 Annex 5 Definitin f Public Operatins Outside the Eurpean Unin 33 Annex 6 Standard Frm f the Prcurement Ntice 36 June 2011 page 2 / 36

4 INTRODUCTION The purpse f this is t infrm the prmters f a prject whse cntracts are financed in whle r in part by the Eurpean Investment Bank ( the Bank ) - r are financed under lans guaranteed by the Bank - f the arrangements t be made fr prcuring wrks, gds and services required fr the prject. This Guide applies specifically t thse cmpnents f a prject identified fr Bank s financing. Hwever, in rder t ensure the verall feasibility f the prject, the Bank requires that prcurement f the ther prject cmpnents des nt cmprmise the prject s technical, ecnmic and financial viability. The terms pen, restricted and negtiated prcedures, and cmpetitive dialgue are used in this Guide with the meaning defined by Eurpean Unin (EU) Directives n prcurement (see definitins set ut in Annex 1). This Guide will be updated as deemed necessary by the Bank. Versin dated June June 2011 page 3 / 36

5 1. GENERAL ASPECTS 1.1. The Bank s Plicy The main elements f the Bank s plicy n prcurement are: The Bank will ensure that its funds are emplyed as ratinally as pssible. This requires that the wrks, gds and services prcured under its financing are f apprpriate quality, and acquired at ecnmic prices and in a timely manner. This is generally best achieved thrugh pen internatinal cmpetitin. It is cnsistent with the Bank s statute and accrds with the interests f prmters. In prjects lcated within the Eurpean Unin (EU), and in thse Candidate Cuntries (with which negtiatins are already in prgress fr their accessin t the EU) and Ptential Candidate Cuntries that have already incrprated the relevant EU legislatin, the Bank requires that the applicable EU Law n public prcurement, in particular the relevant EU prcurement Directives cncerning cmpetitive tendering n the basis f fair and nndiscriminatry terms, be cmplied with, particularly as cncerns pen r restricted prcedures with publicatin in the Official Jurnal f the Eurpean Unin (OJEU). In all ther cuntries utside the Unin, the Bank requires that the main mechanisms f the EU Directives n prcurement be fllwed, with the necessary prcedural adaptatins. These mechanisms may be summarised as pen internatinal cmpetitin, nndiscriminatin f tenderers, fairness and transparency f the prcess, and selectin f the ecnmically mst advantageus ffer. Thus pen r restricted prcedures with publicatin in the OJEU is the Bank s preferred methd. The actual chice f prcurement prcedures ultimately has t take int accunt a range f cnsideratins, relating in particular t the cmmercial nature and interests f the prmter; the sectr invlved; the nature f the wrks, gds and services t be prcured; the technlgy t be used; the size f individual cmpnents; the timetable fr implementatin; the number f firms ptentially able t undertake the wrk r prvide the supplies r services; the cmpetitiveness f the market; etc. In the case where pen r restricted prcedures are nt fllwed, prmters must, t the satisfactin f the Bank, justify their decisin t use a different prcedure; they must prve that the prices fr the wrks, gds r services are cmmensurate with thse btained fr equivalent investments in the light f market cnditins and that, at the very least, any differences in cst can be explained by specific verifiable factrs Eligibility f Cntractrs and Suppliers f Gds and Services In the usual case f prjects (bth inside and utside the Unin) financed by the Bank s wn resurces (funds raised mainly thrugh the Bank s brrwings n capital markets), firms riginating frm all cuntries f the wrld are eligible t tender fr wrks, gds and services cntracts. In sme specific cases f prjects utside the Unin, the Bank s financing cmes frm third parties, and the rigin f firms eligible t participate in the prcurement may then be partly restricted. Details f such restrictins are prvided in sectin 3.2. In additin, individuals r firms may nt be eligible t tender in applicatin f sectin 1.4 n Ethical Cnduct. June 2011 page 4 / 36

6 1.3. Bank and Prmters: Respective Rles Prmters are fully respnsible fr implementing prjects financed by the Bank, in particular fr all aspects f the prcurement prcess, frm drafting tender dcuments and awarding cntracts thrugh t implementing cntracts. The invlvement f the Bank is cnfined slely t verifying whether r nt the cnditins attached t its financing are met. The Bank may advise r assist prmters in the prcurement prcess, but is nt a party t the resulting cntracts. The Bank has the right and bligatin t ensure that, in the case f prjects inside the Unin, EU prvisins in this field r, in the case f prjects utside the Unin, the relevant criteria with regard t the prper management f its financing are respected, and that the prcurement prcess is fair and transparent and the tender selected is ecnmically the mst advantageus. The rights and bligatins f the prmter vis-à-vis the tenderers fr wrks, gds r services t be furnished fr a prject are gverned by the lcal legislatin and tender dcuments published by the prmter, and nt by this Guide. In additin, the EIB requires prmters t ensure that review prcedures fr effective remedies are available t any party having r having had an interest in btaining a particular cntract and wh has been r risks being harmed by an alleged infringement. This shuld be distinguished frm the Bank s wn review f prcurement decisins fr prjects lcated utside the Eurpean Unin, which is summarised in sectin 3.5 and in Annex Ethical Cnduct It is the Bank s plicy t require that prmters, as well as tenderers, cntractrs, suppliers and cnsultants under Bank-financed cntracts, bserve the highest standard f ethics during the prcurement and executin f such cntracts. The Bank reserves the right t take all apprpriate actin in rder t enfrce this plicy. Mrever, the Bank is cmmitted t ensuring that its lans are used fr the purpses intended and its peratins are free frm prhibited cnduct (including but nt limited t, fraud, crruptin, cllusin, cercin 1, and mney laundering and terrrist financing). In pursuance f this plicy as set ut in EIB s Anti-Fraud Plicy and within the framewrk f its exclusin prcedures (published in the Bank s website: the Bank: may declare an individual r an entity ineligible t be awarded a cntract under any EIB Prject r t enter int any relatinship with the Bank, if it determines pursuant t its exclusin prcedures that such individual r entity has engaged in any prhibited cnduct in the curse f the prcurement prcess and/r implementatin f the cntract; and may cancel all r part f the Bank financing allcated t a cntract fr wrks, gds r services if it, at any time, determines pursuant t its exclusin prcedures that an individual r an entity has engaged in any prhibited cnduct during the prcurement prcess r during the executin f the cntract, withut the prmter having taken actin satisfactry t the Bank t investigate and/r terminate the prhibited cnduct r, as the case may be, remedy the damage. 1 As defined in Annex 3. This wuld als include bstructin. June 2011 page 5 / 36

7 1.5 Cnflict f Interest The Bank requires that candidates, tenderers, cntractrs, suppliers r cnsultants participating in an award prcedure r a cntract under a Bank-financed prject shall nt have a cnflict f interest. Cnflict f interest ccurs when the impartial and bjective exercise f the functins f the prmter, r the respect f the principles f cmpetitin, nn-discriminatin r equality f treatment with regard t the prcurement prcedure r cntract, is cmprmised fr reasns invlving family, emtinal life, plitical r natinal affinity, ecnmic interest r any ther shared interest. The Bank will nt accept candidates r tenderers affected by a cnflict f interest in the award prcedure t benefit frm EIB financing in relatin t the cntract t be awarded under the cncerned prcedure. The assessment f whether r nt there is a cnflict f interest has t be carried ut n a case by case basis, cnsidering the actual risk f cnflict based n the specific circumstances f the case at stake. The individual r entity in questin shuld be allwed t present supprting evidence which might remve all suspicin f a cnflict f interest Transparency f Bank Activities The Bank is cmmitted t achieving the highest pssible level f transparency. It fllws a Transparency Plicy, which is an integral part f its Crprate Respnsibility Plicies. Tw aspects f this Plicy are relevant t prcurement: the public disclsure f infrmatin and the EIB Cmplaints Mechanism. All these plicies are available n the Bank s website: Disclsure f Infrmatin The Transparency Plicy sets ut the rules under which the public may access infrmatin held by the Bank. While in accrdance with the Plicy, the Bank is cmmitted t a presumptin f disclsure, it als has a duty t respect prfessinal secrecy in cmpliance with the relevant legislatin and standards Cmplaints against the Bank The EIB Cmplaints Mechanism ( applies t all cmplaints f alleged maladministratin ldged against the EIB Grup. Maladministratin means pr r failed administratin. This ccurs when the EIB Grup fails t act in accrdance with the applicable legislatin and/r established plicies, standards and prcedures, fails t respect the principles f gd administratin r vilates human rights. Sme examples f failure t respect the principles f gd administratin, as set by the Eurpean Ombudsman, are: administrative irregularities, unfairness, discriminatin, abuse f pwer, failure t reply, refusal f infrmatin, unnecessary delay. Maladministratin may als relate t the envirnmental r scial impacts f the EIB Grup activities and t prject cycle related plicies and ther applicable plicies f the EIB. When exercising the right t ldge a cmplaint against the EIB, any member f the public has access t a tw-tier prcedure, ne internal the Cmplaints Office - and ne external the Eurpean Ombudsman. The exhaustin f the internal cmplaints mechanism prcedure is a necessary requisite fr any cmplaint t be entitled t escalate t the Eurpean Ombudsman. June 2011 page 6 / 36

8 1.7. Envirnmental and Scial Plicies The EIB aims t add value by enhancing the envirnmental and scial sustainability f all the prjects that it is financing and as such all prjects must cmply with the envirnmental and scial requirements f the Bank. The Prmters are respnsible fr preparing, implementing and perating prjects financed by the Bank and fr the fulfilment f Bank envirnmental and scial requirements. In respect t prcurement, tenderers are required t cmply with applicable labur laws and natinal and internatinal standards f envirnmental prtectin, health and safety, including thse cntained in any relevant Internatinal Labur Organizatin (ILO) cnventins and internatinal agreements n envirnmental prtectin. The Bank's envirnmental and scial plicies are summarized in the 2009 "The EIB Statement f Envirnmental and Scial Principles and Standards", available n the Bank's website. 2. OPERATIONS WITHIN THE EUROPEAN UNION 2.1. Operatins t which EU Directives apply Within the Unin, prcurement is cvered by natinal legislatin implementing EU Law, in particular EU Directives n prcurement as they may be amended frm time t time 2 It cnstitutes the legal framewrk fr prcurement in EU Member States. It is the rle f the relevant natinal and EU authrities t ensure that prcurement is carried ut in line with this legal framewrk. Fr thse prmters wh fall under the EU Directives n prcurement 3, whether they are public r private institutins r cmpanies, the Bank will: require the prmter, at the prject appraisal stage, t ensure that the applicable prcurement Directives cncerning cmpetitive tendering, n the basis f fair and nndiscriminatry terms are cmplied with under the prject; ne essential step is the publicatin f a Prcurement Ntice in the OJEU when this is required; and take further steps during prject implementatin, t the extent necessary, t cntrl cmpliance with applicable prcurement Directives in rder t ensure the ratinal emplyment f the Bank s funds, prtect the sundness f the prject and reduce the risks invlved. When the Bank finances multi-scheme peratins where the details f all sub-prjects are nt knwn at appraisal (case f Framewrk Lans), it requires the Prmter t ensure that the prcurement f wrks, gds and services relating t the sub-prjects that the Bank finances will be undertaken in accrdance with the applicable legal framewrk. When the Bank makes a lan t an intermediary institutin (case f Glbal Lans and Mid-Cap Lans), it requires such intermediary institutin t take all the requisite measures t ensure that 2 In certain autnmus regins f EU Member States, reginal prcurement law may als apply. 3 In particular, Eurpean Parliament and Cuncil Directive 2004/18/EC f 31 March 2004 regarding public wrks, public supply, and public service cntracts; Eurpean Parliament and Cuncil Directive 2004/17/EC f 31 March 2004 regarding entities perating in the water, energy, transprt and pstal service sectrs; Eurpean Parliament and Cuncil Directive 2007/66/EC f 11 December 2007 regarding Remedies, amending Directives 89/665/EEC and 92/13/EEC with regard t imprving the effectiveness f review prcedures cncerning the award f public cntracts; and Eurpean Parliament and Cuncil Directive 2009/81/EC f 13 July 2009 n the crdinatin f prcedures fr the award f certain wrks cntracts, supply cntracts and service cntracts by cntracting authrities r entities in the fields f defence and security, and amending Directives 2004/17/EC and 2004/18/EC. A full list f EU legal instruments cncerning prcurement can be fund at the website: June 2011 page 7 / 36

9 the prcurement by the final beneficiaries f wrks, gds and services relating t the sub-prjects that the Bank finances will be undertaken in accrdance with the applicable legal framewrk. When the Bank finances a prject develped under a cncessin r a public-private partnership (PPP) scheme, it requires that the cncessin/ppp award prcess by the relevant public cntracting authrity cmplies with the applicable legal framewrk Operatins t which EU Directives d nt apply In all its peratins, the Bank aims at the effective use f its resurces and ensures that the criteria f ecnmy and efficiency are applied cnsistently. Fr public cntracts that are nt cvered by the EU Directives (e.g., public cntracts, the amunts f which are belw the threshlds f the Directives), the Bank requires prmters t ensure that prcurement cmplies with the relevant principles f the EU Treaty (in particular the principles f transparency, equal treatment and nn-discriminatin n the basis f natinality) and applicable natinal legislatin 5. Fr cntracts ther than public cntracts, prmters (mst frequently private) perating in sectrs where EU Directives d nt apply can satisfy the criteria f ecnmy and efficiency in their prcurement by recurse t cmmercial practices ther than pen r restricted prcedures. In any event, the Bank satisfies itself that prmters fllw suitable prcurement prcedures, ensuring an apprpriate selectin f wrks, gds and services ffered at cmpetitive prices and in a timely manner. Cntracts awarded by prmters must be negtiated impartially and accrd with the prject s best interests. 4 Fr further guidance, see in particular the Cmmissin Interpretative Cmmunicatin n Cncessins under Cmmunity Law, OJEU C 121 dated 29 April 2000, and the Cmmissin Interpretative Cmmunicatin n the Applicatin f Cmmunity Law n Public Prcurement and Cncessins t Institutinalised Public-Private Partnerships (IPPP), OJEU C(2007)6661 dated 5 February Fr further guidance, see the Cmmissin Interpretative Cmmunicatin n the Cmmunity law applicable t cntract awards nt r nt fully subject t the prvisins f the Public Prcurement Directives, OJEU 2006/C 179/02 dated 1 August June 2011 page 8 / 36

10 3. OPERATIONS OUTSIDE THE EUROPEAN UNION 3.1. General The cperatin agreements and financial prtcls agreed upn between the Eurpean Unin and cuntries utside the EU lay dwn the cnditins under which the Bank can munt peratins either in the frm f lans frm its wn resurces (riginating mainly frm the Bank s brrwings n capital markets) r under resurces frm third parties managed by the Bank n behalf f the Cmmissin r the Member States. In all cases, the Bank requires that the main mechanisms f the EU Directives n prcurement, as described in Sub-sectin 1.1, be fllwed, with the necessary prcedural adaptatins. Candidate and Ptential Candidate Cuntries are prgressively incrprating EU Directives in their legislatin. In this Guide, they fall under chapter 3, Operatins Outside the Eurpean Unin, until the deadline when they are cmmitted t applying the EU Directives n prcurement as agreed during their negtiatins with the EU t the extent that they have transpsed these Directives int their natinal legislatin at that mment. Then they fall under chapter 2, Operatins Inside the Eurpean Unin Eligibility f Prviders f Wrks, Gds and Services Financing frm Own Resurces In peratins financed frm the Bank s wn resurces (subsidized r nn-subsidized), tenders are pen t natinals f all cuntries. Hwever there may be restrictins in the case f a jint cfinancing (see article belw) Financing under Resurces frm Third Parties Tenders financed by funds made available under the Investment Facility created by the Ctnu Agreement (ACP-EU Partnership Agreement, signed in Ctnu n 23 June 2000) are pen t natinals f all cuntries. In ther cases f financing a cntract under resurces frm third parties (r frm a cmbinatin f the Bank s wn resurces and resurces frm third parties), eligibility f tenderers, gds and services is gverned by the rules applicable t the crrespnding financing instrument. These rules are summarised in Annex C-financing frm Own Resurces The Bank may c-finance prjects with ther financial instruments and institutins, particularly sme instruments f the Eurpean Cmmissin, the Wrld Bank Grup (IBRD, IDA and IFC), reginal develpment banks such as the Eurpean Bank fr Recnstructin and Develpment (EBRD), the African Develpment Bank (AfDB), the Asian Develpment Bank (AsDB), the Inter- American Develpment Bank (IDB), as well as bilateral aid agencies f EU cuntries and varius banks frm ther cuntries, etc. Such c-financing can be arranged n a jint r parallel basis: June 2011 page 9 / 36

11 in jint c-financing, tw separate financiers, wh may have different eligibility rules with regard t the rigin f wrks, gds and services, agree t finance the same cntract. In this case, the Bank will make its participatin cnditinal upn having the ther c-financier pen its eligibility as much as pssible, but at least t all the wrks, gds and services riginating frm the Eurpean Unin and the beneficiary cuntry. In the case f a cfinancing with EU budgetary instruments, the eligibility is generally restricted t that f the EU instrument; and in parallel c-financing, each separate prject cmpnent r cntract is financed by a single financier. In this case, the prcedures adpted by each c-financier apply t thse cmpnents r cntracts that it finances. The Bank s eligibility rules with regard t the rigin f wrks, gds and services wuld therefre apply nly t the Bank-financed cmpnents r cntracts Descriptin f Prcurement Prcedures General The prcurement prcedures fr Bank s prjects utside the Unin are cnsistent with the prvisins f the Bank s statute, the Treaty n the Functining f the Eurpean Unin, the abvementined cperatin agreements and financial prtcls, and the relevant decisins f the Eurpean Curt f Justice. The prcedures are based n the fllwing: the develpment bjective entrusted t the Bank, and specifically the Bank s fundamental task t cntribute, thrugh its peratins, t ecnmic prgress in the cuntries cncerned, implying nt nly careful selectin f prjects but als, at the implementatin stage, access t the apprpriate technlgy at the mst advantageus cst; the main mechanisms, prcedures and rules incrprated in the relevant EU Directives, as apprpriate t the specific peratins and cuntries cncerned; and the duty f the Bank, as the Eurpean Unin s lng-term financial institutin, t ensure that the applicatin f the rules n prcurement gives cmpanies frm Member States an equitable chance f participating in the wrks and the prvisin f gds and services fr implementing the prject cmpnents that the Bank finances. See Annex 1 fr a definitin f specific prcurement terms Internatinal Prcurement Prcedures These prcedures derive frm the EU Directives as they may be amended frm time t time: Open prcedures allw all interested parties (cntractrs r suppliers as the case may be) t submit tenders. They invlve strict requirements fr internatinal ntificatin (including publicatin in the Official Jurnal f the Eurpean Unin); clear and cmprehensive tender dcuments; and fair and transparent tendering, evaluatin and award practices. Specific prvisins applicable t pen prcedures, which reflect best internatinal practices, are described in sectin 3.7. Restricted prcedures prvide that nly thse candidates invited by the prmter may submit tenders. They are similar t pen prcedures regarding the tendering stage (invlving clear and cmprehensive tender dcuments, and fair and transparent tendering, evaluatin and award practices). The selectin f candidates fllws: June 2011 page 10 / 36

12 either an internatinal ntificatin (including publicatin in the OJEU) and the list f candidates is prepared thrugh a frmal pre-qualificatin exercise; r the list f candidates is established thrugh a system f qualificatin f cntractrs and suppliers established and maintained thrugh publicatin in the OJEU respecting the principles f fairness, transparency, and nn-discriminatin. The said list shuld nt be clsed fr lng perids and shuld be revised regularly t allw new actrs t apply fr qualificatin. Cmpetitive dialgue is a prcedure which may be used fr particularly cmplex cntracts, fr which the prmter is nt bjectively able t prepare frmal tender dcuments like in the pen r restricted prcedures. The cntract ntice must be published internatinally (including in the OJEU). The prmter pens a dialgue with selected candidates in rder t define the means best suited t satisfy his needs. Negtiated prcedures allw prmters t cnsult candidates f their chice and negtiate the terms f the cntract with ne r mre f them. The selectin f candidates either fllws an internatinal ntificatin (including publicatin in the OJEU), r is directly established by the prmter. In the latter case, the prmter, t the extent pssible, shuld invite at least three qualified candidates frm at least tw different cuntries t negtiate Natinal Prcurement Prcedures Fr small cntracts and particular wrks that, if within the EU, wuld nt fall under the scpe f the EU Directives, ther prcedures may be mre apprpriate: Natinal cmpetitive bidding (with publicatin nly in the lcal press) fllws the nrmal prcedures f the cuntry f the prmter. Tender dcuments are nrmally in the fficial language f the cuntry; the natinal currency is generally used fr the purpses f tendering and payments; and tender prices are nrmally inclusive f all applicable lcal duties and taxes. Shpping and direct cntracting allw prmters t negtiate prices and ther cnditins with several lcal cntractrs r suppliers r nly ne f them. Frce accunt (als called direct labur) is nt really a prcurement prcedure since it cnsists f the carrying ut f wrks using the prmter s wn wrkfrce and equipment. This may be the nly practicable methd fr cnstructing sme kinds f wrks, r prviding the apprpriate in-huse services, such as basic design, R&D (research and develpment), etc Selectin f Prcurement Prcedures Operatins in the Public Sectr Outside the EU, the Bank defines peratins in the public sectr as thse carried ut by: in all cases: public authrities; in additin, in the case f gas, heat, electricity, water, transprt, explratin fr r extractin f il, gas, cal r ther slid fuels, prts and airprts, telecmmunicatins, and pstal services: public undertakings perating in markets which are nt liberalised, and privately-wned entities that have been granted special r exclusive rights withut a cmpetitive prcess and perate in markets which are nt liberalised. June 2011 page 11 / 36

13 A precise definitin f the public sectr is given in Annex 5. All ther peratins are cnsidered t belng t the private sectr. In rder t ensure ecnmy, efficiency, nn-discriminatin and transparency in prcurement, the Bank requires that, in all apprpriate cases, cntracts in public sectr peratins are prcured fllwing pen r restricted prcedures with publicatin in the OJEU. Exceptins are nly warranted n the grunds f special circumstances, relating t the nature f the prject r the prmter, the estimated value f the cntract, r ther factrs peculiar t the cntext f the prject. In all cases, the prcedures adpted must be fully justified by the prmter, acceptable t the Bank, in the best interest f the prject, and cnsistent with the principles spelt ut under article abve. N prpsed cntract may be split up with the intentin f evading the applicatin f this Guide. In particular, splitting the wrks in several small cntracts with the nly purpse f favuring dmestic cntractrs is nt acceptable t the Bank, unless the prmter can prve that this wuld be mre advantageus fr the bjectives f ecnmy and efficiency f prject implementatin. T these ends, the Bank requires prmters perating in the public sectr t adpt apprpriate prcedures t prcure wrks, gds and services (except cnsultancy services, fr which prcurement prcedures are described in Sectin 4) cnsistent with the fllwing principles: Open prcedures with publicatin in the OJEU (and the internatinal and natinal press) are the mst cmmn frm f prcurement fr public cntracts. Restricted prcedures with publicatin in the OJEU (and the internatinal and natinal press) are recmmended fr large r cmplex public cntracts warranting pre-qualificatin f cntractrs r suppliers. In cases where a technical dialgue between the prmter and tenderers is useful, it is advisable t use the tw-stage system described in Annex 1. Cmpetitive dialgue with publicatin in the OJEU (and the internatinal and natinal press) may be used fr particularly cmplex cntracts where the prmter is nt bjectively able t define the technical means capable f satisfying the needs r bjectives, r is nt able t specify the legal r financial make-up f the prject. Negtiated prcedures with publicatin in the OJEU (and the internatinal and natinal press) may be used when: the nature f the wrks r services r the risks invlved d nt allw an verall pricing; the intellectual r financial nature f the services d nt allw t use the selectin rules f pen r restricted prcedures r cmpetitive dialgue; r the wrks are perfrmed slely fr purpses f research, testing r develpment. Negtiated prcedures with the list f candidates directly established by the prmter may be used in exceptinal cases where: there has been an unsatisfactry respnse t pen r restricted tenders carried ut in accrdance with this Guide; the extensin f an existing cntract, awarded in accrdance with this Guide, fr additinal wrks, gds r services f a similar nature wuld clearly be ecnmic and efficient and n advantage wuld be btained by further cmpetitin; the extensin f an existing cntract, awarded in accrdance with this Guide, is fr prcuring additinal wrks, gds r services which cannt be technically r ecnmically separated frm the riginal cntract withut majr incnvenience t the prmter; June 2011 page 12 / 36

14 a prduct r service can nly be prvided by a limited number f suppliers because f exclusive capabilities r rights; standardisatin with existing equipment is determined t be imprtant and justified; r it is a case f extreme urgency brught abut by unfreseeable events. Natinal cmpetitive bidding may be apprpriate fr cntracts, which, by their size, nature r scpe, are unlikely t attract freign cmpetitin. These circumstances ccur when: the cntract values are small; wrks are scattered gegraphically r spread ver time; wrks are labur intensive; r the advantages f pen r restricted prcedures are clearly utweighed by the administrative r financial burden invlved. Shpping is apprpriate fr prcuring readily available ff-the-shelf gds r standard specificatin cmmdities that are small in value; as much as pssible, ffers frm at least three suppliers shuld be requested. Direct cntracting may be justified if nly ne cntractr r supplier can fulfil a cntract in a satisfactry manner and at the mst advantageus cst. Frce accunt may be justified where: services invlve the intellectual prperty f the prmter; quantities f wrk invlved cannt be defined in advance; wrks are small and scattered r in remte lcatins; wrks are required t be carried ut withut disrupting nging peratins; the prmter is clearly in a favurable situatin t carry ut the wrks at an attractive price (e.g. railway track laying); r there are emergencies requiring prmpt actin. T be acceptable t the Bank, natinal prcedures (cvering natinal cmpetitive bidding and shpping) must ensure ecnmy, efficiency and transparency, and be bradly cnsistent with the principles underlying this Guide. If eligible freign firms wish t participate in natinal prcedures, they must be allwed t d s. The additinal Bank requirement is that each tenderer r cntract beneficiary must sign a Cvenant f Integrity (see sectin 3.6 and Annex 3). The threshld belw which natinal prcedures can be used will vary accrding t the nature f the prject, the experience f the prmter and lcal cnditins. The threshld will be agreed fr each type f wrks, supply r services between the prmter and the Bank n a prject-by-prject basis. Except fr cnsultancy services (see chapter 4), this threshld shuld nt exceed: 5 millin eur fr wrks and 200,000 eur fr gds and services, except electricity, gas, water and transprt where it is 400,000 eur and telecmmunicatins where it is 600,000 eur (all excluding the Value Added Tax, VAT, r equivalent direct taxes) Operatins in the Private Sectr Prmters perating in the private sectr (i.e. utside the peratins defined in Annex 5) nrmally satisfy the bjectives f ecnmy and efficiency by fllwing established cmmercial practices. The Bank thus des nt require that they fllw the abve public prcurement prcedures. Fr example, the less rigid, less cstly and faster negtiated prcedures (generally cnsisting f an internatinal enquiry amng a shrt-list f suppliers fllwed by negtiatins) ften prve t be mre effective. Nevertheless, wherever apprpriate, the Bank will encurage such prmters t publish a tender ntice in the OJEU and adpt pen r restricted prcedures, particularly fr large June 2011 page 13 / 36

15 cntracts. In such cases it may be necessary t intrduce apprpriate safeguards t ensure that the legitimate cnfidentiality interests f the prmter and ther cmmercial cntracting parties are fully respected in the prcurement prcess. In any event, the Bank sees t it that prmters fllw fair and transparent prcurement prcedures ensuring an apprpriate selectin f wrks, gds and services ffered with an apprpriate quality, at cmpetitive prices and in a timely manner. The ffer selected must be ecnmically the mst advantageus. Cntracts awarded by prmters must be negtiated impartially and accrd with the prject s best interests. In this case, the Bank ensures that, as far as pssible and depending n the magnitude f the cntract, at least three qualified cmpanies frm at least tw different cuntries are cnsulted. The Bank will als ensure that there is n discriminatin n the basis f supplier s natinality. If a cmpany is a sharehlder f the prmter (r the prmter is a sharehlder f a cmpany r if the prmter and a cmpany have the same sharehlders) and a cntract is awarded by the prmter t this cmpany (as cntractr, manufacturer r therwise) under a Bank-financed prject, the Bank verifies that cntract csts are in line with the initial estimates and with current market prices, and that the cntractual cnditins are fair and reasnable. The Bank will nt finance wrks, gds r services fr which the csts are cnsidered t exceed market levels Cncessin Operatins Where the Bank is participating in financing a prject develped under a BOT (Build, Operate, Transfer) r similar cncessin scheme which enjys special r exclusive rights, r ther state cncessin such as a recgnized mnply, the Bank s apprach is as fllws: If the cncessinaire has been selected fllwing a frmal internatinal tender prcedure (which may include several stages but has been the subject f an adequate internatinal publicity) acceptable t the Bank, and has explicit respnsibility fr carrying ut the wrks and prviding the services under his cncessin, the wrks, gds and services cvered by the Bank s financing are cnsidered by the Bank as peratins in the private sectr and can be prcured accrding t the relevant prvisins f this Guide. If the cncessinaire has nt been selected thrugh a frmal internatinal tender prcedure, but the Cncessin Agreement is cnsidered by the Bank t be ecnmically reasnable in terms f price, quality and risk-sharing, the Bank will review the selectin prcess t check that the cncessin was awarded thrugh a transparent prcess in line with the principles f the EU Treaty, implying that the three fllwing criteria are met: i) There was adequate internatinal publicity t allw fr internatinal cmpetitin; ii) The prcess was fair and nn-discriminatry; and iii) The prcess fllwed can be traced. If this is the case, the wrks, gds and services cvered by the Bank s financing are als cnsidered by the Bank as peratins in the private sectr and can be prcured accrding t the relevant prvisins f this Guide. If the Cncessin Agreement is cnsidered by the Bank t be ecnmically reasnable in terms f price, quality and risk-sharing, but the review fund that sme f the abve criteria are nt fulfilled, the Bank may, n an exceptinal basis, still cnsider supprting the prject shuld it find that the prject added value 6 is sufficiently strng t utweigh the deviatins. In that case: 6 The prject added value encmpasses the fllwing three aspects: (i) the alignment f the prject with the Bank's verall bjectives and pririties; (ii) the quality and sundness f the prject; and (iii) the EIB cntributin t the prject. June 2011 page 14 / 36

16 In the areas f gas, heat, electricity, water, transprt, explratin fr r extractin f il, gas, cal r ther slid fuels, prts and airprts, telecmmunicatins, and pstal services - if the cncessinaire has been granted special and exclusive rights withut a cmpetitive prcess and perates in a market that is nt liberalised 7 - the Bank will cnsider the wrks, gds and services cvered by the Bank s financing as peratins in the public sectr, which have t be prcured accrding t the relevant prvisins f this Guide. In ther areas, ntably when several cncessinaires perate in a liberalised market, private prcurement prcedures may be accepted by the Bank n a caseby-case basis, depending n the degree f cmpliance with the three abve criteria and taking int accunt the c-financing arrangements. When private prcurement prcedures are accepted, the Bank will encurage the cncessinaire t publish a General Ntice in the OJEU regarding the part f his investment prgramme t be carried ut utside his wn rganisatin. In the case f a Private Initiative in a Public-Private Partnership, als called unslicited prpsal (a private investr bears the entire cst f preparing a prject which will then be put t internatinal tender by the public prmter), the Bank may accept that this private investr benefit frm limited cmpensatin incentives in the tender prcedure, prvided that these incentives d nt affect the transparency, fairness and cmpetitiveness f the tender prcess Specific Operatins Framewrk Lans: when the Bank finances multi-scheme peratins where the details f all sub-prjects are nt knwn at appraisal, it requires the Prmter t ensure that the prcurement f wrks, gds and services relating t the sub-prjects that the Bank finances will be undertaken in accrdance with the prvisins f this Guide. Intermediated lans (case f Glbal Lans and Mid-Cap Lans): when the Bank makes a lan t an intermediary institutin (usually a financial institutin prviding lans t small and medium-scale enterprises), it requires such intermediary t take all the requisite measures t ensure that the prcurement by the final beneficiaries f wrks, gds and services relating t the sub-prjects which the Bank finances is the mst ecnmicallyadvantageus ptin, fllwing apprpriate prcedures in view f the circumstances and the lcal legislatin. When pen r restricted prcedures are invlved, these must be undertaken in line with the prvisins f this Guide. Share capital peratins: in certain regins utside the EU, the Bank may finance the share capital f a public r private cmpany. In this case, the Bank agrees with the prmter n which particular cntracts its financing will be disbursed, and requires that the prmter fllw prcurement prcedures in the same fashin as fr the direct financing f prjects. Hwever, in case f a purely financial assistance (such as the strengthening f a cmpany s capital), where there is n directly assciated prcurement f wrks, gds and services, the abve des nt apply. Lans guaranteed under the Investment Facility (Ctnu Agreement): if the Bank guarantees the repayment f a lan made by anther lender, the wrks, gds and services financed under the said lan must be purchased fllwing prcedures which ensure transparency f the prcurement prcess, fairness with regard t the tenderers, and selectin f the ecnmically mst advantageus ffer alng the principles f articles and abve. The Bank may request that the cmpetitin be pened t an adequate number f suppliers f wrks, gds r services (fr example thrugh an internatinal advertisement f the Prcurement Ntice). 7 As defined in Annex 5. June 2011 page 15 / 36

17 Specific Case f Jint C-financing In the case f jint c-financing between Multi- r Bilateral Financial Institutins r ther internatinal rganisatins, prcurement f jintly c-financed cntracts may be carried ut, with the agreement f the Bank, under the rules f anther c-financing institutin r rganisatin (the C-financing Institutin), as lng as they meet the Bank s minimum requirements and standards: The C-financing Institutin pens its eligibility alng the principles f sectin 3.2 abve; Calls fr tenders receive an adequate publicity t ensure wide internatinal cmpetitin; and Prcurement rules cnfrm with internatinally-accepted practices respecting the principles f nn-discriminatin f tenderers, fairness and transparency f the prcess, and cntract award t the mst ecnmically advantageus ffer. In additin, the Bank may decide t entrust the C-financing Institutin t mnitr the prcurement f jintly c-financed cntracts n its behalf. Furthermre, the Bank may decide t entrust the C-financing institutin t appraise and/r mnitr the prject n its behalf. In such case, the C-financing Institutin is fully in charge f verseeing prject prcurement and applies its wn rules t all the prject cmpnents, prvided the abve principles are respected Bank Review f Prcurement Decisins (fr bth public and private peratins) During the prject appraisal stage, the prmter must prvide the Bank with infrmatin abut a detailed prcurement plan (chice f prcedures apprpriate fr the prject, timetable, technical specificatins, publicatin f Prcurement Ntices, time allwed fr the preparatin f tenders, etc.). In the case f internatinal prcurement prcedures as defined in article 3.3.2, the Bank requests prmters t seek its cncurrence fr all majr decisins regarding prcurement and mnitrs the prcurement prcess as fllws: the Prcurement Ntice, the dcuments relating t the pre-qualificatin stage (if this takes place), and the tender dcuments must be sent t the Bank fr infrmatin and pssible cmments befre being published r given t ptential tenderers; the pre-qualificatin f tenderers (if any), the evaluatin f bids and the prpsed decisin n the award f cntracts must btain the nn-bjectin frm the Bank based n apprpriate dcuments; and In case there is n internatinal prcurement prcedure, the prmter must btain the nnbjectin frm the Bank fr the prcurement prcedure chsen and the final selectin f the tenderer n the basis f adequate justificatins prvided by the prmter. The requirements cvering the review by the Bank f prcurement decisins are utlined in Annex 2. 8 In the specific case f prjects utside the EU under the Mutual Reliance Initiative between EIB, AFD and KfW, ne f the three c-financing partners, called the Lead Institutin, is entrusted by the tw thers t appraise and/r mnitr the prject n their behalf. In such case, the Lead Institutin is fully in charge f verseeing prject prcurement and applies its wn rules as agreed with the EIB. June 2011 page 16 / 36

18 3.6. Prhibited Cnduct - Cvenant f Integrity As nted in sectin 1.4, the Bank is cmmitted t ensuring that its lans are used fr the purpses intended and its peratins are free frm prhibited cnduct (including but nt limited t, fraud, crruptin, cllusin, cercin and bstructin 9, and mney laundering and terrrist financing). In particular, in cuntries utside the EU, the Bank will, as a general rule, require that prmters insert in the tender dcuments (r in the cntract in the case f a negtiated prcedure) a clause that: requires any tenderer fr wrks, gds r services, as a cnditin f admissin t eligibility, t execute and attach t its tender a Cvenant f Integrity in the frm indicated in Annex 3; and grants the prmter, the Bank and auditrs appinted by either f them, as well as any authrity r Eurpean Unin institutin r bdy having cmpetence under Eurpean Unin law, the right f inspectin f the recrds f the cntractr, supplier r cnsultant in cnnectin with any Bank-financed cntract. The requirement fr a Cvenant f Integrity may be waived fr thse private sectr prmters wh can satisfy the EIB that they have implemented anti-fraud standards at least equivalent t the Bank s plicy Internatinal Prcurement Prcedures General Aspects As a general rule, the Bank requires public cntracts t be awarded fllwing pen r restricted prcedures with publicatin f a Prcurement Ntice in the OJEU. Any exceptin must be justified by the prmter and apprved by the Bank. The varius steps f the prcurement prcedure t be fllwed by the prmter are nrmally as indicated belw: publicatin f a Prcurement Ntice inviting tenders (r pre-qualificatin f tenderers) in the OJEU and ther media with the indicatin that the Bank may finance the cntract; decisin n the list f pre-qualified tenderers and ntificatin t candidates (fr restricted prcedures); dispatch f tender dcuments t ptential tenderers; receipt, public pening and evaluatin f tenders; award f cntract, ntificatin f the result t all ther bidders, and publicatin f an Award Ntice in the OJEU; and implementatin f the cntract. When fllwing pen r restricted prcedures, prmters shuld apply the rules and incrprate the prvisins set ut belw Publicatin f the Prcurement Ntice The Bank requires the prmter t publish a Prcurement Ntice in the OJEU. If necessary, the Bank will assist in arranging such publicatin n behalf f the prmter. 9 As defined in Annex 3 June 2011 page 17 / 36

19 In the case f a direct call fr tenders withut prir pre-qualificatin, the ntice must mentin at least (see standard frm in Annex 6): prmter s title, prject s name and reference t the Bank s ptential financing; descriptin f the wrks r nature f the supplies r services t be furnished; prjected timetable; list f tender evaluatin criteria in decreasing rder f imprtance; place where tender dcuments can be btained; final date fr receipt f tenders; and date and place f public pening f tenders. The Bank als encurages the placing f Prcurement Ntices in ther internatinal media r lcal publicatins. In this case, these must appear nt befre but preferably at the same time as in the OJEU, and with the same cnditins and wrding. Shuld the prmter already have started the tender prcedure fr a prject cmpnent befre the Bank s invlvement, the Bank may still accept t finance this cmpnent in spite f the absence f publicatin in the OJEU, prvided the prmter can demnstrate that the publicity f the tender has been sufficient t fster wide internatinal cmpetitin Pre-qualificatin in Restricted Prcedures In restricted prcedures, the prmter has t select thse candidates that will be invited t submit tenders. The selectin f the candidates must be carried ut fllwing a frmal pre-qualificatin prcess pen t all interested firms and advertised in the OJEU. Such pre-qualificatin exercise is usually necessary fr large r cmplex cntracts. The pre-qualificatin factrs, which shuld be referred t in the Prcurement Ntice and specified in the pre-qualificatin dcuments, shuld be based n the capability and resurces f the prspective tenderers t perfrm the particular cntract. Factrs that are nrmally cnsidered are the candidates : experience and past perfrmance n previus cntracts; capabilities with respect t persnnel, equipment and cnstructin r manufacturing facilities; and financial psitin. The prmter shuld infrm all candidates f the pre-qualificatin decisin, including a summary f the relevant reasns fr that decisin. In all respects ther than ntificatin and selectin f candidates thrugh a pre-qualificatin prcess, restricted prcedures are the same as pen prcedures Tender Dcuments Prmters may use the cnditins f cntracts riginating frm their cuntry s legislatin, but they are encuraged t use internatinally-recgnised standard prcurement dcumentatin such as thse prepared by the Wrld Bank (website Prjects & Operatins / Prcurement / see Index f Standard Bidding and Prpsal Dcuments, r Prcurement Plicies and Prcedures fr guidance), and the FIDIC (Fédératin Internatinale des Ingénieurs-Cnseils) dcuments that can be rdered at the FIDIC website prvided that these are cmpatible with the prvisins f this Guide. Tender dcuments must be drafted in such a way as t permit wide internatinal cmpetitin. They must als fully cmply with the rules set ut in this Guide. June 2011 page 18 / 36

20 The sale price f tender dcuments shuld be in line with the cst f their prductin and eventual shipment. If any mdificatins t the tender dcuments are made during the tendering perid, the prmter must send them t all tenderers and prvide adequate time t respnd. Tender dcuments shuld include prvisins dealing with the applicable law and the settlement f disputes. Internatinal cmmercial arbitratin may have practical advantages and the Bank encurages prmters t use it as apprpriate. The time allwed fr the preparatin f tenders shuld depend n the magnitude and cmplexity f the cntract. Nrmally, it shuld be at least six weeks frm the time when tender dcuments are made available t ptential tenderers. Where large wrks r cmplex items f equipment are invlved, the perid must be extended accrdingly. In such case, the prmter is encuraged t rganise explanatry briefings and n-site visits t make it easier fr tenderers t understand the subject f the tender. If tenderers raise specific questins n the tender dcuments, the prmter must answer them within a week. In any event, all tenderers must be treated equally and fairly. The tender dcuments shuld include a statement t the effect that tenderers shuld alert the prmter in writing, with a cpy t the Bank, in case they shuld cnsider that certain clauses r technical specificatins f the tender dcuments might limit internatinal cmpetitin r intrduce an unfair advantage t sme tenderers Language The Prcurement Ntice, pre-qualificatin dcuments (if any), tender dcuments, and the tender evaluatin reprt shuld be prepared in ne f the fficial languages f the Eurpean Unin (preferably in English r French). In specific cases, the riginal tender dcuments may be drawn up in the language f the cuntry (which may als be adpted as the legally binding versin in the event f litigatin), with the prvis that the prmter prepares and makes available t the Bank and the tenderers a certified translatin f the main parts f the tender dcuments. All crrespndence and discussins with the freign tenderers and the Bank relating t the tender must use the EU language utilised fr translating the tender dcuments. Tenderers shuld be allwed t tender in this EU language Technical Specificatins Prmters must use Eurpean Unin r internatinal standards and specificatins such as thse issued by the Internatinal Standard Organizatin, wherever these are applicable and apprpriate, and apply them cnsistently acrss the tender dcuments. If particular standards, natinal r ther, are adpted, the tender dcuments must state that standards guaranteeing a level f quality r perfrmance equivalent r superir t thse indicated will als be accepted. Reference t trademarks r ther specific designatins that wuld lead t discriminatin between suppliers must be avided. If such reference is necessary t explain the nature f the prducts required, the tender dcuments must specify that any ther prduct f equal r superir quality r perfrmance is acceptable Tender Prices fr Gds, Wrks and Services When a public prmter (r a private prmter exempted frm imprt duties) calls a tender fr the supply f gds, tender prices shuld be requested n the basis f CIF (prt f destinatin), r CIP (place f destinatin) fr all gds ffered frm abrad, and EXW (ex-wrks, ex-factry, r ff-theshelf) fr lcally available r manufactured r assembled gds, including thse previusly June 2011 page 19 / 36

21 imprted. The evaluatin fr the supply f gds shuld exclude imprt duties and taxes payable n imprted gds and the value added tax r similar taxes n lcally supplied gds, but shuld include all csts assciated with the supply, delivery, handling and insurance f the gds t the final destinatin. Tender prices fr wrks and services cntracts t be substantially executed in the purchaser s cuntry may be requested inclusive f all duties, taxes and ther levies. The evaluatin and cmparisn f tenders will be n this basis and the selected cntractr wuld be respnsible fr all duties, taxes and levies in the perfrmance f the cntract Currency Prmters may wish t restrict, with the agreement f the Bank, the tender currency t a specific, internatinally tradable currency. Otherwise, tenderers shuld be allwed t express their tenders in any currency traded internatinally, r a cmbinatin f these fr the freign exchange cmpnent f the cntract, but must accept t be paid in lcal currency fr the lcal cmpnent f the cntract. In this case, tenderers must justify the percentage f freign exchange that they request in their tender. Payments under the cntract shall be made in the currency r currencies in which the selected tender is expressed. When the tender price is required t be stated in a single currency, but the tenderer has requested payment in ther currencies expressed as a percentage f the tender price, the exchange rates used fr purpses f payments shall be thse specified by the tenderer in the tender, s as t ensure that the value f the varius prtins f the tender (in ther currencies) is maintained withut lss r gain. The tender dcuments must include clear prvisins fr price escalatin, if any. Fr the purpse f tender evaluatin and cmparisn, tender prices will be cnverted t a single currency, selected by the prmter, using the selling (exchange) rates fr the currencies f the tender price quted n an internatinally-recgnised currency exchange market (e.g. published in the Financial Times) fr a date selected in advance and specified in the tender dcuments, prvided that such date shuld nt be earlier than 30 days prir t the date specified fr the pening f the tenders Lcal Preference fr Gds Except fr peratins in Candidate Cuntries, Brrwers may grant a 15% margin f preference fr gds manufactured r prduced in the cuntry (defined as having at least a 30% lcal cntent ex-factry). Bidding dcuments must clearly indicate such preference. The cmparisn is then made between the price (net f taxes and duties at the place f delivery) f the imprted gd increased by 15% and the price (net f the value added tax r similar taxes) at the place f delivery f the lcally manufactured gd. The Bank des nt allw fr preference t be given t wrks (even if they include the supply f gds) r services riginating in the beneficiary cuntry. 10 The date shuld nrmally nt be later than the riginal date prescribed in the tender dcuments fr the expiry f the perid f tender validity. Hwever, where the payment prvisins in the cntract entail a few significant payments at specific predictable dates in the future (e.g. CIF supply cntracts), the Prmter may wish t specify the use f quted frward exchange rates fr the estimated dates f the payments fr the evaluatin, and enter int frward currency cntracts fr these payments at the time f award, in rder t hedge the risks f currency fluctuatins. The frward dates and the currency exchange market t be used must be clearly specified in the tender dcuments. June 2011 page 20 / 36

22 Tender Evaluatin Criteria The tender evaluatin may be based n: either the lwest price f the cmpliant and technically respnsive tenders; r the mst ecnmically advantageus tender, applying a number f criteria adapted t the cntract in questin: e.g. price, payment terms, cnstructin r delivery perid, technical merit (prpsed staff, equipment, cnstructin methd and planning, technical characteristics, etc.), envirnmental characteristics, technical cmpatibility with ther equipment, availability f service and spare parts, perating csts, maintenance csts, etc. The evaluatin criteria selected must be indicated in the Prcurement Ntice and quantified in the tender dcuments. The evaluatin criteria specified in the tender dcuments must be applied in whle, withut missin r additin, in the evaluatin f tenders. In case n criterin shuld be indicated, the lwest price nly will apply. Exceptinally, the tender dcuments may specifically request the tenderers t submit financing prpsals. In such case, the dcuments shuld include a clear methdlgy t evaluate them. In additin, the Bank recmmends that tenderers als make a prpsal withut financing Opening f Tenders In public peratins, tenders and assciated dcuments must be pened in public, in the presence f representatives f the tenderers if they wish t attend, n a date and at a place indicated in the Prcurement Ntice r tender dcuments. Tenders arriving after the deadline fr receipt are nt t be pened. At the pening f tenders, the name f the tenderers and the amunt f each tender, including special cnditins, rebates and variants if permitted, must be read ut alud and recrded in the minutes f the tender pening. A cpy f these minutes must be appended t the tender evaluatin reprt sent t the Bank Evaluatin f Tenders The prmter r his representative must scrutinise the tenders fr cmpliance and respnsiveness, and crrect all arithmetical errrs. He must ask the tenderers fr any clarificatin needed t assess the tenders, but n amendment t the substance f the tender r t the price can be accepted after the tender pening. Fr large r cmplex cntracts, it is advisable fr the evaluatin t prceed in tw steps (technical then financial) called the tw-envelpe system and described in Annex 1. Unslicited financing ffers shuld nt be cnsidered in the evaluatin f tenders Award and Signature f the Cntract The prmter shuld infrm all tenderers f the cntract award decisin, including a summary f the relevant reasns fr that decisin. T ensure that review prcedures fr effective remedies are available t any cncerned tenderer, the cntract shuld nt be signed until the expiry f a reasnable time perid frm the date n which the cntract award decisin was sent t the tenderers. June 2011 page 21 / 36

23 Award Ntice Immediately after the signature f the cntract, the prmter must publish an Award Ntice in the OJEU. If necessary, the Bank will assist in arranging such publicatin n behalf f the prmter. The Award Ntice must include the fllwing infrmatin (either in the title r in the text): Prject title and number; Lt number and name; Publicatin reference; Publicatin date f the Prcurement Ntice; Prmter s name; Reference f the Bank s financing; Cntract value (nly when price is the evaluatin criterin); Date f award f cntract; Number f bids received; and Name and address f successful bidder. June 2011 page 22 / 36

24 4. CONSULTANCY SERVICES FINANCED BY THE BANK This chapter cvers wrk undertaken by cnsultants in a prject financed by the Bank, either thrugh a lan r a grant. Sectin 3.6 Prhibited Cnduct - Cvenant f Integrity, fully applies t this chapter as well. Regarding Candidate and Ptential Candidate Cuntries, the secnd paragraph f sectin 3.1 f this Guide defines whether their peratins are cnsidered Within r Outside the EU Prjects Lcated Within the Eurpean Unin The rules applicable in this respect t the Bank s activities within the Eurpean Unin are the relevant EU Directives Prjects Lcated Outside the Eurpean Unin The prvisins set ut belw are nly valid fr Bank peratins in the public sectr. The general prvisins f article are valid fr cnsultancy services prcured under Bank peratins in the private sectr. The prcedures fr selecting cnsultants/experts and drawing up cntracts gverning their services must be transparent, and they must als ensure that the wrk is carried ut in the mst ecnmically advantageus way, i.e. that the services are f apprpriate quality, acquired at ecnmic prices and perfrmed in a timely manner. The rules applying t Bank activities utside the Eurpean Unin with respect t the selectin f cnsultants are always guided by the spirit f the EU Directive applicable fr similar services within the Unin, with the requisite adjustments t take accunt f the specific cnditins relating t the Bank s peratins utside the Unin Descriptin f Prcedures The varius prcurement prcedures are described belw: Open prcedures: internatinal call fr prpsals (at least via the OJEU, and additinally the press and ther media), allwing any cnsultant r expert interested t submit a prpsal fr the services required. Restricted prcedures: call fr prpsals n the basis f a list that allws nly cnsultants/experts invited by the prmter t submit a bid. The list f pre-qualified candidates must be drawn up by means f an internatinal call fr expressin f interest pen t all cnsultants and advertised at least in the OJEU. The Bank finds that this prcedure is mre efficient than the pen prcedure abve. Negtiated prcedures with the list f candidates established directly by the prmter: analysis f prpsals (technical and financial) frm cnsultants/experts selected by the prmter and negtiatin f final cnditins with ne r several f these. Prmters can establish a list f ptential candidates (shrt-list) by using their experience, cntacts and/r cnsultants register. June 2011 page 23 / 36

25 Selectin f Prcedures The prcurement prcedures t be adpted must cnfrm t the fllwing prvisins: Fr an estimated amunt f 200,000 eur (excluding VAT) r abve (the cntractual value taken int accunt is the supplier s ttal remuneratin), the prcedures applicable are: either pen prcedures with publicatin in the OJEU; r restricted prcedures including an internatinal call fr expressin f interest in the OJEU. Fr an estimated amunt belw 200,000 eur (excluding VAT), negtiated prcedures with the list f a maximum f seven candidates drawn up n the basis f registers/research/recmmendatin and with the participatin f at least three candidates f at least tw different natinalities. Exceptins frm the abve prcedures: Prmters may find it necessary t cntact fewer r nly ne candidate fr the fllwing reasns: the expertise sught is such that there are nly a very few specialists in this field; the degree f urgency, duly justified, is such that there is n time fr brader research; cnfidentiality and/r cntinuity are required; anther prcedure has already been cnducted withut prducing any useful results; r when a cnsultant has been r is invlved in the early phases f the prject, such as feasibility r design studies, and it has been established that cntinuity is necessary and n additinal advantage wuld be gained frm pursuing cmpetitive prcedures; this is ne f the mst cmmn cases and prvisins fr such an extensin shuld be envisaged in advance and included in the riginal terms f reference and cntract, which preferably shuld have been awarded fllwing a cmpetitive prcedure. A single reasn r a cmbinatin f reasns are pssible but must always be clearly justified by the prmter and received a prir nn-bjectin frm the Bank. In the case f a cntract estimated t be belw 50,000 eur, the Bank may accept a cntract negtiated with nly ne cmpany r individual in rder t speed up prject preparatin r implementatin Evaluatin f Cnsultants Prpsals The evaluatin f prpsals is based n a series f factrs that must be specified, with their respective weights, in the request fr prpsals issued t cnsultants. Indicative factrs are: cnsultant s specific experience; understanding f the terms f reference and scpe f the services; methdlgy prpsed fr the services; qualificatin and experience f key persnnel included t render the services; internatinal, reginal and lcal experience; and prpsed wrk prgramme. Depending n the characteristics f the task t be perfrmed, price may be cnsidered as a factr, but it shuld have a lwer weight than the ther factrs as a whle. In certain circumstances, the June 2011 page 24 / 36

26 mst efficient way f integrating the price factr in the tender is t indicate the available budget fr the services in the request fr cnsultant s prpsals, and require that this budget shuld nt be exceeded if the cnsultant s ffer is t be cnsidered. The prmter s evaluatin reprt must be submitted t the Bank fr its nn-bjectin f the prpsed award Management f the Cntract In cmmn with ther cntracts awarded within the cntext f prjects financed by the Bank, the prmter is fully respnsible fr supervising and managing the cnsultant s services. June 2011 page 25 / 36

27 ANNEX 1 SPECIFIC PROCUREMENT TERMS AND PRACTICES A cmpany which submits an ffer, called a tender r bid is designed by the term tenderer r bidder, and ne which has sught an invitatin t take part in a restricted r negtiated prcedure by the term candidate. Internatinal Prcedures The terms pen, restricted and negtiated prcedures, and cmpetitive dialgue, are used here in the sense defined by EU Directives as they may be amended frm time t time. 1. Open prcedures are frmal prcedures whereby all interested cmpanies may submit tenders. They must be advertised at least in the Official Jurnal f the Eurpean Unin (OJEU). They invlve clear and cmprehensive tender dcuments; and fair and transparent tendering, evaluatin and award practices. Outside f the EU these prcedures are ften referred t as Internatinal Cmpetitive Bidding (ICB) r Open Tendering. 2. Restricted prcedures are frmal prcedures whereby nly thse cmpanies invited by the prmter may submit tenders. They must be preceded by a pre-qualificatin exercise pen t all interested cmpanies and advertised at least in the OJEU, in rder t select the cmpanies t be invited (r the list f candidates is established thrugh a system f qualificatin f cntractrs and suppliers established and maintained thrugh publicatin in the OJEU). They are similar t pen prcedures regarding the tendering stage (invlving clear and cmprehensive tender dcuments, and fair and transparent tendering, evaluatin and award practices). Outside f the EU, these prcedures are als referred t as ICB (including a pre-qualificatin phase). 3. The Cmpetitive dialgue is a prcedure designed fr particularly cmplex cntracts where the prmter is nt bjectively able t define the technical means capable f satisfying the needs r bjectives, r is nt able t specify the legal r financial make-up f the prject and where it cnsiders that direct use f a restricted prcedure will nt allw the cntract t be awarded t the tender ffering best value fr mney. The prmter must set ut his needs and requirements, and define the award criteria allwing chsing the mst ecnmically advantageus tender. A cntract ntice is first published in the OJEU. The prmter then selects qualified tenderers amng the candidates, and pens a dialgue with them in rder t define the means best suited t satisfy his needs. He must ensure equality f treatment f the tenderers, and cannt cmmunicate cnfidential infrmatin f ne tenderer t the thers. The prcedure may take several stages. After infrming the tenderers that the dialgue is cncluded, the prmter will ask them t submit their final tenders n the basis f the slutins presented and specified during the dialgue. 4. Negtiated prcedures are thse prcedures whereby the prmter cnsults cmpanies f its chice and negtiates the terms f the cntract with ne r mre f them. The selectin f candidates either fllws an internatinal ntificatin published at least in the OJEU, r is directly established by the prmter. Outside the EU, in the latter case, these prcedures are ften referred t as Limited Internatinal Bidding (LIB), r Selective Tendering. June 2011 page 26 / 36

28 Natinal Prcedures 5. Natinal cmpetitive bidding fllws the nrmal prcedures f the cuntry f the prmter. It is advertised nly in the lcal press. Tender dcuments are nrmally in the fficial language f the cuntry; the natinal currency is generally used fr the purpses f the tendering and payments; and tender prices are nrmally inclusive f all applicable lcal duties and taxes. 6. Shpping and direct cntracting allw prmters t negtiate prices and ther cnditins with several lcal cntractrs r suppliers r nly ne f them. 7. Frce accunt (als called direct labur ) is nt really a prcurement prcedure since it cnsists f the carrying ut f wrks using the prmter s wn wrkfrce and equipment. This may be the nly practicable methd fr cnstructing sme kinds f wrks, r prviding the apprpriate in-huse services, such as basic design, R&D (research and develpment), etc. Specific Practices under Open r Restricted Prcedures 8. Fr large r cmplex cntracts, it is advisable fr the evaluatin t prceed in tw steps (technical then financial). Tenders are requested accrding t the tw-envelpe system, in which bth the technical and financial ffers are submitted tgether, but in separate envelpes. In the first step, nly administrative and technical dcuments are pened in public. After review f cnfrmity by the prmter (which may include minimal qualificatin criteria defined in the tender dcuments), in a secnd step the financial ffers f nly thse tenderers that have presented satisfactry dcuments r have exceeded a pre-determined threshld scre in the technical evaluatin are pened and read in public. 9. When a technical dialgue between the prmter and the tenderers is useful, a twstage system can be fllwed, whereby the first submissin f the tenderers, based n preliminary specificatins frm the prmter, cntains nly the technical ffers. After a detailed evaluatin f technical ffers, the prmter amends the initial tender specificatins and requests priced tenders nly frm thse tenderers determined t be qualified and technically respnsive. The main difference with the cmpetitive dialgue is that all final tenders must fulfil the same specificatins, thus facilitating tender evaluatin. 10. Tendering fr design-and-build cntracts is usually a restricted prcedure, featuring very general technical requirements, usually stating nly the capacities and perfrmance. Tenderers are thus at liberty t put frward the technical slutin that appears t them t be the mst ecnmical r apprpriate, and the evaluatin is then carried ut n the basis f technical and ecnmic cnsideratins. This type f invitatin reduces the wrk invlved in drawing up the initial design used fr the tender dcuments, but calls fr far mre effrt, experience and calculatin fr the tenderer when it cmes t preparing tenders and, fr the prmter, t evaluate and cmpare tenders, and make the final chice f cntractr r supplier. 11. Invitatins t tender may be issued in respect f an entire prject (e.g. cnstructin f a factry r pwer plant) including testing and cmmissining, r fr nly part f the same. In the first case, the term used is turnkey cntract, which give the prmter mre technical guarantees but which are ften mre expensive. In the secnd case, splitting the prject int a number f separate cntract packages (r lts) is quite cmplex and it usually takes cnsiderable experience and in-huse capacity t crdinate their implementatin. Substantial lwer csts can, hwever, be achieved, but respnsibility fr the technical interface between the varius cmpnents and the risks f delays, cst verruns and pr verall technical perfrmance is carried by the prmter. June 2011 page 27 / 36

29 ANNEX 2 REVIEW BY THE BANK OF PROCUREMENT DECISIONS fr prjects lcated utside the Eurpean Unin As explained in this Guide, the Bank has a plicy t leave the entire respnsibility f the prcurement prcedures t the prmter. The Bank limits its interventin t ensuring that its funds are used in the mst ecnmic, transparent and efficient way pssible. Cnsequently, the Bank limits its review f the prmters prcurement decisins t the essential steps. During prject appraisal r at lan negtiatins, the Bank will discuss and agree with the prmter under which prcedures the varius prject cmpnents financed by the Bank will be prcured. The fllwing steps will then need t be respected. Internatinal Prcurement Prcedures The prmter shuld send the Prcurement Ntice and tender dcuments (as well as the pre-qualificatin dcuments if any) t the Bank at least twenty days befre the expected date f publicatin f the Ntice. 2. As a matter f plicy, the Bank des nt make a cmprehensive review f the tender r pre-qualificatin dcuments, which are the entire respnsibility f the prmter. Hwever, the Bank may review the main administrative clauses f these dcuments and make sme cmments, in particular regarding the pre-qualificatin factrs and the tender evaluatin criteria. In any case, this will nt cnstitute an apprval f the full cntent f these dcuments. 3. If necessary, the Bank will review, and rganize publicatin f, the Prcurement Ntice in the Official Jurnal f the Eurpean Unin (OJEU) n behalf f the prmter. 4. In case f a pre-qualificatin, the prmter must send t the Bank, fr its nn-bjectin, the pre-qualificatin reprt and prpsed list f pre-qualified candidates. 5. During the tender preparatin perid, the prmter must immediately infrm the Bank f any written cmplaint that he may receive frm a tenderer. 6. After analysis f the tenders, the prmter must send t the Bank his evaluatin reprt making a clear recmmendatin fr cntract award. The Bank will prvide its nnbjectin r apprpriate cmments. 7. Immediately after the cntract is signed, the prmter must send t the Bank the Award Ntice t be published in the OJEU by the Bank n behalf f the prmter if necessary. 8. Finally, the prmter must send t the Bank a cpy f the signed cntract (and the Cvenant f Integrity, see Annex 3) prir t his first request fr disbursement under the cntract. Other Prcurement Prcedures Fr cntracts nt subject t internatinal prcurement prcedures, the prmter will send a cpy f the main elements f the cntract tgether with an evaluatin r justificatin reprt t the Bank prir t his request fr disbursement. 11 As defined in article June 2011 page 28 / 36

30 Specific Case f Cntracts fr Cnsulting Services The Bank reviews the scpe f the services and the terms f reference prpsed (including prcedure selected), the shrt-listing reprt explaining hw the recmmended shrt-list f cnsultants has been prepared, the request fr prpsals, the evaluatin reprt justifying the prpsed selectin, and the draft cnsultant s cntract, t ensure that it can finance the crrespnding services. 1. The prmter must send the terms f reference, the prpsed shrt-list f cnsultants and a shrt-listing reprt (r the Prcurement Ntice in case an pen r restricted prcedure is selected), and the request fr prpsals t the Bank. 2. The Bank will send its nn-bjectin r cmments n the prpsal. In additin, the Bank may review the main administrative clauses f the request fr prpsals and make sme cmments, in particular regarding the tender evaluatin criteria. In any case, this will nt cnstitute an apprval f the full cntent f these dcuments. 3. In the case f an pen r restricted prcedure, the Bank will rganize publicatin f the Prcurement Ntice in the OJEU n behalf f the prmter as necessary. 4. In case f a restricted prcedure, the prmter must send a pre-qualificatin reprt t the Bank fr nn-bjectin. 5. After analysis f the ffers, the prmter must send t the Bank his evaluatin reprt making a clear recmmendatin fr cntract award, and the draft cnsultant cntract. The Bank will prvide its nn-bjectin r apprpriate cmments. 6. In case f an pen r restricted prcedure, immediately after the cntract is signed, the prmter must send t the Bank the Award Ntice t be published in the OJEU by the Bank n behalf f the prmter as necessary. 7. Finally, the prmter must send t the Bank a cpy f the signed cntract (and the Cvenant f Integrity, see Annex 3, fr an internatinal prcedure) prir t his first request fr disbursement under the cntract. Remark: The nn-bjectin r cmments sent by the Bank t the prmter in the curse f the prcurement prcess are based n the infrmatin prvided by the prmter and d nt relieve the prmter f his entire respnsibility regarding prcurement. In particular, the Bank may review its psitin in the light f new infrmatin which might cme t its knwledge after it has given its pinin n a specific aspect f the prcess. June 2011 page 29 / 36

31 ANNEX 3 COVENANT OF INTEGRITY t the Prmter frm a Tenderer, Cntractr, Supplier r Cnsultant t be attached t its Tender (r t the Cntract in the case f a negtiated prcedure) We declare and cvenant that neither we nr anyne, including any f ur directrs, emplyees, agents, jint venture partners r sub-cntractrs, where these exist, acting n ur behalf with due authrity r with ur knwledge r cnsent, r facilitated by us, has engaged, r will engage, in any Prhibited Cnduct (as defined belw) in cnnectin with the tendering prcess r in the executin r supply f any wrks, gds r services fr [specify the cntract r tender invitatin] (the Cntract ) and cvenant t s infrm yu if any instance f any such Prhibited Cnduct shall cme t the attentin f any persn in ur rganisatin having respnsibility fr ensuring cmpliance with this Cvenant. We shall, fr the duratin f the tender prcess and, if we are successful in ur tender, fr the duratin f the Cntract, appint and maintain in ffice an fficer, wh shall be a persn reasnably satisfactry t yu and t whm yu shall have full and immediate access, having the duty, and the necessary pwers, t ensure cmpliance with this Cvenant. If (i) we have been, r any such directr, emplyee, agent r jint venture partner, where this exists, acting as afresaid has been, cnvicted in any curt f any ffence invlving a Prhibited Cnduct in cnnectin with any tendering prcess r prvisin f wrks, gds r services during the five years immediately preceding the date f this Cvenant, r (ii) any such directr, emplyee, agent r a representative f a jint venture partner, where this exists, has been dismissed r has resigned frm any emplyment n the grunds f being implicated in any Prhibited Cnduct, r (iii) we have been, r any f ur directrs, emplyees, agents r jint venture partners, where these exist, acting as afresaid has been excluded by the EU Institutins r any majr Multi-lateral Develpment Bank (including Wrld Bank Grup, African Develpment Bank, Asian Develpment Bank, Eurpean Bank fr Recnstructin and Develpment, Eurpean Investment Bank r Inter-american Develpment Bank) frm participatin in a tendering prcedure n the grunds f Prhibited Cnduct, we give details f that cnvictin, dismissal r resignatin, r exclusin belw, tgether with details f the measures that we have taken, r shall take, t ensure that neither this cmpany nr any f ur directrs, emplyees r agents cmmits any Prhibited Cnduct in cnnectin with the Cntract [give details if necessary]. In the event that we are awarded the Cntract, we grant the Prject Owner, the Eurpean Investment Bank (EIB) and auditrs appinted by either f them, as well as any authrity r Eurpean Unin institutin r bdy having cmpetence under Eurpean Unin law, the right f inspectin f ur recrds and thse f all ur sub-cntractrs under the Cntract. We accept t preserve these recrds generally in accrdance with applicable law but in any case fr at least six years frm the date f substantial perfrmance f the Cntract. Fr the purpse f this Cvenant, Prhibited Cnduct includes 12, Crrupt Practice is the ffering, giving, receiving r sliciting, directly r indirectly, anything f value t influence imprperly the actins f anther party. Fraudulent Practice is any act r missin, including a misrepresentatin, that knwingly r recklessly misleads, r attempts t mislead, a party t btain a financial r ther benefit r t avid an bligatin. Cercive Practice is impairing r harming, r threatening t impair r harm, directly r indirectly, any party r the prperty f any party t influence imprperly the actins f a party. Cllusive Practice is an arrangement between tw r mre parties designed t achieve an imprper purpse, including influencing imprperly the actins f anther party Obstructive Practice is (a) deliberately destrying, falsifying, altering r cncealing f evidence material t the investigatin; and/r threatening, harassing r intimidating any party t prevent it frm disclsing its knwledge f matters relevant t the investigatin r frm pursuing the investigatin, r (b) acts intended t materially impede the exercise f the EIB s cntractual rights f audit r access t infrmatin r the rights that any banking, regulatry r examining authrity r ther equivalent bdy f the Eurpean Unin r f its Member States may have in accrdance with any law, 12 Mst definitins are thse f the IFI Anti Crruptin Task Frce s Unifrm Framewrk f September June 2011 page 30 / 36

32 regulatin r treaty r pursuant t any agreement int which the EIB has entered in rder t implement such law, regulatin r treaty; Mney Laundering is defined in the Bank s Anti-Fraud Plicy Terrrist Financing is defined in the Bank s Anti-Fraud Plicy Prject Owner means the persn designated as such in the tender dcuments r the Cntract. Nte: This Cvenant must be sent t the Bank tgether with the cntract in the case f an internatinal prcurement prcedure (as defined in article 3.3.2). In ther cases, it must be kept by the prmter and available upn request frm the Bank. The Cvenant is nt mandatry fr cntracts awarded prir t Bank invlvement in the prject. Nevertheless, prmters wh are seeking r may seek EIB invlvement in a prject are advised t include it in rder t prmte integrity amng the tenderers/cntractrs. This is particularly relevant in the case f a prmter wh has already implemented a number f previus Bankfinanced prjects and is cnsidering further EIB financing. June 2011 page 31 / 36

33 ANNEX 4 ELIGIBILITY FOR OPERATIONS FINANCED UNDER RESOURCES FROM THIRD PARTIES In sme prjects utside the Unin, the Bank s financing cmes frm different surces, such as resurces deplyed under External Mandates f the EU and Trust Funds. The general rules are that: 1. Tenders financed by funds made available under the Investment Facility created by the Ctnu Agreement are pen t natinals f all cuntries. 2. In ther cases f tenders financed frm resurces made available by third parties (r frm a cmbinatin f EIB s wn resurces and resurces frm third parties), eligibility f tenderers, gds and services is gverned by the rules cntained in the respective legal instruments (Facility fr Eur-Mediterranean Investment and Partnership (FEMIP); etc ). In such case, tendering shuld generally be pen t firms, gds and services riginating at least frm: cuntries f the Eurpean Unin; and cuntries party t, r beneficiary frm, the Agreement r Cnventin cncerned. A firm is deemed t riginate in a EU r beneficiary cuntry if it has been frmed under the law f an EU r beneficiary cuntry and has its ffice, central administratin r principal place f business in an EU r beneficiary cuntry. If it has nly its statutry ffice there, it must at least be engaged in activities that have an effect n, and cntinuus links with, the ecnmy f EU r beneficiary cuntries. At the request f the beneficiary cuntry, firms lcated in third cuntries may be authrized by the Bank t participate under dergatins admissible pursuant t the Agreement r Cnventin cncerned. Such authrizatin must be expressly prvided fr in the dcuments fr the crrespnding tender and must be mentined in any publicatin relating theret. June 2011 page 32 / 36

34 ANNEX 5 DEFINITION OF PUBLIC SECTOR OPERATIONS OUTSIDE THE EUROPEAN UNION 1. In general, public sectr peratins are thse carried ut by public authrities, meaning State, reginal r lcal authrities, bdies gverned by public law, r assciatins frmed by ne r mre f such authrities r bdies gverned by public law. A bdy gverned by public law shall be understd t mean any bdy which: is established fr the specific purpse f meeting needs in the general interest, nt having an industrial r cmmercial character; has legal persnality; and is financed in mst part by public authrities r is subject t management supervisin by public authrities, r has an administrative, managerial r supervisry bard in which mre than half f the members are appinted by public authrities. 2. In additin, in the specific case f gas; heat; electricity; water; transprt; explratin fr, r extractin f, il, gas, cal r ther slid fuels; prts and airprts; telecmmunicatins; and pstal services, public sectr peratins are thse carried ut by: public undertakings perating in markets which are nt liberalised, and privately-wned entities that have been granted special r exclusive rights and perate in markets which are nt liberalised. If this is nt the case, the public authrities, public undertakings and privately-wned entities are cnsidered t perate in the private sectr. A public undertaking is any undertaking ver which public authrities may exercise directly r indirectly a dminant influence by virtue f their wnership f it (e.g. hlding the majrity f the subscribed capital), their financial participatin therein (e.g. cntrlling the majrity f the vtes attached t shares), r the rules which gvern it (e.g. appinting mre than half f the administrative, management r supervisry bard). Special r exclusive rights mean rights which arise frm a grant made by a cmpetent authrity f the cuntry by way f any legislative, regulatry r administrative prvisin, the effect f which is t limit the exercise f activities defined in paragraphs 2.1 t 2.9 belw t ne r mre entities, and t substantially affect the ability f ther entities t carry ut such activities n the same territry under substantially equivalent cnditins. Rights granted n the basis f bjective, prprtinate and nn-discriminatry criteria that allw any interested party fulfilling these criteria t enjy these rights shuld nt be cnsidered special r exclusive rights.. A market is cnsidered liberalised when, in the cuntry in which the activity is t be perfrmed, such activity is directly expsed t cmpetitin and there is free access fr new peratrs; an independent bdy shuld mnitr such cmpetitin and access. The Bank will determine whether an activity is directly expsed t cmpetitin n the basis f criteria such as the nature f the gds r services cncerned, the existence f alternative gds r services, the level f prices, and the actual r ptential presence f mre than ne supplier f the gds r services in questin. The prmter shuld demnstrate that access t the market is free de jure and de fact. The number f suppliers f gds r June 2011 page 33 / 36

35 services cncerned may be limited in certain cases by the mnitring bdy (prvided that, in any event, there are at least tw suppliers f the gds r services in questin) cnsidering the size f the market and the ecnmies f scale invlved. The peratins referred t under 2 abve are: 2.1 As far as gas and heat are cncerned: the prvisin r peratin f fixed netwrks intended t prvide a service t the public in cnnectin with the prductin, transprt r distributin f gas r heat; r the supply f gas r heat t such netwrks. 2.2 As far as electricity is cncerned: the prvisin r peratin f fixed netwrks serving t prvide a service t the public in cnnectin with the prductin, transprt r distributin f electricity; r the supply f electricity t such netwrks. 2.3 As far as water is cncerned: the prvisin r peratin f fixed netwrks intended t prvide a service t the public in cnnectin with the prductin, transprt r distributin f drinking water; r the supply f drinking water t such netwrks. 2.4 Cntracts r design cntests awarded r rganised by prmters, which pursue an activity, referred t in paragraph 2.3 and which: are cnnected with hydraulic engineering prjects, irrigatin r land drainage, prvided that the vlume f water t be used fr the supply f drinking water represents mre than 20% f the ttal vlume f water made available by such prjects r irrigatin r drainage installatins; r are cnnected with the dispsal r treatment f sewage. 2.5 The supply f gas r heat, r f electricity, r f drinking water t netwrks which prvide a service t the public by a prmter ther than a public authrity shall nt be cnsidered an activity within the meaning f paragraphs 2.1, 2.2 and 2.3 where: the prductin f this gd by the prmter cncerned takes place because its cnsumptin is necessary fr carrying ut an activity ther than thse referred t in paragraph 2.1, 2.2 and 2.3; and the supply t the public netwrk depends nly n the prmter s wn cnsumptin and has nt exceeded r will nt exceed 25% f the prmter s ttal prductin f this gd, having regard t the average fr the last three years. 2.6 Activities relating t the peratin f netwrks prviding a service t the public in the field f transprt by railway, autmated systems, tramway, trlley bus, bus r cable. As regards transprt services, a netwrk shall be cnsidered t exist where the service is prvided under perating cnditins laid dwn by a cmpetent prmter, June 2011 page 34 / 36

36 such as cnditins n the rutes t be served, the capacity t be made available r the frequency f the service. 2.7 Activities seeking t explit a gegraphical area fr the purpse f: explring fr, r extracting, il, gas, cal r ther slid fuels; r the prvisin f airprts and maritime r inland prts r ther terminal facilities t carriers by air, sea r inland waterway. 2.8 The prvisin r peratin f public telecmmunicatins netwrks r services. 2.9 The prvisin r peratin f pstal services. June 2011 page 35 / 36

37 ANNEX 6 STANDARD FORM OF THE PROCUREMENT NOTICE IN THE OFFICIAL JOURNAL OF THE EUROPEAN UNION (OJEU) INTERNATIONAL INVITATION FOR TENDERS (The necessary adaptatins shuld be made in case f a pre-qualificatin) [PROJECT NAME] [NAME OF PROMOTER] The [Name f prmter] (hereinafter referred t as the Brrwer ) has received (r applied fr) a lan frm the Eurpean Investment Bank EIB (hereinafter referred t as the Bank ) twards the cst f the [Name f Prject]. This Internatinal Invitatin fr Tenders relates t the cntract fr [Name f the Prject Cmpnent]. This cntract will include: [descriptin f the main cntract features in a few lines]. This cntract is expected t be implemented frm [date f start f services] t [date f end f services]. The criteria t be used in the tender evaluatin are, in decreasing rder f imprtance: [list f the evaluatin criteria]. All firms are invited t participate in the tender. OR All firms registered in cuntries eligible t the Bank under the abve financing ([give list f cuntries]) are invited t participate in the tender. Interested eligible Bidders may btain further infrmatin frm, and inspect the Bidding Dcuments at: [Name, full address, telephne and fax numbers, and f the place where the bidding dcuments are available]. A cmplete set f Bidding Dcuments may be purchased n the submissin f an applicatin t the abve address, and upn payment f a nn-refundable fee f [amunt and currency] t [Name and full address f the cmmercial bank, and number f accunt] bearing the name f the prject. On request, against a faxed cpy f the evidence f the remittance, the Bidding Dcuments may be sent by curier service if the transprt is previusly rdered by the Bidder in his cuntry. The Brrwer bears n respnsibility fr the delivery in such a case. A Bid Security f [amunt and currency] fulfilling the cnditins indicated in the Bidding Dcuments must accmpany all bids. All bids must be delivered in clsed envelpes bearing the mentin Bid fr [Name f the Prject Cmpnent] nt later than [time and date] at the fllwing address: [precise Name and Place where bids will be received]. Bids will be pened immediately in the presence f Bidders representatives wh chse t attend. June 2011 page 36 / 36

38 The EU Bank Cntacts Fr general infrmatin: Infrmatin Desk Crprate Respnsibility and Cmmunicatin Department 3 (+352) (+352) U inf@eib.rg Eurpean Investment Bank , bulevard Knrad Adenauer L-2950 Luxemburg 3 (+352) (+352) EIB 07/2011 QH EN-C EIB GraphicTeam