European Public Procurement Legislation and Architectural Services. Recommendations and Guidelines for Transposition to National Law

Transcription

1 Eurpean Public Prcurement Legislatin and Architectural Services Recmmendatins and Guidelines fr Transpsitin t Natinal Law Adpted by the General Assembly f the ACE On 20 th Nvember 2004 Glssary and Annex 3 Awarding Criteria Crrected by T Maibaum and HG Brunnert 25 May 2005 This versin prepared and printed in Octber 2005

2 Cntents I. Intrductin II. II. III. IV. VI. Recmmendatins fr the transpsitin f the Legislative Package int Natinal law Best practice Guidelines Recmmendatins fr Design Cntests (Architectural Cmpetitins) Glssary Annexes 2

3 I. Intrductin The Architects Cuncil f Eurpe (ACE) is an rganisatin, based in Brussels, whse Membership cnsists f the prfessinal representative rganisatins f all twenty-five Eurpean Unin Member States and the three Accessin States as well as Switzerland and Nrway. As such it is an rganisatin that represents the interests f abut 450,000 architects frm Eurpe. In February 2004, the legislative package simplifying and mdernizing the public prcurement directives and adapting them t mdern administrative needs was definitely adpted by the EU s Cuncil f Ministers and the Eurpean Parliament. The directives impse EU-wide cmpetitive tendering fr public cntracts abve a certain value and transparency and equal treatment fr all tenderers t ensure that a cntract is awarded t the tender ffering best value fr mney. The amended directives will lead t substantial changes in natinal public prcurement law and its prvisins have t be transpsed int natinal law within less than tw years. Member States shuld use this pprtunity t amend natinal public prcurement legislatin t the maximum benefit f citizens, ecnmic peratrs and cntracting authrities. The ACE regards supprting this gal, especially in the area f prcurement f architectural services, as an imprtant bjective. This best practice paper cntains recmmendatins and mechanisms. Firstly, the guidelines make recmmendatins n best practice n a chrnlgical basis thrughut the prcurement prcedure. Secndly, recmmendatins are given n the applicatin f Eurpean prvisins fr design cntests (architectural cmpetitins). The glssary is intended t give an understanding f terminlgy and gives a summary f the basic ACE recmmendatins fr the prcurement f architectural services. Last but nt least, the guidelines will demnstrate apprpriate mechanisms fr the transpsitin f the new directives int natinal law n architectural services. This paper des nt fcus nly n the evaluatin f gd practice in Member States. Particular attentin has als been paid t malpractice in prcurement prcedures at natinal level. Such experiences have t be taken int accunt s as t eliminate prcurement practices which undermine the principles f transparency, cmpetitin and nn-discriminatin. ACE wuld welcme the extensive use f these guidelines within the Member States. These recmmendatins were adpted by the ACE General Assembly, representing prfessinal architectural rganisatins in all EU Member States, n the 20 th Nvember 2004 in Brussels. 3

4 II. Recmmendatins fr the transpsitin f the new Public Prcurement Directives published in April 2004 in the EU Official Jurnal int Natinal Law The Prcurement directives ffer a set f new instruments and prcedures, sme f which are nt suitable fr the prcurement f architectural services. The Prcurement Directives ffer a framewrk fr prcuring a wide range f services, supplies, gds and wrks. Sme f the prcedures are nt necessarily required r useful fr the prcurement f architectural services, but n the ther hand, the directives allw a transpsitin n a natinal level, which takes int accunt the specific nature f architectural services. Therefre, the ACE recmmends careful cnsideratin f the fllwing cmments n the suitability f the new prcedures and instruments fr the prcurement f architectural services. 1. New prcedures 1.1 The cmpetitive dialgue Because f the definitin given in the directive, the ACE is f the pinin that it is nt suitable fr the prcurement f architectural services. Additinally, this prcedure raises serius prblems cncerning the prtectin f authr s rights. The Directive describes several situatins where it wuld be impssible fr the cntracting authrity t bjectively define the means f satisfying its needs, r f assessing what the market can ffer, in the way f technical slutins and/r financial legal slutins. Objectively means that this des nt depend n the individual capacity f the cntracting authrity, and that even by a definitin f purely perfrmance r functinal requirements (Art 23 paragraphs 3b, c and d) n useful slutin can be expected (see Article 1, paragraph II(c)). This situatin may arise, in particular, with the implementatin f imprtant integrated transprt infrastructure prjects, large cmputer netwrks r prjects invlving cmplex and structured financing, the financial and legal make up f which cannt be defined in advance ( particularly cmplex prjects ). These cnsideratins shw that the cmpetitive dialgue is tailred fr prjects e.g. certain public private partnership mdels which cannt be handled in a standard prcedure. 1.2 Electrnic auctins Electrnic auctins are suitable mechanisms in cases when the cntract specificatins can be established with precisin. Under the definitin f this prcedure, the Directive has clarified that certain service cntracts and certain wrks cntracts having intellectual perfrmance as their subject matter, such as the design f wrks, may nt be the bject f electrnic auctins. See Article 1 paragraph 7. Hwever, the electrnic auctin makes sense in the field f prcurement f hmgenus and standardised gds r services. The nature f architectural services excludes it frm the scpe f applicatin f the electrnic auctin. In this case, there is n bligatin t transpse the prcedure int natinal law. If Member States d s, it must be made clear that architectural services are excluded. 2. New instruments 2.1 Framewrk agreements Framewrk agreements are generally nt suitable fr architectural services. The purpse f framewrk agreements is t establish the terms gverning cntracts t be awarded during a given perid with regard t price and, where apprpriate, the quantity envisaged (see Article 1 paragraph 5). Every single prject shuld be pen t cmpetitin, as every building deserves a specific quality apprach. The awarding decisin must be based n qualitative criteria. Architectural services are nt measured by price and quantity. Secndly, framewrk agreements even with the time limit f fur years restrict access t single cntracts. 2.2 Dynamic purchasing systems The dynamic purchasing system is designed fr cmmnly used purchases, the characteristics f which, being generally available n the market, meet the requirements f the cntracting authrity (see Article 1 paragraph 6 and see als 1.2). Cnsequently, this is nt a useful r apprpriate instrument fr the prcurement f architectural services. 3. Architectural Design Cntest The ACE recmmends the transpsitin f the directives in such a way that, in the case f a design cntest, the cntract is awarded t ne f the winners (successful candidates) f the design cntest 4

5 4. Others by using the negtiated prcedure withut publicatin f a cntract ntice (Art. 31 paragraph 3). If the cntracting authrity chses the negtiated prcedure under Article 30 paragraph 1c, an architectural design cntest shuld be integrated t btain the best results fr the design f wrks. The cmbinatin f the abve instruments (design cntest and negtiated prcedure) is the best way t guarantee a high degree f quality and ecnmically beneficial results which cannt be achieved by using the pen r restricted prcedure (see als abve under II.4) Design cntests shuld, in all cases, be remunerated by an adequate and fair prize allcatin (payment). Design and build The ACE recmmends a clear separatin between design and executin f wrks. The Eurpean legislatr has decided nt t prescribe such a separatin, but has clarified that the decisin t award cntracts separately r jintly must be determined by qualitative ecnmic criteria, which may be defined by natinal law. Member States are recmmended t determine such criteria n the basis f existing studies f the qualitative and ecnmic results f separate r jint cntracts. The ACE specifically draws attentin t existing studies undertaken by curts f auditrs which reveal the ecnmic risks f design and build prjects (see ftnte 2). 5

6 III. Best Practice Guidelines The public prcurement directives prvide a range f public prcurement prcedures which can be adpted and applied t specific prcurement types, allwing the apprpriate applicatin f the Eurpean prvisins t the prcurement f architectural services, which are f a specific nature. Therefre existing prcurement prcedures have nt always been the mst effective fr achieving the best quality in this field. Fr this reasn the ACE, in 2000, develped general recmmendatins n public prcurement f architectural services which evaluate the imprtant task f the architect nt nly in the cultural dimensin, but als in sustainability, innvatin and the envirnment. The cnclusins drawn in thse recmmendatins were: - the award f cntracts fr architectural services must fcus n the quality f the service and f the technical ffer and nt n the price f the service, - architectural design cmpetitins are the best methd f achieving quality, - the architect must be in a psitin t act as an independent trustee f the cntracting authrity. These recmmendatins are still valid and must be cnsidered thrughut the entire prcurement prcess - frm the first step, the definitin f the prject, until the awarding decisin. 1. Definitin f the prject The definitin f the prject is the first step in the prcurement prcedure. It is a critical phase, especially as the cntracting authrity has t make initial decisins which will be f cnsiderable imprtance fr the prcurement prcess. - Firstly, the cntracting authrity has t define the prject, in the frm f a brief either frm its wn resurces r with the assistance f experts (fr an example see Annex t sectin III 1). The brief is the basis fr the tender dcuments which are t be develped in the secnd stage. - The brief culd als be develped by hlding an ideas cmpetitin. - It is emphasised that authrities shuld nt restrict infrmatin abut cntracting pprtunities. In an unacceptable number f cases, such pprtunities have nt been listed in the TED database in the past. In sme cases, public authrities have claimed urgency as an excuse fr dispensing with cmpetitive prcurement requirements and appinting a cntractr withut cmpetitin. Infrmatin shuld nt be cnfined t fficial Jurnal Ntices nly, but shuld include prcedures fr administrative transparency. These abve cases shw that inadequate access t infrmatin n public cntracting, which is legally required t be prvided, has been used as a means f evading public prcurement prvisins. Member States shuld be encuraged t make administrative prcedures mre transparent. - A further step fr the cntracting authrity is the decisin n whether t award design and executin f wrk separately r jintly. The Eurpean legislatr has clarified in the new directives that it is nt the intentin t prescribe either jint r separate cntract awards. The legislatr emphasises that the decisin t award cntracts separately r jintly must be determined by qualitative and ecnmic criteria which may be defined by natinal law. The ACE has expressed the view that a separatin f design and executin f wrk is the best ptin 1. This finding is based n several research prjects in the Member States, amng thers several extensive studies undertaken by the curts f auditrs 2. Design cntests if prperly rganized and handled have prved mst beneficial fr the quality f public cnstructin wrks. - During the definitin phase f the prject, the cntracting authrity has t decide n the apprpriate prcedure. In exceptinal cases, where n clear brief r perfrmance specificatin can be drawn up, even by means f an ideas cmpetitin, cntracting authrities might have t cnsider the use f the cmpetitive dialgue (see belw). 1 RIBA has expressed anther pint f view. 2 See fr example Finanzamt Ludwigburg Umbau und Neubau, published by the Ministry f Finance, Baden-Württemberg Juni 1999; Hchbau des Bundes Wirtschaftlichkeit bei Baumaßnahmen, Empfehlungen für das wirtschaftliche Planen und Ausführen vn Hchbaumaßnahmen des Bundes, Hrg.:; Die Präsidentin des Bundesrechnungshfes als Bundesbeauftragte für Wirtschaftlichkeit in der Verwaltung, Bnn März 2001, S 63; Jahresbericht 2000 des Landesrechnungshfes Rheinland-Pfalz Tz. 26 6

7 - The ACE draws attentin t the fact that the new directives prvide fr the imprved inclusin f envirnmental aspects in the definitin f prjects. These play a fundamental rle fr the life cycle csts f buildings. It is particularly welcme that requiring high standards in this field is n lnger seen as a means f discriminating against ecnmic peratrs, but as an essential cntributin t sustainable and envirnmentally-friendly develpment. It is emphasised that the cnsideratin f such aspects generally requires a decisin t award cntracts n the basis f the ecnmically mst advantageus tender (see belw). - The definitin f the prject sets ut which specific fields and/r experts have t be included in the prject. 2. Selectin criteria As a general principle, the selectin criteria defined by the cntracting authrity shuld be based n the perfrmance f the architect. If there is a need t restrict the number f pssible participants t a number which can be handled by the cntracting authrity, there are varius ways t achieve this bjective. Gd Practice - Particularly cmplex prjects may, n ccasin, require the use f selectin criteria (specific experience, references and additinal special qualificatins such as acustic engineering etc) which exclude generally qualified ecnmic peratrs. In such cases, the cntracting authrity shuld accept the participatin f grups f ecnmic peratrs. - Selectin criteria shuld be defined in such a way as nt t exclude the participatin f architects. This must be seen as a valuable resurce fr ur ecnmy which ffers significant ptential fr innvative ideas and cncepts. -Candidates shuld be selected by independent and qualified cmmittees. - Limitatin f the number f candidates must be made n the basis f nn-discriminatry methds. If there is a need fr such limitatins, the selectin prcess can, fr example, take place in several stages. After a pre-selectin f suitable candidates (see Chapter VII, sectins 1 and 2 f the Directive) cntracting authrities can rganise ltteries t cut dwn the number f participants. Selectin criteria fr prcurement f architectural services Bad Practice - Selectin criteria shuld never be designed with the bjective f reducing the number f participants. In a cnsiderable number f fficial Jurnal Ntices, the ACE has nted the abuse f selectin criteria listed by the Eurpean directives. Fr example, candidates r tenderers may be asked t prve their suitability by prviding infrmatin n turnver during the past three fiscal years, the number f the wrkers emplyed n average during the year fr the past three years, the technical persnnel intended fr managerial and supervisry functins etc. Such criteria generally d nt relate t the quality f the service which can be expected f a candidate in the field f architectural services. Cnsequently, such criteria shuld nt be used as a technical means t limit the number f participants. - In cases where additinal qualificatins/skills are required, the number f participants shuld nt be reduced by a prhibitin f subcntracting. In additin, an bligatin t name such subcntractrs r c-cntractrs shuld nly be impsed n participants after the pre-selectin phase. - Even if illegal under the directive, selectin criteria are ften used t favur reginal participants. Several OJEC Ntices have demnstrated that sme cntracting authrities try t restrict participatin t participants with their main r branch ffice near the lcatin f the prject. In ther cases, cntracting authrities required specific experiences f characteristic lcal r reginal design and cnstructin. Anther general prblem is the ptin f pre selecting candidates. The annex t the directives lists states in cntest ntices under 5 b: Names f participants already selected, if any. There may be a need t pre-select qualified candidates in sme cases. Fr example, if there are successful candidates frm a previus ideas r urban design cntest r an architect f a building r 7

8 cmplex t be extended. The methd f pre selectin may nt be used t circumvent cmpetitin, e.g. by pre selecting candidates exclusively n a reginal level. 3. Evaluatin criteria In design cntests, juries need clear evaluatin criteria fr assessing the prjects submitted by candidates. These criteria, which must be published in the cntest ntice, shuld be chsen frm the criteria listed belw (see Annex t sectin III 3). 4. Awarding criteria Award criteria must be suitable fr the identificatin f the Ecnmically Mst Advantageus Tender (EMAT). Cnsequently, the criteria shuld relate specifically t the particular prject. Award criteria fr architectural services must give primary imprtance t the quality f the technical ffer. Such criteria include aesthetic, ecnmic, functinal and envirnmental characteristics, perating and life cycle csts, cst effectiveness and integratin int the built envirnment including scial and infrastructural aspects. These criteria can be mst effectively evaluated in a design cntest. Therefre, awarding criteria fr architectural services must be based n the EMAT and nt n the price f the architects service nly. A lw ffer leads t a lw standard in the final prduct. The award criteria ffer a wide range f pssibilities and pprtunities fr criteria which guarantee the best results fr public planning and building. 5. Adequate prcedures Evaluatin f different natinal prcurement mdels fr architectural services shws a cnsiderable similarity in the use f certain instruments aimed at achieving a high quality service r f the architectural slutin t the prblem. Hwever, existing prcurement prcedures used in this field have nt always been effective. Mst natinal prcurement prcedures fr architectural services are directly based n the prvisins fr the design cntest r cntain elements f the design cntest: specifically, juries and technical bids/utline slutins are used in several types f prcedures. As a result f an evaluatin f the suitability and results f different natinal prcedures, the ACE has cme t the cnclusin that the mst advantageus way t prcure architectural services is the tw-stage design cntest fllwed by a negtiated prcedure withut prir publicatin. The ACE draws attentin t the fact that architectural cmpetitins (design cntests) can be made bligatry at natinal level withut being in cnflict with Eurpean prcurement legislatin. In the case f Public Private Partnerships the Design Cntest can prvide ptimum results in terms f quality and ecnmic advantages (fr details see under: recmmendatins fr architectural cmpetitins) and guarantees the quality f the utcme fr the public partner. The ACE has specifically evaluated the advantages and disadvantages f the integratin f design cntests in the pen (and as well in the restricted) prcedure ( tw envelpe system ). In principle the cncept f evaluating technical bids and price bids in cnsecutive phases makes sense. On the ther hand, this leads t an unnecessary waste f ecnmic resurces as all the participants have t develp prpsals up t a detailed level t allw the price t be decided. Therefre the ACE stresses that the integratin f the design cntest is nly perative and ecnmically viable when it takes place within the negtiated prcedure. Althugh the general prcurement system f the directives is based n cmpetitive prcedures, there are exceptins where direct negtiatins withut prir publicatin is allwed e.g. Article 31, paragraph (1)(c). As the publicatin is the basic element f transparency, access and pening up f cmpetitin in public prcurement, the abuse f these exemptin rules must be efficiently mnitred. In many cases this is used nly t evade prcurement prcedures which are nt acceptable. Such malpractices have significant additinal cst implicatins tgether with pr quality. In the light f this, the ACE recmmends the amendment f natinal rules n the accessibility f (general) infrmatin n future prcurement prjects f cntracting authrities (see als abve). 8

9 IV. Recmmendatins fr Design Cntests The awarding f cntracts fr architectural services must fcus n the quality f the service and f the technical ffer and nt n the price f the service. Architectural design cmpetitin is ne f the best means t prvide fr quality. It demnstrates the skills f the prfessin and emphasizes quality based awarding criteria. In respect f the great intellectual and ecnmic investment by all parties invlved in such prcedures, the ACE has established the fllwing rules which cmply with Eurpean public prcurement law. The fllwing set f rules and recmmendatins is divided int 3 parts: rules, which are essentials t be respected in every prcedure, called architectural cmpetitins. 2. Recmmendatins n hw t rganise and manage the prcedure. 3. Additinal regulatins which have t be applied within public prcurement Part 1 10 rules, which are essentials t be respected in every prcedure, called architectural cmpetitins 1 Definitin f an architectural cmpetitin: Architectural cmpetitin means the prcedure f a Design Cntest evaluating the ideas f architects, landscape architects and urbanists in a frmalised prcedure n a defined prgram and defined criteria, annymusly weighted by an independent Jury. There are different kinds f cmpetitin prject cmpetitin ideas cmpetitin which can be held separately r cmbined in different stages. In case f a tw-stage cmpetitin the jury has t be the same in bth stages and the prcedure is annymus until the final decisin f the jury. 2 Equal chances fr all participants Same infrmatin level prvided t all participants at the same time N individual exchange f infrmatin between participants and jury members Persns excluded frm participatin: The representatives, partners r emplyees f the prmter r f any jury member, r any persn wh has been invlved in the preparatin f the cmpetitin, will nt be eligible t cmpete r t assist cmpetitrs Questins abut the brief are answered t all participants simultaneusly. 3 Independent jury The jury shall be autnmus in its decisins r pinins. Where a particular prfessinal qualificatin is required frm participants, at least a third f the members f the jury shall hld that qualificatin at a high standard, and must be independent frm the client. The jury shall examine the prpsals submitted by the candidates annymusly and slely n the basis f the criteria indicated in the cntest ntice It shall recrd its ranking f prjects in a reprt, signed by its members. This reprt shall cntain the merits f the prjects and a clear recmmendatin n hw t prceed with the result f the cmpetitin. 4 The brief The cmpetitin brief must be clear and unambiguus. Cmpetitin requirements must be clearly specified. There must be a clear distinctin f requirements and nn-binding guidelines. The evaluatin criteria must be stated in the brief. 9

10 The brief has t be accepted by the jury befre launching the cmpetitin. 5 Transparency f the prcedure The summary f the jury s discussin and the decisin making prcess has t be drawn up in a reprt. A jury reprt shall be published r distributed t the participants and the public. There shall be an exhibitin f all entries. 6 Annymity Annymity must be bserved until the jury has reached its pinin r decisin 7 Prize mney and remuneratin The prize mney r remuneratin has t be fixed and annunced in the cmpetitin brief. Fr the calculatin f the prize mney r the remuneratin, there must be an adequate relatinship between the required perfrmance f the participants and the hnraria nrmally calculated fr that task. In the secnd stage f a cmpetitin, a remuneratin, which is a part f the ttal prize mney, is paid t each participant in that stage. 8 Cnsequences f the jury s decisin There must be a fair and adequate cmpensatin fr the participants. There must be a declaratin f the client t award a cntract including a sufficient scpe f wrk t the prize winner r t ne r the prize winners in a prject cmpetitin. If an ideas cmpetitin is nt fllwed by a prject cmpetitin an adequate remuneratin in the frm f higher prize mney has t be fixed. If the results f an ideas cmpetitin are used as a basis fr the executin f a prject, this has t be dne in agreement with the authr. 9 Cpyright The authr's rights fr a cmpetitin entry remain with the authr. The prmter is entitled t make use f the winning entries under the cnditins that are laid dwn in the brief r agreed between the parties. 10 Dispute reslutin Any disputes cncerning cmpetitin prcedures shall be examined by the relevant natinal prfessinal rganisatin befre any legal prcedures. 10

11 V. GLOSSARY On wrding in the field f Cmpetitin fr Intellectual Services in Public Prcurement Definitin Cmmentary Recmmendatin Cmpetitin (Engl.), Cncurrence (French) Efficiency Cntest between ecnmic peratrs in the market Efficiency Cntest in the internal market is put int a framewrk f rules and regulatins as fr example prtectin f Intellectual Prperty Rights, prtectin against Unfair Cmpetitin, Public Prcurement Rules etc. Public Prcurement Rules and regulatins fr purchasing by Public Entities Public Prcurement aims securing Cmpetitin and getting Best Value fr Public Investments. This has t be dne by the principle f Public Tendering. The legislatr has established within Eurpean Public Prcurement Rules several prcedures t purchase gds and services: Open Prcedure Restricted Prcedure Negtiated Prcedure Cmpetitive dialgue (in special cases) A specific rle was attributed t the Design Cntest. Having in view Best value fr Public Investments, it is cnsidered that the separatin f cntracts fr the design and the executin f wrk is helpful in rder t determine first best quality f the intellectual services and n this basis the best ecnmic ffer. Whereas in pen, restricted and negtiated prcedures the decisin fr the cntract awarding is based n precise prgram definitin f the cntracting authrity, the cmpetitive dialgue can be used nly in cases f exceptinally cmplex situatins withut bjective pssibility t set up thse prgrams and definitin necessary as evaluatin criteria. This is generally nt the case in urban planning f architecture and engineering. This versin prepared and printed in Octber 2005

12 Definitin Cmmentary Recmmendatin Design Cntest Design Cntests means thse prcedures which enable the cntracting authrity t acquire, mainly in the fields f twn and cuntry planning, architecture and engineering r data prcessing, a plan r design selected by a jury after being put ut t cmpetitin with r withut the award f prizes. (Directive Title I / Article I / 11 e) The rules fr the rganisatin f cntests shall be in cnfrmity with Title IV, Article 66 t 74 and shall be cmmunicated t thse interested in participating in the cntest. The admissin f participants t design cntests shall nt be limited: - by reference t the territry r part f the territry f a Member State; - n the grunds that, under the law f the Member State in which the cntest is rganised, they wuld be required t be either natural r legal persns. (Directive / Title IV / Article 66/2) This title applies t: - Design Cntests rganised as a part f a prcedure leading t the award f a public service cntract (Directive / Title IV / Article 67/2a) - Design Cntests with prizes and/r payments t participants (Directive / Title IV / Article 67/2b) In establishing Rules fr Design Cntests, the natinal legislatr has t respect the framewrk set ut in the Directive. Design Cntest can be rganized as Open r Restricted Cmpetitin cncerning the access f interested peratrs. Design Cntests shuld be rganized within the Negtiated Prcedure, either as a first step f the prcedure in frm f an pen cmpetitin r after selectin f candidates as a Restricted Cmpetitin fllwed by a Negtiated Prcedure withut prir publicatin. The Directive prvides fr this cncept. Cases justifying use f the negtiated prcedure withut publicatin f a cntract ntice - fr public service cntracts, when the cntract cncerned fllws a design cntest and must, under the applicable rules, be awarded t the successful candidate r t ne f the successful candidates: in the latter case, all successful candidates must be invited t participate in the negtiatins (Directive / Title II / Article 31/ 3) The essentials f thse frmalized Design Cntests are - equal chance fr all participants - independent Jury - annymity until the decisin f Jury - transparency. 12

13 Definitin Cmmentary Recmmendatin Architectural Cmpetitin Means a prcedure f Design Cntest ppsing the ideas f architects, interir-, landscape- and cnservatin-architects, planners, urbanists and industrial designers in a frmalized prcedure n a defined prgram and defined criteria weighted by an independent Jury in an annymus way. Ideas Cmpetitin Are thse Architectural Cmpetitins mainly in the field f architecture, planning, urbanism, landscaping, cnservatin and design aiming fr brad cnceptins withut the intentin f direct executin. They als can be the first step f a sequence f cmpetitins with participatin f the winners in a fllwing Prject Cmpetitin. The nature f Architectural Services is in general such that cntract specificatins cannt be established with sufficient precisin t permit the award f the cntract by selectin f the best tender accrding t the rules gverning pen r restricted prcedures. (Directive / Title II / Article 30/1c) Architectural Cmpetitins can als be rganized as multi-prfessinals Cmpetitin between architects, engineers and ther disciplines fr infrastructure. Special attentin is required with respect t Authrs Rights. Fr an Idea Cmpetitin withut cnsequence f a cntract the nrmal fee fr a Prject Cmpetitin has t be raised apprpriately. In case f an Idea Cmpetitin fllwed by a Prject Cmpetitin, nly the winners f the Idea Cmpetitin shuld be invited t participate in the Prject Cmpetitin. Participants in an Idea Cmpetitin shuld agree in advance that a fllwing Prject Cmpetitin is based n ne cncept r several ideas f the Ideas Cmpetitin prpsed by the Jury. If after an Idea Cmpetitin, the client changes his intentin twards develpment f a prject, he has t d this in agreement with the authr. 13

14 Definitin Cmmentary Recmmendatin Prject Cmpetitin Within thse Cmpetitins based n a detail prgram and precise perfrmance requirements, the cnceptual ptins fr the realisatin f a prject are cmpared. Realisatin Cmpetitins see Prject Cmpetitin Tw stages Cmpetitin A series f steps within ne cmpetitin t develp either a prgram and the apprach f a slutin either t reduce the number f cmpetitrs while develping the depth f a design. Open prcedure Open prcedures means thse prcedures whereby any interested ecnmic peratr may submit a tender. (Directive Title I / Article 1 / 11 a) As cnsequence f the result f such a cmpetitin the winner/the winners shuld be entrusted t take ver the respnsibility fr the fllwing elabratin f the prject. The Tw Stages Cmpetitin can als be used t wrk ut an urban design fllwed by a Prject Design. This cmpetitin is useful t minimize the expenses f the prcedure bth fr client and cmpetitrs. Technical specificatins are under Directive/ Article 23/3b t be frmulated, amng thers, in terms f perfrmance r functinal requirements; the latter may include envirnmental characteristics. Hwever, such parameters must be sufficiently precise t allw tenderers t determine the subjectmatter f the cntract and t allw cntracting authrities t award the cntract; The scpe f services awarded shuld guarantee the implementatin f the authr s cncept. (s. further explanatin best practise paper) This srt f cmpetitin is recmmended in all cases where selectin by bjective criteria is nt able t reduce the number f cmpetitrs sufficiently; this gives the pprtunity in using the prcedure by evaluating the quality f strategies in the benefit f the prject while selectin by the cmpetitrs. 14

15 Definitin Cmmentary Recmmendatin Restricted Prcedure Restricted Prcedures means thse prcedures in which any ecnmic peratr may request t participate and whereby nly thse peratrs invited by the cntracting authrity may submit a tender. (Directive / Title I / Article 1 / 11 b) see abve Negtiated Prcedure Negtiated Prcedures means thse prcedures whereby the cntracting authrities cnsult the ecnmic peratrs f their chice and negtiate the terms f cntract with ne r mre f these. (Directive / Title I / Article 1 / 11 d) Cases justifying the Negtiated Prcedure (with publicatin f a cntract ntice) are intellectual services such as services invlving the design f wrks, insfar as the nature f the services t be prvided is such that cntract specificatins cannt be established with sufficient precisin t permit the award f the cntract by selectin f the best tender accrding t the rules gverning pen r restricted prcedures. (Directive / Title II / Article 30 / 1c) After decisin f the Cmpetitin Jury the Negtiated Prcedure cntinues n the basis f the Jury Reprt, its recmmendatins and the awarding criteria. If there is a deviatin frm the Jury s decisin there shuld be an explanatin t be laid dwn in a prtcl Cnsequently, the Negtiated Prcedure is the nly prcedure apprpriate fr architectural services. Aiming at getting a maximum f cmpetitin, a Design Cntest shuld be rganized within r befre this prcedure. 15

16 Definitin Cmmentary Recmmendatin Cmpetitive Dialgue Cmpetitive dialgue is a prcedure in which any ecnmic peratr may request t participate and whereby the cntracting authrity cnducts a dialgue with the candidates admitted t that prcedure, with the aim f develping ne r mre suitable alternatives capable f meeting its requirements, and n the basis f which the candidates chsen are invited t tender. (Directive / Title I / Article 1 / 11 c) - Where cntracting authrities cnsider that use f pen and restricted prcedures will nt allw award f the cntract, Member States may prvide fr thse authrities t make use f the cmpetitive dialgue in accrdance with the arrangements laid dwn in this Article: (a) where they are nt bjectively able t define the technical means in accrdance with Article 23(3) (b), (c) r (d), capable f satisfying their needs r bjectives, and/r (b) where they are nt bjectively able t specify the legal and/r financial make-up f a prject. A public cntract shall be awarded n the sle basis f the award criterin fr the mst ecnmically advantageus tender. Cntracting authrities which carry ut exceptinally cmplex prjects may, withut this being due t any blame n their part, find it bjectively impssible t define the means f satisfying their needs r f assessing what the market can ffer in the way f technical slutins and/r financial/legal slutins. This situatin may arise in particular with the implementatin f imprtant integrated transprt infrastructure prjects, large cmputer netwrks, prjects invlving cmplex and structured financing the financial and legal make-up f which cannt be defined in advance. T the extent that the use f pen r restricted prcedures des nt allw the award f such cntracts, a flexible prcedure shuld be prvided which preserves nt nly cmpetitin between ecnmic peratrs but als the need fr the cntracting authrities t discuss the cntract with each candidate. Hwever, this prcedure must nt be used in such a way as t restrict r distrt cmpetitin, particularly by any fundamental aspects f the ffers r by impsing substantial new requirements n the successful tenderer, r by invlving any tenderer ther than the ne selected as the mst ecnmically advantageus. (Directive / Whereas (31)) Prcedures nly t be used in cases where there is n pssibility t allw a Design Architectural Cmpetitin n the basis f equal criteria and evaluatin assessment. 16

17 Definitin Cmmentary Recmmendatin Cmpetitive Dialgue - The cntracting authrities shall publish a cntract ntice setting ut their needs and requirements which they shall define in that ntice and/r in a descriptive dcument. (article 29 / 2) - The cntracting authrities shall pen, with the candidates selected in accrdance with the relevant prvisins f Articles 44 t 52, a dialgue the aim f which shall be t identify and define the means best suited t satisfying their needs. They may discuss all aspects f the cntract with the chsen candidates during this dialgue. - During the dialgue, the cntracting authrities shall ensure equality f treatment amng all tenderers. In particular, they shall nt prvide infrmatin in a discriminatry manner which may give sme tenderers an advantage ver thers. - Cntracting authrities may nt reveal t the ther participants slutins prpsed r ther cnfidential cmmunicated by a participant in the dialgue withut his/her agreement. - Cntracting authrities may prvide fr the prcedure t take place in successive stages in rder t reduce the number f slutins t be discussed during the dialgue stage by applying the award criteria in the cntract ntice r the descriptive dcument. The cntract ntice r the descriptive dcument shall indicate that recurse may be had t this ptin. - The cntracting authrity shall cntinue such dialgue until it can identify the slutin r slutins, if necessary after cmparing them, which are capable f meeting its needs. 17

18 Definitin Cmmentary Recmmendatin Cmpetitive Dialgue - Having declared that the dialgue is cncluded and having s infrmed the participants, cntracting authrities shall ask them t submit their final tenders n the basis f the slutin r slutins presented and specified during the dialgue. These tenders shall cntain all the elements required and necessary fr the perfrmance f the prject. These tenders may be clarified, specified and finetuned at the request f the cntracting authrity. Hwever, such clarificatin, specificatin, fine-tuning r additinal infrmatin may nt invlve changes t the basic features f the tender r the call fr tender, variatins in which are likely t distrt cmpetitin r have a discriminatry effect. - Cntracting authrities shall assess the tenders received n the basis f the award criteria laid dwn in the cntract ntice r the descriptive dcument and shall chse the mst ecnmically advantageus tender in accrdance with Article At the request f cntracting authrity, the tenderer identified as having submitted the mst ecnmically advantageus may be asked t clarify aspects f the tender r cnfirm cmmitments cntained in the tender prvided. This des nt have the effect f mdifying substantial aspects f the tender r f the call fr tender and des nt risk distrting cmpetitin r causing discriminatin. - The cntracting authrities may specify prices r payments t the participants in the dialgue. (Directive / Chapter V / Article 29) 18

19 Definitin Cmmentary Recmmendatin Design and Built Public wrks cntracts are public cntracts having as their bject either the executin, r bth the executin and design, f wrks related t ne f the activities within the meaning f Annex I r a wrk, r the realisatin, by whatever means, f a wrk crrespnding t the requirements specified by the cntracting authrity. A wrk means the utcme f building r civil engineering wrks taken as a whle which is sufficient t itself t fulfil an ecnmic r technical functin. (Directive / Title I / Article 1 / 2 (b)) Threshld The threshlds are regularly revised under Article 78 f the Directive. They are published in the Official Jurnal f the Eurpean Unin. In view f the diversity f public wrks cntracts, cntracting authrities must be able t make prvisin fr cntracts fr the design and executin f wrk t be awarded either separately r jintly. It is nt the intentin f this Directive t prescribe either jint r separate cntract awards. The decisin t award cntracts separately r jintly must be determined by qualitative and ecnmic criteria which may be defined by natinal law. In rder t favur the access f small and mediumsized undertakings t the public prcurement market, it is advisable t include prvisins n subcntracting. (Directive / Whereas / (9) + (32) In duly justified cases, the decisin based n the awarding criteria shuld be rganized in steps, first weighting the quality f the prject. In this prcess the Authrs Rights shuld be respected. 19

20 Definitin Cmmentary Recmmendatin Selectin criteria In restricted prcedures, negtiated prcedures with publicatin f a cntract ntice and in the cmpetitive dialgue prcedure, cntracting authrities may limit the number f suitable candidates they will invite t tender, t negtiate r t cnduct a dialgue with, prvided a sufficient number f suitable candidates is available. The cntracting authrities shall indicate in the cntract ntice the bjective and nndiscriminatry criteria r rules they intend t apply, the minimum number f candidates they intend t invite and, where apprpriate, the maximum number. (Directive / Title II / Article 44 / 3) Where design cntests are restricted t a limited number f participants, the cntracting authrities shall lay dwn clear and nn-discriminatry selectin criteria. In any event, the number f candidates invited t participate shall be sufficient t ensure genuine cmpetitin. (Directive / Title IV / Article 72) A cntracting authrity may limit the number f candidates in the restricted and negtiated prcedures with publicatin f a cntract ntice and in the cmpetitive dialgue. Such a reductin f candidates shuld be perfrmed n the basis f bjective criteria indicated in the cntract ntice. These bjective criteria d nt necessarily imply weightings. Fr criteria relating t the persnal situatin f ecnmic peratrs, a general reference in the cntract ntice t the situatins set ut in Article 45 may suffice. In the cmpetitive dialgue and negtiated prcedures with publicatin f a cntract ntice, in view f the flexibility which may be required and the high level f csts assciated with such methds f prcurement, cntracting authrities shuld be entitled t make prvisin fr the prcedure t be cnducted in successive stages in rder t gradually t reduce, n the basis f previusly indicated cntract award criteria, the number f tenders which they will g n t discuss and negtiate. This reductin shuld, insfar as the number f apprpriate slutins r candidates allws, ensure that there is genuine cmpetitin. Selectin criteria have t be bjective nt relating t the slutin f a given prblem. Because f the difficulty t establish precise and detailed Selectin Criteria fr Intellectual Services especially in the field f architecture t restrict the number f suitable candidates, it is recmmended t cntinue the selectin f candidates by Evaluatin Criteria n cncept prpsals within a Design Cntest r a sequence f Cmpetitins, a selectin als can be dne by methdical apprach. Selectin criteria are in the respnsibility f the awarding authrity. 20

21 Definitin Cmmentary Recmmendatin Selectin criteria Verificatin f the suitability f tenderers, in pen prcedures, and f candidates, in restricted and negtiated prcedures with publicatin f a cntract ntice and in the cmpetitive dialgue, and the selectin theref, must be carried ut in transparent cnditins. Fr this purpse, nn-discriminatry criteria shuld be indicated which the cntracting authrities may use when selecting cmpetitrs and the means which ecnmic peratrs may use t prve they have satisfied thse criteria. In the same spirit f transparency, the cntracting authrity must be required, as sn as a cntract is put ut t cmpetitin, t indicate the selectin criteria it will use and the level f specific cmpetence it may r may nt demand f the ecnmic peratrs befre admitting them t the prcurement prcedure. Verificatin f the suitability f tenderers, in pen prcedures, and f candidates, in restricted and negtiated prcedures with publicatin f a cntract ntice and in the cmpetitive dialgue, and the selectin theref, must be carried ut in transparent cnditins. Fr this purpse, nn-discriminatry criteria shuld be indicated which the cntracting authrities may use when selecting cmpetitrs and the means which ecnmic peratrs may use t prve they have satisfied thse criteria. In the same spirit f transparency, the cntracting authrity must be required, as sn as a cntract is put ut t cmpetitin, t indicate the selectin criteria it will use and the level f specific cmpetence it may r may nt demand f the ecnmic peratrs befre admitting them t the prcurement prcedure. (Directive / Whereas (27) (27a) (29) 21

22 Definitin Cmmentary Recmmendatin Evaluatin criteria Criteria indicated in the cntest ntice as basis fr decisins f the Jury - It shall examine the prjects submitted by the candidates annymusly and slely n the basis f the criteria indicated in the cntest ntice. (Directive / Chapter III / Title IV / Article 74, 2) In case f a cntest, evaluatin criteria are slely in the respnsibility f an Independent Jury. See als Annex VII D 7) Infrmatin which must appear in service cntest ntices: criteria which will be applied in the evaluatin f the prjects. Cntract award criteria - Withut prejudice t natinal laws, regulatins r administrative prvisins cncerning the remuneratin f certain services, the criteria n which the cntracting authrities shall base the award f public cntracts shall be either: - when award is made t the tender mst ecnmically advantageus fr the cntracting authrities, varius criteria linked t the subject-matter f the public cntract in questin: fr example, quality, price, technical merit, aesthetic and functinal characteristics, envirnmental characteristics, running csts, cst-effectiveness, after-sales service and technical assistance, delivery date and delivery perid r perid f cmpletin r - the lwest price nly. T ensure cmpliance with the principle f equality f treatment in the award f cntracts, it is apprpriate t lay dwn an bligatin established by case law - t ensure the necessary transparency t enable all tenderers t be reasnably infrmed f the criteria and arrangements which will be applied t identify the mst ecnmically advantageus tender. It is therefre the respnsibility f cntracting authrities t indicate the criteria fr the award f the cntract and the relative weighting given t each f thse criteria in sufficient time fr tenderers t be aware f them when preparing their tenders. (Directive / Whereas (46) In case f an architectural cmpetitin it is an bligatin t put a clear statement in the Jury s reprt n which basis the cntract shuld be awarded and if needed what are the aspects t be clarified the final decisin fr the cntract awarding, is in full respnsibility f the awarding authrity. Any participant f an architectural cmpetitin has t respect the laws, regulatins f the cuntry/regin where the cmpetitin has been rganized. 22

23 Definitin Cmmentary Recmmendatin Cntract award criteria - Withut prejudice t the prvisins f the third subparagraph, in the case referred t in paragraph 1(a), the cntracting authrity shall specify in the cntract ntice r in the cntract dcuments r, in the case f a cmpetitive dialgue, in the descriptive dcument, the relative weighting which it gives t each f the criteria chsen t determine the mst ecnmically advantageus tender. Thse weightings can be expressed by prviding fr a range with an apprpriate maximum spread. Where the cntracting authrities chse t award a cntract t the mst ecnmically advantageus tender, they shall assess the tenders in rder t determine which ne ffers the best value fr mney. In rder t d this, they shall determine the ecnmic and quality criteria which, taken as a whle, must make it pssible t determine the mst ecnmically advantageus tender fr the cntracting authrity. (Directive / Whereas (46) Where, in the pinin f the cntracting authrity, weighting is nt pssible fr demnstrable reasns, the cntracting authrity shall indicate in the cntract ntice r cntract dcuments r, in the case f a cmpetitive dialgue, in the descriptive dcument, the criteria in descending rder f imprtance. (Directive / Chapter VII / Article 53 / 1a, 1b + 2) Annymity The Jury shall examine the plans and prjects submitted by the candidates annymusly and slely n the basis f the criteria indicated in the cntest ntice. Annymity must be bserved until the jury has reached its pinin r decisin. (Directive / Chapter III / Title IV / Article 74, 2,4) If candidates need t be invited t answer questins which the Jury has recrded in the minutes t clarify any aspects f the prjects, befre the decisin f the Jury, this has t be dne in respect f annymity. (Directive / Chapter III / Title IV / Article 63a /4) The clarificatin f imprtant questins pinted ut by the Jury has t be answered in an annymus way. Their clarificatin shuld preferably be carried ut in the negtiated prcedure. 23

24 Definitin Cmmentary Recmmendatin Independent Jury The jury shall be cmpsed exclusively f natural persns wh are independent f participants in the cntest. Where a particular prfessinal qualificatin is required frm participants in a cntest, at least a third f the members f the jury shall have that qualificatin r an equivalent qualificatin. (Directive / Chapter III / Title IV / Article 73) Technical Cmmissin The Technical Cmmissin f a cmpetitin has t check all entries in detail fr prepare the Jury panel. Excluded frm participating in a jury are all persns wh: - are clse relatives f r have a clse familiar relatinship with any participant - are partners, emplyees r emplyers in businesses with any participant - are interested in having any cntract as a prfessinal fr the cmpetitin bject The cmpsitin f the Technical Cmmissin is defined by nature f the prject and demands in the cmpetitin brief. The apprach f a special prject can shw the necessity f enlarging the cmmissin by additinal members. Because the decisin f the Jury is a prfessinal ne and nt a cntract awarding decisin, it is preferable t have a majrity f independent prfessinal members with the same qualificatin as demanded frm participants representing all prfessinal aspects f the prject in cntest. Jury member shuld be named befre publicatin f the cntest. They cannt be changed during the cntest, therefre substitute members shall be named als. Each Jury member has t fully agree with all details f cmpetitin brief and evaluatin criteria; there shuld be a cnsultatin with all Jury members befre launching a cmpetitin. The Technical Cmmissin is cmpsed f at least ne adviser having the same educatin as demanded frm the cmpetitrs. The cmmissin has t prepare a reprt n every prject examined. The Technical Cmmissin shall advise the Jury during evaluatin f the entries by present in the Jury panel. 24