The contracting authorities are free to choose between the open (art. 60 of the Code) and the restricted procedure (art. 61 of the Code).
The contracting authorities may apply a negotiated procedure (without or with a publication of contract notice or a competitive dialogue) under certain circumstances expressly provided for by articles 59, 62, 63 and 64 of the Code.
Negotiated procedure without prior publication of a contract notice (art. 63 of the Code) may be used:
1. For public works contracts, public supply contracts and public service contracts:
- when no tenders, no suitable tenders or no applications have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission if it so requests;
- when the contract may only be awarded to a particular economic operator for one of the following reasons:
- the procurement aims to create or obtain a unique work of art,
- there is no competition for technical reasons,
- exclusive rights, including intellectual property rights, need to be protected;
- insofar as is strictly necessary when, for reasons of extreme urgency brought about by unforeseeable events, the contracting authority does not have time to conduct the open, restricted or negotiated procedure with publication of a contract notice. In any event, the circumstances invoked to justify extreme urgency must not be attributable to the contracting authority in question.
2. For public supply contracts:
- when the products involved are manufactured purely for the purpose of research, experimentation, study or development; this provision does not extend to quantity production to establish commercial viability or to recover research and development costs;
- for additional deliveries from the original supplier intended either as a partial replacement of normal supplies or installations, or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics, which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the length of such contracts as well as that of recurrent contracts may not, as a general rule, exceed three years;
- for supplies quoted and purchased on a commodity market;
- for the purchase of supplies on particularly advantageous terms, from either a supplier that is definitively winding up its business activities, or receivers and other bodies responsible for insolvency proceedings.
3. For public service contracts:
- when the contract concerned follows a design contest and must, under the applicable rules, be awarded to the successful candidate or to one of the successful candidates; in the latter case, all successful candidates must be invited to participate in the negotiations.
4. For public works contracts and public service contracts:
- for new works or services consisting in the repetition of similar works or services already entrusted to the economic operator to whom the same contracting authority awarded an original contract, provided that such works or services conform with the basic project for which the original contract was awarded according to an open or restricted procedure.This procedure may only be used for three years following the conclusion of the original contract and the overall estimated value of the works or services must be taken into consideration for the whole value of the contract with respect to the European thresholds. The contracting authority, if feasible, will make a selection of at least five economic operators, inviting them to submit an offer.
Negotiated procedure in the special sectors (water, energy, transport and postal services sectors).
In the abovementioned sectors the negotiated procedure with prior contract notice is always possible (art. 125 of the Code).
Competitive dialogue (art. 59, para. 2 and art. 64 of the Code).
The Contracting Authorities may make use of competitive dialogue if one or more of the following conditions occur:
- the objectives pursued by the contracting authority with the procurement procedure cannot be achieved without relying on immediately available remedies;
- the objectives pursued by the contracting authority involve the development of innovative solutions;
- the contract cannot be awarded without prior negotiation due to specific circumstances related to the nature, complexity or financial and legal make-up of the contract or because of the risks related to it;
- the technical specifications cannot be established with sufficient precision by the Contracting Entity; or
- following an open or restricted procedure for the award of works, supply or service contracts, only irregular or ineligible tenders have been submitted (in this case the competitive dialogue shall reproduce in substance the original contractual conditions).
The Contracting Entity must state the specific reasons underlying the decision to make use of competitive dialogue.
Negotiated procedure with prior publication of a contract notice (art. 59 para. 2 and art. 62 of the Code):
Allowed under the same circumstances as those set out above regarding the competitive dialogue.
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