Rule No. 1395 of 20 June 2019 on the procurement procedures of the Council of Europe[1]

The Secretary General of the Council of Europe,

HAVING REGARD to the Financial Regulations and Supplementary Provisions of the Council of Europe (hereinafter referred to as ''Financial Regulations''), in particular Articles 40 – 42 thereof;

HAVING REGARD to the Council of Europe’s Data Protection Regulations;

HAVING REGARD to Rule No. 1327 of 10 January 2011 on awareness and prevention of fraud and corruption, as amended;

HAVING REGARD to Rule No. 1282 of 18 October 2007 on the declaration of interests in the context of procurement and grant award, as amended;

HAVING REGARD to Rule No. 1296 of 18 December 2008 on the acceptance of fees, gifts, decorations or honours, invitations and other advantages from third parties;

HAVING REGARD to Instruction No. 59 of 21 December 2007 on consultants’ contracts;

HAVING REGARD to Instruction No. 60 of 21 December 2007 on outsourcing contracts;

HAVING REGARD to the Charter on Professional Ethics of 15 July 2005 and the Purchasing Code of Ethics of 25 October 2005;

HAVING REGARD to the underlying principles of all procurement procedures, which are periodic competition, objectivity, transparency, non-exclusivity, equal treatment and non-discrimination;

CONSIDERING that in order to make the most efficient use of the Organisation’s budget and to obtain best value for money, clear rules on procurement procedures are necessary;

CONSIDERING that the rules on the procurement procedures of the Council of Europe need to be updated;

EMPHASISING that this Rule should strive to combine the principles underlying all procurement procedures with the flexibility needed for the special legal framework in which the Council of Europe operates;

D E C I D E S:

Part I – General provisions

Article 1 – Aim of the Rule

1.       This Rule lays down the details relating to the procurement procedures foreseen in Articles 40 and following of the Financial Regulations.

2.       It also prescribes the duties and obligations of Secretariat members^[2] involved in these procedures.

3.       This Rule is adopted in the interest of the efficient use of resources of the Organisation.

Article 2 – General principles

1.       Procurement procedures in the Council of Europe shall be based on the principles of periodic competition, objectivity, transparency, non-exclusivity, equal treatment and non-discrimination.

2.       The principle of non-discrimination on grounds of gender, disability, age, marital or parental status, “race”, colour, ethnic origin, religion, belief, citizenship/nationality and sexual orientation shall be respected.

Article 3 – Interpretation

1.       The Rule shall be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms used in the Rule and in the light of its preamble. A practical guide and templates shall support the implementation of the legal framework established by the present Rule.

2.       The following definitions shall apply:

a.       The term, “one-off contract” shall be used to mean a contract, for the non-recurring supply of goods, services, intellectual service provision, or works, between the Organisation and one supplier, in which all aspects of the contract are defined at the outset.

b.       The term, “Framework contract” shall be used to mean a contract, for the recurring supply of goods, services, intellectual service provision, or works, between the Organisation and one or more suppliers in which the units and corresponding prices are defined but the quantity to be provided by the supplier(s) over the duration of the framework contract is not. Subsequent purchases from the supplier(s) party to the framework contract are made by way of purchase orders, without a further competitive procedure being necessary.

c.       The term, “Framework agreement” shall be used to mean an agreement for the recurring supply of goods, services, intellectual service provision or works, between the Organisation and several suppliers, in which the precise deliverables, their quantity and price are not yet established. Throughout the duration of the framework agreement, as each need that is covered by it arises, a subsequent contract shall be awarded to one of the suppliers party to the framework agreement following a further competitive procedure (“call-off”).

References in this Rule to “contracts” shall be taken to include one-off contracts, framework contracts and framework agreements, all as defined above.

d.       The term, “Authorised staff member” shall mean any Secretariat member who has been duly authorised by a commitments officer or delegated cost centre manager to carry out the tasks of an authorised staff member described in the present Rule.

Article 4 – Procurement procedures[3]

Contracts for the supply of goods, services, intellectual service provision or works to the Organisation, shall be subject to one of the following procedures:

-        International public call for tenders^[4]: where the total expenditure foreseen with regard to the contract is 171 000 EUR[5] or more, excluding VAT, or any amount fixed by the Secretary General under Article 40, paragraph 4, of the Financial Regulations.

-        Competitive bidding procedure^[6]: where the total expenditure foreseen with regard to the contract is less than 171 000 EUR,[7] excluding VAT, or any amount fixed by the Secretary General under Article 40, paragraph 4, of the Financial Regulations.

-        Direct award procedure: under the special conditions of Article 22 of this Rule.

Article 5 – Calls for expressions of interest

A call for expressions of interest is the process of seeking an indication of interest from potential suppliers of goods, services or works, who are capable of undertaking specific assignments. A call for expressions of interest is not a procurement procedure for the purposes of this Rule.

Article 6 – Consultants’ and outsourcing contracts

The procedures for the selection of consultants under Instruction No. 59 of 21 December 2007 on consultants’ contracts and for resorting to outsourcing under Instruction No. 60 of 21 December 2007 on outsourcing contracts shall be carried out in conformity with this Rule.

Article 7 – Travel, accommodation and leases

1.       Booking of travel and accommodation for participants in events organised by the Council of Europe, and lease contracts for premises, are outside the scope of this Rule. The Secretariat member responsible for making such bookings or arranging such leases shall take care to obtain the best available rates and terms.

2.       The procurement of travel management services or lease brokering services is within the scope of this Rule and shall be carried out in accordance with its provisions.  

Article 8 - Commitments officers’ responsibility

1.       For the purposes of this Rule, it is understood that the buyer administrative entity always acts under the responsibility of its commitments officer. This paragraph applies equally to procurement which is carried out on behalf of the buyer administrative entity by another administrative entity. In such cases, the procuring administrative entity shall act in accordance with the instructions of the buyer administrative entity’s commitments officer, or a person to whom responsibility has been delegated in accordance with paragraph 2 below.

2.       A commitments officer may, as necessary, delegate this responsibility in writing to another commitments officer or to a cost centre manager in his/her major administrative entity. A cost centre manager may not further delegate this responsibility unless specifically authorised to do so by the appropriate commitments officer. References in this Rule to a “commitments officer” shall be deemed to include a person to whom responsibility has been delegated in accordance with this paragraph.

3.       Authorised staff members shall act under the responsibility of, and within the limits of the authority delegated to them in writing by, the commitments officer or cost centre manager responsible for the procurement that they are carrying out.

Article 9 – General obligations

1.       Secretariat members involved in procurement procedures shall act objectively and impartially and shall treat all potential suppliers and bidders equally. They shall act in compliance with the internal instruments set out in the Preamble hereto.

2.       They shall not disclose any information other than that intended to be made available to potential suppliers or bidders involved in the relevant purchase.  

3.       Moreover, they shall protect the confidentiality of the information imparted by the potential suppliers and bidders. Particular care shall be taken when processing personal data, to ensure that the Data Protection Regulations of the Council of Europe are complied with.

Part II – Specification

Article 10

1.       All procurement procedures, with the exception of those to which Article 19 applies, shall be conducted on the basis of a specification to be prepared by or on behalf of the buyer administrative entity.

2.       All specifications may consist of one or more documents and shall contain:

-        the object of the intended contract;

-        a description of the goods and/or services and/or works to be procured, the level of detail to be included therein depending on the complexity of the purchase;

-        the date(s) and terms of delivery of the goods and/or services and/or works;

-        the proposed duration of the contract;

-        any clauses, additional to the Organisation’s general conditions of purchase, that may be required.

3.       For procedures under Part III and Article 21 of the present Rule, the specification shall also contain:

-        the general exclusion criteria[8], as well as any additional exclusion criteria, as may be appropriate given the circumstances and nature of the contract to be awarded;

-        any eligibility criteria, as may be appropriate given the circumstances and nature of the contract to be awarded;

-        the award criteria (which may be related to cost, quality and other relevant factors) and, if applicable, the corresponding weighting;

-        any financial guarantee that the Organisation may require; and

-        instructions for the submission of bids.

4.       The contractual terms and conditions shall include general conditions which shall be drafted and updated as necessary by the Legal Adviser. These may be supplemented or modified by special conditions. All contracts shall contain an appropriate dispute settlement clause which protects the privileges and immunities of the Council of Europe.

5.       Eligibility and award criteria shall be objective and proportionate, in the sense that they shall not confer any unfair advantage on a potential supplier and shall not constitute an unjustified obstacle to competition.

6.       Social, ethical and environmental criteria may be also taken into account.

 

7.       The criteria, once made public according to the conditions of each procurement procedure, shall not be changed.

Part III – International Public Call for Tenders

Article 11 – Tenders Board

There shall be a Tenders Board under the authority of the Secretary General. Its Terms of Reference shall be those set out in appendix to the present Rule[9].

Article 12 - Permission to launch the procedure

1.       Permission to launch the procedure shall be requested by the relevant commitments officer. The request shall contain the following information:

-        the specification or, in the case of a request for competitive dialogue, the description of needs;

-        the estimated total cost of the contract;

-        proposals on how to publish the international public call for tenders;

-        a timetable for the procurement procedure; and, if applicable,

-        the cost of the previous contract for such goods, works or services.

2.       The commitments officer’s request shall be sent to the Secretary of the Tenders Board.

3.       The Tenders Board shall examine the file and decide, as relevant:

-        whether to approve the specification as presented or request amendments thereto;

-        whether a request to derogate from the requirement to publish the call for tenders has been duly justified and, in such cases, how and to whom the invitation to tender shall be disseminated;

-        on the means by which publication shall occur and the deadline for submission of bids;

-        whether recourse shall be had to the competitive dialogue procedure described in Article 19 of the present Rule.

4.       The Tenders Board may make any other recommendations as appropriate.

Article 13 – Publication of an International Public Call for Tenders

1.       International public calls for tenders shall be published by the most suitable means to ensure competition. The complete tender file and/or a notice in accordance with paragraph 3 below may be published.

2.       International public calls for tenders shall be published on the website of the Organisation. In addition, the Tenders Board may decide that they should be published in the Official Journal of the European Union; on the electronic platform; on appropriate websites and/or social media; and/or in the national, regional or local newspapers or periodicals; notification of the tender may also be sent to member states’ Permanent Representations.

3.       A notice may be published inviting potential suppliers to ask for the complete tender file, before a certain date. The notice shall contain a brief description of the goods and/or services and/or works to be procured, the date(s) of delivery and the deadline for the submission of bids. In such cases, the complete tender file shall be provided to all potential suppliers who requested the file in the manner stipulated in the published notice.

4.       The deadline for submitting the bids shall reflect the complexity of the file; the deadline should not be less than three weeks from the date of publication of the international public call for tenders.

5.       In exceptional cases and where duly justified, the Tenders Board may decide to approve a proposal from the buyer administrative entity that the international public call for tenders should not be published but should instead be disseminated to certain pre-selected suppliers.

Article 14 – Supplementary information

1.       Potential suppliers may request supplementary information in writing. Buyer administrative entities shall set a deadline for such requests. They shall respond to all requests for information which are received before that deadline. They may also respond to requests for information received after the deadline provided that this does not affect the fairness of the procedure. No supplementary information shall be provided later than 48 hours prior to the deadline for submission of bids.

2.       Whenever responses are made to requests for information, the information provided shall be transmitted to all potential suppliers simultaneously, together with the content, but not the source, of the request.

3.       In the case of an international public call for tenders that has been published, the supplementary information shall be published in the same manner as the call.

Article 15 – Submission of bids

1.       Bidders shall submit their offers in the manner stipulated in the tender file.

2.       Bids submitted after the deadline shall automatically be excluded from the procedure, unless the bidder proves that his/her bid could not be submitted in time because of unforeseeable circumstances not attributable to the bidder. The Tenders Board shall decide whether such circumstances apply or not.

3.       Bids submitted directly to the buyer administrative entity shall be excluded from the procedure.

Article 16 – Opening of bids

1.       Bids may only be opened after the submission deadline.

2.       Bids received in paper form or via unsecured electronic means shall be opened by a member of the Secretariat of the Tenders Board or their designated substitutes together with an authorised staff member of the buyer administrative entity.  The receipt of the bids and any price proposals shall be recorded and confirmed by those who have opened the bids.

3.       Where bids are received electronically via a secure platform, they may be opened by an authorised staff member of the buyer administrative entity acting alone.

Article 17 – Analysis of bids

1.       Authorised staff members of the buyer administrative entity shall analyse the bids against the exclusion, eligibility and award criteria.

2.       Buyer administrative entities may ask for the bids to be clarified or supplemented. However, this must not change the principal features of the bids or distort competition between bidders.

3.       The following information shall be recorded:

-        any bids which have been excluded and the reasons why;

-        any bids which have been deemed ineligible and the reasons why;

-        the price(s) of each bid deemed eligible;

-        the assessment of each eligible bid by the authorised staff members;  

-        details of any requests for clarification of bids that have been addressed to bidders in accordance with paragraph 2 above and the responses received.

4.       A summary report with a comparative table of prices and other relevant elements shall be submitted to the Tenders Board together with a recommendation, based on objectively justified reasons, as to which supplier(s) should be awarded the contract(s). The report and recommendation shall be validated by the commitments officer and shall be sent to the Secretary of the Tenders Board.

Article 18 - Award

1.       The Tenders Board shall scrutinise the analysis of the bids and the recommendation and shall decide which bid(s) should be chosen on the basis of the exclusion, eligibility and award criteria.

2.       Following a proposal from the commitments officer responsible for the file or on its own initiative, the Tenders Board may decide to discontinue the international public call for tenders at any moment prior to the award of contract, without providing reasons or paying compensation of any kind to the bidders.

3.       If the international public call for tenders has elicited no or an insufficient number of offers or failed to produce acceptable prices or if no offer meets the requirements of the buyer administrative entity, the Tenders Board may decide:

a.       that the purchase shall not be effected;

b.       that the buyer administrative entity should be authorised to negotiate directly with a potential supplier; or

c.       that a new international public call for tender should be launched.

Where this paragraph applies, the buyer administrative entity shall inform any bidders in writing of the decision of the Tenders Board.

4.       The buyer administrative entity shall inform the successful bidder(s) of the award in writing.

5.       Unsuccessful bidders shall be informed in writing by the buyer administrative entity within 15 calendar days after the successful bidder(s) has or have been informed of the contract award. The information conveyed shall include the reason why the bid was unsuccessful and the modalities for possible enquiries according to Article 24.

6.       Information about contracts awarded shall be published regularly, except where specific confidentiality measures need to be taken by the Council of Europe to preserve the vital interests of a successful bidder.

Article 19 – Competitive Dialogue

1.       In the case of a particularly complex purchase, when it is difficult to define in advance (a) the technical means by which the needs of the Organisation shall be met or (b) the legal and financial conditions of the purchase, the buyer administrative entity may propose to the Tenders Board to have recourse to competitive dialogue.

2.       In place of a specification, the buyer administrative entity shall prepare a descriptive document setting out its needs. This document shall contain the exclusion, eligibility and award criteria, and may also contain any of the other information listed in Article 10, paragraphs 2 and 3, where such information is known to the buyer administrative entity at the outset of the procedure. The buyer administrative entity shall publish a notice inviting potential suppliers to participate in the competitive dialogue on the basis of the descriptive document.

3.       The buyer administrative entity may, if it chooses, limit the number of participating suppliers. In such cases, the maximum number of suppliers, as well as the criteria according to which they shall be selected to participate, shall be contained in the notice. The number of suppliers selected to participate in the competitive dialogue may be less than foreseen in the published notice if an insufficient number of eligible bidders respond. Where this paragraph applies, the buyer entity shall conduct an analysis of all potential suppliers who respond to the published notice using the published criteria. This analysis shall be presented to the Tenders Board for its approval with a recommendation of the bidders to be chosen to participate.

4.       Potential suppliers who are retained to participate in the competitive dialogue shall be invited to submit a written proposal which describes the solution or solutions which they consider best suited to meet the needs set out in the descriptive document. The buyer administrative entity shall then enter into a dialogue with each bidder aimed at identifying and defining the means best suited to satisfying its needs. All aspects of the contract, including technical, legal and financial aspects, shall be open to discussion; however, the criteria and any other information published in the descriptive document may not be changed. The dialogue with each bidder may consist of one or several rounds and the information and ideas divulged by one bidder during the course of the dialogue shall not be disclosed to any other bidders.

5.       The dialogue with each bidder shall be documented in full. The equality of treatment of bidders and the confidentiality of information submitted by the bidders shall be ensured.

6.       Once the best means of fulfilling the needs set out in the descriptive document have been defined, the buyer administrative entity shall declare the competitive dialogue at an end. Each bidder shall be invited to submit their final bid on the basis of the solution arrived at during the dialogue with that bidder. The deadline for each bidder’s final bid shall be the same. Submission and opening of bids shall be governed by Articles 15 and 16.

7.       The analysis of the final bids and award shall be governed by Articles 17 and 18.  This phase of the procedure shall again be documented in full.

Article 20 – Negotiation

1.       Where, following submission of bids, the buyer administrative entity considers that the best possible financial and technical terms for the Organisation can only be obtained through negotiation with suppliers who have submitted bids in respect of an international public call for tenders, the following paragraphs shall apply.

2.       The call for tenders, submission and opening of bids shall be governed by Articles 13 to 16. After the analysis of bids against the exclusion, eligibility and award criteria by authorised staff members, the buyer administrative entity shall seek authorisation from the Tenders Board to enter into negotiations with those eligible bidders that have submitted the offers which most closely meet the needs expressed in the specification.

3.       The request to the Tenders Board shall state why the buyer administrative entity considers that negotiation is required; with which bidder or bidders it is proposed to enter into negotiations; and what the negotiations will cover. Negotiations may, in particular, cover the price; warranties; and/or terms and conditions in the contract to be awarded.

4.       If the Tenders Board approves a request for having recourse to negotiation, it shall also decide on the bidder or bidders with whom, and the subject matters on which, the buyer administrative entity may enter into negotiations.

5.       Negotiations may not lead to any significant deviation from the specification. The equality of treatment of bidders and the confidentiality of information submitted by the bidders shall be ensured. The negotiations shall be documented in full.

6.       Following the negotiation, the bidders shall be asked to confirm any changes to their original bid in writing. The results of the negotiation shall then be presented to the Tenders Board, which will decide on the award of the contract in accordance with Article 18.

Part IV – Other procedures

Article 21 – Competitive Bidding Procedure[10]

1.       Where the total expenditure foreseen with regard to a contract is between 2 000 EUR and 171 000 EUR,[11] excluding VAT, the buyer administrative entity shall take care to obtain the best terms. The procedure set out in paragraphs 2 to 11 below shall be followed.

2.       The buyer administrative entity shall issue electronically invitations to tender to at least three potential suppliers, where possible. Invitations shall include the full specification for the procedure. Where it proves impossible to consult at least three suppliers, the reasons shall be recorded. Where the total expenditure foreseen with regard to the contract is less than 10 000 EUR, excluding VAT, the competitive bidding procedure may, in the interests of efficiency, be carried out by consulting the publicly available prices of three or more potential suppliers instead of issuing invitations to tender, so long as the best terms may be obtained in this manner.

3.       The buyer administrative entity may, alternatively or in addition to issuing invitations to tender, publish a call for bids in the manner(s) it considers most appropriate, including on the website of the Council of Europe, on its own website, on the electronic platform, in newspapers or periodicals and on social media. It shall ensure that publication by any of these means does not advantage or disadvantage any potential bidders or create an unjustified obstacle to competition. The call for bids shall include details on how to obtain the specification.

4.       The deadline for submitting the bids shall reflect the complexity of the file.

5.       Where appropriate, having regard to the value and complexity of the purchase, the specification may provide that potential suppliers may request supplementary information in writing. The modalities for dealing with requests for supplementary information shall be as set out in Article 14 above.

6.       The buyer administrative entity shall be responsible for opening the bids. Bids may only be opened after the deadline for submission. Bids which are not in accordance with the published instructions for submission shall be excluded. Where bids are received electronically via a secure platform they may be opened by one authorised staff member of the buyer administrative entity. In all other cases, bids shall be opened by at least two authorised staff members of the buyer administrative entity; price proposals shall be recorded; and the records shall be confirmed by those authorised to open the bids.

7.       At least two authorised staff members of the buyer administrative entity shall analyse the bids against the criteria provided in the specification. Where necessary, buyer administrative entities may ask for the bids to be clarified or supplemented, provided that this does not change the principal features of the bids or distort competition between bidders.

8.       Where the authorised staff members consider that the best possible financial and technical terms for the Organisation can only be obtained through negotiation with suppliers who have submitted bids, Article 20 shall apply mutatis mutandis; the authorisation of the relevant commitments officer shall be required in place of that of the Tenders Board.

9.       A reasoned recommendation as to which supplier(s) should be awarded the contract(s) shall be submitted to the relevant commitments officer. The recommendation may be accompanied by such other relevant elements (e.g. comparative table of prices) as appropriate, having regard to the value and complexity of the purchase. 

10.     The commitments officer shall decide which bid should be accepted. If the procedure has elicited no or an insufficient number of offers or failed to produce acceptable prices or if no offer meets the requirements of the buyer administrative entity, the commitments officer may decide:

-        that the purchase shall not be effected; or

-        that an authorised staff member shall negotiate directly with a potential supplier; or

-        that a new competitive bidding procedure shall be launched.

Where this paragraph applies, the buyer administrative entity shall inform any bidders in writing of the decision of the commitments officer.

11.     The buyer administrative entity shall inform the successful bidder as well as unsuccessful bidders of the award in writing in accordance with Article 18 paragraphs 4 and 5.

Article 22 – Direct Award Procedure[12]

1.       In addition to the cases under Article 18, paragraph 3 and Article 21, paragraph 10, contracts can be negotiated directly:

a.       where, in the opinion of the Tenders Board, for contracts with a value of 171 000 EUR[13] or more, and in the opinion of the relevant commitments officer, for contracts with a value of less than 171 000 EUR:[14]

               for unforeseen reasons of urgency not attributable to the buyer administrative entity, the relevant competitive procedure cannot be followed; or

               technical imperatives require that a particular supplier be chosen; or

               considerations of fact or law require that a particular supplier be chosen.

b.       where the expenditure concerns a purchase for an amount less than 2 000 EUR, excluding VAT;

c.       where they deal with the acquisition of intellectual services for an amount less than 6 000 EUR,[15] excluding VAT, when the basic criterion of choice is the expertise of the supplier.

2.       For the purposes of the procedure under paragraph 1a. above, where the relevant contract has a value of  171 000 EUR[16] or more, the following procedure shall be followed:

a.       The relevant commitments officer shall submit a request to the Tenders Board, which shall contain the specification, the estimated total cost of the contract, an explanation of the unforeseen reasons of urgency or the technical imperatives or considerations of fact or law that justify the direct negotiation, and the proposed supplier.

b.       On the basis of the request, the Tenders Board shall decide whether the direct award procedure can be followed.

c.       The contract shall be awarded by the commitments officer.

3.       For the purposes of the procedure under paragraph 1a. above, where the relevant contract has a value of less than 171 000 EUR,[17] a staff member of the buyer administrative entity shall submit a request to the relevant commitments officer which shall contain the specification, the estimated total cost of the contract, an explanation of the unforeseen reasons of urgency or the technical imperatives or considerations of fact or law that justify the direct negotiation, and the proposed supplier. The commitments officer shall decide whether the direct award procedure can be followed and award the contract.

4.       In the case of the procedure under paragraph 1c. above, the commitments officer shall award the contract on the basis of a reasoned proposal in writing prepared by a staff member of the buyer administrative entity.

5.       Whenever recourse is had to the direct award procedure in accordance with paragraph 1 above, the buyer administrative entity shall take care to obtain the best value for money, bearing in mind the technical and financial terms.

Part V – Record-keeping

Article 23

1.       The relevant commitments officer shall ensure that all documents needed in order to verify that the procurement procedure was carried out in conformity with this Rule are conserved in hard copy or digital form. This shall include, as a minimum, the specifications; the list of suppliers contacted and all bids received; the evaluation of the bids; the justification for any direct award; the final contract and any amendments thereto; proof that the deliverables were provided; and all related invoices/requests for payment. The documentation referred to in this paragraph, which shall form part of the Organisation’s accounting records, shall be kept for a minimum of ten years, in accordance with Article 64 of the Financial Regulations. The ten-year period shall start to run from the date of the contract award, for all documentation concerning the procurement procedure, and from the date of the last invoice/request for payment, for the contract, any amendments thereto and all related invoices/requests for payment.

2.       The Secretary of the Tenders Board shall keep full records of the examination of each file submitted to the Board, for a minimum of ten years from the date of the Board’s decision on the file, and shall keep the Board’s electronic database up-to-date.

3.       Upon request the buyer administrative entity shall transmit to the Secretary of the Tenders Board an electronic version of each contract it has concluded further to a procurement procedure brought to the attention of the Board.

Part VI - Enquiries and complaints procedure

Article 24

1.       Unsuccessful bidders may enquire about an international public call for tenders or competitive bidding procedure pursuant to Article 21, in respect of which they submitted a bid, within seven days of notification of the outcome thereof. Such enquiries shall be answered without undue delay by the buyer administrative entity responsible, address the issues raised by the unsuccessful bidder and include information on the complaint and appeal procedure set out hereunder.

2.       In the event that the unsuccessful bidder is not satisfied with the response to their enquiry and considers that the procurement procedure in question suffered from an error that affected its outcome to their detriment, they may submit a written complaint to the Tenders Board within thirty days of receipt of the response to their enquiry. The complaint shall indicate the reference of the international public call for tenders or competitive bidding procedure and shall be duly substantiated.

3.       The Tenders Board shall give a reasoned reply not later than thirty days from the date of receipt of the complaint. If the complaint concerns a competitive bidding procedure pursuant to Article 21, the Tenders Board’s decision shall be final.

4.       If the Tenders Board rejects a complaint concerning a procurement procedure conducted following an international public call for tenders, the unsuccessful bidder may lodge an appeal in writing within thirty days from the notification of the Tenders Board’s decision on the complaint. The appeal will be examined by an ad hoc Review Board which shall give a reasoned reply not later than sixty days following receipt of the appeal. The ad hoc Review Board shall base its decision on the facts as established by the Tenders Board.

5.       The ad hoc Review Board shall comprise three Secretariat members appointed by the Secretary General. The members shall be drawn from at least two Major Administrative Entities, from among staff members exercising financial responsibilities therein. Secretariat members of the Major Administrative Entity having launched the international public call for tenders or who were otherwise involved in the procurement procedure in dispute shall not be eligible for appointment to the ad hoc Review Board.

6.       If (i) the Tenders Board, in a decision made pursuant to paragraph 3, or (ii) the ad hoc Review Board in a decision made pursuant to paragraph 4, conclude that the procurement procedure in question suffered from an error that affected its outcome to the detriment of the complainant, they shall decide on the appropriate means of redress.

7.       The submission of an enquiry, complaint or appeal shall have no suspensive effect and shall not prevent the award or operational start-up of a contract or contracts awarded following the competitive bidding or international public call for tender procedure which is the subject of the enquiry, complaint or appeal.

Part VII - Final provisions

Article 25 – Transitional period

For all contracts in respect of which the expenditure is to be made from extra-budgetary funds, the international call for tenders procedure set out in Part III or, where applicable, the procedure set out in Article 22, paragraph 2, shall be followed where the total expenditure foreseen with regard to the contract is 55 000 EUR or more, excluding VAT. The competitive bidding procedure shall be followed when the total expenditure foreseen is between 2 000 EUR and 55 000 EUR. This provision shall apply until such date as is set by the Director General of Administration.

Article 26 – Entry into force

1.       This Rule shall enter into force on 1 July 2019. It shall repeal and replace Rule No. 1333 of 29 June 2011 on the procurement procedures of the Council of Europe and Rule No. 1334 of 29 June 2011 on the terms of reference of the Tenders Board.

2.       It shall apply to procurement procedures launched after its entry into force.

Strasbourg, 20 June 2019

The Secretary General

Thorbjørn JAGLAND

Appendix I to Rule No. 1395 – General exclusion criteria[18]

“Potential suppliers or bidders shall be excluded from participating in the tender procedure where they:

a.       have been sentenced by final judgment on one or more of the following charges: participation in a criminal organisation, corruption, fraud, money laundering, terrorist financing, terrorist offences or offences linked to terrorist activities, child labour or trafficking in human beings;

b.       are in a situation of bankruptcy, liquidation, termination of activity, insolvency or arrangement with creditors or any like situation arising from a procedure of the     same kind, or are subject to a procedure of the same kind;

c.       have received a judgment with res judicata force, finding an offence that affects their professional integrity or serious professional misconduct;

d.       do not comply with their obligations as regards payment of social security contributions, taxes and dues, according to the statutory provisions of their country of incorporation, residence or establishment;

e.       are an entity created to circumvent tax, social or other legal obligations (empty shell company), have ever created or are in the process of creation of such an entity;

f.       have been involved in mismanagement of the Council of Europe funds or public funds;

g.       are or appear to be in a situation of conflict of interest in relation to the tender procedure.

All bidders shall deliver, when submitting their tender, a declaration on their honour certifying that they are not in any of the above-mentioned situations.

The Council of Europe reserves the right to ask successful bidders to supply the following supporting documents:

a.       for the items in a), b), c) and f), an extract from the record of convictions or failing that an equivalent document issued by the competent judicial or administrative authority of the country of incorporation, indicating that these requirements are met;

b.       for the items in d), a certificate issued by the competent authority of the country of incorporation.”

Appendix II to Rule 1395 - Terms of Reference of the Tenders Board of the Council of Europe

Article 1

1.       The members of the Tenders Board (hereinafter “Board”) with voting rights shall be:

-        The Director General of Administration, Chair of the Board;

-        The Director of Legal Advice and Public International Law;

-        The Treasurer;

-        A member or his/her substitute, both appointed by the Secretary General on an annual basis and selected among staff members exercising financial responsibilities in a Major Administrative Entity.

2.       The Director General of Administration, the Director of Legal Advice and Public International Law and the Treasurer shall appoint, at the beginning of each year, up to two staff members who may represent them on the Board.

3.       The commitments officer responsible for the file under consideration or his/her representative shall take part in the examination thereof.

4.       A Secretariat member may be invited by the Chair of the Board, as an internal expert on the basis of his/her technical competences, to take part in the examination of any file.

5.       The Board shall be supported by a Secretary who shall be appointed, together with a deputy, by the Chair of the Board for a period of two years.

6.       Membership of the Board is subject to the Rule on the declaration of interests in the context of procurement.

Article 2[19]

1.         The Board shall be called upon to pronounce itself on any planned contracts for the supply of goods, services, intellectual services or works to the Organisation with a value of € 171 000[20] or more, before tax, or any other amount fixed by the Secretary General under Article 40, paragraph 4 of the Financial Regulations.

2.       The duties of the Tenders Board shall be to:

-        decide how widely public calls for tenders should be published;

-        decide on the most appropriate means of publication;

-        assess the bids received, by scrutinising the evaluation of the bids;

-        decide which bid should be accepted on the basis of a recommendation by the commitments officer.

3.       The Board shall be consulted when a buyer administrative entity intends to negotiate a contract directly because the international public call for tenders procedure cannot be followed for unforeseen reasons of urgency not attributable to the buyer administrative entity or because technical imperatives or considerations of fact or law require that a particular supplier be chosen.

4.       The Tenders Board may adopt policies with regard to the procurement of goods, services, intellectual services or works for the Organisation.

5.       The Tenders Board may be consulted concerning any other issue relating to public tendering, the sale of fixed assets within the meaning of Articles 53 et seq of the Financial Regulations, or to the drafting or performance of a contract.

Article 3

1.       The Board’s approval or opinion shall be sought by way of a request, validated by the relevant commitments officer or his or her representative, sent to the Secretary of the Tenders Board.

2.       The Board may define further requirements for the submission of files for its consideration.

Article 4

1.       The Board shall strive to take its decisions by consensus.

2.       In case of disagreement, the Board shall proceed to a vote. The decision shall be adopted by a majority of the votes cast by members with voting rights. In the event of a tie, the Chair of the Board shall have a casting vote.

Article 5

1.       The Board may hold meetings or resort to the procedure of electronic consultation to decide on a commitments officer’s proposal.

2.       The quorum of the Board shall be three of the members with voting rights.

3.       Where a file is to be examined by way of electronic consultation, the Secretary shall submit the file electronically to the members and their substitutes or representatives, inviting them to approve or object to the proposal within a given time limit which shall not be less than two working days. Failure to object within the time limit shall be deemed to amount to approval. The Secretary shall establish that at least three members with voting rights or their substitutes or representatives were in a position to react to the proposal within the relevant time-limit, in the sense that they were not absent, on leave or on mission.  

4.       Where a file has been circulated for electronic consultation, any of the members or their substitutes or representatives may ask the Chair to defer examination of the file to a meeting of the Tenders Board.

Article 6

1.       All files submitted to the Board shall be treated by the members in strict confidence.

2.       The meeting reports of the Board shall be confidential. They shall be transmitted only to the members of the Board with voting rights, as well as their substitutes and representatives. The relevant excerpts of a meeting report, or the decision of the Board following an electronic consultation, shall be communicated to those who participated in the meeting or electronic consultation for the examination of a particular file as well as to the commitments officer and the cost centre manager responsible for the file.

3.       The Board may grant access to its database to specific Secretariat members should this be required in relation to the financial responsibilities they exercise.