Title I – Public procurement procedures
Chapter 1
Preliminary steps and general provisions
Article 30
Market consultations
1.Public buyers may conduct market consultations to prepare their procurement and gain market knowledge, including about the availability of, or potential of developing, innovative solutions.
2.Where public buyers conduct market consultations pursuant to paragraph 1 of this Article, they shall announce those consultations in accordance with Article 110.
3.During the market consultations, public buyers may seek or accept information and advice from the general public, independent experts, public authorities, market participants or other relevant parties. The information and advice may take the form of written or verbal exchanges, demonstration of prototypes, live demonstrations, or other suitable objective formats. Such information and advice may be used in the planning and conduct of the procurement procedures, respecting the principles of equal treatment, non-discrimination, fair competition and transparency.
4.The participation of an economic operator in a market consultation does not prejudge its eligibility for the procurement procedure.
Article 31
Choice of procedures
1.Public buyers may use the open procedure set out in Article 34 and the dynamic procedure set out in Article 36 irrespective of the type of works, supplies or services needed.
2.Public buyers may use the innovation procedure to address a societal challenge for which they have not identified an existing appropriate or desirable solution, which is to be developed by the successful tenderer(s) in the course of the innovation procedure.
3.Public buyers may use the special procedure described in Article 46 only in the specific cases and circumstances laid down in Articles 47 and 48.
Article 32
Estimation of the value of the contract
1.Public buyers intending to award a contract shall estimate the value of the contract based on the estimated costs of the solution that meets the needs of the public buyer. The estimation shall be based on the maximum amount to be spent on the satisfaction of the needs over the entire duration of the contract, whether awarded to one or more economic operators, including all forms of payments and benefits, such as:
(a)premiums, fees, commissions and interests;
(b)the total value of options or renewals, where the contract provides for the possibility of options or renewals.
2.Where public buyers conclude more than one successive contract to satisfy their need, the calculation of the estimated value shall be based on:
(a)the value of recurring contracts for the same type of purchase during the preceding 12 months or the buyer’s preceding fiscal year, adjusted, where possible, to take into account anticipated changes in the quantity or estimated value of the solution to be procured over the following 12 months;
(b)the estimated value of recurring contracts for the same type of purchase during the 12 months following the initial contract or the public buyer’s preceding fiscal year.
Article 33
Conduct of negotiations
1.Public buyers shall respect the principles of proportionality and equal treatment in the conduct of negotiations and shall ensure that in any given round of negotiations the number of solutions discussed allows for genuine competition. Public buyers shall ensure that any disclosure of information during negotiations does not affect the commercial interests of the economic operators taking part in such negotiations.
2.Without prejudice to other relevant Union legislation, public buyers may negotiate all non-essential characteristics of the works, supplies and services intended for purchase, which may include certain elements related, for instance to technical merit, quantity, delivery conditions and other commercial aspects, but does not include exclusion grounds, selection criteria and award criteria.
Public buyers shall clearly indicate in the public summary of competition the characteristics of the works, supplies and services that are not subject to negotiation. These indications shall be sufficiently precise and comprehensive to circumscribe the subject-matter of the contract and shall contain the essential conditions of the contract, on which economic operators would legitimately rely in order to take the decision whether to participate in the award procedure.
The negotiations shall not substantially alter the subject-matter of the contract.
3.Public buyers may conduct negotiations in one or more rounds. After each round, the economic operators participating in the negotiations shall be invited to submit a tender and public buyers may decide to reduce the number of participants based on the award criteria set pursuant to Article 98.
Public buyers shall inform economic operators when a new round of negotiations will start and whether or not they will be invited. Public buyers shall inform all tenderers, whose tenders have not been eliminated, of any changes to the specifications or changes to other parts of the procurement detail as a result of the negotiations.
Public buyers shall provide sufficient time for tenderers to modify and re-submit amended tenders, as appropriate. Economic operators may submit revised tenders depending on the outcome of the negotiations.
Where a public buyer has decided to conclude the negotiations and proceed to the award of the contract, it shall invite each of the remaining economic operators to submit a final tender.
Chapter 2
Open procedure
Article 34
Launch and conduct of the open procedure
1.In the open procedure, public buyers shall make their procurement needs known through a public summary of competition published pursuant to Article 110 setting out whether and which selection criteria apply, and whether they intend to negotiate.
2.Any interested economic operator may express its interest and submit a tender (‘first tender’) using the electronic eligibility service referred to in Article 133. The expression of interest shall be submitted together with a tender specifying in particular how the economic operator proposes to address the needs of the public buyer. The deadline for receiving expressions of interest with tenders shall be no less than 20 days from the publication of the public summary of competition.
3.Where a public buyer has indicated that it intends not to negotiate, it shall award the contract in accordance with Article 98 to one or more economic operators that are not in a situation of exclusion, and, where applicable, fulfil the selection criteria set pursuant to Article 27. The contract shall be awarded on the basis of the first tenders submitted pursuant to paragraph 2.
4.Where the public buyer has indicated that it intends to negotiate, it shall send an invitation to negotiate to all interested economic operators that are not in a situation of exclusion, and, where applicable, that fulfil the selection criteria set pursuant to Article 27.
5.Negotiations shall be carried out in accordance with Article 33. Where the public buyer has decided to conclude the negotiations and has invited each of the remaining economic operators to submit a final tender, the contract shall be awarded on the basis of those final tenders.
6.Public buyers may decide not to negotiate, despite having indicated their intention to do so, but instead proceed to award the contract on the basis of the first tenders, provided that they have reserved the possibility of doing so in the public summary of competition.
Article 35
Finalisation of the procedure and award of the contract
1.Public buyers shall award the contract to the tenderer or tenderers that have submitted the tender offering the best quality for money in accordance with Article 98.
2.Without prejudice to the standstill period established in Directives 89/665/EEC 55 and 92/13/EEC 56 , the contract shall be concluded in accordance with the applicable law of the Member State of the public buyer.
Chapter 3
Dynamic procedure
Article 36
Dynamic procedure
Public buyers may use a dynamic procedure, in which only economic operators that have joined a given procedure are invited to express interest, submit a tender or participate in negotiations for individual contracts based on that procedure. Economic operators may request to join the procedure at any point during its validity.
Article 37
Launch and validity of the dynamic procedure
1.Public buyers conducting a dynamic procedure shall publish a public summary of competition on the launch of a dynamic procedure pursuant to Article 110, which shall indicate the duration of validity of the procedure, during which interested economic operators may request to join the procedure and during which acquisitions on the basis of the procedure may be made. The dynamic procedure shall remain open to all interested economic operators throughout its validity.
2.Public buyers may choose between conducting a dynamic procedure without selection criteria pursuant to Article 38 or a dynamic procedure with selection criteria pursuant to Article 39, and whether to negotiate in accordance with Article 33. The choices made shall be indicated the public summary of competition on the launch of a dynamic procedure.
3.Where public buyers intend to award an individual contract for the first time on the basis of the dynamic procedure, the invitation to express an interest in the specific contract shall take place not earlier than 25 days after the publication of the public summary of competition on the launch of a dynamic procedure.
Article 38
Conduct of the dynamic procedure without selection criteria
1.Upon the publication of the public summary of competition, and until the validity of the procedure has expired, economic operators may join the procedure by sharing their profile with the public buyer trough the eligibility system established pursuant to Article 133. By sharing their profile, the economic operators declare that they are qualified to perform the contract.
2.Where public buyers intend to award individual contracts based on the dynamic procedure, they shall inform all economic operators that have until that point joined the procedure about the individual contract to be awarded, including the precise description, quantity and timing of the purchase in question. Public buyers shall invite all economic operators participating in the dynamic procedure to express their interest in the specific contract to be awarded, setting a reasonable time limit for expressions of interest.
3.After the expiry of the time limit referred to in paragraph 2, public buyers shall invite the economic operators that have expressed their interest in the specific contract to be awarded, either to submit a tender, or to submit a first tender followed by negotiations.
Where the number of expressions of interest is more than five, the public buyer may, instead of inviting all economic operators that have expressed their interest, invite only five or certain more economic operators selected through the electronic eligibility service by means of random indiscriminate algorithmic determination, and shall inform through the eligibility system all those not invited.
4.Only economic operators that have submitted a tender shall be considered to be tenderers concerned within the meaning of Directives 89/665/EEC and 92/13/EEC.
Article 39
Conduct of the dynamic procedure with selection criteria
1.Upon the publication of the public summary of competition, and until the validity of the procedure has expired, economic operators may request to join the procedure, by sharing their profile with the public buyer trough the eligibility system established pursuant to Article 133. By sharing their profile, the economic operators declare that they are qualified to perform the contract.
2.The public buyer shall admit economic operators to the procedure on the basis of the selection criteria indicated in the public summary of competition.
3.Where public buyers intend to award individual contracts based on the dynamic procedure, they shall inform all economic operators that have until that point been selected for joining the procedure about the individual contract to be awarded, including the precise description, quantity and timing of the purchase in question. Public buyers shall invite all economic operators participating in the dynamic procedure to express their interest in the specific contract to be awarded, setting a reasonable time limit for expressions of interest.
4.After the expiry of the time limit referred to in paragraph 3, public buyers shall invite all economic operators that have expressed their interest in the specific contract to be awarded either to submit a tender, or to submit a first tender followed by negotiations.
By way of derogation from the first subparagraph, public buyers may decide to only invite a subset of the economic operators having expressed their interest in the specific contract to be awarded, on the basis of objective and non-discriminatory criteria or rules, provided that they have indicated these in the public summary of competition on the launch of the dynamic procedure.
Article 40
Finalisation of the procedure and award of the contract
1.Public buyers shall evaluate the final tenders in accordance with Article 98 and establish a ranking of all economic operators that have submitted a final tender. Public buyers shall award the contract to one or more economic operators that are not in a situation of exclusion. The results of this evaluation, including the ranking, shall be disclosed to the tenderers.
2.Public buyers shall, for every contract signed under a dynamic procedure, publish a public summary of result pursuant to Article 110.
Chapter 4
Innovation procedure
Article 41
Design and conduct of the innovation procedure
1.Public buyers may use the innovation procedure as set out in this Chapter to address a societal challenge.
2.The innovation procedure shall be conducted according to the following phases:
(a)determination of the societal challenge and design of the value assessment framework;
(b)launch of the procedure;
(c)the selection of innovative solution proposals;
(d)testing, validation and assessment of innovative solution proposals;
(e)the award of the public contract.
3.Public buyers shall determine the societal challenge to which they need an innovative solution proposal and define a value assessment framework that will be used during the course of the procedure for the assessment of the added value of the innovative solution proposal addressing the societal challenge. The value assessment framework shall use performance indicators to measure how much the proposed innovative solution proposal contributes to addressing the societal challenge in an objective and measurable way. It shall include a score system and indicate the minimum scores needed for innovative solution proposals to proceed to the different phases of the innovation procedure.
4.Elements of the value assessment framework may refer in particular to:
(a)enhanced user and process value, such as feedback gathered from citizens during the testing and validation of the innovative solution proposal;
(b)key performance indicators pertaining to increase efficiency or lower nuisance in the performance of public services, improved sustainability performance, improved health protection, reduced environmental impacts or increased security and resilience, such as safer cybersecurity systems;
(c)cost savings for the public buyer as compared with traditional or previously applied solutions.
Article 42
Launch of the innovation procedure
1.Before the launch of an innovation procedure, public buyers shall conduct a market consultation according to Article 30 which shall last at least two months, unless a shorter duration is justified given the specificities of the contract.
2.The public buyer shall make the following information available in the market consultation:
(a)a preliminary description of the societal challenge;
(b)a preliminary value assessment framework;
(c)an invitation for feedback and dialogue.
3.Upon the closure of the market consultation, public buyers shall, on the basis of the feedback received, prepare and launch the innovation procedure with a public summary of competition in accordance with Article 110.
The public buyer shall indicate in the procurement detail:
(a)the final description of the societal challenge;
(b)the minimum functional requirements that the innovative solution proposals need to meet;
(c)the final value assessment framework;
(d)any cash or in-kind contributions that the public buyer intends or may make available during the phases of the procedure,
(e)the expected procurement volumes;
(f)draft outlines for the contracts for testing, validation and assessment and for deployment of the innovative solution proposal, indicating topics for negotiation on deployment,
(g)information regarding the allocation of intellectual property rights arising in accordance with Article 64(4).
4.Any economic operator may submit an innovative solution proposal in response to a public summary of competition together with any information necessary for the selection of innovative solution proposals.
Article 43
Selection of innovative solution proposals
1.For the selection of innovative solution proposals, the public buyer shall perform an eligibility assessment in two phases.
2.In the first phase, the public buyer shall:
(a)verify the absence of any exclusion applicable to the economic operator and, where the public buyer choses to use selection criteria, proof of selection criteria;
(b)confirm that the innovative solution proposal submitted by the economic operator complies with the minimum functional requirements pursuant to Article 42(3), point (b).
3.In the second phase, the innovative solution proposals of economic operators that have passed the assessment pursuant to paragraph 2 of this Article, shall be selected according to the criteria of the value assessment framework and the evaluation score referred to in Article 42(3), point (c), based on:
(a)a positive evaluation of the innovation potential of the proposal, as well as its innovation capacity to address the societal challenge; and
(b)a positive evaluation of the feasibility and scalability of the proposal.
The second phase may be conducted by an interview with the economic operator, or by way of written exchanges with the economic operator.
4.Where the innovative solution proposal submitted by an economic operator attains at least the minimum total score for overall positive evaluation, that economic operator shall proceed to the next phase of the procurement procedure. The public buyer may limit the number of economic operators to proceed if it indicates such number in the procurement detail; in that case, the economic operators with the highest scores shall proceed.
Article 44
Testing, validation and assessment of innovative solution proposals
1.The public buyer shall invite economic operators found eligible pursuant to Article 43 to the testing, validation and assessment phase.
2.The duration of this phase shall not exceed two years from the date of selection of the innovative solution proposals, unless duly justified.
3.It shall consist of a structured and systematic process conducted by or on behalf of the public buyer based on the value assessment framework with the purpose of an overall assessment of the proposal, which shall include, where relevant:
(a)assessing the technical, operational, and functional feasibility of the innovative solution proposal in addressing the specified societal challenge;
(b)verifying compliance of the innovative solution proposal with the minimum functional requirements and applicable regulatory frameworks;
(c)evaluating the added value of the innovative proposal in a real-world or simulated environment;
(d)identifying any risks, limitations, or areas for improvement prior to full-scale implementation or procurement of the innovative solution proposal.
It may include laboratory testing, field trials, pilot deployments, user feedback collection, and comparative analysis.
4.Where Union legislation provides a framework for the assessment of the suitability of the innovative solution proposal to address the societal challenge, the public buyer shall rely on that assessment.
5.Any payments for each defined milestone of the testing, validation and assessment phase shall be upfront.
6.During this phase, economic operators may adjust and enhance their proposals with the objective of securing compliance with minimum functional requirements and increasing the added value of their proposal.
7.The public buyer shall make a final assessment of the improved proposal on compliance with minimum functional requirements and its added value pursuant to the value assessment framework and minimum scores.
8.The final assessment, indicating a positive or negative decision to proceed to the phase of awarding the public contract, shall be published as the public summary of result for the testing, validation and assessment phase.
Article 45
Award of the public contract for deployment of the innovative solution proposal
1.The public buyer shall send an invitation to negotiate to each economic operator that has received a positive decision to proceed pursuant Article 44(8).
2.In addition to the provisions in Article 33, the public buyer shall indicate the structure of the negotiations and shall determine how the negotiation is finalised, including a clear exit strategy for ending the procedure without award by determining objective criteria in which case negotiations are considered to have failed.
3.The description of the societal challenge, the minimum functional requirements and the value assessment framework shall not be subject to negotiation.
4.The negotiation shall focus on deployment of the innovative solution proposal and may include, but is not limited to:
(a)scope of commercial supply;
(b)rights to exploit in wider markets;
(c)pricing and final procurement volumes, not exceeding the volumes announced pursuant to Article 42(3), point (e);
(d)future upgrades, maintenance and service conditions of the innovative solution proposal;
(e)allocation of technical and commercial risks in deployment of the innovative solution proposal.
5.In case of a successful negotiation with an economic operator, the public buyer shall award the public contract for deployment of the solution proposal directly to that economic operator or, in the case of several successful solutions, to those economic operators. Awards may take place for up to five years after publication of the positive decision pursuant Article 44(8).
Chapter 5
Special procedures and tools
Article 46
Contracts requiring only publication of public summary of result
1.In the specific cases and circumstances laid down in Articles 47 and 48, public buyers may use a special procedure to award a public contract by requesting a solution directly from one or more economic operators without the need for a competitive process or prior publication of information on the tender. This request may take the form of an invitation to negotiate, a request to submit a tender, or a request to deliver the solution against invoice. Public buyers shall publish a public summary of result pursuant to Article 110.
2.The award of these contracts shall follow the principles of non-discrimination, equal treatment and transparency, taking due account of the specific needs and circumstances of the public buyers in the specific cases and circumstances described in Article 47 and 48.
Article 47
Conditions for the use of contracts with publication of a public summary of result only
Public buyers may use the procedure described in Article 46 in any of the following situations, in compliance with the Union’s international commitments:
(a)the solution needed can be supplied only by a particular economic operator and no reasonable alternative or substitute exists for any of the following reasons:
(i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;
(ii) competition is absent for technical reasons that cannot be attributed to the design of a prior procurement procedure or an artificial narrowing down of the parameters of the procurement;
(iii) the protection of exclusive rights, including intellectual property rights;
(iv) where the opening up of the contract to competition could negatively affect essential national security interests of the Union or the Member State of the public buyer and there is no possibility of applying less intrusive measures.
(b)in the case of public supply contracts that concern:
(i) additional deliveries during not more than two years by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, where a change of supplier would entail disproportionate costs or technical difficulties for the public buyer;
(ii) for supplies quoted and purchased on a commodity market;
(iii) for the purchase of supplies or services on particularly advantageous terms that only arise in the very short term in the case of unusual disposals such as those arising from winding down or insolvency proceedings.
(c)in the case of public service contracts that concern:
(i) administrative social, educational, healthcare and cultural service contracts under Common Procurement Vocabulary (CPV) codes 79950000-8 [Exhibition, fair and congress organisation services], 79951000-5 [Seminar organisation services], 79952000-2 [Event services], 79952100-3 [Cultural event organisation services], 79953000-9 [Festival organisation services], 79954000-6 [Party organisation services], 79955000-3 [Fashion shows organisation services], 79956000-0 [Fair and exhibition organisation services], 92100000-2 [Motion picture and video services], 92200000-3 [Radio and television services], 92400000-5 [News-agency services];
(ii) Hotel and restaurant services under CPVs 55100000-1 to 55410000-7; 55521000-8 to 55521200-0 [55521000-8 Catering services for private households, 55521100-9 Meals-on-wheels services, 55521200-0 Meal delivery service] 55520000-1 Catering services, 55522000-5 Catering services for transport enterprises, 55523000-2 Catering services for other enterprises or other institutions, 55524000-9 School catering services 55510000-8 Canteen services, 55511000-5 Canteen and other restricted clientele cafeteria services, 55512000-2 Canteen management services, 55523100-3 School-meal service.
Article 48
Emergency and crisis
1.Public buyers may make use of the procedure described in Article 46, where, for reasons of extreme urgency not attributable to the public buyer, the time limits for the procedures in this Regulation cannot be complied with.
2.Without prejudice to any joint procurement activities organised by the Union institutions, bodies, offices and agencies where an emergency mode has been activated pursuant Regulation (EU) 2024/2747 57 , the emergency framework has been activated pursuant Council Regulation (EU) 2022/2372 58 , serious cross-border threats to health pursuant to Regulation (EU) 2022/2371 59 exist, or the Commission has declared a crisis or a state of emergency, the condition set out in paragraph 1 shall be deemed to be fulfilled for the type of solutions concerned and for as long as the state of emergency or the serious cross-border threat exist.
Article 49
Qualification list for contracting entities
1.Contracting entities may establish and operate a qualification list. They may award individual contracts based on it.
2.Contracting entities shall publish a public summary of competition pursuant to Article 110 on the existence of the qualification list. They shall ensure that economic operators are at all times able to request to be admitted to the list during its duration indicated in the public summary of competition.
3.Contracting entities shall establish objective rules and criteria for admission of economic operators in the qualification list, and objective criteria and rules for the management of the qualification list, covering matters such as admission, periodic updating of the qualifications, if any, and the duration. They may divide the qualification list into different categories according to the subject-matter of individual contracts based on the qualification list.
4.Rules and criteria for admission to the qualification list shall include the exclusion criteria pursuant to Article 25 and may relate to exclusion criteria pursuant to Article 26, selection criteria pursuant to Article 27 and specifications pursuant to Article 88. Contracting entities shall apply the rules on means of proof in Articles 28, 91 and 92, respectively. Contracting entities shall ensure that the provisions of Title II of this Part are applied for admission to the list and for the award of individual contracts, as applicable.
5.Contracting entities awarding contracts based on a qualification list shall invite economic operators admitted to the qualification list or to the relevant categories thereof to submit a tender. Contracting entities may conduct negotiations pursuant to Article 33 followed by an award pursuant to Article 98, or award the contract without negotiations pursuant to Article 98. They shall publish a public summary of result pursuant to Article 110 regarding each individual contract awarded.
6.The process of admission to the qualification list, and of awarding individual contracts based on the system may be carried out in several successive stages.
7.Any charges that are billed in connection with qualification or with updating or conserving an already obtained qualification shall be proportionate to the generated costs.