Negotiated procedures without prior publication of a contract notice
1. The negotiated procedure without prior publication of a contract notice is a procurement procedure consisting of one stage, in which the contracting authority negotiates the terms of the contract with the tenderers invited to submit a tender.
2. Contracting authorities may conduct a negotiated procedure without prior publication of a contract notice in exceptional cases, where:
- the preconditions set out in Article 85(2)(e) are met and the original terms of the public contract have not been altered substantially, furthermore, all tenderers of the open or restricitive procedure whose tender was considered invalid are invited by the contracting authority to the negotiation, on condition that the invalidity is not based on Article 73(1)(b) or (d), and their tender have fulfilled the formal requirements set, where appropriate, after a supply of missing information;
- the open, restrictive procedure was unsuccessful because no tender or request to participate was submitted in the procedure or the tenders or requests to participate submitted were substantially unsuitable, provided that the original terms of the public contract have not been altered substantially; the contracting authority shall, upon request, inform the European Commission via the Minister responsible for public procurements. The tender shall be considered substantially unsuitable, if it is invalid on the ground that the professional tender is clearly unable to meet the needs and requirements defined by the contracting authority, unless substantial changes are made to it; the request to participate shall be considered substantially unsuitable, if it is invalid on the basis of Article 73(1)(b) or (d).
- for technical reasons or for reasons connected with the protection of exclusive rights, the contract may only be concluded with a particular economic operator, provided that no reasonable alternative or substitute exists to satisfy the purchasing need of the contracting authority and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
- the contract may only be concluded with a particular economic operator because it is aimed at the creation or acquisition of a unique work of art or artistic performance;
- insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting authority, the time limit laid down for the open or restricted procedures cannot be kept; however, the circumstances invoked to justify extreme urgency must not in any event be attributable to the negligence of the contracting authority or be caused by the contracting authority.
2a. Article 2(a) and (b) shall not apply if there was a submitted tender (in case of the participation stage, request to participate) in the procedure and the procedure could have also been declared unsuccessful on the basis of Article 75(2)(e) applied in the given procedure.(This paragraph entered into force on 1 January 2017.)
3. Furthermore, contracting authorities may award public works or public service contracts by negotiated procedure without prior publication of a contract notice in case of new public works or services consisting in the same or similar works or services entrusted to the former winning tenderer to which the same contracting authority awarded an earlier contract. This is subject to the proviso that such new works or services conform to a basic project for which a first contract was awarded in an open or restricted procedure, and the contracting authority indicated in the notice launching or announcing the original procedure that the negotiated procedure might be adopted and also indicated the subject-matter of the further possible works or services and the conditions for their procurement, furthermore, it took into consideration the total estimated value of subsequent works or services (to determine whether it reaches the EU threshold) when determining the estimated value of the works or services in the former procedure. Such negotiated procedure may only be applied during the three years following the conclusion of the original contract.
4. In addition, contracting authorities may award public supply contracts by negotiated procedure without prior publication of a contract notice in the following cases:
- where the products involved are manufactured purely for the purpose of research, experiment, study or development; however, this provision does not cover quantity production to establish commercial viability or to recover research and development costs;
- where, in the course of a partial replacement or the extension of existing supplies, 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; however, the total length of such contract(s) concluded with the former winning tenderer may not exceed three years;
- where the product is listed on and procured from a commodity exchange;
- where the supplies are procured with exceptionally favourable terms in the course of a sale in a liquidation procedure, in a closing sale or in the execution of a court warrant or in any similar procedure related to the personal rights of the entity concerned.
5. In addition, contracting authorities may award public service contracts by negotiated procedure without prior publication of a contract notice, where a previous design contest was conducted and the contract must be awarded to the successful candidate or, according to the recommendation of the evaluation committee, to one of the successful or prize winning candidates; in the latter case, all candidates or tenderers recommended by the evaluation committee shall be invited to participate in the negotiations.