4.1.2 Bodies responsible for the evaluation of tenders
and the award of the contract
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The tender procedure, from the opening of the tenders until signature of the final agreement between the contractor and the Contracting Authority, is carried out by established bodies within each Contracting Authority, which function either on a permanent basis or are appointed on a on a case by case basis in accordance with the provisions of the Regulations applicable to the Contracting Authority.
Prior to assuming their duties, the persons who compose the competent collective bodies are obliged to sign a statement whereby they undertake towards the Contracting Authority to perform their duties with conscientiousness and impartiality, without fear or favouritism, and to observe strict confidentiality in performing their duties. Especially for government employees appointed as members of the aforementioned bodies, this statement is inserted at the beginning of the minutes or the report, as the case may be, which they must prepare.
The members of the established bodies must not have any financial or other interest, either direct or indirect, in connection with any tender procedure leading to the award of a contract, or any special relation or up to fourth degree relationship by blood or affinity or be in severe conflict with any person having an obvious financial or other interest in the said procedure. Should any of the above prohibiting circumstances apply to any person appointed as Chairman or a member of a competent collective body, such person is obliged to report this fact and abstain from participating in the procedure. The Code of Ethics in Public Procurement contains references to this obligation.
The established bodies, whose names may differ depending on the provisions of the Regulation applicable to each Contracting Authority, shall be referred to hereinafter for the purposes of this document as the “Competent Body for the Opening of Tenders”, “Competent Body for the Evaluation of Tenders”, or “Competent Body for the Award of the Contract”.
The Competent Bodies for the Opening of Tenders, the Evaluation of Tenders and the Award of the Contract may be distinct from one another or may be the same, depending on the provisions of the Regulation applicable to each specific Contracting Authority. In particular, the Competent Body for the Award of the Contract may be either a collective body established specifically to meet the needs of a Contracting Authority (e.g. Evaluation Committee, Tender Board) or it could be the administrative Body of the Contracting Authority itself (e.g. its Board of Directors). On the other hand, the Competent Bodies for the Opening of Tenders and the Evaluation of Tenders are bodies established either to meet the needs of all tender procedures conducted by a Contracting Authority or to meet the needs of a specific tender procedure.
The decisions of the competent collective Bodies, unless otherwise provided for in the Regulations, are taken by majority vote, while the Chairman’s vote is a prevailing one in cases where the voting result is halved.
The members of the Competent Bodies for the Opening of Tenders, the Evaluation of Tenders and the Award of the Contract are officials and/or employees of the Contracting Authority. For Contracting Authorities belonging to the Central Government, the members of the Competent Body for the Evaluation of Tenders may also be employees of a Department/Service other than the Contracting Authority, on the understanding that this arrangement takes place with the approval of the Head of the Department/Service from which these employees come. In all cases, the members of the Competent Body for the Evaluation of Tenders must possess the technical and/or professional training required by the subject matter of the tender procedure . In the case of the Central Government, members of the Competent Body for the Award of the Contract may also be employees of other Contracting Authorities, as per the applicable Regulations.
Participation of a person in the Competent Body for the Evaluation of Tenders is incompatible with the concurrent participation of that same person in another Competent Body that deals with the same tender procedure for which the Competent Body for the Evaluation of Tenders has been established.
Every meeting of the competent collective Bodies is certified by relevant Minutes, prepared and signed by the Chairman and the members. The Minutes list the participants in the meeting and describe the procedures followed, the findings and conclusions and the decisions reached, as the case may be. The decisions of the Competent Bodies, especially those concerning exclusion of a candidate during the qualitative selection procedure or rejection of a tender during the evaluation procedure, or the marking method in the case of a contract for which the award criterion is the most economically advantageous tender, must be adequately documented, with a precise description of the reasons that dictated these decisions. In the case of simple contracts, the Evaluation Report can also serve as Minutes.
The Competent Body for the Evaluation of Tenders is the body with the most important (in terms of essential contribution) but also the most difficult role in the tendering and contract award procedure. In order to perform their duties correctly, the members of the Competent Body for the Evaluation of Tenders must:
In the following Sections of this document (and especially in paragraphs 4.3 and 4.4) reference is made to actions under the responsibility of the Competent Body for the Evaluation of Tenders or of the Competent Body for the Award of the Contract. It is obvious that this is valid in cases where the applicable Regulations provide for the establishment of two separate Bodies, i.e. one for the evaluation of tenders and one for the award of the contract. Otherwise (i.e. where the functions of evaluation and award are carried out by the same Body), the text of this document must be interpreted accordingly.
To address special issues that may come up during the tendering procedure, the Competent Bodies may, provided that this is foreseen under the respective Regulations:
Participation of a person in an ad hoc technical committee is incompatible with the concurrent participation of that same person in the Competent Body for the Evaluation of Tenders or for the Award of Contract that deals with the same tender procedure.
Subject to the provisions of the relevant regulations, the Attorney General, the Auditor General and the Accountant General (the latter in his capacity as Head of the Competent Authority on Public Procurement), or their representatives, are entitled to attend as independent observers the meetings of the Competent Bodies, where they can express their views and request to have them recorded in the Minutes of the meeting. In such cases, the agenda of each meeting of the Competent Bodies should be notified to the observers at least one day prior to that meeting.
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