Commission Delegated Regulation (EU) 2015/2462 of 30 October 2015 amending Delegated Regulation (EU) No 1268/2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union
Commission Delegated Regulation (EU) 2015/2462of 30 October 2015amending Delegated Regulation (EU) No 1268/2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the UnionTHE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002OJ L 298, 26.10.2012, p. 1., and in particular Articles 58, 60, 101, 103, 104, 104a, 105, 106, 107, 108, 110, 111, 112, 113, 115, 116, 117, 118, 119, 124, 131, 138, 139, 190, 191, 204 and 209 thereof,Whereas:(1)Regulation (EU, Euratom) No 966/2012 has been amended by Regulation (EU, Euratom) 2015/1929 of the European Parliament and of the CouncilRegulation (EU, Euratom) 2015/1929 of the European Parliament and of the Council of 28 October 2015 amending Regulation (EU, Euratom) No 966/2012 on the financial rules applicable to the general budget of the Union (OJ L 286, 30.10.2015, p. 1). to align it to the amended Directive 2014/24/EU of the European Parliament and of the CouncilDirective 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65). on public procurement and Directive 2014/23/EU of the European Parliament and of the CouncilDirective 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ L 94, 28.3.2014, p. 1). on the award of concession contracts and to strengthen the system of protection of the Union budget. It is therefore necessary to update Commission Delegated Regulation (EU) No 1268/2012Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ L 362, 31.12.2012, p. 1). on the rules of application of Regulation (EU, Euratom) No 966/2012.(2)Article 290 of the Treaty on the Functioning of the European Union (hereinafter "TFEU") provides that a legislative act may delegate to the Commission the power to adopt non-legislative acts only to supplement or amend certain non-essential elements of the legislative act.(3)It is necessary to align the content of the delegation agreement with entities entrusted with budget implementation in indirect management with the extended obligations introduced by Regulation (EU, Euratom) No 966/2012 to notify and impose administrative sanctions on economic operators in the event of irregularities or fraud.(4)The assimilation of non-profit organisations to international organisations permitting the application of the relevant specific rules on indirect management should be limited and subject to conditions. It is therefore appropriate to lay down the procedures to be followed and the criteria to be applied for any such assimilation.(5)In the interest of clarity and consistency, it is necessary to add new definitions and to make technical clarifications to ensure that the terminology of Delegated Regulation (EU) No 1268/2012 corresponds to that of Directives 2014/24/EU and 2014/23/EU as far as possible.(6)It is appropriate for procurement procedures to be published in the Official Journal of the European Union to follow the information for notices provided in Directive 2014/24/EU and for those notices to be transmitted by electronic means. As these notices must be published in all EU languages, it is necessary to adjust the time limit for receipt of tenders by extending the time limit between dispatch and publication at Union level beyond that provided for in Directive 2014/24/EU.(7)It is appropriate to simplify the publication of contract awards falling outside the scope of Directive 2014/24/EU and it is appropriate that such publication take place primarily on the internet site of the contracting authority rather than in the Official Journal of the European Union, as is the case for ex ante publicity.(8)The competitive procedure with negotiation should be considered a standard procedure and should replace the former negotiated procedure with prior publication. It is therefore appropriate to limit annual reporting on exceptional procedures to the negotiated procedure without prior publication.(9)It is necessary to ensure that the innovation partnership is used only when the desired product does not exist on the market. It is therefore appropriate to provide that it is necessary to carry out preliminary market analysis before using an innovation partnership.(10)It is necessary to cater for all possible purchases including those falling outside the scope of Directive 2014/24/EU. The negotiated procedure should therefore be used without prior publication for these purchases, including certain legal services, certain categories of financial services, loans and public communication networks.(11)International organisations may provide services as economic operators therefore it is appropriate to provide for their possible participation in procurement procedures. It is also necessary to provide for the possibility to use the negotiated procedure without prior publication for some international organisations that are prohibited from participating in competitive tendering by their statute. The resulting contract should be adapted with respect to the applicable law and jurisdiction.(12)For harmonisation and simplification purposes, the standard procedures applicable for public procurement should also be applied to concession contracts, including the competitive procedure with negotiation. This meets the requirements of Directive 2014/23/EU on concessions which provides for ex ante and ex post publicity obligations. Therefore, the threshold for service concessions should be aligned with the threshold for service contracts.(13)For harmonisation and simplification purposes, the standard procedures applicable for public procurement should also be applied to purchases provided for under the light regime in Directive 2014/24/EU, including the competitive procedure with negotiation. Therefore, the threshold for light regime purchases should be aligned with the threshold for service contracts.(14)In the interests of clarity and simplification, the duration of a call for expressions of interest and the time limit within which to receive requests to participate should be aligned with those under the dynamic purchasing system, since both systems are very similar in all other respects.(15)In the interests of administrative simplification and in order to encourage participation of small and medium-sized enterprises, it is appropriate to provide for negotiated procedures for middle-value contracts.(16)Certain provisions should be adapted to facilitate the use of electronic procurement procedures including the electronic submission of tenders. In particular, the procurement documents including the full tender specifications should be made available by electronic means from the start of a procedure, including in the case of two-step procedures, except in justified cases. In addition, the outcome of a procedure should be notified by electronic means and tenderers and candidates should agree to be notified in this way when submitting their tenders or requests to participate and should provide a valid e-mail address for this purpose.(17)Contractors should be required to comply with any applicable obligations in the fields of environmental, social and labour law.(18)The contracting authority should accept the European Single Procurement Document (ESPD) as defined in Directive 2014/24/EU for exclusion and selection criteria as a standardised declaration whenever feasible, or, failing that, a declaration on honour. It should request supporting documents from the successful tenderers only or, in specific cases, from all tenderers or candidates.(19)In order to ensure the proper functioning of the database for the early detection and exclusion system, it is necessary to lay down rules on accessing the information contained in the database and the transmission thereof.(20)In the interests of simplification and with the aim of reducing the administrative burden, it is appropriate to use the existing automated information system established by the Commission for the reporting of irregularities and fraud in accordance with sector-specific rules for the purpose of the early detection and exclusion system.(21)It is necessary to lay down detailed rules on the organisation and composition of the panel created to ensure that the system for imposing administrative sanctions is effective and consistent.(22)It is necessary to determine the selection criteria for both a single economic operator and a group of economic operators in the procurement documents while ensuring proportionality and equality of treatment.(23)In the interests of legal certainty, it is necessary to clarify that the selection criteria are strictly linked to the evaluation of candidates or tenderers and that the award criteria are strictly linked to the evaluation of the tenders. In particular, the qualifications and experience of staff assigned to perform the contract should only be used as a selection criterion and not as award criterion, as this would introduce a risk of overlap and double evaluation of the same element. Furthermore, any change in the staff assigned to perform the contract, even where justified through illness or a change in position, would call into question the conditions under which the contract was awarded and thereby create legal uncertainty.(24)With a view to simplification, it is appropriate to link the requirements for opening and evaluation committees to the level of risk analysis by the authorising officer.(25)It is appropriate that, when notified of the outcome of a procedure, candidates and tenderers are informed of the grounds on which the decision was taken and receive a detailed statement of reasons based on the content of the evaluation report.(26)It is necessary to provide for the option of a performance guarantee in relation to works, supplies and complex services in order to guarantee compliance with substantial contractual obligations and to ensure proper performance throughout the duration of the contract. It is also necessary to provide for a retention money guarantee to cover the contract liability period, in line with customary practice in these sectors.(27)It should be possible for certain administrative entities to act as central purchasing bodies for wholesale purchases or for centralised procurement.(28)It is necessary to defer the application of the amendment on the time limit between dispatch and publication of a notice in the Official Journal of the European Union in order to adapt the system used for the translation of notices.(29)It is necessary to defer the application of the provision on the availability, in the database for the early detection and exclusion system, of the information on fraud and irregularities contained in the automated information system of the Commission (the Irregularity Management System) until the database can receive this information.(30)This Regulation should enter into force on the day following that of its publication in the Official Journal of the European Union in order to ensure that it can apply from the beginning of the financial year,HAS ADOPTED THIS REGULATION: