TENDER EVALUATION MANUAL

Transcription

1 DA/CTR-RP 1 Issue 2 June 1985 TENDER EVALUATION MANUAL 1

2 The Procurement Regulations (ESA/C(2008)202) have entered into force on 01 June 2010 and replaced the Contracts Regulations (ESA/C(82)111 ANNEX I rev.2-14 October, 1993). Their implementation and that of the associated implementing instructions is incremental and all Agency s procurements are planned to be covered by the Procurement Regulations and pertaining implementing instructions by 31 December Pursuant to Article 60 of the Procurement Regulations, the following procurement actions remain regulated by the Contract Regulations and the Tender Evaluation Manual(DA/CTR-RP1 issue 2 of June 1985): : procurement proposals and activities for which the approval cycle was initiated or concluded prior to 1 June 2010; activities which form part of a procurement plan adopted prior to 1 June 2010; activities for which a TEB has been nominated prior to 1 June 2010;and, activities under already existing Frame Contracts. For procurement actions which do not fall under the categories described above and until such time the new Tender Evaluation Manual which is currently under review is approved, the present Tender Evaluation Manual (DA/CTR-RP1 issue 2 of June 1985, ) is applicable pursuant to ESA/ADMIN/IPOL(2010)6. Any interpretation of the present manual or decisions taken on the basis of the present manual shall be made in relation to the Procurement Regulations whose provisions prevail in case of conflict. 2

3 TABLE OF CONTENTS 1. SCOPE 2. RECEIPT AND OPENING OF TENDERS 2.1 Principles 2.2 Appointment of the tender opening board (TOB) 2.3 Duties of the tender opening board 3. RE-ISSUE OF THE INVITATION TO TENDER (ITT) 4. DISTRIBUTION OF ADMITTED TENDERS 5. COMPOSITION AND APPOINTMENT OF THE TENDER EVALUATION BOARD (TEB) 5.1 Composition General Chairperson Members Joint Secretaries Experts Observers 5.2 Appointment Proposal of membership Authority appointing the Tender Evaluation Board Changes to the composition of a TEB 6. RESPONSIBILITIES OF THE TENDER EVALUATION BOARD 6.1 Duties of the chairperson of the tender evaluation board 6.2 Proceedings of the tender evaluation board 6.3 Duties of the joint secretaries of the tender evaluation board 6.4 Duties of the tender evaluation board Duties of the TEB prior to issue of the ITT Approval of ITT documents Establishing of evaluation criteria Establishing of time schedule Appointment of tender evaluation panels Duties of the TEB prior to receipt of tenders - weighting factors Duties of the TEB subsequent to receipt of tenders Preliminary assessment Acceptance of substantive contract and tender conditions Clarity of costing and prices Compliance with specifications (including work statement and management requirements) Discussion of findings Marking of tenders Assessment of results of marking Application of weighting factors 3

4 Overall assessment of tenders Drawing up of evaluation report Closing of evaluation by TEB 7. COMMUNICATIONS WITH TENDERERS 7.1. Briefing meetings 7.2 Communication during tender preparation period 7.3 Debriefing after evaluation 7.4 Negotiation with tenderers Preparation of negotiation Conduct of negotiations Re-marking of tenders 7.5 Exceptional negotiations foreseen prior to issue of invitation to tender 8. TENDER EVALUATION PANELS 8.1 Membership of panels 8.2 Proceedings of panels 8.3 Preliminary activities of panels 8.4 Marking by panels 8.5 Submission of panel evaluation report 8.6 Closing of evaluation by panel 9. EVALUATION PROCEDURES FOR NON-COMPETITIVE TENDER 9.1 Procedure with TEB 9.2 Deleted 10. EVALUATION OF COMPETITIVE SUB-CONTRACT TENDERS ANNEXES Annex I Replaced by electronic form Annex II Replaced by electronic form Annex III Declaration of secrecy and non-interest Annex IV Minutes of first TEB-meeting 4

5 1. SCOPE 1.1 DELETED 1.2 The present manual has been amended in accordance with the Agency s Procurement Regulations (ESA/C(2008)202). Its purpose is to define procedures for the application of these rules and to provide a guide to all staff members involved in the evaluation of tenders. It covers the period of the procurement process from the dispatch of invitations to tender by the Agency, up to the completion of the evaluation process and activities prior to this period relating to the evaluation process. Any deviation from these procedures to suit the needs of a particular procurement should be considered as exceptional, and must receive the prior agreement of the Head of the Procurement Department. 1.3 Article 10 of the Procurement Regulations states that these regulations shall always be interpreted so as to ensure the most economic and effective employment of the Agency s resources, to implement the defined industrial policy and to guarantee a distribution of work among member states as provided in Article VII and Annex V of the Convention. In addition to these principles it is the aim of this manual to ensure that, in the evaluation of competitive tenders, the principle of fair and open competition is maintained and seen to be maintained. Should any interpretation of any particular provision be required, it shall be made in accordance with this principle. Any interpretation, which shall be recorded in the records of the evaluation, shall be made by the chairperson of the Tender Evaluation Board (TEB), together with the contracts officer. If they consider it necessary or advisable, the matter shall be referred to the Procurement department for resolution. 1.4 Applicability The evaluation process is aimed at: a) defining the relative quality of the tenders in order to select the most suitable contractor b) identifying strong and weak points in the technical and programmatic solutions proposed for the purposes of negotiating and administering a contract with the selected contractor. The procedure laid down in section 2-7 of this manual shall apply, in full, to all competitive tender actions, for which a procurement proposal is required to be submitted to the Industrial Policy Committee, under the provision of Article 21 of the Procurement Regulations. They shall also apply in general to competitive tender actions falling below the limits for submission of procurement proposals but with the exceptions and simplifications described in the following sections. For non-competitive tender actions a simplified procedure is laid down in section 9. 5

6 2. RECEIPT AND OPENING OF TENDERS 2.1 Principles The procedures regulating the receipt and opening of tenders are primarily to ensure that no distortion of competition or unfair advantage to a particular tenderer occurs, and that tenderers have complied with the conditions of tender. 2.2 Appointment of the Tender Opening Board (TOB) A TOB shall be appointed prior to the closing date stated in the invitation to tender. The TOB shall consist of at least the contracts officer and the responsible initiator, or a person to whom he had delegated his authority. A representative of the local Procurement division/ service shall be chairperson of the TOB. Members of the TOB shall be indicated as such on the form for nomination and appointment of the tender evaluation board (TEB) Annex I and their appointment shall be approved by signature of the form by the head of the local Procurement division/ service. In the case of non-competitive tender actions, a formal TOB shall not be appointed. Tenders shall be opened by the contracts officer and the initiator, and a record shall be made in the contract file. 2.3 Duties of the Tender Opening Board The TOB shall convene as soon as possible after the closing date and time. The TOB shall, first, verify that the dispatch conditions have been met. The chairperson shall then ascertain that the TEB has established the weighting factors to be used in the evaluation, where applicable (see para below). The TOB shall then open the tenders The TOB shall assess the admissibility of tenders. Tenders shall be admitted if they were received before the closing date and time and do not show prima facie evidence of a major non-compliance with the substantive tender conditions, which would impair the fairness or secrecy of the competition. Specifically, each tender must contain a technical description, a price of the type stipulated in the ITT, a delivery date and a signature validating the offer. Tenders shall be admitted if they were received after the closing date and time, provided that the tenderer has dispatched the tender in time to meet the closing date and informed the Agency of the dispatch. If a tender, having been dispatched in time, with proper notification, appears to be lost or delayed in transmission, the Agency may grant the tenderer an extension in order to forward duplicates. The tenderer shall, in such case, be requested immediately to send a telex giving the summary technical description, price and delivery date. A time limit for submission of the telex and of the duplicates shall be given. Tenders arriving after the expiry of this extension will not be taken into consideration and will be returned unopened. The decision of the TOB shall be taken unanimously. 6

7 In case of open competitive tender, a tender received from a tenderer not invited will, at the discretion of the head of the local Procurement division/ service and after consultation with the initiator be admitted for evaluation, unless there are specific reasons, to be confirmed by the head of Procurement department, to exclude it. In the case of a restricted tender action, a tender received from a tenderer not invited shall not be admitted for evaluation, unless the head of the local Procurement division/ service decides, after consultation with the initiator that the tenderer falls within the terms of the restriction (eg geographical) and that the fairness of the tender action is not jeopardised by admitting the tender If a decision cannot be taken unanimously or if a tender is considered non-admissible, the chairperson of the TOB shall inform the chairperson of the TEB and submit the matter to the head of the local Procurement division/ service for decision, on consultation with the chairperson of the TEB. If the tender is ruled non-admissible, the local Procurement division/ service will inform the tenderer stating the reason The TOB shall draw up a report (see Annex II) showing the number of potential tenderers invited, by country, the names of the tenderers, stating whether the tenders have been admitted or not, and, in the latter case, the reason of non-admissibility. Where appropriate, the different volumes of a tender should be identified. The report shall be signed by the members of the TOB and shall be submitted by the chairperson of the TOB to the chairperson and members of the TEB, to the initiator and to such other Agency services as may be directed from time to time. A copy shall be kept in the contract file. 3 RE-ISSUE OF THE INVITATION TO TENDER 3.1 In application of Article 35 of the Procurement Regulations, ITT s may have to be re-issued in the following circumstances Where no tender has been admitted, the contracts officer shall submit the matter to the initiator and to the head of the local Procurement division/service for joint decision on whether to re-issue the ITT, either unchanged or amended. If it is considered that re-issue of the ITT, even with amended specification, would be unlikely to result in the submission of an acceptable tender, the tender action shall be cancelled. The contracts officer shall implement the decision accordingly and record it in the contract file Where only one tender has been admitted, the contracts officer shall submit the matter to the initiator and to the head of the local Procurement division/ service for joint decision after consultation with the chairperson of the TEB on either re-issuing the ITT or evaluating the admitted tender. A decision to evaluate the admitted tender may only be taken if a re-issue of the ITT would be unlikely to result in more than one acceptable tender being received or would not be feasible due to extreme urgency (Article 14.2 of the procurement Regulations). The contracts officer shall implement the decision accordingly and record it in the contract file. 7

8 4 DISTRIBUTION OF ADMITTED TENDERS The joint secretaries of the TEB (see section 5 below) shall distribute a complete copy of each admitted tender to each member of the TEB. A further copy may be distributed upon their request, to the director general, the director of programme or support and the head of Procurement department and the head of the local Procurement division/ service. Tenders shall not be distributed to any other persons until completion of the evaluation. Where there are tender evaluation panels, the chairperson of each panel shall receive a complete copy of each admitted tender. The decision on whether panel members are to receive complete tenders, or only such parts as relate to the aspects which are to be evaluated by the particular panel, shall be taken by the TEB. The distribution of cost information shall be restricted to that information relevant to the aspect being evaluated by the individual concerned. 5 COMPOSITION AND APPOINTEMENT OF THE TENDER EVALUATION BOARD. 5.1 Composition General : a) Tender Evaluation Boards shall be established and made up in accordance with the provisions of Article 23.1 and 23.2 of the Procurement Regulations. Unless otherwise agreed by the Head of the Procurement Department, or by a person to whom he has delegated such authority, a TEB shall normally comprise not more than 7 (seven) members, not more than half of the members of the TEB excluding the CO shall be from the initiating Directorate. b) Where the procurement action is being taken by one establishment / directorate in support of a programme, project, activity or service of another, a representative from such programme, project, activity or service shall always, as far as possible, be nominated as a member of the TEB. c) Members shall be proposed at a hierarchical and professional level appropriate to the nature of the procurement action and in accordance with their function. d) Appointment to, and membership of, a TEB is personal, and cannot be delegated. e) Once appointed, no member of the TEB shall be subject to the instructions of his hierarchical superiors in respect of his activities as a member of the TEB. 8

9 5.1.2 Chairperson a) The Chairperson of the TEB shall be from outside the initiating department(1) and of a grade superior (2) to that of the Technical Officer. Where the technical Officer is an A6 the Chairperson will be an A6 unless point b) below is applicable b) A Director may not be appointed Chairperson without prior written approval of the Director General. Should a Director be appointed he shall not be the Director to whom the designated technical Officer reports. c) The Chairperson shall always be an ESA staff Members a) The TEB shall be composed of ESA staff members with an overall appropriate experience and qualified in the appropriate technical and administrative disciplines pertaining to the subject procurement.(3) b) In case of collaborative programmes and when foreseen expressly in the programme s legal instruments, or authorised by the Director General, some members of the TEB may be staff from the collaborative entity Joint Secretaries a) The technical officer and the contracts officer are members and Joint Secretaries of the TEB and are always ESA staff members. b) The Joint Secretaries form the Tender Opening Board (TOB). c) In case of collaborative programmes the Joint Secretariat of the TEB and the TOB may be supplemented by a representative staff of the collaborative entity Experts The TEB may be assisted by experts for defined aspects. a) Considering that the TEB is composed of ESA staff members with an overall appropriate experience and qualified in the appropriate technical and administrative disciplines pertaining to the subject procurement, the number of experts on a TEB may not in principle exceed two (2). 1 As a guideline, for activities requiring endorsement of the TEB by the Director General (superior to 15 M ) for all establishments except ESTEC, the Chairperson should as far as possible be chosen from outside the establishment 2 The reference to grade shall not take into account the steps of a given grade band. 3 As a guideline, when technically relevant, the TEB shall comprise at least one staff member from D/TEC and/or from D/OPS 9

10 b) Experts should, normally, be staff members; they may, in exceptional cases, be persons from outside the Agency. c) Experts are required to accept the same rules as the other TEB members. d) Experts have only an advisory role and are not entitled to vote or mark. e) In all cases, the appointment of experts who are not ESA staff members shall be justified in writing at the time of the proposal for the TEB nomination Observers The TEB may admit Observers. They are persons from outside the Agency. a) Observers are required to accept the same rules as the other TEB members. b) Observers are not consultants and are not entitled to vote or mark. c) Observers will participate only in those meetings or part of those meetings of the TEB where the Chairperson of the TEB calls on them. d) Observers may, if they so wish, consult the tender documents. Such consultation may only take place on the premises of the Agency. 5.2 Appointment The proposal for the membership of the Tender Evaluation Board is a joint responsibility of the initiating department and the Procurement Department. Such proposal may be put forward as soon as the tender actions has been authorised Proposal of membership a) Based on section 5.1 above, the responsible initiator together with the local Procurement Division/ Service, shall prepare the Electronic Tender Evaluation Board Nomination Form for the nomination of the Chairperson, of the members of the TEB, of experts and observers, as regards technical, management and administrative matters. b) Such proposal of persons shall only be made after consultation with the hierarchical superior of the persons concerned. c) The initiator shall then transmit the proposal to the appointing authority, not later than submission of the COR-1 Form. 10

11 5.2.2 Authority appointing the Tender Evaluation Board A) Head of the Procurement Department a. The Tender Evaluation Board is appointed by the Head of the Procurement Department, or by a person to whom he has delegated such authority, provided that the appointing authority is always senior in rank to the most senior member of the Procurement Department proposed for the TEB. b. If the Head of the Procurement Department is proposed as a member, the TEB shall be appointed by the Director to whom the Head of the Procurement Department reports. c. The above authority shall appoint the TEB on receipt of the completed TEB Nomination Form. On the appointment of the TEB, the designated Contracts Officer shall inform the other members of the TEB of their nomination in writing. B) Director General In the case of a procurement action exceeding 15 Meuro, the membership of the TEB shall be submitted to the Director General for endorsement. Once endorsed, the appointing authority will implement the required changes to the composition of the TEB and proceed with the appointment Changes to the composition of a TEB. a) Once appointed, the composition of a TEB can only be modified in the specific following cases: departure of the Agency of the member ; long term illness of the member; disciplinary actions engaged against the member; declared personal interest by a member; and exceptional cases duly justified. b) In all cases, the changes to the membership of a TEB shall be made by the same authority who appointed the initial members. 6 RESPONSABILITIES OF THE TENDER EVALUATION BOARD 6.1 Duties of the chairperson of the tender evaluation board The chairperson of the TEB shall be responsible for the correct proceedings of the evaluation. He shall convene its meetings. In case of his absence, the meeting shall be chaired by a deputy, appointed under the provisions of section 5 above. 11

12 6.2 Proceedings of the tender evaluation board The decisions of the TEB shall be taken by majority vote of members present. The chairperson shall, in the case of equality of votes, have a casting vote. The quorum of the TEB for taking decisions shall be two thirds4 of its members entitled to vote and shall include the initiator, the contracts officer, and at least half of the quorum shall be from outside the initiating department. No member of the TEB shall be subject to the instructions of his hierarchical superiors in respect of his activities as a member of the TEB. 6.3 Duties of the joint secretaries of the tender evaluation board The joint secretaries shall be responsible for keeping the minutes of the meetings. The minutes shall contain the date and time of the meetings of the TEB, the names of those present, a record of any decisions taken by the TEB, specifically concerning approval of specifications, establishing of evaluation criteria, establishing of time schedule, appointment of tender evaluation panels, fixing of weighting factors, elimination of tenders, negotiation with tenderers and recommendation to place a contract. The joint secretaries of the TEB shall, furthermore, be responsible for making the necessary arrangements concerning experts and observers from outside the Agency, and for distributing copies of admitted tenders in accordance with section 4 above. 6.4 Duties of the tender evaluation board are as follows: Duties of the TEB prior to issue of the ITT A first meeting of the TEB shall be held prior to the issue of the ITT. At the beginning of this meeting, the chairperson of the TEB shall remind participants that they must declare any personal interest in the subject of the ITT, and of their duty not to disclose any information concerning the evaluation to persons not involved in the evaluation and to keep all evaluation documents secret. He and each member, expert and observers, shall complete and sign the Declaration of secrecy and non-interest form given in Annex III hereto. The TEB shall then approve the ITT documents, establish the evaluation criteria, establish a time schedule, weighting factors if required, and, if the complexity of the evaluation so requires, appoint tender evaluation panels in accordance with Section Approval of ITT documents The TEB shall review the ITT documents and ensure that they constitute a proper basis for a competitive ITT and that they meet the requirements laid down in the applicable instructions. 4 Rounded up to the greatest integer ( 5/3x2=3.33 >4 or 4/3x2=2.66 >3) 12

13 In particular, technical requirements whether constituting a design or a performance specification, shall be unambiguous and exhaustive so that all potential tenderers can understand them in the same way. Terminology and units of measurement used shall be those normal to the subject matter of the ITT, and nothing shall be incorporated that has the effect of preferring or excluding some companies or products unless this is justified by the specific requirements, which shall be recorded in the minutes. The technical parts of the ITT shall not contain contractual aspects. The TEB shall record any such case in the minutes. No amendment of the ITT documents shall be made without the approval of the initiator or the local Procurement division/ service as appropriate. Once documents are approved by the TEB, they shall be binding for the evaluation. Should amendments, exceptionally, be necessary during the tender period, the TEB shall, subject to the agreement of the initiator and of the head of the local Procurement division/ service, approve such amendments, which will be communicated simultaneously to all potential tenderers. The members of the TEB shall be notified of any change to the closing date Establishing of evaluation criteria The joint secretaries of the TEB shall submit a proposal for evaluation criteria and, if the complexity of an evaluation so requires, for sub-criteria, for the approval of the TEB. Evaluation criteria and sub-criteria are the norms to be applied by the TEB to determine the strengths and weaknesses of a tender by separate evaluations of its various aspects. The identification of specific significant evaluation criteria is more essential than the identification of a multitude of criteria covering all possible minor aspects, which should be treated as sub-criteria. Evaluation criteria shall be well defined and logically distinct. They shall cover all aspects of a tender and shall avoid duplication. Sub-criteria shall break down the evaluation criteria into their various aspects and shall cover all aspects of the evaluation criteria to which they refer. They shall not be used as a means of introducing new criteria. The criteria shall be divided into technical criteria, such as understanding of and compliance with requirements, quality and suitability of proposed design, and suitability of facilities and of support programme, and management criteria, such as overall organisation and management methods, costing and planning, manpower deployment, experience and capacity of the tenderer, and compliance with substantive tender and contract conditions. Price and geographical distribution shall not be criteria. (See, however, Section for the overall assessment of offers, including the price). The TEB shall be free to establish such criteria as it sees fit, provided that all significant parts of the ITT are covered, and no unfair advantage to one potential tenderer over another is thereby created. However, the TEB shall, as far as possible, follow established practice. 13

14 Where the TEB decides to appoint tender evaluation panels, the evaluation criteria should, if possible, be arranged under aspects corresponding to the field of reference of each panel. Once approved, the evaluation criteria and sub-criteria shall be binding for the evaluation. They shall be included in the ITT for all contract actions subject to a submission to the Industrial Policy Committee. In other cases, evaluation criteria may be included in the ITT, at the discretion of the TEB Establishing of time schedule The joint secretaries of the TEB shall propose to the TEB a time schedule for its further actions. The time schedule shall take into account the validity period of the tender, any periods for submission of contract proposals to committees and shall allow sufficient time for the evaluators to read, understand and discuss the proposals Appointment of tender evaluation panels The joint secretaries of the TEB shall submit a proposal for the appointment of tender evaluation panels to the TEB if the complexity of an evaluation so requires. This will, normally, be the case for a contract action concerning a satellite project or other research and development procurements exceeding 5 M. Membership of panels shall be laid down in section 8.1 below. The TEB shall establish an overall schedule for the tender evaluation panels, and in particular shall lay down the dates by which the panel chairmen shall report their findings to the TEB. The TEB may issue such guidelines or instructions to the panels for the performance of their tasks as it sees fit. The procedure governing the work of the panels is laid down in section 8.2 below Duties of the TEB prior to receipt of tenders weighting factors A meeting of the TEB shall be held during the last two working days preceding the closing date for the receipt of tenders. The TEB shall on the basis of a proposal from the joint secretaries, fix the weighting factors which are to be applied to the marks obtained for the evaluation criteria and sub-criteria, in order to establish the relative importance of each of these elements within the total evaluation. The weighting factors shall normally apply to all evaluation criteria. The TEB may, however, decide not to give a numerical marking to some evaluation criteria (i.e. compliance with contract conditions and substantive tender conditions), and shall record any such case, and the reasons therefor, in the minutes. The global total of the weighting factors shall add up to 100%. Once the weighting factors are fixed, they will become binding for the evaluation. They shall not be included in the ITT, and shall not be disclosed to any panels. In the case of a procurement action subject to a submission to the Industrial Policy Committee, the joint secretaries shall hand over a single copy of the weighting factors to the head of the local Procurement division/ service in a sealed envelope for safe keeping. All other copies of the weighting factors shall be destroyed. 14

15 6.4.3 Duties of the TEB subsequent to receipt of tenders The TEB, with the assistance of panels, where appointed, shall assess tenders, mark them, prepare a report on the results and make a recommendation as to any contract action to be taken as a result of the evaluation, in accordance with the following procedures: Preliminary assessment Prior to a qualitative assessment of the tenders, the TEB shall verify that the tenders are complete, and constitute full evaluable responses to the requirements. Specifically, each tender must comply with the tender requirements and contain a technical description, a price, a delivery date and a signature validating the offer, the omission of which may have been not noted by the TOB. If any of these elements, or some other element specifically required in the conditions of tender are missing, and the omission is such as to render the render substantively incomplete, so that its further evaluation would impair fair competition, the TEB shall eliminate such tender from further evaluation. If, however, the TEB is of the opinion that the omission is unintentional and may easily be corrected, the local contract division/ service may consult in writing with the tenderer concerned with the aim of rectification. If the result of such consultation is negative, the TEB shall eliminate the tender concerned from further evaluation. Otherwise the tender shall be evaluated Acceptance of substantive tender and contract conditions The TEB shall verify whether the substantive tender and contract conditions have been accepted. If this is not the case, the TEB shall determine into which of the following three categories the omission falls: If the omission could impair fair competition, or renders the tender substantively incomplete, the TEB shall refer the matter to the head of the local Procurement division/ service. If he decides that the omission so warrants, he shall so inform the TEB, who shall eliminate such tender from further evaluation, and the tender shall be returned to the tenderer with a statement of rejection. Otherwise the tender shall be retained for further evaluation. If the omission is sufficiently serious to render the tender unacceptable, but could be clarified or rectified without impairing fair competition, the local Procurement division/ service shall consult, in writing, with the tenderer concerned. If the omission is sufficiently clarified or rectified, the rectified tender shall be retained for further evaluation. Otherwise the tender shall be eliminated from further evaluation and returned to the tenderer with a statement of rejection. 15

16 If the omissions are such that they do not affect the overall acceptability of the tender, they shall be taken into account in the marking of the appropriate criteria. All decisions taken, and all communications shall be recorded in the contract file Clarity of costing and pricing The TEB shall verify whether the costing and pricing of the tenders is clear. This refers specifically to the correctness and adequacy of the detailed information as required by the Price Breakdown Form and any supporting costing documents required by the conditions of tender Compliance with specifications (including work statement and management requirements) The TEB, without awaiting the outcome of any consultation mentioned above, shall continue the initial evaluation by verifying whether the specification (including work statement and management requirements) is complied with. It shall identify the strengths and weaknesses of each tender in respect to the criteria and sub-criteria. This shall be done by comparing the tender with the specification, not by comparing tenders amongst each other. The TEB shall, also, if possible, identify whether weaknesses are readily of being corrected in order, if necessary, to improve the tender concerned. If technical statement contained in a tender need clarification, the local Procurement division/ service, shall on the request of the chairperson of the TEB, consult with the tenderer concerned in writing, in order to obtain any clarification necessary for evaluation. The TEB shall take the outcome of such consultation into its overall assessment of the tender Discussion of findings Prior to the marking of tenders by each individual member, the TEB shall discuss their findings and the panel reports, if any, on each aspect of a tender. The chairperson shall guide the discussion in such a way that any significant differences of opinion may be reduced, or if this is not possible, that they are clearly identified and recorded Marking of tenders The TEB shall award marks to the criteria and sub-criteria. The price shall not be marked. TEB members shall mark all criteria of which they have a general understanding and can make an assessment. They shall not restrict themselves to criteria related to their professional specialism, or aspects of criteria related thereto. If a member marks one offer under a particular criteria, he shall mark all offers thereunder. The marks shall be a number between zero and one hundred for each evaluation criterion and sub-criterion in accordance with the following scale of marking: 16

17 Marks Perfect 100 Excellent 90 Very good 75 Good 60 Fair 50 Barely acceptable 40 Worthless 0 For figures above 40, members should restrict themselves as far as possible to the indicated figures, but may award an intermediate mark if this would, to a significant extent, better reflect their judgement. For marks below 40, intermediate marks may be given if in the judgement of the members, the tender could be readily rendered acceptable for that criterion. If this is not the case, a mark of 0 shall be given. Any member of a TEB, whose mark differ significantly from the marks given by the other members of the TEB, or who gives a mark below 40 for any criterion or subcriterion shall state specifically why he disagrees or considers the tender unacceptable on that criterion, and the reason shall be recorded. When the chairperson of the TEB is satisfied that further discussion will not lead to a reduction of any discrepancies, the marks shall be officially recorded on the marking sheets. Marks once thus recorded cannot be changed Assessment of results of marking If, as a result of the marking, one or more tenders is marked acceptable in all evaluation criteria (more than 40), then the TEB shall proceed to apply the weighting factors, make its overall assessment, prepare a final report and a recommendation. If all of the tenders received have one or more criteria judged to be unacceptable, the TEB shall write an interim report and the provisions of section 7.4 below shall be applied Application of weighting factors The joint secretaries of the TEB shall, where applicable (see section above), retrieve from safe keeping the envelope containing the weighting factors; the chairperson of the TEB shall open the envelope and the members of the TEB shall apply the weighting factors to the awarded marks. The result of such application will be weighted marks. Those weighted marks shall also be filled into the marking sheets and, finally, reflect one weighted mark for each tender Overall assessment of tenders The TEB shall finalize the evaluation of each tender by taking into an overall assessment the marked and weighted criteria and any not marked and not weighted criteria, if such be the case. A numerical relation between the marked and weighted and any unmarked and unweighted evaluation criteria (see section 6.4.2) shall not be established. 17

18 At this state, the prices offered shall be taken into account. In accordance with Article 10.1.c of the Procurement Regulations, the overall assessment shall consider the most economic and effective employment of the Agency s resources. For the purchase of standard equipment, this shall usually be the lowest price meeting the Agency s specified requirements. Where research and development is concerned, the assessment shall be based on the best combination of technical quality and price. The TEB shall also identify areas of non-compliance and any items that would require negotiation prior to the placing of a contract. The overall assessment shall, however, not be based on considerations of industrial policy and in particular geographical distribution. The members of the TEB shall discuss their findings for each assessed tender. The chairperson of the TEB shall guide the discussion in such a way that any possible significant differences of opinion may be reduced, or if this is not possible, that they are clearly identified Drawing-up of evaluation report The TEB shall continue the evaluation by drawing up a report on the evaluation. The report shall contain: reference and subject of the ITT, evaluation criteria and sub-criteria, weighting factors, total marks, overall assessment of each tender, tenders in the order of preference, recommendation to place a contract with the tenderer having submitted the most advantageous tender with reasons, and any reservations a member of the TEB may wish to make. Individual marks shall be listed in an annex. The recommendations shall be strictly based on the conditions of tender: considerations of industrial policy or geographical distribution shall not be taken into account unless specifically mentioned in the conditions of tender. The TEB may, however, point out, where appropriate, the implications which result from the choice of a given tenderer and any other remarks it considers relevant to the evaluation. The report shall be signed by all member of the TEB. A copy of the report shall be kept in the contract file. Where a proposed contract action will be subject to a submission to a Committee of the Agency for approval, the report shall as far as possible take the form required for submissions to that Committee. The TEB shall be advised of any changes made to the substantive elements of the report or the recommendation, before or after the submission to a Committee. The chairperson of the TEB shall submit the evaluation report to the responsible director or person to whom he has delegated his authority, if the director so directs, and to the head of the local Procurement division/ service. Exceptionally, in case of doubt as to the correctness or completeness of the evaluation, they may refer the matter back to the TEB for further evaluation; they shall, however, not direct changes to evaluation criteria, weighting factors or marks. 18

19 The chairperson of the TEB shall give an oral report to the director general, the responsible director or the person to whom he has delegated his authority and to the head of the local Procurement division/ service, if required by them Closing of evaluation by TEB On finalization of the evaluation the chairperson of the TEB shall remind its members again not to disclose any information concerning the evaluation to anybody, if not expressly authorized by the responsible director and the head of Procurement department. The joint secretaries of the TEB shall ensure that documents no longer needed are collected and disposed of. If a tender is reissued in accordance with the provisions of section 3 above, or negotiations take place in accordance with section 7.4 below, the TEB is maintained till the final recommendation is made. 7. COMMUNICATIONS WITH TENDERERS Subject to the provisions of section 7.4 below (Negotiation with tenderers) communications with potential tenderers shall be formal, in writing, and restricted to what is necessary to ensure clarity of the Agency s requirements and to preserve fair competition. Any communications shall be issued through the local Procurement division/ service. 7.1 Briefing meetings Upon the agreement of the initiator and the head of the local Procurement division/ service, potential tenderers may, if the complexity of the ITT justifies it, be invited to a briefing meeting where the Agency s requirements are described and explained. All identified potential tenderers shall be invited. All questions submitted and answers given shall subsequently be distributed in writing to all potential tenderers. A briefing may be held, as appropriate, before or shortly after issue of the ITT. 7.2 Communications during tender preparation period Under the provisions of Article 30 of the Procurement Regulations, the Agency may issue clarifications or amendments to the ITT. In accordance with the tender conditions, any questions from potential tenderers shall be submitted in writing to the local Procurement division/ service. Only questions concerning the understanding of the Agency s requirements will be answered. Amendments and questions and the answers thereto if of possible interest to other potential tenderers, shall be distributed in writing. 7.3 Debriefing after evaluation Tenderers who have not been selected for the placing of a contract will, as a matter of routine, be notified thereof by the local Procurement division/ service, after a final decision including any committees has been taken. Upon request of a tenderer, the 19

20 contracts officer shall, together with the initiator, explain to such tenderer the reasons why this tender has not been accepted. For major tenders, the chairperson of the TEB shall participate in the debriefing. Explanations shall be limited to the findings of the TEB on the tender in question, and shall not cover the quality or contents of other tenders. Debriefings may be oral or in writing. In the former case, a record of the explanation given shall be placed in the contract file. 7.4 Negotiation with tenderers In accordance with Article 41 of the Procurement Regulations, negotiations with tenderers may be undertaken if the result of the evaluation is that no tender is acceptable, but the TEB considers that one or more of the tenders might be rendered acceptable by minor changes not affecting the specifications. In order to obtain evaluable tenders the TEB shall proceed as follows: if as a result of the marking by the TEB (section above) all tenderers have received at least one mark below the level of acceptability, the TEB shall not apply weighting factors, but shall write an interim report. Where the TEB considers that some tenders can be rendered acceptable, but other not, the latter may be eliminated from negotiation and further evaluation. Where the TEB considers that no tender might be rendered acceptable in all areas by minor changes not affecting the specification or where as a result of initial evaluation it is necessary to amend the specification, the TEB shall close the evaluation and draw up a report on the evaluation, containing the information described in section The chairperson of the TEB shall submit the report to the responsible director or person to whom he has delegated his authority, and to the head Procurement department or the person to whom he has delegated his authority for decision whether to re-issue the tender. The decision and the reasons therefore shall be recorded in the contract file. In accordance with Article 41 of the Procurement Regulations, negotiation may also be undertaken, if the result of the evaluation including the application of weighting factors, is that some tenderers are equally acceptable but the TEB is not able to make a recommendation for the award of contract, and therefore recommends negotiation. The TEB shall write an interim report Preparation of negotiation On the basis of the interim report, the responsible initiator and the head of the local Procurement division/ service shall determine the subjects for negotiation, the objectives to be achieved, the composition of the negotiation team, and the period necessary for improving the tenders concerned. The topics for negotiation shall be determined by the need to improve tenders to an acceptable level, or to allow a positive recommendation. They shall not be aimed at perfecting tenders. The negotiation team shall in any case include the initiator and the contracts officer who shall fix the times and places for the individual negotiations, establish individual agendas, prepare and issue through the Procurement service individual questions or demands to each of the tenderers concerned. 20

21 As the negotiations cannot take place simultaneously, the periods granted for submission of improved parts or even complete tenders must be identical, starting from the finalization of the negotiation with each tenderer concerned. Where necessary, negotiations may include inspections of the facilities of the tenderer concerned; this will be the case specifically for research, development, testing and production work in order to assess the capability of the tenderer concerned. Negotiations will normally take place on Agency premises, but the place of negotiation shall in any case be selected so as to maintain equality of opportunity for all tenderers. The negotiation team may lay down any other conditions, such as the size of the negotiation team of the tenderer, in order to maintain such equality of opportunity. Prior to the start of negotiations, tenderers shall be informed of the nature of, and the reason for, the negotiations. If any tenderer refuses to enter into negotiations, the fact shall be recorded, but negotiations with other tenderers shall proceed. Tenderers shall be informed that their responses shall be formally regarded as constituting a revised binding tender. Tenderers may revise the price of their tenders Conduct of negotiations Negotiations shall be led by the Procurement department. All tenderers shall be given equal opportunity, and the negotiations shall be impartial and shall give no preference to any tenderer. No information contained in one tender, may be used in negotiation with another tenderer. All questions or demands put to tenderers shall be recorded in writing, and responses shall be submitted in writing. Minutes of any meetings shall be kept and signed by both parties and a report on any visit to inspect facilities made Re-marking of tenders Upon receipt of all revised partial or complete tenders, the TEB shall consider the revised tenders and re-mark them, apply weighting factors and draw up a final report with a recommendation for the award of a contract. 7.5 Exceptional negotiation foreseen prior to issue of invitation to tender In exceptional circumstances, and subject to appropriate approval, in order to meet the requirements of a particular programme, and to obtain the greatest advantage to the Agency from a competitive tendering procedure, the Agency may introduce negotiation as a predetermined element of the evaluation procedure. Under such a procedure, tenderers will submit a binding tender, in response to a full and detailed invitation to tender. A preliminary evaluation will be made by the TEB, giving both a qualitative assessment of the tenders, and establishing a list of all points which could be improved. Tenders will not be marked at this stage. Negotiations will be conducted, under strict conditions of quality, with all tenderers, with an aim of achieving the best possible revised tender from each. Upon receipt of revised tenders the TEB will 21

22 proceed to make a final assessment, mark, apply weighting factors, and draw up a final report and recommendation. The procedure to be followed, including an undertaking from the Agency not to transmit unlawfully information from one tenderer to another, shall be included in the conditions of tender, and by submission of a preliminary tender, tenderers shall undertake to participate in such negotiations. In order to maintain the fairness of the competition, the procedures described in and above shall be strictly adhered to. In appropriate cases, the procedure may foresee, or the TEB may decide, that cost and price information not be examined prior to final evaluation. In any case, distribution of cost and price information shall be restricted to the TEB and those persons involved in the evaluation and negotiation who need to have access to such information. 8 TENDER EVALUATION PANELS Where the complexity of the subject matter of an ITT so warrants, the TEB shall, prior to receipt of tenders, appoint tender evaluation panels, to advise it on specific aspects of the tenders. These aspects shall, as far as possible, correspond to the evaluation criteria and sub-criteria (see section above). 8.1 Membership of panels In appointing members to tender evaluation panels, the TEB shall take account of their familiarity with the matter being evaluated by the tender evaluation panel in question, and their availability. All aspects to be considered by the panel shall be sufficiently covered. A member of a panel shall not be subject to the instructions of his hierarchical superiors in respect of his activities as a member of a panel. Experts, who are not staff members, may, under the conditions defined in Section 5 above, be appointed as members of a panel but may not vote and mark. The chairperson shall normally be a voting member of the TEB, if the special expertise of a particular TEB member corresponds to the subject matter of the panel. The chairperson of the panel shall appoint a deputy chairperson and a secretary who shall be members of the panel. On appointment of panels, the joint secretaries of the TEB shall inform the members of the panel in writing. 8.2 Proceedings of panels Panels shall follow any instructions given by the chairperson of the TEB. The panel shall meet as determined by the chairperson of the panel, within the overall schedule set by the TEB. A simple majority of panel members shall constitute a quorum. Decisions of the panel shall be taken by simple majority vote. In the case of equality of votes, the chairperson shall have a casting vote. The secretary shall keep minutes of the 22

23 meetings of the panel. These shall be in such form as the TEB or the chairperson of the panel concerned may direct. They shall, however, at any rate record the time and date of meetings of the tender evaluation panel, the name of those present, the reasons for the absence of any member, any decisions taken by the panel, and any matter which any member of the panel may ask to have recorded. Panel members shall not undertake consultation with a tenderer, but refer any question to the chairperson of the panel who shall refer it further to the TEB. 8.3 Preliminary activities of the panel At the first meeting, the chairperson of a panel shall draw the attention of the members to their duty not to disclose any information concerning the evaluation and to keep all evaluation documents secret. He and each member shall complete the Declaration of secrecy and non-interest form (Annex III). The chairperson of the panel shall give guidance to the members as to the scope of their tasks, and shall assign particular tasks to individual members. If a request for specific information or comment is received, through the chairperson of the TEB, from another panel, eg realism of costs of a particular subsystem, the chairperson of the panel shall allocate this question to a member. In any case of doubt as to how the panel should proceed, the chairperson shall consult the chairperson of the TEB. 8.4 Marking by panels Each panel shall assess the aspects entrusted to it, and produce an evaluation report following a standard presentation, ie containing in sequence: A brief description of the subject matter for which tenders have been invited Identification of the aspects which the panel in question is to evaluate A list of the criteria and sub-criteria for the aspects to be evaluated, together with any interpretation by the panel Any special instructions given by the TEB A table containing the marks given to each tender for each criterion or sub-criterion. The panel may, for the purpose of assessment break down the criteria and sub-criteria into further subdivisons, but shall mark according to the criteria and sub-criteria as established by the TEB A short review of the tenders, intended to provide a reasonable understanding of the marks given A special section reporting any unresolved disagreements between member of the panel. Every criterion or sub-criterion to be marked shall be awarded a number. Marks shall be awarded to proposals between zero and one hundred in accordance with the scale and procedures shown in section above. The report shall be signed by all members of the panel. Should any individual member dissent from the findings, the report shall contain a clear statement of dissent. 23

24 If negotiations, as described in section 7 and 7.4 take place, the panel shall report on the resubmitted bids on the aspects that they are concerned with. 8.5 Submission of panel evaluation report The chairperson of a panel shall submit the report on the evaluation to the chairperson of the TEB, which shall check whether the instructions of the TEB have been complied with. In case of doubt, the TEB may refer the matter back for further evaluation. The chairperson of a panel shall also give an oral report to the TEB if required by the chairperson of the TEB. Individual members of the panel may also be called upon to make a report and explain their marks. It is emphasized that the marks and the assessment of the panels constitute advice to the TEB, which may, if it sees fit, in exceptional cases, modify the markings and findings. It shall, however, always record the reasons for not accepting a panel s advice. 8.6 Closing of evaluation by panel On finalization of the panel evaluation report, the chairperson of a panel shall remind its members again not to disclose any information concerning the evaluation to anybody, if not expressly authorized by the responsible director and the head of Procurement department and then only after the TEB has finalized its evaluation. The secretary of a panel shall collect and return evaluation documents no longer needed to the joint secretaries of the TEB. 9. EVALUATION PROCEDURE FOR NON-COMPETITIVE TENDER Deleted 9.1 Procedure with TEB 9.2 Deleted The procedures described in sections 2 6 above shall be followed with the exception of the application of weighting factors. Where the complexity of the subject matter so warrants, panels may be appointed. Deviations from conditions solely related to the maintenance of fair competition may be made, upon the approval of the responsible contracts officer, provided that confidential information, including cost details from the tenderer, are not wrongfully distributed. A report and recommendation, as described in section above shall be drawn up. 24

25 10. EVALUATION OF COMPETITIVE SUB-CONTRACT TENDERS In exceptional cases the Agency undertakes the procurement of a major and complex system, such as a satellite, by non-competitive tender. In such a case, the Agency may establish procedures for a competitive tender action to take place at the level of sub-contractors, and carried out by the prime contractor under the supervision of the Agency. The purpose of such a procedure is to ensure that competition plays its part in achieving a realistic and suitable overall procurement, as regards both technical quality and price, to establish an acceptable geographical distribution and to allow European industry to participate in Agency programmes on a fair and equal footing. Detailed procedures must be established on a case-by-case basis, approved by the head of Procurement department, and accepted by the prime contractor. The following principles shall be followed: Fair and equal competition shall be maintained. It shall be borne in mind that in some circumstances the prime contractor may also be a sub-contract tenderer Invitations to tender by the prime contractor shall normally be sent to all qualified tenderers. Restricted tender actions shall only be allowed in agreement with the Agency, and the reasons shall be recorded in writing Invitations to tender, including technical specifications, tender and contract conditions and, normally, evaluation criteria, shall be established by the prime contractor, but approved by the Agency, so as to ensure that they correspond to the Agency s requirements and procedures. Approval shall not be taken as lessening the prime contractor s overall responsibility. Invitations to tender shall describe the procedure being followed Tenders may either be sent to the prime contractor, or to the prime contractor and the Agency simultaneously. A representative of the Agency s Procurement service will witness the prime contractor s tender opening board A detailed evaluation procedure, based on this Tender Evaluation Manual, will be agreed and implemented with the prime contractor. Evaluation and marking, according to the scale given in section above, will normally be performed separately by the Agency and the prime contractor, and the results compared Any negotiation with tenderers shall be conducted by the prime contractor, in the presence of representatives of the Agency. Rules for negotiation as described in section 7 above shall be followed The result of the evaluation and any discussions arising therefrom between the Agency and the prime contractor, shall be a formal offer from the prime contractor to include selected sub-contractors in the industrial team, under the prime contractor s responsibility. 25

26 ANNEX 1 DELETED REPLACED BY ELECTRONIC FORM IN ESA-p ANNEX II DELETED REPLACED BY ELECTRONIC FORM IN ESA-p 26

27 ANNEX III 27

28 ANNEX IV 28

29 29

30 30

31 31

32 32