1. Tenders evaluation criteria
Examples.
TAIEX-REGIO Workshop on Public procurement in the context of management and control of European Structural and Inwestment Funds
Marcin Jędrasik, Phd
Ministry of Development, Poland
19th January 2016, Zagreb

2. Yours expectations Economically most advantageous tender
Examples of tender documentation
Weight of each criteria for services
Selection criteria (art. 58) vs. award criteria (art. 67)
Practice, court law, definitions

3. Content Judgements of the Court
What are the risks related to selection and award criteria?
Current Polish regulation and Directive 2014/24/EU in a nutshell (an extract)
Judgements of the Court
Open vs. restricted procedure
Examples of tender documentation - road sector
Tips
Abovementioned based on:
the most common errors,
lessons drawn from audits,
good practice,
real-life examples,

4. What are the risks related to selection and award criteria?

5. Main risks by EC
COMMISSION DECISION of on the setting out and approval of the guidelines for determining financial corrections to be made by the Commission to expenditure financed by the Union under shared management, for non-compliance with the rules on public procurement
Main types of irregularities and corresponding rates of financial corrections:
Contract notice and tender specifications
Evaluation of tenders
Contract implementation
25 different types of irregularities
24% related to selection or award criteria

6. Type and description of irregularity, rate of correction
Failure to state:
the selection criteria in the contract notice; and/or
the award criteria (and their weighting) in the contract notice or in the tender specifications.
The contract notice does not set out the selection criteria, and/or
When neither the contract notice nor the tender specifications describe in sufficient detail the award criteria as well as their weighting.
25%
The correction can be decreased to 10% or 5% if the selection/award criteria were stated in the contract notice (or in the tender specifications, as regards award criteria) but with insufficient detail.

7. Type and description of irregularity, rate of correction
Unlawful and/or discriminatory selection and/or award criteria laid down in the contract notice or tender documents
Cases in which operators have been deterred from bidding because of unlawful selection and/or award criteria laid down in the contract notice or tender documents. For example:
obligation to already have an establishment or representative in the country or region;
tenderers’ possession of experience in the country or region.
25% (10% or 5%) – b. 100% for deliberate intention.

8. Type and description of irregularity, rate of correction
Selection criteria not related and proportionate to the subject matter of the contract.
When it can be demonstrated that the minimum capacity levels of ability for a specific contract are not related and proportionate to the subject matter of the contract, thus not ensuring equal access for tenderers or having the effect of creating unjustified obstacles to the opening up of public procurement to competition.
25% (10% or 5%).

9. Type and description of irregularity, rate of correction
Modification of selection criteria after opening of tenders, resulting in incorrect acceptance or rejection of tenderers.
The selection criteria were modified during the selection phase, resulting in acceptance of tenderers that should not have been accepted if the published selection criteria had been followed.
The selection criteria were modified during the selection phase, resulting in rejection of tenderers that should have been accepted if the published selection criteria had been followed.
25% (10% or 5%).

10. Type and description of irregularity, rate of correction
Evaluation of tenderers/candidates using unlawful selection or award criteria.
During the evaluation of tenderers/candidates, the selection criteria were used as award criteria, or the award criteria (or respective sub-criteria or weightings) stated in the contract notice or tender specifications were not followed, resulting in the application of unlawful selection or award criteria.
Example: Sub-criteria used for the award of the contract are not related to the award criteria in the contract notice/tender specifications.
25% (10% or 5%).

11. Current Polish regulation and Directive 2014/24/EU in a nutshell (an extract)

12. Selection criteria – art. 22 Polish PPL (act)
Eligible to compete for a contract shall be economic operators who meet the conditions related to:
authorisations to perform specific activities or actions, if such authorisations are required by the law;
knowledge and experience;
appropriate technical potential and personnel capable of performing a contract;
economic and financial standing.
The contracting authority may stipulate in the contract notice that only those economic operators may compete for a contract whose employed staff is in over 50% composed of disabled persons.

13. Selection criteria – art. 22 Polish PPL (regulation) 1/3
Types of documents that may be requested by the contracting authority from the economic operator:
certifying the authorizations to perform specific activities or actions, if such authorizations are required by the law, in particular concessions, permits or licenses
a list of works completed within the period of the past five years prior to the expiry of the time limit for submission of tenders or requests to participate in a procedure, and if the duration of economic activity is shorter – during that period, indicating:
their type and value,
date and place of execution,
enclosing the evidence referring to the most essential works attesting that these works were duly conducted and indicating whether they were conducted in accordance with the good engineering practice and completed properly;

14. Selection criteria – art. 22 Polish PPL (regulation) 2/3
Types of documents that may be requested by the contracting authority from the economic operator:
a list of main supplies or services provided, and in the case of periodic or continuous supplies or services also these in progress – within the period of past three years prior to the expiry of the time limit for submission of tenders or requests to participate in a procedure, and if the duration of economic activity is shorter – during that period, indicating:
their value, type,
date of execution and name of the entities, beneficiaries of supplies or services,
enclosing the evidence attesting that these supplies or services were or are duly provided;

15. Selection criteria 2014/24/EU art. 58 (in a nutshell)
may relate to:
suitability to pursue the professional activity;
economic and financial standing (certain minimum yearly turnover - shall not usually exceed two times the estimated contract value; in reference to the framework agreement yearly turnover shall be calculated on the basis of the expected maximum size of specific contracts);
technical and professional ability.
all requirements shall be related and proportionate (professional or trade registers ) to the subject- matter of the contract.
with regard to technical and professional ability, contracting authorities may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to perform the contract to an appropriate quality standard, with regard to their skills, efficiency, experience and reliability.

16. Contract award criteria – art. 91 Polish PPL
The contracting authority shall select the best tender on the basis of contract award criteria laid down in the specification of essential terms of the contract.
Contract award criteria shall be price or price and other criteria linked to the subject matter of a contract, in particular quality, functionality, technical parameters, environmental aspects, social aspects, innovative aspects, service, period of contract performance and operating costs.
The price criterion may be used as the sole contract award criterion, if the subject matter of a contract is commonly available and has established quality standards.
Contract award criteria shall not pertain to the characteristics of the economic operator, and in particular to its economic, technical or financial credibility (!). Not for non-priority services e.g. legal services.
Where the best tender cannot be selected as two or more tenders represent the same balance of price and other contract award criteria, the contracting authority shall choose from among those tenders the one with a lower price.

17. Contract award criteria 2014/24/EU art. 67 (in a nutshell)
contracting authorities shall base the award of public contracts on the most economically advantageous tender.
criteria may comprise, for instance:
quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics and trading and its conditions;
organisation, qualification and experience of staff assigned to performing the contract, where the quality of the staff assigned can have a significant impact on the level of performance of the contract;
after-sales service and technical assistance, delivery conditions such as delivery date, delivery process and delivery period or period of completion.
Member States may provide that contracting authorities may not use price only or cost only as the sole award criterion or restrict their use to certain categories of contracting authorities or certain types of contracts.
award criteria shall not have the effect of conferring an unrestricted freedom of choice on the contracting authority.

18. Judgements of the Court

19. C-601/13 Ambisig (26.03.2015) procedure for the purchase of training and consultancy services
‘A. Evaluation of the team — 40% (i) This factor will be arrived at by taking into account the composition of the team, its proven experience and an analysis of the academic and professional background of its members. B. Quality and merits of the service proposed — 55% (i) Overall assessment of the proposed structure including the work programme — 0 to 20%. (ii) Description of the technical methods to be used and the implementing methodologies — 0 to 15%. (iii) Description of the methods for checking and monitoring the quality of the work in the various spheres of activity — 0 to 20%. C. Overall price — 5% Preference will be given to the tender achieving the highest number of points.’

20. Question to the Court for a preliminary ruling
‘With regard to procurement contracts for the provision of services of an intellectual nature, training and consultancy, is it compatible with Directive 2004/18, …, to lay down, among the factors making up the award criterion in relation to tenders in a public tendering procedure, a factor enabling evaluation of the teams specifically put forward by the tenderers for the performance of the contract, taking into consideration the composition of the respective teams, their proven experience and an analysis of their academic and professional background?’

21. Judgment - C-601/13 Ambisig (26.03.2015)
With regard to procurement contracts for the provision of services of an intellectual nature, training and consultancy, Directive does not preclude the contracting authority from using a criterion enabling evaluation of the teams specifically put forward by the tenderers for the performance of the contract and which takes into consideration the composition of the team and the experience and academic and professional background of the team members.

22. Judgment C-331/04 ( )
Community law does not preclude a tender committee from attaching specific weight to the subheadings of an award criterion which are defined in advance, by dividing among those headings the points awarded for that criterion by the contracting authority when the contract documents or the contract notice were prepared, provided that that decision:
does not alter the criteria for the award of the contract set out in the contract documents or the contract notice;
does not contain elements which, if they had been known at the time the tenders were prepared, could have affected that preparation;
was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers.

23. Judgment C-532/06 ( )
According to the principle of equal treatment of economic operators and the ensuing obligation of transparency the contracting authority in a tendering procedure cannot stipulate at a later date the weighting factors and sub-criteria to be applied to the award criteria referred to in the contract documents or contract notice.

24. Open vs. restricted procedure

25. Selecting the procedure (several options)
Open: This is a process where all providers interested in the contract and who have responded to an advertisement can submit tenders. All such tenders must be considered without any prior selection process. The selection and evaluation is carried out after the submission of the tenders.
Restricted: This is a two-stage process where only those providers who have been invited may submit tenders. The selection and shortlisting are usually carried out on the basis of a Pre-Qualification Questionnaire (PQQ). The Directive sets a minimum of five candidates. The CA may impose a limit on the maximum number for a given procedure.

26. Examples of tender documentation
Procurement for providing comprehensive advice for the public partner in the preparation and implementation of PPP pilot project with local government road sector

27. Contract award criteria
Criterion
% (max)
Price 30
Quality
The quality of the legal opinion
The methodology of preparing feasibility study on financial and economic analysis for the project with the possible participation of EU funds 45 23 22
The methodology of the contract
Description of the implementation of the contract
Detailed methodology of the contract 25 5 20

28. Contract award criteria - price
Price of the cheapest offer x 30 = number of points Evaluated tender price

29. Contract award criteria - the quality of the legal opinion
offer, in which the Contractor has rated given facts, including the relevant provisions of the law and, exhaustively presented verification of the correctness of actions of both parties and correctly and fully stated and justified the recommended further steps for the customer receives 23 points;
like above, but has not veirfy the correctness of actions from both sides receives 15 points;
like above, but has not provided a proper verification of actions from both sides, or improperly recommended a further steps for the customer or not recommended further steps for the customer 5 points;
Offer, in which the Contractor misunderstood the facts given receives 0 points;
Will also be assessed whether the opinion was using clear, communicative, conceptually clear and unequivocal language, and whether its structure is logically reasonable construction. If the opinion does not met those C.A. may reduce scores range from 1 to 5 points

30. Contract award criteria – outcome
Criterion
% (max)
Company 1
Company 2
Price 30
12,97
Quality
The quality of the legal opinion
The methodology of preparing feasibility study on financial and economic analysis for the project with the possible participation of EU funds 45 23 22 13 16
The methodology of the contract
Description of the implementation of the contract
Detailed methodology of the contract 25 5 20
2,5 4
19,5
58,50
75,47

31. Digression - amendment to the Directive 2014/24/EU in respect of the application thresholds for the procedures for the award of contracts and corresponding values of the thresholds
EUR 5 225 000 ( ) for public works contracts (39 842 193 HRK);
EUR ( )for public supply and service contracts awarded by central government authorities (1 029 416 HRK)
EUR ( ) for public supply and service contracts awarded by sub-central contracting authorities (1 593 688 HRK)
EUR for public service contracts for social (5 718 975 HRK)
Legal basis: COMMISSION DELEGATED REGULATION (EU) 2015/2170; COMMUNICATION FROM THE COMMISSION 2015/C 392/01

32. Questions? Thank you for your attention!
If you are interested in PPPs/concessions
I would be more than happy to speak about it.
Marcin Jędrasik, Phd