PART III: PROCUREMENT IN THE CONTEXT OF PROJECTS FINANCED BY THE NORWEGIAN MINISTRY OF FOREIGN AFFAIRS

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1 PART III: PROCUREMENT IN THE CONTEXT OF PROJECTS FINANCED BY THE NORWEGIAN MINISTRY OF FOREIGN AFFAIRS 1 INTRODUCTION 1.1 This Part III sets out procurement rules and principles which, as a minimum, shall be applied by the Grant Recipient when procuring goods, services or works to Projects financed by the Ministry of Foreign Affairs (MFA). The Grant Recipient shall be responsible for compliance regardless of whether the procurement is carried out by the Grant Recipient itself or its affiliated entities, partners or similar. 1.2 The MFA may carry out ex post checks on the Grant Recipient s compliance with the rules set forth in this Part III. 1.3 Non-compliance with the rules shall render the Project expenditure ineligible for MFA funding to the effect that MFA's unpaid amounts shall be cancelled and MFA's paid amounts shall be repaid. 1.4 Sections 1 to 4 set out rules which shall apply to all contracts. Commented [SVW1]: SVW: Lagt til for å konkretisere nærmere hva som menes med "ineligible for MFA funding". 1.5 Sections 5, 6 and 7 contain specific rules for service contracts, supply contracts and works contracts respectively, and set out different procurement procedures which shall be applied by the Grant Recipient depending on whether a contract meets or exceeds the contract value thresholds. All the thresholds referred to in this Part III are amounts excluding value-added tax (VAT). Contracts shall not be split artificially to circumvent the procurement thresholds. 1.6 Section 8 lists the situations where a negotiated procedure without prior publication is permitted. 12 BASIC PRINCIPLES Commented [SVW2]: SVW: Satt inn en innledning, som I hovedsak er basert på tekst klippet inn fra andre steder I dokumentet If the implementation of a Project requires procurement by the Grant Recipient, the contract must shall be awarded following a tender procedure to the most economically advantageous tender (the tenderer offering obtaining the best score based on the best price and- quality ratio) (most economically advantageous tender), or, as appropriate, to the tenderer offering the lowest price. In doing so, tthe Grant Recipient shall avoid any conflict of interests and respect the following basic principles: Competition: The award of contracts shall, as far as possible, be based on competition. Equal treatment: Participation in tender procedures shall be open on equal terms to all natural and legal persons based on a prior publication. Where the Grant Recipient does not open the

2 tender to all natural and legal persons through a prior publication, it shall justify beforehand in writing and on grounds of Section 8 the choice of tenderers that are invited to submit an offer. Objective criteria: The Grant Recipient shall evaluate the offers received against objective criteria which shall be set out beforehand and which shall be relevant to the contract in question. enable measuring the quality of the offers and which take into account the price (the offer with the lowest price shall be awarded the highest score for the price criterion). Transparent procedure: The Grant Recipient shall keep sufficient and appropriate records and documentation with regard to the procedures applied, its evaluation and award. and which justify the decision on the pre-selection of tenderes (where an open tender procedure is not used) and the award decision. Impartiality: The Grant Recipient shall ensure that the procedure in general and the evaluation in particular takes place in an impartial manner. To this end, any person who has family ties or close personal ties to a tenderer, or who may personally benefit from awarding the contract to a tenderer in one way or another (conflict of interest) shall not be involved in the procurement procedure on behalf of the Grant Recipient. 1.2 Contracts must not be split artificially to circumvent procurement thresholds. Commented [SVW3]: SVW: Upartiskhet er såpass viktig at det fortjener å bli inntatt som eget prinsipp. På denne måten får vi også definert nærmere hva som mener med "conflict of interest", som er et vagt begrep når det står alene (begrepet går også igjen lenger nede i dokumentet). 2.0 The Norwegian Ministry of Foreign Affairs (MFA) may carry out ex post checks on the Grant Recipient s compliance with the rules set forth in this Part III. Failure to comply with these rules would render the related expenditure ineligible for MFA funding Participation in tender procedures administered by the Grant Recipient shall be open on equal terms to all natural and legal persons. Tenderers must provide information on their legal form and ownership structure. Commented [SVW6]: SVW: Flyttet til prinsippene i 2.1 innledningsvis. 5.2 Candidates or tenderers shall not make use of child labour or forced labour and/or practise discrimination and they shall respect the right to freedom of association and the right to organise and engage in collective bargaining, in accordance with the core conventions of the International Labour Organization (ILO). a) they are bankrupt or being wound up, are having their affairs administered by the courts, have entered into an arrangement with creditors, have suspended business activities, are subject of proceedings concerning those matters, or are in any analogous situation arising from a similar procedure provided for in national legislation or regulations; however, tenderers in this situation may be eligible to participate insofar as the Grant Recipient is able to purchase supplies on particularly advantageous terms from either a supplier which is definitively winding up its business activities, or the receivers or liquidators of a bankruptcy, through an arrangement with creditors, or through a similar procedure under national law; Commented [SVW7]: SVW: Vi foreslår å flytte dette ned i listen over situasjoner hvor tenderer skal ekskluderes fra å delta I konkurransen. Det er en strengere regulering. Vi mener dette er hensiktsmessig for å minimere risiko for et worst-case hvor det viser seg at dep har støttet prosjekter som baserer seg på barnearbeid e.l. Se også merknad under. Commented [SVW8]: SVW: Flyttet unntaket opp hit for å gjøre teksten enklere (i stedet for senere henvisning).

3 b) they or persons having powers of representation, decision-making or control over them have been convicted of an offence concerning their professional conduct by a final judgment; which has the force of res judicata; c) they have been guilty of grave professional misconduct; proven by any means which the Grant Recipient or the MFA can justify; d) they have not fulfilled obligations relating to the payment of social security contributions or the payment of taxes in accordance with the legal provisions of the country in which they are established, or with those of the country of the Grant Recipient(s) or those of the country where the contract is to be performed; e) they or persons having powers of representation, decision-making orof control over them have been convicted the subject of a judgment which has the force of res judicata for fraud, corruption, involvement in a criminal organisation, or money laundering by a final judgment; or any other illegal activity, where such illegal activity is detrimental to the MFA s financial interests; e)f) they make use of child labour or forced labour and/or practise discrimination, and/or do not respect the right to freedom of association and the right to organise and engage in collective bargaining pursuant to the core conventions of the International Labour Organization (ILO) Candidates or ttenderers must shall confirm in writing that they are not in one any of the situations listed above. Even if such confirmation is given by a tenderer, the Grant Recipient shall investigate any of the situations listed above if it has reasonable grounds to doubt the contents of such confirmation. 5.5 Points 2.3 (a) to (d) do not apply to the purchase of supplies on particularly advantageous terms from either a supplier which is definitively winding up its business activities, or the receivers or liquidators of a bankruptcy, through an arrangement with creditors, or through a similar procedure under national law. a) are subject to a conflict of interests; Commented [SVW9]: SVW: Forenklet. Commented [SVW10]: SVW: Vanskelig å se for seg praktiske situasjoner på dette (dvs. virksomheter som har begått ulovligheter som strider mot dep's finansielle interesser). Foreslås slettet. Commented [SVW11]: SVW: Klippet inn her fra teksten ovenfor, se merknad over. Commented [SVW12]: SVW: Tatt inn for å sikre at Grant Recipient ikke tillater deltakelse fra en virksomhet som selv oppgir å ikke være i noen av de situasjonene som er opplistet hvis det enkelt lar seg gjøre å påvise at dette er feil. Commented [SVW13]: SVW: Unntaket knytter seg kun til bokstav a. Blir derfor feil å vise til a-d. Vi har flyttet unntaket opp i a. b) are guilty of misrepresentation in supplying the information required by the Grant Recipient as a condition of participation in the tender procedure, or fail to supply this information. 64 GENERAL COMMON PROCUREMENT RULES The tender documents must shall be drafted in accordance with best international practice. If they do not have their own tender documents, The Grant Recipients may voluntarily use the models published in the Practical Guide on the EuropeAid (EU) website. The MFA will not publish notices and tender documents issued by the Grant Recipient(s).

4 The Grant Recipient shall take into account the potential environmental impact of any planned procurements All invitations to submit tenders shall include a clause stateing that offers will be rejected if any illegal or corrupt practises have taken place in connection with the award. All contracts concluded under the Project shall contain a clause stateing that the Grant Recipient may terminate the contract if it finds that illegal or corrupt practises have taken place in connection with the contract award or the execution of the contract The time-limits for receipt of tenders and requests to participate must be sufficient to allow interested parties a reasonable and appropriate period to prepare and submit their tenders. All contracts from NOK and above An evaluation committee must be set up to evaluate applications and/or tenders of a value of NOK or more on the basis of the exclusion, selection and award criteria published by the Grant Recipient(s) in advance in the tender documents. This committee must shall have an odd number of members, at least three members, with all the technical and administrative capacities necessary to give an informed opinion on the tenders. All contracts from NOK and above For contracts with a value exceeding NOK , the Grant Recipient shall compile a written record with documentation of all assessments and decisions during all steps of the procurement process from the planning stage until the signing of the contract. Upon request by the MFA, the Grant Recipient will shall deliver the its written record to the MFA and grant the MFA access to all relevant information and documentation related to its procurement procedurepractises and any specific procurements carried out under the Project. 75 SPECIFIC RULES FOR SERVICE CONTRACTS Service contracts shall have the corresponding meaning as public service contracts in Article 2 Section 1 (9) of Directive 2014/24/EU. Service contracts from NOK and above The contract must shall be awarded by means of one of the following procurement procedures:an international restricted tender procedure following publication of a procurement notice. a) Open procedure; as defined in Article 27 (1) of Directive 2014/24/EU, and as far as possible subject to the same rules therein (except the time limits).

5 b) Restricted procedure; as defined in Article 28 (1) and (2) of Directive 2014/24/EU, and as far as possible subject to the rules therein (except the time limits). a)c) Competitive procedure with negotiation; as defined in Article 29 (1) and (2) of Directive 2014/24/EU, and as far as possible subject to the rules therein (except the time limits) The procurement notice shall be published in all appropriate media, in particular on the Grant Recipient's web site, in the international press and the national press of the country in which the Project is being will be carried out, and in any other relevant specialist periodicals. It must state the number of candidates which will be invited to submit tenders within a range of four to eight candidates, and must be sufficient to ensure genuine competition. 7.3 All would-be service providers fulfilling the conditions referred to in article 2 above may take part, but only candidates satisfying the published selection criteria and invited in writing by the Grant Recipient may submit a tender The contract must shall be awarded by means of one of the procedures mentioned in Section 5.2.a competitive negotiated procedure with or without publication, in which the Grant Recipient consults at least three suppliers of its choice and negotiates the terms of the contract with one or more of them. Commented [SVW14]: Det virker lite hensiktsmessig å "binde" Grant Recipient til en spesifikk prosedyre avhengig av verdien på kontrakten. Verdien er ofte irrelevant for hvilken prosedyre som egner seg best. Grant Recipient bør derfor gis valg mellom ulike prosedyrer, og vi har definert disse ved å vise til direktivet. De to prosedyrene konkurransepreget dialog og innvovasjonspartnerskap har vi valg å ikke ta med ettersom disse er teknisk utfordrende prosedyrer hvor risikoen for anbudsrettslige "feil" (som forrykker konkurransen) er større, og de tre prosedyrene som er nevnt bør være tilstrekkelig egnet til alle typer anskaffelser. Ved å definere prosedyrene i henhold til direktivet, så blir det i tillegg klart hva som ligger i de ulike prosedyrene som er nevnt. De detaljerte reglene om tidsfrister har vi valgt å ta ut for å gjøre reglene enklere å praktisere (tidsfristene vil da følge den generelle regelen nevnt over i pkt. 4.4). Commented [SVW15]: SVW: Se merknad over. Bedre å gi Grant Service contracts of less than NOK : The contract may be awarded by using any procurement procedures established by the Grant Recipient, while respecting the rules and principles laid down in Sections 1 to 43 of this Part III. 86 SPECIFIC RULES FOR SUPPLY CONTRACTS Supply contracts shall have the corresponding meaning as public supply contracts in Article 2(1) (8) of Directive 2014/24/EU. Commented [SVW16]: SVW: Vi foreslår å vise til konkret definisjon i direktivet. Supply contracts from NOK and above The contract must shall be awarded by means of one of the procedures mentioned in Section 5.2.an international open tender procedure following publication of a procurement notice. Commented [SVW17]: SVW: Se merknad over. Bedre å gi Grant The prior procurement notice is toshall be published in all appropriate media, in particular on the Grant Recipient's web site, in the international press and the national press of the country in which the Project is being will be carried out, and in any other relevant specialist periodicals. 8.4 Any would-be supplier which fulfils the conditions referred to in article 2 may submit a tender.

6 6.4 The contract mustshall be awarded by means of one of the procedures mentioned in Section 5.2.an The prior procurement notice shall be published in all appropriate media, at least in the country in which the Project will be carried out as well as on the Grant Recipient's website. A local open tender procedure must provide other eligible suppliers with the same opportunities as local firms The contract may be awarded by using any procurement procedures established by the Grant Recipient, while respecting the rules and principles laid down in articles 1 to 43 of this Part III. 97 SPECIFIC RULES FOR PUBLIC WORKS CONTRACTS Works contracts shall have the corresponding meaning as public works contracts in Article 2(1) (6) of Directive 2014/24/EU. All building and/pr construction contracts and contracts on related services entered into under the Project within the EEA/EU area, shall be awarded in accordance with the relevant provisions The contract must shall be awarded by means of one of the procedures mentioned in Section 5.2.an international open tender procedure following publication of a contract notice The procurement notice is toshall be published in all appropriate media, in particular on the Grant Recipient's web site, in the international press and the national press of the country in which the Project will be is being carried out, and in any other relevant specialist periodicals. Commented [SVW20]: SVW: Vi foreslår å vise til konkret definisjon i direktivet. Commented [SVW21]: SVW: Hvilke regler skal da gjelde for kontrakter av denne typen som inngås utenfor EU/EØS? (vi antar at dette vil gjelde en rekke kontrakter). Dette sies det ingenting om og dermed skapes det en uklarhet. Foreslår at dette slettes for å unngå den uklarheten. Noen kontrakter vil være direkte innenfor anskaffelsesreglene, jf. f.eks. direktiv 2014/24/EU art. 13. Disse er ikke nevnt nå, men det kan vurderes om det er nødvendig. Commented [SVW22]: SVW: Se merknad over. Bedre å gi Grant 9.3 Any contractor which fulfils the conditions referred to in article 2 above may submit a tender The contract mustshall be awarded by means of one of the procedures mentioned in Section 5.2.an open tender procedure published locally: the procurement notice is published in all appropriate media at least in the country in which the Project is being carried out. Commented [SVW23]: SVW: Se merknad over. Bedre å gi Grant The procurement notice shall be published in all appropriate media, at least in the country in which the Project will be carried out as well as on the Grant Recipient's website. 9.5 A local open tender procedure must provide other eligible contractors with the same opportunities as local firms. Commented [SVW24]: SVW: Følger allerede av prinsippet om "open on equal terms" innledningsvis. Derfor slettet The contract may be awarded by using theany procurement procedures established by the Grant Recipient(s), while respecting the rules and principles laid down in sections 1 to 43 of this Part III. 108 USE OF NEGOTIATED PROCEDURE WITHOUT PRIOR PUBLICATION Commented [SVW26]: SVW: Dette punktet handler ikke om bruk av forhandlet prosedyre i sin alminnelighet, men om en prosedyre uten forutgående kunngjøring.