Contratación en los Organismos Internacionales de Propiedad Industrial Ignacio de Medrano Caballero Director Adjunto Área de Recursos Humanos 25/10/2011

Introduction Brief overview of the principles of Public Sector Procurement with special consideration to the procedures and rules applicable at the Office for Internal Market Organisation - General considerations - Legal Framework - Rules and Procedures of EU public tenders - Some words on public contracts

General considerations Public Procurement one of the most important economic factors in EU Member States (about 16% of EU GDP) In OHIM (and most of EU institutions) about 95% of budget expenditures is done via Public Tender Procedures Open up of market to competition is a way to foster quality, transparency and fairness: (i) at MS level it prevents ‘buy national’ policies and promote the free movement of goods and services (ii) at EU level it enables to ‘buy best value for money’ in line with the Principles of sound Financial Management

Legal Framework

Article 56 of the TFEU OHIM Regulation No CB-3-09 of 17 July 2009 Financial Regulations No 1605/2002 and the Implementing rules (reg. No 2342/2002) of the EU budget applicable to OHIM Public Procurement Directives (2004/18) Other sources of law (eg. Case-law or (EC) No 1564/2005 establishing standard forms for the publication of notices in the framework of public procurement procedures)

Rules and Procedures of EU public tenders

Applicable rules affect mainly 3 aspects (i) obligations regarding publication of EU PT procedures in the OJEU (ii) choice of procedures to be followed (iii) obligations regarding publication of the results of EU PT procedures

(i) Obligations of publication of the EU PT procedure EU PTs aree published in the OJEU if the estimated value of the contract (net of VAT) equals or exceeds the relevant financial threshold. Thresholds as of 1 Jan 2010: EUR for supplies and services (except for those services covered by the next point); EUR for R&D services (category 8 of Annex IIA of the Public Procurement Directive 2004/18/EC) and services such as hotel, restaurant, transport, personnel, security, education, cultural, health and social services (those listed in Annex IIB of the same Directive);Public Procurement Directive 2004/18/EC EUR for the procurement of works. Thresholds updated every 2 years!

(ii) Choice of procurement procedures Open Restricted Negotiated Competitive dialogue.

Contract Notice Receipt of Tenders 52 days minimum Less with Prior Information Notice and/or electronic communication Contract Award Contract Award Notice to OJEU Not specified 10 days min 48 days max Notification of Winner Minimum Time Scales in Open Procedures

Contract Notice Receipt of request to participate Selection of candidates Contract Award Notice to OJEU 37 days minimum Less with electronic com. and/or ‘Accelerated procedure’ Receipt of Tenders 40 days min Less with PIN, electronic com. and/or ‘Accelerated procedure 10 days min 48 days max Not specified Notification of Winner Contract Award Minimum Time Scales in Restricted Procedure

Minimum Time Scales in Negotiated Procedure Contract Notice Receipt of request to participate Receipt of Final Offers Contract Award Notice to OJEU Not specified Selection of candidates 37 days minimum Less with electronic com. and/or ‘Accelerated procedure’ 10 days min 48 days max Notification of Winner Contract Award Negotiation

Verification of the suitability of tenderers (open procedure) Selection of candidates (restricted and negotiated procedure): EXCLUSION: A contracting authority must exclude a bidder from the procurement process, in cases where a bidder has been convicted of involvement in organised crime, corruption, fraud or money laundering. SELECTION (1) : A contracting authority may exclude a bidder from the process, in cases where certain grounds concerning the supplier's personal position are met (e.g. bankruptcy, professional misconduct, non-payment of social security or taxes). Contracting Authorities can ask bidders and competent authorities (also in other MS) to provide relevant documents / information! Rules and Procedures of EU public tenders

SELECTION(2) : Bidders may also be assessed and excluded on the basis of their economic and financial capacity (e.g. annual turnover for past three years) and technical capacity (e.g. experience of similar contracts over the past five years). The contracting authority must specify non-discriminatory selection criteria in the contract notice as well as any minimum standards (e.g. a minimum turnover requirement)! Rules and Procedures of EU public tenders

Criteria for the award of Contracts Lowest price : The lowest priced tender wins. No other element of the tender may be taken into account OR The most economically advantageous tender (MEAT): Factors other than or in addition to price, like quality, technical merit, running costs and delivery period can be taken into account The contracting authority must specify non-discriminatory award criteria and the relative weighting it gives to each of the criteria (e.g., in the contract notice). Rules and Procedures of EU public tenders

(iii) Obligations regarding publications of results All EU PTs which are subject to open and restricted procedure procurement above these thresholds must be published in the Official Journal (except for services listed in annex IIB of Directive 2004/18, which follow specific rules)Official Journal … and notifications to bidders On request the contracting authority must give any unsuccessful bidder: (i) The reason why the tender/application was rejected (ii) The relative advantages of the tender selected as well as the name of the successful bidder. Information must be provided within 15 days! Rules and Procedures of EU public tenders

Some words on public contracts

The award of the contract is very much related to the adherence of the offer with what required by the public tender. Selection and awad criteria must be objective and transparent but on the other hand tenderers/candidates must fulfill the elegibility and selection criteria and offer the best price or MEAT Quality of the bid is thus essential! OHIM contracts consist of General and Specific Conditions that are standards and apply to all contracts of OHIM. Specific Conditions may include particular provisions depending of the scope of the contract (eg. obtainment of goods/services, type of service/good etc.) The draft contract is usually published with the Tender Specifications Documents Draft available also in the web-page of OHIM ( )

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