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Interinstitutional procurement, joint procurement and procurement on behalf of Member States

1. Where a contract or a framework contract is of interest to two or more Union institutions, executive agencies or Union bodies referred to in Articles 70 and 71, and whenever there is a possibility for realising efficiency gains, the contracting authorities concerned may carry out the procedure and the management of the subsequent contract or framework contract on an interinstitutional basis under the lead of one of the contracting authorities. The bodies and persons entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU as well as the Office of the Secretary of the Board of Governors of the European Schools may also participate in interinstitutional procedures. The terms of a framework contract shall only apply between those contracting authorities that are identified for that purpose in the procurement documents and those economic operators that are party to the framework contract. By way of derogation from the third subparagraph of this paragraph, in a situation of extreme urgency resulting from a crisis, new contracting authorities may be added by the contracting authority after the launch of the procurement procedure and before contract signature, subject to the conditions set out in Article 163(6) and provided that the modification does not alter the subject matter of the contract or the framework contract.

2. Where a contract or framework contract is necessary for the implementation of a joint action between a Union institution, a Union body referred to in Articles 70 and 71 or an executive agency referred to in Article 69 and one or more contracting authorities from Member States, the procurement procedure may be carried out jointly by the Union institution and the contracting authorities. Where it is necessary to carry out a joint procurement between a Union institution, a Union body referred to in Articles 70 and 71 or an executive agency referred to in Article 69 and one or more contracting authorities from Member States, Member States may acquire, rent or lease fully the capacities jointly procured. Joint procurement may be conducted with EFTA States and Union candidate countries if that possibility has been specifically provided for in a bilateral or multilateral treaty, or with other third countries if such possibility is specifically provided for in the applicable basic act. The procedural provisions applicable to Union institutions shall apply to the joint procurement. Where the share pertaining to or managed by the contracting authority of a Member State in the total estimated value of the contract is equal to or above 50 %, or in other duly justified cases, the Union institution may decide that the procedural rules applicable to the contracting authority of a Member State shall apply to the joint procurement, provided that those rules may be considered as equivalent to those of the Union institution. The Union institution and the contracting authority from a Member State, an EFTA State or a Union candidate country concerned by the joint procurement shall agree in particular upon the detailed practical arrangements for the evaluation of the requests for participation or of the tenders, the award of the contract, the law applicable to the contract and the competent court for hearing disputes. In a situation of extreme urgency resulting from a crisis, new contracting authorities may be added after the launch of the procurement procedure and before contract signature, subject to the conditions set out in Article 163(6) and provided that the modification does not alter the subject matter of the contract or the framework contract.

3. Where appropriate, two or more Member States may mandate a Union institution, a Union body as referred to in Articles 70 and 71 or an executive agency as referred to in Article 69 (mandated contracting authority) to act as a central purchasing body to procure on behalf of those Member States or in their name, under the following conditions:

(a) the mandated contracting authority shall assess the utility, necessity and proportionality of the request of those Member States;

(b) where the mandated contracting authority intends not to follow the request, it shall inform the Member States concerned and shall give reasons for its refusal;

(c) the mandated contracting authority shall conduct the procurement procedure following its own rules;

(d) if the mandated contracting authority decides to launch a procurement procedure on behalf of the Member States, it shall inform all Member States of its intention to carry out the procurement and invite the interested Member States to participate;

(e) where it agrees to procure on behalf or in the name of the Member States, the mandated contracting authority shall draw up the proposal for a mandate agreement to be signed by the participating Member States. Such agreement shall include in particular, the practical arrangements for the involvement of the participating Member States, the conditions and time frames for possible opt-in and opt-out, and, where appropriate, rules for the allocations of the quantities between the participating Member States. A Union institution, a Union body as referred to in Articles 70 and 71 or an executive agency referred to in Article 69 may act as a wholesaler, by buying, stocking and reselling or donating supplies and services, including rentals, to Member States or partner organisations selected by the Union institution, Union body referred to in Articles 70 and 71 or by an executive agency referred to in Article 69. In this case, the Union institution, Union body referred to in Articles 70 and 71 or executive agency referred to in Article 69 shall conduct the procurement procedure following its own procurement rules.