Negotiated procedure without prior publication

Definition

In the negotiated procedure without prior publication (article 32 of Law 4412/2016) the contracting authority publishes no notice but invites one or more economic operators of its choice to submit an offer and negotiates the terms with them. It is an exceptional procedure: it is allowed only in the cases the law lists, the conditions must be met cumulatively and specifically reasoned, and the burden of proof lies with the authority.

When it is allowed

• After a failed tender. When in an open or restricted procedure no bid or no suitable bid was submitted, provided the original terms are not substantially modified. The most common case. See the guide on cancelled and failed tenders.
• Exclusivity. When the subject matter can be supplied by only one operator, for technical reasons, for the protection of exclusive rights or because it is a unique work of art, and no reasonable alternative exists.
• Extreme urgency. When unforeseeable events, not attributable to the authority, do not allow the deadlines of the regular procedures to be met. Natural disasters, health crises, failures of critical equipment.
• Additional deliveries by the original supplier, where a change of supplier would cause incompatibility or disproportionate technical difficulties, for a duration normally up to three years.
• Repetition of similar works or services by the original contractor, if provided for in the original tender documents, within three years of the original contract.
• Purchases on a commodity market and opportunistic purchases from operators in liquidation.

How it is conducted

Above the EU thresholds the authority needs the assent of ΕΑΔΗΣΥ before resorting to the procedure, except in the case of extreme urgency. The negotiation is conducted by a committee, with an invitation to the selected operators, submission of offers and minutes. The rules on ΕΣΗΔΗΣ, the ESPD and guarantees continue to apply, except in certain cases the law expressly exempts, such as exclusivity and urgency. The award decision and the contract are posted in ΚΗΜΔΗΣ.

What it means for the supplier

In a negotiation those invited are those known to the department. Knowing that a tender failed, that a body faces an urgent need or that a contract for additional deliveries is nearing its end is the head start. Conversely, if you find that an authority awarded by negotiation without the conditions being met, the award can be challenged by pre-judicial appeal and ΕΑΔΗΣΥ scrutinises the conditions strictly.