Composition of Evaluation Committees in the FR: General procurement rules v external action procurement rules

Dear colleagues,

Following recent discussion and investigation on the composition of evaluation committees as foreseen in the FR and RAP, we thought it may be also good to share this knowledge with you all too!

The specific question came in the context of a complaint and concerned the applicability of Article 158 RAP, and specifically para.2 in the context of external action procurement.

Under General Procurement Rules Article 158(2) RAP states:

• • "The evaluation committee shall be made up of at least three persons representing at least two organisational entities of the institutions or bodies referred to in Article 208 of the Financial Regulation with no hierarchical link between them, at least one of which does not come under the authorising officer responsible".

This article is found also on the section for grants under Article 204(1) RAP:

• • "The committee shall be made up of at least three persons representing at least two organisational entities of the institutions or bodies referred to in Articles 62 and 208 of the Financial Regulation with no hierarchical link between them. To avoid any conflict of interests, those persons shall be subject to the obligations laid down in Article 57 of the Financial Regulation".

Under external action procurement, Article 276 RAP ('Evaluation Committees') is silent and does not include this requirement.  However, Article 190(2) FR states that:

"The provisions of Chapter 1 of Title V of Part One relating to the general provisions on procurement shall be applicable to contracts covered by this Titlesubject to the special provisions relating to thresholds and the arrangements for awarding external contractsto be laid down in the delegated acts adopted pursuant to this Regulation. Articles 117 and 120 shall not be applicable to the procurement set out in this Chapter".

In principle therefore it appears clear, that Chapter 1 of Title V e.g. section on general procurement rules and therefore Article 158 RAP applies to external action procurement.

However, what is particularly tricky in this case is the second half of the phrasein Article 190(2) FR which states: "subject to the special provisions relating to thresholds…." Which are listed under Article 262 RAP:

Article 262

Special provisions relating to thresholds and the arrangements for awarding external contracts

(Article 190 of the Financial Regulation)

1. Articles 123 to 126, with the exception of the definitions, Article 128, point (a) of Article 134(1), points (a) and (c) to (f) of Article 135(1), Article 135(4), Articles 137 and 137a, paragraphs 3 to 7 of Article 139, Articles 148(4), 151(3), Article 152, paragraphs 2 and 3 of Article 153, Articles 154, 155, 157, 158 with the exception of Article 158(4), and Article 160 of this Regulation shall not apply to procurement contracts concluded by the contracting authorities referred to in Article 190(2) of the Financial Regulation or on their behalf.

Implementation of the procurement provisions under this Chapter shall be decided by the Commission, including the appropriate controls to be applied by the responsible authorising officer where the Commission is not the contracting authority.

The applicability of Article 262 RAP in relation to Article 158 RAP and in the context of external action procurement was therefore discussed with the DG's Legal Unit (R2).

=> R2 confirmed that: Article 158 RAP does not apply for external action procurement with the exception of Article 158(4) as stated above in Article 262 RAP.

In summary therefore, the 'lesson learned' from this investigation was that: it is possible that some general procurement rules also extend to and apply to external action procurement (as foreseen in Article 190 FR); HOWEVER, they are subject to the exceptions listed in Article 262 RAP.

I hope this makes some sense, but we thought it could be useful for the future!