On November 22, 2022, the National Procurement Office (“ONC”) issued Communication No. 14/2022 (the “Communication”) in which it referred to the mandatory nature of framework agreements (the “Agreements”) and their application by contracting entities.
Mandatory nature of the Agreements:
In its Communication, the ONC reiterated the principle set forth in Art. 25 of the Procurement Regulations (the “Regulations”) approved by Decree 1030/2016 by virtue of which if there is a framework agreement in force, the jurisdictions and entities within the subjective scope of application of the Regulations must contract through the same to the extent that (i) it is to procure goods or services that are covered by the framework agreement in question and (ii) that they do not invoke or evidence any of the exceptions expressly provided for in Art. 126 of the Procedural Manual.
Procedure in process for the same object:
If the agency had initiated a selection procedure prior to the entry into force of the framework agreement, the entry into force of the latter shall prevent the agency from continuing with the selection procedure initiated and contracting outside the framework agreement, the agency shall terminate the procedure and this shall not give rise to compensation in favor of the interested parties or bidders.
Extension of existing contracts with the same object:
The ONC clarified that, as long as the extension does not constitute a new contractual relationship, it is legally feasible to make use of the power to extend a contract even when there is a framework agreement in force for the same object. The agency must verify before exercising the option to extend if the terms of the framework agreement are more beneficial, in which case, it should not make use of the extension, this option will not generate the right to indemnification to the co-contracting party.
Exceptions:
The regulations only allow agencies to request the ONC to grant an exception to a framework agreement in force when the agency proves any of the following circumstances: (i) that the products and/or services included in the framework agreement do not comply with the object or purpose that the contracting is intended to satisfy and (ii) that it can obtain more advantageous conditions on its own account with respect to the objects for which there is a framework agreement in force.
If the ONC considers that it is not appropriate to grant the exception, the agency must procure through the framework agreement in force, otherwise, the agency may hold its own selection procedure.
