CADA tracker · source extraction
Article 38
Arrangements for the procurement activities by the Commission
1. Before any procurement activity to be carried out under Article 37, the Commission
and at least two Member States shall enter into an agreement laying down the
practical arrangements for the procurement activities carried out by the Commission
under this Chapter. The agreement shall cover procurement procedures to be carried
out during its period of validity and shall be deemed to satisfy the requirements of
the joint procurement agreement and mandate referred to in Article 168(2) and (3) of
Regulation (EU, Euratom) 2024/2509.
2. The agreement shall constitute a mandate for the Commission to procure on behalf
of, or in the name of, the participating entities within the meaning of Article 168(3),
point (e), of Regulation (EU, Euratom) 2024/2509.
3. The agreement shall include the practical arrangements for the participation of
entities, the decision-making process for the choice of procedure and the applicable
conditions, the evaluation of requests for participation and tenders, the award of
contracts, and the applicable law and competent jurisdiction. The Commission shall
remain responsible for the operation and management of procurement activities,
including for deciding on the launch of a procurement procedure, the type of
procedure and of contract, and the award of contracts.
4. The agreement shall establish a Steering Committee composed of the Commission
and one representative from each participating Member States at national level.
Member States may accede to the agreement at a later stage and shall then be
represented in the Steering Committee. The Steering Committee may appoint
additional representatives of other Union entities, of contracting authorities of
Member States and of partner organisations selected by the Commission.
5. The Steering Committee shall be responsible for the strategic oversight of the
procurement activities, including for proposing the strategic direction of the
procurement agenda for a fixed period, and for approving the strategic direction of
each procurement procedure before it is launched by the Commission, to ensure its
compliance with the framework established by this Regulation.
6. Once the agreement has entered into force, contracting authorities of participating
Member States, Union entities and partner organisations selected by the Commission
may accede to and benefit from it and shall be considered as participating entities in
the procedures in which they elect to participate. The Steering Committee may
determine that the agreement shall take the form of a contract of adhesion.
7. The participation of a contracting authority of a Member State shall not be
conditional on that Member State’s participation.
8. The Steering Committee shall set transparent and non-discriminatory conditions for
contracting authorities of Member States to accede to the agreement, in particular as
regards size, minimum amounts and other objective criteria. The Steering Committee
shall also set out the rules and procedures governing the termination of participation
in the agreement of a contracting authority of a Member State that has failed to
comply with its obligations under the agreement.
9. By way of derogation from Article 168(2) of Regulation (EU, Euratom) 2014/2509,
the Steering Committee may approve the participation of contracting authorities from
EFTA States and Union candidate countries without the need for a bilateral or
multilateral treaty provided for such possibility.
10. The Steering Committee may make accession to the agreement conditional on
participating entities accepting one or more ancillary support services, as set out in
Article 37.
11. The Steering Committee shall adopt its rules of procedure, following a proposal from
the Commission.