# Council Decision 2004/658/CFSP of 13 September 2004 on the financial provisions applicable to the general budget of the European Defence Agency, Article 63

Extent: E+W+S+N.I.

1. The Agency may use the negotiated procedure without prior publication of a contract notice in the following cases:
(a) where no tenders or no suitable tenders have been submitted in response to an open procedure or restricted procedure after the initial procedure has been completed, provided that the original terms of the contract as specified in the documents relating to the invitation to tender referred to in Article 69 are not substantially altered;
(b) where, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract can be awarded only to a particular economic operator;
(c) in so far as is strictly necessary where, for reasons of extreme urgency brought about by unforeseeable events not attributable to the Agency and likely to jeopardise the Agency's interests, it is impossible to comply with the time-limits set for the other procedures and laid down in Articles 79, 80 and 81;
(d) where a service contract follows a contest and must, under the rules applying, be awarded to the successful candidate or to one of the successful candidates; in the latter case, all successful candidates shall be invited to participate in the negotiations;
(e) for additional services and works not included in the project initially considered nor in the contract first concluded but which, through unforeseen circumstances independent of the contracting authority, have become necessary for the performance of the services or works, subject to the conditions set out in paragraph 2;
(f) for additional contracts consisting in the repetition of similar services or works entrusted to the contractor awarded an earlier contract by the Agency, provided that the subject of the contract conforms to a basic project and that the first contract was awarded under the open or restricted procedure;
(g) for supply contracts:
(i) in the case of additional deliveries which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting authority to acquire equipment having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the length of such contracts may not exceed three years;
(ii) where the products are manufactured purely for the purpose of research, experiment, study or development, with the exception of commercial viability tests and large-scale production aimed at recovering research and development costs;
(h) for building contracts, after prospecting the local market;
(i) for contracts with a value below the threshold laid down in Article 66(2).
2. For the additional services and works referred to in point (e) of paragraph 1, the contracting authority may make use of the negotiated procedure without prior publication of a contract notice on condition that the award is made to the contractor performing the contract:
(a) where such additional contracts cannot be technically or economically separated from the main contract without serious inconvenience for the contracting authority; or
(b) where such services or works, although separable from the performance of the original contract, are strictly necessary for its completion.
The aggregate value of additional contracts may not exceed 50 % of the amount of the initial contract.
3. In the cases referred to in point (f) of paragraph 1, the option of using the negotiated procedure shall be pointed out as soon as the first contract is put out to competitive tender, and the total estimated cost of the additional contracts shall be taken into consideration in calculating the thresholds referred to in Article 68. That procedure may be used only during the three years following conclusion of the original contract.

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Source: https://www.legislation.gov.uk/eudn/2004/658/annex/article/63 (the official version)
Page: https://openlegislation.uk/eu-decision-2004-658/annex/article-63
Contains public sector information licensed under the Open Government Licence v3.0. Source: legislation.gov.uk, The National Archives.