A contract shall be awarded by mutual agreement where it is concluded without any invitation to tender, after the prior authorization of the Authority in charge of public contracts and according to the procedure set forth in the code.
Contracts may be awarded by mutual agreement only in one of the specific cases listed below, namely.
(a) For needs that can only be met through a service requiring the use of a patent, a process, know-how, licence or exclusive rights held by a single contractor, a single service provider or a single supplier;
(b) To replace defaulting contractors or suppliers, in case of emergency;
(c) For works, supplies or services or intellectual services which, in case of extreme emergency due to force majeure, cannot be subjected to a competitive bidding procedure time limit;
(d) For supplies, services or works intended to supplement those initially executed under an initial contract by the same contract holder, provided that the initial contract was awarded following a competitive bidding procedure and that the supplementary contract resulting therefrom concerns only supplies, services or works not provided for under the initial contract, but that were made necessary by unforeseen and external circumstances beyond the control of the parties, and that the said supplies, services or works cannot be technically or economically separated from the main contract.
The Project Owner or the Delegated Project Owner shall request prior authorization from the Authority in charge of public contracts to award a contract by mutual agreement. The request must be reasoned.
The Authority in charge of public contracts shall examine the request and notify its response.
In case of approval, the Project Owner or the Delegated Project Owner shall conduct direct consultation, without the obligation to make it public, of at least 3 (three) companies, except in the case referred to in the Public Contracts Code.
The tender documents, bids and the authorization to award by mutual agreement shall be submitted to the tender’s board for review. The board shall have 7 (seven) working days to make its award proposal.
For contracts that are not within the remit of the Contracts Control Central Board, the Project Owner or the Delegated Project Owner shall award the contract.
For contracts referred to in Article 109 (c) of the code, the Contracting Authority or Delegated Contracting Authority shall directly award the contract once the authorization of the Authority in charge of public contracts is granted. In this case, the draft contract, together with the authorization to award by mutual agreement, the bid documents, the successful bidder’s bid and the evaluation report shall be submitted to the tender’s board for its opinion. The board shall have 5 (five) calendar days to give its opinion.
For contracts other than those referred to above, the Contracting Authority or Delegated Contracting Authority shall forward the tender documents and the successful bidder’s bid and administrative file to the competent Central Public Contracts Control Board for its opinion. The Board shall have 7 (seven) working days to give its opinion.
Pursuant to the code, the selected bidder must provide an administrative file prior to the final award of the contract.
With the exception of contracts awarded by mutual agreement that were included in the contracts award plan, the Contracting Authority or Delegated Contracting Authority shall, with effect from the date of the grant of prior authorization by the Authority in charge of public contracts, have 30 (thirty) working days for the cases referred to in Article 109 (a) and(d) of the code, and 45 (forty-five) days for the cases referred to in Article 109 (a) and (d) of the code, to sign and notify the corresponding contract to the successful bidder, under pain of expiry of the authorization to award the contract by mutual agreement.
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