Article 76. Negotiated procedure without publication of a notice.

1. Contracting authorities may award public contracts through a negotiated procedure without publication of a tender notice when the conditions established by the following paragraphs are met, giving reasoned account thereof in the first act of the procedure in relation to the specific factual situation and the characteristics of the potentially interested parties and the dynamics that characterize them, and in compliance with the principles referred to in articles 1, 2 and 3. For these purposes, the contracting authorities take into account the results of any market consultations carried out, also aimed at analyzing the European markets or, if as appropriate, non-European. 2. Contracting authorities may resort to a negotiated procedure without publication of a notice in the following cases: a) when no offer or no appropriate offer has been submitted, nor any request for participation or any request for appropriate participation, following the trial of an open or restricted procedure, provided that the initial conditions of the contract are not substantially modified and provided that a report is sent to the European Commission, upon request of the latter; an offer is not considered appropriate if it has no relevance to the contract and is, therefore, manifestly inadequate to meet the needs of the contracting authority and the requirements specified in the tender documents, unless substantially modified. An application to participate is not considered appropriate if the economic operator concerned is excluded pursuant to Articles 94, 95, 96, 97 and 98 or does not meet the requirements established by the contracting authority pursuant to Article 100; b) when the works, supplies or services may be provided only by a specific economic operator for one of the following reasons: 1) the purpose of the procurement consists in the creation or acquisition of a unique work of art or artistic representation; 2 ) competition is absent for technical reasons; 3) the protection of exclusive rights, including intellectual property rights; c) to the extent strictly necessary when, for reasons of extreme urgency deriving from events unforeseeable by the contracting authority, the terms for open procedures or restricted procedures or competitive procedures with negotiation cannot be respected; the circumstances invoked to justify extreme urgency must in no case be attributable to the contracting authorities. 3. The exceptions referred to in paragraph 2, letter b), numbers 2) and 3), apply only when no other operators exist economic or reasonable alternative solutions and the absence of competition is not the result of an artificial limitation of the contract parameters. 4. In the case of public supply contracts, the procedure referred to in this article is also permitted in the following cases: a) when the products covered by the contract are manufactured exclusively for the purposes of research, experimentation, study or development, except in the case of production in quantities aimed at ascertaining the commercial viability of the product or at amortising research costs and development; b) in the case of complementary deliveries made by the original supplier and intended for the partial renewal of supplies or systems or the expansion of existing supplies or systems, when the change of supplier obliges the contracting authority to purchase supplies with technical characteristics different, the use or maintenance of which would lead to incompatibility or disproportionate technical difficulties; the duration of these contracts and renewable contracts cannot normally exceed three years; c) for supplies listed and purchased on the raw materials market; d) for the purchase of supplies or services at particularly advantageous conditions, to be a supplier who definitively ceases commercial activity or by the bodies of competition procedures. 5. The procedure provided for by this article is also permitted in public procurement relating to services when the procurement follows a design competition and must, on the basis to the applicable rules, be awarded to the winner or one of the winners of the competition. In the latter case, all winners must be invited to participate in the negotiations. 6. The procedure provided for in this article may be used for new works or services consisting in the repetition of similar works or services, already entrusted to the successful economic operator of the initial contract by the same contracting authorities, provided that such works or services comply with the project on which the tender was based and that this project was the subject of an initial contract awarded according to a procedure referred to in Article 70, paragraph 1. The tender-based project indicates the extent of any additional works or services and the conditions under which they will be awarded. The possibility of making use of the procedure provided for in this article is indicated from the start of the competitive comparison in the first operation and the total amount expected for the continuation of the works or the provision of services is calculated for the determination of the overall value of the contract, for the purposes of applying the thresholds referred to in article 14, paragraph 1. The use of this procedure is limited to the three-year period following the stipulation of the initial procurement contract. 7. Where possible, the contracting authorities identify the economic operators to be consulted on the basis of information regarding the economic and financial and technical and professional qualification characteristics taken from the market, in compliance with the principles of transparency and competition, selecting at least three economic operators, if suitable subjects exist in that number. The contracting authority chooses the economic operator who has offered the most advantageous conditions, pursuant to article 108, after verifying possession of the participation requirements required for the awarding of contracts of equal amount through an open, restricted or competitive procedure with negotiation. EFFECTIVE FROM: July 1, 2023